Mark Twain Union Elementary School District (PERB 1548E)

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STATE OF CALIFORNIA mn
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANGELS CAMP EDUCATORS ASSOCIATION,
CTA/NEA,

Charging Party, Case Nos. SA-CE-2014-E
SA-CE-2017-E

PERB Decision No. 1548

MARK TWAIN UNION ELEMENTARY September 26, 2003

SCHOOL DISTRICT,

Respondent.

Appearances: California Teachers Association by Diane Ross, Attorney, for Angels Camp
Educators Association, CTA/NEA; Kronick, Moskovitz, Tiedemann & Girard by Robert A.
Rundstrom, Attorney, for Mark Twain Union Eiementary School District.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: These consolidated cases are before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Angels Camp Educators
Association, CTA/NEA (Association) to a proposed decision (attached) of the administrative
law judge (ALJ). The ALJ held that the Mark Twain Union Elementary School District

(District) violated section 3543.5(a), (b) and (c) of the Educational Employment Relations Act

(EERA)' by unilaterally increasing the hours of work for teachers. As a remedy, the ALJ

' EERA is codified at Government Code section 3540 et seq. EERA section 3543.5
states, 1n pertinent part:

It shall be unlawful for a public school employer to do any of the
following:

ordered the District to provide the affected teachers compensatory time off (comp time). 	The
Association excepts to the proposed remedy and argues that the ALJ should have awarded
backpay instead of comp time.
After reviewing the entire record in this case, including the proposed decision, the
Association's exceptions, the informational brief of the California Federation of Teachers2, and
the District's responses, the Board modifies the proposed remedy as discussed below.
BACKGROUND
Since neither party excepts to the ALJ's finding that the District violated EERA, the
only background necessary is the ALJ's ruling, which is as follows:
The District has been found in violation of its duty to meet and
negotiate in good faith by unilaterally increasing the work hours
of teachers. The District increased the work hours for teachers
during the 2000-2001 school year by: (1) requiring teachers at
Mark Twain Elementary School to report at 7:30 a,m,, 10 minutes
earlier than their regular start time, every Monday from the
commencement of the school year until October 6, 2000;
(2) lengthening the workday for all teachers by lengthening the
instructional workday, a change that had the effect of requiring
teachers to remain at school 8 to 10 minutes longer every day of
the school year; (3) increasing from six to seven the number of
instructional periods for the ih and 8 th grade classes at Mark
(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 ofrights 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.
2 The Board granted a request by the California Federation of Teachers, AFT, AFL-CIO
to submit an informational brief on September 6, 2002.
2

Twain, a change that required teachers to teach an additional
subject thereby lengthening their workdays by 10 to 30 minutes
per day. 	[Proposed dee. at p. 27.]
PROPOSED REMEDY
To remedy the violation of EERA, the ALJ ordered the District to "make whole" any
teachers who were affected by the change in hours. The ALJ then conducted a comprehensive
review of PERB cases to determine whether the "make whole" remedy should consist of comp
time or backpay. After reviewing the relevant cases, the ALJ noted that early PERB cases
favored the backpay remedy. 	(San Mateo City School District (1984) PERB Decision
No. 375a (San Mateo); Rio Hondo Community College District (1982) PERB Decision
No. 279 (Rio Hondo); Oak Grove School District (1986) PERB Decision No. 582 (Oak
Grove).) However, more recent cases have favored a comp time remedy. 	(Healdsburg Union
Elementary School District (1994) PERB Decision No. 1033 (Healdsburg); Cloverdale Unified
School District (1991) PERB Decision No. 911 (Cloverdale); Coming Union High School
District (1984) PERB Decision No. 399 (Coming).) In one case, PERB ordered either comp
time or backpay. (Fountain Vallev Elementary School District (1987) PERB Decision
No. 625.)
Only in Coming did the Board discuss the rationale underlying its remedial order. The
ALJ quoted the following passage from Coming:
... while hours can be properly translated into dollars, the direct
and immediate result of the unilateral change was that the teachers
were required to work extra hours. In our view, therefore, the most
appropriate way to make the affected employees whole would be
by ordering the District to afford the teachers a corresponding
amount of time off. [Coming at p. 10.]
3

Based on the rationale expressed in Coming, and the fact that a majority
of
decisions have
awarded comp time, the ALJ ordered the District to provide the affected teachers comp time.
During the hearing, the Association had objected to any award
of
comp time because it "ignores
the reality
of
how teachers work." Specifically, the Association argued that providing teachers
comp time would create more work for teachers because they would have to spend time
preparing lesson plans for substitute teachers. In order to avoid this problem, the ALJ ordered
that the comp time be granted as an across-the-board reduction
of
the work day. Using this
approach, the ALJ reasoned that there would be no need for substitute teachers.
The ALJ then ordered the District and Association
to
meet and confer over a schedule for
the shortened work days. In the event negotiations were unsuccessful, the ALJ provided that the
Regional Director "shall direct the time and manner in which affected employees are to receive
compensatory time off." As an alternative, the ALJ provided that the District could elect to
provide backpay to the teachers.
ASSOCIATION'S EXCEPTIONS
The Association asserts that PERB has awarded comp time and backpay in almost equal
proportion and that there is no clear standard on which remedy is appropriate. The Association
urges the Board to establish backpay as the appropriate remedy for unilateral increases in
teacher work hours. In support
of
its position, the Association cites to Atlas Tack Corp. (1976)
226 NLRB 222 [93 LRRM 1236] enforced 559 F.2d 1201
(1
st Cir. 1977) and Corrections Corp.
of
America (2000) 330 NLRB 663 [166 LRRM 2135] for the proposition that backpay is the
preferred remedy under the National Labor Relations Act. The Association also asserts that
every state labor relations board that has considered the issue has also awarded backpay. 	In
4

addition, the Association argues that backpay is required because the Fair Labor Standards Act
(FLSA) generally prohibits the use of comp time.
Finally, the Association argues that comp time is an "ineffective and undesired
remedy." According to the Association, comp time does not make teachers whole because it
ignores the additional burdens placed on teachers when a substitute is required and ignores the
fact "that teachers dislike being absent from their classrooms." The Association concedes that
under the proposed remedy substitute teachers will not be required. However, the Association
maintains that there will still be additional work associated with the shortened days because
teachers will have to "rework their lesson plans." Thus, the Association argues that only
backpay will make them whole.
DISTRICT'S RESPONSE
The District argues that there are strong public policy reasons for awarding comp time
instead of backpay. First, "public policy dictates that school district funds should be used to
further the education of its students." Thus, the District argues that PERB should minimize the
fiscal impact of any remedial order. Next, the District notes that there is no evidence that it
acted with animus or improper motive. Finally, the District argues that comp time is the best
comprehensive remedy because it is available "tax-free," makes the teachers whole, and
minimizes the fiscal impact on the District.
The District disputes the Association's assertion that comp time will result in more
work for teachers. The District notes that the reduction in work hours will only be a matter of
minutes which should not have any impact on the level of preparation required. Lastly, the
District urges the Board to take into account the severe budget deficit facing public schools.
5

DISCUSSION
The Association correctly notes that early PERB cases awarded backpay as the remedy
for unilateral changes in work hours. (San Mateo; Rio Hondo; Oak Grove.) In Oak Grove, the
Board provided the following simple rationale for awarding backpay:
However, it is appropriate to order the employees compensated
for any additional time worked as a result of the District's
unlawful action. When employees' worktime is increased without
a proportionate increase in pay, the employees are being paid less
per unit of time worked than bargained for. 	See, for example,
Delano Union Elementary School (1982) PERB Decision
No. 213a; Coming Union High School District (1984) PERB
Decision No. 399. Thus, this remedy is not punitive, but
compensatory. 	[Oak Grove at p. 30.]
Comp time was not awarded as a remedy until Coming. As noted by the ALJ, the
Board in Coming concluded that comp time was an appropriate "make whole" remedy for a
unilateral change in hours. More recent cases have continued to award comp time based on the
Corning rationale. Although the Board in Corning awarded comp time, it is important to note
that the decision did not stop there. Immediately after finding that comp time was an
appropriate award, the Board continued:
We direct the District to grant the seven harmed employees the
amount of time off which comports with the number of extra
hours each employee actually worked. However, monetary
compensation is a valid alternative measure of the harm suffered.
Therefore, we direct that, if the District and the Association
cannot agree on the manner in which the time off will be granted,
the employees concerning whom there is no agreement shall
receive monetary compensation commensurate with the extra
hours worked. Any harmed employee who no longer is employed
by the District would be immediately compensated monetarily.
(Coming at p. 10, emphasis added.)
Thus, Corning did not limit its remedial award to comp time. Rather, the Coming decision
allows for the option ofbackpay if negotiations regarding comp time are unsuccessful. 	The
6

Board in Corning expressly stated that its remedial award, "incorporates two methods of
accommodating for the [unilateral] change." (Corning at p. 10, emphasis added.)
Accordingly, Corning is not accurately described as a "comp time" case. 	It is a more balanced
approach that utilizes both comp time and backpay in an effort to "make whole" the affected
employees.
In the proposed decision, the ALJ awarded comp time to the affected teachers and
ordered the District and Association to negotiate over a schedule for shortened work days.
However, the proposed decision does not provide for the option ofbackpay in the event
negotiations are unsuccessful. Instead, the regional director of PERB is given the authority to
"direct the time and manner in which affected employees are to receive compensatory time
off."
While the Board agrees with the ALJ's award of comp time, the Board believes that the
manner in which comp time is awarded should be a subject of negotiations. The Board also
believes that teachers should have the option ofbackpay in the event negotiations over comp
time are unsuccessful. As discussed below, such a remedy is most likely to "make whole" the
affected teachers and satisfies the concerns of both the Association and District.
First, providing the option ofbackpay addresses the concerns of the Association that
comp time may not "make whole" every affected teacher. Although the ALJ attempted to
fashion a comp time remedy that would avoid the use of substitutes, the ALJ's remedy may not
be satisfactory for all teachers. There are a variety of reasons why some teachers may be
unable to take advantage of shortened work days. In these situations where negotiations are
unsuccessful, the affected teachers should have the option ofbackpay. This provides affected
teachers the remedy that best meets their individual situation.
7

Second, the Board's remedy also addresses the concerns of the District. Although the
Board's decision provides for the option of backpay, the Association must first negotiate in
good faith over comp time. If the District makes an effort to meet the concerns of the
Association, it may find many teachers opting for the comp time remedy. Further, if the
District is truly in dire financial straits, negotiations provide it the opportunity to avoid the
financial impact of backpay by offering incentives to the affected teachers to select the comp
time option.
In its exceptions, the Association objects to any award of comp time on the ground that
its violates the FLSA and the California law. The Association cites to Section 207(o) of the
FLSA and Labor Code section 204.3 for the proposition that employers are prohibited from
paying employees comp time unless negotiated in a collective bargaining agreement.
(29 U.S.C. sec. 207(0); Lab. Code, sec. 204.3.) However, these sections only address the use
of comp time as payment for overtime hours. Teachers are exempt from the overtime
requirements of the FLSA. (29 C.F.R. sec. 541.314(a); 8 Cal. Code Regs., sec. 11040(l)(B).)
Accordingly, the Association's arguments must be rejected.
In responding to the Association's exceptions, the District argues that awarding
backpay is improper because it did not act with animus or an improper motive. However, the
District's intent is only relevant if the Board was imposing punitive damages, which are
intended to punish. It is well-settled that the Board cannot order such damages. (State of
California (Secretary of State) (1990) PERB Decision No. 812-S.) As discussed above, the
backpay award is intended to compensate teachers for the injuries they suffered, not to punish
the District. By definition, compensatory or "make whole" remedies are not considered
8

punitive. (Rest.2d, Torts, sec. 908; 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts,
sec. 1327-28.) Accordingly, the Board may properly award backpay as a make whole remedy.
MODIFIED REMEDY
In conclusion, the Board modifies the proposed remedy as follows. The District shall
make the affected teachers whole by providing them comp time, which at a minimum,
comports to the extra hours that each affected teacher actually worked. The District and
Association shall meet and negotiate over the manner in which the comp time is granted. The
parties may consider, but are not required to adopt, the ALJ's proposed "across-the board"
reduction in the school day as the manner in granting comp time.
In the event negotiations over the manner of granting comp time are unsuccessful, the
affected teachers shall be entitled to backpay for the extra hours worked. Further, any affected
teacher who is no longer employed by the District shall be entitled to backpay. All backpay
awards shall include interest at seven (7) percent per annum. Any disputes over this order shall
be submitted to the office of the general counsel.
ORDER
Based on the foregoing findings of fact, conclusions oflaw, and the entire record in this
case, it is found that the Mark Twain Union Elementary School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c) by unilaterally increasing the work hours of teachers in the following manner: (1) requiring
teachers at Mark Twain Elementary School to report at 7:30 a.m., 10 minutes earlier than their
regular start time, every Monday from the commencement of the school year until October 6,
2000; (2) lengthening the workday for all teachers by lengthening the instructional workday, a
change that had the effect of requiring teachers to remain at school 8 to 10 minutes longer
9

every day of the school year; (3) increasing from six to seven the number of instructional
periods for the ih and 8th grade classes at Mark Twain Elementary School, a change that
required teachers to teach an additional subject thereby lengthening their workdays by 10 to 30
minutes per day.
By changing the past practice without first meeting and conferring with the Angel
Camp Educators Association, CTA/NEA (Association), the District failed to meet and
negotiate in good faith in violation of section EERA section 3543.5(c). Because this action
had the additional effect of interfering with the right of the Association to represent its
members, the failure to meet and confer in good faith also violated EERA section 3543.5(b).
Because the action had the further effect of increasing the work hours of teachers, the District's
action violated EERA section 3543.5(a).
Pursuant to EERA section 3541.5(c) it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally increasing the hours of work for teachers;
2. 	Interfering with the right of the Association to represent its members;
and
3. 	Interfering with the right of individual teachers to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Effective immediately upon service of a final decision in this matter, if
the District has not already done so, reinstate the work schedule for teachers that existed prior
to the commencement of the 2000-2001 school year.
10

2. 	Before the conclusion of the school year that follows the year in which
this decision becomes final, grant to District teachers compensatory time off that at least equals
the amount of additional time teachers were required to work during the 2000-2001 school
year. The District shall meet and negotiate with the Association over the manner in which the
compensatory time off is granted. If the District and Association are unable to reach
agreement, the affected teachers shall be entitled to backpay for the amount of additional time
each teacher was required to work during the 2000-2001 school year. Any affected teacher
who is no longer employed by the District shall also be entitled to backpay. All backpay
awards shall be with interest at the rate of seven (7) percent per annum.
3. 	Within ten ( 10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices to members of the certificated employee
bargaining unit are customarily posted, copies of the notice attached hereto as an Appendix.
The Notice must be signed by an authorized agent of the District, indicating that the District
will comply with the terms of this Order. Such posting shall be maintained for a period of
thirty (30) consecutive work days. Reasonable steps shall be taken to ensure that the Notice is
not reduced in size, altered, defaced or covered with any other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento regional director of the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Association.
Members Whitehead and Neima joined in this Decision.
11

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. SA-CE-2014-E and SA-CE-2017-E,
Angels Camp Educators Association, CTA/NEA v. Mark Twain Union Elementary School
District, in which all parties had the right to participate, it has been found that the Mark Twain
Union Elementary School District (District) violated the Educational Employment Relations
Act (EERA), Government Code section 3543.S(a), (b) and (c) by unilaterally increasing the
work hours of teachers in the following manner: (1) requiring teachers at Mark Twain
Elementary School to report at 7:30 a.m., 10 minutes earlier than their regular start time, every
Monday from the commencement of the school year until October 6, 2000; (2) lengthening the
workday for all teachers by lengthening the instructional workday, a change that had the effect
of requiring teachers to remain at school 8 to 10 minutes longer every day of the school year;
(3) increasing from six to seven the number of instructional periods for the ih and 8 th grade
classes at Mark Twain Elementary School, a change that required teachers to teach an
additional subject thereby lengthening their workdays by 10 to 30 minutes per day.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally increasing the hours of work for teachers;
2. 	Interfering with the right of the Angels Camp Educators Association,
CTA/NEA (Association) to represent its members; and
3. 	Interfering with the right of individual teachers to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
l. 	Reinstate the work schedule for teachers that existed prior to the
commencement of the 2000-2001 school year.
2. 	Before the conclusion of the school year that follows the year in which
this decision becomes final, grant to District teachers compensatory time off that at least equals
the amount of additional time teachers were required to work during the 2000-2001 school
year. The District shall meet and negotiate with the Association over the manner in which the

compensatory time off is granted. If the District and Association are unable to reach
agreement, the affected teachers shall be entitled to backpay for the amount of additional time
each teacher was required to work during the 2000-2001 school year. Any affected teacher
who is no longer employed by the District shall also be entitled to backpay. All backpay
awards shall be with interest at the rate of seven (7) percent per annum.
Dated: 	MARK TWAIN UNION ELEMENTARY
SCHOOL DISTRICT
By: ------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANGELS CAMP EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party,
V.
MARK TWAIN UNION ELEMENTARY
SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NOS. SA-CE-2014-E
and SA-CE-2017-E
PROPOSED DECISION
(3/14/02)
Appearances: Diane Ross, Attorney, for Angels Camp Educators Association, CTA/NEA;
Kronick, Moskovitz, Tiedemann & Girard by Robert Runstrom, attorney for Mark Twain
Union Elementary School District.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
In these consolidated cases, a union contends that a public school employer made a
series of unilateral changes that affected the length of the teacher workday in the fall of 2000.
The public school employer replies that most of the actions it took that year were consistent
with the past practice and the one change it acknowledges involved a nonnegotiable matter.
This action was commenced on February 7, 2001, when the Angeles Camp Educators
Association, CTA/NEA (Union), filed four unfair practice charges against the Mark Twain
Union Elementary School District (District). 1 The Office of the General Counsel of the Public
Employment Relations Board (PERB or Board) followed on March 30, 2001, by issuing a
complaint against the District.
1Also filed on the same day was case SA-CE-2015-E, which was settled and withdrawn
on March 30, 2001, and case SA-CE-2016-E which was settled and withdrawn on April 27,
2001.

The complaint in case SA-CE-2014-E alleges that before August 17, 2000, it was
the District's policy that teachers of grades 7 and 8 had no yard duty assignment and that
teachers of grades 1 through 6 were assigned to one 10-to-15 minute period of yard duty for
one semester each year. The complaint alleges that on August 17, 2000, the District changed
this policy by assigning all teachers to work 10 to 20 minutes of yard duty every day.
The complaint in case SA-CE-2017-E alleges that on August 17, 2000, the District
increased the amount of teacher/student contact time by 10 minutes for teachers of grades 1
through 6 and by 45 minutes for teachers of grades 7 and 8. The complaint alleges that on the
same date, the District increased the teacher/student contact time for kindergarten teachers by
44 minutes at Mark Twain School and by 10 minutes at Copperopolis School. Finally, the
complaint alleges that on August 17, 2000, the District increased the number of teaching
periods for ih and 8 th grade teachers from six to seven.
By making these changes, the complaints allege, the District violated Educational
Employment Relations Act (EERA) section 3543.5(c) and, derivatively, (a) and (b).2
2 Unless otherwise indicated, all statutory references are to the Government Code. The
EERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides 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 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.
2

The District filed an answer to the complaint on April 19, 2001, admitting all
jurisdictional facts but denying all other allegations. The cases were consolidated for hearing.
On the motion of the Union, the complaint was amended at the hearing to add the allegation
that on late start Mondays teachers were required to work "during their 30 minutes before
school that had previously been duty-free time."3
The hearing was conducted in Angels Camp on December 4-5, 2001. With the filing of
briefs, the matter was submitted for decision on February 21, 2002.
FINDINGS OF FACT
The District is a public school employer as defined in section 3540. l(k) of the EERA.
The Union is an employee organization as defined in section 3540.1 (d). At all times relevant,
the Union has been the exclusive representative, as defined in section 3540.1 ( e), of an
appropriate unit of the District's certificated employees. A collective bargaining agreement
was in effect between the parties during the relevant period. However, it contains no provision
that arguably prohibits the conduct at issue. The District operates two schools, Mark Twain for
students in kindergarten through the 8th grade and Copperopolis for students in kindergarten
through the 6 th grade. Mark Twain is located in Angels Camp and has 28 teachers.
Copperopolis is located in Copperopolis, about 14 miles from Angeles Camp, and has 10
teachers.
The contract between the parties requires teachers to be on campus 30 minutes before
the start of the instructional day for students and to remain on the campus until 30 minutes
( c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
3 See Reporter's Transcript, Vol. I, at pp. 92 through 94. In footnote 1 of its reply brief,
the Union withdraws this amendment.
3

after the students are dismissed for the day. When they have no assigned duties, teachers have
been free to use these two 30-minute periods as they desired. This has included preparing for
class, grading papers, copying papers, recording grades, meeting with students and/or parents,
calling parents. Faculty meetings also have been conducted during the 30-minute periods.
Some teachers previously have had duties during one or both of the 30-minute periods. 	This
has included watching over students during pre-school playground activities and watching
them after school while they wait for the arrival of school buses. Time spent monitoring
students on the playground, either before school or at recess, is known in the District as "yard
duty." Time spent monitoring students while they wait in the afternoon for the arrival of buses
is known as "bus duty."
Yard and Bus Duty
The Union introduced a number of school schedules and called several teachers as
witnesses to describe the District's prior practice regarding yard duty and bus duty. The
District called several administrators who in prior years had been teachers. Collectively, the
evidence does not reveal a consistent practice among the grade levels, between the two schools
or over the years. This testimony of the witnesses is summarized below by school and grade
level.
At Mark Twain Elementary School: Kindergarten teachers, prior to the 2000-2001
school year, did not perform yard duty. They did perform bus duty for two 15-minute periods
each day. In 2000-01, pursuant to a schedule announced in August at the pre-school inservice
days, kindergarten teachers worked 15 minutes of yard duty every day before school. They
4

continued twice a day bus duty for 15 minutes each. In 2001-2002, the schedule of
kindergarten teachers returned to what it had been prior to 2000-2001.4
The testimony of Union witnesses is inconsistent about the yard duty obligations prior
to 1999-2000 for Mark Twain 1st through 6 th grade teachers. Darcy Zimmerman, a 4 th grade
teacher who started at Mark Twain in the fall of 1997, testified that she had no yard duty prior
to the fall of 2000. Her only obligation was 15 minutes of bus duty for one-half of the year.
However, Mary Pino a 2 nd grade teacher who started at Mark Twain in the fall of 1996,
testified that in 1996-97 and 1997-98, she worked a daily total of 15 or 20 minutes of yard or
bus duty on a rotating schedule for four out of every five weeks. This was a combination of
before school and recess yard duty and after school bus duty. 	She said there was no increase in
yard and bus duty in 1998-99, although it may have been configured differently from the
previous years.
Mary Cosgrave, the current principal at Mark Twain and a District employee for
32 years, testified that prior to the 1999-2000 school year, teachers at all grade levels had done
yard duty in various years as assigned by the principal. She testified that she herself had
worked yard duty over the years and she had seen other teachers working yard duty. 	She
testified that some principals would advise the teachers about the locations and times that had
to be covered and the teachers would work out the schedule which the principal would then
publish as the assignments for the year.
I conclude that although Ms. Zimmerman had no yard duty prior to the fall of 2000, her
experience was not typical. I conclude that with the exception of the 1999-2000 school year
4 These conclusions are based on testimony found in the Reporter's Transcript at Vol. I,
pp. 127-129, 132-135, and 165, and Charging Party Exhibits 5 and 11.
5

most Mark Twain 1st through 6 th grade teachers did have both types of duty prior to the fall of
2000. 5
In the 1999-2000 school year, at the request of the teachers, the principal assigned aides
to cover all yard duty at Mark Twain. Teachers continued to do after school bus duty. In
2000-2001, Mark Twain teachers in grades 1 through 6 worked 20 minutes of yard duty each
day. They worked 15 minutes of bus duty two days per week for one half of the year and one
day per week for the other half. In 2001-2002, teachers of grades 1 through 6 work 10 to 20
minutes of yard duty either before school or at recess. They work 15 minutes of bus duty two
days per week for one-half of the year and one day per week for the other half of the year.
Teachers of grades 7 and 8 at Mark Twain, some years ago, worked yard duty for "a
limited amount of time for a portion of the year." The record does not reflect when this
occurred or how much time they worked. 	Subsequent to that time, they worked no yard duty
until 2000-2001. They did work bus duty every day for 10 to 15 minutes. In 2000-2001, ih
and 8 th grade teachers were assigned to work 10 minutes of recess yard duty for the entire year.
Only two teachers were assigned to after school bus duty. 6 It is not clear in the record whether
the i 11 and 8 th grade teachers at Mark Twain have yard and bus duty in the 2001-2002 school
year.
At Copperopolis Elementary School: The record does not indicate that kindergarten
teachers at Copperopolis have worked a yard and bus duty schedule different from that of
5 These conclusions are based on testimony found in the Reporter's Transcript at Vol. I,
pp. 17-19, 27, 30, 33-35, 98-101, 165-166, and in Vol. II at pp. 29-32, 35-46 and Charging
Party Exhibits 12 and 13.
6 These conclusions are based on testimony found in the Reporter's Transcript at Vol. I,
pp. 77-79 and 155-156 and in Vol. II at pp. 29-32, 35-46.
6

primary grade teachers. In 1998-99, all teachers worked 15 minutes ofbefore school yard duty
one morning a week. In addition, primary teachers worked 20 minutes ofrecess one morning a
week and intermediate teachers worked 15 minutes of recess one morning a week. All teachers
also worked 15 minutes of bus duty one afternoon a week.7 In the 1999-2000 school year
teachers worked no yard duty. At their request, they were excused from yard duty by the
principal who assigned aides to cover all yard duty. Teachers continued to work 15 minutes of
bus duty one day a week. In 2000-2001, primary teachers worked 20 minutes ofrecess yard
duty three days per week. 	Intermediate teachers worked 15 minutes of yard duty either two or
three days per week. All teachers continued to work 15 minutes of after school bus duty two
days per week. 8
Julia Tidball, the current principal at Copperopolis and a teacher there beginning in
1994, testified that with the exception of the 1999-2000 school year, teachers have consistently
had both recess and after-school bus duty. This testimony was consistent with that of Stephany
LaLonde who was the principal at Copperopolis from October of 1998 through June of 2001.9
Ms. LaLonde excused the teachers from working yard duty for the 1999-2000 school year
because "several teachers" approached her and asked if the aides could do recess "and in
looking at the schedule I was able to accommodate that."
In the fall of 1999, newly appointed District Superintendent Chris von Kleist learned
that a claim of inadequate playground supervision was alleged in a lawsuit that had been filed
7 One witness testified that she had worked this same yard and bus duty schedule for the
two years prior to 1998-99. See Reporter's Transcript at Vol. I, p. 42.
8These conclusions are based on testimony found in the Reporter's Transcript at Vol. I,
pp. 38-42 and Charging Party Exhibit 10.
9See Reporter's Transcript at Vol. n, pp. 9-12 and 20-21.
7

against the District. This led to his examination of playground supervision. He learned that at
both schools in the fall of 1999 teachers had been relieved of responsibility for playground
supervision, which had been assumed entirely by teachers aides. He concluded that this was
not a proper use of aides whose salaries were paid with federal funds under Title 1 of the
Elementary and Secondary Education Act. He believed that such aides were supposed to be
used in one-on-one instruction and not yard supervision.
When the superintendent discovered that in previous years teachers had been
responsible for some yard duty, he directed the principals at Mark Twain and Copperopolis to
put the teachers back on yard duty in the fall of 2000. The amount of yard duty assigned to
teachers was affected further by a reduction in the number of aides employed by the District in
the fall of 2000. At Mark Twain, there was a net reduction of eight aide positions between
1999-2000 and 2000-2001.
Teacher witnesses testified that their assignment to yard duty in the fall of 2000
resulted in less time available during the school day for preparation and other work duties.
They testified that they were required to make up this lost time by working extra minutes after
the end of the workday.
Change in Instructional Minutes
Until the 1999-2000 school year, state law had permitted school districts to have up to
eight non-teaching "school improvement days" (SIP days) each year. In the District, SIP days
were used for collaboration among teachers, staff development and training, curriculum
meetings, review of new textbooks, review of the State of California instructional framework
and preparation of student report cards. In 1999-2000, the number of SIP days was reduced
from eight to three, the other five days being converted to instructional time. In anticipation of
8

this change, a committee was formed in September of 1998 to develop a way to accomplish the
activities formerly done on the five SIP days that were to be lost. The committee was
composed of four teachers and the then principal of Mark Twain, Dan Ziesler, and the then
District Superintendent Gary Mills. Because one consideration of the committee was to
involve both schools in the same program, the teachers on the committee favored having one
day a week on which students were released from school early. Teachers from the two schools
would meet for the balance of the school day and participate in the staff development program.
The teachers also argued that no time would have to be made up because even with the early
release days, the District still exceeded the state-required minimum number of instructional
minutes per day. The two administrators ultimately acceded to the teacher position and there
was a consensus that the SIP days would be replaced with "early release Mondays."
Mr. von Kleist succeeded Mr. Mills as superintendent and with this change the
proposed "early release Mondays" became the actual "late start Mondays." In Mr. von Kleist's
view, the early release of students caused too many administrative problems. He said some
parents did not favor the early release of students because it caused them problems with child
pickup. He said early release also complicated school bus routes. Mr. von Kleist did not
continue meeting with the committee that had been formed under his predecessor and his plan
to change to late start Monday was not known to teachers until the start of school in the fall of
2000. There was some brief discussion at the negotiating table about the need to replace the
•
SIP days with other collaborative activities among teachers but the parties did not enter an
agreement about the subject. However, there was no discussion about the institution oflate
start Mondays.
9

The agendas for the May 9 and May 23, 2000, meetings of the District school board
both include the following item for school board action: "Consider Approval of Late Start
Schedule for staff development, Mondays, 2000-2001 School Term." The action was approved
and reported in the minutes for the May 23, 2000, meeting. Copies of the agendas and minutes
are routinely sent to the Union president. Kathryn Casas, Union president in the spring of
2000, testified that she did not recall reading a school board agenda with an item about late
start Mondays. She said school board agendas were left in her box a day or two before a
meeting and she looked through them quickly.
On August 17, 2000, at the first teacher meeting day prior to the beginning of school,
the District announced that instruction for students would begin late on all Mondays during the
2000-2001 school year. 	On late start Mondays, student instruction commenced at 9 a.m.
instead of 8: 10 a.m. as on regular school days. At the beginning of the school year, the
workday for teachers on late start Mondays commenced at 7:30 a.m. instead of the normal
starting time of 7 :40 a.m. This continued until October 6, 2000, when the District returned the
start time to 7 :40 a.m. following a complaint from the Union.
There was some prior practice of occasional faculty meetings at 7:30 a.m. Charles
Holland, a former principal at Mark Twain, testified that before and during his tenure there
were regular staff meetings every other Wednesday from 7:30 a.m. to 8 a.m. He testified that
he also scheduled some faculty meetings after school.
There were 30 late start Mondays in the 2000-2001 school year. A variety of activities
took place on those mornings. Mentor teachers conducted in-service training for their fellow
faculty members on physical education, computer operation and science. There were
discussions about textbooks, holiday programs, field trips and student testing. 	School
10

curriculum committees met and there were coordination meetings among teachers of students
in the same grade level. On several occasions at the end of the semester, teachers were
released from late start Monday meetings in order to work on their grades. 	Teacher witnesses
estimated variously that "half' or "65 to 85 percent" or "most" of what was accomplished in
late start Mondays was new compared to what had been done on SIP days and at other
meetings in previous years.
On late start Mondays teachers usually were occupied with the program until just
before the start of instruction. As a result, they lost whatever time otherwise would have been
available for preparation, paper grading or other non-teaching duties.
Along with the introduction of late start Mondays, the District increased the amount of
time teachers spent with students on the other days of the week. Teacher-student contact time
is measured in the District as "instructional minutes." District administrators were instructed
by the school board that when they instituted late start Mondays they should ensure that the
amount of teaching time was not reduced from the prior year. 	Superintendent von Kleist
explained:
We reduced roughly an hour of instructional time on Mondays,
and so we divided that hour into minutes and spread them over
the remainder of the days, the week, so the students wouldn't lose
any instructional time.
Both the District and the Union agree that the schedule as actually implemented in the
two schools increased the amount of instructional time. By the Union's calculation, the
schedule for 2000-2001 increased by 20 minutes the instructional day for morning kindergarten
teachers at Mark Twain Elementary School for the entire year. For afternoon kindergarten
teachers, the Union calculates, the instructional day was increased by 10 minutes from
August 21 until October 6 and by 3 minutes a day thereafter. For 1st through 3 rd grade teachers
11

at Mark Twain, the Union calculates, the 2000-2001 schedule increased the instructional day
by 10 minutes until October 6 and by 8 minutes a day thereafter. For 4 th through 6 th grade
teachers, the Union calculates, the 2000-2001 schedule increased the instructional day by
15 minutes until October 6 and by 8 minutes thereafter. For ih and 8 th grade teachers at
Mark Twain, the Union calculates, the 2000-2001 schedule increased the instructional day by
21 minutes until October 6 and by 3 minutes a day thereafter.
At Copperopolis, the Union calculates that the 2000-2001 schedule increased the
instructional workday by 10 minutes for morning kindergarten teachers. There was no increase
in minutes for afternoon kindergarten teachers, according to the Union's calculation. The
instructional day for 1st through 6 th grade teachers was increased by 10 minutes per day, the
Union calculates.
By the District's calculation, the schedule adopted for the 2000-2001 school year
increased by 0.67 minutes per day, or 2 hours per year, the instructional day for 1st through 3 rd
grade teachers at Mark Twain. The District calculates that the schedule increased by
1.83 minutes per day or 5.5 hours per year, the instructional day of 4 th through 6 th grade
teachers. The District calculates that the 2000-2001 schedule increased by 2.42 minutes per
day, or 7 .27 hours per year, the instructional day of ih and 8th grade teachers at Mark Twain.
For 2001-2002, the number of instructional minutes worked by Mark Twain teachers is the
same as in 1999-2000.
For Copperopolis, the District calculates that the 2000-2001 schedule increased by
0.39 minutes per day, or 1.17 hours per year, the number of instructional minutes worked by 1st
through 3rd grade teachers. The District calculates that the schedule increased by 0.44 minutes
per day, or 1.33 hours per year, the instructional day of 4 th through 6 th grade teachers. 	For
12

2001-2002, the number of instructional minutes worked by Copperopolis teachers is the same
as in 1999-2000.
Teacher witnesses testified that the increase in instructional minutes reduced the
amount of time available for preparation and other non-teaching duties. "The work that I
would have accomplished during that time had to be done at another time when students
weren't there," testified Carol Aardal, a teacher at Copperopolis. Ken Swanner, a ih and 8 th
grade teacher at Mark Twain, testified that the increase in student contact time lengthened his
workday by a comparable amount of time.
The increases in instructional minutes resulted in later student dismissal times at the
end of the day. At Copperopolis, for example, 1st through 3 rd grade students were released at 2
p.m. in the 1998-1999 and 1999-2000 school years. In 2000-2001, 1st through 3 rd grade
students were released at 2:10 p.m. The start time was 7:55 a.m. in all three years. For 4 th
through 6 th grades, the afternoon dismissal time went from 2:05 p.m. to 2:15 p.m. The
morning start time remained at 7:55 a.m. 10 At Mark Twain, the regular schedule dismissal
time for 4 th through 6 th graders was 2:30 p.m. in the 1999-2000 school year. After October 6,
2000, the regular schedule dismissal time for 4 th through 6 th graders at Mark Twain was
2:38 p.m. In both years, the start time was 8 a.m. 11 There were comparable extensions of the
school day at all other grades. The extension of the student day had the companion effect of
increasing the length of the teacher workday. Because teachers are required to remain at
school for 30 minutes following the dismissal of students, the increase in instructional minutes
effectively increased the length of the teacher workday by a comparable amount.
10See Charging Party Exhibit 4.
11 See Charging Party Exhibits 5, 8 and 9.
13

Seven Period Day for ih and 8th Grades
In 1999-2000, teachers of the ih and 8 th grades at Mark Twain taught six periods a day.
Toward the end of the school year, there was a meeting between then principal Holland and all
but one of the ih and 8th grade teachers to develop an accommodation plan for students who
wished to participate in the band or chorus. 12 The objective was to develop a way for band and
choral students to participate in those activities without losing instructional time in their other
classes. During the course of this discussion, some participants suggested that instruction for
ih and 8th grade students be converted into a seven-period day. Mr. Swanner, who was in
attendance at that meeting, testified that the proposal was to shorten the other periods. He said
there was no discussion about increasing instructional time for teachers.
When teachers reported in August for the commencement of the 2000-2001 school
year, they were informed that the instructional day for ih and 8 th graders would be increased to
seven periods. The additional period would be the first of the day, a homeroom followed by
instruction in study skills. Band and choral students would be released during the first period
when their classmates received the study skills training.
At the time they were advised about the creation of the seven-period day, teachers were
told that a study skills curriculum would be provided for them. However, the curriculum did
not arrive until the second semester of the 2000-2001 school year. Mr. Swanner testified that
he spent 10 to 15 minutes a day preparing a curriculum for the study skills class. He described
this as "minimal" compared to other courses. He said he taught study skills during the first
12 The one teacher who was absent was Tom Owens, a member of the Union bargaining
team.
14

quarter of the school year. After that, he allowed students to use the class period as a study
hall and he occupied his time in tutoring students individually, as needed. Jeff Airola, a ih and
8 th grade teacher at Mark Twain, testified that he spent 30 minutes per day of preparation time
for study skills. Mr. Owens testified that he spent 14 to 20 minutes a day preparing for study
skills. He said he never got a curriculum from the District and he had to create his own. 	The
three teachers testified that the time spent on study skills was in addition to the time spent on
their other classes which already had extended beyond the regular workday.
Mr. Holland, the principal when the seven period day was instituted, expressed a view
that teacher preparation for study skills was minimal. He said that during the first part of the
period teachers would be occupied in homeroom activities such as taking roll and getting a
lunch count. He said the preparation needed to teach study skills was minimal, nothing like the
preparation required to teach an academic class.
The seven period day for ih and 8th grade students at Mark Twain was eliminated in the
2001-2002 school year.
LEGAL ISSUES
Did the District make a unilateral increase in the work hours of teachers in the fall of
2000 and thereby fail to meet and negotiate in good faith by:
1. 	Increasing the amount of yard and/or bus duty worked by teachers?
2. 	Increasing the amount of teacher-student contact time?
3. 	Increasing from six to seven the number of teaching periods required for
teachers of the i 11 and 8 th grades?
15

CONCLUSIONS OF LAW
If an employer makes a pre-impasse unilateral change in an established, negotiable
practice that employer violates its duty to meet and negotiate in good faith. 	(NLRB v. Katz
(1962) 369 U.S. 736 [50 LRRM 2177].) Such unilateral changes are inherently destructive of
employee rights and are a failure per se of the duty to negotiate in good faith. 	(Davis Unified
School District, et al. (1980) PERB Decision No. 116; State of California (Department of
Transportation) (1983) PERB Decision No. 361-S.)
To prevail on a complaint of unilateral change, the exclusive representative must
establish by a preponderance of the evidence that (1) the employer breached or altered the
parties' written agreement or own 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 was not merely an isolated breach of the contract, but amounts to a change of policy
(i.e., has a generalized effect or continuing impact upon the terms and conditions of
employment of bargaining unit members); and (4) the change in policy concerns a matter
within the scope ofrepresentation. (Grant Joint Union High School District (1982) PERB
Decision No. 196 (Grant); State of California (Department of Forestry and Fire Protection)
(1993) PERB Decision No. 999-S.)
Yard Duty
In the past, the Union argues, the teachers were obligated to work no yard duty at both
Mark Twain and Copperopolis schools. By the Union's calculation, the increase in yard duty
amounted to 50 to 100 minutes per week at Mark Twain and 30 to 60 minutes per week at
Copperopolis. Moreover, the Union continues, the change affected a negotiable matter
because all teachers testified that the time they spent on yard duty in 2000-2001 was time that
16

previously had been available to use as they saw fit. 	Because this was duty free time, the
Union argues, the loss of time impacted hours and was negotiable. Furthermore, the Union
continues, the testimony established that the assignment of substantial amounts of yard duty
increased the amount of work time teachers had to spend outside the regular workday, thereby
increasing their hours of work. Thus all elements of a unilateral change have been established,
the Union concludes, and a violation must be found in the assignment of yard duty.
The District argues that during the 1998-1999 school year, teachers at both
Copperopolis and Mark Twain had had recess yard duty assignments. Then, the District
continues, the teachers at both schools approached their respective principals and requested
that yard duty be assigned to aides in the following year. The principals granted this request,
which was made, the District observes, without negotiations. Then, in 2000-2001, the District
continues, the superintendent became concerned that the use of federally financed aides for
such duties might be improper. Therefore, the District argues, he directed that the teachers
return to the prior practice of supervising students during recess. However, the District asserts,
the requirement that teachers perform yard duty in the 2000-2001 school year was nothing
more than a return to the previous status quo. It was the long-standing past practice that
teachers work yard duty at both schools, the District argues, and the 1999-2000 school year
was the exception and not the practice.
Under the standard the Board has adopted, to be binding a past practice:
... must be (1) unequivocal; (2) clearly enunciated and acted
upon; and (3) readily ascertainable over a reasonable period
of time as a fixed and established practice accepted by both
parties. [Citation.] The Board has ... described a valid past
17

practice as one that is "regular and consistent" or "historic and
accepted .... "[ 13 ]
I do not find anything about the history of yard duty for District teachers that is
unequivocal, clearly enunciated or readily ascertainable over a reasonable period as a fixed and
established practice. The negotiated agreement is silent about the amount of yard duty that
teachers must work and as a result the amount of yard duty to be worked has varied. It has
varied between schools. It has varied between years. It has varied among the grade levels. It
has varied among teachers. Contrary to the allegation in the complaint, there was no uniform
past practice whereby teachers in grades 7 and 8 had no yard duty and teachers in grades 1
through 6 had only one 10-to 15-minute period of yard duty for one semester per year.
The Board does not recognize a practice that is not consistent throughout the bargaining
unit of a school district as establishing a status quo that can be changed only by negotiations.
This is especially true where, as here, there is a history of discretionary changes in that practice
by management. 14 The record establishes that over the years District principals have made
unilateral adjustments in the yard and bus duty assignments of the teachers they supervise.
Thus, the practice that existed was that the District unilaterally fixed the amount of yard duty.
The most dramatic example of this was in the fall of 1999 when the principals at the two
District schools unilaterally removed all responsibility for yard duty from the teachers.
Granted that this was a change made at the request of individual teachers and was a change that
13Hacienda La Puente Unified School District (1997) PERB Decision No. 1186 adopting the
administrative law judge decision at p. 13.
14See Modesto City Schools and High School District (1985) PERB Decision No. 541
and Modesto City Schools and High School District (1984) PERB Decision No. 414.
18

benefited them. It was, nevertheless, a unilateral action made entirely without prior
negotiations with the Union.
Assuming, but not deciding, that the amount of yard duty teachers must work is a
negotiable subject, it is clear that the District has set the schedules unilaterally in the past.
Teachers worked the schedule set each fall by the school administration. As the District
observes in its brief, "the decision to return to the previous recess yard duty supervision was
made in the same fashion as in prior years, that is, without subjecting that duty to the
negotiating process." That is to say that even if the subject is within the scope of bargaining,
the past practice is that the District unilaterally sets the amount of yard duty that teachers shall
work. This is the status quo and the District does not make a unilateral change by continuing it
until changed through bargaining. Accordingly, I conclude that the District made no unilateral
change when in the fall of 2000 it reassigned teachers to supervise students in yard duty.
Change in Instructional Minutes
It is undisputed, the Union argues, that the District altered an established past practice
when it changed the number of instructional minutes that teachers are required to work each
day. A change in instructional minutes is negotiable, the Union argues, if it results in a
corresponding increase in the length of the teachers' assigned duty day, citing Imperial Unified
School District (1990) PERB Decision No. 825. Here, the Union contends, the length of the
duty was increased and the change was therefore negotiable.
The District argues that there was no unilateral change because the District negotiated
the late start Monday program in meetings with the Union the prior spring. Although there
was no formal agreement about the subject, the District continues, the matter had been
discussed at the table and the superintendent believed that he had reached an understanding
19

with the Union. Moreover, the District continues, it met its obligation to provide notice and an
opportunity to bargain when it sent the president of the Union a copy of the agenda for the
meeting of the school board that clearly disclosed a proposal to implement the late start
Monday program. By its failure to request bargaining upon receipt of the agenda, the District
asserts, the Union waived its right to bargain about the subject and the District's unilateral
implementation of late start Monday was not a failure to negotiate in good faith.
The Union rejects the assertion of waiver. There was no agreement in negotiations
about the change and, the Union observes, all of its witnesses credibly testified that the
superintendent did not inform the Union team that the implementation of late start Monday
would result in an increase in instructional minutes. The Union urges that any countering
testimony of the superintendent be rejected as not credible. The Union rejects the assertion
that mailing the agenda of a school board meeting to the Union president provided notice of an
intent to increase instructional minutes. The Union points out that the applicable agenda item
offers no notice that there would be an increase in the instructional workday. Because the
agenda item did not disclose a possible change in instructional minutes or the overall length of
the teacher workday, it did not provide valid notice. Therefore, the Union reasons, there was
no waiver.
An employer may take unilateral action if it can demonstrate that the exclusive
representative waived its right to negotiate. But any waiver of the right to bargain will not be
lightly inferred. (Oakland Unified School District (1982) PERB Decision No. 236.) For an
employer to show that an exclusive representative has waived its right to negotiate, the
employer must produce evidence of either "clear and unmistakable" language (Amador Valley
Joint Union High School District (1978) PERB Decision No. 74) or demonstrative behavior
20

waiving a reasonable opportunity to bargain over a decision not already firmly made by the
employer. (San Mateo County Community College District (1979) PERB Decision No. 94.) A
waiver can be shown by contractual terms, by negotiating history or by inaction on the part of
the exclusive representative. (Los Angeles Community College District (1982) PERB
Decision No. 252.) By whichever method, however, the evidence must indicate an intentional
relinquishment of the union's right to bargain. (San Francisco Community College District
(1978) PERB Decision No. 105.) Where an employer does not provide adequate notice of a
proposed change, a union's failure to request bargaining is not a waiver. (Beverly Hills Unified
School District, (1990) PERB Decision No. 789; Los Angeles Community College District (1982)
PERB Decision No. 252.)
The Board several times has considered the adequacy of an item published in a school board
meeting agenda as notice to the union of an impending negotiable change. fu Arvin Union School
District (1983) PERB Decision No. 300, the Board concluded that "general publication of the
[school] board agenda does not constitute effective notice to the exclusive representative of
proposed changes in scope matters." (See also Calexico Unified School District (1983) PERB
Decision No. 357 at fn. 9 of the decision of the administrative law judge.) fu Victor Valley Union
High School District (1986) PERB Decision No. 565 (Victor Valley), the Board concluded that
publication in a school board agenda was not adequate notice because the employer "failed to
demonstrate that the agendas clearly informed the Association of the proposed [change]." The
Board concluded, however, that publication in a meeting agenda "may suffice if it is delivered to a
proper [union] official and is presented in a manner reasonably calculated to draw attention to any
item(s) reflecting a proposed change in a matter within the scope ofrepresentation." (Id. at fu. 6.)
fu Modesto City and High School Districts (1986) PERB Decision No. 566, the Board found an
21

occasion where publication in the agenda of a school board meeting was adequate notice and the
union's failure to demand bargaining constituted waiver. There, the agenda gave clear notice of an
intent to adopt a school calendar. The union official knew of the contents of the agenda and the
District acknowledged its obligation to bargain. The Board held that the union's failure to demand
bargaining in the face of clear notice constituted waiver.
Here, I do not find in an agenda item that the school board would "Consider Approval of
Late Start Schedule for staff development, Mondays, 2000-2001 School Term" notice that the
number of instructional minutes would be increased or that teacher work hours would be
lengthened. The agenda item did not describe a proposed change "in a manner reasonably
calculated" to draw the Union's attention to a proposed change in a negotiable matter. A Union
officer reading the agenda entry would have to be prescient to understand its negotiable effects. Nor
do I find a waiver in the discussions about staff development and early release Mondays that took
place in negotiations in the spring of 2000. There is no evidence that the parties ever traded
proposals about the subject. What seems to have occurred is little more than a philosophical
discussion in the context of an interest-based negotiating session. There is no evidence that the
Union was ever put on notice of an impending change in instructional minutes and its effects on a
mandatory subject. Waiver is an affirmative defense and any doubts must be resolved against
the party asserting it. (Placentia Unified School District (1986) PERB Decision No. 595.) In
the absence of any indication of a "clear and unmistakable" abandonment of interest in
negotiating, I find that the Union did not waive its right to bargain about the increase in
instructional minutes and/or its effects.
22

The Board has held that the length of the instructional day is a nonnegotiable managerial
prerogative outside the scope ofrepresentation. (Imperial Unified School District (1990) PERB
Decision No. 825.)
. . . Thus, employers are generally free to alter the instructional
schedule without prior negotiation with employee organizations.
However, when changes in the instructional day in tum affect the
length of the working day or existing duty-free time, the subject
is negotiable. Similarly, to the extent changes in preparation time
affect the length of the employees' workday or existing duty-free
time, that subject is negotiable. [Ibid; Emphasis in original.]
Thus the critical question here is whether the changes made by the District when it instituted late
start Mondays in the fall of 2000 had an impact on the existing duty free time of teachers or
otherwise changed the hours of work.
There is no dispute, initially, that at Mark Twain the length of the teacher workday was
increased on every Monday from the commencement of the 2000-2001 school year until October 6.
Until that date, teachers were required on Mondays to be at school by 7:30 a.m., ten minutes earlier
than previously required. This was an increase in hours, a negotiable subject, and because it was
done unilaterally, a failure to negotiate in good faith.
The more difficult question is whether the institution of late start Mondays and the
accompanying change in instructional minutes had any other negotiable effect on hours. It is not
disputed that the instructional day was increased in the 2000-2001 school year. Although the parties
do not agree about how many minutes the instructional day was increased, there is no question that
it was increased. A preponderance of the evidence also establishes that more than half of the time
teachers spent at meetings on late start Mondays was occupied with new matters they would not
have done previously at faculty meetings or other meetings. It thus is clear that for the most part,
23

attendance at the late start Monday meetings did not relieve teachers from duties they otherwise
would have been required to complete.
Teacher witnesses testified that the additional instructional minutes they worked in the
2000-2001 school year were taken from non-teaching work time that otherwise would have been
available for preparation and other duties. All teachers testified that they regularly perform work in
the time they are obligated to be at school before and after the commencement of teaching and
during duty-free periods during the day. They all testified that in addition they take work home with
them and grade papers and do other preparation in the evening. Teachers testified that the increase
in instructional minutes came directly out of the non-teaching time that otherwise would have been
available for preparation. The teacher witnesses all testified that time lost for preparation by the
increased instructional minutes had to be made up by increasing the hours worked outside the
regular workday.
If an increase in instructional time is taken from non-teaching time that teachers otherwise
had used for preparation, it is apparent that, as the teachers testified, there will be a comparable
impact on after-school work time. This obvious relationship has been noted in prior decisions of the
Board:
The decision to increase instructional time during the class
day had the indirect but wholly predictable effect of increasing the
amount of non-class work which each teacher ... had to do on his or
her own time; that is, over and above the ... ostensible limit in the
collective bargaining agreement.. .. [1 5]
Here, it appears that the District did not take the increased instructional minutes out of
non-teaching preparation time. Rather, a review of the school schedules reveals that the
District lengthened the school day for students and teachers by 8 to 10 minutes This was done
15Victor Valley at p. 31 of the decision of the administrative law judge.
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by instituting later dismissal times for students at all grade levels in both schools. Morning
reporting times remained the same. The later dismissal times for students required teachers to
stay on campus until later in the day because of the contractual requirement that teachers must
remain on campus until 30 minutes after the dismissal of their students. The District thus
increased the number of minutes teachers were required to remain on campus each day and
modified the work schedule. Hours of work is a mandatory subject of bargaining specifically
listed within the EERA scope ofrepresentation provision. 16 I conclude, therefore, that the
District increased the hours of work in the 2000-2001 school year. This change was made
without notice to the Union and without affording the Union an opportunity to negotiate. 	It
was, therefore, a failure by the District to meet and negotiate in good faith.
Seven Period Day for the ih and 8 th Grades
The Union argues that the District made a unilateral change in the past practice when it
changed from six to seven the number of instructional periods taught by i 11 and 8th grade
teachers at Mark Twain. This change increased the amount of preparation time required of the
affected teachers and, the Union argues, the hours of work. Because the change was made
unilaterally and without any opportunity to bargain the Union concludes, it constituted a failure
to negotiate in good faith.
The District asserts that fixing the number of class periods in the instructional day is a
management prerogative, which is not subjective to collective bargaining. The District rejects
the assertion that the change had any effect on the amount of preparation time required of i 11
16See section 3543.2.
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and 8 th grade teachers. The District argues that because there was a decrease in the number of
instructional minutes in the other classes, there was a corresponding decrease in the
preparation time needed in those classes. Moreover, the District continues, because the newly
created period was a homeroom coupled with a study skills class, the preparation time required
was minimal at most.
The Board previously has held that a change in the number of teaching periods is
negotiable if it affects the number of hours teachers must work, be it by increasing the number
of papers to grade or the amount of time needed to prepare. (Sutter Union High School
District (1981) PERB Decision No. 175.) The record establishes that J1h and 8 th grade teachers
at Mark Twain did have an increase in their off campus duties as a result of the change from
six to seven periods per day. The three teacher witnesses all testified that they had to write a
curriculum for the study skills class because of a delay in the arrival of a prepared curriculum.
While the amount of time required to teach study skills was described as "minimal" compared
to their other courses, the witnesses estimated it as ranging from 10 to 30 minutes per day.
I am not persuaded by the District argument that because the number of instructional
minutes were reduced in the other periods that the preparation time for those courses was
reduced by the amount of time required to prepare for the study skills class. The teachers did
not describe such an effect and it does not seem logical that a drop of several minutes of class
time would have any impact on the level of preparation required.
Accordingly, I conclude that the District unilaterally increased the hours of J1h and 8 th
teachers at Mark Twain Elementary School by the conversion to a seven period day in the fall
of 2000.
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REMEDY
The PERB in section 3541.S(c) is given:
... the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter.
The District has been found in violation of its duty to meet and negotiate in good faith
by unilaterally increasing the work hours of teachers. The District increased the work hours
for teachers during the 2000-2001 school year by: (1) requiring teachers at Mark Twain
Elementary School to report at 7:30 a.m., 10 minutes earlier than their regular start time, every
Monday from the commencement of the school year until October 6, 2000; (2) lengthening the
workday for all teachers by lengthening the instructional workday, a change that had the effect
ofrequiring teachers to remain at school 8 to 10 minutes longer every day of the school year;
(3) increasing from six to seven the number of instructional periods for the ih and 8th grade
classes at Mark Twain, a change that required teachers to teach an additional subject thereby
lengthening their workdays by 10 to 30 minutes per day.
It is appropriate therefore that the District be directed to cease and desist from making
unilateral changes and, if it has not already done so, to reinstate the past practice. It also is
appropriate that the District be directed to make whole any members of the District's
certificated bargaining unit who were affected by the change in hours.
The Union argues that the proper remedy to make the teachers whole is to compensate
them monetarily for the additional hours worked. In a comprehensive review of PERB cases
on remedy for increased hours of work, the Union acknowledges that PERB most frequently
has granted compensatory time rather than money. 	Still, the Union argues, PERB' s earliest
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decisions granted a monetary award which, the Union argues, is the standard remedy granted
by labor boards in the United States. Compensatory time off, the Union argues, is a remedy
that ignores the reality of how teachers work. Citing testimony from witnesses at the hearing,
the Union argues that when teachers know they will be absent from school they must prepare
plans for the substitute teacher. Then, upon return, the Union continues, teachers must correct
the work that was done, deal with any discipline problems that arose with the substitute and
reorganize the classroom. Because of these factors, the Union concludes, a remedy of time off
is not a remedy at all.
The District opposes a financial remedy as punitive and out of line with previous PERB
decisions. Noting that the State of California currently has a budgetary shortfall, the District
argues that it is in the public interest to minimize the financial impact of an adverse decision.
The District asserts that the proper remedy for increased hours of work is decreased hours of
work. "There are strong public policy reasons for awarding compensatory time off, rather than
monetary compensation," the District contends. " ... [P]ublic policy dictates that school
district funds should be used to further the education of its students. This purpose can be
enhanced by minimizing the fiscal impact of any unfair practice charge finding against the
district." The District rejects the assertion that compensatory time is ineffectual and proposes
that the parties negotiate to avoid the disruptions or burdens that might be associated with time
off rather than compensation.
As is made clear by the Union's summary of PERB decisions, the Board has not
established a consistent remedy for cases involving an increase in hours. In San Mateo Citv
School District (1984) PERB Decision No. 375(a) (San Mateo), the Board amended its order in
San Mateo City School District (1980) PERB Decision No. 129 and awarded back pay to
28

teachers who had worked additional time. The Board also has awarded a monetary remedy in
Rio Hondo Community College District (1982) PERB Decision No. 279 and in Oak Grove
School District (1986) PERB Decision No. 582 (Oak Grove). However, the Board has
awarded compensatory time off as a remedy in Healdsburg Union Elementary School District
(1994) PERB Decision No. 1033, Cloverdale Unified School District (1991) PERB Decision
No. 911; Victor Valley; and Corning Union High School District (1984) PERB Decision No.
399 (Corning). In Fountain Valley Elementary School District (1987) PERB Decision No.
625, the Board awarded what the Union appropriately described as an "either or" remedy,
either time off or money.
There is no clear policy rationale in the various Board decisions that identify which
case is appropriate for compensatory time and which for back pay. In San Mateo, the Board on
its own motion amended the order in an earlier decision because it "failed to require the
District to make employees whole for the increase in hours." Less than two months later, the
Board in Corning awarded time off rather than money writing:
... while hours can be properly translated into dollars, the direct
and immediate result of the unilateral change was that the
teachers were required to work extra hours. In our view,
therefore, the most appropriate way to make the affected
employees whole would be by ordering the District to afford the
teachers a corresponding amount of time off.
In Oak Grove the Board awarded back pay because it found that a return to the prior schedule
would have a disruptive effect on the educational program in the District. That conclusion left
the teachers in the position of working more hours and thus entitled additional compensation.
In subsequent cases, the Board has awarded time off without discussion about whether
back pay or compensatory time was the more appropriate remedy. Because the majority of
Board decisions, as well as the most recent decisions, grant time off rather than back pay, I will
29

award compensatory time off. In order to avoid the problem of requiring teachers to do
additional work to prepare for substitutes, I will direct that the time off be granted in the same
manner as the extra time was worked, that is, an across-the board reduction in the school day.
The District will be directed to provide as many shortened school days during the year in
which this decision becomes final and/or the subsequent year as are necessary to equal the
amount of extra time teachers worked in the 2000-2001 school year. The parties are directed
to meet and negotiate about a schedule for the shortened days. If they are unable to reach
agreement, then the regional director after meeting with the parties shall direct the time and
manner in which affected employees are to receive compensatory time off. As a alternative
to this remedy, the District may provide financial compensation with interest at the rate of
7 percent if it so chooses.
It also is appropriate that the District be required to post a notice incorporating the
terms of the order. Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. It effectuates
the purposes of the EERA that employees be informed of the resolution of this controversy and
the District's readiness to comply with the ordered remedy. (Placerville Union School District
(1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in the
case, it is found that the Mark Twain Union Elementary School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3543.S(c), (b) and
(a). The District violated the Act during the 2000-2001 school year by unilaterally increasing
30

the work hours of teachers in the following manner: 	(1) requiring teachers at Mark Twain
Elementary School to report at 7:30 a.m., 10 minutes earlier than their regular start time, every
Monday from the commencement of the school year until October 6, 2000; (2) lengthening the
workday for all teachers by lengthening the instructional workday, a change that had the effect
of requiring teachers to remain at school 8 to 10 minutes longer every day of the school year;
(3) increasing from six to seven the number of instructional periods for the ih and 8 th grade
classes at Mark Twain, a change that required teachers to teach an additional subject thereby
lengthening their workdays by 10 to 30 minutes per day.
By changing the past practice without first meeting and conferring with the Angels
Camp Educators Association, CT A/NEA (Union), the District failed to meet and negotiate in
good faith in violation of section 3543.5(c). Because this action had the additional effect of
interfering with the right of the Union to represent its members, the failure to meet and confer
in good faith also violated section 3543 .5(b ). Because the action had the further effect of
increasing the work hours of teachers, the District's action violated section 3543.5(a).
All other allegations against the District are hereby DISMISSED.
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally increasing the hours of work for teachers;
2. 	Interfering with the right of the Union to represent its members;
3. 	Interfering with the right of individual teachers to participate in the
activities of an employee organization.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Effective immediately upon service of a final decision in this matter, if
the District has not already done so, reinstate for teachers the work schedule that existed prior
to the commencement of the 2000-2001 school year.
2. 	Before the conclusion of the school year that follows the year in which
this decision becomes final, grant to District teachers sufficient compensatory time off to equal
the amount of additional time teachers were required to work during the 2000-2001 school
year. Grant the time off through the use of shortened days or such other method that will have
the effect of releasing all teachers from school at the same time, thereby avoiding any
requirement for teachers to prepare materials for substitute teachers during the time they
receive their compensatory time off. The District shall meet and negotiate with the Union
regarding a schedule for the shortened days. If the District and the Union are unable to reach
agreement, then the regional director after meeting with the parties shall direct the time and
manner in which affected employees are to receive compensatory time off. As a alternative
to this remedy, the District may provide financial compensation with interest at the rate of
7 percent if it so chooses.
3. 	If there are any employees who were affected by the increased hours in
the District but who no longer are employed by the District, the District shall compensate those
persons at the daily rate of pay plus interest at the rate of 7 percent for the additional time
worked.
4. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to members of the certificated employee bargaining
unit customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice
32

must be signed by an authorized agent of the District, indicating that the District will comply
with the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
5. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
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
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
33

A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, sec. 32135(b ),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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 filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
,~e.~~LRonald E. Blubaugh
Administrative Law Judge
34