Beverly Hills Unified School District * * * OVERRULED IN PART by Trustees of California State University (2012) PERB Decision No. 2287-H and County of Sacramento (2013) PERB Decision No. 2315-M (PERB 1969E)

OVERRULED IN PART by Trustees of California State University
(2012) PERB Decision No. 2287-H and County of Sacramento (2013)
PERB Decision No. 2315-M STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BEYERLY HILLS EDUCATION ASSOCIATION,
Charging Party,
V.
BEYERLY HILLS UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5034-E
PERB Decision No. 1969
July 8, 2008
Appearances: 	California Teachers Association by Rosalind D. Wolf, Attorney, for Beverly
Hills Education Association; Atkinson, Andelson, Loya, Ruud & Romo by Alan G. Atlas and
Brian D. Bock, Attorneys, for Beverly Hills Unified School District.
Before Neuwald, Chair; Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Beverly Hills Education Association (BREA) of a
Board agent's partial dismissal of an unfair practice charge. The second amended charge
alleged that the Beverly Hills Unified School District (District) violated the Educational
Employment Relations Act (EERA) 1 by: 	(1) unilaterally increasing teachers' work hours by
adopting a policy requiring teachers to return student examinations upon parent request and
thereby requiring the development of new exams for future use; (2) retaliating against teacher
and BREA Vice President Mark Frenn for sending to parents a letter asking them not to
request examinations from him pursuant to the test release policy; and (3) refusing to meet and
confer with BREA over the effects of the test release policy on teachers' work hours. 	The
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Board agent dismissed the unilateral change and refusal to bargain allegations and accordingly
only those two allegations are before the Board on appeal.2
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the District's position statements, the Board
agent's warning and dismissal letters, BHEA's appeal and the District's response thereto.
Based upon this review, the Board affirms the partial dismissal
of
the unfair practice charge
subject to the discussion below.
BACKGROUND
Second Amended Unfair Practice Charge
On August 27, 2007, BHEA filed a second amended unfair practice charge alleging that
the District violated EERA by, inter alia, unilaterally increasing teachers' work hours by
adopting a new test release policy and refusing to meet and confer over the effects
of
the
policy. 	Both
of
these alleged violations arose from an administrative directive issued by
District Superintendent Kari McVeigh (McVeigh) on November 29, 2006. The directive stated
that "effective immediately" teachers must provide to parents, upon request, a copy
of
their
child's examination(s) for review outside
of
the classroom. Prior to November 29, 2006, there
was a practice within the District that examinations could only be reviewed in the classroom.
BHEA alleged that the District did not meet and confer over the test release policy before
issuing the directive.
In support of its unilateral change claim, BHEA alleged that teachers "routinely
constructed student examinations based on test questions used in prior years." Because the test
release policy allows those questions to leave the classroom, BHEA asserted that now
"teachers are required to construct new examinations for each class each year, resulting in a
Simultaneously with the partial dismissal, the Office of the General Counsel issued a
complaint on the retaliation allegation.
2
2

substantial increase in work hours." BHEA further alleged that the District did not instruct
teachers to cease performing any
of
the other duties normally performed during their
preparation periods. Finally, BHEA claimed that one teacher, Danny Zadeh (Zadeh), "worked
additional hours outside
of
the normal work day" creating new examinations because he had
released examinations to parents pursuant to the test release policy.
As for the refusal to bargain claim, BHEA alleged that on or about December 15, 2006,
BHEA President Christopher Bushee (Bushee) delivered a memorandum to Mc Veigh and
District Assistant Superintendent Sal Gumina (Gumina) in which BHEA demanded that the
District meet and confer over "the impact and effects
of
requiring tests to be released."
McVeigh and Bushee met on January 8, 2007, to discuss the test release policy. At the
meeting, Mc Veigh proposed to create a task force consisting
of
herself, Bushee, teachers,
administrators, a school board member and parents to evaluate whether the test release policy
should "continue, be discontinued, or otherwise revised." BHEA alleged that it did not
consider McVeigh's task force proposal to be responsive to its demand to bargain because: 	(1)
McVeigh is not a member
of
the District's bargaining team; (2) the meeting did not constitute
bargaining; and (3) the proposed task force could not engage in bargaining because it would
include parent members.
According to the charge, Bushee reiterated BHEA' s demand to bargain over effects
of
the test release policy to both McVeigh and Gumina on January 9 and 11, 2007. 	BHEA
alleged that as
of
January 23, 2007, the District had not responded to its demand.
District's Position Statement
The District filed a response to each version of the charge. As to the unilateral change
allegation, the District asserted that its decision to adopt the test release policy was not
negotiable because it was a managerial prerogative under PERB case law and was also
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specifically allowed under the management rights clause
of
the parties' collective bargaining
agreement. The District further stated that
if
the test release policy resulted in the need for
teachers to create new exams each year this could not be construed as a unilateral change
because creating exams fell within teachers' existing job duties.
Regarding the alleged change in work hours, the District asserted that BHEA failed to
provide "formal, empirical evidence" that the test release policy resulted in increased work
hours for teachers. The District further contended that the allegation that Zadeh worked
additional hours creating examinations did not establish that the District's decision "has
actually changed the work hours
of
its teachers
as
a whole in a significant manner."
As to the failure to bargain allegation, the District stated that Mc Veigh met with Bushee
in January 2007 "to discuss the recently received demand for bargaining" and that BHEA
never responded to McVeigh's task force proposal, which was aimed at determining the
District's continuing need for the test release policy.
Dismissal Letter
The Board agent dismissed the unilateral change and refusal to bargain allegations on
October 4, 2007. Regarding the unilateral change allegation, the Board agent noted that under
Imperial Unified School District (1990) PERB Decision No. 825 (Imperial), a party alleging a
unilateral change in work hours must show "an actual change" in work hours as a result
of
either an increase in instructional time or a decrease in preparation time. Applying this
standard, the Board agent concluded BHEA failed to allege facts demonstrating that existing
preparation periods provided insufficient time to create any new examinations that might be
required as a result of the test release policy.
Addressing the refusal to bargain allegation, the Board agent concluded that the District
did not commit a "per se" violation of the duty to meet and confer because McVeigh met with
4

Bushee on January 8, 2007 to discuss the test release policy. The Board agent also concluded
that no violation occurred under the "totality
of
the conduct" test because, even
if
the District's
failure to respond to BHEA's subsequent demands to bargain constituted bad faith, BHEA did
not allege any other facts that would support a finding
of
bad faith bargaining by the District.
BHEA's Appeal
On October 26, 2007, BHEA filed a timely appeal
of
the Board agent's partial
dismissal. 	On appeal, BHEA admits that the District's decision to adopt the test release policy
was not negotiable. However, BHEA argues the Board agent erroneously dismissed the
unilateral change allegation because the District's decision had a negotiable effect on teachers'
work hours and therefore the District had a duty to meet and confer over those effects before
implementing the test release policy.
BHEA first claims that the Board agent "misstated" the law by requiring BHEA to
establish that the District had implemented an "actual change" in work hours. 	BHEA argues
that the law only requires a charging party to allege that the change has "reasonably
foreseeable effects" on a negotiable subject. 	BHEA further asserts that the Board agent
improperly resolved the factual dispute over whether existing preparation periods provide
enough time for teachers to create new examinations that may become necessary as a result
of
the test release policy.
BHEA also claims that the Board agent erred in dismissing the refusal to bargain
allegation. According to BHEA, the Board agent again improperly decided a factual dispute
by concluding that the January 8, 2007 meeting between McVeigh and Bushee constituted
bargaining over the effects
of
the test release policy. 	BHEA contends that the meeting was not
responsive to the bargaining demand because it was merely a one-on-one discussion, not a
negotiation session.
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District' s Response to Appeal
The District filed its response to the appeal on November 1 3, 2007. The District first
asserts that the partial dismissal must be reviewed under the abuse of discretion standard.3 The
District then argues that the charge did not meet the legal standard set forth in Imperial because
BHEA failed to allege facts demonstrating that the test release policy had an actual effect on
teachers' work hours. As for the allegation regarding Zadeh preparing examinations outside of
work hours, the District stated that the experience of one teacher is not enough to establish an
actual change in work hours and that BHEA failed to allege why Zadeh could not prepare the
examinations during his scheduled preparation periods.
The District further argues that it did not refuse to meet and confer with BHEA because
its representative MeVeigh met with Bushée to discuss the test release policy on
January 8, 2007. The District claims BHEA never told the District that it did not consider this
meeting to be responsive to the bargaining demand. Finally, the District states that BHEA
failed to allege how it reiterated its demand to bargain on January 9 and 11, 2007.
Reply Briefs
On November 14, 2007, the Appeals Office notified the parties that the filings were
now complete for this case and that the case had been placed on the Board' s docket. On
November 19, BHEA filed a reply brief in which it argues that: (1 ) a Board agent's dismissal
of an unfair practice charge is reviewed de novo; and (2) the experience of one teacher is
sufficient to show a negotiable change in work hours. Two days later, the District responded
with its own reply brief. The District asks the Board not to consider BHEA' s reply brief
"The abuse of discretion standard measures whether, given the established evidence,
the lower court's action falls within the permissible range of options set by the legal criteria ...
[D]iscretion may not be exercised whimsically, and reversal is required where there is no
reasonable basis for the ruling or when the trial court has applied the wrong test to determine if
the statutory requirements were satisfied." ( Robbins v. Alibrandi (2005) 127 Cal.App.4th 4 38,
4 52 [25 Cal.Rptr.3d 38 7], citations and internal quotation marks omitted.)
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3

because PERB Regulations4 do not provide for filing
of
reply briefs on appeal. 	Alternatively,
the District asks the Board to consider its reply brief, which reiterates the argument that abuse
of
discretion is the proper standard
of
review for a dismissal appeal.
DISCUSSION
Reply Briefs
As noted, both parties filed reply briefs as part
of
this appeal. PERB regulations do not
expressly provide for or preclude the filing
of
reply briefs on appeal. 	(Los Angeles Unified
School District (1984) PERB Decision No. 408.) Consequently, the Board has ruled that it has
discretion to allow the filing
of
reply briefs when such briefs would "aid the Board in its review
of
the underlying dispute," such as by "rais[ing] new issues, discuss[ing] new case law or
formulat[ing] new defenses to allegations." (Ibid.) Here, most
of
the parties' arguments on the
standard
of
review issue are contained in the reply briefs. Because these arguments would aid in
the Board's resolution
of
the issue, the Board exercises its discretion to consider the parties'
reply briefs as part
of
the record in this appeal.
Standard
of
Review
It is well established that in deciding appeals, PERB reviews the entire record de novo
and is free to reach different factual and legal conclusions than those in the decision being
appealed. 	(Woodland Joint Unified School District (1990) PERB Decision No. 808a;
Santa Clara Unified School District (1979) PERB Decision No. 104.) Nonetheless, the District
argues that PERB should review a Board agent's dismissal
of
an unfair practice charge under
the more deferential abuse of discretion standard. As support for this argument, the District
relies on Los Rios College Federation
of
Teachers (Lowman) (1996) PERB Decision No. 1142,
in which the Board stated: "The Board finds the warning and dismissal letters to be free
of
4PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
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prejudicial error and adopts them
as
the decision
of
the Board itself." The District also cites to
similar language in two other cases, AFSCME (Alvarez) (1993) PERB Decision No. 984-H
(AFSCME) and Apple Valley Unified School District (1992) PERB Decision No. 963 (Apple
Valley), in support
of
its argument for an abuse
of
discretion standard
of
review.
The District draws an incorrect inference from the "free
of
prejudicial error" language
in these cases. PERB case law clearly shows that this language does not establish an abuse
of
discretion standard for Board review
of
a dismissed unfair practice charge. 	Indeed, in
AFSCME, which the District claims supports such a standard, the Board stated: "The Board
has reviewed the entire record in this case de novo and, finding the dismissal to be free
of
prejudicial error, adopts it
as
the decision
of
the Board itself." Similar language is found in
several other cases where the Board adopted the Board agent's dismissal following a de novo
review
of
the record. (E.g., California State Employees Association (Katka) (1993) PERB
Decision No. 996-S; Apple Valley; Los Angeles School District Peace Officer's Association
(Brown) (1987) PERB Decision No. 627.) Moreover, the Board has used the "free
of
prejudicial
error" language in cases where it adopted an administrative law judge's proposed decision, a
situation where the District concedes that de novo review is appropriate. (E.g., Lodi Unified
School District (2007) PERB Decision No. 1893 ["The Board finds the ALJ's findings
of
fact
and conclusions
of
law to be free
of
prejudicial error and adopts the proposed decision as the
decision
of
the Board itself''].) Thus, PERB has not used the phrase "free
of
prejudicial error"
with the intent to establish an abuse of discretion standard ofreview. Accordingly, we reaffirm
that the Board applies a de novo standard when reviewing a Board agent's dismissal of an unfair
practice charge.
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Negotiable Effects
of
Test Release Policy
A unilateral change is a "per se" violation
of
the employer's duty to meet and confer in
good faith if: 	(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.) Before implementing a non-negotiable decision, an
employer has a duty to provide the union with an opportunity to meet and confer over any
"reasonably foreseeable effects"
of
the decision on subjects within the scope
of
representation.
(Fremont Union High School District (1987) PERB Decision No. 651 (Fremont).) However,
an employer's failure to provide notice and an opportunity to bargain before implementation
does not constitute an unlawful unilateral change when there is no evidence
of
negotiable
effects resulting from the decision. 	(See Oakland Housing Authority (2005) PERB Decision
No. 1753-M [upholding dismissal
of
charge because charging party failed to identify any
negotiable effects resulting from respondent's non-negotiable decision].)
On appeal, BHEA acknowledges that the District had no duty to meet and confer over
its decision to require teachers to provide examinations to parents upon request. Nonetheless,
BHEA argues that the test release policy has the effect
of
increasing teachers' work hours and
therefore the District had a duty to bargain over those effects before implementing the policy.
It is undisputed that the District did not provide BHEA notice and an opportunity to bargain
over effects of the test release policy before Mc V eigh issued her directive. Furthermore, work
hours are an enumerated subject
of
bargaining under EERA. 	(EERA sec. 3543.2.) Thus, the
alleged unilateral change violation hinges on whether the charge demonstrates that the test
release policy had any negotiable effect on teachers' work hours.
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When claiming that a non-negotiable decision has an effect on work hours, the charging
party bears the burden
of
alleging facts establishing an actual impact on employees' work
hours. 	(Salinas Union High School District (2004) PERB Decision No. 1639 (Salinas).) The
impact must be "reasonably certain to occur and causally related to the nonnegotiable
decision." (Fremont.) In Imperial, PERB established that an actual impact on teachers' work
hours may be shown by either an increase in instructional time or a decrease in preparation
time that has the effect
of
lengthening the workday or shortening existing duty-free time.
Importantly, all
of
the cases on which PERB relied in Imperial involved changes to the length
of
instructional or preparation periods. For example, in Fountain Valley Elementary School
District (1987) PERB Decision No. 625, the District increased instructional time by thirty
minutes per day. The evidence showed that teachers "spent from one and one-half to two
hours more per day working outside the regular school day" than before the change. 	(Ibid.)
Likewise, in Corning Union High School District (1984) PERB Decision No. 399, the
District's substitution
of
an instructional period for a preparation period caused teachers to
work an additional four hours per week after school hours.
On the other hand, PERB has found no unilateral change in work hours when the effect
on teachers' workday is "indirect and speculative." (Lake Elsinore School District (1987)
PERB Decision No. 646 (Lake Elsinore).) In Lake Elsinore, the District unilaterally reduced
the amount
of
time instructional aides spent in the classroom. The teachers' union argued that
this had an effect on teachers' work hours because teachers now had to perform tasks such as
grading papers and record keeping that the instructional aides had performed. The change also
required teachers to prepare work to fill the time students formerly spent with the instructional
aides. PERB found that these effects were not negotiable because: 	( 1) the change did not
mandate an increase in teachers' workload; and (2) the increase in several teachers' work hours

could not clearly be attributed to the policy change rather than to individual variations among
teachers such as experience and class size. 	(Ibid.) 	Similarly, in Imperial PERB found no
impact on teachers' work hours despite an increase in daily instructional time because the
teachers could not "give even a rough estimate as to additional time expended" as a result
of
the schedule change.
Applying these principles to the allegations in the second amended charge, we conclude
BHEA failed to allege facts demonstrating that the test release policy had an actual impact on
teachers' work hours. It is undisputed that the test release policy did not lengthen instructional
time, shorten preparation periods or mandate that teachers create new examinations. To
establish an actual change in teachers' work hours, BHEA relies primarily on the allegation
that one teacher, Zadeh, "worked additional hours outside
of
the normal work day rewriting
examinations for his Algebra and Geometry classes because examinations for those classes
were released to parents pursuant to the new District policy." The charge did not present facts
establishing the length
of
Zadeh's workday either before or after the adoption
of
the test
release policy. Thus, like the evidence found insufficient in Lake Elsinore and Imperial, the
charge fails to allege facts showing that the teachers' workday was lengthened, or that their
preparation time was shortened, by the test release policy. Further, the charge fails to establish
that Zadeh's additional work was a result
of
the test release policy because it does not allege
facts that would rule out other factors that might have contributed to Zadeh's need to work
additional hours to create examinations. Accordingly, the allegation involving Zadeh fails to
establish a prima facie case of unilateral change in work hours.
The charge also contended that "[t]he District did not direct teachers to cease
performing any other duties normally performed during their preparation time
...
to provide
time to construct new examinations." In Moreno Valley Unified School District (1982) PERB
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Decision No. 206 (Moreno Valley), PERB recognized that shortening the length
of
a
preparation period while requiring the same level
of
preparation as before establishes a
presumption that the change has a negotiable effect on teachers' work hours. 	However, in
Imperial PERB overruled Moreno Valley and expressly rejected such a presumption because it
effectively "lifts any burden
of
proof from the charging party."5 Thus, as the cases discussed
above show, BHEA must allege facts demonstrating that the test release policy had an actual
impact on teachers' work hours. 	The allegation that the District did not relieve teachers
of
other preparation period duties fails to meet this standard because it does not show that
teachers had insufficient time to create new examinations,
if
needed, during their five weekly
preparation periods. As a result, this allegation also fails to establish a prima facie case
of
unilateral change in work hours.
BHEA also argues that the Imperial "standard is not appropriate to determine
if
the
allegations
of
an unfair practice charge state a prima facie case." This is so, BHEA claims,
because Imperial and the cases discussed in that decision all involved whether witness
testimony had established an actual effect on teachers' workday. In Imperial, PERB held that
the union failed to establish a prima facie case due to "insufficient evidence
of
impact on
nonwork time." Similarly, the Board in Salinas upheld dismissal
of
a charge alleging a
unilateral change in work hours because the union failed to allege facts "showing the requisite
impact on the workday or duty-free time." Thus, the standard for establishing a prima facie
5In support
of
its argument that the District unilaterally changed teachers' work hours,
BHEA relies on San Bernardino City Unified School District (1982) PERB Decision No. 25 5
(San Bernardino), in which the district unilaterally adopted a policy giving each principal
discretion to require teachers to prepare lesson plans. Because this had not been the practice at
all schools, some teachers would have to create lesson plans upon demand from the principal.
PERB held that the effects on teachers' workday were negotiable because the policy change
"may necessitate the certificated employee to put in additional work time to prepare the newly
required lesson plans." This case appears to apply the presumption of effect on work hours
that PERB subsequently rejected in Imperial. Accordingly, we overrule San Bernardino to the
extent it is inconsistent with PERB' s later decision in Imperial.
12

case
of
change in work hours is the same at both the charge and hearing steps
of
the
proceedings. For this reason, the Imperial standard is appropriately applied to determine
whether a charge states a prima facie case
of
unilateral change in work hours.
Refusal to Bargain
An employer's duty to bargain
is
triggered by a union's valid demand to meet and
confer over a subject within the scope
of
representation. 	(Newman-Crows Landing Unified
School District (1982) PERB Decision No. 223.) When a union demands to meet and confer
over the effects
of
a non-negotiable decision, the demand must clearly identify the negotiable
effects. 	(Ibid.) Absent such an identification, the employer has no duty to bargain. (Ibid.)
In its December 15, 2006 memorandum to the District, BHEA demanded to bargain
over "the impact and effects
of
requiring tests to be released." The demand did not indicate
which negotiable subjects BHEA believed were impacted by the test release policy nor did it
identify any specific effects on those subjects. Further, the charge alleged that BHEA
"reiterated" its demand to bargain on January 9 and 11, 2007, but did not state the contents
of
those reiterations. Thus, the charge fails to establish that BHEA's demands clearly identified
the negotiable effects over which BHEA sought to meet and confer. Accordingly, the District
did not violate EERA section 3543.5(c) by failing to meet and confer with BHEA in response
to its demands to bargain over "impact and effects"
of
the test release policy.
ORDER
The partial dismissal
of
the unfair practice charge in Case No. LA-CE-5034-E is hereby
AFFIRMED.
Chair Neuwald and Member Wesley joined in this Decision.
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