Butte Community College District (PERB 0743E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BUTTE 	COUNTY 	PART-TIME 	FACULTY
ASSOCIATION/COMMUNICATION 	WORKERS
OF AMERICA,
Charging 	Party,
v.
BUTTE 	COMMUNITY COLLEGE 	DISTRICT,
Respondent.
)
)
)
) 	Case No. 	S-CE-1111
PERB Decision No. 	743
June 19, 	1939
)
)
)
Appearances: 	Charles R. 	Strong, 	Representative, 	for Butte County
Part-Time 	Faculty Association/Communication Workers 	of 	America;
Brown and Conradi by William E. 	Brown, 	Attorney, 	for Butte
Community 	College 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on an exception filed by the
Butte 	County 	Part-Time 	Faculty Association/Communication Workers
of America 	(PTFA or Association) 	to 	the proposed decision
(attached hereto) 	of an administrative law judge 	(ALJ). 	The ALJ
dismissed 	the Association's 	unfair practice 	charge 	against 	the
Butte County Community College District 	(District). 	At 	issue 	is
whether 	the Association proved that 	the 	District was 	aware 	of 	the
Association's 	nonexclusive 	representational 	status 	at 	the 	time
the 	District unilaterally 	changed the method by which 	it
calculated part-time 	instructors' 	"flex-time" 	compensation.
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)
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FACTUAL 	SUMMARY
There 	is 	virtually no dispute over the 	facts 	presented by
the ALJ 	in his proposed decision; 	rather, 	the Association excepts
to the 	conclusion reached 	from those 	facts. 	Therefore, 	we adopt
the ALJ's 	factual 	summary as 	our own. 	For the 	convenience of
this 	decision, 	the pertinent facts 	are listed below.
The part-time 	faculty at 	the 	District began organizing
activities 	during fall 	1985. 	Part-time 	faculty members,
Al 	Kay and Virginia Fast, 	met with 	the District 	administrators 	on
a 	number of 	occasions 	during 	1986 	on behalf 	of 	the part-time
faculty. 	Issues 	discussed 	included 	the 	District's 	parking 	and
pay period policies. 	The 	District was 	represented at 	these
meetings 	by District Vice President Ernest Matlock. 	Matlock was
aware during these 	meetings 	that 	Kay 	and 	Fast were 	representing
the 	interests 	of part-time 	faculty 	(though 	not 	necessarily
representing PTFA as 	an 	employee 	organization—the 	key 	issue 	in
this 	case).
The 	circumstances 	giving rise to 	this 	case 	involve 	the
District's 	restructuring of what 	is 	called 	its 	"flex-time"
policy.1 This 	policy was 	utilized 	in computing 	the part-time
faculty's 	compensation. 	The method of 	computation changed 	in
spring 	1987. 	The 	alternative method of 	computation was 	quite
complicated 	and was 	not 	understood by the part-time 	faculty.
When the part-time 	faculty 	received 	their 	contracts 	for 	spring
1A complete 	review of 	the mechanics 	of 	this 	policy 	is
unnecessary 	for purposes 	of 	this 	discussion. 	A thorough 	analysis
is 	contained 	in the proposed decision.
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1987, 	many noticed that their 	"flex-time" 	contracts were either
reduced or nonexistent. 	Complaints to the District, 	through
department heads 	and Matlock's 	office, 	yielded mixed responses.
Testimony 	indicated 	that 	some 	faculty members 	were 	told 	that 	a
mistake had been made and 	it would be 	corrected, 	and others 	were
told that the mistake would not be 	corrected. 	Finally, 	in early
March, 	Fast requested a meeting with Matlock to discuss 	the part-
time 	faculty's 	concern over the 	"flex-time" 	problem. 	The meeting
took place March 24, 	1987. 	Testimony differs 	as 	to Matlock's
explanation of 	the 	change 	in policy. 	Fast 	contended that Matlock
stated that a mistake had been made, 	but 	it would not be
corrected. 	Matlock asserted 	that 	he 	fully 	explained 	the 	reasons
for the 	change. 	The ALJ 	credited Matlock and 	found that he had
explained the 	new policy to 	those 	attending the meeting. 	Matlock
refused 	to 	reconsider the decision to 	reformulate 	the 	computation
of 	"flex-time."
On July 	1, 	1987, 	the Association sent the District a letter
formally 	requesting 	recognition 	as 	a 	nonexclusive 	representative
of part-time 	faculty. 	The 	letter 	included the names 	and
addresses 	of 	the Association's 	officers 	and was 	sent 	on PTFA
stationery.
On July 	13, 	1987, 	the Association filed its unfair practice
charge 	alleging 	that 	the 	District 	violated 	section 	3543.5,
2Part-time 	faculty 	normally 	received 	both 	a 	regular 	contract
and a 	"flex-time" 	contract.
2
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subdivisions 	(a) 	and 	(b)3 of the Educational Employment Relations
Act 	(EERA)4 by 	failing to provide the Association with notice and
an 	opportunity to meet 	and 	consult with 	the 	District prior 	to
changing the 	"flex-time" 	policy.5 The District denied any
violation of 	EERA. 	A hearing on the unfair practice 	charge was
held on November 30 	and December 	1, 	1987.
The ALJ determined that, 	even though employers 	subject 	to
the 	jurisdiction of 	EERA must 	notify 	and meet with 	nonexclusive
representatives, 	the District did not violate 	its 	obligation
because 	it was not on notice, 	at the time of 	its decision to
3 3Although 	the Association's 	charge 	alleged 	a 	violation of
section 3543.5, 	subdivisions (a), 	(b), and (d), PERB issued a
complaint solely for a violation of 	subdivisions 	(a) 	and 	(b).
4The 	Educational 	Employment Relations Act 	is 	codified at
Government Code 	section 3 540 	et 	seq. 	Unless otherwise 	indicated,
all 	statutory references 	are 	to the Government Code.
Section 3543.5 provides, 	in pertinent part:
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.
5As 	discussed at 	length 	in the proposed decision, 	a public
school 	employer has 	a duty to meet 	and discuss with a
nonexclusive representative, 	upon request, 	any proposed changes
in matters 	fundamental 	to the 	employment 	relationship.
(Los Angeles 	Unified School 	District 	(1983) 	PERB Decision No.
285. )
4

change 	"flex-time" 	policy, 	that the PTFA was a nonexclusive
representative 	of 	the part-time 	faculty. 	We agree 	and write 	only
to 	address 	an area not 	covered 	in the proposed decision.6
The Association excepts 	to the ALJ's 	determination. 	It
contends 	that because 	the ALJ 	recognized 	that 	Kay 	and Fast met
with Matlock to discuss part-time 	faculty 	concerns, 	the District
was 	on notice of 	the 	existence of 	the PTFA as 	a 	nonexclusive
representative. 	Its 	exception begs 	the ultimate question 	in the
case. 	Did the Association prove, 	by a preponderance of the
evidence, 	that Matlock, 	and hence, 	the District, 	knew that Kay
and 	Fast were 	representatives 	of 	the 	PTFA when he 	met with 	them
during 	fall 	1986? 	We hold that 	it did not.
DISCUSSION
In order to establish a violation of 	section 3543.5,
subdivisions 	(a) 	and 	(b), 	the Association had the burden of
proving 	that 	the District 	failed to give 	it 	notice 	and a
reasonable 	opportunity to meet and 	consult. 	PERB Regulation
321787 provides that, 	in unfair practice complaints, 	"[t]he
charging party 	shall 	prove 	the 	complaint 	by a preponderance 	of
the evidence in order to prevail." 	It was, 	therefore, 	incumbent
upon the Association to 	introduce 	evidence that the 	District 	knew
that PTFA represented the part-time 	faculty, 	at 	the 	time 	it
66 To 	the 	extent that 	it 	is 	consistent with this discussion,
the proposed decision is 	adopted as 	the decision of 	the 	Board
itself.
7PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
5

decided to change 	its 	"flex-time" 	policy. 	The District could not
be 	required to meet and consult with the Association 	if 	it were
not 	on 	either 	actual 	or 	constructive 	notice 	that 	the Association
represented 	part-time 	faculty.
The 	facts 	surrounding the 	existence of 	PTFA as 	an
organization at the time of the change in the 	"flex-time" 	policy
are 	sketchy at best. 	The testimony of 	Kay and Fast 	indicates
that 	they met with Matlock on a 	number of 	occasions 	to 	discuss
matters 	that 	concerned part-time 	faculty. 	Noticeably absent 	is
any 	testimony that 	Matlock was 	informed 	on these 	occasions 	that
Kay 	and 	Fast were representatives 	of 	PTFA. 	Nor were any
documents 	introduced that 	indicated that PTFA, 	as 	a organization,
existed during 	1986 when Kay and Fast met with Matlock, 	or when
the decision to 	change the 	"flex-time" 	policy was 	made.
Matlock testified that, 	while he was 	aware that the part-
time 	faculty were organizing as 	early as 	spring 	1986, 	neither Kay
nor 	Fast 	indicated 	that 	they were 	acting 	in a 	representational
capacity for PTFA until the official notice of July 	1, 	1987. 	He
did, 	however, 	recognize that at the meetings, 	Kay and Fast were
requesting relief 	for all 	of 	the part-time 	faculty. 	Matlock also
testified that a number of people, 	in addition to Kay and Fast,
came 	to 	him 	"representing 	or wanting 	to 	represent part-timers."
We 	find 	that 	the Association 	failed 	to present 	sufficient
evidence to meet 	its burden. 	The 	facts 	before the Board 	indicate
only 	that 	Kay 	and Fast met with 	the 	District 	about 	issues 	of
concern to 	the part-time 	faculty and that 	the part-time 	faculty
6
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were 	in the process 	of 	organizing. 	The dearth of 	facts 	regarding
the 	status 	of 	PTFA and 	the 	testimony of Matlock are 	fatal 	to 	the
Association's 	charge.
ORDER
In accordance with the discussion above, 	the 	complaint 	in
Case No. 	S-CE-1111 	is hereby DISMISSED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
7

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BUTTE 	COUNTY 	PART-TIME 	FACULTY
ASSOCIATION/COMMUNICATION 	WORKERS
OF AMERICA,
Charging 	Party,
v.
BUTTE COMMUNITY COLLEGE DISTRICT,
Respondent.
)
)
)
)
) 	Unfair Practice
Case No. 	S-CE-1111
PROPOSED DECISION
(8/10/88)
)
)
)
)
)
)
)
Appearances: 	Charles 	Strong, 	Communication Workers 	of America,
For 	Butte 	County 	Part-time 	Faculty Association/Communication
Workers 	of America; 	Brown 	and Conradi 	by William E. 	Brown,
Butte 	Community 	College 	District
William P. 	Smith, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 13, 	1987, 	the Butte County Part-Time
Faculty Association/Communication Workers 	of 	America 	(hereafter
Charging 	Party, 	BCPTFA or Association) 	filed 	an unfair 	practice
charge with 	the 	Public 	Employment 	Relations 	Board 	(hereafter
Board 	or 	PERB) 	against 	the 	Butte Community College 	District
(hereafter Respondent, 	District or College) 	alleging violations
of sections 3543.5(a), 	(b) 	and 	(d) 	of the Educational
Employment Relations Act 	(EERA or Act). 	On September 	15,
1987, 	the General Counsel 	of 	the PERB 	issued 	a complaint
1 The 	EERA commences 	at 	section 3540 	et 	seq. 	of 	the
Government Code.
11
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.

against 	the 	College 	charging 	a 	violation of 	Government 	Code
section 	3543.5(b) 	and 	a derivative violation of 	Government 	Code
section 	3543.5(a)2. 	The Respondent's 	answer, 	filed 	on
November 	18, 	1987, 	denied any violation of 	the EERA. 	An
informal 	conference was 	held 	and 	the matter was 	not 	resolved.
A 	formal 	hearing was 	held 	on November 	30 	and December 	1, 	1987,
before 	the 	undersigned. 	Post-hearing 	briefs 	were 	filed 	and 	the
matter was 	submitted on February 9, 	1988.
INTRODUCTION
This 	unfair 	practice charge grows 	out 	of 	a 	change 	of 	policy
in the 	compensation paid 	to 	specified 	part-time 	teachers. 	The
formula 	on which 	the 	compensation 	per 	course was 	calculated was
changed without 	prior 	notice 	to 	the Charging 	Party. 	There was
2A11 	section 	references, 	unless 	otherwise 	indicated, 	are
to the Government Code. 	Sections 	3543.5(a) 	and 	(b) 	state:
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.
22

no exclusive 	representative. 	At 	the time, 	the Association was
organizing 	to 	obtain 	such 	status.
Respondent 	states 	that 	its 	obligation 	is 	only to meet 	and
discuss 	upon 	request with 	known employee 	organizations.
Further, 	it 	insists 	that notice of 	the change was 	provided 	to
each 	individual 	part-time employee via 	(1) 	the handbook, 	(2)
individual 	contract 	of 	employment, 	and 	(3) 	individual 	flextime
agreements.
The policy change was made 	in December, 	1986, 	effective 	for
the 	1987 	spring semester, 	which began on January 20, 	1987. 	No
request 	to 	discuss 	the matter was 	received 	by the 	College 	from
anyone until 	early March 	1987, 	which was 	in mid-semester. 	The
Respondent was 	not 	informed 	there was 	an employee 	organization
representing 	the 	part-time 	instructors 	until 	July 	1987.
In dispute 	is 	at what 	time 	an employer 	is under 	an
obligation to 	give 	"employee organization" 	status 	to 	a 	group 	of
employees which has 	been discussing 	terms 	and 	conditions 	of
employment.
FACTS
A. 	Jurisdiction
The 	Respondent 	is 	a 	public 	school 	employer 	and 	the Charging
Party, 	since July 1987, 	has been an employee organization, 	as
defined 	by the Act. 	Charging 	Party's 	status 	prior 	to 	July 	1987
is 	at issue.
W3

B. 	Organizational 	and Representational Activities 	- 	Background
Organizing 	activities 	were 	conducted 	among 	the 	part-time
faculty at 	the College 	at 	least 	since November 	1985. 	Al Kay, 	a
veteran 	part-time 	instructor, 	organized meetings 	of 	the
part-time 	faculty 	at 	that 	time. 	Instructors who 	attended 	such
meetings 	discussed 	various 	concerns 	of 	the 	part-time 	faculty
about 	their 	conditions 	of 	employment. 	A proposed 	change 	in
parking 	arrangements was 	one 	of 	the most 	immediate 	concerns.
Kay, 	speaking 	for 	the 	part-time 	faculty concerns 	on 	this
subject, 	met with 	administrative 	representatives 	of 	the College
for 	the 	first 	time 	in the 	spring of 	1986. 	No 	formal
organization 	existed, 	but 	Kay claimed 	to 	be 	the 	spokesperson of
the part-time faculty. 	He, 	together with others, 	specifically
Virginia 	Fast, 	also 	a part-time 	instructor, 	simply brought 	to
the 	attention of 	the 	administration 	specific 	concerns 	of 	the
part-time 	faculty 	regarding 	parking 	conditions. 	During 	1986
and 	1987 	several 	other 	meetings 	occurred with Kay 	and 	others
and 	representatives 	of 	the College. 	At 	these meetings 	various
issues 	of 	concern 	to 	the part-time 	faculty members were
discussed. 	One subject, 	for example, 	was 	a proposal 	that the
District 	change 	the date 	that 	the 	first 	paychecks 	of 	the
semester 	be 	available.
They made no 	formal 	request 	of 	the College, 	prior 	to
July 1, 	1987, 	that 	they be 	recognized 	as 	either 	an employee
A
	4

organization within 	the meaning 	of 	the EERA or 	as 	agents 	or
representatives 	of 	the 	BCPTFA or 	the Communication Workers 	of
America.
In 	the 	fall 	of 	1986 	Kay 	and 	Fast 	requested 	and 	received 	a
list 	of 	the part-time 	instructors 	from Mr. 	Ernest Matlock, 	a
College 	vice 	president. 	They 	received 	a 	second 	list 	in 	the
spring 	of 	1987. 	They used the College mail 	distribution 	system
to 	contact 	faculty 	in both 	1986 	and 	1987. 	They collected
employee 	signature 	authorization 	cards 	on 	campus 	during 	the
fall 	semester 	of 	1986 	and 	spring 	of 	1987.
It 	is 	found 	that Kay 	and Fast 	had 	the 	intent 	of 	becoming 	an
employee 	organization 	and 	representing 	employees 	on 	employment
matters 	and 	began 	to 	take 	actions 	manifesting 	this 	intent 	at
least 	as 	early as 	the fall of 	1986.
C. 	District 	Knowledge 	of Activities
Matlock met with Kay and Fast, 	at 	their 	request, 	during 	the
spring 	and 	fall 	of 	1986 	concerning 	parking 	spaces 	and 	the 	pay
periods 	for 	part-timers. 	He understood 	they were 	seeking
changes 	in 	the current 	College polices 	on both of 	these
subjects 	not 	just 	for 	themselves, 	but 	for 	the part-time 	faculty
as 	a whole. 	He also met with Kay and Fast, 	at their 	request,
on March 24, 	1987 	regarding 	flextime policy. 	He 	supplied 	them
with 	a 	copy of 	the 	policy on 	flextime.
5

It 	is 	found 	that 	the personal 	knowledge of Vice President
Matlock 	that 	Kay 	and Fast, 	on occasion 	in conjunction with
others, 	were 	ad hoc 	spokespersons 	for certain part-time 	faculty
regarding work related concerns, 	was 	imputed 	to 	the College.
These concerns 	included: 	(1) 	the 	school's 	parking policies,
since spring 	1985, 	(2) 	the pay-period policies, 	since 	fall 	1986
and 	(3) 	flextime policies, 	since March 24, 	1987. 	There is no
evidence 	the 	employer was 	aware of 	their 	use 	of 	the mail 	system
and 	no 	evidence 	of 	any 	sort 	the employer was 	aware 	of 	their
solicitation 	of 	authorization cards 	on 	campus.
It 	is 	found 	that 	the District 	met with Kay 	and 	Fast 	and
others, 	starting 	in the 	spring of 	1986, 	and discussed work
related 	concerns 	whenever 	requested 	by 	them 	and 	provided
appropriate 	and 	accurate 	information upon 	their 	request. 	The
employer 	knew of 	various 	ad 	hoc 	representational 	activities 	of
Kay 	and 	Fast 	on behalf 	of 	part-timers 	prior 	to 	the
implementation of 	the 	policy change.
D. 	Flextime 	Policy 	(1985-1986)
The 	College 	finances 	its 	instructional 	programs with
funding 	it 	receives 	from the State of 	California, 	school
district taxes, 	contracts with other 	agencies, 	student 	fees 	and
various 	other 	sources. 	For 	funding, 	as well 	as 	for other
purposes, 	the 	types 	of 	courses 	offered 	are divided 	into 	three
general 	categories. 	Each category has 	a different 	type of
66

V
attendance 	accounting.
Beginning 	in 	the fall 	of 	1985, 	the College paid 	the
part-time 	instructors 	on 	an 	hourly basis 	not 	only 	for 	their
actual 	student 	contact 	hours 	but 	for 	a 	specified 	amount 	of
extra 	hours 	each 	semester. 	These 	extra 	hours were 	called
flextime 	and were 	for 	the purpose 	of 	such 	instructors' 	engaging
in 	"instructional 	improvement" 	activities.3
The 	state 	funding 	allowed 	such payment 	of 	flextime 	but 	did
so 	under 	a 	rather 	complicated 	formula 	that was 	based 	on
variations 	in the 	actual 	number of 	class 	hours 	taught 	in 	a
given 	semester.4 In order 	to make 	its 	flextime 	policy
understandable 	the 	College 	assigned 	one 	flex 	hour 	per 	semester
for each semester unit 	taught. 	Therefore, 	a part-time
instructor who 	taught 	a 	three-unit 	course 	for 	a 	semester
received 	three 	flex or 	extra 	hours 	of 	payment 	if 	he/she 	engaged
in 	"approved 	instructional 	improvement" 	activities 	during 	the
semester.
To 	facilitate 	the 	instructors' 	planning 	for 	these
activities 	the College publishes, 	in 	advance of 	the 	academic
year, 	a booklet of meetings, 	seminars and workshops, 	attendance
3 See California Administrative Code, 	Title 	5, 	section
55720, 	et. 	seq.
4 The 	number 	of 	class 	hours 	taught 	each 	semester
fluctuates 	based 	on 	the manner 	in which holidays 	affect 	the
school 	academic 	schedule.
7

at which may be used 	to meet 	this 	"instructional 	improvement"
requirement. 	This 	flextime 	policy continued 	in 	effect 	for 	the
Fall, 	1985, 	Spring, 	1986 and Fall, 	1986 semesters.
E. 	Change 	in Flextime 	Policy 	(Spring 	Semester 	1987)
Under 	the 	above described policy 	it was 	possible, 	under
some calendar circumstances, 	for 	the College 	to 	pay to 	the
part-time 	instructor more 	money 	that 	it 	received 	from the
State. 	In order 	to 	avoid 	this 	result 	the College 	changed 	the
flextime policy, 	effective with the Spring 	semester, 	1987.
Under 	the 	new policy 	flextime was 	distributed 	only 	to 	the
extent 	that 	the 	payment 	of 	teaching 	hours 	plus 	flextime 	hours
did 	not 	exceed 	the money 	received 	from the 	State 	for 	that
course.
The 	Spring, 	1987 	flextime policy continued 	for 	that 	one
semester 	only. 	The College 	returned 	to 	the 	1985-86 	policy
beginning with the fall 	semester, 	1987. 	The difficulty in
explaining 	the 	new policy was 	one 	of 	the 	reasons 	cited 	for 	the
return 	to 	the 	previous 	policy.
F. 	Notice 	of Modification of 	Flextime Computation
The 	College 	did 	not 	directly communicate 	to 	either 	the
Association 	or 	to 	the 	instructors 	the 	fact 	that 	it 	had modified
the 	amount 	of 	flextime 	to 	be 	assigned 	individual 	courses.
Indeed, 	there 	is 	no evidence 	of when the 	association came 	into
existence 	and claimed 	the 	right 	of 	representation, 	other 	than
its 	letter 	to the College of 	July 1, 	1987. 	The 	results 	of 	this
8

modification 	did 	appear 	in 	the 	individual 	1987 	spring 	semester
contracts 	tendered 	by the 	College 	to 	each 	part-time 	instructor.
G. 	Contracts 	of 	Employment
The 	College 	employs 	both 	full-time 	and 	part-time
instructors. 	Full-time 	instructors 	are 	paid 	on 	an 	annual
salary basis. 	The 	part-time 	instructors 	are 	paid 	on 	an hourly
basis 	and 	are 	employed 	pursuant 	to 	new 	individual 	contracts
prepared 	and 	signed 	each 	semester. 	These 	individual 	contracts
specify the 	total 	hours 	of 	employment, 	the 	rate of 	compensation
per hour, 	and the course(s) 	to be taught. 	The contract 	also
specifies 	the dates 	and 	hours 	of 	classroom 	instruction 	for 	each
course(s) 	and 	the 	number 	of units 	of 	college 	credit 	assigned to
each course. 	Each 	instructor 	is 	also 	assigned 	a 	specific
number 	of 	flextime 	hours 	commensurate with 	his/her 	courseload,
at 	his/her 	regular 	rate of 	pay.
H. 	Instructors' 	Receipt of Contracts 	for Spring. 	87 Semester
1. 	Instructor Al 	Kay was 	tendered 	a 	contract 	by the
College 	for 	the 	1987 	spring 	semester. 	This 	contract 	included
no 	flextime 	for 	courses 	for which he 	had 	previously would 	have
received 	flextime. 	Kay did 	not 	understand 	that 	the 	tendered
contract 	reflected 	a modification of 	the 	flextime 	policy.
2. 	Instructor Virginia 	Fast 	received 	her 	1987 	spring
semester contract 	in December of 	1986 	or January of 	1987, 	she
noticed 	that 	the 	flextime was 	less 	than 	she 	anticipated. 	Her
99

contract 	provided 	for 	only three 	hours 	of 	flextime 	for 	nine
hours 	of 	coursework. 	When teaching 	the 	same 	courses 	the
previous year 	she 	received nine hours 	of 	flextime. 	She
assumed 	it was 	simply a mistake 	in the contract. 	The 	semester
started 	on January 20. 	She brought 	the 	subject 	up when her
division held 	a meeting 	on January 	15. 	She called 	the 	contract
to 	the 	attention of 	the chair of 	her department, 	who 	then 	sent
it 	to 	the dean. 	She got 	a note back saying that 	it was 	a
mistake 	but 	that was 	the way that 	the contract was 	going 	to 	be,
that 	she would 	have 	to 	sign 	the 	contract 	in order 	to 	get 	paid.
Therefore, 	in early March 1987, 	Fast 	and Kay asked to meet
with Matlock on 	the 	subject 	of 	flextime. 	Matlock met with 	them
on March 	24, 	1987 	and gave 	them a document 	that 	he used 	to
explain 	the modification of 	the 	flextime policy 	as 	it 	related
to 	the 	category of 	courses 	in question. 	Fast 	insisted 	that
Matlock told her 	at 	that 	time 	that 	his 	staff 	had made 	a mistake
in computing 	the 	hours 	of 	flextime when 	they wrote 	the
contracts. 	However, 	it was 	too 	late 	and the errors were too
widespread 	for 	him to 	correct 	the mistake. 	Matlock 	insists 	he
gave Kay 	and Fast 	a 	correct 	description of 	the modification 	of
the 	flextime 	policy 	and 	that 	he did not 	say that 	a mistake 	had
been made 	in preparing 	the contracts. 	To 	the contrary, 	he 	said
what 	he did 	say was, 	if 	any errors were 	found 	in 	any
instructor's 	contracts, 	the College would correct 	them
retroactively as 	it 	always 	had done 	in the past. 	Referring 	to
10

the 	document 	he 	used 	in the meeting, 	he 	credibly explained 	how
he described 	the modification 	in 	the 	flextime 	policy 	to 	Kay 	and
Fast. 	It 	is 	found 	that Matlock correctly described 	the 	new
policy.
Fast 	did 	not 	understand 	the document when 	she 	received 	it
and, 	at 	the time of 	the hearing, 	still didn't. 	She complained
that 	it was 	a 	policy change 	and 	she 	hadn't 	been 	informed 	about
it 	and 	that 	she 	had 	already performed 	the 	flextime. 	She 	turned
in 	a 	complaint 	through College channels. 	It was 	returned with
the 	answer 	that 	the College 	followed 	the 	policies 	and
procedures 	in force 	at 	that 	time.
3. 	Instructor 	Inge 	Schmidt 	has 	been 	a part-time
instructor 	at 	Butte College 	for 	the 	last 	two 	and 	one-half
years. 	Her understanding 	of 	the 	flextime 	policy was 	that 	if
she 	taught 	nine 	semester 	units, 	she would 	receive nine hours 	of
flextime. 	If 	she 	taught 	one 	semester unit 	she would 	receive
one unit of 	flextime. 	In the spring of 	1987, 	she taught 	nine
units. 	She had 	previously taught 	the 	same 	nine units 	and had
received nine hours 	of 	flextime. 	She was 	not 	told prior 	to 	the
spring 	semester 	of 	1987 	that 	she would 	not 	be 	earning 	the 	same
flextime 	for 	teaching 	the 	same number of 	hours 	and units. 	When
she 	received 	her 	contract 	for 	spring 	semester 	in December 	of
1986, 	she became 	aware 	a 	flextime contract was 	not 	attached.
11

Based 	on past 	practice 	she expected 	to 	receive 	two 	contracts. 	A
contract 	for 	teaching 	and 	a 	separate 	contract 	for 	flextime.
While 	they might 	have been 	separate contracts, 	she would
receive 	them at 	the 	same 	time. 	She called 	the 	office of
Tom O'Connor, 	the dean of 	the Evening College, 	and was 	told
that 	there was 	no 	flextime 	provided 	for 	her 	spring 	schedule
because 	" . . . 	all 	of 	the 	available hours 	are 	being 	taught,
therefore 	there was 	no 	extra 	time 	for 	flextime or
something 	. 	. 	. 	." 	She didn't understand the new formula.
This 	conversation occurred 	in January of 	1987.
4. 	Instructor 	Paula 	Busch has 	been 	a 	part-time 	instructor
at 	the College 	for 	four years. 	Her 	contract 	for 	the 	spring
semester 	of 	1987, 	showed 	ten hours 	of 	classroom teaching 	time.
Ten hours 	of 	flextime was 	originally on 	the contract 	but was
crossed 	out. 	She 	first 	raised 	the 	issue 	at 	her 	departmental
meeting 	chaired 	by Jeff 	Nelson. 	Fred Allen, 	the 	associate 	dean
of 	her 	teaching 	area, 	attempted 	to explain 	it 	to 	the 	group.
After 	hearing Allen's 	explanation, 	she 	still 	didn't 	understand
it.
5. 	Instructor Marjorie McMarion, 	a 	part-time 	instructor
for eleven years 	at 	Butte College, 	teaches 	a basic nutrition
course. 	For 	spring 	semester, 	1987 	she was 	paid 	for 	the 	same
total 	number 	of 	hours 	as 	she had 	received payment 	for 	in 	1985.
the difference was 	that 	the 	hours 	during 	the 	spring 	semester,
1987, 	were 	all 	straight classroom teaching hours. 	When she
taught 	the 	same course 	in 	1985 	under 	the prior 	policy, 	she
12

taught 	seven 	hours 	less 	and was 	assigned 	seven 	flextime 	hours.
I. 	Request 	for Recognition
By a 	letter dated July 1, 	1987, 	to Matlock, 	the Charging
Party 	informed 	the Respondent 	of 	its 	request 	for 	recognition 	as
follows:
Dear Mr. 	Mattlock:(sic)
The 	Butte 	County 	Part-Time 	Faculty
Association/Communications 	Workers 	of 	America 	requests
recognition 	as 	an employee 	organization 	to 	represent
part-time 	faculty at 	Butte College.
Our 	representatives 	are Al Kay, 	Chair; 	and
Virginia Fast, 	Co-Chair; 	and Don Brooks, 	President
CWA Local 	9414. 	Our mailing 	address 	is
1009 	Sycamore Street; 	Chico, 	CA 95928. 	Our telephone
number 	is 	891-4543.
On August 	11, 	1987, 	the Charging Party sent Matlock a
follow-up 	letter 	saying:
Dear Mr. 	Mattlock:(sic)
Today 	I 	talked with Mr. 	Terry Lindsay of 	the
Public 	Employment 	Relations 	Board.
Mr. 	Lindsay told me you were uncertain 	about
my 	letter of July 1, 	1987, 	requesting 	that
you 	recognize us 	as 	an employee
organization, 	and my follow-up 	letter 	of
July 19, 	1987.
These 	requests 	for 	recognition were 	informal
requests 	to 	assure us 	the 	right 	to meet 	and
confer 	informally with you 	and 	other
administrators 	at 	Butte 	and 	access 	to 	the
privileges 	given 	all 	other 	campus
organizations. 	We 	also wanted 	to make
certain you 	know who 	our 	representatives
were 	and 	how to 	contact 	our 	organization.
The 	formality of 	the written 	request was 	for
our 	records 	and yours. 	As you 	recall, 	we
agreed on July 1, 	1987 	to meet 	and confer
13

informally 	as 	we 	have 	before 	and 	and 	[sic]
since 	that meeting. 	We 	appreciate your
willingness 	to 	meet with our
representatives.
If we can assist you 	in any way, 	please do
not 	hesitate 	to contact 	us.
ISSUE
Did 	the 	Respondent, 	when 	it 	failed 	to 	notify the Charging 	Party
prior 	to 	the 	time 	it 	changed 	the 	flextime 	policy 	for 	its
part-time employees, 	violate 	the Charging 	Party's 	right 	to
represent 	its members? 	If 	it did, 	was 	this 	also 	a derivative
violation 	of 	section 	3543.5(a)?
CONCLUSIONS 	OF 	LAW AND 	DISCUSSION
A. 	Status 	of 	Nonexclusive Representative
EERA guarantees 	a 	nonexclusive 	representative 	certain
statutory rights 	e.g., 	the 	right 	to 	represent 	its members, 	the
right of 	reasonable 	access 	to 	school 	facilities, 	and 	the dues
deduction.5 In addition, 	the Board has held that, 	so 	long
53543.1. 	RIGHTS OF EMPLOYEE ORGANIZATIONS
(a) 	Employee organizations 	shall 	have 	the
right 	to 	represent 	their members 	in 	their
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
14

as 	no 	exclusive 	representative 	exists 	a 	nonexclusive
representative 	has 	the 	right 	to 	represent 	its 	members
in grievance procedures. 	See Mt. 	Diablo Unified
School District, 	et al. 	(1977) EERB Decision No. 	44.
Clovis 	Unified 	School 	District 	(1984) 	PERB Decision
No. 	389 	and 	Santa Monica 	Community College 	District
(1977) 	PERB Decision No. 	103.
school 	employer. 	Employee organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and may make 	reasonable
provisions 	for 	the dismissal 	of 	individuals
from membership.
(b) 	Employee organizations 	shall 	have 	the
right 	of 	access 	at 	reasonable times 	to 	areas
in which employees work, 	the 	right to use
institutional bulletin boards, 	mailboxes,
and other means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose of 	meetings 	concerned with
the 	exercise of 	the 	rights 	guaranteed 	by
this 	chapter.
(c) 	A 	reasonable number 	of 	representatives
of 	an exclusive 	representative 	shall 	have
the 	right 	to 	receive 	reasonable periods 	of
released 	time without 	loss 	of 	compensation
In 	Los Angeles Unified 	School 	District 	(1983)
PERB Decision No. 	285, 	the Board did not decide 	the
full 	parameters 	of 	the 	nonexclusive 	representatives'
rights 	but 	held 	that 	they did 	include the 	right 	to
meet 	and discuss 	subjects 	that 	are 	as 	fundamental 	to
the 	employment 	relationship 	as wages 	and 	fringe
15

benefits.
when meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
(d) 	All 	employee organizations 	shall 	have
the 	right 	to 	have membership dues 	deducted
pursuant 	to Sections 	13532 	and 	13604.2 	of
the Education Code, 	until 	such time as 	an
employee 	organization 	is 	recognized 	as 	the
exclusive 	representative 	for 	any of 	the
employees 	in an appropriate unit, 	and then
such deduction 	as 	to 	any employee 	in 	the
negotiating unit 	shall 	not 	be 	permissible
except 	to 	the exclusive 	representative.
The 	leading 	Board-precedent 	decision under 	the 	Ralph
C. 	Dills Act,66 the companion 	law to EERA, 	on the 	subject of
the 	employer's 	duty to 	a 	nonexclusive 	representative 	is
Professional 	Engineers 	in California Government 	(PECG) 	(1980)
PERB Decision No. 	118-S; 	section 3515.5 	on which the Board
relied 	is 	identical 	to 	section 3543.l(a) 	of EERA. 	In PECG.
supra, 	the Board 	stated:
We stress, 	however, 	that the obligation
imposed 	on 	the 	state 	employer 	to meet with 	a
nonexclusive 	representative 	is 	not 	the 	same
as 	that 	imposed with 	regard 	to 	an exclusive
representative. 	Thus, 	whereas 	the Governor
and 	representatives 	of 	recognized 	or
certified 	employee 	organizations 	"have 	the
mutual 	obligation 	personally to 	meet 	and
confer 	[in good 	faith] 	promptly upon 	request
. 	. 	." 	the Board finds that the obligation
imposed 	by 	the 	statute 	on 	the 	state 	employer
with 	respect 	to 	nonexclusive 	representatives
6The Ralph C. 	Dills Act 	commences 	at 	section
3512 	of 	the Government 	Code 	and 	applies 	to 	State
employees.
-
16

is 	to 	provide 	a 	reasonable opportunity to
meet 	and 	discuss 	wages 	with 	them prior 	to
the 	time 	the employer 	reaches 	or 	takes
action on 	a 	policy decision.
As 	flextime 	policies 	are 	directly 	involved with 	both
hours 	and wages 	there 	is 	little doubt 	that 	these
policies 	fall 	within 	the 	above described 	general
parameters.
Thus 	it 	is 	concluded 	that 	the District 	had 	a duty
to 	meet 	with 	and 	discuss 	contemplated 	modifications
in policies 	such 	as 	flextime with 	any nonexclusive
representative 	it was 	aware of.
B. 	Notice
An 	employer must 	be 	put 	on notice 	that 	an
employee 	organization 	is 	assuming 	a 	representational
role 	on behalf 	of 	specified 	employees 	in order 	for
that 	employer 	to 	be 	obligated 	to 	notify 	such
organization prior 	to 	a 	policy modification or
implementation 	that 	affects 	such employees.
Charging 	Party argues 	that 	a 	formal 	request 	for
recognition 	is 	not 	a 	requirement 	for 	the 	attainment
of 	employee organization 	status. 	It 	correctly cites
Monsoor v. 	State of California 	(1982) 	PERB Decision
No. 	228-S 	for 	this 	proposition. 	That case 	sets 	forth
the minimal 	requirements 	necessary 	to 	attain 	employee
organization status. 	However, 	Monsoor does not
address what 	an employee organization, 	however
17

minimally formed, 	must 	do 	to 	impose on the employer
the 	duty of 	prior 	notification of 	changes 	in working
conditions. 	Numerous 	individuals may be acting, 	at
any given time, 	on behalf 	of 	themselves 	and other
fellow workers, 	in the employer-employee 	relations
field. 	To 	impose on the employer 	a duty to 	give 	all
such 	individual(s) 	notice prior 	to 	all 	policy
modifications 	or 	implementations 	arguably within 	the
scope 	of 	representation would 	impose 	an 	impossible
and 	unreasonable 	burden.
Numerous 	Board 	cases 	have dealt with 	the 	issue 	of
notice 	prior 	to 	unilateral 	changes 	in working
conditions. 	All 	of 	these cases 	hold that 	the
employer 	has 	a duty to 	first 	give notice of 	any
proposed 	policy modifications 	or 	implementations 	to
any existing 	employee 	organization(s) 	in order 	for
such organization(s) 	to 	effectively exercise 	their
right 	to meet 	and discuss7 by 	first making 	a 	timely
request 	to do 	so. 	None of 	these Board cases 	have
dealt with 	the 	issue presented here: 	when 	is 	the
employer 	charged with 	knowledge 	of 	the 	existence 	of
the 	employee 	organization?
70r 	to 	negotiate 	in 	the case 	of 	an exclusive
representative.
18

In 	State 	of 	California 	(Franchise 	Tax 	Board)
(1982) 	PERB Decision No. 	229-S 	the Board discussed 	a
right of 	prior notice 	in 	its 	rationale, 	but 	it was
dicta 	to 	the 	facts 	and 	issue of 	the case. 	The 	issue
did 	not 	involve 	the 	failure 	of 	the 	employer 	to 	give
notice. 	The employer did not 	give prior 	notice. 	The
employees 	had 	learned 	about 	the 	proposed 	change 	by
rumor. 	Their agent, 	a nonexclusive representative,
had 	requested 	and 	been 	granted 	a 	meeting with 	the
employer 	to 	urge modification to 	the plan. 	The Board
held 	that 	the 	employer 	had 	not 	committed 	an unfair
practice 	because 	it 	had met with 	the 	employee
organization 	and 	considered 	its 	concerns.
C. 	Regulations 	Re 	an Analogous 	Circumstance
PERB 	regulations 	provide 	that 	an employee
organization 	shall 	serve 	the 	employer with 	a written
request when 	attempting 	to 	obtain 	recognition 	as 	the
exclusive 	representative 	of 	an 	appropriate unit 	of
employees.18 The 	request 	must 	describe 	the 	unit 	of
employees 	the organization claims 	to 	represent, 	the
officers 	and 	the 	address 	at which 	the 	organization
8see	Bsee 	California Administrative Code, 	title 8, 	part 	III,
section 33050 	et 	seq.
19

may be 	contacted. 	This 	process 	is 	the 	first 	formal 	step 	in the
attainment 	of 	exclusive 	representative 	status. g These
regulations 	assume 	an employee organization's 	interest 	in
attaining 	exclusive 	representative 	status. 	Experience
indicates 	they 	serve well 	for 	that 	purpose. 	Conforming with
these 	regulations 	lends 	precision 	to 	the 	employee 	organization
recognition process. 	After 	a 	proper written 	request 	has 	been
transmitted 	and 	received 	the 	employer 	is 	aware 	of 	the unit 	of
employees 	the organization claims 	to 	represent, 	as well 	as 	the
officer(s) 	and/or 	agent(s) 	to contact 	and as well 	as where
communications 	or 	notices 	are to be 	sent.
D. 	Effect of July 1. 	1987 Letter
As 	stated 	above, 	it 	is 	not 	necessary to 	submit 	the 	section
33050 	notice 	in order 	to 	obtain employee 	organization 	status.
However, 	in order 	to 	impose 	a duty on the employer 	to provide
prior 	notice 	some 	sort 	of 	communications 	must 	be 	given 	to 	the
employer 	setting 	forth 	the 	same 	information 	required 	by 	that
regulation. 	As 	the Charging 	Party's 	letters 	to 	the Respondent
on July 1, 	1987, 	and August 	11, 	1987, 	supplied it with the
requisite 	information, 	it 	is 	held that 	the employer was 	under
9If 	the employer has doubts 	as 	to: 	(1) 	the
appropriateness 	of 	the unit 	sought 	to 	be 	represented 	or;
(2) 	the 	support 	of 	a majority of 	employees 	in the proposed unit
for 	the 	organization claiming 	such 	representation, 	or 	if 	other
employee organization(s) 	intervene, 	the employer 	or 	employee
organization(s) 	can 	invoke the processes 	of 	the PERB 	to 	resolve
the matter 	by asking 	for 	an 	investigation 	and 	findings. 	The
PERB may hold 	an election(s) 	among 	the 	employees 	as 	necessary.
20

a duty as 	of 	July 1, 	1987, 	to 	provide prior notice of 	any
policy modifications 	or 	implementations.
E. 	Effect 	of Meet 	and Confers 	Prior 	to July 	1. 	1987
Prior 	to July 1, 	1987, 	the 	record does not 	indicate 	that
Kay, 	Fast, 	or 	anyone else, 	told the employer that Kay and/or
Fast 	considered 	themselves 	an 	employee 	organization within 	the
meaning 	of 	the Act 	and 	expected 	to 	be 	granted 	rights
appertaining 	thereto. 	The 	District's 	management 	reasonably
assumed 	that 	the meetings 	held with 	them were 	at 	an 	informal
supervisor-subordinate 	level. 	The 	subjects 	of 	the meetings
were 	the 	subjects 	requested 	by Kay and 	Fast. 	Not 	until 	the
July 1, 	1987, 	letter, 	in which 	recognition as 	an employee
organization was 	requested, 	did the Respondent 	have notice 	of
the desire 	of 	Kay and Fast 	et 	al. 	to constitute 	an employee
organization under 	the Act. 	To 	impose 	a duty on an employer 	to
notify employee(s) 	who 	have 	not claimed 	status 	as 	an
representative 	employee 	organization prior 	to 	making 	a
unilateral 	change 	in working conditions, 	would place 	an unfair
burden on the 	employer. 	Questions 	regarding when 	and 	how
compliance with 	such 	obligation 	had 	occurred 	would 	lead 	to
endless 	uncertainty 	and 	litigation.
The 	meetings 	requested 	by Kay 	and Fast with 	a
representative of 	the College prior 	to 	the July 	1, 	1987 	notice
to 	the College were 	not 	sufficient 	to 	charge 	the College with
notice of 	the 	existence 	of 	an employee organization. 	In 	short,
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the College, 	during 	the efforts 	of 	Kay 	and Fast 	to 	create 	an
employee 	organization, 	properly took a 	hands-off 	stance 	toward
the 	organizational 	activities 	providing 	only 	such 	services 	and
information 	as 	lawfully appropriate. 	Until 	the 	letter 	of
July 1, 	1987, 	it had no notice of 	the existence of 	an employee
organization 	as 	defined 	in the Act. 	It 	therefore had no
obligation to 	provide 	it with prior notice 	of 	a 	change 	in
working 	conditions. 	In the 	absence of 	such obligation 	its
failure 	to 	provide 	such notice was 	not 	a violation of
section 	3543.5(b)
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the entire 	record 	in this matter, 	Unfair Practice
case No. 	S-CE-1111, 	Butte County Part-time Faculty Association
Communication Workers 	of America 	v. 	Butte Community College
District, 	and 	the 	companion PERB 	complaint 	are 	hereby DISMISSED,
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
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document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of 	business 	(5:00 	p.m.) 	on the 	last 	day set 	for
filing, 	" . . . 	or 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
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on 	a 	party or 	filed
with 	the 	Board 	itself. 	See 	California Administrative Code,
title 8, 	part 	III, 	section 32300, 	32305 and 32140.
Dated August 	10, 	1988
WILLIAM P. 	SMITH
Administrative 	Law 	Judge
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