East Side Union High School District (Hernandez) (PERB 1236E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RICHARD A. 	HERNANDEZ,
Charging 	Party,
v.
EAST 	SIDE 	UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-1949
PERB Decision No. 	1236
December 1, 	1997
Appearance: 	Richard A. 	Hernandez, 	on his own behalf.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Richard A. 	Hernandez
(Hernandez) 	to a Board agent's dismissal 	of his unfair practice
charge. 	In his charge, 	Hernandez alleged that the East Side
Union High School 	District 	(District) 	violated the 	Educational
Employment 	Relations Act 	(EERA)1 by assigning him to 	teach
outside 	his 	credentialed area 	in violation of 	a provision of 	the
collective bargaining agreement 	(CBA) 	between the District 	and
the East 	Side Teachers Association 	(Association).
BACKGROUND
Hernandez 	is 	employed as 	an instructor in the District, 	and
is 	exclusively represented by the Association. 	The District 	and
the Association are parties 	to a CBA in effect 	from
EERA	1EERA is 	codified at Government Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
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August 31, 	1996 through August 30, 	1999. 	Article 8 of the CBA
states, 	in pertinent part:
8.3 	Reassignments 	will 	not 	be 	arbitrary 	or
capricious. 	Such placements must 	conform to
Ed. 	Code and credential 	requirements.
8.5 	The District will make 	every effort 	to
balance 	teacher 	schedules 	so 	that 	equal
opportunity is 	afforded all 	unit members 	who
request 	to teach all 	levels of 	courses,
regardless 	of 	seniority.
On July 2, 	1997, 	Hernandez 	filed the 	instant unfair practice
charge, 	which states 	in its entirety:
-See Attached 	Papers- 	Violated Article 	8.3
of 	the 	collective Bargaining agreement.
Assigned Richard Hernandez 	to 	teach 	outside
of 	his 	credentialed area 	and did 	this 	with
full 	knowledge 	that 	this 	did not 	conform to
the Ed. 	Code.
The Board agent 	dismissed his 	charge 	for lack of 	standing.
HERNANDEZ' APPEAL
Hernandez 	filed an appeal 	which 	challenges 	the basis 	on
which 	the 	Board agent 	dismissed his 	charge.
DISCUSSION
Although 	the Board agent 	dismissed 	this 	case 	for 	lack of
standing, 	we 	conclude 	that 	EERA requires us 	to dismiss 	the 	charge
for a different 	reason.2 EERA section 3541.5(b) 	provides 	that:
The board shall 	not 	have 	the 	authority 	to
enforce agreements between the parties, 	and
shall 	not 	issue 	a 	complaint 	on any charge
based 	on alleged violation 	of 	any 	agreement
that would not 	also 	constitute 	an unfair
practice under this 	chapter.
2Because 	this 	case 	is 	being dismissed 	for a different
reason, 	we will not address 	the standing issue.
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In Grant Joint Union High School District 	(1982) 	PERB
Decision No. 	196, 	the Board discussed this 	statutory limit 	on its
authority to enforce agreements between parties. 	The Board
observed:
This 	is 	not 	to 	say that 	every breach of
contract also violates 	the Act. 	Such a
breach must amount 	to a 	change 	of policy, 	not
merely a default 	in a 	contractual 	obligation,
before 	it 	constitutes 	a violation of 	the duty
to bargain. 	This distinction is 	crucial. 	A
change of policy has, 	by definition, 	a
generalized 	effect 	or 	continuing 	impact 	upon
the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	On the 	other hand,
when an 	employer unilaterally breaches 	an
agreement 	without 	instituting 	a 	new policy 	of
general 	application or continuing effect, 	its
conduct, 	though remediable 	through the 	courts
or arbitration, 	does not violate the
Act.
Thus, 	an alleged 	contract breach must 	also 	constitute a 	change 	in
policy having 	a 	generalized 	effect 	or 	continuing 	impact 	on 	the
terms 	and 	conditions 	of 	employment 	of 	bargaining unit members
before 	PERB 	can 	find 	it 	to be a violation of 	EERA.
Hernandez 	alleges 	that 	the District breached 	the 	CBA. 	He
provides 	no 	facts 	or allegations 	to demonstrate 	that 	the
District's 	action also 	constitutes 	a 	change 	in policy having a
generalized 	effect 	or 	continuing 	impact 	on bargaining unit
members, 	in violation of EERA. 	Based on EERA section 3541.5(b),
the Board has 	no authority to either enforce 	the parties'
agreement 	or to 	issue a complaint based on Hernandez' 	charge.
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ORDER
The unfair practice charge 	in Case No. 	SF-CE-1949 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
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