Centinela Valley Union High School District (PERB 2378E)

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STATE OF CALIFORNIA.
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CENTINELA VALLEY SECONDARY
TEACHERS ASSOCIATION,
Charging Party, Case No. LA-CE-5606-E
Vv. PERB Decision No. 2378
CENTINELA VALLEY UNION HIGH SCHOOL June 17, 2014
DISTRICT,
Respondent.

Appearances: California Teachers Association by Jean Shin, Staff Attorney, for Centinela
Valley Secondary Teachers Association; Dannis, Woliver & Kelley by Candace M. Bandoian,
Attorney, for Centinela Valley Union High School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Centinela Valley Union High School District
(District) to the proposed decision (attached) of an administrative law judge (ALJ). The ALJ
determined that the District violated section 3543.5(a), (b) and (c) of the Educational
Employment Relations Act (EERA)! by unilaterally terminating a policy in section 12.19 of
the parties’ collective bargaining agreement (CBA) providing 40 percent release time to the
president of the Centinela Valley Secondary Teachers Association (CVSTA or Association).

The Board has reviewed the entire record in this case, including the complaint, the
hearing record, the ALJ’s findings of fact and conclusions of law, the District’s exceptions and

CVSTA’s response thereto. The ALJ’s proposed decision is well-reasoned, adequately |

supported by the record and in accordance with applicable law. Accordingly, the Board adopts

' BERA is codified at Government Code section 3540 et seq.

the ALJ's proposed decision as the decision of the Board itself subject to our discussion below
of the District's exceptions.
PROCEDURAL HISTORY
On September 12, 2011, CVSTA filed its initial unfair practice charge alleging that the
District violated EERA sections 3543.1, 3543.2, 3543.5(b), (c), and (e), and 3543.7, when it
ceased providing 40 percent release time to the CVS TA president on April 18, 2011. The
District filed its position statement on October 11, 2011. CVSTA filed its first amended
charge on December 2, 2011. The District filed a second position statement on December 23,
2011.
On March 5, 2012, PERB's Office of the General Counsel issued a complaint alleging
that the District violated EERA section 3543.5(a), (b) and (c) when it requested reimbursement
from CVSTA for past release time and unilaterally terminated section 12.19 release time
without prior notice and an opportunity to bargain. The District timely filed its answer on
March 26, 2012, denying any violation of EERA and raising several affirmative defenses.
On April 13, 2012, the parties met for an informal conference but the matter was not
resolved. A formal hearing was held on October 8 and 9, 2012. The ALJ issued the proposed
decision on March 12, 2013. On April 26, 2013, the District filed its statement of exceptions.
On June 7, 2013, CVSTA filed its opposition to the District's exceptions.
FACTUAL SUMMARY
The District is a public school employer within the meaning of EERA
section 3540.l(k). CVSTA is an employee organization within the meaning ofEERA
section 3540.l(e). CVSTA's bargaining unit consists of certificated teachers and counselors.
The District and CVSTA have been parties to a CBA at all times relevant to this matter.
2

Section 12 .19 of the CBA provides:
The CVST A President will be released from 40% of his/her
assignment in order to participate in district/school meetings,
educate/train staff, visit school sites, improve community
relations, and perform other functions necessary for carrying out
his/her duties.
Section 12.19 has been included in successive CBA' s since, at least, the 2004-2005 school
year, has remained largely unchanged and is part of the current CBA between the parties.
Full-time classroom teachers in the District are typically assigned to teach five (5)
periods with a sixth unassigned period used for preparation. Full-time counselors in the
District are typically assigned a case-load of 500 students. Prior to April 14, 2011, the District
implemented section 12.19 by releasing the CVSTA president from two of his or her teaching
periods if he or she was a teacher or reducing the CVS TA president's caseload to 300 students
if he or she was a counselor. Although released from 40 percent of their duty, CVS TA
presidents never had their salaries reduced as a result. At no time prior to January 21, 2011,
had the District asked CVST A to reimburse it for the salaries paid to the CVS TA president
during release time granted pursuant to section 12.19.
On January 21, 2011, the District sent CVSTA an invoice for $312,387.26 to be paid
within ten days (10) after receipt. The letter accompanying the invoice purported that the
invoice represented the total amount of compensation paid to CVST A presidents during their
section 12.19 release time since the 2001-2002 school year and was due within 10 days under
Education Code section 44987.2
Party representatives met on or about January 25, 2011 and April 1, 2011, the first
meeting involved an unrelated grievance and the second meeting specifically pertained to the
At hearing, the testimony of a District representative suggested that the District
decided to seek reimbursement under Education Code section 44987, because it learned that a
neighboring school district had done so successfully.
3

reimbursement issue. It was unclear whether termination of the section 12.19 release time was
discussed at the January 25, 2011 meeting.
On April 14, 2011, the District sent CVS TA a letter stating that it would terminate
section 12.19 release time effective April 18, 2011, and reiterated its demand for $312,387.26
plus an additional $11,083.23 paid to then CVS TA President Elizabeth Setterlund between
January and March of 2011. Since April 14, 2011, no CVS TA president has been granted
release time pursuant to section 12.19.
PROPOSED DECISION
The ALJ framed the issues thusly: 	(1) Did the District unilaterally change policy by
requesting reimbursement for past presidential release time? (2) Did the District unilaterally
change policy by discontinuing the practice of providing the CVST A president with release
time from 40 percent of his or her assignment?
Timeliness
Because the District first requested reimbursement for past release time for CVST A
presidents on or about January 21, 2011, and CVSTA did not file its unfair practice charge
until September 12, 2011, the ALJ determined that the Association did not timely allege that
the District had unilaterally changed its policy by requesting reimbursement and dismissed that
allegation. However, the ALJ determined that the District did not clearly communicate that it
would discontinue the practice of providing the section 12.19 release time prior to April 14,
2011, when it notified CVSTA by letter that it would do so. Therefore, the ALJ determined
that CVST A had timely alleged that the District unilaterally changed policy when it
discontinued its practice of providing CYST A presidents with 40 percent release time.
4

Unilateral Change
In applying PERB 's "per se" test for failure or refusal
to
meet and negotiate in good
faith, the ALJ determined that only two criteria were at issue. (See Stockton Unified
School
District (1980) PERB Decision No.
143
[unilateral changes are considered per se violations
of
EERA, § 3543.5(c) if: (1) the employer breached or altered the parties' written agreement or
its own established past practice; (2) the change was implemented without the employer
fulfilling its duty to meet and negotiate with the exclusive representative, including providing
adequate notice; (3) the change was not merely an isolated breach, but amounted to a change in
policy; and (4) the change in policy concerns a matter within the scope ofrepresentation].)
The District admitted that it no longer granted the release time provided for in
section 12.19
of
the CBA and that it had regularly granted such release time in the past. 	The
District also contended that it had the right to discontinue section 12.19, because CVSTA had
failed to compensate the District in accordance with Education Code section 44987.
Therefore, the ALJ determined that the first and third criteria, respectively,
of
the "per se" test
had been met.
The ALJ noted the District's argument that section 12.19 release time was leave
available to union officers under Education Code section 44987, not release time under EERA,
and was therefore not within the scope
of
representation. According to the District, since
section 12.19 release time was governed by the Education Code and not EERA, PERB lacked
jurisdiction over the matter. The District relied on Berkeley Unified School District (2008)
PERB Decision No. 1954 (Berkeley)3 for the proposition that release time under Education
Code section 44987 was not within the scope of representation.
The Berkeley, supra, PERB Decision No. 1954 decision involved a union president on
full-time leave from his work duties, whose salary was paid by the district and reimbursed by
the union. The union sought to have the district pay the president's salary while he was
5

The ALJ determined that release time "to participate in negotiations and perform other
union-related duties has long been found to be a subject within the scope ofrepresentation
because it is logically related to both wages and hours
of
work." (Proposed Dec., p.
13
.) The
ALJ then distinguished Berkeley, supra, PERB Decision No. 1954, which she found inapposite
and limited to the facts
of
that case. The ALJ determined that
Berkeley did not conclude or even suggest that bargaining
proposals which involve leave provisions under the Education
Code are outside the scope
of
representation under EERA. That
simply was not the controversy, and furthermore, such a finding
would be contrary to a long line
of
case law directly applicable to
this issue.
(Id.
atp.
15.)
The ALJ also noted several Board decisions which have held that EERA section
3540's
preclusion against supersession
of
the Education Code only applied where the Education Code
mandates a "specific and unalterable policy" (Jefferson School District (1980) PERB Decision
No. 133); that bargaining obligations will not be set aside unless the language
of
the Education
Code and EERA "cannot be harmonized" (Solano County Community College District (1982)
PERB Decision No. 219); and that negotiations are only prohibited "where the provisions
of
the Education Code would be replaced, set aside or annulled by the language
of
the proposed
contract clause" (San Mateo City School Dist.
v.
Public Employment Relations Bd. (1983) 33
Cal.3d 850, 864-865 (San Mateo).) Therefore, the ALJ concluded that section 12.19 leave was
within scope
of
representation because the release time policy did not replace immutable
provisions under section 44987.
engaged in negotiations and grievance processing (i.e., "release time" under EERA). The
Board held that "[b ]ecause such an employee is already on leave from their normal duties, it
stands to reason that released time is not possible, as the employee is already on leave."
(Berkeley, p. 8.)
6

Lastly, the ALJ determined that because the District only gave CYSTA four (4) days'
notice of its firm decision to discontinue section 12.19 release time, the District did not provide
a reasonable opportunity to bargain and, even if the amount of time was reasonable, CYST A
had not waived its right to bargain because to request to bargain at that point would have been
futile. 	Therefore, the ALJ determined that the District had violated its duty to negotiate in
good faith when it discontinued section 12.19 release time without first bargaining with
CYSTA.
POSITIONS OF THE PARTIES
The District takes four (4) exceptions to the proposed decision: (1) that the ALJ erred
when she stated in a footnote that the section 12.19 "Association Leave" is not granted
pursuant to Education Code section 44987; (2) that the ALJ erred by implicitly finding that
PERB has jurisdiction over this matter; (3) that the ALJ erred in determining that the
section 12.19 leave provision is negotiable; and (4) that the ALJ erred in determining that
CYSTA did not waive its right to bargain over the leave provision.
CYSTA takes no exceptions to the proposed decision. CYSTA submitted a brief in
opposition to all of the District's exceptions and urges us to affirm the proposed decision.
DISCUSSION
We agree with the ALJ that there is no evidentiary support for the District's contention
that the section 12.19 Association leave provision is granted under Education Code
section 44987. As the ALJ states:
The District's main argument seems to be that because
section 44987 exists and section 12.19 also pertains to time off
for union duties, that the parties obviously intended the
contractual release time here to be covered by section 44987.
There are at least two problems with that theory. First, the
contract language specifically provides for released time in order
to participate in district/school meetings, employee training,
school site visits, and improvement of community relations.
7

These activities bear no relationship to the exemplar
of
section 44987, which is to provide the ability to attend employee
organization meetings. Second, the contract does not expressly
refer to section 44987, nor is there any evidence that during
bargaining the parties ever discussed that the released time at
issue was intended to be governed by the Education Code
prov1s10n.
(Proposed Dec., pp. 15-16, fn. 10, emphasis in original.) We agree and would add that
the
ALJ's
determination is also supported by the fact that the District never treated section 12.19
leave as section 44987 leave. Section 44987 has been in the Education Code since 1978. The
parties are presumed to have knowledge
of
the laws affecting their workplace and bargaining
rights. That section 12.19 provided CYSTA presidents with 40 percent leave since, at least,
the 2001-2002 school year without the District requesting reimbursement strongly suggests
that section 12.19 was never intended to be governed by Education Code section 44987.
We also determine that Education Code section 44987 does not set an "inflexible
standard" or insure "immutable provisions" which precludes negotiability over the subject.
(See San Mateo, supra, 33 Cal.3d 850, 864-865.) Therefore, since employee release time
pertains to a matter within the scope
of
representation, we conclude that release time for
CYST A elected officials is negotiable. Therefore, a unilateral repudiation
of
a collectively
bargained release time provision or a change in past practice without affording CYSTA the
opportunity to bargain is conduct that falls squarely within our jurisdiction. We thus conclude
that the District's first three exceptions lack merit.
Waiver
The District also maintains that CYSTA waived its right to bargain over the termination
of
section 12.19. According to the District, CYSTA was informed at a grievance meeting on
an unrelated matter held on January 25, 2011, that the District would seek reimbursement for
past release time granted to CYSTA presidents and would terminate granting this leave
if
8

CVSTA did not reimburse the District. While there was conflicting evidence regarding the
January 25, 2011 meeting, the ALJ found that it was "more likely than not that the issue
of
possible termination
of
the released time policy was not raised during the January
25
meeting."
(Proposed Dec.,
p.
10.) We find no basis in the record to disturb the ALJ's finding on this
matter and conclude with the ALJ that there was no clear evidence prior to April
of
2011 that
the District would terminate section 12.19. Therefore, we conclude with the ALJ that there
was no "clear and unmistakable" waiver
of
CVS TA' s right to bargain. (See Oakland Unified
School District (1982) PERB Decision No. 236.)
CONCLUSION
The Board hereby affirms the ALJ' s determination that the District implemented a
change in policy when it ceased granting 40 percent release time to the CVSTA president in
April 2011, and that it did so without providing CVSTA adequate notice and the opportunity to
bargain. In doing so, the District violated EERA section 3453.5(a), (b) and (c).
REMEDY
In this case, it has been found that the District breached its duty to negotiate in good
faith when it unilaterally implemented a policy terminating the granting
of
40 percent release
time to CVSTA presidents as bargained for in section 12.19
of
the parties' CBA. The normal
remedy for a unilateral change is to restore the status quo by rescinding the change and making
affected employees whole for any losses suffered as a result of the change. (California State
Employees' Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4
th
923, 946.)
It is, therefore, appropriate to order the District to cease and desist from such activity in
the future, return to the status quo which existed prior to the District's unilateral change on
April 18, 2011 and, upon request, meet and negotiate with CVSTA prior to making future
changes in negotiable terms and conditions of employment.
9

We also deem it likely that the District's unilateral termination
of
section 12.19 had the
effect
of
lengthening the workday for CVS TA presidents who were no longer able to fulfill
their section 12.19 duties during release time. Under these circumstances, it is therefore
appropriate to order the District to make whole the employees affected by the unilateral change
in policy. (See Healdsburg Union Elementary School District (1994) PERB Decision
No. 1033, p. 11.)
Therefore, the District shall make the affected CYST A presidents whole by providing
them with back pay which comports to the extra hours each affected president spent outside his
or her normal duty hours performing duties which would have been performed during his or
her release time. The District and CVS TA shall meet and negotiate over the manner in which
the back pay is calculated.
In the event negotiations over the manner
of
granting compensatory time or back pay
are unsuccessful, the dispute shall be submitted to PERB' s Office
of
the General Counsel for
compliance proceedings.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Centinela Valley Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c ), by implementing a unilateral change in policy and by failing to provide to the Centinela
Valley Secondary Teachers Association (CVSTA) with adequate notice and the opportunity to
bargain.
Pursuant to section 3541.S(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:

A.	
CEASE AND DESIST FROM:
1.	
Failing
to
negotiate in good faith by unilaterally implementing policy
changes concerning matters within the scope
of
representation.
2.	
Interfering with the rights
of
bargaining unit employees to be represented
by CVSTA. 
3.	
Denying CYST A its right to represent bargaining unit employees.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Rescind the policy change terminating 40 percent release time for the
CYSTA president and return to the status quo ante as it was prior to April 18, 2011.
2.	
Return bargaining unit employees to their status prior to the April 18,
2011, unilateral change in policy and make them whole for any losses suffered,
if
any, as a
result
of
the District's unlawful action. Back pay shall be based on actual time spent outside
of
the CVSTA president's work-hours performing duties which normally would have been
performed during their section 12.19 release time. Any financial losses should be augmented
by interest at the rate
of
7 percent per annum. In the event the parties cannot reach an
agreement on back pay, the dispute shall be submitted to PERB's Office
of
the General
Counsel for compliance proceedings.
3.	
Within ten (10) workdays of the service
of
a final decision in this matter,
post at all work locations where notices to employees in the CV STA bargaining unit
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, 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. In addition to physical posting of paper notices, the Notice
11

12
shall be posted by electronic message, intranet, internet site, and other electronic means
customarily used by the District to communicate with its employees in the bargaining unit
represented by CVSTA. (City
of
Sacramento (2013) PERB Decision No. 2351-M.)
All other allegations in Case No. LA-CE-5606-E are hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.
12

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-5606-E, Centinela Valley
Secondary Teachers Association
v.
Centinela Valley Union High School District in which all
parties had the right to participate, it has been found that the Centinela Valley Union High
School District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3540 et seq. by implementing a unilateral change in policy and
by
failing to provide to the Centinela Valley Secondary Teachers Association (CVSTA) adequate
notice and the opportunity to bargain.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Failing to negotiate in good faith by unilaterally implementing policy
changes concerning matters within the scope
of
representation.
2. 	Interfering with the rights
of
bargaining unit employees to be represented
by CVSTA.
3. 	Denying CYSTA its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Rescind the policy change terminating 40 percent release time for the
CVS TA president and return to the status quo ante as it was prior to April 18, 2011.
2.	
Return bargaining unit employees to their status prior to the April 18,
2011, unilateral change in policy and make them whole for any losses suffered,
if
any, as a
result
of
the District's unlawful action. Back pay shall be based on actual time spent outside
of
the CVSTA president's work-hours performing duties which normally would have been
performed during their section 12 .19 release time. Any financial losses should be augmented
by interest at the rate
of
7 percent per annum. In the event the parties cannot reach an
agreement on back pay, the dispute shall be submitted to PERB's Office
of
the General
Counsel for compliance proceedings.
3. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the CVSTA bargaining unit
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent
of
the District, 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. In addition to physical posting of paper notices, the Notice

shall be posted by electronic message, intranet, internet site, and other electronic means
customarily used by the District to communicate with its employees in the bargaining unit
represented
by CVST A.
Dated: 	CENTINELA VALLEY UNION HIGH
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, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CENTINELA VALLEY SECONDARY
TEACHERS ASSOCIATION,
Charging Party,
V.
CENTINELA VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5606-E
PROPOSED DECISION
(03/12/2013)
Appearances: 	California Teachers Association by Jean Shin, Staff
Valley Secondary Teachers Association; Dannis Woliver Kelley by Candace
M.
Bandoian,
Attorney, for Centinela Valley Union High School District.
Attorney, for Centinela
Before Valerie Pike Racho, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that an employer committed a unilateral change in policy
without discharging its bargaining obligation in violation
of
the Educational Employment
Relations Act (EERA). 1 The employer denies any unfair practices.
On September 12, 2011, the Centinela Valley Secondary Teachers Association
(Association) initiated this action by filing an unfair practice charge against the Centinela
Valley Union High School District (District). On December 2, 2011, an amended charge was
filed. 	On March 5, 2012, the Public Employment Relations Board (PERB or Board) Office
of
the General Counsel issued a complaint alleging that the District violated EERA section
3543.5(a), (b), and (c) by requesting reimbursement from the Association for past released
time and by unilaterally tenninating a policy that provided 40 percent released time to the
1 EERA is codified at Government Code section 3540 et seq.

Association president. On March 26, 2012, the District filed its answer
to
the complaint,
denying any violation
of
EERA and raising various affirmative defenses.
PERB conducted an informal settlement conference on April 13, 2012, but the matter
was not resolved. A formal hearing was held on October 8-9, 2012. During the hearing, the
parties stipulated to the submission
of
a joint statement
of
facts and several exhibits. With the
receipt
of
the parties' post-hearing briefs on December 20, 2012, the record was closed and the
case was submitted for decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning
of
EERA section
3540.1 (k). The Association is an exclusive representative
of
a bargaining unit
of
certificated
employees within the meaning
of
EERA section 3540.1 (e). The Association and the District
were and are parties to a collective bargaining agreement (CBA) in effect at all times relevant
to this dispute.
CBA Article
12
CBA Article 12, "Association Rights," is central to the issues presented in this case.
Section 12.19
of
this article provides a set amount
of
time for the Association president to be
released from his or her work assignment.2 This section states verbatim:
The [Association] President will be released from 40%
of
his/her
assignment in order to participate in district/school meetings,
educate/train staff, visit school sites, improve community
relations, and perform other functions necessary for carrying out
his/her duties.
Such arrangements are commonly referred to interchangeably as "released" or
"release" time provisions.
2

In addition to this language appearing in the CBA that was in effect at the time of the instant
dispute-i.e., the CBA dated July 1, 2008-June 30, 2011-this provision also has appeared in
all of the parties' agreements since at least July 1, 2004. Furthermore, this same language was
also recently incorporated into the parties' successor CBA that was negotiated during the 2011-
2012 school year and is currently in effect through at least 2014. Neither party sought to
change this language during these most recent contract negotiations.
During the 2010-2011 school year, Elizabeth Setterlund was the Association president.
Setterlund has taught physical education in the District for the last 13 years. From the
beginning of the school year in 2010 through April 2011, Setterlund was released from 40
percent of her teaching assignment under section 12.19. This worked out to being released
from two instructional periods per day. 	Sandra Goins was president of the Association from
2005-2007 and was an art teacher for the District. During that period of time, Goins was also
released from two instructional periods per day in order to perform Association duties pursuant
to the contract.
Both past presidents testified in detail to their activities during their released periods.
Both frequently participated in and prepared for various committee meetings held at different
school sites. Setterlund attended meetings with representatives of the classified employees'
union and the District to discuss possible changes to employee health benefits. Goins
participated on several committees and attended related meetings including the health benefits
committee, the safety committee, and the superintendent advisory committee. These various
committees also included representatives from the classified union as well as the District. The
subject matter of these meetings appeared to touch on both contractual and non-contractual
issues.
3

Both Goins and Setterlund also frequently used their released time to meet with
employees at various school sites regarding grievance issues, and to participate in contract
negotiations.3 According to Setterlund, approximately half
of
her released time was
spent
handling grievance issues and 35 percent on negotiations. Setterlund also sometimes
met
with
new teachers at the beginning
of
the school year to acquaint them with District procedures and
infonn them
of
their rights and responsibilities. Finally, both Goins and Setterlund
occasionally used released time to do community outreach. Setterlund met several times with
some concerned parents at a library, and Goins periodically attended a local farmers' market to
speak with members
of
the community about issues related to student performance.
In addition to being released from two instructional periods under section 12.19, it is
undisputed that both Goins and Setterlund were also granted further released time by the
District, as necessary, to participate in contract negotiations. It is also undisputed that the
District never directed the activities
of
Association presidents during the time they were
released from 40 percent
of
their instructional duties.
Events in 2011 4
On or about January 21, Setterlund received a letter from Bob Cox, District Assistant
Superintendent
of
Human Resources, regarding presidential released time under section 12.19.
In short, this letter requested that the Association reimburse the District for "all compensation
granted to chapter presidents on account
of
the leave" pursuant to section 12.19. An invoice
purporting to provide an accounting
of
such released time taken between 2001-2011 was
3 The president is not an official member
of
the bargaining team but is available to the
team upon request and therefore needs to be onsite during negotiations. Additionally, the
president meets with the bargaining team for preparation prior to bargaining sessions. 	These
meetings sometimes lasted up to six hours.
4 Unless otherwise indicated, all dates hereafter refer to 2011.
4

attached to the letter.
	In
total, the District requested reimbursement for released time granted
to Association presidents in the amount
of
$312,387.26. The District cited to Education Code
section 44987 (hereafter "section 44987") for the proposition that reimbursement for
union
leave time needs to paid within ten days after receipt
of
an invoice, but offered that the
Association could discuss setting up a payment plan. Prior to sending this letter, the District
had never before asked for reimbursement
of
section 12.19 released time.
A few days later, approximately January 25, Goins and Cox met to discuss a grievance
and the letter was mentioned. 5 Setterlund was also present at this meeting, as well as District
Superintendent Jose Fernandez. Cox remembered stating words to the effect that
if
the District
did not receive reimbursement from the Association, then the District would terminate the
leave provision. Goins only remembered being asked whether the Association had received
the letter, which she confirn1ed, but had no recollection that Cox also threatened to stop
granting future released time under section 12.19. Setterlund did not appear to have a specific
memory
of
this meeting at all. Rather, she recalled only that she spoke at some point to
Fernandez about the issue, but could not really remember the substance
of
their conversation or
when it occurred. Fernandez did not testify at the hearing.
Goins met again with Cox and Fernandez over the reimbursement issue on or about
April 1. At this second meeting, Fernandez asked when the Association would pay the
invoiced amount. Goins replied that the Association president was entitled to the released time
because that was what had been negotiated between them.
By this time, Goins had left District employment and had become the executive
director of South Bay United Teachers (SBUT). Although it is not expressly stated in the
record, it can be gleaned from witness testimony that SBUT is an organization that provides
bargaining and representational support to the Association.
5

On April 14, Setterlund was notified by letter that because the Association had neither
made payment of the amount requested nor discussed setting up a payment plan, the District
was tenninating "the policy of providing two periods ofleave per school day" effective as of
April 18.
Goins testified that the Association made a written demand to bargain over the
termination of section 12.19 released time at some point in the spring of 2011, but this
document was not introduced into the record and she could not recall any salient details
regarding the demand. Cox denied ever receiving any written or verbal bargaining demands
from the Association over the issue.
True to its word, the District cancelled Setterlund' s released time after April 18 and
assigned "substitute classes" to her for those periods. The District admits that the current
Association president, a counselor, does not receive a 40 percent reduction in his assignment.
Counselors are typically assigned a caseload of around 500 students. In the past, when a
counselor was serving as the president of the Association, the student caseload was reduced by
40 percent.
Cox provided a straightforward reason that the District decided to request
reimbursement for the 40 percent released time. He stated that because of the extremely
difficult financial circumstances of the time, the District was "trying to find a better way to do
business." The District became aware of their right to reimbursement under section 44987 and
heard of another school district that may have successfully recouped some money and so he
said, "we wanted to do the same thing."
ISSUES
1. 	Did the District unilaterally change policy by requesting reimbursement for past
presidential released time?
6

2.	
Did the District unilaterally change policy by discontinuing the practice
of
providing the Association president with release from 40 percent
of
his/her assignment?
I.
	Timeliness
of
the Allegations in the PERB Complaint
CONCLUSIONS OF LAW
The PERB complaint alleges in relevant part:
3.
	Before April 14, 2011, [the District]'s policy and past practice
relating to the parties' collective bargaining agreement (CBA),
Article 12, section 12.19, provided to [the Association]' s
President release time from 40%
of
his/her assignment to
participate in "district/school meetings, educate/train staff, visit
school sites, improve community relations, and perform other
functions necessary for carrying out his/her duties."
4.
	On or about April 14, 2011, [the District] requested
reimbursement for past release time pursuant to CBA Article 12,
section 12.19, and Education Code section 44987(a), and the
District stated that, ["] [e]ffective April 18, 2011, the District
tem1inates its policy
of
providing two periods
of
leave per school
day."
The complaint further alleges that the District engaged in the conduct in paragraph four
without prior notice to the Association and without the opportunity to bargain, and that these
acts violated EERA sections 3543.S(a), (b) and (c).
Essentially, paragraph four
of
the complaint sets forth two separate alleged unilateral
policy changes on April 14: (1) the request for reimbursement, and (2) the tennination
of
the
policy effective April 18. The District contends that the Association brought an untimely
charge to PERB, because it claims to have provided notice to the Association
of
both alleged
policy changes in January 2011, some eight months before the charge was filed. 	The
Association admits receipt
of
the District's January
21
letter requesting reimbursement, as well
as its paiiicipation in a meeting a few days later where the letter was discussed, but denies that
the District stated at that time that the policy would be discontinued absent payment. The
7

January
21
letter itself is, in fact, silent on that point. As further discussed below, only one
allegation here is timely.
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The way that this standard has been interpreted in
charges alleging a unilateral change in policy is "the limitations period begins to run on the
date the charging party obtains actual or constructive notice
of
the respondent's clear intent to
implement the change, provided that nothing subsequently evinces a wavering
of
that intent."
(Regents
of
the University
of
California (Davis) (2010) PERB Decision No. 2101-H, at p. 16;
citation omitted.) Thus, a charging party that waits to file a charge until the employer has
actually implemented the change "bears the risk
of
running afoul
of
the statute
of
limitations."
(Ibid.)
Regarding the District's request for reimbursement
of
past presidential released time
under section 12.19, it is undisputed that the Association was notified
of
this proposed change
in the application
of
the policy on January 21. Furthermore, the record shows that the District
never wavered in its intent to pursue reimbursement after that date, as all subsequent
communications between the parties over the issue involved the District reiterating its demand
for reimbursement.6 Thus, the record establishes that the Association was aware
of
this alleged
violation approximately eight months before the charge was filed. 	This allegation is therefore
untimely and must be dismissed.
6 For example, Goins admitted that Fernandez reiterated the District's demand for
payment during the meeting on April 1.
8

Regarding the termination of the released time provision, the weight of the evidence
does not establish that the Association knew or should have known that the policy would be
terminated prior to April 14. The sole evidence in the record to support the District's position
on this point are Cox's statements during the January 25 meeting with Goins, Setterlund, and
Fernandez. Cox contends that the District offered the Association "the opportunity to move
forward with the leave if they would compensate the District. .. " and that if agreement could
not be reached, then the District would "terminate the leave." However, when questioned
about Goins's or Setterlund's response to the threatened cessation of the policy, Cox stated: "I
don't remember a specific response. At the end of the meeting there was no resolution
though."
Goins denied that she heard Cox or Fernandez threaten to terminate the policy going
forward if the Association did not accede to the District's demand for reimbursement. 7
Instead, Goins maintained that the discussion over the issue that day was brief and limited to
whether the Association acknowledged receipt of the January 21 letter. Goins stated that the
reimbursement issue was only raised tangentially as the focus of the meeting was regarding an
unrelated grievance. As previously noted, the letter wherein the District first demanded
reimbursement does not discuss future application of the leave policy. Rather, the first time
the District notified the Association in writing that presidential released time would be
discontinued was in the April 14 letter. When questioned about the reason why the District
finally terminated the released time policy in April 2011, Cox stated: "Ultimately we realized
we weren't going to resolve it any other way."
7 Although Setterlund denied generally that she was ever notified before April 2011 that
the District planned to terminate the released time policy, her recollection regarding any
meetings and/or discussions with District representatives about these issues was vague at best.
Therefore, only Goins's and Cox's account of the January 25 meeting have been relied upon.
9

After weighing the conflicting evidence on this point, it is more likely than
not
that
the
issue
of
possible termination
of
the released time policy was
not
raised during the
January
25
meeting, and even
if
it was, it was not communicated in clear enough terms to find that
the
Association had actual notice
of
the proposed change. This conclusion is based on the
fact that
Cox could not remember any specific response from Goins or Setterlund regarding
that point,
coupled with
Goins's
testimony that she did not recall the statement being made.
	If
the
Association did not verbally respond, then it is likely that the point did not get across.
Furthermore, the admission that the District did not decide to terminate the policy until April,
after finally realizing that the Association was not going to pay, bolsters this finding. 	It
suggests that until that point in time, the District was focused only on reimbursement
and
had
not yet evinced a firm decision to tem1inate the policy. Thus, it is concluded that the
Association received notice
of
the District's clear intent to tenninate the policy on April 14.
The allegation is timely.
II. 	Unilateral Change
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met. Those criteria are: (1) the employer breached or altered the parties'
written agreement or its own established past practice; (2) the change was implemented
without the employer fulfilling its duty to negotiate with the exclusive representative,
including providing adequate notice; (3) the change was not merely an isolated breach
of
the
contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
impact upon bargaining unit members' terms and conditions of employment); and (4) the
10

change in policy concerns a matter within the scope
of
representation. (San Joaquin County
Employees Association
v.
City
of
Stockton (1984)
161
Cal.App.3d 813; Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Grant Joint Union High School District (1982)
PERB Decision No. 196; Walnut Valley Unified School District (1981) PERB Decision No.
160.)
Only two
of
the four elements in the above test for unlawful unilateral change are in
dispute in this case. The District has admitted that it is no longer granting released time as
provided under the parties' agreement at section 12.19, and that it had regularly granted 40
percent released time to Association presidents in the past. That takes care
of
the first element
required to show a unilateral change. Moreover, the District contends that it had the right to
take such action because the Association has failed to remunerate consistent with obligations
under the Education Code. That satisfies the third element
of
the test. (Hacienda La Puente
Unified School District (1997) PERB Decision No. 1186 [an action affecting only one
or
a few
individuals has a generalized effect or continuing impact on unit members' tern1s and
conditions
of
employment where the employer's action is based upon a belief that it had the
right to act without first negotiating with the union]; see also County
of
Riverside (2003) PERB
Decision No. 1577-M.) Thus, only the second and fourth criteria are in dispute, namely:
whether the change was implemented without the District fulfilling its bargaining obligation,
and whether the change concerned a matter within the scope
of
representation. The scope
of
representation will be addressed first.
A. 	Scope
of
Representation
The District argues that the released time policy at issue here involves leave
11

available to union officers under section 44987, not released time under EERA. Therefore, the
District concludes that the issue does not involve a matter within the scope
of
representation
under EERA and accordingly PERB lacks jurisdiction over the subject matter
of
the charge.
Section 44987 states in relevant part:
(a) The governing board
of
a school district shall grant to any
employee, upon request, a leave
of
absence without loss
of
compensation
for
the purpose
of
enabling the employee to
serve as an elected officer
of
any local school district public
employee organization .
...
The leave shall include, but is not liniited to, absence for
purposes
of
attendance by the employee at periodic, stated
special, or regular meeting
of
the body
of
the organization on
which the employee serves as an officer.
Following the school district's payment
of
the employee for
the leave
of
absence, the school district shall be reimbursed
by the employee organization
of
which the employee is an
elected officer for all compensation paid the employee on
account
of
the leave.
The leave
of
absence without loss
of
compensation provided
for by this section is in addition to the released time without
loss
of
compensation granted to representatives
of
an
exclusive representative by subdivision (
c)
of
Section 3543
.1
of
the Government Code.
(Emphasis added.) EERA provides a right to released time that is broader than the leave
described above. It is also not limited to be taken by the elected officers
of
an employee
organization. EERA section 3543.1 provides in relevant part:
(c) A reasonable number ofrepresentatives
of
an exclusive
representative shall have the right to receive reasonable
periods
of
released time without loss
of
compensation when
meeting and negotiating and for the processing
of
grievances.
The District argues that because it did not direct the various activities of Association
presidents while they were released from instructional duties under section 12 .19, and because
the basic purpose of both section 44987 and the parties' contractual provision are to provide
12

time
off
so that an elected union official is able
to
perfonn union functions, the leave provided
by section 12.19 falls exclusively within the ambit
of
the Education Code. The District also
considers leave time under the Education Code and released time under EERA to be mutually
exclusive. In its post-hearing brief, the District contends that negotiable released time is
strictly limited to time
off
from duty "only for negotiations and grievance processing ... " and
argues that the activities
of
past presidents during their 40 percent released time "went well
beyond the limited released time authorized under EERA." (Emphasis in original.) As will be
addressed more fully below, the District's narrow interpretation
of
the negotiability
of
union
released time
is
contrary to relevant case law.
Time released from work duties to participate in negotiations and perform other union-
related duties has long been found to be a subject within the scope
of
representation because it
is logically related to both wages and hours
of
work. (Los Rios Community College District
(1991) PERB Decision No. 867; NLRB
v.
BASF Wyandotte Corp. (5th Cir. 1986) 798 F.2d
849;8 Anaheim, Union High School District (1981) PERB Decision No. 177.)
The District relies on Berkeley Unified School District (2008) PERB Decision No. 1954
(Berkeley) for the proposition that PERB in that decision "[
d]
istinguished leave taken pursuant
to the Education Code [footnote omitted], which is not within the scope ofrepresentation, and
EERA leave, which is in the scope ofrepresentation." While it is true that the Board discussed
differences between leaves under the Education Code and released time under EERA in that
case, it is not true that the Board made any determination regarding the scope
of
representation
for these issues. The facts in that case are also distinguishable from the instant dispute.
8 When interpreting EERA, PERB may rely on authority interpreting analogous federal
statutes and parallel provisions of California law. (See, e.g., San Diego Teachers Assn. v.
Superior Court (1979) 24 Cal.3d 1, 12-13; Fire Fighters Union
v.
City
of
Vallejo (1974) 12
Cal.3d 608.)
13

In
Berkeley, supra, PERB Decision No. 1954, the union president had, for many years,
been on a full-time leave
of
absence pursuant to Education Code section 45210,9 and the union
had fully reimbursed the school distiict employer for his salary and benefits. During
negotiations for a successor agreement, the employer proposed status quo on that
issue-i.e.,
that the president continue to be on a full-time leave, and the union continue to reimburse
salary and benefits under section 45210. The union, however, believed that EERA section
3543
.1
(c
),
entitled it to "credit" for the time that the president spent negotiating and handling
grievances. 	Thus, the union proposed to account for the president's time in negotiations and
grievance processing, and that such time periods be exempt from Education Code
reimbursement. The employer rejected this proposal and maintained its position. The union
filed a charge alleging that by refusing to modify its position, the employer engaged in bad
faith or "surface" bargaining.
The Board rejected the union's argument, finding that because the union president in
that case was already taking a full-time leave
of
absence, and therefore not perfonning
any
work duties, it was simply not possible for him to use EERA released time. (Berkeley, supra,
PERB Decision No. 1954.) The Board stated:
While it is not inconceivable that the duties performed by a union
officer while on a leave
of
absence would include negotiations
and grievance processing,
...
the possible overlap does not
change the fact that an employee who is on leave under Education
Code section 45210 is on leave from their normal work duties to
serve as a union officer. Because such an employee is already on
leave from their normal duties, it stands to reason that released
time (which is afforded to allow an employee time away from
their normal duties) is not possible, as the employee is already on
leave.
9 This section of the Education Code provides leave time for union officers in classified
employment. It has nearly identical language and is analogous to section 44987 covering
certificated employees.
14

(Id. at p. 8.) The Board concluded that the employer's decision to maintain a finn bargaining
position over this issue did not demonstrate bad faith or surface bargaining, and thus upheld
the dismissal
of
the charge. (Ibid.) Here, the District contends that because the record shows
that it never denied the Association released time for negotiations, there was no change
in
policy regarding "EERA leave." Thus, the District concludes that the disputed leave provision
in this case is not within the scope
of
representation and Berkeley is somehow applicable. 	The
District misconstrues the Board's conclusion in Berkeley.
The holding in Berkeley, supra, PERB Decision No. 1954 is limited to factual situations
where an employee is already on a full-time leave
of
absence and therefore not performing any
work duties. In such a situation, because there is no ability to be "released" from any duties,
there is no opportunity for an employee to avail himself or herself
of
the released time
provision in EERA section 3543.l(c). That is not the factual situation here. The past
presidents in this case were not on a full-time leave
of
absence, thus the outcome in Berkeley is
inapposite to the issue presented in this case. More importantly, the Board in Berkeley did not
conclude or even suggest that bargaining proposals which involve leave provisions under the
Education Code are outside the scope
of
representation under EERA. That simply was not the
controversy, and furthermore, such a finding would be contrary to a long line
of
case law
directly applicable to this issue.
Even
if
the District's key assertion in this case is correct-i.e., that section 12.19
released time is mandated by section
44987-that
does not automatically remove this subject
from the scope ofbargaining. 10
In Jefferson School District (1980) PERB Decision No. 133
10
But it is noted that the record evidence does not actually support the District's
assertion on this point. The District's main argument seems to be that because section 44987
exists and section 12.19 also pertains to time off for union duties, that the parties obviously
intended the contractual released time here to be covered by section 44987. There are at least
15

(Jefferson), the Board found that the preclusion against supersession
of
the Education
Code
embodied in EERA section 3540,
11
only applies to Education Code provisions that mandate
"a
specific and unalterable policy ... " however, "proposals which otherwise meet our test
of
negotiability are within scope, unless a conflicting Education Code provision precludes
variance from its terms." (Jefferson at p. 8.) The Board further opined that bargaining
over
mandates derived from other statutory schemes, "assuming the subject matter is or relates to a
subject specified in section 3543.2, certainly does not constitute supersession
of
that statute
whether it is the Education Code or any other statute." (Jefferson at p. 9.) Rather, permitting
such items to be included in a collective bargaining agreement inherently improves employer-
employee relations "when the respective parties are well-informed as to their mutual rights and
obligations." (Ibid.)
In Solano County Community College District (1982) PERB Decision No. 219 (Solano
County), the Board rejected the employer's argument that certain provisions
of
the Education
Code compelled the employer to transfer bargaining unit work from the classified bargaining
unit to the certificated unit, and also excused its failure to negotiate over the transfer. Noting
two problems with that theory. First, the contract language specifically provides released time
in order to participate in district/school meetings, employee training, school site visits, and
improvement
of
community relations. These activities bear no relationship to the exemplar
of
section 44987, which is to provide the ability to attend employee organization meetings.
Second, the contract does not expressly refer to section 44987, nor is there any evidence that
during bargaining the parties ever discussed that the released time at issue was intended to be
governed by the Education Code provision.
11
This section
of
EERA cunently provides in relevant part:
This chapter shall not supersede other provisions
of
the Education
Code and the rules and regulations
of
public school employers
which establish and regulate tenure or a merit or civil service
system or which provide for other methods
of
administering
employer-employee relations, so long as the rules and regulations
or other methods of the public school employer do not conflict
with lawful collective agreements.
16

that EERA's supersession clause had received clear judicial interpretation in Certificated
Employees Council
v.
Monterey Peninsula Unified School District (1974) 42 Cal.App.3d 328
(Monterey Peninsula), the Board acknowledged that Education Code provisions are to
be
harmonized whenever possible with meet and confer requirements, and that bargaining
obligations will not be set aside unless "the language
of
the two statutory enactments cannot be
harmonized." (Solano County at p. 14, citation omitted.)
12
Later, the California Supreme
Court agreed with PERB that "only where provisions
of
the Education Code would be
'replaced, set aside or annulled by the language
of
the proposed contract clause'" should
negotiations be prohibited. (San Mateo City School Dist.
v.
Public Employment Relations Ed.
(1983)
33
Cal.3d 850, 864-865, quoting Healdsburg Union High School District and
Healdsburg Union School District (1980) PERB Decision No. 132 at p. 18.) The Court
determined that PERB 's approach was "consistent with the fact that EERA explicitly includes
matters such as leave, transfer, and reassignment policies within the scope
of
representation,
even though such matters are also regulated by the Education Code." (San Mateo City School
Dist. at p. 865.)
Thus, in order for the District's bargaining obligations to be excused, the contractual
released time policy would need to replace mandatory, immutable provisions under section
44987. Such a result is not compelled here. PERB has squarely addressed the negotiability
of
12
As the Board in Solano County noted, Monterey Peninsula, supra, 42 Cal.App.3d
328 was decided under the Winton Act (former Education Code section 13080), which also
contained supersession language. When adopting EERA, the Legislature incorporated the
Winton Act's supersession language into the statute, and therefore, "is presumed to have
knowledge of and acquiesced in the judicial construction given to the provision." (Solano
County, supra, PERB Decision No. 219 at p.14, citation omitted.)
17

the type
of
leave time contemplated under section 44987, as well as released time for
other
union purposes, and concluded in both instances that they must be bargained over.
In Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375 (Healdsburg),
the
Board considered whether proposals regarding released time for union officers to: 	(1) attend
to
"necessary" union business; (2) conduct orientation for employees regarding the collective
bargaining agreement; (3) participate on employer-employee advisory committees; and ( 4)
attend an annual union conference, were within the scope
of
representation. The Board stated:
While EERA specifically grants representatives
of
employee
organizations release time, it does so for the purposes
of
meeting
and negotiating and for processing grievances
....
The
negotiability
of
these proposals, however, does not depend on this
statutorily defined release time provision. We find these
proposals negotiable because they directly concern hours
of
employment, which is specifically enumerated in [EERA] section
3543.2.
(Jd.
at p. 23.) Furthern1ore, the fact that union officer leave was also mandated under
the
Education Code did not preclude the negotiability
of
these proposals. (Id. at pp. 6-8.) Citing
to Healdsburg in a later decision, the Board found that a long-standing past practice allowing a
union president paid time
off
from his work duties in order to attend the employer's governing
board meetings could not be unilaterally tenninated by the employer because such a change
impacted both wages and hours
of
work. (Compton Comniunity College District (1990) PERB
Decision No. 790, see proposed decision pp. 19-21 (Compton).)
Here, the released time authorized under section 12.19 is
of
the precise character as that
found negotiable in Healdsburg, supra, PERB Decision No. 375, as it permits the Association
president to be released from duty in order to participate in "district/school meetings,
educate/train staff, visit school sites, improve community relations, and perform other
18

functions necessary for carrying out his/her duties." As in Compton, supra, PERB Decision
No. 790, the policy change in question here concerned a matter within the scope
of
representation because it directly impacted the hours
of
employment
of
Association presidents.
Thus, the District was required to give proper notice and the opportunity to bargain before
implementation
of
the change in policy.
B. 	The Employer Implemented the Change Without Fulfilling the Bargaining Obligation
The District contends that the Association waived its right to bargain over the
termination
of
section 12.19 released time because the Association did not submit a written or
verbal bargaining demand over the proposed change to the District.
13
An employer asserting a
defense
of
waiver
by
inaction has the burden
of
proof to demonstrate by a preponderance
of
evidence that it gave the union notice and opportunity to bargain over the proposed change and
the union failed to act. (Fairfield-Suisun Un(fied School District (2012) PERB Decision
No. 2262 (Fairfield-Suisun.) 	A waiver
of
a union's right to bargain must be clear and
unmistakable and therefore is not lightly inferred. (Oakland Unified School District (1982)
PERB Decision No. 236.) In order to be found sufficient, the employer's notice
of
a proposed
change must allow a reasonable amount
of
time for the exclusive representative to decide
whether to make a demand to negotiate. (Victor Valley Union High School District (1986)
PERB Decision No. 565.) What constitutes a "reasonable amount
of
time" necessarily depends
upon the individual circumstances
of
each case. (Ibid.) 	The District here has not met its
burden.
As previously noted, the Association did not receive notice
of
the District's clear intent
to terminate the released time policy until April 14, 2011. The policy was actually
13
Although Goins testified that she believed the Association submitted a written
demand to bargain sometime in the spring of 2011, because she could not recall any details
over the demand and it was not produced for the record, her assertion is not credited.
19

discontinued four days later. Four days does not provide a reasonable opportunity to bargain.
(See, e.g., Arvin Union School District (1983) PERB Decision No. 300; Sutter Union
High
School District (1981) PERB Decision No. 175.) However, even
if
the short period
of
time
could be deemed a reasonable opportunity, there was no waiver ofrights here because
the
Association had no obligation to request bargaining under these circumstances.
PERB has consistently held that when an employer has made a finn decision to
make
a
change in policy, the failure to request bargaining will not be considered a waiver
of
that
right
because such a request would be futile. 	(Fairfield-Suisun, supra, PERB Decision No. 2262
[ notice
of
an agenda indicating a drug testing policy would be effective retroactively rendered
negotiations futile].) Futility is demonstrated here, because the District's letter to Setterlund
unambiguously informed the Association that the released time policy was to be terminated by
a certain date. This situation is factually similar to that in Fall River Joint Unified
School
District (1998) PERB Decision No. 1259. In that case, the employer argued that the union
waived its right to bargain after failing to make a bargaining demand regarding a special
education teacher "swap" program. The employer had issued letters to affected teachers
informing them that their assignments were to be changed as a result
of
the program, and the
union may have known about these letters. The Board rejected the waiver argument, however,
finding that any request to bargain would have been futile as the letters clearly demonstrated
that the employer had decided to implement the program via the change in assignments. 	(Ibid.;
see also State
of
Calzfornia (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-
S.) Similarly, in this case, the April 14, 2011 letter to Setterlund clearly demonstrated that the
District had already decided to tenninate released time under section 12.19. At that point, with
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the decision made, there was nothing left to bargain over. Accordingly, it cannot be found that
the Association waived its right to bargain by failing to make a demand. 14
It is undisputed that the policy change here was implemented without bargaining with
the Association. By doing so, the District violated its duty to negotiate in good faith.
REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA.
EERA section 3541.S(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
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
The District has violated EERA section 3543.S(a), (b) and (c) by unilaterally
terminating the policy in section 12.19 providing 40 percent released time to the Association
president without providing adequate notice and opportunity to bargain. The appropriate
remedy in such a case is to order the District to rescind the policy change and to return to the
status quo ante. (Desert Sands Unified School District (2010) PERB Decision No. 2092;
Rio Hondo Community College District (1983) PERB Decision No. 292.)
In addition, the traditional make-whole remedies in a unilateral change case are
ordered. Such remedies may be different for each affected unit employee depending on the
harm they suffered, if any, from the employer's change in policy. Hann may be demonstrated
14 Moreover, even if a bargaining demand would not have been futile under the
circumstances, "neither party to a collective bargaining agreement has a duty to negotiate over
any matter covered by the agreement during its term (subject, of course, to reopener
provisions.)" (Los Rios Community College District (1988) PERB Decision No. 684, p. 14;
citations omitted.) There is no dispute that the 2008-2011 CBA containing section 12.19 was
in full effect on April 14, 2011 when the District unilaterally decided to terminate the policy
contained therein. Thus, the Association was under no duty to bargain over that provision at
that time simply because the District desired to alter the terms of the negotiated agreement.
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to the extent that an Association president may have been forced to use his or her own
time
to
perform the duties formerly accomplished during the 40 percent released time. Any financial
losses should be augmented with interest at a rate
of
7 percent per annum. (See Journey
Charter School (2009) PERB Decision No. 1945a.) A negotiated solution is the preferred
method for detennining such damages, and the parties are hereby ordered to exhaust
such
means within a 60 day period before submitting the matter for compliance.
Finally, it is appropriate that the District be ordered to post a notice incorporating the
tenns
of
this order at all locations where notices to certificated employees are customarily
posted. Posting such a notice, signed by an authorized agent
of
the District, will inform
employees that the District acted in an unlawful manner, is being required to cease and desist
from that activity, and will comply with the order. It effectuates the purpose
of
EERA that
employees be informed
of
the controversy and the District's willingness to comply with the
ordered remedy. (Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact, conclusions oflaw, and the entire record in this
case, it is found that the Centinela Valley Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c). The District violated EERA by unilaterally tenninating a policy in the collective
bargaining agreement at Article 12, section 12.19, providing 40 percent released time to the
president
of
the Centinela Valley Secondary Teachers Association (Association.) All other
allegations in the complaint are dismissed.
Pursuant to section 3541.S(c)
of
the Government Code, it is hereby ORDERED that the
District, its governing board and its representatives shall:
A. CEASE AND DESIST FROM:
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1.	
Failing to negotiate in good faith by enacting unilateral policy changes concerning
issues within the scope
of
representation.
2.	
Interfering with the right
of
unit employees to be represented by the Association.
3.	
Denying the Association its right
to
represent unit employees.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Rescind the policy change terminating 40 percent released time for the
Association president and return to the status quo ante.
2.	
Return unit employees to their status prior to the unilateral change in policy and
make them whole for losses suffered,
if
any, as a result
of
the District's unlawful action. 	Any
financial losses should be augmented by interest at the rate
of
7 percent per annum.
3. 	Regarding the make-whole remedy, this order shall be stayed for 60 days to
provide the parties an opportunity to meet and confer over a mutually acceptable remedy. 	If,
however, the parties are unable to reach agreement within 60 days, this order shall take effect.
In such a case, the District shall immediately notify the General Counsel
of
the Public
Employment Relations Board (PERB or Board), or the General Counsel's designee, so that
compliance proceedings may be initiated.
4. 	Within 10 workdays
of
the service
of
a final decision in this matter, post at all
work locations where notices to employees represented by the Association are customarily
posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
the District, indicating that 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.
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5. 	Written notification of the actions taken to comply with this Order shall be made
to the General Counsel of PERB, or to 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 served concurrently on the Association.
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:
Public Employment Relations Board
Attention: Appeals Assistant
103 1 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 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
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. 	(Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
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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).)
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