East Side Union High School District (PERB 1713E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EAST SIDE TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party,
v.
EAST SIDE UNION HIGH SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2298-E
PERB Decision No. 	1713
November 23, 2004
Appearances: California Teachers Association by Ramon E. Romero, Attorney, for East Side
Teachers Association, CTA/NEA; Burke, Williams & Sorensen by Darren C. Kameya,
Attorney, for East Side Union High School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the East Side Union High School District (District) to the
proposed decision (attached) of an administrative law judge (ALJ). The ALJ found that the
District violated the Educational Employment Relations Act (EERA)1 by unilaterally changing
its policy of using a particular form for the submission of public complaints against employees,
a violation of EERA section 3543.5(a), (b) and (c).2
1EERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references are to the Government Code.
2EERA section 3543.5 states, in pertinent part:
It is unlawful for a public school employer to do any of the
following:
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EAST SIDE TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party, 	Case No. SF-CE-2298-E
V . 	PERB Decision No. 1713
EAST SIDE UNION HIGH SCHOOL DISTRICT, 	November 23, 2004
Respondent.
Appearances: California Teachers Association by Ramon E. Romero, Attorney, for East Side
Teachers Association, CTA/NEA; Burke, Williams & Sorensen by Darren C. Kameya,
Attorney, for East Side Union High School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the East Side Union High School District (District) to the
proposed decision (attached) of an administrative law judge (ALJ). The ALJ found that the
District violated the Educational Employment Relations Act (EERA)' by unilaterally changing
its policy of using a particular form for the submission of public complaints against employees,
a violation of EERA section 3543.5(a), (b) and (c).2
EERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references are to the Government Code.
PEERA section 3543.5 states, in pertinent part:
It is unlawful for a public school employer to do any of the
following:

The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, the District's exceptions, and the response of the East Side Teachers Association,
CTA/NEA. The Board finds the ALJ' s findings of fact and conclusions oflaw to be free of
prejudicial error and adopts them as the decision of the Board itself, subject to the discussion
below.
DISCUSSION
Deferral to Arbitration
In its exceptions, the District asserts for the first time that this matter should be deferred
to arbitration. (See EERA sec. 3541.S(a).) Significantly, the District failed to raise deferral as
a defense in its initial response to the charge, in its answer to the complaint, and in its brief
submitted after the evidentiary hearing. Indeed, it was only after the ALJ ruled against the
District in the proposed decision that the District first asserted deferral. As such, the Board is
now confronted with an issue that has lingered for some time: whether deferral to arbitration is
still a jurisdictional defense in light of State of California (Department of Food and
Agriculture) (2002) PERB Decision No. 1473-S (Food & Agriculture).
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative. Knowingly providing an exclusive
representative with inaccurate information, whether or not in
response to a request for information, regarding the financial
resources of the public school employer constitutes a refusal or
failure to meet and negotiate in good faith.
2
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, the District's exceptions, and the response of the East Side Teachers Association,
CTA/NEA. The Board finds the ALJ's findings of fact and conclusions of law to be free of
prejudicial error and adopts them as the decision of the Board itself, subject to the discussion
below.
DISCUSSION
Deferral to Arbitration
In its exceptions, the District asserts for the first time that this matter should be deferred
to arbitration. (See EERA sec. 3541.5(a).) Significantly, the District failed to raise deferral as
a defense in its initial response to the charge, in its answer to the complaint, and in its brief
submitted after the evidentiary hearing. Indeed, it was only after the ALJ ruled against the
District in the proposed decision that the District first asserted deferral. As such, the Board is
now confronted with an issue that has lingered for some time: whether deferral to arbitration is
still a jurisdictional defense in light of State of California (Department of Food and
Agriculture) (2002) PERB Decision No. 1473-S (Food & Agriculture).
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative. Knowingly providing an exclusive
representative with inaccurate information, whether or not in
response to a request for information, regarding the financial
resources of the public school employer constitutes a refusal or
failure to meet and negotiate in good faith.
2

Prior to Food & Agriculture, the Board had held in Lake Elsinore School District
(1987) PERB Decision No. 646 (Lake Elsinore), that EERA section 3541.5(a)(2) established a
jurisdictional rule requiring that a charge be dismissed and deferred if certain requirements
were met. In Food & Agriculture, the Board held that Lake Elsinore was erroneously decided
to the extent it required deferral ev,en in instances where the employer was not willing to waive
procedural defenses, such as timeliness. In a footnote, the Board in Food & Agriculture stated:
At the time Dry Creek [Joint Elementary School District (1980)
PERB Order No. Ad-81a] was decided, the Board treated deferral
as an affirmative defense which could be waived. This issue is
not squarely before the Board and the Board therefore does not
overrule the portion of Lake Elsinore which discusses the
jurisdictional nature of Section 3 541. 5. [Fn. 7.]
Not long after Food & Agriculture, the Board issued Long Beach Community College
District (2003) PERB Decision No. 1564 (Long Beach) in which it held that the statute of
limitations under EERA was not jurisdictional, but rather an affirmative defense. In reaching
this holding, the Board discussed the public policy principles governing EERA. The Board
also carefully examined the language of EERA section 3541.5(a) and private sector precedent
under the National Labor Relations Act (NLRA) •
3
Based on the discussion and analysis contained in Food & Agriculture and Long Beach,
the Board now rejects that portion of Lake Elsinore holding that deferral to arbitration is
jurisdictional. Instead, as with the statute of limitations, the Board finds that deferral under
EERA must be raised as an affirmative defense. Given the extensive discussion of the
language ofEERA section 3541. l(a) in Long Beach, this holding should not be surprising.
As with the holding in Long Beach, the Board finds that its holding here regarding
deferral is consistent with public policy. Specifically, treatment of deferral as an affirmative
3The NLRA is codified at 29 U.S.C. section 141, et seq.
3
Prior to Food & Agriculture, the Board had held in Lake Elsinore School District
(1987) PERB Decision No. 646 (Lake Elsinore), that EERA section 3541.5(a)(2) established a
jurisdictional rule requiring that a charge be dismissed and deferred if certain requirements
were met. In Food & Agriculture, the Board held that Lake Elsinore was erroneously decided
to the extent it required deferral even in instances where the employer was not willing to waive
procedural defenses, such as timeliness. In a footnote, the Board in Food & Agriculture stated:
At the time Dry Creek [Joint Elementary School District (1980)
PERB Order No. Ad-81a] was decided, the Board treated deferral
as an affirmative defense which could be waived. This issue is
not squarely before the Board and the Board therefore does not
overrule the portion of Lake Elsinore which discusses the
jurisdictional nature of Section 3541.5. [Fn. 7.]
Not long after Food & Agriculture, the Board issued Long Beach Community College
District (2003) PERB Decision No. 1564 (Long Beach) in which it held that the statute of
limitations under EERA was not jurisdictional, but rather an affirmative defense. In reaching
this holding, the Board discussed the public policy principles governing EERA. The Board
also carefully examined the language of EERA section 3541.5(a) and private sector precedent
under the National Labor Relations Act (NLRA).
Based on the discussion and analysis contained in Food & Agriculture and Long Beach,
the Board now rejects that portion of Lake Elsinore holding that deferral to arbitration is
jurisdictional. Instead, as with the statute of limitations, the Board finds that deferral under
EERA must be raised as an affirmative defense. Given the extensive discussion of the
language of EERA section 3541.1(a) in Long Beach, this holding should not be surprising.
As with the holding in Long Beach, the Board finds that its holding here regarding
deferral is consistent with public policy. Specifically, treatment of deferral as an affirmative
The NLRA is codified at 29 U.S.C. section 141, et seq.
3

defense is necessary to preserve the scarce resources of PERB and the parties. The case at bar
is a prime example. Were the Board to allow the District to assert deferral for the first time in
its exceptions, both parties and PERB would have wasted an enormous amount of time and
money litigating the underlying charge. Instead, by requiring the District to assert deferral as
an affirmative defense such waste can be avoided while retaining all the rights provided by
EERA section 3541.S(a). Accordingly, the Board holds that deferral to arbitration under
EERA section 3541.5(a)(2) is not jurisdictional, but rather must be asserted as an affirmative
defense or waived. As the District failed to raise deferral in its answer, its deferral exception is
rejected.
Remedial Order
The District also asserts in its exceptions that the ALJ erred in ordering that the
disciplinary actions against employees D.R. and L.G. be rescinded. According to the District,
the ALJ's order fails to recognize that discipline may have been imposed even had the required
forms been used. This exception must also be rejected. The ALJ found that the use of the
public complaint form was required by established practice, and moreover, provided
employees with important information regarding the complaints against them. The District's
failure to provide these forms to D.R. and L.G. requires rescinding the disciplinary-actions
taken against them. However, nothing in the ALJ's order prevents the District from re-filing
the disciplinary actions once use of the public complaint forms has been reinstated.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the East Side Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(c), when it
4
defense is necessary to preserve the scarce resources of PERB and the parties. The case at bar
is a prime example. Were the Board to allow the District to assert deferral for the first time in
its exceptions, both parties and PERB would have wasted an enormous amount of time and
money litigating the underlying charge. Instead, by requiring the District to assert deferral as
an affirmative defense such waste can be avoided while retaining all the rights provided by
EERA section 3541.5(a). Accordingly, the Board holds that deferral to arbitration under
EERA section 3541.5(a)(2) is not jurisdictional, but rather must be asserted as an affirmative
defense or waived. As the District failed to raise deferral in its answer, its deferral exception is
rejected.
Remedial Order
The District also asserts in its exceptions that the ALJ erred in ordering that the
disciplinary actions against employees D.R. and L.G. be rescinded. According to the District,
the ALJ's order fails to recognize that discipline may have been imposed even had the required
forms been used. This exception must also be rejected. The ALJ found that the use of the
public complaint form was required by established practice, and moreover, provided
employees with important information regarding the complaints against them. The District's
failure to provide these forms to D.R. and L.G. requires rescinding the disciplinary-actions
taken against them. However, nothing in the ALJ's order prevents the District from re-filing
the disciplinary actions once use of the public complaint forms has been reinstated.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the East Side Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(c), when it

unilaterally ceased utilizing the "Formal Public Complaint" form in cases involving allegations
of sexual and racial harassment/discrimination and ceased providing a copy of the complaint to
the bargaining unit member named in the public complaint. This conduct also violated EERA
section 3543.S(a), by interfering with the rights of bargaining unit members to participate in
employee organizations of their own choosing, and EERA section 3543.S(b), by denying East
Side Teachers Association, CTA/NEA (Association) its right to represent employees in their
employment relations with the District.
Pursuant to EERA section 3541.S(c), it is hereby ordered that the District, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in such cases.
2. 	Interfering with bargaining unit employees' rights to participate in the
activities of an employee organization of their own choosing.
3. 	Denying the Association its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Upon re·quest, meet and negotiate with the Association over any future
decision and the effects thereof of ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in the public complaint.
5
unilaterally ceased utilizing the "Formal Public Complaint" form in cases involving allegations
of sexual and racial harassment/discrimination and ceased providing a copy of the complaint to
the bargaining unit member named in the public complaint. This conduct also violated EERA
section 3543.5(a), by interfering with the rights of bargaining unit members to participate in
employee organizations of their own choosing, and EERA section 3543.5(b), by denying East
Side Teachers Association, CTA/NEA (Association) its right to represent employees in their
employment relations with the District.
Pursuant to EERA section 3541.5(c), it is hereby ordered that the District, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1 . 	Unilaterally ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in such cases.
2. 	Interfering with bargaining unit employees' rights to participate in the
activities of an employee organization of their own choosing.
3. 	Denying the Association its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1 . 	Upon request, meet and negotiate with the Association over any future
decision and the effects thereof of ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in the public complaint.
5

2. 	Rescind the disciplinary action imposed on employees identified in these
proceedings as "D.R." and "L. G." and destroy all documentation of those actions; with
respect to D.R., reimburse him for lost wages as a result of his suspension, with interest at the
legal rate of seven percent per annum.
3. 	Post at all locations where notices to employees are customarily posted,
copies of the Notice attached hereto as an appendix. The Notice must be signed by an
authorized agent for the District, indicating that the District will comply with the terms of this
Order. 	Such posting shall be maintained for a period of thirty (30) consecutive calendar days.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered by an other material.
4. 	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. The District 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 Association.
Chairman Duncan and Member Whitehead joined in this Decision.
6
2. 	Rescind the disciplinary action imposed on employees identified in these
proceedings as "D. R." and "L. G." and destroy all documentation of those actions; with
respect to D. R., reimburse him for lost wages as a result of his suspension, with interest at the
legal rate of seven percent per annum.
3. 	Post at all locations where notices to employees are customarily posted,
copies of the Notice attached hereto as an appendix. The Notice must be signed by an
authorized agent for the District, indicating that the District will comply with the terms of this
Order. Such posting shall be maintained for a period of thirty (30) consecutive calendar days.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered by an other material.
4. 	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. The District 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 Association.
Chairman Duncan and Member Whitehead joined in this Decision.
6

APPENDIX	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. SF-CE-2298-E, East Side Teachers
Association, CTA/NEA v. East Side Union High School District, in which the parties had
the right to participate, it has been found that the East Side Union High School District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.S(c), when it unilaterally ceased utilizing the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceased
providing a copy of the complaint to the bargaining unit member named in the public
complaint. This conduct also violated EERA section 3543.S(a), by interfering with the rights
of bargaining unit members to participate in employee organizations of their own choosing,
and EERA section 3543.S(b), by denying East Side Teachers Association, CTA/NEA
(Association) its right to represent employees in their employment relations with the District.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in such cases.
2. 	Interfering with bargaining unit employees' rights to participate in the
activities of an employee organization of their own choosing.
3. 	Denying the Association its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Upon request, meet and negotiate with the Association over any future
decision and the effects thereof of ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in the public complaint.
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. SF-CE-2298-E, East Side Teachers
Association, CTA/NEA v. East Side Union High School District, in which the parties had
the right to participate, it has been found that the East Side Union High School District
District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.5(c), when it unilaterally ceased utilizing the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceased
providing a copy of the complaint to the bargaining unit member named in the public
complaint. This conduct also violated EERA section 3543.5(a), by interfering with the rights
of bargaining unit members to participate in employee organizations of their own choosing,
and EERA section 3543.5(b), by denying East Side Teachers Association, CTA/NEA
(Association) its right to represent employees in their employment relations with the District.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 . 	Unilaterally ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in such cases.
2. 	Interfering with bargaining unit employees' rights to participate in the
activities of an employee organization of their own choosing.
3. 	Denying the Association its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1 . 	Upon request, meet and negotiate with the Association over any future
decision and the effects thereof of ceasing to utilize the "Formal Public Complaint" form in
cases involving allegations of sexual and racial harassment/discrimination and ceasing to
provide a copy of the complaint to the bargaining unit member named in the public complaint.

2. 	Rescind the disciplinary action imposed on employees identified in these
proceedings as "D. R." and "L. G." and destroy all documentation of those actions; with
respect to D.R., reimburse him for lost wages as a result of his suspension, with interest at the
legal rate of seven percent per annum.
Dated: 	EAST SIDE UNION HIGH SCHOOL DISTRICT---------
By: --------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DA TE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2
2. Rescind the disciplinary action imposed on employees identified in these
proceedings as "D. R." and "L. G." and destroy all documentation of those actions; with
respect to D. R., reimburse him for lost wages as a result of his suspension, with interest at the
legal rate of seven percent per annum.
Dated: 	EAST SIDE 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

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
EAST SIDE TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party,
V.
EAST SIDE UNION HIGH SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2298-E
PROPOSED DECISION
(7/21/03)
Appearances: California Teachers Association, by Ramon E. Romero, Staff Attorney, for East
Side Teachers Association, CTA/NEA; Doug Emerson, Director of Employer/Employee
Relations, for East Side Union High School District.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
East Side Teachers Association, CTA/NEA (Association) initiated this action by filing
an unfair practice charge against the East Side Union High School District (District) on
October 31, 2002. Following its investigation of the charge, the general counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint on November 20, 2002.
The complaint alleges that the District unilaterally changed a policy of using a particular form
for the submission of public complaints against employees by substituting a new form for
public complaints involving harassment/discrimination. This conduct is alleged to violate
Educational Employment Relations Act (EERA or Act) section 3543.5(a), (b) and (c). 1
1 Unless otherwise indicated all statutory references are to the Government Code. The
EERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides as follows:
It shall be unlawful for a public school employer to do any of the
following:
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
EAST SIDE TEACHERS ASSOCIATION,
CTA/NEA,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SF-CE-2298-E
V . 	PROPOSED DECISION
(7/21/03)
EAST SIDE UNION HIGH SCHOOL DISTRICT,
Respondent.
Appearances: California Teachers Association, by Ramon E. Romero, Staff Attorney, for East
Side Teachers Association, CTA/NEA; Doug Emerson, Director of Employer/Employee
Relations, for East Side Union High School District.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
East Side Teachers Association, CTA/NEA (Association) initiated this action by filing
an unfair practice charge against the East Side Union High School District (District) on
October 31, 2002. Following its investigation of the charge, the general counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint on November 20, 2002.
The complaint alleges that the District unilaterally changed a policy of using a particular form
for the submission of public complaints against employees by substituting a new form for
public complaints involving harassment/discrimination. This conduct is alleged to violate
Educational Employment Relations Act (EERA or Act) section 3543.5(a), (b) and (c).'
Unless otherwise indicated all statutory references are to the Government Code. The
EERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides as follows:
It shall be unlawful for a public school employer to do any of the
following:

The District answered the complaint on December 11, 2002, denying all material
allegations.
The parties participated in an informal settlement conference on January 16, 2003, but
the matter was not resolved.
The undersigned conducted a formal hearing in Oakland on April, 11, 2003.2 With the
receipt of post-hearing briefs on June 16, 2003, the matter was submitted for decision.
FINDINGS OF FACT
The District is a public school employer within the meaning of section 3540.1 (k) of the
Act. 	The Association is an employee organization within the meaning of section 3540.l(d) and
an exclusive representative within the meaning of section 3540.l(e). There are approximately
1,200 employees in the bargaining unit.
The parties have had a collective bargaining agreement in effect at all times relevant to
this dispute. Article 28 of the agreement, entitled "Public Complaint," sets forth a procedure to
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2 At the commencement of the formal hearing, the Association asserted that it had not
been served a copy of the answer and that the allegations of the complaint should therefore be
deemed admitted. This motion was denied. The Association also moved to amend the
complaint to delete the allegation that the form for public complaints was produced as a result
of negotiations and to add the allegation that it first discovered the change in practice in May
2002 (rather than the practice necessarily changing on that date). Both the motions to amend
the complaint were granted.
2
The District answered the complaint on December 11, 2002, denying all material
allegations.
The parties participated in an informal settlement conference on January 16, 2003, but
the matter was not resolved.
The undersigned conducted a formal hearing in Oakland on April, 11, 2003. With the
receipt of post-hearing briefs on June 16, 2003, the matter was submitted for decision.
FINDINGS OF FACT
The District is a public school employer within the meaning of section 3540.1(k) of the
Act. The Association is an employee organization within the meaning of section 3540.1(d) and
an exclusive representative within the meaning of section 3540.1(e). There are approximately
1,200 employees in the bargaining unit.
The parties have had a collective bargaining agreement in effect at all times relevant to
this dispute. Article 28 of the agreement, entitled "Public Complaint," sets forth a procedure to
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
At the commencement of the formal hearing, the Association asserted that it had not
been served a copy of the answer and that the allegations of the complaint should therefore be
deemed admitted. This motion was denied. The Association also moved to amend the
complaint to delete the allegation that the form for public complaints was produced as a result
of negotiations and to add the allegation that it first discovered the change in practice in May
2002 (rather than the practice necessarily changing on that date). Both the motions to amend
the complaint were granted.
2

be followed before the District imposes any disciplinary action or issues any negative and/or
unsatisfactory evaluation as a result of information received through a complaint from a
member of the public or an employee of the District. The first step requires that the bargaining
unit member be "advised of the existence and substance of the complaint" within the period of
time specified. Thereafter, either party (the employee or administrator acting on the
complaint) has the right to schedule a meeting to discuss the complaint, at which the employee
may be represented by the Association. In addition, the accused has the right to respond to the
complaint orally or in writing after notification of the complaint.
Section 28.1.4 of Article 28 provides:
Complaints which are withdrawn or shown to be false shall
neither be placed in the unit member's personnel file nor utilized
in any evaluation or disciplinary action against the unit member.
Should the administrator determine that the substance of the
complaint is true, following this procedure, it may be placed in
the unit member's personnel file. Any complaint which is neither
determined to be true or [sic] false will be put in a "complaint
file" for a period of three years. Such a complaint will be
discarded after three years from the date of the complaint, unless
a similar complaint regarding the same unit member is filed; in
that case, the first complaint will become part of the new
complaint file and will be dealt with consistent with this
procedure as a part of the second complaint.
Section 28.1.4 also requires that the administrator prepare a written report if he/she
determines the complaint is either "true" or "neither true nor false." The report is to
summarize all information considered as well as the reasoning for the administrator's finding.
The administrator has discretion whether to issue any report if the complaint is found to be
false. Further, Article 28 provides for a right of appeal of the administrator's finding to the
District's governing board.
Beginning in 1980 and continuing through 2002, Bill Mustanich has served the
Association as either a grievance representative, representing employees at a particular school
3
be followed before the District imposes any disciplinary action or issues any negative and/or
unsatisfactory evaluation as a result of information received through a complaint from a
member of the public or an employee of the District. The first step requires that the bargaining
unit member be "advised of the existence and substance of the complaint" within the period of
time specified. Thereafter, either party (the employee or administrator acting on the
complaint) has the right to schedule a meeting to discuss the complaint, at which the employee
may be represented by the Association. In addition, the accused has the right to respond to the
complaint orally or in writing after notification of the complaint.
Section 28.1.4 of Article 28 provides:
Complaints which are withdrawn or shown to be false shall
neither be placed in the unit member's personnel file nor utilized
in any evaluation or disciplinary action against the unit member.
Should the administrator determine that the substance of the
complaint is true, following this procedure, it may be placed in
the unit member's personnel file. Any complaint which is neither
determined to be true or [sic] false will be put in a "complaint
file" for a period of three years. Such a complaint will be
discarded after three years from the date of the complaint, unless
a similar complaint regarding the same unit member is filed; in
that case, the first complaint will become part of the new
complaint file and will be dealt with consistent with this
procedure as a part of the second complaint.
Section 28.1.4 also requires that the administrator prepare a written report if he/she
determines the complaint is either "true" or "neither true nor false." The report is to
summarize all information considered as well as the reasoning for the administrator's finding.
The administrator has discretion whether to issue any report if the complaint is found to be
false. Further, Article 28 provides for a right of appeal of the administrator's finding to the
District's governing board.
Beginning in 1980 and continuing through 2002, Bill Mustanich has served the
Association as either a grievance representative, representing employees at a particular school
3

site, or as a grievance chair (or co-chair), representing employees district-wide. Over this
period of time, he has been called upon for representation in an average of between two and ten
times per year, district-wide, involving public complaints against unit members. In all cases in
which Mustanich was involved, the principal was the "administrator" who presided over the
complaint process. Warren Smith served as the grievance chair and co-chair beginning in 1985
until his retirement in 2002. He, too, personally dealt with approximately two to ten public
complaints each year. In 1997, a third co-chair was added, and the position was filled by Larry
Scharsch. Scharsch provided representation in public complaints cases as well.
The Association witnesses testified that in cases where a parent, student, member of the
public, or employee wishes to file a complaint against a bargaining unit member, the District
utilizes a form entitled "Formal Public Complaint Against a District Employee" for processing
complaints against unit members. The form contains blanks for the following information: (1)
date, (2) identity of principal/immediate supervisor with whom the complaint is lodged,
(3) name, address and telephone number of the complainant, (4) identity of the person against	(3)
whom the complaint is being filed, (5) a description of the nature of the complaint, and (6) a
signature line for the complainant, immediately following a statement certifying that the
information provided is true and accurate to the best of the complainant's knowledge. The
form is in triplicate; the original goes to the administrator, one copy to the person against
whom the complaint is lodged, and another to the complainant.
If a sustained complaint is appealed to the governing board, the administrator's decision
upheld, and the complaint form entered in the employee's personnel file, the Association
usually files a grievance, claiming lack of just cause under Article 27 ("Discipline") of the
agreement. Once, a principal rejected the complaint, but the complainant's parent persuaded
4
site, or as a grievance chair (or co-chair), representing employees district-wide. Over this
period of time, he has been called upon for representation in an average of between two and ten
times per year, district-wide, involving public complaints against unit members. In all cases in
which Mustanich was involved, the principal was the "administrator" who presided over the
complaint process. Warren Smith served as the grievance chair and co-chair beginning in 1985
until his retirement in 2002. He, too, personally dealt with approximately two to ten public
complaints each year. In 1997, a third co-chair was added, and the position was filled by Larry
Scharsch. Scharsch provided representation in public complaints cases as well.
The Association witnesses testified that in cases where a parent, student, member of the
public, or employee wishes to file a complaint against a bargaining unit member, the District
utilizes a form entitled "Formal Public Complaint Against a District Employee" for processing
complaints against unit members. The form contains blanks for the following information: (1)
date, (2) identity of principal/immediate supervisor with whom the complaint is lodged,
name, address and telephone number of the complainant, (4) identity of the person against
whom the complaint is being filed, (5) a description of the nature of the complaint, and (6) a
signature line for the complainant, immediately following a statement certifying that the
information provided is true and accurate to the best of the complainant's knowledge. The
form is in triplicate; the original goes to the administrator, one copy to the person against
whom the complaint is lodged, and another to the complainant.
If a sustained complaint is appealed to the governing board, the administrator's decision
upheld, and the complaint form entered in the employee's personnel file, the Association
usually files a grievance, claiming lack of just cause under Article 27 ("Discipline") of the
agreement. Once, a principal rejected the complaint, but the complainant's parent persuaded
4

the governing board to have the complaint placed in the employee's personnel file. The
Association prevailed in a grievance claiming a violation of the Article 28 procedure.
Although the public complaint form did not result from negotiations between the
parties, the Association never objected to its use. The Association approved of the form's use
because it served as a tool for eliciting details of the complaint from the complainant and
required that the complainant sign the form with an acknowledgement of the certification.
Early on, a public complaint was likely to be documented on a paper other than the form. But
within the past "five to seven" years, Mustanich has seen the public complaint form used
"quite regularly." During this period of time, Mustanich has made it his regular practice to
request a copy of the form, and the District has always complied.
There was no direct evidence that the District has an explicit rule or guidance regarding
when it requires a complainant to complete the formal complaint form. Association witnesses
admitted that in some cases only a verbal complaint is made against the unit member. In these
cases however, no disciplinary action has ever resulted. The complaint was either dropped or
informally resolved (e.g., the employee might agree to undergo counseling).
When a complainant has come forward with a written complaint but it was not prepared
on the public complaint form, the District administrator has attached the writing to the public
complaint form and provided both documents to the Association. The complainant's signature
will appear on the public complaint form. Scharsch testified that the Association interprets
Article 28 as requiring notification of the charges, and that whenever the complainant has
reduced his or her complaint to writing, the documents must be produced.
In 2000, approximately, Mustanich became aware of a form entitled "Title IX
Harassment/Discrimination Complaint." A District attorney produced it for the Association
when a unit member expressed a desire to file a complaint of sexual harassment against an
5
the governing board to have the complaint placed in the employee's personnel file. The
Association prevailed in a grievance claiming a violation of the Article 28 procedure.
Although the public complaint form did not result from negotiations between the
parties, the Association never objected to its use. The Association approved of the form's use
because it served as a tool for eliciting details of the complaint from the complainant and
required that the complainant sign the form with an acknowledgement of the certification.
Early on, a public complaint was likely to be documented on a paper other than the form. But
within the past "five to seven" years, Mustanich has seen the public complaint form used
"quite regularly." During this period of time, Mustanich has made it his regular practice to
request a copy of the form, and the District has always complied.
There was no direct evidence that the District has an explicit rule or guidance regarding
when it requires a complainant to complete the formal complaint form. Association witnesses
admitted that in some cases only a verbal complaint is made against the unit member. In these
cases however, no disciplinary action has ever resulted. The complaint was either dropped or
informally resolved (e.g., the employee might agree to undergo counseling).
When a complainant has come forward with a written complaint but it was not prepared
on the public complaint form, the District administrator has attached the writing to the public
complaint form and provided both documents to the Association. The complainant's signature
will appear on the public complaint form. Scharsch testified that the Association interprets
Article 28 as requiring notification of the charges, and that whenever the complainant has
reduced his or her complaint to writing, the documents must be produced.
In 2000, approximately, Mustanich became aware of a form entitled "Title IX
Harassment/Discrimination Complaint." A District attorney produced it for the Association
when a unit member expressed a desire to file a complaint of sexual harassment against an

administrator. During the same period in which the public complaint form has been in use, the
Association has been aware of at least ten of the public complaints involving allegations of
sexual harassment against unit members. Mustanich represented employees in most or all of
these cases. Smith has also represented employees charged with sexual harassment. Neither
Mustanich nor Smith ever witnessed the Title IX form being utilized in such cases involving a
unit member.
Scharsch represented two unit members against whom complaints had been lodged in
May 2002. In both cases, Scharsch requested a copy of the complaint and in each case he was
denied it by Doug Emerson, the District's director of employer/employee relations. Emerson
advised Scharsch that copies would not be provided because the cases involved Title IX
· harassment/discrimination. Emerson confirmed at the hearing that copies of the Title IX
complaints are not provided to the employee or the Association, citing reasons of
confidentiality.
The first of these two cases involved a teacher (identified here as "D.R."), and the
complaint involved racial discrimination. Emerson announced as a result of his investigation
that the employee would receive discipline in the form of a nine-day suspension without pay.
In the second case involving sexual harassment, Emerson indicated that the employee
(identified as "L. G.") would be disciplined by having a letter placed in his personnel file. In
both cases, Emerson communicated the substance of the complaint to Scharsch verbally.
However, in the second case, Emerson refused to reveal the name of the complainant,
disclosing only that the person was a classified employee. In both cases, Emerson testified, the
employees admitted the substance of the complaints.
According to Emerson, the District produced the Title IX complaint form in 1994. It
was developed to ensure compliance with federal civil rights law. Emerson believed the
6
administrator. During the same period in which the public complaint form has been in use, the
Association has been aware of at least ten of the public complaints involving allegations of
sexual harassment against unit members. Mustanich represented employees in most or all of
these cases. Smith has also represented employees charged with sexual harassment. Neither
Mustanich nor Smith ever witnessed the Title IX form being utilized in such cases involving a
unit member.
Scharsch represented two unit members against whom complaints had been lodged in
May 2002. In both cases, Scharsch requested a copy of the complaint and in each case he was
denied it by Doug Emerson, the District's director of employer/employee relations. Emerson
advised Scharsch that copies would not be provided because the cases involved Title IX
harassment/discrimination. Emerson confirmed at the hearing that copies of the Title IX
complaints are not provided to the employee or the Association, citing reasons of
confidentiality.
The first of these two cases involved a teacher (identified here as "D. R."), and the
complaint involved racial discrimination. Emerson announced as a result of his investigation
that the employee would receive discipline in the form of a nine-day suspension without pay.
In the second case involving sexual harassment, Emerson indicated that the employee
(identified as "L. G.") would be disciplined by having a letter placed in his personnel file. In
both cases, Emerson communicated the substance of the complaint to Scharsch verbally.
However, in the second case, Emerson refused to reveal the name of the complainant,
disclosing only that the person was a classified employee. In both cases, Emerson testified, the
employees admitted the substance of the complaints.
According to Emerson, the District produced the Title IX complaint form in 1994. It
was developed to ensure compliance with federal civil rights law. Emerson believed the
6

Association provided input as to the development of the form, but he provided no specifics. A
copy of the Title IX form appeared in a 1998-1999 District parent/student handbook.
However, there was no affirmative evidence that the Association was provided a copy of the
handbook or that an officer with appropriate negotiating authority viewed the contents of the
handbook.
In September 2000, the Title IX form was used in a complaint against the same D.R.
identified above where the claim was sexual harassment.3 Although Smith was aware of the
case and believes he referred the employee directly to legal counsel for representation because
it was a serious case, he denied seeing any documentation in the case.
Under the District's practice, every Title IX complaint triggers an investigation. After
the investigation is completed the form may be retained in the investigative file or destroyed.
Even if discipline results from such a sexual or racial harassment/discrimination complaint, the
Title IX complaint form is not placed in the employee's personnel file. 	Emerson agreed that
regardless of whether the complaint involves sexual or racial harassment/discrimination,
Article 28 prescribes the procedure for the investigation of all complaints.
According to Emerson, the District interprets Article 28 as requiring production of a
copy of the complaint only if it seeks to enter a public complaint form in the employee's
personnel file. This rule does not prevent the District from utilizing another form so long as it
does not seek to enter it in the file. Emerson testified that the District continues to use and
produce the public complaint form for cases not involving sexual or racial
harassment/discrimination.
3 A copy of that complaint indicates that the form was last revised in March 1995.
7
Association provided input as to the development of the form, but he provided no specifics. A
copy of the Title IX form appeared in a 1998-1999 District parent/student handbook.
However, there was no affirmative evidence that the Association was provided a copy of the
handbook or that an officer with appropriate negotiating authority viewed the contents of the
handbook.
In September 2000, the Title IX form was used in a complaint against the same D. R.
identified above where the claim was sexual harassment." Although Smith was aware of the
case and believes he referred the employee directly to legal counsel for representation because
it was a serious case, he denied seeing any documentation in the case.
Under the District's practice, every Title IX complaint triggers an investigation. After
the investigation is completed the form may be retained in the investigative file or destroyed.
Even if discipline results from such a sexual or racial harassment/discrimination complaint, the
Title IX complaint form is not placed in the employee's personnel file. Emerson agreed that
regardless of whether the complaint involves sexual or racial harassment/discrimination,
Article 28 prescribes the procedure for the investigation of all complaints.
According to Emerson, the District interprets Article 28 as requiring production of a
copy of the complaint only if it seeks to enter a public complaint form in the employee's
personnel file. This rule does not prevent the District from utilizing another form so long as it
does not seek to enter it in the file. Emerson testified that the District continues to use and
produce the public complaint form for cases not involving sexual or racial
harassment/discrimination.
A copy of that complaint indicates that the form was last revised in March 1995.
7

ISSUE
Did the District unilaterally change its policy regarding the processing of public
complaints?
CONCLUSIONS OF LAW
A public school employer is required to meet and negotiate in good faith with the
exclusive representative of a bargaining unit of its employees concerning matters within the
scope of representation. (Sec. 3540.l(h); 3543.5(c).) An employer's unilateral
implementation of a change as to a negotiable subject, absent a valid defense, constitutes a per
se violation of its duty to meet and negotiate in good faith. 	(Pajaro Valley Unified School
District (1978) PERB Decision No. 51.) No finding of over-all subjective bad faith is required
because such conduct, just like a flat refusal, necessarily obstructs bargaining and frustrates the
objectives of the Act. (California State Employees' Assn. v. Public Employment Relations Bd.
(1996) 51 Cal.App.4 th 923, 934-935, citing NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM
2177].)
The elements of a unilateral change violation are: ( 1) the employer breached or altered
the parties' written agreement or its own established past practice; (2) such action was taken
without giving the exclusive representative notice or an opportunity to bargain over the
change; (3) the change is not merely an isolated departure from the policy, but amounts to a
change of policy, i.e., the change has a generalized effect or continuing impact on bargaining
unit members' terms and conditions of employment; and (4) the change in policy concerns a
matter within the scope ofrepresentation. (Grant Joint Union High School District (1982)
PERB Decision No. 196.)
The Association contends that all of the required elements for a unilateral change case
have been met: (1) the District had established a past practice of using the public complaint
8
ISSUE
Did the District unilaterally change its policy regarding the processing of public
complaints?
CONCLUSIONS OF LAW
A public school employer is required to meet and negotiate in good faith with the
exclusive representative of a bargaining unit of its employees concerning matters within the
scope of representation. (Sec. 3540.1(h); 3543.5(c).) An employer's unilateral
implementation of a change as to a negotiable subject, absent a valid defense, constitutes a per
se violation of its duty to meet and negotiate in good faith. (Pajaro Valley Unified School
District (1978) PERB Decision No. 51.) No finding of over-all subjective bad faith is required
because such conduct, just like a flat refusal, necessarily obstructs bargaining and frustrates the
objectives of the Act. (California State Employees' Assn. v. Public Employment Relations Bd.
(1996) 51 Cal.App.4 923, 934-935, citing NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM
2177].)
The elements of a unilateral change violation are: (1) the employer breached or altered
the parties' written agreement or its own established past practice; (2) such action was taken
without giving the exclusive representative notice or an opportunity to bargain over the
change; (3) the change is not merely an isolated departure from the policy, but amounts to a
change of policy, i.e., the change has a generalized effect or continuing impact on bargaining
unit members' terms and conditions of employment; and (4) the change in policy concerns a
matter within the scope of representation. (Grant Joint Union High School District (1982)
PERB Decision No. 196.)
The Association contends that all of the required elements for a unilateral change case
have been met: (1) the District had established a past practice of using the public complaint
8

form in virtually all situations where a complaint arose against an employee; (2) it reversed its
policy when it began using the Title IX form, without prior notice or opportunity to bargain
having been provided; (3) the change had a generalized effect or continuing impact on
bargaining unit members; and (4) the matter is a negotiable subject because the public
complaint process described in the contract is a procedure for the imposition of discipline, and
discipline of the type imposed here (i.e., suspensions without pay and documentation in the
personnel file) is within EERA's scope of representation definition.
The District contends that there can be no violation because the form was not
negotiated and because the Association failed to establish a consistent practice regarding its
use. To the extent the contract addresses the imposition of discipline as a result of public
complaints, the District argues that it complied with the terms of Article 28 with respect to
D.R. and L.G. In addition, the District contends that the form is not a matter within the scope	D.
of representation.
In this case, the Association predicates its case on an alteration of the District's "own
established past practice." PERB has stated that a binding past practice is one that is "regular
and consistent" or "historic and accepted." (Pajaro Valley Unified School District, supra,
PERB Decision No. 51.) 	In Temple City Unified School District (1989) PERB Decision No.
782, PERB held that the exclusive representative had acquiesced in a policy of individual
negotiations to "buy out" employees in order to obtain their early retirement. The evidence
demonstrated a total of 12 buy-outs over a 17-year period. The union became involved in the
negotiations in five of the cases after they were initiated by the employer and had knowledge
of the practice for more than four years. PERB concluded that the practice itself had existed
for at least six years before the union filed its charge.
9
form in virtually all situations where a complaint arose against an employee; (2) it reversed its
policy when it began using the Title IX form, without prior notice or opportunity to bargain
having been provided; (3) the change had a generalized effect or continuing impact on
bargaining unit members; and (4) the matter is a negotiable subject because the public
complaint process described in the contract is a procedure for the imposition of discipline, and
discipline of the type imposed here (i.e., suspensions without pay and documentation in the
personnel file) is within EERA's scope of representation definition.
The District contends that there can be no violation because the form was not
negotiated and because the Association failed to establish a consistent practice regarding its
use. To the extent the contract addresses the imposition of discipline as a result of public
complaints, the District argues that it complied with the terms of Article 28 with respect to
R. and L.G. In addition, the District contends that the form is not a matter within the scope
of representation.
In this case, the Association predicates its case on an alteration of the District's "own
established past practice." PERB has stated that a binding past practice is one that is "regular
and consistent" or "historic and accepted." (Pajaro Valley Unified School District, supra,
PERB Decision No. 51.) In Temple City Unified School District (1989) PERB Decision No.
782, PERB held that the exclusive representative had acquiesced in a policy of individual
negotiations to "buy out" employees in order to obtain their early retirement. The evidence
demonstrated a total of 12 buy-outs over a 17-year period. The union became involved in the
negotiations in five of the cases after they were initiated by the employer and had knowledge
of the practice for more than four years. PERB concluded that the practice itself had existed
for at least six years before the union filed its charge.
9

I find that the District had a "historic and accepted practice" of utilizing the formal
public complaint form in cases of public complaints (i.e., those lodged against a unit member
by a student, parent, employee, or other member of the public) and that when such a public
complaint form was completed the District administrator provided the employee with a copy of
it. Mustanich competently testified that use of the form had become "quite regular" during the
past five to seven years and that whenever he has requested a copy of it the administrator has
obliged.
The fact the public complaint form was not negotiated is irrelevant. The Association
was aware of its use and acquiesced in its use. I reject the District's argument that the failure
of the Association to negotiate the complaint prevents it from claiming a past practice on
which to base its case of unilateral change. It is well-settled that unwritten past practices may
support a charge of unilateral change. (See Pajaro Valley Unified School District, supra,
PERB Decision No. 51.)
I further find that this practice applied to cases involving sexual or racial
harassment/discrimination complaints. Mustanich and Smith recalled at least ten cases of this
kind during the period of time the District was regularly utilizing the public complaint form,
and neither representative ever saw the Title IX form during this time. Mustanich was always
provided a copy of a public complaint form upon request when he represented an employee.
That he made no exception as to any particular type of cases implies that District
administrators provided him with a copy of the public complaint form in the
harassment/discrimination cases as well.
The District claimed that the Title IX form was used instead in these cases prior to 2002
(presumably as early as 1994, when it was developed) but failed to carry its burden that it had
established such a contrary practice. Although the District suggested that the policy had
10
I find that the District had a "historic and accepted practice" of utilizing the formal
public complaint form in cases of public complaints (i.e., those lodged against a unit member
by a student, parent, employee, or other member of the public) and that when such a public
complaint form was completed the District administrator provided the employee with a copy of
it. Mustanich competently testified that use of the form had become "quite regular" during the
past five to seven years and that whenever he has requested a copy of it the administrator has
obliged.
The fact the public complaint form was not negotiated is irrelevant. The Association
was aware of its use and acquiesced in its use. I reject the District's argument that the failure
of the Association to negotiate the complaint prevents it from claiming a past practice on
which to base its case of unilateral change. It is well-settled that unwritten past practices may
support a charge of unilateral change. (See Pajaro Valley Unified School District, supra,
PERB Decision No. 51.)
I further find that this practice applied to cases involving sexual or racial
harassment/discrimination complaints. Mustanich and Smith recalled at least ten cases of this
kind during the period of time the District was regularly utilizing the public complaint form,
and neither representative ever saw the Title IX form during this time. Mustanich was always
provided a copy of a public complaint form upon request when he represented an employee.
That he made no exception as to any particular type of cases implies that District
administrators provided him with a copy of the public complaint form in the
harassment/discrimination cases as well.
The District claimed that the Title IX form was used instead in these cases prior to 2002
(presumably as early as 1994, when it was developed) but failed to carry its burden that it had
established such a contrary practice. Although the District suggested that the policy had
10

always been to use the Title IX form for harassment/discrimination cases by making an offer of
proof at the outset of the hearing that the Association was aware of this form prior to its use in
these cases, no such proof was ever adduced. It appeared that the District intended to establish
that Smith was aware of the use of the Title IX form in the previous case against D.R.
occurring in 2000. However, Smith credibly testified that he saw no documentation in that
case. Emerson admitted that Article 28 applies to all cases of public complaints whether or not
they involve harassment/discrimination.
The language of Article 28 also supports a finding that District administrators had a
"regular and consistent" practice of utilizing the form. 	(Pajaro Valley Unified School District,
supra, PERB Decision No. 51, citing, inter alia, NLRB v. Allied Products Corp. (6 th Cir. 1977)
548 F.2d 644 [94 LRRM 2433], modifying (1975) 218 NLRB 1246 [89 LRRM 1441].) The
form was one prepared by the District and distributed to all schools. It is entitled "Formal
Public Complaint Against District Employee"; the title of Article 28 is "Public Complaint."
The correspondence of the language is direct; hence it can be inferred that administrators were
notified in some manner by the District as to the form's intended use when it was distributed.
Moreover, the wording of section 28.1.4 implies that the public complaints are typically
committed to writing, since it speaks of the complaint being retained and placed in the
personnel and investigative files. A verbal complaint cannot be "placed" in a file unless it is
first reduced to writing. Any administrator reading Article 28 would naturally assume the best
practice for complying with the procedure would be to have the complainant complete the
form. 	Thus, the evidence that an administrator occasionally acted upon a complaint despite the
fact that it was only verbal does not prevent a finding of the existence of a "regular and
11
always been to use the Title IX form for harassment/discrimination cases by making an offer of
proof at the outset of the hearing that the Association was aware of this form prior to its use in
these cases, no such proof was ever adduced. It appeared that the District intended to establish
that Smith was aware of the use of the Title IX form in the previous case against D. R.
occurring in 2000. However, Smith credibly testified that he saw no documentation in that
case. Emerson admitted that Article 28 applies to all cases of public complaints whether or not
they involve harassment/discrimination.
The language of Article 28 also supports a finding that District administrators had a
"regular and consistent" practice of utilizing the form. (Pajaro Valley Unified School District,
supra, PERB Decision No. 51, citing, inter alia, NLRB v. Allied Products Corp. (6" Cir. 1977)
548 F.2d 644 [94 LRRM 2433], modifying (1975) 218 NLRB 1246 [89 LRRM 1441].) The
form was one prepared by the District and distributed to all schools. It is entitled "Formal
Public Complaint Against District Employee"; the title of Article 28 is "Public Complaint."
The correspondence of the language is direct; hence it can be inferred that administrators were
notified in some manner by the District as to the form's intended use when it was distributed.
Moreover, the wording of section 28.1.4 implies that the public complaints are typically
committed to writing, since it speaks of the complaint being retained and placed in the
personnel and investigative files. A verbal complaint cannot be "placed" in a file unless it is
first reduced to writing. Any administrator reading Article 28 would naturally assume the best
practice for complying with the procedure would be to have the complainant complete the
form. Thus, the evidence that an administrator occasionally acted upon a complaint despite the
fact that it was only verbal does not prevent a finding of the existence of a "regular and
11

consistent" practice of completing the form.4 Even assuming the administrator's capacity for
discretion in directing the complainant to complete the public complaint form, the evidence
clearly establishes that whenever the form was completed it was provided to the Association
upon request. The Association predicates its case both on the fact that the District had a
practice of requiring the public complaint form and providing it whenever documentation was
available.
Next, I find that the Association has established that the District altered its policy when
it began using the Title IX form in harassment/discrimination cases without having provided
the Association prior notice of the change in policy. I have found that the District used the
public complaint form in all cases prior to May 2002. In the cases ofD. R. and L. G., the
District utilized the Title IX form instead of the public complaint form. Because the District
suggests that no change in policy occurred in May 2002, it naturally makes no claim that it
provided notice of a change in policy. To the extent it may be arguing that notice of the
change was imputed to the Association based on the representation provided to D.R. in the
earlier case, resulting in a waiver by inaction of the right to bargain, I reject this claim based on
my finding above of no notice. (See Victor Valley Union High School District (1986) PERB
Decision No. 565.)
I further find that the change in policy has a generalized effect and continuing impact
on the terms and conditions of employment for bargaining unit members. Emerson asserted
that use of the Title IX form was the proper procedure for cases involving
harassment/discrimination complaints. Emerson's position as director of employer/employee
4 The Association witnesses' testimony that no verbal complaint ever resulted in formal
discipline of any kind could be read as suggesting that verbal complaints were intended by the
victim to be informal but that the District would nevertheless become involved. While the
District could not force an employee to fill out a form, an administrator might or might not
have conditioned his/her involvement in the matter on completion of the form.
12
consistent" practice of completing the form." Even assuming the administrator's capacity for
discretion in directing the complainant to complete the public complaint form, the evidence
clearly establishes that whenever the form was completed it was provided to the Association
upon request. The Association predicates its case both on the fact that the District had a
practice of requiring the public complaint form and providing it whenever documentation was
available.
Next, I find that the Association has established that the District altered its policy when
it began using the Title IX form in harassment/discrimination cases without having provided
the Association prior notice of the change in policy. I have found that the District used the
public complaint form in all cases prior to May 2002. In the cases of D. R. and L. G., the
District utilized the Title IX form instead of the public complaint form. Because the District
suggests that no change in policy occurred in May 2002, it naturally makes no claim that it
provided notice of a change in policy. To the extent it may be arguing that notice of the
change was imputed to the Association based on the representation provided to D. R. in the
earlier case, resulting in a waiver by inaction of the right to bargain, I reject this claim based on
my finding above of no notice. (See Victor Valley Union High School District (1986) PERB
Decision No. 565.)
I further find that the change in policy has a generalized effect and continuing impact
on the terms and conditions of employment for bargaining unit members. Emerson asserted
that use of the Title IX form was the proper procedure for cases involving
harassment/discrimination complaints. Emerson's position as director of employer/employee
" The Association witnesses' testimony that no verbal complaint ever resulted in formal
discipline of any kind could be read as suggesting that verbal complaints were intended by the
victim to be informal but that the District would nevertheless become involved. While the
District could not force an employee to fill out a form, an administrator might or might not
have conditioned his/her involvement in the matter on completion of the form.
12

relations places him in the responsible authority position to establish District policy.
Therefore, the evidence demonstrates that the District intends to follow this practice in the
future and that its conduct in these two cases is not a mere isolated deviation from prior policy.
Lastly, I find that the matter of the utilization of a form for documenting public
complaints is a matter within the scope of representation. A subject is negotiable if it is
specifically enumerated in the Act's scope ofrepresentation definition. (Sec. 3543.2.)
Section 3543.2(b) identifies "causes and procedures for disciplinary action, other than
dismissal, including a suspension of pay for up to 15 days, affecting certificated employees."
The public complaint procedure whereby formal complaints involving
harassment/discrimination were documented in the public complaint form and provided to the
Association must be considered a procedure for disciplinary action, because Emerson admitted
that the public complaint procedure applied to the cases ofD. R. and L. G. and because his
investigation in both cases resulted in the imposition of discipline short of dismissal. (See
Arvin Union School District (1983) PERB Decision No. 300.) Also, because Article 28
provides that the public complaint form may be placed in the employee's personnel file, it is a
procedure for the evaluation of certificated employees, another enumerated subject under
section 3543.2(a). (Compton Community College District (1990) PERB Decision No. 798.)
The fact that the District claims its policy is never to include the Title IX form does not affect
this conclusion. Emerson included his own letter summarizing his findings in the L. G. case in
the employee's personnel file. Also section 28.1.4, by its express terms, applies when a public
complaint will be used to impose discipline or will result in a negative evaluation pursuant to
13
relations places him in the responsible authority position to establish District policy.
Therefore, the evidence demonstrates that the District intends to follow this practice in the
future and that its conduct in these two cases is not a mere isolated deviation from prior policy.
Lastly, I find that the matter of the utilization of a form for documenting public
complaints is a matter within the scope of representation. A subject is negotiable if it is
specifically enumerated in the Act's scope of representation definition. (Sec. 3543.2.)
Section 3543.2(b) identifies "causes and procedures for disciplinary action, other than
dismissal, including a suspension of pay for up to 15 days, affecting certificated employees."
The public complaint procedure whereby formal complaints involving
harassment/discrimination were documented in the public complaint form and provided to the
Association must be considered a procedure for disciplinary action, because Emerson admitted
that the public complaint procedure applied to the cases of D. R. and L. G. and because his
investigation in both cases resulted in the imposition of discipline short of dismissal. (See
Arvin Union School District (1983) PERB Decision No. 300.) Also, because Article 28
provides that the public complaint form may be placed in the employee's personnel file, it is a
procedure for the evaluation of certificated employees, another enumerated subject under
section 3543.2(a). (Compton Community College District (1990) PERB Decision No. 798.)
The fact that the District claims its policy is never to include the Title IX form does not affect
this conclusion. Emerson included his own letter summarizing his findings in the L. G. case in
the employee's personnel file. Also section 28.1.4, by its express terms, applies when a public
complaint will be used to impose discipline or will result in a negative evaluation pursuant to
13

Article 28.5 As I have found, the public complaint form appears to have been developed by the
District to assist administrators in fulfilling these provisions of the contract.
Accordingly, I conclude that the District unilaterally changed its policy regarding the
process of public complaints in violation ofEERA section 3543.S(c). This conduct also denied
the Association its right to represent bargaining unit members, specifically D.R. and L. G., in
violation of EERA section 3543.S(b). It further interfered with the rights of these bargaining
unit members to participate in the activities of an employee organization of their own
choosing, in violation of EERA section 3543.S(a).
REMEDY
Section 3541.S(c) grants PERB
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.
In this case it has been determined that the District violated its obligation to negotiate in
good faith by unilaterally ceasing to use the public complaint form in cases of sexual and racial
harassment/discrimination and ceasing to provide a copy of the complaint to the bargaining
unit member named in such cases, in violation of section 3543.S(c). The District will be
ordered to return to the status quo ante which existed prior to the implementation of the change
in policy. In the event the District chooses to cease using the form in the future, it must give
the Association reasonable notice and an opportunity to negotiate about that decision.
5 The core values embodied in the public complaint form vis-a-vis the unit member are
due process (i.e., notice) and the right of confrontation (i.e., identity of the complainant and the
certification requirement that bears on credibility). (See Cal. Const., arts. 7 and 15; U.S.
Const., 6th and 14 th Amds.)
14
Article 28." As I have found, the public complaint form appears to have been developed by the
District to assist administrators in fulfilling these provisions of the contract.
Accordingly, I conclude that the District unilaterally changed its policy regarding the
process of public complaints in violation of EERA section 3543.5(c). This conduct also denied
the Association its right to represent bargaining unit members, specifically D. R. and L. G., in
violation of EERA section 3543.5(b). It further interfered with the rights of these bargaining
unit members to participate in the activities of an employee organization of their own
choosing, in violation of EERA section 3543.5(a).
REMEDY
Section 3541.5(c) grants PERB
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.
In this case it has been determined that the District violated its obligation to negotiate in
good faith by unilaterally ceasing to use the public complaint form in cases of sexual and racial
harassment/discrimination and ceasing to provide a copy of the complaint to the bargaining
unit member named in such cases, in violation of section 3543.5(c). The District will be
ordered to return to the status quo ante which existed prior to the implementation of the change
in policy. In the event the District chooses to cease using the form in the future, it must give
the Association reasonable notice and an opportunity to negotiate about that decision.
The core values embodied in the public complaint form vis-a-vis the unit member are
due process (i.e., notice) and the right of confrontation (i.e., identity of the complainant and the
certification requirement that bears on credibility). (See Cal. Const., arts. 7 and 15; U. S.
Const., 6" and 14" Amds.)
14

In addition, it is appropriate to order that the disciplinary action imposed on D.R. and
L. G. be rescinded and all documentation of those actions be destroyed. Since D.R. lost wages
as a result of his suspension, the District should also be required to reimburse him for these lost
wages, with interest at the legal rate of 7 percent per annum. This affirmative action is
necessary to effectuate the purposes of the Act, which imposes a duty on the public school
employer to meet and negotiate in good faith and refrain from taking unilateral action on
matters within the scope of representation. The concern is less with the veracity of the
complainant's charges against the employees (the District claims the employees admitted the
allegations) than with the denial of the Association's ability to represent the employees in a
meaningful way. In L. G.'s case, Emerson refused even to inform Scharsch of the identity of
the complainant.
It is also appropriate that the District be required to post a notice incorporating the
terms of this order. The Notice should be signed by an authorized agent of the District
indicating that it will comply with the terms thereof. The Notice shall not be reduced in size.
Posting of such notice will provide employees with notice that the District has acted in an
unlawful manner and is being required to cease and desist from this activity and will comply
with the order. It effectuates the purposes of the EERA that employees be informed of the
resolution of the controversy and the District's readiness to comply with the ordered remedy.
(Davis Unified School District (1980) PERB Decision No. 116; see also Placerville Union
School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, and pursuant to section 3541.S(b), it is hereby ordered that the East Side Union High
School District and its representatives shall:
15
In addition, it is appropriate to order that the disciplinary action imposed on D. R. and
L. G. be rescinded and all documentation of those actions be destroyed. Since D. R. lost wages
as a result of his suspension, the District should also be required to reimburse him for these lost
wages, with interest at the legal rate of 7 percent per annum. This affirmative action is
necessary to effectuate the purposes of the Act, which imposes a duty on the public school
employer to meet and negotiate in good faith and refrain from taking unilateral action on
matters within the scope of representation. The concern is less with the veracity of the
complainant's charges against the employees (the District claims the employees admitted the
allegations) than with the denial of the Association's ability to represent the employees in a
meaningful way. In L. G.'s case, Emerson refused even to inform Scharsch of the identity of
the complainant.
It is also appropriate that the District be required to post a notice incorporating the
terms of this order. The Notice should be signed by an authorized agent of the District
indicating that it will comply with the terms thereof. The Notice shall not be reduced in size.
Posting of such notice will provide employees with notice that the District has acted in an
unlawful manner and is being required to cease and desist from this activity and will comply
with the order. It effectuates the purposes of the EERA that employees be informed of the
resolution of the controversy and the District's readiness to comply with the ordered remedy.
(Davis Unified School District (1980) PERB Decision No. 116; see also Placerville Union
School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, and pursuant to section 3541.5(b), it is hereby ordered that the East Side Union High
School District and its representatives shall:
15

A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the East
Side Teachers Association, CTA/NEA as the exclusive representative of its certificated
employees by unilaterally ceasing to use the "Formal Public Complaint" form in cases
involving allegations of sexual and racial harassment/discrimination and ceasing to provide a
copy of the complaint to the bargaining unit member named in such cases.
2. 	By the same conduct, interfering with bargaining unit employees' right
to participate in the activities of an employee organization of their choosing.
3. 	By the same conduct, denying to the East Side Teachers Association,
CTA/NEA rights guaranteed by the Educational Employment Relations Act, including the
right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1. 	Upon request, meet and negotiate with the East Side Teachers
Association, CTA/NEA over any future decision and the effects thereof of ceasing use of the
"Formal Public Complaint" form.
2. 	Within thirty (30) workdays of service of a final decision in this matter,
rescind the disciplinary action imposed on D.R. and L. G. and destroy all documentation of
those actions; with respect to D.R., reimburse him for lost wages as a result of his suspension,
with interest at the legal rate of 7 percent per annum.
3. 	Within seven (7) workdays of service of a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies of the Notice
attached hereto as an appendix. The Notice must be signed by an authorized agent for the
District, indicating that the District will comply with the terms of this Order. Such posting
16
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the East
Side Teachers Association, CTA/NEA as the exclusive representative of its certificated
employees by unilaterally ceasing to use the "Formal Public Complaint" form in cases
involving allegations of sexual and racial harassment/discrimination and ceasing to provide a
copy of the complaint to the bargaining unit member named in such cases.
2. 	By the same conduct, interfering with bargaining unit employees' right
to participate in the activities of an employee organization of their choosing.
3. 	By the same conduct, denying to the East Side Teachers Association,
CTA/NEA rights guaranteed by the Educational Employment Relations Act, including the
right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1 . 	Upon request, meet and negotiate with the East Side Teachers
Association, CTA/NEA over any future decision and the effects thereof of ceasing use of the
"Formal Public Complaint" form.
2. 	Within thirty (30) workdays of service of a final decision in this matter,
rescind the disciplinary action imposed on D. R. and L. G. and destroy all documentation of
those actions; with respect to D. R., reimburse him for lost wages as a result of his suspension,
with interest at the legal rate of 7 percent per annum.
3. 	Within seven (7) workdays of service of a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies of the Notice
attached hereto as an appendix. The Notice must be signed by an authorized agent for the
District, indicating that the District will comply with the terms of this Order. Such posting
16

shall be maintained for a period of thirty (30) consecutive calendar days. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by an
other material.
'
4. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the San Francisco Regional Director of the Public Employment Relations Board, in
writing, of the steps the employer has taken to comply with the terms of this Order. Continue
to report in writing to the Regional Director periodically thereafter as directed. All reports to
the Regional Director shall be served concurrently on the Charging Party.
Pursuant to PERB Regulation 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the PERB 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. (PERB Regulation 32300.)
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.
(PERB Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
17
shall be maintained for a period of thirty (30) consecutive calendar days. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by an
other material.
4. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the San Francisco Regional Director of the Public Employment Relations Board, in
writing, of the steps the employer has taken to comply with the terms of this Order. Continue
to report in writing to the Regional Director periodically thereafter as directed. All reports to
the Regional Director shall be served concurrently on the Charging Party.
Pursuant to PERB Regulation 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the PERB 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. (PERB Regulation 32300.)
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.
(PERB Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
17

Sheet which meets the requirements of PERB Regulation 32135(d), provided the filing party
also places the original, together with the required number of copies and proof of service, in
the U.S. mail. (PERB Regulation 32135(b), (c) and (d); see also PERB Regulations 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 PERB Regulations 32300, 32305, 32140, and
32135(c).)
18
Sheet which meets the requirements of PERB Regulation 32135(d), provided the filing party
also places the original, together with the required number of copies and proof of service, in
the U.S. mail. (PERB Regulation 32135(b), (c) and (d); see also PERB Regulations 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 PERB Regulations 32300, 32305, 32140, and
32135(c).)
Donn Ginoza
Administrative Law Judge	Administrative Law Judge
18

PROOF OF SERVICE BY MAIL
C.C.P. 1013a
I declare that I am a resident of or employed in the County of Sacramento, California. I
am over the age of 18 years and not a party to the within entitled cause. The name and address
of my residence or business is Public Employment Relations Board, 1031 18th Street,
Sacramento, CA 95814-4174. I ani readily familiar with the ordinary practice of the business
of collecting, processing and depositing correspondence in the United States Postal Service and
that the correspondence will be deposited the same day with postage thereon fully prepaid.
On November 23, 2004, I served the attached PERB Decision No. 1713, East Side
Union High School District, Case No. SF-CE-2298-E on the parties listed below by placing a
true copy thereof enclosed in a sealed envelope for collection and mailing in the United States
Postal Service following ordinary business practices at Sacramento, California addressed as
follows:
Doug Emerson, Director of Employer/Employee
Relations
East Side Union High School District
830 N. Capitol Avenue
San Jose, CA 95133
Darren C. Kameya, Attorney
E.	E. Luis Saenz, Attorney
Burke, Williams & Sorensen
450 Sansome Street, Suite 1200
San Francisco, CA 94111-3320
Ramon E. Romero, Staff Attorney
California Teachers Association
P.O. Box 921
Burlingame, CA 94011-0921
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on November 23, 2004, at Sacramento, California.
Teresa M. Stewart
(Type or print name)
PROOF OF SERVICE BY MAIL
C.C.P. 1013a
I declare that I am a resident of or employed in the County of Sacramento, California. I
am over the age of 18 years and not a party to the within entitled cause. The name and address
of my residence or business is Public Employment Relations Board, 1031 18th Street,
Sacramento, CA 95814-4174. I am readily familiar with the ordinary practice of the business
of collecting, processing and depositing correspondence in the United States Postal Service and
that the correspondence will be deposited the same day with postage thereon fully prepaid.
On November 23, 2004, I served the attached PERB Decision No. 1713, East Side
Union High School District, Case No. SF-CE-2298-E on the parties listed below by placing a
true copy thereof enclosed in a sealed envelope for collection and mailing in the United States
Postal Service following ordinary business practices at Sacramento, California addressed as
follows:
Doug Emerson, Director of Employer/Employee
Relations
East Side Union High School District
830 N. Capitol Avenue
San Jose, CA 95133
Darren C. Kameya, Attorney
Luis Saenz, Attorney
Burke, Williams & Sorensen
450 Sansome Street, Suite 1200
San Francisco, CA 94111-3320
Ramon E. Romero, Staff Attorney
California Teachers Association
P.O. Box 921
Burlingame, CA 94011-0921
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on November 23, 2004, at Sacramento, California.
Teresa M. Stewart
(Type or print name) 	(Signature)