Poway Unified School District (PERB 1114E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
POWAY FEDERATION OF TEACHERS,
Charging 	Party,
v.
POWAY UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Case No. 	LA-CE-3364
PERB Decision No. 	1114
September 	14, 	1995
)
)
)
)
)
)
Appearances: 	Emily Shieh, 	Attorney, 	for Poway Federation of
Teachers; 	Brown and Conradi by Clifford D. 	Weiler, 	Attorney, 	for
Poway Unified 	School 	District.
Before Carlyle, 	Garcia and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	Poway
Federation of Teachers 	(PFT) 	to a proposed decision 	(attached) 	of
a 	PERB administrative law judge 	(ALJ). 	The ALJ found that 	the
Poway Unified School 	District 	(District) 	had not violated 	section
3543.5(a) 	and 	(b) 	of 	the Educational 	Employment Relations Act
(EERA)1 when it 	took adverse action against 	employees 	at 	several
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	EERA section 3543.5 provides, 	in
pertinent part:
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.

schools by issuing, 	and placing in their personnel 	files, 	formal
letters 	of 	reprimand because 	of 	the 	employees' 	concerted refusal
to 	attend back 	to 	school 	night 	activities.2 The ALJ 	then
dismissed 	the 	complaint.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	PFT's
statement 	of 	exceptions 	and the District's 	response 	thereto.
Based upon this 	review, 	the Board affirms 	the ALJ's 	proposed
decision.
PFT'S 	EXCEPTIONS
PFT 	filed exceptions 	to 	the proposed decision, 	arguing 	that
even if 	there 	is 	no protected conduct, 	the 	circumstances
surrounding 	the 	imposition of 	discipline 	raise 	an 	inference 	that
the 	reprimands were unlawfully motivated and therefore, 	the
District 	had 	the burden of 	showing 	that 	the 	discipline 	would have
been 	imposed 	regardless 	of 	the 	protected 	activity under Marin
Community College District 	(1980) 	PERB Decision No. 	145 	(Marin).
DISTRICT'S 	RESPONSE 	TO 	EXCEPTIONS
The 	District 	responded by 	showing 	that 	the 	ALJ 	considered
several 	indicators 	of 	the District's motive and the 	facts 	of
2The ALJ 	took official 	notice 	of 	another 	case 	involving
these parties 	(Poway Unified School 	District 	(1994) 	PERB Decision
No. 	1050 	(Poway)). 	in which the Board affirmed and adopted a
Board agent's 	dismissal 	of 	the 	charge. 	That 	case 	involved the
same 	collective 	bargaining 	agreement 	provisions 	and District
policy under examination 	in the 	case 	at bar. 	The Board agent
concluded 	that 	certain duties 	(supervision of 	student 	activities)
were 	required as 	a 	condition of 	employment.
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Marin made it inapplicable. 	The District repeated its
justification 	for having made 	the written reprimands, 	and made
note 	of 	the 	earlier 	PERB decision arising out 	of 	the 	same 	events
and involving 	similar legal 	issues 	(Poway) 	in which 	the Board
-
found no violation by the District.
Ma
DISCUSSION
The 	ALJ 	correctly 	found 	that 	PFT had not 	engaged 	in
protected 	conduct, 	because 	the 	record contains 	ample 	evidence
that 	attendance 	at 	back 	to 	school 	night 	was 	a mandatory 	term and
condition of 	employment 	that was 	known to all 	through
longstanding District Board policy. 	Furthermore, 	PFT has not
provided 	evidence 	to 	raise 	an 	inference 	that 	the 	reprimands 	were
unlawfully 	motivated.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3364 	is hereby DISMISSED.
Members 	Carlyle 	and Caffrey 	joined 	in 	this 	Decision.
33
!1l

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
POWAY 	FEDERATION OF TEACHERS,
Charging 	Party,
v.
POWAY UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3364	)
)
) 	PROPOSED DECISION
(5/18/95)	)
)
)
Appearances: 	Bobbitt and Gattey, 	by James M. 	Gattey, 	Attorney,
and Emily Shieh, 	Executive Director, 	for Poway Federation of
Teachers; 	Brown and Conradi, 	by Clifford D. 	Weiler, 	Attorney, 	for
Poway Unified School 	District.
Proposed Decision by W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
The 	controversy 	in 	this 	case 	arose 	during 	the 	course 	of 	the
parties' 	negotiations 	for a successor agreement 	during 	1992 	and
1993. 	The 	exclusive 	representative 	charges 	that 	the public
school 	employer took unlawful 	adverse action, 	in the 	form of
letters 	of 	reprimand, 	against 	unit members 	because 	they engaged
in a 	concerted refusal 	to participate 	in back 	to 	school 	night
classroom activities. 	Back to school nights, 	it 	is asserted,
involve voluntary activities, 	hence the employees' 	non-
participation was 	protected 	conduct.
The 	employer contends 	that 	the teachers' 	participation in.
back to school 	night 	events 	is not a voluntary assignment, 	but 	a
contractually 	required activity 	that 	is 	referenced 	in 	the
parties' 	negotiated agreement 	and a 	specific board policy. 	Thus
the 	refusal 	of 	the 	employees 	to perform a mandatory duty was 	a
violation 	of 	their 	contractual 	obligation and amounted 	to
~
~

insubordination. 	The 	issuance 	of written reprimands was 	an
appropriate 	response 	to 	their misconduct 	and was 	consistent 	with
the 	employer's 	past practice 	in addressing 	such actions.
PROCEDURAL 	HISTORY
On October 22, 	1993, 	the Poway Federation of Teachers 	(PFT)
filed 	an unfair practice 	charge 	with 	the 	Public 	Employment
Relations 	Board 	(PERB 	or Board) 	against 	the 	Poway Unified School
District 	(District), 	alleging violations 	of 	the Educational
Employment Relations Act 	(EERA or Act)1 .
Following an investigation of 	this 	charge, 	the Office 	of 	the
General 	Counsel 	of 	the 	PERB 	issued a 	complaint 	on December 	9,
1993, 	alleging 	that 	the District 	took adverse 	action against
employees 	at 	several 	schools by 	issuing, 	and placing 	in 	their
personnel 	files, 	formal 	letters 	of 	reprimand because 	of 	the
employees' 	concerted refusal 	to attend back 	to 	school 	night
activities. 	The 	complaint 	further alleges 	that 	the 	severity of
the 	discipline 	was 	motivated by 	the 	District's 	union animus 	and
its 	conduct 	thus violated section 3543.5(a) 	and 	(b).2
The 	EERA is 	codified at Government 	Code 	section 3540 	et
seq. 	All 	statutory 	references 	herein are 	to 	the Government 	Code
unless 	otherwise 	indicated.
2Section 3543.5(a) 	and 	(b), 	states, 	in pertinent part, 	as
follows:
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
22

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.
The 	District 	filed an answer 	to 	the 	complaint 	on January 	3,
1994, 	wherein it denied allegations 	of unlawful 	conduct and
asserted numerous 	affirmative 	defenses 	which will 	be 	addressed
later.
An informal 	conference held on January 24, 	1994, 	failed to
resolve 	the dispute.
A 	formal 	hearing was 	conducted by Administrative 	Law Judge
Allen R. 	Link on October 5 	and 6, 	1994. 	The filing of post-
hearing briefs was 	completed on January 12, 	1995. 	The 	case was
reassigned to this writer on March 8, 	1995, 	for issuance of a
proposed 	decision.
On March 24, 	1995, 	this writer notified the parties 	of an
intent 	to 	reopen and augment 	the 	record by adding 	evidence
concerning 	the 	collective bargaining agreement 	(CBA) 	that 	expired
in June 	1992 	and to 	clarify evidence about 	an exhibit 	that
purported to be a CBA covering the period from July 1, 	1991, 	to
June 30, 	1993. 	After conferring with the parties, 	the record was
reopened on April 	7, 	1995, 	to add stipulations 	developed by PFT
and 	the District, 	plus 	attachments 	which were 	identified and
received as 	joint 	exhibits.
The 	case 	was 	thereafter 	resubmitted 	for proposed decision,
effective April 7, 	1995.
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FINDINGS 	OF 	FACT
Background
The parties 	stipulated, 	and it 	is 	found, 	the District 	is a
"public 	school 	employer" 	and PFT 	is 	an 	"employee 	organization"
within the meaning of 	EERA. 	The District 	operates 	2 7 	regular
elementary and 	secondary 	schools 	that 	serve 	an 	estimated 	27,000
students. 	It employs more 	than 1,2 00 	teachers who are 	in the
certificated 	bargaining 	unit 	exclusively 	represented 	by 	PFT.
Since at 	least 	1980, 	PFT and the District have been parties
to a number of 	successive CBAs. 	In the 	summer of 	1992, 	they
commenced negotiations 	for a 	successor 	contract 	to 	the 	1991-92
CBA which expired on June 30, 	1992.3 These negotiations 	led to a
request 	for 	impasse 	in February 	1993, 	which was 	declared by 	PERB
on March 4, 	1993.
Prior to June 	1993, 	the parties had one negotiating 	session
with a 	state-appointed mediator, 	but 	no progress 	was made 	toward
resolution of 	any 	issues.
On or about June 	7, 	1993, 	PFT convened a meeting of unit
members 	to apprise 	them of 	the 	status 	of 	the negotiations. 	At
this meeting, 	which was 	attended by approximately 400 	people, 	a
3The 	parties 	have 	stipulated 	that 	the 	1991-92 	CBA was
ratified 	in September 1991, 	although the 	final 	document was 	never
signed, 	printed, 	or distributed. 	A copy of 	the 	final 	"working"
version of the contract, 	as 	ratified, 	is 	in evidence as 	joint
exhibit no. 	1.
It was 	also 	stipulated that 	the 	1992-93 	CBA in evidence 	as
respondent 	exhibit 	no. 	R was not 	ratified by the parties until
November 	1993, 	at 	the 	conclusion of 	the negotiations 	that
resulted in the 1993-96 CBA 	(respondent exhibit no. 	Q ) .
44

resolution was passed to 	"work-to-the-rule," 	i.e., 	to work the
contractual 	seven-hour day, 	exclusive of 	lunch, 	and to withhold
voluntary duties 	if 	negotiations 	were 	not 	progressing 	or 	settled
by the 	start 	of 	the 	1993-94 	school year.
The parties 	met 	again 	for 	one 	negotiating 	session 	sometime
in August 	1993, 	however the negotiations 	remained stalled. 	The
state mediator, 	nonetheless, 	did not 	certify their unresolved
issues 	to 	factfinding.
The Teachers' 	Non-Participation 	in Back To School Night
Activities
At 	a meeting with several 	hundred 	teachers 	on August 	31,
1993, 	the 	PFT leadership discussed implementation of 	the June
1993, 	"work-to-the-rule" 	resolution. 	It was decided that 	the
resolution 	should be 	implemented and 	guidelines 	were 	provided
regarding 	the 	seven-hour workday and 	the performance 	of
extracurricular activities. 	The decision 	regarding 	the 	teachers'
participation 	in back 	to 	school 	night 	activities 	was 	left up 	to
the 	individual 	school 	sites.
The 	next 	day both PFT and 	the 	District 	began 	to distribute
memoranda 	regarding 	the 	status 	of 	the 	negotiations 	and 	the
possibility of 	the 	teachers' 	non-participation 	in various 	non-
teaching assignments, 	including the back to 	school 	nights. 	Back
to 	school 	nights 	traditionally have been held within 	the 	first
few weeks 	of 	the 	opening of 	school.
For example, 	in a memo dated September 1, 	1993, 	David Hughes
(Hughes), 	assistant superintendent of personnel 	support services,
sent a memo 	to all 	principals 	that discussed 	(1) 	the 	status 	of
5

negotiations 	in relationship to 	the 	teachers' 	workday and the
District's 	expectations 	regarding 	the 	teachers' 	performance 	of
required 	supervisory duties, 	including participation 	in back 	to
school night activities, 	and 	(2) 	the principals' 	responses to
teachers 	about 	their non-performance 	of 	such duties 	as 	it 	related
to unauthorized absences. 	Hughes' 	memo also stated that 	the
District 	did not 	believe 	that 	PFT was 	advocating non-performance
of 	required duties.
PFT 	President 	Don Raczka 	(Raczka) 	also 	issued a memo 	to 	PFT
building 	representatives 	and officers, 	which stated 	in pertinent
part:
Obviously, 	the 	FAX that principals 	received
from the 	District 	yesterday has 	taken 	some
wind out 	of 	some sites' 	sails. 	Now really.
Did you actually 	think 	that 	if 	you 	threatened
to postpone, 	boycott 	(or whatever other verb
you 	considered) 	Back-To-School 	night 	that 	the
District would say, 	"Oh! 	O.K. 	You're right,
of 	course! 	How silly of me!! 	These after
school 	activities 	have 	been voluntary and we
understand how you 	feel. 	So we'll 	reschedule
the Open House 	to another night when all 	this
blows over." 	Yeah, 	right!
So principals have this 	"list" 	of duties.
Evidently, 	the 	FAX communicated to principals
not 	to 	cooperate with their teachers. 	So?
Is 	there 	any change 	to our position? 	NO. 	It
remains 	the 	same. 	We 	consider the extra
hours assignments 	as voluntary, 	and sites
should use 	the 	guidelines 	PFT has 	given you.
Sure, 	I understand that there is some
additional pressure 	on you at 	the 	sites.
Yes, 	if you 	collectively take action at your
site, 	your teachers might 	receive a Letter of
Reprimand. 	Yes, 	PFT will 	help you write a
collective 	response 	and make 	sure 	it 	gets
attached 	to 	that 	letter 	(and gathers 	dust 	in
your personnel file).
6
6

On or about 	September 2, 	1993, 	Raczka distributed a 	flyer to
the teachers 	entitled 	"Work-To-The-Rule, 	It's not 	'Business 	as
Usual'." 	This 	document 	set 	forth specific 	guidelines 	and
recommendations 	of 	the 	PFT 	officers 	regarding what 	working
strictly within 	the 	time 	frame 	of 	the 	contractual 	day and
withholding voluntary duties 	and services meant. 	It 	also
included 	the 	following 	comments
The thorny issue, 	of course, 	is whether the
activities 	you 	are 	refusing 	to perform are
required activities 	or voluntary. 	You must
perform your 	normally 	required 	and 	assigned
duties. 	There 	is no 	requirement 	for you to
perform voluntary activities. 	For each
activity, 	you must ask yourself: 	"Is it
purely my 	choice 	to participate 	or is 	it
being 	assigned 	as 	a mandatory 	duty by my
administrator?" 	These are 	not 	easy questions
to 	answer and 	really 	should be made 	in
conjunction with your 	site 	and your 	PFT
Building 	Rep.
On the 	first day of 	school, 	which was 	September 2, 	PFT
distributed another 	flyer 	to 	teachers 	entitled 	"Q 	& A on 	the
Seven-Hour Day." 	This 	flyer 	offered 	PFT's view of 	how specific
non 	teaching duties 	fit 	within the parameters 	of 	the work-to-the-
rule 	resolution. 	It 	also advised teachers 	on how to 	respond 	to a
direction 	from the 	principal 	to 	take 	on 	extra-curricular
activities 	and 	addressed why 	PFT had not 	directed a 	districtwide
boycott 	of 	such activities, 	particularly back to school 	night.
In this 	regard, 	the 	flyer stated
Following 	the direction you gave, 	both 	in
June and last week, 	PFT has 	called for a
strict, 	work-to-the-rule 	7-hour workday.
Because 	of 	the 	immediacy of 	the Back-to-
School-Nights, 	we 	felt 	it was up to each
individual 	site 	to make 	the 	determination 	for
7
7

that 	particular activity. 	Unlike 	the
District Office, 	the PFT believes 	in site-
based management. 	The 	important 	thing 	is
that 	all 	the 	teachers 	at 	your school 	can come
to 	a decision and take 	concerted action.
Each 	school 	should decide 	for 	themselves 	what
action will 	be most 	effective 	at 	their site
and which action will 	receive 	the broadest
support.
Finally, 	the 	flyer again acknowledged 	that 	although 	PFT believed
that 	a 	collective 	decision not 	to attend back 	to 	school 	night 	was
a 	"protected activity" 	under 	the 	EERA, 	PFT anticipated that 	the
teachers 	would 	receive 	letters 	of 	reprimand and 	it 	was 	helping
each site 	to draft 	a 	collective 	response 	for all 	teachers 	that
could be 	attached 	to 	the 	reprimand.
Assistant 	Superintendent 	Hughes 	sent 	another memo 	to 	all
principals 	on September 	8, 	1993, 	advising them about how to
respond 	to various 	questions 	related to 	the 	teachers'
participation in back to school 	night activities. 	His memo
explicitly 	stated 	that 	"attendance 	at 	Back-to-School 	Night 	is 	a
contractually 	required activity as 	referenced 	in 	the 	contract 	and
specifically 	stated 	in Board 	Policy." 	The memo 	further advised
principals 	to notify 	teachers 	in writing, 	that 	their attendance
was 	required and expected, 	and failure 	to attend, 	without 	cause,
would 	subject 	the 	teachers 	to disciplinary action. 	Among 	other
items 	addressed, 	the memo also advised principals 	that back 	to
school 	events 	should not 	be 	re-scheduled 	or 	cancelled. 	Hughes
also 	sent 	a 	sample 	letter of 	reprimand with his 	September 	8 	memo
and directed 	the 	issuance 	of 	the written 	reprimands 	that 	are 	at
issue 	in this 	case.
8

Back to 	school 	night 	is 	described as 	an open house where
teachers 	explain 	their programs 	for the 	coming year 	to parents.
Each 	teacher 	is 	responsible 	for his/her 	own 	classroom
presentation. 	The 	dates 	and 	other non-classroom events 	presented
at back to 	school 	night vary from school 	to school, 	depending,
among other things, 	on the grade levels 	involved. 	The District's
back 	to 	school 	night 	activities 	for 	the 	1993-94 	school 	year were
scheduled to begin on September 	8 	through 	the 	third week of
September.
Most 	principals 	informed 	their 	staff 	of 	the 	District's
position 	and 	distributed 	some 	type 	of 	written 	information
regarding 	the District's 	expectation of 	the 	teachers prior 	to 	the
date 	of 	their 	scheduled back to 	school 	activities.
Between September 8 and September 23, 	1993, 	teachers at nine
school 	sites 	did not participate 	in the back to 	school 	night
classroom activities 	at 	their respective 	sites.4 On 	their
scheduled nights, 	some 	teachers went 	to 	their school 	sites 	and
distributed flyers 	about 	the 	status 	of 	the parties' 	negotiations
to 	the parents 	as 	they arrived at 	the 	school 	campuses. 	Others
offered 	to meet 	with parents 	during 	their workday, 	but 	none 	of
them went 	to 	their 	classrooms 	to make 	a presentation. 	Others
simply 	stayed home.
4The 	school 	sites where 	the 	teachers' 	concerted activities
occurred were 	Rancho Bernardo High School, 	Bernardo Heights
Middle School, 	Black Mountain Middle School, 	Middlebrook Middle
School, 	Twin Peaks Middle School, 	Canyon View Elementary School,
Painted Rock Elementary School, 	Sierra Bonita Elementary
School 	and Valley 	Elementary 	School.
99

At 	the District's board meeting on September 20, 	1993,
Raczka made 	a presentation 	to 	the board during which he 	proposed
that 	PFT would ask 	the 	teachers 	to 	cease all public
demonstrations 	regarding the negotiations, 	but 	to 	continue 	to
withhold unpaid, 	after-hours supervision of sports, 	clubs, 	or
social 	activities, 	except 	for the 	remaining back to 	school
nights, 	if 	the District would commit 	to a set number of
intensified days 	of 	negotiation and agree 	to 	submit 	their dispute
to 	factfinding. 	Although 	the 	board did not 	publicly accept
Raczka's proposal, 	the parties 	shortly thereafter agreed to
additional 	negotiating dates.
Following Raczka's 	September 20 	proposal, 	two 	teachers
received 	letters 	of 	reprimand 	for non-attendance 	at 	the 	back 	to
school 	night 	activities 	at Mount 	Carmel 	High School 	on
September 30, 	1993.
In total, 	338 members 	of 	the bargaining unit 	received
written 	reprimands 	for not 	attending 	their 	respective 	back 	to
school 	night activities. 	In the 	reprimands 	the 	teachers were
accused of violating board policy, 	the CBA, 	taking an
unauthorized absence 	and 	insubordination. 	A copy 	of 	the
reprimand was 	placed 	in each employee's 	District 	personnel 	file.
One 	teacher at 	Painted Rock 	Elementary School 	filed a 	grievance
regarding her reprimand on September 	16, 	1993. 	The grievance was
denied at 	level 	II 	of 	the 	contractual 	grievance procedure 	and not
pursued 	any 	further.
10

At one site, 	Bernardo Hills Middle School, 	the principal
postponed 	the back 	to 	school 	night 	for students 	in grade 	six as 	a
result 	of 	a misunderstanding 	regarding 	advice 	he 	received 	from
Hughes. 	Consequently, 	no written reprimands were 	issued to 	the
teachers 	who did not 	attend that 	event.
The parties' 	subsequently 	settled their negotiations 	in
October 	1993, 	without 	submitting the dispute to 	factfinding. 	On
November 22, 	1993, 	they ratified a CBA with an effective 	term
from July 1, 	1993, 	to June 30, 	1996.
Relevant 	Provisions 	of 	the 	CBA and District 	Policy
Section VIII 	of 	the 	1991-92 	CBA contained provisions
covering unit members' 	hours of employment. 	This 	section reads,
in relevant part, 	as 	follows:
WORK 	DAY
The 	school 	based work day 	for 	teachers 	in 	the
Poway Unified School 	District 	shall 	be 	seven
(7) 	hours, 	not 	including a minimum 30-minute
duty-free 	lunch period. 	Prep periods
approximately 	equal 	to 	1/5 	the 	classroom
instructional 	time 	shall 	be provided 	teachers
in grades 	6-12.
Each 	teacher 	shall 	be 	on duty prior 	to
the beginning of 	the 	instructional 	day
for an adequate amount 	of 	time 	to
discharge 	any 	routine 	or 	special
professional 	responsibilities 	or
assignments 	and to prepare 	for the
teaching 	day.
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.
11

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.
Unauthorized absence may 	include, 	but 	is
not 	limited to, 	refusals 	to provide
service, 	. 	. 	. non-attendance at
required meetings, 	and failing to
perform supervisory 	functions 	at 	school-
sponsored 	activities.
An 	employee 	is 	deemed to be 	on
unauthorized absence 	at 	such 	time 	and 	on
such occasions 	as 	the 	employee may
absent 	him/herself 	from 	required 	duties
without prior approval 	of 	his/her
principal 	or 	immediate 	supervisor,
except 	as provided 	for 	in 	this
agreement.
The 	CBA also 	contained 	grievance 	procedures 	(Section VI)
that 	culminated 	in a 	final 	decision by the District board.
Although 	the 	grievance/arbitration provisions 	allowed 	claims 	by
unit members 	of violations, 	misinterpretations 	or misapplication
of 	express 	terms 	of 	the 	contract, 	it provided limited grievance
rights 	for PFT.5
During all 	times 	relevant 	to 	this 	case, 	the District 	had a
board policy 	in effect 	that pertains 	to a 	teacher's 	non-
instructional 	responsibilities. 	This policy, 	designated as 	Board
5PFT's 	right 	to 	file 	a grievance was 	limited to an alleged
violation of Section I 	(Recognition), 	Section XII 	(Rights of the
Exclusive Representative), 	or any other specific 	subsection of
the 	CBA where 	a 	right was 	created solely 	for the benefit 	of 	PFT
as 	an entity.
12

Policy Section 4.205 	(Teacher Responsibility) 	reads, 	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:
Open houses, 	PTA functions, 	Back-to-
School Nights, 	and other meetings with
parents.
This 	policy was 	incorporated 	into 	the 	terms 	of 	the 	1991-92 	CBA
through 	the work day language 	set 	forth 	in Section VIII 	(supra,
- -
at p. 12).
The 	District's 	position description 	for all 	classroom
teachers 	also 	states 	that 	one 	of 	the major professional 	tasks 	of
teachers 	is 	to 	"[M]eet 	obligations 	as 	specified by 	the 	Board 	of
Education 	in Board policies."
The District's 	Past 	Practice 	Re Discipline 	for Failure 	to
Participate 	in Back 	to School 	Night Activities
PFT contends 	that, 	in responding to the teachers' 	concerted
activity 	in September 	1993, 	the District 	ignored 	its progressive
disciplinary procedures 	that 	apply 	to unpaid, 	extra-curricular
assignments by issuing written, 	instead of oral, 	reprimands.
It 	is undisputed that 	the District 	has 	an administrative
procedure 	that 	provides 	for discipline 	in the 	event 	that 	a
teacher 	fails 	to perform extra assignments 	besides 	classroom
teaching. 	Administrative 	Procedure 	Section 4.2 05.1 	has been 	in
effect since July 29, 	1991. 	This procedure states 	that 	it 	is
13

. 	. 	. 	designed to assist managers in dealing
constructively with 	any 	instances 	in which
teachers 	fail 	to perform such prescribed
responsibilities. . . .
Section 	4.205.1 	outlines 	a 	three-step 	progressive
disciplinary process. 	Step 	1 	calls 	for an oral 	reprimand, 	with
or without 	written confirmation of 	such reprimand. 	Step 2
provides 	for a written reprimand with a warning 	of 	further more
severe disciplinary action if 	the action 	is 	repeated. 	At 	Step 3,
the 	employee may 	receive 	a more 	severely written reprimand, 	and
consideration 	of 	further 	disciplinary 	action 	such 	as 	a 	suspension
or docking 	of pay.
Written reprimands 	issued at 	Steps 	2 	or 3 	are given to 	the
employee 	for 	review and 	comments, 	which are attached 	to 	the
reprimand and placed with 	it 	in 	the 	employee's 	District 	personnel
file.
The evidence establishes, 	that with minor exceptions,6
traditionally most 	teachers 	have been required to participate 	in
back to 	school 	night 	activities 	or be 	subject 	to discipline. 	For
example, 	one witness 	recalled a couple 	of 	instances when a
teacher 	failed to attend a back to 	school 	night 	event, 	the
teacher received a 	"scolding," 	i.e., 	oral 	reprimand, 	from the
principal 	the 	next 	day.
6There 	is 	testamentary evidence 	that 	prior to 	September
1993, 	certain unit members, 	such as 	resource and special
education 	teachers 	who 	have 	no 	specifically 	assigned 	classroom or
students 	at 	the beginning of 	the 	school year, 	have not attended
back 	to 	school 	nights 	and were 	not 	disciplined. 	This 	testimony,
however, 	reflected initial actual, 	and continuing implicit,
consent 	of 	the 	site 	administrator or the principal 	on a 	case-by-
case basis.
14

In 	September 	19 83, 	during protracted negotiations 	between
PFT and 	the 	District, 	the 	teachers 	at 	Twin 	Peaks 	Middle 	School
decided 	to 	take 	action 	"on 	their 	own" 	by 	boycotting 	their
school's 	scheduled back 	to 	school 	night 	activities. 	This
concerted 	action 	was 	neither 	initiated 	nor 	sanctioned 	by 	PFT.
All 	teachers 	who 	engaged 	in 	the 	boycott, 	including 	Raczka 	who 	was
then 	a 	classroom 	teacher 	at 	Twin 	Peaks, 	received 	written
reprimands 	immediately 	following 	the 	boycott.7 The 	text 	of 	the
reprimands 	issued 	in 	1983 	was 	similar 	to 	those 	issued 	in
September 	1993.
In 	1983 	the 	teachers 	filed 	a 	group 	response 	to 	their
reprimands, 	but 	no 	grievances 	were 	filed.
Other 	than 	the 	1983 	incident, 	there 	is 	no 	documented
instance 	of 	a 	teacher 	receiving 	a 	written 	reprimand 	for 	failing
to 	attend 	back 	to 	school 	night 	activities 	until 	the 	concerted
action 	occurred 	in 	September 	1993.
ISSUES
(1) 	Whether 	the 	teachers' 	concerted 	refusal 	to participate
in 	back 	to 	school 	night 	activities 	was 	a 	"protected 	activity"
under 	EERA?
(2) 	If 	so, 	was 	the 	discipline 	imposed 	on 	the 	teachers 	in
violation 	of 	section 	3543.5(a) 	and/or 	section 	3543.5(b)?
7 In 	19 83, 	the 	relevant 	language 	of 	the 	CBA, 	the District
board 	policy 	and 	administrative 	procedure 	relied 	on 	by 	the
District 	to 	impose 	discipline 	were 	substantially 	similar 	to 	those
in 	effect 	in 	1993.
15

CONCLUSIONS 	OF 	LAW
The Standard 	for a 	Prima 	Facie 	Case 	of 	Discrimination
Section 3543.5(a) 	prohibits public 	school 	employers 	from
discrimination and 	reprisals 	against 	employees 	who 	engage 	in
conduct 	protected by 	the 	EERA. 	The 	express 	rights 	guaranteed 	to
public 	school 	employees by section 	3543 	includes 	the 	right 	to
" . . . 	participate 	in activity of 	employee 	organizations 	of 	their
own choosing 	for 	the purpose 	of 	representation on all matters 	of
employer-employee 	relations."
In this 	case, 	it 	is alleged that 	the District unlawfully
disciplined 	teachers 	in 	reprisal 	for 	their 	concerted 	refusal 	to
perform voluntary non-teaching 	services, 	a 	right 	which 	is
protected by 	EERA. 	The District's 	action allegedly violated
section 3543.5(a) 	and also 3543.5(b) 	because 	it denied PFT the
right 	to 	represent 	its members.
In Novato Unified School District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	PERB refined the test and general 	standards 	to
be 	applied 	in discrimination cases. 	In order 	to establish a
violation of 	section 3543.5(a) 	under Novato. 	the 	charging party
has 	the burden of 	showing 	that 	there was 	some 	engagement 	in
protected activity; 	the 	respondent 	knew of 	this participation 	in
protected activity; 	and 	the 	respondent 	took adverse 	action
motivated by 	that 	activity. 	Proof 	of 	a 	connection 	or nexus
between 	the 	protected 	activity 	and 	the 	adverse 	action may be
established by direct 	or 	circumstantial 	evidence 	and 	inferences
drawn 	from the 	record as 	a whole. 	(Livingston Union School
16

District 	(1992) 	PERB Decision No. 	965.) 	Once a nexus 	is
established, 	the burden shifts 	to the 	respondent 	to demonstrate
that 	it 	would have 	taken 	the 	same action 	regardless 	of 	the
employees' 	participation 	in protected conduct. 	(Novato.)
Refusal 	to 	Participate 	in Back 	to 	School 	Night Activities
Here 	it 	is undisputed that 	in September 1993, 	many of 	the
teachers had decided to work-to-the-rule, 	that 	is, 	to perform
exactly those 	duties 	which were 	required but 	no more.8 In a
work-to-the-rule 	case, 	the 	inquiry 	focuses 	on whether or not 	the
activities 	which were 	not 	performed were 	required 	or voluntary.
"The 	refusal 	to do voluntary activities 	is 	protected 	conduct,
while 	the 	refusal 	to 	do 	normally 	required assigned 	and assigned
adjunct duties 	is not." 	(Modesto City Schools 	(1983) 	PERB
Decision No. 	291 	(Modesto), 	citing Palos Verdes Peninsula Unified
School District 	(1982) 	PERB Decision No. 	195 	(Palos Verdes).)
Thus, 	if 	the 	teachers' 	were required to attend back to school
night, 	their 	concerted refusal 	to participate 	in the manner
required of 	them by the District was 	unprotected 	conduct. 	If,
however, 	attendance or participation was not required, 	then the
refusal 	to participate was 	lawful 	and the 	teachers 	were merely
8It 	is 	further undisputed that 	the actions 	at 	issue were not
instigated by 	PFT. 	Although 	PFT had 	led 	the membership 	in
adopting 	a 	resolution 	to work-to-the-rule 	in order 	to 	apply
pressure on the District 	in the negotiations, 	it 	is 	clear that
the boycotting 	of 	back to 	school 	nights 	was 	not 	PFT-directed.
Within this 	time 	frame, 	the 	teachers at 	approximately five 	or six
school 	sites 	attended and participated 	in 	the back 	to 	school
nights. 	Thus 	it 	is 	evident 	that 	the decision not 	to attend back
to 	school 	nights 	was made by the 	teachers 	at 	the 	individual
school 	sites.
17

exercising 	their protected 	rights 	to participate 	in 	the
activities 	of 	an 	employee 	organization.
The District argues 	that 	teachers' 	participation in back to
school night 	is a mandatory duty. 	This duty, 	it maintains, 	is
mandated by the 	language 	of Article VIII 	of 	the 	CBA, 	which
requires 	the performance 	of 	the professional 	responsibilities
specified 	in board policy section 4.205. 	Further, 	the 	teachers'
job description 	requires 	the 	performance 	of 	obligations 	specified
by board policy. 	All 	of 	these 	documents 	have been 	in existence
since 	the mid 70s 	and early 	80s. 	Board policy section 4.205, 	it
is 	argued, 	expressly mandates participation in back to 	school
nights 	"as a condition of employment." 	Thus, 	it 	is argued, 	the
plain 	language 	of 	the 	governing documents 	clearly make
participation 	in back 	to 	school 	nights 	a 	required duty.
PFT defends 	its 	theory of 	the 	"voluntary" 	nature 	of 	this
duty by asserting 	that 	the 	District 	has 	not 	consistently 	enforced
similar refusals 	to participate. 	It also maintains 	that although
board policy 	section 	4.205 	lists 	a 	wide variety 	of 	activities
that are 	secondary, 	including back to school nights, 	to a
teacher's primary 	instructional 	tasks, 	the manner or extent 	of
participation 	in the 	secondary activities 	is not 	defined. 	Hence,
teachers 	who 	appeared 	and 	attempted 	to 	fulfill 	their 	obligation
to meet with parents 	outside 	the 	scheduled periods, 	"participated
in a 	limited and unorthodox manner" 	but 	they did act 	to 	ensure
that 	the 	goals 	of 	the 	evening were met.
18

The 	relevant 	language 	of Article VIII 	of 	the 	1991-92 	CBA
makes 	it 	clear 	that 	teachers 	are 	required 	to 	remain on duty after
the 	close 	of 	the 	school 	day 	"to discharge 	responsibilities as
required 	in 	the 	appropriate 	job 	description and 	specified 	in
board policy." 	Board policy 	section 	4.205 	states 	explicitly 	that
one of 	those 	responsibilities, 	in addition to the 	instructional
duties 	and 	tasks 	is 	to participate 	in back to 	school 	night
activities. 	There 	is nothing 	in the 	language 	of 	the policy that
indicates 	that participation 	in back to school 	nights 	is
voluntary 	in nature 	or that 	the 	District 	has 	granted 	teachers
discretion 	in the manner 	in which 	they perform this 	duty. 	In
fact, 	the District's policy specifies 	that participation 	in such
activities 	is 	"required as 	a 	condition of 	employment."
Thus, 	once 	the back to 	school 	nights were 	scheduled in
September 	1993, 	individual 	teachers 	had no right 	to boycott 	them.
There was 	no 	longer a 	right 	to 	choose whether or not 	to
participate. 	The 	scheduled back to 	school 	nights 	became 	as much
a 	required duty as 	teaching. 	Even 	though 	some 	teachers 	showed up
on 	the 	night 	of 	their 	scheduled event 	and 	offered 	to meet 	with
parents 	at 	other times, 	this did not 	compensate 	for their absence
from 	the 	classroom meeting with parents 	to 	explain 	their
educational 	program for 	the 	coming year. 	PFT's 	argument 	that 	the
majority of 	the 	disciplined 	teachers 	"participated" 	in a 	limited
and unorthodox manner 	is 	therefore not persuasive.
In 	fact, 	PERB has 	stated that 	employees may not assert 	a
protected 	right 	to 	determine 	for 	themselves 	whether 	they will
19

perform required duties. 	(El 	Dorado Union High School 	District
(1985) 	PERB Decision No. 	537 	(El Dorado).) 	In El Dorado the
Board held 	that 	a partial 	work 	stoppage 	or 	slowdown 	is
unprotected and is 	also unlawful, 	since a partial 	withholding of
services 	denies 	the 	employer 	the 	opportunity to 	"defend 	itself"
against 	the action. 	(See 	San Ramon Valley Unified School
District 	(1984) 	PERB Decision No. 	IR-46 	(San Ramon).)9
Those principles 	apply to 	this 	situation. 	PFT and the
teachers were well 	aware 	that 	on back to 	school 	nights, 	the
teachers 	were 	expected to make presentations 	in their 	classrooms
and not 	at 	a 	time 	and 	location determined by the 	teachers
themselves.10
For these reasons, 	it 	is 	concluded that 	the teachers'
concerted 	refusal 	to participate 	in back 	to 	school 	night
"classroom" 	activities was 	unprotected 	conduct 	as 	well 	as 	a
9In San Ramon, 	the 	Board 	concluded that 	although the
teachers 	may not 	have 	absolutely withheld the 	services 	to be
performed during 	the pre-class 	period, 	their 	insistence 	upon
performing 	them off 	school 	premises 	had 	the 	similar potential 	of
denying 	the 	employer 	the 	opportunity 	to accommodate 	itself 	to 	the
teachers 	action.
10See 	also 	Palos 	Verdes 	wherein 	the 	Board 	concluded 	that 	the
teachers' 	refusal 	to give 	"discretionary" 	final 	exams as part 	of
its 	bargaining 	strategy 	constituted a partial 	work 	stoppage. 	The
Board determined 	that 	implicit 	in 	the 	teacher's 	discretionary
location 	in which 	to perform required pre-class 	services 	is 	the
student 	oriented requirement 	that 	they be 	available 	in 	the
school. 	Because 	their choice was based 	solely on 	their
bargaining 	strategy, 	the Board 	found 	it 	to be a partial 	work
stoppage and a violation of 	section 3543.6(c) 	of 	EERA.
20

violation of 	the 	CBA.11 Having made 	this 	conclusion, 	it 	is
determined 	that 	PFT has 	failed 	to 	establish 	the 	threshold
requirement 	in a discrimination case, 	i.e., 	that 	the employees
engaged 	in protected activity. 	Under 	the Novato 	standard,
further 	analysis 	may properly 	end.
The District's 	Imposition 	of 	Discipline
Even where 	the 	refusal 	to perform an activity 	is 	found 	to be
unprotected, 	further inquiry may be 	required, 	nonetheless, 	where
it 	is 	alleged 	that 	the nature 	or severity of 	the 	ensuing
discipline 	evidences 	improper motivation. 	(Modesto.)
Here, 	PFT argues that, 	in responding to the teachers
concerted activity, 	the District 	ignored 	its 	own progressive
disciplinary procedure 	by 	issuing written 	instead 	of 	oral
reprimands 	as 	called 	for 	in Step 	1 	of 	District 	administrative
procedure 	section 4.2 05.1. 	The District 	thus 	imposed a more
severe 	form of discipline, 	PFT asserts, 	without 	regard for its
own procedure 	or an 	investigation of 	the 	individual 	teacher's
circumstances. 	PFT also 	contends 	that 	the discipline was
11Official notice 	is 	taken of 	another unfair practice 	case
involving these parties, 	Case No. 	LA-CE-3387, 	filed on
December 15, 	1993. 	The 	latter charge 	involved the same 	time
frame 	as 	the 	instant 	case 	and presented 	the 	issue 	of 	an alleged
unilateral 	change 	of 	policy 	on 	teacher 	supervision of 	student
activities.
In LA-CE-3387, 	the Board agent 	traced the 	same 	CBA
provisions 	and District 	policy under 	examination here 	and
determined 	that 	the 	plain meaning 	of 	the 	language was 	that
certain duties 	(supervision of 	student 	activities) 	were 	required
as 	a 	condition of 	employment. 	The Board affirmed and adopted the
Board agent's 	warning 	and dismissal 	letters 	in 	Poway 	Federation
of 	Teachers v. 	Poway Unified School 	District 	(1994) 	PERB Decision
No. 1050.
21

disparate 	in that 	there was 	no evidence 	that 	teachers who had
individually 	failed 	to attend back 	to 	school 	nights 	in past 	years
had 	ever 	received more 	than an 	oral 	reprimand 	except 	when 	large
groups 	of 	teachers 	engaged 	in 	concerted activities.
The District 	defends 	its 	conduct 	on 	the ground 	that 	the
primary motivation 	for the 	discipline was 	the 	teachers'
insubordination. 	Those 	teachers 	who 	failed to attend their back
to school 	nights 	events, 	without 	cause, 	after being told that 	it
was 	a 	required and 	expected duty 	took 	"unauthorized absences" 	in
violation 	of 	their 	contractual 	obligation 	found 	in Section VIII
of 	the CBA. 	The District 	further argues 	that prior 	to 	the
teachers' 	boycott, 	the District warned them of 	the 	consequences
of non-attendance. 	Finally, 	the District maintains 	that
administrative procedure 	section 4.2 05.1 	is 	not 	applicable 	to 	the
activity at 	issue 	since 	it 	was 	not 	an 	"extra-curricular
assignment" 	but a part of 	the 	teacher's 	regular responsibilities.
And that 	even if 	arguably applicable, 	the procedure 	is 	only a
"guideline" 	to assist managers 	in dealing with 	instances 	of
teachers 	non-performance 	of 	duties.
For 	several 	reasons, 	the 	circumstances 	surrounding 	the
September 	1993 	and October 	1993 	imposition of 	discipline 	do not
raise 	an 	inference 	that 	the 	reprimands 	were unlawfully motivated.
First, 	the District notified the 	teachers 	in advance of 	the
discipline 	that 	might 	be 	imposed 	if 	they 	failed 	to participate 	in
a 	required duty. 	Second, 	PFT also 	indicated 	in 	two memos 	to unit
members 	in early September 1993, 	that 	it anticipated that
22

teachers 	would 	receive 	letters 	of 	reprimand and 	that 	it 	would
help 	them to draft 	collective 	responses 	for attachments 	to 	the
reprimands. 	Third, 	PFT knew from the District's 	response 	to 	the
teachers' 	September 	1983 	concerted action that 	the District 	would
regard a boycott 	of 	back to 	school 	nights 	as 	a 	contractual
violation and probable insubordination. 	And, 	lastly, 	PFT, 	the
teachers 	and 	the 	District 	recognized 	the 	educational 	importance
of 	the back 	to 	school 	nights 	classroom presentations 	to 	the
parents.
Even 	if 	District 	administrative 	procedure 	section 	4.205.1
was applicable to the teachers' 	conduct, 	the use of oral
reprimands 	in prior 	routine 	situations 	need not 	dictate 	the
District's 	response 	to an 	imminent 	partial 	work 	stoppage with
potentially 	significant 	consequences. 	Both 	the 	teachers 	and 	PFT
were well 	aware 	of 	the 	risks 	involved 	in refusing 	to perform a
required activity. 	In this 	instance 	the District's proffered
justification 	is 	sufficient 	to uphold 	the 	issuance 	of 	reprimands
in September and October 	1993. 	It 	is 	therefore 	concluded 	that
the District's 	discipline 	of 	its 	employees 	for refusing 	to
perform required duties 	did not violate 	section 3543.5(a). 	The
allegation 	should 	therefore 	be 	dismissed.
The Section 3543.5(b) 	Allegation
The 	complaint 	also alleges 	that 	the District's 	conduct
denied PFT the 	right 	to 	represent 	unit members 	in violation of
section 3543.5(b). 	No independent 	evidence was presented to 	show
that 	the 	District's 	disciplinary actions 	against 	the 	teachers
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interfered with 	PFT's 	representational 	rights 	guaranteed by 	EERA.
Thus, 	the allegation of a section 3543.5(b) 	violation must also
be 	dismissed.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in 	this 	case, 	and pursuant 	to 	section
3541.5(c) 	of 	the Government 	Code, 	it 	is hereby ordered that 	the
underlying unfair practice 	charge 	and 	complaint 	be 	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. 	32300.) 	A document 	is 	considered 	filed" 	when
actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the 	last 	day set 	for filing 	. . . " 	(See Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	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
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filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
11
W. JEAN THOMAS
Administrative Law Judge
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