Eureka City School District (PERB 0702E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EUREKA 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
EUREKA CITY 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-1104
PERB Decision No. 	702
October 19, 	1938
Appearances: 	Ramon E. 	Romero, 	Attorney, 	for the Eureka Teachers
Association, 	CTA/NEA; 	Harland 	& 	Gromala by Richard A. 	Smith 	for
the 	Eureka 	City 	School 	District.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before 	the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	Eureka 	City 	School 	District 	(District) 	to 	the 	attached
proposed 	decision 	of 	a 	PERB 	administrative 	law 	judge 	(ALJ)
finding that the District violated sections 3543.5(a), 	(b), 	and
(c) 	of 	the 	Educational 	Employment 	Relations Act 	(EERA or
A c t ) 1 by 	failing 	to meet 	and negotiate with 	the 	Eureka
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	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
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Teachers Association, 	CTA/NEA 	(Association or ETA) 	when 	it
unilaterally 	established 	a 	policy which 	changed 	the 	contractual
requirements 	for 	determining 	when 	certain 	substitute 	teachers
would be 	classified as 	"temporary teachers."22
The 	District 	also excepts 	to 	the ALJ's 	failure 	to dismiss
and 	defer 	this 	matter 	to 	the 	grievance 	machinery of 	the
collective bargaining 	agreement 	and 	excepts 	to 	various 	factual
and 	legal 	conclusions 	made by 	the ALJ 	on 	the 	merits 	of 	the
dispute.
We 	reverse 	the ALJ's 	proposed 	decision 	and 	specifically
hold 	that 	this 	Board 	is 	without 	jurisdiction 	to 	review this
matter 	pursuant 	to 	the 	express 	mandatory proscription 	of
section 	3541.5(a)3 since 	this 	matter 	is 	expressly covered by
the parties' 	contract.
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.
2Temporary teachers, 	unlike day-to-day substitutes, 	are
bargaining unit members 	and, 	thus, 	entitled 	to certain paid
leaves 	and benefits 	specified 	in 	the 	collective bargaining
agreement. 	The parties' 	dispute relates 	to whether the
District 	unilaterally 	changed 	the 	verification 	standard
required 	to determine when 	it 	is 	"known with 	absolute
certainty" 	that 	a permanent 	teacher's 	absence will 	require 	the
hiring 	of 	a 	temporary 	teacher 	as 	provided by 	the 	contract.
3section 3541.5 provides, 	in pertinent part, 	as 	follows:
2
2
2

DISCUSSION
We 	find 	the ALJ's 	findings 	of 	fact 	regarding 	the
jurisdictional 	question 	of 	whether 	this 	matter 	should have been
dismissed 	and 	deferred 	to 	the 	grievance-arbitration 	procedure
of 	the parties' 	contract 	undisputed 	and 	free 	of prejudicial
error and adopt them as our own.44
Our 	decision 	is 	best 	understood by 	initially 	reviewing 	the
grievance 	and unfair 	practice history 	of 	the 	instant 	dispute.
A. 	Grievance 	And 	Unfair 	Practice 	History
It 	is 	undisputed 	that 	the 	instant 	matter 	is 	covered by 	the
contract 	and 	the parties' 	contract 	contains 	a grievance
procedure 	that 	culminates 	in binding 	arbitration.
In March 	1986, 	the Association 	filed 	a 	grievance 	over 	the
District's 	replacement 	of 	two permanent 	teachers 	with
substitute 	teachers 	rather 	than 	temporary 	teachers. 	The
(a) 	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.
(Emphasis 	added.)
4Because 	of 	our 	decision 	today dismissing 	the 	instant
matter 	for 	lack 	of 	jurisdiction, 	we 	find 	it 	unnecessary to
consider 	any of 	the 	ALJ's 	factual 	findings 	related 	to 	the
underlying merits 	of 	the dispute.
3
4
3

grievance 	was 	denied by 	the 	District 	at 	the 	first 	and 	second
levels 	on the basis 	that, 	as alleged 	in the grievance, 	no
contract 	violation 	existed 	and 	that 	the 	grievance 	was 	untimely
filed. 	The Association 	claimed 	that 	the 	use 	of 	substitutes
rather 	than 	temporary 	teachers 	demonstrated 	a 	"continuing
contract 	violation." 	This 	assertion was 	rejected by 	the
District.
In April 	1986, 	the Association appealed 	to level 	III 	of 	the
grievance procedure by requesting arbitration. 	However, 	on
September 	26, 	1986, 	three days prior 	to the 	scheduled
arbitration hearing, 	ETA unilaterally withdrew, 	"without
prejudice," 	its 	grievance. 	ETA's withdrawal was due 	to 	(1) 	the
District's 	refusal 	to waive 	its 	timeliness 	defense 	and 	(2) 	a
complaint 	that 	had been 	issued by PERB.
ETA 	initially 	filed 	an 	unfair 	practice 	charge 	with 	PERB 	on
June 	9, 	1986, 	alleging that 	the 	District 	violated sections
3543.5(a), 	(b), 	and 	(c) by unlawfully transferring work out of
the bargaining 	unit 	when 	it 	assigned 	day-to-day 	substitutes
rather 	than 	temporary 	teachers 	to perform 	the duties 	of 	two
permanent 	teachers 	who were 	absent 	due 	to 	long-term 	illnesses.
After ETA amended 	its charge on August 	7 	and 28, 	1986, 	a
complaint was 	issued 	on August 	29, 	1986. 	The complaint alleged
that 	the 	District's 	conduct 	constituted 	a 	unilateral 	change 	in
policy 	(as 	embodied 	in 	the 	contract) 	without providing ETA
notice 	and 	an opportunity to negotiate, 	in violation of 	section
3543.5(c) 	and, 	derivatively, 	sections 	(a) 	and 	(b) 	of EERA.
4
4

The District, 	on September 4, 	1986, 	answered the complaint
and on October 	3, 	1986, 	amended 	its 	answer. 	In 	its 	initial
answer, 	the 	District made 	certain admissions but 	denied 	it
changed 	the 	contractual 	"policy" 	regarding 	temporary 	teachers.
It 	also 	raised 	certain 	affirmative 	defenses 	including 	the
Untimeliness 	of 	the 	charge, 	deferral 	to 	the grievance procedure
of 	the contract, Government 	Code section 3541.5(b), 	and
charging party's 	"duty of 	fair 	representation" 	and
"irreconcilable 	conflict 	of 	interest" 	with 	respect 	to 	the
permanent 	teachers 	affected. 	In 	its 	amended answer, 	the
District 	again 	urged deferral, 	emphasizing 	that 	the 	procedural
issue 	of 	timeliness 	as well 	as 	the merits 	of 	the 	dispute were
proper 	for 	consideration by 	the 	arbitrator, 	and 	that 	nothing 	in
section 	3541.5(a) 	required 	the 	District 	to waive 	the procedural
defense 	of 	timeliness. 	The 	District 	further 	argued 	that 	ETA's
voluntary 	abandonment 	of 	the 	grievance 	constituted 	a 	failure 	to
exhaust 	the 	grievance 	machinery.
For 	the 	reasons 	which 	follow, 	we 	find 	that 	the 	employer's
waiver 	of 	procedural 	defenses 	is 	not 	required by 	section
3541.5(a) 	and, 	accordingly, 	this matter must be dismissed and
deferred 	to 	the 	contractual 	grievance-arbitration process.
B. 	PERB 	Has 	No Jurisdiction 	Over 	This 	Matter
The ALJ's 	rationale 	for 	determining 	that 	the 	District 	was
required 	to waive 	its 	procedural 	defense 	of 	Untimeliness 	as 	a
prerequisite 	to 	deferral 	was based 	primarily upon 	the 	Board's
erroneous 	interpretation of 	section 	3541.5(a) 	in Dry 	Creek
Joint 	Elementary School 	District 	(1980) 	PERB Order No. 	Ad-81a.
5

In Lake 	Elsinore 	School 	District 	(1987) 	PERB Decision No.
646, 	this 	Board expressly overruled Dry 	Creek 	to 	the 	extent 	it
concluded 	that 	section 	3541.5(a) 	"essentially 	codified" 	any
aspect of 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	pre-arbitral
deferral 	policy 	articulated 	in 	Collyer 	Insulated Wire 	(1971)
192 NLRB 837 	[77 LRRM 1931].5
The 	Court 	of 	Appeal 	affirmed PERB's 	decision 	in Lake
Elsinore, 	holding 	that PERB's 	interpretation 	of 	Government 	Code
section 	3541.5(a) 	was 	reasonable. 	(Elsinore 	Valley Education
Association, 	CTA/NEA v. 	PERB 	(Lake 	Elsinore 	School 	District)
(July 28, 	1988) 	Cal.App.4th, 	E5078; 	[nonpubl. opn.].)
5In 	Collyer 	Insulated Wire, 	supra, 	the NLRB established
pre-arbitral 	deferral 	standards 	as 	follows:
1. 	The dispute must 	arise 	within a 	stable
collective 	bargaining 	relationship 	where
there 	is 	no 	enmity by 	the 	respondent 	towards
the 	charging party;
2. 	The 	respondent 	must be 	ready and willing
to proceed 	to arbitration 	and 	must 	waive
contract-based procedural 	defenses; 	and
3. 	The 	contract 	and 	its 	meaning must 	lie 	at
the center 	of the dispute. 	(Id. 	at p. 	842.)
-
The 	dissent 	attempts 	to distinguish 	the 	Lake 	Elsinore
decision 	on 	the 	theory 	that 	the 	Collyer 	waiver 	of procedural
defenses 	requirement was 	not before 	this 	Board 	in Lake 	Elsinore,
and 	seeks 	to have 	us 	read 	the 	Collyer 	requirement 	into 	EERA
section 3541.5. 	But 	in Lake 	Elsinore, 	this 	Board discussed 	the
Collyer 	criteria 	and 	section 	3541.5, 	and held 	the 	Collyer
criteria were 	not 	applicable, 	including 	the 	requirement of
waiver of procedural defenses. 	(Lake Elsinore, 	supra, 	pp.
28-32.) 	The 	Board 	specifically overruled 	prior 	Board 	decisions
which 	had 	applied 	the 	Collyer 	criteria 	in 	connection with
section 3541.5.
66

In Lake Elsinore, 	this 	Board held:
While 	the NLRB 	standards 	set 	forth 	in
Collyer 	Insulated 	Wire 	apply 	in 	the 	private
sector, 	such NLRB guidelines 	are 	not
controlling 	or 	even 	instructive 	in
administering EERA. 	Unlike 	the NLRA, 	under
EERA, 	where 	a contract provides 	for binding
grievance arbitration, 	it 	[the grievance
process] 	is elevated to a basic, 	fundamental
and 	required 	component 	of 	the 	collective
bargaining 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 progeny 	[fn. 	omitted] 	to the
extent 	that 	they would 	condition 	the
proscription 	of 	section 	3541.5 	on 	an
application 	of 	the 	Collyer 	prearbitration
deferral 	factors. 	(Ibid., 	pp. 	31-32.)
(Emphasis 	added.)
1 1
Thus, 	contrary to the ALJ's conclusion, 	PERB has no
legislative 	authority 	to 	exercise 	its 	jurisdiction 	to 	issue 	a
complaint 	until 	or 	unless 	the 	grievance process 	is 	exhausted 	or
futility 	is 	demonstrated, 	irrespective of 	respondent's
willingness 	to waive procedural 	defenses. 	In 	this 	case,
futility was 	not 	raised by either party, 	and, 	as 	stated
previously, 	the Association 	unilaterally withdrew 	its 	grievance
and 	thereby negated 	the 	"availability" 	of 	a 	resolution of 	the
merits 	of 	the dispute.6
6Contrary 	to 	the 	assertion made by 	the 	dissent 	that 	this
Board must 	exercise 	its 	jurisdiction 	in 	cases 	were 	the 	arbitral
7

There being 	no evidence 	that 	the 	grievance 	process 	in 	this
case 	has 	been 	exhausted 	either by 	arbitration 	award 	or
settlement, 	the 	statutory proscription 	imposed 	upon 	PERB by
section 	3541.5(a) 	requires 	dismissal 	of 	the 	instant 	unfair
practice 	charge.
ORDER
Based upon 	the 	entire 	record 	in this 	case, 	the unfair
practice 	charge 	in Case No. 	SF-CE-1104 	is hereby DISMISSED.
Members 	Porter 	and 	Shank 	joined 	in 	this 	Decision.
Member 	Craib's 	dissent begins 	on page 	9.
forum 	may no 	longer be 	available 	due 	to 	the 	charging party's
inaction, 	the 	Court 	of Appeal held that:
. 	. 	. 	if the arbitral 	forum is no longer
available, 	no settlement or arbitration
award 	could be 	reached. 	Under 	such
circumstance 	it 	would be pointless 	to 	invoke
the 	Board's 	"discretionary 	jurisdiction,"
for 	there 	would be 	no 	such 	jurisdiction 	to
preserve.
8

Member 	Craib, 	dissenting: 	This 	case 	squarely presents 	the
issue 	of 	whether 	EERA 	section 3541.5(a)(2)1 requires 	deferral
to 	arbitration 	even where 	the 	respondent has 	refused 	to waive
procedural 	defenses. 	In 	Lake 	Elsinore 	School 	District 	(1987)
PERB Decision No. 	646, 	the Board held that, 	due to the
mandatory language contained 	in section 	3541.5(a)(2), 	this
provision 	is 	jurisdictional 	in nature.• 	Thus, 	where 	the
requirements 	and 	conditions 	of 	section 3541.5(a)(2) 	are met,
1Section 	3541.5(a)(2) 	states, 	in pertinent part:
(a) Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
. 	. 	. 	(2) 	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
shall dismiss the charge. 	. 	. 	.
2The 	Board's 	decision 	in 	Lake 	Elsinore 	was 	upheld 	in 	an
unpublished 	opinion by 	the 	Fourth 	District 	Court 	of 	Appeal.
The 	California 	Supreme 	Court 	denied 	the 	Board's 	request 	for
publication on October 12, 	1988. 	As 	the appellate decision 	is
nonprecedential, 	the majority's 	quotation of 	that 	decision
(majority opinion fn. 	6, 	pp. 	7, 	8) 	is of no force or effect.
99

the 	Board 	must 	defer 	to binding arbitration 	and 	may not 	assert
initial 	jurisdiction. 	The 	issue 	of 	waiving procedural 	defenses
was 	not 	raised 	in 	the 	Lake 	Elsinore 	case 	and 	the 	Board did 	not
address 	it. 	The majority's 	assertion 	to 	the 	contrary 	is 	simply
in 	error. 	The 	Board merely dealt 	with whether 	the 	deferral
defense 	itself 	could be 	waived. 	As 	I believe 	the 	language 	of
section 	3541.5(a)(2) 	is 	most 	reasonably read 	to 	require 	the
waiver 	of procedural 	defenses, 	I must 	dissent 	from the
majority's holding 	in 	the 	instant 	case.
First, 	it 	is 	instructive 	to keep 	in mind some basic
precepts 	of 	statutory construction. 	In 	analyzing 	the usage of
certain words, 	the 	objectives 	sought 	to be 	achieved by the
statute 	is of prime consideration. 	The People ex. 	rel. 	San
Francisco 	Bay 	Conservation 	and 	Development 	Commission 	v. 	Town
of 	Emeryville 	(1968) 	69 	Cal.2d 533; 	Redevelopment Agency v.
Malaki 	(1963) 	216 Cal.App.2d 480. 	Further, 	the provisions 	of a
statute 	should be 	construed 	together, 	significance being 	given
to every word, 	phrase, 	sentence, 	and part of an act 	in
pursuance of 	the 	legislative purpose. 	Turner 	v. 	Board of
Trustees, 	Calexico Unified School 	District 	(1976) 	16 Cal.3d
818; 	Moyer 	v. 	Workmen's 	Compensation Appeals Board 	(1973) 	10
Cal.3d 222, 	230. 	Thus, 	it 	is necessary to examine the purpose
to be 	served by 	the 	deferral 	provisions 	of 	section 	3541.5(a)(2)
and 	consider 	each 	word or 	phrase 	in 	light 	of 	that 	purpose.
Unfortunately, 	the majority has 	chosen 	to 	ignore 	important
portions of section 3541.5(a)(2).
10

The 	concept 	of 	deferral 	was 	not 	invented with 	the passage
of 	EERA, 	but had been 	applied 	in both 	the public 	and private
sectors years 	earlier. 	Any deferral 	requirement, 	whether
mandatory 	or 	discretionary, 	constitutes 	an exception 	to 	the
normal 	statutory enforcement 	scheme. 	It 	is based on 	the 	theory
that 	the 	parties' 	contractual 	grievance 	machinery 	should be
allowed 	to 	operate 	where 	resolution 	of 	the 	contractual 	dispute
will 	also 	effectively 	resolve 	inextricably 	intertwined
statutory 	issues. 	Thus, 	the National Labor 	Relations 	Board
(NLRB) 	requires, 	inter alia, 	that 	"the contract and 	its meaning
must 	lie 	at 	the 	center of 	the 	dispute" 	(Collyer 	Insulated Wire
(1971) 	192 NLRB 837 	[77 LRRM 1931]). 	Similarly, 	EERA section
3541.5(a)(2) 	requires 	that 	the contract 	"cover(s) 	the matter at
issue."
Deferral 	is 	thus 	a principle 	whereby arbitration 	is 	viewed
as 	an 	alternative 	forum 	for 	the 	resolution 	of 	certain unfair
practice 	issues. 	It 	represents 	not 	an abdication of authority,
but 	simply a 	limitation upon 	initial 	jurisdiction. 	It 	is
difficult 	to 	see how 	the 	contractual 	grievance 	machinery 	can
protect 	statutory 	rights 	by 	providing 	an 	alternative 	forum 	for
the 	enforcement 	of 	such 	rights 	where 	resolution 	on 	the merits
is 	not assured. 	Indeed, 	a careful 	review of 	the 	language of
section 	3541.5(a)(2) 	reveals 	that 	the 	limitation upon 	the
Board's 	jurisdiction 	is 	conditioned 	upon 	the 	availability of
resolution 	of 	the 	merits 	of 	the 	dispute by way of 	settlement 	or
binding 	arbitration.
11

The key passage 	in section 	3541.5(a)(2) 	provides 	that 	the
Board 	shall 	not 	issue 	a 	complaint 	until 	the parties'
contractual 	grievance machinery, 	"if 	it 	exists 	and covers 	the
matter 	at 	issue, 	has been exhausted, 	either by settlement or
binding 	arbitration." 	This 	passage 	contains 	conditional
language 	which 	makes 	deferral 	dependent 	upon 	an 	eventual
determination on the merits 	of 	the 	dispute. 	The 	first portion
of 	the 	passage 	requires 	that 	the 	grievance 	machinery 	"exist"
and 	"cover 	the matter 	at 	issue." 	This 	clearly 	states 	that 	the
grievance 	machinery 	must be 	available 	to 	resolve 	the
intertwined 	statutory 	issue.
The 	next 	phrase 	also 	logically 	assumes 	resolution 	on 	the
merits, 	for 	it 	conditions 	the Board's 	jurisdiction on
exhaustion 	of 	the 	grievance 	machinery 	"by 	settlement 	or binding
arbitration." 	While 	"settlement" 	indisputably refers 	to 	a
resolution 	on 	the merits, 	the 	term 	"binding arbitration"
carries 	some 	ambiguity, 	as 	an arbitrator 	could 	rule 	solely on a
procedural 	matter having no statutory 	analog. 	However, 	the
portion of 	the 	provision which 	provides 	for 	Board 	review 	of
"such 	settlement 	or 	arbitration 	award" 	(for 	the purposes 	of
determining whether 	it 	is 	repugnant 	to 	the EERA) 	resolves 	the
ambiguity.
The 	provision 	for 	Board 	review 	of 	an 	arbitration 	award
makes 	little 	sense unless 	it 	refers 	to a 	determination on 	the
merits. 	It 	is 	difficult 	to conceive how 	the 	Board 	could decide
whether 	a 	procedural 	ruling 	concerning 	the 	grievance 	procedure
was 	repugnant 	to 	the 	statute. 	Such matters 	simply do not
12

implicate 	any statutory 	issues. 	On 	the other hand, 	a
determination 	on 	the 	merits 	of 	an 	alleged 	contract breach 	would
implicate 	statutory 	issues 	(i.e., 	whether 	the 	alleged breach
constituted a failure 	to bargain in good 	faith). 	Thus, 	a
scenario 	in which 	the 	grievance machinery 	ends 	with 	a 	ruling 	on
a 	procedural 	issue 	simply 	does 	not 	mesh 	with 	the 	repugnancy
review scheme set out 	in section 3541.5(a)(2).
In 	sum, 	section 	3541.5(a)(2) 	requires 	this 	Board 	to defer
to binding 	arbitration when 	the parties' 	contractually-based
procedure 	will 	serve 	as 	an 	alternative 	forum 	in which 	statutory
rights 	may be 	effectively 	enforced. 	It 	does 	not 	require 	the
Board 	to defer 	to 	a 	determination 	which 	fails 	to 	address 	the
statutory 	issues 	involved. 	The most 	efficient 	and 	logical 	way
to 	implement 	this 	reading 	of 	the 	statute 	is 	to 	require 	the
waiver of 	procedural 	defenses. 	This 	ensures 	that 	the 	statutory
issues 	will 	be 	addressed 	and 	gives 	effect 	to 	the provision 	for
subsequent 	review by 	the 	Board by providing 	that 	there 	will 	be
something 	to 	review.
I 	must 	emphasize 	that 	requiring 	the 	waiver 	of procedural
defenses 	does 	not 	allow a party to 	evade 	the 	grievance
machinery 	in 	favor 	of 	adjudication by PERB. 	The 	respondent 	may
always 	force 	the 	charging party 	to proceed 	to 	arbitration by
waiving procedural 	defenses. 	Alternatively, 	the 	respondent may
stand on 	its 	procedural defenses, 	in which case 	the matter
could 	come before 	PERB. 	Admittedly, 	this 	approach does have 	an
effect 	upon 	contractual 	timelines 	for 	the 	filing of
grievances. 	However, 	any 	interference with 	contractual
13

timelines 	must be balanced 	against 	the 	public 	interest 	in 	the
enforcement 	of 	rights 	granted by the 	EERA. 	In 	light 	of 	the
purpose 	of 	deferral 	as outlined above, 	in conjunction with 	the
fact 	that 	this 	Board's 	authority 	is 	limited 	to 	enforcing 	the
statutes 	it 	is 	charged with 	administering,3 the balance must
favor 	the 	furtherance of 	statutory rights. 	When viewed 	in 	that
context, 	the waiver 	of procedural 	defenses 	is 	not 	an onerous
requirement.4
In 	this 	case, 	the 	District has 	refused to waive procedural
defenses. 	Consequently, 	it was proper 	for 	the matter 	to be
heard 	initially by 	this 	agency 	and 	the 	ALJ's 	proposed 	decision
should be 	reviewed 	in 	the normal 	manner. 	As 	the majority has
not 	considered 	the merits 	of 	the proposed decision, 	it 	is
unnecessary 	for me 	to do 	so 	and 	I 	will 	reserve 	judgment 	on 	that
issue at 	this 	time.
3In 	fact, 	the Board has 	no authority 	to enforce 	contracts
between 	the parties. 	EERA section 3541.5(b) 	states:
The board 	shall 	not have 	authority 	to
enforce agreements between 	the parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
4The 	notion 	that 	deferral 	properly 	requires 	the 	waiver 	of
procedural 	defenses 	is not 	a novel 	one. 	The NLRB has 	long
required 	such 	a waiver 	as part 	of 	its 	deferral 	policy. 	See
Collyer 	Insulated Wire, 	supra, 	192 NLRB 83 7. 	While NLRB
precedent 	is 	not 	controlling, 	the 	EERA was 	not 	created 	in a
vacuum, 	and 	established principles 	of 	labor 	law as 	they have
arisen 	in 	the 	private 	sector 	are 	instructive 	in 	interpreting
the 	EERA. 	San 	Diego Teachers Association 	v. 	Superior 	Court
(1979) 	24 Cal.3d 1; 	McPherson v. 	Public Employment Relations
Board 	(1987) 	189 	Cal.App.3d 293.
14

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
EUREKA TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
EUREKA CITY 	SCHOOL 	DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-1104
PROPOSED 	DECISION
( 	5/27/87)
)
)
)
)
)
)
Appearances: 	Ramon E. 	Romero 	for 	the Eureka Teachers
Association, 	CTA/NEA; 	Harland 	& Gromala by Richard A. 	Smith for
the Eureka 	City School District.
Before: 	Barry Winograd, 	Administrative Law Judge
PROCEDURAL 	HISTORY
The 	initial 	charge 	in this 	proceeding was 	filed
June 9, 	1986, 	by the Eureka Teachers Association, 	CTA/NEA
(Association) 	against 	the Eureka City School District
(District). 	Subsequently, 	two amended charges were filed, 	and,
by separate 	letter, 	certain allegations were withdrawn. 	In
essence, 	the Association 	alleged 	that 	the District unilaterally
established 	a 	new policy 	regarding 	the use of 	temporary
teachers. 	The District's 	adoption of certain criteria, 	in the
Association's view, 	violated sections 3543.5(a), 	(b) 	and (c) of
the Educational 	Employment Relations Act 	(EERA
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
______ )

or 	Act).1
The 	PERB General 	Counsel 	issued 	a 	complaint 	on
August 29, 	1986. 	The complaint 	stated that 	in January, 	1986
the District, 	without notice or negotiations, 	had changed a
contractual 	policy 	that 	temporary 	teachers 	be 	hired 	rather 	than
substitutes 	to 	fill 	second 	semester 	vacancies 	created 	by 	the
absence 	of 	permanent 	teachers. 	Violations 	of 	sections
3543.5(a), 	(b) and (c) were alleged.
Respondent's 	answer, 	filed September 	8, 	1986, 	and amended
on October 3, 	1986, 	admitted certain facts, 	denied the
allegations 	of unlawful 	conduct, 	and 	advanced 	affirmative
defenses. 	One defense 	raised by the District was 	that 	the
dispute was 	subject 	to 	binding 	arbitration 	and 	should 	be
dismissed pursuant 	to 	section 3541.5(a) 	of 	the Act. 	This
objection 	previously had 	been 	rejected 	by 	the 	Board's
1 The 	EERA 	is 	codified 	at Government 	Code 	section 3540,
et 	seq., 	and 	is 	administered by the 	Public Employment 	Relations
Board 	(hereafter PERB or Board). 	Unless 	otherwise 	indicated,
all 	statutory references 	in this decision 	are 	to 	the Government
Code. 	Section 3543.5 	provides 	in 	relevant 	part 	that 	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.
N2

Regional Attorney in a 	letter dated August 29, 	1986. 	He
advised 	the parties 	that 	deferral was 	inappropriate because 	the
District was 	unwilling to waive procedural defenses 	in
arbitration, 	particularly a claim of grievance Untimeliness.
The District's 	renewed deferral objection, 	as well 	as 	other
admissions, 	denials and defenses, 	will be considered below
where 	relevant.
A settlement conference on October 29, 	1986, 	failed 	to
resolve the dispute. 	The 	formal hearing was conducted 	in
Eureka, 	California on January 14 	and 15, 	1987. 	Post-hearing
briefs were 	filed by the parties 	and 	the matter was 	submitted
on April 27, 1987.
FINDINGS OF FACT
A. 	Relevant 	Contract Terms
At 	the time this dispute arose, 	the parties were 	subject 	to
a bargaining agreement effective through June 1988.2
Article 	18 	of 	the contract 	recognizes 	the Association 	as 	the
exclusive 	representative of District 	teachers. 	The parties
22See	see 	Charging Party Exhibit No. 	5. 	Hereafter,
Association 	and 	District 	exhibits 	will 	be designated
"C. 	P. 	Exh." and "Resp. Exh.", 	respectively. 	References also
will 	be made 	to 	the 	transcript 	("Tr."), 	followed by the 	cited
volume 	and page. 	A separate 	transcript was 	prepared 	for 	one
witness, 	Richard Stroud, 	whose testimony necessitated a court
reporter. 	(See 	"Tr. 	(RS)," 	infra.)
w	3

have 	agreed 	in Article 	18 	that day-to-day 	substitutes 	are not
part 	of 	the unit. 	Under certain circumstances, 	however,
teachers 	serving 	as 	long-term replacements 	for 	absent 	employees
will be considered bargaining unit members, 	to 	be classified 	as
temporary 	teachers. 	The present 	controversy distinguishing
those 	circumstances 	turns 	upon 	the 	application of 	the 	following
contract provisions within Article 	18:
4. 	Temporary teachers 	are 	a part of 	the ETA
unit. 	Temporary teachers 	are 	teachers
serving 	under 	a 	contract which 	identifies
the employment 	as 	being 	temporary 	in nature
and who 	are 	temporarily taking 	the 	place 	of
a 	probationary or 	tenured 	teacher who 	is 	on
leave. 	Temporary employees 	shall be paid a
salary based upon the 	same 	salary 	schedule
as 	probationary and permanent 	teachers:
A. 	The District will 	fill 	vacancies 	caused
by the 	absence 	from service 	of 	probationary
or 	permanent 	teachers 	with temporary
employees 	where 	the 	absent 	probationary or
permanent teacher is: 	(1) 	known with
absolute certainty not 	to 	return to 	service
for the entire school year; 	or 	(2) 	is known
with 	absolute 	certainty not 	to 	return 	for
either 	the 	entire 	first 	semester 	or 	the
entire second semester of 	a 	school year; 	or
(3) 	where the absent 	teacher 	leaves 	active
service during 	the 	first 	semester 	of 	any
given school year with at 	least 	50 	percent
of 	the teacher duty days 	in the 	first
semester 	remaining unserved, 	and 	it 	is 	known
with 	absolute 	certainty 	that 	the 	absent
teach will 	not 	return during 	the balance of
the 	school year.3
3 The 	next 	section of 	the contract 	establishes
five-day posting 	and 	selection periods 	to 	fill
regular 	teacher 	absences with temporary hires. 	In
the 	interim, 	a daily substitute can be used.
A4

The key language 	at 	issue 	in Article 	18(4)(A) 	is 	the phrase
"known with 	absolute 	certainty."
Other 	provisions 	of 	the contract 	also 	are 	relevant 	to 	this
proceeding, 	including 	several 	leave-of-absence 	sections. 	The
contract 	in Article 	13 	provides 	for paid sick leave 	and, 	after
sick 	leave expires, 	extended 	illness 	leave. 	Payment during 	an
extended 	illness 	leave of up to 	five months 	is 	based on 	a
differential 	between 	the 	regular 	teacher's 	salary 	and 	that 	of
the 	replacement teacher. 	In addition, 	the contract permits
unpaid health 	leaves.
Employees 	absent 	on 	sick 	leave 	for 	five days 	or more may be
asked 	for 	"verification of 	illness." 	Employees 	seeking 	unpaid
health 	leave 	status 	may need 	a 	"substantiating 	statement 	from a
licensed physician 	. 	. 	. 	." 	Neither the sick or health leave
provisions 	establish cut-off 	dates 	for 	notice of 	the 	illness 	as
a condition either 	for the 	leave 	request 	or 	for hiring 	a
temporary teacher 	as 	the 	replacement.
Teachers 	on paid 	leave have the 	right 	to 	"[R]eturn to 	the
same, 	a similar, or mutually agreed upon position 	. 	. 	. 	."
Those on unpaid 	leave have 	the 	same 	return 	rights 	for 	a 	one
year 	period.
The 	contract 	also 	establishes 	a 	paid maternity 	leave 	for
pregnancy 	and 	related health conditions. 	The 	length of 	such
leaves 	is 	to 	be 	fixed by the employee 	and her physician. 	In
addition, 	extended unpaid maternity 	leaves 	are permitted
without 	reference to 	a physician's 	opinion.
5

Another 	aspect of 	the contract 	that 	is 	relevant 	is 	the
grievance 	and 	arbitration procedure 	set 	forth 	in Article 	12.
The 	three-step 	process 	may be 	initiated 	by 	an 	employee 	or 	the
Association within 20 days 	of 	the grievable event. 	The
grievance procedure ends with final, 	binding 	arbitration. 	The
contract 	also 	states:
The 	arbitrator's 	decision will 	be 	limited 	to
only 	those 	alleged violations 	and 	facts
raised at Levels 	I 	and 	II 	of 	this 	grievance
procedure.
B. 	The Stroud Case
During 	the 	fall 	1985 	semester, 	Richard 	Stroud 	became
increasingly ill with throat 	and voice problems. 	He began
daily 	sick 	leave, 	utilizing 	accrued 	time. 	Soon 	after the
New Year, 	Stroud was 	tentatively diagnosed 	as 	having cancer 	of
the 	larynx. 	While 	further 	tests were undertaken, 	Stroud 	told
his school principal, 	Larry Olson, 	about the developments.
Stroud 	and Olson had 	been good 	friends 	for more 	than 	25 	years,
and 	they were 	in 	regular 	contact 	about 	Stroud's 	situation 	in
January. 	(Tr. 	(RS) 	5, 	8.) 	On January 21, 	following full
testing, 	Stroud's cancer diagnosis was confirmed, 	and surgical
and 	radiation 	treatments were 	under 	consideration.
Once diagnosed, 	Stroud 	informed Olson 	that 	Stroud would 	be
out 	for the balance of the school year. 	(Tr. 	(RS) 	9.) 	This
conversation took place on January 21, 	a week before 	the 	second
semester 	started. 	Olson 	asked Stroud 	to 	get 	a 	doctor's
verification of 	his 	illness 	and his 	inability to 	keep working
6

during 	the 	next 	semester. 	Stroud 	immediately contacted 	his
doctor, 	was 	told such verification would be forthcoming, 	and
reported that 	fact to Olson. 	(Tr. 	(RS) 	10-11.) 	It 	also
appears 	that Olson conveyed news 	of 	Stroud's 	condition to Dodie
Scott, 	the District's personnel coordinator. 	(Tr. 	2:64.)
Stroud 	testified that 	as 	of 	January 21 	he was 	certain,
based on medical communications, 	that he would be out of 	school
the 	second 	semester, 	and 	that Olson 	also understood 	Stroud's
long-term status. 	(Tr. 	(RS) 	9-10, 	15.) 	Stroud's testimony on
this point was not contradicted as Olson did not 	testify.4
Although Stroud on January 21 	requested 	a verification
letter 	from his doctor, 	the 	letter, 	dated January 22, 	did not
arrive 	at 	the District's headquarters until February 3, 	the
date 	stamped on the 	letter 	by the main personnel 	office.
Unfortunately, 	the 	limited 	testimony failed 	to 	fully account
for 	the time 	lapse. 	An employee 	in the doctor's 	office
indicated 	that 	dictated 	letters were 	transcribed 	once 	or 	twice
a week by an outside typist, 	suggesting that, 	based on the
usual 	schedule during 	the 	relevant 	time period, 	the 	letter
might have been typed 	and sent by January 24, 	or possibly
later. 	(Tr. 	2:84-85.) 	There also was 	testimony by the
District's 	superintendent 	that 	the 	letter was 	transmitted 	to
1Stroud, 	moreover, 	was 	an exceptional witness. 	Despite
forced 	reliance on an electronic voice box, 	his manner was
confident 	and 	forthright. 	Stroud's 	recollection of 	key
conversational details 	also was 	sharp.
L
L

the District's 	main office by Olson, 	the 	addressee 	shown on the
letter, 	and that the envelope, now 	lost, 	bore 	a January 30
postmark. 	(Tr. 	1:82, 	86.). 	As noted above, Olson did not
testify. 	There was 	no 	other 	direct evidence on 	the 	time 	gaps
in the chain of custody.
Stroud, 	who underwent cancer 	surgery, 	remained 	absent
through the balance 	of 	the 	second 	semester. 	There was 	no
evidence 	that 	the District disputed either 	his 	illness 	or 	the
sufficiency 	and 	timing 	of 	the 	verification 	Stroud 	supplied 	to
support his use of 	sick leave. 	Throughout Stroud's 	absence,
beginning 	in the first 	semester, 	his 	classes were 	taught by Jim
Steinberg. 	Steinberg was 	considered 	a 	non-unit 	substitute
teacher 	for the entire period. 	According 	to 	Stroud, 	Olson had
stated 	on January 21 	that 	Steinberg 	would 	continue 	as 	Stroud's
replacement. 	(Tr. 	(RS> 	10.)
C. 	The Crossan Case
Joan Crossan became 	ill with depression 	in fall 	1985. 	She
submitted 	a doctor's verification of 	the 	illness 	in October 	as
part of 	a planned 	three-month 	absence. 	On January 9, 	1986,
Crossan wrote 	a 	letter 	requesting 	an extension of 	her 	absence.
The 	letter was 	prepared with 	the 	assistance 	of 	Richard
Schuster, 	the California Teacher Association's 	field
representative 	in Humboldt County. 	The extension 	request 	cited
the 	relevant contract provision for 	a health 	leave, 	and
expressly 	sought 	unpaid 	status 	for 	the 	last 	part 	of 	the 	second
semester, 	after extended 	illness 	differential 	pay would 	be
exhausted.
8

During 	January, 	Crossan 	also 	spoke 	about her 	needs 	with her
school principal 	and with Dodie Scott, 	the personnel
coordinator. 	In a conversation with Scott, 	Crossan volunteered
to 	submit 	a supplemental doctor's verification. 	Crossan
testified 	that 	she 	assumed 	such 	a 	statement was 	required,
similar 	to 	the 	substantiation 	supplied 	for 	her 	original 	leave
in fall 1985. 	(Tr. 	1:21.) 	At the hearing, 	there was no
testimony 	about 	the precise date 	for 	this 	conversation with
Scott, 	although from the context of 	related events 	it 	probably
took place 	near 	the 	start 	of 	the 	second 	semester 	on
January 27, 	1986.
Regardless of this uncertainty, 	it 	is clear that Crossan
sought the medical verification. 	Initially, 	according 	to
Crossan, 	the doctor or someone 	in his 	office mistakenly sent 	a
copy of Crossan's 	January 9 	letter 	to 	the District. 	(Tr.
1:19-20.) 	Thereafter, 	in a 	letter dated January 27, 	Crossan's
doctor 	sent 	a proper verification of 	her 	illness. 	This was
received by the District 	on January 29, 	two days 	after 	the
semester 	began.
During 	the 	second 	semester, 	Crossan was 	given the 	extended
illness 	and health 	leaves 	she had 	requested. 	There was 	no
evidence 	that 	the District 	disputed 	either 	her 	illness 	or 	the
sufficiency 	and 	timing 	of 	the verification 	she 	supplied.
Throughout Crossan's 	absence, 	beginning 	in the first 	semester,
her 	classes were 	taught 	by Lori McFarland. 	McFarland was
considered 	a 	non-unit 	substitute 	for 	the 	entire 	period.
9
.

Crossan's 	salary through the March 	7 	expiration of 	her 	paid
leave 	status was 	based on 	the difference 	between her 	regular
pay 	and 	the 	substitute cost 	for McFarland.
D. 	The Association Grievance
In March 	1986, 	several weeks 	after 	the 	start 	of 	the 	second
semester, 	the Association 	filed 	a grievance 	asserting 	that 	the
District 	failed 	to 	classify Steinberg 	and McFarland 	as
temporary teachers 	to 	replace 	Stroud 	and Crossan 	for 	the 	second
semester, 	and, 	instead, 	had treated them as 	substitute
employees. 	(See, 	generally, 	grievance materials collected 	in
C. 	P. 	Exh. 	4 	and Resp. 	Exh. 	2.) 	The remedy sought by the
Association was 	to 	post 	and 	fill 	the positions 	in 	accord with
Article 	18 	of 	the bargaining 	agreement.
The grievance was 	denied 	at 	both 	the 	first 	and 	second
levels. 	The second 	level of 	the procedure, 	an appeal 	to the
superintendent's designee, 	resulted in a 	statement of 	facts 	and
a 	contractual 	interpretation by the District. 	The Association
asserted 	that 	notice by the employee plus 	subsequent written
medical 	verification 	satisfied 	the 	District's 	contractual
rights, 	and that past practice with respect 	to 	the 	issue was
not 	definitive 	in terms 	of 	denying 	temporary teacher
classification. 	(Resp. 	Exh. 	2 	(Grievance Hearing Transcript)
at pp. 	10, 	16-17.)5
5The hearing transcript, 	offered by the District, 	is
entitled to evidentiary weight, 	even though Schuster, 	the
Association's 	representative, 	did not 	testify at 	the unfair
practice 	hearing.
10

The hearing 	officer 	rejected 	the grievances. 	His 	report
stated 	that 	the 	employer 	knew that 	Stroud 	and 	Crossan would 	be
. ..
absent 	"with 	absolute certainty" 	on February 3 	and January 29,
respectively, 	when 	"corroborating" 	physician 	statements were
received after the beginning of the semester. 	(C. 	P. 	Exh. 	4,
Level 	II Decision at p. 	3.) 	In the hearing officer's view,
since 	their medical 	verifications 	were 	not 	submitted before 	the
semester 	started, 	the temporary teacher provision of Article 	18
did 	not 	apply 	and no 	contract 	violation was 	found.
The Level 	II 	decision 	reasoned 	that 	requiring medical
notice to 	be 	received prior to 	the 	semester's 	start was 	a
necessary condition 	in order 	to 	avoid potential 	double 	salary
payments 	if 	an employee on 	leave wished 	to 	return to work. 	As
an alternative ground to deny the grievance, 	the hearing
officer concluded 	that 	the 	filing was 	untimely, 	apparently
rejecting 	the Association's 	argument 	that 	the ongoing use of 	a
substitute constituted 	a 	continuing violation of 	the contract.
Following 	the 	second 	level decision 	in April 	1986, 	the
Association 	sought 	arbitration. 	An 	arbitrator was 	selected 	and
a date was 	set, 	but 	in September the Association withdrew its
grievance. 	In its 	letter 	to 	the arbitrator, 	the Association
claimed 	that 	the District 	refused 	to waive 	its 	timeliness
argument, 	and that 	the substantive 	issue was pending before the
PERB. 	(The unfair practice charge was 	filed 	in June 	1986.)
11

E. 	Negotiating History
The 	temporary teacher provision 	in Article 	18 was 	the
mid-1982 	product 	of 	unfair practice 	settlement 	negotiations 	in
Case No. SF-CE-649. 	(See, generally, Resp. Exh. 	6;
Tr. 	1:89-110; 	2:87, 	94.) 	In that dispute, 	the Association
alleged 	that 	the District 	unilaterally 	adopted 	a 	new policy
regarding 	the unit-member 	status 	of 	long-term substitute
employees 	working 	under 	fixed 	contracts. 	The 	settlement was
negotiated with the 	assistance of 	a 	PERB hearing 	officer. 	The
parties conferred once in a 	face-to-face meeting, 	and
thereafter 	through correspondence 	and 	telephone calls. 	(Tr.
1:96-97.) 	Eventually, 	the 	settlement was 	incorporated 	in 	the
bargaining 	agreement 	that preceded 	the current 	contract. 	The
text 	has 	remained unchanged 	throughout 	this 	period.
Richard Smith, 	the District's 	counsel 	in this proceeding,
negotiated the unfair practice 	settlement 	in SF-CE-649. 	He
testified 	that 	the 	"absolute 	certainty" 	language was 	intended
to 	protect 	against 	the 	risk of 	double 	employment 	and 	salary
payments. 	(Tr. 	1:94, 	97.) 	At first, 	the District had proposed
using 	temporary teachers, 	who would be part of 	the bargaining
unit, 	only for 	absences 	of 	"known duration." 	After discussion
assisted by the mediator, 	the District 	expanded 	the 	scope 	of
temporary teacher 	employment 	to 	include 	replacements 	for
•	employees 	on 	leaves 	of 	absence of 	unknown but extended 	length.
For 	further protection, 	the District 	utilized 	the 	absolute
12

certainty concept 	in order 	to minimize 	the 	risk of 	a person
returning 	from 	leave 	after 	a 	temporary teacher was 	in place.
(Tr. 	1:95-97.) 	The Article 	18 	phrase 	"known with absolute
certainty" 	was 	drafted by Smith 	and was 	sent 	to 	the Association
in September, 	1982. 	(Tr. 	1:93.) 	The settlement was agreed
upon the next month.
Smith 	testified that 	although there were 	some 	conversations
with Schuster, 	the Association representative, 	about the
District's 	fear of 	potential double employment 	and double
salary payments, 	there was no conversation that Smith could
recall 	that 	involved the 	specific means 	for determining 	that 	an
employee would be 	absent with 	"absolute certainty." 	(Tr. 	1:97,
"
103-104, 	108.)6 Hence, 	as Smith conceded, 	there was no
discussion between 	the parties 	that 	classifying 	a 	temporary
teacher under Article 	18(4)(A) 	would 	require that medical
verification be 	received prior 	to 	the 	start of 	a 	semester,
(Id.) 	Smith 	also 	confirmed 	that 	subsequent 	events 	demonstrated
a 	lack of 	clarity 	in the 	absolute certainty provision.
(Tr. 1:108.)
6The 	Association 	also 	offered 	testimony 	about 	bargaining
history. 	An Association negotiator who was 	present 	at 	the
settlement talks, 	and who was 	a participant on the Association
side thereafter, 	could 	recall no discussion of 	how and when the
concept of 	"absolute certainty" would apply. 	(Tr. 	2:87.)
13

F. 	Past 	Practice
Substantial 	evidence was 	offered 	at 	the hearing 	regarding
the District's 	past 	practice 	of 	hiring 	temporary teachers 	for
health 	and 	illness 	absences 	for 	the period 	1983-84 	through
1985-86, 	the years 	in which the 	1982 	settlement 	agreement was
implemented. 	(See Resp. 	Exhs. 	1, 	8 	and related testimony.)
Temporary teachers were 	hired 	for 	four 	employees 	absent 	for
an entire 	semester while utilizing 	sick 	leaves 	in 	1984-85 	and
in 1985-86. 	These employees were designated as 	"MB," 	"JD,"
"LM," 	and 	"GB" 	in the record. 	(Initially, 	GB was misidentified
as 	"JB.") 	Of these, 	one employee 	(GB) 	in 1984-85 did not
submit 	a doctor's verification before the 	start of 	the
semester, 	but 	still 	a 	temporary teacher was 	hired. 	A second
employee 	(MB) 	in 1984-85 did submit 	a physician's 	statement
before 	the 	semester 	began.
In 1985-86, 	the same year that Stroud and Crossan's cases
arose, 	two 	other employees were 	absent on sick 	leave 	and were
replaced by temporary teachers. 	One employee 	(JD) 	did not
submit medical 	verification before 	the 	first 	semester 	began,
although 	subsequent extensions 	of 	the 	leave 	for part of 	the
second 	semester were 	supported 	by 	a 	suitable 	statement, 	albeit
after the start. 	(Tr. 	2:63-65.) 	Another employee 	(LM) 	in
1985-86 	did convey an advance, 	pre-semester doctor's 	statement.
14

The District's 	personnel 	coordinator, 	Scott, 	testified 	that
it was 	her mistaken contract 	interpretation that 	led 	to 	the
1984-85 hiring of 	a 	temporary teacher 	for 	the employee 	(GB) 	who
did 	not 	submit 	a medical verification before the 	first 	semester
began. 	(Tr. 	1:127-128, 	130-131; 	2:50-52.) 	Since the District
was 	aware 	that GB had 	suffered 	a 	heart 	attack during 	the 	summer
and was 	going 	to be 	absent 	for most of 	the 	semester, 	Scott 	had
believed a temporary teacher was 	appropriate. 	(Tr. 	2:50-51,
57-58.) 	Later, 	in an early 1985 discussion with District
administrators 	(Tr. 	1:128-129; 	2:52), 	she was instructed to
limit 	such hires 	to 	instances 	in which the 	teacher would be
absent 	the 	remainder of 	the year, 	thereby making Article
18(4)(A)(3) inapplicable.7
Scott 	also was 	responsible 	for 	the 	1985-86 	temporary
teacher 	classification without 	advance medical 	verification
being 	received by the District. 	In this 	instance, 	the employee
(JD) 	was known personally to Scott, 	who knew with certainty
that 	the 	employee would be 	absent 	through 	the 	entire 	first
semester.
7This 	explanation, 	which Scott 	said 	should have 	applied
in GB's case 	(Tr. 	2:68-69), 	did not square with the record
evidence 	showing 	that GB was 	absent 	the 	entire 	first 	semester
(Tr. 	2:50-51, 	57-58; Resp. Exh. 	1.) 	Article 18(4)(A)(3)
applies when an employee 	is 	absent 	for 	a portion of 	the first
semester 	and 	all 	of 	the 	second 	semester.
15

(Tr. 	2:63-64.)8
With 	respect 	to 	sick leave 	and other 	illness 	absences, 	the
District 	did not 	have 	a policy to 	seek second 	or 	additional
medical 	opinions 	prior 	to 	accepting 	the verification offered 	by
the employee. 	(Tr. 	1:61.) 	Nor was there evidence that the
District 	referred 	employees 	to 	a 	physician 	selected 	by the
employer 	for 	an 	independent 	assessment 	of 	employee 	and doctor
claims.
In 	addition to 	the evidence 	regarding 	temporary teacher
practices 	in relation to medical substantiation, 	there was
abundant 	evidence 	that 	the District 	utilized 	retroactive 	hiring
authorizations, 	often reclassifying 	substitutes 	as temporary
teachers weeks 	after 	a semester began. 	(See Resp. 	Exh. 	8.)
Retroactive 	authorizations were 	involved 	in 	the 	temporary
teacher classifications 	for 	all 	four of 	the 	sick 	leave
8Evidence 	also was 	offered 	regarding 	the use 	of 	maternity
leave 	and 	temporary teachers. 	The District 	has urged that 	such
leaves 	are not returnable 	(Tr. 	1:117), 	as 	are other illness and
health 	leaves, 	and thus 	have 	limited 	applicability in 	resolving
the present dispute. 	This 	claim is 	questionable 	since 	the
contract 	does 	not distinguish between the 	return 	rights 	related
to 	paid 	and unpaid 	leaves 	for periods 	up 	to 	one year.
Regardless, 	since one type of maternity 	leave may involve
unpaid 	absences of 	a specific duration, 	there 	is 	a 	similarity
to Crossan's 	request 	for 	an unpaid 	leave of 	absence 	for 	the
balance of 	the 	1985-86 	second semester. 	Overall, 	the 	record
indicates 	that employee notice to 	the District was 	by itself
sufficient 	to 	trigger 	the unpaid maternity 	leave 	and
classification of 	the 	replacement 	as 	a 	temporary teacher. 	(See
Resp. 	Exh. 	1.) 	For present purposes, 	the District apparently
would 	treat 	the cases 	differently by requiring 	a 	further,
outside verification for 	an employee 	in Crossan's 	situation.
16

replacements 	in 1984-85 	and 	1985-86, 	approving 	such status 	for
the 	replacement's 	first or 	second semester. 	(See Tr. 	2:30
(MB); 2:34-35 	(JD); 	2:47-48 (LM), 	and 2:50-51 (GB).) 	The
employees who 	originally served 	as 	substitutes 	continued
serving 	as 	temporary teachers 	in each 	instance. 	(Id.; 	2:95.)
From the evidence 	at 	the hearing, 	it may be 	inferred that
the Association knew of 	the 	school 	board's 	retroactive
authorization practice, 	which covered maternity 	leave cases 	as
well, 	because 	organizational 	representatives 	attended meetings
and 	regularly 	received board 	agendas 	and 	personnel 	reports
reflecting 	the authorizations. 	(Tr. 	2:88-89.) 	In contrast,
prior 	to 	the Stroud 	and Crossan cases, 	and the Level 	II 	hearing
officer 	report, 	there 	is no 	indication that 	the Association
could have 	inferred 	a District 	policy 	requiring 	that 	a
physician's 	verification be 	received 	by 	the District 	prior 	to
the 	start 	of 	a 	semester 	as 	a precondition to hiring 	a 	temporary
teacher. 	The Association, 	for example, 	was not involved in the
sick 	leave 	replacement 	classification 	for 	the 	two 	employees
(MB, 	LM) 	who submitted medical verifications prior 	to 	the
semester's 	start. 	(Tr. 	2:54-55.)
Additionally, 	there was no District 	policy statement 	or
other written guideline, 	for 	internal 	consumption or otherwise,
that 	established 	its 	criteria 	for 	applying 	the 	contractual
"absolute certainty" 	text. 	(Tr. 	2:56.) 	Nor was 	there 	any
written document 	correcting 	Scott's 	purported 	mistaken
interpretation. 	(Tr. 	2:57.) 	In brief, 	there was no evidence
17

that 	the 	employer's 	interpretation of 	the 	absolute certainty-
provision 	had 	been 	communicated 	to 	the Association during 	the
years the District claims 	it was 	in effect.
CONCLUSIONS 	OF LAW
A. 	Introduction
The 	charging 	party contends 	that 	the 	District 	unilaterally
adopted 	a 	new policy governing 	temporary 	teacher 	classification
under Article 	18(4)(A) 	by defining 	the phrase 	"known with
absolute certainty" 	to 	require 	receipt of 	a physician's
verification of 	an employee's 	absence prior 	to 	the 	start of 	a
semester. 	The Association views 	such a 	requirement 	as 	adding
specific 	criteria 	to 	the general 	language of 	the 	bargaining
agreement. 	The Association concludes 	that 	the District
violated 	the EERA because 	its 	new policy 	involved 	a matter
within the 	scope of 	representation, 	and was 	adopted without
notice 	and negotiations with 	the 	exclusive 	representative.
The 	respondent 	counters 	that 	its 	policy 	requiring
pre-semester verification was 	in 	accord with the 	contract,
negotiating history and 	past 	practice 	in 	the District. 	In
addition, 	the District 	argues 	that 	a complaint 	should not have
been 	issued because 	the PERB dispute 	should have 	been deferred
to binding 	arbitration.
For the 	reasons 	stated below, 	it 	is 	concluded 	that 	the
District's defenses 	are without merit, 	a violation of the EERA
has 	been demonstrated, 	and 	an 	appropriate 	remedial 	order 	should
be 	issued.
18

B. 	Deferral
As 	a 	threshold defense 	that would 	preclude 	deciding 	the
substantive unfair practice 	issue, 	the District maintains 	that
the 	Board 	should 	have 	deferred 	the Association's 	claim to
binding 	arbitration, 	citing 	the mandatory deferral 	language of
section 3541.5(a).
g
9 In that 	section, 	the EERA provides 	in 	relevant part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall have 	the 	right 	to 	file 	an
unfair practice charge, 	except that the
board shall not . 	. 	. 	; 	(2) 	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 	the 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. 	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.
19

The District 	argues 	that 	an 	arbitrator 	could have decided
the Association's 	contract violation theory on the merits, 	even
if 	the District 	also was 	advancing 	a procedural 	defense based
on 	the 	alleged untimely filing 	of 	the grievance. 	On this
point, 	the Level 	II hearing officer had 	reached the merits 	of
the contract 	case, 	while 	also 	holding 	alternatively that 	the
grievance was 	untimely. 	The contract 	itself 	describes 	the
arbitrator's 	jurisdiction broadly, 	allowing 	the decision-maker
to 	consider 	the violations 	and 	facts 	alleged 	at 	the 	lower
levels of 	the procedure. 	The District observes 	that 	since the
Association 	failed 	to 	demonstrate 	that 	submission 	to
arbitration would be 	futile 	because 	of 	the 	employer's
Untimeliness 	defense, 	the Association should not 	be permitted
to 	bypass 	the contractual 	remedy that 	had been bargained 	for 	by
the parties.
The District's 	analysis, 	while 	logical 	from a 	strictly
contractual viewpoint, 	fails 	to consider 	the separate statutory
enforcement 	interest of 	the Board, 	as 	reflected 	in Dry Creek
Joint Elementary School District 	(1980) 	PERB Order No.
Ad-81(a). 	In that decision, 	the PERB concluded that an
arbitrator's 	award was 	repugnant 	to 	the EERA, 	thus 	not
justifying deferral, 	because 	it 	failed 	to 	provide 	for 	full
restoration of 	the status quo 	ante. 	The Board's decision
relied 	on 	federal 	precedent 	under 	the National 	Labor 	Relations
20

Act 	(NLRA).10
In Dry Creek, 	following this 	precedent, 	the Board set 	forth
four 	requirements 	for PERB deferral 	to 	an arbitration 	award:
1. 	The matters 	raised in the unfair
practice charge must 	have been presented 	to
and 	considered 	by the 	arbitrator;
2. 	The arbitral proceedings must have been
fair 	and 	regular;
3. 	All parties 	to the 	arbitration
proceedings must have 	agreed 	to 	be bound 	by
the arbitral award; 	and,
4. 	The 	award must 	not be 	repugnant to 	the
Act.11
The 	first of 	the 	four 	listed criteria
contemplates 	the 	exercise of 	the PERB's 	jurisdiction
if 	the unfair 	practice 	issues 	"are not 	encompassed 	by
the 	arbitration proceeding 	and 	included 	in 	the
101d. 	at p. 	4, 	citing Speilberq Manufacturing Co. 	(1955)
112 NLRB 	1080 	[36 LRRM 1152], 	and Collyer 	Insulated Wire 	(1971)
192 NLRB 837 	[77 LRRM 1931]. 	The NLRA, 	29 U.S.C, 	sec. 	150
et seq., 	does not have a mandatory deferral 	requirement. 	The
deferral doctrine has 	evolved 	as 	an exercise of 	discretionary
jurisdiction by the National Labor Relations Board 	(NLRB).
(See Morris, 	The Developing Labor Law (2d ed.), 	at pp. 	924-933.)
11Subsequent 	Board decisions 	have 	reaffirmed 	the 	deferral
requirements: 	see, 	e.g., 	Lancaster Elementary School District
(1983) 	PERB Decision No. 	358; Conejo Valley Unified School
District 	(1984) 	PERB Decision No. 	376; 	Los Angeles Unified
School District 	(1986) 	PERB Decision No. 	587.
21

arbitrator's disposition of the case."12 12
Since, 	in the proceedings before the Regional Attorney, 	the
District declined to waive its Untimeliness defense, 	if the
case was 	deferred the 	arbitrator necessarily would have 	to
consider 	an 	alleged procedural 	objection that 	could preclude
resolution of 	the substantive unfair practice dispute. 	If 	this
was the outcome, 	in the District's view, 	the Association could
return to PERB after the 	award issued, 	and seek a 	repugnancy
determination that would permit 	the PERB's 	consideration of 	the
merits 	of 	the unfair practice charge.13	13 	Such a protracted
speculative course, 	however, 	would serve no practical statutory
end, 	and, 	instead, would inflate the time, 	costs and attorney
fees 	to be 	incurred by all parties 	to 	the dispute.
This conclusion 	is consistent with federal 	labor 	relations
precedent. 	Cases 	cited by the Regional Attorney when he
initially dismissed 	respondent's 	objection, 	support 	the
principle that deferral of 	the merits of 	an unfair practice
claim to 	arbitration must be unconditional, 	including 	a
timeliness waiver, 	in order to 	justify a 	stay of the statutory
12Dry 	Creek, 	supra, 	PERB 	Order 	No. 	Ad-81(a) 	at 	p. 	5.
1 3 In a 	footnote to the District's brief, 	respondent 	also
suggests 	that 	a 	time-bar 	holding by the 	arbitrator would block
the PERB's jurisdiction. 	(See District Brief at p. 	11, 	fn.
9.) 	This 	result, 	precluding 	statutory enforcement 	at 	any
stage, 	is clearly at odds with the principles 	expressed 	in Dry
Creek.
22

enforcement 	mechanism.14 The District 	has 	argued 	that 	these
cases are distinguishable, 	relying, 	however, 	on factual
variations 	from the present dispute 	that do 	not detract 	from
the basic principle. 	Simply stated, 	under the NLRA, 	deferral
to 	arbitration is 	justified only if 	there 	is 	an assurance 	that
resolution of 	the contractual dispute 	also will 	resolve 	the
underlying 	statutory 	claim.15	15
Similar 	reasoning 	should 	apply under 	the EERA because
section 3541.5(a) 	requires 	pre-arbitration deferral 	only where
the contract 	"covers" 	the unfair practice dispute. 	If 	a time
bar 	could or does 	preclude the 	arbitrator's 	consideration of
the unfair practice issue, 	and the employer 	is unwilling 	to
abandon the procedural objection to 	ensure 	that 	the contractual
dispute mechanism "covers" 	the statutory issue, 	it cannot be
said 	that 	the 	literal 	jurisdictional 	command of 	the EERA has
been satisfied for 	the purpose of mandatory deferral. 	Absent a
14See Columbus Foundries. 	Inc. 	(1977) 	229 NLRB 34
[95 LRRM 1090]; 	United States Postal Service 	(1976)
225 NLRB 220 	[93 LRRM 1089]; 	Pilot Freight Carriers, 	Inc.
(1976) 	224 NLRB 341 	[92 LRRM 1338].
15The 	emphasis 	on this 	point was 	central 	to 	the NLRB's
reasoning 	in Collyer 	Insulated Wire, 	supra. 	192 NLRB at
841-43. 	Other NLRB decisions 	also 	have 	rejected deferral when
a 	threshold 	issue of 	grievance timeliness 	could 	impede 	a 	prompt
unfair practice ruling. 	(See, 	e.g., 	Coast Valleys
Typographical Union 	(1975) 	221 NLRB 1048, 	1050-51
[91 LRRM 1078]; Raymond International, 	Inc. 	(1975)
218 NLRB 202, 	203, 	fn. 	1 [89 LRRM 1461]; cf. Gary Hobart Water
Corporation 	(1974) 	210 NLRB 742 	[86 LRRM 1210].)
23

showing 	of 	forum-shopping 	in bad 	faith, 	which perhaps 	might
justify the PERB's 	refusal 	to 	exercise 	its 	jurisdiction,
deferral 	on the 	present 	record would 	invite 	a 	duplicative waste
of public resources, 	procedural delay, 	a deteriorating
evidentiary 	record, 	and continued uncertainty 	in
labor-management 	relations 	as 	the merits 	of 	the unfair 	practice
dispute 	remained up 	in the 	air.
C. 	The Unilateral Change
The Board's precedent, 	as 	affirmed by appellate courts,
requires 	an employer 	to 	provide notice 	and 	an opportunity to
negotiate 	before unilaterally establishing 	a 	new policy or
practice 	affecting 	a 	subject within the 	scope of
representation.16	16
In this case, 	there is no dispute that the District's
verification 	standard 	for 	temporary teacher 	classification was
expressed 	in 	1986 without 	explicit 	notice or 	negotiations 	at
that 	time, 	and was of generalized effect 	for the bargaining
16	l6oakland	oakland 	Unified School Dist, 	v. 	Public Employment
Relations Bd. 	(1981) 	120 Cal.App.3d 1007, 	aff. 	PERB Decision
No. 	126; Moreno Valley Unified School Dist, 	v. 	Public
Employment Relations Bd. 	(1982) 	142 Cal.App.3d 191, 	aff. 	PERB
Decision No. 	206.
24

unit.17 Indeed, 	one of the District's principal defenses 	is
that 	new bargaining was 	not 	required 	because 	the 	subject matter
had 	been negotiated 	previously. 	The District 	believes 	that 	its
verification policy was consistent with the 	agreement, 	the
bargaining 	history, 	and the past practice.
Before reviewing this contention, 	however, 	consideration
first must be given to 	the District's 	argument 	that 	the 	subject
matter 	of 	its 	action is 	beyond 	the 	scope 	of 	representation
because 	the hiring 	of 	non-unit 	employees 	is within management's
discretion, 	citing 	Healdsburg Union High 	School 	District 	(1984)
PERB Decision No. 	375. 	But the respondent's 	reliance on
Healdsburg 	is misplaced because 	the Association 	is 	not 	seeking
to 	negotiate on behalf 	of 	employees 	outside 	the 	bargaining
unit. 	Rather, 	the organization by its charge proposes 	to
bargain over 	the 	appropriate classification, 	and wages 	and
hours, 	of employees within the unit, 	as previously recognized
by the employer. 	Bargaining 	also would be 	relevant 	to 	such
issues 	as work preservation, 	and transfers 	or 	reassignments 	of
unit work. 	Healdsburg applies this unit distinction, 	for
example, 	in its discussion of negotiable
17See Grant 	Joint Union High School 	District 	(1982) 	PERB
Decision No. 	196 	(distinguishing 	contract 	violation without
general effect).
25

18
proposals regarding "restricted" and "student" employees."18
More precisely on point, 	the PERB previously has 	held that
negotiations 	over 	classification criteria 	for 	temporary
certificated employees were within the 	scope of
representation.19 Other 	Board decisions 	also 	affirm the
principle 	that classification 	issues 	related to wages 	and
hours, 	and to work preservation, 	transfers and reassignments,
fall within the scope of 	representation.20	20
Were the rule otherwise, 	an employer, 	regardless of
contractual recognition commitments as 	in this case, 	could
unilaterally determine that 	a 	particular 	employee was 	outside
the bargaining unit 	and beyond the scope of 	representation, 	and
then hoist 	its unfair practice defense onto 	this unilateral
determination. 	This 	circular 	approach toward the 	scope of
representation would 	strip 	the 	statutory definition of meaning,
and 	bargaining would be dependent 	on 	the 	transitory preference
181d . 	at pp. 	19-20.
19Jefferson School District 	(1980) 	PERB Decision No. 	133
at pp. 	21-23. 	(Also see id,., 	at pp. 	24-25 distinguishing unit
and 	non-unit 	employee 	negotiations.)
20See, 	e.g., 	Alum Rock Union Elementary School 	District
(1983) PERB Decision No. 	322 at pp. 	10-12; Mt. 	San Antonio
Community College District 	(1983) 	PERB Decision No. 	297 at pp.
7-9; 	Goleta Union School District 	(1984) 	PERB Decision No. 	391
at pp. 	19-20; Davis Joint Unified School District 	(1984) 	PERB
Decision No. 	393 at pp. 	25-26.
26

of 	an employer. 	. -
Regarding the core of the parties' 	dispute, 	the District
maintains 	that 	it 	has 	negotiated over 	the 	temporary 	teacher
classification, 	and 	that 	its 	verification 	standard was 	in
accord with 	the 	contractual 	text, 	negotiating 	history 	and past
practice. 	In resolving this 	argument, 	it 	should be observed
that 	any 	review of 	the disputed contractual 	phrase 	"known with
absolute certainty" must come to grips with the obvious:
absolute certainty can be ephemeral, 	dependent 	on timing,
circumstance 	and the beholder's 	point of view. 	The District's
negotiator 	admitted 	that 	events 	have demonstrated 	a 	lack of
clarity for the phrase. 	In the District's brief, 	it 	also
concedes 	that 	even 	the 	respondent's 	chosen verification
standard does 	not 	offer 	complete 	absolute 	certainty 	against
double employment, 	but 	instead provides 	"limited protections."
(District Brief 	at p. 	4.) 	In this 	respect, 	there was no
evidence 	that 	reasonable 	steps 	toward 	greater 	certainty were
required, 	such 	as 	second medical opinions 	or opinions 	from
physicians 	selected by the employer. 	Hence, 	any review of 	the
present dispute must 	strive to be 	sensible, 	recognizing 	that
the 	parties 	selected 	an 	ambiguous 	contractual 	phrase 	in their
quest 	for 	assurance.
Under 	such circumstances, 	the Board examines 	disputes 	over
contractual 	intent 	in 	light 	of 	negotiating 	history 	and previous
27

21
practice.
The negotiating history, 	however, 	does 	not 	support the
District's 	claim that 	its 	pre-semester 	verification 	requirement
was consistent with the contract. 	First, 	and most 	important,
the 	specific means 	of 	applying 	the phrase 	"known with "absolute
certainty" 	were not discussed by the parties. 	At most, 	during
their 	settlement 	talks, 	the expressed 	intent of 	the parties was
their 	agreement 	on the need 	to minimize 	the District's 	risk of
double 	employment 	and 	salary payments.
Second, 	the 	contract 	language cannot 	fairly be 	read 	to
impliedly 	incorporate 	the District's 	requirement 	as 	applied 	to
the 	replacements 	for 	Stroud 	and Crossan. 	As 	is 	plain 	in the
health and sick leave portions 	of 	the 	agreement, 	the parties
knew how to write 	and 	incorporate 	language 	that 	expressly
established verification rules. 	In this context, 	a similar
verification 	rule cannot 	be 	implied 	in 	an 	independent 	article
of 	the contract without 	flaunting 	the general 	principles 	of
2 1 See, 	e.g., 	Morgan Hill Unified 	School District 	(1986)
PERB Decision No. 	554(a) 	at p. 	9; 	Modesto City Schools 	and High
School District 	(1984) 	PERB Decision No. 	414.
28

contract interpretation.2222
Third, 	in light of these contract principles, 	the
Association's 	understanding 	of 	the 	absolute certainty phrase 	is
more consistent with the negotiating history, 	and with the
agreement 	as 	a whole. 	Thus, 	a temporary teacher should be
hired once an employee gives 	advance, 	pre-semester notice under
Article 18(4)(A), 	and the employee complies with the District's
22Under California 	law, 	a contract must be interpreted to
give effect 	to 	the expressed 	intent of 	the parties 	as 	of 	the
time of 	agreement. 	(Civil Code sec. 	1636.) 	The contractual
text 	is 	the starting point 	for this 	analysis 	(Civil Code
secs. 	1639-40), 	with effect being given to every portion of the
agreement. 	(Civil Code sec. 	1641.) 	Interpretation of the
contract must be definite and 	reasonable, 	capable of 	being
carried out without violating 	the parties' 	intention. 	(Civil
Code sec. 	1643.) 	When interpreting 	an ambiguous 	contract
provision, 	evidence is 	relevant demonstrating what the promisor
believed 	the promisee's 	understanding 	to 	be 	at 	the 	time of 	the
agreement. 	(Civil Code sec. 	1649.) 	If these principles of
interpretation 	are not 	sufficient 	to 	resolve 	an uncertainty,
the 	text 	shall 	be 	interpreted 	against 	the 	party drafting 	the
disputed language. 	(Civil Code sec. 	1654.) 	(See, 	generally,
Witkin, Summary of California Law (8th ed.), 	secs. 	520-540.)
Not only should the trier of 	fact be hesitant 	to 	imply a
verification rule where none was expressed, 	but, 	in this case,
other 	rules 	also 	are 	relevant. 	Here, 	the promisor was 	the
District, 	since 	it offered a 	temporary teacher classification
under certain conditions. 	According 	to 	the 	testimony of 	the
District's 	negotiator, 	the Association's 	understanding during
bargaining was 	that 	the 	employer wanted 	an 	assurance 	against
the 	risk of double employment, 	without 	reference to 	specific
criteria. 	Under these circumstances, 	the promisee's
understanding 	is 	the proper 	interpretation, 	assuming 	it 	is
consistent with the text 	and the 	agreement 	as 	a whole.
Ultimately, 	if other interpretative approaches fail, 	an adverse
finding 	is 	appropriate against 	the District 	as 	the party
drafting 	the disputed 	text.
29

request 	for medical verification, 	assuming one 	is 	sought by the
District. 	If 	the employee's 	response to 	the 	request 	is
satisfactory 	for 	the 	purpose 	of 	granting 	health 	and 	sick
leaves, as were Stroud and Crossan's, 	the two 	separate
provisions 	of 	the 	agreement can operate 	in tandem. 	This
interpretation, 	described during 	the grievance hearing below,
is more plausible than the District's, 	which would permit both
express 	and 	implied verification 	rules 	operating 	at 	the 	same
time. 	The District's 	interpretation of different 	provisions
could 	function 	in an inconsistent 	fashion, 	rejecting 	a
verification 	for one purpose while 	allowing 	it 	for 	another.
When gauged by the test of 	plausibility, 	the District's 	action
is not 	in 	accord with the 	agreement.23	23
23Compare Victor Valley Community College 	District 	(1986)
PERB Decision No. 	570 at pp. 	16, 	24 	(no unilateral change found
where 	the employer's 	action was 	based on 	a 	plausible contract
interpretation).
In the District's brief, 	it mischaracterizes 	the
Association's 	contractual 	interpretation, 	contending 	that 	the
organization would 	allow verbal 	notice 	of 	a 	projected 	semester
absence, 	without regard to a cut-off date, 	as 	sufficient notice
to 	require 	temporary teacher classification. 	As 	an
argumentative device, 	this characterization is helpful to 	the
District's case, 	but 	it misses 	the mark 	(and 	lacks 	support 	in
the record). 	Instead, 	as noted above, 	the Association has
urged that notice, 	whether written or verbal, 	is subject to the
District's 	discretionary verification 	rights, 	and 	that 	Stroud
and Crossan did 	all 	that was 	and could be 	required of 	them
under 	the 	contract. 	The 	temporary teacher 	requirement was
effective, 	therefore, 	because their prospective absences were
corroborated 	to 	the District's 	satisfaction. 	Had the
corroboration 	been 	unreasonably delayed 	or 	otherwise
insufficient, 	a different case would be presented, 	one more 	in
keeping with 	the 	District's 	characterization.
30

The Association's 	interpretation is 	sensible as well, 	in
light of other contractual considerations. 	The contract, 	for
example, 	expressly circumscribes 	return rights, 	apparently
creating 	reinstatement 	leeway that 	provides 	another 	limit 	on
the possibility of 	double employment 	in the same 	position.
Additionally, 	while the contract does 	establish 	return 	rights,
such rights 	cannot be 	interpreted 	in a vacuum. 	It 	is 	hard 	to
imagine how an employee who has 	been granted 	an unpaid 	leave
request could then have 	a change of heart, 	and prevail on a
demand 	for 	restoration of 	a previous 	position by bumping 	a
temporary teacher 	in the process. 	If 	the employer has 	already
acted 	in 	reliance on 	the promise 	and 	to 	its 	detriment 	by hiring
a temporary teacher, 	the 	absent 	teacher 	should be held 	to 	the
original promise. 	Presumably, 	employees on other types of
leaves make similar commitments, 	and these serve 	as 	adequate
protection for the District. 	To believe that 	a doctor's 	note
alone makes 	an employee's promise binding, 	credits 	too much to
the magic of 	the medical 	profession.
The District's 	interpretation of 	the verification 	rule 	as
an 	implied 	term consistent with 	the 	agreement 	also 	is
unsupported by past 	practice. 	According 	to 	traditional 	labor
relations 	principles, 	a practice can be 	an implied term in 	an
agreement, 	as the District urges 	in this case, 	only if 	it is
clearly established 	and 	ascertainable 	over 	a 	period 	of 	time,
31

and 	if 	it 	is 	accepted by the parties.24 The record, 	however,
does 	not 	substantiate 	the 	employer's 	past 	practice
contention. 25
First, 	the District's 	practice was 	limited 	and varied with
respect 	to 	pre-semester verification 	for 	temporary teacher
classification 	in sick and health 	leave 	situations. 	Aside 	from
Crossan and Stroud, 	there were only four 	relevant 	absences 	in
three years, 	two of which did not 	involve advance, 	pre-semester
physician verifications. 	While it is true, 	as the District
contends, 	that the existence of exceptions does not disprove a
practice, 	there must be an ascertainable practice 	in the first
instance, 	something 	the 	respondent has not demonstrated.
Second, 	accepting Scott's misinterpretation as 	the cause
for 	one of 	the 	two 	classifications 	in 	apparent violation of 	the
District's policy, 	the correction of 	such a mistake 	reflects,
at most, 	the state of mind of the District. 	More
significantly, 	there was 	no written guideline or document,
either 	before or 	after 	the mistaken 	interpretation, 	suggesting
2 4 See, 	e.g., 	Elkouri 	and Elkouri, 	How Arbitration Works
(3d ed.) 	at pp. 	391-92. 	Also see cases cited supra, 	fn. 	21.
25Respondent was 	in error 	in 	suggesting 	in 	its 	brief 	that
the Association bore 	the ultimate burden of 	proof 	on 	the 	past
practice 	issue. 	The complaint 	alleged 	a 	change 	in contractual
policy. 	This was 	evident 	in the Association's 	prima 	facie
case. 	Once the Association 	showed that 	the employer's 	practice
cast 	a new light on the contract, 	it was 	the District's burden
to demonstrate that 	its 	actions were consistent with 	the
practice and the agreement. 	(See, 	e.g., 	fn. 	24, 	supra: 	Pajaro
- -.	Valley Unified School Dist. 	(1978) 	PERB Dec. 	No. 	51.)
32

to 	the Association 	that 	there was 	an established 	practice
implementing 	the 	contract's 	absolute 	certainty text.
Third, 	contrary to the employer's claim in its 	brief, 	the
organization's 	agreement 	cannot 	be 	implied on 	the 	basis 	of
Crossan's 	testimonial 	admission that 	she voluntarily sought 	a
doctor's 	verification because 	she 	believed 	it was 	required.
Read 	as 	a whole, 	her 	testimony indicates 	that 	she was 	referring
to 	the 	requirements 	of 	the contract's 	sick and health 	leave
provisions, 	which gave the District the discretion to 	ask for
verification. 	Hence, 	Crossan's statement 	at the hearing has
little bearing 	on the main 	issue 	in the case.
In sum, 	the District's 	requirement that a doctor's
verification be 	received before 	the 	start 	of 	the 	semester 	as 	a
precondition to hiring a temporary teacher, 	establishes by
unilateral 	action a policy that 	is 	not 	reflected 	in the
agreement, 	the negotiating history, 	or the past practice. 	The
District did not propose 	such a policy in bargaining, 	and the
Association had no 	reason to 	know this was 	the employer's
policy during 	the period 	it was 	purportedly 	in effect.
D. 	Violations
The District's unilateral decision, 	without notice or
negotiations, 	to establish a new policy that 	a 	teacher's
absence 	for 	a 	semester would be 	known with 	absolute 	certainty
only when 	a physician's verification was 	received by the
33

employer prior to 	the start of 	the semester, 	thereby changing
temporary 	teacher 	classification 	criteria 	under 	the 	contract,
constituted 	a 	refusal 	to 	negotiate 	in violation of 	section
3543.5(c). 	The District's unlawful unilateral conduct 	also
constituted concurrent violations 	of 	sections 	3543.5(a) 	and
(b), 	interfering with the representational 	rights of employees
and employee organizations.26	26
REMEDY
Section 3541.5(c) provides:
The board shall have the power 	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.
The 	traditional 	remedy 	for 	unilateral 	employer 	action
establishing 	new 	terms 	and 	conditions 	of 	employment without
notice 	and negotiations, 	is 	an order that 	the employer cease
such conduct, 	make employees whole 	for 	any 	losses 	they have
27suffered, 	and negotiate with the exclusive 	representative.
26Oakland Unified School Dist, 	v. 	Public Employment
Relations Bd.. 	supra. 	120 Cal.App.3d 1007; 	San Francisc	- - 	o
Community College District 	(1979) 	PERB Decision No. 	105.
27See Oakland Unified 	School 	District 	v. 	Public
Employment Relations Board, 	supra. 	120 Cal.App.3d at p. 	1014
34

Relief 	of 	this 	nature has 	been 	required 	in cases 	of 	unilateral
employer 	action 	affecting 	the 	assignment 	and 	allocation of 	unit
28work, 	and the resulting 	loss of unit wages or 	stipends.
The District 	argues 	that utilization of 	a 	traditional
remedial 	approach 	is 	not warranted 	in this 	proceeding. 	First,
respondent 	contends 	that McFarland 	and 	Steinberg 	should 	not 	be
made whole because 	the contract 	required 	that Crossan" and
Stroud's 	positions 	be 	filled 	by 	a 	posting 	procedure 	for
temporary teachers. 	Although the District did not 	follow the
contractual procedure in this 	instance, 	this does not justify
depriving McFarland 	and 	Steinberg 	of 	appropriate 	relief 	for 	the
work 	they 	performed.
Contrary to 	the District's 	assertion, 	there was 	sufficient
proof 	that both McFarland 	and Steinberg 	suffered 	a 	loss, 	as 	it
was undisputed that 	they worked 	in 	a 	substitute 	status 	for 	an
2 8 See, 	e.g., 	Lincoln Unified School District 	(1984) 	PERB
Decision No. 	465; Goleta Union School District, 	supra, 	PERB
Decision No. 	391; 	Holtville Unified School District 	(1982) 	PERB
Decision No. 	250; 	South Bay Union School District 	(1982) 	PERB
Decision No. 207.
35

entire semester while filling in for Crossan and Stroud.29
The District, 	in compliance with this order, 	can resume
utilization of 	the contractual 	posting 	procedure 	in 	future
semesters, 	as 	the make-whole award shall be 	limited to 	the
single 	semester of work that was 	at 	issue 	in the hearing.
Second, 	the District contends 	that 	any additional 	payment
to McFarland, 	Crossan's 	substitute, 	would amount to taking
money from Crossan. 	Thus, 	McFarland would be made whole by
raising her 	substitute 	salary to 	the 	temporary teacher 	level,
but this difference, 	under the contract, 	would decrease the pay
Crossan otherwise has 	received. 	This 	result, 	in the District's
view, 	would be too harsh. 	The short 	answer to this objection
is 	that 	the District might have 	a claim against Crossan for 	a
contractual overpayment, 	but, 	for equitable reasons related to
its 	own wrongdoing, 	the District might not 	seek to 	recoup 	from
Crossan the funds 	the District 	already has paid. 	In any event,
29For 	this 	reason, 	the District' reliance on Fair v.
Fountain Valley School District 	(1979) 	90 	Cal.App.3d 	180 	is
mistaken. 	In Fountain Valley, 	an employee who was 	not 	selected
sought make-whole relief 	for 	loss of 	a position.' 	There were
several 	other 	teachers with hiring 	rights 	comparable 	to 	those
of 	the plaintiff, 	and he had made no 	showing 	that he would have
been offered 	an available position. 	In the present dispute, 	in
contrast, 	not 	only were McFarland 	and 	Steinberg 	actually hired,
albeit 	in a disputed classification, 	but there was 	substantial
evidence 	that 	the District had 	a past practice of 	retroactively
hiring 	and 	reclassifying 	teachers who were working 	as
substitutes.
36

if 	the District does 	have 	a 	repayment claim and Crossan
advances 	an equitable or 	legal defense, 	another 	forum with
jurisdiction over 	that 	action will 	resolve 	the dispute.
Before the Board, 	however, 	in a case alleging a unilateral
change violation, 	the Association serves as the exclusive
representative. 	As 	such, 	consistent with the Association's
duty of 	fair 	representation, 	it has 	the authority recognized by
the PERB to make honest 	and 	reasonable decisions 	involving
potentially competing interests, 	even if 	such decisions may not
please 	all members 	of 	the negotiating unit 	all of 	the
time.30 The Association's 	exercise of 	its 	representational
prerogative to pursue this charge, 	and to 	seek the make-whole
- .
relief it has proposed, 	may not be pleasing to the District, 	or
to Crossan herself, 	but it is 	a course of 	action that the
Association is 	free to choose absent a showing, 	which was not
demonstrated in this case, 	that 	its decision was 	arbitrary,
discriminatory or made 	in bad 	faith.
In addition, 	the order 	should 	include 	a 	requirement 	that
the District post 	a notice incorporating 	the terms 	of 	the
order. 	The notice 	should be 	subscribed by an 	authorized 	agent
of 	the District 	indicating 	it will comply with the 	terms
thereof. 	The notice shall not be 	reduced in size. 	Posting
30See, 	e.g, 	Castro Valley Teaches Association 	(McElwain)
(1980) 	PERB Decision No. 	149; 	Rocklin Teachers Professional
Association (Romero) 	(1980) PERB Decision No. 	124; Mt. Diablo
Education Association (DeFrates) 	(1984) 	PERB Decision No. 	422.
37

such 	a 	notice will 	inform employees 	that 	the 	employer 	has 	acted
in 	an unlawful 	manner 	and 	is 	being 	required 	to 	take 	the
prescribed 	remedial 	measures. 	It 	effectuates 	the 	purposes 	of
the 	EERA 	that 	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy 	and will 	announce 	the 	District's 	readiness 	to
comply with the ordered remedy.31 31
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the entire 	record 	in the 	case, 	and pursuant 	to 	section
3541.5(c) 	of 	the EERA, 	it 	is hereby ORDERED that 	the Eureka
City School 	District 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with the Eureka Teachers Association, 	CTA/NEA, 	by
unilaterally 	establishing 	a 	policy 	to 	determine 	when 	employees
would 	be 	classified 	as 	temporary 	teachers;
(b) 	By the 	same conduct, 	denying 	to 	the Eureka
Teachers Association, 	CTA/NEA, 	the 	right 	to 	represent 	its
members; and,
(c) 	By the 	same conduct, 	interfering with 	the 	right
of 	employees 	to 	be 	represented 	by 	the 	Eureka 	Teachers
Association, 	CTA/NEA.
3 1 See 	Placerville Union School 	District 	(1978) 	PERB
Decision No. 	69; 	Pandol 	and Sons v. Agricultural Labor
Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587.
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•

2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(a) 	Upon 	request, 	meet 	and negotiate with the Eureka
Teachers Association, 	CTA/NEA, 	over the standards 	for
classifying 	employees 	as 	temporary teachers;
(b) 	Pay Lori McFarland 	and Jim Steinberg 	for 	any 	loss
of 	pay 	and other benefit(s) 	resulting 	from the District's
unilateral 	establishment 	of 	a policy to determine when
employees would be classified 	as 	temporary teachers. 	The
District's make-whole obligation to 	these employees 	shall 	be
limited to 	their 	replacement 	status 	in the 	1986 	second-semester
period;
(c) 	Pay interest 	at the 	rate of 	10 percent per 	annum
on the 	amount 	of 	backpay owed pursuant 	to 	the make-whole
provision of 	this Order;
(d) 	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 	the Notice 	is not 	reduced 	in
size, 	altered, 	defaced or covered by any other material; 	and,
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(e) 	Upon issuance of 	a final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with this 	Order 	to
the San Francisco 	Regional 	Director 	of 	the Public Employment
Relations 	Board 	in accordance with her 	instructions. 	Continue
to 	report 	in writing 	to 	the Regional Director 	thereafter 	as
directed. 	All 	reports 	to 	the Regional Director 	shall 	be
concurrently 	served 	on the 	Charging 	Party herein.
Pursuant 	to California Administrative Code, 	title 	8,
part III, 	section 32305, 	this Proposed Decision and Order shall
become 	final unless 	a party files 	a 	statement 	of 	exceptions
with the Board 	itself 	at 	the headquarters 	office 	in Sacramento
within 20 	days 	of 	service of 	this 	Decision. 	In accordance with
PERB Regulations, 	the statement of exceptions 	should identify
by page, 	citation or exhibit number 	the portions 	of 	the 	record,
if any, 	relied upon for such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close 	of 	business 	(5:00 	p.m.) 	on the 	last day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express United 	States 	mail, 	postmarked 	not 	later 	than the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement of exception 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
40

accompany each copy served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, part 	III,
sections 32300, 	32305 and 32140.
Dated: 	May 27, 	1987 Barry 	Winogra	/ 	d
Administrative 	Law Judge
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