Delano Union Elementary School District (PERB 1908E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DELANO ELEMENTARY TEACHERS
ASSOCIATION,
Charging Party,
v.
DELANO UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-4881-E
PERB Decision No. 	1908
J u n e 	6, 	2007
Appearances: 	California Teachers Association by Robert E. Lindquist, Attorney, for Delano
Elementary Teachers Association; Atkinson, Andelson, Loya, Ruud & Romo by Salvador O.
Holguin, Jr., Attorney, for Delano Union Elementary School District.
Before Shek, McKeag and Neuwald, Members.
DECISION
NEUWALD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Delano Elementary Teachers Association (DUESTA or
Association) of a Board agent's dismissal (attached) of an unfair practice charge. 	The charge
alleged that the Delano Union Elementary School District (District) violated the Educational
Employment Relations Act (EERA)1 by unilaterally changing matters within the scope of
bargaining without first giving the Association notice and an opportunity to bargain the
changes. 	Additionally, the Association alleges that the District violated the Association's
representational rights and did so when the District allegedly discriminated against and
imposed reprisals against Association officers. 	Further, the Association alleges that the
EERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references are to the Government Code.

District interfered with its rights as protected by EERA. 	The Association alleged that this
conduct constituted a violation of EERA sections 3543.1 and 3543.5.
The Board has reviewed the unfair practice charge, the first amended unfair practice
charge, the second amended unfair practice charge, the warning and dismissal letters, the
appeal of the dismissal and the response to the appeal of the dismissal. 	In light of its review,
the Board adopts the Board agent's factual findings. The Board adopts the Board agent's
reasoning and affirms his dismissal and deferral of the four unilateral change allegations
consistent with the discussion below. 	Additionally, the Board adopts and affirms the Board
agent's dismissal of the unilateral change allegation pertaining to the grievance process as well
as the retaliation allegations subject to the discussion below. Lastly, the Board remands this
case to the Office of the General Counsel for issuance of a complaint, as set forth below,
regarding the interference issue.
SUPPLEMENTAL FACTS
The following facts supplement the Board agent's finding of facts. 	There was a
collective bargaining agreement (CBA) between the parties that expired on June 30, 2005. The
expired CBA contained a grievance procedure that culminated in binding arbitration.
The District and DUESTA negotiated the following matters for a successor contract:
• 	On October 25, 2005, DUESTA and the District met to negotiate a successor to the
CBA. 	In the course of bargaining, DUESTA made a written proposal to revise
Article XII: 	Teacher Safety and Working Conditions, Section A. The District then
made a written counter-proposal.
• 	On March 16, 2004, the parties re-negotiated Section C, C.I and C.la-3. The
parties spent an entire day clarifying the intent of the language.
• 	On April 1, 2004, the parties again discussed intent at the bargaining session.
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Grievances
The Association filed approximately sixteen grievances between April 15, 2005 and
November 7, 2005. The grievances were as follows:
• 	On April 15, 2005, Association President, Mark Kotch (Kotch), with
Superintendent, Ronald A. Garcia (Garcia), filed a Level II Grievance on behalf of a
teacher regarding the District's denial of her Notice of Unsafe Working Conditions;
• 	On June 7, 2005, Kotch filed a Level II Grievance with Assistant Superintendent,
Diane Cox (Cox), challenging the District's denial of a voluntary transfer to an
8 th grade Language Arts position at La Vina Middle School;
• 	On June 7, 2005, Kotch filed a Level II Grievance with Assistant Superintendent
Cox challenging the denial of a voluntary transfer to La Vina Middle School;
• 	On June 7, 2005, the Association filed a Level II Grievance with Garcia challenging
the District's misapplication of the Agreement's Union Release Days provision;
• 	On June 20, 2005, the Association filed a Level II Grievance by Vice President,
Diane Jacobs (Jacobs), with Garcia on behalf of Terrace Teacher, Vicki Wyatt, over
the denial of her transfer rights;
• 	On June 28, 2005, Kotch filed a Level II Grievance with Assistant Superintendent,
Rosalina Rivera (Rivera), challenging the District's failure to notify DUESTA of a
District-wide Language Arts Committee;
• 	On July 5, 2005, Kotch filed a Level II Grievance with Assistant Superintendent
Rivera challenging the District's failure to notify DUESTA of a District-wide Local
Education Agency Addendum Committee;
• 	On August 16, 2005, Kotch filed a Level I Grievance with site Principal,
Martin Bans (Bans), challenging the misapplication of the employee evaluation
procedure;
• 	On August 19, 2005, Jacobs filed a Level I Grievance with site Principal Bans
challenging his refusal to accommodate a work-hours modification for Cecil
Avenue Middle School Band/Chorus Teacher, Deborah Fata;
• 	On August 19, 2005, Jacobs filed a Level I Grievance with Terrace Principal,
Stephanie Lucas, regarding an evaluation issue for all affected Terrace teachers;
• 	On September 19, 2005, Jacobs filed a Level II Grievance with interim Assistant
Superintendent, Daniel Knapp, over a denial of transfer rights to Terrace Teacher,
Ledlie Skidmore (Skidmore);
W	
3

• 	On September 26, 2005, Jacobs filed a Level I Grievance with Valle Vista
Principal, Rosa Mojarra, on behalf of a teacher over her involuntary transfer to a
combination assignment;
• 	On September 27, 2005, Kotch filed a Level II Grievance with Garcia alleging that
the District violated provisions of the Peer Assistance and Review (PAR)
memorandum of understanding (MOU);
• 	On September 30, 2005, Kotch filed a Level II Grievance with Garcia challenging
the District's denial of Kotch's right to visit school sites as a Teacher/Member of
the Joint PAR Panel;
• 	On October 21, 2005, Kotch filed a Level II Grievance with Garcia challenging the
District's misapplication of DUESTA's contractual right to access all teachers
District e-mail addresses;
• 	On October 24, 2005, Kotch filed a Level II Grievance with Garcia challenging the
District's placement of a letter of reprimand;
• 	On October 27, 2005, Jacobs filed a Level I Grievance with La Vina Middle School
Administrator, Lisa Bell, over an evaluation issue that affected all La Vina teachers;
• 	On October 31, 2005, Jacobs filed a Level II Grievance with Garcia over the
placement of a disciplinary letter in a District personnel file of a teacher; and
• 	On November 7, 2005, Kotch filed a Level II Grievance with Garcia over his
refusal to follow contract procedures in an evaluation dispute Kotch had with his
principal.
Release Time Requests
On April 27, 2005, the California Teachers Association (CTA) requested release time
for Kotch and John Roskell (Roskell), to attend a May 2, 2005, Program Improvement Districts
Training. The following day, Garcia denied the request stating, in pertinent part:
The District will not approve release time for Mr. Kotch and/or
Mr. Roskell to attend this activity during the District's crucial
California Standards testing period which is designated as
April 18, 2005 through May 16, 2005. The students will benefit
from the presence of their teachers who are experienced and can
utilize this time to prepare for the test. The District is willing to
provide Program Improvement training at the District level
during an alternative period which will not affect the academic
and/or instruction period for our students. 	In addition, the
District will consider release time to attend CTA sponsored
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training in Program Improvement outside of our established
testing window.
The following day, Kotch sent Garcia an e-mail stating:
Apparently you misunderstand the testing schedule at [Cecil
Avenue Middle School] CAMS. We are not testing on Monday,
May 2, 2005. We are testing Tuesday, Wednesday and Thursday
of that same week.
My students will be taking an open book/open note short answer
test on the novels their respective sections are reading, on May 2,
2005. They will also begin an essay assignment.
We have completed our review for CAT 6/CST and I anticipate
no difficulties in attending the workshop. 	In fact, it would be
wise if a district administrator atended [sic] this workshop too—it
would facilitate better communication between management and
teachers and improve our chances at surviving the years ahead.
In response, Garcia stated, in pertinent part:
Let me reassure you, that I am not confused in regard to the
testing schedule for Cecil Avenue Middle School on Monday,
May 2, 2005. Prior to responding to Mike Ford's request (see
attached response), I spoke with both Jason Kashwer, Principal,
and Marty Bans, Vice-Principal, to verify the testing
schedule/period and to obtain their input regarding the request.
The decision stands as communicated to Mr. Ford in writing and
per our discussion by phone today. 	The District's support for
training opportunities involving you and Mr. Roskell are stated
and would apply to other teachers at Cecil Avenue Middle School
as appropriate.
The District also denied Kotch's May 11, 2005, leave request stating:
The purpose of this communication is to inform you that your
notice did not meet the two day notice as per Article XIV, Rights
of the Exclusive Representative. In addition, our records
indicate, (see attached) that you and 'certain teachers', have
exceeded the 18 days paid leave per school year. While you may
purchase additional days at the daily substitute rate, this has not
been authorized or approved by this office. 	We continue to have
concerns regarding the loss of instructional time especially at our
Program Improvement sites incurred by our students when the
regular classroom teacher is absent. For your benefit, a copy of
the Absence Analysis by Type for 'CTA Barg/Neg', is enclosed.
55

ASSOCIATION'S APPEAL
The Association appealed the Board agent's determinations that:
1. 	The unilateral change allegation pertaining to the grievance procedure be
dismissed;
2. 	The four remaining unilateral change violations be deferred to arbitration; and
3. 	The Association failed to present sufficient evidence to establish a prima facie
case of discrimination against the Association's president.
The Association first argues that the Board agent erred in determining that the Association
failed to establish a prima facie case regarding a unilateral change to the grievance process.2
The Association asserts that the Board agent "ignored EERA's application of the Duty to
Bargain in good faith to grievance processing by public school employers." The Association
further states:
[T]he [Board agent] failed to credit the [Association's]
allegations that the [District] had changed the prevailing policy
under the Agreement's article XV, abandoned the parties prior
practice of engaging in meaningful steps to settle grievances.
Similarly, the [Board agent] failed to credit the [Association's]
allegations that the [District] had changed the prevailing policy
under the Agreement's article XV, by failing to sign eight
knowledge months [sic] of the filing of a grievance as had been
the parties prior practice.
Second, the Association argues that the Board agent erred in deferring the four
remaining unilateral change allegations to arbitration because: 	(1) "[T]he dispute did not arise
within a 'stable collective bargaining relationship'"; (2) "[T]he [District] exhibit[ed] enmity
The Board agent found that the Association established a prima facie case regarding
the following four unilateral changes to the procedure for: 	(1) reporting unsafe conditions; (2)
requesting transfers to other schools; (3) requesting leave time by requiring the union to make
a request 48-hours in advance; and (4) requesting leave time by giving itself the authority to
reject requests for operational reasons. 	These alleged unilateral changes are discussed in
further detail below.
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and animosity toward the [Association] and the EERA right of public employees;" and (3) The
"contract and its meaning" did not lie at the "center of the dispute".
The Association states that the unstable collective bargaining relationship is evidenced
by "the extraordinary frequency of grievances the [Association] has been forced to file over its
violations of the [CBA], numbering 'about 25 pending at level three, mediation.'" The
Association argues that the 2006 decision by an administrative law judge (ALJ), Delano Union
Elementary School District (2006) PERB Decision No. HO-U-889 (Delano), demonstrates
enmity. 	The ALJ held that the District violated EERA section 3543.5(a) by retaliating against
Kotch because of his exercise of protected rights. The Association also argues that the Board
agent's "own determination regarding the merits of the four unilateral changes alleged in the
Second Amended Charge also stands as compelling evidence of the [District's] animosity to its
Duty to Bargain in good faith, in violation of EERA subdivision 3543.5(c)." The Association
states that the District "failed to demonstrate the absence of an enmity or animosity toward the
[Association] or towards the EERA rights of public employees."
The Association argues that the unilateral change allegations should not be deferred
because its claim involves two critical organizational rights: 	(1) "[t]he reporting of unsafe
working conditions by union officials and the representation of unit members affected by these
unsafe conditions" and (2) "the [Association's] right to use released time the [sic] conduct
union business." The Association also argues that the District's unilateral change allegations
amounted "to a change of policy, not merely a default in a contractual obligation."
Third, the Association asserts that the Board agent erred when he determined that the
Association failed to establish a prima facie case of discrimination or reprisal against the
Association president. 	The Association states that it "demonstrated more than 'some evidence'
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of the [District's] unlawful motive." In support, the Association directs the Board to the
following excerpts from Kotch's declaration:
• 	Garcia's admission that he took action adverse to Kotch's employment interests
"because of my [Kotch's] position as a Union president and my union activities."
• 	Garcia feeling that Kotch's union activities were too "high profile" and "had been
too public."
• 	Garcia's admission that he interfered with union representation related to PAR
because the Association's President was "attempting to usurp and/or undermine the
authority of District Principals."
The Association further argues that "[t]he Second Amended Charge also pleaded and
evidenced circumstantial evidence of the [District's] unlawful motive through reliance on
PERB's own recent findings of discrimination and retaliation against the [Association's]
Union's President" in the Delano decision.
THE DISTRICT'S RESPONSE
First, the District argues that the Association failed to "state clear, concise and
sufficient facts with specificity to allege a prima facie case that the District abrogated the
grievance procedures of the CBA." The District notes that Delano does not make any findings
regarding the grievance procedure. 	The District further notes that nothing in the record
demonstrates that it refused to process the 16 grievances. The District points out that the
grievances are being held in abeyance at the requests of both parties. The District also notes
that one grievance was settled while DUESTA withdrew three others.
Second, the District argues that the dismissal and deferral to arbitration of the four
unilateral change allegations is appropriate. The District states that the Association failed to
demonstrate that the "grievance procedure would be futile."
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Third, in regards to the retaliation allegations, the District argues that:
[T]he Association fails to state what the specific protected
activity that led to the alleged adverse employment action.
Instead, DUESTA relies on the general proposition that [Kotch]
is the President of the Association and engaged in general
representation of DUESTA members, including most often filing
grievances on their behalf. 	[The Association] set[s] forth a litany
of things he has done as DUESTA President, but fail[s] to
connect any of them as the nexus leading to the District's
placement of a memorandum concerning complaints of his
unprofessional conduct towards [Hunter] into his personnel file,
for his denial of his transfer request, or for the District's refusal
of his demand to treat him differently from other teachers and
forego evaluating his performance for three years.
The District also notes that, if anything, all the Association alleges is temporal proximity
which is insufficient to establish a prima facie case.
DISCUSSION
---------	Unilateral Change Allegations
Section 3541.5(a)(2) of EERA states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining] agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
This section essentially codifies the policy developed by the National Labor Relations Board
(NLRB) regarding deferral to arbitration proceedings and awards. 	(Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81a (Dry Creek)3.) In Collyer
Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer) and subsequent cases, the
"While there is no statutory deferral requirement imposed on the [NLRB], that agency
has voluntarily adopted such a policy both with regard to post-arbitral and pre-arbitral award
situations." (Dry Creek.)
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NLRB articulated standards under which deferral to the contractual grievance procedure is
appropriate in prearbitral situations. These requirements are:
1. 	The dispute must arise within a stable collective bargaining relationship where
there is no enmity by the respondent toward the charging party;
2. 	The respondent must be ready and willing to proceed to arbitration and must
waive contract-based procedural defenses; and
3. 	The contract and its meaning must lie at the center of the dispute.4
The Association argues that deferral is inappropriate because there is enmity on behalf
of the District as well as an unstable collective bargaining environment. 	Specifically, the
Association alleges the following in support of its position:
• 	The "[c]harge presents a pattern of bad faith bargaining by the [District] extending
from approximately 7 September 1990 to date."
• 	The Delano decision "which held that the Employer violated EERA
section 3543.5(a) by retaliating against Union President Kotch because of his
exercise of protected rights."
The Board notes that the expired CBA contained a binding arbitration clause. 	In State
of California, Department of Youth Authority (1992) PERB Decision No. 962-S, the Board
held that an arbitration clause does not generally continue in effect after expiration of a CBA
except for disputes that: 	(1) involve facts and occurrences that arose before expiration;
(2) involve post-expiration conduct that infringes on rights accrued or vested under the
agreement; or (3) under normal principles of contract interpretation, survive expiration of the
agreement. 	In the case before us, all disputes involve facts and occurrences that arose before
the agreement expired. The CBA expired on June 30, 2005. The Association claimed that the
District made unilateral changes to the CBA on the following dates:
(1) Article XII, Teacher Safety and Working Conditions beginning on April 13, 2005;
(2) Article XI, Vacancies/Transfers/Reassignments beginning on May 11, 2005;
(3) Article XIV, Rights of the Exclusive Representative beginning on May 24, 2005; and
(4) Article XV, Grievance Procedure beginning on April 15, 2005.
Because the events arose before the expiration of the contract, the fact that the contract expired
does not prohibit deferral.
10

• 	"[T]he extraordinary frequency of grievances the [Association] has been forced to
file over [the District's] violations of the Agreement, numbering 'about 25 pending
at level three, mediation.' 	Clearly, the parties have no collective bargaining
relationship, they merely have repeated disputes regarding its violation";
• 	The "express admissions of anti-union animus by officials of the [District],
including but not limited to, the admission that the [District] refused to 'consider
deferring' President Kotch's evaluation because of his 'high profile.'"
• 	The District's reprimanding the union president "as a result of the [Association's]
exercise of its EERA subdivision 3543.2(a) right to represent unit members
regarding work load and the evaluation of the employees and its EERA
subdivision 3543.2(a) right to consult with a public school employer regarding the
definition of educational objectives, the determination of the content of courses and
curriculum, and other curriculum-related issues. 	Specifically, [the District]
reprimanded President Kotch's representation activities as 'unprofessional and
inappropriate.'"
• 	The District sought an impasse determination by PERB which PERB denied on
November 10,2005.
The Association also cites the following alleged violations of its right to represent unit
members as further support of the District's enmity and an unstable collective bargaining
environment:
• 	Skidmore regarding "unsafe, hazardous, unhealthy, or potentially dangerous
condition" related to noxious odor present in classroom 12 of the Terrace School.
"Garcia failed and refused to accept and to process the written report of an 'unsafe,
hazardous, unhealthy, or potentially dangerous condition' in her classroom . . .
which Union President Kotch unsuccessfully attempted to file on her behalf."
• 	Data regarding a reasonable accommodation for a physical disability.
• 	"Denying unit members at the Almond Tree and La Vina Middle Schools the right
to be represent[ed] by the [Association] and to confer with the [Association]
regarding [PAR]. 	Specifically, on or about 27 September 2005 Respondent Garcia
prohibited Union President and teacher member of the District's Joint [PAR] Panel
from visiting the Almond Tree and La Vina Middle School sites."
Our research of PERB case law revealed that the Board has yet to fully address the
issue of a stable collective bargaining environment necessary for deferral. 	Because EERA
11

section 3541.5 is modeled after the NLRB deferral standard, it is appropriate to look to the
private sector. 	(See Dry Creek.)
Generally, the NLRB will not defer "[w]here there is no stable collective bargaining
relationship, or where the respondent's conduct indicates a rejection of collective bargaining
and organizational rights of employees." (Hardin, Developing Labor Law Fourth Ed., Vol. 1,
- - -
pp. 1391-1394.)5 In determining whether there is a stable collective bargaining environment,
5In United Aircraft Corp. (1972) 204 NLRB 879 [83 LRRM 1411], the NLRB stated:
It is true that in Collyer, supra, we noted, as one of the factors
supporting our decision to defer to the parties' available
grievance and arbitration machinery, that there had been a long
relationship between the company and the union and a lack of any
employer hostility towards unions in general. We continue to
believe that an exploration of the nature of the relationship
between the parties is relevant to the question of whether in a
particular case we ought or ought not defer contractually
resolvable issues to the parties' own machinery. Where the facts
show a sufficient degree of hostility, either on the facts of the
case at bar alone or in the light of prior unlawful conduct of
which the immediate dispute may fairly be said to be simply a
continuation, there is serious reason to question whether we ought
to defer to arbitration.
However, the nature and scope of the acts currently alleged to
show such hostility, together with a measure of the current impact
of any past such acts, must all be evaluated and then together be
weighed against evidence as to the developing or maturing nature
of the parties' collective-bargaining relationship and the proven
effectiveness (or lack thereof) of the available grievance and
arbitration machinery. Upon a totality of those facts, it must then
be determined whether the parties' agreed-upon grievance and
arbitration machinery can reasonably be relied on to function
properly and to resolve the current disputes fairly.
If the conduct here complained of, viewed in the context of
serious past unlawful conduct, appears to establish a continuing
pattern of efforts to defeat the purposes of our Act then,
particularly if the evidence also should indicate that the parties'
own machinery is either untested or not functioning fairly or
smoothly, it would seem obvious that we could not reasonably
rely on the parties' voluntary machinery fairly and promptly to
12

the NLRB looks at the following two factors: 	length of an amicable bargaining relationship
between the parties, and whether the respondent's conduct interferes with collective bargaining
rights. With regard to the length of the bargaining relationship, the NLRB, in Westinghouse
Learning Corp. (1974) 211 NLRB 19 [86 LRRM 1709], refused to defer because unlike
Collyer where the parties had for 35 years, mutually and voluntarily resolved the conflicts
which inhere in collective bargaining, "the two collective-bargaining agreements [were] 'first'
contracts . . ." [Emphasis added.] There was no "long established . . . stable and productive
bargaining relationship." In Jos. T. Ryerson & Sons, Inc. (1972) 199 NLRB 461 [81 LRRM
1261] (Ryerson), the NLRB deferred a written reprimand because the parties bargained and
contracted amicably for 30 years.
-
resolve the underlying problem. In such a situation, therefore, the
Act's purposes could best be served by our taking jurisdiction in
the first instance.
But if, on the contrary, there is now effective dispute-solving
machinery available, and if the combination of past and presently
alleged misconduct does not appear to be of such character as to
render the use of that machinery unpromising or futile, then we
ought not depart from our usual deferral policies.
As we said in National Radio Company, Inc., 198 NLRB No. 1:
'The question whether, in fact, the policies and purposes of the
Act will be furthered by abstention here and in similar cases is
more complex. The crucial determinant is, we believe, the
reasonableness of the assumption that the arbitration procedure
will resolve this dispute in a manner consistent with the standards
of Spielberg. 	[Emphasis supplied.]'
In cases such as this, therefore, it is incumbent upon us to review
the past conduct and the present allegations of misconduct so as
to test whether it appears sufficient to rebut the reasonableness of
our fundamental assumption that the parties' own procedures will
effectively resolve the current disputes in a prompt and fair
manner.
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In regard to the respondent's conduct the NLRB will not defer if "the violation with
which [the] Respondent is charged, if committed, strikes at the foundation of that grievance
arbitration mechanism. . . " (Ryerson.) For example, the NLRB did not defer where the
respondent: withheld negotiated wage increases, attempted to rescind the contract, and
discontinued making vacation pay and checkoff contributions to trust funds required by the
contract. (Capitol Roof & Supply Company, Inc. (1975) 217 NLRB 1004 [89 LRRM 1191].).
Similarly, the NLRB did not defer when the employer dismissed all unit employees, terminated
the CBA midterm, and refused the union's request to negotiate a successor agreement.
(Tel Plus Long Island (1993) 313 NLRB No. 47 [145 LRRM 1158].)
Here, the Association fails to demonstrate that there is unstable collective bargaining
environment. First, the parties have a history of amicable negotiations as evidenced by
Kotch's declaration. For example:
• 	[C] 14. On October 25, 2005, DUESTA and the District met
to negotiate a successor to our collective bargaining
agreement. In the course of bargaining, DUESTA made a
written proposal to revise Article XII: Teacher Safety and
Working Conditions, Section A.
15. The District made a written counter-proposal. The
District's counter-proposal contained restrictive language and
allowed only the 'affected classroom teacher' to file an
Unsafe Notice. . . .
• 	[D] 26. DUESTA revisited the Voluntary Transfers provision
of the contract in anticipation of numerous transfer requests to
a new District school. . . .
27. The parties re-negotiated Section C, C.1 and C.la-e on
March 16, 2004. An entire day was spent clarifying the Intent
of the language. 	The District agreed that C.la-e represented
an objective procedure for processing transfer applications,
and seniority within the District (C.le) was the tiebreaker.
28. The Intent of the language was clarified once again at an
April 1, 2004 bargaining session, and the parties once again
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agreed that C.la-e represented a neutral procedure for
processing transfer requests, with C.le defining the
tiebreaker, seniority within the District.
30. 	Once away from the bargaining table the District
repudiated the agreements of March 16, 2004 and April 1,
2004, by denying Voluntary Transfers to qualified, senior
applicants. 	DUESTA filed Level II Grievances on behalf of
Ellen Garcia, Mike Radsick, Sylvia Henninger, Jennifer Bork,
Andrea Crosby, Roberto Villa, Michael McKinzie and
Georgia Martin. In response to the District's bad faith
actions, during the second and third weeks of May 2004.
31. The Level II Grievances were settled aft] Level III of the
Grievance Procedure, with a Mediation Agreement negotiated
by Mike Ford-CTA and Carl Lange of School Legal Services,
during our summer Intersession of 2004. 	The Grievance
Settlement validated the intent of the language of Section
C.la-e, as agreed to at the March 16, 2004 and April 1, 2004
bargaining sessions.
• 	[E]3. . . This issue has been visited at the bargaining table,
where DUESTA has made proposals to increase the number
of release days, per H, so as to reflect actual usage by the
Union. The District has rejected our proposals to increase
days authorized by Section H, but also acknowledged its
contractual responsibility to account for and bill days
purchased as per H.3 (2002-2003 & 2003-2005 negotiations.)
Additionally, the District, on repeated occasions, agreed to allow Kotch union representation
even though he was not being disciplined.
Second, the District's conduct did not sufficiently interfere with the Association's
collective bargaining rights to warrant the denial of deferral in this case. 	As set forth above,
the NLRB deferred cases where the employer terminated employees, withheld wage increases,
attempted to rescind the contract, refused to bargain, etc. In this case, there is evidence that the
District continues to engage in negotiations, grievances have been settled, and others continue
to move through the grievance process. 	The Association president has not been terminated.
Kotch only received a notice of intent to discipline and a refusal to defer his evaluation to
15

subsequent years. 	We, therefore, find that there is an effective dispute-solving machinery
available, and the combination of past and presently alleged misconduct does not appear to be
of such character as to render the use of that machinery unpromising or futile.
The remaining two elements necessary for deferral are also met. The District is ready
and willing to proceed to arbitration and has waived contract-based procedural defenses.
Additionally, the contract and its meaning lie at the center of the disputes. Thus, deferral is
appropriate. 	We therefore dismiss and defer to arbitration the four unilateral change
allegations.
Following the arbitration of the four unilateral change allegations, the DUESTA may
seek a repugnancy review by PERB of the arbitrator's decision under the Dry Creek criteria.
(See PERB Reg. 326616; Los Angeles Unified School District (1982) PERB Decision No. 218;
Dry Creek, supra.)7
Interference
While the Association failed to establish a prima facie case of retaliation, the
Association did establish a prima facie case of interference in regards to the verbal and written
admonishments by Principal Bans.
Unlike retaliation where the charging party must establish unlawful motive,
establishing a prima facie case of interference under EERA requires only that at least slight
harm to employee rights results from the conduct. The Board described the standard as
follows:
6 PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
7Pursuant to Government Code section 3541.5(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.
16

[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. 	[State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106.]
Under the above-described test, a prima facie case may only be found if EERA provides the
claimed rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board
held that a finding of coercion does not require evidence that the employee actually felt
threatened or intimidated or was in fact discouraged from participating in protected activity.
The Association alleges that the District interfered with its rights when Principal Bans
admonished Kotch both verbally and in writing for interviewing another employee off school
grounds and before contract hours on October 31, 2005. Telling Kotch not to conduct an
investigation in regards to a grievance during his off duty time interferes with the
Association's rights granted under EERA. 	We therefore believe that a complaint for
interference regarding the verbal and written admonishment in conducting an investigation
should issue.
The Office of the General Counsel shall issue a complaint regarding this allegation.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. LA-CE-4881-E
regarding interference and REMANDS the case to the Office of the General Counsel for
issuance of a complaint consistent with this Decision.
Members Shek and McKeag joined in this Decision.
17

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax:(213)736-4901
May 17, 2006
Robert E. Lindquist, Attorney
California Teachers Association
11745 E. Telegraph Rd.
Santa Fe Springs, CA 90670
Re: 	Delano Elementary Teachers Association v. Delano Union Elementary School District
Unfair Practice Charge No. LA-CE-4881-E
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Mr. Lindquist:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 19, 2005. The First Amended Charge was filed on
November 3, 2005. In the First Amended Charge, the Delano Elementary Teachers
Association (Union) alleges that the Delano Union Elementary School District (District)
violated the Educational Employment Relations Act (EERA)1 by changing its policies on: 	(1)
filing notices of unsafe conditions; (2) rejecting release time requests; (3) the required notice
for leave time requests; and (4) applying for transfers, and by disciplining Kotch unfairly.
I indicated in the attached letter dated December 28, 2005, that this charge was subject to
deferral to arbitration. You were advised that if there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, the charge should
be amended. You were further advised that unless the charge was amended or withdrawn prior
to January 9, 2005, it would be deferred to arbitration and dismissed. That deadline was
extended until January 29, 2006. On January 29, 2006, you filed the Second Amended Charge.
In addition to re-alleging and clarifying the facts raised in the First Amended Charge, the
Second Amended Charge alleges several new allegations. Each of the allegations in the
Union's latest charge will be addressed under the appropriate heading.
1. 	Unilateral Change of Grievance Procedure:
As discussed in more detail in the December 28, 2005 letter, unilateral changes are a per se
violation of EERA when (1) the employer implements a change in policy concerning an issue
within the scope of representation, and (2) the change was implemented before notifying the
exclusive representative and affording the opportunity to request negotiations. 	(Walnut Valley
Unified School District (1981) PERB Decision No. 160.)
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4881-E
May 17, 2006
Page 2
In this case, the latest charge alleges two unilateral changes to the grievance procedure. The
Union filed approximately sixteen grievances between April 15, 2005 and November 7, 2005.
Starting with the first grievance filed on April 15, 2005, the District declined to take steps to
agree with the Union on issues or facts or to take any meaningful steps to settle the grievances.
Beginning on October 24, 2005, the District ceased its practice of accepting and signing
acknowledgements for grievances submitted by the Union. The Union contends that the
District's conduct in each instance constitutes a change in policy from the parties established
grievance procedure. The grievance procedure is contained in Article XV of the parties' most
recent Collective Bargaining Agreement (CBA). According to the grievance procedure, if the
employer declines to respond to a grievance filed at level one, the grievant may appeal the
grievance to the second level. 	(CBA Article XV(J)(4).) If the employer does not respond to
the level two appeal, the grievant may proceed to the third level, mediation. 	(CBA Article
XV(K)(3).) Finally, if the grievant is not satisfied with the results at level three, the grievant
may advance the grievance to the fourth level, binding arbitration. 	(CBA Article XV(M).)
The allegations in the charge do not establish that the District abrogated the grievance
procedure contained in Article XV of the CBA. The grievance procedure does not obligate the
District to respond to a grievance filed by the Union. 	In fact, the grievance procedure outlines
what steps to take if the District declines to cooperate.
The grievance procedure does not require the District to sign acknowledgements. Accordingly,
the District's decision not to sign these statements is not a change to the grievance procedure.
Therefore, because the charge does not provide sufficient information to state a prima facie
case for a unilateral change to the grievance procedure, it is dismissed.
2. 	Discrimination and Reprisal of Mark Kotch:
The latest charge alleges that the District discriminated against Union president Mark Kotch,
after he engaged in protected union activity. As stated in the December 28, 2005 letter, an
employer violates EERA section 3543.5(a), when (1) the employee exercised rights protected
under EERA; (2) the employer had knowledge of those rights; and (3) the employer imposed
or threatened to impose reprisals or adverse actions on the employee because of the exercise of
those rights. (North Sacramento School District (1982) PERB Decision No. 264.)
The charge alleges that Kotch engaged in several acts protected by EERA. 	Kotch filed a
grievance on April 15, 2005, then a ten others from June 7, 2005 to November 7, 2005. Kotch
also filed a Notice of Dispute with Evaluator on October 4, 2005. 	N	2 Next, the charge alleges:
(a) that the District discriminatorily denied Kotch's request for transfer to another school on
May 11, 2005; (b) that District discriminatorily denied Kotch's leave time requests on April
2 It should be noted that ten of the eleven grievances and the Notice of Dispute with
Evaluator were filed after the District denied his request for leave time and his request for
transfer. 	Therefore, the denial of Kotch's transfer request and the denial of Kotch's released
time request could only possibly be in reprisal for the grievance filed on April 15, 2005.
(

LA-CE-4881-E
May 17, 2006
Page 3
28, 2005 and on May 24, 2005; (c) that the District improperly issued Kotch a reprimand letter
on October 19, 2005; and (d) that the District refused to accommodate Kotch's alternative
evaluation proposal on October 25, 2005. Each allegation is discussed under the appropriate
heading.
I indicated in my December 28, 2005 letter that the charge failed to state an adequate nexus
between any adverse action on the part of the District and Kotch's activity. 	In order to
establish such a connection PERB Regulation 32615(a)(5) requires "[a] clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." In drafting the
charge '"mere speculation, conjecture, or legal conclusions are insufficient.'" (Regents of the
University of California (2005) PERB Decision No. 1771-H (quoting United Teachers-
Los Angeles (Ragsdale) (1992) PERB Decision No. 944).) Here, the charge alleges that the
District's decision to transfer Kotch fits several of the nexus categories described in my
December 28, 2005 letter. The charge alleges that each of these District actions were in
response to Kotch's protected activity because (1) the District treated Kotch disparately from
other employees and departed from its usual practices; (2) the District failed to offer an
explanation for its actions; (3) the District offered shifting explanations for its actions; and (4)
the District offered vague reasons for its actions. However the latest charge fails to connect
actual facts to these legal conclusions. Without this connection, the allegations that the District
denied Kotch's leave time and transfer requests lack nexus to the alleged protected activity and
accordingly do not state a prima facie for discrimination.
a. 	Denial of Kotch's Transfer Request:
Kotch applied for and was denied a transfer request on May 11, 2005. The District denied
Kotch's request because it believed that Kotch's experience was best suited for the school
where he currently taught. The District informed the Kotch that it believed it had the
discretion to deny transfer requests under Article XI(C)(1) of the CBA. 	According to the
CBA, the District has the discretion to grant or deny transfer requests "based on the
educational needs as determined by the District[.]" (CBA Art. XI(C)(1).) Nothing in the
charge indicates that this provision should be interpreted in a way other than its plain meaning.
The charge does not dispute that Kotch was one of six applicants who were denied transfers
out of a total of ten applicants.
The charge does not establish that the District denied Kotch's transfer because Kotch filed the
April 15, 2005 grievance. The charge states no facts establishing that Kotch was treated
differently from the other five applicants who were denied transfer requests, nor does it
demonstrate that the other five applicants engaged in protected activity before having their
transfer requests denied. For this reason, there is insufficient information to conclude that
Kotch was treated disparately because of his alleged protected activity.
The charge also does not support the allegations that the District's denial was without reason,
or that the reasons were shifting or vague. The District stated that it denied Kotch's transfer
request because it believed it had the discretion to do so under the CBA. The District
explained the reason behind exercising its discretion. This explanation was reasonably clear
\

LA-CE-4881-E
May 17, 2006
Page 4
and accordingly, the charge does not establish a nexus between the denial of Kotch's transfer
request and any of his protected activity.
b. 	Denial of Leave Time Requests:
Kotch and another Union officer, John Roskell, requested released time on April 27, 2005 for
May 2, 2005. The District denied requests on April 28, 2005, stating it had the authority to
deny requests for leave time if the District needed personnel to be present that day. 	Kotch and
Roskell requested leave time again on May 23, 2005, for May 25, 2005. The District denied
this request as well, stating that the Union failed to provide 48-hours notice for the request, as
required by the CBA. The District later added that the May 23, 2005 request was also denied
because the District has discretion to deny leave time requests if the Union had already
exhausted its 18 days of District compensated released time under the CBA.
The charge does not provide facts to support its claim that Kotch was treated any differently
from other employees. 	Rather, it appears from the facts provided by the charge that Kotch was
treated equally to Roskell, who is not alleged to have engaged in any protected activity.
Therefore, the charge has not provided enough information to show that the District treated
Kotch disparately after he filed the April 14, 2005 grievance.
The charge also does not support the allegations that the District's denials were without reason,
or that the reasons were shifting or vague. The District provided an unambiguous reason for
denying each leave request. These reasons are consistent with a reasonable reading of the
CBA. Therefore, the charge does not establish a nexus between the denial of Kotch's leave
time requests and his protected activity.
c. 	Letter of Reprimand:
On October 19, 2005, the District issued Kotch a written reprimand for his conduct during a
meeting with Suzanne Hunter. According to the letter, the District issued the letter because it
found Kotch's conduct in the meeting with Suzanne Hunter unprofessional and inappropriate
and that Hunter's was the second complaint received for Kotch's conduct. The charge alleges
that this letter was issued in retaliation for Kotch's protected activity as evidenced by the
District's inadequate investigation, the District's disparate treatment of Kotch, and by offering
an inadequate explanation for the reprimand. The charge does not put forth facts to support
these allegations. The charge does not assert how Kotch was treated differently from any other
employee before being issued a reprimand, nor does it explain why the explanation in the
October 19, 2005 letter was inadequate. For these reasons, the charge does not create a
connection between the issuance of the reprimand letter and Kotch's protected conduct.
d. 	Refusal to Accommodate Evaluation Request:
On October 4, 2005, Kotch filed a Notice of Dispute With Evaluator, concerning a
performance evaluation he received. On October 25, 2005, Kotch met with Superintendent
Garcia to discuss the dispute. Article IX of the CBA provides that if an employee has a dispute
(

LA-CE-4881-E
May 17, 2006
Page 5
with an evaluation, that the dispute shall be resolved in a meeting with the District. During
this meeting, Kotch proposed that his evaluation be deferred. 	Garcia stated that he would not
accommodate Kotch's request because Kotch was "a high profile" and was too vocal in the
dispute. This statement does not indicate that the negative evaluation was in response to
Kotch's protected activity. 	Rather, it indicates that the employer was unwilling to put off the
handling of Kotch's evaluation because the Garcia believed it was an important issue to the
school. Therefore, there is insufficient information to establish a nexus to Kotch's protected
activity.
For these reasons, the Union's discrimination claims are dismissed.
3. 	Bad Faith Bargaining Under the Totality of the Circumstances:
In addition to the per se violations discussed herein, the Union contends the District engaged in
conduct, viewed under the totality of the circumstances, that would be considered bad faith
bargaining. 	In my December 28, 2005 letter, I indicated that the crux of a surface bargaining
claim is that one party "indicates an intent to subvert the negotiations process." (Oakland
Unified School District (1982) PERB Decision No. 275.) In this case, the charge provides
insufficient facts to show that the District intended to subvert the negotiations process, nor
does it state clearly what negotiations were being subverted.
The charge references, generally, that the parties were negotiating a successor agreement to the
CBA, but the only specific reference to the District's conduct during those negotiations was
that the District sought an impasse determination by PERB but that request was denied on
November 10, 2005. A request for an impasse determination is a request for PERB to
investigate whether future negotiations between the parties without a mediator would be futile.
(PERB Regulation 32792-32793.) Filing a request for impasse determination pursuant to
PERB regulations is not, by itself, an indicator of bad faith bargaining. PERB will not infer
bad faith simply because it determined that the parties were not at a genuine impasse. 	The
charge does discuss any other conduct by the District concerning negotiations for the successor
agreement. Therefore, to the extent that the Union claims that the District's conduct during
negotiations for the successor agreement to the CBA constituted bad faith bargaining, the
claim fails to state a prima facie case and is dismissed.
4. 	Representation Rights Violations:
The charge alleges that the District violated the Union's right of access by prohibiting a Union
officer from visiting school campuses to participate in the Peer Assistance Review (PAR)
program. Employee organizations have the right to access, at reasonable times, employee
work areas. (EERA § 3543.l(b).) Any restrictions by a school district prohibiting solicitation
by an employee organization during rest and coffee breaks is presumptively invalid. 	(Marin
Community College District (1980) PERB Decision No. 145.) Such regulations "unduly
restrict employees' right to engage in protected activities since the employer has no cognizable
interest in prohibiting nondisruptive contact in nonworking areas between employees and their
(

LA-CE-4881-E
May 17, 2006
Page 6
organizations during duty-free periods of the day." 	(San Ramon Valley Unified School
District (1982) PERB Decision No. 230.)
In this case, the charge states nothing more than that the District violated the Union
representation rights by:
[d]enying unit members at the Almond Tree and La Vina Middle
School Schools the right to be represent (sic) by the Union and to
confer with the Union regarding Peer Assistance and Review.
Specifically, on or about 27 September 2005 Respondent Garcia
prohibited Union President and teacher member of the District's
Joint Peer Assistance and Review Panel from visiting the Almond
Tree and La Vina Middle School sites.
The charge does not provide sufficient information to determine whether the visits would have
fallen under the Union's reasonable access rights or whether the District was justified in
prohibiting the visit. Therefore the charge does not state sufficient information to state a prima
facie case for an access rights violation and is dismissed.
5. 	Interference with Employee Rights:
The charge alleges that the District interfered with employee rights protected by EERA by:
evaluating employees under inappropriate procedures and by denying unit member Deborah
Fata accommodation for her physical disability. As stated in my December 28, 2005 letter, an
employer interferes with employee rights when its conduct tends to or doe harm employee
rights protected by EERA. 	(State of California (Department of Developmental Services)
(1983) PERB Decision No. 344-S (other citations omitted).)
In this case, the charge states that "[t]he Employer's conduct interfered with, restrain (sic) and
coerced unit members from enjoying the benefit of being evaluated under appropriate
procedures." The charge further states that "[t]he Employer's conduct interfered with, restrain
(sic), and coerced unit member Deborah Fata from enjoying the benefit of reasonable
accommodation for a physical disability." These allegations do not set forth sufficient facts
from which to conclude that the District's conduct adversely affected protected employee
rights and therefore it does not state a prima facie case. Accordingly, these claims are
dismissed.
6. 	Deferral to Arbitration:
After the dismissal of the above charges, the charges that remain are: (1) that the District
unilaterally changed the procedure for reporting unsafe conditions by allowing only the teacher
affected by the condition to file a report; (2) that the District unilaterally changed the
procedure for requesting transfers to other schools by making such transfers at the discretion of
the District; (3) that the District unilaterally changed the procedure for requesting leave time
by requiring the union to make a request 48-hours in advance; (4) that the District unilaterally

LA-CE-4881-E
May 17, 2006
Page 7
change the procedure for requesting leave time by giving itself the authority to reject requests
for operational reasons.
As I explained in the December 28, 2005 letter, Government Code section 3541.5(a) and PERB
Regulation 32620(b)(5)3 require a Board agent to dismiss a charge where the dispute is subject
to final and binding arbitration pursuant to a collective bargaining agreement. (Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81; State of California (Department of
Food and Agriculture) (2002) PERB Decision No. 1473-S.) As noted in the December 28,
2005 letter, the conduct in the Union's remaining allegations is arguably prohibited by the
parties' collective bargaining agreement, the Respondent has agreed to waive any procedural
defenses, and there is no evidence that the dispute arises in other than a stable collective
bargaining environment. 	Accordingly, these allegations must be dismissed and deferred to
arbitration. Following the arbitration of this matter, the Charging Party may seek a repugnancy
review by PERB of the arbitrator's decision under the Dry Creek criteria. 	(See Regulation
32661; Los Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81a.)4
Right to Appeal
Pursuant to PERB Regulations, you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4 Pursuant to Government Code section 3541.5(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.

LA-CE-4881-E
May 17, 2006
Page 8
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Eric J. Cu
Regional Attorney.. my
Attachment
cc: 	Salvador Holquin

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213)736-2907
Fax:(213)736-4901
December 28, 2005
Robert E. Lindquist, Attorney
California Teachers Association
11745 E. Telegraph Rd.
Santa Fe Springs, CA 90670
Re: 	Delano Elementary Teachers Association v. Delano Union Elementary School District
Unfair Practice Charge No. LA-CE-4881-E
WARNING LETTER
Dear Mr. Lindquist:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 19, 2005. A first amended charge was filed on November
3, 2005. The Delano Elementary Teachers Association (Union) alleges that the Delano Union
Elementary School District (District) violated the Educational Employment Relations Act
(EERA)] by changing its policies on: 	(1) filing notices of unsafe conditions; (2) rejecting
release time requests; (3) the required notice for leave time requests; and (4) applying for
transfers, and by disciplining Kotch unfairly.
The Union is the exclusive representative for teachers in the District. At all relevant times,
there was a Collective Bargaining Agreement (CBA) in effect between the Union and the
District. The CBA has a grievance procedure that culminates in binding arbitration.
In January 2005, Ledlie Skidmore, Union member and teacher at Terrace Elementary School
reported an unpleasant odor in her classroom to her school's administration. The maintenance
department investigated the odor and called in specialists from the county Health Services
Department. On April 1, 2005, the investigators found two dead bats in abandoned ducts
attached to Skidmore's classroom. On April 5, 2005, Skidmore and her class were relocated to
another room.
On or around April 12, 2005, Union president and teacher Mark Kotch filed a formal report of
a potentially hazardous condition in Skidmore's classroom. The report was filed with District
Superintendent Ronald Garcia. The portion of the CBA pertaining to reporting hazardous
conditions provides in pertinent part:
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
~, P·E·R·B
• o," '"

LA-CE-4881-E
December 28, 2005
Page 2
A. 	Teachers shall be responsible for making a written report
to the District Safety Administrator or designee regarding any
unsafe, hazardous, unhealthy, or potentially dangerous
conditions. Within 24 hours of receipt of it, the District will
make a determination as to the report and respond in writing to
the reporter, the Exclusive Representative, and the site
administrator.
On April 13, 2005, Garcia sent Kotch a letter stating that it would not accept the unsafe
condition report because it was not submitted by the affected teacher, Skidmore. 	Kotch is a
teacher at a different school from Skidmore.
On April 14, 2005, Kotch filed a grievance over the matter. On April 25, Skidmore filed a
notice of unsafe conditions regarding her classroom. 	The District responded by providing her
with the information gathered during its investigation and steps it took to mitigate the situation.
On or around April 27, 2005, CTA regional executive director Mike Ford wrote to Garcia
requesting that Kotch and John Roskell be given release time to attend a training event in May
2, 2005. The CBA section discussing released time requests states:
H. 	The President of the Exclusive Representative may
designate certain teachers to have a complete total of up to 18
days paid leave per school year for use for local, state, or national
conferences or for conducting other business pertinent to the
Exclusive Representative.
1. 	Leave may be taken on one-half day blocks.
2. 	Such representatives shall be excused from school
duties upon two days' advanced notice to the Superintendent by
the President of the Exclusive Representative.
3. 	Upon exhaustion of paid leave per school year, the
Exclusive Representative may purchase additional days at the
daily substitute rate.
On April 28. 2005, the District denied the Union's request, stating that that Kotch's and
Roskell's presence was necessary because the students were taking special exams that week
and students could benefit from having teachers available to them. In the past, the District
denied requests for leave time because it claimed to have the discretion to deny such requests
and because the District interpreted the two-day notice requirement as a 48-hour notice
requirement.
On or about May 11, 2005, Kotch filed a transfer request seeking reassignment from Cecil
Avenue Middle School to La Vina Middle School. The CBA's provision on voluntary transfer
provides:
(
' {

LA-CE-4881-E
December 28, 2005
Page 3
H. 	Any teacher may apply to fill a posted vacant position.
The request shall be on a form designed and supplied by the
District and shall be dated, signed, and filed with the District
office.
1. 	All applications fulfilling posted qualifications
requirements will be judged on their merits, and any decision
thereon shall be based on educational needs as determined by the
District, according to all of the following:
a. 	Credential(s) held by the applicant(s);
b. 	Qualifications as posted;
c. 	The performance of the applicant(s) in the
District as measured by administrative evaluation
conducted prior to the application and supporting
materials placed in the personnel file(s) of the teacher(s)
pursuant to the appropriate provisions of this Agreement;
d. 	Federal, state, or court mandated
hiring/promotional plans, if applicable; and
e. 	Length of seniority in the District. (Where
all other considerations are substantially equal between
applicants, length of service will be the deciding factor.)
The Union's position is that Kotch has all the qualities the District is entitled to consider under
the CBA. The Union maintains that Kotch holds special teaching certifications which conform
to the needs of students at La Vina Middle School. On or around May 6, 2005, the District
denied Kotch's transfer request and instead hired Karen Slayton to the La Vina position.
Slayton's specialized certification closely conforms to the needs of students at Cecil Avenue.
Slayton had no seniority in the District. On May 11, 2005, Kotch received notice that his
transfer request was denied.
On or around September 22, 2005, Kotch met with Suzanne Hunter, who holds a quasi-
supervisory position with the District, to discuss the terms and conditions of seventh and eighth
grade language teachers in the District.
On or around October 4, 2005, Kotch filed a Notice of Dispute With Evaluator, stating that his
ongoing grievance filed against Cecil Middle School Principal, Martin Bans, prevented the
District from giving an unbiased evaluation. 	The Notice of Dispute further states that after
Kotch filed the grievance against Bans, the District began building his class sections with
students of mixed ability, rather than grouping students of similar ability levels together. 	The
Notice notes that mixing students of different ability levels creates a more difficult teaching
environment.
On or around October 19, 2005, Kotch received a written reprimand for his conduct during his
meeting with Hunter. The reprimand states that Kotch "had the impact of making [Hunter] feel
embarrassed, intimidated and degraded." The memo further stated that "[f]ailure to conduct

LA-CE-4881-E
December 28, 2005
Page 4
yourself in a professional and appropriate manner with co-workers will result in a notice of
unprofessional conduct."
Discussion:
A. 	Bad Faith Bargaining.
In determining whether a party has violated EERA section 3543.5(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. 	(Stockton Unified School District (1980)
PERB Decision No. 143.)
In this case, the first amended charge alleges that the Districts conduct amounts to both a "per
se" violation of the duty to bargain in good faith and a violation under the totality of the
circumstances.
1. 	Per Se Violation: Unilateral Change.
Unilateral changes are considered "per se" violations if certain criteria are met. Those criteria
are: 	(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982)
PERB Decision No. 196.) Furthermore, a violation requires a change in policy which has a
generalized effect or continuing impact. 	(State of California (Department of Mental Health)
(1990) PERB Decision No. 840-S.)
The first amended charge alleges four unilateral changes: (1) that the District changed the
existing policy regarding reporting unsafe classroom conditions by adding a requirement that
only the teacher whose classroom was affected could filed a report; (2) that the District
changed the release time request policy by asserting it has discretion to deny release time
requests; (3) that the District changed the release time policy by changing the required notice
for a leave time request from two days to 48 hours; and (4) that the District changed the
existing policy regarding evaluating voluntary transfer requests by claiming discretion in
making transfer decisions. The District contends that all its policies comply with the CBA and
that the Union failed to establish otherwise. The first two of the Union's allegations appear to
state a prima facie case and accordingly, will not be discussed in this section of the letter. 	The
remaining two allegations do not state a prima facie case.
a. 	Change to the Two-Day Notice Requirement for Released Time.
The Union contends that the District changed the release time request procedure when, in the
past, it denied requests for leave time because the Union failed to provide notice 48 hours
prior. This allegation is problematic for two reasons. First, the charge leaves unclear what the
Union contends is the difference between a two day and a 48 hour notice requirement. 	Thus,
(

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the charge does not adequately allege that the District initiated a policy change. 	Second, the
charge alleges no specific instance where leave time was denied for failure to provide 48 hours
notice. Therefore, even if the charge did allege a policy change, the Union does not provide
enough information to determine whether this allegation adequately states a case for a
unilateral change within the statutory period.
b. 	Change to the Voluntary Transfer Procedure.
The Union alleges that the District unilaterally altered the procedure for teachers to transfer
voluntarily to other campuses within the District. The CBA provides that transfer decisions be
made based on the educational needs of the District, according to a set of five criteria. The
Union contends that the five outlined criteria constitute a threshold, where an applicant
meeting the minimum requirements of each category (e.g., the applicant has the minimum
credentials for the position, each of the qualifications as posted on the job listing, etc.) must be
granted the transfer. 	However, the Union's interpretation of the CBA is not apparent on its
face, nor does the Union allege sufficient facts indicating that its interpretation is the
established practice between the parties. Rather, the language of the agreement provides that
the District may transfer people based on educational needs, as determined by the District,
using the five outlined criteria. Accordingly, the first amended charge as written fails to state a
prima facie case for a unilateral change. 	In addition, the charge does not sufficiently allege
that the District's conduct constituted a policy change with a generalized effect. The Union
alleges no facts that establish that the District's conduct would be applied beyond Kotch's
individual transfer request.
2. 	Totality of the Circumstances
The first amended charge alleges that the employer violated EERA section 3543.5(c) by
engaging in bad faith or "surface" bargaining. 	It is the essence of surface bargaining that a
party goes through the motions of negotiations, but in fact is weaving otherwise
unobjectionable conduct into an entangling fabric to delay or prevent agreement. 	(Muroc
Unified School District (1978) PERB Decision No. 80.) Where there is an accusation of
surface bargaining, PERB will resolve the question of good faith by analyzing the totality of
the accused party's conduct. The Board weighs the facts to determine whether the conduct at
issue "indicates an intent to subvert the negotiating process or is merely a legitimate position
adamantly maintained." 	(Oakland Unified School District (1982) PERB Decision No. 275.)
The Union also contends that the three unilateral changes also amount to bad surface
bargaining, under the totality of the circumstances. To the extent that these allegations do not
state a prima facie case for a "per se" violation of EERA, the first amended charge also fails to
state a case for bad faith bargaining under a totality of the circumstances, for the same reasons,
discussed above.
3. 	Deferral to Arbitration
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In addition, based on these facts and Government Code section 3541.5, each of the four
allegations regarding policy changes: 	(1) that the District changed the policy regarding
reporting unsafe classroom conditions; (2) that the District changed the policy regarding the
District's ability to deny release time request; (3) that the District changed the policy regarding
notice for release time requests; and (4) that the District changed its policy regarding voluntary
transfer requests, must be deferred to arbitration under the agreement and dismissed in
accordance with PERB Regulation 32620(b)(5).
Section 3541.5(a) of the EERA states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining] agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a,2 the Board
explained that:
While there is no statutory deferral requirement imposed on the
National Labor Relations Board (hereafter NLRB), that agency
has voluntarily adopted such a policy both with regard to post-
arbitral and pre-arbitral award situations. 2 EERA
section 3541.5(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.
It is appropriate, therefore, to look for guidance to the private
sector. 	[Fn	3 	. 2 omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent cases, the
National Labor Relations Board articulated standards under which deferral to the contractual
grievance procedure is appropriate in prearbitral situations. These requirements are: 	(1) the
dispute must arise within a stable collective bargaining relationship where there is no enmity
by the respondent toward the charging party; (2) the respondent must be ready and willing to
proceed to arbitration and must waive contract-based procedural defenses; and (3) the contract
and its meaning must lie at the center of the dispute.
These standards are met with respect to this case. First, no evidence has been produced to
indicate that the parties are not operating within a stable collective bargaining relationship.
Second, by the attached letter from its representative, Salvador Holguin, Jr., dated December
19, 2005, the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, each of the issues raised by the allegations mentioned are
2 See, also, State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.

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covered by the CBA in effect at all relevant times. The allegation that the District changed its
policy regarding reporting unsafe conditions requires interpretation of Article XII, section A;
the two allegations that the District changed its policies regarding paid leave time requires
interpretation of Article XIV, section H; and the allegation that the District changed its policy
regarding voluntary transfer requests requires interpretation of Article XI, section C.
Accordingly, the allegations discussed above must be deferred to arbitration and will be
dismissed. Following the arbitration of this matter, the Charging Party may seek a repugnancy
review by PERB of the arbitrator's decision under the Dry Creek criteria. 	(See Regulation
32661; Los Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek Joint
Elementary School District, supra.)3
- -
B. 	Discrimination for Protected Activity.
To demonstrate a violation of EERA section 3543.5(a), the charging party must show that:
(1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. 	(Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. 	(Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: 	(1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
3 Pursuant to Government Code section 3514.5(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.

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Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. 	(Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. 	(Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
The charge contends that Kotch engaged in two acts that qualify as protected activity. 	First, on
September 22, 2005, Kotch met with Suzanne Hunter to discuss the employment conditions of
seventh and eighth grade language teachers. 	Second, the charge contends that on October 4,
2005, Kotch field a Notice of Dispute With Evaluator, claiming his performance evaluation
was biased.
The charge next alleges that the four alleged unilateral changes discussed above: (1) that the
District changed the policy regarding reporting unsafe classroom conditions; (2) that the
District changed the policy regarding the District's ability to deny release time requests; (3)
that the District changed the policy regarding notice for release time requests; and (4) that the
District changed its policy regarding voluntary transfer requests, were made in retaliation for
Kotch's protected activity. 	Assuming for the moment that the charge adequately alleges the
Kotch engaged in protected activity, each of these alleged changes occurred several months
before the alleged protected activity. 	The District's actions cannot be retaliation for
subsequent Union action. Thus, these allegations do not state a prima facie case.
The charge also contends that Kotch's October 19, 2005 reprimand was in response to his
protected activity. 	Other than temporal proximity, the charge does not allege sufficient facts
establishing a nexus between the alleged protected acts and the adverse action. Without this
connection, the charge fails to allege a prima facie case.
C. 	Interference With Employee Rights.
The test for whether respondent interfered with employee rights under EERA does, not require
unlawful motive be established, only that slight harm results from the conduct. 	(Simi Valley
Unified School District (2004) PERB Decision No. 1714.)
The first amended charge alleges no facts establishing any harm to employees as a result of the
District's conduct. As a result the charge does not state a prima facie case for interference with
employee rights.
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For these reasons the allegations discussed above, as presently written, do not state a prima
facie case. 	If there are any factual inaccuracies in this letter or additional facts that would
correct the deficiencies explained above, please amend the charge. 	The amended charge
should be prepared on a standard PERB unfair practice charge form, clearly labeled Second
Amended Charge, contain all the facts and allegations you wish to make, and be signed under
penalty of perjury by the charging party. The amended charge must have the case number
written on the top right hand corner of the charge form. 	The amended charge must be served
on the respondent's representative and the original proof of service must be filed with PERB.
If I do not receive an amended charge or withdrawal from you before January 9, 2005, I shall
dismiss the above-described allegation from your charge. 	If you have any questions, please
call me at the telephone number listed above.
Sincerely
'Regional Attorney
EC
Attachment