Standard School District (PERB 1775E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANDARD SCHOOL DISTRICT,
Charging Party,
v.
STANDARD TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
Case No. LA-CO-1081-E
PERB Decision No. 	1775
A u g u s t 	2 6 , 	2005
Appearances: Miller, Brown & Dannis by David G. Miller, Attorney, for Standard School
District; California Teachers Association by Robert E. Lindquist, Attorney, for Standard
Teachers Association, CTA/NEA.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Standard Teachers Association (Association) to the
proposed decision (attached) of an administrative law judge (ALJ). 	The ALJ concluded that
the Association violated the Educational Employment Relations Act (EERA)1 by unilaterally
changing policy when it refused to participate in the local peer assistance and review (PAR)
program.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, complaint, stipulated record, the Association's statement of exceptions and the
EERA is codified at Government Code section 3540, et seq.
e	 ..
.

Standard School District's response thereto.2 The Board finds the ALJ's findings of fact and
conclusions of law to be free of prejudicial error and adopts the proposed decision as the
decision of the Board itself.
DISCUSSION	- . . . -.
The Association attaches to its appeal, the decision of a Commission on Professional
Competence (Commission) dated February 4, 2002, in a matter involving a certificated
employee of the Stockton Unified School District. 	The Association asserts that this new
evidence may be admitted and considered by the Board pursuant to paragraph 19 of the
stipulation of the parties, which states, in relevant part:
The Administrative Law Judge shall take judicial notice of the
California Peer Assistance and Review Program for Teachers
enabling legislation [citation] and any relevant legislative history
pertaining thereto submitted by the parties. [3]
Pursuant to the stipulation of the parties, the ALJ shall take judicial notice of only the
enabling legislation and any relevant legislative history pertaining to the PAR. The new
evidence consists of an administrative decision issued by the Commission of an entirely
different school district, regarding a certificated employee. 	It does not pertain to any relevant
legislative history. According to the stipulation of the parties, it falls outside the purview of
the ALJ.
The District's request for attorneys' fees is denied.
3In a cover letter to the ALJ accompanying the stipulation, the Association's attorney
states, in part:
Upon your approval, this Stipulation will comprise the majority
of the factual record of the case. 	The remainder of the record
would consist of any relevant 'legislative facts,' lodged by the
parties, regarding the legislative history of the California Peer
Assistance and Review Program for Teachers enabling
legislation.
2

Assuming for the purpose of argument that the decision of the Commission is related to
the legislative history of the PAR, which it is not, it was issued on February 4, 2002 and should
have been available to the Association well before the ALJ closed the record on December 1,
2003. The Association does not state any reason as to why the new evidence could not have
been presented to the ALJ for his review and consideration before the case was submitted for
decision. There is no allegation that this decision constitutes newly discovered evidence which
was not previously available and could not have been discovered with the exercise of
reasonable diligence. 	(Yolo County Superintendent of Schools (1990) PERB Decision
No. 838; San Mateo Community College District (1985) PERB Decision No. 543.) Thus, the
new evidence is rejected and will not be considered by the Board.
ORDER
Based on the findings of fact, conclusions of law and the entire record in this case, the
Public Employment Relations Board (PERB) concludes that the Standard Teachers
Association, CTA/NEA (Association) violated the Educational Employment Relations Act
(EERA), Government Code section 3543.6(c), by unilaterally changing a negotiated policy on
peer assistance and review (PAR).
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the Association, its
governing board and its representative shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing PAR policy.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. Rescind its repudiation of the negotiated PAR policy.
w	3

2. 	Within ten (10) work days following the date this decision is no longer
subject to appeal, post at all work locations where notices to bargaining unit employees are
customarily posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the Association, indicating that the Association will comply
with the terms of this Order. 	Such posting shall be maintained for a period of thirty (30)
consecutive work days. Reasonable steps shall be taken to ensure that the Notice is not
reduced in size, altered, defaced or covered with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The Association
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 the Standard
School District.
Chairman Duncan and Member Whitehead joined in this Decision.
44

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-CO-1081-E, Standard School District v.
Standard Teachers Association, CTA/NEA in which all parties had the right to participate, it
has been found that the Standard Teachers Association, CTA/NEA, violated the Educational
Employment Relations Act (EERA), Government Code section 3543.6(c), by unilaterally
changing a negotiated policy on peer assistance and review (PAR).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing PAR policy.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. Rescind the repudiation of the negotiated PAR policy.
Dated: 	STANDARD TEACHERS ASSOCIATION,
CTA/NEA
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
STANDARD SCHOOL DISTRICT,
Charging Party,
V.
STANDARD TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-1081-E
PROPOSED DECISION
(3/29/04)
Appearances: 	Miller Brown & Dannis by David G. Miller, Attorney, for Standard School
District; California Teachers Association by Robert E. Lindquist, Attorney, for Standard
Teachers Association, CTA/NEA.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a school district alleges that a teachers association unilaterally and
unlawfully changed a negotiated policy on peer assistance and review. 	The association denies
any unlawful conduct.
The Standard School District (District) filed an unfair practice charge against the
Standard Teachers Association, CTA/NEA (Association) on November 19, 2001. The Office
of the General Counsel of the Public Employment Relations Board (PERB) issued a complaint
on July 16, 2002, to which the Association filed an answer on August 8, 2002.
The parties chose not to participate in an informal settlement conference, and PERB
scheduled a formal hearing for November 7, 2002. The hearing was postponed, however, due
to illness. Ultimately, the parties agreed to a stipulated record, which they filed with PERB on
October 14, 2003. With the receipt of the parties' briefs on December 1, 2003, the case was
submitted for decision.

FINDINGS OF FACT
As stated above, the parties agreed to a stipulated record. The following findings of
fact are based entirely on the parties' stipulation. These findings are intended to summarize
and highlight the most relevant stipulated facts, and not to delete, alter or interpret any part of
the parties' stipulation.
The District is a public school employer under the Educational Employment Relations
Act (EERA).1 The Association is an employee organization under EERA and is the exclusive
representative of an appropriate unit of the District's certificated employees, including all
classroom teachers.
The District and the Association were parties to a collectively negotiated agreement
(Agreement) for the period 1998-2001. Pursuant to contractual reopeners for the 2000-2001
school year, the parties agreed on or about January 31, 2001, to a peer assistance and review
(PAR) program, which was described in a new Article XV of the Agreement. Paragraph A of
the article stated as follows:
The California Peer Assistance and Review Program (PAR) for
Teachers provides a mechanism by which exemplary classroom
teachers assist other classroom teachers in the areas of subject
matter knowledge, teaching methods, and teaching strategies.
Peer assistance activities are provided by "Consulting Teachers"
to "Participating Teachers." Consulting Teachers are selected
and designated by the Joint Teacher-Administrator Peer
Assistance and Review Panel ("Joint Panel"). 	A Participating
Teacher is a classroom teacher who is referred to and required to
participate in the PAR program as a result of an unsatisfactory
rating of the employee's performance in any one or more of the
following areas: 	1) teaching methods, 2) teaching instruction. A
classroom teacher may request assistance through the PAR
process as a "Voluntary Participant" subject to the provisions of
the law and the agreement of the Joint Panel.
EERA is codified at Government Code section 3540 and following.
2

Under Paragraph B of the article, oversight and guidance of the PAR program was to be
provided by the Joint Panel of teachers and administrators.
Paragraph B of the article stated in part that the majority of the Joint Panel "shall be
certificated classroom teachers who have been chosen by other certificated classroom teachers"
and that classroom teacher membership on the Joint Panel "shall be determined by the
Executive Board of the Association." Paragraph B also stated:
The Joint Panel shall be composed of five members, three current
classroom teachers and two administrators. 	The term of a Joint
Panel member who is a classroom teacher shall be three years,
except that the first terms of the teacher members shall be one
one-year term, one two-year, and one three-year term.
Paragraph B also provided that the Joint Panel "shall elect a member as chair who shall serve
for a two-year term." Among the duties of the Joint Panel were to adopt rules and procedures
and distribute them "at the beginning of each school year" and to make an annual program
impact evaluation and present it "not later than June 1 of each school year."
Under Paragraph C of the article, Consulting Teachers were to be assigned to assist
Participating Teachers in need of development in teaching methods or instruction.
Paragraph C stated in part that a Consulting Teacher "is a current classroom teacher who
applies for that designation and is selected by the Joint Panel." Paragraph E of the article
stated in part, "Referral [of a Participating Teacher] to participate in the PAR program is
mandatory."
Under Paragraph C of the article, the duties of a Consulting Teacher included preparing
a "Plan of Consultative Assistance" and timeline for a Participating Teacher. 	The projected
completion date for the timeline was to be "at the close of the next school year." A Consulting
3

Teacher was to submit a written peer review report at least every four weeks and a final report
for the school year "not later than March 1."
Article XV concluded with the following paragraphs:
J. 	Continuing Discussion Regarding Voluntary Participants.
The District and the Association agree to continue discussions
on the subject of providing PAR services to permanent
teachers who volunteer.
K. Reopening This Article. The parties agree that this Article
shall be reopened if either Education Code section 44500 et
seq. or the State's implementation guidelines or regulations
are modified in any manner that adversely impacts a term of
the Article. The parties further agree that this Article may be
reopened at any time by mutual agreement. Finally, the
parties agree that reopening the Article does not necessarily
reopen the Collective Bargaining Agreement.
L. 	Termination of This Article. 	If State funding for the PAR
program is eliminated, this Article shall expire and have no
force or effect without the need for further action by either the
District or the Association. 	The District shall notify the
Association in writing that the PAR program funding has
been eliminated.
Article XV itself did not otherwise address continuing discussion, reopening or termination of
the article.
The 1998-2001 Agreement of which Article XV became a part also included an
Article XVII (Conclusion). 	That article's Paragraph D (Duration of Agreement) stated in part:
This agreement shall be in full force and effect from the date of
ratification by the Board of Trustees through midnight on June
30, 2001, at which time it shall expire and become null and void.
Article XVII's Paragraph C, however, stated as follows:
Continuation of Economic Benefits. 	Upon expiration of this
Agreement or of any interim salary schedule or health and
welfare benefit contribution, teachers who are reemployed for the
following school year shall be paid the same salary as for the
final (or interim) year of the Agreement, including columns and
A
	4

steps where eligible, until such time as a new Agreement is
ratified by the parties or the duty to bargain has been completed.
1. 	Dollar amounts specified herein for the payment of health and
welfare benefits shall be the same pursuant to this paragraph.
Article XVII did not otherwise address the termination or continuation of any term of the
agreement.
In the spring of 2001, the parties began negotiations for a successor to the 1998-2001
Agreement. On July 26, 2001, when negotiations were still ongoing, the Association sent the
District a memo stating in part:
This memo is to remind you that the Collective Bargaining
Agreement in the Standard School District expired on June 30,
2001.
One of the legal implications of this fact is that the District may
no longer lawfully operate a local Peer Assistance and Review
Program (local "PAR" program), may no longer expend public
funds on Peer Assistance and Review, and may no longer accept
state appropriations to fund a local PAR program.
The memo demanded that the District "cease and desist from further operation of its local PAR
program." The parties' stipulation does not state if or how the District responded to the memo.
On September 5, 2001, the Association sent the District a letter stating in part:
This is to officially inform you that because we have not settle[d]
our 2001-2002 contract the Standard Teachers Association (STA)
will not be participating in Peer Assistance and Review (PAR).
As you [k]now the PAR issue is contractual and lawyers for the
California Teachers Association have advised STA that without a
settlement of the contract we have no PAR agreement and STA
should not be participating.
The parties' stipulation states that the District did not respond to the letter, other than by filing
its unfair practice charge on November 19, 2001.
5

ISSUE
Did the Association unilaterally and unlawfully change a negotiated policy on peer
assistance and review?
CONCLUSIONS OF LAW
Relevant Statutory Provisions
EERA section 3543.6(c) makes it unlawful for an employee organization to:
Refuse or fail to meet and negotiate in good faith with a public
school employer of any of the employees of which it is the
exclusive representative.
EERA section 3543.5(c) similarly makes it unlawful for a public school employer to "[r]efuse
or fail to meet and negotiate in good faith with an exclusive representative."
EERA section 3543.2(a) states in part:
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,...
EERA section 3543.2(b) states:
Notwithstanding Section 44944 of the Education Code, the public
school employer and the exclusive representative shall, upon
request of either party, meet and negotiate regarding causes and
procedures for disciplinary action, other than dismissal, including
a suspension of pay for up to 15 days, affecting certificated
employees. 	If the public school employer and the exclusive
representative do not reach mutual agreement, then the provisions
of Section 44944 of the Education Code shall apply.
EERA section 3543.2(c), (d), and (e) similarly states that the provisions of Education Code
sections 44955 and 45028 shall apply in the absence of mutual agreement. EERA section 3540
otherwise provides that EERA "shall not supersede other provisions of the Education Code."
6

Generally, the evaluation and assessment of the performance of certificated employees
has been governed by Education Code sections 44660 through 44665, also known as the Stull
Act. 	Section 44660 calls on school districts to develop and adopt objective evaluation and
assessment guidelines. 	Section 44662 requires that school districts evaluate and assess
employee competency as it relates to pupil progress, instructional techniques, and other
specified matters. 	Section 44663 requires that evaluation and assessment be reduced to writing
and discussed with the employee before the end of the school year. 	Section 44664 requires
that evaluation and assessment be done at least every other year and provides that any
evaluation containing an unsatisfactory rating in teaching methods or instruction "may
include" the requirement of participation in an improvement program.
In 1999, the Legislature established the California Peer Assistance and Review Program
for Teachers (CPARPT), in Education Code sections 44500 through 44508. The Legislature's
declared intent was to establish "a critical feedback mechanism that allows exemplary teachers
to assist veteran teachers in need of development in subject matter knowledge, or teaching
strategies, or both." (Stats. 1 st Ex. Sess. 1999-2000, ch. 4, §1.) Any participating school
district was expected to "coordinate its employment policies and procedures for that program
with . . . the biennial evaluations of certificated employees required pursuant to Section 44664
[of the Stull Act]." (Ibid.)
Education Code section 44500(a) formally establishes the CPARPT and states:
.. . The governing board of a school district and the exclusive
representative of the certificated employees in the school district
may develop and implement a program authorized by this article
that meets local conditions and conforms with the principles set
forth in subdivision (b).
Section 44500(b)(l) states in part that a teacher participant shall:
7

volunteer to participate in the program or be referred for
participation in the program as a result of an evaluation
performed pursuant to subdivision (c) of Section 44664 [of the
Stull Act]. In addition, teachers receiving assistance may be
referred pursuant to a collectively bargained agreement.
Section 44500(b)(2) requires in part that performance goals for a teacher be "consistent with
Section 44662 [of the Stull Act]."
Education Code section 44501 states that a consulting teacher "shall meet locally
determined criteria" as well as certain specified qualifications. 	Section 44502 requires that the
governance structure of a local program include a joint teacher administrator peer review
panel. 	The majority of the panel is to be "composed of certificated classroom teachers chosen
to serve on the panel by other certificated classroom teachers." Among the panel's duties are
to select consulting teachers and to "annually evaluate" the impact of the local program.
Education Code section 44503(a) states in relevant part:
The governing board of a school district that accepts state funds
for purposes of this article agrees to negotiate the development
and implementation of the program with the exclusive
representative of the certificated employees in the school district,
if the certificated employees in the district are represented by an
exclusive representative.
Education Code section 44504(a) states in part that a school district that elects to participate in
CPARPT shall certify to the California Superintendent of Public Instruction that it "has
implemented" a local program. 	Section 44504(b) and (c) provides that a district that does not
elect to participate is not eligible for funding pursuant to a variety of other programs, and that
it must report annually at a regularly scheduled meeting of its governing board on the rationale
for not participating.
Under Education Code section 44505(b) and (d), the California Superintendent of
Public Instruction "may request a copy of the signature page of the collective bargaining
8

agreement implementing the program required pursuant to subdivision (a) of Section 44503,"
in addition to certification by the school district that it "has implemented" a local program by
August 1, 2000, or July 1, 2001. Under Education Code section 44506(c)(2) and (3), the
California Superintendent of Public Instruction shall apportion funding "annually thereafter" to
each school district that certificated the implementation of a local program by August 1, 2000,
or July 1, 2001. The CPARPT legislation does not address decertification or recertification of
a local program.
The legislation that established the CPARPT also amended sections of the Stull Act.
Education Code section 44662 was amended to include the following subdivision (d):
Results of an employee's participation in the Peer Assistance and
Review Program for Teachers established by Article 4.5
(commencing with Section 44500) shall be made available as part
of the evaluation conducted pursuant to this section.
Meanwhile, the following language was added to Section 44664(c):
If a district participates in the Peer Assistance and Review
Program for Teachers established pursuant to Article 4.5
(commencing with Section 44500), any certificated employee
who receives an unsatisfactory rating on an evaluation performed
pursuant to this section shall participate in the Peer Assistance
and Review Program for Teachers.
As noted above, this section had previously provided only that an unsatisfactory evaluation
"may include" the requirement of participation in an improvement program.
Unilateral Change
In determining whether a party has violated its duty to meet and negotiate in good faith,
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. The usual criteria are: 	(1) the employer implemented a
9

change in policy concerning a matter within the scope of representation, and (2) the change
was implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations. 	(Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
Although this test is written as if the employer committed a unilateral change, the
standard is also applicable to a unilateral change by an exclusive representative. (SEIU Local
998 (2004) PERB Decision No. 1580-M; University Council-American Federation of Teachers
(1992) PERB Decision No. 922-H.)2 Under EERA sections 3543.5(c) and 3543.6(c),
employers and exclusive representatives have the same duty to meet and negotiate in good
faith, and their conduct should be subject to the same test.
In its brief, however, the Association argues that a local PAR program is not a term or
condition of employment and therefore not a matter within EERA's scope of representation
subject to unlawful unilateral change. 	The Association first points out that the CPARPT
legislation does not state that a local program is a "term and condition of employment." It is
true that the legislation does not use those words. It is also true, however, that the legislation
specifically requires a school district to "negotiate the development and implementation" of a
local program (Ed. Code, §44603(a)) and authorizes the California Superintendent of Public
Instruction to "request a copy of the signature page of the collective bargaining agreement
implementing the program" (Ed. Code, §44505). The legislation also provides that
participating teachers "may be referred pursuant to a collectively bargained agreement"
(Ed. Code, §44500 (b) (1)). For such matters to be negotiated as part of a collective bargaining
2 In its brief, the Association cites El Dorado County Teachers Association, CTA/NEA
(1989) PERB Decision No. 759, for the proposition that PERB does not recognize unilateral
changes by exclusive representatives. What PERB actually said (in footnote 1) was that it had
"not yet addressed that issue." PERB has since addressed the issue.
10

agreement, they would necessarily seem to be terms or conditions of employment within the
scope of representation.
One may compare the legislation establishing the CPARPT with the legislation that
established the earlier California Mentor Teacher Program (CMTP) in former Education Code
section 44490 through 44497. (Stats. 1983, ch. 498.) Before those Education Code sections
were repealed by the terms of Education Code section 44504 of the CPARPT legislation,
Education Code section 44495(d) specifically stated:
The subject of participation by a school district or an individual
certificated classroom teacher in a mentor teacher program shall
not be included within the scope of representation in collective
bargaining among a public school employer and eligible
employee organizations.
If the Legislature had intended for a local PAR program to be similarly outside the scope of
representation, it presumably would have said so in the CPARPT legislation.
The Association also argues that, whatever the CPARPT legislation may or may not
say, EERA itself does not include a local PAR program within EERA's scope of
representation. It is true that EERA section 3543.2, which governs the scope of representation,
does not specifically mention PAR programs or Education Code sections 44500 through 44508
of the CPARPT legislation. For that matter, EERA section 3543.2 also does not mention
Education Code sections 446600 through 44665 of the Stull Act. EERA section 3543.2(a)
does state in part, however, that the scope of representation shall be limited to "matters relating
to . . . terms and conditions of employment" and that terms and conditions of employment
include "procedures to be used for the evaluation of employees."
PERB's test for determining whether a subject, not specifically enumerated, is within
the scope of representation under EERA was set forth in Anaheim Union High School District
(1981) PERB Decision No. 177 (Anaheim). Under that test, a non-enumerated subject is
11

negotiable if (1) it 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 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 essential
to the achievement of the district's mission. 	This test was approved by the California Supreme
Court in San Mateo City School District v. Public Employment Relations Bd. (1983) 33 Cal.3d
850 [191 Cal.Rptr. 800].
Like the test for a unilateral change, the Anaheim test is written as if the employer's
conduct is at issue. PERB, however, has recently approved an adaptation of the third prong of
the test for cases like the present one in which a union's conduct is at issue. In such a case, the
third prong of the test is whether the union's obligation to negotiate would not significantly
abridge the union's freedom to exercise those managerial prerogatives essential to the
achievement of the union's mission. 	(California State Employees Association, SEIU Local
1000 (2004) PERB Decision No. 1601-S.)
It should be noted that under EERA section 3543.2(a) and the Anaheim test a matter
within scope need not itself be a "term and condition of employment;" it need only be related
(logically and reasonably) to such a term and condition. Thus, in order to be within scope, a
PAR program need not itself be an evaluation procedure; it need only be related (logically and
reasonably) to evaluation procedures (and meet the rest of the Anaheim test).
I conclude that a local PAR program is logically and reasonably related to evaluation
procedures. In establishing the CPARPT, the Legislature's explicit intention was to create a
"critical feedback mechanism" that school districts should "coordinate" with the biennial Stull
evaluations. (Stats. 1 st Ex. Sess. 1999-2000, ch. 4, §1.) Teachers are to be referred for
12

participation based on Stull evaluations, and their performance goals are to be consistent with
the Stull Act. (Ed. Code, §44500 (b) (1) and (2).) In establishing the CPARPT, the
Legislature amended the Stull Act itself, in part to require that the results of a teacher's
participation in a local PAR program be "made available" as part of a Stull evaluation. (Ed.
Code, §44662(d).) While the Stull Act had previously provided that an unsatisfactory
evaluation "may include" the requirement of participation in an improvement program, the
amended Stull Act provides that a teacher who receives an unsatisfactory evaluation "shall
participate" in a local PAR program. 	Such a program is thus related to and intertwined with
evaluation procedures.
With regard to the second prong of the Anaheim test (the necessity and appropriateness
of negotiations), I conclude that the Legislature has already answered the question in the
affirmative. 	As noted above, the CPARPT legislation requires a school district to "negotiate
the development and implementation" of a local PAR program (Ed. Code, §44603(a)), and also
authorizes the California Superintendent of Public Instruction to "request a copy of the
signature page of the collective bargaining agreement implementing the program" (Ed. Code,
§44505). Presumably the Legislature would not have required such negotiations if they were
not necessary and appropriate.
With regard to the third prong of the Anaheim test, I conclude that negotiating a local
PAR program would not significantly intrude upon a union's managerial prerogatives. 	In its
brief, the Association cites EERA section 3543.5(d) in arguing that:
a proposal to assign evaluation functions to unit members who
are the officers and officials of an employee organization would
create the kind of conflict of interest EERA's "domination,
support, or interference" prohibition was intended to prevent.
13

I find this argument unpersuasive on all points. Although the Legislature has required that the
results of a teacher's participation in a local PAR program be "made available" as part of a
Stull evaluation (Ed. Code, §44662(d)), I do not find that this necessarily assigns "evaluation
functions" to the consulting teacher.3 Nor do I find anything in the CPARPT, or in the nature
of a local PAR program, that requires consulting teachers (or joint teacher administrator peer
review panel members) to be "officers and officials of an employee organization." In short, I
find no inherent "conflict of interest" or "domination, support, or interference." I conclude
that a local PAR program meets all three prongs of the Anaheim test and is therefore within the
scope of representation under EERA.
PERB has long held that a party is precluded from making unilateral changes in the
status quo both during the term of a negotiated agreement and after that agreement expires,
until such time as the parties negotiate a successor agreement or they negotiate through
completion of the statutory impasse procedure. 	(Pittsburg Unified School District (1982)
PERB Decision No. 199; Modesto City Schools (1983) PERB Decision No. 291.) In its brief,
the Association nonetheless argues that the local PAR program in this case was a "creature of
contract" that expires with the parties' collective bargaining agreement. The Association
would analogize the PAR program to an arbitration clause, which PERB has held does not
generally continue in effect after expiration of a collective bargaining agreement. 	(State of
California, Department of Youth Authority (1992) PERB Decision No. 962-S (Youth
Authority).)
Indeed, the Agreement of the parties in this case provided (in Article XV,
paragraph C, section 4) that the "assistance provided by a Consulting Teacher shall not involve
the participation in nor the conducting of a Stull evaluation.
14

The Association's argument and analogy are unpersuasive. PERB's decision in Youth
Authority was based on "established contract principles that a party may not be compelled to
arbitrate a matter it did not agree to arbitrate." There are no such established principles
limiting the operation of a PAR program. 	On the contrary, the public policy established by the
CPARPT legislation strongly favors the operation of PAR programs, denying other funding to
non-participating school districts (Ed. Code, §44505(b)) and requiring them to report annually
on their rationale for not participating (Ed. Code, §44504(c)). The legislation provides funding
"annually thereafter" to districts that certify implementation of a local PAR program by
August 1, 2000, or July 1, 2001 (Ed. Code, §44506(c)(2) & (3)), and does not provide for
decertification of a local program.
It is true, of course, that the CPARPT legislation requires a school district "to negotiate
the development and implementation" of a local PAR program, in Education Code section
44503(a). It does not, however, require a district to negotiate the ongoing operation of a
program already implemented. 	Language elsewhere in the legislation indicates that
implementation is a distinct event, not a continuous process: 	a school district must certify to
the California Superintendent of Public Instruction that it "has implemented" a local program
(Ed. Code, §44505(a)).
There is nothing in the parties' Agreement to indicate that the parties intended the PAR
program to expire with the Agreement. 	Such an intention would be rather extraordinary, given
that the parties agreed to the PAR program on or about January 31, 2001, just five months
before their Agreement was to expire. 	Many of the features of the agreed PAR program could
barely be started, let alone completed, in those five months. Joint panel members would not be
able to complete even a one-year term, let alone a two-year or three-year term. If the Joint
Panel was dissolved, it could not distribute rules and procedures at the beginning of the 2001-
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2002 school year, let alone make an annual program impact evaluation by June 1 of that school
year. 	Consulting Teachers and Participating Teachers would not be able to complete their
established timelines at the close of the 2001-2002 school year, and there would be no
continuing discussion of voluntary participation. 	While the agreed PAR program thus had
several features that clearly appeared to be part of a continuing program, the parties'
Agreement specifically addressed only one circumstance in which the PAR program would
automatically expire: 	if State funding were eliminated.
Finally, the Association argues (1) that its repudiation of the negotiated PAR program
was not a change in policy and (2) that the District waived any right to challenge that
repudiation by failing to demand bargaining. 	Both of these arguments are without merit.
The repudiation of an agreement (explicit or implied) is virtually the definition of an
unlawful unilateral change. 	(See Grant Joint Union High School District, supra, PERB- -
Decision No. 196.) The Association's repudiation of the PAR program was total and
unambiguous. The Association asserted that "we have no PAR agreement," that the
Association would not participate in the PAR program, and that the District "may no longer
lawfully operate" the PAR program. 	Given this repudiation, the District was not obliged to
await further damage to the PAR program, or to try to pursue negotiations from this changed
position. (San Francisco Community College District (1979) PERB Decision No. 105.) The
District properly sought to vindicate its rights through PERB's unfair practice process. 	(Ibid.)
I conclude that the Association did indeed unilaterally and unlawfully change the
negotiated PAR policy, in violation of EERA section 3543.6(c).
REMEDY
EERA section 3541.5(c) gives PERB:
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(c) 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 [EERA].
In the present case, the Association has been found to have violated EERA section 3543.6(c)
by unilaterally changing the negotiated PAR policy. 	It is therefore appropriate to direct the
Association to cease and desist from such conduct, and to rescind its repudiation of the
negotiated policy.
It is also appropriate to direct the Association to post a notice incorporating the terms of
the order in this case. Posting of such a notice, signed by an authorized agent the Association,
will provide employees with notice that the Association has acted in an unlawful manner, is
being required to cease and desist from this activity, and will comply with the order. 	It
effectuates the purposes of EERA that employees be informed both of the resolution of this
controversy and of the Association's readiness to comply with the ordered remedy.
(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is found that the Standard Teachers Association, CTA/NEA (Association) violated
the Educational Employment Relations Act (EERA or Act), Government Code section
3543.6(c), by unilaterally changing a negotiated policy on peer assistance and review (PAR).
Pursuant to EERA section 3541.5 (c), it is hereby ordered that the Association, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing PAR policy.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind its repudiation of the negotiated PAR policy.
2. 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
unit employees are customarily posted. The Notice must be signed by an authorized agent of
the Association, indicating the Association 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 the Notice is not reduced in size, altered, defaced or covered with any
other material.
3. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board, in accord with the regional director's instruction.
RIGHT TO APPEAL
Pursuant to California code of Regulations, title 8, section 32305, this Proposed
Decision shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions.
(Cal. Code Regs., tit. 8, sec. 32300.)
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A document shall be considered "filed" when the originals, and the required number of
copies, if any, are actually received by the appropriate PERB office before the close of
business on the last date set for filing. (Cal. Code Regs., tit. 8, secs. 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 with a Facsimile Transmission Cover Sheet which
meets the requirements of California Code of Regulations, title 8, section 32135(d), provided
the filing party also places the original, together with the required number of copies and proof
of service, in the U.S. mail. (Cal. Code Regs, tit. 8, sec. 32135(b), (c) and (d); see also Cal.
Code Regs, tit. 8, secs 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
allTHOMAS 	J. 	ALIEN
A d m i n i s t r a t i v e 	Law 	J u d g e
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