San Joaquin Delta Community College District (PERB 1410E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	JOAQUIN 	DELTA 	COLLEGE
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SAN JOAQUIN DELTA COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
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) 	Case No. 	SA-CE-1789
PERB Decision No. 	1410
October 	5, 	2000
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Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for San Joaquin Delta College Teachers
Association, 	CTA/NEA; 	Curiale, 	Dellaverson, 	Hirschfeld, 	Kelly &
Kraemer by Jeffrey Sloan and Alison C. 	Neufeld, 	Attorneys, 	for
San Joaquin Delta 	Community College 	District.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the 	Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the 	San Joaquin Delta Community College District 	(District) 	to an
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found that 	the District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational 	Employment 	Relations Act 	(EERA)1 when 	it
1EERA is 	codified at Government 	Code section 3 54 0 	et 	seq.
Unless 	otherwise 	indicated 	all 	statutory 	references 	are 	to 	the
Government Code. 	Section 3543.5 	states, 	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
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denied 	certain 	counselors' 	requests 	to 	move 	to 	alternate
calendars.
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the 	original 	and 	amended 	unfair 	practice 	charge, 	the
complaint, 	the 	ALJ's 	proposed 	decision 	and 	the 	filings 	of 	the
parties. 	The 	Board 	reverses 	the 	ALJ's 	decision 	and 	dismisses 	the
unfair 	practice 	charge 	and 	complaint.
BACKGROUND
This 	dispute 	concerns 	the 	work 	year 	for 	counselors 	employed
by 	the 	District. 	The 	counseling 	department 	employs 	counselors 	in
three 	separate programs: 	(1) 	Guidance 	and 	Counseling 	(General
C o u n s e l i n g ) ; 	(2) 	Disabled Student 	Programs 	and Services 	(DSPS);
and 	(3) 	Extended Opportunity 	Program and 	Services 	(EOPS). 	Each
of 	these 	programs 	provides 	services 	to 	a 	distinctly 	different
student 	clientele. 	The 	District's 	counselors 	are 	exclusively
represented 	by 	the 	San 	Joaquin 	Delta 	College 	Teachers
Association, 	CTA/NEA 	(Association). 	The parties 	disagree 	as 	to
whether 	their 	newly 	negotiated 	collective 	bargaining 	agreement
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.
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(CBA) 	grants 	certain counselors 	the 	right 	to volunteer 	for and
receive 	an 	alternate 	calendar 	assignment.
Under the parties' 	1993-1995 	CBA, 	counselors worked a
"traditional" 	school year calendar 	(i.e., 	from approximately mid-
August 	through May). 	Pursuant 	to a recommendation from the
chancellor's 	office, 	the District 	sought 	to better 	serve
students' 	counseling needs by providing 	counseling 	services 	prior
to the 	start 	of 	the 	fall 	semester, 	as needed. 	To accomplish
this, 	the District 	would need to 	include 	language 	in the new CBA
that 	would provide 	it 	with the 	flexibility to 	offer either a
traditional 	or 	an 	alternate 	calendar 	for 	each of 	the 	three
counseling programs.
Although negotiations were protracted, 	the 	parties 	finally
executed a written agreement 	on January 30, 	1997; 	the 	term of 	the
new CBA was July 1, 	1995 	to June 	30, 	1998. 	The new CBA provides
for both 	the 	"traditional" 	calendar and an 	"alternate" 	calendar
for counselors. 	It 	guarantees 	that 	the most 	senior one-half 	of
the 	counselors 	(referred 	to 	throughout 	this 	proceeding 	as
"Category A" 	counselors) 	would continue 	to work 	the 	traditional
school 	calendar. 	The 	remaining one-half 	less 	senior 	counselors
(referred to 	as 	"Modified Category A" 	counselors) 	would work
alternate 	calendars, 	often starting one month before 	classes
began. 	The 	new CBA also permits 	the 	more 	senior 	counselors 	to
volunteer 	for 	alternate 	calendars.2
2It 	is 	important 	to note 	that 	the 	new CBA does 	not 	give
either 	the Association or 	individual 	employees 	the 	right 	to
demand 	that 	a 	specific 	counseling 	program offer 	an 	alternate
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Shortly after 	the 	parties 	reached 	agreement 	on 	the 	new CBA,
on January 23, 	1997, 	District vice-president of business 	services
Robert 	Yribarren 	(Yribarren) 	sent Association representative
Larry Paulsen a memo, 	including a proposed 	1997-98 	counselors'
schedule. 	Yribarren 	invited the Association 	"to meet 	to discuss
the 	calendar." 	The 	proposal 	assigned Category A counselors 	to
the 	traditional 	track 	(approximately mid-August 	through May). 	It
assigned Modified 	Category A 	counselors 	in 	the 	General 	Counseling
program to 	an 	alternate 	schedule 	(approximately mid-July 	through
May). 	As neither the EOPS nor the DSPS programs participated in
the 	alternate 	scheduling, 	all 	counselors within those 	two
programs 	were 	assigned to 	a 	traditional 	calendar. 	The 	memo was
silent 	on whether 	Category A 	counselors 	who 	exercised 	their
contractual 	right 	to volunteer 	for 	an alternate 	calendar would be
limited to new positions 	in their 	current 	programs.
On January 31, 	1997, 	a memo from the three program
supervisors 	advised 	each 	counselor 	of 	his 	or her 	1997-98
schedule. 	The memorandum stated, 	inter alia:
These 	assignments 	are made 	on the 	basis
of 	seniority. 	If 	counselors 	currently
listed within 	the 	Traditional 	Track 	are
interested 	in moving 	to 	the 	Modified
Traditional 	Track, 	openings 	created will 	be
offered 	and 	filled 	on 	the 	basis 	of 	seniority.
calendar. 	The District 	alone has 	the 	right 	to determine whether
a 	given 	counseling program will 	offer 	a 	traditional 	or 	an
alternate 	calendar.
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On February 12, 	1997, 	EOPS Counselor Clarence Louie 	(Louie)
requested 	an alternate 	calendar 	from his 	supervisor. 	Two 	other
EOPS 	counselors, 	Janice Takahashi 	(Takahashi) 	and Tony Sedillo
(Sedillo), 	subsequently requested alternate calendars as well.
On February 15, 	1997, 	Mark Mekjavich 	(Mekjavich), 	the
General 	Counseling program supervisor, 	received a 	request 	for an
alternate 	calendar assignment 	from Gene Atwood 	(Atwood), 	a
Category A 	counselor 	in 	the 	General 	Counseling program. 	Since
Mekjavich 	had 	already 	determined 	that 	his 	program would 	offer
both traditional 	and alternate 	calendars 	in 	1997-98, 	he granted
Atwood's 	request.
On February 21, 	1997, 	Mekjavich wrote to the three most
senior Modified 	Category A 	counselors 	in his 	program 	(General
Counseling) 	to 	offer 	them the 	opportunity to move 	to 	the
traditional 	track on the 	basis 	of 	seniority as 	a 	result 	of
Atwood's 	shift 	to 	the 	alternate 	calendar. 	Eventually those 	three
counselors 	declined 	this 	opportunity, 	and Mekjavich 	then offered
a 	traditional 	calendar to Debra Louie, 	the next 	most 	senior
General 	Counseling 	counselor. 	She 	accepted 	the 	offer 	and worked
on this 	calendar 	in 1997-98.
Also 	in February 1997, 	District vice-president 	of 	student
services 	John Williams 	(Williams) 	notified 	the 	three program
supervisors 	that:
. 	. 	. 	although the contract 	is silent on this
issue, 	[the District has] 	the right to
schedule 	the 	counseling 	staff 	by program 	to
meet 	specific 	program needs. 	[Emphasis
added.]
5s

He also 	stated, 	in the same memo:
If 	there 	is not 	a need to have 	any EOPS
counselors 	on 	the 	modified 	calendar 	the
request 	made 	by 	the 	three 	EOPS 	counselors
[for assignment 	to 	an alternate 	work
schedule] 	would not be 	considered.
On March 6, 	1997, 	in another memo to the program supervisors,
Williams 	stated 	that:
. 	. 	. 	each individual department must be
expected 	to 	develop 	their 	own 	specific
calendar based 	on 	individual 	program needs.
Subsequently, 	the EOPS 	and DSPS 	supervisors 	sent memoranda
to 	their 	counselors 	stating 	that 	those 	programs 	would work
exclusively on the traditional 	calendar. 	On March 11, 	1997, 	the
EOPS 	supervisor, 	by memo, 	denied the requests of Louie, 	Sedillo
and Takahashi 	for modified schedules, 	stating that, 	"in order to
effectively administer the 	. 	. 	. 	EOPS Program it 	is imperative
that 	the 	EOPS 	Counselors 	remain on the 	traditional 	(Track A)
counseling 	calendar."
On May 8, 	1997, 	the Association filed an unfair practice
charge 	against 	the 	District.
DISCUSSION
This 	case presents 	the 	issue 	of 	whether the 	District's
failure 	to grant 	EOPS 	counselors' 	requests 	for a different 	work
schedule 	(i.e., 	an alternate 	calendar) 	constitutes 	an unlawful
unilateral 	change.
To 	establish a prima 	facie 	case 	of 	illegal 	unilateral
change, 	the charging party must demonstrate that: 	(1) 	the
employer breached or altered the parties' 	written agreement, 	or
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its 	own established past 	practice;3 (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 	amounts 	to 	a
change of policy 	(i.e., 	the 	change has 	a generalized effect 	or
continuing 	impact 	on bargaining unit 	members' 	terms 	and
conditions of employment); 	and 	(4) 	the change 	in policy concerns
a matter within the 	scope 	of 	representation. 	(Grant 	Joint 	Union
High School 	District 	(1982) 	PERB Decision No. 	196 	(Grant).) 	All
elements 	of 	this 	test must 	be met 	before 	a violation will 	be
found.
The 	record establishes 	that 	three 	EOPS 	counselors 	made 	a
request 	to work 	an alternate 	calendar 	despite 	the 	fact 	that 	the
EOPS 	program operated only on 	the 	traditional 	calendar. 	The
District 	denied all 	three 	requests. 	In order to prevail, 	the
Association must 	establish 	that 	the 	District 	had 	an 	existing
policy, 	either in the parties' 	CBA or through past practice, 	of
permitting counselors 	in EOPS, 	a 	"traditional-calendar-only"
program, 	to volunteer 	for and obtain an alternate 	calendar
assignment.
The Association asserts 	that Article XVII, 	section 3 	of 	the
parties' 	CBA contains 	such a policy. 	That 	section provides:
3This 	case 	does 	not 	involve past practice. 	There 	is 	no
allegation or evidence 	of 	a 	contrary past 	practice. 	Moreover,
the 	unfair practice 	charge 	challenges 	the 	first 	instances 	of 	the
District's denying EOPS 	counselors' 	requests to change 	calendars
Hence, 	deviation from past practice 	is not 	in issue 	in this 	case.
.
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The 	definition 	of 	"Modified Category A" 	is
counselors 	who 	are 	assigned 	to work on 	the
calendar 	established 	for 	faculty 	under
Article XIII 	. 	. 	. 	except they may be
assigned 	to work 	calendars 	which 	have
alternate 	start 	and 	end dates 	within 	a
continuous 	duty year. 	The District 	will
consult 	with 	the 	Association 	on 	Category A
calendar(s). 	Assignment to alternate
calendars 	will 	be 	made 	by 	first 	asking 	for
volunteers 	and 	then by assignment 	in 	reverse
order of 	seniority. 	[Emphasis 	added.]
This 	language 	accomplishes 	three purposes 	that 	are 	important 	to
this case: 	(1) 	it defines 	"Modified Category A" 	counselors; 	(2)
it 	provides 	a procedure 	to be 	followed by the 	District 	in making
assignments to alternate calendars; 	and 	(3) 	it permits 	counselors
to volunteer 	for 	alternate 	calendars.
Webster's 	Dictionary defines 	a volunteer 	as 	"one 	who 	enters
into or offers 	himself 	for any service 	of 	his 	own 	free will."
(Webster's 3d New Internat. 	Diet. 	(1976) 	p. 	2564.) 	As commonly
understood, 	the 	concept 	of volunteering does not 	carry with 	it 	a
reciprocal 	obligation 	for the 	recipient 	of 	the 	offer 	to 	accept
the volunteer's 	offer of 	service. 	This point 	is 	critical 	in
identifying 	the parties' 	respective 	rights 	and obligations 	in the
case at bar.
Returning to 	the Grant 	test, 	in order to 	establish a 	change
in policy, 	the Association must 	prove what 	the 	existing policy
was. 	As 	stated above, 	the parties' 	agreement contains a policy
of 	permitting persons 	to volunteer 	for 	alternate 	calendar
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assignments.4 It does not, 	however, 	obligate the District 	to
honor the requests of EOPS 	counselors Louie, 	Takahashi 	and
Sedillo 	to work 	an alternate 	calendar 	simply because 	they
volunteered to do 	so. 	Accordingly, 	when the District 	denied
those 	requests, 	it 	did not 	alter 	an existing policy and did not
violate 	the EERA. 	As a result, 	all 	other allegations 	are
dismissed as 	well.
In reaching this 	conclusion, 	we 	applied common sense 	as well
as 	legal 	principles. 	The Association's 	interpretation of 	the
contract 	language 	leads 	to results 	that 	are unusual, 	if not
absurd. 	The 	EOPS 	program does 	not 	offer an alternate 	calendar,
yet 	three 	EOPS 	counselors 	requested 	such a 	calendar. 	The 	only
program that 	offers 	an alternate 	calendar 	is 	General 	Counseling.
The meaning of the EOPS 	counselors' 	requests, 	given these 	facts,
is 	far from clear. 	Logically, 	there are 	two possible
interpretations: 	(1) 	the EOPS 	counselors 	sought 	to work an
alternate 	calendar within their own program; 	or 	(2) 	the 	EOPS
counselors 	sought 	to move 	to 	the general 	program, 	the 	only
program that 	offered 	an 	alternate 	calendar.
4It 	is 	apparent 	from the 	record 	that 	during 	the 	negotiating
process 	the 	parties 	did not 	contemplate 	that 	the more 	senior
counselors 	who were 	guaranteed 	the 	right 	to 	continue 	to work 	the
traditional 	calendar would 	elect 	to work 	the 	alternate 	calendar.
Instead, 	negotiations 	centered on 	the 	method by which 	the
District 	would make 	assignments 	to 	the 	presumably 	less 	desirable
alternate 	calendar.
As 	it 	turned out, 	some 	of 	the more 	senior counselors 	did
wish to work the 	alternate 	calendar, 	creating 	a 	situation not
clearly 	addressed by 	the 	contract.
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Under the 	first 	scenario, 	if 	the 	EOPS 	counselors 	seek to
have 	PERB 	compel 	the 	District 	to 	offer 	an 	alternate 	calendar
within EOPS, 	we 	cannot order such a remedy. 	As 	stated above, 	the
CBA does 	not 	give 	the Association or 	individual 	employees 	the
right 	to 	demand 	that 	a 	specific 	counseling program offer 	an
alternate 	calendar. 	Certainly 	it 	does 	not 	give 	PERB 	any 	such
right. 	The District 	alone has 	the 	right 	to determine whether a
given 	counseling program will 	offer 	a 	traditional 	or 	an 	alternate
calendar.
Under the 	second scenario, 	we 	assume 	that 	the 	EOPS
counselors 	sought 	to move 	to 	the general 	program. 	This 	awkward
result 	would defy common sense. 	First 	of 	all, 	the 	record
reflects 	no wish on the part 	of 	these 	counselors 	to 	actually
change programs. 	Secondly, 	if 	the District 	is 	compelled to grant
the 	requests 	of 	the EOPS 	"volunteers", 	that 	could only occur by
assigning them to 	slots 	in the general 	program. 	Further, 	EOPS
and General 	Counseling programs 	require 	different 	qualifications
of 	incumbents, 	thus precluding 	interchangeability of 	incumbents
without 	the 	requisite 	qualifications.
As we understand it, 	therefore, 	the Association would have
us 	believe 	that 	the parties 	intended to 	create 	a 	situation 	in
which the 	District 	is 	powerless 	to 	avoid an apparent 	surplus 	of
counselors 	in 	the 	general 	program and an 	apparent 	shortage 	of
counselors 	in EOPS. 	The 	Board 	is 	not 	willing 	to presume 	from the
language 	agreed 	to by the 	parties 	that 	the 	parties 	intended 	such
a 	convoluted 	outcome.
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ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-1789 	are 	hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Baker 	joined 	in this 	Decision.
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