Salinas Union High School District * * * OVERRULED by Trustees of California State University (2012) PERB Decision No. 2287-H (PERB 1639E)

OVERRULED by Trustees of California State University (2012) Decision No. 2287-H
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS VALLEY FEDERATION OF
TEACHERS, AFT LOCAL 1020, AFL-CIO,
Charging Party,
V.
SALINAS UNION HIGH SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2320-E
PERB Decision No. 1639
June 14, 2004
Appearances: Law Offices ofRobert J. Bezemek by Martin Fassler, Attorney, for Salinas
Valley Federation ofTeachers, AFT Local 1020, AFL-CIO; Lozano Smith by Kristina A.
Markey, Attorney, for Salinas Union High School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Salinas Valley Federation ofTeachers, AFT Local 1020,
AFL-CIO (Federation) ofa Board agent's dismissal (attached) oftheir unfair practice charge.
The charge alleged that the Salinas Union High School District (District) violated the
Educational Employment Relations Act (EERA) 1 by unilaterally requiring math instructors to
teach during the enrichment period without bargaining over this change in the collective
bargaining agreement (CBA). The Federation alleged that this conduct constituted a violation
ofEERA section 3543.S(a) and (c).
1 EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

After review of the entire record, the Board adopts the Board agent's dismissal as a
decision of the Board itself. We will briefly address the pertinent issues raised by the parties
on appeal.
DISCUSSION
At the outset, the District claims that the Federation's charge is untimely because the
enrichment period as now utilized has existed since 1995. However, we must accept the
Federation's version of the facts as true. (Golden Plains Unified School District (2002) PERB
Decision No. 1489; San Juan Unified School District (1977) EERB Decision No. 122.) The
Federation alleges that the change in use of the enrichment period occurred on September 12,
2002. As the charge was filed on March 3, 2003, the charge is timely. (EERA sec.
3541.5(a)(l).) We next tum to the merits of the charge.
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if
certain criteria are met. Those criteria are: 	(1) the employer implemented a 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.)
Here, the Federation contends that the District is requiring teachers at Alisal High
School (Alisal) to provide instruction for the first time in September 2002 during the
2Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
2

enrichment period, when no instruction was required under the May 1995 CBA addendum
executed by the parties. We agree with the Board agent that the issue does not involve
performance of new duties, but rather an alleged increase in instructional time.
We also agree with the Board agent that under this theory, the Federation has failed to
state a prima facie case of unilateral change. Although the Board views the length of the
instructional day as a managerial prerogative, when such changes impact the length of the
employees' workday or duty-free time, the impact is negotiable. (Imperial Unified School
District (1990) PERB Decision No. 825 (Imperial) at pp. 7-8, citing San Mateo City School
District (1980) PERB Decision No. 129 (fn. omitted).) The burden is on the charging party to
state facts demonstrating such impact. (Imperial at p. 9, citing Modesto City Schools (1983)
PERB Decision No. 291; Turlock Joint Union High School District (1996) PERB Decision
No. 1151, dismissal at p. 2.)
In its appeal, the Federation acknowledges that it has not provided facts showing any
impact of the September 2002 directive on the length of the workday or duty-free time.
Instead, the Federation states that it did not have sufficient opportunity to provide such
information during the Board agent's investigation because of confusion by the Board agent
regarding the definition of the "enrichment period." As a result, in the warning letter, the
Board agent viewed the enrichment period as the sixth period. In the amended charge, the
Federation was able to clarify that the enrichment period was a creature of a separate
agreement between the parties. The Federation also asked the Board agent to contact the
Federation if it should have questions before taking further action and to allow the Federation
to present additional information via written statements from Alisal teachers who had been
involved with the block schedule negotiations and who have been working under that
3

arrangement. The appeal states that the Federation did not receive a second warning letter
from the Board agent indicating the need for more evidence.
The Federation asks that the charge be remanded to the General Counsel's Office for
further investigation. There is no precedent cited for taking this step. The Federation has the
same access to Board precedent involving changes in instructional time as any other party
coming before the Board. It is up to the Federation in its charge, to provide "a clear and
concise statement of the facts and conduct alleged to constitute an unfair practice." (PERB
Reg. 32615(a)(5).3). Here, the charge and the amended charge did not state the "who, what,
when, where and how" of the unfair practice. (State of California (Department of Food and
Agriculture) (1994) PERB Decision No. 1071-S; United Teachers-Los Angeles (Ragsdale)
(1992) PERB Decision No. 944.) The Federation had adequate opportunity to do this. The
Federation also claims that the Board agent was wrongfully asking the Federation to provide
evidence, contrary to PERB Regulation 32615(a)(5). We disagree. The Board agent rightfully
found that the Federation did not allege facts showing the requisite impact on the workday or
duty-free time. Under these circumstances, we find it unnecessary to prolong either the
investigation or the dispute in this matter by remanding the charge.
ORDER
The unfair practice charge in Case No. SF-CE-2320-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
3PERB regulations are codified at California Code of Regulations, title 8, section
3 1001, et seq.
4

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STATE
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PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
July 14, 2003
Martin Fassler, Attorney
The Law Office
of
Robert J. Bezemek
1611 Telegraph Avenue, Suite 936
Oakland, CA 94612
Re: 	Salinas Valley Federation
of
Teachers, AFT Local 1020, AFL-CIO v. Salinas Union
High School District
Unfair Practice Charge No. SF-CE-2320-E; First Amended Charge
DISMISSAL LETTER
Dear Mr. Fassler:
The above-referenced unfair practice charge was filed on March 3, 2003. The Salinas Valley
Federation
of
Teachers, AFT Local 1020, AFL-CIO alleges that the Salinas Union High School
District violated the Educational Employment Relations Act (BERA) at section 3543.5
byunilaterally changing the terms
of
the enrichment period.
I indicated to you in my attached letter dated May 12, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to May 19, 2003, the charge would be dismissed. I later
granted Charging Party two extensions to file an amended charge.
On June 2, 2003, I received a letter from Martin Fassler, Charging Party's attorney addressing
the deficiencies I noted in my May 12, 2003, letter. The letter, which was not served on the
Respondent, specifically corrects my theory
of
the case and asserts that the enrichment period
is separate and distinct from the advisory period specified in the parties MOU.
On June 6, 2003, Charging Party filed a first amended charge. The amended charge and
original charge provide the following facts.
Salinas Valley Federation
of
Teachers is the exclusive bargaining representative for the
District's certificated employees. The District and Federation are parties to a collective
bargaining agreement which expires on June 30, 2003. With regard to work hours, Article
VII.C of the Agreement provides in relevant part as follows:

SF-CE-2320-E
July 14, 2003
Page 2
(
Full-time comprehensive school teachers and continuation school
teachers may voluntarily agree to teach a sixth (6 th) period
schedule, subject to the following conditions:
. For the 2000-2001 school year and thereafter the compensation
shall be one-sixth (I/6 th)
of
the unit members' regular schedule
salary.
Additionally, Article VII.B.2
of
the Agreement provides the following regarding advisory
periods:
The staff at any comprehensive school may modify its class
schedule to provide for a period during the day not to exceed
twenty (20) minutes for the purposes
of
creating an advisory
period or a period
of
sustained silent reading. 	Such schedule is
subject to the following conditions:
* 	* 	* 	* 	*
b. No additional preparation or paper grading will be required
of
the teacher. All materials must be provided by the school,
however, the teacher will be responsible to preview the material.
c.
	No teacher will be expected to act in the role
of
counselor.
The charge concerns the enrichment period at Alisal High School. Alisal High School has
approximately 69 enrichment classes; 49 regular enrichment classes and 25 dedicated
enrichment classes. Dedicated enrichment classes include such classes as Leadership, Health
Academy, GATE, Migrant Education and Freshman Focus. Regular enrichment classes
include such academic courses as Math, Honors English, and Music, as well as non-academic
classes like Football and Baseball.
Enrichment periods are not advisory periods as specified in the MOU. The term "enrichment"
period is stated only in an addendum to the 1994-1995 agreement, which provides in relevant
part:
SVFT and SUHSD agree that for 94-95 to a block schedule for
AHS which will consist
of
3 equal in length teaching periods, one
enrichment/tutorial period, and passing periods
of
10 minutes. It
is understood that the length
of
the periods and
enrichment/tutorial over the year must be at least 64,800 minutes.
(The periods will be either 98 or 99 minutes and the
enrichment/tutorial period will be no more than 40.)

SF-CE-2320-E
July 14, 2003
Page 3
C
The Federation contends that prior to September 2002, teachers at Alisal were not required to
provide any instruction during the enrichment periods but simply handed out District prepared
assignments
or
supervised students in independent study. More specifically, Charging
Party's
June 4, 2003, letters states "this new schedule included a 40-minute 'enrichment
period'
which
did not consist
of
or
require
or
include direct subject teaching. Teachers were required to
assist students in other ways." These "other ways" are not specified.
On September 6, 2002, Alisal Principal Candy McCarthy issued a memorandum to all
Mathteachers directing them to provide instruction during the enrichment period.
On
September 12, 2002, Federation President Phil Moore wrote Ms. McCarthy a letter
requesting to bargain the changes in the enrichment period responsibilities.
	On September 13,
2002, Ms. McCarthy responded to the request
by
stating the District did not have an obligation
to bargain the change.
The
Federation has filed a grievance over this matter. The grievance is currently at Step III
of
the process. However, as the grievance procedure does not culminate in binding arbitration,
deferral is inappropriate.
Based on the information provided in the original and amended charges, the charge still fails to
demonstrate a prima facie violation
of
the EERA, for the reasons provided below.
Charging Party contends that
by
requiring "direct instruction" during the enrichment period,
the District has unilaterally changed the parties' past practice
of
not requiring instruction. In
determining whether a party has violated EERA section 3543.S(c), PERB utilizes either the
"per se" or "totality
of
the conduct" test, depending on the specific conduct involved and the
effect
of
such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope ofrepresentation, 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.)
Charging Party asserts that the requirement to provide instruction during the enrichment period
constitutes a change in job duties. It is not clear why Charging Party believes providing
instruction is a change in teacher job duties since they are, in fact, teachers. Instead,
myreview
of
the facts indicates that the charge alleges a change in the amount
of
instruction
teachers are required to provide.
PERB case law on the change in instructional minutes provides guidance herein regarding the
scope
of
representation. 	In Imperial Unified School District (1990) PERB Decision No. 825,
PERB held that employers are generally free to alter the instructional schedule without prior
negotiation. However, when changes in the instructional day in tum affect the length
of
the
working day or existing duty-free time, the subject is negotiable. Moreover, to the extent
~~

SF-CE-2320-E
July 14, 2003
Page 4
( 	(
changes in preparation time affect the length
of
the employees' workday or existing duty-free
time, that subject is negotiable.
In Imperial, the District unilaterally changed the instructional day by adding three minutes to
periods two through six, for a total
of
fifteen additional instructional minutes. The workday
minutes, however, remained unchanged. The additional instructional minutes were taken from
periods before and after classes during which the teachers had previously been required to be
present but were not engaged in actual student instruction. In finding such a change did not
violate the EERA, the Board noted that the affect
of
the schedule change on teachers was
vague and contradictory. Moreover, the Board found that the Association failed to show the
schedule change had an impact on the length
of
the workday or on the existing duty-free
period, specifically the lunch period.
In Coming Union High School District (1984) PERB Decision No. 399, the Board analyzed a
situation in which the District unilaterally increased the instructional day by substituting a
teaching period for a preparation period. After hearing testimony that such a change increased
the amount
of
time teachers spent preparing after hours, the Board concluded that such a
change was unlawful.
Herein, the enrichment/tutorial period is not a duty-free period, but instead a period where
teachers are required to be present in the classroom. As such, requiring teachers to provide
instruction during this period affects the instructional minutes provided by teachers. Charging
Party does not allege or present any facts indicting the change has affected the teachers'
preparation time or duty-free time. Thus, following the Board's decision in Imperial, the
employer is not obligated to bargain over the change in instructional minutes. As such, the
charge must be dismissed.
Right to Appeal
Pursuant to PERB Regulations, 1 you may obtain a review of this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
1 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2320-E
July 14, 2003
Page 5
( 	(
A document
is
also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
ofeach other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON

SF-CE-2320-E
July 14, 2003
Page 6
General Counsel
C
By KristinL.Rosi	
..
Regional Attorney
£A.	
2
Attachment
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_S_T_A_T_E_O_ F _	 C_ A_L_IF_O _	 RN_ IA__ G_RA_Y_D_A_V_I_S_, G _ ov_e_rn_ o_r
PUBLIC EMPLOYMENT RELATIONS BOARD
(j San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
__r	__· ______________,( ....•_, ___
May 12, 2003
Patricia Lerman, Field Representative
Salinas Valley Federation of Teachers
7949 Wren Avenue, Suite A
Gilroy, CA 95020
Re: Salinas Valley Federation of Teachers, AFT Local 1020, AFL-CIO v. Salinas Union
High School District
Unfair Practice Charge No. SF-CE-2320-E
WARNING LETTER
Dear Ms. Lerman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 3, 2003. The Salinas Valley Federation of Teachers, AFT
Local 1020, AFL-CIO alleges that the Salinas Union High School District violated the
Educational Employment Relations Act (EERA)1 by requiring teachers to provide instruction
during the enrichment period.
Salinas Valley Federation of Teachers is the exclusive bargaining representative for the
District's certificated employees. The District and Federation are parties to a collective
bargaining agreement which expires on June 30, 2003. With regard to work hours, Article
VII.C of the Agreement provides in relevant part as follows:
Full-time comprehensive schoolteachers and continuation
schoolteachers may voluntarily agree to teach a sixth (6th) period
schedule, subject to the following conditions:
For the 2000-2001 school year and thereafter the
compensation shall be one-sixth (116th) of the unit members'
regular schedule salary.
This sixth period class has been termed an "enrichment" period by the parties and lasts
anywhere from 20 to 40 minutes, depending upon the school site.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2320-E
May 12, 2003
Page 2
(
The charge concerns the enrichment period at Alisal High School. Alisal High School has
approximately 69 enrichment classes; 49 regular enrichment classes and 25 dedicated
enrichment classes. Dedicated enrichment classes include such classes as Leadership, Health
Academy, GATE, Migrant Education and Freshman Focus. Regular enrichment classes
include such academic courses as Math, Honors English, and Music, as well as non-academic
classes like Football and Baseball.
The Federation contends that prior to September 2002, teachers at Alisal were not required to
provide any instruction during the enrichment periods but simply handed out District prepared
assignments or supervised students in independent study. On September 6, 2002, Alisal
Principal Candy McCarthy issued a memorandum to all Math teachers directing them to
provide instruction during the enrichment period.
On September 12, 2002, Federation President Phil Moore wrote Ms. McCarthy a letter
requesting.to bargain the changes in the enrichment period responsibilities. On September 13,
2002, Ms. McCarthy responded to the request by stating the District did not have an obligation
to bargain the change.
The Federation has filed a grievance over this matter. The grievance is currently at Step III
of
the process. However, as the grievance procedure does not culminate in binding arbitration,
deferral is inappropriate.
The above stated facts demonstrate a prima facie case
of
unilateral change.
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes either the
"per se" or "totality
of
the conduct" test, depending on the specific conduct involved and the
effect
of
such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain
criteria are met. Those criteria are: (1) the employer implemented a 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 Unified High School District (1982) PERB Decision No. 196.)
In order to prevail on a theory
of
transfer
of
job responsibilities, the charging party must
demonstrate actual changes in the employee's job duties.
	If
the changes are reasonably
comprehended within the existing job duties, an assignment
of
such duties, even
if
never
performed before, is not a violation. (Rio Hondo Community College District (1982) PERB
Decision No. 279.)
Herein it is uncontested that Ms. McCarthy instructed teachers to provide "small group
instruction/practice and individual instruction as needed." However, providing instruction to
students is entirely within the teachers job duties and as such, instructing them to do so while
they are in the classroom does not unilaterally change the job duties of the teachers. As the

SF-CE-2320-E
May 12, 2003
Page 3
r
teachers were already paid for this time and were already in the classroom their work hours
were not affected. As such, the charge fails to state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have fqe case number written on the top right hand
comer
of
the charge form. The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before May 19, 2003, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
~2-
Kristin L. Rosi
Regional Attorney
KLR