Los Angeles Unified School District (PERB 2518E)

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SEAL OF THE SHIP
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA
UNITED TEACHERS LOS ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5824-E
PERB Decision No. 2518
March 6, 2017
Appearances: Littler Mendelson by William J. Emanuel, Barrett K. Green, and Rachael Lavi,
Attorneys, for Los Angeles Unified School District; Holguin, Garfield, Martinez, & Quiñonez
by Jesús Quiñonez, Michael Wertheim, and Michael Plank, Attorneys, for United Teachers Los
Angeles.
Before Gregersen, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by Los Angeles Unified School District (District or LAUSD) to
a proposed decision (attached) by an administrative law judge (ALJ). The complaint alleged
that the District violated the Educational Employment Relations Act (EERA)1 by unilaterally
implementing a new teacher evaluation rating policy. The complaint alleged that this conduct
constituted a violation of EERA section 3543.5 subdivisions (a), (b), and (c).2
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2 The complaint also alleged that the District violated EERA by creating a new “Teacher
Growth and Development Cycle Lead Teacher” position, by distributing a notice to bargaining
unit employees announcing the creation of this position, and by soliciting

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employees to apply for the position. The ALJ dismissed these allegations in the proposed
decision which UTLA did not except to.
The ALJ permitted the parties to amend the complaint to include an allegation that the
District unilaterally changed its policy by implementing a Final Evaluation Form for the 2013-
2014 school year that contains: (1) a section on “Observation of Teacher’s Practice,” (2) a new
section on “Contributions to Student Outcomes/Support for Student Learning,” and (3) new
evaluation criteria in a section on “Additional Professional Responsibilities.” The amended
complaint alleged that these items were not previously contained in the District’s Final
Evaluation Form. The amended complaint alleged that this conduct constituted a violation of
EERA section 3543.5, subdivisions (a), (b), and (c). The ALJ dismissed these allegations, to
which UTLA did not except.
The ALJ concluded that the District violated EERA by unilaterally implementing the
new four-level observation rating system and ordered the District to rescind any and all use of
the system.
The Board itself has reviewed the administrative hearing record in its entirety and
considered the District’s exceptions and United Teachers Los Angeles’s (UTLA) responses
thereto. The record as a whole supports the ALJ’s factual findings, and the proposed decision is
well-reasoned and consistent with applicable law. Accordingly, the Board affirms the ALJ’s
rulings, findings and conclusions of law and adopts the proposed decision as the decision of the
Board itself, subject to the discussion of the District’s exceptions below and with a modification
to the proposed remedy.
PROCEDURAL HISTORY
UTLA filed an unfair practice charge in this case on June 18, 2013, and a complaint
issued on September 4, 2013, alleging that the District violated EERA by unilaterally
implementing “a new evaluation rating policy that includes classroom observations based on the
‘Teaching & Learning Framework’ which incorporates four levels of evaluation ratings:
‘Ineffective, Developing, Effective, and Highly Effective.’” The complaint alleged that prior to
May 24, 2013, the District did not have an evaluation policy that used a “four-level rating that
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included classroom observations.” (Complaint, paras. 3 and 4.) This complaint was amended
shortly before the hearing to add allegations that the District made additional unilateral changes
to the Final Evaluation Report form by adding sections to the form.3
An informal conference held on October 23, 2013, failed to produce a settlement, and
the case proceeded to a four-day formal hearing held June 2-5, 2014. The proposed decision
issued on December 24, 2014. The District filed timely exceptions, to which UTLA filed a
timely response.
SUMMARY OF FACTS
Since at least 2009, the parties have been engaged to one degree or another in dialogue
concerning improving the teacher evaluation system. Task forces and working groups were
convened with District administrators, representatives of UTLA, and representatives of
education community groups. Outside contractors were hired. Reports were made. “Group
Thoughts” were written and circulated.
In November 2010, the District convened an Evaluation Working Group (Working
Group) with UTLA and the Associated Administrators of Los Angeles (AALA) to “‘facilitate
the [. . .] eventual resolution of performance evaluation issues at the separate negotiation
tables.’” (Proposed dec. at p. 7.) The discussions of this Working Group were not considered
by any party to be formal negotiations.
By late March 2011, the Working Group issued a document entitled “Group Thoughts”
that was intended to inform subsequent negotiations regarding the next certificated performance
evaluation system. Included in the “Group Thoughts” was the concept of using an
3 The allegations contained in this amendment were dismissed by the ALJ and not
excepted to.
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“‘evaluation/observation rubric that delineates at least four levels of teaching proficiency.’”
(Proposed dec. at p. 7.)
Around the same time the Evaluation Working Group was created, the District hired a
private company, Teaching and Learning Solutions (TLS) to develop a new teacher training and
development framework. In the ensuing months, TLS created what became known as
LAUSD’s Teaching and Learning Framework (TLF) based on a nationally-recognized body of
research. The TLF designed a set of standards related to different aspects of teaching. These
standards were consistent with the California Standards for the Teaching Profession (CSTP),
and were divided into “‘components’” which were in turn sub-divided into “elements.” Further
refining the endeavor of describing teaching performance, each “element” was reduced to
“‘rubrics’” which illustrate performance along a continuum with four categories, ranging from
“‘ineffective,’” to “‘highly effective.’” (Proposed dec. at p. 9.) The term “rubric” was also
defined by Ronni Ephraim, who oversaw the District’s Open Court reading program as “a
rating.” (Reporter’s Transcript (RT) V. III, p. 12:23.)
On April 28, 2011, the District sent a letter to certificated employees describing its
efforts to reform its teacher and administrator support mechanisms, including evaluations.
Those efforts would later be named the Teacher Growth and Development Cycle (TGDC).
LAUSD also announced a new pilot program starting in the 2011-2012 school year to
incorporate the TLF into the teacher observation and evaluation process at a select set of school
sites. LAUSD represented in this announcement that it would seek “the input and participation
of our collective bargaining partners” and that “LAUSD remains committed to the collective
bargaining process.” (Unfair practice charge, Exh. 4.) UTLA objected to the implementation
of the pilot program, to the extent it changed matters subject to negotiations and filed an unfair
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practice charge.4 Despite the objections, the pilot program ran during the 2011-2012 and the
2012-2013 school years.
As a result of the pilot program, the District presented feedback to the Ad Hoc TLF
Committee and made some changes to the TLF system in or around March 2012. The District
repeated its earlier assertions that it would negotiate over implementation of the TLF as
required by law.
Doe v. Deasy Litigation5
In July 2012, a superior court judge issued a writ of mandate ordering the District to
comply with a purported requirement of the Stull Act6 that evaluation procedures incorporate
elements of students’ progress. Pursuant to this order, the parties focused on on-going
negotiations over evaluation reform on this specific requirement and reached agreement on
November 30, 2012, known as the Supplemental Agreement. This agreement required that the
initial planning phase of the evaluation process include review and discussion of multiple
measures of student achievement toward District and State standards.
The May 24, 2013 Letter
After the Supplemental Agreement was reached, the District wished to continue
bargaining over additional proposed changes to the evaluation process. In early February 2013,
it gave UTLA an initial proposal, and the parties had one bargaining session. The proposal
identified interests the District sought to pursue, including implementing multiple measures and
ratings to improve the evaluation process, improving the observation of classroom practices,
4 The charge, PERB Case No. LA-CE-5561-E was held in abeyance by mutual request of
the parties during the litigation of this case. It has since been withdrawn.
5 Los Angeles County Superior Court Case No. BS134604.
6 The Stull Act, codified in part at Education Code section 44660 et seq., sets forth
minimum requirements for evaluation of certificated employees.
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and improving the quality and measurement of employee contributions to the school
community. No further proposals were exchanged, and no agreement or impasse was reached.
On May 24, 2013, the District sent UTLA a draft version of a letter it planned to send to
all teachers. The letter announced the full-scale incorporation of the TLF for the 2013-2014
year, including use of a four-level rating system for observing teachers’ performance as part of
the evaluation process. These four levels were “Ineffective,” “Developing,” “Effective,” and
“Highly Effective.” Prior to this, ratings of teachers’ classroom teaching as observed by school
administrators had varied widely across the District. The collective bargaining agreement
prescribes no rating or ranking system with respect to observations.
In response to this draft letter, counsel for UTLA, Jesus Quiñonez, e-mailed John
Bowes, the District’s then-Director of Labor Relations, asking, “What is this? I suggest that the
District not distribute this letter until there has been an opportunity for review and discussion
between the parties.” (Joint Exh. 15.) The District issued the letter to all teachers later that day.
On May 31, 2013, Quiñonez demanded that the District rescind the May 24, 2013 letter and
bargain over changes to the evaluation procedure, among other things.
Bowes responded to Quiñonez on June 4, 2013, assuring him that the District did not
intend to change the overall evaluation ratings (as opposed to the observation ratings) from a
two-level system, i.e., “‘Meets Standards’” or “‘Below Standard.’” Bowes acknowledged that
changing the final evaluation ratings would require negotiations. No negotiations over the
observation rating system took place, and the new observation rating system was implemented
for the 2013-2014 school year.
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Implementation of the New Observation Ranking System
The May 24, 2013 letter informed teachers that the District “will continue our work to
fully implement the Teacher Growth and Development Cycle,” which is comprised of two
measures: classroom observations and data-driven student learning outcomes as adopted in the
Supplemental Agreement. The classroom observations were to be based on the District’s TLF,
which, according to the District, “provides all of our teachers and school leaders with a common
definition of effective instruction and is the basis of more specific and detailed feedback.”
(Joint Exh. 14, p. 1.)
The TLF did more than simply create four new levels of rating for observation of
teachers’ performance. It described tasks and instructional techniques expected of teachers and
included in narrative detail the characteristics of four levels of performance that pertain to the
task. The TLF attempted to describe what ineffective, developing, effective, and highly
effective performance looks like with respect to each aspect or standard of instructional
practice.
For example, one component of the TLF is “Creating an Environment of Respect and
Rapport.” An element of this component is “Classroom Climate,” which is described: “The
classroom environment is safe and supportive; risk-taking is encouraged, students freely
contribute their ideas, and student mistakes are treated as learning opportunities, never with
ridicule.” Teachers’ effectiveness at creating this goal is assessed as either “ineffective” (where
students do not freely share their ideas; students mistakes may be ridiculed by the teacher or
other students); “developing” (some students freely share their ideas; risk-taking and mistakes
receive unpredictable responses from the teacher or other students); “effective” (students freely
share their ideas and take risks in learning); or “highly effective” (students freely share their
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ideas, opinions or struggles, and student and teacher mistakes are treated as learning
opportunities by teacher and students). Similar components include “managing classroom
procedures” and “managing student behavior.” (Joint Exh. 12.)
PROPOSED DECISION7
The ALJ framed the relevant issue here: “Did LAUSD enact an unlawful unilateral
policy change by . . . implementing a four-level rating system for teacher observations, based on
the TLF?” (Proposed dec. at p. 13.)
The ALJ analyzed the District’s use of a four-level observation rating system for teacher
observations in the 2013-2014 school year under the elements of a unilateral policy change: (1)
the employer took action to change existing policy; (2) the policy change concerned a matter
within the scope of representation; (3) the action was taken without giving the exclusive
representative notice or opportunity to bargain over the change; and (4) the change has a
generalized effect or continuing impact on terms and conditions of employment. (Fairfield-
Suisun Unified School District (2012) PERB Decision No. 2262, p. 9 (Fairfield-Suisun USD)
citing Grant Joint Union High School District (1982) PERB Decision No. 196, p. 10; Walnut
Valley Unified School District (1981) PERB Decision No. 160, p. 5.)
The ALJ found that the District began to use the four-level observation rating system in
the 2013-2014 school year and that it had refused to bargain over that change. The primary
issues then were whether the change was within the scope of representation and/or whether the
District was excused from bargaining due to waiver by UTLA, as the District asserted.
7 For the convenience of the reader, a summary of the proposed decision is provided in
the body of the Board’s decision. This summary is no substitute for reading the proposed
decision itself.
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The ALJ concluded that the four-level observation rating system was within the scope of
representation because it was an enumerated subject in EERA section 3543.2, subdivision (a),
as it is a procedure to be used for the evaluation of employees. According to the ALJ, PERB
has long interpreted the evaluation procedures clause in EERA section 3543.2, subdivision (a)
broadly, citing to Modesto City Schools (1983) PERB Decision No. 347 (Modesto), Compton
Community College District (1990) PERB Decision No. 798 (Compton CCD), and Jefferson
School District (1980) PERB Decision No. 133 (Jefferson SD).
The ALJ reasoned that the four-level observation rating system is an evaluation
procedure within the meaning of EERA section 3543.5, subdivision (a) primarily because, at its
core, the new rating system is the process or methodology used for assessing and giving
feedback to teachers about their performance. As in Compton CCD, supra, PERB Decision
No. 798, and Jefferson SD, supra, PERB Decision No. 133, the rating system pertains to how
LAUSD documents material used to evaluate employees, and it is undisputed that employees’
scores on the new four-level observation rating system are part of employees’ personnel files.
Even if the observation rating system was not an evaluation procedure, the ALJ
concluded it is nevertheless within the scope of representation under PERB’s longstanding test
for determining the negotiability of issues not enumerated in EERA section 3543.2 as set forth
in Anaheim Union High School District (1981) PERB Decision No. 177, p. 4 (Anaheim), which
deems a subject to be within the scope of representation if it: (1) is logically and reasonably
related to wages, hours, or an enumerated term and condition of employment; (2) the subject is
of such concern to management and employees that conflict is likely to occur and the mediatory
influence of collective bargaining is an appropriate means of resolving the conflict; and (3)
negotiation would not significantly abridge managerial prerogatives, including matters of
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fundamental policy essential to the school district’s mission. Applying this test, the ALJ first
found that the ranking system was negotiable. (Id. at pp. 3-4.)
The ALJ rejected the District’s argument that Education Code section 44660 et seq. (the
Stull Act) supersedes EERA and relieves the District from any obligation to bargain over
evaluation procedures. According to the ALJ, the Stull Act does not create an “‘inflexible
standard’” or “‘immutable provisions’” regarding the use of a four-level observation rating
system. (Proposed dec. at p. 25.)
The ALJ also rejected the District’s argument that any duty to bargain over the
observation rating system in this case was excused because UTLA waived its right to bargain
over the matter. According to the ALJ, there was no clear and unmistakable waiver of UTLA’s
right to bargain either through provisions in the parties’ collective bargaining agreement or by
failing to request bargaining after it had notice of proposed changes.
The ALJ also rejected the District’s contention that its history of making changes to its
evaluative rating systems had created a “‘dynamic status quo’” that allowed for unfettered
discretion to create the four-level observation rating system at issue in this case. (Proposed dec.
at p. 37.) The ALJ concluded that there was no evidence that the new observation rating system
was consistent with a fixed methodology.
DISTRICT’S EXCEPTIONS TO PROPOSED DECISION
The District filed 104 exceptions to the proposed decision, many of them repetitive,
taking issue with virtually every page of the proposed decision from page 14 through page 43,
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and many of them unrelated to the ultimate issues in this case.8 They can be grouped by the
following categories or arguments.
(1) 	The District did not impose a four-level rating system on May 24, 2013, but instead
“adopted new standards based on a four-level rubric for use in classroom observations
and other educational purposes.” (District’s Exceptions, p. 2; passim; bold and
underline in original.) The observation procedure has not changed.
(2) 	Standards or criteria for evaluating teachers are not within the scope of representation and
the ALJ erred in his reliance on Modesto, supra, PERB Decision No. 347; Compton CCD,
supra, PERB Decision No. 798; and Jefferson SD, supra, PERB Decision No.133.
Requiring negotiation over criteria for evaluation would abridge the District’s freedom to
exercise its managerial prerogatives.
(3) 	Even if the rating system were within the scope of representation, the District was
excused from bargaining under State of California (Department of Corrections) (2008)
PERB Decision No. 1967-S. Because there is a need to provide a constitutionally
acceptable education and prevent a poorly educated public, the need for unfettered
decision-making with respect to teacher evaluations is as important as the constitutional
requirement to provide adequate healthcare for prisoners.
8 For example, in its first exception the District asserts that the ALJ erroneously
concluded that the Office of the General Counsel issued a complaint alleging that LAUSD
unilaterally imposed a new four-level observation rating system as part of its evaluation
process. According to the District, the complaint “does not allege that the District imposed a
new observation rating system. See PERB complaint at paragraph 4.” (District’s Exceptions, p
1.) Paragraph 4 of the Complaint reads: “. . . Respondent changed this policy by implementing
a new evaluation rating policy that includes classroom observations based on the ‘Teaching &
Learning Framework’ which incorporates four levels of evaluation ratings.” Any fair reading of
the complaint shows that the ALJ’s paraphrase of it was accurate.
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(4) 	The ALJ erred in concluding that the observation rating system was not subject to the
duty to consult over educational objectives.
(5) 	The Stull Act supersedes the duty to negotiate over the observation procedure because it
requires the District to “establish a uniform system of evaluation and assessment of the
performance of all certificated personnel.” (Ed. Code, § 44660.) Requiring
administrators to conduct observations in a uniform manner ensures that the District will
be able to comply with the Stull Act.
(6) 	UTLA waived its right to negotiate over the new observation rating system by failing to
demand to bargain when it was on notice well before May 24, 2013, that the District
intended to implement the change.
(7) 	The collective bargaining agreement (CBA), including the management rights clause,
gives the District the right to determine how it conducts observation of teacher practice.
(8) 	Bargaining history shows that UTLA waived its right to bargain over evaluation
procedures in part because the evidence established there was a dynamic status quo that
permitted the District to make changes in evaluation procedures.
The exceptions are discussed in more detail below.
DISCUSSION
After the proposed decision issued, the Board issued Pasadena Area Community College
District (2015) PERB Decision No. 2444, in which we noted:
The gravamen of any unilateral action is exclusion of employees
through their chosen representative from participation in the
decision-making process. Whether a unilateral action is the
creation, implementation or enforcement of policy, or a change to
existing policy as contained in a written agreement, in written
employer rules or regulations, or in an unwritten established past
practice, our statutes require an employer contemplating a change
in policy concerning a matter within the scope of representation to
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provide the exclusive representative notice and an opportunity to
bargain.
(Id. at p. 12; see also Gonzales Union High School District (1993) PERB Decision No. 1006
[newly created policy subject to unilateral change doctrine].)
Therefore, whether the new observation rating system represented a change from an
identifiable past practice or was an implementation of new policy is not important because in
either event, we analyze liability under the unilateral change doctrine. Thus, a unilateral policy
change, or implementation of a new policy will be considered a “per se” violation of the duty to
bargain in good faith where: (1) the employer took action to change existing policy or
implement a new policy; (2) the policy change concerned a matter within the scope of
representation; (3) the action was taken without giving the exclusive representative notice or
opportunity to bargain over the change; and (4) the change has a generalized effect or
continuing impact on terms and conditions of employment. (Fairfield-Suisun USD, supra,
PERB Decision No. 2262, p. 9.)
Prior to implementation of the new observation ranking system, the District used
numerous rubrics without any uniform standard. The CBA makes no mention of ranking
procedures for classroom observations. Thus, the May 24, 2013 letter represented the
implementation of a new policy and the first prong of the test for unilateral change is satisfied.9
Because the District indicated it intended to continue using the new observation ranking system,
and because it applies to all classroom teachers, there is no doubt that the policy has a
9 In so concluding we reject the District’s argument that there was no change in the
observation process because teachers continued to be observed within the timeframes and
frequency set forth in the CBA. While that may be true, the change at issue in this case is in the
implementation of the four-level ranking system and the detailed rubrics or criteria that are the
TLF.
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continuing impact and generalized effect on terms and conditions of employment. Therefore,
the fourth prong of the “per se” test is satisfied.
As the ALJ noted, the two issues in dispute here are whether the new observation rating
policy announced by the District in its May 24, 2013 letter is within the scope of representation
and whether UTLA waived its right to bargain over the policy by inaction and/or by language in
the CBA.
We first consider whether the subject was within the scope of bargaining.
Negotiability of the Observation Ranking System
EERA section 3543.2, subdivision (a)(1) provides that the scope of representation:
shall be limited to matters relating to wages, hours of employment,
and other terms and conditions of employment. “Terms and
conditions of employment” mean health and welfare benefits as
defined by Section 53200, leave, transfer and reassignment
policies, safety conditions of employment, class size, procedures
to be used for the evaluation of employees, . . .
(Emphasis added.)
The District asserts that the new observation ranking system is not negotiable because it
imposed standards or criteria for evaluation, which the District contends is a managerial
prerogative. It made the same argument to the ALJ, who rejected it, noting, “The rating system
does not set forth the standards for assessing employees. Rather it is the mechanism LAUSD
employed to score employees in their adherence to performance standards.” (Proposed dec. at
p. 16; emphasis added.) We agree with the ALJ and conclude that the observation rating
system, including its incorporation of portions of the TLF, is negotiable, either because it is a
term specifically enumerated in EERA section 3543.2, subdivision (a) (a procedure for
evaluation of employees), or because it is reasonably and logically related to that enumerated
subject and satisfies the Anaheim test as we discuss below.
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As the ALJ correctly noted, our precedents have broadly and liberally construed the duty
to bargain over evaluation procedures, and have explicitly held that “procedures” encompass
evaluation criteria. For example, in Walnut Valley Unified School District (1983) PERB
Decision No. 289 (Walnut Valley), the Board held that the criteria unilaterally adopted by the
employer to determine the competency of teachers over the age of 65 to continue in
employment were negotiable. Those criteria included such factors as the employee’s
effectiveness as a teacher, his or her classroom management and control, professionalism,
planning and preparation, all factors remarkably similar to those involved in the instant case.
Walnut Valley described these factors as “criteria for determining competency to continue
employment because they establish the areas the District will evaluate. As such these criteria
“are negotiable because they relate to wages, hours and terms and conditions of employment.”
(Id. at p. 9.) Applying the Anaheim test, the Board found that the matter is of such concern to
both employees and management that conflict is likely to occur because it touches on the “most
fundamental aspect of the employment relationship, its continuity.” (Id. at p. 9. See also
Holtville Unified School District (1982) PERB Decision No. 250 (Holtville).)
Trustees of the California State University (San Marcos) (2004) PERB Decision No.
1635-H (San Marcos) is also on point. In that case the employer unilaterally changed
performance evaluation and overall rating procedures to include two above-satisfactory ratings
(where there had previously been only one) and to allow different weights to be given to various
performance criteria instead of averaging the various scores on those criteria, as had been the
previous practice. The Board held that these changes were within the scope of representation
because they related to evaluation and merit systems.
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The District excepts to the ALJ’s reliance on these three cases, arguing that they should be
distinguished on various grounds. It asserts that Walnut Valley, supra, PERB Decision No. 289
and Holtville, supra, PERB Decision No. 250 are inapposite to this case because the criteria used
to evaluate whether certain teachers were competent to continue working involved a basic
employment condition, but not a fundamental policy decision related to the quality and nature of
essential public services. The District claims that its revised standards for classroom observations
constituted a policy decision that did not affect basic employment conditions.
We disagree. The District argues throughout its exceptions that it must be unhindered in
its attempts to improve its teacher evaluation system because such improvements are critical to
improving the quality of education by improving the quality of the teacher workforce. The
inescapable implication of this position is that underperforming teachers will be dismissed if
they are unable to meet District standards, as measured in part by the new evaluation system,
including the observation ranking system. Just as the criteria for determining continued
competency of teachers over age 65 were used to determine suitability for continued
employment, the District’s observation ranking system is intended for the same purpose. The
observation ranking system implicates basic employment conditions in the same way that the
criteria for assessing suitability for continued employment did in Walnut Valley, supra, PERB
Decision No. 289 and Holtville, supra, PERB Decision No. 250. While the District intends its
evaluation system to assist teachers in improving their practice, it is undeniable that the ultimate
consequence of no improvement will be dismissal from employment.
The CBA provides for an unpaid suspension as a consequence of poor evaluations, and
Education Code section 44938, subdivision (b)(1) provides, as a prelude to dismissal, a 90-day
period of notice and opportunity for improvement of unsatisfactory performance. An evaluation
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system, including performance standards, is logically and reasonably related to continued
employment, whether the purpose of that system is to determine fitness for teachers over a
certain age, or to determine continued suitability for employment, training, or other remedies.
The District further attempts to distinguish this case from our precedents by asserting
that in the earlier cases there was no evidence in Walnut Valley, supra, PERB Decision No. 289
or in Holtville, supra, PERB Decision No. 250, that “incompetent teachers had undermined the
educational process on a large scale, or that even a single student had suffered in any way.”
(District’s Brief in Support of Exceptions (District’s Brief), p. 26.) The District cites to the fact
that 99.3 percent of LAUSD teachers were rated as “‘meets standards,’” but only 56 percent of
the District’s students graduated from high school. Yet there was no evidence in the record that
demonstrated that the evaluation system caused the low high school graduation rate. Nor was
there any evidence that poor teaching methods caused the low graduation rate. Equally
plausible explanations include factors beyond the control of teachers, such as the poverty rate of
students and other socio-economic factors, the numbers of English-learner students, student
discipline policies that disproportionally expel or suspend students, poor curriculum policies,
etc. At most, the fact that 99.3 percent of the teachers met the District’s standards shows either
that the vast majority of teachers are in fact competent, or that the evaluation system was not
administered or designed in such a way as to rate teachers on a bell curve. It does not prove
that the evaluation system caused an educational emergency that would justify jettisoning
EERA’s requirement that evaluation criteria be negotiated with the teachers’ exclusive
representative.
Nor do we agree with the District’s assertion that Walnut Valley, supra, PERB Decision
No. 289 and Holtville, supra, PERB Decision No. 250 cannot be applied to this case because
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those were smaller school districts—“single institutions,” in the District’s words. (District’s
Brief, p. 26.) Every school district in the state is smaller than LAUSD. The purpose of the
collective bargaining laws in this state is to give a voice to employees and their representative
organizations on matters related to wages, hours and working conditions as defined in EERA,
regardless of the employer’s size. The urgency of improving teaching and learning through
evaluation systems, or by dismissing incompetent teachers or administrators, or by
strengthening the curriculum is no more or less urgent based on the size of the employer.
Neither does the magnitude of the problem excuse the District from complying with the policy
of this state embodied in EERA.
The District also attempts to distinguish the San Marcos decision, asserting that it
involved unilateral changes in the overall evaluation ratings of a final evaluation form that
directly impacted decisions regarding merit increases. (San Marcos, supra, PERB Decision No.
1635-H.) The District searches for differences without distinction. The employer in San
Marcos unilaterally changed the overall rating procedures and the performance evaluation
procedures by including two above-satisfactory rating categories, in place of one, and by giving
evaluators more discretion to weigh certain criteria than they previously had. The fact that
merit increases were implicated in the San Marcos case, or that the changes were to a final
evaluation as opposed to an interim procedure is immaterial. In both cases, the evaluation
procedure was changed by altering the number of ranking categories on an evaluation
instrument. For this reason the ALJ correctly relied on San Marcos for his conclusion that the
observation ranking system implemented by the District was within the scope of representation.
As the District’s May 24, 2013 letter states, the TGDC intends to base classroom
observations on the TLF, “which provides all of our teachers and school leaders with a common
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definition of effective instruction and is the basis of more specific and detailed feedback.”
(Joint Exh. 14.) In the words of the ALJ, “the new rating system is the process or methodology
used for assessing and giving feedback to teachers about their performance.” (Proposed dec. at
p. 16.) This describes an evaluation system as well as a scoring mechanism. It therefore is
obviously a “procedure related to evaluations.” Regardless of whether the new observation
ranking system was merely a procedural change or an incorporation of new standards for
evaluating employees, our precedent establishes that it is within the scope of representation,
either because it is a procedure for evaluating employees or because it satisfies the Anaheim
test. (Walnut Valley, supra, PERB Decision No. 289; San Marcos, supra, PERB Decision No.
1635-H.)
Despite the changes in the performance observation protocol that were brought about by
implementing the new observation ranking system, the District argues that the observation
procedure itself has not changed because procedures for observing teacher performance have
not changed, and therefore no negotiable change occurred. We disagree. By increasing the
categories by which classroom instruction will be measured and by decreeing the common
definition of effective instruction to provide the basis of more specific and detailed feedback,
the District has changed evaluation procedures.
The District notes that EERA section 3543.2, subdivision (a) contains the term
“procedures” for the evaluation of employees and “procedures” for processing grievances.
Subdivision (b) refers to “procedures” for disciplinary action. However, subdivision (c) refers
to “procedures and criteria” for layoffs. Subdivision (d) refers to “criteria” for the payment of
additional compensation. Subdivision (e) refers to “criteria” for a salary schedule. According to
19

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the District, it is not logical to conclude that the Legislature intended to use “procedures” and
“criteria” in different ways in the same section of a statute.
As noted above, PERB long ago determined that criteria for evaluation are negotiable.
(Walnut Valley, supra, PERB Decision No. 289.) We see no reason that precedent should be
disturbed. Moreover, the District’s argument that the Legislature intended to define
“procedures” and “criteria” as distinct statutory terms of art is undermined by the language of
the Higher Education Employer-Employee Relations Act (HEERA)10 section 3562, subdivision
(r)(1) which states in relevant part:
For purposes of the California State University only, “scope of
representation” means, and is limited to, wages, hours of
employment, and other terms and conditions of employment. The
scope of representation shall not include: . . . (D) Criteria and
standards to be used for the appointment, promotion, evaluation,
and tenure of academic employees, which shall be the joint
responsibility of the academic senate and the trustees.
(Emphasis added.)
This language demonstrates that the Legislature knew how to explicitly exclude
evaluation criteria from the scope of representation. The fact it did not do so in EERA strongly
suggests that the Legislature intended a broad interpretation of “procedures” for evaluation as
that term is used in EERA section 3543.3, subdivision (a).
10 HEERA is codified at Government Code section 3560 et seq.
20

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Application of the Anaheim test
The District also excepts to the ALJ’s conclusion that the observation ranking system is
negotiable under the Anaheim test.11 We agree with the ALJ for reasons we now explain.
1. 	The Change in Performance Observation Protocol is Logically and Reasonably
Related to Enumerated Subjects of Bargaining.
The District excepts to the ALJ’s conclusion that “even [if] the new rating system was
not an evaluation procedure, in-and-of itself, the system unquestionably relates to such
procedures.” (District’s Exceptions, p. 8, citing to proposed dec. at p. 17.) The ALJ’s
conclusion is supported by Rio Hondo Community College District (2013) PERB Decision
No. 2313 (Rio Hondo), in which the Board held:
Applying the Board’s Anaheim, supra, PERB Decision No. 177
test, we first conclude that the type of evidence an employer relies
on or is permitted to use to substantiate employee
performance evaluations is logically and reasonably related to
evaluation procedures, which is an enumerated term and condition
of employment in EERA section 3543.2(a).
(Id. at p. 14; emphasis added.)
11 That test provides:
. . . a subject is negotiable even though not specifically
enumerated if (1) it is logically and reasonably related to hours,
wages or an enumerated term and condition of employment, (2)
the subject is of such concern to both management and employees
that conflict is likely to occur and the mediatory influence of
collective negotiations is the appropriate means of resolving the
conflict, and (3) the employer’s obligation to negotiate would not
significantly abridge his freedom to exercise those managerial
prerogatives (including matters of fundamental policy) essential to
the achievement of the District’s mission.
(Anaheim, supra, PERB Decision No. 177 at pp. 4-5.)
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If the “type of evidence an employer relies on or is permitted to use to substantiate
employee performance evaluations” logically and reasonably relates to evaluation procedures, a
tiered system of describing and ranking the quality of classroom performance which provides
feedback to teachers based on observed evidence, i.e., the District’s observation ranking system,
is also necessarily logically and reasonably related to evaluation procedures. (Rio Hondo,
supra, PERB Decision No. 2313 at p. 14.) Therefore, under Rio Hondo, evaluation “criteria”
are related to evaluation procedures.
The new observation ranking system is also logically and reasonably related to “causes
and procedures for disciplinary action.” (EERA section 3543.2, subd. (b); Rio Hondo, supra,
PERB Decision No. 2313 at pp. 14-15.) The Board noted in Rio Hondo that disciplinary
procedures are within the scope of representation. (Rio Hondo at pp. 14-15.)
Article X of the parties’ CBA (“Evaluation and Discipline”), Section 11.0(a), states in
relevant part:
Employees may be disciplined for cause. Such discipline may
include Notices of Unsatisfactory Service or Act and/or
suspension from duties without pay for up to fifteen working days,
. . . If the discipline is based upon incompetence, the observation,
records and assistance provisions of Section 5.012 apply.
12 CBA Article X Section 5.0 states in relevant part:
Observations, Records and Assistance: Observations should be
followed by conferences to discuss the employee’s performance.
If problems are identified, the evaluator shall make specific
written recommendations for improvement, and offer appropriate
counseling and assistance. Within four working days of the
conference, a copy of written records relating to observations,
advisory conferences and assistance offered or given shall be
given to the employee for the employee’s information, guidance,
and as a warning to improve performance.
22

(Emphasis added.) This CBA language directly connects disciplinary procedures with the
observation portion of the employer’s evaluation, at least in cases of alleged incompetence.
For these reasons, as well as those relied on by the ALJ, we reject the District’s assertion
that the observation ranking system was not logically and reasonably related to enumerated
subjects of bargaining.
Subject is of Concern to Both Management and Employees.
The District excepts to the ALJ’s conclusion that the second element of the Anaheim test
was satisfied. The District bases this exception on what it alleges is an admission by UTLA that
“[t]he only ratings that matter to an individual teacher are on the final evaluation, of which there
are still only two – ‘Meets Standard Performance’ or ‘Below Standard Performance.’” (Joint
Exh. 57 at p. 2.)
We do not find the District’s argument persuasive. The second prong of the Anaheim
test is not a question of fact to which a party may be found to have admitted. Instead, it is a
mixed question of law and fact, requiring PERB to exercise its expertise and discretion to assess
whether the issue is one in which conflict is likely to occur and the mediatory influence of
collective bargaining is an appropriate means of resolving the conflict. In this case, there is
ample basis to support our conclusion that the subject of evaluations for certificated employees
was of great concern to both management and employees. As the ALJ described at pages 6-9
and 18 of the proposed decision, over the course of several years, both the District and UTLA
participated in several joint work groups and task forces to study ways to improve evaluations.
UTLA itself formed a Teacher Evaluation Workgroup to develop guiding principles for an
effective evaluation system. Teachers as well as administrators wanted a method for providing
23

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effective and meaningful feedback on their performance and a system that more objectively and
robustly provided that feedback.
The District’s assertion that teachers are only interested in the final evaluation rating
disregards the fact that an employee’s classroom observation ratings have a direct effect on the
employee’s final evaluation ratings. (See CBA Article X Sections 5.0 and 6.0.)13 Evaluation
procedures in general are a subject that clearly meet the second prong of the Anaheim test,
regardless of what one opinion may be about the importance of a particular part of the
evaluation procedure.
As noted by the ALJ, the parties have historically negotiated over various aspects of
evaluation procedures, a fact that provides further reason to conclude that the “mediatory
influence of collective negotiations is the appropriate means of resolving the conflict.”
(Anaheim, supra, PERB Decision No. 177 at pp. 4.)
Negotiations Would Not Significantly Abridge Managerial Prerogatives.
The District argues that the third prong of the Anaheim test is not met in this case
because negotiations would significantly abridge its freedom to exercise managerial
prerogatives that are essential to the achievement of its mission, “which is to provide teachers
13 CBA Article X Section 6.0 states in relevant part:
Final Evaluation Report: . . . [T]he evaluator shall prepare and
issue the Final Evaluation Report in which the employee’s overall
performance and progress toward objectives is evaluated. . . .
When a Final Evaluation Report is marked “Below Standard
Performance,” the evaluator shall specifically describe in writing
the area of below standard performance, together with
recommendations for improvement, and the assistance given and
to be given.
(Emphasis added.)
24

with standards for teaching and effectiveness in order to lead to the Districts’ mission of greater
student achievement.” (District’s Brief, p. 30.)
It is beyond dispute that a core purpose of any school district is to increase student
achievement. However, the District errs in equating a duty to bargain over the changes it made
in May 2013 with any significant abridgement of its exercise of managerial prerogatives
(including matters of fundamental policy) essential to the achievement of its mission.
Our precedents have applied the Anaheim test to evaluation systems that have both
changed the number of rankings (San Marcos, supra, PERB Decision No. 1635-H), and have
imposed criteria or standards to be used in assessing teacher performance (Walnut Valley,
supra, PERB Decision No. 289) and have concluded that bargaining over such subjects would
not significantly abridge the employer’s right to exercise its managerial prerogatives.
The District’s argument regarding its core mission to improve student performance
conflates a systemic protocol—the evaluation system—with the individual actions
implementing that protocol. It is not an evaluation system, however flawed or robust, that
implicates student achievement. It is the application of that system by school administrators
that ideally assists teachers in improving their performance and when improvement is not
possible, provides the basis for termination from employment. Illustrating this point, albeit on
the similar but related issue of teacher dismissal, the California Court of Appeal in its recent
decision in Vergara v. State of California (2016) 209 Cal.Rptr.3d 532 (Vergara) noted:
Records from LAUSD showed that a larger number of teachers
resigned to avoid the formal dismissal process than those who
elected to go through the process. These records also showed that
the number of teachers dismissed or resigning to avoid dismissal
increased from a total of 16 in 2005-2006 to a total of 212 in
2012-2013. This change was due in part to an LAUSD policy of
initiating the dismissal process whenever a teacher received two
below-standard evaluations.
25

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(Id., at p. 546.)14
By the same token, the District’s mission of improving student performance is not
abridged by a requirement that it negotiate over the evaluation ranking system, because it is the
application of an evaluation system, not the negotiation over the system, that presumably
improves teacher performance. Responding to the District’s depiction of the educational
emergency facing the District, it is also worth underscoring that the District always has the
ability to unilaterally implement whatever evaluation policy it chooses ---	after it has completed
negotiations with the exclusive representative, and exhausted all impasse procedures. (Orange
Unified School District (2000) PERB Decision No. 1416 at p. 12; San Mateo Community
College District (1979) PERB Decision No. 94; Modesto City Schools (1983) PERB Decision
No. 291 at p. 38.)
We are not persuaded that simply because the evaluation system needed improvement,
the matter was therefore outside the scope of bargaining. Nor does it follow that poor student
performance means that teachers and their employee organization should be excluded from
negotiating over improvements to the evaluation system. No evidence was presented showing
any link between student performance and the evaluation process in effect prior to May 2013,
yet the District presumes that teacher performance is the sole or primary factor in student
achievement scores. Moreover, the District itself stated in its February 15, 2013 letter to
District employees: “We believe—and research and experience tells us—that measures of
student achievement should not be used as the sole means of measuring quality or effectiveness
14 It is worth noting that the 212 teachers referred to in Vergara, supra, 209 Cal.Rptr.3d
532 resigned in the school year prior to the District’s adoption of the new observation ranking
system, demonstrating that the District’s ability to effectively dismiss underperforming teachers
was not dependent on it having in place the observation procedures at issue here.
26

of instruction.” (Joint Exh. 9.) Yet the District’s Brief relies on the implicit argument that low
student achievement proves and is caused by a low quality of teacher evaluation protocols.
Correlation does not prove causation. It therefore is an overreach for the District to claim that
its core mission of educating its students excuses it from bargaining with its teachers’
representative over evaluation procedures.
Finally, the District’s claim of managerial prerogative is belied by the fact that it had
negotiated with UTLA over evaluation procedures in the past, and even as recently as 2012,
when it negotiated successfully over changes in the evaluation process necessitated by the
superior court’s decision in the Doe v. Deasy litigation. It also appears that the District had
every intention of bargaining over future changes in the evaluation process, and specifically
over classroom observations when, in February 2013, it sunshined its initial bargaining proposal
concerning employee evaluation procedures. (Joint Exh. 7, p. 4.) That document reads in
relevant part:
For its initial proposals for 2012-2013 . . . negotiations and
discussions with . . . UTLA concerning procedures to be used for
Evaluation of Employees to become effective commencing in
2013-[20]14, the District identifies the following interests that the
District will be seeking to pursue:
1. 	The District will continue to pursue enhancements in the
quality of employee evaluations, performance,
accountability and services, with the intention of enhancing
achievement in student academic performance. . . . Among
the topics for such negotiations will be multiple measure
and ratings to improve the efficacy, fairness, clarity, . . .
quality, and consistency of the . . . evaluation processes
across the District; improve the observation of classroom
professional practices. . . . [Emphasis added.]
2. 	These continued negotiations and discussions, . . . are
required by the recently-completed LAUSD-UTLA
27

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November 2012 Evaluation Procedures Supplement to
Article X, . . . [the Doe v. Deasy negotiations].15
This document was presented to UTLA to continue negotiations over evaluations.
The District’s position that classroom observation criteria are a matter of fundamental
policy and exempt from bargaining is further undermined by the language in California
Education Code section 44661.5, which states in relevant part:
When developing and adopting objective evaluation and
assessment guidelines . . . a school district may, by mutual
agreement between the exclusive representative of the certificated
employees of the school district and the governing board of the
school district, include any objective standards from the National
Board for Professional Teaching Standards or any objective
standards from the California Standards for the Teaching
Profession if the standards to be included are consistent with this
article. If the certificated employees of the school district do not
have an exclusive representative, the school district may adopt
objective evaluation and assessment guidelines consistent with this
section.
(Emphasis added.)
This language indicates that the Legislature considered “developing and adopting
objective evaluation and assessment guidelines” was not so fundamental to a school district’s
core mission that it should be outside its obligation to bargain with an exclusive representative.
(Ed. Code, § 44661.5.) To the contrary, Education Code section 44651.5 endorses the concept
that evaluation standards must be negotiated with the exclusive representative of certificated
employees at least to the extent that they include objective standards from the CSTP or the
National Board for Professional Teaching Standards and that such standards may not be
incorporated into the evaluation process absent mutual agreement.
15 The District also reserved its position that “most of the matters that will be discussed”
fall within its authority under the current CBA and/or applicable law. (Joint Exh. 7, p. 4.)
28

Department of Corrections Decision
The District further argues that the ALJ erred by refusing to apply Department of
Corrections, supra, PERB Decision No. 1967-S to this case. Specifically, the District excepts
to the ALJ’s conclusion that the present case does not rise to the extraordinary circumstances
presented in Department of Corrections. The District argues that, even assuming that
evaluation criteria are generally a mandatory subject of bargaining, the exception recognized by
PERB in Department of Corrections applies equally to the facts of the present case.
According to the District, it must provide constitutionally acceptable education and
prevent a poorly educated public, just as the State of California had a constitutional duty to
provide adequate healthcare for prisoners in Department of Corrections, supra, PERB Decision
No. 1967-S. The District argues that this case involves a constitutional crisis at least as
important as that in Department of Corrections. The District further contends that Department
of Corrections is not limited only to “emergency circumstances,” but applies to any decision
“made primarily to implement a fundamental policy decision related to the quality and nature of
essential public services.” (District Exceptions, p. 15, citing Department of Corrections, supra,
PERB Decision No. 1967-S, proposed dec. at p. 52) We agree with the ALJ that there is “no
evidence that any failures of LAUSD’s existing observation and evaluation system ever reached
emergency proportions.” (Proposed dec. at p. 21.)
As the ALJ correctly noted, Department of Corrections, supra, PERB Decision
No. 1967-S is factually very different from the present case. The unique facts in Department of
Corrections that are not present in this case include:
(1) 	Physicians were treating patients outside their field of
training, and potentially life-threatening mistakes were
being made.
29

(2) 	Inmate deaths had occurred as a result of the substandard
care, and more were sure to suffer and die if the system
was not immediately overhauled.
(3) 	At one facility, the experts found some physicians had
problems such as mental health disorders, and some
physicians lost privileges due to substance abuse or
incompetence.
(4) 	The evaluation program implemented by the Department of
Corrections was the only program in the country capable of
evaluating physicians on the scale needed by the
Department.
As these factual distinctions indicate, the employer’s need for unencumbered decision-
making in managing its operations in Department of Corrections, supra, PERB Decision
No. 1967-S was significantly more compelling than in the current case, where there is no
evidence of deaths, or a lack of qualified supervisors to conduct evaluations. Nor is there
evidence in this case of a direct and substantial causation between the alleged deficiencies in
evaluation procedures and student achievement. In Department of Corrections there was
evidence that the inability to weed out incompetent physicians and to correct their performance
deficiencies caused inmate deaths and resulted in an utterly broken prison health system. In
contrast, there is no evidence in this case that the allegedly deficient teacher evaluation system
has caused students to fail or has prevented the District from achieving its mission. Nor is there
any evidence that the District lacked competent supervisors or that those supervisors were
unable to identify deficient teachers. In fact, according to the facts recited in Vergara v. State
of California, supra, 209 Cal.Rptr.3d 532, it appears that the District was able to substantially
increase its ability to weed out underperforming teachers at least in 2012-2013 when it initiated
the dismissal process after a teacher received two below-standard evaluations.
30

In Department of Corrections, supra, PERB Decision No. 1967-S, the employer was
under a federal court order to fix its healthcare system, an order to which the Department
stipulated. No similar court order applied to the evaluation system in the District, except for the
Deasy order that was limited to incorporating elements of student progress in teacher
evaluations. As noted above, negotiations addressing that limited issue were completed well
before implementation of the new observation ranking system in May 2013. Observation
rankings were not the subject of any court order.
The balance between the benefit of negotiations against the employer’s right to make
fundamental policy decisions is one made on a case-by-case basis. (Department of Corrections,
supra, PERB Decision No. 1967-S, proposed dec. at p. 47.) For all the reasons cited above, we
agree with the ALJ that Department of Corrections does not control this case. Department of
Corrections was limited to the unique facts of the prison health care crisis described in that
case.
We also reject the District’s contention that Department of Corrections, supra, PERB
Decision No. 1967-S applies wholesale to any decision claimed to implement a fundamental
policy decision related to the quality and nature of essential public services. Accepting such a
premise would put us in the middle of the quandary identified by the California Supreme Court
in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 615:
[W]e approach the specific problem of reconciling the two vague,
seemingly overlapping phrases of the statute: “wages, hours and
working conditions,” which, broadly read could encompass
practically any conceivable bargaining proposal; and “merits,
necessity or organization of any service” which, expansively
interpreted, could swallow the whole provision for collective
negotiation and relegate determination of all labor issues to the
city’s discretion.
31

Forty years of our decisions regarding the scope of bargaining, as well as those of the
courts, point to balancing tests, such as articulated in Anaheim, supra, PERB Decision No. 177
that reject an overly expansive view of managerial prerogative.
Consultation Requirement Under EERA
The ALJ rejected the District’s argument that it was obligated only to consult with
UTLA regarding the observations ranking system. The District renews its argument here.
EERA section 3543.2, subdivision (a)(3) grants to the exclusive representative of
certificated personnel the right to consult with a public school employer “on the definition of
educational objectives, the determination of the content of courses and curriculum, and the
selection of textbooks. . . .” In addition, EERA section 3543.2, subdivision (a)(4) permits the
public school employer to consult with any employee organization on any matter outside the
scope of representation. According to the District, the observation ranking system defines
educational objectives, rendering a subject of consultation, not negotiation. In support of this
argument, the District contends that the ALJ conceded that the District had a right to develop
the TLF, and that it is illogical to then require negotiation when the District seeks to incorporate
the educational objectives contained in the TLF into the observation process.
We reject the District’s exception. First, it mischaracterizes the proposed decision
regarding the TLF. The ALJ described the new rating system as:
the “mechanism LAUSD employed to score employees on their
adherence to performance standards. . . . I note that LAUSD’s use
of TLF elements to discuss the teaching practice is not squarely at
issue in this case. The PERB complaint focuses upon LAUSD’s
use of the new four-level observation rating system. UTLA’s
closing brief, likewise, focuses on the scoring system, not the TLF
itself. It is accordingly beyond the scope of this proceeding to
decide whether it was unlawful for LAUSD to develop the TLF
and use as part of its effort to improve discourse about the
teaching practice. But . . . LAUSD is required to bargain with
32

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UTLA prior to incorporating those efforts into its evaluation
procedures.”
(Proposed dec. at p. 16; emphasis added.)
He did not “concede” or otherwise rule that the District had a right to develop the TLF,
unilaterally or otherwise. He merely noted that issue was not before PERB. We agree with the
ALJ.
Second, for reasons previously explained, the observation ranking system is a matter
within the scope of representation. Even if elements of the TLF contained educational
objectives, their incorporation into a new observation ranking system does not convert a
negotiable topic into a non-mandatory subject. Defining educational objectives is different
from using those objectives to evaluate employees. There is no doubt that a school district may,
for example, determine that its educational objective is to teach algebra to all eighth graders. If
requested to consult on this policy, it is obligated to do so, but it need not negotiate with the
exclusive representative over the decision.16 However, if the public school employer decides
that a factor in evaluating its teachers will include whether eighth grade students learned
algebra, it must negotiate with the exclusive representative.
16 The difference between negotiating and consulting under EERA was discussed in San
Dieguito Union High School District (1977) EERB Decision No. 22, p. 12, fn. 11, where the
Board noted that although the term “consult” is not defined in EERA, it appeared to be the same
duty to “meet and confer” that was used in the Winton Act, a labor relations statute that
preceded and was replaced by EERA. Former Education Code section 13081, subdivision (d)
of the Winton Act defined “meet and confer” as a mutual obligation to exchange information,
opinions and proposals and to consider recommendations in an effort to reach agreement by
written resolution or regulation of the governing board. But there was no requirement to
“negotiate” in the sense of striving to reach a contract. (San Juan Teachers Assn. v. San Juan
Unified School District (1974) 44 Cal.App.3d 232, 252.) Because EERA section 3543.2,
subdivision (a)(3) contains the same educational policy matters as those described in the Winton
Act, the Board concluded that the extent of the duty to consult is a carry-over from the Winton
Act. After EERA imposed a duty to negotiate in good faith over wages, hours and defined
terms and conditions of employment, the residual Winton Act topics of educational-policy
issues remained subject only to the duty to consult.
33

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The District excepts to the ALJ’s statement that “[a] matter is not outside the scope of
representation because it is subject to the consult provision in EERA section 3543.2,
subdivision (a). Rather, a subject may be covered by the consult clause if it is outside the scope
of representation. (See Redwoods Community College District (1987) PERB Decision No. 650,
proposed dec., pp. 49-50.)” (Proposed dec. at p. 23, fn. 9.) We interpret this statement to refer
to EERA section 3543.2, subdivision (a)(4), which reads: “All matters not specifically
enumerated are reserved to the public school employer and may not be a subject of meeting and
negotiating, except that this section does not limit the right of the public school employer to
consult with any employees or employee organization on any matter outside the scope of
representation.” This language simply permits consultation on permissive subjects of
bargaining. It is a right distinct from the items listed in EERA section 3543.2, subdivision
(a)(3). In any event, the ALJ’s observation is not dispositive of the legal conclusions in this
case. We therefore dismiss this exception.
The Stull Act
The District excepts to the ALJ’s rejection of its assertion that Education Code section
44660 et seq., the Stull Act, removes the District’s action from the scope of bargaining because
the changes announced in the May 24, 2013 letter were an attempt to bring uniformity to the
evaluation process as required by the Stull Act.17 The ALJ considered this argument and
concluded that the Education Code does not establish an immutable or inflexible standard
regarding the use of the observation rating system implemented here. Therefore he concluded
that the Education Code did not remove the subject of evaluations from EERA’s scope of
representation. We agree with the ALJ.
17 EERA section 3540 provides in pertinent part: “This chapter shall not supersede other
provisions of the Education Code. . . .”
34

Education Code section 44660 declares a legislative intent that school districts establish
a uniform system of evaluation and assessment of all certificated employees. That uniform
system “shall involve the development and adoption . . . of objective evaluation and assessment
guidelines. . . .” (Ed. Code, § 44660.) Nothing in this section indicates that the District has a
right to unilaterally establish guidelines without negotiating with the exclusive representative as
required by EERA. In fact, Education Code section 44661.5 contemplates such negotiations by
requiring mutual agreement with the exclusive representative of certificated employees before
including in evaluation guidelines the objective standards from the National Board for
Professional Teaching Standards or from the CSTP.
In San Mateo City School District v. Public Employment Relations Board (1983) 33
Cal.3d 850, 864-865, the Supreme Court approved PERB’s interpretation of the supersession
clause of EERA section 3540 to prohibit negotiations only where the provisions of the
Education Code would be “replaced, set aside, or annulled by the language of the proposed
contract clause.” (Ibid.) Nothing in the observation rating system replaces, annuls or sets aside
provisions of the Education Code.
For these reasons and for those articulated by the ALJ, we reject the District’s argument
that the Stull Act excuses it from its duty to bargain over the observation ranking system.
Past Practice of Using Four-Level Ratings
The District argues that it has established a practice over many years of using various
four-level and similar ratings for classroom observations without bargaining with UTLA, and
that this practice justifies the decision to use the rating levels in the new observation ranking
system.
35

As the Board noted in Hacienda La Puente Unified School District (1997) PERB
Decision No. 1186 (Hacienda La Puente USD):
It is widely recognized that a binding 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. . . . The Board
has long taken a similar approach. It has described a valid past
practice as one that is “regular and consistent” or “historic and
accepted.”
(Id., PD at p. 13; citations omitted.)
As evidence of the alleged practice, the District points to various rubrics that have been
used for such observations in the District for many years. However, those rubrics are not
“regular and consistent,” because they depart from the May 2013 observation ranking system
and each other in numerous ways. For example, the Open Court rubric has four levels of
ratings, but different level titles and descriptions from the TLF. The Beginning Teacher
Support & Assessment (BTSA) has a five-level rating rubric form, but with different level titles
and descriptions from the TLF. The Peer Assistance and Review Program (PAR) five-level
rating rubric form has different level titles and descriptions from the TLF. The Local District 4
four-level rating form using the Charlotte Danielson rubric and covering 108 schools has similar
elements and rating level descriptions to the TLF, but unlike the TLF, does not mention “21st
Century Skills,” a recurring theme in the TLF (Joint Exh. 12); furthermore, this form only
covered one local district, and therefore was not consistently used over the entire LAUSD.
None of these rubrics were universally used throughout the District. Nor were they “regular” or
“consistent” amongst themselves. Without comparable substance or content of the individual
ratings, the similarity in the number of ratings between the various rubrics does not establish a
binding past practice.
36

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Furthermore, the District pointed to no evidence that the District informed UTLA, or
that UTLA was on constructive notice of the District’s implementation of any of these prior
rubric or ratings forms, except for the pilot program the District announced it would implement
at the beginning of the 2011-2012 school year to incorporate the TLF into the observation and
evaluation process at select school sites. UTLA objected to this pilot program and filed an
unfair practice charge over the matter (LA-CE-5561-E).
Thus, we reject the District’s assertion that there was a binding past practice regarding
observation ranking procedures. The ALJ’s conclusion is supported by the record. The District
has failed to show that the practice met any of the criteria described in Hacienda La Puente
USD, supra, PERB Decision No. 1186.
Dynamic Status Quo
Related to its past practice assertions, the District also excepts to the ALJ’s rejection of
its “dynamic status quo” defense. (District’s Exceptions, p. 31, citing Proposed dec. at p. 39.)
The District contended that its history of making changes to its evaluation rating systems
created a “dynamic status quo” that allowed it unfettered discretion to create the observation
rating system it implemented in May 2013.18 The ALJ rejected this defense, relying on Regents
of the University of California (2004) PERB Decision No. 1689-H (Regents I), where the Board
concluded that the employer’s change in its contribution amount towards health care premiums
was not within the dynamic status quo because the changes were a product of the employer’s
discretion rather than a product of a pre-determined methodology. The ALJ noted, “changes
that derive from an employer’s exercise of discretion are not considered to be within the
18 The “dynamic status quo” doctrine permits changes that are consistent with an
established pattern of changes to negotiable subjects. (Pajaro Valley Unified School
District (1978) PERB Decision No. 51 (Pajaro); City of Alhambra (2010) PERB Decision
No. 2139-M.)
37

‘dynamic status quo.’” (Proposed dec. at p. 37.) Applying this rule to the facts, the ALJ
concluded that there was no showing that the District’s prior changes in various past rubrics
used for evaluating employees followed a discernible pattern or methodology. The District
itself maintains that administrators made prior changes through the exercise of their discretion
and for subjective reasons.
The ALJ correctly applied PERB precedents. The Board has recognized the existence of
a dynamic status quo against which an alleged unilateral change may be measured. A practice
can be demonstrated by a regular and consistent pattern of past changes in employment
conditions. (See, e.g., Pajaro, supra, PERB Decision No. 51 at p. 6 [complaint of unilateral
change dismissed where employer had consistent and accepted practice of passing along to
employees increased cost of health benefit premiums pending the outcome of negotiations].)
The ALJ’s conclusion is also supported by Regents of the University of California (1983) PERB
Decision No. 356-H (Regents II) [employer’s past “unfettered discretion” prevents the
establishment of a dynamic status quo past practice].
Based on these cases, the District’s claim that it has unfettered discretion in changing
evaluation rubrics or observation ranking systems undermines its argument that its conduct
alleged in the complaint should be excused as part of a “dynamic status quo.”
The District argues that the ALJ should have relied on PERB’s upholding of past
practices in Modesto, supra, PERB Decision No. 347, California State University (1989) PERB
Decision No. 756-H (CSU), and Cajon Valley Union School District (1995) PERB Decision
No. 1085 (Cajon Valley). The Modesto and CSU decisions are distinguishable. Modesto
involved the consistent past practice of conducting consecutive evaluations of all substandard
teachers, without any use of employer discretion as to which substandard teachers to evaluate
38

________________________
consecutively. CSU concerned a practice based on long-standing language in the parties’
collective bargaining agreement that employees must pay to park at CSU facilities, regardless of
the parking rate set by CSU.
In Cajon Valley, supra, PERB Decision No. 1085, the Board held that the school
district’s unilateral reduction of the hours of several vacant classified bargaining unit positions
was not a violation because it was consistent with the district’s long-standing and consistent
past practice of altering the hours of part-time classified positions to meet operational needs.19
There was no discussion of the “dynamic status quo,” and the decision did not cite to or attempt
to distinguish Regents II, supra, PERB Decision No. 356-H. Instead, it concluded that there
was a past practice that permitted the employer to change the hours of vacant positions. We
believe that the two Regents decisions discussed above and the cases relied on by the ALJ more
appropriately apply to the facts of this case. (Regents I, supra, PERB Decision No. 1689-H and
Regents II, supra, PERB Decision No. 356-H.)
Waiver Of Right To Bargain
The ALJ rejected each of the District’s waiver arguments, concluding that there was no
waiver by contract, inaction or by failure to demand bargaining. The District excepts to the
ALJ’s findings and conclusions regarding its waiver defense. We discuss each below after
reviewing the general legal principles guiding our discussion.
The ALJ correctly noted that any waiver of bargaining rights must be “‘clear and
unmistakable,’ demonstrating ‘an intentional relinquishment of the right to bargain.’”
(Proposed dec. at p. 25, citing Rio Hondo, supra, PERB Decision No. 2313, p. 5, emphasis in
19 As PERB held in Huntington Beach Union High School District (2003) PERB
Decision No. 1525, the fact that a position is vacant does not excuse the employer from its duty
to bargain over a change in hours for the position.
39

original.) Accordingly the “burden of establishing a waiver is upon the party asserting it.” (Id.
at p. 25, citing Rio Hondo at p. 6.) As the Board has explained in City of Milpitas (2015) PERB
Decision No. 2443-M at p. 20, citing to County of Santa Clara (2013) PERB Decision
No. 2321-M:
[W]aiver is disfavored and must be clear and unmistakable. An
employer raising a waiver defense must establish that: (1) it
provided the employee organization clear and unequivocal notice
that it would act on a matter, and (2) the employee organization
clearly, unmistakably and intentionally relinquished its right to
meet and confer in good faith.
A generally-worded management rights clause will not be construed as a waiver of
statutory bargaining rights. (Norris School District (1995) PERB Decision No. 1090 at p. 19.)
With these principles in mind, we turn to the District’s exceptions concerning waiver.
Waiver by Contract
The District reasserts its claim that by agreeing to a combination of contractual
provisions, UTLA has waived and relinquished its right to demand bargaining over the
observation ranking procedure. We agree with the ALJ’s rejection of this contention for
reasons explained in the proposed decision at pp. 32-35.
We also reject the District’s assertion that Santa Clara County Peace Officers
Association v. County of Santa Clara (2014) 224 Cal.App.4th 1016 (Santa Clara) dictates a
different result. At issue in Santa Clara was an MOU provision that explicitly reserved to the
employer the right to convert some work shifts from a “12 Plan” (for a total of 85.75 hours
biweekly) to either a “5/8” or a “4/10” Plan (both for a total of 80 hours biweekly), after
providing the union 45 days’ notice and an opportunity to meet and confer over the
implementation of the shift change. The court found that this clause did not waive the union’s
40

right to meet and confer about the implementation of the shift change, but that it did waive any
right to postpone the implementation beyond 45 days. (Id. at pp. 1038-1039.)
The Santa Clara court agreed that the MOU did not explicitly authorize the County to
offer alternatives to converting 12 Plan employees to either the 4/10 or 5/8 Plans. However,
after citing to a maxim of jurisprudence that “‘the greater contains the less,’” the court
concluded that since the County was able to assign all 12 Plan employees to 40-hour
workweeks and 80 hours biweekly on one of two other plans, it was “implicit that the County
could offer 12 Plan employees other formulas for working 80 hours biweekly.” (Santa Clara,
supra, 224 Cal.App.4th at p. 1042.) This interpretation is not tantamount to holding that a
management rights clause must be broadly construed, contrary to the District’s assertions.
In contrast to Santa Clara, supra, 224 Cal.App.4th 1016, neither the CBA nor the
parties’ 2012 supplement to Article X explicitly reserves to the District the right to implement
specific classroom observation criteria or rubrics. In short, nothing in Santa Clara persuades us
that we should ignore the numerous precedential cases followed by the ALJ that hold that a
broadly worded management rights clause will not waive the right to bargain over a specific
change unless the clause specifically mentions the subject matter of the change.
The District also argues that the ALJ erred by not relying on Contra Costa Community
College District (1990) PERB Decision No. 804 (Contra Costa). We agree with the ALJ’s
discussion of this case and take this opportunity to disavow Contra Costa to the extent it holds
that a generally worded clause reserving to management the exclusive right to adopt all past,
existing and future policies “except to the extent that such action shall be contrary to the
41

________________________
specific terms of this contract,” waives the exclusive representative’s right to bargain over
specific matters within the scope of representation.20 (Id. at p. 9; emphasis omitted.)
The District additionally contends that CBA Article IV, Section 12.0 and Article X
constitute a waiver of UTLA’s right to bargain over the observation ranking system. We
disagree. Article IV Section 12 simply restates the rights and obligations of EERA section
3543.2 subsection (a)(3) regarding the items designated as topics for consulting, such as
educational objectives, content of courses and curriculum, etc.
This language is not a “clear and unmistakable waiver” of UTLA’s right to bargain over
evaluation and classroom observation criteria and rubrics. As explained above, the observation
ranking system is not a matter over which UTLA has merely a right to consult. It is a
mandatory subject of negotiation.
The District objects that the ALJ erroneously overlooked Article X, Sections 4 and 5,
which it claims gives it the authority to make unilateral changes in the classroom observation
process and other evaluation matters. The ALJ did not overlook Article X. He simply did not
agree with the District’s characterization of its provisions. On page 32 of the proposed decision,
the ALJ noted the District’s claim that nothing in Article X limits the District’s authority to
implement a four-level observation scoring system. He then concluded, “[A]fter reviewing the
CBA language at issue in this case, I find no clear and unmistakable waiver. . . .” (Id. at p. 33.)
We agree that these sections of Article X, do not constitute a clear and unmistakable
waiver of UTLA’s right to bargain over the observation rating system. Sections 4.0 and 4.1
20 The ALJ was also justified in not following Contra Costa because the facts in that
case presented an issue of whether the broadly worded management rights clause acted as a
zipper clause. The union in Contra Costa sought to bargain a new subject that was not
addressed in the CBA. It was not a case of unilateral change. (Contra Costa, supra, PERB
Decision No. 804.)
42

provide that an employee being evaluated shall establish objectives for the year in cooperation
with the evaluator. If they are unable to reach agreement on objectives and the employee is
dissatisfied with the evaluator’s determination, the employee has a right to appeal the matter.
This article also provides that the objectives may be modified during the school year if
performance problems develop or constraints are identified which will affect the evaluatee’s
progress towards meeting established objectives.
This language does not waive UTLA’s right to bargain over the observation ranking
system, as it relates only to procedures applicable to individual employees who are to be
evaluated in any given year. Nothing in this language clearly and unmistakably waives UTLA’s
right to bargain over a change in observation criteria and ranking systems.
Article X, Section 5 requires that observations of the evaluatee be followed by
conferences to discuss his or her performance and that appropriate counselling and assistance be
provided to improve performance. As with Section 4, this provision relates to the rights of
individual unit members who are being evaluated. It does not remotely constitute a clear and
unmistakable waiver of UTLA’s bargaining rights.
The District also excepts to the ALJ’s findings and conclusions regarding the bargaining
history of these various CBA provisions, especially the management rights clause. Specifically,
it objects to the ALJ’s rejection of Fisher’s testimony because it was contrary to the plain
meaning of the CBA. The ALJ’s conclusions regarding bargaining history on pp. 35-37 of the
proposed decision are reasonable and we affirm them for the reasons stated in the proposed
decision.
Waiver By Inaction
43

The District excepts to the ALJ’s rejection of its argument that UTLA waived its right to
bargain by inaction, and his conclusion that prior to May 24, 2013, UTLA was not on notice
that the District intended to implement the new observation ranking system. The District
asserts that UTLA was on notice for several years that the District intended to rely on the
criteria of the TLF for classroom observations.
The question of notice is one of fact, and the record supports the ALJ’s determination
that UTLA was not on notice that the District intended to implement a new observation rating
system using the TLF prior to May 24, 2013. In the face of repeated assurances by the District
that it intended to bargain over negotiable changes regarding evaluations, it cannot be said that
UTLA’s participation in ad hoc committees or other District processes constitute a waiver of the
right to bargain.
A union may only waive its right to bargain by inaction if the union had notice (i.e.,
advance knowledge) of the proposed change and then failed to request negotiations over the
matter. (County of Santa Clara, supra, PERB Decision No. 2321-M, pp. 27-29.) For reasons
explained by the ALJ at pp. 26-27 of the proposed decision, we agree that UTLA did not waive
its rights by inaction.
Remedy
The District excepts to the ALJ’s order for the District to compensate employees for any
financial losses incurred as a direct result of the unilaterally implemented four-level observation
rating system, arguing that the complaint does not seek any such relief, and there is no evidence
in the record that anyone incurred such financial losses as a direct result of four-level rubrics.
We reject this exception. The District may raise the issue of financial harm or lack thereof at
compliance proceedings before the Office of the General Counsel.
44

Nor does the fact that the complaint did not seek a back pay remedy preclude the Board
from ordering it. PERB Regulation 32640, subdivision (a) (which specifies the elements
contained in a complaint) does not require that the complaint specify the remedy that PERB or
the charging party is seeking. Rather, EERA section 3541.5, subdivision (c) specifies that:
The board shall have 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.
This language nowhere suggests that the Board’s broad remedial powers are limited by a
prayer for relief that may or may not be in the complaint.
In California State Employees’ Association v. Public Employment Relations Board
(1996) 51 Cal.App.4th 923, 946, the court held:
Restoration of the status quo is the normal remedy for a unilateral
change in working conditions or terms of employment without
permitting bargaining members’ exclusive representative an
opportunity to meet and confer over the decision and its effects.
[Citations omitted.] This is usually accomplished by requiring the
employer to rescind the unilateral change and to make employees
“whole” from losses suffered as a result of the unlawful unilateral
change.
(See also, San Bernardino City Unified School District (1998) PERB Decision No. 1270.)
An order directing the District to compensate employees for any financial losses
incurred as a direct result of the unilaterally implemented four-level observation rating system
is consistent with restoring employees to the status quo ante by making them whole.
45

________________________
Post-Hearing Memorandum of Understanding
On or about September 25, 2015, the District filed a “NOTICE TO PERB REGARDING
MEMORANDUM OF UNDERSTANDING RELATING TO EDUCATOR DEVELOPMENT,
SUPPORT AND EVALUATION MATTERS.” The District apprised the Board that
subsequent to the issuance of the proposed decision, UTLA and the District entered into a
tentative Memorandum of Understanding relating to “Educator Development, Support and
Evaluation Matters.” (Id. at p. 1.) According to the District, the Memorandum of
Understanding (which was attached to the Notice) contains terms relating to the teacher
evaluation process that are at issue in the within case.
It is unclear what the District intended by this Notice, as it was unaccompanied by any
request or explanation. The District does not suggest this agreement renders this case moot, nor
request that the record be re-opened.21 Suffice to say, this document does not alter our
consideration of this case.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Los Angeles Unified School District (LAUSD) violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq. by unilaterally
implementing a four-level observation rating system on or around May 24, 2013. This conduct
also interfered with the rights of employees to be represented by the employee organization of
their choosing and with the right of UTLA to represent employees in their employment
relations. All other claims in the complaint, as amended, are dismissed.
21 Moreover, the document does not satisfy the requirements for a motion to reopen the
record under PERB Regulation 32320, subdivision (a)(2).
46

Pursuant to section 3541.5, subdivision (c) of EERA, it hereby is ORDERED that
LAUSD, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally implementing policies within the scope of representation.
2. 	Interfering with employees’ right to be represented by their chosen
employee organization.
3. 	Interfering with the right of United Teachers Los Angeles (UTLA) to
represent its members in negotiations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind any and all use of the four-level observation rating system
announced on or around May 24, 2013, as applied to certificated bargaining unit members.
2. 	Compensate employees in the certificated bargaining unit for any
financial losses incurred as a direct result of all unilaterally implemented four-level observation
rating system. Any financial losses should be augmented by interest at a rate of 7 percent per
year.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post copies of the Notice, attached hereto as an appendix, at all work locations where notices to
employees in the certificated bargaining unit customarily are posted. The Notice must be
signed by an authorized agent of LAUSD, indicating that it 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. The Notice shall also be posted by electronic message,
47

intranet, internet site, and other electronic means customarily used by LAUSD to communicate
with employees in the certificated bargaining unit.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order shall
be concurrently served on UTLA.
Chair Gregersen and Member Banks joined in this Decision.
48

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 No. LA-CE-5824-E, United Teachers Los
Angeles v. Los Angeles Unified School District, in which all parties had the right to participate,
it has been found that the Los Angeles Unified School District violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq. by unilaterally
implementing a new four-level observation ranking system on or around May 24, 2013.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally implementing policies within the scope of representation.
2. 	Interfering with employees’ right to be represented by their chosen
employee organization.
3. 	Interfering with the right of United Teachers Los Angeles to represent its
members in negotiations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Rescind any and all use of the four-level observation rating system
announced on or around May 24, 2013, as applied to certificated bargaining unit members.
2. 	Compensate employees in the certificated bargaining unit for any
financial losses incurred as a direct result of all unilaterally implemented four-level
observation rating system. Any financial losses should be augmented by interest at a rate of
7 percent per year.
Dated: _____________________ 	LOS ANGELES UNIFIED 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.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5824-E
PROPOSED DECISION
(December 24, 2014)
Appearances: Holguin, Garfield, Martinez & Quiñonez, APLC, by Jesus E. Quiñonez and
Michael Wertheim, Attorneys, for United Teachers Los Angeles; Littler Mendelson, P.C., by
William J. Emanuel and Barrett K. Green, Attorneys, for Los Angeles Unified School District.
Before Eric J. Cu, Administrative Law Judge.
In this case, an exclusive representative alleges that a public school employer changed
existing policies concerning performance evaluations and created a new position without
satisfying its bargaining obligations under Educational Employment Relations Act (EERA).1
PROCEDURAL HISTORY
On June 18, 2013, United Teachers Los Angeles (UTLA) filed an unfair practice charge
with Public Employment Relations Board (PERB or the Board), claiming that Los Angeles
Unified School District (LAUSD or the District) unilaterally changed multiple existing
policies. On September 4, 2013, the PERB Office of the General Counsel issued a complaint
alleging that LAUSD unilaterally imposed a new four-level observation rating system as part
of its evaluation process. The PERB complaint further alleged that LAUSD unilaterally
created a new “Teacher Growth and Development Cycle Lead Teacher” position, and also
bypassed UTLA by publicizing that position directly to UTLA’s bargaining unit members. On
1 EERA is codified at Government Code section 3540 et seq.

________________________
September 30, 2013, LAUSD filed an answer to the PERB complaint, denying all the
substantive allegations and asserting multiple affirmative defenses.
On October 23, 2013, the parties participated in an informal settlement conference, but
the matter did not settle. Thereafter, the case was set for formal hearing.
On May 16, 2014, the parties agreed to allow UTLA to amend the PERB complaint to
add new allegations. The amendment added the new allegations that, in April 2014, LAUSD
unilaterally changed the Final Evaluation Report form used for UTLA unit members’
performance evaluations by adding sections for “Observation of Teacher’s Practice,”
“Contributions on Student Outcomes/Support of Student Learning,” and “Additional
Professional Responsibilities.” The parties further agreed that the new allegations would be
deemed denied by LAUSD.
The formal hearing took place on June 2-4, 2014. The parties then submitted closing
briefs on August 27, 2014. At that point, the record was closed and the case was considered
submitted for decision.
FINDINGS OF FACT2
The Parties
LAUSD is a public school employer within the meaning of EERA section 3540.1,
subdivision (k). UTLA is an exclusive representative within the meaning of EERA section
3540.1, subdivision (e). UTLA represents a bargaining unit with roughly 30,000 members,
including LAUSD’s teachers and other certificated employees.
2 The Findings of Fact will discuss some of the events in this case out of chronological
order because, in my view, doing so is the most effective way to present the factual findings
cohesively.
2

The Collective Bargaining Agreement
UTLA and LAUSD are parties to a collective bargaining agreement (CBA or
Agreement) that was in effect during the times relevant to this case. The CBA contains
provisions governing various aspects of LAUSD’s relationship with the certificated unit
including, as relevant to this case, evaluations, extra-duty stipends, and compensation for
training. The CBA also contains provisions concerning “District Rights.” The following is a
discussion of CBA provisions and other policy documents relevant to this case.
The Observation and Evaluation Procedure
CBA Article X governs certificated employee evaluations. For most employees, the
process begins with a planning conference between the teacher being evaluated and his or her
supervising administrator. Under Article X, section 4.0, the two work together to establish
“objectives” for the year as well as “strategies” for accomplishing those objectives. Under
section 4.1(a), objectives shall relate to, among other matters, “[s]tandards of expected student
progress and achievement for the grade[.]” Other assessment categories identified in Section
4.1 include knowledge of subject matter, effective use of teaching techniques, and maintenance
of professional relationships.
Under section 5.0, supervising administrators observe employees throughout the school
year and give written feedback. Traditionally, that feedback includes being rated on
assessment categories, such as the ones identified in Section 4.1. Before the end of the school
year, employees receive a Final Evaluation Report, which rates employees based on their
progress towards the goals established at the beginning of the school year.
LAUSD provided examples of Final Evaluation Report forms dating back to 1973,
before UTLA was recognized as an exclusive representative. Those records show that LAUSD
reformatted the forms over the years for various reasons, including incorporating negotiated
3

changes about the evaluation process into the form. In addition, in or around 1985, LAUSD
moved to a Scantron-based form, in order to enter and record information from the evaluation
forms automatically. Every Final Evaluation Report form for the past 30 years employs
multiple assessment categories, scored on a three-level rating system. For instance, in the most
recent Final Evaluation Report form preceding the changes alleged in this case, the three scores
were, from highest to lowest, “Meets,” “Needs Improvement,” and “No.” At some point, the
parties agreed to conform those assessment categories to the California Standards for the
Teaching Professions (CSTP). It is undisputed that UTLA has never previously requested
negotiations over any changes to the Final Evaluation Report Form. At all times, employees’
overall rating was based on a two-level scale, i.e., “Meets Standard Performance” or “Below
Standard Performance.” Witnesses testified that, before and after the events in this case, the
overall evaluation rating is determined after reviewing all the assessment categories together.
In addition to the Final Evaluation Report form, LAUSD also sometimes used rubrics to
convey expectations and standards of performance to teachers. For example, to help teachers
understand the District’s reading curriculum, some administrators used a rubric with a four-
level scoring system to place teacher’s proficiency in that curriculum onto a continuum. It is
unclear to what extent LAUSD used rubrics District-wide, and there was no evidence that
LAUSD ever notified UTLA of its use of those rubrics before employing them.
District Rights Clauses
The CBA also contains various provisions regarding LAUSD’s retained rights and
authority. CBA Article II, section 3.0 states:
The District may determine and revise any of its policies, rules,
regulations, or procedures. However, in the event of a conflict
between the terms of this Agreement and any District policies,
rules, regulations or procedures, the terms of this Agreement shall
prevail.
4

In addition, Article III, section 1.0, states:
The intention of this Article is to provide that the District retains
all rights and powers which have not been limited by the other
Articles of this Agreement. The provisions of this Article are not
intended to expand the rights of the District beyond statutory and
constitutional limits, or in any manner to waive or diminish the
rights of UTLA or the employees as provided in the other
Articles of this Agreement. In the event that there is a conflict
between the retained rights of the District under this Article and
the rights of UTLA or employees as set forth elsewhere in this
Agreement, the provisions of the other Articles of this Agreement
shall prevail.
Article III, section 3.0, specifies that “all matters which are beyond the scope of
negotiations under Government Code Section 3543.2, and also all rights which are not limited
by the terms of this Agreement, are retained by the District.” The section then enumerates 11
areas in which the District reserved its authority including, as relevant to this case, “the classes
to be taught and the other duties and services to be rendered by District personnel to students
and to the public, and the support services to be provided to employees and other District
personnel; and the methods, personnel, and materials to be utilized in such services.” It is
undisputed that all District rights provisions existed in essentially the same form since the first
CBA negotiated between UTLA and LAUSD.
LAUSD presented some evidence about the development of the District rights sections
in negotiations. According to then-District chief negotiator Dick Fisher, LAUSD was upfront
at the outset of negotiations that it would be “proposing language that will permit full
operation of the District and including the right to make changes in negotiable subjects, so long
as they’re not in conflict with the other terms of the agreement.” However, when asked
whether he possessed any bargaining notes about these conversations, he testified that all the
discussions about the management rights provisions occurred in later sessions, where the actual
5

contract language was drafted. He said “since these meetings all occurred in drafting session,
there wouldn’t have been notes like you would have if you were having more plenary sessions
with the full teams.” Fisher also said that he clearly explained the intent behind the proposed
management rights language to then-UTLA executive director Don Baer. Baer was not on
UTLA’s negotiating team, and it was unclear to what extent Baer communicated with UTLA’s
team. Fisher said that he was certain that UTLA’s full team understood the meaning behind
the management rights provisions because the language “was still there” in the final
agreement.
Salary Differentials
The CBA also contains various provisions concerning salary differentials for special
duty. For example, in Appendix E, employees serving in a coordinator or a lead teacher
capacity, in addition to their regular full-time teaching duties, are eligible for a differential of
$637 per semester.
Paid Professional Development
Although not a part of the CBA, LAUSD has a past practice, codified in its “Rules of
the Board of Education,” of paying employees for District-sponsored training projects. Under
these rules, the highest pay-rate for training is $25 per hour.
The Parties’ Prior Efforts to Reform Employee Performance Evaluations
Both parties expended significant effort to review and reform teacher evaluations. For
example, in 2009, LAUSD formed a Teacher Effectiveness Task Force to develop
recommendations for changing evaluations, teacher support mechanisms, tenure rules,
compensation, and education-based legislative changes. The task force included
representatives from various education community groups such as LAUSD management,
UTLA representatives, and representatives from Associated Administrators of Los Angeles
6

(AALA), the union representing LAUSD certificated supervisors. Certificated supervisors are
responsible for evaluating District teachers.
In April 2010, the task force reported its recommendations, such as using “multiple
measures or data points” in evaluations and developing “rubrics” demonstrating what expected
performance “looks like.” The task force’s report did not focus heavily on the negotiability of
any of its recommendations, but it did state that “our unions will be asked to consider revisions
to collective bargaining agreements,” and any planned actions by LAUSD should be “in
alignment” with those agreements.
In November 2010, the District, UTLA, and AALA formed an Evaluation Working
Group “as part of their ongoing separate negotiations processes (District-UTLA, and District-
AALA).” The purpose of the group was to share information between the three organizations
“to facilitate the […] eventual resolution of performance evaluation issues at the separate
negotiations tables.” Although the working group contained members of each of the three
organizations’ bargaining teams, it is undisputed that working groups’ efforts did not constitute
formal negotiations.
The working group met weekly for around seven months. On or around March 25,
2011, the group released a set of written “Group Thoughts” in order to “inform subsequent
negotiations [and] to jointly develop the next certificated performance evaluation system that
will lead to improved teaching and learning in the Los Angeles Unified School District.”
Among the issues covered in the “Group Thoughts” document was using “evaluation rubrics”
to “encourage improved teaching and learning and professional growth.” The document
further discussed using an “evaluation/observation rubric that delineates at least four levels of
teaching proficiency.”
7

After the tri-partite Evaluation Working Group concluded its work, UTLA formed its
own internal Teacher Evaluation Work Group, which examined existing research concerning
performance evaluations as well as other negotiated evaluation systems throughout the country.
This UTLA-specific group produced a draft framework of its findings on or around March 6,
2012. It is unclear whether any of this group’s recommendations were shared with LAUSD.
UTLA also participated in a state-wide group on the subject of evaluations.
Development of the Teaching and Learning Framework
In late Summer or early Fall 2010, LAUSD put out a request for bids to develop a new
teacher training and development framework. A private company named Teaching and
Learning Solutions (TLS) submitted a bid and was awarded the project. In the ensuing
months, TLS created what became known as LAUSD’s Teaching and Learning Framework
(TLF) based on a nationally-recognized body of research and accompanying text.
Multiple people described the purpose of the TLF as developing a “common language”
about educational practices in order to make the evaluation process more objective and
universally understood. For example, in a letter to UTLA, LAUSD stated that the TLF would
“provid[e] a common language and understanding for what effective teaching in LAUSD looks
like and is expected to be.”
In November 2010, LAUSD assembled an “Ad Hoc TLF Committee” to advise the
District on the creation of the TLF. LAUSD invited UTLA to select representatives and other
teachers to participate. The first committee meeting was held in December 2011. During the
meeting, District representatives explained the concepts behind the TLF to the committee and
sought their input. According to Drew Furedi, LAUSD’s representative responsible for
coordinating the Ad Hoc TLF Committee, LAUSD informed the committee that “where there
8

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is a need to negotiate [over implementing the TLF] we will do so and we will follow our
responsibilities.”
The TLF was designed as a set of overarching standards pertaining to different aspects
of the teaching profession. The TLF standards were consistent with the CSTP. Each of the
five TLF standards has sub-parts called “components,” and each component is further divided
into elements. The TLF also includes “rubrics,” which breaks each element down into what
TLS co-founder Albert Miller called “descriptive language.” The rubrics illustrate
performance in each element along a continuum with four categories, ranging from
“ineffective,” “developing,” “effective,” to “highly effective.”
On or around April 28, 2011, LAUSD sent a letter to certificated employees describing
its efforts to reform its teacher and administrator support mechanisms, including evaluations.
Those efforts would later be named the Teacher Growth and Development Cycle (TGDC).
LAUSD also announced a new pilot program starting in the 2011-2012 school year to
incorporate the TLF into the teacher observation and evaluation process at a select set of
school sites. The letter also said that LAUSD would seek “the input and participation of our
collective bargaining partners” and that “LAUSD remains committed to the collective
bargaining process.” UTLA objected to the implementation of the pilot program, to the extent
it changed matters subject to negotiations. The pilot program ran during the 2011-2012 and
the 2012-2013 school years.3
LAUSD then presented feedback from the pilot implementation to the Ad Hoc TLF
Committee and made some changes to the TLF system in or around March 2012. At this
3 The pilot program is the subject of another PERB unfair practice charge between the
parties, PERB case number LA-CE-5661-E, which is currently in abeyance at the request of
the parties. The parties agreed that the issues in that dispute would not be litigated directly in
the present case.
9

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second meeting, LAUSD repeated its earlier assertion that it would negotiate over
implementation of the TLF, as required by law.
The Doe v. Deasy Litigation
In November 2011, a group of LAUSD students filed a petition for writ of mandate in
Los Angeles Superior Court seeking to compel LAUSD to comply with the Stull Act.4 One of
the issues in the petition was LAUSD’s alleged failure to utilize student performance in the
evaluation of certificated employees. UTLA and AALA were named as real parties in
interest.5 In July 2012, a superior court judge issued a judgment granting the petitioners’ writ.
The court ordered LAUSD to modify its evaluation procedures to incorporate elements of
student progress, as required by the Stull Act. The court stated “[s]ome or all of these issues
may be required to be subject of collective bargaining with UTLA and AALA. The Court is
not opining on that issue.” The District was ordered to demonstrate compliance with the
requirements of the writ by December 4, 2012, to allow for any required bargaining.
Afterwards, LAUSD and UTLA mutually agreed to suspend their earlier ongoing negotiations
over evaluation reform and focus on negotiations specific to the court order.
On November 30, 2012, LAUSD and UTLA reached agreement on a document entitled
“LAUSD-UTLA December 2012 Evaluation Procedures to Supplement Article X” (the
Supplemental Agreement). Section 1.0 of the Supplemental Agreement required that the initial
planning phase of the evaluation process, described in Article X, section 4.0, include a
“review, discussion, and incorporation of multiple measures of student achievement toward
District-adopted and State-adopted standards[.]” Section 1.3 required that employees’
4 The Stull Act is codified at Education Code section 44600 et seq., and contains
provisions concerning certificated employee performance evaluations.
5 PERB was also joined as an intervening party.
10

objectives and strategies identified in the initial planning phase, involve student achievement
and be incorporated into the evaluation process.
The May 24, 2013 Letter
On the morning of May 24, 2013, LAUSD sent to UTLA a draft version of a letter it
planned on sending to all its teachers. In the letter, LAUSD announced the full-scale
incorporation of the TLF for the 2013-2014 year. This included use of a four-level rating
system for observing teachers’ performance as part of the evaluation process. Rather than
apply all of the TLF elements, LAUSD decided to use only a set of 15 “focus elements” for the
2013-2014 evaluation cycle. The letter also announced that principals would identify a
“TGDC Lead Teacher” for each school site to support the teachers subject to the new process
that year. The letter stated that the TGDC Lead Teacher would receive an additional stipend
and be eligible for paid training opportunities.
Later than morning, UTLA counsel Jesus Quiñonez e-mailed John Bowes, then-
LAUSD’s then-Director of Labor Relations, stating “What is this? I suggest that the District
not distribute this letter until there has been an opportunity for review and discussion between
the parties.” LAUSD issued the letter to all teachers later that day.
On May 31, 2013, Quiñonez again e-mailed Bowes, this time demanding that LAUSD
rescind the May 24, 2013 letter and bargain over the changes to the evaluation procedure, the
creation of a new lead teacher position, and changes to training requirements.
Bowes responded to Quiñonez by e-mail on June 4, 2013. He said that LAUSD had no
plans on changing the overall evaluation ratings from a two-level (Meets Standards or Below
Standards) system. He also recognized that changing the final evaluation ratings would require
negotiations. Bowes also said that the TGDC Lead Teacher would be paid according to
11

existing contract provisions for coordinating differentials. He likewise said that the training
opportunities were consistent with existing policy on paid professional development.
The 2013-2014 Final Evaluation Report
On or around April 2, 2014, LAUSD began using a new Final Evaluation Report.
Information is input into the report by principals via an Internet-based computer platform. For
the first time, the report includes a section entitled “Observation of Teacher’s Practice,” where
teachers may be scored on each of the 15 TLF focus elements identified for the 2013-2014
school year. Each of these 15 elements corresponds, at least generally, to one or more of the
standards in the CSTP. This assertion was made by TLS co-founder Miller and was not
contradicted anywhere in the record by UTLA. Each also corresponds to at least one
assessment category from the prior Final Evaluation Report. As with the prior evaluation
form, the 2013-2014 form had a three-level rating system for each of the assessment
categories. The three scores on the 2013-2014 Final Evaluation Report form were
“ineffective,” “developing,” or effective.” These scores were intended to correspond to the
four-level rating system in the TLF rubrics, but there was no option to score an employee with
the fourth and highest score, “highly effective.” Instead, LAUSD representative Brian Lucas
said that principals could score employees as being “highly effective” in the comments section
of the form.
The report also included a section entitled “Contribution to Student Outcomes/Support
for Student Learning.” The stated purpose of that section was to assess employees regarding
student progress towards District and State standards, including standardized test scores. This
section included space for teachers to describe their “objectives” and “strategies” on that issue.
This section also includes a section entitled “Target Date,” but no evidence was submitted
about the purpose of this section.
12

The report also included a new section entitled “Additional Professional
Responsibilities.” This section listed 11 assessment categories. As with the “Observation of
Teacher’s Practice” section, the 11 assessment categories in this section correspond to both the
CSTP and to items from the prior Final Evaluation Report form. In fact, reviewing those two
sections collectively, nearly all of the assessment categories on the 2013-2014 Final Evaluation
Report were also on the prior form.
ISSUES
I. 	Did LAUSD enact an unlawful unilateral policy change by (A) implementing a
four-level rating system for teacher observations, based on the TLF; (B) creating a new TGDC
Lead Teacher position; or (C) modifying the Final Evaluation Report form to include sections
on “Observation of Teacher’s Practice,” “Contributions to Student Outcomes/Support for
Student Learning,” and “Additional Professional Responsibilities?”
II. 	Did LAUSD bypass UTLA by its May 24, 2013 and June 11, 2013
communications to certificated unit members about the TGDC Lead Teacher position?
CONCLUSIONS OF LAW
I. 	UTLA’s Unilateral Change Claims
A unilateral policy change is a “per se” violation of the duty to bargain in good faith
where: (1) the employer took action to change existing policy; (2) the policy change
concerned a matter within the scope of representation; (3) the action was taken without giving
the exclusive representative notice or opportunity to bargain over the change; and (4) the
change has a generalized effect or continuing impact on terms and conditions of employment.
(Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9, (Fairfield-
Suisun USD) citing Grant Joint Union High School District (1982) PERB Decision No. 196, p.
10; Walnut Valley Unified School District (1981) PERB Decision No. 160, p. 5.)
13

A. 	The Four-Level Observation Rating System
UTLA’s first claim concerns LAUSD’s use of a four-level observation rating system
for teacher observations in the 2013-2014 school year. There is no serious debate that the first,
third, and fourth elements of the unilateral change test, as articulated in Fairfield-Suisun USD,
supra, PERB Decision No. 2262 are met for this claim. It is undisputed that LAUSD began
using a new four-level observation rating system in the 2013-2014 school year and that
LAUSD refused to bargain over that change. Finally, it is undisputed that LAUSD used the
four-level system throughout the 2013-2014 school year and maintains the right to continue
using it indefinitely. The primary issues are whether the change concerned matters within the
scope of representation and/or whether LAUSD was excused from any bargaining obligations.
1. 	The Scope of Representation
The primary question regarding UTLA’s prima facie case for a unilateral policy change
is whether LAUSD’s implementation of the four-level observation rating system changed a
matter within the scope of representation.
a. 	The Negotiability of Evaluation Procedures
EERA section 3543.2, subdivision (a) defines the “scope of representation” as “matters
relating to wages, hours of employment, and other terms and conditions of employment.” The
statute further defines “terms and conditions of employment” as including “procedures to be
used for the evaluation of employees.” In the present matter, LAUSD contrasts evaluation
“procedures,” which it does not and cannot dispute are subject to bargaining, with evaluation
“criteria,” which it argues are part of its managerial prerogative. PERB has long interpreted
the evaluation procedures clause in EERA section 3543.2, subdivision (a) broadly. For
instance, in Modesto City Schools (1983) PERB Decision No. 347, the Board found that a
school district’s policy for conducting consecutive annual evaluations for employees rated as
14

“substandard” was an evaluation procedure and was within the scope of representation. (Id. at
pp. 9-10.) In addition, in both Compton Community College District (1990) PERB Decision
No. 798 (Compton CCD) and Jefferson School District (1980) PERB Decision No. 133
(Jefferson SD), the Board found complaint policies were evaluation procedures under EERA
section 3543.2(a). Compton CCD, involved a comprehensive policy for students to file
complaints against teachers. (Id. at proposed decision, pp. 3-4.) The Board reasoned that,
because the complaints were made part of employees’ personnel files, “it may safely be
assumed that teacher evaluation procedures include a review of those complaints, along with
other material in the file pertinent to performance[.]” (Ibid.) Jefferson SD, similarly involved
a public complaint process. The Board again found that it was likely that the substance of the
complaints would be used to assess employees’ performance. (Id. at p. 18-19.) It accordingly
held that the process was an evaluation procedure and was subject to negotiations. (Ibid.)
The union in Jefferson SD, supra, PERB Decision No. 133, also argued that a proposal
about the handling of employee supply requests related to evaluations as well because the lack
of proper supplies could impact employee performance. The Board rejected this argument as
too “tenuous and attenuated.” (Id. at pp. 31-32.) Nothing in the union’s supply proposal
directly involved materials or information used to evaluate employees. (Ibid.) In Newark
Unified School District (2007) PERB Decision No. 1895, the union made a proposal limiting
how the school district could report and disseminate state standardized test results. (Id. at pp.
10-11.) The Board concluded that the union’s proposal was overbroad because it was not
limited to how scores could be used on evaluations. The Board concluded that the proposal
was not sufficiently related to employee evaluations to make it fall within the scope of
representation. (Id. at pp. 11-12.)
15

After reviewing the record in the present case, including the TLF materials submitted
by LAUSD, I conclude that the four-level observation rating system is an evaluation procedure
within the meaning of EERA section 3543.5, subdivision (a). I reach this conclusion primarily
because, at its core, the new rating system is the process or methodology used for assessing
and giving feedback to teachers about their performance. As in Compton CCD, supra, PERB
Decision No. 798, and Jefferson SD, supra, PERB Decision No. 133, the rating system here
pertains to how LAUSD documents material used to evaluate employees. As with those cases,
it is undisputed that employees’ scores on the new four-level observation rating system are part
of employees’ personnel files.
LAUSD’s attempt to describe the new rating system as evaluation “criteria” is
unavailing here. The rating system does not set forth the standards for assessing employees.
Rather, it is the mechanism LAUSD employed to score employees on their adherence to
performance standards. In rejecting LAUSD’s argument, I note that LAUSD’s use of TLF
elements to discuss the teaching practice is not squarely at issue in this case. The PERB
complaint focuses upon LAUSD’s use of the new four-level observation rating system.
UTLA’s closing brief, likewise, focuses on the scoring system, not the TLF itself. It is
accordingly beyond the scope of this proceeding to decide whether it was unlawful for LAUSD
to develop the TLF and use as part of its effort to improve discourse about the teaching
practice. But according to EERA section 3543.2, subdivision (a), LAUSD is required to
bargain with UTLA prior to incorporating those efforts into its evaluation procedures. Where
the Legislature expressly places an issue within the scope of representation, it is “neither
necessary nor proper [to balance] the potential benefits of negotiating a particular item against
the employer’s managerial prerogatives.” (Huntington Beach Union High School District
(2003) PERB Decision No. 1525, pp. 8-9.)
16

b. 	Application of the Anaheim Test
Even if one concluded that the four-level observation scoring system was not an
evaluation procedure under EERA section 3543.2, subdivision (a), I would nevertheless find
that the system is within the scope of representation. PERB’s longstanding test for
determining the negotiability of issues not enumerated in EERA is set forth in Anaheim Union
High School District (1981) PERB Decision No. 177, p. 4. That test, commonly referred to as
the “Anaheim Test,” states:
A subject is negotiable even if not specifically enumerated if:
(1) it is logically and reasonably related to hours, wages, or an
enumerated term and condition of employment, (2) the subject is
of such concern to both management and employees that conflict
is likely to occur and the mediatory influence of collective
negotiations is the appropriate means of resolving the conflict,
and (3) the employer’s obligation to negotiate would not
significantly abridge its freedom to exercise those managerial
prerogatives (including matters of fundamental policy) essential
to the achievement of the District’s mission. [parentheses in
original]
(Id. at pp. 3-4, citing Jefferson SD, supra, PERB Decision No. 133, Healdsburg Union High
School District and Healdsburg Union School District (1980) PERB Decision No. 132,
San Mateo City School District (1980) PERB Decision No. 129, Palos Verdes Peninsula
Unified School District/Pleasant Valley School District (1979) PERB Decision No. 96; see
also San Francisco Unified School District (2009) PERB Decision No. 2048, p. 5.)
In this case, the record is clear that the first two elements of this test are satisfied. For
instance, even the new rating system was not an evaluation procedure, in-and-of-itself, the
system unquestionably relates to such procedures. (Standard School District (2005) PERB
Decision No. 1775, proposed decision, p. 12 [“[The] PAR program need not itself be an
evaluation procedure; it need only be related (logically and reasonably) to evaluation
procedures.”].)
17

Regarding the second element, it is undisputed that the subject of evaluation reform,
including the scoring system to be used, was a major concern for both parties. So much so,
that the parties, along with AALA, formed an Evaluation Working Group, composed of
negotiating team members from each organization. Both parties also devoted years to studying
ways to improve evaluations, including developing a multi-score assessment system. This is
likely because performance evaluations are one of the most elemental ways that employees
interact with management. It would not be appropriate to give the employer unilateral control
over this fundamental aspect of the employer-employee relationship.
Both parties have also historically turned to collective bargaining to resolve their
differences over evaluations. The parties have previously negotiated and agreed to the two-
level final overall evaluation score. The parties have also negotiated over the substance of
evaluations, agreeing to incorporate the CSTP and the various assessment categories contained
in CBA Article X, section 4.1.
In addition, in 2010, both parties engaged in negotiations to further improve evaluation
procedures, including the assessment scoring system. The parties also jointly formed the
Evaluation Working Group, together with AALA, “as part of their ongoing separate
negotiations processes[.]” Throughout the development of the TLF, LAUSD representatives
acknowledged that aspects of the new system might be subject to negotiations, stating words to
the effect of “where there is a need to negotiate [over implementing the TLF] we will do so
and we will follow our responsibilities.” LAUSD asserts no arguments that the second element
of the Anaheim Test is not met here.
LAUSD disputes that the third prong of the Anaheim test was established here. It
asserts that the decision to use the four-level observation rating system was a managerial
prerogative and that negotiating over such a system would interfere with its authority to set
18

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educational policy. However, the Board has concluded otherwise in a series of notably similar
cases. In Walnut Valley Unified School District (1983) PERB Decision No. 289 (Walnut
Valley USD), an employer unilaterally implemented a process for assessing employees over
age 65 for continued employment. (Id. at p. 4.) The Board held that evaluation factors such as
the employee’s effectiveness as a teacher, classroom management skills, professionalism, and
planning and preparation abilities were not “issues of fundamental policy which would
significantly abridge the employer’s freedom to manage or achieve its mission.” (Id. at pp. 8-
9, partially reversed on other grounds in Long Beach Community College District (2009)
PERB Decision No. 2002, pp. 11-12.);6 see also Holtville Unified School District (1982) PERB
Decision No. 250 (Holtville USD), pp. 7-8 [Holding a policy for reviewing employees age 70
and older for compulsory retirement was subject to negotiations].)
In Trustees of the California State University (San Marcos) (2004) PERB Decision
No. 1635-H (CSU San Marcos), the existing policy performance evaluation rating system
included four preliminary numeric scores for different evaluation categories.7 The average of
6 Specifically, the Board in Long Beach Community College District, supra, PERB
Decision No. 2002 reversed the part of Walnut Valley USD, supra, PERB Decision No. 289
holding that the statute of limitations was an affirmative defense that the respondent had the
burden of proving at hearing. Long Beach CCD, was itself later reversed on that issue in
Los Angeles Unified School District (2014) PERB Decision No. 2359, p. 3.)
7 CSU San Marcos, supra, PERB Decision No. 1635-H was decided under HEERA
(Gov. Code, § 3560 et seq.). Unlike in EERA, the HEERA definition of scope of
representation does not expressly include evaluation procedures. (Gov. Code, § 3562,
subdivision (q).) In addition, the test for negotiability under HEERA differs slightly from the
Anaheim Test. (Regents of the University of California (2010) PERB Decision No. 2094-H,
pp. 17-18.) PERB has traditionally views the two tests similarly. (Ibid.) When deciding cases
under EERA, PERB may rely upon cases decided under other collective bargaining statutes
with parallel provisions and other labor relations agencies with similar functions, such as the
National Labor Relations Board (NLRB). (Centinela Valley Union High School District
(2014) PERB Decision No. 2378 (Centinela Valley UHSD), proposed decision, p. 13, fn. 8,
citations omitted.)
19

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all the preliminary scores determined employees’ overall rating. (Id. at proposed decision, p.
5.) The employer changed this policy by adding a new fifth and highest score. (Id. at
proposed decision, p. 6.) The employer also gave managers more discretion in determining
employees’ overall rating. PERB concluded that the change was within the scope of
representation. (Id. at proposed decision, pp. 2-3.)
The District cites to State of California (Department of Corrections) (2008) PERB
Decision No. 1967-S (Department of Corrections), decided under the Ralph C. Dills Act.8 In
that case, PERB considered the negotiability of a new process to evaluate the competency of
the physician employees responsible for prison inmate healthcare. (Id. at proposed decision, p.
37.) PERB recognized the precedent set by Holtville USD, supra, PERB Decision No. 250 and
Walnut Valley USD, supra, PERB Decision No. 289 and concluded that “criteria and
procedures for evaluating competency of employees under normal circumstances [was] a
negotiable topic.” (Department of Corrections, supra, at proposed decision, pp. 44-46.)
However, PERB found that the situation in Department of Corrections was distinguishable due
to the “extraordinary” facts of that case. (Id. at proposed decision, p. 47.) Those facts
included massive failures in the existing evaluation system due to physicians who should not
have been eligible to practice medicine and a serious lack of capable supervisors to assess
doctors’ competency. (Id. at proposed decision, pp. 48-49.) These breakdowns, which were
detailed in a report by independent healthcare experts, included physicians treating patients
outside their area of training, resulting in inmates’ deaths. (Id. at proposed decision, p. 9, 47.)
This led to a court order demanding revisions to existing evaluation procedures. (Id. at
8 The Dills Act is codified at Government Code § 3512, et seq. Unlike EERA, the Dills
Act definition of the “scope of representation” does not expressly include the procedures to be
used for evaluating employees. (Gov. Code, § 3516.)
20

proposed decision, pp. 12-13.) Accordingly, PERB held that “the decision to implement the
[new evaluation] program primarily involved the need to provide constitutionally acceptable
healthcare and prevent inmate deaths.” (Id. at proposed decision, p. 52.) PERB decided, under
those unique circumstances, that the newly imposed evaluation system was not subject to
bargaining. (Ibid.)
The present case bears only limited resemblance to Department of Corrections, supra,
PERB Decision No. 1967-S. As in that case, there was concern about the effectiveness of
LAUSD’s existing evaluation system. And similar to Department of Corrections, it is
undisputed that evaluations impact the quality of education at the District. LAUSD also
assembled a task force to study the issue of evaluations. The task force concluded that
substantial improvements were required in the District’s evaluation practices, the Education
Code, and other aspects of State education policy. However, I conclude that the situation here
does not rise to the extraordinary circumstances presented in Department of Corrections.
There is no evidence, for example, that teachers were assigned to teach subjects or grade levels
without the proper qualifications or certifications. Even if that were the case, the four-level
observation rating system would not address that problem directly. Notwithstanding the
superior court’s decision in the Doe v. Deasy litigation, there was no court order in this case
demanding replacement of the existing three-level observation rating system. Although
seeking to provide better guidance to teachers and improve student learning are laudable goals,
there is simply no evidence that any failures of LAUSD’s existing observation and evaluation
system ever reached emergency proportions. Even if that were proven to be the case, there was
no showing that switching to a four-level observation rating system would quell the
emergency.
21

While it is true that the Teacher Effectiveness Task Force recommended using rubrics
to show teachers what each of the CSTPs “look like,” there was no specific recommendation to
adopt a four-level observation rating system. As LAUSD points out, the task force report
describes the District’s existing two-level overall evaluation rating as “one-dimensional” with
only a “tenuous link” between the evaluation score and actual teacher performance. Yet, it is
undisputed LAUSD continues to employ that system and that LAUSD’s unilateral adoption of
a four-level observation rating system would not address the concerns raised in the report. Nor
did the report comment on the efficacy of the three-level observation rating system. I also
note that that the task force report specifically recognizes the need to negotiate over some of its
policy recommendations. Thus, I conclude that the task force report does not support
LAUSD’s assertion that it should have the ability to move from a three-level to a four-level
observation rating system without negotiations.
I also reject the assertion that negotiating over the four-level observation rating system
unduly interferes with LAUSD’s ability to communicate its expectations to teachers and to
improve the quality of its education services. Just about every evaluation systems aims to
improve employee performance and enhance the quality of an employer’s services. This is one
of the explicit purposes of the evaluation article in the parties’ CBA which, of course, was
negotiated with UTLA.
The record shows that LAUSD has used rubrics in the past, including rubrics with
multiple scores. This proposed decision does not reach the issue of whether the District could
or should use rubrics or other tools to articulate its expectations to teachers. That said, when
the District integrated its rubrics into the evaluation system, including a new four-level
observation rating system, it was required to bargain with UTLA over how this changed
negotiable aspects of the evaluation system.
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Under these circumstances, I find no overriding managerial interest in using the four-
level observation rating system. There was no showing that negotiating over this system
would demonstrably affect the District’s ability to carry out its core educational purpose. Nor
was there any showing of extraordinary circumstances that would lead PERB to depart from
the precedent set in CSU San Marcos, supra, PERB Decision No. 1635-H, Walnut Valley USD,
supra, PERB Decision No. 289, and Holtville USD, supra, PERB Decision No. 250.9
c. 	Exclusion From the Scope of Representation
LAUSD argues that it is not required to bargain over the changes at issue in this case
because the Education Code allows the District’s governing board to establish the evaluation
system. This argument is based on the premise that EERA was not intended to supersede
provisions of the Education Code. (EERA, § 3540.) In addressing the potential overlap
between the collective bargaining statutes that PERB enforces and other laws, the Board has
stated “when external law establishes immutable provisions in an area otherwise within the
scope of representation, matters are negotiable only to the extent of the employer’s discretion,
that is, to the extent that the external law does not ‘set an inflexible standard or insure
immutable provisions.’” (Berkeley Unified School District (2012) PERB Decision No. 2268
(Berkeley USD), p. 9, quoting San Mateo City School Dist. v. PERB (1983) 33 Cal.3d 850 (San
9 LAUSD also argues that use of the four-level observation rating system was only
subject to a duty to consult under EERA section 3543.2, subdivision (a), which permits a
public school employer to consult with an employee organization in matters not within the
scope of representation. LAUSD argues that because it only had the obligation to consult with
UTLA over the four-level rating system, it was therefore outside the scope of representation. I
reject this argument as circular. A matter is not outside the scope of representation because it
is subject to the consult provision in EERA section 3543.2, subdivision (a). Rather, a subject
may be covered by the consult clause if it is outside the scope of representation. (See
Redwoods Community College District (1987) PERB Decision No. 650, proposed decision, pp.
49-50.) Because I conclude that the four-level observation rating system was either a
negotiable evaluation procedure or another negotiable aspect of the evaluation process, I find
that the consult clause in EERA section 3543.2, subdivision (a) does not apply.
23

Mateo City SD), pp. 864-865.) For negotiations over matters also covered by external law, the
parties may negotiate about incorporating those matters into a collectively-bargained
agreement. (Berkeley USD, p. 9.) The parties may not negotiate terms which replace, set
aside, or nullify inflexible provisions of the external law. (San Mateo City SD, p. 864.) No
supersession occurs when a matter under consideration for negotiations is either permitted
under the Education Code or where the Code does not preclude any variance from its terms.
(Jefferson SD, supra, PERB Decision No. 133, p. 9.)
PERB applied these standards in Lucia Mar Unified School District (2001) PERB
Decision No. 1440 (Lucia Mar USD). That case concerned Education Code provisions giving
a school district some discretion over subcontracting its transportation services. (Id. at
proposed decision, p. 54.) There, PERB “declined to find issues pre-empted by permissive or
discretionary Education Code provisions which gave districts discretion and flexibility to act.”
(Id. at proposed decision, pp. 52-53, citations omitted.) To the contrary, while “‘mandatory
language [in the Education Code] will remove a subject from EERA’s bargaining obligation[,]
permissive or discretionary language will have the opposite result, provided the subject is
otherwise negotiable.’” (Id. at proposed decision, p. 53, quoting Fremont Unified School
District (1997) PERB Decision No. 1240.) Thus, language giving the employer some
discretion over using contract labor for transportation services did not preempt the duty to
negotiate over that matter. (Ibid.; see also Centinela Valley UHSD, supra, PERB Decision
No. 2378, pp. 7-8 [holding that the Education Code’s provisions on paid time off for union
business did not preclude negotiations over union release time].)
In this case, LAUSD is correct that the Stull Act, at Education Code section 44660,
gives school districts discretion to “establish a uniform system of evaluation and assessment
for the performance of all certificated personnel within each school district of the state[.]”
24

However, that provision is substantially similar to permissive, discretionary language in Lucia
Mar USD, supra, PERB Decision No. 1440. As in that case, the language in the Stull Act
relied upon by LAUSD does not create an “inflexible standard” or “immutable provisions”
regarding the use of a four-level observation rating system. Nor was any section cited
indicating that the Legislature intended parts of the evaluation process to be outside the scope
of representation. For these reasons, I reject LAUSD’s argument that evaluations are excluded
from the scope of representation under the Education code.
UTLA has established that LAUSD’s unilateral change to a four-level observation
rating system was a policy change within the scope of representation. This action violates the
duty to negotiate in good faith unless LAUSD’s bargaining obligation was excused.
2. 	Waiver of the Duty to Bargain
LAUSD argues that any duty to bargain over the four-level observation rating system in
this case was excused because UTLA waived its right to bargain over the matter. The Board
has long found that the waiver of negotiating rights must be “clear and unmistakable,”
demonstrating “an intentional relinquishment of the right to bargain.” (Rio Hondo Community
College District (2013) PERB Decision No. 2313 (Rio Hondo CCD), p. 5 (emphasis in
original), citing Amador Valley Joint Union High School District (1978) PERB Decision
No. 74, California State Employees Assn. v. PERB (1996) 51 Cal.App.4th 923, pp. 937-938
(CSEA).) This is because there is strong public policy against finding waivers based solely on
inference. (Santa Ana Unified School District (2013) PERB Decision No. 2332, p. 28, citing
Long Beach Community College District (2003) PERB Decision No. 1568.) Accordingly, the
“burden of establishing a waiver is upon the party asserting it, whether the claimed waiver is
grounded in alleged inaction, contact language, or a simple failure to demand bargaining.”
(Rio Hondo CCD, supra, p. 6.) LAUSD espouses two waiver theories in this case: (a) that
25

LAUSD gave notice of the new rating system but UTLA failed to request bargaining; and (b)
that the management rights clause in the CBA privileges LAUSD to change the observation
rating system. Each theory will be discussed separately below.
a. 	UTLA’s Failure to Request Negotiations Earlier
An exclusive representative may waive its right to bargain over an issue “where the
employer shows that the exclusive representative failed to demand to negotiate, despite having
received sufficient notice of the proposed change.” (West Covina Unified School District
(1993) PERB Decision No. 973, pp. 13-14, citing Cloverdale Unified School District (1991)
PERB Decision No. 911.) However, “[s]ilence, by itself is never clear and unambiguous.”
(Rio Hondo CCD, supra, PERB Decision No. 2313, p. 7.) Thus, to find a waiver, there must
be other indicators that the union intentionally relinquished its right to bargain. (Ibid.)
Although an unreasonable delay in making a bargaining demand may be evidence of a waiver,
the reasonableness of the delay turns on the specific facts of each case. (Id., citing Compton
Community College District (1989) PERB Decision No. 720; Victor Valley Union High School
District (1986) PERB Decision No. 565.) Moreover, the union must have had notice (i.e.,
advance knowledge) of the proposed change and then fail to request negotiations over the
matter. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 27-29.)
In Santee Elementary School District (2006) PERB Decision No. 1822, the employer
notified the union that it planned on adopting new board policies concerning strikes and other
concerted activities at its governing board meeting around 20 days later. The union expressed
concerns about the new policy, but never demanded bargaining. (Id. at p. 3.) The Board found
that union had adequate notice of the employer’s intent to change its policy and the record
showed that the union made the conscious decision to not request negotiations. (Id. at p. 4.)
The Board accordingly found a waiver of the right to bargain. (Id. at p. 5.) In contrast, in Rio
26

Hondo CCD, the Board found no waiver of the right to demand bargaining over the negotiable
effects of installing security cameras on school premises. In that case, there was no clear
timeline for the implementation and the union’s internal deliberations about whether to request
bargaining did not suggest any actual intent to waive its rights. (Id. at pp. 7-8.)
In this case, LAUSD argues that it notified UTLA of its intent to create the TLF as
early as October 2010. LAUSD also asserts that UTLA knew about its plans regarding the
TLF and the four-level observation ratings system by its participation in the Ad Hoc TLF
Committee from December 2011 to March 2012. According to LAUSD, UTLA’s March 31,
2013 bargaining demand was an unreasonable delay under the circumstances. This argument
is unpersuasive because, as in Rio Hondo CCD, supra, PERB Decision No. 2313, prior to
March 24, 2013, UTLA was not on notice that LAUSD intended to implement the new four-
level observation rating system. In fact, LAUSD’s statements up until that point indicated that
it would bargain with UTLA over any negotiable changes relating to the TLF. During both Ad
Hoc TLF Committee meetings, LAUSD representatives expressly informed the committee that
it would bargain over the implementation of the TLF. Before that, on April 28, 2011, LAUSD
stated in a letter about the TLF and evaluations that it remained “committed to the collective
bargaining process.” Thus, although UTLA had notice that LAUSD was developing a new
framework, there was insufficient notice that LAUSD would implement that framework into its
evaluation system prior to completing bargaining. LAUSD also did not present any evidence
indicating that UTLA consciously decided against requesting negotiations on this issue. For
these reasons, I cannot conclude that UTLA, by its silence, intended to waive any right to
bargain over the four-level observation rating system.
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b. 	Waiver by Contract10
LAUSD also argues that UTLA waived the right to negotiate over the present changes
to the evaluation and observation system based on various CBA provisions delineating
LAUSD’s retained authority, or “management rights.” A union may “waive its right to
negotiate a matter within the scope of representation by consciously yielding that right in a
management rights clause.” (Berkeley Unified School District (2004) PERB Decision No.
1729, warning letter, p. 3.) This sets a high bar. To meet it, the contract language must
“specifically reserve for management the right to take certain action or implement changes
regarding the issues in dispute.” (Id., citing CSEA, supra, 51 Cal.App.4th 923, pp. 938-940.)
A generally worded management rights clause will not be construed as a waiver. (Rocklin
Unified School District (2014) PERB Decision No. 2376 (Rocklin USD), proposed decision,
pp. 39-40; San Bernardino City Unified School District (1998) PERB Decision No. 1270 (San
Bernardino City USD), proposed decision, p. 57, citing Norris School District (1995) PERB
Decision No. 1090, Dubuque Packing Co. (1991) 303 NLRB No. 386.) A party may use
extrinsic evidence such as bargaining history to establish a contract-based waiver. The,
extrinsic evidence must “reflect[] a conscious abandonment of the right to bargain over a
particular subject.” (Placentia Unified School District (1986) PERB Decision No. 595
(Placentia USD), p. 4 (emphasis supplied), citing Palo Verde Unified School District (1983)
PERB Decision No. 321; St. Mary’s Hosp. (1982) 260 NLRB 1237.) In addition, where the
10 PERB has limited authority to interpret agreements. PERB may do so only as needed
to decide issues within its jurisdiction, such as unfair practice charges. (County of Sonoma
(2012) PERB Decision No. 2242-M, p. 15, citing Regents of the University of California
(Davis) (2010) PERB Decision No. 2101-H, County of Ventura (2007) PERB Decision
No. 1910-M.) When PERB is called upon to review agreements, traditional rules of contract
interpretation apply. (Ibid.) In this case, both parties acknowledge that PERB must interpret
the parties’ agreements to resolve the present dispute.
28

contract language is clear and unambiguous on its face, reliance on bargaining history to
establish a waiver is not appropriate. (Barstow Unified School District (1996) PERB Decision
No. 1138 (Barstow USD), p. 16, citing Colusa Unified School District (1983) PERB Decision
No. 296.)
In this case, LAUSD argues that different CBA provisions work together to establish
that UTLA waived its right to negotiate over the four-level observation rating system. Its
argument is based on the premise that the management rights language in the CBA gives the
District the authority to make any changes not specifically limited by the CBA. LAUSD’s
position has some traction in an early Board decision. In Contra Costa Community College
District (1990) PERB Decision No. 804 (Contra Costa CCD), the Board interpreted an “Entire
Agreement” article, stating in relevant part
The adoption or institution of all past, existing and future
policies, procedures, practices and customs shall be exclusively
within the discretion of management, except to the extent that
such action shall be contrary to the specific terms of this contract.
(Id. at p. 9 (emphasis removed).) The Board interpreted that language to mean the employer
had “the exclusive right to determine any new policy or procedure which does not conflict with
the terms of the contract[,]” and that it was therefore not obligated to bargain over changes to
its training programs, unless the union used an available reopener request for that purpose. (Id.
at pp. 9-10.) I have no subsequent PERB decision reaching a similar conclusion based on
comparable contract language. Nor have the parties cited to such a case.
More recently, PERB has applied the standards for finding a waiver by contract more
stringently and has concluded that contract must expressly confer unilateral or exclusive
authority over a specific subject. For instance, in San Bernardino City USD, supra, PERB
Decision No. 1270, The Board found that an employer unilaterally changed employee sick
29

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leave policies. (Id. at p. 3.) In that case, the parties’ contract included a “district rights” clause
stating, in part, that “the adoption of policies, rules, regulations and practices shall only be
limited by the specific and express terms of this agreement.” (Id. at proposed decision, p. 57.)
PERB found that “the District Rights clause to be generally worded rather than clear and
specific.” (Ibid.) PERB also noted that contract language did not mention either any leave
policies or the employer’s exclusive right to change policy. (Ibid.; see also Los Angeles
Unified School District (2002) PERB Decision No. 1501 (Los Angeles USD),. at p. 4.)
In Rocklin USD, supra, PERB Decision No. 2376, PERB reviewed contract language
broadly authorizing the district to “determine its organization; direct the work of its employees,
determine the times and hours of operations, determine the kinds of levels of services to be
provided and the methods and means of providing them; establish its educational policies,
goals and objectives[.]” (Id. at proposed decision, pp. 2-3.) The employer argued that the
contact language authorized it to remove work from the bargaining unit. PERB concluded that
this language merely “describe[d] the general authority of the District to manage its
operations[,]” and did not “specifically reserve to the employer the right to take certain action
or implement specific unilateral changes.” (Id. at proposed decision, pp. 39-40, citing Lucia
Mar USD, supra, PERB Decision No. 1440.)11 In Hacienda La Puente Unified School District
(1997) PERB Decision No. 1186 (Hacienda La Puente USD), PERB found that contract
language authorizing the employer to “direct the work of its employees,” “determine the times
and hours of operation,” “determine staffing patterns,” and “assign” employees “limited only
by the specific and express terms of this agreement” did not allow the employer to unilaterally
11 PERB did, however, conclude that the union waived the right to bargain over the
change by failing to timely request bargaining. (Rocklin USD, supra, PERB Decision
No. 2376, proposed decision, p. 42.)
30

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change employee work shifts. (Id. at proposed decision, pp. 15, 18-19.) PERB concluded that
the language did “not contain the level of specificity required under PERB law to constitute a
clear and unmistakable waiver of [the union’s] right to negotiate about shift changes.” (Id. at
proposed decision, p. 18.)
The Board did find a contractual waiver in Long Beach Community College District
(2008) PERB Decision No. 1941 (Long Beach CCD). There, the parties’ agreement gave the
employer the “exclusive right” to, among other actions, “direct the work of its employees,”
“determine staffing patterns,” and “contract out work” (Id. at p. 4). The Board found the union
expressly waived its right to bargain over the employer’s use of contract labor. (Id. at pp. 17-
18;12 see also Barstow USD, supra, PERB Decision No. 1138, p. 14.)
Federal authority applies a similar “clear and unmistakable waiver” standard when
reviewing management rights clauses. (See Local Joint Executive Board of Las Vegas v.
NLRB (9th Cir. 2008) 540 F.3d 1072, p. 1075, citing Metro Edison Co. v. NLRB (1983) 460
U.S. 693, p. 708.) In Walt Disney World Co. (2013) 359 NLRB No. 73, the NLRB reviewed
contract language reserving the employer’s “right to staff functions as deemed appropriate”
and a generally worded clause giving the employer authority over selecting employees,
scheduling, and assignments “[e]xcept as expressly and clearly limited by this Agreement[.]”
(Id. at p. 20.) The NLRB concluded that the language did not authorize the employer to
eliminate classifications within the bargaining unit. (Id. at pp. 21-22.) In contrast, in
Kennemetal, Inc., (2012) 358 NLRB No. 68, the NLRB found that contract language expressly
entitling the employer to make reasonable provisions regarding the health and safety of
employees authorized the employer to unilaterally create a checklist requiring employees to
12 The Board found that the employer was still obligated to bargain over the effects of
any plan to contract out. (Id. at p. 19-20.)
31

inspect machinery for safety problems. (Id. at pp. 5, 10-11.) In Virginia Mason Hospital
(2012) 358 NLRB No. 64, the NLRB found that an employer hospital was not required to
bargain over the requirement that any nurse who had not taken anti-viral medication must wear
facemasks as a precaution against spreading the influenza virus. (Id. at pp. 5-6.) In that case,
the parties’ contract included a management rights clause giving the hospital the authority to
“promulgate rules, regulations and personnel [policies]” as well as to “determine the materials
and equipment to be used[.]” (Id. at p. 5.) The NLRB concluded that there was no duty to
bargain because of the management rights language and because the facemask requirement was
“simply an extension of the infection control guidelines already in effect[.]” (Id. at pp. 5-6.)
i. 	The Parties’ Contract Language
In the present dispute, LAUSD cites to multiple CBA provisions in support of its
contract-based waiver argument. It relies on CBA Article II, section 3.0, which authorizes the
District to “determine and revise any of its policies, rules, regulations, or procedures” not in
conflict with the CBA. CBA Article III, section 1.0 also states that the “District retains all
rights and powers which have not been limited by the other Articles of this Agreement.” That
clause was immediately followed by the statement that “[t]he provisions of this Article are not
intended to expand the rights of the District beyond statutory and constitutional limits[.]”
LAUSD also notes that nothing in Article X, concerning unit member evaluations and
discipline, limits the District’s authority implement a four-level observation scoring system.
Article III, section 3.0 also enumerates a set of the District’s “retained rights” over
which the District may “determine, establish, change or discontinue, in whole or in part,
temporarily or permanently.” Among the enumerated items in section 3.0 are, “[t]he classes to
be taught and other duties and services to be rendered by District personnel to students and to
the public[,]” as well as “educational policies, objectives, standards, and programs.”
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After reviewing the CBA language at issue in this case, I find no clear and
unmistakable waiver of the right to bargain over changes to how observations are rated. I
reach the same conclusion when reading each relevant section separately or together as a
whole. Nothing in the CBA gives the District any specific authority to make changes to
classroom observations, to evaluations in general, or to any matters within the scope of
representation. I find that the generally-phrased references to policies, rules, procedures,
District services, and educational standards do not authorize unilateral action over employee
observations or evaluations.
I likewise conclude that the CBA does not indicate that UTLA consciously yielded its
right to bargain over those issues. (See Rocklin USD, supra, PERB Decision No. 2376, Lucia
Mar USD, supra, PERB Decision No. 1440; Hacienda La Puente USD, supra, PERB Decision
No. 1186.)13 In fact, the statement in the parties’ management rights article that the
“provisions in this Article are not intended to expand the rights of the District beyond statutory
and constitutional limits” is a strong indicator that UTLA did not intend to yield their EERA-
based right to negotiate over evaluation procedures or other matters within the scope of
representation. (EERA, SS 3543.2, subdivision (a), 3543.3.)14 Moreover, after reading the
13 The lack of any specific reference to the specific change that occurred here also
distinguishes this case from Long Beach CCD, supra, PERB Decision No. 1941, Barstow
USD, supra, PERB Decision No. 1138, and Kennemetal, supra, 358 NLRB No. 68. In each of
those cases, the parties’ contract language gave them the express authority to take exclusive
action on the specific issue in dispute (e.g., contracting out, health and safety procedures).
Likewise, unlike in Virginia Mason Hospital, supra, 358 NLRB No. 64, the new four-level
observation rating system was not simply the codification of existing policies.
14 As a reference point, EERA, including its mandatory bargaining provisions was
enacted in 1975. (Long Beach Community College District (2003) PERB Decision No. 1564,
p. 11 citing Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, p. 177.) This was
around three years before the parties negotiated their first agreement containing the above-
referenced management rights language.
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CBA as a whole, I conclude that the parties were aware of how to draft language conferring
exclusive and unilateral authority over employment matters. For example, in Article XVI, S
2.0(c), the parties vested the “sole and exclusive right” to design employees’ health and
welfare programs to joint committee of District and UTLA representatives. As in Rocklin
USD, supra, PERB Decision No. 2376, I also find the fact that the parties did not give the
District specific authority over observation or evaluation matters to be further evidence that
UTLA did not intend to waive its right to negotiate over these changes.
Notwithstanding the Board’s decision in Contra Costa CCD supra, PERB Decision
No. 804, I also reject the argument that LAUSD was excused from bargaining based on CBA
language authorizing the District to make “any policy changes not specifically limited by the
CBA.” Decisions such as San Bernardino City USD, supra, PERB Decision No. 1270, and
Los Angeles USD, supra, PERB Decision No. 1501 better reflect the Board’s current position
on contract-based waivers and are more consistent with PERB’s position as a whole on the
issue of waivers.15 In both of those cases, the Board found that contract language similar to the
terms relied upon by LAUSD here were not specific enough to constitute waivers of the right
to bargain.
LAUSD argues that declining to find a waiver of the right to bargain would render the
management rights provisions in the CBA meaningless which, under traditional principles of
contract interpretation, should be avoided. (See County of Sonoma (2011) PERB Decision
No. 2173-M, p. 16, citing State of California (Department of Corrections) (1999) PERB
Decision No. 1317-S.) This argument is unpersuasive because it is an overstatement to claim
15 See Vessey & Co., Inc. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d
629, pp. 666-7 [holding that an expert labor agency may modify or not apply earlier decisions
at its discretion]; U.S. Fidelity & Guaranty Co. v. Superior Court (1988) 204 Cal.App.3d 1513,
pp. 1522-23 [holding that later decisions “refine” earlier precedent].
34

that the conclusions reached in this proposed decision leave any CBA terms without effect.
The findings here relate only to the District’s unilateral adoption of a four-level observation
rating system. It does not necessarily mean that the District did not successfully retain other
rights for itself. For example, codifying, even without modifying each party’s rights under the
law or the agreement, is a valid purpose for contractual language. (See e.g., Jefferson SD,
supra, PERB Decision No. 133, p. 9 [“Employer-employee relations are inherently improved
when the respective parties are well informed as to their mutual rights and obligations.”] It is
beyond the scope of this proceeding to speculate on other purposes the management rights
clauses might serve. For that reason, I decline to do so.
ii. 	The Parties’ Bargaining History
LAUSD also asserts that the parties’ bargaining history supports its interpretation of a
broad-based contractual waiver. Extrinsic evidence such as bargaining history may contribute
to finding the existence of a contract-based waiver where the contract terms are subject to
different interpretations and where the negotiating history reflects “a conscious abandonment
of the right to bargain over a particular subject.” (Barstow USD, supra, PERB Decision
No. 1138, p. 16; Placentia USD, supra, PERB Decision No. 595 , p. 4, citations omitted.)
A member of LAUSD’s original negotiating team, Fisher, testified about the District’s
intent when proposing the various management rights provisions for the first CBA in 1978. He
said that the District’s goal was to reserve for itself the authority to make any changes not
specifically incorporated into the CBA. However, I find Fisher’s testimony to contradict the
plain meaning of the CBA. Specifically, Article III, section 1.0 expressly restricts LAUSD’s
management rights to within existing statutory authority, which I presume to include the
statutory obligation to bargain over negotiable subjects.
35

I also find that Fisher’s testimony is inconclusive in at least four key areas. First,
Fisher did not testify about the extent to which the parties discussed the District’s authority
over evaluations and observations. It is therefore unclear whether UTLA purposefully
surrendered its right to bargain over those specific issues during negotiations. (See Placentia
USD, supra, PERB Decision No. 595, p. 4.)
Second, Fisher testified that he was upfront at the outset of negotiations that the District
would be “proposing language that will permit full operation of the District and including the
right to make changes in negotiable subjects, so long as they’re not in conflict with the other
terms of the agreement.” Based on this testimony, Fisher clearly understood how to phrase a
proposal reserving for itself the exclusive right to change negotiable matters. Yet, there was no
evidence that LAUSD ever made such a proposal during negotiations. Nor does language
explicitly authorizing the District to make changes to negotiable subjects appear anywhere in
either the 1978 CBA or the present agreement. Thus, even if LAUSD expressed its goal to
possess the authority to make changes within the scope of representation, I find no evidence
that the District proposed language that would actually achieve its goal.
Third, Fisher’s testimony was internally inconsistent. During his direct testimony,
Fisher said that he expressed the District’s intent for the management rights provisions at the
very outset of negotiations. However, on cross-examination, Fisher said that there were no
notes of any of his conversations about the management rights clauses “since these meetings
all occurred in drafting session, there wouldn’t have been notes like you would have if you
were having more plenary sessions with the full teams.” I view this testimony with suspicion
because it means either that the parties convened drafting sessions at the opening of
negotiations before any tentative agreements were reached or that Fisher’s recall of his
36

conversations during those negotiations was inaccurate. I find that either conclusion casts
doubt on the persuasiveness of Fisher’s testimony on this issue.
Fourth, Fisher never testified that the two negotiating teams ever reached a consensus
over the interpretation of LAUSD’s management rights language. Rather, Fisher concluded
that the two sides had a common understanding simply because LAUSD’s proposed language
“was still there” at the end of the process. Fisher said he spoke with UTLA’s then-executive
director Baer, who was not part of UTLA’s negotiating team. But, LAUSD did not establish to
what extent Baer communicated anything Fisher said to UTLA’s actual negotiators. For all
these reasons, I conclude that LAUSD’s bargaining history evidence does not support its
waiver argument.
3. 	LAUSD’s “Dynamic Status Quo” Defense
As a complementary argument to its waiver theory, LAUSD contends that its history of
making changes to its evaluative rating systems has created a “dynamic status quo” that
allowed for unfettered discretion to create the four-level observation rating system at issue in
this case. Although the duty to bargain in good faith generally precludes parties from
unilaterally altering the status quo, in some situations, the status quo is dynamic and must take
into account the regular and consistent past patterns of change. (Pajaro Valley Unified School
District (1978) PERB Decision No. 51 (Pajaro Valley USD), pp. 6-7, citing Stratford
Industries, Inc. (1974) 215 NLRB 682.) In those situations, changes that are consistent with an
established pattern do not alter the status quo and need not be negotiated beforehand. (Ibid.)
However, changes that derive from an employer’s exercise of discretion are not considered to
be within the “dynamic status quo.” (Regents of the University of California (2004) PERB
Decision No. 1689-H (UC Regents), proposed decision, pp. 29-31.) The Board stressed the
importance of this distinction by stating:
37

“Where the employer has traditionally exercised a large measure
of discretion in making such changes, it is impossible for the
exclusive representative to know whether or not there has been a
substantial departure from past practice, and therefore the
exclusive representative may properly insist that the employer
negotiate regarding such changes.”
(Id. at p. 30, quoting Regents of the University of California (1983) PERB Decision No. 356-
H, pp. 16-17.)
In Pajaro Valley USD, supra, PERB Decision No. 51, the District had a “historic and
accepted practice” of contributing only a fixed sum to employee medical premium costs. (Id.
at p. 10.) All other costs, including cost increases, were automatically passed along to
employees. The Board held that the employer was entitled to continue this practice after the
parties’ contract expired without disturbing the status quo even if it meant passing along
subsequent healthcare cost increases to unit members. (Ibid.)
PERB reached the opposite conclusion in UC Regents, supra, PERB Decision
No. 1689-H. There, the employer had a practice of setting its healthcare contributions equal to
the lowest cost plan offered by its medical benefits provider. When the price of the lowest cost
plan changed, the employer changed its contribution amount. (Id. at proposed decision, pp. 6-
7.) After the parties’ contract expired, the employer modified that practice, and instead
changed its contribution amount for budgetary reasons. (Id. at proposed decision, pp. 12-13. )
The Board held that those changes were not part of a “dynamic status quo” because the
changes were the product of the employer’s discretion, not a pre-determined methodology.
Accordingly, the changes were subject to bargaining. (Id. at proposed decision pp. 31-32.)
The Board expressly distinguished its holding from Pajaro Valley USD, supra, PERB Decision
No. 51, where the post-contract changes to healthcare costs were the product of a fixed formula
and required “no exercise of discretion by the district.” (UC Regents at p. 29.)
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In the present case, LAUSD contends that it had a regular past practice of modifying
the way it rates teachers during classroom observations. It cites in support numerous different
times certain District administrators applied instructional rubrics using four or more ratings
when discussing instructional practices with teachers. It is undisputed that LAUSD did not
negotiate over its past use of rubrics with UTLA. However, I find this argument to be
unpersuasive given that there was no showing that those prior changes followed a discernible
pattern or methodology. Rather, LAUSD maintains that its administrators made those changes
through the exercise of their discretion and for subjective reasons. Thus, there is no evidence
that the change to a four-level observation rating system was consistent with a fixed
methodology, such as what existed in Pajaro Valley USD, supra, PERB Decision No. 51.
Discretionary changes, such as the changes undertaken here, cannot form the basis of a
dynamic status quo. (UC Regents, supra, PERB Decision No. 1689-H, propose decision, pp.
31-32; see also San Jacinto Unified School District (1994) PERB Decision No. 1078 (San
Jacinto USD).)16
4. 	LAUSD’s Other Defense
LAUSD also relies on Continental Telephone Company of California (1985) 274
NLRB 1452 (Continental Telephone), in support of its claim that there was no obligation to
bargain here. That case presents a hybrid of other theories discussed above and is ultimately
16 To the extent that LAUSD argues that UTLA waived the right to request future
negotiations over a four-level rating system because of its past failure to request bargaining,
this argument would be rejected as well. An exclusive representative’s “‘acquiescence in
previous unilateral changes does not operate as a waiver of the right to bargain for all times.’”
(Hacienda La Puente USD, supra, PERB Decision No. 1186, proposed decision, p. 15, quoting
San Jacinto USD, supra, PERB Decision No. 1078.) Moreover, there was no evidence that the
District gave UTLA notice and the opportunity to request bargaining prior to using the rubrics
in question. Nor was there evidence in the record about how those past rubrics were used, if at
all, in employee evaluations. Thus, I cannot conclude that UTLA’s failure to request
bargaining on these issues in the past was a conscious abandonment of its right to negotiate.
39

unpersuasive for the same reasons. There, the NLRB found that the union waived the right to
bargain over a revised employee attendance policy both because of a management rights clause
giving the employer the authority to modify personnel rules including “working schedules,”
and because the employer had previously notified the union of two other attendance policy
changes and the union specifically declined to request negotiations. (Id. at p. 1453.) The
NLRB considered those two circumstances together and concluded that the union’s conscious
decision to not request bargaining for earlier attendance policy changes lent credence to the
employer’s argument that the parties intended the management rights clause to entitle it to
make the changes at issue. (Ibid.)
In the present case, LAUSD argues that it too has broad-based managerial rights
language and a history of using rubrics with a four-level rating system. In Continental
Telephone, supra, 274 NLRB 1452, the union failed to request negotiations even after being
informed about the past policy changes. (Id. at p. 1452.) In this case, in contrast, there was no
evidence when, if ever LAUSD informed UTLA of its past use of rubrics with a four-level
observation rating system. Nor does LAUSD’s management rights language pertain, even
generally, to the subject of evaluations. For these reasons, I find Continental Telephone
distinguishable.
UTLA has established all the elements of a prima facie case regarding its claim over the
four-level observation rating system. It proved that LAUSD changed a policy within the scope
of representation without giving UTLA notice and the opportunity to request negotiations.
LAUSD has not set forth any persuasive arguments excusing its bargaining obligations on this
issue. Therefore, its unilateral implementation of the four-level observation rating system
breached the duty to bargain in good faith, in violation of EERA section 3543.5, subdivisions
(a), (b), and (c). (See Centinela Valley UHSD, supra, PERB Decision No. 2378, p. 10.)
40

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B. 	Creation of a TGDC Lead Teacher Position
UTLA alleges that LAUSD violated the duty to negotiate in good faith by unilaterally
creating a new position entitled “TGDC Lead Teacher.” The Board has previously found that
“where management seeks to create a new classification to perform a function not previously
performed or to abolish a classification and cease engaging in the activities performed by that
classification, it need not negotiate its decision.” (Alum Rock Union Elementary School
District (1983) PERB Decision No. 322, p. 11 (Alum Rock UESD).) This is because
management has an “overriding interest in determining which functions are necessary to the
accomplishment of its mission.” (Id. at p. 10; see also City of Alhambra (2010) PERB
Decision No. 2139-M, pp. 15-16;17 Redwoods Community College District (1997) PERB
Decision No. 1242, proposed decision, pp. 27-28.) On the other hand, “the creation or
abolition of a classification which merely transfer[s] existing functions and duties from one
classification to another involve no overriding managerial prerogative.” (Ibid.) Those changes
are negotiable. (Ibid.)
In this case, UTLA argues that LAUSD unilaterally created a TGDC Lead Teacher
position in the May 24, 2013 letter, where then-Superintendent Deasy stated that principals
will be asked “to identify a TGDC Lead Teacher” who will “support teachers at [each] site
who will be engaging in the TGDC.” The letter also indicates that the TGDC Lead Teacher
will be paid via stipend and will have paid training opportunities. LAUSD Director of
Personnel Services and Research Killeen said that the TGDC Lead Teacher is a regular full-
time teacher who performs additional duties related to the TGDC. No witness or document
17 City of Alhambra, supra, PERB Decision No. 2139-M was decided under the
Meyers-Milias-Brown Act (Gov. Code § 3500 et seq.). Cases decided under the MMBA do
not apply the Anaheim Test when determining whether a matter is within the scope of
representation. (Ibid.)
41

provided more detailed information. UTLA has the burden of proving this and all the elements
of a prima facie case for unilateral change. Based on this sparse record, I cannot conclude that
LAUSD created a new “TGDC Lead Teacher” position or classification. Nothing in the May
24, 2013 letter states that LAUSD was creating a new position. Killeen flatly contradicts this
assertion by stating that the TGDC Lead Teacher was merely a full-time teacher that was
assigned “additional duties related to the TGDC program” and was compensated for the
additional work using the coordinator differential provisions in the CBA.
Even if UTLA had proven that LAUSD created a new position, the record is
inconclusive as to the TGDC Lead Teacher “perform[ed] a function not previously performed”
or was assigned the work of existing classifications. (Alum Rock UESD, supra, PERB
Decision No. 322, p. 11.) Killeen did state that the TGDC Lead Teacher performed “additional
duties,” but neither he nor any other witness or document provided more insight into the work
performed by the alleged new position. Without this information, I cannot determine whether
the decision to create any new position was negotiable or a managerial prerogative.
For all these reasons, UTLA’s assertion that LAUSD unilaterally created a new TGDC
Lead Teacher position was not proven with facts at the hearing and is therefore dismissed.
C. 	Changes to the Final Evaluation Report Form
UTLA also alleges that LAUSD unilaterally changed the Final Evaluation Report form
used during the 2013-2014 school year. According to the amendments to the PERB complaint,
LAUSD added: (1) a new section entitled “Observation of Teacher’s Practice; (2) a new
section entitled “Contributions to Student Outcomes/Support for Student Learning;” and (3)
new evaluation criteria in the section entitled “Additional Professional Responsibilities.” Both
parties acknowledge that all three sections were added to the Final Evaluation Report form
42

without bargaining. Less clear is whether those new sections amounted to any substantive
negotiable change to the evaluation or observation process.
1. 	The “Observation of Teacher’s Practice” and the “Additional
Professional Responsibilities” Sections
The first issue regarding the alleged change to the Final Evaluation Report is whether
the form and organizational changes altered anything substantive about the evaluation
procedure. As discussed above, evaluation procedures are within the scope of representation.
(EERA, § 3543.2, subdivision (a).) Likewise, creating a new process for assessing employees’
performance is subject to negotiations. (Compton CCD, supra, PERB Decision No. 798,
proposed decision, pp. 3-4; Holtville USD, supra, PERB Decision No. 250, pp. 7-9; Jefferson
SD, supra, PERB Decision No. 133, pp. 18-19.) The criteria or categories for evaluation are
also subject to bargaining. (Walnut Valley USD, supra, PERB Decision No. 289, pp. 8-9.) In
this case, however, UTLA has not established that the new “Observation of Teacher’s
Practice” and “Additional Professional Responsibilities” sections together, actually modified
existing evaluation procedures, created a new evaluation process, or changed existing
evaluation criteria. UTLA argues that these sections contain new, un-negotiated evaluation
categories, but a closer examination of those sections reveals otherwise. Each of the items
listed in those two new sections correspond, at least roughly, to categories from the prior Final
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Evaluation Report form and items in CBA Article X, section 4.1.18 In addition, when
comparing the newly implemented 2013-2014 Final Evaluation Report form to its immediate
predecessor, virtually all of the assessment categories in the “Observation of Teacher’s
Practice” and the “Additional Professional Responsibilities” sections of the 2013-2014 form
also appeared in the prior form. This is unsurprising because the changes were designed to
conform to the CSTP and to the CBA, which set evaluation standards both before and after the
changes alleged in this case.
Although the assessment categories in the 2013-2014 form are described somewhat
differently from the prior form, it was incumbent on UTLA to put forth evidence, or at least an
explanation, concerning how this different language actually amounted to any tangible change
in assessment categories. UTLA’s failure to do so leaves me unable to find that a policy
change occurred here.
Similarly, the 2013-2014 form continues to use a three-level rating system, but with
different names from what was used in the prior year.19 However, there was no showing that
this terminology change impacted employees’ evaluations or other working conditions. Both
before and after LAUSD began using the 2013-2014 Final Evaluation Report, employees were
18 For example, in the 2013-2014 Final Evaluation Report, the “Standards-Based
Learning Activities” section in the “Observation of Teacher’s Practice” section corresponds to
various items in “Classroom Performance” section of the prior form. Similarly, the “Feedback
to Students” section in the 2013-2014 Final Evaluation Report corresponds to items in the
“Support for Student Learning” and the “Developing as a Professional Educator” sections of
the prior form. Likewise, Items #1 and #2 in the “Additional Professional Responsibilities”
section of the 2013-2014 form corresponds to items in the “Punctuality, Attendance, and
Recordkeeping” section of the prior form. Item #7 of the 2013-2014 form is essentially
equivalent to items in the “Developing as a Professional Educator” of the prior form.
19 The three ratings in the most recent Final Evaluation Report form preceding the
change were “Meets,” “Needs Improvement,” and “No.” The 2013-2014 form used the scores
“Effective,” “Developing,” and “Ineffective.”
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given a final overall rating of “Meets Standard Performance” or “Below Standard
Performance.” Unlike in CSU San Marcos, supra, PERB Decision No. 1635-H, there was no
showing in this case that supervising administrators have any different discretion in assigning
an overall evaluation score based on the new Final Evaluation Report form.20
Without evidence about how the assessment categories in the “Observation of
Teacher’s Practice” and “Additional Professional Responsibilities” sections of the new Final
Evaluation Report actually differed from what was previously in place, I cannot find that the
content in these section changed any matters within the scope of representation.
2. 	The “Contributions to Student Outcomes/Support for Student Learning”
Section
The new “Contributions to Student Outcomes/Support for Student Learning” section
does contain new content not present in prior evaluation forms. Specifically, this section
includes space for describing both “objectives” and “strategies” relating to student progress in
State-adopted standardized test results.21 However, the content of this section was consistent
with existing provisions about evaluations contained in CBA Article X and the Supplemental
Agreement. For instance, CBA Article X, 4.0, directs teachers and supervising administrators
to work together to develop the teacher’s objectives for that school year. According to section
4.1(a), the issues to be discussed when setting objectives include “[s]tandards of expected
20 This holding does not disturb my earlier finding that the unilateral implementation of
a four-level observation rating system violated the duty to bargain in good faith. The
allegations in the amendment to the PERB complaint were specific to the Final Evaluation
Report form itself and nothing on that form pertains to the four-level observation rating
system.
21 The section also includes an item entitled “Target Date,” but no evidence was
submitted about the purpose of that item.
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student performance and achievement[.]” That same section contemplates the identification
and use of both “objectives” and “strategy-based planning methods.”
In addition, section 1.0 of the Supplemental Agreement requires the objective and
strategy development process under Article X, section 4.0 to include a “review, discussion, and
incorporation of multiple measures of student achievement and progress toward District-
adopted and State-adopted standards[.]” Supplemental Agreement section 1.3 specifically
requires that the objectives and strategies relating to student achievement scores be
incorporated into teachers’ evaluations.
The “Contributions to Student Outcomes/Support for Student Learning” section merely
incorporates the changes to the evaluation process agreed to in the Supplemental Agreement in
the most basic way. The agreement requires LAUSD to use both teachers’ objectives and
strategies on the issue of student outcomes in evaluations. This section simply inputs those
two items onto the evaluation form. I find that this section of the form was consistent with the
District’s authority under the parties’ agreements.22 In other words, UTLA has failed to prove
that LAUSD departed from existing policy by adding this section to the evaluation form.
3. 	Changes to the Composition of the Final Evaluation Report Form
To the extent that UTLA argues that LAUSD was required to bargain over purely
structural or organizational changes to its evaluation form, regardless of content, that argument
is rejected under the facts presented here. I find insufficient evidence to conclude that
LAUSD’s composition changes to the Final Evaluation Report form here satisfy the elements
of the Anaheim Test for negotiability.
22 There was no evidence or argument that the items in this section were used for some
other purpose. As with all elements of the prima facie case for a unilateral change, UTLA, as
the charging party, has the burden of demonstrating that a change occurred here.
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It is clear that the first element of the test is met here. Even purely structural or
organizational changes the Final Evaluation Report form straightforwardly relate to evaluation
procedures, which is an enumerated subject of bargaining. (See EERA, § 3543.2, subdivision
(a).) Neither party maintains otherwise.
Regarding the second element of the test, it is perhaps implicit that employers have an
interest in the structure and organization of their own records, including personnel records.
This interest was evident from the record in this case. For example, in or around 1985,
LAUSD reformatted the Final Evaluation Report to incorporate Scantron technology, allowing
the District to scan and maintain the data on the form automatically. The content of the 1985
form was not different from the prior form. LAUSD said that it created the “Observations of
Teacher’s Practice” section of the 2013-2014 Final Evaluation Report form in order to include
all 15 of its TLF “focus elements” in one place. It placed the remainder of the assessment
categories used in the past into the “Additional Professional Responsibilities” section. LAUSD
said that it used this structure to better communicate its expectations about teacher
performance.23 I thus conclude that the format of its evaluation forms was of a significant
concern to the District as part of its responsibility to manage its operations.
Employees’ interest in the format of the Final Evaluation Report is less clear. While
one might presume that employees’ have a significant interest in the subject-matter of their
performance evaluations, the same cannot be as easily said about the structure of the evaluation
form. UTLA has not presented any evidence or argument that the new format of the Final
Evaluation Report form has changed or has the potential to change either the evaluation
23 It bears repeating that there was no evidence that LAUSD changed either the content
of its performance expectations or administrator’s discretion in giving overall evaluation
scores. Both before and after LAUSD began using the 2013-2014 form, the assessment
categories on the evaluation form were tied to the CSTP.
47

process or any other aspect of employee working conditions. Before and after the change the
form includes the same subjects and the same three-level scoring system.
There is also no evidence that UTLA has ever requested negotiations over past changes
to the Final Evaluation Report in its more than 30 year history representing the bargaining unit.
While this fact is insufficient to find any waiver of the right to bargain, it does suggest that the
issue is not so significant to UTLA or its membership and that UTLA did not believe that
collective bargaining was a means to assert its views about evaluation forms. This, coupled
with the fact that there is no apparent or asserted employee interest in the format of the
evaluation form leads me to conclude that this issue was not of significant concern to
employees. Therefore, UTLA has failed to prove that these organizational changes to the Final
Evaluation Report form meet the second element of the Anaheim Test.
Finally, I also conclude that the changes purely to the format of the Final Evaluation
Report form involved primarily matters within LAUSD’s managerial prerogative which are not
subject to negotiations. As explained above, employers have a significant interest in the
composition and format of their personnel records. They similarly have an interest in directing
how supervisory personnel communicate and interact with rank-and-file employees. When
separated from the content of the forms, these interests predominantly concern managerial
operations. There was no showing how these issues bear upon matters of importance to
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employees. For these reasons, I conclude that LAUSD was not required to negotiate over
purely format-based changes to the Final Evaluation Report form.24
UTLA has not proven that the changes to the 2013-2014 Final Evaluation Report
changed anything substantive about the evaluation process or about the subject matter of
evaluations. Nor has UTLA established that the purely organizational changes to the form
were subject to bargaining. Therefore, its allegations in the amendment to the PERB complaint
are dismissed.
II. 	LAUSD’s Direct Communication With UTLA Bargaining Unit Members
An employer “bypasses” an exclusive representative when it communicates directly
with employees to undermine the union’s authority to represent unit members. (Muroc Unified
School District (1978) PERB Decision No. 80, pp. 19-20.) PERB generally recognizes two
theories of bypass. The first type occurs when an employer engages in direct bargaining with
represented employees, such as presenting proposals to bargaining unit members not already
exchanged and/or discussed with the bargaining representative. (Trustees of the California
State University (2006) PERB Decision No. 1871-H (CSU Trustees), dismissal letter, p. 3.)
Under this theory, an employer unlawfully negotiates directly with employees when it deals
directly with its employees: (1) to create a new policy of general application, or (2) to obtain a
waiver or modification of existing policies applicable to those employees. (Walnut Valley
Unified School District, supra, PERB Decision No. 160, p. 6.)
24 It is at least theoretically possible that changes to the composition of the evaluation
form has effects or impacts that are within the scope of representation. (See Alum Rock UESD,
supra, PERB Decision No. 322, p. 9.) However, there is no obligation to bargain over purely
speculative effects. (Trustees of the California State University (2012) PERB Decision
No. 2287-H, p. 12, citations omitted.) Rather, allegations should be “specific, logical, and
fact-based.” (Id. at pp. 18-19.) Here, there was no evidence or allegation about the effect the
organizational changes had on UTLA members. I decline to speculate on what those impacts
might be.
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The second generally recognized theory of bypass is where the employer engages in a
“campaign to disparage the exclusive representative’s negotiators so as to drive a wedge
between union representation and the bargaining unit employees.” (CSU Trustees, supra,
PERB Decision No. 1871-H, dismissal letter, p. 3, citing Safeway Trails, Inc. (1977) 233
NLRB 1078, 1081-82.)
In this case, the PERB complaint, as amended, asserts that LAUSD bypassed UTLA as
the exclusive representative of the certificated unit by communicating directly with unit
members through the May 24, 2013 letter and by another communication on June 11, 2013.
There was no evidence at hearing about any communication sent or received on June 11.
Focusing instead on the May 24 letter, UTLA fails to establish that LAUSD negotiated directly
with unit members. Rather, the record shows that the letter merely announced its final decision
to implement a four-level observation rating system and to recruit TGDC Lead Teachers.
Likewise, nothing in the letter could be interpreted as disparaging UTLA or its negotiators.
Setting aside for the moment the unlawful nature of LAUSD’s decision to implement the new
rating system, merely announcing its decision to UTLA’s members does not amount to an
unlawful bypass. For these reasons, UTLA has failed to establish that LAUSD committed an
unlawful bypass.25 This claim is therefore dismissed.
REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA. EERA
section 3541.5, subdivision (c) states:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
25 UTLA does not mention the bypass claim in either its opening statement, at hearing,
or in its closing brief. Nor does anything in the opening statement or brief indirectly support
this claim.
50

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.
In this case, it has been found that LAUSD violated EERA by unilaterally imposing a
four-level observation rating system as part of the evaluation process for UTLA members. In
CSEA v. PERB, supra, 51 Cal.App.4th 923, 946, the court held:
Restoration of the status quo is the normal remedy for a unilateral
change in working conditions or terms of employment without
permitting bargaining members’ exclusive representative an
opportunity to meet and confer over the decision and its effects.
[Citation.] This is usually accomplished by requiring the
employer to rescind the unilateral change and to make employees
“whole” from losses suffered as a result of the unlawful unilateral
change.
(See also Desert Sands Unified School District (2010) PERB Decision No. 2092, p. 33 (Desert
Sands USD), p. 31.)
Restoration of the status quo is an appropriate remedy in this case. Accordingly,
LAUSD is ordered to rescind the implementation of its four-level observation rating system, as
it applies to the certificated bargaining unit, and to make all certificated employees who were
affected by that rating system whole for any financial losses incurred as a direct result of the
unilateral change. Any financial losses shall be augmented by interest at a rate of 7 percent per
annum. (Desert Sands USD, supra, PERB Decision No. 2092, p. 34.)
The Board has found that it is also appropriate in these circumstances to order the
employer to cease and desist from violating EERA and to post a notice of the violation.
(Desert Sands USD, supra, PERB Decision No. 2092, p. 33, citing Davis Unified School
District, et al. (1980) PERB Decision No. 116.) These remedies effectuate the purposes of
EERA by informing employees that the controversy over this matter has been resolved and that
the employer will comply with the ordered remedy. (Ibid.) The notice posting shall include
51

both a physical posting of paper notices at all places where certificated bargaining unit
members are customarily placed, as well as a posting by “electronic message, intranet, internet
site, and other electronic means customarily used by [LAUSD] to communicate with its
employees in the bargaining unit.” (Centinela Valley UHSD, supra, PERB Decision
No. 2378, pp. 11-12, citing City of Sacramento (2013) PERB Decision No. 2351-M.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Los Angeles Unified School District (LAUSD) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et seq.
LAUSD violated EERA by unilaterally implementing a four-level observation rating system on
or around March 24, 2013. All other claims in the complaint, as amended, are dismissed.
Pursuant to section 3451.5, subdivision (c) of EERA, it hereby is ORDERED that
LAUSD, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally implementing policies within the scope of representation.
2. 	Interfering with employees’ right to be represented by their chosen
employee organization.
3. 	Interfering with the right of United Teachers Los Angeles (UTLA) to
represent its members in negotiations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind any and all use of the four-level observation rating system, as
applied to certificated bargaining unit members.
52

2. 	Compensate employees in the certificated bargaining unit for any
financial losses incurred as a direct result of all unilaterally implemented four-level
observation rating system. Any financial losses should be augmented by interest at a rate of 7
percent per year.
3. 	Within 10 workdays of the service of a final decision in this matter, post
copies of the Notice, attached hereto as an appendix, at all work locations where notices to
employees in the certificated bargaining unit customarily are posted. The Notice must be
signed by an authorized agent of LAUSD, indicating that it will comply with the terms of this
Order. Such posting shall be maintained for a period of 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. The Notice shall also posted by electronic message, intranet, internet
site, and other electronic means customarily used by LAUSD to communicate with employees
in the certificated bargaining unit.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on UTLA.
Right to Appeal
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:
53

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, §
11020, subd. (a).) A document is also considered “filed” when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
or received by electronic mail before the close of business, which meets the requirements of
PERB Regulation 32135, subdivision (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, § 32135, subds. (b), (c), and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091
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, §§ 32300, 32305,
32140, and 32135, subd. (c).)
54

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 No. LA-CE-5824-E, United Teachers Los
Angeles (UTLA) v. Los Angeles Unified School District (LAUSD), in which all parties had the
right to participate, it has been found that LAUSD violated the Educational Employment
Relations Act (EERA), Government Code section 3540 et seq. by unilaterally implementing a
four-level observation rating system on or around March 24, 2013.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally implementing policies within the scope of representation.
2. 	Interfering with employees’ right to be represented by their chosen
employee organization.
3. 	Interfering with the right of United Teachers Los Angeles (UTLA) to
represent its members in negotiations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Rescind any and all use of the four-level observation rating system, as
applied to certificated bargaining unit members.
2. 	Compensate employees in the certificated bargaining unit for any
financial losses incurred as a direct result of all unilaterally implemented
four-level observation rating system. Any financial losses should be
augmented by interest at a rate of 7 percent per year.
Dated: _____________________ 	LOS ANGELES UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
_________________________________
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.