Willits Unified School District (PERB 1521E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

WILLITS TEACHERS ASSOCIATION,

CTA/NEA,
Charging Party, Case No. SF-CE-2254-E
v. PERB Decision No. 1521
May 8, 2003

WILLITS UNIFIED SCHOOL DISTRICT,

Respondent.

Appearances: California Teachers Association by Ramon E. Romero, Attorney, for Willits
Teachers Association, CTA/NEA; School and College Legal Services of California by
Patrick D. Sisneros, Attorney, for Willits Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the Willits Teachers Association, CTA/NEA (Association) from a Board agent’s
dismissal (attached) of its unfair practice charge. The charge alleges that an arbitrator’s award
denying a grievance for an alleged unilateral change by the Willits Unified School District
(District) is repugnant to the Educational Employment Relations Act (EERA).' The charge

requests that a complaint be issued against the District for an alleged violation of EERA

section 3543.5(c).”

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

* Section 3543.5(c) provides, in relevant part:

The Board has reviewed the entire record in this matter, including the original unfair
practice charge, the Board agent's warning and dismissal letters, the Association's appeal and
the District's response. The Board finds the warning and dismissal letters to be free from
prejudicial error and adopts them as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-2254-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
It shall be unlawful for a public school employer to do any
of
the
following:
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
03
I !
8th
Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax:
(916) 327-6377
July 24, 2002
Ramon
E.
Romero, Staff Attorney
California Teachers Association
PO
Box
921
Burlingame, CA 94011-0921
Re: 	Willits Teachers Association
v.
Willits Unified School District
Unfair Practice Charge No. SF-CE-2254-E
DISMISSAL LETTER
Dear Mr. Romero:
GRAY
DA
VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 28, 2002. 	The Willits Teachers Association alleges that the
Willits Unified School District violated the Educational Employment Relations Act (EERA) 1
sections 3543.5(a), (b) and (c) by making an unlawful unilateral change.
I indicated to you in my attached letter dated July 11, 2002, that the above-referenced charge
did not state a prima facie case. 	You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to July 22, 2002, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my July 11, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
1 EERA is codified at Government Code section 3540 et seq. 	The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 l 00 l et seq.

SF-CE-2254-E
July 24, 2002
Page 2
( 	(
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position ofeach other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)

SF-CE-2254-E
July 24, 2002
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By	
~t:'r~--
Marie A. Nakamura
Regional Attorney
Attachment
cc: Patrick D. Sisneros

---------------=='
	________
......;
____	(
.
"'·
STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
03
l I 8th Street
Sacramento,
CA 95814--4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
July 11, 2002
Ramon
E.
Romero, Staff Attorney
California Teachers Association
PO
Box 921
Burlingame, CA 94011-0921
Re: 	Willits Teachers Association
v.
Willits Unified School District
Unfair Practice Charge No. SF-CE-2254-E
WARNING LETTER
Dear Mr. Romero:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 28, 2002. 	The Willits Teachers Association alleges that the
Willits Unified School District violated the Educational Employment Relations Act (EERA) 1
sections 3543.S(a), (b) and (c) by making an unlawful unilateral change.
With this charge, you seek to establish that an arbitrator's award concerning an alleged breach
of
the parties' collective bargaining agreement is repugnant to EERA.
The Willits Teachers Association (WTA) is the exclusive representative
of
certificated
employees in the District. The District and WT A are parties to a collective bargaining
agreement effective from July
1,
1999 through June 30, 2002.
Michael Harrison is a resource specialist at Blosser Lane Elementary School. As a resource
specialist, Mr. Harrison schedules and attends Individualized Education Program (IEP)
meetings for students and teachers at his school. IEP meetings are required by state and
federal law for all special education students. At such meetings a representative other than the
student's teacher is designated by the District to attend. Program specialists may be designated
by the District to attend such meetings.
Bob Lounibos is fifth grade teacher at Blosser Elementary School. During IEP meetings, the
student's teacher is required to attend. During the 2000-2001 school year, Mr. Lounibos
attended approximately ten IEP meetings. The majority of those meetings took place after the
regular workday.
During the 2001-2002 school year, bargaining unit members became concerned about the
increasing number of IEP meetings and the fact that most of them were scheduled after regular
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2254-E
July 11, 2002
Page 2
work hours. Early in the school year, Mr. Lounibos and other teachers expressed their
concerns about duties assigned to be performed after regular workday hours.
On October
11
and October 12, 2000, Mr. Lounibos attended IBP meetings that he was
assigned to and occurred after the regular workday. 	On October 13, 2000 he submitted a
supplemental timesheet for time spent at those IBP meetings. The District subsequently
denying his request for pay for those duties.
During the 2000-2001 school year, Mr. Harrison attended approximately forty IBP meetings
after the regular workday. He was directed to do so by the principal at Blosser. On October
20, 2000, after learning that he should be paid for duties assigned beyond the regular workday,
Mr. Harrison began submitting supplemental timesheets for pay for IBP meetings held after the
regular workday. The District subsequently denied his request for pay for those duties.
On October 31, 2000; Mr. Lounibos filed a grievance on behalf
of
himself and other similarly
situated teachers, who were not paid for attending IBP and Student Study Team (SST)2
meetings after the regular workday. The grievance alleged a violation
of
Article XVIII,
section 2,
of
the parties' agreement, which provides:
2.
	individuals who perform duties outside
of
the school day and
(sic) will be paid the same hourly rate, with exceptions noted in
Appendixes A-1, A-2, and A-3.3
The grievance proceeded through the designated levels and ended in binding arbitration. 	On
October 3, 2001, Arbitrator Franklin Silver conducted a hearing regarding the grievance. Both
parties presented evidence during the hearing and submitted post-hearing briefs to the
Arbitrator.
On February 18, 2002, the Arbitrator issued his decision denying the grievance. In his
decision the Arbitrator examined the language
of
Article XVIII, section 2 and concluded that
the word "duties" in that section
of
the agreement was latently ambiguous. Because
of
the
latent ambiguity, the Arbitrator decided to consider past practice in order to determine the
parties' mutual understanding
of
the scope
of
duties not listed in the appendices, and still
subject to extra duty pay. The Arbitrator concluded that the past practice was for teachers to
attend IBP and SST meetings without additional compensation and that such a longstanding
past practice represented a mutual acknowledgement that IEP and SST meetings were not
subject to Article VIII, section 2
of
the contract.
2 SST is a team that reviews concerns about student progress. The team generally
consists of at least the student's regular classroom teacher and an administrator. SST meetings
often occur after the regular workday.
3 IBP and SST meetings are not noted as exceptions.

SF-CE-2254-E
July 11, 2002
Page 3
Discussion
Although you allege that Arbitrator Silver's decision is repugnant to EERA, you have
not
established post arbitration repugnancy.
Government Code section 3541.5(a)(2) provides in pertinent part:
(2)
	... The board
shall have discretionary jurisdiction to review
the settlement
or
arbitration award reached pursuant to the
grievance machinery solely for the purpose
of
determining
whether it is repugnant to the purposes
of
this chapter.
	If
the
board
finds that the settlement or arbitration award is repugnant
to the purposes
of
this chapter, it shall issue a complaint on the
basis
of
a timely filed charge, and hear and decide the case
on
the
merits: Otherwise, it shall dismiss the charge. The board shall,
in determining whether the charge was timely filed, consider the
six-month limitation set forth in this subdivision to have
been
tolled during the time it took the charging party to exhaust the
grievance machinery.
In Dry
Creek Joint Elementary School District (1980) PERB Order No. Ad-81, PERB adopted
the NLRB post-arbitration deferral standard. PERB will defer to an arbitration award
if
the
matters raised in the charge were presented to, and considered by the arbitrator; the arbitration
proceedings were fair and regular; the parties agreed to be bound
by
the award and the award is
not repugnant to the act.
Unless the arbitrator's award is "palpably wrong," and not susceptible to an interpretation
consistent with EERA, the Board will defer to the arbitrator's award. (Yuba City Unified
School District (1995) PERB Decision No. 1095.) The Board has stated that the possibility
that PERB may have reached a different conclusion in interpreting the parties' agreement does
not automatically render the award repugnant. 	(Ibid) Where a claim
of
unilateral change is
grounded in the contract, and there is no suggestion that the arbitrator failed to consider all
of
the evidence relevant to the alleged repudiation
of
the contractual provisions, the arbitrator's
award is not repugnant to the Act. Fremont Unified School District (1994) PERB Decision
No. 1036.
You argue that because the Arbitrator's decision is contrary to PERB precedent, the decision is
repugnant to EERA. You cite Marysville Joint Unified School District (1983) PERB Decision
No. 314 in support
of
your position that when a party to a collective bargaining agreement has
a clear and unambiguous right under such agreement, that party may enforce the contractual
right even
if
it has failed to do so for an extended period
of
time.
If the conduct underlying this charge had not been deferrable, you could have filed a unilateral
change charge with PERB. During the investigation, the Board Agent would have looked at
the same relevant facts as did the Arbitrator. 	The Board Agent would have examined Article

SF-CE-2254-E
July 11, 2002
Page 4
XVIII, section 2
of
the agreement to determine
if
the Article established a clear policy.	
If
the
Board Agent concluded, as did the Arbitrator, that the meaning
of
the Article was unclear, the
Board Agent would have examined the past practice
of
the parties and discovered that
certificated employees
in
the District had never
been
paid for attending IEP and SST meetings
outside
of
the school day. Based on this analyses the Board Agent would have found no
unilateral change violation under these fact, which supports the finding that the Arbitrator's
decision is not repugnant to the Act.
Because the above analysis is somewhat speculative, it should also be noted that PERB might
have reached a different conclusion than that
of
the Arbitrator. This, however, does not render
the arbitration award repugnant to the Act. According to the charge, through the introduction
of
evidence and briefs the Arbitrator considered the meaning
of
Article XVIII, section 2
of
the
agreement and the proceeding was fair and regular. There is no suggestion that the arbitrator
failed to consider all
of
the evidence relevant to the alleged repudiation
of
t~e contractual
provision. Further, the Arbitrator's determination that past practice should be used to
determine the meaning
of
what he deemed a "latent ambiguity" in the agreement was not
palpably wrong. Thus you have not established that the arbitrator's decision was repugnant to
EERA.
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
	If
I do not receive an
amended charge or withdrawal from you before Monday, July 22, 2002, I shall dismiss your
charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
Marie A. Nakamura
Regional Attorney
MAN