Pasadena Community College District (PERB 1098E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PASADENA CITY 	COLLEGE 	CHAPTER OF
THE CALIFORNIA TEACHERS ASSOCIATION,
Charging 	Party,
v.
PASADENA COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3271
PERB Decision No. 	1098
May 3, 	1995
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Appearances: 	California Teachers 	Association by 	Charles 	R.
Gustafson, 	Attorney, 	for Pasadena City College Chapter of 	the
California Teachers Association; 	Liebert, 	Cassidy & Frierson by
Larry J. 	Frierson, 	Attorney, 	for Pasadena Community College
District.
Before Blair, 	Chair; 	Carlyle, 	Garcia, 	Johnson and Caffrey,
Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Pasadena City
College 	Chapter 	of 	the 	California Teachers Association
(Association) 	of a PERB administrative 	law judge's 	(ALJ) 	proposed
decision 	(attached hereto). 	In the proposed decision, 	the ALJ
dismissed 	the Association's 	unfair practice 	charge 	which alleged
that 	the 	Pasadena 	Community College District 	(District) 	violated
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(EERA)1 when 	it 	unilaterally 	changed 	the 	rate 	at
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:

which 	instructors 	were 	compensated 	for 	teaching 	not-for-credit
classes 	in 	the 	contract 	education program and 	refused 	the
Association's 	demand 	to 	negotiate 	over 	the 	change.
It 	shall 	be 	unlawful 	for a public 	school
employer 	to 	do 	any 	of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(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.
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	Association's 	exceptions2 and 	the 	District's
response 	thereto. 	The Board 	finds 	the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law 	to be 	free 	of 	prejudicial 	error and adopts
them as 	the 	decision 	of 	the 	Board 	itself.
2 The Association, 	on appeal, 	raises 	the argument 	that 	the
ALJ 	allowed 	the 	District 	to 	improperly 	question 	an Association
witness 	in an attempt 	to 	show 	the 	witness's 	hostility 	or bias.
The 	Association makes 	the 	statement 	that 	"[u]ncalled 	for
harassment 	of 	witnesses 	should 	not 	be 	permitted." 	A 	review 	of
the 	transcript 	and 	the 	record 	does 	not 	support 	the 	Association's
contention 	that 	the 	"tenor" 	of 	the District's 	questions 	was
prejudicial.
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ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3271 are hereby DISMISSED.
Chair Blair and Member Carlyle 	joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 	4.
Member Caffrey's 	dissent begins 	on page 	8.
W
	3

GARCIA, 	Member, 	dissenting: 	The charge in this case should
have been held 	in abeyance 	in deference 	to 	the parties'
contractual 	grievance procedure. 	The 	Public Employment 	Relations
Board 	(PERB or Board) 	should hold the 	case until 	the grievance
procedure 	is 	exhausted or pursuit 	is 	shown to be 	futile.
Judicial 	policy 	in California 	directs 	courts 	to 	refrain 	from
considering disputes until 	the parties 	to 	the dispute have
exhausted 	internal 	remedies 	under 	the 	terms 	of 	their grievance
agreement. 	For example, 	in Cone v. 	Union Oil Co. 	(1954) 	129
Cal.App.2d 558 	[277 	P.2d 464], 	the Court of Appeal held that:
It 	is 	the general 	rule 	that a party to a
collective 	bargaining 	contract 	which provides
grievance 	and arbitration machinery 	for 	the
settlement 	of disputes within the 	scope of
such 	contract must 	exhaust 	these 	internal
remedies before 	resorting 	to 	the 	courts 	in
the absence 	of 	facts which would excuse 	him
from pursuing 	such remedies. 	[Citations.]
. 	. 	. 	Such procedures, 	which have been worked
out 	and adopted by 	the parties 	themselves,
must 	be 	pursued 	to 	their 	conclusion before
judicial 	action may be 	instituted unless
circumstances 	exist 	which would 	excuse 	the
failure 	to 	follow through with 	the 	contract
remedies. 	[Id. 	at pp. 	563-564.]
That 	policy has 	been 	codified by 	Educational 	Employment
Relations Act 	(EERA) 	section 3541.5 (a) (2)1 and as early as 1982,
1EERA section 3541.5 provides, 	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 	. . . .
(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
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in Chaffey Joint Union High School 	District 	(19 82) 	PERB Decision
No. 	202, 	the Board held that:
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.
EERA clearly 	indicates 	that 	the 	Legislature
intended 	the 	grievance procedure 	to be 	a
preferred method 	of 	settling 	job 	disputes 	and
improving employment 	relations 	[Id. 	at p. 	8,
citing EERA section 3541.5(a)(2)].
The 	file 	shows 	that 	the 	charge acknowledges 	a grievance
procedure exists, 	that 	the process 	ends 	in binding arbitration,
and that 	the parties 	did not use 	the grievance process. 	The
statement 	of 	the 	charge 	refers 	to 	the 	existing 	collective
bargaining agreement 	(CBA) 	and 	complains 	that 	the 	Pasadena
Community College District 	(District) 	unilaterally 	changed 	the
compensation 	called 	for 	in 	the 	contract 	through 	the 	overload
schedule. 	The District 	answers 	that 	its actions were 	consistent
with 	the 	CBA.
CBA 	PROVISIONS
Pertinent provisions 	of 	the 	CBA include Article 	11.2.1,
which provides 	that:
A 	"grievance" 	is 	an alleged violation,
misapplication 	or misinterpretation 	of 	a
specific provision of 	this Agreement.
Article 	11.2.2 	provides 	that:
A 	"grievant" 	is 	a member of 	the unit 	covered
by this Agreement who 	claims 	to have been
adversely affected; 	or the Association, 	which
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may 	only 	grieve 	sections 	dealing with 	rights
of 	the Association.
Article 	1.2 	provides 	that:
The District 	recognizes 	the Association as
the 	exclusive 	representative 	of 	those
employees 	of 	the District 	delineated as 	the
bargaining unit 	as 	set 	forth 	in the May 	17,
1979 	Public 	Employment 	Relations 	Board
Certification of 	Representative 	in Case
Number LA-R-745, 	as amended on July 14, 	1981
and further amended on June 	7, 	1982.
Article 	12 	provides 	that 	the 	salary schedules 	contained 	in
the Appendix of 	the 	CBA are used 	to 	identify the 	rate 	of pay 	for
teachers 	of not-for-credit 	courses.
Article 	11.3.10 provides 	that:
The decision of the Arbitrator 	. 	. 	. 	shall be
final 	and binding upon all 	parties 	to 	the
contract.
My view of 	the 	CBA is 	that 	the dispute 	is 	covered by the
CBA, 	and that 	the dispute was 	grievable and arbitrable, 	since a
key alleged violation 	is 	the District's 	denial 	of 	the 	Pasadena
City College 	Chapter of 	the 	California Teachers 	Association's
(Association) 	rights 	to represent members 	in connection with
bargaining unit work. 	Furthermore, 	a prior PERB decision on the
parameters 	of 	the unit 	is 	incorporated 	into 	the 	CBA by 	reference
and 	is viewed by the Association as 	critical 	to 	the 	support 	of
its 	case. 	The Board agents 	at 	the 	initial 	and hearing 	stages
should have 	addressed 	the 	jurisdictional 	question and 	deferred
(delayed) 	issuing a 	complaint until 	the grievance agreement 	was
exhausted.2 The 	six-month 	statute 	of 	limitations 	on bringing
2Ante. 	footnote 1.
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charges 	would have 	been 	suspended while 	the parties 	pursued 	the
grievance process. 	This 	case 	should be dismissed without
prejudice, 	since there is no evidence that the parties' 	grievance
procedure was 	exhausted.
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Caffrey, 	Member, 	dissenting: 	I dissent. 	The Pasadena
Community College District 	(District) 	violated section 3543.5(a),
(b) 	and 	(c) 	of 	the Educational 	Employment Relations Act 	(EERA)
when 	it 	unilaterally 	changed 	the 	rate 	at 	which 	certificated
instructors 	were 	compensated 	for 	teaching 	not-for-credit 	classes
in the District's 	contract 	education program, 	without meeting and
conferring 	in good 	faith with 	the 	Pasadena 	City 	College 	Chapter
of 	the California Teachers Association 	(Association).
Accordingly, 	I would order the District 	to make affected
bargaining unit members 	whole 	for 	compensation 	lost 	as 	a 	result
of 	the District's unlawful 	action.
BACKGROUND
The 	faculty bargaining 	unit 	exclusively 	represented by 	the
Association 	originally 	excluded part-time 	instructors 	who 	did 	not
teach more than 60 percent 	of a 	full-time 	teaching load, 	and
instructors paid on an hourly basis. 	Through a 	series 	of unit
modifications, 	the bargaining unit was 	substantially expanded,
concluding with a 	1982 	change 	to 	the unit 	that 	is 	key to 	the
resolution of the dispute in this case. 	On June 7, 	19 82,
following a 	consent 	election, 	the 	Public 	Employment 	Relations
Board 	(PERB or Board) 	certified the addition of 	the 	following
employees 	to 	the bargaining unit:
All 	certificated personnel 	paid 	on an hourly
basis; 	teachers 	of non-credit and adult
education; 	part-time teachers with
assignments of 	60% or less; 	and certificated
employees 	holding a 	temporary 	contract.
The 	1982 	election resulted 	from an agreement 	between 	the
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District 	and 	the Association to add 	faculty in 	certain job
groupings 	to 	the bargaining unit. 	The 	election agreement
included a 	description of 	the bargaining unit 	which 	the 	parties
agreed would 	result 	from the unit modification. 	The 	agreed upon
description provided 	that 	the modified unit 	would 	include:
Certificated 	employees 	holding 	a 	contract 	and
status as a 	"contract" 	or 	"regular" 	employee
of 	the District and who are 	employed as:
Teachers of credit classes, 	Counselors,
Librarians, 	Teacher/Coordinators, 	School
Nurses, 	Teachers of 	credit 	classes who are 	in
the Optional, 	Pre-Retirement 	Program. 	All
certificated personnel 	paid 	on 	an 	hourly
basis; 	teachers 	of non-credit and adult
education; 	teachers 	of Summer Inter-Session;
and part-time 	teachers.
The 	agreed upon unit 	description provided 	that 	the 	resulting
bargaining unit 	would 	exclude:
Superintendent-President, 	Vice Presidents;
Deans; 	Department Chairpersons; Assistant
Department Chairpersons; 	Supervisors of:
Media Services, 	Computer Resource Center,
Community Adult Training, 	Coordinators 	of:
Manpower Programs, 	Cooperative 	Education and
Placement, 	Scholarships and Financial Aids,
Printing Services, 	Parent Education;
Psychologists; 	General Manager-KPCS; 	Special
Projects Development Officer 	(Grants);
Accreditation Officer. 	All 	Classified
Employees; 	Consultants; 	Head Librarian; All
Temporary 	and 	Substitute 	Certificated
Employees; 	All 	Employees who are Management,
Supervisory 	or Confidential 	within the
meaning of 	the 	EERA.
The 	District 	and 	the Association are parties 	to 	a 	collective
bargaining agreement 	(CBA) 	having a negotiated term of 	July 	1,
1991 	through June 30, 	1994. 	The CBA makes 	specific 	reference to
the 	1982 	amendment 	to 	the bargaining unit.
In 1987, 	the Legislature authorized community college
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districts 	to 	establish 	self-supporting 	contract 	education
programs.1 In 1990, 	the District decided to offer contract
education services 	to business 	and government 	in 	the District's
service area. 	Under the 	contract 	education program, 	the District
provides 	a 	specific 	educational 	program to employees 	of 	the
contracting entity, 	which pays 	the 	full 	cost of 	the 	educational
program. 	While 	contract 	education 	courses may provide 	credit
toward a degree, 	the 	state provides 	no 	funding 	for them because
the 	classes 	are not 	open to the general public. 	"Not-for-credit"
classes 	are 	contract 	education program classes 	which do not 	offer
credit 	toward a degree. 	At 	the 	time 	of 	the 	PERB hearing 	in 	this
case, 	the District was offering 11 	contract education courses, 	8
of which were 	credit 	courses 	counting toward a degree, 	and 3 	of
which were not-for-credit 	courses.
Education Code 	section 	78022 	addresses 	the 	compensation of
faculty 	in the 	contract 	education program. 	Section 	78022(b)
states that:
Faculty 	teaching 	credit 	and 	noncredit
contract 	education 	classes 	shall 	be
compensated 	in 	the 	same manner as 	comparable
faculty in the 	regular, 	noncontract 	education
program. . . .
And Section 78022(d) 	states 	that:
Faculty 	teaching 	not-for-credit 	contract
education 	classes 	shall 	be 	compensated 	in 	the
same manner as 	faculty in the 	regular,
noncontract 	education program if 	the 	course
meets 	the 	same 	standards 	as 	a course 	in the
credit curriculum. 	. 	. 	.
1 Statutes of 	1987, 	Chapter 493. 	Education Code 78020 	et
seq.
10

Whether 	the 	instructor 	of 	a particular 	contract 	education
course must meet minimum academic 	qualifications, 	be
certificated, 	or possess 	a 	credential,2 depends upon the nature
of 	the 	course. 	Instructors 	of 	credit 	courses 	in the 	contract
education program must meet minimum qualifications, 	just 	as
instructors 	of 	credit 	courses 	in the 	regular program.
Instructors 	of 	not-for-credit 	courses 	in 	the 	contract 	education
program are 	not 	required 	to meet 	minimum qualifications.
In 1991-92, 	the 	first year of 	operation for the District's
contract 	education program, 	certificated 	instructors 	from the
District's 	regular 	education program also 	taught 	contract
education 	classes 	and were paid 	in accordance with 	the parties'
CBA. 	The 	same 	CBA salary schedule was used to 	compensate all
certificated 	instructors 	teaching 	in 	the 	contract 	education
program, 	regardless 	of whether they were 	teaching credit 	or not-
for-credit 	courses.
In the 	fall 	of 	1992, 	the District 	changed the rate of pay
for 	certificated 	instructors 	teaching 	not-for-credit 	classes 	in
the 	contract 	education program.3 In an August 	24 memo, 	the
2With the enactment 	of AB 	1725 	in 1988 	(Stats, 	of 	1988,
Ch. 	973) 	there 	is no longer a requirement 	that 	community college
instructors possess 	"credentials." 	Instead, 	a 	system has been
established which 	requires 	community 	college 	instructors 	to meet
certain specified minimum qualifications. 	(See 	Ed. 	Code
sec. 	87355 	et seq.) 	For purposes of this 	case, 	the term
"certificated" 	or 	"credentialed" 	personnel 	can be 	interpreted 	to
mean 	those 	instructors 	who meet 	minimum qualifications
established pursuant 	to 	the 	Education 	Code.
3A11 	contract 	education program instructors 	are paid on an
hourly basis. 	The 	issue 	in this 	case 	involves 	the District's
unilateral 	change 	in the 	amount 	of 	that hourly pay.
11

District 	advised 	faculty members 	that 	salaries 	for 	teaching not-
for-credit 	contract 	education 	classes 	would be paid 	on 	"a 	flat
fee per hour" 	basis, 	and not according 	to any salary schedule
included 	in the 	CBA. 	The 	stated reason 	for the 	change was 	to
make 	the 	contract 	education program 	"self 	supporting, 	cost
effective, 	fair, 	and competitive 	for services 	requested by
employers 	and agencies 	in our community." 	The District made 	no
change 	in 	the 	rate 	of 	pay 	of 	certificated 	instructors 	teaching
credit 	courses 	in the 	contract 	education program, 	which 	continued
to be 	in accordance with a 	CBA salary 	schedule.
Subsequently, 	the Association demanded that 	the District
meet 	and negotiate 	over 	the 	change 	in pay 	for 	certificated
instructors 	teaching not-for-credit 	courses 	in 	the 	contract
education program. 	The District 	rejected 	the demand 	to negotiate
in a January 5, 	1993, 	memorandum, 	stating:
As you know, 	contract 	education 	faculty are
not 	in the 	CTA bargaining unit.
Consequently, 	the 	compensation and working
conditions 	of 	those employees would not be an
appropriate 	subject 	for negotiation. 	If,
however, 	you believe 	that 	there are 	issues
which are within 	the 	scope 	of 	negotiation
between the District 	and PCC/CTA, 	please
provide us 	with a 	statement 	to 	that 	effect
and it will 	be 	considered by the District.
As 	a 	result, 	the Association 	filed the 	instant 	unfair
practice 	charge on February 2, 	1993.
DISCUSSION
EERA section 3543.5(c) 	requires 	an employer to meet 	and
negotiate 	in good 	faith with an 	exclusive 	representative. 	A
pre-impasse 	unilateral 	change 	in an 	established policy affecting
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a matter within 	the 	scope 	of 	representation 	is 	a per se violation
of 	the duty to bargain in good 	faith. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196 	(Grant Joint UHSD);
Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51; 	San Mateo County Community College District 	(1979) 	PERB
Decision No. 	94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].
To 	establish a unilateral 	change, 	the Association must 	show
that: 	(1) 	the employer breached or altered the parties' 	written
agreement 	or established past practice; 	(2) 	such action was 	taken
without 	giving 	the 	exclusive 	representative 	notice 	or an
opportunity to bargain over the change; 	(3) 	the 	change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	has 	a generalized
effect 	or 	continuing 	impact 	on 	the 	terms 	and 	conditions 	of
employment of bargaining unit members; 	and 	(4) 	the 	change 	in
policy 	concerns 	a matter within 	the 	scope 	of 	representation.
(Grant 	Joint 	UHSD.)
At 	the hearing before a PERB administrative law judge 	(ALJ),
the District 	joined a 	stipulation 	that 	it 	had unilaterally
changed 	the 	salaries 	of 	certificated 	instructors 	of 	not-for-
credit 	courses 	in the 	contract 	education program. 	The 	subject 	of
wages 	is 	expressly within EERA's 	scope 	of 	representation.
Therefore, 	the 	issue presented by this 	case 	is whether
certificated 	instructors 	of 	not-for-credit 	courses 	in 	the
contract 	education program are members 	of 	the bargaining unit
agreed to by the parties 	in the 	1982 	unit modification. 	If 	so,
the District's unilateral 	change 	in the 	salaries 	of 	those
bargaining unit 	members 	was 	unlawful 	and 	in violation of 	EERA
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section 3543.5(a), 	(b) and (c).
EERA section 	3545(b)(1) 	provides 	specific 	direction with
regard to bargaining units 	of 	classroom teachers. 	It 	states 	that
in all cases:
A negotiating 	unit 	that 	includes 	classroom
teachers 	shall 	not be appropriate unless 	it
at 	least 	includes 	all 	of 	the 	classroom
teachers 	employed by 	the 	public 	school
employer, 	except management employees,
supervisory employees, 	and confidential
employees.
In Peralta Community College District 	(1978) 	PERB Decision No. 	77
(Peralta), 	the Board considered EERA section 3545(b)(1) 	and
concluded that 	it 	establishes 	a presumption that 	all 	teachers 	are
to be placed 	in a 	single bargaining unit. 	The Board 	in Peralta
placed the burden of 	proving 	that 	a 	comprehensive 	teacher unit 	is
inappropriate 	on 	those 	opposing 	it.
The 	Board has 	considered 	circumstances 	in which a 	faculty
unit 	description 	did not 	specifically 	include 	certain 	categories
of 	instructors. 	In Davis Joint Unified School District 	(1984)
PERB Decision No. 	474 	(Davis), 	the Board considered a unit
described as 	"all 	certificated 	employees 	excluding 	those 	excluded
by law." 	At 	issue was 	the 	status 	of 	summer school 	teachers,
adult 	education teachers, 	driver training 	instructors 	and others
whom the 	parties 	had not 	discussed or agreed upon as 	included 	in
the bargaining unit. 	While noting 	this 	lack of 	specific
agreement, 	the Board 	found the 	language describing 	the unit 	to be
"quite 	clear 	in 	its 	description of 	a 	comprehensive unit." 	The
Board noted 	that 	the 	District 	in 	recognizing 	the 	bargaining 	unit
had been 	"very scrupulous" 	to exclude managers, 	supervisors 	and
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confidential 	employees, 	"but never made any effort 	to exclude
others." 	Since 	the disputed teachers had not been excluded, 	the
Board 	stated:
. 	. 	. 	we read the language of the unit
description precisely as 	it 	is 	written and we
therefore 	find 	that 	the unit 	as 	originally
recognized did 	include 	the 	disputed
classification of 	teachers.
In 	reaching 	this 	conclusion, 	the Board referred to 	the 	Peralta
presumption 	that 	all 	teachers 	are 	appropriately placed 	in a
single bargaining unit.
In the 	1982 unit modification at 	issue 	in this 	case, 	the
bargaining unit 	was 	expanded 	to 	include:
All 	certificated personnel 	paid 	on an hourly
basis; 	teachers 	of non-credit and adult
education; 	part-time 	teachers with
assignments of 	60% or less; 	and certificated
employees 	holding a 	temporary 	contract.
The parties 	agreed 	to a 	description 	of 	those 	instructors 	included
in 	the unit. 	The parties 	also agreed to 	specifically exclude
certain positions 	and employees 	from the unit, 	most 	notably
managerial, 	supervisory and confidential 	employees, 	and
substitute 	certificated 	instructors. 	Consistent 	with EERA
section 3545(b)(1), 	I 	conclude that the 1982 unit modification
established a 	comprehensive 	faculty unit 	within 	the District.
The 	only 	exceptions 	to 	the 	comprehensive 	faculty unit 	were 	those
specifically 	enumerated.
As 	in Davis. 	the 	instant 	case 	involves a 	category of
instructor not 	specifically agreed 	to by 	the parties 	as 	included
in the bargaining unit, 	since 	the 	contract 	education program, 	and
the not-for-credit 	courses within it, 	did not 	exist at 	the 	time
15

of 	the 	1982 	unit modification. 	The parties agreed to a
comprehensive 	faculty unit 	specifically 	excluding managers,
supervisors, 	confidential 	employees and others., 	In addition to
specifically 	including certain employees, 	the unit 	description
includes 	a 	general 	category of 	"all 	certificated personnel 	paid
on an hourly basis" 	as members 	of 	the bargaining unit. 	This
general 	category underscores 	the 	comprehensive 	nature 	of 	this
unit: 	it 	includes all 	certificated, 	hourly-paid instructors 	not
specifically excluded. 	While 	the 	inclusion of 	instructors 	of
not-for-credit 	classes 	in 	the 	contract 	education program was
never discussed by the parties, 	the precise 	language of 	the unit
description here, 	as 	in Davis. 	and the Peralta presumption that
all 	classroom teachers 	are 	in a 	single bargaining unit,
incorporates 	certificated 	instructors 	of 	these 	courses 	in 	the
unit, 	unless 	they are 	specifically excluded. 	They are not.
Therefore, 	certificated personnel 	paid on an hourly basis 	to
teach not-for-credit 	courses 	in 	the 	contract 	education program
are bargaining unit members.4
The 	District's 	argument 	that 	the Association must 	pursue 	a
unit modification 	to 	include 	in 	the unit 	certificated 	instructors
of 	not-for-credit 	contract 	education 	classes 	is 	inconsistent 	with
the presumption and burden established 	in Peralta, 	and with 	the
4I 	reject 	the District's 	assertion 	that 	this 	interpretation
of 	the unit 	description language 	"all 	certificated personnel"
could 	lead 	to 	non-faculty 	employees 	who happen 	to possess 	a
teaching 	certificate being 	included 	in the unit. 	The unit
described here 	is a 	comprehensive, 	faculty bargaining unit.
Employees who are not members 	of 	the District's 	faculty are not
members of 	this unit.
16

Board's holding 	in Davis. 	It 	is also 	inconsistent with EERA's
express 	preference 	for 	comprehensive 	teacher bargaining units.
I 	disagree with the ALJ's 	conclusion, 	supported by the
majority, 	that 	the 	statement 	"all 	certificated personnel 	paid on
an hourly basis" 	within the unit description 	"means, 	obviously,
all 	instructors, 	paid on an hourly basis, 	who must have a
credential 	to perform their duties." 	This 	interpretation 	simply
does 	not 	"read 	the 	language 	of 	the 	unit 	description precisely as
it 	is written." 	(Peralta.) 	Instead, 	it 	incorrectly infers an
exclusion to which the parties 	did not 	agree, 	and which the unit
description does 	not 	include. 	The parties 	did not 	agree 	to a
bargaining unit 	described 	as 	"all 	certificated personnel 	paid 	on
an hourly basis 	who 	instruct 	courses 	requiring possession of
minimum qualifications." 	Instructors 	of 	not-for-credit 	courses
in 	the 	contract 	education program are 	not 	among 	those
specifically 	excluded 	from 	this 	comprehensive 	faculty bargaining
unit. 	Consequently, 	in accordance with the precise language of
the unit 	description and 	the Board's 	holding 	in Peralta, 	they are
presumed 	to be members 	of 	the 	comprehensive 	faculty bargaining
unit. 	The District 	has not met 	its burden of proving that 	such a
unit 	is 	inappropriate here.
The 	District 	also 	offers 	community 	services 	program courses
which are 	funded 	entirely by 	the 	students 	enrolled 	in 	them.
Instructors 	of 	those 	courses 	are 	not 	required 	to be 	certificated
or 	to meet minimum qualifications. 	The ALJ 	finds 	support 	for his
interpretation of 	the unit 	description 	in 	the 	fact 	that 	the
parties 	have 	conducted themselves 	as 	if 	instructors 	in the
17

community 	services 	program are 	not members 	of 	the bargaining
unit. 	I do not agree. 	The record is unclear as 	to whether the
District 	employs 	certificated 	instructors 	to 	teach 	courses 	in 	the
community services program. 	It 	is 	clear that 	the 	issue of
whether 	community 	services 	program 	instructors 	are members 	of 	the
bargaining unit 	has 	not 	been addressed by 	the parties 	and 	is 	not
before the Board at 	this 	time. 	For these reasons, 	I 	find the
treatment 	of 	community services 	program instructors 	in 	the
District 	to be unhelpful 	in 	resolving 	the 	issue presented by 	this
case.
I note that 	in its January 5, 	1993, 	memorandum rejecting the
Association's 	demand to negotiate, 	the District asserts 	that
"contract 	education 	faculty are 	not 	in 	the 	CTA bargaining unit."
The record is 	clear, 	however, 	that teachers of 	credit classes,
including 	instructors 	of 	8 	of 	11 	contract 	education program
courses 	offered at 	the time of 	the hearing, 	are expressly
included 	in the unit. 	Accordingly, 	the District at 	all 	times has
compensated 	faculty who 	teach 	contract 	education 	credit 	courses
as bargaining unit members, 	paying 	them in accordance with a 	CBA
salary schedule. 	This 	conduct 	is 	contrary to the District's
January 5, 	1993, 	statement, 	but 	is consistent with the
interpretation 	that 	instructors 	in 	the 	contract 	education
program, 	which did not 	exist at 	the 	time 	of 	the 	1982 	unit
description, 	may nonetheless be 	covered by 	terms 	of 	that
18

description and be members 	of 	the bargaining unit.5
As 	concluded above, 	certificated instructors 	of not-for-
credit 	courses 	in 	the District's 	contract 	education program are
members 	of 	the bargaining unit 	described 	in the 	1982 	unit
modification. 	Therefore, 	since the District stipulated that 	it
unilaterally 	changed 	the 	compensation 	level 	of 	these bargaining
unit members, 	the District violated EERA section 3543.5 (c) 	when
it 	took this unilateral action. 	By this 	same conduct, 	the
District 	denied 	the Association 	its 	right 	to 	represent 	its
members 	in violation of EERA section 3543.5 (b), 	and interfered
with the 	rights 	of 	individual 	employees 	in violation of 	EERA
section 3543.5(a).
Remedy
EERA section 3541.5 (c) 	gives 	the Board the power to 	issue a
decision and order directing 	the 	offending party 	to 	cease 	and
desist 	from the unfair practice, 	and 	to 	take 	such affirmative
action as 	will 	effectuate 	the policies 	of 	EERA. 	In a 	long 	line
of 	cases, 	the Board has 	ordered a make whole remedy 	for employees
5The Association presented 	testimony 	that 	the 	not-for-credit
contract 	education 	courses 	offered by 	the District meet 	the 	same
standards 	as 	courses 	in the 	regular curriculum, 	requiring
instructors 	to be 	compensated 	in 	the 	same manner as 	regular
program instructors pursuant 	to Education Code 	section 	78022(d).
I 	find 	it 	unnecessary 	to make 	a 	finding 	on 	the 	comparability 	of
the 	standards 	of 	these courses. 	The 	certificated instructors 	of
not-for-credit 	classes 	in 	the 	contract 	education program are
members 	of 	the bargaining unit by the 	terms 	of 	the 	1982 	unit
description. 	I note, 	however, 	that Education Code
section 78022(d) 	clearly indicates 	the Legislature's 	intent 	to
extend 	to 	instructors 	of 	not-for-credit 	contract 	education
program courses, 	under certain circumstances, 	the same wages and
benefits 	provided 	to 	regular program 	faculty 	through 	collective
bargaining pursuant 	to 	EERA.
19

affected by a unilateral 	change 	(Rio 	Hondo 	Community 	College
District 	(1983) 	PERB Decision No. 	292; 	Oakland Unified School
District 	(1980) 	PERB Decision No. 	126; 	Compton Unified School
District 	(1989) 	PERB Decision No. 	784.)
The 	compensation of 	bargaining unit members 	instructing
not-for-credit 	courses 	in 	the 	contract 	education program was
unilaterally and unlawfully 	reduced by 	the District. 	Therefore,
I 	conclude 	that 	the appropriate 	remedy 	is 	to order 	the District
to make 	those 	employees whole 	for compensation lost 	as 	a result
of 	the District's unlawful 	action, 	including interest 	on the 	lost
wages.
20

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PASADENA CITY 	COLLEGE 	CHAPTER 	OF
THE CALIFORNIA TEACHERS ASSOCIATION,
Charging 	Party,
v.
PASADENA COMMUNITY COLLEGE DISTRICT,
R e s p o n d e n t .
)
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3271
PROPOSED DECISION
( 5 / 2 7 / 9 4 )
)
)
)
)
)
)
Appearances: 	Charles R. 	Gustafson, 	Esq., 	for the Pasadena City
College Chapter of 	the California Teachers Association; 	Liebert,
Cassidy & Frierson by Larry J. 	Frierson, 	Esq., 	for the Pasadena
Community 	College 	District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union 	representing 	college 	instructors 	here 	contends 	that
a 	community 	college 	district 	unilaterally 	changed 	the 	rate 	of 	pay
for unit members 	teaching not-for-credit 	classes. 	The District
replies 	that 	teaching 	not-for-credit 	classes 	is 	not 	bargaining
unit work and 	it 	therefore had the 	right 	to 	change 	the payment
level 	unilaterally.
The 	Pasadena City College 	Chapter of 	the 	California Teachers
Association 	(Union) 	commenced this action on February 2, 	1993, 	by
filing 	an unfair practice 	charge 	against 	the 	Pasadena 	Community
College District 	(District). 	The Office of 	the General 	Counsel
of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	followed
on June 17, 	1993, 	with a complaint against 	the District.
The 	complaint 	alleges 	that 	under 	the 	past 	practice 	unit
members 	were 	compensated at 	their 	regular hourly 	rates 	for
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.

teaching 	not-for-credit 	classes 	on 	an 	"overload" 	basis. 	The
complaint 	alleges 	that 	during 	or 	about 	the 	month 	of 	September
1992, 	the 	District 	unilaterally 	ceased 	to 	count 	the 	hours 	as
"overload" 	and 	compensated 	unit 	members 	at 	a 	flat 	rate 	far 	below
their 	hourly 	rate. 	As 	a 	separate 	cause 	of 	action, 	the 	District
was 	accused 	of 	refusing 	to 	negotiate 	about 	the 	change. 	These
actions 	were 	alleged 	to 	be 	in violation 	of 	Educational 	Employment
Relations Act 	(EERA) 	section 3543.5 (c) 	and, 	derivatively, 	(a)
and 	(b).1
The 	District 	answered 	the 	complaint 	on June 	25, 	1993, 	with
general 	and 	specific 	denials. 	A hearing 	was 	conducted 	in
Pasadena 	on March 2, 	1994. 	At 	the 	hearing, 	the 	District 	joined a
stipulation 	that 	it 	had 	changed 	the 	salaries 	unilaterally. 	It
defended 	on 	the 	theory 	that 	the 	work 	at 	issue 	was 	not 	bargaining
1 Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	EERA 	is 	codified 	at 	Government 	Code
section 	3540 	et 	seq. 	In 	relevant 	part, 	section 	3543.5 	provides
as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(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.
22

unit work. 	Both parties 	agreed that 	the 	result 	here 	would be
dictated by a 	determination 	of 	whether 	the work 	in question was
that 	of 	the bargaining unit. 	With the 	filing of briefs, 	the
matter was 	submitted for decision on May 17, 	1994.
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under 	the 	EERA.
The Union at 	all 	times 	relevant 	has been 	the 	exclusive
representative 	of 	the District's 	certificated employees. 	The
Union 	first 	was 	certified as 	exclusive 	representative 	on
December 12, 	1977. 	Originally, 	the bargaining unit excluded,
among 	others, 	part-time 	instructors 	who did not 	teach more 	than
60 	percent 	of 	a 	full-time 	teaching 	load and all 	instructors paid
on an hourly basis.
Through a series 	of unit modifications, 	the bargaining unit
was 	substantially expanded during 	the 	first 	years 	of 	collective
bargaining. 	In 1981, 	instructors of 	summer inter-session classes
were added to the bargaining unit. 	Then, 	in the 	following year,
came 	the 	change 	that 	is 	key to 	the 	resolution of 	the 	dispute
here. 	On June 7, 	1982, 	following a consent election, 	the PERB
certified 	the 	addition of 	the 	following 	employees 	to 	the
bargaining unit:
All 	certificated personnel 	paid 	on an 	hourly
basis; 	teachers 	of non-credit and adult
education; 	part-time teachers with
assignments of 	60 percent or less; 	and
certificated employees 	holding 	a 	temporary
contract.
The 	1982 	election was 	the product 	of 	an agreement between
the District 	and 	the Union to add 	certain job groupings 	to 	the
3

bargaining unit. 	Attached 	to 	the 	election agreement 	was 	a
description 	of 	the bargaining unit 	which 	the parties 	agreed would
result 	from the unit modification. 	The attachment, 	which was
signed by representatives 	of both parties, 	provided that 	the
modified agreement 	would 	include:
Certificated 	employees 	holding 	a 	contract 	and
status as a 	"contract" 	or 	"regular" 	employee
of 	the District and who are 	employed as:
Teachers of credit classes, 	Counselors,
Librarians, 	Teacher/Coordinators, 	School
Nurses, 	Teachers 	of 	credit 	classes who are 	in
the Optional, 	Pre-Retirement 	Program. 	All
certificated personnel 	paid 	on an hourly
basis; 	teachers of non-credit and adult
education; 	teachers 	of Summer Inter-Session;
and part-time 	teachers.
The 	agreed unit 	description provided 	that 	the modified unit 	would
exclude:
Superintendent-President, 	Vice Presidents;
Deans; 	Department Chairpersons; 	Assistant
Department Chairpersons; 	Supervisors of:
Media Services, 	Computer Resource Center,
Community Adult Training, 	Coordinators 	of:
Manpower Programs, 	Cooperative Education and
Placement, 	Scholarships and Financial Aids,
Printing Services, 	Parent Education;
Psychologists; 	General Manager-KPCS; 	Special
Projects Development Officer 	(Grants);
Accreditation Officer. 	All 	Classified
Employees; 	Consultants; 	Head Librarian; All
Temporary 	and 	Substitute 	Certificated
Employees; 	All 	Employees who are Management,
Supervisory 	or 	Confidential 	within 	the
meaning 	of 	the 	EERA.
Edward Ortell, 	the Union's 	long-time 	chief negotiator, 	was
a participant 	in 	the 	negotiations 	that 	led 	to 	the 	consent
election agreement. 	He 	testified that 	the parties 	had an
understanding 	that 	the unit modification would 	result 	in a
44

"wall-to-wall" 	certificated unit. 	The District's 	representative
during 	those 	discussions was 	attorney Larry Curtis, 	now deceased.
To date, 	there 	is 	one group of 	instructors 	that neither
party has 	treated as members 	of 	the bargaining unit. 	These are
teachers 	in the 	community 	services/skills program, 	persons
Mr. 	Ortell 	described as 	instructors 	of 	"ouija board reading" 	and
"belly dancing." 	He 	said 	the 	Union had 	little 	concern about
those 	types 	of 	activities. 	Persons 	teaching in the 	community
services 	program are 	not 	required 	to 	have 	credentials 	or 	to meet
minimum qualifications. 	Community 	services 	courses 	are 	funded
entirely by 	the 	students 	who 	enroll 	in 	them.
The present 	dispute grows 	out 	of 	a District 	decision 	in 	1990
to 	offer 	contract 	education 	services 	to business 	and government
in 	the District's 	service area.2 Under a 	contract 	education
program, 	the District provides 	a specific 	educational 	program to
employees 	of 	the 	contracting 	entity. 	The 	contracting 	entity pays
the 	full 	cost 	of 	the educational program. 	No State 	of 	California
or District 	funds 	are used. 	This 	contrasts 	with the 	regular
District 	instructional 	program where 	state 	funds 	are 	provided 	for
both 	credit 	and non-credit 	courses.3 However, 	even where
contract 	education 	courses 	are 	regular 	college 	courses 	which
provide 	credit 	toward a degree, 	the 	state provides 	no 	funding.
2The Legislature, 	in 1987, 	authorized community college
districts 	to provide 	self-supporting 	contract 	education programs,
(See 	Education 	Code 	section 	78021.)
3Credit 	courses 	are 	funded by 	the 	state 	at 	approximately
twice 	the 	level 	of 	non-credit 	courses.
un
	5

This 	is because 	contract 	classes are not 	open to the public
generally but 	only 	to 	students 	sent 	by 	the 	contracting 	entity.
In addition to credit 	classes, 	contract 	education classes
also may be 	not-for-credit4 classes 	designed 	to provide 	students
with 	a particular proficiency needed by 	the 	contracting 	entity.
At 	the 	time 	of 	the hearing, 	the District was 	offering 	11 	contract
education courses, 	eight 	of which were 	credit 	courses 	counting
toward a degree. 	In the 	first year of 	the program, 	one witness
estimated, 	90 	to 95 	percent 	of 	the 	contract 	education classes
were 	in academic 	subjects, 	as 	contrasted with vocational 	or
occupational 	subjects.
Contract 	education 	classes 	have 	included 	such 	subjects 	as
proficiency in English, 	basic arithmetic, 	business 	English and
computer 	skills. 	The 	classes have been taught 	in facilities
provided by 	the 	contracting 	entity and by 	the District. 	The
length of 	the 	classes 	has 	ranged from a 	few days 	to a 	full
semester. 	The 	dates 	of 	instruction have 	had no necessary
relationship with 	the 	regular District 	calendar. 	Among 	the
contracting entities have been Pacific Bell, 	the 	City of
Pasadena, 	Home 	Savings and Loan and Security Pacific 	Bank. 	Other
contracting 	entities 	have 	included an engineering 	company, 	a
school 	of 	cosmetology and a data processing 	company.
To 	teach the 	contract 	education classes, 	the District has
used 	its 	regular 	faculty who have 	taught 	the 	classes 	in addition
4The terms 	"credit," 	"non-credit" 	and 	"not-for-credit" 	are
defined 	in Education Code 	section 	78020.
66

to 	their ordinary 	full 	load. 	It 	has 	employed part-time 	faculty
members 	who 	are 	fully-qualified under 	state 	law 	to 	teach 	in a
community college. 	It has 	employed persons who have 	the
expertise 	to 	teach a particular 	subject 	but 	who 	do not 	meet 	the
minimum qualifications 	that 	would be 	needed 	to 	teach 	in 	the
regular program. 	Most 	of 	the 	instructors 	in the 	contract
education program have been members 	of 	the 	District's 	regular
full-time 	and part-time 	staff.
Whether 	the 	instructor 	of 	a particular 	contract 	education
course must meet minimum academic qualifications, 	or have a
credential, 	depends upon the nature of 	the 	course. 	Instructors
who 	teach 	credit 	courses 	must meet minimum qualifications 	or have
a credential, 	just as 	in the regular program. 	However,
instructors 	teaching 	not-for-credit 	contract 	education 	courses
are 	not 	required 	to meet 	minimum qualifications 	or have 	a
credential.5
The 	first 	year 	of 	operation 	for 	the 	contract 	education
program was 	the 	1991-92 	school year. 	In that year, 	regular
instructors 	who 	taught 	contract 	education 	classes 	were paid 	on
schedule B-l 	from the agreement 	between the parties. 	This
schedule 	sets 	the 	rate 	for 	contract 	instructors 	teaching 	credit
classes 	on an overload basis. 	The 	schedule 	is 	a 	typical 	faculty
pay 	schedule 	whereby an 	instructor's 	rate 	of pay 	increases
5This 	is 	in contrast with 	instructors 	who 	teach non-credit
courses 	that 	are partially 	funded by 	the 	state. 	Teachers 	of
non-credit 	courses must meet minimum qualifications 	or have 	a
credential.
77

according 	to years 	of 	service and academic degree and/or number
of units 	above a bachelor's 	degree. 	On this 	schedule 	the 	rate 	of
an 	instructor's pay 	could range 	from $16.47 	to 	$63 	per hour.
Part-time 	instructors 	hired 	from the 	outside were paid a 	flat 	fee
from the beginning. 	The 	classes 	taught 	in the 	contract 	education
program were 	counted 	toward 	the 	seven hour maximum overload
regular 	instructors 	are permitted 	to 	teach under 	the 	agreement
between the parties.
In the 	fall 	of 	1992, 	the District 	changed the manner of pay
for 	instructors 	in 	the 	contract 	education program. 	In an
August 	24 memo, 	Dean Betty R. 	Kisbey advised faculty members 	that
salaries 	for 	teaching not-for-credit 	classes 	would be paid on 	"a
flat 	fee per hour." 	The reason for the 	change, 	she wrote, 	was 	to
make 	the 	contract 	education program 	"self 	supporting, 	cost
effective, 	fair, 	and competitive 	for services 	requested by
employers 	and agencies 	in our 	community." 	The 	rate 	schedule
attached 	to 	the memorandum set 	the pay at 	$25 	per hour 	for a
bachelor's degree, 	$35 per hour 	for a master's 	degree and 	$45 per
hour for a doctorate. 	The District made no 	change 	in the 	rate 	or
method of payment 	of 	contract 	education 	instructors 	who 	teach
credit bearing 	courses.
Subsequently, 	the Union demanded that 	the District meet 	and
negotiate 	about 	the 	change 	in pay 	for 	faculty members 	who 	teach
contract 	education. 	District 	Superintendent-President 	Jack Scott
rejected the demand to negotiate 	in a January 5, 	1993, 	memo to
8
8

Union 	President Gary Woods. 	In relevant 	part, 	Superintendent
Scott's 	memo 	reads:
As 	you know, 	contract 	education 	faculty are
not 	in 	the 	CTA bargaining unit.
Consequently, 	the 	compensation 	and working
conditions 	of 	those 	employees 	would not 	be 	an
appropriate 	subject 	for negotiation. 	If,
however, 	you believe 	that 	there are 	issues
which are within 	the 	scope 	of 	negotiation
between 	the 	District 	and 	PCC/CTA, 	please
provide 	us 	with 	a 	statement 	to 	that 	effect
and 	it 	will 	be 	considered by 	the 	District.
LEGAL 	ISSUES
1) 	Is 	the 	instruction of 	not-for-credit 	courses 	within the
bargaining 	unit 	represented 	by 	the 	Union?
2) 	If 	it 	is, 	did the District make a unilateral 	change 	in
pay 	for 	regular 	faculty who 	teach 	not-for-credit 	courses 	and
thereby 	fail 	to meet 	and negotiate 	in good 	faith?
CONCLUSIONS 	OF 	LAW
It 	is 	axiomatic 	that 	the bargaining 	obligation 	of 	a
public 	school 	employer 	extends 	only 	to 	the 	positions 	within
the bargaining unit. 	Thus, 	for a unilateral 	change 	to be 	in
violation of 	the 	obligation to bargain, 	it must 	have 	"a
generalized 	effect 	or 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment 	of 	bargaining unit members." 	(Grant
Joint Union High School 	District 	(1982) 	PERB Decision No. 	196,
emphasis 	supplied.) 	Since 	an employer has 	no obligation 	to
bargain about 	conditions 	affecting non-unit 	employees, 	the
employer 	does 	not 	violate 	the 	EERA when 	it 	acts 	unilaterally
toward 	non-unit 	workers.
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Where 	the parties 	are 	in dispute 	about 	the 	configuration of
the bargaining unit, 	an employer may test 	the appropriateness 	of
a bargaining unit 	by engaging 	in an 	outright 	refusal 	to bargain.
Where 	the unit 	is 	found appropriate, 	an outright 	refusal 	to
bargain 	is per se a 	failure 	to negotiate 	in good faith in
violation of 	EERA section 3543.5(c). 	(El Monte Union High School
District 	(1982) 	PERB Decision No. 	220; 	Redondo Beach City School
District 	(1980) 	PERB Decision No. 	140.) 	Similarly, 	as here, 	an
employer 	can 	test 	whether 	certain 	individual 	job 	classifications
are within the bargaining unit by making a unilateral 	change 	in
working 	conditions. 	If 	the 	job classes are 	found to be within
the bargaining unit, 	the employer's unilateral 	change will 	be a
per 	se 	failure 	to negotiate 	in good 	faith.
The key to this case, 	therefore, 	is 	the unit description to
which the parties 	agreed in the 	1982 	unit modification.
Following an election, 	the 	PERB 	regional 	director certified 	the
addition 	to 	the bargaining unit 	of 	"All 	certificated personnel
paid on an hourly basis; 	teachers 	of 	non-credit 	and adult
education; 	part-time 	teachers with assignments 	of 	60 percent 	or
less; 	and certificated employees 	holding a 	temporary contract."
There were 	no 	teachers 	of 	contract 	education at 	that 	time because
the 	District 	had not 	yet 	instituted 	the program.
The 	Union 	contends 	that 	the 	1982 	unit modification had 	the
effect 	of 	establishing a 	"wall-to-wall" 	bargaining unit. 	The
Union argues 	that 	such an 	intent 	is 	apparent 	from the unit
modification language itself. 	In addition, 	the Union cites 	the
10

testimony of Mr. 	Ortell 	who participated 	in the 	discussions 	that
led to 	the unit 	change. 	The Union acknowledges 	that 	the 	category
of 	not-for-credit 	instruction did not 	exist at 	that 	time. 	It
argues, 	however, 	that 	instructors 	of 	such classes would be
covered by 	the 	inclusion 	in 	the unit 	description of 	instructors
of 	"non-credit" 	classes6 and/or 	"certificated personnel 	paid on
an hourly basis."
The District 	replies 	that 	the unit 	description documents 	do
not 	include 	instructors 	of not-for-credit 	classes. 	The District
argues 	that 	the 	inclusion of 	"all 	certificated personnel" 	within
the unit 	does 	not pertain to 	instructors 	of 	not-for-credit
classes. 	Since 	there 	is no requirement 	that 	instructors 	of 	such
classes be certificated, 	the District 	continues, 	they are not
included within 	the unit 	description. 	While 	there are persons
holding 	credentials 	who 	teach not-for-credit 	classes, 	the
District 	observes, 	the 	courses 	taught were not 	courses 	for which
employees must 	be 	certified.
The 	PERB previously has 	considered 	the meaning 	of 	language
similar to 	the unit 	description here. 	(See Davis Joint Unified
School District 	(1984) 	PERB Decision No. 	474.) 	In that case, 	the
Board 	concluded 	that 	the 	language 	"all 	certificated 	employees
excluding 	those 	excluded by 	law," 	was 	clearly 	intended 	to
describe 	a 	comprehensive unit. 	The Board held that 	the
6The 	contention that 	the work at 	issue 	is 	"non-credit" 	and
therefore 	bargaining unit 	work 	can be 	rejected out 	of 	hand.
"Non-credit" 	and 	"not-for-credit" 	classes 	are not 	the 	same 	thing.
(See Education Code 	section 78020.) 	It 	is 	clear that 	the 	issue
here 	is 	the 	instruction of 	"not-for-credit" 	classes.
11

employer's 	recognition of 	the union as 	"the 	representative 	agent
for 	certificated 	employees, 	excluding 	those 	designated as
management, 	supervisory, 	and confidential 	employees" 	described a
unit 	"which 	includes 	all 	certificated 	teachers." 	(Ibid.)
A unit 	description 	that 	includes 	"[a]11 	certificated
personnel paid on an hourly basis" 	means, 	obviously, 	all
instructors, 	paid on an hourly basis, 	who must have a credential
to perform their duties.7 What 	is 	critical, 	as 	the District
notes, 	is not 	that 	the individual holds a credential but 	that a
credential 	is 	required 	for 	the particular duties 	that 	the
individual performs. 	Thus, 	on its 	face, 	the language of the unit
description would 	sweep 	into 	the unit 	all 	instructors 	who 	are
required 	to have 	a 	credential 	to 	teach.
Such a 	reading 	is 	consistent 	with 	the 	testimony 	of
Mr. 	Ortell, 	the 	long-time Union activist who participated 	in the
negotiations 	that 	led to the unit modification. 	Mr. 	Ortell
described the purpose 	of 	the 	final 	unit modification as 	the
creation of 	a 	"wall-to-wall" 	certificated unit. 	I 	find that 	the
19 82 	unit modification achieved this 	goal 	and 	in 	fact 	created a
comprehensive unit 	of 	all 	teaching positions 	which 	require 	a
credential.
Until 	the present dispute, 	the 	conduct 	of 	the parties
was 	consistent 	with a 	joint 	belief 	that 	the unit 	contained all
7All 	contract 	instructors 	are paid on an hourly basis. 	The
dispute 	that 	gave 	rise 	to 	this 	case was 	about 	the amount 	of 	that
hourly 	pay.
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instructional 	positions 	required to have a 	credential. 	All
instructors were 	treated as 	unit members 	except 	for 	teachers 	in
the 	community services/skills program, 	instructors 	of 	"ouija
board reading" 	and 	"belly dancing," 	as Mr. 	Ortell put 	it.
Community 	services/skills 	instructors 	are 	not 	obligated 	to have 	a
credential 	or meet minimum standards.
Changes 	in 	state 	law largely have 	rendered anachronistic 	a
reference 	to 	"certificated personnel" 	in a 	community college unit
description. 	With the enactment 	of AB 	1725 	in 19888 there no
longer 	is 	a 	requirement 	that 	community 	college 	instructors 	have
credentials. 	In place of 	that 	system, 	the Legislature
established 	a 	system whereby 	community 	college 	instructors 	are
required 	to meet 	certain 	specified minimum qualifications.9
Persons 	previously 	employed under 	the 	credential 	requirement 	are
exempt 	from meeting minimum qualifications 	so 	long 	as 	their
credentials 	remain valid.
Notwithstanding the 	change 	in the 	law, 	the 	language 	of 	the
unit 	description 	easily 	translates 	into 	current 	terminology. 	The
words 	"all 	certificated personnel" 	mean simply 	"all 	personnel
required 	to meet minimum qualifications." 	The 	unit 	thus 	includes
all 	contract 	education 	instructors 	who are 	required 	to meet
minimum qualifications.10 Contract 	education 	instructors 	who 	are
8Statutes of 1988, 	chapter 973.
9See 	Education Code 	section 	87355 	et 	seq.
10It 	is 	clear 	from the 	record that 	contract 	education
instructors 	who 	teach 	credit 	courses 	are 	required to meet minimum
qualifications. 	There was 	no unilateral 	change 	in the 	rate 	of
13

not 	required 	to meet minimum qualifications 	are 	not 	included
within the unit.
pay 	for 	instructors 	teaching 	for 	credit 	classes 	in 	the 	contract
education program. 	The District 	has 	continued to 	compensate 	them
in the 	same manner as before.
The 	teaching 	of 	not-for-credit 	courses 	in 	the 	contract
education program is not, 	therefore, 	bargaining unit work because
the 	instructors 	are 	not 	required 	to meet minimum qualifications.
When 	the 	District 	reduced 	the 	pay 	for 	teaching 	the 	not-for-credit
classes 	it 	did not 	make 	a 	change 	affecting bargaining unit 	work
and did not 	fail 	to negotiate 	in good 	faith. 	Similarly, 	the
District 	did not 	fail 	to negotiate 	in good 	faith when 	it 	refused
the Union's 	request 	to negotiate about 	the 	rate 	of 	pay 	for
instructors 	of 	not-for-credit 	classes.
The burden of proof 	for showing a 	change 	in the past
practice 	is 	that 	of 	the 	charging party. 	(Oak Grove School
District 	(1985) 	PERB Decision No. 	503.) 	This 	includes a showing
that 	the 	change 	had a 	generalized 	effect 	or 	continuing 	impact
upon 	the 	terms 	and 	conditions 	of 	employment 	of 	"bargaining unit
members." 	(Grant Joint Union High School District, 	supra, 	PERB
Decision No. 	196.) 	Since 	the 	showing of an impact 	on the
bargaining unit 	is 	the responsibility of 	the charging party, 	I 	do
not 	find 	that 	the 	District 	asserted an affirmative 	defense 	by
raising 	this 	issue. 	I 	therefore 	reject 	the Union's 	argument 	that
the unit 	question must 	be 	rejected as 	an untimely 	raised
affirmative 	defense.
14

Accordingly, 	the allegation that 	the District violated EERA
section 3543.5(c), 	(a) 	and 	(b) 	must therefore be dismissed.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record in this matter, 	unfair practice 	charge
LA-CE-3271, 	Pasadena City College Chapter of 	the California
Teachers Association v. 	Pasadena Community College District, 	and
companion 	PERB 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	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 Cal. 	Code 	of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc. 	sec. 	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
15

filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	May 27, 	1994
Ronald E. 	Blubaugh
Administrative 	Law Judge
16