PERB Decision No. 0646E•Lake Elsinore School District * * * OVERRULED by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S (PERB 0646E)
Lake Elsinore School District * * * OVERRULED by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S (PERB 0646E)
PERB Decision No. 0646ECalperb18 de dez. de 1987
Texto completo
OVERRULED by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD ELSINORE VALLEY EDUCATION ASSOCIATION, CTA/NEA, Charging Party, v. LAKE ELSINORE SCHOOL DISTRICT, Respondent. --------------------- ) ) ) ) ) ) ) ) ) ) ) Case Nos. LA-CE-1827 LA-CE-2031 PERB Decision No. 646 December 18, 1987 Appearances: A. Eugene Huguenin, Jr., Attorney for Elsinore Valley Education Association, CTA/NEA; Parham & Associates, Inc. by James C. 'Whitlock for Lake Elsinore School District. Before Porter, Craib and Shank, Members. DECISION A.ND ORDER PORTER, Member: This case is before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Lake Elsinore School District (District) to the proposed decision of a PERB administrative law judge (ALJ), attached hereto. The ALJ found that the District violated section 3543.S(c) of the Educational Employment Relations Act (EERA or Act) 1 by: lEERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. Section 3543.5 provides, in pertinent part, as follows: It shall be unlawful for a public school employer to: (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD ELSINORE VALLEY EDUCATION ASSOCIATION, CTA/NEA, Charging Party, Case Nos. LA-CE-1827 LA-CE-2031 v . PERB Decision No. 646 LAKE ELSINORE SCHOOL DISTRICT, December 18, 1987 Respondent . Appearances : A. Eugene Huguenin, Jr., Attorney for Elsinore Valley Education Association, CTA/NEA; Parham & Associates, Inc. by James C. Whitlock for Lake Elsinore School District. Before Porter, Craib and Shank, Members. DECISION AND ORDER PORTER, Member: This case is before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Lake Elsinore School District (District ) to the proposed decision of a PERB administrative law judge (ALJ), attached hereto. The ALJ found that the District violated section 3543.5(c) of the Educational Employment Relations Act (EERA or Act ) _ LEERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. Section 3543.5 provides, in pertinent part, as follows: It shall be unlawful for a public school employer to: (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to
unilaterally changing the method of compensating teachers for extra duties performed during the summer of 1983; unilaterally implementing a proposed $1,500 stipend for teachers assigned to the newly created learning specialist classification; bypassing the exclusive representative by directly negotiating with a unit member to reduce her 1983-84 and 1984-85 work years; failing to give the Elsinore Valley Education Association (EVEA or Association) notice and an opportunity to negotiate over the effects of its decision to reduce School Improvement Project (SIP) instructional aide time; and unilaterally extending the workday of grades 4-6 teachers for four days during the 1983 fall conference week. In addition, the ALJ found that the District derivatively violated section 3543.S(a) and (b) of the EERA by the aforementioned actions: We find the ALJ's findings of fact to be free of prejudicial error and adopt them as our own. 2 For the discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. 2we note that the District excepted to the ALJ's finding that the change in the minimum day schedule resulted in one hour per day of additional preparation time. The record The record instead supports a finding that the change in the minimum day schedule resulted in an increase of one-half hour per day of preparation time. This discrepancy, however, in no way affects our analysis of this allegation. 2 unilaterally changing the method of compensating teachers for extra duties performed during the summer of 1983; unilaterally implementing a proposed $1, 500 stipend for teachers assigned to the newly created learning specialist classification; bypassing the exclusive representative by directly negotiating with a unit member to reduce her 1983-84 and 1984-85 work years; failing to give the Elsinore Valley Education Association (EVEA or Association) notice and an opportunity to negotiate over the effects of its decision to reduce School Improvement Project (SIP) instructional aide time; and unilaterally extending the workday of grades 4-6 teachers for four days during the 1983 fall conference week. In addition, the ALJ found that the District derivatively violated section 3543.5(a) and (b) of the EERA by the aforementioned actions. We find the ALJ's findings of fact to be free of prejudicial error and adopt them as our own. For the discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. 2We note that the District excepted to the ALJ's finding that the change in the minimum day schedule resulted in one hour per day of additional preparation time. instead supports a finding that the change in the minimum day schedule resulted in an increase of one-half hour per day of preparation time. This discrepancy, however, in no way affects our analysis of this allegation. 2
reasons to follow, we affirm in part and reverse in part the ALJ's proposed decision. Change in Method of Payment for Work Performed in Summer of 1983 The parties' collective bargaining agreement is silent on the subject of the method of payment for summer school work. The record, however, supports the ALJ's finding that teachers were routinely compensated at an hourly rate in past years, and that the District departed from this practice by compensating learning specialists and research-based instruction coaches on a per diem basis in 1983. Furthermore, the manner in which the the hourly rate was computed was based upon earlier collective bargaining agreements, and thus raises the inference that the earlier contract provision continues to reflect the mutually agreed upon policy~ (Morgan Hill Unified School District (1985) PERB Decision No. 554.) While there was some evidence that District employees were paid per diem wages in the past, a clear preponderance of the evidence showed that teachers' compensation was calculated on an hourly basis, and this, combined with the rule articulated in Morgan Hill, shows the District's policy was to compensate teachers for extra duty summer assignments on an hourly basis. In order to prove a violation of EERA section 3543.S(c) based upon a unilateral change, a charging party must first make a prima facie showing that the respondent breached a written agreement or altered a past practice. (Grant Joint 3 reasons to follow, we affirm in part and reverse in part the ALJ's proposed decision. Change in Method of Payment for Work Performed in Summer of 1983 The parties' collective bargaining agreement is silent on the subject of the method of payment for summer school work. The record, however, supports the ALJ's finding that teachers were routinely compensated at an hourly rate in past years, and that the District departed from this practice by compensating learning specialists and research-based instruction coaches on a per diem basis in 1983. Furthermore, the manner in which the the hourly rate was computed was based upon earlier collective bargaining agreements, and thus raises the inference that the earlier contract provision continues to reflect the mutually agreed upon policy. (Morgan Hill Unified School District (1985 ) PERB Decision No. 554.) While there was some evidence that District employees were paid per diem wages in the past, a clear preponderante of the evidence showed that teachers' compensation was calculated on an hourly basis, and this, combined with the rule articulated in Morgan Hill, shows the District's policy was to compensate teachers for extra duty summer assignments on an hourly basis. In order to prove a violation of EERA section 3543.5(c) based upon a unilateral change, a charging party must first make a prima facie showing that the respondent breached a written agreement or altered a past practice. (Grant Joint 3
Union High School District (1982) PERB Decision No. 196.) In this case, the District changed its policy by its unilateral alteration of its past practice in its method of compensating teachers for extra duty summer assignments. We therefore affirm the ALJ's conclusion that the District violated EERA section 3543.S(c) and, derivatively, section 3543.S(a) and (b) by its change in the method of compensating teachers for summer work. Unilateral Adoption of Learning Specialist Stipend The District began considering a new classification of "learning specialist" in the spring of 1982; in April 1983, the District approved a job description and positions for the learning specialist classification. Applications for the newly created positions were limited to the District's existing staff. The District began using learning specialists at the beginning of the 1983-84 school year. Between June 1983 and the beginning of the 1983-84 school year in September, EVEA. and the District were engaged in reopener negotiations. Although the learning specialist classification was not among the reopener subjects, the parties discussed the position. The District, in both its announcement to teachers of the new classification and during negotiations, agreed that parts of the learning specialist program, such as a monetary stipend, were negotiable. The District knew, as a result of earlier exchanges between the parties, that EVEA 4 Union High School District (1982) PERB Decision No. 196. ) In this case, the District changed its policy by its unilateral alteration of its past practice in its method of compensating teachers for extra duty summer assignments. We therefore affirm the ALJ's conclusion that the District violated EERA section 3543.5(c) and, derivatively, section 3543.5(a) and (b) by its change in the method of compensating teachers for summer work . Unilateral Adoption of Learning Specialist Stipend The District began considering a new classification of "learning specialist" in the spring of 1982; in April 1983, the District approved a job description and positions for the learning specialist classification. Applications for the newly created positions were limited to the District's existing staff. The District began using learning specialists at the beginning of the 1983-84 school year. Between June 1983 and the beginning of the 1983-84 school year in September, EVEA and the District were engaged in reopener negotiations. Although the learning specialist classification was not among the reopener subjects, the parties discussed the position. The District, in both its announcement to teachers of the new classification and during negotiations, agreed that parts of the learning specialist program, such as a monetary stipend, were negotiable. The District knew, as a result of earlier exchanges between the parties, that EVEA
desired to discuss negotiable aspects of the new program. The District, nonetheless, implemented the program, including a $1,500 stipend, without having reached an agreement with EVEA. While the decision to establish or abolish classifications is a management prerogative and, hence, is nonnegotiable, management remains obligated to negotiate the effects of its decision falling within the scope of representation. Rock Union Elementary School District (1983) PERB Decision No. 322.) In the instant case, although the learning specialist classification was new, EVEA sought only to bargain the effects of the District's decision to create the new classification. The stipend is an aspect of wages, a subject expressly enumerated in EERA section 3543.2(a). 3 We have specifically held that salaries for newly created positions are negotiable. (Antioch Unified School District (1985) PERB Decision No. 515.) In addition, we note that the facts of this case show that the stipend for the new classification was integrally related to the interests of the current bargaining unit, in that the position was offered only to current employees and the learning specialist stipend constituted compensation for duties which related to and augmented the 3EERA section 3543.2(a) provides that the scope of representation "shall be limited to matters relating to wages, hours of employment and other terms and conditions of employment." Stipends relate to wages and are a mandatory subject of bargaining. 5 desired to discuss negotiable aspects of the new program. The District, nonetheless, implemented the program, including a $1,500 stipend, without having reached an agreement with EVEA. While the decision to establish or abolish classifications is a management prerogative and, hence, is nonnegotiable, management remains obligated to negotiate the effects of its decision falling within the scope of representation. (Alum Rock Union Elementary School District (1983 ) PERB Decision No. 322. ) In the instant case, although the learning specialist classification was new, EVEA sought only to bargain the effects of the District's decision to create the new classification. The stipend is an aspect of wages, a subject expressly enumerated in EERA section 3543.2(a). We have specifically held that salaries for newly created positions are negotiable. (Antioch Unified School District (1985 ) PERB Decision No. 515. ) In addition, we note that the facts of this case show that the stipend for the new classification was integrally related to the interests of the current bargaining unit, in that the position was offered only to current employees and the learning specialist stipend constituted compensation for duties which related to and augmented the 3EERA section 3543.2(a) provides that the scope of representation "shall be limited to matters relating to wages, hours of employment and other terms and conditions of employment. " Stipends relate to wages and are a mandatory subject of bargaining.
normal teaching responsibilities. We therefore find that the stipend was negotiable. Although the District argues that EVEA waived its right to bargain a stipend for learning specialists, we agree with the ALJ that the record does not support such a contention. Accordingly, we affirm the ALJ's conclusion that the District's unilateral implementation of the stipend was in violation of section 3543.S(c) and, derivatively, section 3543.S(a) and (b) of EERA. Change in the Work Year of the Bilingual Facilitator The position of bilingual facilitator is one within the bargaining unit. The collective bargaining agreement provides at article 7 that the length of the work year shall be 179 days for unit members. We agree with the ALJ that the evidence supports the finding that District Superintendent Ronald Flora negotiated directly with Judith Reising, the bilingual facilitator, for a reduction in her 1983-84 work year. The Board of Trustees subsequently approved the reduced school year for Reising. Prior to its approval, EVEA President Denise Thomas inquired of the negotiability of Reising's request, and was told that the subject was nonnegotiable and in compliance with District policy. Believing the subject to be negotiable instead, an EVEA representative filed an amendment to Charge No. LA-CE-1827 to include this allegation. The following year Reising again requested a reduced school 6 normal teaching responsibilities. We therefore find that the stipend was negotiable. Although the District argues that EVEA waived its right to bargain a stipend for learning specialists, we agree with the ALJ that the record does not support such a contention. Accordingly, we affirm the ALJ's conclusion that the District's unilateral implementation of the stipend was in violation of section 3543.5(c) and, derivatively, section 3543.5(a) and (b) of EERA. Change in the Work Year of the Bilingual Facilitator The position of bilingual facilitator is one within the bargaining unit. The collective bargaining agreement provides at article 7 that the length of the work year shall be 179 days for unit members. We agree with the ALJ that the evidence supports the finding that District Superintendent Ronald Flora negotiated directly with Judith Reising, the bilingual facilitator, for a reduction in her 1983-84 work year. The Board of Trustees subsequently approved the reduced school year for Reising. Prior to its approval, EVEA President Denise Thomas inquired of the negotiability of Reising's request, and was told that the subject was nonnegotiable and in compliance with District policy. Believing the subject to be negotiable instead, an EVEA representative filed an amendment to Charge No. LA-CE-1827 to include this allegation. The following year Reising again requested a reduced school
year. Her request, however, was accompanied by six conditions concerning the amount of her stipend and other terms and conditions of employment. The Board of Trustees approved her request, which it characterized as "child rearing leave" under the contract. The board, however, did not approve Reising's conditions attached to the granting of her leave, and Reising subsequently rejected the leave as approved by the board. When Reising inquired of Flora the status of her leave, she was told to work the same schedule as the year before (1983-84), or the reduced 166-day work year. Although Reising signed a standard contract of employment with the District, there was no change in it to reflect her reduced number of workdays for 1984-85. As in the case of the previous year, there is no evidence that prior to making this decision, Flora provided EVEA with notice or an opportunity to meet and negotiate over the decision. The The District's reduction of Reising's work year in 1984-85 resulted in EVEA's filing of an additional unfair practice charge (LA-CE-2031) which was eventually consolidated in the instant case. We affirm the ALJ's conclusion that the District bypassed the exclusive representative and negotiated individually with the bilingual facilitator for a reduced work year • .Although the District maintains that it granted Reising a child rearing leave consistent with the CBA, the evidence does not sustain this contention. Negotiating directly with a bargaining unit 7 year. Her request, however, was accompanied by six conditions concerning the amount of her stipend and other terms and conditions of employment. The Board of Trustees approved her request, which it characterized as "child rearing leave" under the contract. The board, however, did not approve Reising's conditions attached to the granting of her leave, and Reising subsequently rejected the leave as approved by the board. When Reising inquired of Flora the status of her leave, she was told to work the same schedule as the year before (1983-84), or the reduced 166-day work year. Although Reising signed a standard contract of employment with the District, there was no change in it to reflect her reduced number of workdays for 1984-85. As in the case of the previous year, there is no evidence that prior to making this decision, Flora provided EVEA with notice or an opportunity to meet and negotiate over the decision. District's reduction of Reising's work year in 1984-85 resulted in EVEA's filing of an additional unfair practice charge (LA-CE-2031) which was eventually consolidated in the instant case . We affirm the ALJ's conclusion that the District bypassed the exclusive representative and negotiated individually with the bilingual facilitator for a reduced work year. Although the District maintains that it granted Reising a child rearing leave consistent with the CBA, the evidence does not sustain this contention. Negotiating directly with a bargaining unit 7
employee to alter existing terms and conditions of employment is a violation of EERA. We, therefore, affirm the ALJ's finding that the Lake Elsinore School District bypassed the exclusive representative in violation of EERA section 3543.S(c) and, derivatively, section 3543.5(a) and (b). Instructional Aide Time Although we affirm the ALJ's findings of fact on this charge, we supplement them with the following. SIP is a state categorically-funded program designed to provide educational assistance to students in the subject areas of reading, mathematics and language arts. (Ed. Code, sec. 52000.) The Education Code mandates the establishment of a school site council which is responsible for developing plans for the use of SIP funds. It is composed of the principal, teachers and other school personnel, pupils and parents at each school site. (Ed. Code, secs. 52012 et seq.) The school improvement plans for each school site are developed by the site councils consistent with the District's general guidelines for adoption by the District's Board of Trustees upon the recommendations of the site councils. (Ed. Code, sec. 52034.) The SIP, in operation at all four school sites within the District, operates on a three-year cycle which began in the 1982-83 school year. Although the SIP state funds may be used to assist students in grades K-6, the ~istrict concentrated its 1982-83 SIP program in grades K-3, and a large portion of the 8 employee to alter existing terms and conditions of employment is a violation of EERA. We, therefore, affirm the ALJ's finding that the Lake Elsinore School District bypassed the exclusive representative in violation of EERA section 3543.5 (c) and, derivatively, section 3543.5(a) and (b). Instructional Aide Time Although we affirm the ALJ's findings of fact on this charge, we supplement them with the following. SIP is a state categorically-funded program designed to provide educational assistance to students in the subject areas of reading, mathematics and language arts. (Ed. Code, sec. 52000. ) The Education Code mandates the establishment of a school site council which is responsible for developing plans for the use of SIP funds. It is composed of the principal, teachers and other school personnel, pupils and parents at each school site. (Ed. Code, secs. 52012 et seq. ) The school improvement plans for each school site are developed by the site councils consistent with the District's general guidelines for adoption by the District's Board of Trustees upon the recommendations of the site councils. (Ed. Code, sec. 52034.) The SIP, in operation at all four school sites within the District, operates on a three-year cycle which began in the 1982-83 school year. Although the SIP state funds may be used to assist students in grades K-6, the District concentrated its 1982-83 SIP program in grades K-3, and a large portion of the
grant monies were allotted toward the salaries of instructional aides in order to provide direct educational services to students in grades K-3. Acting in accordance with the wishes of the school board, the site councils at two of the four school sites (Wildomar and Butterfield schools) reallocated SIP monies for the 1983-84 school year in a manner benefiting the entire student body in grades K-6, rather than merely those students in grades K-3. Specifically, the site council at Wildornar decided to use a portion of the SIP funds to pay the salaries of a library aide, an aide coordinator of volunteers and a computer laboratory aide. Butterfield's site council opted to use a portion of the 1983-84 SIP funds budgeted to pay the salary of a computer aide. Reallocating a portion of SIP funds in such a manner; however, necessitated reducing the amount of SIP funds previously budgeted (in 1982-83) to pay the salaries of the SIP instructional aides for students in the K-3 classrooms; and, accordingly, some teachers at Wildomar and Butterfield had SIP aides in their classrooms for fewer hours, as compared to the previous year. 4 4 4 In 1982-83, the plan at Wildornar School included three hours of aide time for each class in grades K-3. In the 1983-84 school year, SIP instructional aide time was reduced from three hours to two hours per day in the kindergarten classes, and from three hours to one and one-half hours per day for grade 2 classes. At Butterfield School, in 1982-83, the SIP plan provided for SIP instructional aide time of three 9 grant monies were allotted toward the salaries of instructional aides in order to provide direct educational services to students in grades K-3. Acting in accordance with the wishes of the school board, the site councils at two of the four school sites (Wildomar and Butterfield schools) reallocated SIP monies for the 1983-84 school year in a manner benefiting the entire student body in grades K-6, rather than merely those students in grades K-3. Specifically, the site council at Wildomar decided to use a portion of the SIP funds to pay the salaries of a library aide, an aide coordinator of volunteers and a computer laboratory aide. Butterfield's site council opted to use a portion of the 1983-84 SIP funds budgeted to pay the salary of a computer aide. Reallocating a portion of SIP funds in such a manner, however, necessitated reducing the amount of SIP funds previously budgeted (in 1982-83) to pay the salaries of the SIP instructional aides for students in the K-3 classrooms; and, accordingly, some teachers at Wildomar and Butterfield had SIP aides in their classrooms for fewer hours, as compared to the previous year. In 1982-83, the plan at Wildomar School included three hours of aide time for each class in grades K-3. In the 1983-84 school year, SIP instructional aide time was reduced from three hours to two hours per day in the kindergarten classes, and from three hours to one and one-half hours per day for grade 2 classes. At Butterfield School, in 1982-83, the SIP plan provided for SIP instructional aide time of three 9
Coinciding with the reduction in SIP instructional aide time in the fall of 1983, one-half the pupils of every class in grades K-6 at both Wildomar and Butterfield were taken in groups to the computer lab and the library for half-hour sessions with the computer lab aide and the library aide (a total of one hour per week). This arrangement reduced the class size for each teacher to one-half the number of pupils for reading and math instruction for half an hour per week for each subject area. The issue involved in this matter is whether the District should have given EVEA notice and an opportunity to bargain any possible effects on the certificated unit of the District's reduction in the hours of the classified unit's instructional aides, the latter decision made as part of a comprehensive plan to reallocate SIP funds. In her findings, the ALJ noted that the impact on the affected teachers' workday varied depending on the grade level involved and the amount of SIP aide time reduced. Some teachers, she found, had to modify their instructional strategy to accommodate the absence of a second adult. Other teachers hours per day for grades K-1, and one and one-half hours per day for grades 2 and 3. In the 1983-84 school year, SIP aide time for grades K-1 remained at three hours per day. At the beginning of the fall 1983 semester, grades 2 and 3 had no aide time for the first few weeks of the semester until the teachers in grades K-1 classes volunteered to share one hour of aide time per day with grades 2 and 3. 10 Coinciding with the reduction in SIP instructional aide time in the fall of 1983, one-half the pupils of every class in grades K-6 at both Wildomar and Butterfield were taken in groups to the computer lab and the library for half-hour sessions with the computer lab aide and the library aide (a total of one hour per week) . This arrangement reduced the class size for each teacher to one-half the number of pupils for reading and math instruction for half an hour per week for each subject area. The issue involved in this matter is whether the District should have given EVEA notice and an opportunity to bargain any possible effects on the certificated unit of the District's reduction in the hours of the classified unit's instructional aides, the latter decision made as part of a comprehensive plan to reallocate SIP funds. In her findings, the ALJ noted that the impact on the affected teachers' workday varied depending on the grade level involved and the amount of SIP aide time reduced. Some teachers, she found, had to modify their instructional strategy to accommodate the absence of a second adult. Other teachers hours per day for grades K-1, and one and one-half hours per day for grades 2 and 3. In the 1983-84 school year, SIP aide time for grades K-1 remained at three hours per day. At the beginning of the fall 1983 semester, grades 2 and 3 had no aide time for the first few weeks of the semester until the teachers in grades K-1 classes volunteered to share one hour of aide time per day with grades 2 and 3. 10
had to increase the classroom preparation time to prepare additional "seat work" required in absence of a SIP aide. Also, some teachers spent noninstructional time correcting student written work that had previously been corrected by the aide. The ALJ reasoned that the reduction in instructional aide classroom time would conceivably affect the amount of a teacher's time that was required to prepare for and perform such duties. This was so because, where aide time was reduced such duties. or eliminated, teachers who had used SIP aides to correct papers and perform record keeping tasks would have to perform these duties themselves, and this would have the result of increasing the teachers' workday. Also, the change required some teachers to prepare additional "seat work" to accommodate the absence of a SIP aide in the classroom working directly with students, and this would likewise require additional preparation time. The ALJ thereafter concluded that the District's decision which had the effect of reducing the amount of classroom aide time from its level in 1982-83 had a reasonably foreseeable adverse impact on the affected teachers' working conditions, and thus was negotiable pursuant to Mt. Diablo Unified School District (1983) PERB Decision No. 373. We do not agree that the District had the obligation to provide the exclusive representative of the certificated unit notice and an opportunity to negotiate the possible effects of 11 had to increase the classroom preparation time to prepare additional "seat work" required in absence of a SIP aide. Also, some teachers spent noninstructional time correcting student written work that had previously been corrected by the aide. The ALJ reasoned that the reduction in instructional aide classroom time would conceivably affect the amount of a teacher's time that was required to prepare for and perform This was so because, where aide time was reduced or eliminated, teachers who had used SIP aides to correct papers and perform record keeping tasks would have to perform these duties themselves, and this would have the result of increasing the teachers' workday. Also, the change required some teachers to prepare additional "seat work" to accommodate the absence of a SIP aide in the classroom working directly with students, and this would likewise require additional preparation time. The ALJ thereafter concluded that the District's decision which had the effect of reducing the amount of classroom aide time from its level in 1982-83 had a reasonably foreseeable adverse impact on the affected teachers' working conditions, and thus was negotiable pursuant to Mt. Diablo Unified School District (1983) PERB Decision No. 373. We do not agree that the District had the obligation to provide the exclusive representative of the certificated unit notice and an opportunity to negotiate the possible effects of 11
the District's nonnegotiable decision which reduced the hours of members of the classified bargaining unit. As was noted by the ALJ, the SIP aides were to be utilized to provide "educational assistance to the students in the subject areas of reading, mathematics, and language arts. " This comports This comports with the intent of the Legislature in enacting SIP legislation as is expressed at section 52000 of the Education Code, which states, in pertinent part: The Legislature declares its intent to encourage improvement of California elementary .•• schools to ensure that all schools can respond in a timely and effective manner to the educational, personal, and career goals of every pupil. The Legislature is committed to the belief that schools should: (a)) Recognize that each pupil is a unique human being to be encouraged and assisted to learn, grow, and develop in his or her own manner to become a contributing and responsible member of society. (b) Assure that pupils achieve proficiency in mathematics and in the use of the English language, including reading, writing, speaking and listening. (c) Provide pupils opportunities to develop skills, knowledge, awareness, and appreciations in a wide variety of other aspects of the curriculum .. (d) Assist pupils to develop esteem of self and others, personal and social responsibility, critical thinking, and independent judgment. (e) Provide a range of alternatives in instructional settings and formats to respond adequately to the different ways individual pupils learn. 12 the District's nonnegotiable decision which reduced the hours of members of the classified bargaining unit. As was noted by the ALJ, the SIP aides were to be utilized to provide "educational assistance to the students in the subject areas of reading, mathematics, and language arts. . with the intent of the Legislature in enacting SIP legislation as is expressed at section 52000 of the Education Code, which states, in pertinent part: The Legislature declares its intent to encourage improvement of California elementary . . . schools to ensure that all schools can respond in a timely and effective manner to the educational, personal, and career goals of every pupil. The Legislature is committed to the belief that schools should: (a Recognize that each pupil is a unique human being to be encouraged and assisted to learn, grow, and develop in his or her own manner to become a contributing and responsible member of society. (b) Assure that pupils achieve proficiency in mathematics and in the use of the English language, including reading, writing, speaking and listening. (c) Provide pupils opportunities to develop skills, knowledge, awareness, and appreciations in a wide variety of other aspects of the curriculum . (d) Assist pupils to develop esteem of self and others, personal and social responsibility, critical thinking, and independent judgment. (e) Provide a range of alternatives in instructional settings and formats to respond adequately to the different ways individual pupils learn. 12
The Legislature, by the provisions of this chapter, intends to support the efforts of each participating school to improve instruction, auxiliary services, school environment, and school organization to meet the needs of pupils at that school. (Emphasis added.) As is apparent from the language of the statute, the fundamental purpose of the SIP is to assist pupils in their academic development, and there are numerous options available to the individual school site councils to achieve this goal. Further, there exists evidence in the record demonstrating that teachers were aware that SIP funds were to be used to assist students, and what the role of SIP instructional aides was to be. A.l though teachers could not recite with verbatim accuracy the Legislative purpose of the SIP legislation; those testifying as to how their workday changed as a result of a reduction in instructional aide time were aware, for the most part, that the SIP aides were there to provide individualized instruction to students, and not to function as personal assistants to teac ers. . h 5 When viewed in light of the 5The Association called teachers Jill Good, Ann Andrews, Lori Singelyn, Susan Johns, and Elizabeth Fowler to testify as to an increase in workload, if any, caused by the reduction in hours of classified SIP aides. Most witnesses displayed at least a rudimentary knowledge of the goals of the SIP legislation. For example, Good testified that one of the main goals of her school's SIP plan was to provide individualized instruction to students by the use of aides. Similarly, Andrews testified that it was her understanding that the 13 The Legislature, by the provisions of this chapter, intends to support the efforts of each participating school to improve instruction, auxiliary services, school environment, and school organization to meet the needs of pupils at that school. (Emphasis added. ) As is apparent from the language of the statute, the fundamental purpose of the SIP is to assist pupils in their academic development, and there are numerous options available to the individual school site councils to achieve this goal. Further, there exists evidence in the record demonstrating that teachers were aware that SIP funds were to be used to assist students, and what the role of SIP instructional aides was to be. Although teachers could not recite with verbatim accuracy the Legislative purpose of the SIP legislation, those testifying as to how their workday changed as a result of a reduction in instructional aide time were aware, for the most part, that the SIP aides were there to provide individualized instruction to students, and not to function as personal assistants to teachers. When viewed in light of the 5The Association called teachers Jill Good, Ann Andrews, Lori Singelyn, Susan Johns, and Elizabeth Fowler to testify as to an increase in workload, if any, caused by the reduction in hours of classified SIP aides. Most witnesses displayed at least a rudimentary knowledge of the goals of the SIP legislation. For example, Good testified that one of the main goals of her school's SIP plan was to provide individualized instruction to students by the use of aides. Similarly, Andrews testified that it was her understanding that the 13
legislative goals of the SIP, any change in or diminishing of the teachers' preparation time in 1982-83 was, at best, a fortuitous side effect of misuse of the program. Conversely, Conversely, the extent to which some teachers were required, as a result of the reduction in aides' hours, to adopt a teaching style to accommodate one less adult in the room, reflects more upon the professional nature of teaching, which often requires the exercise of discretion and flexibility, rather than it does a District-compelled increase in workload. Further, the record is not clear on whether it was the reduction in SIP aide time or an entirely different factor which caused the increase in preparation time to which four teachers testified. The teachers' testimony revealed several factors, aside from the SIP aide time; which could have increased the teachers' workday. The relative experience of the teacher was one such factor. 6 Aside from the experience purpose of the aide was to give "extra individual attention or individual instruction;; to students. Singelyn testified that the aides were "to work with the children, not just sit there ana ao paperwork. rter testimony was reinforced by that of Walter McCarthy, who, as Assistant Principal at Wildomar in 1982-83, sat in on meetings between the principal and teachers wherein the principal explained that aides were to work directly with the students and strongly discouraged aides being used to grade papers for students: Fowler, however, expressed confusion with respect to the role of the aide in the classroom. 6It is noteworthy in this respect that of the four teachers testifying as to an increase in their workday, three, having taught five years or less, were relatively inexperienced teachers and one was in her first year of teaching with the 14 legislative goals of the SIP, any change in or diminishing of the teachers' preparation time in 1982-83 was, at best, a fortuitous side effect of misuse of the program. the extent to which some teachers were required, as a result of the reduction in aides' hours, to adopt a teaching style to accommodate one less adult in the room, reflects more upon the professional nature of teaching, which often requires the exercise of discretion and flexibility, rather than it does a District-compelled increase in workload. Further, the record is not clear on whether it was the reduction in SIP aide time or an entirely different factor which caused the increase in preparation time to which four teachers testified. The teachers' testimony revealed several factors, aside from the SIP aide time, which could have increased the teachers' workday. The relative experience of the teacher was one such factor. Aside from the experience purpose of the aide was to give "extra individual attention or individual instruction" to students. Singelyn testified that the aides were "to work with the children, not just sit there and do paperwork. " Her testimony was reinforced by that of Walter Mccarthy, who, as Assistant Principal at Wildomar in 1982-83, sat in on meetings between the principal and teachers wherein the principal explained that aides were to work directly with the students and strongly discouraged aides being used to grade papers for students. Fowler, however, expressed confusion with respect to the role of the aide in the classroom. 6It is noteworthy in this respect that of the four teachers testifying as to an increase in their workday, three, having taught five years or less, were relatively inexperienced teachers and one was in her first year of teaching with the 14
factor, other factors which could have contributed to an increased workday included: class size, special learning difficulties of some students, competence of the aides and, perhaps the most significant of all, individual variation among teachers themselves. With respect to the latter, some teachers, especially new teachers, habitually worked longer than the contractually mandated minimum 7 1/2 hours, while other teachers did not. Furthermore, the record shows that in 1983-84, students were taken from the classrooms in groups each week for a half-hour session with the computer lab aide and a half-hour session with the library aide. One may infer that this would be a factor offsetting any increases in the length of some teachers' workday allegedly caused by the reduction in SIP instructional aide time. In short, the reductions in SIP instructional aide time in certain K-3 classes at two schools occurred within the context District as of the time of the hearing. Conversely, the teacher testifying with the most experience with the District, Lucinda Brouwer, noticed no impact on the length of time it took for her to prepare for class subsequent to the reduction in aide time. In her testimony, Brouwer stated: I think because I have taught a little bit longer than some of the witnesses who have spoken earlier, I've made it a habit of doing my work in the seven and a half hours. And I don't take work home and I don't do work on the weekends. And I did that regardless of if I had an aide or not. 15 factor, other factors which could have contributed to an increased workday included: class size, special learning difficulties of some students, competence of the aides and, perhaps the most significant of all, individual variation among teachers themselves. With respect to the latter, some teachers, especially new teachers, habitually worked longer than the contractually mandated minimum 7 1/2 hours, while other teachers did not. Furthermore, the record shows that in 1983-84, students were taken from the classrooms in groups each week for a half-hour session with the computer lab aide and a half-hour session with the library aide. One may infer that this would be a factor offsetting any increases in the length of some teachers' workday allegedly caused by the reduction in SIP instructional aide time. In short, the reductions in SIP instructional aide time in certain K-3 classes at two schools occurred within the context District as of the time of the hearing. Conversely, the teacher testifying with the most experience with the District, Lucinda Brouwer, noticed no impact on the length of time it took for her to prepare for class subsequent to the reduction in aide time. In her testimony, Brouwer stated: I think because I have taught a little bit longer than some of the witnesses who have spoken earlier, I've made it a habit of doing my work in the seven and a half hours. And I don't take work home and I don't do work on the weekends. And I did that regardless of if I had an aide or not. 15
of a categorically funded program -- the fundamental purpose of which was to assist students. Mt. Diablo's requirements of notice and an opportunity to negotiate "reasonably foreseeable effects" of a nonnegotiable decision do not contemplate the bargaining of those effects contravening the intent of the Legislature in enacting the SIP legislation. Instead, the reduction in SIP aides' hours reasonably would have been expected to exert, at best, an indirect and speculative impact on the workday of teachers. In this regard, we note that the (1982-83) levels of aide time from which the reduction occurred had been in existence for only one school year. Accordingly, we reverse the ALJ on this allegation and find that the District was not required to provide the Association notice and an opportunity to negotiate such speculative effects on the teachers of its decision which reduced instructional aide services in the classified unit. Change in the Length of the Instructional Day The complaint in this case alleges, and the ALJ found, that the District committed an unfair practice by changing the length of the instructional day during the 1983 fall conference week. As to this unfair practice charge, the record before us presents a jurisdictional question which was neither raised by the parties nor addressed by th~ ALJ: Does this Board have jurisdiction to issue a complaint and resolve an unfair practice charge where the conduct charged is also prohibited by 16 of a categorically funded program -- the fundamental purpose of which was to assist students. Mt. Diablo's requirements of notice and an opportunity to negotiate "reasonably foreseeable effects" of a nonnegotiable decision do not contemplate the bargaining of those effects contravening the intent of the Legislature in enacting the SIP legislation. Instead, the reduction in SIP aides' hours reasonably would have been expected to exert, at best, an indirect and speculative impact on the workday of teachers. In this regard, we note that the (1982-83 ) levels of aide time from which the reduction occurred had been in existence for only one school year. Accordingly, we reverse the ALJ on this allegation and find that the District was not required to provide the Association notice and an opportunity to negotiate such speculative effects on the teachers of its decision which reduced instructional aide services in the classified unit. Change in the Length of the Instructional Day The complaint in this case alleges, and the ALJ found, that the District committed an unfair practice by changing the length of the instructional day during the 1983 fall conference week. As to this unfair practice charge, the record before us presents a jurisdictional question which was neither raised by the parties nor addressed by the ALJ: Does this Board have jurisdiction to issue a complaint and resolve an unfair practice charge where the conduct charged is also prohibited by 16
the provisions of the parties' collective bargaining agreement, which contains grievance machinery covering the matter at issue and culminating in binding arbitration? A secondary issue presented by the record before us is the effect, if any, on this jurisdictional question of charging party's failure to invoke the grievance machinery and the respondent's concomitant failure to assert as a "defense" to the complaint that the matter was subject to binding arbitration. 7 Preliminarily it is appropriate to review this Board's jurisdictional terrain. First, this Board has only such jurisdiction and powers as have been conferred upon it by statute. (Association For Retarded Citizens v. Dept~ of Developmental Services (1985) 38 Cal.3d 384, 391-392; Fertig v. State Personnel Board (1969) 71 Cal.2d 96, 103; B.W. v. Board of Medical Quality Assurance (1985) 169 Cal.App.3d 219, 233-234; B.M.W. of North America, Inc. v. New Motor Vehicle Board (1984) 162 Cal.App.3d 980, 994, hg. den.; Graves v. Commission on Professional Competence (1976) 63 Cal.App.3d 970, 976, hg. den.) Second, this Board acts in excess of its jurisdication if 7Board Regulation 32646 provides that if the respondent believes that the dispute is subject to binding arbitration, it shall assert such as a defense in its answer to the complaint and move to dismiss the complaint. (Cal. Admin. Code, tit. 8, sec. 32646. ) 17 the provisions of the parties' collective bargaining agreement, which contains grievance machinery covering the matter at issue and culminating in binding arbitration? A secondary issue presented by the record before us is the effect, if any, on this jurisdictional question of charging party's failure to invoke the grievance machinery and the respondent's concomitant failure to assert as a "defense" to the complaint that the matter was subject to binding arbitration.' Preliminarily it is appropriate to review this Board's jurisdictional terrain. First, this Board has only such jurisdiction and powers as have been conferred upon it by statute. (Association For Retarded Citizens v. Dept. of Developmental Services (1985) 38 Cal . 3d 384, 391-392; Fertig v. State Personnel Board (1969) 71 Cal. 2d 96, 103; B.W. v. Board of Medical Quality Assurance (1985) 169 Cal . App. 3d 219, 233-234; B.M.W. of North America, Inc. v. New Motor Vehicle Board (1984) 162 Cal. App. 3d 980, 994, hg. den.; Graves v. Commission on Professional Competence (1976) 63 Cal. App. 3d 970, 976, hg. den. ) Second, this Board acts in excess of its jurisdiction if 7Board Regulation 32646 provides that if the respondent believes that the dispute is subject to binding arbitration, it shall assert such as a defense in its answer to the complaint and move to dismiss the complaint. (Cal. Admin. Code, tit. 8, sec. 32646.) 17
it acts in violation of the statutes conferring and/or limiting its jurisdiction and powers. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288-291; Kennaley v. Superior Court (1954) 43 Cal.2d 512, 514; Graves v. Commission on Professional Competence, supra, 63 Cal.App.3d 970, 976, hg. den.) Indeed, all actions taken, or determinations made, in excess of this Board's jurisdiction and powers are void. (City & County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400, hg. den.; Fertig v. State Personnel Board, supra, 71 Cal.2d 96, 103-104; Association For Retarded Citizens v. Dept. of Developmental Services, supra, 38 Cal.3d 384, 391; B.W. B.W. v. Board of Medical Quality Assurance, supra, 169 Cal.App.3d 219, 234; Graves v. Commission on Professional Competence, supra, 63 Cal.App.3d 970, 976, hg~ den.) Third, where this Board is without jurisdiction with respect to a matter before it, it must dismiss the matter on its own motion, regardless of whether the jurisdictional issue has been raised by the parties. (Goodwine v. Superior Court (1965) 63 Cal.2d 481, 482; Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, 302-303; Linnick v. Sedelmeier (1968) 262 Cal.App.2d 12, fn. 1; Olmstead v. West (1960) 177 Cal.App.2d 652, 655; Warner v. Pacific Tel. & 'I'el. Co. (1953) 121 Cal.App.2d 497, 502, hg: den:; Estate of Zavadil (1962) 200 Cal.App.2d 32, 36; Costa v. Banta (1950) 98 Cal.App.2d 181, 182, hg. den.; and see Bender v. 18 it acts in violation of the statutes conferring and/or limiting its jurisdiction and powers. (Abelleira v. District Court of Appeal (1941) 17 Cal . 2d 280, 288-291; Kennaley v. Superior Court (1954) 43 Cal. 2d 512, 514; Graves v. Commission on Professional Competence, supra, 63 Cal . App. 3d 970, 976, hg. den. ) Indeed, all actions taken, or determinations made, in excess of this Board's jurisdiction and powers are void. (City & County of San Francisco v. Padilla (1972) 23 Cal.App. 3d 388, 400, hg. den.; Fertig v. State Personnel Board, supra, 71 cal. 2d 96, 103-104; Association For Retarded Citizens v. Dept. of Developmental Services, supra, 38 Cal. 3d 384, 391; v. Board of Medical Quality Assurance, supra, 169 Cal . App. 3d 219, 234; Graves v. Commission on Professional Competence, supra, 63 Cal. App. 3d 970, 976, hg. den. ) Third, where this Board is without jurisdiction with respect to a matter before it, it must dismiss the matter on its own motion, regardless of whether the jurisdictional issue has been raised by the parties. (Goodwine v. Superior Court (1965) 63 Cal. 2d 481, 482; Abelleira v. District Court of Appeal, supra, 17 Cal. 2d 280, 302-303; Linnick v. Sedelmeier (1968) 262 Cal . App. 2d 12, fn. 1; Olmstead v. West (1960) 177 Cal. App. 2d 652, 655; Warner v. Pacific Tel. & Tel. Co. (1953) 121 Cal . App. 2d 497, 502, hg. den. ; Estate of Zavadil (1962) 200 Cal. App. 2d 32, 36; Costa v. Banta (1950) 98 Cal . App. 2d 181, 182, hg. den.; and see Bender v. 18
Williamsport Area School District (1986) 475 U.S. [89 L.Ed.2d 501, 511, 514-514, rehg. den. 90 L.Ed.2d 682]; Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxiles de Guinee (1982) 456 U.S. 694, 701-702 [72 L.Ed.2d 492, 500-501.) Fourth, where this Board is without jurisdiction, it cannot acquire jurisdiction by the parties' consent, agreement, stipu- lation or acquiesence, nor by waiver or estoppel. (Schlyen v. Schlyen (1954) 43 Cal.2d 361, 375; Keithley v. Civil Service Board of City of Oakland (1970) 11 Cal.App.3d 443, 448, hg. den.; Summers v. Superior Court (1959) 53 Cal.2d 295, 298; Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773, 776; Fong Chuck v. Chin Po Foon (1947) 29 Cal.2d 552, 554; Estate of Lee (1981) 124 Cal.App.3d 687, 692-693, hg. den~; People v. Coit Ranch, Inc. (1962) 204 Cal.App.2d 52, 57, hg. den.) Lastly, lack of jurisdiction cannot be overcome by the established practices or customs of this Board, nor by Board regulation. (J.R. Norton Co. v. Agricultural Labor Relations Board (1979) 26 Cal.3d 1, 29; Morris v. Williams (1967) 67 Cal.2d 733, 737, 748; Calif. State Restaurant Assoc. v. Whitlow, Chief, Div. of Industrial Welfare (1976) 58 Cal.App.3d 340, 347, hg. den.; Harris v. ABC Appeals Board (1964) 228 Cal.App.2d 1, 6, hg. den.; Graves v~ Commission on Professional Competence, supra, 63 Cal.App.3d 970, 976, hg. den.; Adamek & Dessert, Inc. v~ Agricultural Labor Relations 19 Williamsport Area School District (1986) 475 U.S. [89 L. Ed. 2d 501, 511, 514-514, rehg. den. 90 L. Ed. 2d 682]; Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxiles de Guinee (1982) 456 U.S. 694, 701-702 [72 L. Ed. 2d 492, 500-501.) Fourth, where this Board is without jurisdiction, it cannot acquire jurisdiction by the parties' consent, agreement, stipu- lation or acquiesence, nor by waiver or estoppel. (Schlyen v. Schlyen (1954) 43 Cal. 2d 361, 375; Keithley v. Civil Service Board of City of Oakland (1970) 11 Cal. App. 3d 443, 448, hg. den.; Summers v. Superior Court (1959) 53 Cal . 2d 295, 298; Sampsell v. Superior Court (1948) 32 Cal. 2d 763, 773, 776; Fong Chuck v. Chin Po Foon (1947) 29 Cal . 2d 552, 554; Estate of Lee (1981 ) 124 Cal. App. 3d 687, 692-693, hg. den. ; People v. Coit Ranch, Inc. (1962) 204 Cal . App. 2d 52, 57, hg. den. ) Lastly, lack of jurisdiction cannot be overcome by the established practices or customs of this Board, nor by Board regulation. (J. R. Norton Co. v. Agricultural Labor Relations Board (1979) 26 Cal . 3d 1, 29; Morris v. Williams (1967) 67 Cal. 2d 733, 737, 748; Calif. State Restaurant Assoc. V. Whitlow, Chief, Div. of Industrial Welfare (1976) 58 Cal.App. 3d 340, 347, hg. den. ; Harris v. ABC Appeals Board (1964) 228 Cal . App. 2d 1, 6, hg. den.; Graves v. Commission on Professional Competence, supra, 63 Cal. App. 3d 970, 976, hg. den.; Adamek & Dessert, Inc. v. Agricultural Labor Relations 19
Board (1986) 178 Cal.App.3d 970, 978, hg. den.; Brown v. State Personnel Board (1941) 43 Cal.App.2d 70, 75, hg. den.; Davidson v. Burns (1940) 38 Cal.App.2d 188, 192, hg. den.) The record before us shows that the parties' collective bargaining agreement includes a grievance and arbitration provision culminating in binding arbitration. The contract further provides at article 15 that a grievance may be brought by the Association or any member of the bargaining unit covered by the terms of the agreement, and that: [a] "grievance" occurs when a unit member has been adversely affected by an alleged violation, or misapplication of [the] Agreement .•• misinterpretation Article 7, section 7.7 of the parties' collective bargaining agreement prescribes: The instructional minutes for the intermediate grades may be increased by the District not more than fifteen (15) minutes during the 1982-83 school year. (Emphasis added. )8 In this case, EVEA alleged that the District unilaterally increased the number of instructional minutes during Conference Week in the fall of 1983 by approximately 45 minutes per day. Therefore, to the extent that the District increased the number 8As noted by the ALJ, although under the terms of the collective bargaining agreement the 15-minute increase in instructional minutes was to be implemented during the 1982-83 school year, the agreement was not ratified until April 15, 1983. The parties, accordingly, agreed that the 15-rninute increase would be implemented during the 1983-84 school year, beginning in the fall of 1983. 20 Board (1986) 178 Cal . App. 3d 970, 978, hg. den. ; Brown v. State Personnel Board (1941) 43 Cal . App. 2d 70, 75, hg. den. ; Davidson v. Burns (1940 ) 38 Cal. App. 2d 188, 192, hg. den. ) The record before us shows that the parties' collective bargaining agreement includes a grievance and arbitration provision culminating in binding arbitration. The contract further provides at article 15 that a grievance may be brought by the Association or any member of the bargaining unit covered by the terms of the agreement, and that: [a] "grievance" occurs when a unit member has been adversely affected by an alleged violation, misinterpretation or misapplication of [the] Agreement. . . Article 7, section 7.7 of the parties' collective bargaining agreement prescribes: The instructional minutes for the intermediate grades may be increased by the District not more than fifteen (15 ) minutes during the 1982-83 school year. ( Emphasis added. ) 8 In this case, EVEA alleged that the District unilaterally increased the number of instructional minutes during Conference Week in the fall of 1983 by approximately 45 minutes per day. Therefore, to the extent that the District increased the number BAs noted by the ALJ, although under the terms of the collective bargaining agreement the 15-minute increase in instructional minutes was to be implemented during the 1982-83 school year, the agreement was not ratified until April 15, 1983. The parties, accordingly, agreed that the 15-minute increase would be implemented during the 1983-84 school year, beginning in the fall of 1983. 20
of instructional minutes in an amount greater than 15 minutes,
it allegedly has engaged in conduct violative of the provisions
of the agreement.
Turning now to the language of EERA, section 3541.S(a)
provides, in pertinent part:
Any employee, employee organization or
employer shall have the right to file an
unfair practice charge, except that the
board shall not ••• issue a complaTnt
against conduct also prohibited by the
provisions of the agreement between the
parties until the grievance machinery of
the agreement, if it exists and covers the
matter at issue, has been exhausted, either
by settlement or binding arbitration.
However, when the charging party
demonstrates that resort to contract
grievance procedure would be futile,
exhaustion shall not be necessary. The
board shall have discretionary jurisdiction
to review such settlement or arbitration
award reached pursuant to the grievance
machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
shall dismiss the charge. shall dismiss the The board shall, The board shall,
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.
{Emphasis added.)
charge.
In construing a statute, we begin with the fundamental rule
that a court "should ascertain the intent of the Legislature so
as to effectuate the purpose of the law." (Moyer v. Workmen's
Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) Further, it is a
21
of instructional minutes in an amount greater than 15 minutes,
it allegedly has engaged in conduct violative of the provisions
of the agreement.
Turning now to the language of EERA, section 3541.5(a)
provides, in pertinent part:
Any employee, employee organization or
employer shall have the right to file an
unfair practice charge, except that the
board shall not . . . issue a complaint
against conduct also prohibited by the
provisions of the agreement between the
parties until the grievance machinery of
the agreement, if it exists and covers the
matter at issue, has been exhausted, either
by settlement or binding arbitration.
However, when the charging party
demonstrates that resort to contract
grievance procedure would be futile,
exhaustion shall not be necessary. The
board shall have discretionary jurisdiction
to review such settlement or arbitration
award reached pursuant to the grievance
machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.
(Emphasis added. )
In construing a statute, we begin with the fundamental rule
that a court "should ascertain the intent of the Legislature so
as to effectuate the purpose of the law." (Moyer v. Workmen's
Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230. ) Further, it is a
21fundamental maxim of statutory construction that, where no ambiguity exists, the intent of the Legislature in enacting a law is to be gleaned from the words of the statute itself, according to the usual and ordinary import of the language employed. In other words, where the language of a statute is clear and unambiguous, case law holds that the construction intended by the Legislature is obvious from the language used. (Noroian v. Department of Administration, Public Employees' Retirement System (1970) 11 Cal.App.3d 651, 654, hg. den.; McQuillan v. Southern Pacific Co. (1974) 40 Cal.App.3d 802, 805-806; Hoyme v. Board of Education (1980) 107 Cal.App.3d 449; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155; People v. Boyd (1979) 24 Cal.3d 285, 294.) The Legislature's limitation on this Board's jurisdiction to act prior to the exhaustion of the parties' grievance machinery culminating in binding arbitration is clearly evinced by its choice of words in section 3541.5(a), " •. the Board shall not issue a complaint ..•. " In dealing with the provisions of EERA, it is important to note that Government Code sections 5 and 14 prescribe that the word "shall" is mandatory. Likewise, California case law customarily construes the word "shall" as being mandatory, while "may" is generally interpreted to describe permissive action on the part of a governmental entity. (Gov. Code, secs. 5 and 14; Fair v. Hernandez (1981) 116 Cal.App.3d 868, 878, hg. den.; Hogya v. 22 fundamental maxim of statutory construction that, where no ambiguity exists, the intent of the Legislature in enacting a law is to be gleaned from the words of the statute itself, according to the usual and ordinary import of the language employed. In other words, where the language of a statute is clear and unambiguous, case law holds that the construction intended by the Legislature is obvious from the language used. Noroian v. Department of Administration, Public Employees' Retirement System (1970) 11 Cal . App. 3d 651, 654, hg. den. ; McQuillan v. Southern Pacific Co. (1974) 40 Cal.App. 3d 802, 805-806; Hoyme v. Board of Education (1980) 107 Cal . App. 3d 449; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal. 3d 152, 155; People v. Boyd (1979) 24 Cal. 3d 285, 294.) The Legislature's limitation on this Board's jurisdiction to act prior to the exhaustion of the parties' grievance machinery culminating in binding arbitration is clearly evinced by its choice of words in section 3541.5(a), ". . . the Board shall not issue a complaint. . . ." In dealing with the provisions of EERA, it is important to note that Government Code sections 5 and 14 prescribe that the word "shall" is mandatory. Likewise, California case law customarily construes the word "shall" as being mandatory, while "may" is generally interpreted to describe permissive action on the part of a governmental entity. (Gov. Code, secs. 5 and 14; Fair v. Hernandez (1981) 116 Cal . App. 3d 868, 878, hg. den. ; Hogya v. 22
Superior Court, San Diego County (1977) 75 Cal.App.3d 122, 133, hg. den.; REA Enterprises v. California Coastal Zone Commission (1975) 52 Cal.App.3d 596, 606, hg. den.) Furthermore, even without the Government Code's prescriptions that "shall" is mandatory, "(t)he word 'shall' in ordinary usage means 'must' and is inconsistent with the concept of discretion." (People v. Municipal Court (1983) 149 Cal.App.3d 951, 954, hg. den.) The word "shall" appearing in a statute has additionally been interpreted by courts as being "mandatory" in the sense that a governmental entity's failure to comply with a particular procedural step will have the effect of invalidating a governmental action to which the procedural requirement relates. In this instance, courts have held; the procedural requirement is considered jurisdictional. (Garcia v. County Board of Education (1981) 123 Cal.App.3d 807, 811-813; People v. McGee (1977) 19 Cal.3d 948, 959; Edwards v. Steele (1979) 25 Cal.3d 406, 410.) For example, in the case of Ursino v. Superior Court (1974) 39 Cal.App.3d 611, at issue was the application of a municipal ordinance providing that, "On the filing of any appeal, the Board [of Permit Appeals] ... shall act thereon not later than forty (40) days after such filing . • • . " (P. 618.) In interpreting this ordinance, the court declared that "[t]he use of the word 'shall' in conjunction with the phrase 'not later than' is clearly 23 Superior Court, San Diego County (1977) 75 Cal . App. 3d 122, 133, hg. den. ; REA Enterprises v. California Coastal Zone Commission (1975) 52 Cal . App. 3d 596, 606, hg. den. ) Furthermore, even without the Government Code's prescriptions that "shall" is mandatory, "(the word 'shall' in ordinary usage means 'must' and is inconsistent with the concept of discretion." (People v. Municipal Court (1983) 149 Cal . App. 3d 951, 954, hg. den. ) The word "shall" appearing in a statute has additionally been interpreted by courts as being "mandatory" in the sense that a governmental entity's failure to comply with a particular procedural step will have the effect of invalidating a governmental action to which the procedural requirement relates. In this instance, courts have held, the procedural requirement is considered jurisdictional. (Garcia v. County Board of Education (1981) 123 Cal . App. 3d 807, 811-813; People v. McGee (1977 ) 19 Cal. 3d 948, 959; Edwards v. Steele (1979) 25 Cal. 3d 406, 410.) For example, in the case of Ursino v. Superior Court (1974) 39 Cal. App. 3d 611, at issue was the application of a municipal ordinance providing that, "On the filing of any appeal, the Board [of Permit Appeals] . . shall act thereon not later than forty (40) days after such filing . (P. 618. ) In interpreting this ordinance, the court declared that "[the use of the word 'shall' in conjunction with the phrase 'not later than' is clearly 23
indicative of a mandatory intention." (P. 619.) The court went on to hold that any purported determination made by the Board of Permit Appeals after the 40-day period would be in excess of the Board's jurisdiction and void. (P. 619.) By these authorities, it would be entirely anomalous to argue that, while "shall" is interpreted by the courts to impose an affirmative duty to act, the words, "shall not" may nonetheless be construed to confer discretion to act. The conclusion is unavoidable that the prohibitory language of EERA section 3541.5 is mandatory. Not only did the Legislature use the word "shall" to express its mandatory intent, it further proscribed certain conduct of the Board by the use of the negative, "not," thereby rendering the statute even more plainly mandatory. (Tarquin v~ Commission on Professional Competence (1978) 84 Cal.App.3d 251, 257-258, hg. den.; McKee v. Commission on Professional Competence (1981) 114 Cal.App.3d 718, 721-722, hg. den.; Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 377-378.) 9 9Tarquin v. Commission on Professional Competence, McKee v. Commission on Professional Competence and Pollack v. Department of Motor Vehicles all present decisions in which the words "shall not," appearing in a statute, have been interpreted to operate as a jurisdictional limitation on the authority of the governing board to which such statutory language is directed. For example; in Tarquin, supra, at issue was the application of section 13407 of the Education Code which provides, in pertinent part: The governing board of any school district shall not act upon any charges 24 indicative of a mandatory intention. " (P. 619. ) The court went on to hold that any purported determination made by the Board of Permit Appeals after the 40-day period would be in excess of the Board's jurisdiction and void. (P. 619.) By these authorities, it would be entirely anomalous to argue that, while "shall" is interpreted by the courts to impose an affirmative duty to act, the words, "shall not" may nonetheless be construed to confer discretion to act. The conclusion is unavoidable that the prohibitory language of EERA section 3541.5 is mandatory. Not only did the Legislature use the word "shall" to express its mandatory intent, it further proscribed certain conduct of the Board by the use of the negative, "not, " thereby rendering the statute even more plainly mandatory. (Tarquin v. Commission on Professional Competence (1978) 84 Cal . App. 3d 251, 257-258, hg. den. ; Mckee v. Commission on Professional Competence (1981) 114 Cal . App. 3d 718, 721-722, hg. den.; Pollack v. Department of Motor Vehicles (1985) 38 Cal: 3d 367, 377-378.)" Tarquin v. Commission on Professional Competence, Mckee v. Commission on Professional Competence and Pollack v. Department of Motor Vehicles all present decisions in which the words "shall not, " appearing in a statute, have been interpreted to operate as a jurisdictional limitation on the authority of the governing board to which such statutory language is directed. For example, in Tarquin, supra, at issue was the application of section 13407 of the Education Code which provides, in pertinent part: The governing board of any school district shall not act upon any charges 24
Furthermore, the second proviso of section 3541.S(a) is further evidence of the Legislature's intent to limit the Board's jurisdiction. It provides, in pertinent part: 10 The board shall have discretionary jurisdiction to review such settlement or arbitration award reached pursuant to the grievance machinery solely for the purpose of determining whether it is repugnant to the purposes of this chapter. If the board finds that such settlement or arbitration award is repugnant to the purposes of this chapter, it shall issue a complaint on the basis of a timely filed charge .•.. (Emphasis added.) In reading section 3541.5 as a whole, while the first proviso is intended to operate as a jurisdictional limitation on the Board's authority to issue a complaint where the matter of unprofessional conduct or incompetency unless during the preceding term •••. priorprior to the date of filing the charge and at least 90 days prior to the date of the filing, the board ..• has given the employee ••. written notice of the unprofessional conduct or incompetency, specifying the nature thereof ..•with with such particularity as to furnish the employee an opportunity to correct his faults •••• In Tarquin, a school district sought to discharge a teacher for incompetence. The district, accordingly, served upon the teacher a notice of unsatisfactory performance. The district also relieved the teacher of his classroom duties. The court The court found that the notice to the teacher did not comply with the statute inasmuch as it did not give him an adequate opportunity to correct shortcomings. Thus, significantly, the court held that the school district was without jurisdiction to proceed against the teacher on charges of incompetency. (Pp. 258-259.) 10EERA. section 3541. 5 (a) is quoted at page 21. 25 Furthermore, the second proviso of section 3541.5(a) is further evidence of the Legislature's intent to limit the Board's jurisdiction. It provides, in pertinent part: 10 The board shall have discretionary jurisdiction to review such settlement or arbitration award reached pursuant to the grievance machinery solely for the purpose of determining whether it is repugnant to the purposes of this chapter. If the board finds that such settlement or arbitration award is repugnant to the purposes of this chapter, it shall issue a complaint on the basis of a timely filed charge . (Emphasis added. ) In reading section 3541.5 as a whole, while the first proviso is intended to operate as a jurisdictional limitation on the Board's authority to issue a complaint where the matter of unprofessional conduct or incompetency unless during the preceding term . . to the date of filing the charge and at least 90 days prior to the date of the filing, the board . . has given the employee . . written notice of the unprofessional conduct or incompetency specifying the nature thereof . such particularity as to furnish the employee an opportunity to correct his faults . In Tarquin, a school district sought to discharge a teacher for incompetence. The district, accordingly, served upon the teacher a notice of unsatisfactory performance. The district also relieved the teacher of his classroom duties. found that the notice to the teacher did not comply with the statute inasmuch as it did not give him an adequate opportunity to correct shortcomings. Thus, significantly, the court held that the school district was without jurisdiction to proceed against the teacher on charges of incompetency. (Pp. 258-259.) 10EERA section 3541.5(a) is quoted at page 21. 25
is covered by the parties' grievance procedures and binding arbitration, the statute goes on to vest the Board with discretionary jurisdiction to (1) review such arbitration and settlement awards for repugnancy and (2), if the Board finds repugnancy, to issue a complaint. The Legislature clearly delineated the Board's discretionary jurisdiction to review for repugnancy. In reaching this conclusion, this Board recognizes the strong policy in California in favor of arbitration and that provisions of EERA embody such a policy. EERA provides a procedure for a party to seek a court order compelling arbitration, and specifies that this action is to be brought under Code of Civil Procedure section 1280 et seq. . 1 L Language of those statutory provisions and cases decided thereunder contain forceful expressions of this state's legislative and public policies in favor of arbitration. More than one court has declared: llsection 3548.7 states in pertinent part: Where a party to a written agreement is aggrieved by the failure, neglect, or refusal of the other party to proceed to arbitration pursuant to the procedures provided therefore in the agreement ... , the aggrieved party may bring proceedings pursuant to Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure for a court order directing that the arbitration proceed pursuant to the procedures provided therefore in such agreement •••• 26 is covered by the parties' grievance procedures and binding arbitration, the statute goes on to vest the Board with discretionary jurisdiction to (1) review such arbitration and settlement awards for repugnanty and (2), if the Board finds repugnanty, to issue a complaint. The Legislature clearly delineated the Board's discretionary jurisdiction to review for repugnanty. In reaching this conclusion, this Board recognizes the strong policy in California in favor of arbitration and that provisions of EERA embody such a policy. EERA provides a procedure for a party to seek a court order compelling arbitration, and specifies that this action is to be brought 11under Code of Civil Procedure section 1280 et seq. Language of those statutory provisions and cases decided thereunder contain forceful expressions of this state's legislative and public policies in favor of arbitration. More than one court has declared: 1lsection 3548.7 states in pertinent part: Where a party to a written agreement is aggrieved by the failure, neglect, or refusal of the other party to proceed to arbitration pursuant to the procedures provided therefore in the agreement . the aggrieved party may bring proceedings pursuant to Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure for a court order directing that the arbitration proceed pursuant to the procedures provided therefore in such agreement . 26
General rules relative to arbitration and arbitration agreements and proceedings are provided in section 1280 et seq, Code of Civil Procedure. They reflect the strong legislative policy favoring arbitration (American Ins. Co. v. Gernand (1968) 262 Cal.App.2d 300, 304; Jordan v. Pacific Auto Ins. Co. (1965) 232 Cal.App.2d 127, 132; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 95, hg. den.) In Delta Lines, Inc. v. International Brotherhood of Teamsters (1977) 66 Cal.App.3d 960, 965-966, the court stated: It has long been the policy of this state to recognize and give utmost effect to arou:rat.ion agreements. . . • --Tne policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing •.•. 'Therefore every reasonable intendment will be indulged to give effect to such proceedings. ' " ( Utah Const. Co. v. Western Pac. Ry. Co. (1916) 174 Cal. 156.) "This policy is especially applicable to collective bargaining agreements since arbitration under such agreements has been a potent factor in establishing and maintaining peaceful relations between labor and industry." (Meyers v. Richfield Oi I Corp. (1950) 98 Cal.App.2d 667, 671.) For other decisions in which there have been strong enunciations by California courts of the public policy in favor of arbitration, see also Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, 939, hg~ den.; Vernon v. Drexel Burnham & Co. (1975) 52 Cal.App~3d 706, 715-716, hg. den.; Pacific Inv. Co. v. Townsend (1976) 58 Cal.App.3d 1, 9-10; Posner v. Grumwald-Marx (1961) 56 Cal.2d 169, 176. 27 General rules relative to arbitration and arbitration agreements and proceedings are provided in section 1280 et seq, Code of Civil Procedure. They reflect the strong legislative policy favoring arbitration American Ins. Co. v. Gernand (1968) 262 Cal . App . 2d 300, 304; Jordan v. Pacific Auto Ins. Co. (1965 ) 232 Cal. App. 2d 127, 132; Morris v. Zuckerman (1967) 257 Cal. App. 2d 91, 95, hg. den. ) In Delta Lines, Inc. v. International Brotherhood of Teamsters (1977 ) 66 Cal.App. 3d 960, 965-966, the court stated: It has long been the policy of this state to recognize and give utmost effect to arbitration agreements. . "The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing. 'Therefore every reasonable intendment will be indulged to give effect to such proceedings. '" (Utah Const. Co. v. Western Pac. Ry. Co. (1916) 174 Cal. 156.) "This policy is especially applicable to collective bargaining agreements since arbitration under such agreements has been a potent factor in establishing and maintaining peaceful relations between labor and industry." (Meyers v. Richfield oil Corp. (1950) 98 Cal . App. 2d 667, 671.) For other decisions in which there have been strong enunciations by California courts of the public policy in favor of arbitration, see also Lehto v. Underground Constrco. (1977) 69 Cal.App. 3d 933, 939, hg. den. ; Vernon v. Drexel Burnham & Co. (1975) 52 Cal . App. 3d 706, 715-716, hg. den. ; Pacific Inv. Co. v. Townsend (1976) 58 Cal. App. 3d 1, 9-10; Posner v. Grumwald-Marx (1961) 56 Cal . 2d 169, 176. 27
Accordingly, EERA proscribes this Board's issuance of a complaint against conduct prohibited by the parties' agreement prior to the exhaustion of the contract's grievance-arbitration machinery. Hence, PERB was and is without jurisdiction to issue a complaint on this allegation. Turning to our prior precedent, one finds that this Board has traditionally followed the private sector's discretionary deferral doctrine as was articulated by the National Labor Relations Board (NLRB) in the case of Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]. The genesis of this Board's adherence to the prearbitration guidelines set forth in Collyer occurred in the decision of Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-8la. In Dry Creek the Board explained: While there is no statutory deferral requirement imposed on the National Labor Relations Board (hereafter NLRB), that agency has voluntarily adopted such a policy both with regard to post-arbitral and pre-arbitral award situations. EERA section 3541.S(a) essentially codifies the policy developed by the NLRB regarding deferral to arb1trat1on proceedings and awards. It isIt is appropriate, therefore, to look for guidance to the private sector. A comparison, however, of the statutory framework of the National Labor Relations Act (NLRA) with that of EERA reveals the fallacy in the Board's conclusion in Dry Creek that EERA "essentially codified" the NLRB prearbitral policy. In sharp contrast to EERA, there is no statutory proscription or 28 Accordingly, EERA proscribes this Board's issuance of a complaint against conduct prohibited by the parties' agreement prior to the exhaustion of the contract's grievance-arbitration machinery. Hence, PERB was and is without jurisdiction to issue a complaint on this allegation. Turning to our prior precedent, one finds that this Board has traditionally followed the private sector's discretionary deferral doctrine as was articulated by the National Labor Relations Board (NLRB) in the case of Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]. The genesis of this Board's adherence to the prearbitration guidelines set forth in Collyer occurred in the decision of Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-8la. In Dry Creek the Board explained: While there is no statutory deferral requirement imposed on the National Labor Relations Board (hereafter NLRB) , that agency has voluntarily adopted such a policy both with regard to post-arbitral and pre-arbitral award situations. EERA section 3541.5(a) essentially codifies the policy developed by the NLRB regarding deferral to arbitration proceedings and awards. appropriate, therefore, to look for guidance to the private sector. A comparison, however, of the statutory framework of the National Labor Relations Act (NLRA) with that of EERA reveals the fallacy in the Board's conclusion in Dry Creek that EERA "essentially codified" the NLRB prearbitral policy. In sharp contrast to EERA, there is no statutory proscription or 28
deferral provision under the NLRA. Indeed, unlike EERA, the NLRA explicitly provides that: The Board is empowered •.• to prevent any person from engaging in any unfair labor practice .••. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise. (29 U.S.C. sec. 160(a), emphasis added.) Thus, section l0(a) constitutes an expression of Congress' intention for the NLRB's jurisdiction to be paramount over any system which might be devised by the parties to settle their disputes, including binding arbitration pursuant under the collective bargaining agreement. (See Morris, The Developing Labor Law (2d ed. 1983) p. 918; Johannesen & Smith, Collyer, Open Sesame to Deferral (1972} 23 Lab. L.J. 723.) Therefore, quite unlike the jurisdiction of PERB, that of the NLRB is not displaced by the presence of an arbitration provision within the parties' agreement covering the matter at issue. On the contrary, even though a breach of contract remediable through arbitation occurs, the NLRB may still, if it so chooses, exercise its jurisdiction under the NLRA to prosecute conduct which also constitutes an unfair labor practice. (NLRB v. Strong Roofing and Insulating Co. (1969) 393 U.S. 357, 361 [70 LRFM 2100, 2101]; International Harvester Company (1962) 138 NLRB 923 [51 LRRM 1155]; C & C Plywood Corp. (1967) 385 U.S. 421 [64 LRRM 2065]; NLRB v. Acme Industrial Co. (1967) 385 U.S. 432 [64 LRRM 2069].) 29 deferral provision under the NLRA. Indeed, unlike EERA, the NLRA explicitly provides that: The Board is empowered . . to prevent any person from engaging in any unfair labor practice . This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise. (29 U.S.C. sec. 160(a), emphasis added. ) Thus, section 10(a) constitutes an expression of Congress' intention for the NLRB's jurisdiction to be paramount over any system which might be devised by the parties to settle their disputes, including binding arbitration pursuant to a provision under the collective bargaining agreement. (See Morris, The Developing Labor Law (2d ed. 1983) p. 918; Johannesen & Smith, Collyer, Open Sesame to Deferral (1972) 23 Lab. L.J. 723.) Therefore, quite unlike the jurisdiction of PERB, that of the NLRB is not displaced by the presence of an arbitration provision within the parties' agreement covering the matter at issue. On the contrary, even though a breach of contract remediable through arbitation occurs, the NLRB may still, if it so chooses, exercise its jurisdiction under the NLRA to prosecute conduct which also constitutes an unfair labor practice. (NLRB v. Strong Roofing and Insulating Co. (1969) 393 U.S. 357, 361 [70 LRRM 2100, 2101]; International Harvester Company (1962) 138 NLRB 923 [51 LRRM 1155]; C & C Plywood Corp. (1967 ) 385 U.S. 421 [64 LRRM 2065]; NLRB v. Acme Industrial Co. (1967) 385 U.S. 432 [64 LRRM 2069].) 29
Although Congress has not statutorily limited the NLRB's jurisdiction to adjudicate unfair practices where the conduct at issue also constitutes a breach of contract cognizable under the parties' grievance machinery, Congress has nonetheless declared, at section 203(d) of the Labor Management Relations Act, that uthe desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement" should be the parties' agreed-upon method of dispute resolution. (29 u.s.c. sec. 173(d), emphasis added.) The NLRB has accordingly developed a comprehensive, if not always consistent, 12 doctrine of prearbitral deferral. (See Dubo Manufacturing Corporation (1963) 142 NLRB 431 [53 LRRM 1070]; Collyer Insulated Wire, supra, 192 NLRB 837.) More specifically, in Collyer Insulated Wire the NLRB articulated standards under which deferral would be deemed appropriate. These requirements are: (1) the dispute must arise within a stable collective bargaining relationship where there is no enmity by the respondent toward the charging party: (2) (2) the respondent must be ready and willing to proceed to 12For example, the NLRB has reversed itself on the issue of the propriety of deferring to arbitration alleged discrimination violations. The current position of the NLRB is that such violations are properly deferrable. ( See General (See General American Transportation Corp. (1977} 228 NLRB 808 [94 LRRM 1483 overruled by NLRB in United Technologies Corp. (1984) 268 NLRB 557 [115 LRRM 1049], thereby returning to doctrine articulated in National Radio Co., Inc. (1972) 198 NLRB 527 [80 LRRM 1718].) 30 Although Congress has not statutorily limited the NLRB's jurisdiction to adjudicate unfair practices where the conduct at issue also constitutes a breach of contract cognizable under the parties' grievance machinery, Congress has nonetheless declared, at section 203 (d) of the Labor Management Relations Act, that "the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement" should be the parties' agreed-upon method of dispute resolution. (29 U.S.C. sec. 173(d), emphasis added. ) The NLRB has accordingly developed a comprehensive, if not always consistent, 12 doctrine of prearbitral deferral. (See Dubo Manufacturing Corporation (1963 ) 142 NLRB 431 [53 LRRM 1070]; Collyer Insulated Wire, supra, 192 NLRB 837. ) More specifically, in Collyer Insulated Wire the NLRB articulated standards under which deferral would be deemed appropriate. These requirements are: (1) the dispute must arise within a stable collective bargaining relationship where there is no enmity by the respondent toward the charging party; the respondent must be ready and willing to proceed to 12For example, the NLRB has reversed itself on the issue of the propriety of deferring to arbitration alleged discrimination violations. The current position of the NLRB is that such violations are properly deferrable. American Transportation Corp. (1977) 228 NLRB 808 [94 LRRM 1483 overruled by NLRB in United Technologies Corp. (1984) 268 NLRB 557 [115 LRRM 1049], thereby returning to doctrine articulated in National Radio Co., Inc. (1972 ) 198 NLRB 527 [80 LRRM 1718].) 30
arbitration and must waive contract-based procedural defenses;
and (3) the contract and its meaning must lie at the center of
the dispute. (Collyer Insulated Wire, supra, 192 NLRB 837,
842.)
While the NLRB standards set forth in Collyer Insulated
Wire apply in the the private sector, such NLRB guidelines are
not controlling nor even instructive in administering EERA.
Unlike the NLR~; under EERA, where a contract provides for
binding grievance arbitration, it is elevated to a basic,
fundamental and required component of the collective bargaining
process. process. Quite simply, the Legislature did not "essentially
codify" the Collyer requirements. In fact, there is absent
even the suggestion in the language of section 3541.5, any
other provision in EERA, or in its legislative history of an
intent of the Legislature to codify Collyer. On the contrary,
by its choice of prohibitory language, the Legislature plainly
expressed that the parties' contractual procedures for binding
arbitration, if covering the matter at issue, precludes this
Board's exercise of jurisdiction. Accordingly, we overrule Dry
Creek and its progeny1=3 to the extent that they would
13we also overrule the following PERB decisions
to the extent that they rely on the Collyer standards for
prearbitration deferral: Lancaster Elementary School District
(1983) PERB Decision No. 358; Conejo Valley Unified School
District (1984) PERB Decision No. 376; State of California
(Department of Developmental Services) {1985) PERB Order
No. Ad-145-S; Los Angeles Unified School District (1986) PERB
31
arbitration and must waive contract-based procedural defenses;
and (3) the contract and its meaning must lie at the center of
the dispute. (Collyer Insulated Wire, supra, 192 NLRB 837,
842.)
While the NLRB standards set forth in Collyer Insulated
Wire apply in the the private sector, such NLRB guidelines are
not controlling nor even instructive in administering EERA.
Unlike the NLRA, under EERA, where a contract provides for
binding grievance arbitration, it is elevated to a basic,
fundamental and required component of the collective bargaining
Quite simply, the Legislature did not "essentially
codify" the Collyer requirements. In fact, there is absent
even the suggestion in the language of section 3541.5, any
other provision in EERA, or in its legislative history of an
intent of the Legislature to codify Collyer. On the contrary,
by its choice of prohibitory language, the Legislature plainly
expressed that the parties' contractual procedures for binding
arbitration, if covering the matter at issue, precludes this
Board's exercise of jurisdiction. Accordingly, we overrule Dry
Creek and its progeny to the extent that they would
13we also overrule the following PERB decisions
to the extent that they rely on the Collyer standards for
prearbitration deferral: Lancaster Elementary School District
(1983) PERB Decision No. 358; Conejo Valley Unified School
District (1984) PERB Decision No. 376; State of California
(Department of Developmental Services) (1985 ) PERB Order
No. Ad-145-S; Los Angeles Unified School District (1986) PERB
31condition the proscription of section 3541.5 on an application of the Collyer prearbitration deferral factors. Finally, in finding today that section 3541.5(a) precludes this Board's exercise of jurisdiction where the disputed issue is covered by the parties' contractual grievance-arbitration procedures, we observe that our regulations are not to be interpreted or applied in such a manner so as to override this express jurisdictional barrier. In this regard, the Board's application of PERB Regulation 32646 is at issue. PERB Regulation 34246 provides, in pertinent part: If the respondent believes that issuance of the complaint is inappropriate .•• because the dispute is subject to final and binding arbitration ••• the respondent shall assert such a defense in its answer and shall move to dismiss the complaint, In Charter Oak Unified School District (1982) PERB Order No. Ad-125, this Board held that the district's failure to demonstrate that the association's charge was cognizable under a contractual grievance machinery to which PERB must defer was sufficient grounds to affirm the hearing officer's decision to refuse to dismiss a complaint. While the Board in Charter Oak did not expressly hold that section 3541.S(a) should be considered an affirmative defense under EERA, subject to a party's "waiver," it did place upon the District, the defending Decision No. 587; State of California (Department of Personnel Administration) (1986) PERB Decision No. 600-S; San Juan Unified School District (1982) PERB Decision No. 204. 32 condition the proscription of section 3541.5 on an application of the Collyer prearbitration deferral factors. Finally, in finding today that section 3541.5(a) precludes this Board's exercise of jurisdiction where the disputed issue is covered by the parties' contractual grievance-arbitration procedures, we observe that our regulations are not to be interpreted or applied in such a manner so as to override this express jurisdictional barrier. In this regard, the Board's application of PERB Regulation 32646 is at issue. PERB Regulation 34246 provides, in pertinent part: If the respondent believes that issuance of the complaint is inappropriate . . because the dispute is subject to final and binding arbitration . . the respondent shall assert such a defense in its answer and shall move to dismiss the complaint, In Charter Oak Unified School District (1982) PERB Order No. Ad-125, this Board held that the district's failure to demonstrate that the association's charge was cognizable under a contractual grievance machinery to which PERB must defer was sufficient grounds to affirm the hearing officer's decision to refuse to dismiss a complaint. While the Board in Charter Oak did not expressly hold that section 3541.5 (a) should be considered an affirmative defense under EERA, subject to a party's "waiver, " it did place upon the District, the defending Decision No. 587; State of California (Department of Personnel Administration) (1986) PERB Decision No. 600-S; San Juan Unified School District (1982) PERB Decision No. 204. 32
party, the burden of showing that "deferral" was warranted and that a complaint, therefore, should not have been issued. While procedurally it is appropriate to have the respondent call to the Board's attention that the charge is properly deferrable, its failure to do so cannot be used as a basis for expanding this Board's jurisdiction. Accordingly, we disapprove of any implication in Charter Oak that prearbitra- tion deferral is an affirmative defense under EERA subject to a party's waiver. Conclusion In summation, we affirm the ALJ's proposed decision to the extent that it was found that the District violated section 3543.S(c) of the EERA, and derivatively, section 3543.S(a) and (b) by unilaterally changing the method of compensating teachers for extra duties performed during the summer of 1983, by unilaterally implementing a proposed $1,500 stipend for teachers assigned to the learning specialist classification, and by bypassing the exclusive representative in the direct negotiation of a reduction in the work year of one unit member for the 1983-84 and 1984-85 school years. Accordingly, we adopt the ALJ's proposed decision and remedy pertaining to these charges. Furthermore, consistent with the discussion herein, we dismiss those charges alleging that the District violated EERA by failing to give EVEA notice and an opportunity to negotiate over the effects of its decision to reduce SIP 33 party, the burden of showing that "deferral" was warranted and that a complaint, therefore, should not have been issued. While procedurally it is appropriate to have the respondent call to the Board's attention that the charge is properly deferrable, its failure to do so cannot be used as a basis for expanding this Board's jurisdiction. Accordingly, we disapprove of any implication in Charter Oak that prearbitra- tion deferral is an affirmative defense under EERA subject to a party's waiver. Conclusion In summation, we affirm the ALJ's proposed decision to the extent that it was found that the District violated section 3543.5 (c) of the EERA, and derivatively, section 3543.5(a) and (b) by unilaterally changing the method of compensating teachers for extra duties performed during the summer of 1983, by unilaterally implementing a proposed $1, 500 stipend for teachers assigned to the learning specialist classification, and by bypassing the exclusive representative in the direct negotiation of a reduction in the work year of one unit member for the 1983-84 and 1984-85 school years. Accordingly, we adopt the ALJ's proposed decision and remedy pertaining to these charges. Furthermore, consistent with the discussion herein, we dismiss those charges alleging that the District violated EERA by failing to give EVEA notice and an opportunity to negotiate over the effects of its decision to reduce SIP 33
instructional aide time, and by unilaterally extending the workday of grades 4-6 teachers for four days during the 1983 fall conference week. ORDER Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and pursuant to section 3541.S(c) of the Educational Employment Relations Act, it is hereby ORDERED that the Lake Elsinore School District, its Board of Trustees, Superintendent and its agents shall: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association, CTA/NEA concerning: (a) changes in the rate of pay to unit members for summer work performed; (b) implementation of the learning specialist program, including the amount of annual stipend paid; and (c) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2. Interfering with the right of the employees to be represented in their employment relations with the District by the employee organization of their choice. 3. Interfering with the right of the exclusive representative to represent members of the bargaining unit in their employment relations with their employer •. 34 instructional aide time, and by unilaterally extending the workday of grades 4-6 teachers for four days during the 1983 fall conference week. ORDER Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and pursuant to section 3541.5 (c) of the Educational Employment Relations Act, it is hereby ORDERED that the Lake Elsinore School District, its Board of Trustees, Superintendent and its agents shall: A. CEASE AND DESIST FROM: 1 . Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association, CTA/NEA concerning: (a) changes in the rate of pay to unit members for summer work performed; (b) implementation of the learning specialist program, including the amount of annual stipend paid; and (c) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2 . Interfering with the right of the employees to be represented in their employment relations with the District by the employee organization of their choice. 3. Interfering with the right of the exclusive representative to represent members of the bargaining unit in their employment relations with their employer.. 34
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1. Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay. 2. Upon request, meet and negotiate with the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 3. Upon request of the Association, reinstate the work year and other terms and conditions of employment of the bilingual facilitator to those of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment. 35 B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1 . Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay. 2 . Upon request, meet and negotiate with the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 3 . Upon request of the Association, reinstate the work year and other terms and conditions of employment of the bilingual facilitator to those of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment . 35
4. Within thirty-five (35) days following the date this Decision is no longer subject to reconsideration, post at all school sites and all other work locations where notices to employees customarily are placed, copies of the Notice attached as an appendix hereto, signed by an authorized agent of the employer. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that this Notice is not reduced in size, defaced, altered or covered by any material. 5. Provide written notification of the actions taken to comply with this Order to the Los Angeles Regional Director of the Public Employment Relations Board in accordance with his instructions. It is furthered ORDERED that all other portions of the unfair practice charge and complaint are DISMISSED. Members Cr and Shank ned in this Decision. 36 4. Within thirty-five (35) days following the date this Decision is no longer subject to reconsideration, post at all school sites and all other work locations where notices to employees customarily are placed, copies of the Notice attached as an appendix hereto, signed by an authorized agent of the employer. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that this Notice is not reduced in size, defaced, altered or covered by any material. 5 . Provide written notification of the actions taken to comply with this Order to the Los Angeles Regional Director of the Public Employment Relations Board in accordance with his instructions. It is furthered ORDERED that all other portions of the unfair practice charge and complaint are DISMISSED. Members Craib and Shank joined in this Decision. 36
APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Cases Nos. LA-CE-1827 and LA-CE-2031, Elsinore Valley Education Association, CTA/NEA v. Lake Elsinore School District in which all parties had the right to participate, it has been found that the District violated Government Code section 3543.S(a), (b) and (c) by unilaterally making changes concerning matters within the scope of representation affecting certain unit members without first meeting and negotiating with the exclusive representative of such employees. As a result of this conduct, we have been ordered to post this Notice and we will: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association, CTA/NEA concerning: (a) changes in the rate of pay to unit members for summer work performed; (b) implementation of the learning specialist program, including the amount of annual stipend paid; and (c) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2. Interfering with the right of employees to be represented in their employment relations with the District by the employee organization of their choice. 3. Interfering with the right of the exclusive representative to represent the members of the bargaining unit in their employment relations with their employer. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1. Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Cases Nos. LA-CE-1827 and LA-CE-2031, Elsinore Valley Education Association, CTA/NEA v. Lake Elsinore School District in which all parties had the right to participate, it has been found that the District violated Government Code section 3543.5(a), (b) and (c) by unilaterally making changes concerning matters within the scope of representation affecting certain unit members without first meeting and negotiating with the exclusive representative of such employees. As a result of this conduct, we have been ordered to post this Notice and we will: A. CEASE AND DESIST FROM: Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association, CTA/NEA concerning: (a) changes in the rate of pay to unit members for summer work performed; (b) implementation of the learning specialist program, including the amount of annual stipend paid; and (c) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2 . Interfering with the right of employees to be represented in their employment relations with the District by the employee organization of their choice. 3. Interfering with the right of the exclusive representative to represent the members of the bargaining unit in their employment relations with their employer. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1. Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay.
2. Upon request, meet and iate th the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 3. Upon request of the Association, reinstate the work year and other terms and conditions of employment of the bilingual facilitator to those of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment. DATED: LAKE ELSINORE SCHOOL DISTRICT By: Authorized Representative THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY (30) CONSECUTIVE WORKDA.YS FROM THE DATE OF POSTING AND MUST NOT BE DEFACED, ALTERED, REDUCED IN SIZE OR COVERED WITH ANY OTHER MATERIAL. 2 2. Upon request, meet and negotiate with the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 3. Upon request of the Association, reinstate the work year and other terms and conditions of employment of the bilingual facilitator to those of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment. DATED : LAKE ELSINORE SCHOOL DISTRICT By : Authorized Representative THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE DEFACED, ALTERED, REDUCED IN SIZE OR COVERED WITH ANY OTHER MATERIAL . N
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD ELSINORE VALLEY EDUCATION ASSOCIATION, Charging Party, v. LAKE ELSINORE SCHOOL DISTRICT, Respondent. ) ) ) .4) ) ) ) ) ) ____________________ ) Unfair Practice Case Nos. LA-CE-1827 LA-CE-2031 PROPOSED DECISION (7/24/85) Appearances: A. Eugene Huguenin, Jr. (California Teachers Association), Attorney for Elsinore Valley Education Association; James c. Whitlock (Parham & Associates, Inc.), for Lake Elsinore School District. Before: W. Jean Thomas, Administrative Law Judge. STATEMENT OF CASE These two cases concern allegations of a series of unilateral changes by the Respondent District in wages, hours and other terms and conditions of employment of employees represented by the Charging Party, including bypass of the Association representative and direct negotiations with an individual bargaining unit employee. PROCEDURAL HISTORY Unfair practice case No. LA-CE-1827 was originally filed August 10, 1983, by James E. Caldwell, as an individual, against Elsinore Union School District alleging violations of Educational Employment Relations Act (hereafter EERA or Act) STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD ELSINORE VALLEY EDUCATION ASSOCIATION, Unfair Practice Charging Party, Case Nos. LA-CE-1827 LA-CE-2031 V . PROPOSED DECISION LAKE ELSINORE SCHOOL DISTRICT, (7/24/85) Respondent. Appearances: A. Eugene Huguenin, Jr. (California Teachers Association), Attorney for Elsinore Valley Education Association; James C. Whitlock (Parham & Associates, Inc. ), for Lake Elsinore School District. Before: W. Jean Thomas, Administrative Law Judge. STATEMENT OF CASE These two cases concern allegations of a series of unilateral changes by the Respondent District in wages, hours and other terms and conditions of employment of employees represented by the Charging Party, including bypass of the Association representative and direct negotiations with an individual bargaining unit employee. PROCEDURAL HISTORY Unfair practice case No. LA-CE-1827 was originally filed August 10, 1983, by James E. Caldwell, as an individual, against Elsinore Union School District alleging violations of Educational Employment Relations Act (hereafter EERA or Act )
sections 3543.S(a). (b) and (c). 1 A first amendment to the charge was filed October 25, 1983, by the Elsinore Valley Education Association. CTA/NEA (hereafter EVEA or Charging Party) which substituted itself in place of James Caldwell as the Charging Party. A second amendment to the charge. filed December 6. 1983. withdrew specific paragraphs of the first amendment and substituted Lake Elsinore School District as the Respondent (hereafter District or Respondent) in place of Elsinore Union School District. In order to clarify the issues being contested, on January 30, 1984, a second amended charge was filed which superseded all previous charges and amendments. In addition to the statutory violations cited above. this amendment additionally alleged a violation of 1The Educational Employment Relations Act is codified at Government Code section 3540 et seq. All future references are to the Government Code unless otherwise noted. Section 3543.5 states as follows: It shall be unlawful for a public school employer to: (a) Impose or threaten to impose reprisals on employees. to discriminate or threaten to discriminate against employees. or otherwise to interfere with. restrain. or coerce employees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. 2 sections 3543.5(a). (b) and (c). A first amendment to the charge was filed October 25, 1983, by the Elsinore Valley Education Association, CTA/NEA (hereafter EVEA or Charging Party) which substituted itself in place of James Caldwell as the Charging Party. A second amendment to the charge, filed December 6, 1983, withdrew specific paragraphs of the first amendment and substituted Lake Elsinore School District as the Respondent (hereafter District or Respondent) in place of Elsinore Union School District. In order to clarify the issues being contested, on January 30, 1984, a second amended charge was filed which superseded all previous charges and amendments . In addition to the statutory violations cited above, this amendment additionally alleged a violation of The Educational Employment Relations Act is codified at Government Code section 3540 et seq. All future references are to the Government Code unless otherwise noted. Section 3543.5 states as follows: It shall be unlawful for a public school employer to: (a ) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. ( b ) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. 2
section 3543.3 in that the District violated a settlement agreement entered into by the parties on April 15, 1983, as a result of a previous unfair practice charge filed by the EVEA. 2 On June 15, 1984, the Office of the General counsel of Public Employment Relations Board (hereafter PERB or Board) issued a partial dismissal and refusal to issue complaint regarding the allegations contained in paragraphs 1 and 3(d) of the second amended charge by dismissing and deferring those allegations to the parties' contractual arbitration procedure. The allegations in paragraph 3(a) and 3(g) were dismissed for failure to state a prima facie allegation of an unfair practice. A complaint issued on the same date regarding the factual allegations set forth in paragraphs 2, 3(b), 3(c), 3(e) and 3(f). The substance of these allegations are respectively: (2) unilateral reduction of instructional aide time allocated certain teachers at two school sites in the fall 2 section 3543.3 states as follows: A public school employer of such representatives as it may designate who may, but need not be, subject to either certification requirements or requirements for classified employees set forth in the Education Code, shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units upon request with regard to matters within the scope of representation. 3 section 3543.3 in that the District violated a settlement agreement entered into by the parties on April 15, 1983, as a result of a previous unfair practice charge filed by the EVEA. On June 15, 1984, the office of the General Counsel of Public Employment Relations Board (hereafter PERB or Board) issued a partial dismissal and refusal to issue complaint regarding the allegations contained in paragraphs 1 and 3(d ) of the second amended charge by dismissing and deferring those allegations to the parties' contractual arbitration procedure. The allegations in paragraph 3(a) and 3(g) were dismissed for failure to state a prima facie allegation of an unfair practice. A complaint issued on the same date regarding the factual allegations set forth in paragraphs 2, 3(b), 3(c), 3(e) and 3(f). The substance of these allegations are respectively: (2) unilateral reduction of instructional aide time allocated certain teachers at two school sites in the fall 2section 3543.3 states as follows: A public school employer of such representatives as it may designate who may, but need not be, subject to either certification requirements or requirements for classified employees set forth in the Education Code, shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units upon request with regard to matters within the scope of representation. 3
of 1983, thereby increasing the length of the teachers 1 workday beyond what it was during the preceding school year; (3b) unilateral implementation of a change in the method and amount of compensating teachers for extra duties performed during the summer of 1983 by paying certain teachers on a per diem basis rather than on an hourly basis which was the past practice for remunerations for such extra duty; (3c) during the summer and fall of 1983, while negotiations regarding the 1983-84 salary were ongoing, and prior to reaching agreement or impasse thereon, the District unilaterally implemented its proposed learning specialist program, including the payment of a $1500 annual stipend to employees assigned as learning specialists; (3e) unilateral extension of the working day for teachers in grades 4-6 on four days designated for parent conferencing in November 1983 by requiring the teachers to teach approximately 30 minutes longer than they had been required to teach during similar conference days in prior school years; and (3f) unilateral reduction of the work year of an employee represented by EVEA through an agreement negotiated individually with the employee, thereby bypassing EVEA as the exclusive representative. The Respondent filed an answer July 6, 1984, admitting certain factual allegations, denying others and raising affirmative defenses. An informal settlement conference held August 15, 1984, did not resolve the dispute. 4 of 1983, thereby increasing the length of the teachers' workday beyond what it was during the preceding school year; (3b) unilateral implementation of a change in the method and amount of compensating teachers for extra duties performed during the summer of 1983 by paying certain teachers on a per diem basis rather than on an hourly basis which was the past practice for remunerations for such extra duty; (3c) during the summer and fall of 1983, while negotiations regarding the 1983-84 salary were ongoing, and prior to reaching agreement or impasse thereon, the District unilaterally implemented its proposed learning specialist program, including the payment of a $1500 annual stipend to employees assigned as learning specialists; (3e) unilateral extension of the working day for teachers in grades 4-6 on four days designated for parent conferencing in November 1983 by requiring the teachers to teach approximately 30 minutes longer than they had been required to teach during similar conference days in prior school years; and (3f) unilateral reduction of the work year of an employee represented by EVEA through an agreement negotiated individually with the employee, thereby bypassing EVEA as the exclusive representative. The Respondent filed an answer July 6, 1984, admitting certain factual allegations, denying others and raising affirmative defenses. An informal settlement conference held August 15, 1984, did not resolve the dispute.
A consolidated second informal conference conducted October 17-18, 1984, was likewise unsuccessful. 3 On August 10, 1984, James E. Caldwell filed unfair practice charge case number LA-CE-2031. This charge, which was amended August 28, 1984, alleged that the District violated section 3543.S(a), (b) and (c), by again, bypassing EVEA and negotiating directly with the same employee involved in paragraph 3(f) of case LA-CE-1827 to extend the employee's shortened work year for the 1984-85 school year. The complaint, issued by the PERB September 20, 1984, substituted EVEA as the Charging Party in place of Caldwell. As noted above, this charge was included with the other outstanding cases for the consolidated informal conference on October 17-18, 1984. October 17-18, 1984. October 22, 1984, Respondent filed a motion to dismiss on the grounds that the subject employee requested and received a partial child-bearing leave which was consistent with the applicable terms of the collective bargaining agreement between the parties and that EVEA had received notice of this action. On October 31, 1984, EVEA filed an opposition to the motion. No ruling was made on the 3At the time of the informal conference there were nine active cases before PERB involving the Association and the District. The consolidated informal conference involved the following cases -- LA-CE-1827, CE-1964, CE-1968, CE-1976, CE-2028, CE-2030, CE-2031, CE-2059 and CE-2076 -- and was an attempt by PERB to effect a mediated resolution of all disputes between the parties. 5 A consolidated second informal conference conducted October 17-18, 1984, was likewise unsuccessful. On August 10, 1984, James E. Caldwell filed unfair practice charge case number LA-CE-2031. This charge, which was amended August 28, 1984, alleged that the District violated section 3543.5(a), (b) and (c), by again, bypassing EVEA and negotiating directly with the same employee involved in paragraph 3(f) of case LA-CE-1827 to extend the employee's shortened work year for the 1984-85 school year. The complaint, issued by the PERB September 20, 1984, substituted EVEA as the Charging Party in place of Caldwell. As noted above, this charge was included with the other outstanding cases for the consolidated informal conference on October 22, 1984, Respondent filed a motion to dismiss on the grounds that the subject employee requested and received a partial child-bearing leave which was consistent with the applicable terms of the collective bargaining agreement between the parties and that EVEA had received notice of this action. On October 31, 1984, EVEA filed an opposition to the motion. No ruling was made on the 3At the time of the informal conference there were nine active cases before PERB involving the Association and the District. The consolidated informal conference involved the following cases -- LA-CE-1827, CE-1964, CE-1968, CE-1976, CE-2028, CE-2030, CE-2031, CE-2059 and CE-2076 -- and was an attempt by PERB to effect a mediated resolution of all disputes between the parties.
motion prior to the hearing and the motion was taken under submission for ruling with this decision. on October 30, 1984, a consolidated pre-hearing conference was conducted by the undersigned of all the charges referenced below to determine the order of presentation of the cases for formal hearing. At that conference, it was decided to consolidate the instant two charges for hearing and proposed decision. Following a consolidated pre-hearing conference by the undersigned. involving all nine cases, these two cases were jointly heard on October 31, November I and November 28, 1984. At the conclusion of the hearing. EVEA moved to amend the pleadings in case n11mber LA-CE-2O31 to conform to evidence presented during the hearing. This motion was also taken under submission for a ruling with the proposed decision. Post-hearing briefs were filed and the cases were submitted as of February 25, 1985. FINDINGS OF FACT A. Ba,ckqround The Lake Elsinore School District is a public school employer within the meaning of section 3540.l(k). The EVEA is the exclusive representative. within the meaning of section 3540.l(e). of the certificated bargaining unit of District employees. Prior to July 1983 the District, which was known as Elsinore Union School District and the Elsinore Union High 6 motion prior to the hearing and the motion was taken under submission for ruling with this decision. On October 30. 1984, a consolidated pre-hearing conference was conducted by the undersigned of all the charges referenced below to determine the order of presentation of the cases for formal hearing. At that conference, it was decided to consolidate the instant two charges for hearing and proposed decision. Following a consolidated pre-hearing conference by the undersigned, involving all nine cases, these two cases were jointly heard on October 31, November 1 and November 28, 1984. At the conclusion of the hearing, EVEA moved to amend the pleadings in case number LA-CE-2031 to conform to evidence presented during the hearing. This motion was also taken under submission for a ruling with the proposed decision. Post-hearing briefs were filed and the cases were submitted as of February 25, 1985. FINDINGS OF FACT A. Background The Lake Elsinore School District is a public school employer within the meaning of section 3540.1(k) . The EVEA is the exclusive representative, within the meaning of section 3540.1(e), of the certificated bargaining unit of District employees. Prior to July 1983 the District, which was known as Elsinore Union School District and the Elsinore Union High
School District, had a common administration. Both districts employed the same superintendent. Each district, however, had a separate board of trustees. In July 1983 separate superintendent positions and administrations were established. James Flora, who had been superintendent of both school districts since 1981, continued as superintendent of the Respondent District. The District has an enrollment of 2600 pupils in grades K-6. There are approximately 100 employees in the certificated bargaining unit. The District has four school sites. A fifth site, Jean Hayman School, was scheduled to open in the very near future and, at the time of the hearing, was housed at one of the existing sites. A collective bargaining agreement (hereafter CBA or agreement) between the parties expired in June 1982. Negotiations over a successor agreement continued until April 15, 1983, when a new CBA, retroactive to July 1, 1982, was signed. That agreement, which provided for reopener negotiations in 1983 and 1984, was in effect until June 30, 1985. Because the alleged violations in Gase Nos. LA-CE-1827 and LA-CE-2031 are specific and discrete, the findings of fact with respect to each specification will be done separately, rather than in one consolidated discussion of the facts. 7 School District, had a common administration. Both districts employed the same superintendent. Each district, however, had a separate board of trustees. In July 1983 separate superintendent positions and administrations were established. James Flora, who had been superintendent of both school districts since 1981, continued as superintendent of the Respondent District. The District has an enrollment of 2600 pupils in grades K-6. There are approximately 100 employees in the certificated bargaining unit. The District has four school sites. A fifth site, Jean Hayman School, was scheduled to open in the very near future and, at the time of the hearing, was housed at one of the existing sites. A collective bargaining agreement (hereafter CBA or agreement ) between the parties expired in June 1982. Negotiations over a successor agreement continued until April 15, 1983, when a new CBA, retroactive to July 1, 1982, was signed. That agreement, which provided for reopener negotiations in 1983 and 1984, was in effect until June 30, 1985. Because the alleged violations in Case Nos. LA-CE-1827 and LA-CE-2031 are specific and discrete, the findings of fact with respect to each specification will be done separately, rather than in one consolidated discussion of the facts. 7
B. Reduction in Hours of Instructional Aides This issue is limited to the reduction of instructional aide time affecting the length of the teachers' workday in grades K-3 at two school sites Wildomar Elementary and Butterfield Elementary Schools. The specific aide time concerns that provided through the school Improvement Program (SIP), a state categorically-funded program. All four school sites have SIP programs operating on a three-year cycle which started with the 1982-83 school year. The SIP program is specially geared to assist students in grades K-3. The plans for the use of SIP funds were developed by each local school site council following general guidelines provided by the District board. The instructional aides are utilized to provide educational assistance to the students in the subject areas of reading, mathematics and language arts. They work under the direction and supervision of the classroom teacher to whom the aide is assigned. In 1982-83 the plan at Wildomar School included three hours of aide time for each class in grades K-3 for the three subjects. In the 1983-84 school year the Wildomar school site council, acting under the District board's general direction, decided to reduce the amount of aide time in the classrooms and add a library aide, an aide coordinator of volunteers, and a 8 B. Reduction in Hours of Instructional Aides This issue is limited to the reduction of instructional aide time affecting the length of the teachers' workday in grades K-3 at two school sites -- Wildomar Elementary and Butterfield Elementary Schools. The specific aide time concerns that provided through the School Improvement Program (SIP), a state categorically-funded program. All four school sites have SIP programs operating on a three-year cycle which started with the 1982-83 school year. The SIP program is specially geared to assist students in grades K-3. The plans for the use of SIP funds were developed by each local school site council following general guidelines provided by the District board. The instructional aides are utilized to provide educational assistance to the students in the subject areas of reading, mathematics and language arts. They work under the direction and supervision of the classroom teacher to whom the aide is assigned. In 1982-83 the plan at Wildomar School included three hours of aide time for each class in grades K-3 for the three subjects. In the 1983-84 school year the Wildomar school site council, acting under the District board's general direction, decided to reduce the amount of aide time in the classrooms and add a library aide, an aide coordinator of volunteers, and a 8
computer laboratory aide. These were to be three-hour positions for all pupils in grades K-6. In the spring of 1983 the board had offered matching funds for the library and computer aide positions. However, this offer was later withdrawn because of the discovery in July 1983 of a $300,000 budget deficit. Thus, the funding for the three new positions came directly from the local site fund allocation for aide services. The creation of the three positions resulted in a reduction of the previous classroom aide time from three hours per day to two hours per day in the kindergarten classes and one and one-half hours per day for grade 2 classes. Butterfield School was a new site started in the 1982-83 school year. The pupils and staff of Butterfield were housed at Elsinore Elementary School until October 1982. The 1982-83 plan for aide time was three hours per day for grades K-1, and one and one-half hours per day for grades 2-3. When the SIP funds were reallocated for the 1983-84 school year to include a computer laboratory aide at Butterfield, the in-classroom aide time for grades K-1 remained at three hours per day. At the beginning of the fall 1983 semester, grades 2-3 had no aide time for the first few weeks of the semester until the teachers in the grades K-1 classes volunteered to share one hour of aide time per day with grades 2 and 3. 9 computer laboratory aide. These were to be three-hour positions for all pupils in grades K-6. In the spring of 1983 the board had offered matching funds for the library and computer aide positions. However, this offer was later withdrawn because of the discovery in July 1983 of a $300,000 budget deficit. Thus, the funding for the three new positions came directly from the local site fund allocation for aide services. The creation of the three positions resulted in a reduction of the previous classroom aide time from three hours per day to two hours per day in the kindergarten classes and one and one-half hours per day for grade 2 classes. Butterfield School was a new site started in the 1982-83 school year. The pupils and staff of Butterfield were housed at Elsinore Elementary School until October 1982. The 1982-83 plan for aide time was three hours per day for grades K-1, and one and one-half hours per day for grades 2-3. When the SIP funds were reallocated for the 1983-84 school year to include a computer laboratory aide at Butterfield, the in-classroom aide time for grades K-1 remained at three hours per day . At the beginning of the fall 1983 semester, grades 2-3 had no aide time for the first few weeks of the semester until the teachers in the grades K-1 classes volunteered to share one hour of aide time per day with grades 2 and 3. 9
Starting the fall of 1983, one-half of every class in grades K-6 at both schools were taken in groups to the computer lab and the library for a one-half hour session each (a total of one hour per week) with the computer lab aide and the library aide. This arrangement reduced the class size for each teacher to one-half the number of pupils for reading and math instruction and one-half hour per week for each subject area. The impact of the reduction in aide time on the affected teachers' workday varied depending on the grade level involved and the amount of aide time which was reduced. Some teachers had to modify their instructional strategy to accommodate the absence of a second adult to work with the student groupings into which the class is divided for instructional purposes. For example, some teachers reduced their groups from three to two during the time that no aide was available in order to deliver the teaching assignments. Other teachers had to increase the non-classroom preparation time to prepare additional "seat work" for their students who were not assisted by an aide while the teacher was instructing other segments of the class. Additionally, some teachers spent more non-classroom time correcting student written work than had previously been corrected by the instructional aide during the instructional time with the students. The evidence shows that for those teachers affected by the reduction in aide time, the average time spent in additional non-classroom preparation was two and one-half to three hours per week. 10 Starting the fall of 1983, one-half of every class in grades K-6 at both schools were taken in groups to the computer lab and the library for a one-half hour session each (a total of one hour per week ) with the computer lab aide and the library aide. This arrangement reduced the class size for each teacher to one-half the number of pupils for reading and math instruction and one-half hour per week for each subject area. The impact of the reduction in aide time on the affected teachers' workday varied depending on the grade level involved and the amount of aide time which was reduced. Some teachers had to modify their instructional strategy to accommodate the absence of a second adult to work with the student groupings into which the class is divided for instructional purposes. For example, some teachers reduced their groups from three to two during the time that no aide was available in order to deliver the teaching assignments. Other teachers had to increase the non-classroom preparation time to prepare additional "seat work" for their students who were not assisted by an aide while the teacher was instructing other segments of the class. Additionally, some teachers spent more non-classroom time correcting student written work than had previously been corrected by the instructional aide during the instructional time with the students. The evidence shows that for those teachers affected by the reduction in aide time, the average time spent in additional non-classroom preparation was two and one-half to three hours per week. 10
C. Rate of Compensation for Extra Duty/Summer Work Article 7.0 of the 1982-85 CBA contains provisions covering the working hours and the work year of certificated bargaining unit members. Section 7.4 of that article specifically establishes the length of the work year. It states as follows: The length of the work year shall be 179 days for returning members and 180 days for members new to the District. The nurse's work year shall be 185 days. This means 175 days of student attendance, one day for parent conferences, three (3) preservice days, of which two (2) shall be at the building level. Members new to the Disstrict [sic] shall report one day earlier than returning members for District planned orientation purposes. Of the three (3) preservice days, the third day, and one-half of the second day, shall be meeting free and devoted to classroom preparation. The salary schedule for unit members is contained in Article 22.0 of the agreement. There is no express language in Article 22.0, or any other provision of the CBA, which pertains to work performed beyond the regular work year, i.e., extra t duty or summer wor k ass1gnmen s. . 4 4Article 8.0 of the 1982-85 CBA pertains to non-teaching duties. Section 8.1 of that article specifies teacher duties beyond their regular working hours for which no additional compensation is to be paid. It states as follows: Teachers shall be responsible for the following duties beyond their regular working hours without additional compensation: participation in Back-to-School Night, participation in one Open House, and participation in three (3) parent/teacher activities of the bargaining unit member's choice. 11 C. Rate of Compensation for Extra Duty/Summer Work Article 7.0 of the 1982-85 CBA contains provisions covering the working hours and the work year of certificated bargaining unit members. Section 7.4 of that article specifically establishes the length of the work year. It states as follows: The length of the work year shall be 179 days for returning members and 180 days for members new to the District. The nurse's work year shall be 185 days. This means 175 days of student attendance, one day for parent conferences, three (3) preservice days, of which two (2) shall be at the building level. Members new to the Disstrict [sic] shall report one day earlier than returning members for District planned orientation purposes. Of the three (3) preservice days, the third day, and one-half of the second day, shall be meeting free and devoted to classroom preparation. The salary schedule for unit members is contained in Article 22.0 of the agreement. There is no express language in Article 22.0, or any other provision of the CBA, which pertains to work performed beyond the regular work year, i. e., extra duty or summer work assignments. Article 8.0 of the 1982-85 CBA pertains to non-teaching duties. Section 8.1 of that article specifies teacher duties beyond their regular working hours for which no additional compensation is to be paid. It states as follows: Teachers shall be responsible for the following duties beyond their regular working hours without additional compensation: participation in Back-to-School Night, participation in one Open House, and participation in three ( 3) parent/teacher activities of the bargaining unit member's choice. 11
The parties have had a number of CBA's from the period of 1976-1985. Previous agreements for the period from 1976-1981 contained salary schedule provisions pertaining to extra duty assignments. In the agreements for 1976-77, 1977-78 and 1978-79, summer school, home teaching and District projects were to be compensated at an hourly rate of pay. summer school preparation was to be compensated at a per diem rate of pay. The 1979-80 and 1980-81 agreements did not contain salary provisions for summer school assignments. However, compensation for home teaching and District projects remained on an hourly basis. The salary provisions in the 1977-78 and 1978-79 agreements included a formula for the computation of the hourly pay rate. No agreement since that for 1978-79 has contained a specific formula for calculating the hourly pay rate. Although there is no definitive evidence about the current basis for determining the hourly pay rate, it is undisputed that the hourly rate formula that the District apparently applies to the current certificated salary schedule is based on the formula which was contained in the 1977-78 and 1978-79 agreements. Two District witnesses, superintendent Flora and Nella Isaacs, director of educational services, testified that the District's determination of whether payment for extra duty assignments was on an hourly or per diem basis depended on the 12 The parties have had a number of CBA's from the period of 1976-1985. Previous agreements for the period from 1976-1981 contained salary schedule provisions pertaining to extra duty assignments. In the agreements for 1976-77, 1977-78 and 1978-79, summer school, home teaching and District projects were to be compensated at an hourly rate of pay. Summer school preparation was to be compensated at a per diem rate of pay. The 1979-80 and 1980-81 agreements did not contain salary provisions for summer school assignments. However, compensation for home teaching and District projects remained on an hourly basis. The salary provisions in the 1977-78 and 1978-79 agreements included a formula for the computation of the hourly pay rate. No agreement since that for 1978-79 has contained a specific formula for calculating the hourly pay rate. Although there is no definitive evidence about the current basis for determining the hourly pay rate, it is undisputed that the hourly rate formula that the District apparently applies to the current certificated salary schedule is based on the formula which was contained in the 1977-78 and 1978-79 agreements. Two District witnesses, Superintendent Flora and Nella Isaacs, director of educational services, testified that the District's determination of whether payment for extra duty assignments was on an hourly or per diem basis depended on the 12
type of assignment and the funding source. According to Isaacs' testimony, teachers who performed extra duty or summer assignments for categorically-funded projects were usually compensated on a per diem basis. She further testified that when she worked as a resource specialist for the District, she was compensated on a per diem basis for summer work performed. However, on cross-examination, Isaacs admitted that she has been a non-bargaining unit employee since the mid-1970's and that, at the time she was employed as a resource specialist, she is unsure about whether resource specialists were members of the certificated bargaining unit. There does appear to be some inconsistency in the rate of of compensation paid to certain bargaining unit employees for work performed during the summer of 1982. Thomas Engelhardt is a Title I diagnostician working in a federally-funded project. Engelhardt has worked during the summers in the District projects office since the summer of 1982. Englehardt, who is a member of the certificated bargaining unit, was paid a per u1em rate for 35 days of summer work performed in addition to the regular work year for the 1981-82 school year. Five other teachers who each worked five days in the summer of 1982 for the same projects office were paid the hourly rate of pay for a total of 35 hours per employee. ~· The preponderance of the evidence shows that for many years prior to the summer of 1983, the majority of bargaining unit 13 type of assignment and the funding source. According to Isaacs' testimony, teachers who performed extra duty or summer assignments for categorically-funded projects were usually compensated on a per diem basis. She further testified that when she worked as a resource specialist for the District, she was compensated on a per diem basis for summer work performed. However, on cross-examination, Isaacs admitted that she has been a non-bargaining unit employee since the mid-1970's and that, at the time she was employed as a resource specialist, she is unsure about whether resource specialists were members of the certificated bargaining unit. There does appear to be some inconsistency in the rate of of compensation paid to certain bargaining unit employees for work performed during the summer of 1982. Thomas Engelhardt is a Title I diagnostician working in a federally-funded project. Engelhardt has worked during the summers in the District projects office since the summer of 1982. Englehardt, who is a member of the certificated bargaining unit, was paid a per diem rate for 35 days of summer work performed in addition to the regular work year for the 1981-82 school year. Five other teachers who each worked five days in the summer of 1982 for the same projects office were paid the hourly rate of pay for a total of 35 hours per employee. The preponderante of the evidence shows that for many years prior to the summer of 1983, the majority of bargaining unit 13
members who performed work during the summer were compensated on an hourly basis. For example, Wilma Durrett, learning specialist at Elsinore School, was paid on an hourly basis for coordinating a summer correspondence program and administering Santa Clara Testing to kindergarten students during the summers of 1982, 1983 and 1984. Patricia Rettinger, a kindergarten teacher with the District for 12 years, worked eight or nine summers in a row for the District, also administering the Santa Clara Testing of kindergarten students. Rettinger was paid on an hourly basis for worked performed during the summers of 1983 and 1984. She also was paid an hourly rate for developing a mathematics curriculum during the summer of 1983. Roger Pahl, a Chapter I teacher at Machado School, was paid on an hourly basis for summer work performed in developing instructional materials in mathematics and science during the summers of 1981 and 1982 and for setting up the Chapter I laboratories during the summers of 1983 and 1984. Jim Caldwell, a Chapter I teacher at Wildornar School, was paid on an hourly basis for summer work performed in connection with the Chapter I program in the summer of 1984. Halle Reising, who formerly taught grades 4-6 at Wildornar School, was paid an hourly rate for work performed in developing a spelling project during the summer of 1984. It is undisputed that during the summer of 1983, with the exception of two classes of unit employees -- the 14 members who performed work during the summer were compensated on an hourly basis. For example, Wilma Durrett, learning specialist at Elsinore School, was paid on an hourly basis for coordinating a summer correspondence program and administering Santa Clara Testing to kindergarten students during the summers of 1982, 1983 and 1984. Patricia Rettinger, a kindergarten teacher with the District for 12 years, worked eight or nine summers in a row for the District, also administering the Santa Clara Testing of kindergarten students. Rettinger was paid on an hourly basis for worked performed during the summers of 1983 and 1984. She also was paid an hourly rate for developing a mathematics curriculum during the summer of 1983. Roger Pahl, a Chapter I teacher at Machado School, was paid on an hourly basis for summer work performed in developing instructional materials in mathematics and science during the summers of 1981 and 1982 and for setting up the Chapter I laboratories during the summers of 1983 and 1984. Jim Caldwell, a Chapter I teacher at Wildomar School, was paid on an hourly basis for summer work performed in connection with the Chapter I program in the summer of 1984. Halle Reising, who formerly taught grades 4-6 at Wildomar School, was paid an hourly rate for work performed in developing a spelling project during the summer of 1984. It is undisputed that during the summer of 1983, with the exception of two classes of unit employees -- the 14
research-based instruction (RBI) coaches and learning specialists, all teachers were compensated at the hourly rate of pay for extra duty or summer work performed. There is a provision in the 1982-85 CBA that covers terms and conditions of employment for RBI coaches, who were formerly called "lead teachers." 5 The learning specialist was a newly-created position in the District in the spring of 1983. The implementation of this program in the summer of 1983 is the subject of a separate allegation in paragraph 3(c) of this unfair practice charge and will be set forth more fully in the discussion of that specification. Four learning specialists were hired by the District to provide services beginning the fall of 1983. The work that they performed on the days prior to the beginning of the fall semester was compensated on a per diem rate. Both Rettinger and Halle Reising worked as RBI coaches during the summer of 1983 and were compensated at the per diem rate for the services performed in that capacity. superintendent Flora testified that, in addition to the per diem rate of pay that was made to the RBI coaches and learning 5This provision is contained in Appendix l which pertains to the implementation of the Erlene Minton research-based instruction program. Among other things, it covers the work year for lead teachers/RBI coaches, but contains no express language on compensation rate for extra duty or summer work. 15 research-based instruction (RBI ) coaches and learning specialists, all teachers were compensated at the hourly rate of pay for extra duty or summer work performed. There is a provision in the 1982-85 CBA that covers terms and conditions of employment for RBI coaches, who were formerly called "lead teachers. "5 The learning specialist was a newly-created position in the District in the spring of 1983. The implementation of this program in the summer of 1983 is the subject of a separate allegation in paragraph 3(c) of this unfair practice charge and will be set forth more fully in the discussion of that specification. Four learning specialists were hired by the District to provide services beginning the fall of 1983. The work that they performed on the days prior to the beginning of the fall semester was compensated on a per diem rate. Both Rettinger and Halle Reising worked as RBI coaches during the summer of 1983 and were compensated at the per diem rate for the services performed in that capacity. Superintendent Flora testified that, in addition to the per diem rate of pay that was made to the RBI coaches and learning 5This provision is contained in Appendix 1 which pertains to the implementation of the Erlene Minton research-based instruction program. Among other things, it covers the work year for lead teachers/RBI coaches, but contains no express language on compensation rate for extra duty or summer work. 15
specialists in the summer of 1983, other classifications of unit employees who were paid the per diem rate for summer work were the speech therapists, the bilingual facilitator and the nurse. The length of the work year and the salary for the speech therapists is the subject of a separate unfair practice charge filed by EVEA (LA-CE-2059). A proposed decision by an administrative law judge was issued in that case on May 13, 1985. The EVEA challenge to the work year and the compensation of the bilingual facilitator, except for the per diem summer pay issue, is the subject of the specifications set forth in paragraph 3(f) of the instant charge and will be discussed in a separate finding of fact infra. 6 Other than Rettinger and Reising, the record does not show the total number of RBI coaches who worked during the summer Additionally, the total number of extra days worked by each individual RBI coach is not known. D. Learning Specialist Program In the spring of 1982 the District considered the notion of developing a concept for "teacher coaching" that was based on 6Although superintendent Flora testified that the nurse was paid the per diem rate for summer work performed, the work year specified in section 7.4 of Article 7 of the CBA is 185 days. There is no specific mention of a separate salary rate for the nurse in Article 22.0, which is the salary provision of the agreement. Since no issue has been raised by the Charging Party concerning the rate of compensation of the nurse, no findings regarding this testimony is made with respect to this classification of employee. 16 specialists in the summer of 1983, other classifications of unit employees who were paid the per diem rate for summer work were the speech therapists, the bilingual facilitator and the nurse. The length of the work year and the salary for the speech therapists is the subject of a separate unfair practice charge filed by EVEA (LA-CE-2059). A proposed decision by an administrative law judge was issued in that case on May 13, 1985. The EVEA challenge to the work year and the compensation of the bilingual facilitator, except for the per diem summer pay issue, is the subject of the specifications set forth in paragraph 3(f) of the instant charge and will be discussed in a separate finding of fact infra. Other than Rettinger and Reising, the record does not show the total number of RBI coaches who worked during the summer 1983. Additionally, the total number of extra days worked by each individual RBI coach is not known. D. Learning Specialist Program In the spring of 1982 the District considered the notion of developing a concept for "teacher coaching" that was based on Although Superintendent Flora testified that the nurse was paid the per diem rate for summer work performed, the work year specified in section 7.4 of Article 7 of the CBA is 185 days. There is no specific mention of a separate salary rate for the nurse in Article 22.0, which is the salary provision of the agreement. Since no issue has been raised by the Charging Party concerning the rate of compensation of the nurse, no findings regarding this testimony is made with respect to this classification of employee. 16
observations by various District administrators and teachers of this type of a program at two nearby school districts. Through discussions held during the 1982-83 school year by the District board itself and the staff, including the District instructional council, the concept gradually developed into what was called the learning specialist (LS) program. The primary function of the LS was to provide small group instruction to children with special needs and to assist teachers in developing programs in all areas of instruction. superintendent Flora considered the LS program to be more advanced in its application than the RBI coaching/lead teacher program. On April 26, 1983, the District board approved a job description and positions for the LS classification. Shortly thereafter, the District posted a vacancy notice; seeking applicants for the four positions to be filled. The notice stated that applicants were limited to teachers already on the staff. The deadline for filing applications was May 13, 1983. The notice included a rather detailed list of assigned responsibilities for the LS position and listed in the "minimum qualifications" section, among other things, that, ••• stipend, hours, and other terms and conditions of employment for this position will be subject to negotiations with the Exclusive Representative for the certificated bargaining unit. 17 observations by various District administrators and teachers of this type of a program at two nearby school districts. Through discussions held during the 1982-83 school year by the District board itself and the staff, including the District instructional council, the concept gradually developed into what was called the learning specialist (LS) program. The primary function of the LS was to provide small group instruction to children with special needs and to assist teachers in developing programs in all areas of instruction. Superintendent Flora considered the LS program to be more advanced in its application than the RBI coaching/lead teacher program. On April 26, 1983, the District board approved a job description and positions for the LS classification. Shortly thereafter, the District posted a vacancy notice, seeking applicants for the four positions to be filled. The notice stated that applicants were limited to teachers already on the staff. The deadline for filing applications was May 13, 1983. The notice included a rather detailed list of assigned responsibilities for the LS position and listed in the "minimum qualifications" section, among other things, that, . stipend, hours, and other terms and conditions of employment for this position will be subject to negotiations with the Exclusive Representative for the certificated bargaining unit. 17
Nine teachers applied for the positions, one of which was to be placed in each of the four school sites. On May 20 and 23, 1983, the District conducted interviews of the applicants. Four individuals were ultimately selected and officially appointed by District board action on June 2, 1983, for service during the 1983-84 school year. On May 13, 1983, superintendent Flora met with Edna Wright, EVEA president, Ozzie Hairston, EVEA negotiating team spokesperson, and Jim Caldwell, EVEA grievance chairperson, regarding the LS program. The record fails to reveal the specifics of any discussion that took place except that the District made no specific proposal regarding the LS program at that meeting. A subsequent meeting was scheduled between Flora and Hairston for June 1, 1983, but was cancelled because Hairston was ill. On June 7, 1983, the parties held their first meeting regarding their 1983 contract reopener negotiations. The EVEA representatives present at this meeting were sue Warwick, Judy Stewart-Monceaux, Ozzie Hairston, and Karen Bach. The District The District representatives were superintendent Flora and Cliff Koch, assistant superintendent, business. The reopener clause of the CBA provided for salaries, fringe benefits, and three optional items apiece for each party. The District opted to include 18 Nine teachers applied for the positions, one of which was to be placed in each of the four school sites. On May 20 and 23, 1983, the District conducted interviews of the applicants. Four individuals were ultimately selected and officially appointed by District board action on June 2, 1983, for service during the 1983-84 school year. On May 13, 1983, Superintendent Flora met with Edna Wright, EVEA president, Ozzie Hairston, EVEA negotiating team spokesperson, and Jim Caldwell, EVEA grievance chairperson, regarding the LS program. The record fails to reveal the specifics of any discussion that took place except that the District made no specific proposal regarding the LS program at that meeting. A subsequent meeting was scheduled between Flora and Hairston for June 1, 1983, but was cancelled because Hairston was ill. On June 7, 1983, the parties held their first meeting regarding their 1983 contract reopener negotiations. The EVEA representatives present at this meeting were Sue Warwick, Judy Stewart-Monceaux, Ozzie Hairston, and Karen Bach. representatives were Superintendent Flora and Cliff Koch, assistant superintendent, business. The reopener clause of the CBA provided for salaries, fringe benefits, and three optional items apiece for each party. The District opted to include 18
hours, evaluations and transfers. EVEA added no optional items. Although the 1982-85 CBA included a provision covering implementation of the lead teacher program, there was no similar provision pertaining to the LS program and neither party made proposals about this subject. During this session, the parties reviewed their respective proposals and agreed to general procedural parameters for coming negotiations. one subject of discussion during the June 7 meeting was the District administration's desire to stagger the arrival times of students at all four school sites, starting the 1983-84 school year. The administration was considering this change in order to accommodate a request by the new busing contractor. Discussion about the LS program was initiated when Flora proposed that the amount of the annual stipend for the LS's be set at $1500. EVEA felt that the proposed amount was too low. Although Flora testified that all other matters concerning the LS program were orally agreed to by the parties except the stipend, the testimony of Stewart-Monceaux and Bach directly contradict that of Flora. Bach testified that no agreement was reached on any aspect of the LS issue on June 7. According to her testimony, Hairston agreed to take the District's stipend proposal to the EVEA membership for its consideration prior to making a counterproposal to the District. Based on the observation of the witnesses during their testimony and their 19 hours, evaluations and transfers. EVEA added no optional items. Although the 1982-85 CBA included a provision covering implementation of the lead teacher program, there was no similar provision pertaining to the LS program and neither party made proposals about this subject. During this session, the parties reviewed their respective proposals and agreed to general procedural parameters for coming negotiations. One subject of discussion during the June 7 meeting was the District administration's desire to stagger the arrival times of students at all four school sites, starting the 1983-84 school year. The administration was considering this change in order to accommodate a request by the new busing contractor. Discussion about the LS program was initiated when Flora proposed that the amount of the annual stipend for the LS's be set at $1500. EVEA felt that the proposed amount was too low. Although Flora testified that all other matters concerning the LS program were orally agreed to by the parties except the stipend, the testimony of Stewart-Monceaux and Bach directly contradict that of Flora. Bach testified that no agreement was reached on any aspect of the LS issue on June 7. According to her testimony, Hairston agreed to take the District's stipend proposal to the EVEA membership for its consideration prior to making a counterproposal to the District. Based on the observation of the witnesses during their testimony and their 19
ability to recall the events of this meeting, the testimony of Stewart-Monceaux and Bach is credited on this matter. It is thus concluded that no agreement was reached on June 7 about any negotiable aspect of the LS program. The next negotiating session was held August 12, 1983. At that meeting Tom Brown, a negotiating specialist for the California Teachers Association, was the EVEA chief spokesperson, and James Whitlock was the spokesperson for the District. The first part of the discussion centered on the District's representation that it was experiencing financial difficulties because a $300,000 budget deficit had been discovered in July 1983. Consequently, the District would have to make cutbacks in various areas in order to achieve a balanced budget. Brown brought up the subject of the LS program and verbally requested bargaining if the District intended to implement the program during the 1983-84 school year. The District stated that because of the budget problem, the proposed LS program would be placed on hold. At the conclusion of the meeting, EVEA thought that the parties had an agreement or understanding that before the District moved forward to implement either the LS program or the Mentor Teacher program (which is a very similar type of program that was then under consideration), the parties would negotiate over the negotiable aspect of either program. 20 ability to recall the events of this meeting, the testimony of Stewart-Monceaux and Bach is credited on this matter. It is thus concluded that no agreement was reached on June 7 about any negotiable aspect of the LS program. The next negotiating session was held August 12, 1983. At that meeting Tom Brown, a negotiating specialist for the California Teachers Association, was the EVEA chief spokesperson, and James Whitlock was the spokesperson for the District. The first part of the discussion centered on the District's representation that it was experiencing financial difficulties because a $300,000 budget deficit had been discovered in July 1983. Consequently, the District would have to make cutbacks in various areas in order to achieve a balanced budget. Brown brought up the subject of the LS program and verbally requested bargaining if the District intended to implement the program during the 1983-84 school year. The District stated that because of the budget problem, the proposed LS program would be placed on hold. At the conclusion of the meeting, EVEA thought that the parties had an agreement or understanding that before the District moved forward to implement either the LS program or the Mentor Teacher program (which is a very similar type of program that was then under consideration), the parties would negotiate over the negotiable aspect of either program. 20
The next negotiating session was September 2, 1983, which was just after the beginning of the 1983-84 school year. By that time EVEA representatives were aware that the LS's were functioning at the school sites and receiving a $1500 annual stipend. When questioned by EVEA, Koch said that money had been allocated in the 1983-84 budget for the program to be implemented. Upon hearing this, Brown verbally demanded to bargain with the District over this matter. Whitlock promised to check with the superintendent, who was not present at that part of the meeting, about the budget and agreed to bargain with EVEA over the amount of the stipend. Whitlock responded to Brown in a letter dated September 13, 1984, which set forth the details of the LS program. The letter stated as follows: I checked with the superintendent in Elsinore Elementary for the details of the Learning Specialist. Here they are as I understand them: 1. There have been four Learning Specialists selected in the District, one at each school site. 2. For this workyear only, the Learning Specialists worked two days prior to the start of school. This was only for the start of this year and from now on Learning Specialists will have the same workyear as all other unit members. 3. workhours for a Learning Specialist are the same as other regular unit members. 50% of the time Learning 21 The next negotiating session was September 2, 1983, which was just after the beginning of the 1983-84 school year. By that time EVEA representatives were aware that the LS's were functioning at the school sites and receiving a $1500 annual stipend. When questioned by EVEA, Koch said that money had been allocated in the 1983-84 budget for the program to be implemented. Upon hearing this, Brown verbally demanded to bargain with the District over this matter. Whitlock promised to check with the superintendent, who was not present at that part of the meeting, about the budget and agreed to bargain with EVEA over the amount of the stipend. Whitlock responded to Brown in a letter dated September 13, 1984, which set forth the details of the LS program. The letter stated as follows: I checked with the Superintendent in Elsinore Elementary for the details of the Learning Specialist. Here they are as I understand them: 1. There have been four Learning Specialists selected in the District, one at each school site. 2. For this workyear only, the Learning Specialists worked two days prior to the start of school. This was only for the start of this year and from now on Learning Specialists will have the same workyear as all other unit members. 3. Workhours for a Learning Specialist are the same as other regular unit members . 50% of the time Learning 21
Specialists are with students. The remaining 50% of their time, the Learning Specialist is released from their teaching duties to work with other teachers. 4. The District plans to pay these teachers a $1,500 stipend above their regular salary schedule placement. To my knowledge, all other terms and conditions of employment will be the same for learning specialists as for other regular unit members. Upon receiving this letter, Brown testified that EVEA felt that it had been "sandbagged" by the District in that EVEA representatives were told one thing at the bargaining table and then the District took action contrary to its position at the table. Following receipt of Whitlock's letter, Dee Thomas, the new EVEA president, sent a written demand to bargain over the LS program in a letter dated September 26, 1983. The parties continued their negotiations over the reopener items by meeting October 26 and November 28, 1983. The LS issue was discussed at both sessions. At the October 26 meeting, EVEA demanded that the District return to the status quo and bargain over the amount of the stipend, the length of the work year, compensation for extra duty, and the amount of instructional time the LS would spend in the classroom. At the time of their employment in the LS positions, the four selected teachers signed individual contracts of 22 Specialists are with students. The remaining 508 of their time, the Learning Specialist is released from their teaching duties to work with other teachers. 4. The District plans to pay these teachers a $1,500 stipend above their regular salary schedule placement. To my knowledge, all other terms and conditions of employment will be the same for learning specialists as for other regular unit members. Upon receiving this letter, Brown testified that EVEA felt that it had been "sandbagged" by the District in that EVEA representatives were told one thing at the bargaining table and then the District took action contrary to its position at the table. Following receipt of Whitlock's letter, Dee Thomas, the new EVEA president, sent a written demand to bargain over the LS program in a letter dated September 26, 1983. The parties continued their negotiations over the reopener items by meeting October 26 and November 28, 1983. The LS issue was discussed at both sessions. At the October 26 meeting, EVEA demanded that the District return to the status quo and bargain over the amount of the stipend, the length of the work year, compensation for extra duty, and the amount of instructional time the LS would spend in the classroom. At the time of their employment in the LS positions, the four selected teachers signed individual contracts of 22
employment which provided for a $1500 annual stipend to be paid in equal monthly installments. At the time of the hearing, no agreement had been reached on any aspect of the learning specialists issue. E. Teacher Instructional Time on Minimum Student Days During Parent conferencing week Traditionally, the District has scheduled the fall parent conferences to take place at the end of the first quarter of the school year. usually this is sometime in November. The week that parent conferences are scheduled, the students are on a minimum day schedule on Monday, Tuesday, Thursday and Friday. On Wednesday of that week, the students do not attend school. A minimum day of instruction is defined by California Education Code section 46113 as 230 minutes for grades 1-3 and 240 minutes for grades 4-6. During parent conference week the teachers are expected to schedule 20 minute conferences, if possible, with the parents of all their students starting at the time of student dismissals through the end of their regular workday. Conferences are to be held all day long on Wednesdays during the teachers' regular seven and one-half hour workday. Those parents who cannot attend a conference at the school site can be conferenced by telephone. If necessary, conferences may be scheduled beyond the teachers' regular workday. Prior to the conferences, the teachers must complete the grading period, including testing and the completion of student 23 employment which provided for a $1500 annual stipend to be paid in equal monthly installments. At the time of the hearing, no agreement had been reached on any aspect of the learning specialists issue. E. Teacher Instructional Time on Minimum Student Days During Parent Conferencing Week Traditionally, the District has scheduled the fall parent conferences to take place at the end of the first quarter of the school year. Usually this is sometime in November. The week that parent conferences are scheduled, the students are on a minimum day schedule on Monday, Tuesday, Thursday and Friday. On Wednesday of that week, the students do not attend school. A minimum day of instruction is defined by California Education Code section 46113 as 230 minutes for grades 1-3 and 240 minutes for grades 4-6. During parent conference week the teachers are expected to schedule 20 minute conferences, if possible, with the parents of all their students starting at the time of student dismissals through the end of their regular workday. Conferences are to be held all day long on Wednesdays during the teachers' regular seven and one-half hour workday. Those parents who cannot attend a conference at the school site can be conferenced by telephone. If necessary, conferences may be scheduled beyond the teachers' regular workday. Prior to the conferences, the teachers must complete the grading period, including testing and the completion of student 23
report cards. Although parent conferences involve teachers in grades 1-6, the Charging Party stipulated that this issue concerns only the length of the instructional period during the minimum day schedule in the fall of 1983 for teachers in grades 4-6. In the 1982-83 school year, the intermediate grades (4-6) at all four schools were on the same minimum school day during the fall parent conference week. The student instructional day was from 9:00 a.m. to 1:30 p.m., a period of four hours and 30 minutes. During the 1983-84 school year the schools were on a staggered schedule. The minimum day schedule during the fall parent conference week was: Butterfield and Machado - 9:00 9:00 a.m. to 2:15 p.m., and Wildomar and Elsinore - 8:00 a.m. to 1:15 p.rn., for a total instructional time of five hours and 15 minutes. The change in the time from the 1982-83 school year constituted an increase of the minimum day of 45 minutes for grades 4-5 and 40 minutes for grade 6. Article 7.0 of the 1982-85 CBA, section 7.7 refers to an increase in the length of the instructional day for the intermediate grades during the 1982-83 school year. It reads as follows: The instructional minutes for the intermediate grades may be increased by the District not more than fifteen (15) minutes during the 1982-83 school year. Although the 15-minute increase in instructional minutes was to be implemented during the 1982-83 school year, the agreement 24 report cards. Although parent conferences involve teachers in grades 1-6, the Charging Party stipulated that this issue concerns only the length of the instructional period during the minimum day schedule in the fall of 1983 for teachers in grades 4-6. In the 1982-83 school year, the intermediate grades (4-6) at all four schools were on the same minimum school day during the fall parent conference week. The student instructional day was from 9:00 a.m. to 1:30 p.m. , a period of four hours and 30 minutes. During the 1983-84 school year the schools were on a staggered schedule. The minimum day schedule during the fall parent conference week was: Butterfield and Machado - a.m. to 2:15 p.m., and Wildomar and Elsinore - 8:00 a.m. to 1:15 p.m., for a total instructional time of five hours and 15 minutes. The change in the time from the 1982-83 school year constituted an increase of the minimum day of 45 minutes for grades 4-5 and 40 minutes for grade 6. Article 7.0 of the 1982-85 CBA, section 7.7 refers to an increase in the length of the instructional day for the intermediate grades during the 1982-83 school year. It reads as follows: The instructional minutes for the intermediate grades may be increased by the District not more than fifteen (15) minutes during the 1982-83 school year. Although the 15-minute increase in instructional minutes was to be implemented during the 1982-83 school year, the agreement 24
providing for the increase was not ratified until April 15, 1983. The parties, therefore, agreed that the District could implement section 7.7 during the 1983-84 school year, beginning the fall 1983. As agreed, section 7.7 was implemented at the beginning of the 1983-84 school year. Consequently, the actual amount of time at issue here is a 30-rninute increase in the length of the four student minimum days during parent conference week in mid-November 1983. Judy Stewart-Monceaux testified that when section 7.7 was negotiated, the parties had the regular instructional day in mind, and that there was no discussion about the minimum day schedule, or how the minimum day schedule would be affected by the increase in the length of the regular instructional day. It is noted that there is no express contract provision covering either the minimum day or parent conferences for the 1983-84 school year. 7 ?Appendix 2 of the 1982-85 CBA outlined the tentative school calendar for 1982-83 school year and included express language regarding parent conferences. This language stated as follows: Parent Conferences: The District shall establish one (1) full day of parent conferences and up to four (4) student minimum days for partial day conferencing. Staff shall be notified in advance of the specific days established for parent conferences. Appendix 3, which lists the tentative school calendar for 1983-84, contains no such language. 25 providing for the increase was not ratified until April 15, 1983. The parties, therefore, agreed that the District could implement section 7.7 during the 1983-84 school year, beginning the fall 1983. As agreed, section 7.7 was implemented at the beginning of the 1983-84 school year. Consequently, the actual amount of time at issue here is a 30-minute increase in the length of the four student minimum days during parent conference week in mid-November 1983. Judy Stewart-Monceaux testified that when section 7.7 was negotiated, the parties had the regular instructional day in mind, and that there was no discussion about the minimum day schedule, or how the minimum day schedule would be affected by the increase in the length of the regular instructional day. It is noted that there is no express contract provision covering either the minimum day or parent conferences for the 1983-84 school year.' 7Appendix 2 of the 1982-85 CBA outlined the tentative school calendar for 1982-83 school year and included express language regarding parent conferences. This language stated as follows: Parent Conferences: The District shall establish one (1) full day of parent conferences and up to four (4) student minimum days for partial day conferencing. Staff shall be notified in advance of the specific days established for parent conferences. Appendix 3, which lists the tentative school calendar for 1983-84, contains no such language. 25
It is undisputed that the 30-minute increase in instructional minutes required the affected teachers to do additional classroom preparation for the increased instructional time. This preparation time was aside from the preparation time that was required to prepare for parent conferences. The preparation for parent conferences involves substantial record-keeping prior to, and during, the actual conferences themselves. The preparation required of teachers just prior to parent conference week was described by John (Jay) Finnell, a fifth grade teacher at Butterfield school, as "stressful." The teachers must meet to coordinate the scheduling of conferences for parents having more than one child in a given school or grade level. Additionally, if parents fail to attend a scheduled conference, the teachers are responsible for doing any follow-up necessary to make contact with parents. Finnell testified that, in the past, approximately 30 percent of the parents have failed to attend a scheduled conference and require follow-up. This often includes either rescheduling the conference or conducting it by telephone which is sometimes in the evening after the teachers' regular workday. In 1982 Finnell completed approximately 20 conferences. In the fall of 1983 he completed all of his scheduled conferences by conducting some of them by telephone. 26 It is undisputed that the 30-minute increase in instructional minutes required the affected teachers to do additional classroom preparation for the increased instructional time. This preparation time was aside from the preparation time that was required to prepare for parent conferences. The preparation for parent conferences involves substantial record-keeping prior to, and during, the actual conferences themselves. The preparation required of teachers just prior to parent conference week was described by John (Jay ) Finnell, a fifth grade teacher at Butterfield School, as "stressful. " The teachers must meet to coordinate the scheduling of conferences for parents having more than one child in a given school or grade level. Additionally, if parents fail to attend a scheduled conference, the teachers are responsible for doing any follow-up necessary to make contact with parents. Finnell testified that, in the past, approximately 30 percent of the parents have failed to attend a scheduled conference and require follow-up. This often includes either rescheduling the conference or conducting it by telephone which is sometimes in the evening after the teachers' regular workday. In 1982 Finnell completed approximately 20 conferences. In the fall of 1983 he completed all of his scheduled conferences by conducting some of them by telephone. 26
Finnell estimated that the increase in the length of the minimum day in 1983 caused him to have to spend approximately one additional hour per day in outside preparation during the four days of minimum day scheduling. Other teacher witnesses testified that the outside preparation time during parent conference week increased approximately 35 - 40 minutes a day for a total of 2 to 2-1/2 hours for the week. There is no specific District policy nor provision in the CBA addressing preparation time. District witness, Walter (Keith) McCarthy, acknowledged that one of the factors which affects the amount of preparation time required of teachers is preparation for parent conferences. McCarthy also acknowledged that the quality of the teacher's classroom instruction during the week of minimum days. when teachers are engaged in parent conferencing, is expected to be the same as that offered during any other time of the school year. The only adjustment is in the quantity of instruction because of the shortened instructional day. F. Reduction in the Work Year of :the ,.B!.)ingual Facilitator In the summer of 1982 the District hired certificated employee Judith Reising to perform services as the coordinator of bilingual education. This position is known as the bilingual facilitator. The bilingual education program is a state-funded compensatory education program. The bilingual facilitator was hired because the District administration 27 Finnell estimated that the increase in the length of the minimum day in 1983 caused him to have to spend approximately one additional hour per day in outside preparation during the four days of minimum day scheduling. Other teacher witnesses testified that the outside preparation time during parent conference week increased approximately 35 - 40 minutes a day for a total of 2 to 2-1/2 hours for the week. There is no specific District policy nor provision in the CBA addressing preparation time. District witness, Walter (Keith) Mccarthy, acknowledged that one of the factors which affects the amount of preparation time required of teachers is preparation for parent conferences. Mccarthy also acknowledged that the quality of the teacher's classroom instruction during the week of minimum days, when teachers are engaged in parent conferencing, is expected to be the same as that offered during any other time of the school year. The only adjustment is in the quantity of instruction because of the shortened instructional day. F. Reduction in the Work Year of the Bilingual Facilitator In the summer of 1982 the District hired certificated employee Judith Reising to perform services as the coordinator of bilingual education. This position is known as the bilingual facilitator. The bilingual education program is a state-funded compensatory education program. The bilingual facilitator was hired because the District administration 27
wanted to improve the District's overall bilingual education program. Previously all Spanish-speaking children were assigned to one school site. In order to allow her start-up time in her new capacity, the District set Reising's work year for the 1982-83 school year as 186 days. Sometime in the summer of 1983, Reising approached Superintendent Flora about reducing her work year for school year 1983-84. Reising felt that the savings generated from the reduction in her salary could be used to augment the proposed bilingual program budget for the 1983-84 school year. At a special meeting of the District board on August 26, 1983, the board approved Reising's request to reduce her work year as bilingual facilitator from 186 days to 166 days. Just prior to the board's taking action on this item, Denise (Dee) Thomas, EVEA president, addressed the board by inquiring about the negotiability of Reising's work year. She was told that it was not negotiable and that the board was acting in compliance with its leave policy for unit members. Thomas then requested a copy of said policy which was promised, but never received. On or about August 29 or 30, 1983, Thomas spoke with Reising about the board's action on August 26. At the time of their meeting, Reising was preparing a memo to the board 28 wanted to improve the District's overall bilingual education program. Previously all Spanish-speaking children were assigned to one school site. In order to allow her start-up time in her new capacity, the District set Reising's work year for the 1982-83 school year as 186 days. Sometime in the summer of 1983, Reising approached Superintendent Flora about reducing her work year for school year 1983-84. Reising felt that the savings generated from the reduction in her salary could be used to augment the proposed bilingual program budget for the 1983-84 school year. At a special meeting of the District board on August 26, 1983, the board approved Reising's request to reduce her work year as bilingual facilitator from 186 days to 166 days. Just prior to the board's taking action on this item, Denise (Dee) Thomas, EVEA president, addressed the board by inquiring about the negotiability of Reising's work year. s was told that it was not negotiable and that the board was acting in compliance with its leave policy for unit members. Thomas then requested a copy of said policy which was promised, but never received. On or about August 29 or 30, 1983, Thomas spoke with Reising about the board's action on August 26. At the time of their meeting, Reising was preparing a memo to the board 28
requesting a reduction in her work year. Thomas requested a copy of Reising's memo, along with a copy of a memo from Superintendent Flora to Reising that she saw attached to Reising's draft of her memo. Reising promised to give Thomas a copy of her final memo, but refused to give her a copy of Flora's memo. EVEA subsequently obtained a copy of Flora's memo, dated August 29, 1983, and entitled "Reduction/Work Year." It stated as follows: Your contract will be changed to reflect the reduction in workdays from 185 to 165 days. However, for our protection (yours and the District's) submit your request in writing, back dated prior to Friday's special board meeting (August 26). Enclosed is a copy of Board Policy #4418ES for your information.8 8Board Policy #4418ES was adopted by the District on May 2, 1977. That policy states as follows: Limited leave for business or personal reasons, not provided under Personal Necessity Policy in Policy 4402, may be granted without compensation, increment, seniority or tenure credit by the Board of Trustees for a maximum of one year. The applications for and granting of such leaves of absence shall be in writing. In addition, a unit member on such leave shall notify the District Personnel Office by March 30 of the school year as to an intent to return to employment in the District. Failure to so notify will be considered as an abandonment of position. This is the policy which Thomas requested on August 26, but never received. 29 requesting a reduction in her work year. Thomas requested a copy of Reising's memo, along with a copy of a memo from Superintendent Flora to Reising that she saw attached to Reising's draft of her memo. Reising promised to give Thomas a copy of her final memo, but refused to give her a copy of Flora's memo. EVEA subsequently obtained a copy of Flora's memo, dated August 29, 1983, and entitled "Reduction/Work Year." It stated as follows: Your contract will be changed to reflect the reduction in workdays from 185 to 165 days. However, for our protection (yours and the District's) submit your request in writing, back dated prior to Friday's special board meeting (August 26). Enclosed is a copy of Board Policy #4418ES for your information. 8 8Board Policy #4418ES was adopted by the District on May 2, 1977. That policy states as follows: Limited leave for business or personal reasons, not provided under Personal Necessity Policy in Policy 4402, may be granted without compensation, increment, seniority or tenure credit by the Board of Trustees for a maximum of one year . The applications for and granting of such leaves of absence shall be in writing. In addition, a unit member on such leave shall notify the District Personnel Office by March 30 of the school year as to an intent to return to employment in the District. Failure to so notify will be considered as an abandonment of position. This is the policy which Thomas requested on August 26, but never received. 29
Reising's memo, a copy of which was sent to Thomas was dated August 25, 1983, and was entitled "Request for Limited Leave." It stated as follows: Because of my commitment to Bilingual Education and my belief that funds must be available to make this a successful school year, I hereby request a 20 day reduction of my 186 day work year for the school year 1983-84, thereby making a total of 166 workdays. I understand that I will be allowed to select the dates for the 20 days during the year as my work load and assigned duties permit. My official beginning date will be Tuesday, September 6, 1983 and ending date will be June 22, 1984. I also understand that my increment, fringe benefits, and seniority credit will not be affected by this 20 day work year reduction. Finally, I understand that the total amount of my salary reduction will be placed in the Bilingual Program as per the attached proposed schedule. No negotiations nor discussions ever transpired between EVEA and the District over the subject of Reising 1 s work year either before, or subsequent to, the board's action on August 26, 1983. EVEA never agreed to a change in Reising 1 s work year. Subsequent to the August 26 action, Caldwell filed the instant unfair practice charge as part of an amendment to the original charge. In his testimony, Flora acknowledged that the board did not have a written request from Reising at the time that it 30 Reising's memo, a copy of which was sent to Thomas was dated August 25, 1983, and was entitled "Request for Limited Leave. " It stated as follows: Because of my commitment to Bilingual Education and my belief that funds must be available to make this a successful school year, I hereby request a 20 day reduction of my 186 day work year for the school year 1983-84, thereby making a total of 166 workdays. I understand that I will be allowed to select the dates for the 20 days during the year as my work load and assigned duties permit. My official beginning date will be Tuesday, September 6, 1983 and ending date will be June 22, 1984. I also understand that my increment, fringe benefits, and seniority credit will not be affected by this 20 day work year reduction. Finally, I understand that the total amount of my salary reduction will be placed in the Bilingual Program as per the attached proposed schedule. No negotiations nor discussions ever transpired between EVEA and the District over the subject of Reising's work year either before, or subsequent to, the board's action on August 26, 1983. EVEA never agreed to a change in Reising's work year. Subsequent to the August 26 action, Caldwell filed the instant unfair practice charge as part of an amendment to the original charge. In his testimony, Flora acknowledged that the board did not have a written request from Reising at the time that it 30
approved the request on August 26. The board acted upon the request pursuant to an oral presentation by Flora. He further testified that he recommended that Reising submit her request in writing and backdate it in order to establish a proper "paper trail" for personnel action. This practice, according to Flora, was not unusual in the District. The position of the bilingual facilitator is included in the bargaining unit represented by EVEA. The work year of employees represented by EVEA is established in section 7.4 of the CBA (seep. 10, supra). Article 13.0 of the CBA covers the various types of leaves granted to unit members. However, it does not contain a provision for a reduced work year. G. Reduced Work Year of Bilingual Facilitator During 1984-85 School Year Sometime in the late spring of 1984, it was rumored that Judith Reising was contemplating a request for a change in the length of her work year for the 1984-85 school year. In response to this information, Caldwell, on behalf of EVEA, contacted Reising by letter, In the letter, dated May 29, 1984, Caldwell requested that Reising make known to EVEA any contract request concerning her work year that she might have in order for EVEA to determine a way to negotiate terms equitable to Reising and other members of the bargaining unit. Caldwell further stated: ••• either a change in the work year length or the unpaid leave policy should be 31 approved the request on August 26. The board acted upon the request pursuant to an oral presentation by Flora. He further testified that he recommended that Reising submit her request in writing and backdate it in order to establish a proper "paper trail" for personnel action. This practice, according to Flora, was not unusual in the District. The position of the bilingual facilitator is included in the bargaining unit represented by EVEA. The work year of employees represented by EVEA is established in section 7.4 of the CBA (see p. 10, supra). Article 13.0 of the CBA covers the various types of leaves granted to unit members. However, it does not contain a provision for a reduced work year. G. Reduced Work Year of Bilingual Facilitator During 1984-85 School Year Sometime in the late spring of 1984, it was rumored that Judith Reising was contemplating a request for a change in the length of her work year for the 1984-85 school year. In response to this information, Caldwell, on behalf of EVEA, contacted Reising by letter, In the letter, dated May 29, 1984, Caldwell requested that Reising make known to EVEA any contract request concerning her work year that she might have in order for EVEA to determine a way to negotiate terms equitable to Reising and other members of the bargaining unit. Caldwell further stated: . . either a change in the work year length or the unpaid leave policy should be 31
able to accommodate your personal - business needs •••• please let me know soon as we will be putting an initial proposal together, with the first meeting to be held this Friday, June 1. Caldwell sent a copy of this letter to Flora and Whitlock. No response was received from Reising or either of the District;s representatives. On June 13, 1984, the EVEA grievance committee met with Flora to discuss pending grievance matters. At that meeting, EVEA raised the subject of Reising's anticipated request for change in her 1984-85 work year. Flora was informed that EVEA had asked Reising to inform EVEA about her request for 1984-85, and that it would attempt to seek resolution for her through the negotiation process. It was further indicated that EVEA felt that the 1982-85 CBA leave provision did not cover the kind of leave being considered by Reising. However, the request could possibly be settled by a leave policy change or by a shortened work year. Flora's response to EVEA 1 s stated position is unknown. Following the June 13 meeting, no oral or written communication was received from either Reising or Flora. After not hearing from Reising, on or about June 25, 1984, Caldwell went to her office to attempt to speak with her concerning this matter, but Reising was not available. Caldwell thereafter left a note for Reising on a copy of the June 13 minutes of the grievance committee meeting, reminding 32 able to accommodate your personal - business needs. . please let me know soon as we will be putting an initial proposal together, with the first meeting to be held this Friday, June 1. Caldwell sent a copy of this letter to Flora and Whitlock. No response was received from Reising or either of the District's representatives. On June 13, 1984, the EVEA grievance committee met with Flora to discuss pending grievance matters. At that meeting, EVEA raised the subject of Reising's anticipated request for change in her 1984-85 work year. Flora was informed that EVEA had asked Reising to inform EVEA about her request for 1984-85, and that it would attempt to seek resolution for her through the negotiation process. It was further indicated that EVEA felt that the 1982-85 CBA leave provision did not cover the kind of leave being considered by Reising. However, the request could possibly be settled by a leave policy change or by a shortened work year. Flora's response to EVEA's stated position is unknown. Following the June 13 meeting, no oral or written communication was received from either Reising or Flora. After not hearing from Reising, on or about June 25, 1984, Caldwell went to her office to attempt to speak with her concerning this matter, but Reising was not available. Caldwell thereafter left a note for Reising on a copy of the June 13 minutes of the grievance committee meeting, reminding 32
her that EVEA had not heard from her regarding her request for a reduced work year. On July 3, 1984, Caldwell spoke with Reising in her office, asking that she make any requests for contract changes through EVEA. Reising informed Caldwell that she was undecided about whether to pursue the matter through EVEA or through the superintendent. On or about the same day, Reising submitted a written leave request, dated July 3, 1984, for the 1984-85 school year. Her memo addressed to Flora stated, in part, as follows: I hereby, request a reduction of my work year in order to have more child-rearing time with my daughter as well as to enable the Bilingual budget to remain within the budget restraints of EIA-LEP allocation. I would like to work six tenths (6/10) of the regular 179 day work year. That would give a total of 107.4 work days. I understand that I will be allowed to allocate those days according to the demands of my job and my family's needs. the I request this leave pending the approval of the following stipulations: The six items set forth as P-stipulations" covered the amount of stipend, and other terms and conditions of employment. A copy of the memo was sent to Caldwell as the EVEA representative. on July 5, 1984, the District board acted to approve Reising 1 s leave request. The board approved, .•• unpaid child-rearing leave, .4 of 1984-85 school year with all terms and conditions being consistent with Education Code, District policy and EVEA/LESD contract. 33 her that EVEA had not heard from her regarding her request for a reduced work year. On July 3, 1984, Caldwell spoke with Reising in her office, asking that she make any requests for contract changes through EVEA. Reising informed Caldwell that she was undecided about whether to pursue the matter through EVEA or through the superintendent. On or about the same day, Reising submitted a written leave request, dated July 3, 1984, for the 1984-85 school year. Her memo addressed to Flora stated, in part, as follows: I hereby, request a reduction of my work year in order to have more child-rearing time with my daughter as well as to enable the Bilingual budget to remain within the budget restraints of the EIA-LEP allocation. I would like to work six tenths (6/10) of the regular 179 day work year. That would give a total of 107.4 work days. I understand that I will be allowed to allocate those days according to the demands of my job and my family's needs. I request this leave pending the approval of the following stipulations: The six items set forth as "stipulations" covered the amount of stipend, and other terms and conditions of employment. A copy of the memo was sent to Caldwell as the EVEA representative. On July 5, 1984, the District board acted to approve Reising's leave request. The board approved, . unpaid child-rearing leave, .4 of 1984-85 school year with all terms and conditions being consistent with Education Code, District policy and EVEA/LESD contract. 33
Subsequently, Flora sent a letter, dated July 16, 1984, to Reising which stated that the board had approved a 40 percent leave for the 1984-85 school year. He further stated that, ••• all terms and conditions of said leave must be consistent with district policy, education code and the EVEA/LESD agreement. The letter then listed in detail the terms and conditions of the leave approved on July 5. The last paragraph contained the following statements: The Board has granted this partial leave based upon your request and not due to budget considerations. nue to the relatively rare frequency of such leave, some details of the terms and conditions of your leave may be subject to review by EVEA. Therefore, a copy of your initial request and this reply are being forwarded to the Association. If modifications to the conditions of your leave are necessary, you will be notified. Reising testified that upon her return from vacation at the end of July 1984, she received Flora's July 16 letter. She did not accept the terms and conditions applied to the leave approval. Shortly thereafter she spoke to Flora about the status of her request, and was told that the matter was being held in negotiations, pending the outcome of the earlier unfair practice charge filed by EVEA (LA-CE-1827, paragraph 3(f)). The instant unfair practice charge was filed August 10, 1984. Sometime in late August 1984, Reising spoke with Pat Perkins, the new EVEA president, and Caldwell regarding the issue and was told that the matter was "on hold." 34 Subsequently, Flora sent a letter, dated July 16, 1984, to Reising which stated that the board had approved a 40 percent leave for the 1984-85 school year. He further stated that, . all terms and conditions of said leave must be consistent with district policy, education code and the EVEA/LESD agreement. The letter then listed in detail the terms and conditions of the leave approved on July 5. The last paragraph contained the following statements: The Board has granted this partial leave based upon your request and not due to budget considerations. Due to the relatively rare frequency of such leave, some details of the terms and conditions of your leave may be subject to review by EVEA. Therefore, a copy of your initial request and this reply are being forwarded to the Association. If modifications to the conditions of your leave are necessary, you will be notified. Reising testified that upon her return from vacation at the end of July 1984, she received Flora's July 16 letter. She did not accept the terms and conditions applied to the leave approval. Shortly thereafter she spoke to Flora about the status of her request, and was told that the matter was being held in negotiations, pending the outcome of the earlier unfair practice charge filed by EVEA (LA-CE-1827, paragraph 3(f) ). The instant unfair practice charge was filed August 10, 1984. Sometime in late August 1984, Reising spoke with Pat Perkins, the new EVEA president, and Caldwell regarding the issue and was told that the matter was "on hold." 34
In late September, Reising spoke again with Flora, seeking clarification about her work year. He told her to work the exact same number of days for 1984-85 school year that she worked during the 1983-84 school year, i.e., a 166-day work year, until the matter was resolved in negotiations. Although Reising signed a standard contract of employment with the District on June 15, 1984, there has been no written revision of this agreement to reflect a change in the number of workdays for 1984-85. Flora testified that he had no personal objection to granting Reising 1 s leave request for the 1984-85 school year, but that he was only authorized to recommend her request to the board which he did. At the time that he received her written request, Flora admitted that he gave no thought to advising EVEA of the matter before acting to recommend the request to the District board. When cross-examined about his reference to the EVEA/LESD contract in the July 16 memo, Flora responded that he was referring to section 13.8, part (b)(l) of the CBA. This provision states as follows: b. An unpaid leave shall include but not be limited to: 1. Child-Rearing Leave - Upon request, the Board may provide a unit member, who is a natural or adopting parent, an unpaid leave of absence for the purpose of rearing his or her infant. such leave 35 In late September, Reising spoke again with Flora, seeking clarification about her work year. He told her to work the exact same number of days for 1984-85 school year that she worked during the 1983-84 school year, i.e., a 166-day work year, until the matter was resolved in negotiations. Although Reising signed a standard contract of employment with the District on June 15, 1984, there has been no written revision of this agreement to reflect a change in the number of workdays for 1984-85. Flora testified that he had no personal objection to granting Reising's leave request for the 1984-85 school year, but that he was only authorized to recommend her request to the board which he did. At the time that he received her written request, Flora admitted that he gave no thought to advising EVEA of the matter before acting to recommend the request to the District board. When cross-examined about his reference to the EVEA/LESD contract in the July 16 memo, Flora responded that he was referring to section 13.8, part (b) (1) of the CBA. This provision states as follows: b . An unpaid leave shall include but not be limited to: 1 . Child-Rearing Leave - Upon request, the Board may provide a unit member, who is a natural or adopting parent, an unpaid leave of absence for the purpose of rearing his or her infant. Such leave 35
shall remain in effect at least until the end of the semester following the birth or adoption of the child. Flora admitted that usually child-rearing leave is granted to an employee immediately after the birth of a child. The evidence does not show the exact age of Reising's daughter referenced in her July 3 leave request; however, there is no indication that the child was an infant. At the time of the hearing, at least three certificated unit employees were on child-rearing leave pursuant to the subject leave provision. There was no evidence that EVEA and the District engaged in any negotiations over this matter, either before the board's July 5 action approving the leave or since that time. ISSUES l. Whether the District violated section 3543.S(c) by implementing a decision to reduce the amount of instructional aide time assigned to certain classroom teachers without first meeting and negotiating with EVEA about the negotiable aspects of such decision? 2. Whether the District altered an established summer pay policy in violation of the section 3543.S(c) -- duty to bargain in good faith? 3. Whether the District violated section 3543.S(c) by its implementation of the learning specialist program? 36 shall remain in effect at least until the end of the semester following the birth or adoption of the child. Flora admitted that usually child-rearing leave is granted to an employee immediately after the birth of a child. The evidence does not show the exact age of Reising's daughter referenced in her July 3 leave request; however, there is no indication that the child was an infant. At the time of the hearing, at least three certificated unit employees were on child-rearing leave pursuant to the subject leave provision. There was no evidence that EVEA and the District engaged in any negotiations over this matter, either before the board's July 5 action approving the leave or since that time. ISSUES 1 . Whether the District violated section 3543.5(c) by implementing a decision to reduce the amount of instructional aide time assigned to certain classroom teachers without first meeting and negotiating with EVEA about the negotiable aspects of such decision? 2 . Whether the District altered an established summer pay policy in violation of the section 3543.5(c) -- duty to bargain in good faith? 3 . Whether the District violated section 3543.5(c) by its implementation of the learning specialist program? 36
4. Whether the District violated section 3543.S(c) by
increasing the instructional minutes during the minimum days'
schedule of the fall 1983 parent conferencing week?
5. Whether the District engaged in direct dealing with a
certificated unit employee over various terms and conditions of
employment during the 1983-84 and 1984-85 school years, thereby
bypassing the exclusive representative EVEA in violation of its
duty to bargain in good faith?
6. Whether any or all of the above-described conduct also
concurrently violated sections 3543.S(a) and (b)?
CONCLUSIONS OF LAW
It is unlawful for a public school employer to "refuse or
fail to meet and negotiate in good faith with an exclusive
representative" about a matter within the scope of
represen t ation.
. 9 Moreover, a unilateral change in terms and
9section 3543.2 provides in pertinent part as follows:
{aJ The scope of representation shall be
limited to matters relating to wages, hours
of employment, and other terms and
conditions of employment. "Terms and
conditions of employment" mean health and
welfare ••• , leave, transfer and
reassignment policies, safety conditions of
employment, class size, procedures to be
used for the evaluation of employees,
organizational security .•• , procedures
for processing grievances ••. , and the
layoff of probationary certificated school
district employees ••
benefits
In addition, a subject will be found to be negotiable even
though not specifically enumerated in section 3543.2 if (1) it
37
4. Whether the District violated section 3543.5(c) by
increasing the instructional minutes during the minimum days'
schedule of the fall 1983 parent conferencing week?
5 . Whether the District engaged in direct dealing with a
certificated unit employee over various terms and conditions of
employment during the 1983-84 and 1984-85 school years, thereby
bypassing the exclusive representative EVEA in violation of its
duty to bargain in good faith?
6. Whether any or all of the above-described conduct also
concurrently violated sections 3543.5(a) and (b)?
CONCLUSIONS OF LAW
It is unlawful for a public school employer to "refuse or
fail to meet and negotiate in good faith with an exclusive
representative" about a matter within the scope of
representation." Moreover, a unilateral change in terms and
9section 3543.2 provides in pertinent part as follows:
(a) The scope of representation shall be
limited to matters relating to wages, hours
of employment, and other terms and "Terms and conditions of employment.
conditions of employment" mean health and
welfare benefits . , leave, transfer and
reassignment policies, safety conditions of
employment, class size, procedures to be
used for the evaluation of employees,
organizational security . procedures
for processing grievances and the
layoff of probationary certificated school
district employees .
In addition, a subject will be found to be negotiable even
though not specifically enumerated in section 3543.2 if (1) it
37conditions of employment within the scope of representation is, absent a valid defense, a per se refusal to negotiate. Pajaro Valley Unified School District (1978) PERB Decision No. 51; San Mateo County Community College (1979) PERB Decision No. 94; NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177]. An unlawful unilateral change will be found where the Charging Party proves, by a preponderance of the evidence, that an employer unilaterally altered an established policy. Grant Joint Union High School District (1982) PERB Decision No. 196. The nature of existing policy is a question of fact to be determined from an examination of the record as a whole. It may be embodied in the terms of a collective agreement (Grant, supra) or, where a contract is silent or amibiguous as to a policy, it may be ascertained by examining past practice or bargaining history. Marysville Joint Unified School District (1983) PERB Decision No. 314; Rio Hondo community College District (1982) PERB Decision No. 279. is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge the employer's freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the District's mission. Anaheim Union High School District (1981) PERB Decision No. 177, affirmed San Mateo City School District v. PERB (1983) 33 Cal.3d 850. 38 conditions of employment within the scope of representation is, absent a valid defense, a per se refusal to negotiate. Pajaro Valley Unified School District (1978) PERB Decision No. 51; San Mateo County Community College (1979) PERB Decision No. 94; NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177] . An unlawful unilateral change will be found where the Charging Party proves, by a preponderance of the evidence, that an employer unilaterally altered an established policy. Grant Joint Union High School District (1982) PERB Decision No. 196. The nature of existing policy is a question of fact to be determined from an examination of the record as a whole. may be embodied in the terms of a collective agreement (Grant, supra) or, where a contract is silent or amibiguous as to a policy, it may be ascertained by examining past practice or bargaining history. Marysville Joint Unified School District (1983) PERB Decision No. 314; Rio Hondo Community College District (1982) PERB Decision No. 279. is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge the employer's freedom to exercise those managerial prerogatives (including matters of fundamental policy ) essential to the achievement of the District's mission. Anaheim Union High School District (1981) PERB Decision No. 177, affirmed San Mateo City School District v. PERB (1983) 33 Cal. 3d 850. 38
An employer's unlawful failure and refusal to negotiate concurrently violates an exclusive representative's right to represent unit members in their employment relations (section 3543.5(b)) and interferes with employees because of their exercise of representational rights (section 3543.S(c)). san Francisco Community College District (1979) PERB Decision No.105. These general and well-established principles concerning unlawful unilateral changes will be applied to the District's conduct as alleged by the Association in the six issues raised by the two instant charges. A. Impact of Reduction in Aide Time In its original charge, the Charging Party challenged the District's right to unilaterally reduce the SIP aide classroom time in the 1983-84 school year. In its post-hearing brief, the charging Party clarified its position by stating that it did not challenge the negotiability of the decision to reduce aide time, however, it asserts that the employer could have, and should have, given EVEA notice and an opportunity to negotiate over the negotiable effects of this decision. Respondent defends its action by arguing that it had no duty to negotiate at the time that the reduction in hours occurred. It contends that EVEA had notice of a contemplated 39 An employer's unlawful failure and refusal to negotiate concurrently violates an exclusive representative's right to represent unit members in their employment relations (section 3543.5(b) ) and interferes with employees because of their exercise of representational rights (section 3543.5(c)). San Francisco Community College District (1979) PERB Decision No . 105. These general and well-established principles concerning unlawful unilateral changes will be applied to the District's conduct as alleged by the Association in the six issues raised by the two instant charges. A. Impact of Reduction in Aide Time In its original charge, the Charging Party challenged the District's right to unilaterally reduce the SIP aide classroom time in the 1983-84 school year. In its post-hearing brief, the Charging Party clarified its position by stating that it did not challenge the negotiability of the decision to reduce aide time, however, it asserts that the employer could have, and should have, given EVEA notice and an opportunity to negotiate over the negotiable effects of this decision. Respondent defends its action by arguing that it had no duty to negotiate at the time that the reduction in hours occurred. It contends that EVEA had notice of a contemplated 39
employer action, which in this instance was accomplished through the teachers' participation on the school site councils that made the initial decision regarding the changes in aide hours, yet failed to demand bargaining over the effects of such decision. decision. Since EVEA had notice of the employer's action and never submitted a demand to bargain or a proposal concerning the same, no negotiating duty ever arose and thus, there could be no failure to perform the duty. Additionally, Respondent contends that since the District did not anticipate any adverse impact on certificated employees as a result of the decision, it had no need to seek negotiations with EVEA over this subject. Neither arguments are meritorious on this point. The duty to meet and negotiate arises under section 3543.3. 10 PERB has held that the obligation of an employer to give notice and an opportunity to bargain regarding the negotiable effects of a non-negotiable decision arises when the employer reaches a firm decision. Newark Unified School lOsection 3543.3 states in pertinent part as follows: A public school employer or such representatives as it may designate who may, but need not be, subject to either certification requirements or requirements for classified employees set forth in the Education Code, shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units upon request with regard to matters within the scope of representation. 40 employer action, which in this instance was accomplished through the teachers' participation on the school site councils that made the initial decision regarding the changes in aide hours, yet failed to demand bargaining over the effects of such Since EVEA had notice of the employer's action and never submitted a demand to bargain or a proposal concerning the same, no negotiating duty ever arose and thus, there could be no failure to perform the duty. Additionally, Respondent contends that since the District did not anticipate any adverse impact on certificated employees as a result of the decision, it had no need to seek negotiations with EVEA over this subject. Neither arguments are meritorious on this point. The duty to meet and negotiate arises under section 3543.3. PERB has held that the obligation of an employer to give notice and an opportunity to bargain regarding the negotiable effects of a non-negotiable decision arises when the employer reaches a firm decision. Newark Unified School 10section 3543.3 states in pertinent part as follows: A public school employer or such representatives as it may designate who may, but need not be, subject to either certification requirements or requirements for classified employees set forth in the Education Code, shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units upon request with regard to matters within the scope of representation. 40
District (1982) PERB Decision No. 225; Kern community College District (1983) PERB Decision No. 337 and Mt. Diablo Unified School District (1983) PERB Decision No. 373. There is no question here that the District board reached a firm decision to reduce classroom aide time prior to the time that the revised plan was implemented. The decision was made in the spring of 1983, prior to the end of the 1982-83 school year. During the interim period before the plan was implemented in the fall 1983, the District had ample time to notify EVEA of the decision and provide an opportunity for negotiations of the effects on matters within the scope of representation. It is undisputed in this case that the employer did not notify EVEA nor offer EVEA an opportunity to negotiate any negotiable effects of the plan to reduce classroom aide time for grades 2 and 3 at Wildomar School and grades K-3 at Butterfield school starting the fall of 1983. Although the District argues that EVEA had notice of its contemplated action, there is no persuasive evidence which supports a conclusion that the individual teacher 1 s participation on a school site council could be viewed as a substitute for actual notice to EVEA, or further, that such teacher participation in any way satisfied the District's duty to meet and negotiate with EVEA. Kern Community College District, suEra. 41 District (1982) PERB Decision No. 225; Kern Community College District (1983) PERB Decision No. 337 and Mt. Diablo Unified School District (1983) PERB Decision No. 373. There is no question here that the District board reached a firm decision to reduce classroom aide time prior to the time that the revised plan was implemented. The decision was made in the spring of 1983, prior to the end of the 1982-83 school year . During the interim period before the plan was implemented in the fall 1983, the District had ample time to notify EVEA of the decision and provide an opportunity for negotiations of the effects on matters within the scope of representation. It is undisputed in this case that the employer did not notify EVEA nor offer EVEA an opportunity to negotiate any negotiable effects of the plan to reduce classroom aide time for grades 2 and 3 at Wildomar School and grades K-3 at Butterfield School starting the fall of 1983. Although the District argues that EVEA had notice of its contemplated action, there is no persuasive evidence which supports a conclusion that the individual teacher's participation on a school site council could be viewed as a substitute for actual notice to EVEA, or further, that such teacher participation in any way satisfied the District's duty to meet and negotiate with EVEA. Kern Community College District, supra. 41
The evidence supports a conclusion that the effects of the District's decision to reduce the amount of classroom aide time from its previous level, clearly had "a reasonably foreseeable adverse impact on the affected teachers' working conditions" and thus was negotiable. Mt. Diablo, supra. The reduction in instructional aide assigned classroon time anywhere from one to two and one-half hours per day in some classrooms without any concomitant changes in other aspects of the teachers' overall instructional responsibilities would conceivably affect the amount of a teacher's time that was required to prepare for and perform such duties. Since each teacher had discretion about the use of their assigned aide time, some teachers used the aides to correct written class work and perform certain record-keeping tasks during the students' instructional time. In hose situations where aide tim aide time was completely eliminated or substantially reduced, the affected teachers still had to perform the tasks formerly assigned to the aides, even if the time required to do these tasks was beyond the regular seven and one-half hour workday. Additionally, the change required some teachers to prepare additional "seat work" to accommodate the absence of an aide in the classroom to work directly with a group of students while the teacher was instructing another group. The extra "seat work• required additional non-classroom preparation time for some teachers until the aide time was restored or reallocated. 42 The evidence supports a conclusion that the effects of the District's decision to reduce the amount of classroom aide time from its previous level, clearly had "a reasonably foreseeable adverse impact on the affected teachers' working conditions" and thus was negotiable. Mt. Diablo, supra. The reduction in instructional aide assigned classroon time anywhere from one to two and one-half hours per day in some classrooms without any concomitant changes in other aspects of the teachers' overall instructional responsibilities would conceivably affect the amount of a teacher's time that was required to prepare for and perform such duties. Since each teacher had discretion about the use of their assigned aide time, some teachers used the aides to correct written class work and perform certain record-keeping tasks during the students' instructional time. In t e was completely eliminated or substantially reduced, the affected teachers still had to perform the tasks formerly assigned to the aides, even if the time required to do these tasks was beyond the regular seven and one-half hour workday. Additionally, the change required some teachers to prepare additional "seat work" to accommodate the absence of an aide in the classroom to work directly with a group of students while the teacher was instructing another group. The extra "seat work" required additional non-classroom preparation time for some teachers until the aide time was restored or reallocated. 42
Even if the District doubted that there would be adverse effects on the teachers' working conditions as a result of its decision, it was not possible for the EVEA to make a demand to negotiate and explore anticipated effects prior to implementation of the revised aid plan, where notice and an opportunity to request meeting and negotiating were not provided. The burden of providing notice and an opportunity to negotiate belongs on the employer who, in this instance, had full knowledge of the changes and the anticipated implementation date. Where an employer guesses wrong, i.e., fails to reasonably foresee the impact of a decision (such as a reduction in aide time) on the hours of employment or working conditions of classroom teachers, it is fair to allocate the burden of this error in judgment to the employer. Mount Diablo Unified school District, supra at p. 51. In this instance, the employer failed to provide prompt notice and an opportunity to EVEA to negotiate over the negotiable effects on teachers of a firm decision to reduce and, or modify, classified services. It has been found here that the implementation of the decision had adverse effects on matters within the scope of representation of the affected teachers. It is therefore, concluded that the District's conduct in this regard amounted to a violation of section 3543.S(c). planned change in policy with arguably negotiable effects. It has further failed to establish a valid defense or 43 Even if the District doubted that there would be adverse effects on the teachers' working conditions as a result of its decision, it was not possible for the EVEA to make a demand to negotiate and explore anticipated effects prior to implementation of the revised aid plan, where notice and an opportunity to request meeting and negotiating were not provided. The burden of providing notice and an opportunity to negotiate belongs on the employer who, in this instance, had full knowledge of the changes and the anticipated implementation date. Where an employer guesses wrong, i.e. , fails to reasonably foresee the impact of a decision (such as a reduction in aide time ) on the hours of employment or working conditions of classroom teachers, it is fair to allocate the burden of this error in judgment to the employer. Mount Diablo Unified School District, supra at p. 51. In this instance, the employer failed to provide prompt notice and an opportunity to EVEA to negotiate over the negotiable effects on teachers of a firm decision to reduce and, or modify, classified services. It has been found here that the implementation of the decision had adverse effects on matters within the scope of representation of the affected teachers. It is therefore, concluded that the District's conduct in this regard amounted to a violation of section 3543.5(c). planned change in policy with arguably negotiable effects. It has further failed to establish a valid defense or 43
excuse for its failure to set in this regard. consequently, its conduct is found to have violated the duty to bargain in good faith as required by section 3543.S(c). B. Rate of Compensation for work Performed the summer of 1983 The Charging Party asserts that when the District paid certain teachers represented by EVEA a per diem rate for work performed during the summer of 1983, it unilaterally changed the established practice that summer work performed by unit members was to be paid on an hourly basis. EVEA further alleges that such exceptions to this practice as they have become aware of them are the subject of unfair practice charges. Respondent maintains that the determination of the payment rate, whether hourly or per diem, has been based on the type of assignment and the funding source, and historically has been established without bargaining with EVEA. It further asserts that there has been no established consistent past practice for compensation of teachers for summer work. Hence, since there has been no change in practice, no duty to bargain ever arose with respect to the issue raised in this specification. PERB has held that an employer may not unilaterally alter the method of computing pay for summer school instruction. Rio Hondo Community College District, supra. Although the issue here concerns the pay rate for summer work, as contrasted with method of payment for summer school instruction, the rule 44 excuse for its failure to set in this regard. Consequently, its conduct is found to have violated the duty to bargain in good faith as required by section 3543.5(c). B. Rate of Compensation for Work Performed the Summer of 1983 The Charging Party asserts that when the District paid certain teachers represented by EVEA a per diem rate for work performed during the summer of 1983, it unilaterally changed the established practice that summer work performed by unit members was to be paid on an hourly basis. EVEA further alleges that such exceptions to this practice as they have become aware of them are the subject of unfair practice charges. Respondent maintains that the determination of the payment rate, whether hourly or per diem, has been based on the type of assignment and the funding source, and historically has been established without bargaining with EVEA. It further asserts that there has been no established consistent past practice for compensation of teachers for summer work. Hence, since there has been no change in practice, no duty to bargain ever arose with respect to the issue raised in this specification. PERB has held that an employer may not unilaterally alter the method of computing pay for summer school instruction. Rio Hondo Community College District, supra. Although the issue here concerns the pay rate for summer work, as contrasted with method of payment for summer school instruction, the rule 44
prohibiting unilateral modification of payment of wages, an enumerated subject of bargaining, applies to this case. In Grant Joint Union High school District, supra, the Board held that for a Charging Party to state a prima facie violation of section 3543.5(c) when a unilateral change is charged, it must allege facts sufficient to show: (1) that the District breached or otherwise altered the parties 1 written agreement or its own established past practice; (2) that the breach or alteration amounted to a change of policy (i.e., that it had a generalized effect or continuing impact upon the terms and conditions of employment of bargaining unit members); (3) that the change of policy concerned matters within the scope of representation. This issue is thus considered in light of the principles enunciated in both Rio Hondo and Grant. The parties have stipulated that the 1982-85 CBA does not contain a provision relating to additional compensation for responsibilities beyond regular assignments. However, in the CBA's between EVEA and the District for the period from 1976-80, there was an express provision covering additional compensation which specified an hourly pay rate for additional responsibilities (including District projects and summer school), with the exception of summer school preparation. The latter was compensated on a per diem basis. The preponderance of the evidence presented here shows that the practice of compensating unit members on an hourly basis 45 prohibiting unilateral modification of payment of wages, an enumerated subject of bargaining, applies to this case. In Grant Joint Union High School District, supra, the Board held that for a Charging Party to state a prima facie violation of section 3543.5(c) when a unilateral change is charged, it must allege facts sufficient to show: (1) that the District breached or otherwise altered the parties' written agreement or its own established past practice; (2) that the breach or alteration amounted to a change of policy (i.e., that it had a generalized effect or continuing impact upon the terms and conditions of employment of bargaining unit members); (3) that the change of policy concerned matters within the scope of representation. This issue is thus considered in light of the principles enunciated in both Rio Hondo and Grant. The parties have stipulated that the 1982-85 CBA does not contain a provision relating to additional compensation for responsibilities beyond regular assignments. However, in the CBA's between EVEA and the District for the period from 1976-80, there was an express provision covering additional compensation which specified an hourly pay rate for additional responsibilities (including District projects and summer school), with the exception of summer school preparation. The latter was compensated on a per diem basis. The preponderante of the evidence presented here shows that the practice of compensating unit members on an hourly basis 45
for various types of extra duty or summer assignments has continued for several years with few exceptions. One fairly recent exception involving a bargaining unit member was the rate of compensation for work performed by Thomas Engelhardt during the summer of 1982. Engelhardt was compensated on a per diem basis. However, this fact was unknown to Engelhardt or to the EVEA until it was revealed during the hearing. other than this case, no evidence was presented of bargaining unit members being compensated for extra duty or summer assignments on a per diem basis prior to the instances that gave rise to this charge. Additionally, the formula which the District has used for calculating the hourly rate apparently has continued to be that which was set forth in the CBA's for the periods 1977-78 and 1978-79. It is undisputed that with the exception of the bargaining unit positions enumerated below, all unit members who performed work during the summer of 1983 were cornpensatea on an hourly basis. However, in the summer of 1983 the District did alter the method of compensation for summer work performed by the RBI coaches, learning specialists, bilingual facilitator, and speech therapists. The challenge to this modification of pay practice as it applied to the speech therapists is addressed in unfair practice charge LA-CE-2059. The change in practice with respect to the other employees does not represent a breach or alteration of any written agreement, nor does it modify a 46 for various types of extra duty or summer assignments has continued for several years with few exceptions. One fairly recent exception involving a bargaining unit member was the rate of compensation for work performed by Thomas Engelhardt during the summer of 1982. Engelhardt was compensated on a per diem basis. However, this fact was unknown to Engelhardt or to the EVEA until it was revealed during the hearing. Other than this case, no evidence was presented of bargaining unit members being compensated for extra duty or summer assignments on a per diem basis prior to the instances that gave rise to this charge. Additionally, the formula which the District has used for calculating the hourly rate apparently has continued to be that which was set forth in the CBA's for the periods 1977-78 and 1978-79. It is undisputed that with the exception of the bargaining unit positions enumerated below, all unit members who performed work during the summer of 1983 were compensated on an hourly basis. However, in the summer of 1983 the District did alter the method of compensation for summer work performed by the RBI coaches, learning specialists, bilingual facilitator, and speech therapists. The challenge to this modification of pay practice as it applied to the speech therapists is addressed in unfair practice charge LA-CE-2059. The change in practice with respect to the other employees does not represent a breach or alteration of any written agreement, nor does it modify a 46
stated District policy. However, it is a change of the District's established practice of many years for summer work compensation of bargaining unit members, and amounts to a unilaterial change of policy affecting an important and continuing term of employment -- salaries. Since the District argues that there has been no change of a past practice, it has raised no justification or excuse in defense of its unilateral action. Even if the individual employees involved in this action agreed to the change in the basis for payment of their summer work, it does not rebut a finding of unlawful unilateral change, absent a showing that the District first fulfilled its bargaining obligation with EVEA. There has been no such showing in this case. For the reasons stated, it is therefore concluded that the District's unilateral modification of the method of compensation for summer work performed by bargaining unit members was in violation of section 3543.5(c). c. Learning Specialist Program EVEA concedes that the District had no obligation to negotiate over the decision to establish the learning specialist positions. This management prerogative was established by the Board in Alum Rock Union Elementary School District, (1983) PERB Decision No. 322, where the Board, applying the test for negotiability set forth in Anaheim Union High School District, supra, found that "where management seeks 47 stated District policy. However, it is a change of the District's established practice of many years for summer work compensation of bargaining unit members, and amounts to a unilateral change of policy affecting an important and continuing term of employment -- salaries. Since the District argues that there has been no change of a past practice, it has raised no justification or excuse in defense of its unilateral action. Even if the individual employees involved in this action agreed to the change in the basis for payment of their summer work, it does not rebut a finding of unlawful unilateral change, absent a showing that the District first fulfilled its bargaining obligation with EVEA. There has been no such showing in this case. For the reasons stated, it is therefore concluded that the District's unilateral modification of the method of compensation for summer work performed by bargaining unit members was in violation of section 3543.5(c). C. Learning Specialist Program EVEA concedes that the District had no obligation to negotiate over the decision to establish the learning specialist positions. This management prerogative was established by the Board in Alum Rock Union Elementary School District, (1983) PERB Decision No. 322, where the Board, applying the test for negotiability set forth in Anaheim Union High School District, supra, found that "where management seeks 47
to create a new classification to perform a function not previously performed ••• by employees ••• it need not negotiate its decision." See also Mt. San Antonio community College District (1983) PERB Decision No. 334. At issue, however, is the District's fulfillment of its obligation to meet and negotiate with EVEA regarding the negotiable aspects of the learning specialist program prior to the implementation of the same. The District acknowledged that it had an obligation to negotiate with EVEA when it advertised during the spring of 1983 for applicants for the new positions. A reference on the vacancy notice stated that hours, wages; including stipend and other terms and conditions of employment were "subject to negotiations with the exclusive representative EVEA." However, the District contends that, in this particular instance, EVEA was provided adequate notice and a reasonable opportunity to negotiate, but failed to exercise the right to bargain over this matter by failing to formally demand bargaining until September 26, 1983, some three and one-half to four months after the matter was first explored by the parties. This delay, it is argued, amounts to a waiver by inaction of the right to bargain. A review of the bargaining history over this issue simply does not support Respondent's argument. The parties first discussed the LS program in May 1983. Even if this meeting arguably was not a formal negotiating 48 to create a new classification to perform a function not previously performed . . . by employees . . . it need not negotiate its decision. " See also Mt. San Antonio Community College District (1983) PERB Decision No. 334. At issue, however, is the District's fulfillment of its obligation to meet and negotiate with EVEA regarding the negotiable aspects of the learning specialist program prior to the implementation of the same. The District acknowledged that it had an obligation to negotiate with EVEA when it advertised during the spring of 1983 for applicants for the new positions. A reference on the vacancy notice stated that hours, wages, including stipend and other terms and conditions of employment were "subject to negotiations with the exclusive representative EVEA. " However, the District contends that, in this particular instance, EVEA was provided adequate notice and a reasonable opportunity to negotiate, but failed to exercise the right to bargain over this matter by failing to formally demand bargaining until September 26, 1983, some three and one-half to four months after the matter was first explored by the parties. This delay, it is argued, amounts to a waiver by inaction of the right to bargain. A review of the bargaining history over this issue simply does not support Respondent's argument . The parties first discussed the LS program in May 1983. Even if this meeting arguably was not a formal negotiating 48
session, the matter was raised and again discussed at the initial contract reopener negotiating session June 7, 1983. Neither party submitted a written proposal concerning the subject. However, the District did orally propose a $1500 annual stipend which EVEA rejected. EVEA took the position that it had to consult with its membership before making a counterproposal. Despite the discussions between the parties on this subject in May, June, August and September 1983, the District contends that the Charging Party failed to formally demand to bargain over the issue until September 26, 1983, which was just after the beginning of school when the LS's were in place and working. This delay, it is argued, amounts to a waiver of the right to bargain. This argument lacks factual support and is therefore rejected. There is no evidence that at any time during the summer 1983 that EVEA indicated it was waiving the right to negotiate over the amount of the stipend or other terms and conditions of employment of learning specialists. on the contrary, EVEA reasonably relied upon Respondent's statements in bargaining meetings in August and early September 1983, when it made inquiries about the status of the LS program, to the effect that the LS program would not be implemented beginning the fall of 1983. Acting upon these representations, EVEA made conditional oral demands to bargain prior to any implementation 49 session, the matter was raised and again discussed at the initial contract reopener negotiating session June 7, 1983. Neither party submitted a written proposal concerning the subject. However, the District did orally propose a $1500 annual stipend which EVEA rejected. EVEA took the position that it had to consult with its membership before making a counterproposal. Despite the discussions between the parties on this subject in May, June, August and September 1983, the District contends that the Charging Party failed to formally demand to bargain over the issue until September 26, 1983, which was just after the beginning of school when the LS's were in place and working. This delay, it is argued, amounts to a waiver of the right to bargain. This argument lacks factual support and is therefore rejected. There is no evidence that at any time during the summer 1983 that EVEA indicated it was waiving the right to negotiate over the amount of the stipend or other terms and conditions of employment of learning specialists. On the contrary, EVEA reasonably relied upon Respondent's statements in bargaining meetings in August and early September 1983, when it made inquiries about the status of the LS program, to the effect that the LS program would not be implemented beginning the fall of 1983. Acting upon these representations, EVEA made conditional oral demands to bargain prior to any implementation 49
of the program. Charging Party contends that Respondent is estopped from characterizing EVEA's failure to insist upon negotiations, in reliance upon material misrepresentations by the Respondent, as a waiver of its rights. Charging Party further asserts that Respondent's conduct in this regard presents a classic case of estoppel in that Respondent, with actual or virtual knowledge of the facts, misrepresented or concealed material facts from the Charging Party, who was actually ignorant of the truth and was induced to rely upon the representations of the Respondent, to its detriment. 7 Witkin, summary of California Law (8th Ed.) Equity, section 133, at pp. 5351-5352, is cited for this proposition. In Newman-Crows Landing Unified School District (1982) PERB Decision No. 223, the Board held that no duty to bargain arose where, after receiving notice of the employer's intention to lay off, the exclusive representative expressed only a desire to negotiate the employer's decision, rather than the effects of the planned layoff "concededly a matter within the scope of representation" as opposed to the nonnegotiable managerial decision to lay off. The Board cautioned, however, that its decision should not be read to impose any strict rule of form as to a request to negotiate. [A] valid request would be found, regardless of its form for the words used, if it adequately signifies a desire to negotiate on a subject within the scope of bargaining. (Newman-crows Landing Unified School District, supra at p. 8.) 50 of the program. Charging Party contends that Respondent is estopped from characterizing EVEA's failure to insist upon negotiations, in reliance upon material misrepresentations by the Respondent, as a waiver of its rights. Charging Party further asserts that Respondent's conduct in this regard presents a classic case of estoppel in that Respondent, with actual or virtual knowledge of the facts, misrepresented or concealed material facts from the Charging Party, who was actually ignorant of the truth and was induced to rely upon the representations of the Respondent, to its detriment. 7 Witkin, Summary of California Law (8th Ed. ) Equity, Section 133, at pp. 5351-5352, is cited for this proposition. In Newman-Crows Landing Unified School District (1982) PERB Decision No. 223, the Board held that no duty to bargain arose where, after receiving notice of the employer's intention to lay off, the exclusive representative expressed only a desire to negotiate the employer's decision, rather than the effects of the planned layoff "concededly a matter within the scope of representation" as opposed to the nonnegotiable managerial decision to lay off. The Board cautioned, however, that its decision should not be read to impose any strict rule of form as to a request to negotiate. [A] valid request would be found, regardless of its form for the words used, if it adequately signifies a desire to negotiate on a subject within the scope of bargaining. (Newman-Crows Landing Unified School District, supra at p. 8.) 50
Thus, the determination as to whether there has been a valid request to negotiate is a question of fact to be resolved on a case-by-case basis. Delano Joint Union High School District (1983) PERB Decision No. 307, at p. 7, citing Newman-Crows Landing Unified School District, supra. Here, the District had notice as early as May 1983 that the Association had concerns about the implementation of the LS program. In August and September 1983, the Association specifically indicated its desire to negotiate. Although no written request nor specific proposal was ever submitted by EVEA during these meetings, EVEA representatives made it known to the District on both occasions (August and September) that, if it were intending to implement the LS program, EVEA definitely wanted to negotiate over the negotiable aspects of that program prior to any implementation. It was after EVEA received written confirmation from Whitlock in mid-September 1983 that the program in fact had been implemented at the beginning of the school year, that a written demand to bargain was sent to Superintendent Flora on September 26, 1983. The September 26 written demand was almost an act of futility by EVEA since the implementation of the program was apparently a fait accompli. It certainly was not the first knowledge that the District had of EVEA's interest in this subject. EVEA 1 s conduct prior to September 26 cannot be ignored. 51 Thus, the determination as to whether there has been a valid request to negotiate is a question of fact to be resolved on a case-by-case basis. Delano Joint Union High School District (1983) PERB Decision No. 307, at p. 7, citing Newman-Crows Landing Unified School District, supra. Here, the District had notice as early as May 1983 that the Association had concerns about the implementation of the LS program. In August and September 1983, the Association specifically indicated its desire to negotiate. Although no written request nor specific proposal was ever submitted by EVEA during these meetings, EVEA representatives made it known to the District on both occasions (August and September ) that, if it were intending to implement the LS program, EVEA definitely wanted to negotiate over the negotiable aspects of that program prior to any implementation. It was after EVEA received written confirmation from Whitlock in mid-September 1983 that the program in fact had been implemented at the beginning of the school year, that a written demand to bargain was sent to Superintendent Flora on September 26, 1983. The September 26 written demand was almost an act of futility by EVEA since the implementation of the program was apparently a fait accompli. It certainly was not the first knowledge that the District had of EVEA's interest in this subject. EVEA's conduct prior to September 26 cannot be ignored. 51
Applying the reasoning set forth in Newman-Crows Landing to the facts of this case, it is determined that the course of communications between the parties was a sufficiently valid request by EVEA to put the District on notice that EVEA desired to hold negotiations on the negotiable effects of the decision to implement the learning specialist program. Consistent with the Board's discussion in Newman-crows Landing, supra, the Respondent's notion that a request for negotiations must meet a strict standard as to form or language is rejected. Absent clear and unequivocal language or conduct to the contrary, PERB will not readily infer that party has waived its statutory right to bargain over a decision not already firmly made by the employer. Amador Valley Joint Union High School District (1978) PERB Decision No. 74. and Sutter Union High School District (1981) PERB Decision No. 175. There has been no such showing in this case. Although the parties had further negotiations in October and November 1983, the District has not pointed to any "clear and unmistakable" language or other conduct by EVEA which points to a waiver of the right to negotiate over this matter. Additionally, Respondent is estopped from asserting a waiver by conduct or inaction where the Charging Party;s forborne insistence upon negotiations in reliance upon material misrepresentations by Respondent at the negotiating table. 52 Applying the reasoning set forth in Newman-Crows Landing to the facts of this case, it is determined that the course of communications between the parties was a sufficiently valid request by EVEA to put the District on notice that EVEA desired to hold negotiations on the negotiable effects of the decision to implement the learning specialist program. Consistent with the Board's discussion in Newman-Crows Landing, supra, the Respondent's notion that a request for negotiations must meet a strict standard as to form or language is rejected. Absent clear and unequivocal language or conduct to the contrary, PERB will not readily infer that party has waived its statutory right to bargain over a decision not already firmly made by the employer. Amador Valley Joint Union High School District (1978) PERB Decision No. 74. and Sutter Union High School District (1981) PERB Decision No. 175. There has been no such showing in this case. Although the parties had further negotiations in October and November 1983, the District has not pointed to any "clear and unmistakable" language or other conduct by EVEA which points to a waiver of the right to negotiate over this matter. Additionally, Respondent is estopped from asserting a waiver by conduct or inaction where the Charging Party's forborne insistence upon negotiations in reliance upon material misrepresentations by Respondent at the negotiating table. 52
Far from explicitly relinquishing or implicitly abandoning its request to negotiate, upon learning the true circumstances of this case, EVEA actively pursued its rights through these unfair practice proceedings. Having determined that the District failed to establish a valid waiver defense, it is concluded that the unilateral implementation of the learning specialist program in the fall 1983 contravened the fundamental purpose of the Act by violating the section 3543.5(c) duty to bargain in good faith. D. Change in Length of Instructional Day In this specification the Charging Party alleges that the District unilaterally increased the length of the instructional day for teachers of grades 4-6 on four parent conference days when students were supposed to be on a minimum day schedule. It is further asserted that this increase of student contact time on days which were set aside for parent conferencing had the impact of increasing the length of the workday for the teachers by decreasing the amount of on-site time during the workday that was to be set aside for parent conferencing. It also added planning and preparation time necessary to teach the additional instructional minutes. Basically, the issue here is an increase of 30 minutes of student contact time on four days the week of November 14, 1983. Because the increase allegedly was 53 Far from explicitly relinquishing or implicitly abandoning its request to negotiate, upon learning the true circumstances of this case, EVEA actively pursued its rights through these unfair practice proceedings. Having determined that the District failed to establish a valid waiver defense, it is concluded that the unilateral implementation of the learning specialist program in the fall 1983 contravened the fundamental purpose of the Act by violating the section 3543.5(c) duty to bargain in good faith. D. Change in Length of Instructional Day In this specification the Charging Party alleges that the District unilaterally increased the length of the instructional day for teachers of grades 4-6 on four parent conference days when students were supposed to be on a minimum day schedule. It is further asserted that this increase of student contact time on days which were set aside for parent conferencing had the impact of increasing the length of the workday for the teachers by decreasing the amount of on-site time during the workday that was to be set aside for parent conferencing. It also added planning and preparation time necessary to teach the additional instructional minutes. Basically, the issue here is an increase of 30 minutes of student contact time on four days the week of November 14, 1983. Because the increase allegedly was 53
implemented without notice to the EVEA, nor an opportunity to meet and negotiate over the matter, it violated the District's statutory obligation to meet and negotiate in good faith with EVEA. The Respondent counters with several arguments. The first is that when the parties negotiated an increase of 15 minutes in the instructional day to begin during the 1983-84 school year, there were no negotiations regarding the specific definition of a "student minimum day" during the parent conference days, nor how the 15 minute increase in contact time for the intermediate grades would be implemented during the student minimum day schedule. It is also contended that the change in the length of the instructional day had no impact on the workday of the affected teachers. Additionally, the District asserts that since the CBA is silent on the question of preparation time, there is no issue with respect to any change in preparation time. Finally, it is argued that the 1983-84 student minimum day schedule during the four parent conference days in question represents a reasonable application of section 7.7 of the CBA which provided for the additional instructional time; and said contract provision constitutes a waiver by contract of any right by EVEA to renegotiate this provision even though there was a subsequent change in circumstances, i.e., a new bus schedule, not contemplated by the parties during their initial negotiations over this 54 implemented without notice to the EVEA, nor an opportunity to meet and negotiate over the matter, it violated the District's statutory obligation to meet and negotiate in good faith with EVEA. The Respondent counters with several arguments. The first is that when the parties negotiated an increase of 15 minutes in the instructional day to begin during the 1983-84 school year, there were no negotiations regarding the specific definition of a "student minimum day" during the parent conference days, nor how the 15 minute increase in contact time for the intermediate grades would be implemented during the student minimum day schedule. It is also contended that the change in the length of the instructional day had no impact on the workday of the affected teachers. Additionally, the District asserts that since the CBA is silent on the question of preparation time, there is no issue with respect to any change in preparation time. Finally, it is argued that the 1983-84 student minimum day schedule during the four parent conference days in question represents a reasonable application of section 7.7 of the CBA which provided for the additional instructional time; and said contract provision constitutes a waiver by contract of any right by EVEA to renegotiate this provision even though there was a subsequent change in circumstances, i.e., a new bus schedule, not contemplated by the parties during their initial negotiations over this 54
subject. The District cites Mt. Diablo Unified school District, supra, as support for the latter argument. It is a well-established PERB precedent that the length of the instructional day is a matter within the scope of representation. See San Mateo City School District, supra; Healdsburg Union High School District (1980) PERB Decision No. 132, and Sutter Union High School District (1981) PERB Decision No. 175. That principle is not contested in this case. What is disputed is whether the negotiations and subsequent agreement concerning an increase in the length of the instructional day constituted a waiver by EVEA barring further negotiations on this issue as it relates to the student minimum days. There is no dispute about the negotiated increase of instructional time for the intermediate grades (4-6) and the implementation of such increase. Beginning in fall 1983, the District increased the instructional time for grades 4 and 5 by 15 minutes and added 10 minutes for grade 6 instructional day that was in effect for the 1982-83 school year. Although the CBA made a specific reference to "student minimum day, 11 neither the agreement nor any District policy specifically defines the term. It is established that in the past the District has followed the state-established standard of 240 minutes in determining the minimum instructional day for grades 4-6. 55 subject. The District cites Mt. Diablo Unified School District, supra, as support for the latter argument. It is a well-established PERB precedent that the length of the instructional day is a matter within the scope of representation. See San Mateo City School District, supra; Healdsburg Union High School District (1980) PERB Decision No. 132, and Sutter Union High School District (1981) PERB Decision No. 175. That principle is not contested in this case . What is disputed is whether the negotiations and subsequent agreement concerning an increase in the length of the instructional day constituted a waiver by EVEA barring further negotiations on this issue as it relates to the student minimum days. There is no dispute about the negotiated increase of instructional time for the intermediate grades (4-6) and the implementation of such increase. Beginning in fall 1983, the District increased the instructional time for grades 4 and 5 by 15 minutes and added 10 minutes for grade 6 instructional day that was in effect for the 1982-83 school year. Although the CBA made a specific reference to "student minimum day, " neither the agreement nor any District policy specifically defines the term. It is established that in the past the District has followed the state-established standard of 240 minutes in determining the minimum instructional day for grades 4-6. 55
By including the increased minutes permitted by section 7.7, as noted above, to the 240 minute minimum day previously followed, the District increased the minimum day schedule for 1983-84 to 250 minutes, which was 10 minutes beyond the state minimum. However, that 10 minutes is not, and cannot be disputed by EVEA because the parties did not expressly exclude the application of section 7.7 to the minimum day schedule during the fall 1983 parent conference week. It is therefore found that, even if EVEA were disputing this time, section 7.7 constitutes an express waiver on that point. However, the additional 30 minutes at issue here, was time added to the minimum student day beyond the 250 minutes discussed above, to accommodate the needs of the school's new bus contractor. The student contact time was 5-1/4 hours which represented an increase of 45 minutes for grades 4 and 5, and 40 minutes for grade 6. This time was added without: (1) notice to EVEA; (2J an opportunity for EVEA to negotiate or (3) any actual implied waiver or consent by EVEA. The language of section 7.7 is plain and unambiguous. It cannot be read as being inclusive of this latter increase. The District's argument that the additional 30 minutes was a "reasonable application" of this contract provision must be rejected. The District's defense of wno impactw is now considered. Basically, it is further argued that the increased student 56 By including the increased minutes permitted by section 7.7, as noted above, to the 240 minute minimum day previously followed, the District increased the minimum day schedule for 1983-84 to 250 minutes, which was 10 minutes beyond the state minimum. However, that 10 minutes is not, and cannot be disputed by EVEA because the parties did not expressly exclude the application of section 7.7 to the minimum day schedule during the fall 1983 parent conference week. It is therefore found that, even if EVEA were disputing this time, section 7.7 constitutes an express waiver on that point. However, the additional 30 minutes at issue here, was time added to the minimum student day beyond the 250 minutes discussed above, to accommodate the needs of the school's new bus contractor. The student contact time was 5-1/4 hours which represented an increase of 45 minutes for grades 4 and 5, and 40 minutes for grade 6. This time was added without: (1) notice to EVEA; (2) an opportunity for EVEA to negotiate or (3) any actual implied waiver or consent by EVEA. The language of section 7.7 is plain and unambiguous. It cannot be read as being inclusive of this latter increase. The District's argument that the additional 30 minutes was a "reasonable application" of this contract provision must be rejected. The District's defense of "no impact" is now considered. Basically, it is further argued that the increased student 56
contact time had no impact on the length of the teachers' instructional day and that, even if it did, the preparation time attendant to this additional instructional time is an extension of the teachers' basic working day. In San Mateo City School District, supra, the Board addressed the question of preparation time as it relates to the hours of employment. In discussing instructional day and preparation time, the Board stated: [T]he instructional day includes two distinguishable elements: the amount of time students are required to be in school for instruction and the amount of time teachers are required to spend during the working day instructing students. Although the two may coincide, they're not necessarily identical. Nor, is the teachers' instructional day synonymous with their working day •••• some portion of the workday has been utilized for instructional and it is undisputed that the District requires and the job mandates that teachers spend some time in that activity.1 preparation 1 Although the CBA in this case is silent as to defining or recognizing preparation as a component of the teachers' employment obligation, there is sufficient evidence to demonstrate that an increase in the students' instructional day llThe Board noted that while the definition of preparation time was not clearly demonstrated in the record before it, it apparently included planning for and preparation of the subject matter to be covered in class, arranging for the availability and distribution of teaching aids and materials, and review of student records; in brief, a combination of professional and administerial activities designed to expedite the presentation of educational subject matter. 57 contact time had no impact on the length of the teachers' instructional day and that, even if it did, the preparation time attendant to this additional instructional time is an extension of the teachers' basic working day. In San Mateo City School District, supra, the Board addressed the question of preparation time as it relates to the hours of employment. In discussing instructional day and preparation time, the Board stated: [T]he instructional day includes two distinguishable elements: the amount of time students are required to be in school for instruction and the amount of time teachers are required to spend during the working day instructing students. Although the two may coincide, they're not necessarily identical. Nor, is the teachers' instructional day synonymous with their working day . . Some portion of the workday has been utilized for instructional preparation and it is undisputed that the District requires and the job mandates that teachers spend some time in that activity. If Although the CBA in this case is silent as to defining or recognizing preparation as a component of the teachers' employment obligation, there is sufficient evidence to demonstrate that an increase in the students' instructional day 1lThe Board noted that while the definition of preparation time was not clearly demonstrated in the record before it, it apparently included planning for and preparation of the subject matter to be covered in class, arranging for the availability and distribution of teaching aids and materials, and review of student records; in brief, a combination of professional and administerial activities designed to expedite the presentation of educational subject matter. 57
foreseeably resulted in having an effect on the teachers' instructional day and preparation time. San Mateo, supra. Here, the length of the teachers' instructional day was unilaterally altered by the District beyond the time that was bilaterally negotiated with the exclusive representative. The effect of the increase of 30 minutes per day on the students' minimum day schedule was to reduce the amount of time available for required preparation and parent conferencing. District witness, Keith McCarthy, acknowledged that the District expected teachers to maintain the same quality of instruction on the minimum day schedule as required on a regular instructional day. Consequently, the affected teachers were expected to do necessary preparation and planning for the additional 30 minutes of instructional time. several teacher witnesses testified about the effect of the increased instructional time on the amount of time that they As a requirement of teaching, "job" preparation time is a component of the teachers' employment obligation in the same sense as classroom instruction and other mandated duties such as parent-teacher conferences, giving examinations, or grading students. The Board went on to say that while it may be conceded for purposes of the case, the matter not being an issue, that the District's requirement that teachers "prepare" for instruction is a matter of managerial prerogative not subject to negotiations, to the extent that requirement relates to the teachers 1 hours of employment, the matter is subject to bilateral determination. San Mateo City School District, supra at pp. 15-17. 58 foreseeably resulted in having an effect on the teachers' instructional day and preparation time. San Mateo, supra. Here, the length of the teachers' instructional day was unilaterally altered by the District beyond the time that was bilaterally negotiated with the exclusive representative. The effect of the increase of 30 minutes per day on the students' minimum day schedule was to reduce the amount of time available for required preparation and parent conferencing. District witness, Keith Mccarthy, acknowledged that the District expected teachers to maintain the same quality of instruction on the minimum day schedule as required on a regular instructional day . Consequently, the affected teachers were expected to do necessary preparation and planning for the additional 30 minutes of instructional time. Several teacher witnesses testified about the effect of the increased instructional time on the amount of time that they As a requirement of teaching, "job" preparation time is a component of the teachers' employment obligation in the same sense as classroom instruction and other mandated duties such as parent-teacher conferences, giving examinations, or grading students . The Board went on to say that while it may be conceded for purposes of the case, the matter not being an issue, that the District's requirement that teachers "prepare" for instruction is a matter of managerial prerogative not subject to negotiations, to the extent that requirement relates to the teachers' hours of employment, the matter is subject to bilateral determination. San Mateo City School District, supra at pp. 15-17. 58
were required to spend outside their regular seven and one-half hour workday to complete preparation for their regular classroom instruction, in addition to preparation and for the parent conferencing sessions. This time varied from 25-45 minutes per day per teacher beyond the regular 7-1/2 hour workday. To the extent that the preparation time is a condition of employment which relates to hours of employment, as in this case, it is properly a subject of negotiations and may not be unilaterally increased. san Mateo, supra at p. 17. There is nothing in the language, of section 7.7 from which it can be reasonably inferred that EVEA waived its statutory right to further negotiations over this subject. Thus, the District 1 s final proffered excuse of "changed circumstances" does not rise to the level of business nor operational necessity which would justify its unilateral actions in this regard. For all the foregoing reasons, it is found that the District violated section 3543.5(c) of the EERA by refusing and failing to meet and negotiate in good faith with EVEA over the decision to increase the teachers' instructional day and preparation time in the fall of 1983. E. Reduction in Work Year of Bilingual Facilitator The issues raised by LA-CE-1827, paragraph 3(f) and LA-CE-2031 are the same, except that they involve two different 59 were required to spend outside their regular seven and one-half hour workday to complete preparation for their regular classroom instruction, in addition to preparation and for the parent conferencing sessions. This time varied from 25-45 minutes per day per teacher beyond the regular 7-1/2 hour workday. To the extent that the preparation time is a condition of employment which relates to hours of employment, as in this case, it is properly a subject of negotiations and may not be unilaterally increased. San Mateo, supra at p. 17. There is nothing in the language, of section 7.7 from which it can be reasonably inferred that EVEA waived its statutory right to further negotiations over this subject. Thus, the District's final proffered excuse of "changed circumstances" does not rise to the level of business nor operational necessity which would justify its unilateral actions in this regard. For all the foregoing reasons, it is found that the District violated section 3543.5(c) of the EERA by refusing and failing to meet and negotiate in good faith with EVEA over the decision to increase the teachers' instructional day and preparation time in the fall of 1983. E. Reduction in Work Year of Bilingual Facilitator The issues raised by LA-CE-1827, paragraph 3(f ) and LA-CE-2031 are the same, except that they involve two different 59
school years. For this reason they will be discussed here concurrently. In both charges, EVEA contends that when the District agreed to a reduced work year for Judith Reising, a member of the certificated bargaining unit employed as the District bilingual facilitator, the Respondent engaged in direct dealing or negotiations with a unit member in derogation of the statutory rights to representation granted to EVEA as the exclusive representative. In charge LA-CE-1827, the Respondent admits taking action to reduce the work year of Judith Reising for the 1983-84 school year, but denies that its conduct, in this regard, amounted to direct dealing or bypass of EVEA. In charge LA-CE-2031, the Respondent denies reducing Reising•s work year for the 1984-85 school year. Instead, it asserts that it granted a limited childbearing leave as provided for by a provision of the CBA. Section 3543.5 provides that it is unlawful for a public school employer to deny to employee organizations rights guaranteed to them by the EERA, or to refuse or fail to meet and negotiate in good faith with an exclusive representative. section 3543.l(a) 12 gives the exclusive representative 12section 3543.l(a) reads: Employee organizations shall have the right to represent their members in their 60 school years. For this reason they will be discussed here concurrently. In both charges, EVEA contends that when the District agreed to a reduced work year for Judith Reising, a member of the certificated bargaining unit employed as the District bilingual facilitator, the Respondent engaged in direct dealing or negotiations with a unit member in derogation of the statutory rights to representation granted to EVEA as the exclusive representative. In charge LA-CE-1827, the Respondent admits taking action to reduce the work year of Judith Reising for the 1983-84 school year, but denies that its conduct, in this regard, amounted to direct dealing or bypass of EVEA. In charge LA-CE-2031, the Respondent denies reducing Reising's work year for the 1984-85 school year. Instead, it asserts that it granted a limited childbearing leave as provided for by a provision of the CBA. Section 3543.5 provides that it is unlawful for a public school employer to deny to employee organizations rights guaranteed to them by the EERA, or to refuse or fail to meet and negotiate in good faith with an exclusive representative. Section 3543.1(a) gives the exclusive representative 12section 3543.1(a ) reads: Employee organizations shall have the right to represent their members in their 60
the right to represent its bargaining unit members in their employment relations with the employer. Likewise, section 3543.3 13 obligates the employer to meet and negotiate only with the exclusive representative of a group of given employees, upon request, with regard to matters within the scope of representation. In Walnut Valley Unified School District (1981) PERB Decision No. 160, the Board addressed a charge of bypassing the exclusive representative where the employer extended overtime opportunities to four members of the bargaining unit. The Board said: The law regarding employers negotiating directly with their employees and bypassing the designated bargaining representative is clear. Section 3543.3 of the EERA, requires the employer to negotiate and bargain in good faith once an employee organization has been duly designated as the exclusive representative for a given group of employment relations with public school employers, except that once an employee organization is recognized or certified as the exclusive representative of an appropriate unit pursuant to Section 3544.1 or 3544.7, respectively, only that employee organization may represent that unit in their employment relations with the public school employer. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. 13see fn. 2, supra. 61 the right to represent its bargaining unit members in their employment relations with the employer. Likewise, section 3543.3 obligates the employer to meet and negotiate only with the exclusive representative of a group of given employees, upon request, with regard to matters within the scope of representation. In Walnut Valley Unified School District (1981) PERB Decision No. 160, the Board addressed a charge of bypassing the exclusive representative where the employer extended overtime opportunities to four members of the bargaining unit. The Board said: The law regarding employers negotiating directly with their employees and bypassing the designated bargaining representative is clear. Section 3543.3 of the EERA, requires the employer to negotiate and bargain in good faith once an employee organization has been duly designated as the exclusive representative for a given group of employment relations with public school employers, except that once an employee organization is recognized or certified as the exclusive representative of an appropriate unit pursuant to Section 3544.1 or 3544.7, respectively, only that employee organization may represent that unit in their employment relations with the public school employer. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. 13 see fn. 2, supra. 61
employees3 This obligation imposes on the employer the requirement that it provide the exclusive representative with notice and the opportunity to negotiate on proposed changes of matters within the scope of representation. Unilateral action taken without fulfilling this obligation constitutes a refusal to negotiate in good faith. San Mateo county CCD PERB Decision No. 94 (6/8/79). An employer may not, in the presence of an exclusive representative, unilaterally establish or modify existing policies covering, for example, overtime pay rates, the selection of employees to work overtime, or the definition of overtime hours. (Underlining in original. Footnote as per original, omitted.) as per original, omitted. ) In Walnut Valley, PERB held that in order to prove that the employer has unlawfully bypassed the exclusive representative by "negotiating" directly with unit employees, it must be demonstrated that the District sought either to create a new policy of general application or to obtain a waiver or modification of existing policy applicable to such employees. This case does not address overtime policy, but rather the work year of a unit employee, a matter similarly within the scope of representation. Sometime during the summer of 1983, while the District and EVEA were commencing contract reopener negotiations, Reising approached Superintendent Flora with her request to reduce her work year for the 1983-84 school year from the 186 days she had worked during the 1982-83 school year to 166 days. The District board acted to approve Reising 1 s request, a reduction of her work year on August 26, 1983. The 62 employees This obligation imposes on the employer the requirement that it provide the exclusive representative with notice and the opportunity to negotiate on proposed changes of matters within the scope of representation. Unilateral action taken without fulfilling this obligation constitutes a refusal to negotiate in good faith. San Mateo County CCD PERB Decision No. 94 (6/8/79). An employer may not, in the presence of an exclusive representative, unilaterally establish or modify existing policies covering, for example, overtime pay rates, the selection of employees to work overtime, or the definition of overtime hours. ( Underlining in original. Footnote In Walnut Valley, PERB held that in order to prove that the employer has unlawfully bypassed the exclusive representative by "negotiating" directly with unit employees, it must be demonstrated that the District sought either to create a new policy of general application or to obtain a waiver or modification of existing policy applicable to such employees. This case does not address overtime policy, but rather the work year of a unit employee, a matter similarly within the scope of representation. Sometime during the summer of 1983, while the District and EVEA were commencing contract reopener negotiations, Reising approached Superintendent Flora with her request to reduce her work year for the 1983-84 school year from the 186 days she had worked during the 1982-83 school year to 166 days. The District board acted to approve Reising's request, a reduction of her work year on August 26, 1983. The 62
subsequent exchange of memoranda between Reising and Flora, concerning this action, indicates an attempt by Reising to negotiate with Flora concerning various terms and conditions of her employment in connection with the reduction in the number of days that she wanted to work during the ensuing school year. Flora's memo to Reising dated August 29, 1983, stated that "your contract" will be changed to reflect the reduction in workdays. Although the District denies it, its conduct, in this regard, amounted to direct dealing with Reising. There is no evidence that any attempt was made to involve EVEA, in any way, in the process that led to the approval of the reduced work year. The CBA, which had been ratified by the parties on April 1983, provided for a work year for returning unit members of 179 days. Additionally, other terms and conditions of employment, such as seniority credit, salary increments, were covered by the same agreement. Although Reising's memo of August 25, 1983, to Flora showed that a carbon copy was sent to Dee Thomas, president of EVEA, there was no subsequent reference mentioned in Reising 1 s memo to Flora that Thomas on behalf of EVEA, had questioned the propriety of the action in question and expressed EVEA's interest in being involved in this process. Likewise, Flora's memo to Reising did not make any reference to the CBA or EVEA's need to be involved or informed about this action. 63 subsequent exchange of memoranda between Reising and Flora, concerning this action, indicates an attempt by Reising to negotiate with Flora concerning various terms and conditions of her employment in connection with the reduction in the number of days that she wanted to work during the ensuing school year. Flora's memo to Reising dated August 29, 1983, stated that "your contract" will be changed to reflect the reduction in workdays. Although the District denies it, its conduct, in this regard, amounted to direct dealing with Reising. There is no evidence that any attempt was made to involve EVEA, in any way, in the process that led to the approval of the reduced work year . The CBA, which had been ratified by the parties on April 1983, provided for a work year for returning unit members of 179 days. Additionally, other terms and conditions of employment, such as seniority credit, salary increments, were covered by the same agreement. Although Reising's memo of August 25, 1983, to Flora showed that a carbon copy was sent to Dee Thomas, president of EVEA, there was no subsequent reference mentioned in Reising's memo to Flora that Thomas on behalf of EVEA, had questioned the propriety of the action in question and expressed EVEA's interest in being involved in this process. Likewise, Flora's memo to Reising did not make any reference to the CBA or EVEA's need to be involved or informed about this action. 63
Again in the summer of 1984, upon hearing a rumor that Reising was going to request another reduction in her work year, Caldwell, on behalf of EVEA, approached Reising in anticipation of this action and requested that she pursue it through the exclusive representative. Instead of involving EVEA or allowing the organization to proceed on her behalf, Reising herself again requested a reduction of her 1984-85 work year to have child-rearing time with her daughter. This time her request included a list of six "stipulations" covering various terms and conditions of employment which Reising sought as a condition for the leave being approved. Though this memo showed that a copy was sent to the EVEA, there was a statement in the memo to indicate that the request was being sought through EVEA as the exclusive representative acting on Reising 1 s behalf. Although Reising again obtained the District board's approval of her request for a 40 percent leave, i.e., reduction of the work year, she was not able to obtain the additional terms sought as part of negotiated package. After Reising rejected the terms and conditions which were applicable to her leave, she sought the assistance of EVEA and the District in resolving the work year problem during their negotiations of items subject to the contract reopener provision. Failing to obtain a satisfactory resolution of her problem, Reising then approached Flora who unilaterally advised her to 64 Again in the summer of 1984, upon hearing a rumor that Reising was going to request another reduction in her work year, Caldwell, on behalf of EVEA, approached Reising in anticipation of this action and requested that she pursue it through the exclusive representative. Instead of involving EVEA or allowing the organization to proceed on her behalf, Reising herself again requested a reduction of her 1984-85 work year to have child-rearing time with her daughter. This time her request included a list of six "stipulations" covering various terms and conditions of employment which Reising sought as a condition for the leave being approved. Though this memo showed that a copy was sent to the EVEA, there was a statement in the memo to indicate that the request was being sought through EVEA as the exclusive representative acting on Reising's behalf. Although Reising again obtained the District board's approval of her request for a 40 percent leave, i. e., reduction of the work year, she was not able to obtain the additional terms sought as part of the negotiated package. After Reising rejected the terms and conditions which were applicable to her leave, she sought the assistance of EVEA and the District in resolving the work year problem during their negotiations of items subject to the contract reopener provision. Failing to obtain a satisfactory resolution of her problem, Reising then approached Flora who unilaterally advised her to 64
work the same reduced work year during the 1984-85 school year that the District had approved for the 1983-84 school year. Again, there is no evidence that prior to making this decision, Flora provided EVEA with notice or an opportunity to meet and negotiate over this decision. The District has offered no defense of its actions with respect to the reduction of Reising's 1983-84 school year, except to deny bypass of EVEA. Its characterization of the change in the work year for the 1984-85 school year as child-rearing leave is not convincing. The work year of employees represented by EVEA is specifically defined in Article 7.0 of the CBA. The only exceptions are expressly set forth in the language itself. (Seep. 10, supra.) The stated exceptions do not refer to the bilingual facilitator position. Nor does the language provide for a "reduced work yearn for any unit member. The District's limited leave policy that was referred to when Reising 1 s 1983-84 work year reduction was approved, does not expressly provide for a reduced work year. Thus, the District's action on August 26, 1983, approving such change, must be viewed as a unilateral change of policy of general application with respect to existing District policy and the CBA. Additionally, such action was the result of direct dealing between an individual bargaining unit employee and 65 work the same reduced work year during the 1984-85 school year that the District had approved for the 1983-84 school year. Again, there is no evidence that prior to making this decision, Flora provided EVEA with notice or an opportunity to meet and negotiate over this decision. The District has offered no defense of its actions with respect to the reduction of Reising's 1983-84 school year, except to deny bypass of EVEA. Its characterization of the change in the work year for the 1984-85 school year as child-rearing leave is not convincing. The work year of employees represented by EVEA is specifically defined in Article 7.0 of the CBA. The only exceptions are expressly set forth in the language itself. (See p. 10, supra. ) The stated exceptions do not refer to the bilingual facilitator position. Nor does the language provide for a "reduced work year" for any unit member. The District's limited leave policy that was referred to when Reising's 1983-84 work year reduction was approved, does not expressly provide for a reduced work year. Thus, the District's action on August 26, 1983, approving such change, must be viewed as a unilateral change of policy of general application with respect to existing District policy and the CBA. Additionally, such action was the result of direct dealing between an individual bargaining unit employee and 65
District administrative personnel. This action, as well as the District board's subsequent approval, all occurred without notice to EVEA nor an opportunity for EVEA to represent the employee involved or the interest of the entire bargaining unit. This action constitutes bypass of EVEA as the exclusive representative and is a violation of the duty to meet and negotiate with the exclusive representative as required by sections 3543.3 and 3543.S(c). The following year when the District board took action on July 5, 1984, to grant Reising an "unpaid child-rearing leave, .4 of 1984-85 school year," this action was taken prior to any formal notification by the District to EVEA that such action was being contemplated. Additionally, it occurred despite efforts by EVEA in June and early July 1984, with both Reising and Flora, to be included in working out a resolution for Reising that would also protect the integrity of the collective bargaining process. Flora's subsequent directive to Reising in September 1984 about working a reduced year for the 1984-85 school year was not made known to EVEA until it was revealed during the unfair practice hearing in this case. Flora admitted that this decision was never reduced to writing, nor otherwise made official by him because the matter remained on hold pending the outcome of these proceedings. All these actions clearly 66 District administrative personnel. This action, as well as the District board's subsequent approval, all occurred without notice to EVEA nor an opportunity for EVEA to represent the employee involved or the interest of the entire bargaining unit. This action constitutes bypass of EVEA as the exclusive representative and is a violation of the duty to meet and negotiate with the exclusive representative as required by sections 3543.3 and 3543.5(c). The following year when the District board took action on July 5, 1984, to grant Reising an "unpaid child-rearing leave, . 4 of 1984-85 school year, " this action was taken prior to any formal notification by the District to EVEA that such action was being contemplated. Additionally, it occurred despite efforts by EVEA in June and early July 1984, with both Reising and Flora, to be included in working out a resolution for Reising that would also protect the integrity of the collective bargaining process. Flora's subsequent directive to Reising in September 1984 about working a reduced year for the 1984-85 school year was not made known to EVEA until it was revealed during the unfair practice hearing in this case. Flora admitted that this decision was never reduced to writing, nor otherwise made official by him because the matter remained on hold pending the outcome of these proceedings. All these actions clearly 66
fall within the ambit of the standard of proof established in Walnut Valley Unified School District, supra. In his July 17, 1984, memo to Reising, Flora acknowledged that Reising's leave request was "relatively rare" and "may be ••• subject to review by EVEA." However, these statements were all subsequent to formal action by the District board. Flora's statement that the type of leave granted to Reising was "relatively rare" is viewed as evidence that the District's application of the child-rearing leave provision to Reising 1 s case was not encompassed by section 13,8 of the CBA. Contrary to the District's contentions about its 1984 action, it is clear that the exchange of memoranda between Reising and Flora in 1984 and their subsequent discussions concerning changes in her work year were a form of negotiations over matters within the scope of representation. As an outcome of this process, the District's board unilaterally altered the application of a leave provision of the CBA and reduced an individual employee's work year from that established by an express term of the collective agreement between the District and EVEA. The District also proposed modifying other terms and conditions of Reising 1 s employment for the 1984-85 school year. Reising 1 s later rejection of the terms of employment approved by the District with her leave/reduced work year request does not moot the effect of the unlawful action. 67 fall within the ambit of the standard of proof established in Walnut Valley Unified School District, supra. In his July 17, 1984, memo to Reising, Flora acknowledged that Reising's leave request was "relatively rare" and "may be . subject to review by EVEA." However, these statements were all subsequent to formal action by the District board. Flora's statement that the type of leave granted to Reising was "relatively rare" is viewed as evidence that the District's application of the child-rearing leave provision to Reising's case was not encompassed by section 13.8 of the CBA. Contrary to the District's contentions about its 1984 action, it is clear that the exchange of memoranda between Reising and Flora in 1984 and their subsequent discussions concerning changes in her work year were a form of negotiations over matters within the scope of representation. As an outcome of this process, the District's board unilaterally altered the application of a leave provision of the CBA and reduced an individual employee's work year from that established by an express term of the collective agreement between the District and EVEA. The District also proposed modifying other terms and conditions of Reising's employment for the 1984-85 school year. Reising's later rejection of the terms of employment approved by the District with her leave/reduced work year request does not moot the effect of the unlawful action. 67
In J. I. case Co. v. NLRB (1944) 321 U.S. 332, [88 L. Ed. 762] cited by PERB in San Francisco Community College District (1979) PERB Decision No. 105, the United States Supreme court said: The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his pre-existing contract of employment. In the Modesto City Schools (1983) PERB Decision No. 291, the PERB found a direct offer to employees; without such offer first being communicated to the exclusive representative, to be a violation of the employer's obligation to bargain only with the exclusive representative. Here, not only did the District agree to terms of employment which were at variance with those provided for in the collective agreement, it did so without first providing the exclusive representative with an opportunity to negotiate the matter. By such actions in both 1983 and 1984, it is concluded that the District violated its duty to bargain in good faith by bypassing the exclusive representative and securing employment contracts with an individual member of the bargaining unit with terms different than those provided for by the collective bargaining agreement. This conduct is a derogation of the duty imposed by section 3543.3 and, thereby, violates section 3543.5(c). 68 In J. I. Case Co. V. NLRB (1944) 321 U.S. 332, [88 L. Ed. 762] cited by PERB in San Francisco Community College District (1979) PERB Decision No. 105, the United States Supreme Court said: The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his pre-existing contract of employment. In the Modesto City Schools (1983) PERB Decision No. 291, the PERB found a direct offer to employees, without such offer first being communicated to the exclusive representative, to be a violation of the employer's obligation to bargain only with the exclusive representative. Here, not only did the District agree to terms of employment which were at variance with those provided for in the collective agreement, it did so without first providing the exclusive representative with an opportunity to negotiate the matter. By such actions in both 1983 and 1984, it is concluded that the District violated its duty to bargain in good faith by bypassing the exclusive representative and securing employment contracts with an individual member of the bargaining unit with terms different than those provided for by the collective bargaining agreement . This conduct is a derogation of the duty imposed by section 3543.3 and, thereby, violates section 3543.5(c). 68
CONCLUSION It is concluded that with respect to the allegations contained in case numbers LA-CE-1827, paragraphs 2, 3(b), 3(c), 3(e), and 3(f), and LA-CE-2031, charging the District with unlawful unilateral actions because of a failure to meet and negotiate with EVEA in good faith prior to such actions, where violations of section 3543.S(c) were found, this conduct concurrently violated section 3543.S(a) and (b) of the Act. San Francisco Community College District, supra. With regard to case number LA-CE-2031, the Respondent's motion to dismiss is denied. charging Party's motion to amend the pleadings to conform to evidence presented during the hearing is granted. REMEDY Section 3541.S(c) authorizes the PERB to: .•. issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. In a unilateral change case, it has been the practice of PERB to order the employer to cease and desist from its unlawful action, to restore the status quo ante, and to require the employer to make affected employees whole for monetary losses incurred as a result of the employer's unlawful conduct. Rio Hondo Community College District (1983) PERB 69 CONCLUSION It is concluded that with respect to the allegations contained in case numbers LA-CE-1827, paragraphs 2, 3(b) , 3(c), 3(e), and 3(f), and LA-CE-2031, charging the District with unlawful unilateral actions because of a failure to meet and negotiate with EVEA in good faith prior to such actions, where violations of section 3543.5(c) were found, this conduct concurrently violated section 3543.5(a ) and (b) of the Act. San Francisco Community College District, supra. With regard to case number LA-CE-2031, the Respondent's motion to dismiss is denied. Charging Party's motion to amend the pleadings to conform to evidence presented during the hearing is granted. REMEDY Section 3541.5(c) authorizes the PERB to: issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. In a unilateral change case, it has been the practice of PERB to order the employer to cease and desist from its unlawful action, to restore the status quo ante, and to require the employer to make affected employees whole for monetary losses incurred as a result of the employer's unlawful conduct . Rio Hondo Community College District (1983) PERB 69
Decision No. 292. It is appropriate, therefore, to order the District to cease and desist from such unlawful conduct as has been found above. The EVEA seeks an order restoring the status quo of benefits improperly enhanced or reduced by the District, and to pay to employees represented by EVEA who were obliged, as a result of the District's unlawful actions, to work either additional time beyond their regular workdays or increased student instructional time, appropriate compensation for the increased time. In corning union High School District (1984) PERB Decision No. 399, a case in which PERB found that a school district had unlawfully eliminated certain teachers' preparation periods, PERB issued a remedial order which had two alternative methods of compensating those employees who were required to work longer hours than had been agreed to. The Board ordered the District to compensate the affected employees by giving them paid time off work •which comports with the number of extra hours each employee actually worked." In the alternative, the Board ordered that if the district and the employee organization were unable to agree on the manner in which the time off would be granted, "the employees concerning whom there is no agreement shall receive monetary compensation commensurate with the extra hours worked." That precedent will be followed here with respect to the District's unilateral actions in the fall of 1983 which 70 Decision No. 292. It is appropriate, therefore, to order the District to cease and desist from such unlawful conduct as has been found above. The EVEA seeks an order restoring the status quo of benefits improperly enhanced or reduced by the District, and to pay to employees represented by EVEA who were obliged, as a result of the District's unlawful actions, to work either additional time beyond their regular workdays or increased student instructional time, appropriate compensation for the increased time. In Corning Union High School District (1984) PERB Decision No. 399, a case in which PERB found that a school district had unlawfully eliminated certain teachers' preparation periods, PERB issued a remedial order which had two alternative methods of compensating those employees who were required to work longer hours than had been agreed to. The Board ordered the District to compensate the affected employees by giving them paid time off work "which comports with the number of extra hours each employee actually worked. " In the alternative, the Board ordered that if the district and the employee organization were unable to agree on the manner in which the time off would be granted, "the employees concerning whom there is no agreement shall receive monetary compensation commensurate with the extra hours worked." That precedent will be followed here with respect to the District's unilateral actions in the fall of 1983 which 70
resulted in increasing the amount of non-classroom preparation required of teachers affected by (1) the reduction in instructional aide time beyond what it was during the preceding school year or (2) an increase in student instructional time on student minimum days in mid-November 1983 beyond the increase negotiated with the exclusive representative. It is recognized that for this part of the order, the evidence is incomplete about the actual amount of preparation time worked by each affected teacher after both unilateral changes. Only teachers who reduced their preparation effort could have avoided lengthening their workday. There is no credible evidence that any teacher chose this path. Despite this lack of concrete proof, the make-whole remedy is appropriate. It is possible that specific teachers might have reduced their preparation time during the fall 1983 time when their assigned aide time was either reduced or eliminated completely and again during the week of November 14, 1983, on the four minimum days in question; and as a result, did not have a longer working day or week. If the parties cannot, by their own efforts, agree on amounts of money or compensatory time due, the question of each teacher 1 s entitlement is left to a compliance proceeding. The order, therefore, establishes that teachers who did work longer days as a result of the subject 71 resulted in increasing the amount of non-classroom preparation required of teachers affected by (1) the reduction in instructional aide time beyond what it was during the preceding school year or (2) an increase in student instructional time on student minimum days in mid-November 1983 beyond the increase negotiated with the exclusive representative. It is recognized that for this part of the order, the evidence is incomplete about the actual amount of preparation time worked by each affected teacher after both unilateral changes. Only teachers who reduced their preparation effort could have avoided lengthening their workday. There is no credible evidence that any teacher chose this path. Despite this lack of concrete proof, the make-whole remedy is appropriate. It is possible that specific teachers might have reduced their preparation time during the fall 1983 time when their assigned aide time was either reduced or eliminated completely and again during the week of November 14, 1983, on the four minimum days in question; and as a result, did not have a longer working day or week. If the parties cannot, by their own efforts, agree on amounts of money or compensatory time due, the question of each teacher's entitlement is left to a compliance proceeding. The order, therefore, establishes that teachers who did work longer days as a result of the subject 71
unilateral changes are entitled to additional compensation or paid time off. 14 It is also appropriate to order the District to rescind the practice that modified the compensation of certain bargaining unit members from an hourly rate to a per diem rate for work performed during the summer of 1983; and to compensate any affected employees for monetary losses suffered as a result of this unilateral change. All payments shall include 10 percent per annum interest. A more difficult problem concerns the fashioning of a remedy regarding the learning specialist program. It is recognized that the individuals employed in these positions during the 1983-84 and 1984-85 school year may have already received the annual $1500 stipend for both school years in question. To order a complete restoration of the status quo ante as to compensation already received could impose a severe hardship on the affected employees by requiring that any stipends received be repaid to the District. In recognition of this circumstance, it is therefore appropriate to order the District to cease and desist from l4PERB has issued similar orders in other unilateral change cases, in which the entitlement of various individuals to monetary compensation was uncertain. Oakland Unified School District (1980) PERE Decision No. 126, aff'd, Oakland Unified school District v. PERB, 120 cal.App • .3d 1007 (1981) and Lincoln Unified School District (1984), PERB Decision No. 465. 72 unilateral changes are entitled to additional compensation or paid time off . 14 It is also appropriate to order the District to rescind the practice that modified the compensation of certain bargaining unit members from an hourly rate to a per diem rate for work performed during the summer of 1983; and to compensate any affected employees for monetary losses suffered as a result of this unilateral change. All payments shall include 10 percent per annum interest. A more difficult problem concerns the fashioning of a remedy regarding the learning specialist program. It is recognized that the individuals employed in these positions during the 1983-84 and 1984-85 school year may have already received the annual $1500 stipend for both school years in question. To order a complete restoration of the status quo ante as to compensation already received could impose a severe hardship on the affected employees by requiring that any stipends received be repaid to the District. In recognition of this circumstance, it is therefore appropriate to order the District to cease and desist from 14PERB has issued similar orders in other unilateral change cases, in which the entitlement of various individuals to monetary compensation was uncertain. Oakland Unified School District (1980) PERB Decision No. 126, aff'd, Oakland Unified School District v. PERB, 120 cal . App. 3d 1007 (1981) and Lincoln Unified School District (1984), PERB Decision No. 465. 72
further implementation of this program, including further payment of a stipend to any incumbents in learning specialists positions; and upon request from the EVEA, meet and negotiate in good faith over the negotiable aspects of the learning specialist program until agreement is reached or the statutory impasse procedure is exhausted before reinstituting this program. An agreement, if reached, can address the issue of stipends paid for the 1983-84 and 1984-85 school years. Additionally, it is appropriate to order the District, upon the request of EVEA, to restore the work year of the bilingual facilitator to that prevailing for unit members at the time of unlawful changes in the 1983-84 or 1984-85 school years. Finally, it is appropriate that the District should be required to post a notice incorporating the terms of this order attached as an appendix hereto. The notice should be subscribed by an authorized agent of the Lake Elsinore School District, indicating that the District will comply with the terms of this order. The notice shall not be reduced in size. Posting of such notice will provide employees additional statement that the District has acted in an unlawful manner, and is being required to cease and desist from such activity. It effectuates the purposes of the EERA that employees be informed of the resolution of the controversy and the District's readiness to comply with the ordered remedy. 73 further implementation of this program, including further payment of a stipend to any incumbents in learning specialists positions; and upon request from the EVEA, meet and negotiate in good faith over the negotiable aspects of the learning specialist program until agreement is reached or the statutory impasse procedure is exhausted before reinstituting this program. An agreement, if reached, can address the issue of stipends paid for the 1983-84 and 1984-85 school years. Additionally, it is appropriate to order the District, upon the request of EVEA, to restore the work year of the bilingual facilitator to that prevailing for unit members at the time of unlawful changes in the 1983-84 or 1984-85 school years. Finally, it is appropriate that the District should be required to post a notice incorporating the terms of this order attached as an appendix hereto. The notice should be subscribed by an authorized agent of the Lake Elsinore School District, indicating that the District will comply with the terms of this order. The notice shall not be reduced in size. Posting of such notice will provide employees with an additional statement that the District has acted in an unlawful manner, and is being required to cease and desist from such activity. It effectuates the purposes of the EERA that employees be informed of the resolution of the controversy and the District's readiness to comply with the ordered remedy. 73
See Placerville Union School District (9/18/78) PERB Decision No. 69; Pandol and Sons v. Agricultural Labor Relations Board (1979) 98 Cal.App.3d 580, 587; NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415]. PROPOSED ORDER Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and purusant to section 3541.S(c) of the Educational Employment Relations Act, it is hereby ordered that the Lake Elsinore School District, its Board of Trustees, superintendent and its agents shall: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association concerning: (1) the length of the teachers' instructional day and workday ~nd rhP pffprr8 of any increase in the same on non-class preparation time; (2) changes in the rate of pay to unit members for summer work performed; (3) implementation of the learning specialist program, including the amount of annual stipend paid; and (4) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2. Denying to the Elsinore Valley Education Association, CTA/NEA, rights guaranteed by the Educational Employment Relations Act, including the right to represent its members. 74 See Placerville Union School District (9/18/78) PERB Decision No. 69; Pandol and Sons v. Agricultural Labor Relations Board (1979) 98 Cal . App. 3d 580, 587; NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415]. PROPOSED ORDER Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and purusant to section 3541.5(c) of the Educational Employment Relations Act, it is hereby ordered that the Lake Elsinore School District, its Board of Trustees, Superintendent and its agents shall: A. CEASE AND DESIST FROM: 1 . Failing and refusing to meet and negotiate in good faith with the Elsinore Valley Education Association concerning: (1) the length of the teachers' instructional day and workday and the effects of any increase in the same on non-class preparation time; (2) changes in the rate of pay to unit members for summer work performed; (3) implementation of the learning specialist program, including the amount of annual stipend paid; and (4) changes in the certificated work year and other terms and conditions of employment within the scope of representation. 2 . Denying to the Elsinore Valley Education Association, CTA/NEA, rights guaranteed by the Educational Employment Relations Act, including the right to represent its members. 74
3. Interfering with employees in the exercise of rights guaranteed by the Educational Employment Relations Act, including the right to be represented by their chosen representative. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1. Upon request, meet with and negotiate with the exclusive representative regarding changing the length of the unit members' instructional day and the effects, if any, of such change on non-class preparation time. 2. Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay. 3. Upon request, meet and negotiate with the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 75 3. Interfering with employees in the exercise of rights guaranteed by the Educational Employment Relations Act, including the right to be represented by their chosen representative. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1 . Upon request, meet with and negotiate with the exclusive representative regarding changing the length of the unit members' instructional day and the effects, if any, of such change on non-class preparation time. 2 . Restore the District's past practice of compensating bargaining unit members at hourly rates of pay for summer work and compensate any affected employees for monetary losses suffered as a result of the unilateral change in the summer of 1983. All payments shall include 10 percent per annum interest. Upon request, negotiate in good faith with the Association on the matter. However, the status quo ante shall not be restored if, subsequent to the District's actions the parties have, on their own, reached agreement or negotiated through completion of the impasse procedure concerning the rate of summer pay. 3 . Upon request, meet and negotiate with the Association concerning the negotiable aspects of the learning specialists program, including the amount of annual stipend to be paid. 75
4. Upon request of the Association, reinstate the work year of the bilingual facilitator and other terms and conditions of employment to that of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment. 5. Grant to each teacher who worked extra time as a result of the reduction in classroom instructional aide time during the fall 1983 or the unilateral increase in the length of the instructional day in November 1983, the amount of time off which corresponds to the number of extra hours worked as a result of the changes described above. Should the parties fail to reach a satisfactory accord as to the manner in which such time off will be granted or if an individual is no longer in the District's employ, then such employees will be granted monetary compensation commensurate with the additional hours worked. However, if subsequent to the District's unlawful actions, the parties have, on their own initiative, reached agreement or negotiated through the completion of the statutory impasse procedure concerning the length of the instructional day, the workday and the effects of changes in either on non-class preparation time, then liability for compensatory time off or back pay shall terminate at that point. Any monetary payment shall include interest at the rate of ten (10) percent per annum. worked. 76 4. Upon request of the Association, reinstate the work year of the bilingual facilitator and other terms and conditions of employment to that of unit members at the time of unlawful changes in either 1983 or 1984; and negotiate in good faith with the Association before changing any aspect of the employee's work year or other terms and conditions of employment . 5 . Grant to each teacher who worked extra time as a result of the reduction in classroom instructional aide time during the fall 1983 or the unilateral increase in the length of the instructional day in November 1983, the amount of time off which corresponds to the number of extra hours worked as a result of the changes described above. Should the parties fail to reach a satisfactory accord as to the manner in which such time off will be granted or if an individual is no longer in the District's employ, then such employees will be granted monetary compensation commensurate with the additional hours However, if subsequent to the District's unlawful actions, the parties have, on their own initiative, reached agreement or negotiated through the completion of the statutory impasse procedure concerning the length of the instructional day, the workday and the effects of changes in either on non-class preparation time, then liability for compensatory time off or back pay shall terminate at that point. Any monetary payment shall include interest at the rate of ten (10) percent per annum. 76
6. Within ten (10) workdays of service of a final decision in this matter, post at all school sites and all other work locations where notices to certificated employees are customarily placed, copies of the notice attached hereto as an appendix. The notice must be signed by an authorized agent of the District indicating that the District will comply with the terms of this order. such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that this notice is not reduced in size, altered, defaced or covered by any material 7. Upon issuance of a final decision; make written notification of the actions taken to comply with the Order to the Los Angeles Regional Director of the Public Employment Relations Board in accordance with his instructions. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision and Order shall become final on August 13, 1985, unless a party files a timely statement of exceptions. In accordance with the rules, the statement of exceptions should identify by page citation or exhibit number the portions of the record relied upon for such exceptions. See California Administrative Code, title 8, part III, section 32300. such statement of exceptions and supporting brief must be actually received by the Public Employment Relations Board itself at the headquarters office in Sacramento before the close of business (5:00 p.m.) 77 6. Within ten (10) workdays of service of a final decision in this matter, post at all school sites and all other work locations where notices to certificated employees are customarily placed, copies of the notice attached hereto as an appendix. The notice must be signed by an authorized agent of the District indicating that the District will comply with the terms of this order. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that this notice is not reduced in size, altered, defaced or covered by any material 7 . Upon issuance of a final decision, make written notification of the actions taken to comply with the Order to the Los Angeles Regional Director of the Public Employment Relations Board in accordance with his instructions. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision and Order shall become final on August 13, 1985, unless a party files a timely statement of exceptions. In accordance with the rules, the statement of exceptions should identify by page citation or exhibit number the portions of the record relied upon for such exceptions. See California Administrative Code, title 8, part III, section 32300. Such statement of exceptions and supporting brief must be actually received by the Public Employment Relations Board itself at the headquarters office in Sacramento before the close of business (5:00 p.m. ) 77
on August 13, 1985, or sent by telegraph or certified United States mail, postmarked not later than the last day filing in order to be timely filed. see California Administrative Code, title 8, part III, section 32135. Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall be filed with the Board itself. see California Administrative Code, title 8, part III, section 32300 and 32305. Dated: July 24, 1985 78 Ji:~~ W. JfuiHOMAS Administrative Law Judge on August 13, 1985, or sent by telegraph or certified United States mail, postmarked not later than the last day for filing in order to be timely filed. See California Administrative Code, title 8, part III, section 32135. Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall be filed with the Board itself. See California Administrative Code, title 8, part III, section 32300 and 32305. Dated: July 24, 1985 W. JEAN THOMAS Administrative Law Judge 78
2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
OVERRULED by State of California (Department of Agriculture)
(2002) PERB Decision No. 1473-S
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ELSINORE VALLEY EDUCATION
ASSOCIATION, CTA/NEA,
Case Nos. LA~CE-1827
LA-CE-2031
Charging Party,
Ve
PERB Decision No. 646
LAKE ELSINORE SCHOOL DISTRICT,
December 18, 1987
Respondent.
Pee neat Nance? Smet eget? “net ee Smt Ce Nett Neat
Appearances: A. Eugene Huguenin, Jr., Attorney for Elsinore
Valley Education Association, CTA/NEA; Parham & Associates, Inc.
by James C. Whitlock for Lake Elsinore School District.
Before Porter, Craib and Shank, Members.
DECISION AND ORDER
PORTER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Lake
Elsinore School District (District) to the proposed decision of
a PERB administrative law judge (ALJ), attached hereto. The
ALJ found that the District violated section 3543.5(c) of the
1
ct)” by:
iJ
Educational Employment Relations Act (EERA or 2
‘
LEERA is codified at Government Code section 3540
et seq. Unless otherwise indicated, all statutory references
herein are to the Government Code. Section 3543.5 provides, in
pertinent part, as follows:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
unilaterally changing the method of compensating teachers for
extra duties performed during the summer of 1983; unilaterally
implementing a proposed $1,500 stipend for teachers assigned to
the newly created learning specialist classification; bypassing
the exclusive representative by directly negotiating with a
unit member to reduce her 1983-84 and 1984-85 work years;
failing to give the Elsinore Valley Education Association (EVEA
or Association) notice and an opportunity to negotiate over the
effects of its decision to reduce School Improvement Project
(SIP) instructional aide time; and unilaterally extending the
workday of grades 4-6 teachers for four days during the 1983
fall conference week. In addition, the ALJ found that the
District derivatively violated section 3543.S(a) and (b) of
the EERA by the aforementioned actions:
We find the ALJ's findings of fact to be free of
prejudicial error and adopt them as our own. 2 For the
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2we note that the District excepted to the ALJ's finding
that the change in the minimum day schedule resulted in one
hour per day of additional preparation time. The record The record
instead supports a finding that the change in the minimum day
schedule resulted in an increase of one-half hour per day of
preparation time. This discrepancy, however, in no way affects
our analysis of this allegation.
2
unilaterally changing the method of compensating teachers for
extra duties performed during the summer of 1983; unilaterally
implementing a proposed $1, 500 stipend for teachers assigned to
the newly created learning specialist classification; bypassing
the exclusive representative by directly negotiating with a
unit member to reduce her 1983-84 and 1984-85 work years;
failing to give the Elsinore Valley Education Association (EVEA
or Association) notice and an opportunity to negotiate over the
effects of its decision to reduce School Improvement Project
(SIP) instructional aide time; and unilaterally extending the
workday of grades 4-6 teachers for four days during the 1983
fall conference week. In addition, the ALJ found that the
District derivatively violated section 3543.5(a) and (b) of
the EERA by the aforementioned actions.
We find the ALJ's findings of fact to be free of
prejudicial error and adopt them as our own. For the
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2We note that the District excepted to the ALJ's finding
that the change in the minimum day schedule resulted in one
hour per day of additional preparation time.
instead supports a finding that the change in the minimum day
schedule resulted in an increase of one-half hour per day of
preparation time. This discrepancy, however, in no way affects
our analysis of this allegation.
2
reasons to follow, we affirm in part and reverse in part the
ALJ's proposed decision.
Change in Method of Payment for Work Performed in Summer of 1983
The parties' collective bargaining agreement is silent on
the subject of the method of payment for summer school work.
The record, however, supports the ALJ's finding that teachers
were routinely compensated at an hourly rate in past years, and
that the District departed from this practice by compensating
learning specialists and research-based instruction coaches on
a per diem basis in 1983. Furthermore, the manner in which the
the hourly rate was computed was based upon earlier collective
bargaining agreements, and thus raises the inference that the
earlier contract provision continues to reflect the mutually
agreed upon policy~ (Morgan Hill Unified School District
(1985) PERB Decision No. 554.) While there was some evidence
that District employees were paid per diem wages in the past,
a clear preponderance of the evidence showed that teachers'
compensation was calculated on an hourly basis, and this,
combined with the rule articulated in Morgan Hill, shows the
District's policy was to compensate teachers for extra duty
summer assignments on an hourly basis.
In order to prove a violation of EERA section 3543.S(c)
based upon a unilateral change, a charging party must first
make a prima facie showing that the respondent breached a
written agreement or altered a past practice. (Grant Joint
3
reasons to follow, we affirm in part and reverse in part the
ALJ's proposed decision.
Change in Method of Payment for Work Performed in Summer of 1983
The parties' collective bargaining agreement is silent on
the subject of the method of payment for summer school work.
The record, however, supports the ALJ's finding that teachers
were routinely compensated at an hourly rate in past years, and
that the District departed from this practice by compensating
learning specialists and research-based instruction coaches on
a per diem basis in 1983. Furthermore, the manner in which the
the hourly rate was computed was based upon earlier collective
bargaining agreements, and thus raises the inference that the
earlier contract provision continues to reflect the mutually
agreed upon policy. (Morgan Hill Unified School District
(1985 ) PERB Decision No. 554.) While there was some evidence
that District employees were paid per diem wages in the past,
a clear preponderante of the evidence showed that teachers'
compensation was calculated on an hourly basis, and this,
combined with the rule articulated in Morgan Hill, shows the
District's policy was to compensate teachers for extra duty
summer assignments on an hourly basis.
In order to prove a violation of EERA section 3543.5(c)
based upon a unilateral change, a charging party must first
make a prima facie showing that the respondent breached a
written agreement or altered a past practice. (Grant Joint
3
Union High School District (1982) PERB Decision No. 196.) In
this case, the District changed its policy by its unilateral
alteration of its past practice in its method of compensating
teachers for extra duty summer assignments. We therefore
affirm the ALJ's conclusion that the District violated EERA
section 3543.S(c) and, derivatively, section 3543.S(a) and (b)
by its change in the method of compensating teachers for summer
work.
Unilateral Adoption of Learning Specialist Stipend
The District began considering a new classification of
"learning specialist" in the spring of 1982; in April 1983,
the District approved a job description and positions for the
learning specialist classification. Applications for the newly
created positions were limited to the District's existing
staff. The District began using learning specialists at the
beginning of the 1983-84 school year.
Between June 1983 and the beginning of the 1983-84 school
year in September, EVEA. and the District were engaged in
reopener negotiations. Although the learning specialist
classification was not among the reopener subjects, the parties
discussed the position. The District, in both its announcement
to teachers of the new classification and during negotiations,
agreed that parts of the learning specialist program, such as a
monetary stipend, were negotiable. The District knew, as a
result of earlier exchanges between the parties, that EVEA
4
Union High School District (1982) PERB Decision No. 196. ) In
this case, the District changed its policy by its unilateral
alteration of its past practice in its method of compensating
teachers for extra duty summer assignments. We therefore
affirm the ALJ's conclusion that the District violated EERA
section 3543.5(c) and, derivatively, section 3543.5(a) and (b)
by its change in the method of compensating teachers for summer
work .
Unilateral Adoption of Learning Specialist Stipend
The District began considering a new classification of
"learning specialist" in the spring of 1982; in April 1983,
the District approved a job description and positions for the
learning specialist classification. Applications for the newly
created positions were limited to the District's existing
staff. The District began using learning specialists at the
beginning of the 1983-84 school year.
Between June 1983 and the beginning of the 1983-84 school
year in September, EVEA and the District were engaged in
reopener negotiations. Although the learning specialist
classification was not among the reopener subjects, the parties
discussed the position. The District, in both its announcement
to teachers of the new classification and during negotiations,
agreed that parts of the learning specialist program, such as a
monetary stipend, were negotiable. The District knew, as a
result of earlier exchanges between the parties, that EVEA
desired to discuss negotiable aspects of the new program. The
District, nonetheless, implemented the program, including a
$1,500 stipend, without having reached an agreement with EVEA.
While the decision to establish or abolish classifications
is a management prerogative and, hence, is nonnegotiable,
management remains obligated to negotiate the effects of its
decision falling within the scope of representation.
Rock Union Elementary School District (1983) PERB Decision
No. 322.) In the instant case, although the learning
specialist classification was new, EVEA sought only to bargain
the effects of the District's decision to create the new
classification. The stipend is an aspect of wages, a subject
expressly enumerated in EERA section 3543.2(a). 3 We have
specifically held that salaries for newly created positions
are negotiable. (Antioch Unified School District (1985) PERB
Decision No. 515.) In addition, we note that the facts of
this case show that the stipend for the new classification was
integrally related to the interests of the current bargaining
unit, in that the position was offered only to current
employees and the learning specialist stipend constituted
compensation for duties which related to and augmented the
3EERA section 3543.2(a) provides that the scope of
representation "shall be limited to matters relating to wages,
hours of employment and other terms and conditions of
employment." Stipends relate to wages and are a mandatory
subject of bargaining.
5
desired to discuss negotiable aspects of the new program. The
District, nonetheless, implemented the program, including a
$1,500 stipend, without having reached an agreement with EVEA.
While the decision to establish or abolish classifications
is a management prerogative and, hence, is nonnegotiable,
management remains obligated to negotiate the effects of its
decision falling within the scope of representation. (Alum
Rock Union Elementary School District (1983 ) PERB Decision
No. 322. ) In the instant case, although the learning
specialist classification was new, EVEA sought only to bargain
the effects of the District's decision to create the new
classification. The stipend is an aspect of wages, a subject
expressly enumerated in EERA section 3543.2(a). We have
specifically held that salaries for newly created positions
are negotiable. (Antioch Unified School District (1985 ) PERB
Decision No. 515. ) In addition, we note that the facts of
this case show that the stipend for the new classification was
integrally related to the interests of the current bargaining
unit, in that the position was offered only to current
employees and the learning specialist stipend constituted
compensation for duties which related to and augmented the
3EERA section 3543.2(a) provides that the scope of
representation "shall be limited to matters relating to wages,
hours of employment and other terms and conditions of
employment. " Stipends relate to wages and are a mandatory
subject of bargaining.
normal teaching responsibilities. We therefore find that the
stipend was negotiable.
Although the District argues that EVEA waived its right to
bargain a stipend for learning specialists, we agree with the
ALJ that the record does not support such a contention.
Accordingly, we affirm the ALJ's conclusion that the District's
unilateral implementation of the stipend was in violation of
section 3543.S(c) and, derivatively, section 3543.S(a) and (b)
of EERA.
Change in the Work Year of the Bilingual Facilitator
The position of bilingual facilitator is one within the
bargaining unit. The collective bargaining agreement provides
at article 7 that the length of the work year shall be 179 days
for unit members. We agree with the ALJ that the evidence
supports the finding that District Superintendent Ronald Flora
negotiated directly with Judith Reising, the bilingual
facilitator, for a reduction in her 1983-84 work year. The
Board of Trustees subsequently approved the reduced school year
for Reising. Prior to its approval, EVEA President Denise
Thomas inquired of the negotiability of Reising's request, and
was told that the subject was nonnegotiable and in compliance
with District policy. Believing the subject to be negotiable
instead, an EVEA representative filed an amendment to Charge
No. LA-CE-1827 to include this allegation.
The following year Reising again requested a reduced school
6
normal teaching responsibilities. We therefore find that the
stipend was negotiable.
Although the District argues that EVEA waived its right to
bargain a stipend for learning specialists, we agree with the
ALJ that the record does not support such a contention.
Accordingly, we affirm the ALJ's conclusion that the District's
unilateral implementation of the stipend was in violation of
section 3543.5(c) and, derivatively, section 3543.5(a) and (b)
of EERA.
Change in the Work Year of the Bilingual Facilitator
The position of bilingual facilitator is one within the
bargaining unit. The collective bargaining agreement provides
at article 7 that the length of the work year shall be 179 days
for unit members. We agree with the ALJ that the evidence
supports the finding that District Superintendent Ronald Flora
negotiated directly with Judith Reising, the bilingual
facilitator, for a reduction in her 1983-84 work year. The
Board of Trustees subsequently approved the reduced school year
for Reising. Prior to its approval, EVEA President Denise
Thomas inquired of the negotiability of Reising's request, and
was told that the subject was nonnegotiable and in compliance
with District policy. Believing the subject to be negotiable
instead, an EVEA representative filed an amendment to Charge
No. LA-CE-1827 to include this allegation.
The following year Reising again requested a reduced school
year. Her request, however, was accompanied by six conditions
concerning the amount of her stipend and other terms and
conditions of employment. The Board of Trustees approved her
request, which it characterized as "child rearing leave" under
the contract. The board, however, did not approve Reising's
conditions attached to the granting of her leave, and Reising
subsequently rejected the leave as approved by the board. When
Reising inquired of Flora the status of her leave, she was told
to work the same schedule as the year before (1983-84), or the
reduced 166-day work year. Although Reising signed a standard
contract of employment with the District, there was no change
in it to reflect her reduced number of workdays for 1984-85.
As in the case of the previous year, there is no evidence that
prior to making this decision, Flora provided EVEA with notice
or an opportunity to meet and negotiate over the decision. The The
District's reduction of Reising's work year in 1984-85 resulted
in EVEA's filing of an additional unfair practice charge
(LA-CE-2031) which was eventually consolidated in the instant
case.
We affirm the ALJ's conclusion that the District bypassed
the exclusive representative and negotiated individually with
the bilingual facilitator for a reduced work year • .Although
the District maintains that it granted Reising a child rearing
leave consistent with the CBA, the evidence does not sustain
this contention. Negotiating directly with a bargaining unit
7
year. Her request, however, was accompanied by six conditions
concerning the amount of her stipend and other terms and
conditions of employment. The Board of Trustees approved her
request, which it characterized as "child rearing leave" under
the contract. The board, however, did not approve Reising's
conditions attached to the granting of her leave, and Reising
subsequently rejected the leave as approved by the board. When
Reising inquired of Flora the status of her leave, she was told
to work the same schedule as the year before (1983-84), or the
reduced 166-day work year. Although Reising signed a standard
contract of employment with the District, there was no change
in it to reflect her reduced number of workdays for 1984-85.
As in the case of the previous year, there is no evidence that
prior to making this decision, Flora provided EVEA with notice
or an opportunity to meet and negotiate over the decision.
District's reduction of Reising's work year in 1984-85 resulted
in EVEA's filing of an additional unfair practice charge
(LA-CE-2031) which was eventually consolidated in the instant
case .
We affirm the ALJ's conclusion that the District bypassed
the exclusive representative and negotiated individually with
the bilingual facilitator for a reduced work year. Although
the District maintains that it granted Reising a child rearing
leave consistent with the CBA, the evidence does not sustain
this contention. Negotiating directly with a bargaining unit
7
employee to alter existing terms and conditions of employment
is a violation of EERA. We, therefore, affirm the ALJ's
finding that the Lake Elsinore School District bypassed the
exclusive representative in violation of EERA section 3543.S(c)
and, derivatively, section 3543.5(a) and (b).
Instructional Aide Time
Although we affirm the ALJ's findings of fact on this
charge, we supplement them with the following. SIP is a state
categorically-funded program designed to provide educational
assistance to students in the subject areas of reading,
mathematics and language arts. (Ed. Code, sec. 52000.) The
Education Code mandates the establishment of a school site
council which is responsible for developing plans for the use
of SIP funds. It is composed of the principal, teachers and
other school personnel, pupils and parents at each school
site. (Ed. Code, secs. 52012 et seq.) The school improvement
plans for each school site are developed by the site councils
consistent with the District's general guidelines for adoption
by the District's Board of Trustees upon the recommendations of
the site councils. (Ed. Code, sec. 52034.)
The SIP, in operation at all four school sites within the
District, operates on a three-year cycle which began in the
1982-83 school year. Although the SIP state funds may be used
to assist students in grades K-6, the ~istrict concentrated its
1982-83 SIP program in grades K-3, and a large portion of the
8
employee to alter existing terms and conditions of employment
is a violation of EERA. We, therefore, affirm the ALJ's
finding that the Lake Elsinore School District bypassed the
exclusive representative in violation of EERA section 3543.5 (c)
and, derivatively, section 3543.5(a) and (b).
Instructional Aide Time
Although we affirm the ALJ's findings of fact on this
charge, we supplement them with the following. SIP is a state
categorically-funded program designed to provide educational
assistance to students in the subject areas of reading,
mathematics and language arts. (Ed. Code, sec. 52000. ) The
Education Code mandates the establishment of a school site
council which is responsible for developing plans for the use
of SIP funds. It is composed of the principal, teachers and
other school personnel, pupils and parents at each school
site. (Ed. Code, secs. 52012 et seq. ) The school improvement
plans for each school site are developed by the site councils
consistent with the District's general guidelines for adoption
by the District's Board of Trustees upon the recommendations of
the site councils. (Ed. Code, sec. 52034.)
The SIP, in operation at all four school sites within the
District, operates on a three-year cycle which began in the
1982-83 school year. Although the SIP state funds may be used
to assist students in grades K-6, the District concentrated its
1982-83 SIP program in grades K-3, and a large portion of the
grant monies were allotted toward the salaries of instructional
aides in order to provide direct educational services to
students in grades K-3.
Acting in accordance with the wishes of the school board,
the site councils at two of the four school sites (Wildomar and
Butterfield schools) reallocated SIP monies for the 1983-84
school year in a manner benefiting the entire student body in
grades K-6, rather than merely those students in grades K-3.
Specifically, the site council at Wildornar decided to use a
portion of the SIP funds to pay the salaries of a library aide,
an aide coordinator of volunteers and a computer laboratory
aide. Butterfield's site council opted to use a portion of
the 1983-84 SIP funds budgeted to pay the salary of a computer
aide. Reallocating a portion of SIP funds in such a manner;
however, necessitated reducing the amount of SIP funds
previously budgeted (in 1982-83) to pay the salaries of the SIP
instructional aides for students in the K-3 classrooms; and,
accordingly, some teachers at Wildomar and Butterfield had SIP
aides in their classrooms for fewer hours, as compared to the
previous year. 4
4 4 In 1982-83, the plan at Wildornar School included three
hours of aide time for each class in grades K-3. In the
1983-84 school year, SIP instructional aide time was reduced
from three hours to two hours per day in the kindergarten
classes, and from three hours to one and one-half hours per day
for grade 2 classes. At Butterfield School, in 1982-83, the
SIP plan provided for SIP instructional aide time of three
9
grant monies were allotted toward the salaries of instructional
aides in order to provide direct educational services to
students in grades K-3.
Acting in accordance with the wishes of the school board,
the site councils at two of the four school sites (Wildomar and
Butterfield schools) reallocated SIP monies for the 1983-84
school year in a manner benefiting the entire student body in
grades K-6, rather than merely those students in grades K-3.
Specifically, the site council at Wildomar decided to use a
portion of the SIP funds to pay the salaries of a library aide,
an aide coordinator of volunteers and a computer laboratory
aide. Butterfield's site council opted to use a portion of
the 1983-84 SIP funds budgeted to pay the salary of a computer
aide. Reallocating a portion of SIP funds in such a manner,
however, necessitated reducing the amount of SIP funds
previously budgeted (in 1982-83) to pay the salaries of the SIP
instructional aides for students in the K-3 classrooms; and,
accordingly, some teachers at Wildomar and Butterfield had SIP
aides in their classrooms for fewer hours, as compared to the
previous year.
In 1982-83, the plan at Wildomar School included three
hours of aide time for each class in grades K-3. In the
1983-84 school year, SIP instructional aide time was reduced
from three hours to two hours per day in the kindergarten
classes, and from three hours to one and one-half hours per day
for grade 2 classes. At Butterfield School, in 1982-83, the
SIP plan provided for SIP instructional aide time of three
9
Coinciding with the reduction in SIP instructional aide
time in the fall of 1983, one-half the pupils of every class
in grades K-6 at both Wildomar and Butterfield were taken in
groups to the computer lab and the library for half-hour
sessions with the computer lab aide and the library aide (a
total of one hour per week). This arrangement reduced the
class size for each teacher to one-half the number of pupils
for reading and math instruction for half an hour per week for
each subject area.
The issue involved in this matter is whether the District
should have given EVEA notice and an opportunity to bargain any
possible effects on the certificated unit of the District's
reduction in the hours of the classified unit's instructional
aides, the latter decision made as part of a comprehensive plan
to reallocate SIP funds.
In her findings, the ALJ noted that the impact on the
affected teachers' workday varied depending on the grade
level involved and the amount of SIP aide time reduced. Some
teachers, she found, had to modify their instructional strategy
to accommodate the absence of a second adult. Other teachers
hours per day for grades K-1, and one and one-half hours per
day for grades 2 and 3. In the 1983-84 school year, SIP aide
time for grades K-1 remained at three hours per day. At the
beginning of the fall 1983 semester, grades 2 and 3 had no aide
time for the first few weeks of the semester until the teachers
in grades K-1 classes volunteered to share one hour of aide
time per day with grades 2 and 3.
10
Coinciding with the reduction in SIP instructional aide
time in the fall of 1983, one-half the pupils of every class
in grades K-6 at both Wildomar and Butterfield were taken in
groups to the computer lab and the library for half-hour
sessions with the computer lab aide and the library aide (a
total of one hour per week) . This arrangement reduced the
class size for each teacher to one-half the number of pupils
for reading and math instruction for half an hour per week for
each subject area.
The issue involved in this matter is whether the District
should have given EVEA notice and an opportunity to bargain any
possible effects on the certificated unit of the District's
reduction in the hours of the classified unit's instructional
aides, the latter decision made as part of a comprehensive plan
to reallocate SIP funds.
In her findings, the ALJ noted that the impact on the
affected teachers' workday varied depending on the grade
level involved and the amount of SIP aide time reduced. Some
teachers, she found, had to modify their instructional strategy
to accommodate the absence of a second adult. Other teachers
hours per day for grades K-1, and one and one-half hours per
day for grades 2 and 3. In the 1983-84 school year, SIP aide
time for grades K-1 remained at three hours per day. At the
beginning of the fall 1983 semester, grades 2 and 3 had no aide
time for the first few weeks of the semester until the teachers
in grades K-1 classes volunteered to share one hour of aide
time per day with grades 2 and 3.
10
had to increase the classroom preparation time to prepare
additional "seat work" required in absence of a SIP aide.
Also, some teachers spent noninstructional time correcting
student written work that had previously been corrected by
the aide.
The ALJ reasoned that the reduction in instructional
aide classroom time would conceivably affect the amount of a
teacher's time that was required to prepare for and perform
such duties. This was so because, where aide time was reduced such duties.
or eliminated, teachers who had used SIP aides to correct
papers and perform record keeping tasks would have to perform
these duties themselves, and this would have the result of
increasing the teachers' workday. Also, the change required
some teachers to prepare additional "seat work" to accommodate
the absence of a SIP aide in the classroom working directly
with students, and this would likewise require additional
preparation time. The ALJ thereafter concluded that the
District's decision which had the effect of reducing the
amount of classroom aide time from its level in 1982-83 had a
reasonably foreseeable adverse impact on the affected teachers'
working conditions, and thus was negotiable pursuant to
Mt. Diablo Unified School District (1983) PERB Decision No. 373.
We do not agree that the District had the obligation to
provide the exclusive representative of the certificated unit
notice and an opportunity to negotiate the possible effects of
11
had to increase the classroom preparation time to prepare
additional "seat work" required in absence of a SIP aide.
Also, some teachers spent noninstructional time correcting
student written work that had previously been corrected by
the aide.
The ALJ reasoned that the reduction in instructional
aide classroom time would conceivably affect the amount of a
teacher's time that was required to prepare for and perform
This was so because, where aide time was reduced
or eliminated, teachers who had used SIP aides to correct
papers and perform record keeping tasks would have to perform
these duties themselves, and this would have the result of
increasing the teachers' workday. Also, the change required
some teachers to prepare additional "seat work" to accommodate
the absence of a SIP aide in the classroom working directly
with students, and this would likewise require additional
preparation time. The ALJ thereafter concluded that the
District's decision which had the effect of reducing the
amount of classroom aide time from its level in 1982-83 had a
reasonably foreseeable adverse impact on the affected teachers'
working conditions, and thus was negotiable pursuant to
Mt. Diablo Unified School District (1983) PERB Decision No. 373.
We do not agree that the District had the obligation to
provide the exclusive representative of the certificated unit
notice and an opportunity to negotiate the possible effects of
11
the District's nonnegotiable decision which reduced the hours
of members of the classified bargaining unit. As was noted by
the ALJ, the SIP aides were to be utilized to provide
"educational assistance to the students in the subject areas of
reading, mathematics, and language arts. " This comports This comports
with the intent of the Legislature in enacting SIP legislation
as is expressed at section 52000 of the Education Code, which
states, in pertinent part:
The Legislature declares its intent to
encourage improvement of California
elementary .•• schools to ensure that all
schools can respond in a timely and effective
manner to the educational, personal, and
career goals of every pupil. The Legislature
is committed to the belief that schools
should:
(a)) Recognize that each pupil is a unique
human being to be encouraged and assisted to
learn, grow, and develop in his or her own
manner to become a contributing and
responsible member of society.
(b) Assure that pupils achieve proficiency
in mathematics and in the use of the English
language, including reading, writing,
speaking and listening.
(c) Provide pupils opportunities to
develop skills, knowledge, awareness, and
appreciations in a wide variety of other
aspects of the curriculum ..
(d) Assist pupils to develop esteem of
self and others, personal and social
responsibility, critical thinking, and
independent judgment.
(e) Provide a range of alternatives in
instructional settings and formats to respond
adequately to the different ways individual
pupils learn.
12
the District's nonnegotiable decision which reduced the hours
of members of the classified bargaining unit. As was noted by
the ALJ, the SIP aides were to be utilized to provide
"educational assistance to the students in the subject areas of
reading, mathematics, and language arts. .
with the intent of the Legislature in enacting SIP legislation
as is expressed at section 52000 of the Education Code, which
states, in pertinent part:
The Legislature declares its intent to
encourage improvement of California
elementary . . . schools to ensure that all
schools can respond in a timely and effective
manner to the educational, personal, and
career goals of every pupil. The Legislature
is committed to the belief that schools
should:
(a Recognize that each pupil is a unique
human being to be encouraged and assisted to
learn, grow, and develop in his or her own
manner to become a contributing and
responsible member of society.
(b) Assure that pupils achieve proficiency
in mathematics and in the use of the English
language, including reading, writing,
speaking and listening.
(c) Provide pupils opportunities to
develop skills, knowledge, awareness, and
appreciations in a wide variety of other
aspects of the curriculum .
(d) Assist pupils to develop esteem of
self and others, personal and social
responsibility, critical thinking, and
independent judgment.
(e) Provide a range of alternatives in
instructional settings and formats to respond
adequately to the different ways individual
pupils learn.
12
The Legislature, by the provisions of this
chapter, intends to support the efforts of
each participating school to improve
instruction, auxiliary services, school
environment, and school organization to
meet the needs of pupils at that school.
(Emphasis added.)
As is apparent from the language of the statute, the
fundamental purpose of the SIP is to assist pupils in their
academic development, and there are numerous options available
to the individual school site councils to achieve this goal.
Further, there exists evidence in the record demonstrating that
teachers were aware that SIP funds were to be used to assist
students, and what the role of SIP instructional aides was to
be. A.l though teachers could not recite with verbatim accuracy
the Legislative purpose of the SIP legislation; those
testifying as to how their workday changed as a result of a
reduction in instructional aide time were aware, for the most
part, that the SIP aides were there to provide individualized
instruction to students, and not to function as personal
assistants to teac ers. . h 5 When viewed in light of the
5The Association called teachers Jill Good, Ann Andrews,
Lori Singelyn, Susan Johns, and Elizabeth Fowler to testify as
to an increase in workload, if any, caused by the reduction in
hours of classified SIP aides. Most witnesses displayed at
least a rudimentary knowledge of the goals of the SIP
legislation. For example, Good testified that one of the main
goals of her school's SIP plan was to provide individualized
instruction to students by the use of aides. Similarly,
Andrews testified that it was her understanding that the
13
The Legislature, by the provisions of this
chapter, intends to support the efforts of
each participating school to improve
instruction, auxiliary services, school
environment, and school organization to
meet the needs of pupils at that school.
(Emphasis added. )
As is apparent from the language of the statute, the
fundamental purpose of the SIP is to assist pupils in their
academic development, and there are numerous options available
to the individual school site councils to achieve this goal.
Further, there exists evidence in the record demonstrating that
teachers were aware that SIP funds were to be used to assist
students, and what the role of SIP instructional aides was to
be. Although teachers could not recite with verbatim accuracy
the Legislative purpose of the SIP legislation, those
testifying as to how their workday changed as a result of a
reduction in instructional aide time were aware, for the most
part, that the SIP aides were there to provide individualized
instruction to students, and not to function as personal
assistants to teachers. When viewed in light of the
5The Association called teachers Jill Good, Ann Andrews,
Lori Singelyn, Susan Johns, and Elizabeth Fowler to testify as
to an increase in workload, if any, caused by the reduction in
hours of classified SIP aides. Most witnesses displayed at
least a rudimentary knowledge of the goals of the SIP
legislation. For example, Good testified that one of the main
goals of her school's SIP plan was to provide individualized
instruction to students by the use of aides. Similarly,
Andrews testified that it was her understanding that the
13
legislative goals of the SIP, any change in or diminishing
of the teachers' preparation time in 1982-83 was, at best, a
fortuitous side effect of misuse of the program. Conversely, Conversely,
the extent to which some teachers were required, as a result
of the reduction in aides' hours, to adopt a teaching style
to accommodate one less adult in the room, reflects more upon
the professional nature of teaching, which often requires the
exercise of discretion and flexibility, rather than it does a
District-compelled increase in workload.
Further, the record is not clear on whether it was the
reduction in SIP aide time or an entirely different factor
which caused the increase in preparation time to which four
teachers testified. The teachers' testimony revealed several
factors, aside from the SIP aide time; which could have
increased the teachers' workday. The relative experience of
the teacher was one such factor. 6 Aside from the experience
purpose of the aide was to give "extra individual attention or
individual instruction;; to students. Singelyn testified that
the aides were "to work with the children, not just sit there
ana ao paperwork. rter testimony was reinforced by that of
Walter McCarthy, who, as Assistant Principal at Wildomar in
1982-83, sat in on meetings between the principal and teachers
wherein the principal explained that aides were to work
directly with the students and strongly discouraged aides being
used to grade papers for students: Fowler, however, expressed
confusion with respect to the role of the aide in the classroom.
6It is noteworthy in this respect that of the four
teachers testifying as to an increase in their workday, three,
having taught five years or less, were relatively inexperienced
teachers and one was in her first year of teaching with the
14
legislative goals of the SIP, any change in or diminishing
of the teachers' preparation time in 1982-83 was, at best, a
fortuitous side effect of misuse of the program.
the extent to which some teachers were required, as a result
of the reduction in aides' hours, to adopt a teaching style
to accommodate one less adult in the room, reflects more upon
the professional nature of teaching, which often requires the
exercise of discretion and flexibility, rather than it does a
District-compelled increase in workload.
Further, the record is not clear on whether it was the
reduction in SIP aide time or an entirely different factor
which caused the increase in preparation time to which four
teachers testified. The teachers' testimony revealed several
factors, aside from the SIP aide time, which could have
increased the teachers' workday. The relative experience of
the teacher was one such factor. Aside from the experience
purpose of the aide was to give "extra individual attention or
individual instruction" to students. Singelyn testified that
the aides were "to work with the children, not just sit there
and do paperwork. " Her testimony was reinforced by that of
Walter Mccarthy, who, as Assistant Principal at Wildomar in
1982-83, sat in on meetings between the principal and teachers
wherein the principal explained that aides were to work
directly with the students and strongly discouraged aides being
used to grade papers for students. Fowler, however, expressed
confusion with respect to the role of the aide in the classroom.
6It is noteworthy in this respect that of the four
teachers testifying as to an increase in their workday, three,
having taught five years or less, were relatively inexperienced
teachers and one was in her first year of teaching with the
14
factor, other factors which could have contributed to an
increased workday included: class size, special learning
difficulties of some students, competence of the aides and,
perhaps the most significant of all, individual variation
among teachers themselves. With respect to the latter, some
teachers, especially new teachers, habitually worked longer
than the contractually mandated minimum 7 1/2 hours, while
other teachers did not.
Furthermore, the record shows that in 1983-84, students
were taken from the classrooms in groups each week for a
half-hour session with the computer lab aide and a half-hour
session with the library aide. One may infer that this would
be a factor offsetting any increases in the length of some
teachers' workday allegedly caused by the reduction in SIP
instructional aide time.
In short, the reductions in SIP instructional aide time in
certain K-3 classes at two schools occurred within the context
District as of the time of the hearing. Conversely, the
teacher testifying with the most experience with the District,
Lucinda Brouwer, noticed no impact on the length of time it
took for her to prepare for class subsequent to the reduction
in aide time. In her testimony, Brouwer stated:
I think because I have taught a little bit
longer than some of the witnesses who have
spoken earlier, I've made it a habit of
doing my work in the seven and a half
hours. And I don't take work home and I
don't do work on the weekends. And I did
that regardless of if I had an aide or not.
15
factor, other factors which could have contributed to an
increased workday included: class size, special learning
difficulties of some students, competence of the aides and,
perhaps the most significant of all, individual variation
among teachers themselves. With respect to the latter, some
teachers, especially new teachers, habitually worked longer
than the contractually mandated minimum 7 1/2 hours, while
other teachers did not.
Furthermore, the record shows that in 1983-84, students
were taken from the classrooms in groups each week for a
half-hour session with the computer lab aide and a half-hour
session with the library aide. One may infer that this would
be a factor offsetting any increases in the length of some
teachers' workday allegedly caused by the reduction in SIP
instructional aide time.
In short, the reductions in SIP instructional aide time in
certain K-3 classes at two schools occurred within the context
District as of the time of the hearing. Conversely, the
teacher testifying with the most experience with the District,
Lucinda Brouwer, noticed no impact on the length of time it
took for her to prepare for class subsequent to the reduction
in aide time. In her testimony, Brouwer stated:
I think because I have taught a little bit
longer than some of the witnesses who have
spoken earlier, I've made it a habit of
doing my work in the seven and a half
hours. And I don't take work home and I
don't do work on the weekends. And I did
that regardless of if I had an aide or not.
15
of a categorically funded program -- the fundamental purpose
of which was to assist students. Mt. Diablo's requirements of
notice and an opportunity to negotiate "reasonably foreseeable
effects" of a nonnegotiable decision do not contemplate the
bargaining of those effects contravening the intent of the
Legislature in enacting the SIP legislation. Instead, the
reduction in SIP aides' hours reasonably would have been
expected to exert, at best, an indirect and speculative impact
on the workday of teachers. In this regard, we note that the
(1982-83) levels of aide time from which the reduction occurred
had been in existence for only one school year. Accordingly,
we reverse the ALJ on this allegation and find that the
District was not required to provide the Association notice
and an opportunity to negotiate such speculative effects on
the teachers of its decision which reduced instructional aide
services in the classified unit.
Change in the Length of the Instructional Day
The complaint in this case alleges, and the ALJ found,
that the District committed an unfair practice by changing the
length of the instructional day during the 1983 fall conference
week. As to this unfair practice charge, the record before us
presents a jurisdictional question which was neither raised by
the parties nor addressed by th~ ALJ: Does this Board have
jurisdiction to issue a complaint and resolve an unfair
practice charge where the conduct charged is also prohibited by
16
of a categorically funded program -- the fundamental purpose
of which was to assist students. Mt. Diablo's requirements of
notice and an opportunity to negotiate "reasonably foreseeable
effects" of a nonnegotiable decision do not contemplate the
bargaining of those effects contravening the intent of the
Legislature in enacting the SIP legislation. Instead, the
reduction in SIP aides' hours reasonably would have been
expected to exert, at best, an indirect and speculative impact
on the workday of teachers. In this regard, we note that the
(1982-83 ) levels of aide time from which the reduction occurred
had been in existence for only one school year. Accordingly,
we reverse the ALJ on this allegation and find that the
District was not required to provide the Association notice
and an opportunity to negotiate such speculative effects on
the teachers of its decision which reduced instructional aide
services in the classified unit.
Change in the Length of the Instructional Day
The complaint in this case alleges, and the ALJ found,
that the District committed an unfair practice by changing the
length of the instructional day during the 1983 fall conference
week. As to this unfair practice charge, the record before us
presents a jurisdictional question which was neither raised by
the parties nor addressed by the ALJ: Does this Board have
jurisdiction to issue a complaint and resolve an unfair
practice charge where the conduct charged is also prohibited by
16
the provisions of the parties' collective bargaining agreement,
which contains grievance machinery covering the matter at issue
and culminating in binding arbitration?
A secondary issue presented by the record before us is the
effect, if any, on this jurisdictional question of charging
party's failure to invoke the grievance machinery and the
respondent's concomitant failure to assert as a "defense" to
the complaint that the matter was subject to binding
arbitration. 7
Preliminarily it is appropriate to review this Board's
jurisdictional terrain.
First, this Board has only such jurisdiction and powers
as have been conferred upon it by statute. (Association For
Retarded Citizens v. Dept~ of Developmental Services (1985)
38 Cal.3d 384, 391-392; Fertig v. State Personnel Board (1969)
71 Cal.2d 96, 103; B.W. v. Board of Medical Quality Assurance
(1985) 169 Cal.App.3d 219, 233-234; B.M.W. of North America,
Inc. v. New Motor Vehicle Board (1984) 162 Cal.App.3d 980, 994,
hg. den.; Graves v. Commission on Professional Competence
(1976) 63 Cal.App.3d 970, 976, hg. den.)
Second, this Board acts in excess of its jurisdication if
7Board Regulation 32646 provides that if the respondent
believes that the dispute is subject to binding arbitration, it
shall assert such as a defense in its answer to the complaint
and move to dismiss the complaint. (Cal. Admin. Code, tit. 8,
sec. 32646. )
17
the provisions of the parties' collective bargaining agreement,
which contains grievance machinery covering the matter at issue
and culminating in binding arbitration?
A secondary issue presented by the record before us is the
effect, if any, on this jurisdictional question of charging
party's failure to invoke the grievance machinery and the
respondent's concomitant failure to assert as a "defense" to
the complaint that the matter was subject to binding
arbitration.'
Preliminarily it is appropriate to review this Board's
jurisdictional terrain.
First, this Board has only such jurisdiction and powers
as have been conferred upon it by statute. (Association For
Retarded Citizens v. Dept. of Developmental Services (1985)
38 Cal . 3d 384, 391-392; Fertig v. State Personnel Board (1969)
71 Cal. 2d 96, 103; B.W. v. Board of Medical Quality Assurance
(1985) 169 Cal . App. 3d 219, 233-234; B.M.W. of North America,
Inc. v. New Motor Vehicle Board (1984) 162 Cal. App. 3d 980, 994,
hg. den.; Graves v. Commission on Professional Competence
(1976) 63 Cal. App. 3d 970, 976, hg. den. )
Second, this Board acts in excess of its jurisdiction if
7Board Regulation 32646 provides that if the respondent
believes that the dispute is subject to binding arbitration, it
shall assert such as a defense in its answer to the complaint
and move to dismiss the complaint. (Cal. Admin. Code, tit. 8,
sec. 32646.)
17
it acts in violation of the statutes conferring and/or limiting
its jurisdiction and powers. (Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 288-291; Kennaley v. Superior
Court (1954) 43 Cal.2d 512, 514; Graves v. Commission on
Professional Competence, supra, 63 Cal.App.3d 970, 976, hg.
den.) Indeed, all actions taken, or determinations made, in
excess of this Board's jurisdiction and powers are void.
(City & County of San Francisco v. Padilla (1972) 23 Cal.App.3d
388, 400, hg. den.; Fertig v. State Personnel Board, supra,
71 Cal.2d 96, 103-104; Association For Retarded Citizens v.
Dept. of Developmental Services, supra, 38 Cal.3d 384, 391;
B.W. B.W. v. Board of Medical Quality Assurance, supra,
169 Cal.App.3d 219, 234; Graves v. Commission on Professional
Competence, supra, 63 Cal.App.3d 970, 976, hg~ den.)
Third, where this Board is without jurisdiction with
respect to a matter before it, it must dismiss the matter on
its own motion, regardless of whether the jurisdictional issue
has been raised by the parties. (Goodwine v. Superior Court
(1965) 63 Cal.2d 481, 482; Abelleira v. District Court of
Appeal, supra, 17 Cal.2d 280, 302-303; Linnick v. Sedelmeier
(1968) 262 Cal.App.2d 12, fn. 1; Olmstead v. West (1960)
177 Cal.App.2d 652, 655; Warner v. Pacific Tel. & 'I'el. Co.
(1953) 121 Cal.App.2d 497, 502, hg: den:; Estate of Zavadil
(1962) 200 Cal.App.2d 32, 36; Costa v. Banta (1950)
98 Cal.App.2d 181, 182, hg. den.; and see Bender v.
18
it acts in violation of the statutes conferring and/or limiting
its jurisdiction and powers. (Abelleira v. District Court of
Appeal (1941) 17 Cal . 2d 280, 288-291; Kennaley v. Superior
Court (1954) 43 Cal. 2d 512, 514; Graves v. Commission on
Professional Competence, supra, 63 Cal . App. 3d 970, 976, hg.
den. ) Indeed, all actions taken, or determinations made, in
excess of this Board's jurisdiction and powers are void.
(City & County of San Francisco v. Padilla (1972) 23 Cal.App. 3d
388, 400, hg. den.; Fertig v. State Personnel Board, supra,
71 cal. 2d 96, 103-104; Association For Retarded Citizens v.
Dept. of Developmental Services, supra, 38 Cal. 3d 384, 391;
v. Board of Medical Quality Assurance, supra,
169 Cal . App. 3d 219, 234; Graves v. Commission on Professional
Competence, supra, 63 Cal. App. 3d 970, 976, hg. den. )
Third, where this Board is without jurisdiction with
respect to a matter before it, it must dismiss the matter on
its own motion, regardless of whether the jurisdictional issue
has been raised by the parties. (Goodwine v. Superior Court
(1965) 63 Cal. 2d 481, 482; Abelleira v. District Court of
Appeal, supra, 17 Cal. 2d 280, 302-303; Linnick v. Sedelmeier
(1968) 262 Cal . App. 2d 12, fn. 1; Olmstead v. West (1960)
177 Cal. App. 2d 652, 655; Warner v. Pacific Tel. & Tel. Co.
(1953) 121 Cal . App. 2d 497, 502, hg. den. ; Estate of Zavadil
(1962) 200 Cal. App. 2d 32, 36; Costa v. Banta (1950)
98 Cal . App. 2d 181, 182, hg. den.; and see Bender v.
18
Williamsport Area School District (1986) 475 U.S.
[89 L.Ed.2d 501, 511, 514-514, rehg. den. 90 L.Ed.2d 682];
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxiles
de Guinee (1982) 456 U.S. 694, 701-702 [72 L.Ed.2d 492,
500-501.)
Fourth, where this Board is without jurisdiction, it cannot
acquire jurisdiction by the parties' consent, agreement, stipu-
lation or acquiesence, nor by waiver or estoppel. (Schlyen v.
Schlyen (1954) 43 Cal.2d 361, 375; Keithley v. Civil Service
Board of City of Oakland (1970) 11 Cal.App.3d 443, 448, hg.
den.; Summers v. Superior Court (1959) 53 Cal.2d 295, 298;
Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773, 776; Fong
Chuck v. Chin Po Foon (1947) 29 Cal.2d 552, 554; Estate of Lee
(1981) 124 Cal.App.3d 687, 692-693, hg. den~; People v. Coit
Ranch, Inc. (1962) 204 Cal.App.2d 52, 57, hg. den.)
Lastly, lack of jurisdiction cannot be overcome by the
established practices or customs of this Board, nor by Board
regulation. (J.R. Norton Co. v. Agricultural Labor Relations
Board (1979) 26 Cal.3d 1, 29; Morris v. Williams (1967)
67 Cal.2d 733, 737, 748; Calif. State Restaurant Assoc. v.
Whitlow, Chief, Div. of Industrial Welfare (1976) 58 Cal.App.3d
340, 347, hg. den.; Harris v. ABC Appeals Board (1964)
228 Cal.App.2d 1, 6, hg. den.; Graves v~ Commission on
Professional Competence, supra, 63 Cal.App.3d 970, 976, hg.
den.; Adamek & Dessert, Inc. v~ Agricultural Labor Relations
19
Williamsport Area School District (1986) 475 U.S.
[89 L. Ed. 2d 501, 511, 514-514, rehg. den. 90 L. Ed. 2d 682];
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxiles
de Guinee (1982) 456 U.S. 694, 701-702 [72 L. Ed. 2d 492,
500-501.)
Fourth, where this Board is without jurisdiction, it cannot
acquire jurisdiction by the parties' consent, agreement, stipu-
lation or acquiesence, nor by waiver or estoppel. (Schlyen v.
Schlyen (1954) 43 Cal. 2d 361, 375; Keithley v. Civil Service
Board of City of Oakland (1970) 11 Cal. App. 3d 443, 448, hg.
den.; Summers v. Superior Court (1959) 53 Cal . 2d 295, 298;
Sampsell v. Superior Court (1948) 32 Cal. 2d 763, 773, 776; Fong
Chuck v. Chin Po Foon (1947) 29 Cal . 2d 552, 554; Estate of Lee
(1981 ) 124 Cal. App. 3d 687, 692-693, hg. den. ; People v. Coit
Ranch, Inc. (1962) 204 Cal . App. 2d 52, 57, hg. den. )
Lastly, lack of jurisdiction cannot be overcome by the
established practices or customs of this Board, nor by Board
regulation. (J. R. Norton Co. v. Agricultural Labor Relations
Board (1979) 26 Cal . 3d 1, 29; Morris v. Williams (1967)
67 Cal. 2d 733, 737, 748; Calif. State Restaurant Assoc. V.
Whitlow, Chief, Div. of Industrial Welfare (1976) 58 Cal.App. 3d
340, 347, hg. den. ; Harris v. ABC Appeals Board (1964)
228 Cal . App. 2d 1, 6, hg. den.; Graves v. Commission on
Professional Competence, supra, 63 Cal. App. 3d 970, 976, hg.
den.; Adamek & Dessert, Inc. v. Agricultural Labor Relations
19
Board (1986) 178 Cal.App.3d 970, 978, hg. den.; Brown v.
State Personnel Board (1941) 43 Cal.App.2d 70, 75, hg. den.;
Davidson v. Burns (1940) 38 Cal.App.2d 188, 192, hg. den.)
The record before us shows that the parties' collective
bargaining agreement includes a grievance and arbitration
provision culminating in binding arbitration. The contract
further provides at article 15 that a grievance may be brought
by the Association or any member of the bargaining unit covered
by the terms of the agreement, and that:
[a] "grievance" occurs when a unit member
has been adversely affected by an alleged
violation, or
misapplication of [the] Agreement .••
misinterpretation
Article 7, section 7.7 of the parties' collective bargaining
agreement prescribes:
The instructional minutes for the
intermediate grades may be increased by the
District not more than fifteen (15) minutes
during the 1982-83 school year. (Emphasis
added. )8
In this case, EVEA alleged that the District unilaterally
increased the number of instructional minutes during Conference
Week in the fall of 1983 by approximately 45 minutes per day.
Therefore, to the extent that the District increased the number
8As noted by the ALJ, although under the terms of the
collective bargaining agreement the 15-minute increase in
instructional minutes was to be implemented during the 1982-83
school year, the agreement was not ratified until April 15,
1983. The parties, accordingly, agreed that the 15-rninute
increase would be implemented during the 1983-84 school year,
beginning in the fall of 1983.
20
Board (1986) 178 Cal . App. 3d 970, 978, hg. den. ; Brown v.
State Personnel Board (1941) 43 Cal . App. 2d 70, 75, hg. den. ;
Davidson v. Burns (1940 ) 38 Cal. App. 2d 188, 192, hg. den. )
The record before us shows that the parties' collective
bargaining agreement includes a grievance and arbitration
provision culminating in binding arbitration. The contract
further provides at article 15 that a grievance may be brought
by the Association or any member of the bargaining unit covered
by the terms of the agreement, and that:
[a] "grievance" occurs when a unit member
has been adversely affected by an alleged
violation, misinterpretation or
misapplication of [the] Agreement. . .
Article 7, section 7.7 of the parties' collective bargaining
agreement prescribes:
The instructional minutes for the
intermediate grades may be increased by the
District not more than fifteen (15 ) minutes
during the 1982-83 school year. ( Emphasis
added. ) 8
In this case, EVEA alleged that the District unilaterally
increased the number of instructional minutes during Conference
Week in the fall of 1983 by approximately 45 minutes per day.
Therefore, to the extent that the District increased the number
BAs noted by the ALJ, although under the terms of the
collective bargaining agreement the 15-minute increase in
instructional minutes was to be implemented during the 1982-83
school year, the agreement was not ratified until April 15,
1983. The parties, accordingly, agreed that the 15-minute
increase would be implemented during the 1983-84 school year,
beginning in the fall of 1983.
20
of instructional minutes in an amount greater than 15 minutes,
it allegedly has engaged in conduct violative of the provisions
of the agreement.
Turning now to the language of EERA, section 3541.S(a)
provides, in pertinent part:
Any employee, employee organization or
employer shall have the right to file an
unfair practice charge, except that the
board shall not ••• issue a complaTnt
against conduct also prohibited by the
provisions of the agreement between the
parties until the grievance machinery of
the agreement, if it exists and covers the
matter at issue, has been exhausted, either
by settlement or binding arbitration.
However, when the charging party
demonstrates that resort to contract
grievance procedure would be futile,
exhaustion shall not be necessary. The
board shall have discretionary jurisdiction
to review such settlement or arbitration
award reached pursuant to the grievance
machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
shall dismiss the charge. shall dismiss the The board shall, The board shall,
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.
{Emphasis added.)
charge.
In construing a statute, we begin with the fundamental rule
that a court "should ascertain the intent of the Legislature so
as to effectuate the purpose of the law." (Moyer v. Workmen's
Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) Further, it is a
21
of instructional minutes in an amount greater than 15 minutes,
it allegedly has engaged in conduct violative of the provisions
of the agreement.
Turning now to the language of EERA, section 3541.5(a)
provides, in pertinent part:
Any employee, employee organization or
employer shall have the right to file an
unfair practice charge, except that the
board shall not . . . issue a complaint
against conduct also prohibited by the
provisions of the agreement between the
parties until the grievance machinery of
the agreement, if it exists and covers the
matter at issue, has been exhausted, either
by settlement or binding arbitration.
However, when the charging party
demonstrates that resort to contract
grievance procedure would be futile,
exhaustion shall not be necessary. The
board shall have discretionary jurisdiction
to review such settlement or arbitration
award reached pursuant to the grievance
machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.
(Emphasis added. )
In construing a statute, we begin with the fundamental rule
that a court "should ascertain the intent of the Legislature so
as to effectuate the purpose of the law." (Moyer v. Workmen's
Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230. ) Further, it is a
21
fundamental maxim of statutory construction that, where no
ambiguity exists, the intent of the Legislature in enacting
a law is to be gleaned from the words of the statute itself,
according to the usual and ordinary import of the language
employed. In other words, where the language of a statute is
clear and unambiguous, case law holds that the construction
intended by the Legislature is obvious from the language used.
(Noroian v. Department of Administration, Public Employees'
Retirement System (1970) 11 Cal.App.3d 651, 654, hg. den.;
McQuillan v. Southern Pacific Co. (1974) 40 Cal.App.3d 802,
805-806; Hoyme v. Board of Education (1980) 107 Cal.App.3d 449;
Great Lakes Properties, Inc. v. City of El Segundo (1977)
19 Cal.3d 152, 155; People v. Boyd (1979) 24 Cal.3d 285, 294.)
The Legislature's limitation on this Board's jurisdiction
to act prior to the exhaustion of the parties' grievance
machinery culminating in binding arbitration is clearly evinced
by its choice of words in section 3541.5(a), " •. the Board
shall not issue a complaint ..•. " In dealing with the
provisions of EERA, it is important to note that Government
Code sections 5 and 14 prescribe that the word "shall" is
mandatory. Likewise, California case law customarily construes
the word "shall" as being mandatory, while "may" is generally
interpreted to describe permissive action on the part of a
governmental entity. (Gov. Code, secs. 5 and 14; Fair v.
Hernandez (1981) 116 Cal.App.3d 868, 878, hg. den.; Hogya v.
22
fundamental maxim of statutory construction that, where no
ambiguity exists, the intent of the Legislature in enacting
a law is to be gleaned from the words of the statute itself,
according to the usual and ordinary import of the language
employed. In other words, where the language of a statute is
clear and unambiguous, case law holds that the construction
intended by the Legislature is obvious from the language used.
Noroian v. Department of Administration, Public Employees'
Retirement System (1970) 11 Cal . App. 3d 651, 654, hg. den. ;
McQuillan v. Southern Pacific Co. (1974) 40 Cal.App. 3d 802,
805-806; Hoyme v. Board of Education (1980) 107 Cal . App. 3d 449;
Great Lakes Properties, Inc. v. City of El Segundo (1977)
19 Cal. 3d 152, 155; People v. Boyd (1979) 24 Cal. 3d 285, 294.)
The Legislature's limitation on this Board's jurisdiction
to act prior to the exhaustion of the parties' grievance
machinery culminating in binding arbitration is clearly evinced
by its choice of words in section 3541.5(a), ". . . the Board
shall not issue a complaint. . . ." In dealing with the
provisions of EERA, it is important to note that Government
Code sections 5 and 14 prescribe that the word "shall" is
mandatory. Likewise, California case law customarily construes
the word "shall" as being mandatory, while "may" is generally
interpreted to describe permissive action on the part of a
governmental entity. (Gov. Code, secs. 5 and 14; Fair v.
Hernandez (1981) 116 Cal . App. 3d 868, 878, hg. den. ; Hogya v.
22
Superior Court, San Diego County (1977) 75 Cal.App.3d 122, 133,
hg. den.; REA Enterprises v. California Coastal Zone Commission
(1975) 52 Cal.App.3d 596, 606, hg. den.) Furthermore, even
without the Government Code's prescriptions that "shall" is
mandatory, "(t)he word 'shall' in ordinary usage means 'must'
and is inconsistent with the concept of discretion."
(People v. Municipal Court (1983) 149 Cal.App.3d 951, 954,
hg. den.)
The word "shall" appearing in a statute has additionally
been interpreted by courts as being "mandatory" in the sense
that a governmental entity's failure to comply with a
particular procedural step will have the effect of invalidating
a governmental action to which the procedural requirement
relates. In this instance, courts have held; the procedural
requirement is considered jurisdictional. (Garcia v. County
Board of Education (1981) 123 Cal.App.3d 807, 811-813;
People v. McGee (1977) 19 Cal.3d 948, 959; Edwards v. Steele
(1979) 25 Cal.3d 406, 410.) For example, in the case of
Ursino v. Superior Court (1974) 39 Cal.App.3d 611, at issue was
the application of a municipal ordinance providing that, "On
the filing of any appeal, the Board [of Permit Appeals] ...
shall act thereon not later than forty (40) days after such
filing . • • . " (P. 618.) In interpreting this ordinance,
the court declared that "[t]he use of the word 'shall' in
conjunction with the phrase 'not later than' is clearly
23
Superior Court, San Diego County (1977) 75 Cal . App. 3d 122, 133,
hg. den. ; REA Enterprises v. California Coastal Zone Commission
(1975) 52 Cal . App. 3d 596, 606, hg. den. ) Furthermore, even
without the Government Code's prescriptions that "shall" is
mandatory, "(the word 'shall' in ordinary usage means 'must'
and is inconsistent with the concept of discretion."
(People v. Municipal Court (1983) 149 Cal . App. 3d 951, 954,
hg. den. )
The word "shall" appearing in a statute has additionally
been interpreted by courts as being "mandatory" in the sense
that a governmental entity's failure to comply with a
particular procedural step will have the effect of invalidating
a governmental action to which the procedural requirement
relates. In this instance, courts have held, the procedural
requirement is considered jurisdictional. (Garcia v. County
Board of Education (1981) 123 Cal . App. 3d 807, 811-813;
People v. McGee (1977 ) 19 Cal. 3d 948, 959; Edwards v. Steele
(1979) 25 Cal. 3d 406, 410.) For example, in the case of
Ursino v. Superior Court (1974) 39 Cal. App. 3d 611, at issue was
the application of a municipal ordinance providing that, "On
the filing of any appeal, the Board [of Permit Appeals] . .
shall act thereon not later than forty (40) days after such
filing . (P. 618. ) In interpreting this ordinance,
the court declared that "[the use of the word 'shall' in
conjunction with the phrase 'not later than' is clearly
23
indicative of a mandatory intention." (P. 619.) The court
went on to hold that any purported determination made by the
Board of Permit Appeals after the 40-day period would be in
excess of the Board's jurisdiction and void. (P. 619.)
By these authorities, it would be entirely anomalous to
argue that, while "shall" is interpreted by the courts to
impose an affirmative duty to act, the words, "shall not" may
nonetheless be construed to confer discretion to act. The
conclusion is unavoidable that the prohibitory language of EERA
section 3541.5 is mandatory. Not only did the Legislature use
the word "shall" to express its mandatory intent, it further
proscribed certain conduct of the Board by the use of the
negative, "not," thereby rendering the statute even more
plainly mandatory. (Tarquin v~ Commission on Professional
Competence (1978) 84 Cal.App.3d 251, 257-258, hg. den.;
McKee v. Commission on Professional Competence (1981)
114 Cal.App.3d 718, 721-722, hg. den.; Pollack v. Department
of Motor Vehicles (1985) 38 Cal.3d 367, 377-378.) 9
9Tarquin v. Commission on Professional Competence,
McKee v. Commission on Professional Competence and Pollack v.
Department of Motor Vehicles all present decisions in which
the words "shall not," appearing in a statute, have been
interpreted to operate as a jurisdictional limitation on the
authority of the governing board to which such statutory
language is directed. For example; in Tarquin, supra, at
issue was the application of section 13407 of the Education
Code which provides, in pertinent part:
The governing board of any school
district shall not act upon any charges
24
indicative of a mandatory intention. " (P. 619. ) The court
went on to hold that any purported determination made by the
Board of Permit Appeals after the 40-day period would be in
excess of the Board's jurisdiction and void. (P. 619.)
By these authorities, it would be entirely anomalous to
argue that, while "shall" is interpreted by the courts to
impose an affirmative duty to act, the words, "shall not" may
nonetheless be construed to confer discretion to act. The
conclusion is unavoidable that the prohibitory language of EERA
section 3541.5 is mandatory. Not only did the Legislature use
the word "shall" to express its mandatory intent, it further
proscribed certain conduct of the Board by the use of the
negative, "not, " thereby rendering the statute even more
plainly mandatory. (Tarquin v. Commission on Professional
Competence (1978) 84 Cal . App. 3d 251, 257-258, hg. den. ;
Mckee v. Commission on Professional Competence (1981)
114 Cal . App. 3d 718, 721-722, hg. den.; Pollack v. Department
of Motor Vehicles (1985) 38 Cal: 3d 367, 377-378.)"
Tarquin v. Commission on Professional Competence,
Mckee v. Commission on Professional Competence and Pollack v.
Department of Motor Vehicles all present decisions in which
the words "shall not, " appearing in a statute, have been
interpreted to operate as a jurisdictional limitation on the
authority of the governing board to which such statutory
language is directed. For example, in Tarquin, supra, at
issue was the application of section 13407 of the Education
Code which provides, in pertinent part:
The governing board of any school
district shall not act upon any charges
24
Furthermore, the second proviso of section 3541.S(a) is
further evidence of the Legislature's intent to limit the
Board's jurisdiction. It provides, in pertinent part: 10
The board shall have discretionary
jurisdiction to review such settlement or
arbitration award reached pursuant to the
grievance machinery solely for the purpose
of determining whether it is repugnant to
the purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge .•..
(Emphasis added.)
In reading section 3541.5 as a whole, while the first
proviso is intended to operate as a jurisdictional limitation
on the Board's authority to issue a complaint where the matter
of unprofessional conduct or incompetency
unless during the preceding term •••. priorprior
to the date of filing the charge and at
least 90 days prior to the date of the
filing, the board ..• has given the
employee ••. written notice of the
unprofessional conduct or incompetency,
specifying the nature thereof ..•with with
such particularity as to furnish the
employee an opportunity to correct his
faults ••••
In Tarquin, a school district sought to discharge a teacher
for incompetence. The district, accordingly, served upon the
teacher a notice of unsatisfactory performance. The district
also relieved the teacher of his classroom duties. The court The court
found that the notice to the teacher did not comply with the
statute inasmuch as it did not give him an adequate opportunity
to correct shortcomings. Thus, significantly, the court held
that the school district was without jurisdiction to proceed
against the teacher on charges of incompetency. (Pp. 258-259.)
10EERA. section 3541. 5 (a) is quoted at page 21.
25
Furthermore, the second proviso of section 3541.5(a) is
further evidence of the Legislature's intent to limit the
Board's jurisdiction. It provides, in pertinent part: 10
The board shall have discretionary
jurisdiction to review such settlement or
arbitration award reached pursuant to the
grievance machinery solely for the purpose
of determining whether it is repugnant to
the purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge .
(Emphasis added. )
In reading section 3541.5 as a whole, while the first
proviso is intended to operate as a jurisdictional limitation
on the Board's authority to issue a complaint where the matter
of unprofessional conduct or incompetency
unless during the preceding term . .
to the date of filing the charge and at
least 90 days prior to the date of the
filing, the board . . has given the
employee . . written notice of the
unprofessional conduct or incompetency
specifying the nature thereof .
such particularity as to furnish the
employee an opportunity to correct his
faults .
In Tarquin, a school district sought to discharge a teacher
for incompetence. The district, accordingly, served upon the
teacher a notice of unsatisfactory performance. The district
also relieved the teacher of his classroom duties.
found that the notice to the teacher did not comply with the
statute inasmuch as it did not give him an adequate opportunity
to correct shortcomings. Thus, significantly, the court held
that the school district was without jurisdiction to proceed
against the teacher on charges of incompetency. (Pp. 258-259.)
10EERA section 3541.5(a) is quoted at page 21.
25
is covered by the parties' grievance procedures and binding
arbitration, the statute goes on to vest the Board with
discretionary jurisdiction to (1) review such arbitration and
settlement awards for repugnancy and (2), if the Board finds
repugnancy, to issue a complaint. The Legislature clearly
delineated the Board's discretionary jurisdiction to review
for repugnancy.
In reaching this conclusion, this Board recognizes the
strong policy in California in favor of arbitration and that
provisions of EERA embody such a policy. EERA provides a
procedure for a party to seek a court order compelling
arbitration, and specifies that this action is to be brought
under Code of Civil Procedure section 1280 et seq. . 1
L
Language of those statutory provisions and cases decided
thereunder contain forceful expressions of this state's
legislative and public policies in favor of arbitration.
More than one court has declared:
llsection 3548.7 states in pertinent part:
Where a party to a written agreement is
aggrieved by the failure, neglect, or
refusal of the other party to proceed to
arbitration pursuant to the procedures
provided therefore in the agreement ... ,
the aggrieved party may bring proceedings
pursuant to Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil
Procedure for a court order directing that
the arbitration proceed pursuant to the
procedures provided therefore in such
agreement ••••
26
is covered by the parties' grievance procedures and binding
arbitration, the statute goes on to vest the Board with
discretionary jurisdiction to (1) review such arbitration and
settlement awards for repugnanty and (2), if the Board finds
repugnanty, to issue a complaint. The Legislature clearly
delineated the Board's discretionary jurisdiction to review
for repugnanty.
In reaching this conclusion, this Board recognizes the
strong policy in California in favor of arbitration and that
provisions of EERA embody such a policy. EERA provides a
procedure for a party to seek a court order compelling
arbitration, and specifies that this action is to be brought
11under Code of Civil Procedure section 1280 et seq.
Language of those statutory provisions and cases decided
thereunder contain forceful expressions of this state's
legislative and public policies in favor of arbitration.
More than one court has declared:
1lsection 3548.7 states in pertinent part:
Where a party to a written agreement is
aggrieved by the failure, neglect, or
refusal of the other party to proceed to
arbitration pursuant to the procedures
provided therefore in the agreement .
the aggrieved party may bring proceedings
pursuant to Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil
Procedure for a court order directing that
the arbitration proceed pursuant to the
procedures provided therefore in such
agreement .
26
General rules relative to arbitration and
arbitration agreements and proceedings are
provided in section 1280 et seq, Code of
Civil Procedure. They reflect the strong
legislative policy favoring arbitration
(American Ins. Co. v. Gernand (1968)
262 Cal.App.2d 300, 304; Jordan v. Pacific
Auto Ins. Co. (1965) 232 Cal.App.2d 127,
132; Morris v. Zuckerman (1967)
257 Cal.App.2d 91, 95, hg. den.)
In Delta Lines, Inc. v. International Brotherhood of
Teamsters (1977) 66 Cal.App.3d 960, 965-966, the court stated:
It has long been the policy of this state
to recognize and give utmost effect to
arou:rat.ion agreements. . . • --Tne policy
of the law in recognizing arbitration
agreements and in providing by statute for
their enforcement is to encourage persons
who wish to avoid delays incident to a civil
action to obtain an adjustment of their
differences by a tribunal of their own
choosing •.•. 'Therefore every reasonable
intendment will be indulged to give effect
to such proceedings. ' " ( Utah Const. Co. v.
Western Pac. Ry. Co. (1916) 174 Cal. 156.)
"This policy is especially applicable to
collective bargaining agreements since
arbitration under such agreements has
been a potent factor in establishing and
maintaining peaceful relations between labor
and industry." (Meyers v. Richfield Oi I
Corp. (1950) 98 Cal.App.2d 667, 671.)
For other decisions in which there have been strong
enunciations by California courts of the public policy in favor
of arbitration, see also Lehto v. Underground Constr. Co.
(1977) 69 Cal.App.3d 933, 939, hg~ den.; Vernon v. Drexel
Burnham & Co. (1975) 52 Cal.App~3d 706, 715-716, hg. den.;
Pacific Inv. Co. v. Townsend (1976) 58 Cal.App.3d 1, 9-10;
Posner v. Grumwald-Marx (1961) 56 Cal.2d 169, 176.
27
General rules relative to arbitration and
arbitration agreements and proceedings are
provided in section 1280 et seq, Code of
Civil Procedure. They reflect the strong
legislative policy favoring arbitration
American Ins. Co. v. Gernand (1968)
262 Cal . App . 2d 300, 304; Jordan v. Pacific
Auto Ins. Co. (1965 ) 232 Cal. App. 2d 127,
132; Morris v. Zuckerman (1967)
257 Cal. App. 2d 91, 95, hg. den. )
In Delta Lines, Inc. v. International Brotherhood of
Teamsters (1977 ) 66 Cal.App. 3d 960, 965-966, the court stated:
It has long been the policy of this state
to recognize and give utmost effect to
arbitration agreements. . "The policy
of the law in recognizing arbitration
agreements and in providing by statute for
their enforcement is to encourage persons
who wish to avoid delays incident to a civil
action to obtain an adjustment of their
differences by a tribunal of their own
choosing. 'Therefore every reasonable
intendment will be indulged to give effect
to such proceedings. '" (Utah Const. Co. v.
Western Pac. Ry. Co. (1916) 174 Cal. 156.)
"This policy is especially applicable to
collective bargaining agreements since
arbitration under such agreements has
been a potent factor in establishing and
maintaining peaceful relations between labor
and industry." (Meyers v. Richfield oil
Corp. (1950) 98 Cal . App. 2d 667, 671.)
For other decisions in which there have been strong
enunciations by California courts of the public policy in favor
of arbitration, see also Lehto v. Underground Constrco.
(1977) 69 Cal.App. 3d 933, 939, hg. den. ; Vernon v. Drexel
Burnham & Co. (1975) 52 Cal . App. 3d 706, 715-716, hg. den. ;
Pacific Inv. Co. v. Townsend (1976) 58 Cal. App. 3d 1, 9-10;
Posner v. Grumwald-Marx (1961) 56 Cal . 2d 169, 176.
27
Accordingly, EERA proscribes this Board's issuance of a
complaint against conduct prohibited by the parties' agreement
prior to the exhaustion of the contract's grievance-arbitration
machinery. Hence, PERB was and is without jurisdiction to
issue a complaint on this allegation.
Turning to our prior precedent, one finds that this Board
has traditionally followed the private sector's discretionary
deferral doctrine as was articulated by the National Labor
Relations Board (NLRB) in the case of Collyer Insulated Wire
(1971) 192 NLRB 837 [77 LRRM 1931]. The genesis of this
Board's adherence to the prearbitration guidelines set forth in
Collyer occurred in the decision of Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-8la. In Dry Creek the
Board explained:
While there is no statutory deferral
requirement imposed on the National Labor
Relations Board (hereafter NLRB), that
agency has voluntarily adopted such a
policy both with regard to post-arbitral and
pre-arbitral award situations. EERA section
3541.S(a) essentially codifies the policy
developed by the NLRB regarding deferral to
arb1trat1on proceedings and awards. It isIt is
appropriate, therefore, to look for guidance
to the private sector.
A comparison, however, of the statutory framework of the
National Labor Relations Act (NLRA) with that of EERA reveals
the fallacy in the Board's conclusion in Dry Creek that EERA
"essentially codified" the NLRB prearbitral policy. In sharp
contrast to EERA, there is no statutory proscription or
28
Accordingly, EERA proscribes this Board's issuance of a
complaint against conduct prohibited by the parties' agreement
prior to the exhaustion of the contract's grievance-arbitration
machinery. Hence, PERB was and is without jurisdiction to
issue a complaint on this allegation.
Turning to our prior precedent, one finds that this Board
has traditionally followed the private sector's discretionary
deferral doctrine as was articulated by the National Labor
Relations Board (NLRB) in the case of Collyer Insulated Wire
(1971) 192 NLRB 837 [77 LRRM 1931]. The genesis of this
Board's adherence to the prearbitration guidelines set forth in
Collyer occurred in the decision of Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-8la. In Dry Creek the
Board explained:
While there is no statutory deferral
requirement imposed on the National Labor
Relations Board (hereafter NLRB) , that
agency has voluntarily adopted such a
policy both with regard to post-arbitral and
pre-arbitral award situations. EERA section
3541.5(a) essentially codifies the policy
developed by the NLRB regarding deferral to
arbitration proceedings and awards.
appropriate, therefore, to look for guidance
to the private sector.
A comparison, however, of the statutory framework of the
National Labor Relations Act (NLRA) with that of EERA reveals
the fallacy in the Board's conclusion in Dry Creek that EERA
"essentially codified" the NLRB prearbitral policy. In sharp
contrast to EERA, there is no statutory proscription or
28
deferral provision under the NLRA. Indeed, unlike EERA, the
NLRA explicitly provides that:
The Board is empowered •.• to prevent any
person from engaging in any unfair labor
practice .••. This power shall not be
affected by any other means of adjustment
or prevention that has been or may be
established by agreement, law or otherwise.
(29 U.S.C. sec. 160(a), emphasis added.)
Thus, section l0(a) constitutes an expression of Congress'
intention for the NLRB's jurisdiction to be paramount over any
system which might be devised by the parties to settle their
disputes, including binding arbitration pursuant
under the collective bargaining agreement. (See Morris, The
Developing Labor Law (2d ed. 1983) p. 918; Johannesen & Smith,
Collyer, Open Sesame to Deferral (1972} 23 Lab. L.J. 723.)
Therefore, quite unlike the jurisdiction of PERB, that of
the NLRB is not displaced by the presence of an arbitration
provision within the parties' agreement covering the matter
at issue. On the contrary, even though a breach of contract
remediable through arbitation occurs, the NLRB may still, if
it so chooses, exercise its jurisdiction under the NLRA to
prosecute conduct which also constitutes an unfair labor
practice. (NLRB v. Strong Roofing and Insulating Co. (1969)
393 U.S. 357, 361 [70 LRFM 2100, 2101]; International Harvester
Company (1962) 138 NLRB 923 [51 LRRM 1155]; C & C Plywood Corp.
(1967) 385 U.S. 421 [64 LRRM 2065]; NLRB v. Acme Industrial Co.
(1967) 385 U.S. 432 [64 LRRM 2069].)
29
deferral provision under the NLRA. Indeed, unlike EERA, the
NLRA explicitly provides that:
The Board is empowered . . to prevent any
person from engaging in any unfair labor
practice . This power shall not be
affected by any other means of adjustment
or prevention that has been or may be
established by agreement, law or otherwise.
(29 U.S.C. sec. 160(a), emphasis added. )
Thus, section 10(a) constitutes an expression of Congress'
intention for the NLRB's jurisdiction to be paramount over any
system which might be devised by the parties to settle their
disputes, including binding arbitration pursuant to a provision
under the collective bargaining agreement. (See Morris, The
Developing Labor Law (2d ed. 1983) p. 918; Johannesen & Smith,
Collyer, Open Sesame to Deferral (1972) 23 Lab. L.J. 723.)
Therefore, quite unlike the jurisdiction of PERB, that of
the NLRB is not displaced by the presence of an arbitration
provision within the parties' agreement covering the matter
at issue. On the contrary, even though a breach of contract
remediable through arbitation occurs, the NLRB may still, if
it so chooses, exercise its jurisdiction under the NLRA to
prosecute conduct which also constitutes an unfair labor
practice. (NLRB v. Strong Roofing and Insulating Co. (1969)
393 U.S. 357, 361 [70 LRRM 2100, 2101]; International Harvester
Company (1962) 138 NLRB 923 [51 LRRM 1155]; C & C Plywood Corp.
(1967 ) 385 U.S. 421 [64 LRRM 2065]; NLRB v. Acme Industrial Co.
(1967) 385 U.S. 432 [64 LRRM 2069].)
29
Although Congress has not statutorily limited the NLRB's
jurisdiction to adjudicate unfair practices where the conduct
at issue also constitutes a breach of contract cognizable under
the parties' grievance machinery, Congress has nonetheless
declared, at section 203(d) of the Labor Management Relations
Act, that uthe desirable method for settlement of grievance
disputes arising over the application or interpretation of
an existing collective bargaining agreement" should be the
parties' agreed-upon method of dispute resolution. (29 u.s.c.
sec. 173(d), emphasis added.) The NLRB has accordingly
developed a comprehensive, if not always consistent, 12
doctrine of prearbitral deferral. (See Dubo Manufacturing
Corporation (1963) 142 NLRB 431 [53 LRRM 1070]; Collyer
Insulated Wire, supra, 192 NLRB 837.)
More specifically, in Collyer Insulated Wire the NLRB
articulated standards under which deferral would be deemed
appropriate. These requirements are: (1) the dispute must
arise within a stable collective bargaining relationship where
there is no enmity by the respondent toward the charging party:
(2) (2) the respondent must be ready and willing to proceed to
12For example, the NLRB has reversed itself on the
issue of the propriety of deferring to arbitration alleged
discrimination violations. The current position of the NLRB
is that such violations are properly deferrable. ( See General (See General
American Transportation Corp. (1977} 228 NLRB 808 [94 LRRM 1483
overruled by NLRB in United Technologies Corp. (1984) 268 NLRB
557 [115 LRRM 1049], thereby returning to doctrine articulated
in National Radio Co., Inc. (1972) 198 NLRB 527 [80 LRRM 1718].)
30
Although Congress has not statutorily limited the NLRB's
jurisdiction to adjudicate unfair practices where the conduct
at issue also constitutes a breach of contract cognizable under
the parties' grievance machinery, Congress has nonetheless
declared, at section 203 (d) of the Labor Management Relations
Act, that "the desirable method for settlement of grievance
disputes arising over the application or interpretation of
an existing collective bargaining agreement" should be the
parties' agreed-upon method of dispute resolution. (29 U.S.C.
sec. 173(d), emphasis added. ) The NLRB has accordingly
developed a comprehensive, if not always consistent, 12
doctrine of prearbitral deferral. (See Dubo Manufacturing
Corporation (1963 ) 142 NLRB 431 [53 LRRM 1070]; Collyer
Insulated Wire, supra, 192 NLRB 837. )
More specifically, in Collyer Insulated Wire the NLRB
articulated standards under which deferral would be deemed
appropriate. These requirements are: (1) the dispute must
arise within a stable collective bargaining relationship where
there is no enmity by the respondent toward the charging party;
the respondent must be ready and willing to proceed to
12For example, the NLRB has reversed itself on the
issue of the propriety of deferring to arbitration alleged
discrimination violations. The current position of the NLRB
is that such violations are properly deferrable.
American Transportation Corp. (1977) 228 NLRB 808 [94 LRRM 1483
overruled by NLRB in United Technologies Corp. (1984) 268 NLRB
557 [115 LRRM 1049], thereby returning to doctrine articulated
in National Radio Co., Inc. (1972 ) 198 NLRB 527 [80 LRRM 1718].)
30
arbitration and must waive contract-based procedural defenses;
and (3) the contract and its meaning must lie at the center of
the dispute. (Collyer Insulated Wire, supra, 192 NLRB 837,
842.)
While the NLRB standards set forth in Collyer Insulated
Wire apply in the the private sector, such NLRB guidelines are
not controlling nor even instructive in administering EERA.
Unlike the NLR~; under EERA, where a contract provides for
binding grievance arbitration, it is elevated to a basic,
fundamental and required component of the collective bargaining
process. process. Quite simply, the Legislature did not "essentially
codify" the Collyer requirements. In fact, there is absent
even the suggestion in the language of section 3541.5, any
other provision in EERA, or in its legislative history of an
intent of the Legislature to codify Collyer. On the contrary,
by its choice of prohibitory language, the Legislature plainly
expressed that the parties' contractual procedures for binding
arbitration, if covering the matter at issue, precludes this
Board's exercise of jurisdiction. Accordingly, we overrule Dry
Creek and its progeny1=3 to the extent that they would
13we also overrule the following PERB decisions
to the extent that they rely on the Collyer standards for
prearbitration deferral: Lancaster Elementary School District
(1983) PERB Decision No. 358; Conejo Valley Unified School
District (1984) PERB Decision No. 376; State of California
(Department of Developmental Services) {1985) PERB Order
No. Ad-145-S; Los Angeles Unified School District (1986) PERB
31
arbitration and must waive contract-based procedural defenses;
and (3) the contract and its meaning must lie at the center of
the dispute. (Collyer Insulated Wire, supra, 192 NLRB 837,
842.)
While the NLRB standards set forth in Collyer Insulated
Wire apply in the the private sector, such NLRB guidelines are
not controlling nor even instructive in administering EERA.
Unlike the NLRA, under EERA, where a contract provides for
binding grievance arbitration, it is elevated to a basic,
fundamental and required component of the collective bargaining
Quite simply, the Legislature did not "essentially
codify" the Collyer requirements. In fact, there is absent
even the suggestion in the language of section 3541.5, any
other provision in EERA, or in its legislative history of an
intent of the Legislature to codify Collyer. On the contrary,
by its choice of prohibitory language, the Legislature plainly
expressed that the parties' contractual procedures for binding
arbitration, if covering the matter at issue, precludes this
Board's exercise of jurisdiction. Accordingly, we overrule Dry
Creek and its progeny to the extent that they would
13we also overrule the following PERB decisions
to the extent that they rely on the Collyer standards for
prearbitration deferral: Lancaster Elementary School District
(1983) PERB Decision No. 358; Conejo Valley Unified School
District (1984) PERB Decision No. 376; State of California
(Department of Developmental Services) (1985 ) PERB Order
No. Ad-145-S; Los Angeles Unified School District (1986) PERB
31
condition the proscription of section 3541.5 on an application
of the Collyer prearbitration deferral factors.
Finally, in finding today that section 3541.5(a) precludes
this Board's exercise of jurisdiction where the disputed issue
is covered by the parties' contractual grievance-arbitration
procedures, we observe that our regulations are not to be
interpreted or applied in such a manner so as to override this
express jurisdictional barrier. In this regard, the Board's
application of PERB Regulation 32646 is at issue. PERB
Regulation 34246 provides, in pertinent part:
If the respondent believes that issuance of
the complaint is inappropriate .•• because
the dispute is subject to final and binding
arbitration ••• the respondent shall
assert such a defense in its answer and
shall move to dismiss the complaint,
In Charter Oak Unified School District (1982) PERB Order
No. Ad-125, this Board held that the district's failure to
demonstrate that the association's charge was cognizable under
a contractual grievance machinery to which PERB must defer was
sufficient grounds to affirm the hearing officer's decision to
refuse to dismiss a complaint. While the Board in Charter Oak
did not expressly hold that section 3541.S(a) should be
considered an affirmative defense under EERA, subject to a
party's "waiver," it did place upon the District, the defending
Decision No. 587; State of California (Department of Personnel
Administration) (1986) PERB Decision No. 600-S; San Juan
Unified School District (1982) PERB Decision No. 204.
32
condition the proscription of section 3541.5 on an application
of the Collyer prearbitration deferral factors.
Finally, in finding today that section 3541.5(a) precludes
this Board's exercise of jurisdiction where the disputed issue
is covered by the parties' contractual grievance-arbitration
procedures, we observe that our regulations are not to be
interpreted or applied in such a manner so as to override this
express jurisdictional barrier. In this regard, the Board's
application of PERB Regulation 32646 is at issue. PERB
Regulation 34246 provides, in pertinent part:
If the respondent believes that issuance of
the complaint is inappropriate . . because
the dispute is subject to final and binding
arbitration . . the respondent shall
assert such a defense in its answer and
shall move to dismiss the complaint,
In Charter Oak Unified School District (1982) PERB Order
No. Ad-125, this Board held that the district's failure to
demonstrate that the association's charge was cognizable under
a contractual grievance machinery to which PERB must defer was
sufficient grounds to affirm the hearing officer's decision to
refuse to dismiss a complaint. While the Board in Charter Oak
did not expressly hold that section 3541.5 (a) should be
considered an affirmative defense under EERA, subject to a
party's "waiver, " it did place upon the District, the defending
Decision No. 587; State of California (Department of Personnel
Administration) (1986) PERB Decision No. 600-S; San Juan
Unified School District (1982) PERB Decision No. 204.
32
party, the burden of showing that "deferral" was warranted and
that a complaint, therefore, should not have been issued.
While procedurally it is appropriate to have the respondent
call to the Board's attention that the charge is properly
deferrable, its failure to do so cannot be used as a basis
for expanding this Board's jurisdiction. Accordingly, we
disapprove of any implication in Charter Oak that prearbitra-
tion deferral is an affirmative defense under EERA subject to
a party's waiver.
Conclusion
In summation, we affirm the ALJ's proposed decision to the
extent that it was found that the District violated section
3543.S(c) of the EERA, and derivatively, section 3543.S(a)
and (b) by unilaterally changing the method of compensating
teachers for extra duties performed during the summer of 1983,
by unilaterally implementing a proposed $1,500 stipend for
teachers assigned to the learning specialist classification,
and by bypassing the exclusive representative in the direct
negotiation of a reduction in the work year of one unit member
for the 1983-84 and 1984-85 school years. Accordingly, we
adopt the ALJ's proposed decision and remedy pertaining to
these charges. Furthermore, consistent with the discussion
herein, we dismiss those charges alleging that the District
violated EERA by failing to give EVEA notice and an opportunity
to negotiate over the effects of its decision to reduce SIP
33
party, the burden of showing that "deferral" was warranted and
that a complaint, therefore, should not have been issued.
While procedurally it is appropriate to have the respondent
call to the Board's attention that the charge is properly
deferrable, its failure to do so cannot be used as a basis
for expanding this Board's jurisdiction. Accordingly, we
disapprove of any implication in Charter Oak that prearbitra-
tion deferral is an affirmative defense under EERA subject to
a party's waiver.
Conclusion
In summation, we affirm the ALJ's proposed decision to the
extent that it was found that the District violated section
3543.5 (c) of the EERA, and derivatively, section 3543.5(a)
and (b) by unilaterally changing the method of compensating
teachers for extra duties performed during the summer of 1983,
by unilaterally implementing a proposed $1, 500 stipend for
teachers assigned to the learning specialist classification,
and by bypassing the exclusive representative in the direct
negotiation of a reduction in the work year of one unit member
for the 1983-84 and 1984-85 school years. Accordingly, we
adopt the ALJ's proposed decision and remedy pertaining to
these charges. Furthermore, consistent with the discussion
herein, we dismiss those charges alleging that the District
violated EERA by failing to give EVEA notice and an opportunity
to negotiate over the effects of its decision to reduce SIP
33
instructional aide time, and by unilaterally extending the
workday of grades 4-6 teachers for four days during the 1983
fall conference week.
ORDER
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and pursuant to section
3541.S(c) of the Educational Employment Relations Act, it is
hereby ORDERED that the Lake Elsinore School District, its
Board of Trustees, Superintendent and its agents shall:
A. CEASE AND DESIST FROM:
1. Failing and refusing to meet and negotiate in
good faith with the Elsinore Valley Education Association,
CTA/NEA concerning: (a) changes in the rate of pay to unit
members for summer work performed; (b) implementation of the
learning specialist program, including the amount of annual
stipend paid; and (c) changes in the certificated work year
and other terms and conditions of employment within the scope
of representation.
2. Interfering with the right of the employees to be
represented in their employment relations with the District by
the employee organization of their choice.
3. Interfering with the right of the exclusive
representative to represent members of the bargaining unit in
their employment relations with their employer •.
34
instructional aide time, and by unilaterally extending the
workday of grades 4-6 teachers for four days during the 1983
fall conference week.
ORDER
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and pursuant to section
3541.5 (c) of the Educational Employment Relations Act, it is
hereby ORDERED that the Lake Elsinore School District, its
Board of Trustees, Superintendent and its agents shall:
A. CEASE AND DESIST FROM:
1 . Failing and refusing to meet and negotiate in
good faith with the Elsinore Valley Education Association,
CTA/NEA concerning: (a) changes in the rate of pay to unit
members for summer work performed; (b) implementation of the
learning specialist program, including the amount of annual
stipend paid; and (c) changes in the certificated work year
and other terms and conditions of employment within the scope
of representation.
2 . Interfering with the right of the employees to be
represented in their employment relations with the District by
the employee organization of their choice.
3. Interfering with the right of the exclusive
representative to represent members of the bargaining unit in
their employment relations with their employer..
34
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
2. Upon request, meet and negotiate with the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
3. Upon request of the Association, reinstate the
work year and other terms and conditions of employment of the
bilingual facilitator to those of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment.
35
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1 . Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
2 . Upon request, meet and negotiate with the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
3 . Upon request of the Association, reinstate the
work year and other terms and conditions of employment of the
bilingual facilitator to those of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment .
35
4. Within thirty-five (35) days following the date
this Decision is no longer subject to reconsideration, post at
all school sites and all other work locations where notices to
employees customarily are placed, copies of the Notice attached
as an appendix hereto, signed by an authorized agent of the
employer. Such posting shall be maintained for a period of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to insure that this Notice is not reduced in size,
defaced, altered or covered by any material.
5. Provide written notification of the actions taken
to comply with this Order to the Los Angeles Regional Director
of the Public Employment Relations Board in accordance with his
instructions.
It is furthered ORDERED that all other portions of the
unfair practice charge and complaint are DISMISSED.
Members Cr and Shank ned in this Decision.
36
4. Within thirty-five (35) days following the date
this Decision is no longer subject to reconsideration, post at
all school sites and all other work locations where notices to
employees customarily are placed, copies of the Notice attached
as an appendix hereto, signed by an authorized agent of the
employer. Such posting shall be maintained for a period of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to insure that this Notice is not reduced in size,
defaced, altered or covered by any material.
5 . Provide written notification of the actions taken
to comply with this Order to the Los Angeles Regional Director
of the Public Employment Relations Board in accordance with his
instructions.
It is furthered ORDERED that all other portions of the
unfair practice charge and complaint are DISMISSED.
Members Craib and Shank joined in this Decision.
36
APPENDIX NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Cases Nos. LA-CE-1827
and LA-CE-2031, Elsinore Valley Education Association,
CTA/NEA v. Lake Elsinore School District in which all parties
had the right to participate, it has been found that the
District violated Government Code section 3543.S(a), (b) and
(c) by unilaterally making changes concerning matters within
the scope of representation affecting certain unit members
without first meeting and negotiating with the exclusive
representative of such employees.
As a result of this conduct, we have been ordered to post
this Notice and we will:
A. CEASE AND DESIST FROM:
1. Failing and refusing to meet and negotiate in good
faith with the Elsinore Valley Education Association, CTA/NEA
concerning: (a) changes in the rate of pay to unit members
for summer work performed; (b) implementation of the learning
specialist program, including the amount of annual stipend
paid; and (c) changes in the certificated work year and other
terms and conditions of employment within the scope of
representation.
2. Interfering with the right of employees to be
represented in their employment relations with the District
by the employee organization of their choice.
3. Interfering with the right of the exclusive
representative to represent the members of the bargaining
unit in their employment relations with their employer.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
APPENDIX NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Cases Nos. LA-CE-1827
and LA-CE-2031, Elsinore Valley Education Association,
CTA/NEA v. Lake Elsinore School District in which all parties
had the right to participate, it has been found that the
District violated Government Code section 3543.5(a), (b) and
(c) by unilaterally making changes concerning matters within
the scope of representation affecting certain unit members
without first meeting and negotiating with the exclusive
representative of such employees.
As a result of this conduct, we have been ordered to post
this Notice and we will:
A. CEASE AND DESIST FROM:
Failing and refusing to meet and negotiate in good
faith with the Elsinore Valley Education Association, CTA/NEA
concerning: (a) changes in the rate of pay to unit members
for summer work performed; (b) implementation of the learning
specialist program, including the amount of annual stipend
paid; and (c) changes in the certificated work year and other
terms and conditions of employment within the scope of
representation.
2 . Interfering with the right of employees to be
represented in their employment relations with the District
by the employee organization of their choice.
3. Interfering with the right of the exclusive
representative to represent the members of the bargaining
unit in their employment relations with their employer.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
2. Upon request, meet and iate th the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
3. Upon request of the Association, reinstate the
work year and other terms and conditions of employment of the
bilingual facilitator to those of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment.
DATED: LAKE ELSINORE SCHOOL DISTRICT
By:
Authorized Representative
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDA.YS FROM THE DATE OF POSTING AND MUST NOT
BE DEFACED, ALTERED, REDUCED IN SIZE OR COVERED WITH ANY OTHER
MATERIAL.
2
2. Upon request, meet and negotiate with the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
3. Upon request of the Association, reinstate the
work year and other terms and conditions of employment of the
bilingual facilitator to those of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment.
DATED : LAKE ELSINORE SCHOOL DISTRICT
By :
Authorized Representative
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE DEFACED, ALTERED, REDUCED IN SIZE OR COVERED WITH ANY OTHER
MATERIAL .
N
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ELSINORE VALLEY EDUCATION ASSOCIATION,
Charging Party,
v.
LAKE ELSINORE SCHOOL DISTRICT,
Respondent.
)
)
)
.4)
)
)
)
)
)
____________________ )
Unfair Practice
Case Nos. LA-CE-1827
LA-CE-2031
PROPOSED DECISION
(7/24/85)
Appearances: A. Eugene Huguenin, Jr. (California Teachers
Association), Attorney for Elsinore Valley Education
Association; James c. Whitlock (Parham & Associates, Inc.),
for Lake Elsinore School District.
Before: W. Jean Thomas, Administrative Law Judge.
STATEMENT OF CASE
These two cases concern allegations of a series of
unilateral changes by the Respondent District in wages, hours
and other terms and conditions of employment of employees
represented by the Charging Party, including bypass of the
Association representative and direct negotiations with an
individual bargaining unit employee.
PROCEDURAL HISTORY
Unfair practice case No. LA-CE-1827 was originally filed
August 10, 1983, by James E. Caldwell, as an individual,
against Elsinore Union School District alleging violations of
Educational Employment Relations Act (hereafter EERA or Act)
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ELSINORE VALLEY EDUCATION ASSOCIATION,
Unfair Practice
Charging Party, Case Nos. LA-CE-1827
LA-CE-2031
V .
PROPOSED DECISION
LAKE ELSINORE SCHOOL DISTRICT, (7/24/85)
Respondent.
Appearances: A. Eugene Huguenin, Jr. (California Teachers
Association), Attorney for Elsinore Valley Education
Association; James C. Whitlock (Parham & Associates, Inc. ),
for Lake Elsinore School District.
Before: W. Jean Thomas, Administrative Law Judge.
STATEMENT OF CASE
These two cases concern allegations of a series of
unilateral changes by the Respondent District in wages, hours
and other terms and conditions of employment of employees
represented by the Charging Party, including bypass of the
Association representative and direct negotiations with an
individual bargaining unit employee.
PROCEDURAL HISTORY
Unfair practice case No. LA-CE-1827 was originally filed
August 10, 1983, by James E. Caldwell, as an individual,
against Elsinore Union School District alleging violations of
Educational Employment Relations Act (hereafter EERA or Act )
sections 3543.S(a). (b) and (c). 1 A first amendment to the
charge was filed October 25, 1983, by the Elsinore Valley
Education Association. CTA/NEA (hereafter EVEA or Charging
Party) which substituted itself in place of James Caldwell as
the Charging Party. A second amendment to the charge. filed
December 6. 1983. withdrew specific paragraphs of the first
amendment and substituted Lake Elsinore School District as the
Respondent (hereafter District or Respondent) in place of
Elsinore Union School District. In order to clarify the issues
being contested, on January 30, 1984, a second amended charge
was filed which superseded all previous charges and
amendments. In addition to the statutory violations cited
above. this amendment additionally alleged a violation of
1The Educational Employment Relations Act is codified at
Government Code section 3540 et seq. All future references are
to the Government Code unless otherwise noted.
Section 3543.5 states as follows:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees. to discriminate or threaten to
discriminate against employees. or otherwise
to interfere with. restrain. or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate
in good faith with an exclusive
representative.
2
sections 3543.5(a). (b) and (c). A first amendment to the
charge was filed October 25, 1983, by the Elsinore Valley
Education Association, CTA/NEA (hereafter EVEA or Charging
Party) which substituted itself in place of James Caldwell as
the Charging Party. A second amendment to the charge, filed
December 6, 1983, withdrew specific paragraphs of the first
amendment and substituted Lake Elsinore School District as the
Respondent (hereafter District or Respondent) in place of
Elsinore Union School District. In order to clarify the issues
being contested, on January 30, 1984, a second amended charge
was filed which superseded all previous charges and
amendments . In addition to the statutory violations cited
above, this amendment additionally alleged a violation of
The Educational Employment Relations Act is codified at
Government Code section 3540 et seq. All future references are
to the Government Code unless otherwise noted.
Section 3543.5 states as follows:
It shall be unlawful for a public school
employer to:
(a ) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
( b ) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate
in good faith with an exclusive
representative.
2
section 3543.3 in that the District violated a settlement
agreement entered into by the parties on April 15, 1983, as a
result of a previous unfair practice charge filed by the
EVEA. 2
On June 15, 1984, the Office of the General counsel of
Public Employment Relations Board (hereafter PERB or Board)
issued a partial dismissal and refusal to issue complaint
regarding the allegations contained in paragraphs 1 and 3(d) of
the second amended charge by dismissing and deferring those
allegations to the parties' contractual arbitration procedure.
The allegations in paragraph 3(a) and 3(g) were dismissed for
failure to state a prima facie allegation of an unfair
practice. A complaint issued on the same date regarding the
factual allegations set forth in paragraphs 2, 3(b), 3(c), 3(e)
and 3(f). The substance of these allegations are
respectively: (2) unilateral reduction of instructional aide
time allocated certain teachers at two school sites in the fall
2 section 3543.3 states as follows:
A public school employer of such
representatives as it may designate who may,
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
3
section 3543.3 in that the District violated a settlement
agreement entered into by the parties on April 15, 1983, as a
result of a previous unfair practice charge filed by the
EVEA.
On June 15, 1984, the office of the General Counsel of
Public Employment Relations Board (hereafter PERB or Board)
issued a partial dismissal and refusal to issue complaint
regarding the allegations contained in paragraphs 1 and 3(d ) of
the second amended charge by dismissing and deferring those
allegations to the parties' contractual arbitration procedure.
The allegations in paragraph 3(a) and 3(g) were dismissed for
failure to state a prima facie allegation of an unfair
practice. A complaint issued on the same date regarding the
factual allegations set forth in paragraphs 2, 3(b), 3(c), 3(e)
and 3(f). The substance of these allegations are
respectively: (2) unilateral reduction of instructional aide
time allocated certain teachers at two school sites in the fall
2section 3543.3 states as follows:
A public school employer of such
representatives as it may designate who may,
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
3
of 1983, thereby increasing the length of the teachers 1 workday
beyond what it was during the preceding school year;
(3b) unilateral implementation of a change in the method and
amount of compensating teachers for extra duties performed
during the summer of 1983 by paying certain teachers on a per
diem basis rather than on an hourly basis which was the past
practice for remunerations for such extra duty; (3c) during the
summer and fall of 1983, while negotiations regarding the
1983-84 salary were ongoing, and prior to reaching agreement or
impasse thereon, the District unilaterally implemented its
proposed learning specialist program, including the payment of
a $1500 annual stipend to employees assigned as learning
specialists; (3e) unilateral extension of the working day for
teachers in grades 4-6 on four days designated for parent
conferencing in November 1983 by requiring the teachers to
teach approximately 30 minutes longer than they had been
required to teach during similar conference days in prior
school years; and (3f) unilateral reduction of the work year of
an employee represented by EVEA through an agreement negotiated
individually with the employee, thereby bypassing EVEA as the
exclusive representative.
The Respondent filed an answer July 6, 1984, admitting
certain factual allegations, denying others and raising
affirmative defenses. An informal settlement conference held
August 15, 1984, did not resolve the dispute.
4
of 1983, thereby increasing the length of the teachers' workday
beyond what it was during the preceding school year;
(3b) unilateral implementation of a change in the method and
amount of compensating teachers for extra duties performed
during the summer of 1983 by paying certain teachers on a per
diem basis rather than on an hourly basis which was the past
practice for remunerations for such extra duty; (3c) during the
summer and fall of 1983, while negotiations regarding the
1983-84 salary were ongoing, and prior to reaching agreement or
impasse thereon, the District unilaterally implemented its
proposed learning specialist program, including the payment of
a $1500 annual stipend to employees assigned as learning
specialists; (3e) unilateral extension of the working day for
teachers in grades 4-6 on four days designated for parent
conferencing in November 1983 by requiring the teachers to
teach approximately 30 minutes longer than they had been
required to teach during similar conference days in prior
school years; and (3f) unilateral reduction of the work year of
an employee represented by EVEA through an agreement negotiated
individually with the employee, thereby bypassing EVEA as the
exclusive representative.
The Respondent filed an answer July 6, 1984, admitting
certain factual allegations, denying others and raising
affirmative defenses. An informal settlement conference held
August 15, 1984, did not resolve the dispute.
A consolidated second informal conference conducted
October 17-18, 1984, was likewise unsuccessful. 3
On August 10, 1984, James E. Caldwell filed unfair practice
charge case number LA-CE-2031. This charge, which was amended
August 28, 1984, alleged that the District violated
section 3543.S(a), (b) and (c), by again, bypassing EVEA and
negotiating directly with the same employee involved in
paragraph 3(f) of case LA-CE-1827 to extend the employee's
shortened work year for the 1984-85 school year. The
complaint, issued by the PERB September 20, 1984, substituted
EVEA as the Charging Party in place of Caldwell.
As noted above, this charge was included with the other
outstanding cases for the consolidated informal conference on
October 17-18, 1984. October 17-18, 1984. October 22, 1984, Respondent filed a
motion to dismiss on the grounds that the subject employee
requested and received a partial child-bearing leave which was
consistent with the applicable terms of the collective
bargaining agreement between the parties and that EVEA had
received notice of this action. On October 31, 1984, EVEA
filed an opposition to the motion. No ruling was made on the
3At the time of the informal conference there were nine
active cases before PERB involving the Association and the
District. The consolidated informal conference involved the
following cases -- LA-CE-1827, CE-1964, CE-1968, CE-1976,
CE-2028, CE-2030, CE-2031, CE-2059 and CE-2076 -- and was an
attempt by PERB to effect a mediated resolution of all disputes
between the parties.
5
A consolidated second informal conference conducted
October 17-18, 1984, was likewise unsuccessful.
On August 10, 1984, James E. Caldwell filed unfair practice
charge case number LA-CE-2031. This charge, which was amended
August 28, 1984, alleged that the District violated
section 3543.5(a), (b) and (c), by again, bypassing EVEA and
negotiating directly with the same employee involved in
paragraph 3(f) of case LA-CE-1827 to extend the employee's
shortened work year for the 1984-85 school year. The
complaint, issued by the PERB September 20, 1984, substituted
EVEA as the Charging Party in place of Caldwell.
As noted above, this charge was included with the other
outstanding cases for the consolidated informal conference on
October 22, 1984, Respondent filed a
motion to dismiss on the grounds that the subject employee
requested and received a partial child-bearing leave which was
consistent with the applicable terms of the collective
bargaining agreement between the parties and that EVEA had
received notice of this action. On October 31, 1984, EVEA
filed an opposition to the motion. No ruling was made on the
3At the time of the informal conference there were nine
active cases before PERB involving the Association and the
District. The consolidated informal conference involved the
following cases -- LA-CE-1827, CE-1964, CE-1968, CE-1976,
CE-2028, CE-2030, CE-2031, CE-2059 and CE-2076 -- and was an
attempt by PERB to effect a mediated resolution of all disputes
between the parties.
motion prior to the hearing and the motion was taken under
submission for ruling with this decision.
on October 30, 1984, a consolidated pre-hearing conference
was conducted by the undersigned of all the charges referenced
below to determine the order of presentation of the cases for
formal hearing. At that conference, it was decided to
consolidate the instant two charges for hearing and proposed
decision.
Following a consolidated pre-hearing conference by the
undersigned. involving all nine cases, these two cases were
jointly heard on October 31, November I and November 28, 1984.
At the conclusion of the hearing. EVEA moved to amend the
pleadings in case n11mber LA-CE-2O31 to conform to evidence
presented during the hearing. This motion was also taken under
submission for a ruling with the proposed decision.
Post-hearing briefs were filed and the cases were submitted
as of February 25, 1985.
FINDINGS OF FACT
A. Ba,ckqround
The Lake Elsinore School District is a public school
employer within the meaning of section 3540.l(k). The EVEA is
the exclusive representative. within the meaning of section
3540.l(e). of the certificated bargaining unit of District
employees. Prior to July 1983 the District, which was known as
Elsinore Union School District and the Elsinore Union High
6
motion prior to the hearing and the motion was taken under
submission for ruling with this decision.
On October 30. 1984, a consolidated pre-hearing conference
was conducted by the undersigned of all the charges referenced
below to determine the order of presentation of the cases for
formal hearing. At that conference, it was decided to
consolidate the instant two charges for hearing and proposed
decision.
Following a consolidated pre-hearing conference by the
undersigned, involving all nine cases, these two cases were
jointly heard on October 31, November 1 and November 28, 1984.
At the conclusion of the hearing, EVEA moved to amend the
pleadings in case number LA-CE-2031 to conform to evidence
presented during the hearing. This motion was also taken under
submission for a ruling with the proposed decision.
Post-hearing briefs were filed and the cases were submitted
as of February 25, 1985.
FINDINGS OF FACT
A. Background
The Lake Elsinore School District is a public school
employer within the meaning of section 3540.1(k) . The EVEA is
the exclusive representative, within the meaning of section
3540.1(e), of the certificated bargaining unit of District
employees. Prior to July 1983 the District, which was known as
Elsinore Union School District and the Elsinore Union High
School District, had a common administration. Both districts
employed the same superintendent. Each district, however, had
a separate board of trustees. In July 1983 separate
superintendent positions and administrations were established.
James Flora, who had been superintendent of both school
districts since 1981, continued as superintendent of the
Respondent District.
The District has an enrollment of 2600 pupils in
grades K-6. There are approximately 100 employees in the
certificated bargaining unit. The District has four school
sites. A fifth site, Jean Hayman School, was scheduled to open
in the very near future and, at the time of the hearing, was
housed at one of the existing sites.
A collective bargaining agreement (hereafter CBA or
agreement) between the parties expired in June 1982.
Negotiations over a successor agreement continued until
April 15, 1983, when a new CBA, retroactive to July 1, 1982,
was signed. That agreement, which provided for reopener
negotiations in 1983 and 1984, was in effect until
June 30, 1985.
Because the alleged violations in Gase Nos. LA-CE-1827 and
LA-CE-2031 are specific and discrete, the findings of fact with
respect to each specification will be done separately, rather
than in one consolidated discussion of the facts.
7
School District, had a common administration. Both districts
employed the same superintendent. Each district, however, had
a separate board of trustees. In July 1983 separate
superintendent positions and administrations were established.
James Flora, who had been superintendent of both school
districts since 1981, continued as superintendent of the
Respondent District.
The District has an enrollment of 2600 pupils in
grades K-6. There are approximately 100 employees in the
certificated bargaining unit. The District has four school
sites. A fifth site, Jean Hayman School, was scheduled to open
in the very near future and, at the time of the hearing, was
housed at one of the existing sites.
A collective bargaining agreement (hereafter CBA or
agreement ) between the parties expired in June 1982.
Negotiations over a successor agreement continued until
April 15, 1983, when a new CBA, retroactive to July 1, 1982,
was signed. That agreement, which provided for reopener
negotiations in 1983 and 1984, was in effect until
June 30, 1985.
Because the alleged violations in Case Nos. LA-CE-1827 and
LA-CE-2031 are specific and discrete, the findings of fact with
respect to each specification will be done separately, rather
than in one consolidated discussion of the facts.
7
B. Reduction in Hours of Instructional Aides
This issue is limited to the reduction of instructional
aide time affecting the length of the teachers' workday in
grades K-3 at two school sites Wildomar Elementary and
Butterfield Elementary Schools. The specific aide time
concerns that provided through the school Improvement Program
(SIP), a state categorically-funded program. All four school
sites have SIP programs operating on a three-year cycle which
started with the 1982-83 school year. The SIP program is
specially geared to assist students in grades K-3. The plans
for the use of SIP funds were developed by each local school
site council following general guidelines provided by the
District board.
The instructional aides are utilized to provide educational
assistance to the students in the subject areas of reading,
mathematics and language arts. They work under the direction
and supervision of the classroom teacher to whom the aide is
assigned.
In 1982-83 the plan at Wildomar School included three hours
of aide time for each class in grades K-3 for the three
subjects. In the 1983-84 school year the Wildomar school site
council, acting under the District board's general direction,
decided to reduce the amount of aide time in the classrooms and
add a library aide, an aide coordinator of volunteers, and a
8
B. Reduction in Hours of Instructional Aides
This issue is limited to the reduction of instructional
aide time affecting the length of the teachers' workday in
grades K-3 at two school sites -- Wildomar Elementary and
Butterfield Elementary Schools. The specific aide time
concerns that provided through the School Improvement Program
(SIP), a state categorically-funded program. All four school
sites have SIP programs operating on a three-year cycle which
started with the 1982-83 school year. The SIP program is
specially geared to assist students in grades K-3. The plans
for the use of SIP funds were developed by each local school
site council following general guidelines provided by the
District board.
The instructional aides are utilized to provide educational
assistance to the students in the subject areas of reading,
mathematics and language arts. They work under the direction
and supervision of the classroom teacher to whom the aide is
assigned.
In 1982-83 the plan at Wildomar School included three hours
of aide time for each class in grades K-3 for the three
subjects. In the 1983-84 school year the Wildomar school site
council, acting under the District board's general direction,
decided to reduce the amount of aide time in the classrooms and
add a library aide, an aide coordinator of volunteers, and a
8
computer laboratory aide. These were to be three-hour
positions for all pupils in grades K-6. In the spring of 1983
the board had offered matching funds for the library and
computer aide positions. However, this offer was later
withdrawn because of the discovery in July 1983 of a $300,000
budget deficit. Thus, the funding for the three new positions
came directly from the local site fund allocation for aide
services. The creation of the three positions resulted in a
reduction of the previous classroom aide time from three hours
per day to two hours per day in the kindergarten classes and
one and one-half hours per day for grade 2 classes.
Butterfield School was a new site started in the 1982-83
school year. The pupils and staff of Butterfield were housed
at Elsinore Elementary School until October 1982. The 1982-83
plan for aide time was three hours per day for grades K-1, and
one and one-half hours per day for grades 2-3.
When the SIP funds were reallocated for the 1983-84 school
year to include a computer laboratory aide at Butterfield, the
in-classroom aide time for grades K-1 remained at three hours
per day. At the beginning of the fall 1983 semester, grades
2-3 had no aide time for the first few weeks of the semester
until the teachers in the grades K-1 classes volunteered to
share one hour of aide time per day with grades 2 and 3.
9
computer laboratory aide. These were to be three-hour
positions for all pupils in grades K-6. In the spring of 1983
the board had offered matching funds for the library and
computer aide positions. However, this offer was later
withdrawn because of the discovery in July 1983 of a $300,000
budget deficit. Thus, the funding for the three new positions
came directly from the local site fund allocation for aide
services. The creation of the three positions resulted in a
reduction of the previous classroom aide time from three hours
per day to two hours per day in the kindergarten classes and
one and one-half hours per day for grade 2 classes.
Butterfield School was a new site started in the 1982-83
school year. The pupils and staff of Butterfield were housed
at Elsinore Elementary School until October 1982. The 1982-83
plan for aide time was three hours per day for grades K-1, and
one and one-half hours per day for grades 2-3.
When the SIP funds were reallocated for the 1983-84 school
year to include a computer laboratory aide at Butterfield, the
in-classroom aide time for grades K-1 remained at three hours
per day . At the beginning of the fall 1983 semester, grades
2-3 had no aide time for the first few weeks of the semester
until the teachers in the grades K-1 classes volunteered to
share one hour of aide time per day with grades 2 and 3.
9
Starting the fall of 1983, one-half of every class in
grades K-6 at both schools were taken in groups to the computer
lab and the library for a one-half hour session each (a total
of one hour per week) with the computer lab aide and the
library aide. This arrangement reduced the class size for each
teacher to one-half the number of pupils for reading and math
instruction and one-half hour per week for each subject area.
The impact of the reduction in aide time on the affected
teachers' workday varied depending on the grade level involved
and the amount of aide time which was reduced. Some teachers
had to modify their instructional strategy to accommodate the
absence of a second adult to work with the student groupings
into which the class is divided for instructional purposes.
For example, some teachers reduced their groups from three to
two during the time that no aide was available in order to
deliver the teaching assignments. Other teachers had to
increase the non-classroom preparation time to prepare
additional "seat work" for their students who were not assisted
by an aide while the teacher was instructing other segments of
the class. Additionally, some teachers spent more
non-classroom time correcting student written work than had
previously been corrected by the instructional aide during the
instructional time with the students. The evidence shows that
for those teachers affected by the reduction in aide time, the
average time spent in additional non-classroom preparation was
two and one-half to three hours per week.
10
Starting the fall of 1983, one-half of every class in
grades K-6 at both schools were taken in groups to the computer
lab and the library for a one-half hour session each (a total
of one hour per week ) with the computer lab aide and the
library aide. This arrangement reduced the class size for each
teacher to one-half the number of pupils for reading and math
instruction and one-half hour per week for each subject area.
The impact of the reduction in aide time on the affected
teachers' workday varied depending on the grade level involved
and the amount of aide time which was reduced. Some teachers
had to modify their instructional strategy to accommodate the
absence of a second adult to work with the student groupings
into which the class is divided for instructional purposes.
For example, some teachers reduced their groups from three to
two during the time that no aide was available in order to
deliver the teaching assignments. Other teachers had to
increase the non-classroom preparation time to prepare
additional "seat work" for their students who were not assisted
by an aide while the teacher was instructing other segments of
the class. Additionally, some teachers spent more
non-classroom time correcting student written work than had
previously been corrected by the instructional aide during the
instructional time with the students. The evidence shows that
for those teachers affected by the reduction in aide time, the
average time spent in additional non-classroom preparation was
two and one-half to three hours per week.
10
C. Rate of Compensation for Extra Duty/Summer Work
Article 7.0 of the 1982-85 CBA contains provisions covering
the working hours and the work year of certificated bargaining
unit members. Section 7.4 of that article specifically
establishes the length of the work year. It states as follows:
The length of the work year shall be 179
days for returning members and 180 days for
members new to the District. The nurse's
work year shall be 185 days. This means 175
days of student attendance, one day for
parent conferences, three (3) preservice
days, of which two (2) shall be at the
building level. Members new to the
Disstrict [sic] shall report one day earlier
than returning members for District planned
orientation purposes. Of the three (3)
preservice days, the third day, and one-half
of the second day, shall be meeting free and
devoted to classroom preparation.
The salary schedule for unit members is contained in
Article 22.0 of the agreement. There is no express language in
Article 22.0, or any other provision of the CBA, which pertains
to work performed beyond the regular work year, i.e., extra
t duty or summer wor k ass1gnmen s. . 4
4Article 8.0 of the 1982-85 CBA pertains to non-teaching
duties. Section 8.1 of that article specifies teacher duties
beyond their regular working hours for which no additional
compensation is to be paid. It states as follows:
Teachers shall be responsible for the
following duties beyond their regular
working hours without additional
compensation: participation in
Back-to-School Night, participation in one
Open House, and participation in three (3)
parent/teacher activities of the bargaining
unit member's choice.
11
C. Rate of Compensation for Extra Duty/Summer Work
Article 7.0 of the 1982-85 CBA contains provisions covering
the working hours and the work year of certificated bargaining
unit members. Section 7.4 of that article specifically
establishes the length of the work year. It states as follows:
The length of the work year shall be 179
days for returning members and 180 days for
members new to the District. The nurse's
work year shall be 185 days. This means 175
days of student attendance, one day for
parent conferences, three (3) preservice
days, of which two (2) shall be at the
building level. Members new to the
Disstrict [sic] shall report one day earlier
than returning members for District planned
orientation purposes. Of the three (3)
preservice days, the third day, and one-half
of the second day, shall be meeting free and
devoted to classroom preparation.
The salary schedule for unit members is contained in
Article 22.0 of the agreement. There is no express language in
Article 22.0, or any other provision of the CBA, which pertains
to work performed beyond the regular work year, i. e., extra
duty or summer work assignments.
Article 8.0 of the 1982-85 CBA pertains to non-teaching
duties. Section 8.1 of that article specifies teacher duties
beyond their regular working hours for which no additional
compensation is to be paid. It states as follows:
Teachers shall be responsible for the
following duties beyond their regular
working hours without additional
compensation: participation in
Back-to-School Night, participation in one
Open House, and participation in three ( 3)
parent/teacher activities of the bargaining
unit member's choice.
11
The parties have had a number of CBA's from the period of
1976-1985. Previous agreements for the period from 1976-1981
contained salary schedule provisions pertaining to extra duty
assignments. In the agreements for 1976-77, 1977-78 and
1978-79, summer school, home teaching and District projects
were to be compensated at an hourly rate of pay. summer school
preparation was to be compensated at a per diem rate of pay.
The 1979-80 and 1980-81 agreements did not contain salary
provisions for summer school assignments. However,
compensation for home teaching and District projects remained
on an hourly basis.
The salary provisions in the 1977-78 and 1978-79 agreements
included a formula for the computation of the hourly pay rate.
No agreement since that for 1978-79 has contained a specific
formula for calculating the hourly pay rate. Although there is
no definitive evidence about the current basis for determining
the hourly pay rate, it is undisputed that the hourly rate
formula that the District apparently applies to the current
certificated salary schedule is based on the formula which was
contained in the 1977-78 and 1978-79 agreements.
Two District witnesses, superintendent Flora and
Nella Isaacs, director of educational services, testified that
the District's determination of whether payment for extra duty
assignments was on an hourly or per diem basis depended on the
12
The parties have had a number of CBA's from the period of
1976-1985. Previous agreements for the period from 1976-1981
contained salary schedule provisions pertaining to extra duty
assignments. In the agreements for 1976-77, 1977-78 and
1978-79, summer school, home teaching and District projects
were to be compensated at an hourly rate of pay. Summer school
preparation was to be compensated at a per diem rate of pay.
The 1979-80 and 1980-81 agreements did not contain salary
provisions for summer school assignments. However,
compensation for home teaching and District projects remained
on an hourly basis.
The salary provisions in the 1977-78 and 1978-79 agreements
included a formula for the computation of the hourly pay rate.
No agreement since that for 1978-79 has contained a specific
formula for calculating the hourly pay rate. Although there is
no definitive evidence about the current basis for determining
the hourly pay rate, it is undisputed that the hourly rate
formula that the District apparently applies to the current
certificated salary schedule is based on the formula which was
contained in the 1977-78 and 1978-79 agreements.
Two District witnesses, Superintendent Flora and
Nella Isaacs, director of educational services, testified that
the District's determination of whether payment for extra duty
assignments was on an hourly or per diem basis depended on the
12
type of assignment and the funding source. According to
Isaacs' testimony, teachers who performed extra duty or summer
assignments for categorically-funded projects were usually
compensated on a per diem basis. She further testified that
when she worked as a resource specialist for the District, she
was compensated on a per diem basis for summer work performed.
However, on cross-examination, Isaacs admitted that she has
been a non-bargaining unit employee since the mid-1970's and
that, at the time she was employed as a resource specialist,
she is unsure about whether resource specialists were members
of the certificated bargaining unit.
There does appear to be some inconsistency in the rate of
of compensation paid to certain bargaining unit employees for
work performed during the summer of 1982. Thomas Engelhardt is
a Title I diagnostician working in a federally-funded project.
Engelhardt has worked during the summers in the District
projects office since the summer of 1982. Englehardt, who is a
member of the certificated bargaining unit, was paid a per u1em
rate for 35 days of summer work performed in addition to the
regular work year for the 1981-82 school year. Five other
teachers who each worked five days in the summer of 1982 for
the same projects office were paid the hourly rate of pay for a
total of 35 hours per employee.
~·
The preponderance of the evidence shows that for many years
prior to the summer of 1983, the majority of bargaining unit
13
type of assignment and the funding source. According to
Isaacs' testimony, teachers who performed extra duty or summer
assignments for categorically-funded projects were usually
compensated on a per diem basis. She further testified that
when she worked as a resource specialist for the District, she
was compensated on a per diem basis for summer work performed.
However, on cross-examination, Isaacs admitted that she has
been a non-bargaining unit employee since the mid-1970's and
that, at the time she was employed as a resource specialist,
she is unsure about whether resource specialists were members
of the certificated bargaining unit.
There does appear to be some inconsistency in the rate of
of compensation paid to certain bargaining unit employees for
work performed during the summer of 1982. Thomas Engelhardt is
a Title I diagnostician working in a federally-funded project.
Engelhardt has worked during the summers in the District
projects office since the summer of 1982. Englehardt, who is a
member of the certificated bargaining unit, was paid a per diem
rate for 35 days of summer work performed in addition to the
regular work year for the 1981-82 school year. Five other
teachers who each worked five days in the summer of 1982 for
the same projects office were paid the hourly rate of pay for a
total of 35 hours per employee.
The preponderante of the evidence shows that for many years
prior to the summer of 1983, the majority of bargaining unit
13
members who performed work during the summer were compensated
on an hourly basis. For example, Wilma Durrett, learning
specialist at Elsinore School, was paid on an hourly basis for
coordinating a summer correspondence program and administering
Santa Clara Testing to kindergarten students during the summers
of 1982, 1983 and 1984. Patricia Rettinger, a kindergarten
teacher with the District for 12 years, worked eight or nine
summers in a row for the District, also administering the Santa
Clara Testing of kindergarten students. Rettinger was paid on
an hourly basis for worked performed during the summers of 1983
and 1984. She also was paid an hourly rate for developing a
mathematics curriculum during the summer of 1983. Roger Pahl,
a Chapter I teacher at Machado School, was paid on an hourly
basis for summer work performed in developing instructional
materials in mathematics and science during the summers of 1981
and 1982 and for setting up the Chapter I laboratories during
the summers of 1983 and 1984. Jim Caldwell, a Chapter I
teacher at Wildornar School, was paid on an hourly basis for
summer work performed in connection with the Chapter I program
in the summer of 1984. Halle Reising, who formerly taught
grades 4-6 at Wildornar School, was paid an hourly rate for work
performed in developing a spelling project during the summer
of 1984.
It is undisputed that during the summer of 1983, with the
exception of two classes of unit employees -- the
14
members who performed work during the summer were compensated
on an hourly basis. For example, Wilma Durrett, learning
specialist at Elsinore School, was paid on an hourly basis for
coordinating a summer correspondence program and administering
Santa Clara Testing to kindergarten students during the summers
of 1982, 1983 and 1984. Patricia Rettinger, a kindergarten
teacher with the District for 12 years, worked eight or nine
summers in a row for the District, also administering the Santa
Clara Testing of kindergarten students. Rettinger was paid on
an hourly basis for worked performed during the summers of 1983
and 1984. She also was paid an hourly rate for developing a
mathematics curriculum during the summer of 1983. Roger Pahl,
a Chapter I teacher at Machado School, was paid on an hourly
basis for summer work performed in developing instructional
materials in mathematics and science during the summers of 1981
and 1982 and for setting up the Chapter I laboratories during
the summers of 1983 and 1984. Jim Caldwell, a Chapter I
teacher at Wildomar School, was paid on an hourly basis for
summer work performed in connection with the Chapter I program
in the summer of 1984. Halle Reising, who formerly taught
grades 4-6 at Wildomar School, was paid an hourly rate for work
performed in developing a spelling project during the summer
of 1984.
It is undisputed that during the summer of 1983, with the
exception of two classes of unit employees -- the
14
research-based instruction (RBI) coaches and learning
specialists, all teachers were compensated at the hourly rate
of pay for extra duty or summer work performed. There is a
provision in the 1982-85 CBA that covers terms and conditions
of employment for RBI coaches, who were formerly called "lead
teachers." 5
The learning specialist was a newly-created position in the
District in the spring of 1983. The implementation of this
program in the summer of 1983 is the subject of a separate
allegation in paragraph 3(c) of this unfair practice charge and
will be set forth more fully in the discussion of that
specification.
Four learning specialists were hired by the District to
provide services beginning the fall of 1983. The work that
they performed on the days prior to the beginning of the fall
semester was compensated on a per diem rate. Both Rettinger
and Halle Reising worked as RBI coaches during the summer of
1983 and were compensated at the per diem rate for the services
performed in that capacity.
superintendent Flora testified that, in addition to the per
diem rate of pay that was made to the RBI coaches and learning
5This provision is contained in Appendix l which pertains
to the implementation of the Erlene Minton research-based
instruction program. Among other things, it covers the work
year for lead teachers/RBI coaches, but contains no express
language on compensation rate for extra duty or summer work.
15
research-based instruction (RBI ) coaches and learning
specialists, all teachers were compensated at the hourly rate
of pay for extra duty or summer work performed. There is a
provision in the 1982-85 CBA that covers terms and conditions
of employment for RBI coaches, who were formerly called "lead
teachers. "5
The learning specialist was a newly-created position in the
District in the spring of 1983. The implementation of this
program in the summer of 1983 is the subject of a separate
allegation in paragraph 3(c) of this unfair practice charge and
will be set forth more fully in the discussion of that
specification.
Four learning specialists were hired by the District to
provide services beginning the fall of 1983. The work that
they performed on the days prior to the beginning of the fall
semester was compensated on a per diem rate. Both Rettinger
and Halle Reising worked as RBI coaches during the summer of
1983 and were compensated at the per diem rate for the services
performed in that capacity.
Superintendent Flora testified that, in addition to the per
diem rate of pay that was made to the RBI coaches and learning
5This provision is contained in Appendix 1 which pertains
to the implementation of the Erlene Minton research-based
instruction program. Among other things, it covers the work
year for lead teachers/RBI coaches, but contains no express
language on compensation rate for extra duty or summer work.
15
specialists in the summer of 1983, other classifications of
unit employees who were paid the per diem rate for summer work
were the speech therapists, the bilingual facilitator and the
nurse. The length of the work year and the salary for the
speech therapists is the subject of a separate unfair practice
charge filed by EVEA (LA-CE-2059). A proposed decision by an
administrative law judge was issued in that case on
May 13, 1985. The EVEA challenge to the work year and the
compensation of the bilingual facilitator, except for the per
diem summer pay issue, is the subject of the specifications set
forth in paragraph 3(f) of the instant charge and will be
discussed in a separate finding of fact infra. 6
Other than Rettinger and Reising, the record does not show
the total number of RBI coaches who worked during the summer
Additionally, the total number of extra days worked by
each individual RBI coach is not known.
D. Learning Specialist Program
In the spring of 1982 the District considered the notion of
developing a concept for "teacher coaching" that was based on
6Although superintendent Flora testified that the nurse
was paid the per diem rate for summer work performed, the work
year specified in section 7.4 of Article 7 of the CBA is
185 days. There is no specific mention of a separate salary
rate for the nurse in Article 22.0, which is the salary
provision of the agreement. Since no issue has been raised by
the Charging Party concerning the rate of compensation of the
nurse, no findings regarding this testimony is made with
respect to this classification of employee.
16
specialists in the summer of 1983, other classifications of
unit employees who were paid the per diem rate for summer work
were the speech therapists, the bilingual facilitator and the
nurse. The length of the work year and the salary for the
speech therapists is the subject of a separate unfair practice
charge filed by EVEA (LA-CE-2059). A proposed decision by an
administrative law judge was issued in that case on
May 13, 1985. The EVEA challenge to the work year and the
compensation of the bilingual facilitator, except for the per
diem summer pay issue, is the subject of the specifications set
forth in paragraph 3(f) of the instant charge and will be
discussed in a separate finding of fact infra.
Other than Rettinger and Reising, the record does not show
the total number of RBI coaches who worked during the summer
1983. Additionally, the total number of extra days worked by
each individual RBI coach is not known.
D. Learning Specialist Program
In the spring of 1982 the District considered the notion of
developing a concept for "teacher coaching" that was based on
Although Superintendent Flora testified that the nurse
was paid the per diem rate for summer work performed, the work
year specified in section 7.4 of Article 7 of the CBA is
185 days. There is no specific mention of a separate salary
rate for the nurse in Article 22.0, which is the salary
provision of the agreement. Since no issue has been raised by
the Charging Party concerning the rate of compensation of the
nurse, no findings regarding this testimony is made with
respect to this classification of employee.
16
observations by various District administrators and teachers of
this type of a program at two nearby school districts. Through
discussions held during the 1982-83 school year by the District
board itself and the staff, including the District
instructional council, the concept gradually developed into
what was called the learning specialist (LS) program. The
primary function of the LS was to provide small group
instruction to children with special needs and to assist
teachers in developing programs in all areas of instruction.
superintendent Flora considered the LS program to be more
advanced in its application than the RBI coaching/lead teacher
program.
On April 26, 1983, the District board approved a job
description and positions for the LS classification. Shortly
thereafter, the District posted a vacancy notice; seeking
applicants for the four positions to be filled. The notice
stated that applicants were limited to teachers already on the
staff. The deadline for filing applications was May 13, 1983.
The notice included a rather detailed list of assigned
responsibilities for the LS position and listed in the "minimum
qualifications" section, among other things, that,
••• stipend, hours, and other terms and
conditions of employment for this position
will be subject to negotiations with the
Exclusive Representative for the
certificated bargaining unit.
17
observations by various District administrators and teachers of
this type of a program at two nearby school districts. Through
discussions held during the 1982-83 school year by the District
board itself and the staff, including the District
instructional council, the concept gradually developed into
what was called the learning specialist (LS) program. The
primary function of the LS was to provide small group
instruction to children with special needs and to assist
teachers in developing programs in all areas of instruction.
Superintendent Flora considered the LS program to be more
advanced in its application than the RBI coaching/lead teacher
program.
On April 26, 1983, the District board approved a job
description and positions for the LS classification. Shortly
thereafter, the District posted a vacancy notice, seeking
applicants for the four positions to be filled. The notice
stated that applicants were limited to teachers already on the
staff. The deadline for filing applications was May 13, 1983.
The notice included a rather detailed list of assigned
responsibilities for the LS position and listed in the "minimum
qualifications" section, among other things, that,
. stipend, hours, and other terms and
conditions of employment for this position
will be subject to negotiations with the
Exclusive Representative for the
certificated bargaining unit.
17
Nine teachers applied for the positions, one of which was to be
placed in each of the four school sites.
On May 20 and 23, 1983, the District conducted interviews
of the applicants. Four individuals were ultimately selected
and officially appointed by District board action on
June 2, 1983, for service during the 1983-84 school year.
On May 13, 1983, superintendent Flora met with Edna Wright,
EVEA president, Ozzie Hairston, EVEA negotiating team
spokesperson, and Jim Caldwell, EVEA grievance chairperson,
regarding the LS program. The record fails to reveal the
specifics of any discussion that took place except that the
District made no specific proposal regarding the LS program at
that meeting.
A subsequent meeting was scheduled between Flora and
Hairston for June 1, 1983, but was cancelled because Hairston
was ill.
On June 7, 1983, the parties held their first meeting
regarding their 1983 contract reopener negotiations. The EVEA
representatives present at this meeting were sue Warwick, Judy
Stewart-Monceaux, Ozzie Hairston, and Karen Bach. The District The District
representatives were superintendent Flora and Cliff Koch,
assistant superintendent, business. The reopener clause of the
CBA provided for salaries, fringe benefits, and three optional
items apiece for each party. The District opted to include
18
Nine teachers applied for the positions, one of which was to be
placed in each of the four school sites.
On May 20 and 23, 1983, the District conducted interviews
of the applicants. Four individuals were ultimately selected
and officially appointed by District board action on
June 2, 1983, for service during the 1983-84 school year.
On May 13, 1983, Superintendent Flora met with Edna Wright,
EVEA president, Ozzie Hairston, EVEA negotiating team
spokesperson, and Jim Caldwell, EVEA grievance chairperson,
regarding the LS program. The record fails to reveal the
specifics of any discussion that took place except that the
District made no specific proposal regarding the LS program at
that meeting.
A subsequent meeting was scheduled between Flora and
Hairston for June 1, 1983, but was cancelled because Hairston
was ill.
On June 7, 1983, the parties held their first meeting
regarding their 1983 contract reopener negotiations. The EVEA
representatives present at this meeting were Sue Warwick, Judy
Stewart-Monceaux, Ozzie Hairston, and Karen Bach.
representatives were Superintendent Flora and Cliff Koch,
assistant superintendent, business. The reopener clause of the
CBA provided for salaries, fringe benefits, and three optional
items apiece for each party. The District opted to include
18
hours, evaluations and transfers. EVEA added no optional
items. Although the 1982-85 CBA included a provision covering
implementation of the lead teacher program, there was no
similar provision pertaining to the LS program and neither
party made proposals about this subject. During this session,
the parties reviewed their respective proposals and agreed to
general procedural parameters for coming negotiations.
one subject of discussion during the June 7 meeting was the
District administration's desire to stagger the arrival times
of students at all four school sites, starting the 1983-84
school year. The administration was considering this change in
order to accommodate a request by the new busing contractor.
Discussion about the LS program was initiated when Flora
proposed that the amount of the annual stipend for the LS's be
set at $1500. EVEA felt that the proposed amount was too low.
Although Flora testified that all other matters concerning
the LS program were orally agreed to by the parties except the
stipend, the testimony of Stewart-Monceaux and Bach directly
contradict that of Flora. Bach testified that no agreement was
reached on any aspect of the LS issue on June 7. According to
her testimony, Hairston agreed to take the District's stipend
proposal to the EVEA membership for its consideration prior to
making a counterproposal to the District. Based on the
observation of the witnesses during their testimony and their
19
hours, evaluations and transfers. EVEA added no optional
items. Although the 1982-85 CBA included a provision covering
implementation of the lead teacher program, there was no
similar provision pertaining to the LS program and neither
party made proposals about this subject. During this session,
the parties reviewed their respective proposals and agreed to
general procedural parameters for coming negotiations.
One subject of discussion during the June 7 meeting was the
District administration's desire to stagger the arrival times
of students at all four school sites, starting the 1983-84
school year. The administration was considering this change in
order to accommodate a request by the new busing contractor.
Discussion about the LS program was initiated when Flora
proposed that the amount of the annual stipend for the LS's be
set at $1500. EVEA felt that the proposed amount was too low.
Although Flora testified that all other matters concerning
the LS program were orally agreed to by the parties except the
stipend, the testimony of Stewart-Monceaux and Bach directly
contradict that of Flora. Bach testified that no agreement was
reached on any aspect of the LS issue on June 7. According to
her testimony, Hairston agreed to take the District's stipend
proposal to the EVEA membership for its consideration prior to
making a counterproposal to the District. Based on the
observation of the witnesses during their testimony and their
19
ability to recall the events of this meeting, the testimony of
Stewart-Monceaux and Bach is credited on this matter. It is
thus concluded that no agreement was reached on June 7 about
any negotiable aspect of the LS program.
The next negotiating session was held August 12, 1983. At
that meeting Tom Brown, a negotiating specialist for the
California Teachers Association, was the EVEA chief
spokesperson, and James Whitlock was the spokesperson for the
District. The first part of the discussion centered on the
District's representation that it was experiencing financial
difficulties because a $300,000 budget deficit had been
discovered in July 1983. Consequently, the District would have
to make cutbacks in various areas in order to achieve a
balanced budget.
Brown brought up the subject of the LS program and verbally
requested bargaining if the District intended to implement the
program during the 1983-84 school year. The District stated
that because of the budget problem, the proposed LS program
would be placed on hold. At the conclusion of the meeting,
EVEA thought that the parties had an agreement or understanding
that before the District moved forward to implement either the
LS program or the Mentor Teacher program (which is a very
similar type of program that was then under consideration), the
parties would negotiate over the negotiable aspect of either
program.
20
ability to recall the events of this meeting, the testimony of
Stewart-Monceaux and Bach is credited on this matter. It is
thus concluded that no agreement was reached on June 7 about
any negotiable aspect of the LS program.
The next negotiating session was held August 12, 1983. At
that meeting Tom Brown, a negotiating specialist for the
California Teachers Association, was the EVEA chief
spokesperson, and James Whitlock was the spokesperson for the
District. The first part of the discussion centered on the
District's representation that it was experiencing financial
difficulties because a $300,000 budget deficit had been
discovered in July 1983. Consequently, the District would have
to make cutbacks in various areas in order to achieve a
balanced budget.
Brown brought up the subject of the LS program and verbally
requested bargaining if the District intended to implement the
program during the 1983-84 school year. The District stated
that because of the budget problem, the proposed LS program
would be placed on hold. At the conclusion of the meeting,
EVEA thought that the parties had an agreement or understanding
that before the District moved forward to implement either the
LS program or the Mentor Teacher program (which is a very
similar type of program that was then under consideration), the
parties would negotiate over the negotiable aspect of either
program.
20
The next negotiating session was September 2, 1983, which
was just after the beginning of the 1983-84 school year. By
that time EVEA representatives were aware that the LS's were
functioning at the school sites and receiving a $1500 annual
stipend. When questioned by EVEA, Koch said that money had
been allocated in the 1983-84 budget for the program to be
implemented. Upon hearing this, Brown verbally demanded to
bargain with the District over this matter. Whitlock promised
to check with the superintendent, who was not present at that
part of the meeting, about the budget and agreed to bargain
with EVEA over the amount of the stipend.
Whitlock responded to Brown in a letter dated
September 13, 1984, which set forth the details of the LS
program. The letter stated as follows:
I checked with the superintendent in
Elsinore Elementary for the details of the
Learning Specialist. Here they are as I
understand them:
1. There have been four Learning
Specialists selected in the District,
one at each school site.
2. For this workyear only, the Learning
Specialists worked two days prior to
the start of school. This was only for
the start of this year and from now on
Learning Specialists will have the same
workyear as all other unit members.
3. workhours for a Learning Specialist are
the same as other regular unit
members. 50% of the time Learning
21
The next negotiating session was September 2, 1983, which
was just after the beginning of the 1983-84 school year. By
that time EVEA representatives were aware that the LS's were
functioning at the school sites and receiving a $1500 annual
stipend. When questioned by EVEA, Koch said that money had
been allocated in the 1983-84 budget for the program to be
implemented. Upon hearing this, Brown verbally demanded to
bargain with the District over this matter. Whitlock promised
to check with the superintendent, who was not present at that
part of the meeting, about the budget and agreed to bargain
with EVEA over the amount of the stipend.
Whitlock responded to Brown in a letter dated
September 13, 1984, which set forth the details of the LS
program. The letter stated as follows:
I checked with the Superintendent in
Elsinore Elementary for the details of the
Learning Specialist. Here they are as I
understand them:
1. There have been four Learning
Specialists selected in the District,
one at each school site.
2. For this workyear only, the Learning
Specialists worked two days prior to
the start of school. This was only for
the start of this year and from now on
Learning Specialists will have the same
workyear as all other unit members.
3. Workhours for a Learning Specialist are
the same as other regular unit
members . 50% of the time Learning
21
Specialists are with students. The
remaining 50% of their time, the
Learning Specialist is released from
their teaching duties to work with
other teachers.
4. The District plans to pay these
teachers a $1,500 stipend above their
regular salary schedule placement.
To my knowledge, all other terms and
conditions of employment will be the
same for learning specialists as for
other regular unit members.
Upon receiving this letter, Brown testified that EVEA felt
that it had been "sandbagged" by the District in that EVEA
representatives were told one thing at the bargaining table and
then the District took action contrary to its position at the
table. Following receipt of Whitlock's letter, Dee Thomas, the
new EVEA president, sent a written demand to bargain over the
LS program in a letter dated September 26, 1983.
The parties continued their negotiations over the reopener
items by meeting October 26 and November 28, 1983. The LS
issue was discussed at both sessions. At the October 26
meeting, EVEA demanded that the District return to the
status quo and bargain over the amount of the stipend, the
length of the work year, compensation for extra duty, and the
amount of instructional time the LS would spend in the
classroom.
At the time of their employment in the LS positions, the
four selected teachers signed individual contracts of
22
Specialists are with students. The
remaining 508 of their time, the
Learning Specialist is released from
their teaching duties to work with
other teachers.
4. The District plans to pay these
teachers a $1,500 stipend above their
regular salary schedule placement.
To my knowledge, all other terms and
conditions of employment will be the
same for learning specialists as for
other regular unit members.
Upon receiving this letter, Brown testified that EVEA felt
that it had been "sandbagged" by the District in that EVEA
representatives were told one thing at the bargaining table and
then the District took action contrary to its position at the
table. Following receipt of Whitlock's letter, Dee Thomas, the
new EVEA president, sent a written demand to bargain over the
LS program in a letter dated September 26, 1983.
The parties continued their negotiations over the reopener
items by meeting October 26 and November 28, 1983. The LS
issue was discussed at both sessions. At the October 26
meeting, EVEA demanded that the District return to the
status quo and bargain over the amount of the stipend, the
length of the work year, compensation for extra duty, and the
amount of instructional time the LS would spend in the
classroom.
At the time of their employment in the LS positions, the
four selected teachers signed individual contracts of
22
employment which provided for a $1500 annual stipend to be paid
in equal monthly installments.
At the time of the hearing, no agreement had been reached
on any aspect of the learning specialists issue.
E. Teacher Instructional Time on Minimum Student Days During
Parent conferencing week
Traditionally, the District has scheduled the fall parent
conferences to take place at the end of the first quarter of
the school year. usually this is sometime in November. The
week that parent conferences are scheduled, the students are on
a minimum day schedule on Monday, Tuesday, Thursday and
Friday. On Wednesday of that week, the students do not attend
school. A minimum day of instruction is defined by California
Education Code section 46113 as 230 minutes for grades 1-3 and
240 minutes for grades 4-6.
During parent conference week the teachers are expected to
schedule 20 minute conferences, if possible, with the parents
of all their students starting at the time of student
dismissals through the end of their regular workday.
Conferences are to be held all day long on Wednesdays during
the teachers' regular seven and one-half hour workday. Those
parents who cannot attend a conference at the school site can
be conferenced by telephone. If necessary, conferences may be
scheduled beyond the teachers' regular workday.
Prior to the conferences, the teachers must complete the
grading period, including testing and the completion of student
23
employment which provided for a $1500 annual stipend to be paid
in equal monthly installments.
At the time of the hearing, no agreement had been reached
on any aspect of the learning specialists issue.
E. Teacher Instructional Time on Minimum Student Days During
Parent Conferencing Week
Traditionally, the District has scheduled the fall parent
conferences to take place at the end of the first quarter of
the school year. Usually this is sometime in November. The
week that parent conferences are scheduled, the students are on
a minimum day schedule on Monday, Tuesday, Thursday and
Friday. On Wednesday of that week, the students do not attend
school. A minimum day of instruction is defined by California
Education Code section 46113 as 230 minutes for grades 1-3 and
240 minutes for grades 4-6.
During parent conference week the teachers are expected to
schedule 20 minute conferences, if possible, with the parents
of all their students starting at the time of student
dismissals through the end of their regular workday.
Conferences are to be held all day long on Wednesdays during
the teachers' regular seven and one-half hour workday. Those
parents who cannot attend a conference at the school site can
be conferenced by telephone. If necessary, conferences may be
scheduled beyond the teachers' regular workday.
Prior to the conferences, the teachers must complete the
grading period, including testing and the completion of student
23
report cards. Although parent conferences involve teachers in
grades 1-6, the Charging Party stipulated that this issue
concerns only the length of the instructional period during the
minimum day schedule in the fall of 1983 for teachers in
grades 4-6.
In the 1982-83 school year, the intermediate grades (4-6)
at all four schools were on the same minimum school day during
the fall parent conference week. The student instructional day
was from 9:00 a.m. to 1:30 p.m., a period of four hours and
30 minutes. During the 1983-84 school year the schools were on
a staggered schedule. The minimum day schedule during the fall
parent conference week was: Butterfield and Machado -
9:00 9:00 a.m. to 2:15 p.m., and Wildomar and Elsinore - 8:00 a.m.
to 1:15 p.rn., for a total instructional time of five hours and
15 minutes. The change in the time from the 1982-83 school
year constituted an increase of the minimum day of 45 minutes
for grades 4-5 and 40 minutes for grade 6.
Article 7.0 of the 1982-85 CBA, section 7.7 refers to an
increase in the length of the instructional day for the
intermediate grades during the 1982-83 school year. It reads
as follows:
The instructional minutes for the
intermediate grades may be increased by the
District not more than fifteen (15) minutes
during the 1982-83 school year.
Although the 15-minute increase in instructional minutes was to
be implemented during the 1982-83 school year, the agreement
24
report cards. Although parent conferences involve teachers in
grades 1-6, the Charging Party stipulated that this issue
concerns only the length of the instructional period during the
minimum day schedule in the fall of 1983 for teachers in
grades 4-6.
In the 1982-83 school year, the intermediate grades (4-6)
at all four schools were on the same minimum school day during
the fall parent conference week. The student instructional day
was from 9:00 a.m. to 1:30 p.m. , a period of four hours and
30 minutes. During the 1983-84 school year the schools were on
a staggered schedule. The minimum day schedule during the fall
parent conference week was: Butterfield and Machado -
a.m. to 2:15 p.m., and Wildomar and Elsinore - 8:00 a.m.
to 1:15 p.m., for a total instructional time of five hours and
15 minutes. The change in the time from the 1982-83 school
year constituted an increase of the minimum day of 45 minutes
for grades 4-5 and 40 minutes for grade 6.
Article 7.0 of the 1982-85 CBA, section 7.7 refers to an
increase in the length of the instructional day for the
intermediate grades during the 1982-83 school year. It reads
as follows:
The instructional minutes for the
intermediate grades may be increased by the
District not more than fifteen (15) minutes
during the 1982-83 school year.
Although the 15-minute increase in instructional minutes was to
be implemented during the 1982-83 school year, the agreement
24
providing for the increase was not ratified until
April 15, 1983. The parties, therefore, agreed that the
District could implement section 7.7 during the 1983-84 school
year, beginning the fall 1983. As agreed, section 7.7 was
implemented at the beginning of the 1983-84 school year.
Consequently, the actual amount of time at issue here is a
30-rninute increase in the length of the four student minimum
days during parent conference week in mid-November 1983.
Judy Stewart-Monceaux testified that when section 7.7 was
negotiated, the parties had the regular instructional day in
mind, and that there was no discussion about the minimum day
schedule, or how the minimum day schedule would be affected by
the increase in the length of the regular instructional day.
It is noted that there is no express contract provision
covering either the minimum day or parent conferences for the
1983-84 school year. 7
?Appendix 2 of the 1982-85 CBA outlined the tentative
school calendar for 1982-83 school year and included express
language regarding parent conferences. This language stated as
follows:
Parent Conferences:
The District shall establish one (1) full
day of parent conferences and up to four (4)
student minimum days for partial day
conferencing. Staff shall be notified in
advance of the specific days established for
parent conferences.
Appendix 3, which lists the tentative school calendar for
1983-84, contains no such language.
25
providing for the increase was not ratified until
April 15, 1983. The parties, therefore, agreed that the
District could implement section 7.7 during the 1983-84 school
year, beginning the fall 1983. As agreed, section 7.7 was
implemented at the beginning of the 1983-84 school year.
Consequently, the actual amount of time at issue here is a
30-minute increase in the length of the four student minimum
days during parent conference week in mid-November 1983.
Judy Stewart-Monceaux testified that when section 7.7 was
negotiated, the parties had the regular instructional day in
mind, and that there was no discussion about the minimum day
schedule, or how the minimum day schedule would be affected by
the increase in the length of the regular instructional day.
It is noted that there is no express contract provision
covering either the minimum day or parent conferences for the
1983-84 school year.'
7Appendix 2 of the 1982-85 CBA outlined the tentative
school calendar for 1982-83 school year and included express
language regarding parent conferences. This language stated as
follows:
Parent Conferences:
The District shall establish one (1) full
day of parent conferences and up to four (4)
student minimum days for partial day
conferencing. Staff shall be notified in
advance of the specific days established for
parent conferences.
Appendix 3, which lists the tentative school calendar for
1983-84, contains no such language.
25
It is undisputed that the 30-minute increase in
instructional minutes required the affected teachers to do
additional classroom preparation for the increased
instructional time. This preparation time was aside from the
preparation time that was required to prepare for parent
conferences.
The preparation for parent conferences involves substantial
record-keeping prior to, and during, the actual conferences
themselves. The preparation required of teachers just prior to
parent conference week was described by John (Jay) Finnell, a
fifth grade teacher at Butterfield school, as "stressful." The
teachers must meet to coordinate the scheduling of conferences
for parents having more than one child in a given school or
grade level. Additionally, if parents fail to attend a
scheduled conference, the teachers are responsible for doing
any follow-up necessary to make contact with parents.
Finnell testified that, in the past, approximately
30 percent of the parents have failed to attend a scheduled
conference and require follow-up. This often includes either
rescheduling the conference or conducting it by telephone which
is sometimes in the evening after the teachers' regular
workday. In 1982 Finnell completed approximately 20
conferences. In the fall of 1983 he completed all of his
scheduled conferences by conducting some of them by telephone.
26
It is undisputed that the 30-minute increase in
instructional minutes required the affected teachers to do
additional classroom preparation for the increased
instructional time. This preparation time was aside from the
preparation time that was required to prepare for parent
conferences.
The preparation for parent conferences involves substantial
record-keeping prior to, and during, the actual conferences
themselves. The preparation required of teachers just prior to
parent conference week was described by John (Jay ) Finnell, a
fifth grade teacher at Butterfield School, as "stressful. " The
teachers must meet to coordinate the scheduling of conferences
for parents having more than one child in a given school or
grade level. Additionally, if parents fail to attend a
scheduled conference, the teachers are responsible for doing
any follow-up necessary to make contact with parents.
Finnell testified that, in the past, approximately
30 percent of the parents have failed to attend a scheduled
conference and require follow-up. This often includes either
rescheduling the conference or conducting it by telephone which
is sometimes in the evening after the teachers' regular
workday. In 1982 Finnell completed approximately 20
conferences. In the fall of 1983 he completed all of his
scheduled conferences by conducting some of them by telephone.
26
Finnell estimated that the increase in the length of the
minimum day in 1983 caused him to have to spend approximately
one additional hour per day in outside preparation during the
four days of minimum day scheduling. Other teacher witnesses
testified that the outside preparation time during parent
conference week increased approximately 35 - 40 minutes a day
for a total of 2 to 2-1/2 hours for the week.
There is no specific District policy nor provision in the
CBA addressing preparation time. District witness, Walter
(Keith) McCarthy, acknowledged that one of the factors which
affects the amount of preparation time required of teachers is
preparation for parent conferences. McCarthy also acknowledged
that the quality of the teacher's classroom instruction during
the week of minimum days. when teachers are engaged in parent
conferencing, is expected to be the same as that offered during
any other time of the school year. The only adjustment is in
the quantity of instruction because of the shortened
instructional day.
F. Reduction in the Work Year of :the ,.B!.)ingual Facilitator
In the summer of 1982 the District hired certificated
employee Judith Reising to perform services as the coordinator
of bilingual education. This position is known as the
bilingual facilitator. The bilingual education program is a
state-funded compensatory education program. The bilingual
facilitator was hired because the District administration
27
Finnell estimated that the increase in the length of the
minimum day in 1983 caused him to have to spend approximately
one additional hour per day in outside preparation during the
four days of minimum day scheduling. Other teacher witnesses
testified that the outside preparation time during parent
conference week increased approximately 35 - 40 minutes a day
for a total of 2 to 2-1/2 hours for the week.
There is no specific District policy nor provision in the
CBA addressing preparation time. District witness, Walter
(Keith) Mccarthy, acknowledged that one of the factors which
affects the amount of preparation time required of teachers is
preparation for parent conferences. Mccarthy also acknowledged
that the quality of the teacher's classroom instruction during
the week of minimum days, when teachers are engaged in parent
conferencing, is expected to be the same as that offered during
any other time of the school year. The only adjustment is in
the quantity of instruction because of the shortened
instructional day.
F. Reduction in the Work Year of the Bilingual Facilitator
In the summer of 1982 the District hired certificated
employee Judith Reising to perform services as the coordinator
of bilingual education. This position is known as the
bilingual facilitator. The bilingual education program is a
state-funded compensatory education program. The bilingual
facilitator was hired because the District administration
27
wanted to improve the District's overall bilingual education
program. Previously all Spanish-speaking children were
assigned to one school site. In order to allow her start-up
time in her new capacity, the District set Reising's work year
for the 1982-83 school year as 186 days.
Sometime in the summer of 1983, Reising approached
Superintendent Flora about reducing her work year for school
year 1983-84. Reising felt that the savings generated from the
reduction in her salary could be used to augment the proposed
bilingual program budget for the 1983-84 school year.
At a special meeting of the District board on
August 26, 1983, the board approved Reising's request to reduce
her work year as bilingual facilitator from 186 days to
166 days.
Just prior to the board's taking action on this item,
Denise (Dee) Thomas, EVEA president, addressed the board by
inquiring about the negotiability of Reising's work year. She
was told that it was not negotiable and that the board was
acting in compliance with its leave policy for unit members.
Thomas then requested a copy of said policy which was promised,
but never received.
On or about August 29 or 30, 1983, Thomas spoke with
Reising about the board's action on August 26. At the time of
their meeting, Reising was preparing a memo to the board
28
wanted to improve the District's overall bilingual education
program. Previously all Spanish-speaking children were
assigned to one school site. In order to allow her start-up
time in her new capacity, the District set Reising's work year
for the 1982-83 school year as 186 days.
Sometime in the summer of 1983, Reising approached
Superintendent Flora about reducing her work year for school
year 1983-84. Reising felt that the savings generated from the
reduction in her salary could be used to augment the proposed
bilingual program budget for the 1983-84 school year.
At a special meeting of the District board on
August 26, 1983, the board approved Reising's request to reduce
her work year as bilingual facilitator from 186 days to
166 days.
Just prior to the board's taking action on this item,
Denise (Dee) Thomas, EVEA president, addressed the board by
inquiring about the negotiability of Reising's work year. s
was told that it was not negotiable and that the board was
acting in compliance with its leave policy for unit members.
Thomas then requested a copy of said policy which was promised,
but never received.
On or about August 29 or 30, 1983, Thomas spoke with
Reising about the board's action on August 26. At the time of
their meeting, Reising was preparing a memo to the board
28
requesting a reduction in her work year. Thomas requested a
copy of Reising's memo, along with a copy of a memo from
Superintendent Flora to Reising that she saw attached to
Reising's draft of her memo. Reising promised to give Thomas a
copy of her final memo, but refused to give her a copy of
Flora's memo.
EVEA subsequently obtained a copy of Flora's memo, dated
August 29, 1983, and entitled "Reduction/Work Year." It
stated as follows:
Your contract will be changed to reflect the
reduction in workdays from 185 to 165 days.
However, for our protection (yours and the
District's) submit your request in writing,
back dated prior to Friday's special board
meeting (August 26). Enclosed is a copy of
Board Policy #4418ES for your information.8
8Board Policy #4418ES was adopted by the District on
May 2, 1977. That policy states as follows:
Limited leave for business or personal
reasons, not provided under Personal
Necessity Policy in Policy 4402, may be
granted without compensation, increment,
seniority or tenure credit by the Board of
Trustees for a maximum of one year.
The applications for and granting of such
leaves of absence shall be in writing. In
addition, a unit member on such leave shall
notify the District Personnel Office by
March 30 of the school year as to an intent
to return to employment in the District.
Failure to so notify will be considered as
an abandonment of position.
This is the policy which Thomas requested on August 26, but
never received.
29
requesting a reduction in her work year. Thomas requested a
copy of Reising's memo, along with a copy of a memo from
Superintendent Flora to Reising that she saw attached to
Reising's draft of her memo. Reising promised to give Thomas a
copy of her final memo, but refused to give her a copy of
Flora's memo.
EVEA subsequently obtained a copy of Flora's memo, dated
August 29, 1983, and entitled "Reduction/Work Year." It
stated as follows:
Your contract will be changed to reflect the
reduction in workdays from 185 to 165 days.
However, for our protection (yours and the
District's) submit your request in writing,
back dated prior to Friday's special board
meeting (August 26). Enclosed is a copy of
Board Policy #4418ES for your information. 8
8Board Policy #4418ES was adopted by the District on
May 2, 1977. That policy states as follows:
Limited leave for business or personal
reasons, not provided under Personal
Necessity Policy in Policy 4402, may be
granted without compensation, increment,
seniority or tenure credit by the Board of
Trustees for a maximum of one year .
The applications for and granting of such
leaves of absence shall be in writing. In
addition, a unit member on such leave shall
notify the District Personnel Office by
March 30 of the school year as to an intent
to return to employment in the District.
Failure to so notify will be considered as
an abandonment of position.
This is the policy which Thomas requested on August 26, but
never received.
29
Reising's memo, a copy of which was sent to Thomas was
dated August 25, 1983, and was entitled "Request for Limited
Leave." It stated as follows:
Because of my commitment to Bilingual
Education and my belief that funds must be
available to make this a successful school
year, I hereby request a 20 day reduction of
my 186 day work year for the school year
1983-84, thereby making a total of 166
workdays. I understand that I will be
allowed to select the dates for the 20 days
during the year as my work load and assigned
duties permit.
My official beginning date will be Tuesday,
September 6, 1983 and ending date will be
June 22, 1984.
I also understand that my increment, fringe
benefits, and seniority credit will not be
affected by this 20 day work year reduction.
Finally, I understand that the total amount
of my salary reduction will be placed in the
Bilingual Program as per the attached
proposed schedule.
No negotiations nor discussions ever transpired between
EVEA and the District over the subject of Reising 1 s work year
either before, or subsequent to, the board's action on
August 26, 1983. EVEA never agreed to a change in Reising 1 s
work year. Subsequent to the August 26 action, Caldwell filed
the instant unfair practice charge as part of an amendment to
the original charge.
In his testimony, Flora acknowledged that the board did not
have a written request from Reising at the time that it
30
Reising's memo, a copy of which was sent to Thomas was
dated August 25, 1983, and was entitled "Request for Limited
Leave. " It stated as follows:
Because of my commitment to Bilingual
Education and my belief that funds must be
available to make this a successful school
year, I hereby request a 20 day reduction of
my 186 day work year for the school year
1983-84, thereby making a total of 166
workdays. I understand that I will be
allowed to select the dates for the 20 days
during the year as my work load and assigned
duties permit.
My official beginning date will be Tuesday,
September 6, 1983 and ending date will be
June 22, 1984.
I also understand that my increment, fringe
benefits, and seniority credit will not be
affected by this 20 day work year reduction.
Finally, I understand that the total amount
of my salary reduction will be placed in the
Bilingual Program as per the attached
proposed schedule.
No negotiations nor discussions ever transpired between
EVEA and the District over the subject of Reising's work year
either before, or subsequent to, the board's action on
August 26, 1983. EVEA never agreed to a change in Reising's
work year. Subsequent to the August 26 action, Caldwell filed
the instant unfair practice charge as part of an amendment to
the original charge.
In his testimony, Flora acknowledged that the board did not
have a written request from Reising at the time that it
30
approved the request on August 26. The board acted upon the
request pursuant to an oral presentation by Flora. He further
testified that he recommended that Reising submit her request
in writing and backdate it in order to establish a proper
"paper trail" for personnel action. This practice, according
to Flora, was not unusual in the District.
The position of the bilingual facilitator is included in
the bargaining unit represented by EVEA. The work year of
employees represented by EVEA is established in section 7.4 of
the CBA (seep. 10, supra). Article 13.0 of the CBA covers the
various types of leaves granted to unit members. However, it
does not contain a provision for a reduced work year.
G. Reduced Work Year of Bilingual Facilitator During
1984-85 School Year
Sometime in the late spring of 1984, it was rumored that
Judith Reising was contemplating a request for a change in the
length of her work year for the 1984-85 school year. In
response to this information, Caldwell, on behalf of EVEA,
contacted Reising by letter, In the letter, dated
May 29, 1984, Caldwell requested that Reising make known to
EVEA any contract request concerning her work year that she
might have in order for EVEA to determine a way to negotiate
terms equitable to Reising and other members of the
bargaining unit. Caldwell further stated:
••• either a change in the work year
length or the unpaid leave policy should be
31
approved the request on August 26. The board acted upon the
request pursuant to an oral presentation by Flora. He further
testified that he recommended that Reising submit her request
in writing and backdate it in order to establish a proper
"paper trail" for personnel action. This practice, according
to Flora, was not unusual in the District.
The position of the bilingual facilitator is included in
the bargaining unit represented by EVEA. The work year of
employees represented by EVEA is established in section 7.4 of
the CBA (see p. 10, supra). Article 13.0 of the CBA covers the
various types of leaves granted to unit members. However, it
does not contain a provision for a reduced work year.
G. Reduced Work Year of Bilingual Facilitator During
1984-85 School Year
Sometime in the late spring of 1984, it was rumored that
Judith Reising was contemplating a request for a change in the
length of her work year for the 1984-85 school year. In
response to this information, Caldwell, on behalf of EVEA,
contacted Reising by letter, In the letter, dated
May 29, 1984, Caldwell requested that Reising make known to
EVEA any contract request concerning her work year that she
might have in order for EVEA to determine a way to negotiate
terms equitable to Reising and other members of the
bargaining unit. Caldwell further stated:
. . either a change in the work year
length or the unpaid leave policy should be
31
able to accommodate your personal - business
needs •••• please let me know soon as we
will be putting an initial proposal
together, with the first meeting to be held
this Friday, June 1.
Caldwell sent a copy of this letter to Flora and Whitlock. No
response was received from Reising or either of the District;s
representatives.
On June 13, 1984, the EVEA grievance committee met with
Flora to discuss pending grievance matters. At that meeting,
EVEA raised the subject of Reising's anticipated request for
change in her 1984-85 work year. Flora was informed that EVEA
had asked Reising to inform EVEA about her request for 1984-85,
and that it would attempt to seek resolution for her through
the negotiation process. It was further indicated that EVEA
felt that the 1982-85 CBA leave provision did not cover the
kind of leave being considered by Reising. However, the
request could possibly be settled by a leave policy change or
by a shortened work year. Flora's response to EVEA 1 s stated
position is unknown. Following the June 13 meeting, no oral or
written communication was received from either Reising or
Flora.
After not hearing from Reising, on or about June 25, 1984,
Caldwell went to her office to attempt to speak with her
concerning this matter, but Reising was not available.
Caldwell thereafter left a note for Reising on a copy of the
June 13 minutes of the grievance committee meeting, reminding
32
able to accommodate your personal - business
needs. . please let me know soon as we
will be putting an initial proposal
together, with the first meeting to be held
this Friday, June 1.
Caldwell sent a copy of this letter to Flora and Whitlock. No
response was received from Reising or either of the District's
representatives.
On June 13, 1984, the EVEA grievance committee met with
Flora to discuss pending grievance matters. At that meeting,
EVEA raised the subject of Reising's anticipated request for
change in her 1984-85 work year. Flora was informed that EVEA
had asked Reising to inform EVEA about her request for 1984-85,
and that it would attempt to seek resolution for her through
the negotiation process. It was further indicated that EVEA
felt that the 1982-85 CBA leave provision did not cover the
kind of leave being considered by Reising. However, the
request could possibly be settled by a leave policy change or
by a shortened work year. Flora's response to EVEA's stated
position is unknown. Following the June 13 meeting, no oral or
written communication was received from either Reising or
Flora.
After not hearing from Reising, on or about June 25, 1984,
Caldwell went to her office to attempt to speak with her
concerning this matter, but Reising was not available.
Caldwell thereafter left a note for Reising on a copy of the
June 13 minutes of the grievance committee meeting, reminding
32
her that EVEA had not heard from her regarding her request for
a reduced work year.
On July 3, 1984, Caldwell spoke with Reising in her office,
asking that she make any requests for contract changes through
EVEA. Reising informed Caldwell that she was undecided about
whether to pursue the matter through EVEA or through the
superintendent.
On or about the same day, Reising submitted a written leave
request, dated July 3, 1984, for the 1984-85 school year. Her
memo addressed to Flora stated, in part, as follows:
I hereby, request a reduction of my work
year in order to have more child-rearing
time with my daughter as well as to enable
the Bilingual budget to remain within the
budget restraints of EIA-LEP
allocation. I would like to work six tenths
(6/10) of the regular 179 day work year.
That would give a total of 107.4 work days.
I understand that I will be allowed to
allocate those days according to the demands
of my job and my family's needs.
the
I request this leave pending the approval of
the following stipulations:
The six items set forth as P-stipulations" covered the amount of
stipend, and other terms and conditions of employment. A copy
of the memo was sent to Caldwell as the EVEA representative.
on July 5, 1984, the District board acted to approve
Reising 1 s leave request. The board approved,
.•• unpaid child-rearing leave, .4 of
1984-85 school year with all terms and
conditions being consistent with Education
Code, District policy and EVEA/LESD contract.
33
her that EVEA had not heard from her regarding her request for
a reduced work year.
On July 3, 1984, Caldwell spoke with Reising in her office,
asking that she make any requests for contract changes through
EVEA. Reising informed Caldwell that she was undecided about
whether to pursue the matter through EVEA or through the
superintendent.
On or about the same day, Reising submitted a written leave
request, dated July 3, 1984, for the 1984-85 school year. Her
memo addressed to Flora stated, in part, as follows:
I hereby, request a reduction of my work
year in order to have more child-rearing
time with my daughter as well as to enable
the Bilingual budget to remain within the
budget restraints of the EIA-LEP
allocation. I would like to work six tenths
(6/10) of the regular 179 day work year.
That would give a total of 107.4 work days.
I understand that I will be allowed to
allocate those days according to the demands
of my job and my family's needs.
I request this leave pending the approval of
the following stipulations:
The six items set forth as "stipulations" covered the amount of
stipend, and other terms and conditions of employment. A copy
of the memo was sent to Caldwell as the EVEA representative.
On July 5, 1984, the District board acted to approve
Reising's leave request. The board approved,
. unpaid child-rearing leave, .4 of
1984-85 school year with all terms and
conditions being consistent with Education
Code, District policy and EVEA/LESD contract.
33
Subsequently, Flora sent a letter, dated July 16, 1984, to
Reising which stated that the board had approved a 40 percent
leave for the 1984-85 school year. He further stated that,
••• all terms and conditions of said leave
must be consistent with district policy,
education code and the EVEA/LESD agreement.
The letter then listed in detail the terms and conditions of
the leave approved on July 5. The last paragraph contained the
following statements:
The Board has granted this partial leave
based upon your request and not due to
budget considerations. nue to the
relatively rare frequency of such leave,
some details of the terms and conditions of
your leave may be subject to review by
EVEA. Therefore, a copy of your initial
request and this reply are being forwarded
to the Association. If modifications to the
conditions of your leave are necessary, you
will be notified.
Reising testified that upon her return from vacation at the
end of July 1984, she received Flora's July 16 letter. She did
not accept the terms and conditions applied to the leave
approval. Shortly thereafter she spoke to Flora about the
status of her request, and was told that the matter was being
held in negotiations, pending the outcome of the earlier unfair
practice charge filed by EVEA (LA-CE-1827, paragraph 3(f)).
The instant unfair practice charge was filed August 10, 1984.
Sometime in late August 1984, Reising spoke with
Pat Perkins, the new EVEA president, and Caldwell regarding the
issue and was told that the matter was "on hold."
34
Subsequently, Flora sent a letter, dated July 16, 1984, to
Reising which stated that the board had approved a 40 percent
leave for the 1984-85 school year. He further stated that,
. all terms and conditions of said leave
must be consistent with district policy,
education code and the EVEA/LESD agreement.
The letter then listed in detail the terms and conditions of
the leave approved on July 5. The last paragraph contained the
following statements:
The Board has granted this partial leave
based upon your request and not due to
budget considerations. Due to the
relatively rare frequency of such leave,
some details of the terms and conditions of
your leave may be subject to review by
EVEA. Therefore, a copy of your initial
request and this reply are being forwarded
to the Association. If modifications to the
conditions of your leave are necessary, you
will be notified.
Reising testified that upon her return from vacation at the
end of July 1984, she received Flora's July 16 letter. She did
not accept the terms and conditions applied to the leave
approval. Shortly thereafter she spoke to Flora about the
status of her request, and was told that the matter was being
held in negotiations, pending the outcome of the earlier unfair
practice charge filed by EVEA (LA-CE-1827, paragraph 3(f) ).
The instant unfair practice charge was filed August 10, 1984.
Sometime in late August 1984, Reising spoke with
Pat Perkins, the new EVEA president, and Caldwell regarding the
issue and was told that the matter was "on hold."
34
In late September, Reising spoke again with Flora, seeking
clarification about her work year. He told her to work the
exact same number of days for 1984-85 school year that she
worked during the 1983-84 school year, i.e., a 166-day work
year, until the matter was resolved in negotiations. Although
Reising signed a standard contract of employment with the
District on June 15, 1984, there has been no written revision
of this agreement to reflect a change in the number of workdays
for 1984-85.
Flora testified that he had no personal objection to
granting Reising 1 s leave request for the 1984-85 school year,
but that he was only authorized to recommend her request to the
board which he did. At the time that he received her written
request, Flora admitted that he gave no thought to advising
EVEA of the matter before acting to recommend the request to
the District board.
When cross-examined about his reference to the EVEA/LESD
contract in the July 16 memo, Flora responded that he was
referring to section 13.8, part (b)(l) of the CBA. This
provision states as follows:
b. An unpaid leave shall include but not be
limited to:
1. Child-Rearing Leave - Upon request, the
Board may provide a unit member, who is
a natural or adopting parent, an unpaid
leave of absence for the purpose of
rearing his or her infant. such leave
35
In late September, Reising spoke again with Flora, seeking
clarification about her work year. He told her to work the
exact same number of days for 1984-85 school year that she
worked during the 1983-84 school year, i.e., a 166-day work
year, until the matter was resolved in negotiations. Although
Reising signed a standard contract of employment with the
District on June 15, 1984, there has been no written revision
of this agreement to reflect a change in the number of workdays
for 1984-85.
Flora testified that he had no personal objection to
granting Reising's leave request for the 1984-85 school year,
but that he was only authorized to recommend her request to the
board which he did. At the time that he received her written
request, Flora admitted that he gave no thought to advising
EVEA of the matter before acting to recommend the request to
the District board.
When cross-examined about his reference to the EVEA/LESD
contract in the July 16 memo, Flora responded that he was
referring to section 13.8, part (b) (1) of the CBA. This
provision states as follows:
b . An unpaid leave shall include but not be
limited to:
1 . Child-Rearing Leave - Upon request, the
Board may provide a unit member, who is
a natural or adopting parent, an unpaid
leave of absence for the purpose of
rearing his or her infant. Such leave
35
shall remain in effect at least until the
end of the semester following the birth or
adoption of the child.
Flora admitted that usually child-rearing leave is granted to
an employee immediately after the birth of a child. The
evidence does not show the exact age of Reising's daughter
referenced in her July 3 leave request; however, there is no
indication that the child was an infant.
At the time of the hearing, at least three certificated
unit employees were on child-rearing leave pursuant to the
subject leave provision.
There was no evidence that EVEA and the District engaged in
any negotiations over this matter, either before the board's
July 5 action approving the leave or since that time.
ISSUES
l. Whether the District violated section 3543.S(c) by
implementing a decision to reduce the amount of instructional
aide time assigned to certain classroom teachers without first
meeting and negotiating with EVEA about the negotiable aspects
of such decision?
2. Whether the District altered an established summer pay
policy in violation of the section 3543.S(c) -- duty to bargain
in good faith?
3. Whether the District violated section 3543.S(c) by its
implementation of the learning specialist program?
36
shall remain in effect at least until the
end of the semester following the birth or
adoption of the child.
Flora admitted that usually child-rearing leave is granted to
an employee immediately after the birth of a child. The
evidence does not show the exact age of Reising's daughter
referenced in her July 3 leave request; however, there is no
indication that the child was an infant.
At the time of the hearing, at least three certificated
unit employees were on child-rearing leave pursuant to the
subject leave provision.
There was no evidence that EVEA and the District engaged in
any negotiations over this matter, either before the board's
July 5 action approving the leave or since that time.
ISSUES
1 . Whether the District violated section 3543.5(c) by
implementing a decision to reduce the amount of instructional
aide time assigned to certain classroom teachers without first
meeting and negotiating with EVEA about the negotiable aspects
of such decision?
2 . Whether the District altered an established summer pay
policy in violation of the section 3543.5(c) -- duty to bargain
in good faith?
3 . Whether the District violated section 3543.5(c) by its
implementation of the learning specialist program?
36
4. Whether the District violated section 3543.S(c) by
increasing the instructional minutes during the minimum days'
schedule of the fall 1983 parent conferencing week?
5. Whether the District engaged in direct dealing with a
certificated unit employee over various terms and conditions of
employment during the 1983-84 and 1984-85 school years, thereby
bypassing the exclusive representative EVEA in violation of its
duty to bargain in good faith?
6. Whether any or all of the above-described conduct also
concurrently violated sections 3543.S(a) and (b)?
CONCLUSIONS OF LAW
It is unlawful for a public school employer to "refuse or
fail to meet and negotiate in good faith with an exclusive
representative" about a matter within the scope of
represen t ation.
. 9 Moreover, a unilateral change in terms and
9section 3543.2 provides in pertinent part as follows:
{aJ The scope of representation shall be
limited to matters relating to wages, hours
of employment, and other terms and
conditions of employment. "Terms and
conditions of employment" mean health and
welfare ••• , leave, transfer and
reassignment policies, safety conditions of
employment, class size, procedures to be
used for the evaluation of employees,
organizational security .•• , procedures
for processing grievances ••. , and the
layoff of probationary certificated school
district employees ••
benefits
In addition, a subject will be found to be negotiable even
though not specifically enumerated in section 3543.2 if (1) it
37
4. Whether the District violated section 3543.5(c) by
increasing the instructional minutes during the minimum days'
schedule of the fall 1983 parent conferencing week?
5 . Whether the District engaged in direct dealing with a
certificated unit employee over various terms and conditions of
employment during the 1983-84 and 1984-85 school years, thereby
bypassing the exclusive representative EVEA in violation of its
duty to bargain in good faith?
6. Whether any or all of the above-described conduct also
concurrently violated sections 3543.5(a) and (b)?
CONCLUSIONS OF LAW
It is unlawful for a public school employer to "refuse or
fail to meet and negotiate in good faith with an exclusive
representative" about a matter within the scope of
representation." Moreover, a unilateral change in terms and
9section 3543.2 provides in pertinent part as follows:
(a) The scope of representation shall be
limited to matters relating to wages, hours
of employment, and other terms and "Terms and conditions of employment.
conditions of employment" mean health and
welfare benefits . , leave, transfer and
reassignment policies, safety conditions of
employment, class size, procedures to be
used for the evaluation of employees,
organizational security . procedures
for processing grievances and the
layoff of probationary certificated school
district employees .
In addition, a subject will be found to be negotiable even
though not specifically enumerated in section 3543.2 if (1) it
37
conditions of employment within the scope of representation is,
absent a valid defense, a per se refusal to negotiate. Pajaro
Valley Unified School District (1978) PERB Decision No. 51; San
Mateo County Community College (1979) PERB Decision No. 94;
NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177].
An unlawful unilateral change will be found where the
Charging Party proves, by a preponderance of the evidence, that
an employer unilaterally altered an established policy. Grant
Joint Union High School District (1982) PERB Decision No. 196.
The nature of existing policy is a question of fact to be
determined from an examination of the record as a whole. It
may be embodied in the terms of a collective agreement (Grant,
supra) or, where a contract is silent or amibiguous as to a
policy, it may be ascertained by examining past practice or
bargaining history. Marysville Joint Unified School District
(1983) PERB Decision No. 314; Rio Hondo community College
District (1982) PERB Decision No. 279.
is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) the subject is
of such concern to both management and employees that conflict
is likely to occur and the mediatory influence of collective
negotiations is the appropriate means of resolving the
conflict, and (3) the employer's obligation to negotiate would
not significantly abridge the employer's freedom to exercise
those managerial prerogatives (including matters of fundamental
policy) essential to the achievement of the District's
mission. Anaheim Union High School District (1981) PERB
Decision No. 177, affirmed San Mateo City School District v.
PERB (1983) 33 Cal.3d 850.
38
conditions of employment within the scope of representation is,
absent a valid defense, a per se refusal to negotiate. Pajaro
Valley Unified School District (1978) PERB Decision No. 51; San
Mateo County Community College (1979) PERB Decision No. 94;
NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177] .
An unlawful unilateral change will be found where the
Charging Party proves, by a preponderance of the evidence, that
an employer unilaterally altered an established policy. Grant
Joint Union High School District (1982) PERB Decision No. 196.
The nature of existing policy is a question of fact to be
determined from an examination of the record as a whole.
may be embodied in the terms of a collective agreement (Grant,
supra) or, where a contract is silent or amibiguous as to a
policy, it may be ascertained by examining past practice or
bargaining history. Marysville Joint Unified School District
(1983) PERB Decision No. 314; Rio Hondo Community College
District (1982) PERB Decision No. 279.
is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) the subject is
of such concern to both management and employees that conflict
is likely to occur and the mediatory influence of collective
negotiations is the appropriate means of resolving the
conflict, and (3) the employer's obligation to negotiate would
not significantly abridge the employer's freedom to exercise
those managerial prerogatives (including matters of fundamental
policy ) essential to the achievement of the District's
mission. Anaheim Union High School District (1981) PERB
Decision No. 177, affirmed San Mateo City School District v.
PERB (1983) 33 Cal. 3d 850.
38
An employer's unlawful failure and refusal to negotiate
concurrently violates an exclusive representative's right to
represent unit members in their employment relations
(section 3543.5(b)) and interferes with employees because of
their exercise of representational rights (section 3543.S(c)).
san Francisco Community College District (1979) PERB Decision
No.105.
These general and well-established principles concerning
unlawful unilateral changes will be applied to the District's
conduct as alleged by the Association in the six issues raised
by the two instant charges.
A. Impact of Reduction in Aide Time
In its original charge, the Charging Party challenged the
District's right to unilaterally reduce the SIP aide classroom
time in the 1983-84 school year. In its post-hearing brief,
the charging Party clarified its position by stating that it
did not challenge the negotiability of the decision to reduce
aide time, however, it asserts that the employer could have,
and should have, given EVEA notice and an opportunity to
negotiate over the negotiable effects of this decision.
Respondent defends its action by arguing that it had no
duty to negotiate at the time that the reduction in hours
occurred. It contends that EVEA had notice of a contemplated
39
An employer's unlawful failure and refusal to negotiate
concurrently violates an exclusive representative's right to
represent unit members in their employment relations
(section 3543.5(b) ) and interferes with employees because of
their exercise of representational rights (section 3543.5(c)).
San Francisco Community College District (1979) PERB Decision
No . 105.
These general and well-established principles concerning
unlawful unilateral changes will be applied to the District's
conduct as alleged by the Association in the six issues raised
by the two instant charges.
A. Impact of Reduction in Aide Time
In its original charge, the Charging Party challenged the
District's right to unilaterally reduce the SIP aide classroom
time in the 1983-84 school year. In its post-hearing brief,
the Charging Party clarified its position by stating that it
did not challenge the negotiability of the decision to reduce
aide time, however, it asserts that the employer could have,
and should have, given EVEA notice and an opportunity to
negotiate over the negotiable effects of this decision.
Respondent defends its action by arguing that it had no
duty to negotiate at the time that the reduction in hours
occurred. It contends that EVEA had notice of a contemplated
39
employer action, which in this instance was accomplished
through the teachers' participation on the school site councils
that made the initial decision regarding the changes in aide
hours, yet failed to demand bargaining over the effects of such
decision. decision. Since EVEA had notice of the employer's action and
never submitted a demand to bargain or a proposal concerning
the same, no negotiating duty ever arose and thus, there could
be no failure to perform the duty. Additionally, Respondent
contends that since the District did not anticipate any adverse
impact on certificated employees as a result of the decision,
it had no need to seek negotiations with EVEA over this
subject. Neither arguments are meritorious on this point.
The duty to meet and negotiate arises under section
3543.3. 10 PERB has held that the obligation of an employer
to give notice and an opportunity to bargain regarding the
negotiable effects of a non-negotiable decision arises when the
employer reaches a firm decision. Newark Unified School
lOsection 3543.3 states in pertinent part as follows:
A public school employer or such
representatives as it may designate who may,
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
40
employer action, which in this instance was accomplished
through the teachers' participation on the school site councils
that made the initial decision regarding the changes in aide
hours, yet failed to demand bargaining over the effects of such
Since EVEA had notice of the employer's action and
never submitted a demand to bargain or a proposal concerning
the same, no negotiating duty ever arose and thus, there could
be no failure to perform the duty. Additionally, Respondent
contends that since the District did not anticipate any adverse
impact on certificated employees as a result of the decision,
it had no need to seek negotiations with EVEA over this
subject. Neither arguments are meritorious on this point.
The duty to meet and negotiate arises under section
3543.3. PERB has held that the obligation of an employer
to give notice and an opportunity to bargain regarding the
negotiable effects of a non-negotiable decision arises when the
employer reaches a firm decision. Newark Unified School
10section 3543.3 states in pertinent part as follows:
A public school employer or such
representatives as it may designate who may,
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
40
District (1982) PERB Decision No. 225; Kern community College
District (1983) PERB Decision No. 337 and Mt. Diablo Unified
School District (1983) PERB Decision No. 373.
There is no question here that the District board reached a
firm decision to reduce classroom aide time prior to the time
that the revised plan was implemented. The decision was made
in the spring of 1983, prior to the end of the 1982-83 school
year. During the interim period before the plan was
implemented in the fall 1983, the District had ample time to
notify EVEA of the decision and provide an opportunity for
negotiations of the effects on matters within the scope of
representation.
It is undisputed in this case that the employer did not
notify EVEA nor offer EVEA an opportunity to negotiate any
negotiable effects of the plan to reduce classroom aide time
for grades 2 and 3 at Wildomar School and grades K-3 at
Butterfield school starting the fall of 1983. Although the
District argues that EVEA had notice of its contemplated
action, there is no persuasive evidence which supports a
conclusion that the individual teacher 1 s participation on a
school site council could be viewed as a substitute for actual
notice to EVEA, or further, that such teacher participation in
any way satisfied the District's duty to meet and negotiate
with EVEA. Kern Community College District, suEra.
41
District (1982) PERB Decision No. 225; Kern Community College
District (1983) PERB Decision No. 337 and Mt. Diablo Unified
School District (1983) PERB Decision No. 373.
There is no question here that the District board reached a
firm decision to reduce classroom aide time prior to the time
that the revised plan was implemented. The decision was made
in the spring of 1983, prior to the end of the 1982-83 school
year . During the interim period before the plan was
implemented in the fall 1983, the District had ample time to
notify EVEA of the decision and provide an opportunity for
negotiations of the effects on matters within the scope of
representation.
It is undisputed in this case that the employer did not
notify EVEA nor offer EVEA an opportunity to negotiate any
negotiable effects of the plan to reduce classroom aide time
for grades 2 and 3 at Wildomar School and grades K-3 at
Butterfield School starting the fall of 1983. Although the
District argues that EVEA had notice of its contemplated
action, there is no persuasive evidence which supports a
conclusion that the individual teacher's participation on a
school site council could be viewed as a substitute for actual
notice to EVEA, or further, that such teacher participation in
any way satisfied the District's duty to meet and negotiate
with EVEA. Kern Community College District, supra.
41
The evidence supports a conclusion that the effects of the
District's decision to reduce the amount of classroom aide time
from its previous level, clearly had "a reasonably foreseeable
adverse impact on the affected teachers' working conditions"
and thus was negotiable. Mt. Diablo, supra. The reduction in
instructional aide assigned classroon time anywhere from one to
two and one-half hours per day in some classrooms without any
concomitant changes in other aspects of the teachers' overall
instructional responsibilities would conceivably affect the
amount of a teacher's time that was required to prepare for and
perform such duties. Since each teacher had discretion about
the use of their assigned aide time, some teachers used the
aides to correct written class work and perform certain
record-keeping tasks during the students' instructional time.
In hose situations where aide tim aide time was completely eliminated
or substantially reduced, the affected teachers still had to
perform the tasks formerly assigned to the aides, even if the
time required to do these tasks was beyond the regular seven
and one-half hour workday. Additionally, the change required
some teachers to prepare additional "seat work" to accommodate
the absence of an aide in the classroom to work directly with a
group of students while the teacher was instructing another
group. The extra "seat work• required additional non-classroom
preparation time for some teachers until the aide time was
restored or reallocated.
42
The evidence supports a conclusion that the effects of the
District's decision to reduce the amount of classroom aide time
from its previous level, clearly had "a reasonably foreseeable
adverse impact on the affected teachers' working conditions"
and thus was negotiable. Mt. Diablo, supra. The reduction in
instructional aide assigned classroon time anywhere from one to
two and one-half hours per day in some classrooms without any
concomitant changes in other aspects of the teachers' overall
instructional responsibilities would conceivably affect the
amount of a teacher's time that was required to prepare for and
perform such duties. Since each teacher had discretion about
the use of their assigned aide time, some teachers used the
aides to correct written class work and perform certain
record-keeping tasks during the students' instructional time.
In t e was completely eliminated
or substantially reduced, the affected teachers still had to
perform the tasks formerly assigned to the aides, even if the
time required to do these tasks was beyond the regular seven
and one-half hour workday. Additionally, the change required
some teachers to prepare additional "seat work" to accommodate
the absence of an aide in the classroom to work directly with a
group of students while the teacher was instructing another
group. The extra "seat work" required additional non-classroom
preparation time for some teachers until the aide time was
restored or reallocated.
42
Even if the District doubted that there would be adverse
effects on the teachers' working conditions as a result of its
decision, it was not possible for the EVEA to make a demand to
negotiate and explore anticipated effects prior to
implementation of the revised aid plan, where notice and an
opportunity to request meeting and negotiating were not
provided. The burden of providing notice and an opportunity to
negotiate belongs on the employer who, in this instance, had
full knowledge of the changes and the anticipated
implementation date. Where an employer guesses wrong, i.e.,
fails to reasonably foresee the impact of a decision (such as a
reduction in aide time) on the hours of employment or working
conditions of classroom teachers, it is fair to allocate the
burden of this error in judgment to the employer. Mount Diablo
Unified school District, supra at p. 51.
In this instance, the employer failed to provide prompt
notice and an opportunity to EVEA to negotiate over the
negotiable effects on teachers of a firm decision to reduce
and, or modify, classified services. It has been found here
that the implementation of the decision had adverse effects on
matters within the scope of representation of the affected
teachers. It is therefore, concluded that the District's
conduct in this regard amounted to a violation of section
3543.S(c). planned change in policy with arguably negotiable
effects. It has further failed to establish a valid defense or
43
Even if the District doubted that there would be adverse
effects on the teachers' working conditions as a result of its
decision, it was not possible for the EVEA to make a demand to
negotiate and explore anticipated effects prior to
implementation of the revised aid plan, where notice and an
opportunity to request meeting and negotiating were not
provided. The burden of providing notice and an opportunity to
negotiate belongs on the employer who, in this instance, had
full knowledge of the changes and the anticipated
implementation date. Where an employer guesses wrong, i.e. ,
fails to reasonably foresee the impact of a decision (such as a
reduction in aide time ) on the hours of employment or working
conditions of classroom teachers, it is fair to allocate the
burden of this error in judgment to the employer. Mount Diablo
Unified School District, supra at p. 51.
In this instance, the employer failed to provide prompt
notice and an opportunity to EVEA to negotiate over the
negotiable effects on teachers of a firm decision to reduce
and, or modify, classified services. It has been found here
that the implementation of the decision had adverse effects on
matters within the scope of representation of the affected
teachers. It is therefore, concluded that the District's
conduct in this regard amounted to a violation of section
3543.5(c). planned change in policy with arguably negotiable
effects. It has further failed to establish a valid defense or
43
excuse for its failure to set in this regard. consequently,
its conduct is found to have violated the duty to bargain in
good faith as required by section 3543.S(c).
B. Rate of Compensation for work Performed the summer of 1983
The Charging Party asserts that when the District paid
certain teachers represented by EVEA a per diem rate for work
performed during the summer of 1983, it unilaterally changed
the established practice that summer work performed by unit
members was to be paid on an hourly basis. EVEA further
alleges that such exceptions to this practice as they have
become aware of them are the subject of unfair practice
charges.
Respondent maintains that the determination of the payment
rate, whether hourly or per diem, has been based on the type of
assignment and the funding source, and historically has been
established without bargaining with EVEA. It further asserts
that there has been no established consistent past practice for
compensation of teachers for summer work. Hence, since there
has been no change in practice, no duty to bargain ever arose
with respect to the issue raised in this specification.
PERB has held that an employer may not unilaterally alter
the method of computing pay for summer school instruction. Rio
Hondo Community College District, supra. Although the issue
here concerns the pay rate for summer work, as contrasted with
method of payment for summer school instruction, the rule
44
excuse for its failure to set in this regard. Consequently,
its conduct is found to have violated the duty to bargain in
good faith as required by section 3543.5(c).
B. Rate of Compensation for Work Performed the Summer of 1983
The Charging Party asserts that when the District paid
certain teachers represented by EVEA a per diem rate for work
performed during the summer of 1983, it unilaterally changed
the established practice that summer work performed by unit
members was to be paid on an hourly basis. EVEA further
alleges that such exceptions to this practice as they have
become aware of them are the subject of unfair practice
charges.
Respondent maintains that the determination of the payment
rate, whether hourly or per diem, has been based on the type of
assignment and the funding source, and historically has been
established without bargaining with EVEA. It further asserts
that there has been no established consistent past practice for
compensation of teachers for summer work. Hence, since there
has been no change in practice, no duty to bargain ever arose
with respect to the issue raised in this specification.
PERB has held that an employer may not unilaterally alter
the method of computing pay for summer school instruction. Rio
Hondo Community College District, supra. Although the issue
here concerns the pay rate for summer work, as contrasted with
method of payment for summer school instruction, the rule
44
prohibiting unilateral modification of payment of wages, an
enumerated subject of bargaining, applies to this case.
In Grant Joint Union High school District, supra, the Board
held that for a Charging Party to state a prima facie violation
of section 3543.5(c) when a unilateral change is charged, it
must allege facts sufficient to show: (1) that the District
breached or otherwise altered the parties 1 written agreement or
its own established past practice; (2) that the breach or
alteration amounted to a change of policy (i.e., that it had a
generalized effect or continuing impact upon the terms and
conditions of employment of bargaining unit members); (3) that
the change of policy concerned matters within the scope of
representation. This issue is thus considered in light of the
principles enunciated in both Rio Hondo and Grant.
The parties have stipulated that the 1982-85 CBA does not
contain a provision relating to additional compensation for
responsibilities beyond regular assignments. However, in the
CBA's between EVEA and the District for the period from
1976-80, there was an express provision covering additional
compensation which specified an hourly pay rate for additional
responsibilities (including District projects and summer
school), with the exception of summer school preparation. The
latter was compensated on a per diem basis.
The preponderance of the evidence presented here shows that
the practice of compensating unit members on an hourly basis
45
prohibiting unilateral modification of payment of wages, an
enumerated subject of bargaining, applies to this case.
In Grant Joint Union High School District, supra, the Board
held that for a Charging Party to state a prima facie violation
of section 3543.5(c) when a unilateral change is charged, it
must allege facts sufficient to show: (1) that the District
breached or otherwise altered the parties' written agreement or
its own established past practice; (2) that the breach or
alteration amounted to a change of policy (i.e., that it had a
generalized effect or continuing impact upon the terms and
conditions of employment of bargaining unit members); (3) that
the change of policy concerned matters within the scope of
representation. This issue is thus considered in light of the
principles enunciated in both Rio Hondo and Grant.
The parties have stipulated that the 1982-85 CBA does not
contain a provision relating to additional compensation for
responsibilities beyond regular assignments. However, in the
CBA's between EVEA and the District for the period from
1976-80, there was an express provision covering additional
compensation which specified an hourly pay rate for additional
responsibilities (including District projects and summer
school), with the exception of summer school preparation. The
latter was compensated on a per diem basis.
The preponderante of the evidence presented here shows that
the practice of compensating unit members on an hourly basis
45
for various types of extra duty or summer assignments has
continued for several years with few exceptions. One fairly
recent exception involving a bargaining unit member was the
rate of compensation for work performed by Thomas Engelhardt
during the summer of 1982. Engelhardt was compensated on a per
diem basis. However, this fact was unknown to Engelhardt or to
the EVEA until it was revealed during the hearing. other than
this case, no evidence was presented of bargaining unit members
being compensated for extra duty or summer assignments on a per
diem basis prior to the instances that gave rise to this
charge. Additionally, the formula which the District has used
for calculating the hourly rate apparently has continued to be
that which was set forth in the CBA's for the periods 1977-78
and 1978-79.
It is undisputed that with the exception of the bargaining
unit positions enumerated below, all unit members who performed
work during the summer of 1983 were cornpensatea on an hourly
basis. However, in the summer of 1983 the District did alter
the method of compensation for summer work performed by the
RBI coaches, learning specialists, bilingual facilitator, and
speech therapists. The challenge to this modification of pay
practice as it applied to the speech therapists is addressed in
unfair practice charge LA-CE-2059. The change in practice with
respect to the other employees does not represent a breach or
alteration of any written agreement, nor does it modify a
46
for various types of extra duty or summer assignments has
continued for several years with few exceptions. One fairly
recent exception involving a bargaining unit member was the
rate of compensation for work performed by Thomas Engelhardt
during the summer of 1982. Engelhardt was compensated on a per
diem basis. However, this fact was unknown to Engelhardt or to
the EVEA until it was revealed during the hearing. Other than
this case, no evidence was presented of bargaining unit members
being compensated for extra duty or summer assignments on a per
diem basis prior to the instances that gave rise to this
charge. Additionally, the formula which the District has used
for calculating the hourly rate apparently has continued to be
that which was set forth in the CBA's for the periods 1977-78
and 1978-79.
It is undisputed that with the exception of the bargaining
unit positions enumerated below, all unit members who performed
work during the summer of 1983 were compensated on an hourly
basis. However, in the summer of 1983 the District did alter
the method of compensation for summer work performed by the
RBI coaches, learning specialists, bilingual facilitator, and
speech therapists. The challenge to this modification of pay
practice as it applied to the speech therapists is addressed in
unfair practice charge LA-CE-2059. The change in practice with
respect to the other employees does not represent a breach or
alteration of any written agreement, nor does it modify a
46
stated District policy. However, it is a change of the
District's established practice of many years for summer work
compensation of bargaining unit members, and amounts to a
unilaterial change of policy affecting an important and
continuing term of employment -- salaries.
Since the District argues that there has been no change of
a past practice, it has raised no justification or excuse in
defense of its unilateral action. Even if the individual
employees involved in this action agreed to the change in the
basis for payment of their summer work, it does not rebut a
finding of unlawful unilateral change, absent a showing that
the District first fulfilled its bargaining obligation with
EVEA. There has been no such showing in this case.
For the reasons stated, it is therefore concluded that the
District's unilateral modification of the method of
compensation for summer work performed by bargaining unit
members was in violation of section 3543.5(c).
c. Learning Specialist Program
EVEA concedes that the District had no obligation to
negotiate over the decision to establish the learning
specialist positions. This management prerogative was
established by the Board in Alum Rock Union Elementary School
District, (1983) PERB Decision No. 322, where the Board,
applying the test for negotiability set forth in Anaheim Union
High School District, supra, found that "where management seeks
47
stated District policy. However, it is a change of the
District's established practice of many years for summer work
compensation of bargaining unit members, and amounts to a
unilateral change of policy affecting an important and
continuing term of employment -- salaries.
Since the District argues that there has been no change of
a past practice, it has raised no justification or excuse in
defense of its unilateral action. Even if the individual
employees involved in this action agreed to the change in the
basis for payment of their summer work, it does not rebut a
finding of unlawful unilateral change, absent a showing that
the District first fulfilled its bargaining obligation with
EVEA. There has been no such showing in this case.
For the reasons stated, it is therefore concluded that the
District's unilateral modification of the method of
compensation for summer work performed by bargaining unit
members was in violation of section 3543.5(c).
C. Learning Specialist Program
EVEA concedes that the District had no obligation to
negotiate over the decision to establish the learning
specialist positions. This management prerogative was
established by the Board in Alum Rock Union Elementary School
District, (1983) PERB Decision No. 322, where the Board,
applying the test for negotiability set forth in Anaheim Union
High School District, supra, found that "where management seeks
47
to create a new classification to perform a function not
previously performed ••• by employees ••• it need not
negotiate its decision." See also Mt. San Antonio community
College District (1983) PERB Decision No. 334.
At issue, however, is the District's fulfillment of its
obligation to meet and negotiate with EVEA regarding the
negotiable aspects of the learning specialist program prior to
the implementation of the same. The District acknowledged that
it had an obligation to negotiate with EVEA when it advertised
during the spring of 1983 for applicants for the new
positions. A reference on the vacancy notice stated that
hours, wages; including stipend and other terms and conditions
of employment were "subject to negotiations with the exclusive
representative EVEA." However, the District contends that, in
this particular instance, EVEA was provided adequate notice and
a reasonable opportunity to negotiate, but failed to exercise
the right to bargain over this matter by failing to formally
demand bargaining until September 26, 1983, some three and
one-half to four months after the matter was first explored by
the parties. This delay, it is argued, amounts to a waiver by
inaction of the right to bargain. A review of the bargaining
history over this issue simply does not support Respondent's
argument.
The parties first discussed the LS program in May 1983.
Even if this meeting arguably was not a formal negotiating
48
to create a new classification to perform a function not
previously performed . . . by employees . . . it need not
negotiate its decision. " See also Mt. San Antonio Community
College District (1983) PERB Decision No. 334.
At issue, however, is the District's fulfillment of its
obligation to meet and negotiate with EVEA regarding the
negotiable aspects of the learning specialist program prior to
the implementation of the same. The District acknowledged that
it had an obligation to negotiate with EVEA when it advertised
during the spring of 1983 for applicants for the new
positions. A reference on the vacancy notice stated that
hours, wages, including stipend and other terms and conditions
of employment were "subject to negotiations with the exclusive
representative EVEA. " However, the District contends that, in
this particular instance, EVEA was provided adequate notice and
a reasonable opportunity to negotiate, but failed to exercise
the right to bargain over this matter by failing to formally
demand bargaining until September 26, 1983, some three and
one-half to four months after the matter was first explored by
the parties. This delay, it is argued, amounts to a waiver by
inaction of the right to bargain. A review of the bargaining
history over this issue simply does not support Respondent's
argument .
The parties first discussed the LS program in May 1983.
Even if this meeting arguably was not a formal negotiating
48
session, the matter was raised and again discussed at the
initial contract reopener negotiating session June 7, 1983.
Neither party submitted a written proposal concerning the
subject. However, the District did orally propose a $1500
annual stipend which EVEA rejected. EVEA took the position
that it had to consult with its membership before making a
counterproposal.
Despite the discussions between the parties on this subject
in May, June, August and September 1983, the District contends
that the Charging Party failed to formally demand to bargain
over the issue until September 26, 1983, which was just after
the beginning of school when the LS's were in place and
working. This delay, it is argued, amounts to a waiver of the
right to bargain. This argument lacks factual support and is
therefore rejected.
There is no evidence that at any time during the summer
1983 that EVEA indicated it was waiving the right to negotiate
over the amount of the stipend or other terms and conditions of
employment of learning specialists. on the contrary, EVEA
reasonably relied upon Respondent's statements in bargaining
meetings in August and early September 1983, when it made
inquiries about the status of the LS program, to the effect
that the LS program would not be implemented beginning the fall
of 1983. Acting upon these representations, EVEA made
conditional oral demands to bargain prior to any implementation
49
session, the matter was raised and again discussed at the
initial contract reopener negotiating session June 7, 1983.
Neither party submitted a written proposal concerning the
subject. However, the District did orally propose a $1500
annual stipend which EVEA rejected. EVEA took the position
that it had to consult with its membership before making a
counterproposal.
Despite the discussions between the parties on this subject
in May, June, August and September 1983, the District contends
that the Charging Party failed to formally demand to bargain
over the issue until September 26, 1983, which was just after
the beginning of school when the LS's were in place and
working. This delay, it is argued, amounts to a waiver of the
right to bargain. This argument lacks factual support and is
therefore rejected.
There is no evidence that at any time during the summer
1983 that EVEA indicated it was waiving the right to negotiate
over the amount of the stipend or other terms and conditions of
employment of learning specialists. On the contrary, EVEA
reasonably relied upon Respondent's statements in bargaining
meetings in August and early September 1983, when it made
inquiries about the status of the LS program, to the effect
that the LS program would not be implemented beginning the fall
of 1983. Acting upon these representations, EVEA made
conditional oral demands to bargain prior to any implementation
49
of the program. Charging Party contends that Respondent is
estopped from characterizing EVEA's failure to insist upon
negotiations, in reliance upon material misrepresentations by
the Respondent, as a waiver of its rights. Charging Party
further asserts that Respondent's conduct in this regard
presents a classic case of estoppel in that Respondent, with
actual or virtual knowledge of the facts, misrepresented or
concealed material facts from the Charging Party, who was
actually ignorant of the truth and was induced to rely upon the
representations of the Respondent, to its detriment. 7 Witkin,
summary of California Law (8th Ed.) Equity, section 133, at
pp. 5351-5352, is cited for this proposition.
In Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223, the Board held that no duty to bargain arose
where, after receiving notice of the employer's intention to
lay off, the exclusive representative expressed only a desire
to negotiate the employer's decision, rather than the effects
of the planned layoff "concededly a matter within the scope of
representation" as opposed to the nonnegotiable managerial
decision to lay off. The Board cautioned, however, that its
decision should not be read to impose any strict rule of form
as to a request to negotiate.
[A] valid request would be found, regardless
of its form for the words used, if it
adequately signifies a desire to negotiate
on a subject within the scope of bargaining.
(Newman-crows Landing Unified School
District, supra at p. 8.)
50
of the program. Charging Party contends that Respondent is
estopped from characterizing EVEA's failure to insist upon
negotiations, in reliance upon material misrepresentations by
the Respondent, as a waiver of its rights. Charging Party
further asserts that Respondent's conduct in this regard
presents a classic case of estoppel in that Respondent, with
actual or virtual knowledge of the facts, misrepresented or
concealed material facts from the Charging Party, who was
actually ignorant of the truth and was induced to rely upon the
representations of the Respondent, to its detriment. 7 Witkin,
Summary of California Law (8th Ed. ) Equity, Section 133, at
pp. 5351-5352, is cited for this proposition.
In Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223, the Board held that no duty to bargain arose
where, after receiving notice of the employer's intention to
lay off, the exclusive representative expressed only a desire
to negotiate the employer's decision, rather than the effects
of the planned layoff "concededly a matter within the scope of
representation" as opposed to the nonnegotiable managerial
decision to lay off. The Board cautioned, however, that its
decision should not be read to impose any strict rule of form
as to a request to negotiate.
[A] valid request would be found, regardless
of its form for the words used, if it
adequately signifies a desire to negotiate
on a subject within the scope of bargaining.
(Newman-Crows Landing Unified School
District, supra at p. 8.)
50
Thus, the determination as to whether there has been a valid
request to negotiate is a question of fact to be resolved on a
case-by-case basis. Delano Joint Union High School District
(1983) PERB Decision No. 307, at p. 7, citing Newman-Crows
Landing Unified School District, supra.
Here, the District had notice as early as May 1983 that the
Association had concerns about the implementation of the LS
program. In August and September 1983, the Association
specifically indicated its desire to negotiate. Although no
written request nor specific proposal was ever submitted by
EVEA during these meetings, EVEA representatives made it known
to the District on both occasions (August and September) that,
if it were intending to implement the LS program, EVEA
definitely wanted to negotiate over the negotiable aspects of
that program prior to any implementation. It was after EVEA
received written confirmation from Whitlock in mid-September
1983 that the program in fact had been implemented at the
beginning of the school year, that a written demand to bargain
was sent to Superintendent Flora on September 26, 1983. The
September 26 written demand was almost an act of futility by
EVEA since the implementation of the program was apparently a
fait accompli. It certainly was not the first knowledge that
the District had of EVEA's interest in this subject. EVEA 1 s
conduct prior to September 26 cannot be ignored.
51
Thus, the determination as to whether there has been a valid
request to negotiate is a question of fact to be resolved on a
case-by-case basis. Delano Joint Union High School District
(1983) PERB Decision No. 307, at p. 7, citing Newman-Crows
Landing Unified School District, supra.
Here, the District had notice as early as May 1983 that the
Association had concerns about the implementation of the LS
program. In August and September 1983, the Association
specifically indicated its desire to negotiate. Although no
written request nor specific proposal was ever submitted by
EVEA during these meetings, EVEA representatives made it known
to the District on both occasions (August and September ) that,
if it were intending to implement the LS program, EVEA
definitely wanted to negotiate over the negotiable aspects of
that program prior to any implementation. It was after EVEA
received written confirmation from Whitlock in mid-September
1983 that the program in fact had been implemented at the
beginning of the school year, that a written demand to bargain
was sent to Superintendent Flora on September 26, 1983. The
September 26 written demand was almost an act of futility by
EVEA since the implementation of the program was apparently a
fait accompli. It certainly was not the first knowledge that
the District had of EVEA's interest in this subject. EVEA's
conduct prior to September 26 cannot be ignored.
51
Applying the reasoning set forth in Newman-Crows Landing to
the facts of this case, it is determined that the course of
communications between the parties was a sufficiently valid
request by EVEA to put the District on notice that EVEA desired
to hold negotiations on the negotiable effects of the decision
to implement the learning specialist program. Consistent with
the Board's discussion in Newman-crows Landing, supra, the
Respondent's notion that a request for negotiations must meet a
strict standard as to form or language is rejected.
Absent clear and unequivocal language or conduct to the
contrary, PERB will not readily infer that party has waived its
statutory right to bargain over a decision not already firmly
made by the employer. Amador Valley Joint Union High School
District (1978) PERB Decision No. 74. and Sutter Union High
School District (1981) PERB Decision No. 175.
There has been no such showing in this case. Although the
parties had further negotiations in October and November 1983,
the District has not pointed to any "clear and unmistakable"
language or other conduct by EVEA which points to a waiver of
the right to negotiate over this matter. Additionally,
Respondent is estopped from asserting a waiver by conduct or
inaction where the Charging Party;s forborne insistence upon
negotiations in reliance upon material misrepresentations by
Respondent at the negotiating table.
52
Applying the reasoning set forth in Newman-Crows Landing to
the facts of this case, it is determined that the course of
communications between the parties was a sufficiently valid
request by EVEA to put the District on notice that EVEA desired
to hold negotiations on the negotiable effects of the decision
to implement the learning specialist program. Consistent with
the Board's discussion in Newman-Crows Landing, supra, the
Respondent's notion that a request for negotiations must meet a
strict standard as to form or language is rejected.
Absent clear and unequivocal language or conduct to the
contrary, PERB will not readily infer that party has waived its
statutory right to bargain over a decision not already firmly
made by the employer. Amador Valley Joint Union High School
District (1978) PERB Decision No. 74. and Sutter Union High
School District (1981) PERB Decision No. 175.
There has been no such showing in this case. Although the
parties had further negotiations in October and November 1983,
the District has not pointed to any "clear and unmistakable"
language or other conduct by EVEA which points to a waiver of
the right to negotiate over this matter. Additionally,
Respondent is estopped from asserting a waiver by conduct or
inaction where the Charging Party's forborne insistence upon
negotiations in reliance upon material misrepresentations by
Respondent at the negotiating table.
52
Far from explicitly relinquishing or implicitly abandoning
its request to negotiate, upon learning the true circumstances
of this case, EVEA actively pursued its rights through these
unfair practice proceedings.
Having determined that the District failed to establish a
valid waiver defense, it is concluded that the unilateral
implementation of the learning specialist program in the fall
1983 contravened the fundamental purpose of the Act by
violating the section 3543.5(c) duty to bargain in good faith.
D. Change in Length of Instructional Day
In this specification the Charging Party alleges that the
District unilaterally increased the length of the instructional
day for teachers of grades 4-6 on four parent conference days
when students were supposed to be on a minimum day schedule.
It is further asserted that this increase of student contact
time on days which were set aside for parent conferencing had
the impact of increasing the length of the workday for the
teachers by decreasing the amount of on-site time during the
workday that was to be set aside for parent conferencing. It
also added planning and preparation time necessary to teach the
additional instructional minutes.
Basically, the issue here is an increase of 30 minutes of
student contact time on four days the week of
November 14, 1983. Because the increase allegedly was
53
Far from explicitly relinquishing or implicitly abandoning
its request to negotiate, upon learning the true circumstances
of this case, EVEA actively pursued its rights through these
unfair practice proceedings.
Having determined that the District failed to establish a
valid waiver defense, it is concluded that the unilateral
implementation of the learning specialist program in the fall
1983 contravened the fundamental purpose of the Act by
violating the section 3543.5(c) duty to bargain in good faith.
D. Change in Length of Instructional Day
In this specification the Charging Party alleges that the
District unilaterally increased the length of the instructional
day for teachers of grades 4-6 on four parent conference days
when students were supposed to be on a minimum day schedule.
It is further asserted that this increase of student contact
time on days which were set aside for parent conferencing had
the impact of increasing the length of the workday for the
teachers by decreasing the amount of on-site time during the
workday that was to be set aside for parent conferencing. It
also added planning and preparation time necessary to teach the
additional instructional minutes.
Basically, the issue here is an increase of 30 minutes of
student contact time on four days the week of
November 14, 1983. Because the increase allegedly was
53
implemented without notice to the EVEA, nor an opportunity to
meet and negotiate over the matter, it violated the District's
statutory obligation to meet and negotiate in good faith
with EVEA.
The Respondent counters with several arguments. The first
is that when the parties negotiated an increase of 15 minutes
in the instructional day to begin during the 1983-84 school
year, there were no negotiations regarding the specific
definition of a "student minimum day" during the parent
conference days, nor how the 15 minute increase in contact time
for the intermediate grades would be implemented during the
student minimum day schedule. It is also contended that the
change in the length of the instructional day had no impact on
the workday of the affected teachers. Additionally, the
District asserts that since the CBA is silent on the question
of preparation time, there is no issue with respect to any
change in preparation time. Finally, it is argued that the
1983-84 student minimum day schedule during the four parent
conference days in question represents a reasonable application
of section 7.7 of the CBA which provided for the additional
instructional time; and said contract provision constitutes a
waiver by contract of any right by EVEA to renegotiate this
provision even though there was a subsequent change in
circumstances, i.e., a new bus schedule, not contemplated by
the parties during their initial negotiations over this
54
implemented without notice to the EVEA, nor an opportunity to
meet and negotiate over the matter, it violated the District's
statutory obligation to meet and negotiate in good faith
with EVEA.
The Respondent counters with several arguments. The first
is that when the parties negotiated an increase of 15 minutes
in the instructional day to begin during the 1983-84 school
year, there were no negotiations regarding the specific
definition of a "student minimum day" during the parent
conference days, nor how the 15 minute increase in contact time
for the intermediate grades would be implemented during the
student minimum day schedule. It is also contended that the
change in the length of the instructional day had no impact on
the workday of the affected teachers. Additionally, the
District asserts that since the CBA is silent on the question
of preparation time, there is no issue with respect to any
change in preparation time. Finally, it is argued that the
1983-84 student minimum day schedule during the four parent
conference days in question represents a reasonable application
of section 7.7 of the CBA which provided for the additional
instructional time; and said contract provision constitutes a
waiver by contract of any right by EVEA to renegotiate this
provision even though there was a subsequent change in
circumstances, i.e., a new bus schedule, not contemplated by
the parties during their initial negotiations over this
54
subject. The District cites Mt. Diablo Unified school
District, supra, as support for the latter argument.
It is a well-established PERB precedent that the length of
the instructional day is a matter within the scope of
representation. See San Mateo City School District, supra;
Healdsburg Union High School District (1980) PERB Decision
No. 132, and Sutter Union High School District (1981) PERB
Decision No. 175. That principle is not contested in this
case. What is disputed is whether the negotiations and
subsequent agreement concerning an increase in the length of
the instructional day constituted a waiver by EVEA barring
further negotiations on this issue as it relates to the student
minimum days.
There is no dispute about the negotiated increase of
instructional time for the intermediate grades (4-6) and the
implementation of such increase. Beginning in fall 1983, the
District increased the instructional time for grades 4 and 5 by
15 minutes and added 10 minutes for grade 6 instructional day
that was in effect for the 1982-83 school year.
Although the CBA made a specific reference to "student
minimum day, 11 neither the agreement nor any District policy
specifically defines the term. It is established that in the
past the District has followed the state-established standard
of 240 minutes in determining the minimum instructional day for
grades 4-6.
55
subject. The District cites Mt. Diablo Unified School
District, supra, as support for the latter argument.
It is a well-established PERB precedent that the length of
the instructional day is a matter within the scope of
representation. See San Mateo City School District, supra;
Healdsburg Union High School District (1980) PERB Decision
No. 132, and Sutter Union High School District (1981) PERB
Decision No. 175. That principle is not contested in this
case . What is disputed is whether the negotiations and
subsequent agreement concerning an increase in the length of
the instructional day constituted a waiver by EVEA barring
further negotiations on this issue as it relates to the student
minimum days.
There is no dispute about the negotiated increase of
instructional time for the intermediate grades (4-6) and the
implementation of such increase. Beginning in fall 1983, the
District increased the instructional time for grades 4 and 5 by
15 minutes and added 10 minutes for grade 6 instructional day
that was in effect for the 1982-83 school year.
Although the CBA made a specific reference to "student
minimum day, " neither the agreement nor any District policy
specifically defines the term. It is established that in the
past the District has followed the state-established standard
of 240 minutes in determining the minimum instructional day for
grades 4-6.
55
By including the increased minutes permitted by
section 7.7, as noted above, to the 240 minute minimum day
previously followed, the District increased the minimum day
schedule for 1983-84 to 250 minutes, which was 10 minutes
beyond the state minimum. However, that 10 minutes is not, and
cannot be disputed by EVEA because the parties did not
expressly exclude the application of section 7.7 to the minimum
day schedule during the fall 1983 parent conference week. It
is therefore found that, even if EVEA were disputing this time,
section 7.7 constitutes an express waiver on that point.
However, the additional 30 minutes at issue here, was time
added to the minimum student day beyond the 250 minutes
discussed above, to accommodate the needs of the school's new
bus contractor.
The student contact time was 5-1/4 hours which represented
an increase of 45 minutes for grades 4 and 5, and 40 minutes
for grade 6. This time was added without: (1) notice to EVEA;
(2J an opportunity for EVEA to negotiate or (3) any actual
implied waiver or consent by EVEA. The language of section 7.7
is plain and unambiguous. It cannot be read as being inclusive
of this latter increase. The District's argument that the
additional 30 minutes was a "reasonable application" of this
contract provision must be rejected.
The District's defense of wno impactw is now considered.
Basically, it is further argued that the increased student
56
By including the increased minutes permitted by
section 7.7, as noted above, to the 240 minute minimum day
previously followed, the District increased the minimum day
schedule for 1983-84 to 250 minutes, which was 10 minutes
beyond the state minimum. However, that 10 minutes is not, and
cannot be disputed by EVEA because the parties did not
expressly exclude the application of section 7.7 to the minimum
day schedule during the fall 1983 parent conference week. It
is therefore found that, even if EVEA were disputing this time,
section 7.7 constitutes an express waiver on that point.
However, the additional 30 minutes at issue here, was time
added to the minimum student day beyond the 250 minutes
discussed above, to accommodate the needs of the school's new
bus contractor.
The student contact time was 5-1/4 hours which represented
an increase of 45 minutes for grades 4 and 5, and 40 minutes
for grade 6. This time was added without: (1) notice to EVEA;
(2) an opportunity for EVEA to negotiate or (3) any actual
implied waiver or consent by EVEA. The language of section 7.7
is plain and unambiguous. It cannot be read as being inclusive
of this latter increase. The District's argument that the
additional 30 minutes was a "reasonable application" of this
contract provision must be rejected.
The District's defense of "no impact" is now considered.
Basically, it is further argued that the increased student
56
contact time had no impact on the length of the teachers'
instructional day and that, even if it did, the preparation
time attendant to this additional instructional time is an
extension of the teachers' basic working day. In San Mateo
City School District, supra, the Board addressed the question
of preparation time as it relates to the hours of employment.
In discussing instructional day and preparation time, the Board
stated:
[T]he instructional day includes two
distinguishable elements: the amount of
time students are required to be in school
for instruction and the amount of time
teachers are required to spend during the
working day instructing students. Although
the two may coincide, they're not
necessarily identical. Nor, is the
teachers' instructional day synonymous with
their working day •••• some portion of
the workday has been utilized for
instructional and it is
undisputed that the District requires and
the job mandates that teachers spend some
time in that activity.1
preparation
1
Although the CBA in this case is silent as to defining or
recognizing preparation as a component of the teachers'
employment obligation, there is sufficient evidence to
demonstrate that an increase in the students' instructional day
llThe Board noted that while the definition of
preparation time was not clearly demonstrated in the record
before it, it apparently included planning for and preparation
of the subject matter to be covered in class, arranging for the
availability and distribution of teaching aids and materials,
and review of student records; in brief, a combination of
professional and administerial activities designed to expedite
the presentation of educational subject matter.
57
contact time had no impact on the length of the teachers'
instructional day and that, even if it did, the preparation
time attendant to this additional instructional time is an
extension of the teachers' basic working day. In San Mateo
City School District, supra, the Board addressed the question
of preparation time as it relates to the hours of employment.
In discussing instructional day and preparation time, the Board
stated:
[T]he instructional day includes two
distinguishable elements: the amount of
time students are required to be in school
for instruction and the amount of time
teachers are required to spend during the
working day instructing students. Although
the two may coincide, they're not
necessarily identical. Nor, is the
teachers' instructional day synonymous with
their working day . . Some portion of
the workday has been utilized for
instructional preparation and it is
undisputed that the District requires and
the job mandates that teachers spend some
time in that activity. If
Although the CBA in this case is silent as to defining or
recognizing preparation as a component of the teachers'
employment obligation, there is sufficient evidence to
demonstrate that an increase in the students' instructional day
1lThe Board noted that while the definition of
preparation time was not clearly demonstrated in the record
before it, it apparently included planning for and preparation
of the subject matter to be covered in class, arranging for the
availability and distribution of teaching aids and materials,
and review of student records; in brief, a combination of
professional and administerial activities designed to expedite
the presentation of educational subject matter.
57
foreseeably resulted in having an effect on the teachers'
instructional day and preparation time. San Mateo, supra.
Here, the length of the teachers' instructional day was
unilaterally altered by the District beyond the time that was
bilaterally negotiated with the exclusive representative. The
effect of the increase of 30 minutes per day on the students'
minimum day schedule was to reduce the amount of time available
for required preparation and parent conferencing. District
witness, Keith McCarthy, acknowledged that the District
expected teachers to maintain the same quality of instruction
on the minimum day schedule as required on a regular
instructional day. Consequently, the affected teachers were
expected to do necessary preparation and planning for the
additional 30 minutes of instructional time.
several teacher witnesses testified about the effect of the
increased instructional time on the amount of time that they
As a requirement of teaching, "job" preparation time is a
component of the teachers' employment obligation in the same
sense as classroom instruction and other mandated duties such
as parent-teacher conferences, giving examinations, or grading
students.
The Board went on to say that while it may be conceded for
purposes of the case, the matter not being an issue, that the
District's requirement that teachers "prepare" for instruction
is a matter of managerial prerogative not subject to
negotiations, to the extent that requirement relates to the
teachers 1 hours of employment, the matter is subject to
bilateral determination. San Mateo City School District, supra
at pp. 15-17.
58
foreseeably resulted in having an effect on the teachers'
instructional day and preparation time. San Mateo, supra.
Here, the length of the teachers' instructional day was
unilaterally altered by the District beyond the time that was
bilaterally negotiated with the exclusive representative. The
effect of the increase of 30 minutes per day on the students'
minimum day schedule was to reduce the amount of time available
for required preparation and parent conferencing. District
witness, Keith Mccarthy, acknowledged that the District
expected teachers to maintain the same quality of instruction
on the minimum day schedule as required on a regular
instructional day . Consequently, the affected teachers were
expected to do necessary preparation and planning for the
additional 30 minutes of instructional time.
Several teacher witnesses testified about the effect of the
increased instructional time on the amount of time that they
As a requirement of teaching, "job" preparation time is a
component of the teachers' employment obligation in the same
sense as classroom instruction and other mandated duties such
as parent-teacher conferences, giving examinations, or grading
students .
The Board went on to say that while it may be conceded for
purposes of the case, the matter not being an issue, that the
District's requirement that teachers "prepare" for instruction
is a matter of managerial prerogative not subject to
negotiations, to the extent that requirement relates to the
teachers' hours of employment, the matter is subject to
bilateral determination. San Mateo City School District, supra
at pp. 15-17.
58
were required to spend outside their regular seven and one-half
hour workday to complete preparation for their regular
classroom instruction, in addition to preparation and for the
parent conferencing sessions. This time varied from 25-45
minutes per day per teacher beyond the regular 7-1/2 hour
workday. To the extent that the preparation time is a
condition of employment which relates to hours of employment,
as in this case, it is properly a subject of negotiations and
may not be unilaterally increased. san Mateo, supra at p. 17.
There is nothing in the language, of section 7.7 from which
it can be reasonably inferred that EVEA waived its statutory
right to further negotiations over this subject. Thus, the
District 1 s final proffered excuse of "changed circumstances"
does not rise to the level of business nor operational
necessity which would justify its unilateral actions in this
regard.
For all the foregoing reasons, it is found that the
District violated section 3543.5(c) of the EERA by refusing and
failing to meet and negotiate in good faith with EVEA over the
decision to increase the teachers' instructional day and
preparation time in the fall of 1983.
E. Reduction in Work Year of Bilingual Facilitator
The issues raised by LA-CE-1827, paragraph 3(f) and
LA-CE-2031 are the same, except that they involve two different
59
were required to spend outside their regular seven and one-half
hour workday to complete preparation for their regular
classroom instruction, in addition to preparation and for the
parent conferencing sessions. This time varied from 25-45
minutes per day per teacher beyond the regular 7-1/2 hour
workday. To the extent that the preparation time is a
condition of employment which relates to hours of employment,
as in this case, it is properly a subject of negotiations and
may not be unilaterally increased. San Mateo, supra at p. 17.
There is nothing in the language, of section 7.7 from which
it can be reasonably inferred that EVEA waived its statutory
right to further negotiations over this subject. Thus, the
District's final proffered excuse of "changed circumstances"
does not rise to the level of business nor operational
necessity which would justify its unilateral actions in this
regard.
For all the foregoing reasons, it is found that the
District violated section 3543.5(c) of the EERA by refusing and
failing to meet and negotiate in good faith with EVEA over the
decision to increase the teachers' instructional day and
preparation time in the fall of 1983.
E. Reduction in Work Year of Bilingual Facilitator
The issues raised by LA-CE-1827, paragraph 3(f ) and
LA-CE-2031 are the same, except that they involve two different
59
school years. For this reason they will be discussed here
concurrently.
In both charges, EVEA contends that when the District
agreed to a reduced work year for Judith Reising, a member of
the certificated bargaining unit employed as the District
bilingual facilitator, the Respondent engaged in direct dealing
or negotiations with a unit member in derogation of the
statutory rights to representation granted to EVEA as the
exclusive representative.
In charge LA-CE-1827, the Respondent admits taking action
to reduce the work year of Judith Reising for the 1983-84
school year, but denies that its conduct, in this regard,
amounted to direct dealing or bypass of EVEA. In charge
LA-CE-2031, the Respondent denies reducing Reising•s work year
for the 1984-85 school year. Instead, it asserts that it
granted a limited childbearing leave as provided for by a
provision of the CBA.
Section 3543.5 provides that it is unlawful for a public
school employer to deny to employee organizations rights
guaranteed to them by the EERA, or to refuse or fail to meet
and negotiate in good faith with an exclusive representative.
section 3543.l(a) 12 gives the exclusive representative
12section 3543.l(a) reads:
Employee organizations shall have the right
to represent their members in their
60
school years. For this reason they will be discussed here
concurrently.
In both charges, EVEA contends that when the District
agreed to a reduced work year for Judith Reising, a member of
the certificated bargaining unit employed as the District
bilingual facilitator, the Respondent engaged in direct dealing
or negotiations with a unit member in derogation of the
statutory rights to representation granted to EVEA as the
exclusive representative.
In charge LA-CE-1827, the Respondent admits taking action
to reduce the work year of Judith Reising for the 1983-84
school year, but denies that its conduct, in this regard,
amounted to direct dealing or bypass of EVEA. In charge
LA-CE-2031, the Respondent denies reducing Reising's work year
for the 1984-85 school year. Instead, it asserts that it
granted a limited childbearing leave as provided for by a
provision of the CBA.
Section 3543.5 provides that it is unlawful for a public
school employer to deny to employee organizations rights
guaranteed to them by the EERA, or to refuse or fail to meet
and negotiate in good faith with an exclusive representative.
Section 3543.1(a) gives the exclusive representative
12section 3543.1(a ) reads:
Employee organizations shall have the right
to represent their members in their
60
the right to represent its bargaining unit members in their
employment relations with the employer. Likewise,
section 3543.3 13 obligates the employer to meet and negotiate
only with the exclusive representative of a group of given
employees, upon request, with regard to matters within the
scope of representation.
In Walnut Valley Unified School District (1981) PERB
Decision No. 160, the Board addressed a charge of bypassing the
exclusive representative where the employer extended overtime
opportunities to four members of the bargaining unit. The
Board said:
The law regarding employers negotiating
directly with their employees and bypassing
the designated bargaining representative is
clear. Section 3543.3 of the EERA, requires
the employer to negotiate and bargain in
good faith once an employee organization has
been duly designated as the exclusive
representative for a given group of
employment relations with public school
employers, except that once an employee
organization is recognized or certified as
the exclusive representative of an
appropriate unit pursuant to Section 3544.1
or 3544.7, respectively, only that employee
organization may represent that unit in
their employment relations with the public
school employer. Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership.
13see fn. 2, supra.
61
the right to represent its bargaining unit members in their
employment relations with the employer. Likewise,
section 3543.3 obligates the employer to meet and negotiate
only with the exclusive representative of a group of given
employees, upon request, with regard to matters within the
scope of representation.
In Walnut Valley Unified School District (1981) PERB
Decision No. 160, the Board addressed a charge of bypassing the
exclusive representative where the employer extended overtime
opportunities to four members of the bargaining unit. The
Board said:
The law regarding employers negotiating
directly with their employees and bypassing
the designated bargaining representative is
clear. Section 3543.3 of the EERA, requires
the employer to negotiate and bargain in
good faith once an employee organization has
been duly designated as the exclusive
representative for a given group of
employment relations with public school
employers, except that once an employee
organization is recognized or certified as
the exclusive representative of an
appropriate unit pursuant to Section 3544.1
or 3544.7, respectively, only that employee
organization may represent that unit in
their employment relations with the public
school employer. Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership.
13 see fn. 2, supra.
61
employees3 This obligation imposes on the
employer the requirement that it provide the
exclusive representative with notice and the
opportunity to negotiate on proposed changes
of matters within the scope of
representation. Unilateral action taken
without fulfilling this obligation
constitutes a refusal to negotiate in good
faith. San Mateo county CCD PERB Decision
No. 94 (6/8/79). An employer may not, in
the presence of an exclusive representative,
unilaterally establish or modify existing
policies covering, for example, overtime pay
rates, the selection of employees to work
overtime, or the definition of overtime
hours. (Underlining in original. Footnote
as per original, omitted.) as per original, omitted. )
In Walnut Valley, PERB held that in order to prove that the
employer has unlawfully bypassed the exclusive representative
by "negotiating" directly with unit employees, it must be
demonstrated that the District sought either to create a new
policy of general application or to obtain a waiver or
modification of existing policy applicable to such employees.
This case does not address overtime policy, but rather the
work year of a unit employee, a matter similarly within the
scope of representation. Sometime during the summer of 1983,
while the District and EVEA were commencing contract reopener
negotiations, Reising approached Superintendent Flora with her
request to reduce her work year for the 1983-84 school year
from the 186 days she had worked during the 1982-83 school year
to 166 days. The District board acted to approve Reising 1 s
request, a reduction of her work year on August 26, 1983. The
62
employees This obligation imposes on the
employer the requirement that it provide the
exclusive representative with notice and the
opportunity to negotiate on proposed changes
of matters within the scope of
representation. Unilateral action taken
without fulfilling this obligation
constitutes a refusal to negotiate in good
faith. San Mateo County CCD PERB Decision
No. 94 (6/8/79). An employer may not, in
the presence of an exclusive representative,
unilaterally establish or modify existing
policies covering, for example, overtime pay
rates, the selection of employees to work
overtime, or the definition of overtime
hours. ( Underlining in original. Footnote
In Walnut Valley, PERB held that in order to prove that the
employer has unlawfully bypassed the exclusive representative
by "negotiating" directly with unit employees, it must be
demonstrated that the District sought either to create a new
policy of general application or to obtain a waiver or
modification of existing policy applicable to such employees.
This case does not address overtime policy, but rather the
work year of a unit employee, a matter similarly within the
scope of representation. Sometime during the summer of 1983,
while the District and EVEA were commencing contract reopener
negotiations, Reising approached Superintendent Flora with her
request to reduce her work year for the 1983-84 school year
from the 186 days she had worked during the 1982-83 school year
to 166 days. The District board acted to approve Reising's
request, a reduction of her work year on August 26, 1983. The
62
subsequent exchange of memoranda between Reising and Flora,
concerning this action, indicates an attempt by Reising to
negotiate with Flora concerning various terms and conditions of
her employment in connection with the reduction in the number
of days that she wanted to work during the ensuing school year.
Flora's memo to Reising dated August 29, 1983, stated that
"your contract" will be changed to reflect the reduction in
workdays. Although the District denies it, its conduct, in
this regard, amounted to direct dealing with Reising. There is
no evidence that any attempt was made to involve EVEA, in any
way, in the process that led to the approval of the reduced
work year.
The CBA, which had been ratified by the parties on
April 1983, provided for a work year for returning unit members
of 179 days. Additionally, other terms and conditions of
employment, such as seniority credit, salary increments, were
covered by the same agreement. Although Reising's memo of
August 25, 1983, to Flora showed that a carbon copy was sent to
Dee Thomas, president of EVEA, there was no subsequent
reference mentioned in Reising 1 s memo to Flora that Thomas on
behalf of EVEA, had questioned the propriety of the action in
question and expressed EVEA's interest in being involved in
this process. Likewise, Flora's memo to Reising did not make
any reference to the CBA or EVEA's need to be involved or
informed about this action.
63
subsequent exchange of memoranda between Reising and Flora,
concerning this action, indicates an attempt by Reising to
negotiate with Flora concerning various terms and conditions of
her employment in connection with the reduction in the number
of days that she wanted to work during the ensuing school year.
Flora's memo to Reising dated August 29, 1983, stated that
"your contract" will be changed to reflect the reduction in
workdays. Although the District denies it, its conduct, in
this regard, amounted to direct dealing with Reising. There is
no evidence that any attempt was made to involve EVEA, in any
way, in the process that led to the approval of the reduced
work year .
The CBA, which had been ratified by the parties on
April 1983, provided for a work year for returning unit members
of 179 days. Additionally, other terms and conditions of
employment, such as seniority credit, salary increments, were
covered by the same agreement. Although Reising's memo of
August 25, 1983, to Flora showed that a carbon copy was sent to
Dee Thomas, president of EVEA, there was no subsequent
reference mentioned in Reising's memo to Flora that Thomas on
behalf of EVEA, had questioned the propriety of the action in
question and expressed EVEA's interest in being involved in
this process. Likewise, Flora's memo to Reising did not make
any reference to the CBA or EVEA's need to be involved or
informed about this action.
63
Again in the summer of 1984, upon hearing a rumor that
Reising was going to request another reduction in her work
year, Caldwell, on behalf of EVEA, approached Reising in
anticipation of this action and requested that she pursue it
through the exclusive representative.
Instead of involving EVEA or allowing the organization to
proceed on her behalf, Reising herself again requested a
reduction of her 1984-85 work year to have child-rearing time
with her daughter. This time her request included a list of
six "stipulations" covering various terms and conditions of
employment which Reising sought as a condition for the leave
being approved. Though this memo showed that a copy was sent
to the EVEA, there was a statement in the memo to indicate that
the request was being sought through EVEA as the exclusive
representative acting on Reising 1 s behalf. Although Reising
again obtained the District board's approval of her request for
a 40 percent leave, i.e., reduction of the work year, she was
not able to obtain the additional terms sought as part of
negotiated package.
After Reising rejected the terms and conditions which were
applicable to her leave, she sought the assistance of EVEA and
the District in resolving the work year problem during their
negotiations of items subject to the contract reopener
provision.
Failing to obtain a satisfactory resolution of her problem,
Reising then approached Flora who unilaterally advised her to
64
Again in the summer of 1984, upon hearing a rumor that
Reising was going to request another reduction in her work
year, Caldwell, on behalf of EVEA, approached Reising in
anticipation of this action and requested that she pursue it
through the exclusive representative.
Instead of involving EVEA or allowing the organization to
proceed on her behalf, Reising herself again requested a
reduction of her 1984-85 work year to have child-rearing time
with her daughter. This time her request included a list of
six "stipulations" covering various terms and conditions of
employment which Reising sought as a condition for the leave
being approved. Though this memo showed that a copy was sent
to the EVEA, there was a statement in the memo to indicate that
the request was being sought through EVEA as the exclusive
representative acting on Reising's behalf. Although Reising
again obtained the District board's approval of her request for
a 40 percent leave, i. e., reduction of the work year, she was
not able to obtain the additional terms sought as part of the
negotiated package.
After Reising rejected the terms and conditions which were
applicable to her leave, she sought the assistance of EVEA and
the District in resolving the work year problem during their
negotiations of items subject to the contract reopener
provision.
Failing to obtain a satisfactory resolution of her problem,
Reising then approached Flora who unilaterally advised her to
64
work the same reduced work year during the 1984-85 school year
that the District had approved for the 1983-84 school year.
Again, there is no evidence that prior to making this decision,
Flora provided EVEA with notice or an opportunity to meet and
negotiate over this decision.
The District has offered no defense of its actions with
respect to the reduction of Reising's 1983-84 school year,
except to deny bypass of EVEA. Its characterization of the
change in the work year for the 1984-85 school year as
child-rearing leave is not convincing.
The work year of employees represented by EVEA is
specifically defined in Article 7.0 of the CBA. The only
exceptions are expressly set forth in the language itself.
(Seep. 10, supra.) The stated exceptions do not refer to the
bilingual facilitator position. Nor does the language provide
for a "reduced work yearn for any unit member.
The District's limited leave policy that was referred to
when Reising 1 s 1983-84 work year reduction was approved, does
not expressly provide for a reduced work year. Thus, the
District's action on August 26, 1983, approving such change,
must be viewed as a unilateral change of policy of general
application with respect to existing District policy and the
CBA. Additionally, such action was the result of direct
dealing between an individual bargaining unit employee and
65
work the same reduced work year during the 1984-85 school year
that the District had approved for the 1983-84 school year.
Again, there is no evidence that prior to making this decision,
Flora provided EVEA with notice or an opportunity to meet and
negotiate over this decision.
The District has offered no defense of its actions with
respect to the reduction of Reising's 1983-84 school year,
except to deny bypass of EVEA. Its characterization of the
change in the work year for the 1984-85 school year as
child-rearing leave is not convincing.
The work year of employees represented by EVEA is
specifically defined in Article 7.0 of the CBA. The only
exceptions are expressly set forth in the language itself.
(See p. 10, supra. ) The stated exceptions do not refer to the
bilingual facilitator position. Nor does the language provide
for a "reduced work year" for any unit member.
The District's limited leave policy that was referred to
when Reising's 1983-84 work year reduction was approved, does
not expressly provide for a reduced work year. Thus, the
District's action on August 26, 1983, approving such change,
must be viewed as a unilateral change of policy of general
application with respect to existing District policy and the
CBA. Additionally, such action was the result of direct
dealing between an individual bargaining unit employee and
65
District administrative personnel. This action, as well as the
District board's subsequent approval, all occurred without
notice to EVEA nor an opportunity for EVEA to represent the
employee involved or the interest of the entire bargaining
unit. This action constitutes bypass of EVEA as the exclusive
representative and is a violation of the duty to meet and
negotiate with the exclusive representative as required by
sections 3543.3 and 3543.S(c).
The following year when the District board took action on
July 5, 1984, to grant Reising an "unpaid child-rearing leave,
.4 of 1984-85 school year," this action was taken prior to any
formal notification by the District to EVEA that such action
was being contemplated. Additionally, it occurred despite
efforts by EVEA in June and early July 1984, with both Reising
and Flora, to be included in working out a resolution for
Reising that would also protect the integrity of the collective
bargaining process.
Flora's subsequent directive to Reising in September 1984
about working a reduced year for the 1984-85 school year was
not made known to EVEA until it was revealed during the unfair
practice hearing in this case. Flora admitted that this
decision was never reduced to writing, nor otherwise made
official by him because the matter remained on hold pending the
outcome of these proceedings. All these actions clearly
66
District administrative personnel. This action, as well as the
District board's subsequent approval, all occurred without
notice to EVEA nor an opportunity for EVEA to represent the
employee involved or the interest of the entire bargaining
unit. This action constitutes bypass of EVEA as the exclusive
representative and is a violation of the duty to meet and
negotiate with the exclusive representative as required by
sections 3543.3 and 3543.5(c).
The following year when the District board took action on
July 5, 1984, to grant Reising an "unpaid child-rearing leave,
. 4 of 1984-85 school year, " this action was taken prior to any
formal notification by the District to EVEA that such action
was being contemplated. Additionally, it occurred despite
efforts by EVEA in June and early July 1984, with both Reising
and Flora, to be included in working out a resolution for
Reising that would also protect the integrity of the collective
bargaining process.
Flora's subsequent directive to Reising in September 1984
about working a reduced year for the 1984-85 school year was
not made known to EVEA until it was revealed during the unfair
practice hearing in this case. Flora admitted that this
decision was never reduced to writing, nor otherwise made
official by him because the matter remained on hold pending the
outcome of these proceedings. All these actions clearly
66
fall within the ambit of the standard of proof established in
Walnut Valley Unified School District, supra. In his
July 17, 1984, memo to Reising, Flora acknowledged that
Reising's leave request was "relatively rare" and "may be
••• subject to review by EVEA." However, these statements
were all subsequent to formal action by the District board.
Flora's statement that the type of leave granted to Reising was
"relatively rare" is viewed as evidence that the District's
application of the child-rearing leave provision to Reising 1 s
case was not encompassed by section 13,8 of the CBA.
Contrary to the District's contentions about its 1984
action, it is clear that the exchange of memoranda between
Reising and Flora in 1984 and their subsequent discussions
concerning changes in her work year were a form of negotiations
over matters within the scope of representation. As an outcome
of this process, the District's board unilaterally altered the
application of a leave provision of the CBA and reduced an
individual employee's work year from that established by an
express term of the collective agreement between the District
and EVEA. The District also proposed modifying other terms and
conditions of Reising 1 s employment for the 1984-85 school
year. Reising 1 s later rejection of the terms of employment
approved by the District with her leave/reduced work year
request does not moot the effect of the unlawful action.
67
fall within the ambit of the standard of proof established in
Walnut Valley Unified School District, supra. In his
July 17, 1984, memo to Reising, Flora acknowledged that
Reising's leave request was "relatively rare" and "may be
. subject to review by EVEA." However, these statements
were all subsequent to formal action by the District board.
Flora's statement that the type of leave granted to Reising was
"relatively rare" is viewed as evidence that the District's
application of the child-rearing leave provision to Reising's
case was not encompassed by section 13.8 of the CBA.
Contrary to the District's contentions about its 1984
action, it is clear that the exchange of memoranda between
Reising and Flora in 1984 and their subsequent discussions
concerning changes in her work year were a form of negotiations
over matters within the scope of representation. As an outcome
of this process, the District's board unilaterally altered the
application of a leave provision of the CBA and reduced an
individual employee's work year from that established by an
express term of the collective agreement between the District
and EVEA. The District also proposed modifying other terms and
conditions of Reising's employment for the 1984-85 school
year. Reising's later rejection of the terms of employment
approved by the District with her leave/reduced work year
request does not moot the effect of the unlawful action.
67
In J. I. case Co. v. NLRB (1944) 321 U.S. 332, [88 L. Ed.
762] cited by PERB in San Francisco Community College District
(1979) PERB Decision No. 105, the United States Supreme court
said:
The very purpose of providing by statute for
the collective agreement is to supersede the
terms of separate agreements of employees
with terms which reflect the strength and
bargaining power and serve the welfare of
the group. Its benefits and advantages are
open to every employee of the represented
unit, whatever the type or terms of his
pre-existing contract of employment.
In the Modesto City Schools (1983) PERB Decision No. 291,
the PERB found a direct offer to employees; without such offer
first being communicated to the exclusive representative, to be
a violation of the employer's obligation to bargain only with
the exclusive representative. Here, not only did the District
agree to terms of employment which were at variance with those
provided for in the collective agreement, it did so without
first providing the exclusive representative with an
opportunity to negotiate the matter. By such actions in both
1983 and 1984, it is concluded that the District violated its
duty to bargain in good faith by bypassing the exclusive
representative and securing employment contracts with an
individual member of the bargaining unit with terms different
than those provided for by the collective bargaining
agreement. This conduct is a derogation of the duty imposed by
section 3543.3 and, thereby, violates section 3543.5(c).
68
In J. I. Case Co. V. NLRB (1944) 321 U.S. 332, [88 L. Ed.
762] cited by PERB in San Francisco Community College District
(1979) PERB Decision No. 105, the United States Supreme Court
said:
The very purpose of providing by statute for
the collective agreement is to supersede the
terms of separate agreements of employees
with terms which reflect the strength and
bargaining power and serve the welfare of
the group. Its benefits and advantages are
open to every employee of the represented
unit, whatever the type or terms of his
pre-existing contract of employment.
In the Modesto City Schools (1983) PERB Decision No. 291,
the PERB found a direct offer to employees, without such offer
first being communicated to the exclusive representative, to be
a violation of the employer's obligation to bargain only with
the exclusive representative. Here, not only did the District
agree to terms of employment which were at variance with those
provided for in the collective agreement, it did so without
first providing the exclusive representative with an
opportunity to negotiate the matter. By such actions in both
1983 and 1984, it is concluded that the District violated its
duty to bargain in good faith by bypassing the exclusive
representative and securing employment contracts with an
individual member of the bargaining unit with terms different
than those provided for by the collective bargaining
agreement . This conduct is a derogation of the duty imposed by
section 3543.3 and, thereby, violates section 3543.5(c).
68
CONCLUSION
It is concluded that with respect to the allegations
contained in case numbers LA-CE-1827, paragraphs 2, 3(b), 3(c),
3(e), and 3(f), and LA-CE-2031, charging the District with
unlawful unilateral actions because of a failure to meet and
negotiate with EVEA in good faith prior to such actions, where
violations of section 3543.S(c) were found, this conduct
concurrently violated section 3543.S(a) and (b) of the Act.
San Francisco Community College District, supra.
With regard to case number LA-CE-2031, the Respondent's
motion to dismiss is denied. charging Party's motion to amend
the pleadings to conform to evidence presented during the
hearing is granted.
REMEDY
Section 3541.S(c) authorizes the PERB to:
.•. issue a decision and order directing
an offending party to cease and desist from
the unfair practice and to take such
affirmative action, including but not
limited to the reinstatement of employees
with or without back pay, as will effectuate
the policies of this chapter.
In a unilateral change case, it has been the practice of
PERB to order the employer to cease and desist from its
unlawful action, to restore the status quo ante, and to require
the employer to make affected employees whole for monetary
losses incurred as a result of the employer's unlawful
conduct. Rio Hondo Community College District (1983) PERB
69
CONCLUSION
It is concluded that with respect to the allegations
contained in case numbers LA-CE-1827, paragraphs 2, 3(b) , 3(c),
3(e), and 3(f), and LA-CE-2031, charging the District with
unlawful unilateral actions because of a failure to meet and
negotiate with EVEA in good faith prior to such actions, where
violations of section 3543.5(c) were found, this conduct
concurrently violated section 3543.5(a ) and (b) of the Act.
San Francisco Community College District, supra.
With regard to case number LA-CE-2031, the Respondent's
motion to dismiss is denied. Charging Party's motion to amend
the pleadings to conform to evidence presented during the
hearing is granted.
REMEDY
Section 3541.5(c) authorizes the PERB to:
issue a decision and order directing
an offending party to cease and desist from
the unfair practice and to take such
affirmative action, including but not
limited to the reinstatement of employees
with or without back pay, as will effectuate
the policies of this chapter.
In a unilateral change case, it has been the practice of
PERB to order the employer to cease and desist from its
unlawful action, to restore the status quo ante, and to require
the employer to make affected employees whole for monetary
losses incurred as a result of the employer's unlawful
conduct . Rio Hondo Community College District (1983) PERB
69
Decision No. 292. It is appropriate, therefore, to order the
District to cease and desist from such unlawful conduct as has
been found above.
The EVEA seeks an order restoring the status quo of
benefits improperly enhanced or reduced by the District, and to
pay to employees represented by EVEA who were obliged, as a
result of the District's unlawful actions, to work either
additional time beyond their regular workdays or increased
student instructional time, appropriate compensation for the
increased time. In corning union High School District (1984)
PERB Decision No. 399, a case in which PERB found that a school
district had unlawfully eliminated certain teachers'
preparation periods, PERB issued a remedial order which had two
alternative methods of compensating those employees who were
required to work longer hours than had been agreed to. The
Board ordered the District to compensate the affected employees
by giving them paid time off work •which comports with the
number of extra hours each employee actually worked." In the
alternative, the Board ordered that if the district and the
employee organization were unable to agree on the manner in
which the time off would be granted, "the employees concerning
whom there is no agreement shall receive monetary compensation
commensurate with the extra hours worked."
That precedent will be followed here with respect to the
District's unilateral actions in the fall of 1983 which
70
Decision No. 292. It is appropriate, therefore, to order the
District to cease and desist from such unlawful conduct as has
been found above.
The EVEA seeks an order restoring the status quo of
benefits improperly enhanced or reduced by the District, and to
pay to employees represented by EVEA who were obliged, as a
result of the District's unlawful actions, to work either
additional time beyond their regular workdays or increased
student instructional time, appropriate compensation for the
increased time. In Corning Union High School District (1984)
PERB Decision No. 399, a case in which PERB found that a school
district had unlawfully eliminated certain teachers'
preparation periods, PERB issued a remedial order which had two
alternative methods of compensating those employees who were
required to work longer hours than had been agreed to. The
Board ordered the District to compensate the affected employees
by giving them paid time off work "which comports with the
number of extra hours each employee actually worked. " In the
alternative, the Board ordered that if the district and the
employee organization were unable to agree on the manner in
which the time off would be granted, "the employees concerning
whom there is no agreement shall receive monetary compensation
commensurate with the extra hours worked."
That precedent will be followed here with respect to the
District's unilateral actions in the fall of 1983 which
70
resulted in increasing the amount of non-classroom preparation
required of teachers affected by (1) the reduction in
instructional aide time beyond what it was during the preceding
school year or (2) an increase in student instructional time on
student minimum days in mid-November 1983 beyond the increase
negotiated with the exclusive representative.
It is recognized that for this part of the order, the
evidence is incomplete about the actual amount of preparation
time worked by each affected teacher after both unilateral
changes. Only teachers who reduced their preparation effort
could have avoided lengthening their workday. There is no
credible evidence that any teacher chose this path.
Despite this lack of concrete proof, the make-whole remedy
is appropriate.
It is possible that specific teachers might have reduced
their preparation time during the fall 1983 time when their
assigned aide time was either reduced or eliminated completely
and again during the week of November 14, 1983, on the four
minimum days in question; and as a result, did not have a
longer working day or week. If the parties cannot, by their
own efforts, agree on amounts of money or compensatory time
due, the question of each teacher 1 s entitlement is left to a
compliance proceeding. The order, therefore, establishes that
teachers who did work longer days as a result of the subject
71
resulted in increasing the amount of non-classroom preparation
required of teachers affected by (1) the reduction in
instructional aide time beyond what it was during the preceding
school year or (2) an increase in student instructional time on
student minimum days in mid-November 1983 beyond the increase
negotiated with the exclusive representative.
It is recognized that for this part of the order, the
evidence is incomplete about the actual amount of preparation
time worked by each affected teacher after both unilateral
changes. Only teachers who reduced their preparation effort
could have avoided lengthening their workday. There is no
credible evidence that any teacher chose this path.
Despite this lack of concrete proof, the make-whole remedy
is appropriate.
It is possible that specific teachers might have reduced
their preparation time during the fall 1983 time when their
assigned aide time was either reduced or eliminated completely
and again during the week of November 14, 1983, on the four
minimum days in question; and as a result, did not have a
longer working day or week. If the parties cannot, by their
own efforts, agree on amounts of money or compensatory time
due, the question of each teacher's entitlement is left to a
compliance proceeding. The order, therefore, establishes that
teachers who did work longer days as a result of the subject
71
unilateral changes are entitled to additional compensation or
paid time off. 14
It is also appropriate to order the District to rescind the
practice that modified the compensation of certain bargaining
unit members from an hourly rate to a per diem rate for work
performed during the summer of 1983; and to compensate any
affected employees for monetary losses suffered as a result of
this unilateral change. All payments shall include 10 percent
per annum interest.
A more difficult problem concerns the fashioning of a
remedy regarding the learning specialist program. It is
recognized that the individuals employed in these positions
during the 1983-84 and 1984-85 school year may have already
received the annual $1500 stipend for both school years in
question. To order a complete restoration of the status quo
ante as to compensation already received could impose a severe
hardship on the affected employees by requiring that any
stipends received be repaid to the District.
In recognition of this circumstance, it is therefore
appropriate to order the District to cease and desist from
l4PERB has issued similar orders in other unilateral
change cases, in which the entitlement of various individuals
to monetary compensation was uncertain. Oakland Unified School
District (1980) PERE Decision No. 126, aff'd, Oakland Unified
school District v. PERB, 120 cal.App • .3d 1007 (1981) and Lincoln
Unified School District (1984), PERB Decision No. 465.
72
unilateral changes are entitled to additional compensation or
paid time off . 14
It is also appropriate to order the District to rescind the
practice that modified the compensation of certain bargaining
unit members from an hourly rate to a per diem rate for work
performed during the summer of 1983; and to compensate any
affected employees for monetary losses suffered as a result of
this unilateral change. All payments shall include 10 percent
per annum interest.
A more difficult problem concerns the fashioning of a
remedy regarding the learning specialist program. It is
recognized that the individuals employed in these positions
during the 1983-84 and 1984-85 school year may have already
received the annual $1500 stipend for both school years in
question. To order a complete restoration of the status quo
ante as to compensation already received could impose a severe
hardship on the affected employees by requiring that any
stipends received be repaid to the District.
In recognition of this circumstance, it is therefore
appropriate to order the District to cease and desist from
14PERB has issued similar orders in other unilateral
change cases, in which the entitlement of various individuals
to monetary compensation was uncertain. Oakland Unified School
District (1980) PERB Decision No. 126, aff'd, Oakland Unified
School District v. PERB, 120 cal . App. 3d 1007 (1981) and Lincoln
Unified School District (1984), PERB Decision No. 465.
72
further implementation of this program, including further
payment of a stipend to any incumbents in learning specialists
positions; and upon request from the EVEA, meet and negotiate
in good faith over the negotiable aspects of the learning
specialist program until agreement is reached or the statutory
impasse procedure is exhausted before reinstituting this
program. An agreement, if reached, can address the issue of
stipends paid for the 1983-84 and 1984-85 school years.
Additionally, it is appropriate to order the District, upon
the request of EVEA, to restore the work year of the bilingual
facilitator to that prevailing for unit members at the time of
unlawful changes in the 1983-84 or 1984-85 school years.
Finally, it is appropriate that the District should be
required to post a notice incorporating the terms of this order
attached as an appendix hereto. The notice should be
subscribed by an authorized agent of the Lake Elsinore School
District, indicating that the District will comply with the
terms of this order. The notice shall not be reduced in size.
Posting of such notice will provide employees
additional statement that the District has acted in an unlawful
manner, and is being required to cease and desist from such
activity. It effectuates the purposes of the EERA that
employees be informed of the resolution of the controversy and
the District's readiness to comply with the ordered remedy.
73
further implementation of this program, including further
payment of a stipend to any incumbents in learning specialists
positions; and upon request from the EVEA, meet and negotiate
in good faith over the negotiable aspects of the learning
specialist program until agreement is reached or the statutory
impasse procedure is exhausted before reinstituting this
program. An agreement, if reached, can address the issue of
stipends paid for the 1983-84 and 1984-85 school years.
Additionally, it is appropriate to order the District, upon
the request of EVEA, to restore the work year of the bilingual
facilitator to that prevailing for unit members at the time of
unlawful changes in the 1983-84 or 1984-85 school years.
Finally, it is appropriate that the District should be
required to post a notice incorporating the terms of this order
attached as an appendix hereto. The notice should be
subscribed by an authorized agent of the Lake Elsinore School
District, indicating that the District will comply with the
terms of this order. The notice shall not be reduced in size.
Posting of such notice will provide employees with an
additional statement that the District has acted in an unlawful
manner, and is being required to cease and desist from such
activity. It effectuates the purposes of the EERA that
employees be informed of the resolution of the controversy and
the District's readiness to comply with the ordered remedy.
73
See Placerville Union School District (9/18/78) PERB Decision
No. 69; Pandol and Sons v. Agricultural Labor Relations Board
(1979) 98 Cal.App.3d 580, 587; NLRB v. Express Publishing Co.
(1941) 312 U.S. 426 [8 LRRM 415].
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and purusant to section
3541.S(c) of the Educational Employment Relations Act, it is
hereby ordered that the Lake Elsinore School District, its
Board of Trustees, superintendent and its agents shall:
A. CEASE AND DESIST FROM:
1. Failing and refusing to meet and negotiate in
good faith with the Elsinore Valley Education Association
concerning: (1) the length of the teachers' instructional day
and workday ~nd rhP pffprr8 of any increase in the same on
non-class preparation time; (2) changes in the rate of pay to
unit members for summer work performed; (3) implementation of
the learning specialist program, including the amount of annual
stipend paid; and (4) changes in the certificated work year and
other terms and conditions of employment within the scope of
representation.
2. Denying to the Elsinore Valley Education
Association, CTA/NEA, rights guaranteed by the Educational
Employment Relations Act, including the right to represent its
members.
74
See Placerville Union School District (9/18/78) PERB Decision
No. 69; Pandol and Sons v. Agricultural Labor Relations Board
(1979) 98 Cal . App. 3d 580, 587; NLRB v. Express Publishing Co.
(1941) 312 U.S. 426 [8 LRRM 415].
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and purusant to section
3541.5(c) of the Educational Employment Relations Act, it is
hereby ordered that the Lake Elsinore School District, its
Board of Trustees, Superintendent and its agents shall:
A. CEASE AND DESIST FROM:
1 . Failing and refusing to meet and negotiate in
good faith with the Elsinore Valley Education Association
concerning: (1) the length of the teachers' instructional day
and workday and the effects of any increase in the same on
non-class preparation time; (2) changes in the rate of pay to
unit members for summer work performed; (3) implementation of
the learning specialist program, including the amount of annual
stipend paid; and (4) changes in the certificated work year and
other terms and conditions of employment within the scope of
representation.
2 . Denying to the Elsinore Valley Education
Association, CTA/NEA, rights guaranteed by the Educational
Employment Relations Act, including the right to represent its
members.
74
3. Interfering with employees in the exercise of
rights guaranteed by the Educational Employment Relations Act,
including the right to be represented by their chosen
representative.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
1. Upon request, meet with and negotiate with the
exclusive representative regarding changing the length of the
unit members' instructional day and the effects, if any, of
such change on non-class preparation time.
2. Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
3. Upon request, meet and negotiate with the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
75
3. Interfering with employees in the exercise of
rights guaranteed by the Educational Employment Relations Act,
including the right to be represented by their chosen
representative.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
1 . Upon request, meet with and negotiate with the
exclusive representative regarding changing the length of the
unit members' instructional day and the effects, if any, of
such change on non-class preparation time.
2 . Restore the District's past practice of
compensating bargaining unit members at hourly rates of pay for
summer work and compensate any affected employees for monetary
losses suffered as a result of the unilateral change in the
summer of 1983. All payments shall include 10 percent per
annum interest. Upon request, negotiate in good faith with the
Association on the matter. However, the status quo ante shall
not be restored if, subsequent to the District's actions the
parties have, on their own, reached agreement or negotiated
through completion of the impasse procedure concerning the rate
of summer pay.
3 . Upon request, meet and negotiate with the
Association concerning the negotiable aspects of the learning
specialists program, including the amount of annual stipend to
be paid.
75
4. Upon request of the Association, reinstate the
work year of the bilingual facilitator and other terms and
conditions of employment to that of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment.
5. Grant to each teacher who worked extra time as a
result of the reduction in classroom instructional aide time
during the fall 1983 or the unilateral increase in the length
of the instructional day in November 1983, the amount of time
off which corresponds to the number of extra hours worked as a
result of the changes described above. Should the parties fail
to reach a satisfactory accord as to the manner in which such
time off will be granted or if an individual is no longer in
the District's employ, then such employees will be granted
monetary compensation commensurate with the additional hours
worked. However, if subsequent to the District's unlawful
actions, the parties have, on their own initiative, reached
agreement or negotiated through the completion of the statutory
impasse procedure concerning the length of the instructional
day, the workday and the effects of changes in either on
non-class preparation time, then liability for compensatory
time off or back pay shall terminate at that point. Any
monetary payment shall include interest at the rate of ten (10)
percent per annum.
worked.
76
4. Upon request of the Association, reinstate the
work year of the bilingual facilitator and other terms and
conditions of employment to that of unit members at the time of
unlawful changes in either 1983 or 1984; and negotiate in good
faith with the Association before changing any aspect of the
employee's work year or other terms and conditions of
employment .
5 . Grant to each teacher who worked extra time as a
result of the reduction in classroom instructional aide time
during the fall 1983 or the unilateral increase in the length
of the instructional day in November 1983, the amount of time
off which corresponds to the number of extra hours worked as a
result of the changes described above. Should the parties fail
to reach a satisfactory accord as to the manner in which such
time off will be granted or if an individual is no longer in
the District's employ, then such employees will be granted
monetary compensation commensurate with the additional hours
However, if subsequent to the District's unlawful
actions, the parties have, on their own initiative, reached
agreement or negotiated through the completion of the statutory
impasse procedure concerning the length of the instructional
day, the workday and the effects of changes in either on
non-class preparation time, then liability for compensatory
time off or back pay shall terminate at that point. Any
monetary payment shall include interest at the rate of ten (10)
percent per annum.
76
6. Within ten (10) workdays of service of a final
decision in this matter, post at all school sites and all other
work locations where notices to certificated employees are
customarily placed, copies of the notice attached hereto as an
appendix. The notice must be signed by an authorized agent of
the District indicating that the District will comply with the
terms of this order. such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to insure that this notice is not reduced in
size, altered, defaced or covered by any material
7. Upon issuance of a final decision; make written
notification of the actions taken to comply with the Order to
the Los Angeles Regional Director of the Public Employment
Relations Board in accordance with his instructions.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on August 13, 1985, unless a party files a timely
statement of exceptions. In accordance with the rules, the
statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code, title 8,
part III, section 32300. such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board itself at the headquarters office in
Sacramento before the close of business (5:00 p.m.)
77
6. Within ten (10) workdays of service of a final
decision in this matter, post at all school sites and all other
work locations where notices to certificated employees are
customarily placed, copies of the notice attached hereto as an
appendix. The notice must be signed by an authorized agent of
the District indicating that the District will comply with the
terms of this order. Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to insure that this notice is not reduced in
size, altered, defaced or covered by any material
7 . Upon issuance of a final decision, make written
notification of the actions taken to comply with the Order to
the Los Angeles Regional Director of the Public Employment
Relations Board in accordance with his instructions.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on August 13, 1985, unless a party files a timely
statement of exceptions. In accordance with the rules, the
statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code, title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board itself at the headquarters office in
Sacramento before the close of business (5:00 p.m. )
77
on August 13, 1985, or sent by telegraph or certified United
States mail, postmarked not later than the last day filing
in order to be timely filed. see California Administrative
Code, title 8, part III, section 32135. Any statement of
exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. Proof of
service shall be filed with the Board itself. see California
Administrative Code, title 8, part III, section 32300 and 32305.
Dated: July 24, 1985
78
Ji:~~
W. JfuiHOMAS
Administrative Law Judge
on August 13, 1985, or sent by telegraph or certified United
States mail, postmarked not later than the last day for filing
in order to be timely filed. See California Administrative
Code, title 8, part III, section 32135. Any statement of
exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. Proof of
service shall be filed with the Board itself. See California
Administrative Code, title 8, part III, section 32300 and 32305.
Dated: July 24, 1985 W. JEAN THOMAS
Administrative Law Judge
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