Poway Unified School District (PERB 1050E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
POWAY 	FEDERATION OF TEACHERS,
Charging 	Party,
v.
POWAY UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No- 	LA-CE-3387
PERB Decision No. 	1050
June 	13, 	1994
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Appearances: 	Donald S. 	Raczka, 	President, 	for Poway Federation
of Teachers; 	Brown and Conradi by Clifford D. 	Weiler, 	Attorney,
for 	Poway Unified School 	District.
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Poway Federation of
Teachers 	(Federation) 	of a Board agent's partial 	dismissal
(attached hereto) 	of 	its unfair practice 	charge. 	In its 	charge,
the 	Federation alleged that 	the 	Poway Unified School 	District
(District) 	unilaterally 	changed 	its 	policy on 	teacher 	supervision
of 	student activities 	in violation section 3543.5(c) 	of 	the
Educational 	Employment Relations Act 	(EERA).1
The 	Board has 	reviewed 	the 	warning and dismissal 	letters,
the original 	and amended charges, 	the Federation's appeal, 	the
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school 	employer
to do any of 	the 	following:
(c) 	Refuse or fail 	to meet 	and negotiate 	in good
faith with an 	exclusive 	representative.
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District's 	response 	thereto and the 	entire 	record 	in this 	case.
The Board 	finds 	the 	Board agent's 	warning and dismissal 	letters
to be 	free 	of 	prejudicial 	error and adopts 	them as 	the 	decision
of 	the Board itself.
ORDER
The 	Board hereby AFFIRMS 	the 	Board agent's 	partial 	dismissal
of 	the unfair practice charge 	in Case No. 	LA-CE-3387.
Members 	Carlyle 	and Johnson 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 14, 	1994
Donald S. 	Raczka, 	President
Emily Shieh, 	Executive Director
Poway 	Federation of 	Teachers
13035 	Pomerado Road, 	Suite B
Poway, 	California 	92064-4208
Re: 	PARTIAL DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-3387, 	Poway Federation of Teachers
v. 	Poway Unified School 	District
Dear Mr. 	Raczka and Ms. 	Shieh:
In the above-referenced charge, 	the 	Poway Federation of
Teachers 	(Federation) 	alleges 	in part 	that 	the Poway Unified
School 	District 	(District) 	unilaterally 	changed a policy on 	the
supervision of 	student activities. 	This 	conduct 	is 	alleged to
violate Government 	Code 	section 3543.5(c) 	of 	the Educational
Employment Relations Act 	(EERA).
I 	indicated 	to you, 	in my attached 	letter dated March 	3,
1994, 	that the unilateral 	change allegations contained in the
charge did not 	state a prima 	facie 	case. 	You were advised that,
if 	there 	were 	any 	factual 	inaccuracies 	or additional 	facts 	which
would 	correct 	the deficiencies 	explained in that 	letter, 	you
should amend the 	charge. 	You were 	further advised that, 	unless
you amended 	these allegations 	to 	state 	a prima 	facie 	case 	or
withdrew them prior to 	March 11, 	1994, 	the allegations would be
dismissed.
On March 10, 	1994, 	you 	filed by express mail a 	first amended
charge. 	The amended charge 	does 	not 	contain significant
additional 	facts, 	but 	it does attempt 	to state a theory distinct
from the 	one stated in the original 	charge. 	While 	the 	original
charge 	argued 	that 	the District 	could not 	unilaterally 	require
supervision of 	student 	activities 	by non-volunteers, 	the amended
charge 	argues 	that 	the District 	could not 	unilaterally assign
- -supervision of student activities 	to non-volunteers. 	This 	is a
distinction without a real difference, 	however. 	To say that 	the
District 	could not 	assign non-volunteers 	to 	supervise 	student
activities would 	rob of 	its 	plain meaning the language 	in Board
Policy Section 4.205 	that 	such 	supervision 	"is 	required as 	a
condition of employment." 	If 	that 	language means anything, 	it
means 	that 	the District 	is 	not 	limited 	to assigning volunteers 	to
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supervise 	student 	activities.1 I 	am therefore 	dismissing 	the
unilateral 	change 	allegations, 	based on 	the 	facts 	and 	reasons
contained 	in 	this 	letter and my March 	3 	letter.
LA-CE-3387
March 14, 	1994
Page 	2
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations,
you may 	obtain a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in 	the 	charge by 	filing 	an appeal 	to 	the 	Board 	itself
within twenty 	(20) 	calendar days after service of 	this dismissal.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32635(a).) 	To be timely filed,
the 	original 	and 	five 	copies 	of 	such appeal must be 	actually
received by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5 p.m.) 	or sent by telegraph, 	certified or Express United States
mail 	postmarked no 	later 	than 	the 	last 	date 	set 	for 	filing.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135.) 	Code of Civil
Procedure 	section 1013 	shall 	apply. 	The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies 	of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all parties 	to the proceeding, 	and a 	"proof 	of
service" 	must 	accompany each 	copy of 	a document 	served upon a
party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32140 	for the required contents and a sample 	form.)
The 	document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file a
document with 	the 	Board 	itself, 	must be 	in writing and 	filed with
1 I t 	appears 	from 	the 	charge 	that 	the 	District 	initially
attempted 	to 	assign volunteers, 	and 	then assigned nonvolunteers
as 	necessary. 	It 	does not appear how the District 	could have
exercised 	its 	right 	to 	require 	supervision of 	student 	activities
as 	a 	condition of 	employment 	without 	assigning nonvolunteers.
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the Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of 	the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
LA-CE-3387
March 14, 1994
Page 3
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Thomas J. Allen
Regional Attorney
Attachment
cc: 	Clifford D. Weiler, 	Esq.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
March 3, 	1994
Donald S. 	Raczka, 	President
Emily Shieh, 	Executive Director
Poway 	Federation 	of 	Teachers
13035 	Pomerado Road, 	Suite B
Poway, 	California 	92064-4208
Re: 	PARTIAL WARNING LETTER, 	Unfair Practice Charge No.
LA-CE-3387, 	Poway Federation of Teachers v. 	Poway Unified
School 	District
Dear Mr. 	Raczka and Ms. 	Shieh:
In 	the above-referenced 	charge, 	the 	Poway Federation of
Teachers 	(Federation) 	alleges 	that 	the 	Poway Unified School
District 	(District) 	unilaterally changed policy on supervision of
student activities. 	This 	conduct 	is alleged to violate
Government 	Code 	section 	3543.5(c) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
My 	investigation of 	this 	allegation 	reveals 	the 	following
relevant 	facts.
The 	Federation is 	the 	exclusive 	representative 	of 	a unit 	of
the District's 	certificated employees. 	The 	collective bargaining
agreement between 	the 	Federation and 	the District provides 	in
part as 	follows, 	in 	Section VIII 	(Hours of Employment):
Teachers 	shall 	remain 	on duty after 	the 	close
of 	the 	school 	day 	long enough to ensure a
professional 	and adequate performance 	in 	the
discharge 	of 	professional 	responsibilities 	as
required 	in the 	appropriate 	job
classification 	description 	and 	specified 	in
Board 	Policy.
Section VIII 	further provides 	as 	follows:
UNAUTHORIZED 	ABSENCE
Unauthorized absence 	is 	defined as non-
performance of 	those duties 	and
responsibilities 	assigned by 	the 	District 	and
its 	representatives 	including all 	duties 	and

responsibilities 	as 	defined by 	the 	Education
Code, 	Policies of 	the Board of Education, 	the
rules and regulations of 	the District, 	and
the provisions 	of 	this 	agreement.
LA-CE-3387
March 3, 	1994
Page 	2
Unauthorized absence may 	include,
but 	is not 	limited to, 	refusals 	to
provide 	service, 	unauthorized use
of 	sick leave, 	unauthorized use of
leave benefits, 	non-attendance at
required meetings, 	and 	failing to
perform 	supervisory 	functions 	at
school-sponsored 	activities.
District 	Board 	Policy Section 	4.205 	(Teacher Responsibility)
provides 	in part as 	follows:
In addition to 	instructional 	duties,
responsibilities 	and 	tasks 	which are primary,
teachers are responsible, 	secondarily, 	for
related instructional, 	co-curricular, 	and
student 	social 	and 	recreational 	activities.
Participation 	in 	such activities 	is 	required
as 	a 	condition of 	employment 	and 	includes,
but 	is not 	limited to, 	the following
activities:
Sponsor, 	chaperon and supervise
student 	activities 	including
athletic contests, 	recitals,
theatrical presentations, 	dances,
and social 	activities.
The 	charge 	nonetheless 	alleges 	that 	the District's 	"past practice
established 	student 	activity 	supervision 	as 	a voluntary 	activity
in 	the District" 	and 	that 	the District 	unilaterally 	changed
policy by assigning 	supervision of 	student 	activities 	to 	Poway
High 	School 	teachers 	who did not volunteer.
Based on 	the 	facts 	stated above, 	the unilateral 	change
allegation does 	not 	state a prima 	facie violation of 	the 	EERA,
for 	the 	reasons 	that 	follow.
In Marysville Joint Unified School 	District 	(1983) 	PERB
Decision No. 	314 	(at pp. 	8-9), 	PERB explained as follows
(citations omitted):
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LA-CE-3387
March 3, 	1994
Page 3
An employer violates 	its 	duty 	to negotiate 	in
good 	faith when 	it 	unilaterally 	changes 	an
established policy 	affecting 	a 	negotiable
subject 	matter without 	affording 	the
exclusive 	representative 	a 	reasonable
opportunity to bargain. 	Established policy
may be 	embodied 	in 	the 	terms 	of 	a 	collective
agreement or, 	where a contract 	is silent 	or
ambiguous as 	to a policy, 	it may be
ascertained by 	examining 	past 	practice 	or
bargaining history. 	However, 	where
contractual 	language 	is 	clear and
unambiguous, 	it 	is unnecessary to go beyond
the plain language 	of 	the 	contract 	itself 	to
ascertain 	its meaning.
In Marysville. 	PERB 	found that 	the plain meaning of 	a 	collective
bargaining agreement 	that provided 	lunch breaks 	of 	"no 	less 	than
30 minutes" 	was 	not 	superseded by a 	consistent past practice 	of
55-minute lunch breaks. 	PERB concluded as 	follows 	(at p. 	10,
citation omitted):
The mere 	fact 	that 	an employer has 	not 	chosen
to enforce 	its 	contractual 	rights 	in the past
does not mean that, 	ipso facto, 	it is forever
precluded from doing so. 	Accordingly, 	we
find that 	the Association, 	by agreeing 	to a
contractual 	provision which plainly permitted
the District 	to grant 	teachers 	a 	lunch period
of 	30 minutes 	or longer at 	its discretion,
waived 	its 	right 	to negotiate 	over 	the
District's 	reduction 	of 	the 	lunch period 	to
30 minutes.
PERB 	therefore dismissed 	the 	allegation 	that 	the 	reduction of
lunch breaks 	from 55 minutes 	to 	30 minutes was 	an unlawful
unilateral 	change 	in policy.
In the present 	case, 	as 	in Marysville, 	the meaning of 	the
- -collective bargaining agreement 	is plain. 	Under Section VIII 	of
the agreement, 	teachers 	are 	required to 	remain on duty to
discharge 	responsibilities 	"specified 	in Board 	Policy." 	Board
Policy Section 	4.205 	specifies 	that 	one 	of 	those 	responsibilities
is 	to 	"supervise student activities." 	Furthermore, 	Section VIII
of 	the 	agreement 	specifies 	that 	unauthorized absence may 	include
"failing 	to perform supervisory 	functions 	at 	school-sponsored
activities." 	The plain meaning of 	the agreement, 	that
supervision of 	student 	activities may be 	required, 	is 	not
superseded by 	the alleged past 	practice 	of using volunteers, 	and
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the 	assignment 	of 	non-volunteers 	therefore was 	not 	an unlawful
unilateral 	change 	of policy.
LA-CE-3387
March 3, 	1994
Page 	4
For these 	reasons 	the unilateral 	change allegation, 	as
presently written, 	does not 	state a prima facie case. 	If 	there
are 	any 	factual 	inaccuracies 	in 	this 	letter or additional 	facts
which would correct 	the deficiencies 	explained above, 	please
amend 	the 	charge. 	The amended 	charge 	should be prepared 	on a
standard 	PERB unfair practice 	charge 	form, 	clearly 	labeled 	First
Amended Charge, 	contain all 	the 	facts 	and allegations you wish to
make, 	and be 	signed under penalty of perjury by 	the 	charging
party. 	The 	amended 	charge must 	be 	served 	on the 	respondent 	and
the 	original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you before
March 11, 	1994, 	I shall dismiss 	the above-described allegation
from your charge. 	If you have any questions, 	please 	call me at
(213) 736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
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