Oroville Union High School District * * * PARTIALLY VACATED by Oroville Union High School District (2019) PERB Decision No. 2627a * * * (PERB 2627E)

________________________
SEAL OF 121 OWE
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
OROVILLE SECONDARY TEACHERS
ASSOCIATION, CTA/NEA,
Charging Party,
v.
OROVILLE UNION HIGH SCHOOL DISTRICT,
Respondent.
CASE NO. SA-CE-2843-E
PERB Decision No. 2627
February 22, 2019
Appearances: California Teachers Association, by Jennifer Weiser Bezoza, Attorney, for
Oroville Secondary Teachers Association; Dannis Woliver Kelley, by Diana Halpenny,
Attorney, for Oroville Union High School District.
Before Banks, Shiners, and Krantz, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by Charging Party Oroville Secondary Teachers Association,
California Teachers Association/National Education Association (OSTA or Association) and
Respondent Oroville Union High School District (District) to the proposed decision of an
administrative law judge (ALJ). The complaint, as amended, alleged that in the midst of
contract negotiations the District: (1) violated the Educational Employment Relations Act
(EERA)1 section 3543.1, subdivision (c), when it denied OSTA’s request that its bargaining
team members be released for a full day to prepare for an upcoming bargaining session, and
(2) violated section 3543.5, subdivision (c) when it unilaterally changed its policy concerning
leave time by requiring certain members of OSTA’s bargaining team to use contractual
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise stated,
all statutory references are to the Government Code.
* * * PARTIALLY VACATED by Oroville Union High School District (2019)
PERB Decision No. 2627a * * *

Personal Necessity Leave while they were away from work to participate in Association
business. Following a formal hearing, the ALJ dismissed the released time allegation but
found that the District committed the alleged unilateral change.
OSTA’s exceptions can be distilled into three main arguments. First, OSTA excepts to
the ALJ’s alleged failure to apply a reasonableness standard to its request for released time.
Second, OSTA excepts to the ALJ’s conclusion that San Mateo Community College District
(1993) PERB Decision No. 1030 (San Mateo) necessitated dismissal of its released time claim.
Finally, OSTA excepts to the ALJ’s conclusion that when the parties included Article 4.6 in
their collective bargaining agreement (CBA), they agreed to a more restrictive use of released
time than provided for in EERA section 3543.1, subdivision (c), by excluding negotiations
preparation from released time coverage. OSTA also excepts to certain factual findings
underlying the ALJ’s conclusions.
While the District agrees with the ALJ’s conclusion that it did not unlawfully refuse to
grant reasonable released time, the District excepts to the ALJ’s other conclusions of law and
to the omission of certain findings of fact. Specifically, the District excepts to the ALJ’s
conclusion that negotiations preparation is eligible for statutory released time subject to
reasonableness. The District also excepts to the ALJ’s conclusion that it implemented an
unlawful unilateral change by requiring certain members of OSTA’s bargaining team to use
Personal Necessity Leave to participate in Association business.
We have reviewed the entire record in this matter, including both parties’ exceptions
and responses thereto. Based on that review, we affirm in part and reverse in part the proposed
decision.
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FINDINGS OF FACT
Background
OSTA and the District were parties to a CBA with effective dates of May 27, 2015
through June 30, 2016. The CBA provided several types of leave that are relevant to this case.
Article 4.6 governed released time for OSTA’s bargaining team and stated:
The District shall provide substitutes for five (5) representatives
of the Association’s bargaining team, without loss of
compensation, to attend negotiations, impasse proceedings, and
fact-finding hearings.
The District bore the full cost of this released time, including payment of substitute
teachers to cover the released teachers’ classes. There was no limit on the amount of released
time a member of OSTA’s bargaining team could take under this CBA provision. According
to the parties’ practice, released time included time spent caucusing during negotiations, and
there was no limit on the amount of time either party could caucus. However, the record does
not reflect any instances prior to January 2016 in which OSTA requested in advance that its
bargaining team be released for a full day to prepare for negotiations.
Article 17.9 governed Association Leave and provided:
A. 	Each Association representative shall be entitled to three
(3) days of professional leave without loss of pay for
conducting the business of, or representing, a recognized
professional educational organization at a local, state or
national conference.
B. 	All expenses, in addition to substitute payment, shall be
borne by the Association.
C. 	The Association President or his designee shall notify the
Superintendent and/or Principal at least three (3) days in
advance which unit members will be on professional
leave.
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D. 	The leave granted by virtue of this policy shall not be
deducted from any other leave provided for by State law
and/or this Agreement.
E. 	Leave granted under this section is not cumulative from
year to year.
When an employee took Association Leave, the District charged OSTA for the cost of
the substitute used to cover the employee’s absence. Although Article 17.9 remained
unchanged at all times relevant to this case, OSTA attempted at least once to modify its terms.
On December 3, 2014, OSTA submitted a proposal to modify Article 17.9.A as follows:
In a given fiscal year, The [sic] OSTA Executive Board, or their
designee, shall be entitled to a combined total fifty (50) days of
Organizational Leave. In addition, the OSTA bargaining team
will be entitled to one additional release day for each scheduled
day of negotiations.
On February 3, 2015, the District countered with the following proposal:
In a given school year, OSTA shall be entitled to use up to fifty
(50) days of release time for elected OSTA officers for purposes
of OSTA business. This leave is in addition to the required
reasonable released time for negotiations and grievance
processing provided under the EERA (Gov’t Code section 3540
et seq.)
Procedures for the use of days under this section are as follows:
1. 	OSTA shall provide to the district at the start of each
school year the list of names of the elected officers who
may use the release days.
2. 	OSTA shall provide the district with as much advance
written notice of the requested release days under this
section as possible, but at least five (5) days prior to
usage, unless a shorter time is authorized by the
superintendent.
3. 	The officer who is released shall be paid their normal
daily rate of pay and shall accrue retirement credit for
leaves under this section. The district and the employee
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shall make their normal respective retirement
contributions.
4. 	Upon payment by the district of the employee’s salary, the
district shall submit an invoice to OSTA with the amount
OSTA is required to reimburse the district. The
reimbursement shall include all compensation paid to or
on behalf of the employee, including the employee’s gross
salary, salary-driven costs, the district’s pro-rata
retirement contribution on behalf of the employee, and a
pro-rata portion of the employee’s health benefits.
OSTA believed the District’s counterproposal to be cost-prohibitive. Moreover, while
discussing the District’s counterproposal, OSTA came to believe that EERA already required
the District to grant reasonable released time for negotiations preparation. OSTA therefore
withdrew its Association Leave proposal.
Article 17.15 governed Personal Necessity Leave and provided in relevant part:
A. 	Any unit member may, at his/her election, use seven (7)
days of his/her paid sick leave allotment during each
school year in case of personal necessity. (Ed. Code
§ 44981.)
OSTA’s bargaining team members had, at times, used Personal Necessity Leave to engage in
Association business, including preparing for negotiations.
The District tracked teachers’ outstanding leave credits by using a computerized system
called “AESOP.” At the time in question, teachers contacted the District employee responsible
for securing substitute teachers (the sub-finder) when they needed to take leave. The sub-
finder would then request a substitute and input the leave into AESOP using a drop-down
menu of predefined values, such as Family Medical Leave Act leave, jury duty, or sick leave.
For members of OSTA’s bargaining team, the drop-down menu in AESOP included
Negotiations and Association Leave as part of the predefined values. Negotiations had no
balance while Association Leave had a balance of three days annually, in accordance with the
5

CBA. Other employees could contact the District if they were eligible for Association Leave,
and the District would add that option to the employee’s drop-down menu along with a
corresponding balance.
The Current Dispute
OSTA and the District negotiate annually over salary, pursuant to CBA reopeners. In
addition to salary, each party may reopen two additional provisions of the CBA. For the 2015-
2016 school year, OSTA chose leaves and class size. The District chose evaluations and
benefits. The parties engaged in 11 bargaining sessions over the course of the 2015-2016
school year.
During this period, OSTA’s bargaining team consisted of OSTA President Teisha Hase
(Hase), Bargaining Chair and lead negotiator Scott Martin (Martin), Leanna Felardo (Felardo),
Dave Gnesda (Gnesda), and Tammy Boehme (Boehme). Mark Leach (Leach), CTA’s business
agent, provided representational services to OSTA. The District’s lead negotiator was Diana
Halpenny (Halpenny).
OSTA’s bargaining team met before the start of the school year on August 8, 2015, to
develop proposals for a bargaining session later that month. Accordingly, the bargaining team
did not use any leave to attend this preparation session.
The parties met for bargaining on August 26, 2015. OSTA initially proposed to
increase salary by 9.75 percent retroactive to July 1, 2015 and to enhance teachers’ sick leave
accrual. The District presented a proposal to develop new evaluation procedures and maintain
benefit levels. In addition to the issues contained in the formal proposals, the parties also
discussed conforming sick leave provisions to new law, new teacher orientation, medical
benefits, and sports coaches’ stipends.
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The parties next met for bargaining on September 15, 2015. Prior to the session, the
parties reached an agreement on new teacher orientation. At the session, the parties exchanged
two rounds of counterproposals on the open articles and narrowed their differences somewhat.
OSTA reduced its salary increase proposal to 8.35 percent retroactive to July 1, 2015, while
the District increased its salary proposal to 4 percent retroactive to July 1, 2015. The parties
also discussed including longevity steps on the salary schedule and the salary of a social
worker position in the bargaining unit.
The parties next met and exchanged counterproposals on October 6, 2015. During this
session, the District’s negotiators stated they had no authorization to offer more than a 4
percent salary increase. The parties additionally discussed budget figures and a shortage of
substitutes.
OSTA’s bargaining team met on November 10, 2015 to prepare for the next bargaining
session. The parties originally scheduled this date for bargaining, but OSTA cancelled the
session based on the District’s representation that it lacked authority to make a more generous
salary proposal. The bargaining team used Association Leave on this date. It did not request
released time because it also engaged in Association business that was not necessarily related
to bargaining, including organizing, planning site visits, and creating a presentation for the
District’s Governing Board.
The parties next met for bargaining on December 1, 2015. OSTA presented a proposal
to increase salary in the 2015-2016 school year by 7 percent followed by another increase the
following school year that would be based on “the percentage increase on the FCMAT[2]
2 FCMAT stands for the Fiscal Crisis Management and Assistance Team.
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calculator line (change over prior year), at the time of the P2[3] report, to be paid retroactively
to July 1, 2016.”
The District responded with a complex proposal. Unlike its previous salary proposals
that entailed simple percentage increases, the District’s new counterproposal provided for a
4 percent salary increase in 2015-2016, followed by another increase the next year based on the
percentage increase on the FCMAT calculator line; multiplied by the cost of a 1 percent
increase to the salary schedule; and adjusted by the net decrease or increase in the cost of step
and column,4 the District’s State Teachers Retirement System contribution, and health and
welfare benefits including OSTA retiree benefits costs. The remaining dollar figure then
would be divided by the cost of a 1 percent salary increase and the resulting figure would be
the percentage increase applied to the 2015-2016 salary schedule. OSTA had difficulty
evaluating the proposal because, at that time, the District had not provided the values for the
figures by which the formula was to be adjusted. In the same session in which the District
made this proposal, the parties agreed they might be near impasse on salary, thereby adding
pressure on OSTA to evaluate the proposal and determine how to proceed. In addition to
wages and the other issues contained in the formal proposals, the parties discussed budget
figures and the possible addition of employees to the bargaining unit.
Thereafter, the parties met for bargaining on January 6, 2016. The District proposed to
modify certain leave provisions in Article 17 and OSTA proposed a 7 percent salary increase
in 2015-2016, followed by a 1.5 percent increase the following year. The District offered a
3 The P2 report demonstrated what portion of the average daily attendance funds the
District was allowed to retain.
4 “Step and column” refers to increments on the salary schedule. Customarily, steps
denote the number of years a teacher has worked in a district and columns denote the number
of secondary education credits a teacher has completed.
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counterproposal similar in most respects to its December 1, 2015 proposal, except for the final
step, which guaranteed a minimum 1.5 percent raise and conditioned any further raise on the
aforementioned complex formula. OSTA learned for the first time at this session the actual
values of the figures on which the formula was to be based. The parties scheduled their next
bargaining session for February 2, 2016.
Following the January 6, 2016 bargaining session, OSTA’s bargaining team members
determined they needed one full day to prepare for the February 2, 2016 session given the
complexity of issues and the parties’ continued acknowledgment of the possibility of impasse
on salary. To assess the District’s salary proposal, the bargaining team also needed time to
review new budget information including a first interim budget report, the Governor’s budget,
and the revised FCMAT calculator.5 In addition to the District’s new salary counterproposal,
OSTA had to evaluate proposals related to the other open articles, including a new issue
related to individual sports coaching contracts.
In this round of bargaining, OSTA had not previously requested a full day to consider
the District’s counterproposals or to review financial data. Instead, the team had most often
performed such functions on days scheduled for negotiations, before the parties met with one
another and during lengthy caucus periods held periodically in the middle of such sessions.6 In
this instance, however, the team determined that it would not be constructive to wait until
February 2, 2016 to consider its response to the District’s new counterproposals.
5 OSTA received the first interim budget report on December 15, 2015, but the
Governor’s budget was not released until around January 10, 2016, and the FCMAT calculator
could not be revised until after that date.
6 It was not practical for the bargaining team to prepare during breaks in the workday
because they worked at different school sites, and it was similarly difficult for them to meet
during non-work time given their various family schedules.
9

At the time, Martin was responsible for notifying the District whenever the bargaining
team needed substitutes. His practice was to notify the District’s sub-finder, who processed
the request and entered the absence in AESOP. Martin typically did not tell the sub-finder
what type of leave to charge the bargaining team and relied on the District to make the proper
designation. The District also did not have a practice of contacting OSTA to ask why it was
requesting substitutes.
On January 11, 2016, Martin sent an e-mail to Jaymie Martinez (Martinez), the
District’s sub-finder, with the subject line “negotiations.” The e-mail stated:
The OSTA bargaining team is going to prepare for negotiations
on January 20. We will need subs for myself, David Gnesda,
Teisha Hase, Leanna Felardo, and Tammy Boehme.
Thanks, Scott.
Martin testified that his intent was to ask for released time so the bargaining team could
prepare for the February 2, 2016 bargaining session, though he did not specify this to Martinez.
On January 12, 2016, Martinez replied to Martin stating:
I have entered you all in to Aesop so I can work on getting
subs . . . Just let me know if the date changes and I make [sic]
necessary adjustments.
Martinez entered the absence as “Negotiations” from the drop-down menu in AESOP.
On January 13, 2016, Martin sent an e-mail to Martinez with the subject line
“negotiations prep.” The e-mail stated:
David had a conflict on the 20th so we are rescheduling to
January 27. Is it easier for you to cancel our subs on the 20th
(not for David) and reschedule for the 27th? Or is it easier for
you if we all do it on Aesop ourselves?
Martinez replied later that day stating she would take care of it for the bargaining team.
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On January 27, 2016, the bargaining team met at the CTA office for a full-day review
of the outstanding proposals and possible paths toward an agreement. At approximately 7:40
a.m., Martin received a call from his principal inquiring where he was and informing him that
the District had cancelled his substitute. Martin contacted Deana Fallen (Fallen), the District’s
Senior Personnel Technician, to inquire about his substitute. Fallen informed him the District
had cancelled substitutes for the entire bargaining team. She explained that an assistant to
Superintendent Corey Willenberg (Willenberg) had noticed the bargaining team was coded in
AESOP as out for negotiations, but no negotiations were scheduled for that day. Martin
explained that the team was in a full-day meeting to prepare for the next session. By this time,
however, the school day had already begun, and the District was unable to find substitutes for
all members of the bargaining team.7 Hase then called District Chief Business Officer Susan
Watts (Watts) to say she was upset that the District cancelled the substitutes. Watts replied
that it was an honest mistake.
The District did not change the leave designation back to Negotiations Leave in
AESOP. Rather, Fallen designated the January 27, 2016 absences of Martin, Gnesda, and
Boeme as Association Leave. Hase and Felardo had already used their allotted three days of
Association Leave that school year so Fallen designated their absences as Personal Necessity
Leave. Fallen testified that she believed it was the best option for Hase and Felardo because
she thought the only alternative would have been to designate their absences as unpaid. Fallen
informed Hase and Felardo of the designation by e-mail, as follows:
Your 1/27/16 absence will be charged to [Personal Necessity
Leave]; you have already used all of your allowed association
leave for the school year.
7 Martin’s colleagues covered his classes and received compensation time for doing so.
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Fallen did not contact Hase or Felardo to seek or obtain their approval prior to
designating the absences as Personal Necessity Leave, and Hase and Felardo did not contact
Fallen after receiving her e-mail, nor did they ask Willenberg for extra Association Leave
days. Willenberg testified that Fallen’s actions were in accordance with the terms of the CBA.
After addressing the issues surrounding their cancelled substitutes, OSTA’s bargaining
team members met as planned on January 27, 2016. They spent the bulk of their time
discussing the District’s novel salary proposal, as that was the most important issue and the
one most likely to create an overall impasse. To this end, they reviewed newly available
financial documents including the first interim budget report (which showed the State would
cover a larger portion of gap funding than the District had initially anticipated), the Governor’s
budget, and the updated FCMAT calculator. The team also discussed other outstanding
bargaining issues in dispute, as well as paths toward agreement that had worked in other school
districts. One such strategy was the use of non-binding “supposals” in conjunction with both
parties agreeing not to take any notes of what was said during the session. The bargaining
team also discussed the possibility of developing a collapsed salary schedule as another
potential path toward agreement.
On February 2, 2016, when the parties next met, Leach asked to meet privately with
Halpenny and Willenberg in a sidebar away from the negotiations table. Leach told them he
had prepared a letter asking the District to pay for OSTA’s negotiations preparation on
January 27, 2016, as EERA section 3543.1 covered negotiations preparation time.8 Leach also
8 Willenberg testified that Leach never explained what OSTA did on January 27, 2016
to justify the released time. Leach took the stand as a rebuttal witness, testifying that he did
explain to Willenberg at their February 2, 2016 sidebar the reasons why the full-day meeting
was necessary and appropriate. The ALJ found Leach’s rebuttal testimony to be improper
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stated that OSTA’s negotiations preparation time constituted costs which were to be
reimbursed to the District as State-mandated costs. Willenberg or Halpenny responded that
reasonable released time was a subject of negotiation and that the District had not received its
State-mandated reimbursement costs for years. The parties then met for negotiations, and the
District agreed to OSTA’s suggestion that they use supposals and not take notes during the
session. This strategy helped the parties reach a tentative agreement on salary by the end of
the month.
On February 18, 2016, Leach sent the previewed letter to Willenberg, stating that
preparations for negotiations fell within EERA’s released time provision. The letter also
demanded that the District reinstate Hase’s and Felardo’s Personal Necessity Leave, and that in
the future, the District pay the entire cost of the bargaining team’s absences when they were
preparing for negotiations. Willenberg did not respond to Leach’s letter.
DISCUSSION
I. 	The Released Time Allegation
EERA provides that “[a] reasonable number” of union representatives “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.” (EERA, § 3543.1, subd. (c).)
EERA defines “meeting and negotiating” to include meeting, conferring, negotiating, and
discussing by the exclusive representative and the public school employer in a good faith effort
to reach agreements on matters within the scope of representation. (Id., § 3540.1, subd. (h).)
rebuttal testimony that could have been offered in OSTA’s case-in-chief, but noted that
Leach’s rebuttal testimony would not impact the outcome of this decision. OSTA excepts to
the ALJ’s evidentiary ruling. We need not reach OSTA’s exception, as we agree with the ALJ
that Leach’s rebuttal testimony would not impact the outcome of this decision.
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Relying on a long line of Board precedent that broadly interprets the terms “meeting
and negotiating” to include the entire negotiating process, the ALJ found that negotiations
preparation may be eligible for released time under EERA section 3543.1, subdivision (c),
subject to reasonableness. OSTA urges us to uphold this principle, arguing that preparing for
negotiations is integral to the negotiations process and functionally indistinguishable from
caucusing, which we have noted falls within EERA’s released time provision. The District
disagrees with the ALJ’s conclusion that negotiations preparation is eligible for statutory
released time.
A. EERA’s Released Time Provision Includes Reasonable Preparation Time
When the Board has had occasion to address the scope of EERA section 3543.1,
subdivision (c), it has taken a broad view of reasonable released time. In Magnolia School
District (1977) EERB Decision No. 19,9 the employer had a policy of restricting released time
to the 30 minutes of nonteaching time at the end of the school day, and refused the union’s
request for released time during the instructional day. The Board found that the employer’s
rigid and inflexible policy violated EERA because “reasonable released time” under section
3543.1, subdivision (c) required the employer to assume an open attitude in its consideration of
the amount of released time to be allowed and any changing circumstances. (Id. at p. 5.)
Shortly thereafter, the Board affirmed its expansive interpretation of EERA section
3543.1, subdivision (c) in Sierra Joint Community College District (1981) PERB Decision
No. 179 (Sierra). In Sierra, the members of the employee organization’s bargaining team
arranged their teaching schedules so that two afternoons each week were clear for negotiations.
At the outset of negotiations, the employee organization proposed a released time arrangement
9 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
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that would have allowed bargaining team members a reduction from their normal teaching
loads. (Id. at p. 2.) The employer rejected the proposal, arguing, in part, that statutory released
time was required only during periods of actual meeting and negotiating. (Id. at p. 3.) The
Board adopted a broader interpretation of the phrase “meeting and negotiating” in EERA
section 3543.1, subdivision (c), and held that “meeting and negotiating” is not limited to the
time the parties are actually in session and instead encompasses time spent in the “negotiating
process.” (Id. at pp. 5-6; see also State of California (Department of Personnel
Administration) (1993) PERB Decision No. 995-S (DPA), p. 9 [statutory released time can be
used for preparation time depending on the circumstances].) Rather than employ a categorical
approach, in Sierra we held that the amount of released time that is reasonable is a question of
fact and depends on the particular circumstances of the case. (Sierra, supra, PERB Decision
No. 179, p. 7; see also DPA, supra, PERB Decision No. 995-S, adopting proposed decision at
pp. 27-32 [applying reasonableness standard to claim of denial of statutory released time for
negotiations preparation].)
In Burbank Unified School District (1978) PERB Decision No. 67 (Burbank), on which
the District relies, the Board found that the employer’s refusal to grant released time to the
union’s bargaining team for rest and recuperation after a 14-hour mediation session that ended
in the early hours of a weekday morning did not, under the circumstances of the case, violate
EERA. (Id. at p. 4.) The Board went on to state that EERA section 3543.1, subdivision (c),
limits the purposes for which a school district must grant released time and does not require it
to grant released time for all activities related to negotiations. (Id. at pp. 4-5.) The Board
explained:
Meeting and negotiating includes the time spent at the negotiating
table. It includes mediation and factfinding, which are
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continuations of the negotiating process. It also includes
caucusing, which is an integral part of the process. Meeting and
negotiating does not include the time necessary to prepare for
negotiations. Nor, under normal circumstances, does it include
rest and recuperation time after a negotiations session is
concluded.
(Id. at p. 5.)
The Board’s statement that statutory released time categorically excludes preparation
time deviates from our broad interpretation of “meeting and negotiating” in EERA section
3543.1, subdivision (c) as including the entire negotiating process. We therefore reject
Burbank’s categorical approach for several reasons.10
First, since Burbank was decided, the Board has repeatedly declined any categorical
determination of the scope of the released time requirement in favor of an approach that
considers the factual circumstances of each case. We have thus rejected the very narrow
construction of “meeting and negotiating” that Burbank suggests, preferring a more nuanced
understanding that collective bargaining is a process and that the time employees are excused
from duty without loss of compensation need not “precisely coincide” with the time actually
spent in face-to-face negotiations. (Sierra, supra, PERB Decision No. 179, p. 5; see also
Magnolia School District, supra, EERB Decision No. 19, p. 5 and Muroc Unified School
District (1978) PERB Decision No. 80, pp. 10-14 [describing various considerations to
10 Burbank’s suggestion that preparation time is not eligible for statutory released time
was not raised by the facts of the case, nor was it necessary to the Board’s resolution of the
“central issue” before it regarding rest and recuperation. (Burbank, supra, PERB Decision
No. 67, p. 4.) Hence, we are not bound by this dicta. (San Marcos Unified School District
(2003) PERB Decision No. 1508, pp. 21-22, citing United Steel Workers of America v. Board
of Education (1984) 162 Cal.App.3d 823, 834 [PERB, like the courts, is not bound by dicta].)
However, as we explain below, we reject this statement on substantive, not technical, grounds.
16

determine the reasonableness of both the amount of released time granted and the number of
employees to be released].)
Second, it would elevate semantics over function to categorically distinguish between
time spent in “caucus” and time denominated as “negotiations preparation” without
considering the facts of each case. When the OSTA bargaining team met on January 27, 2016,
their tasks—analyzing relevant information provided by the District, drafting counterproposals,
and, most importantly, considering paths toward agreement in the face of the parties’ recent
discussions of impasse—could be described as either “caucusing” or “negotiations
preparation” depending upon whether they occurred on a day when the parties met for
negotiations.
Arbitrarily differentiating between the compensability of caucus time and preparation
time without examining the surrounding circumstances would not advance the efficiency of
negotiations or harmonious labor relations. It is not efficient to require in all instances that the
exclusive representative’s bargaining team wait until the day of a scheduled bargaining session
to call for a caucus. Indeed, doing so would incentivize behavior that the employer’s
bargaining team could potentially see as upsetting—being made to wait in another room for
most or all of a day for a caucus that was largely predictable. While such caucuses by both
employers and unions may be common, a categorical rule requiring the parties to meet at the
bargaining table before the union calls a full-day caucus to prepare for negotiations, simply so
that such preparation time is compensable under the EERA, does not efficiently move the
negotiations process forward.
The false dichotomy between preparation and caucusing is particularly evident here,
where the Association’s negotiations preparation created both the procedural and substantive
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path forward that led to an agreement. In fact, the District’s proposed rule would, on average,
make negotiations more protracted and less productive. This would be a hindrance to the
negotiating process, as well as to a good faith relationship between parties. (See Anaheim
Union High School District (1981) PERB Decision No. 177, pp. 7-8 [policy underlying EERA
section 3543.1, subdivision (c) is “the intent that school negotiations proceed expeditiously and
an acknowledgment that such a result is more readily obtained if employees are relieved from
work for negotiations”].) For these reasons, we reject Burbank’s suggestion that negotiations
preparation time is not compensable released time under section 3543.1, subdivision (c) as a
matter of law.
In light of the foregoing, we clarify our precedent by holding that time necessary to
prepare for negotiations is a part of the negotiations process and, thus, qualifies for statutory
released time under EERA section 3543.1, subdivision (c), subject to reasonableness. To allay
any concerns that union representatives may now abuse the statutory right to released time for
negotiations preparation, we note two important points. First, use of statutory released time for
negotiations preparation is subject to a reasonableness standard, which serves as a check on
excessive use of such time. Second, an employee organization and a school district employer
may agree to a particular amount of released time for preparation. (See Gilroy Unified School
District (1984) PERB Decision No. 471, p. 5 [“the parties may negotiate what constitutes a
‘reasonable’ number of representatives and a ‘reasonable’ amount of release time”].) Such an
agreement would provide even greater clarity regarding reasonable use of released time for
bargaining preparation.
18

B. OSTA Did Not Waive The Right to Be Released For Preparation Time
The ALJ concluded that although the District’s refusal to grant released time for
negotiations preparation would normally violate EERA section 3543.1, subdivision (c), the
District did not violate the Association’s right to released time because the Association had
allegedly agreed that released time would not be used for such preparation. Citing San Mateo,
supra, PERB Decision No. 1030, the ALJ explained that EERA’s released time provision is
suspended during the term of a CBA.
In San Mateo, supra, PERB Decision No. 1030, the Board analogized EERA section
3543.1, subdivision (c) to corollary provisions in the Higher Education Employer-Employee
Relations Act, section 3560 et seq. (HEERA) and the Ralph C. Dills Act, section 3512 et seq.
(Dills Act) to conclude that released time under EERA section 3543.1, subdivision (c) is to be
determined in accordance with the parties’ memorandum of understanding when one is in
effect. (San Mateo, supra, PERB Decision No. 1030, p. 17; see HEERA, § 3569; Dills Act,
§ 3518.5.) We need not determine, based on the facts before us, whether San Mateo was
correctly decided because the CBA between the District and OSTA does not exclude
negotiations preparation time from released time eligibility.
Article 4.6 of the CBA states: “The District shall provide substitutes for five (5)
representatives of the Association’s bargaining team, without loss of compensation, to attend
negotiations, impasse proceedings, and fact-finding hearings.” The evidence supports a
finding that by including Article 4.6 in their CBA, the parties limited to five the number of
bargaining team members entitled to released time, but did not otherwise limit statutory rights
to reasonable released time. (See Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375, p. 18
19

________________________
[“inclusion in a collective bargaining agreement of statutory rights established by EERA—
such as the right to access or release time—does not ‘replace or set aside’ those provisions of
the Act, but augments and reinforces them”].) Although the provision is silent as to
preparation time, it is undisputed that the District compensates bargaining team members
pursuant to Article 4.6 for their caucus time. As noted ante, there is no meaningful distinction
between caucus time and the preparation time at issue here. We thus find no basis in the
language of Article 4.6 upon which to conclude that the parties intentionally excluded
preparation time from the scope of contractual released time.
Nor does the parties’ past conduct under Article 4.6 support the ALJ’s interpretation of
that provision. The instant dispute arises because on January 27, 2016, OSTA for the first time
requested released time for “negotiations preparation.”11 Because the Association had never
before made such a request, there is no evidence about how the District treated such requests in
the past. Accordingly, the parties’ past conduct does not support finding that Article 4.6
excludes preparation time. (See Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744,
753 [the parties’ performance under the contract may be evidence of their intent].)
Nor is there any evidence that OSTA intentionally relinquished its right to statutory
released time for negotiations preparation. Waivers of statutory rights must be “clear and
unmistakable.” (San Marcos Unified School District, supra, PERB Decision No. 1508,
pp. 27-28.) The affirmative defense of establishing a statutory waiver rests with the District.
(Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 40.) The record
establishes that Article 4.6 had existed in the parties’ CBA for at least 15 years before the
11 That OSTA had not previously requested released time for negotiations preparation
did not preclude it from asking for released time on January 27, 2016, as the parties had no
clear and consistent past practice in that respect.
20

events at issue here. The evidence also shows that on December 3, 2014, OSTA withdrew a
released time proposal which explicitly included negotiation preparation time because it came
to believe then that EERA section 3543.1, subdivision (c), already granted it a right to such
time. Because prior to December 3, 2014, the Association did not believe it had a statutory
right to released time for negotiations preparation, it could not have knowingly and
intentionally relinquished that right by agreeing to Article 4.6 many years before that date.
C. OSTA’s Released Time Request Was Reasonable
Having found that neither EERA nor the parties’ CBA categorically precluded OSTA’s
bargaining team from taking released time for negotiations preparation, we consider whether
OSTA’s request was reasonable under the circumstances. OSTA presented substantial
evidence to demonstrate why it was reasonable to request a single day of released time
between bargaining sessions. OSTA requested one day of released time to prepare for
negotiations well into a bargaining cycle that began the prior August. Six bargaining sessions
had already taken place. In the context of the entire bargaining cycle that ultimately spanned
11 bargaining sessions in 2015-2016, the record reflects that the request was reasonable for a
number of reasons.
First, the District’s January 6, 2016 salary proposal was based on a different concept
than previous salary proposals, and required an analysis for a complex, multi-step formula and
multiple variables of unknown value to OSTA. It was only at the January 6, 2016 session that
OSTA learned the actual values of the figures for which the formula was to be adjusted.
OSTA was thus unable to evaluate the import and effects of the District’s proposal until after
this session concluded.
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Second, it was only after the January 6, 2016 session that OSTA had access to most of
the new budget information that was integral to analyzing the District’s salary proposal.
Although the District sent Leach the first interim budget report on December 15, 2015, the
Governor’s budget was not available until around January 10, 2016, and the parties could not
revise the FCMAT calculator until after release of the Governor’s budget. The District’s salary
proposal, in turn, was anchored to the percentage increase on the FCMAT calculator line.
Third, following the January 6, 2016 session, OSTA had to craft responses to several
other outstanding proposals, including family leave, the coaches’ contract, and incorporation of
new members into the unit.
Finally, the parties were deep into the 2015-2016 bargaining cycle when the January 6,
2016 session closed with the specter of impasse looming. Indeed, it is at this critical late stage
in the negotiations that any union bargaining team must make the difficult and tricky
assessment of what elements must be included in the employer package for membership to
ratify it and avoid ensuing impasse procedures.
For all these reasons, it was reasonable in this case for OSTA to spend one full day
preparing for the next bargaining session set for February 2, 2016. While OSTA could have
foregone its preparation day and instead waited until the February 2, 2016 session to caucus
and then analyze the District’s proposals, it instead took the more reasonable path of requesting
a single day of released time to fully prepare for the bargaining session ahead.
The District argues that we cannot hold it responsible because it was not aware that
OSTA had requested released time under EERA section 3543.1, subdivision (c). Specifically,
the District claims that OSTA failed to explicitly request released time for negotiations
preparation before the bargaining team’s January 27, 2016 meeting. Regardless, the District
22

was aware of OSTA’s intent to utilize statutory released time by February 2, 2016, at the very
latest, during Halpenny’s and Willenberg’s sidebar conversation with Leach. Accordingly, the
District could still have analyzed whether OSTA’s request was reasonable; instead, it
categorically rejected the bargaining team’s eligibility for released time.
Because the District failed to provide OSTA’s bargaining team a reasonable amount of
released time for negotiations preparation, we conclude that it violated EERA section 3543.1,
subdivision (c). Its conduct also constituted a derivative violation of EERA sections 3543.5,
subdivisions (a) and (b).
II. 	The Unilateral Change Allegation
The District excepts to the ALJ’s conclusion that it violated EERA section 3543.5,
subdivision (c), when it unilaterally changed its existing policy by requiring certain members
of OSTA’s bargaining team to use contractual Personal Necessity Leave to participate in
Association business.
EERA provides that it is unlawful for an employer to refuse or fail to meet and
negotiate in good faith with an exclusive representative. (EERA, § 3543.5, subd. (c).) An
employer commits a per se violation of its duty to bargain in good faith where: (1) it took
action to change existing policy or implement a new policy; (2) the policy change concerned a
matter within the scope of representation; (3) the action was taken without giving the exclusive
representative notice or opportunity to bargain over the change; and (4) the change has a
generalized effect or continuing impact on terms and conditions of employment. (Los Angeles
Unified School District, supra, PERB Decision No. 2518, p. 13, citing Fairfield-Suisun Unified
School District (2012) PERB Decision No. 2262, p. 9.)
23

There is no dispute that the Personal Necessity Leave is within the scope of
representation and that the District did not provide OSTA notice or an opportunity to bargain
over requiring two bargaining team members to use Personal Necessity Leave for Association
business. The District excepts, however, to the ALJ’s conclusions that the District’s action
constituted a change in policy and had a generalized effect or continuing impact on the terms
and conditions of employment of bargaining unit members. We address each argument in turn.
A. Change in Policy
A change in policy generally falls into one of three categories: (1) changes to the
parties’ written agreements; (2) changes in established past practices; or (3) newly created
policies, or application or enforcement of an existing policy in a new way. (County of
Monterey (2018) PERB Decision No. 2579-M, p. 10; Marysville Joint Unified School District
(1983) PERB Decision No. 314, pp. 8-9.) The ALJ properly found that the District’s decision
to require Hase and Felardo to take Personal Necessity Leave to participate in Association
business on January 27, 2016 was a change in policy because it altered the terms of the parties’
CBA.
The policy for Personal Necessity Leave as set forth in Article 17.15.A. places the
decision to take such leave on the employee. It specifically provides an employee may use
Personal Necessity Leave “at his/her election.” The District does not dispute the voluntary
nature of Personal Necessity Leave. Instead, it asserts it did not “require” Hase and Felardo to
take Personal Necessity Leave on January 27, 2016 to attend OSTA’s negotiations preparation
session. However, Fallen did not contact Hase or Felardo prior to designating their January 27,
2016 absences as Personal Necessity Leave. Her e-mails to Hase and Felardo also state their
absences “will” be charged as Personal Necessity Leave. Given Fallen’s failure to contact
24

________________________
Hase or Felardo prior to making the designation and the language in her subsequent e-mails, it
is reasonable to conclude Hase and Felardo were required to take Personal Necessity Leave on
that date.
The District asserts Hase and Felardo never contacted Fallen or Willenberg to challenge
the Personal Necessity Leave designation. However, that does not change the fact that the
District unilaterally designated the absences as Personal Necessity Leave. The District also
asserts that Fallen categorized the absences as Personal Necessity Leave because Hase and
Felardo had used their allotment of Association Leave for the year, and the designation of
Personal Necessity Leave helped them. This ignores Hase and Felardo’s potential entitlement
to other forms of leave in lieu of Personal Necessity Leave, such as the use of accrued
compensation time or leave under Education Code section 44987.12 Even assuming those
types of leaves were unavailable, Article 17.15.A. still required the employee to make the
Personal Necessity Leave designation, not the District.
Based on the above, the District’s decision to require Hase and Felardo to use Personal
Necessity Leave to participate in OSTA business on January 27, 2016, was a change to its
existing policy.
B. Generalized Effect or Continuing Impact
The District argues that any decision to require Hase and Felardo to use Personal
Necessity Leave was an isolated breach of the CBA. However, the generalized effect or
continuing impact element of the prima facie case is satisfied when the employer’s action is
12 Education Code section 44987 states that a school district must grant a leave of
absence, without loss of compensation, to any employee to serve as an elected officer of any
public employee organization. Following the school district’s payment to the employee, the
employee organization will reimburse the school district for all compensation paid to the
employee on account of the leave.
25

based on its belief that it had a contractual or other right to take the action without negotiating
with the union. (City of Montebello (2016) PERB Decision No. 2491-M, p. 15, citing County
of Riverside (2003) PERB Decision No. 1577-M.) Here, Willenberg testified Fallen’s conduct
was consistent with the terms of the CBA. Therefore, OSTA has satisfied the generalized
effect or continuing impact element.
Based on the above, the District violated EERA section 3543.5, subdivision (c), when it
implemented an unlawful unilateral change by requiring Hase and Felardo to use Personal
Necessity Leave to participate in Association business on January 27, 2016. This conduct also
constituted derivative violations of EERA section 3543.5, subdivisions (a) and (b).
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Oroville Union High School District (District): (1) denied Oroville
Secondary Teachers Association (OSTA or Association) bargaining team members a
reasonable amount of released time to prepare for negotiations, and (2) unilaterally changed
policy by requiring OSTA members Teisha Hase and Leanna Felardo to use Personal Necessity
Leave to participate in Association business on January 27, 2016. By this conduct, the District
violated EERA sections 3543.1, subdivision (c) and 3543.5, subdivisions (a), (b), and (c).
Pursuant to EERA section 3541.5, subdivision (c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying OSTA bargaining team members a reasonable amount of
released time to prepare for negotiations.
26

2. 	Unilaterally changing policy by requiring OSTA members to use
Personal Necessity Leave to participate in Association business.
3. 	Interfering with the rights of bargaining unit members to be represented
by OSTA.
4. 	Denying OSTA its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Provide OSTA bargaining team members a reasonable amount of
released time to prepare for negotiations, as requested by OSTA.
2. 	Rescind the policy of requiring OSTA members to take Personal
Necessity Leave to participate in Association business.
3. 	Reimburse OSTA for any costs incurred on behalf of all five OSTA
bargaining team members for negotiations preparation on January 27, 2016, including but not
limited to any costs incurred for substitutes.
4. 	Make whole all five OSTA bargaining team members who attended the
January 27, 2016 negotiations preparation meeting and were adversely affected by the
District’s violations of EERA, including:
a. 	Restore any and all leave deducted from those employees’ leave
balances as a result of the District’s unlawful violations of EERA.
b. 	Change all AESOP records related to those employees’ absences
on January 27, 2016 to Negotiations Leave.
5. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to District faculty customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
27

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. The
District shall also post the Notice by electronic message, intranet, internet site, and other
electronic means customarily used by the District to communicate with faculty members.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
6. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel’s designee. Respondent shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on OSTA.
Members Shiners and Krantz joined in this Decision.
28

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. SA-CE-2843-E, Oroville Secondary
Teachers Association v. Oroville Union High School District, in which all parties had the right
to participate, it has been found that the Oroville Union High School District (District) violated
the Educational Employment Relations Act (EERA), Government Code section 3540 et seq.,
when it denied Oroville Secondary Teachers Association (OSTA or Association) bargaining
team members a reasonable amount of released time to prepare for negotiations and
unilaterally changed policy by requiring OSTA members Teisha Hase and Leanna Felardo to
use Personal Necessity Leave to participate in Association business.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying OSTA bargaining team members a reasonable amount of
released time to prepare for negotiations.
2. 	Unilaterally changing policy by requiring OSTA members to use
Personal Necessity Leave to participate in Association business.
3. 	Interfering with the rights of bargaining unit members to be represented
by OSTA.
4. 	Denying OSTA its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Provide OSTA bargaining team members a reasonable amount of
released time to prepare for negotiations, as requested by OSTA.
2. 	Rescind the policy of requiring OSTA members to take Personal
Necessity Leave to participate in Association business.
3. 	Reimburse OSTA for any costs incurred on behalf of all five OSTA
bargaining team members for negotiation preparation on January 27, 2016, including but not
limited to any costs incurred for substitutes.
4. 	Make whole all five OSTA bargaining team members who attended the
January 27, 2016 negotiations preparation meeting and were adversely affected by the
District’s violations of EERA, including:

a. 	Restore any and all leave deducted from those employees’ leave
balances as a result of the District’s unlawful violations of EERA.
b. 	Change all AESOP records related to those employees’ absences
on January 27, 2016 to Negotiations Leave
.
Dated: _____________________ 	OROVILLE 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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2