STATE OF CALIFORNIA GAVIN NEWSOM, Governor

Los Angeles Regional Office

425 W. Broadway, Suite 400
Glendale, CA, 91204-1269
Telephone: (818) 551-2822

October 14, 2024

Re: Temecula Valley Educators Association, CTA/NEA v. Temecula Valley Unified

School District
Unfair Practice Case No. LA-CE-6841-E

Dear Parties:

Attached is the Public Employment Relations Board (PERB or Board) agent’s

Proposed Decision in the above-entitled matter.

Any party to the proceeding may file with the Board itself a statement of exceptions to
the Proposed Decision. The statement of exceptions should be electronically filed
using the “ePERB portal” accessible from PERB’s website (https://eperb-
portal.ecourt.com/public-portal/). (PERB Reg. 32110, subd. (a).)1 Individuals not
represented by an attorney or union representative, are encouraged to electronically
file their documents using the ePERB portal; however, such individuals may submit
their documents to PERB for filing via in-person delivery, US Mail, or other delivery
service. (PERB Reg. 32110, subds. (a) and (b).) The Board’s mailing address and
contact information is as follows:

PUBLIC EMPLOYMENT RELATIONS BOARD

Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
Telephone: (916) 322-8231

Pursuant to PERB Regulation 32300, the statement of exceptions must be filed with
the Board itself within 20 days of service of this proposed decision. A document
submitted through ePERB after 11:59 p.m. on a business day, or at any time on a
non-business day, will be deemed “filed” the next regular PERB business day. (PERB
Reg. 32110, subd. (f).) A document submitted via non-electronic means will be
considered “filed” when the originals, including proof of service (see below), are
actually received by PERB’s Headquarters during a regular PERB business day.
(PERB Reg. 32135, subd. (a); see also PERB Reg. 32130.)

The statement of exceptions must be a single, integrated document that may be in the
form of a brief and may contain tables of contents and authorities, but may not exceed
14,000 words, including footnotes, but excluding the tables of contents and authorities.

PERB’s regulations are codified at California Code of Regulations, title 8,

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section 31001 et seq.

Unfair Practice Case No. LA-CE-6841-E
October 14, 2024
Page 2

Requests to exceed the 14,000-word limit must establish good cause for exceeding
the limit and be filed with the Board itself and served on all parties no later than five
days before the statement of exceptions is due. PERB Regulation 32300, subdivision
(a), is specific as to what the statement of exceptions must contain. The statement of
exceptions shall: (1) clearly and concisely state why the proposed decision is in error,
(2) cite to the relevant exhibit or transcript page in the case record to support factual
arguments, and (3) cite to relevant legal authority to support legal arguments.
Exceptions shall cite only to evidence in the record of the case and of which
administrative notice may properly be taken. (PERB Reg. 32300, subd. (c).) Non-
compliance with the requirements of PERB Regulation 32300 will result in the Board
not considering such filing, absent good cause. (PERB Reg. 32300, subd. (d).)

Within 20 days following the date of service of a statement of exceptions, any party
may file with the Board a response to the statement of exceptions. The response shall
be filed with the Board itself in the same manner set forth in this letter for the
statement of exceptions (see paragraphs two and three of this letter). The response
may contain a statement of any cross-exceptions the responding party wishes to take
to the proposed decision. The response shall comply in form with the requirements of
PERB Regulation 32300 set forth above, except that a party both responding to
exceptions and filing cross-exceptions shall be permitted to submit up to 28,000 words
total, including footnotes, without requesting permission. A response (with or without
an inclusive statement of cross-exceptions) to such exceptions may be filed within 20
days. Such response shall comply in form with the provisions of PERB Regulation
32310.

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 PERB Regs. 32300, subd. (a)
and 32093; see also PERB Reg. 32140 for the required contents.) Proof of service
forms are available for download on PERB’s website: www.perb.ca.gov/about/forms/.
Electronic service of documents through ePERB or e-mail is authorized only when the
party being served has agreed to accept electronic service in this matter. (See PERB
Regs. 32140, subd. (b) and 32093.)

Any party desiring to argue orally before the Board itself regarding the exceptions to
the proposed decision shall file with the statement of exceptions or the response
thereto a written request stating the reasons for the request. Upon such request or its
own motion the Board itself may direct oral argument. (PERB Reg. 32315.) All
requests for oral argument shall be filed as a separate document.

An extension of time to file a statement of exceptions can be requested only in some

cases. (PERB Reg. 32305, subds. (b) and (c).) A request for an extension of time in
which to file a statement of exceptions with the Board itself must be in writing and filed
with the Board at least three calendar days before the expiration of the time required
to file the statement of exceptions. The request must indicate good cause and, if
known, the position of each of the other parties regarding the request. The request
Unfair Practice Case No. LA-CE-6841-E
October 14, 2024
Page 3

shall be accompanied by proof of service of the request upon each party. (PERB Reg.
32132.)

Unless a party files a timely statement of exceptions to the proposed decision, the
decision shall become final. (PERB Reg. 32305.)

Sincerely,

Eric J. Cu
Interim Chief Administrative Law Judge

EJC
 STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD

TEMECULA VALLEY EDUCATORS

ASSOCIATION, CTA/NEA, UNFAIR PRACTICE
CASE NO. LA-CE-6841-E
Charging Party,
PROPOSED DECISION
v. (October 14, 2024)
TEMECULA VALLEY UNIFIED SCHOOL
DISTRICT,

Respondent.

Appearances: California Teachers Association Legal Department, by Stephanie J.

Joseph, Staff Counsel, for Temecula Valley Educators Association, CTA/NEA; Adams,
Silva & McNally, by Laurie Kamerrer, Attorney, for Temecula Valley Unified School
District.

Before Scott Miller, Administrative Law Judge.

INTRODUCTION

A complaint issued by the Public Employment Relations Board (PERB or Board)

alleges that Respondent Temecula Valley Unified School District (District) engaged in

unfair practices in violation of the Educational Employment Relations Act or EERA (Gov.

Code, section 3540 et seq.) by unilaterally adopting, maintaining, and/or enforcing: (1) a

parental notification policy requiring, inter alia, that certificated employees notify the

parents or guardians of students who ask to be identified or treated as a gender other

than the biological sex or gender indicated on the student’s birth certificate or other

official records, and (2) revising an administrative regulation governing “Ceremonies

and Observances” to prohibit the display of most flags and depictions of flags anywhere

on school grounds. The District admits the material factual allegations but denies
liability and asserts as affirmative defenses that it was authorized to take the disputed

actions pursuant to its collective bargaining agreement with Charging Party Temecula

Valley Educators Association, CTA/NEA (Association) and “long-standing past practice.”

For reasons explained below, I find that the District (1) failed and refused to meet

and negotiate in good faith with the Association by adopting the parental notification

policy regarding transgender and gender non-conforming student conduct and thereby

derivatively interfered with rights guaranteed by EERA to certificated employees and the

Association as alleged in PERB’s complaint; (2) that pursuant to PERB’s unalleged

violations doctrine, the District’s unilateral adoption of a provision requiring parental

notification for any verbal and physical altercations involving students also violated the

District’s duty to meet and negotiate in good faith and derivatively interfered or denied

protected rights; and (3) that by adopting, maintaining, and/or enforcing a prohibition on

displaying most flags and depictions of flags anywhere on school grounds, the District

independently interfered with and denied protected rights, as alleged in PERB’s

complaint. As explained below, I consider it unnecessary to rule on factually identical

allegations that the ban on flags and depictions of flags violated the District’s duty to

meet and negotiate in good faith under EERA. I also decline to consider an unalleged

theory of liability urged by the Association that by inviting bargaining over the effects of

the parental notification policies described above, the District proposed or insisted on an

illegal subject of bargaining in violation of its duty to meet and negotiate in good faith.

PROCEDURAL HISTORY

On October 5 and 9, 2023, the Association filed an Unfair Practice Charge (UPC)

and exhibits thereto, and on November 8, the District filed a position statement denying

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any wrongdoing and asserting that its actions were authorized by the parties’ collective

bargaining agreement (CBA), past practice, and PERB precedent.

On November 17, 2023, PERB’s Office of the General Counsel issued a

complaint (Complaint) alleging: (1) that on August 22, 2023, and without notice and

meaningful opportunity for negotiations over the decision and/or its effects on negotiable

matters, the District adopted Board Policy 5020.011 (BP 5020.01), a “parental

notification” policy requiring the District’s certificated employees to notify parents or

guardians that a student identified as transgender, was seeking to access educational

services as transgender, and/or had requested a change to the student’s official or

unofficial records, which allegedly violated the District’s duty to meet and negotiate

under EERA and derivatively interfered with the protected rights of employees and the

Association; (2) that in September 2023, the District adopted and has since maintained

Administrative Regulation 6115 (AR 6115) regarding “Ceremonies and Observances”

that contains vague and/or overbroad provisions banning the display of flags anywhere

on school grounds, which employees and the Association would reasonably construe to

prohibit EERA-protected activities; and (3) that the “Ceremonies and Observances”

regulation was also unilaterally adopted without notice and meaningful opportunity for

1 The parental notification policy was identified in PERB’s Complaint as “Board

Policy no. 5020.1” and in the District’s Answer as “Board Policy 5020.1” or “BP
5020.1.” At the hearing, it was established that the policy was numbered BP 5020.01.
The Association’s brief continues to refer to the policy as BP 5020.1, while the
District’s brief refers to BP 5020.01. Because there is no confusion about which policy
is at issue, I disregard the numerical discrepancy in the pleadings and briefs as not
affecting the substantial rights of any party. (PERB Regs. 32640, 32645; City of
Montebello (2016) PERB Decision No. 2491-M, pp. 6-8.)

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negotiations over the decision and/or its effects on negotiable matters in further violation

of the District’s obligations under EERA and derivatively violated the protected rights of

employees and the Association.

On December 7, 2023, the District filed an answer to the Complaint that admits

most of the material facts, including that the District adopted the parental notification

policy and the “Ceremonies and Observances” regulation without providing the

Association with notice and opportunity to negotiate over these decisions. However, the

Answer denies that these decisions were within the scope of representation, denies that

their adoption or maintenance affects statutory, and denies the parental notification

policy has been enforced. The Answer also asserts that the District provided the

Association with an opportunity to meet and negotiate over the effects of both decisions

and that some or all claims in the Complaint are subject to waiver or are otherwise

barred by “a long-standing past practice of the parties permitting the District to engage

in the challenged conduct.”

After an unsuccessful informal settlement conference, a formal hearing was

convened via videoconference from April 23 through 25, 2024. Both parties were

represented by counsel, had the opportunity to examine and cross-examine witnesses,

to present documentary evidence, and to be heard on the issues.

During its opening statement, the Association argued, among other points, that

the District’s parental notification policy was subject to decisional bargaining, and that

by offering to negotiate only over its effects or implementation, the District was

attempting to limit the Association to “negotiating exactly how unit members should go

about violating the constitutional rights of students and violating clear [California

4
Department of Education] guidance.” In its opening statement, the District asserted that

this case was limited to whether the District had violated EERA, and that whether the

District’s parental notification policy violated students’ constitutional rights of privacy or

equal protection or any other provisions of external law were not properly before PERB.

During the ensuing discussion, counsel for the Association appeared to agree by

stating: “We are certainly not here asking PERB to rule on the legality [under external

law] of what we have termed the forced outing portions of 5020.1.” Based on this

response, I advised counsel for the parties that I would admit into the hearing record “a

limited amount of evidence” on whether BP 5020.01 violated external law but “only to

the extent it bears on [the] negotiability of the [parental notification] policy itself.” Neither

party objected to this ruling.

Without objection, I also took administrative official notice of the contents of

PERB’s case file in this matter. Neither party requested administrative notice of any

other documents. With the filing of post-hearing briefs on July 29, 2024, the case was

fully submitted for proposed decision.

FINDINGS OF FACT

A. Parties and Jurisdiction

The District is a public school employer within the meaning of EERA section

3540.1, subdivision (k). Its operations include approximately 35 schools, including

grades TK through 12.

The Association is the exclusive representative within the meaning of EERA

section 3540.1, subdivision (e). The Association represents the approximately 1,450

5
certificated employees of the District, most of whom are classroom teachers. Other

certificated titles include counselors, school nurses, and school psychologists.

A. District Governance

The District is governed by an elected, five-member Board of Education (BOE)

whose official acts are limited to public meetings and properly agendized closed

sessions. Members of BOE have no authority to act on behalf of the District in their

individual capacities and have only limited authority to speak on behalf of the District.

A primary responsibility of BOE is to set the organizational policies and standards

for the District through adoption of written policies, referred to as “board policies.”

Board policies are abbreviated as “BP” and are numbered according to the subject

addressed by the policy. For example, board policies affecting personnel matters, such

as BP 4119.21 (Professional Standards), are assigned a number within the 4000 series,

while policies primarily affecting student support, student services, and student health

and safety are assigned a number within the 5000 series.2 Once adopted, board

policies are posted on the District’s public website. BOE’s bylaws state that unless

otherwise specified when adopted, board policies are effective immediately and are

binding on the District and its employees to the extent they do not conflict with federal or

state law and/or the District's collective bargaining obligations.

The District’s executive functions, including implementing board policies, are

vested in the Superintendent, who is hired by and reports directly to BOE. Board Policy

2210 (Administrative Discretion Regarding Board Policy) grants discretion to the

2In addition to BP 5020.01, the parental notification policy at issue in this case,
several other student-focused board policies in the 5000 series are discussed below.

6
Superintendent or designee to “act on behalf of the [D]istrict in a manner that is

consistent with law and Board policies” in situations not specifically addressed by a

written policy but “when immediate action is necessary to avoid any risk to the safety or

security of students, staff, or district property or to prevent disruption of school

operations ….” Otherwise, the Superintendent is responsible for implementing and

enforcing board policies as written.

The Superintendent may, in turn, delegate executive functions to various

Assistant Superintendents, who report to the Superintendent rather than BOE. As of

2023, Dr. Kimberly Velez was the District’s Interim Superintendent, while Dr. Gary

Woods was the District’s Superintendent as of summer 2024, the time of the PERB

hearing. Neither Velez nor Woods testified. During the relevant period, Nicole Dayus

was the District’s Assistant Superintendent of Student Support Services, and Francisco

“Frank” Arce was the District’s Assistant Superintendent of Human Resources

Development.

Once BOE has adopted a board policy, the Superintendent or designee is

responsible for its implementation, which may include developing and enforcing a

corresponding administrative regulation. Administrative Regulations are abbreviated as

“AR” and are assigned the same numbers as the board policies they were designed to

implement. Dayus explained that board policies specify what BOE has determined will

be the District’s standard or policy, while a corresponding AR specifies “how that policy

is going to be enacted or delivered.” According to the District’s bylaws:

“Administrative regulations shall be consistent with law and

Board policy and shall be designed to promote the
achievement of district goals and objectives. Administrative
regulations may describe specific actions to be taken, roles

7
 and responsibilities of staff, timelines, and/or other
necessary provisions.”

The District’s bylaws state that unless otherwise indicated at the time of adoption,

board policies are effective upon adoption and are binding on the District and its

employees to the extent that they do not conflict with federal or state law and are

consistent with the District's collective bargaining agreements. District bylaws provide

that if an administrative regulation conflicts with a board policy, the latter shall prevail.

Like board policies, administrative regulations are periodically reviewed and may only

be amended by further BOE action.

Arce is the District’s highest-ranking official for personnel and labor relations,

including recruitment, staffing, employee discipline, and collective bargaining, and was

the District’s lead negotiator in bargaining with the Association. He testified that if a

proposed board policy or administrative regulation significantly affects terms and

conditions of employment, he recommends that the District provide the employees’

representative(s) with notice and opportunity to meet and negotiate over the decision

and/or its effects, depending on the circumstances. Arce testified that he normally

advised the Association before any newly adopted or revised board policy or

administrative regulation would be used for disciplinary purposes. He acknowledged

that under the District’s bylaws, a newly-adopted or revised policy or regulation is

effective upon adoption, and he could recall no exceptions to this rule.

B. Association Leadership and Collective Bargaining Agreement

At all times material, Edgar Diaz was the Association’s President. Diaz taught

elementary and then middle school students in the District from 2004 until 2021, when

he took a leave of absence to serve as Association President.

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 During the relevant period, terms and conditions of employment for certificated

employees were contained in a CBA, whose term was July 1, 2021 through June 30,

2024. The CBA contained the following provisions.

Article 2 (Unit Rights) recognized the rights of the Association and its

representatives to “[u]se school mailboxes, e-mail and the District mail service to the

extent authorized by law” and states that “the Association will provide the

Superintendent with a copy of any such communication it feels may be of concern to the

District.” Article 2 also guaranteed the Association and its representatives various

access and communication rights, including rights to use “[b]ulletin board space in

designated areas to which bargaining unit members have access”; to “[u]se District

facilities at reasonable times before and after duty hours, provided that prior approval is

obtained according to District ‘Use of Facilities’ regulations”; and to “[t]ransact official

Association business on District property during non-duty hours, so long as the

transaction of such business does not interfere with the educational process or a unit

member’s professional duties.”

Article 3 (District Rights) of the CBA contained a management rights provision

asserting that the District “retains all of its powers and authority to direct, manage, and

control to the full extent of the law.” Article 3 also contained language asserting the

District’s rights, inter alia, to establish educational goals and objectives; to determine the

organization, kinds and levels of educational services to be provided and methods and

means of providing them; to “insure the rights and educational opportunities of

students”; and to “hire, classify, assign, evaluate, promote, terminate, and discipline

employees.” The District Rights Article further asserted:

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 “The exercise of the foregoing powers, rights, authority,
duties, and responsibilities by the District, the adoption of
policies, rules, regulations and practices in furtherance
thereof, and the use of judgment and discretion in
connection therewith shall be limited only by the specific and
express terms of this Agreement, and then only to the extent
such specific and express terms are in conformance with
law.”

Article 5 (Hours) of the CBA governed unit members hours of work, including the

definition and length of the work day. Section 5.1 contained general language limiting

the length of the work day to seven hours for most unit members and to seven and one-

half hours for school psychologists. The work day was defined to include a duty-free

lunch period of at least 30 minutes, any relief periods provided throughout the day, and

a period of at least 30 minutes before the start of the instructional day, when unit

members were generally required to report to work. Section 5.2 provided that “[i]n

addition to the time in Section 5.1,” i.e., in addition to the seven-hour or seven-and-one-

half-hour work day, unit members were also responsible for completing certain

instructional and non-instructional duties, including but not limited to conducting

“[p]arent and/or student conferences.”

Article 13 (Evaluation Procedure) was concerned primarily with the timing,

frequency, and other procedural aspects of the evaluation process. However, Section

13.4 also contained substantive criteria for evaluating certificated employee

performance, including but not limited to: “[e]ngaging and supporting all students in

learning”; “[c]reating and maintaining effective environments for student learning”;

“[u]nderstanding and organizing subject matter for student learning”; “[p]lanning

10
instruction and designing learning experiences for all students”; and “[d]eveloping as a

professional educator.”

Article 17 (Due Process/Just Cause) specified the procedures for administering

employee discipline. Article 17.3 establishes a progressive discipline hierarchy,

beginning with a verbal warning, before escalating to a written warning, a written

reprimand, and suspension. This provision stated that a verbal warning, the first step in

this process, “shall not be used unless the unit member has first been made aware of

the performance standard.”

Article 17 included no substantive criteria or grounds for discipline. However, it is

undisputed that District employees are expected to comply with all board policies and

administrative regulations and that failure to do so may result in discipline.

Article 27 (Concerted Activities) prohibited the Association from calling a “strike,

work stoppage, slow-down, [or] picketing of the District by the Association or by its

officers or agents, during the term of the Agreement” and obligated the Association to

“advise and direct” unit members to cease engaging in such activities. Article 27 did not

address any other union or concerted employee activities on District property.

There was no witness testimony or other extrinsic evidence regarding the past

practice or bargaining history of any provisions of the CBA. At some point in or before

early September 2023, the Association and the District began meeting and negotiating

over a successor agreement and continued to do so through at least early 2024.

C. Parental Notification and Other District Policies Predating BP 5020.01

The parties dispute whether provisions of BP 5020.01 are consistent with existing

District policies and regulations. The District argues the parental notification

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requirements in other board policies and administrative regulations demonstrate that the

District has an established past practice on the subject, and that the Association has not

demanded bargaining over parental notification requirements. The Association argues

that BP 5020.01’s parental notification requirements for students’ gender non-

conforming conduct are inconsistent with the District’s pre-existing polices, unit

members’ job descriptions, and professional and certification obligations. It is therefore

necessary to review the evidence regarding other, preexisting board policies and

administrative regulations before turning to the facts regarding BP 5020.01’s adoption.

1. BP 410 (Nondiscrimination in District Programs and Activities)

BP 410 was adopted on January 16, 2018. It prohibits discrimination against “all

individuals in education” based on several characteristics, including “sex, sexual

orientation, gender, gender identity or expression,” the “perception of one or more of

such characteristics,” or “association with a person or group with one or more of these

actual or perceived characteristics.”

The Association contends that BP 0410 “incorporates by policy reference” two

publications of the California School Board Association (CSBA)3 that, according to the

Association, expressly prohibit disclosure to students’ parents or legal guardians the

same categories of student information that BP 5020.01 requires certificated staff to

disclose to parents and/or guardians. However, every board policy offered into

evidence, including BP 410, includes a “Policy Reference Disclaimer” statement

The CSBA publications referenced are “Legal Guidance on Rights of

3

Transgender and Gender Nonconforming Students in Schools, October

2022” and “Parental and Student Rights in Relation to Transgender and Gender
Nonconforming Students, Recently Asked Questions, August 2023.”

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indicating that the list of cross-referenced policies or authorities in the board policy “are

not intended to be part of the policy itself” and “do [not] indicate the basis or authority for

the board to enact this policy.” Rather, according to the disclaimer language, the cross-

referenced materials “are provided as additional resources for those interested in the

subject matter of the policy.” While BP 410 expressly prohibits discrimination based on

gender identity or expression, because it does not incorporate by reference the CSBA

publications cited by the Association, the contents of those publications do not address

whether BP 410 prohibits non-consensual disclosure to a parent or guardian of a

student’s transgender or gender non-conforming conduct.

2. BP 4119.23 (Unauthorized Release of Confidential Information)

BP 4119.23 was adopted on January 16, 2018. It directs staff to maintain the

confidentiality of “confidential” information acquired in the course of their employment

and to disclose such information “only to the extent authorized by law.” Under the

policy, employees who “willfully” release “confidential” information about the District, its

students, or staff are subject to discipline, while employees whose inadvertent or

careless acts or omissions result in disclosure of such information are subject to

documentation of the incident being placed in their personnel files and being denied

further access to such information.

BP 4119.23 defines “confidential information” to include “information that is not a

public record subject to disclosure under the Public Records Act, information that by law

may not be disclosed, or information that may have a material financial effect on the

employee.”4 BP 4119.23 contains no language addressing whether disclosure of

4 The District also has a board policy, BP 5125, governing student records.

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“confidential” student information to a student’s parent or legal guardian is permitted,

required, prohibited, or otherwise regulated by this board policy.5

3. BP 4119.21-E (Professional Standards)

BP 4119.21 was adopted on January 16, 2018. It consists of a Code of Ethics of

the Education Profession, dated 1975, and attributed to the National Education

Association. The Code of Ethics contains provisions stating that an educator “[s]hall not

intentionally expose the student to embarrassment or disparagement” and “[s]hall not

disclose information in the course of professional service unless disclosure serves a

compelling professional purpose or is required by law.” Another provision states that an

educator shall not “unfairly … [e]xclude any student from participation in any program”;

“[d]eny benefits to any student”; nor “[g]rant any advantage to any student … on the

basis of … gender [or] sexual orientation ….”

Diaz testified that he understood this policy to prohibit certificated staff from

disclosing details about a student’s gender identity without the student’s consent.

However, the Code of Ethics, which is dated 1975 and was adopted by the District

However, because it was not part of the PERB record, I make no findings on whether or
to what extent, student records as defined by BP 5125, are “confidential” within the
meaning of BP 4119.23’s prohibition against disclosure of “confidential information.”

5 State and federal laws, including provisions of the Education Code and the
federal Family Educational and Privacy Rights Act or FERPA (20 U.S.C., § 1232g),
restrict disclosure of “pupil records.” Neither party has briefed whether disclosure of
transgender or gender non-conforming conduct to a student’s parent or legal guardian
without student consent constitutes “unauthorized” disclosure within the meaning of
these statutes. I also regard it as unnecessary to decide that issue in this case.

14
without addition or alteration in 2018, does not mention gender expression or gender

identity as a protected category.

4. BP 5131.2 (Bullying)

BP 5131.2 was adopted on November 15, 2022. It recognizes “the harmful

effects of bullying on student learning and school attendance,” states as its purpose to

“provide safe school environments that protect students from physical and emotional

harm,” and directs the Superintendent or designee to “develop strategies for addressing

bullying in district schools with the involvement of students, parents/guardians, and

staff” and, as appropriate, in collaboration with various outside agencies and service

providers. BP 5131.2 includes no single definition of “bullying.” It provides a functional

definition by stating:

“No student or group of students shall, through physical,

written, verbal, or other means, harass, sexually harass,
threaten, intimidate, cyberbully, cause bodily injury to, or
commit hate violence against any other student or school
personnel, or retaliate against them for filing a complaint or
participating in the complaint resolution process.”

It also incorporates elements of the statutory definition of “bullying” from Education

Code section 48900, subdivision (r), which is concerned with student misconduct

warranting suspension. In this regard, BP 5131.2 prohibits only “severe or pervasive

physical or verbal act or conduct … that constitutes sexual harassment, hate violence,

or creates an intimidating or hostile educational environment … that [has] or can be

reasonably predicted to …

“(1) plac[e] a reasonable pupil or pupils in fear of harm [to

themselves or their property];
“(2) caus[e] a… substantially detrimental effect on the
student’s physical or mental health;

15
 “(3) caus[e]… substantial interference with the student’s
academic performance;
“(4) caus[e]… a [student] to experience substantial
interference with [their] ability to participate in or benefit from
the services, activities, or privileges provided by a school.”

(Emphasis added.)

The District’s anti-bullying policy also prohibits “cyberbullying.” It defines that

term by reference to Penal Code 653.2, which makes it a misdemeanor “for a person to

distribute personal identity information electronically with the intent to cause harassment

by a third party and to threaten a person’s safety or that of the student’s family.”6

Setting aside any variance in how BP 5131.2 defines the proscribed conduct, the

policy directs staff who witness bullying to intervene “immediately … to stop the incident

when it is safe to do so,” or upon receiving a complaint from any student, parent,

guardian, or other individual who has witnessed or believes that a student has been

bullied. The policy requires employees to notify the principal within one business day,

and the principal or designee is then responsible for notifying the student’s parent or

guardian if the student has been exposed to “bullying.”

5. BP 5141 (Health Care and Emergencies)

The District adopted BP and AR 5141 in January 2018. The board policy directs

the Superintendent or designee to “develop procedures to ensure that first aid and/or

6 Unlike the Education Code definition, which prohibits only certain student
conduct, the Penal Code prohibition against “cyberbullying” applies to “a person.” It is
unclear from the record and neither party’s brief has addressed whether this separate
definition of “cyberbullying” subjects certificated staff to discipline not only for failure to
comply with any reporting requirements but also for engaging in “bullying” or
“cyberbullying” prohibited by the policy by disclosing sensitive student information.

16
medical attention is provided as quickly as possible when accidents and injuries to

students occur and that parents/guardians are notified as appropriate.” The policy

requires staff to “appropriately report and document student accidents,” but contrary to

the District’s contention, BP 5141 does not expressly or even implicitly require

certificated staff to notify parents or guardians of a student injury or illness. In fact, the

corresponding regulation, AR 5141, requires the principal or designee to notify a parent

or guardian of emergency or urgent medical treatment and makes no mention of

certificated staff doing so.

The only extrinsic evidence on this subject was too incomplete to support a

factual finding one way or the other. On cross examination, Diaz recalled an automobile

accident involving a student that had resulted in disciplinary charges against a teacher.

However, Diaz was unsure whether the teacher was charged with failing to report or

document the student accident under BP 5141. Diaz was also not examined about

whether in his experience as a classroom teacher or union representative, BP 5141 had

ever been interpreted to require certificated staff to contact a parent or guardian directly

as opposed to reporting the issue to a site administrator or other District official.

Because BP 5141 does not expressly require certificated employees to report directly to

parents or guardians, and because of the limited nature of witness testimony on the

subject, the District has not met its burden of showing that BP 5141 was part of an

established practice requiring certificated staff to contact students’ parents or guardians.

6. BP 5141.52 and AR 5141.52 (Suicide Prevention)

BP and AR 5141.52 regarding suicide prevention have been in effect since

January 2018. BP 5141.52 directs the Superintendent or designee to “develop

17
strategies for suicide prevention, interventions, and postvention and the identification of

the mental health challenges frequently associated with suicidal thinking and behavior.”

The board policy is concerned primarily with suicide prevention, training, education,

including identifying, assessing, and monitoring students deemed at risk of suicide, and

responding in the aftermath of suicidal behavior. If a staff member “suspects or has

knowledge of a student’s suicidal intentions,” the policy directs the staff member to

contact one of two trained suicide prevention liaisons for intervention. Thereafter, “[t]he

principal, another school administrator, school counselor, school psychologist, social

worker, or nurse shall … notify, if appropriate and in the best interest of the student, the

student’s parents/guardians/caregivers as soon as possible and shall refer the student

to mental health resources in the school or community.”

However, the policy also notes: “Determination of notification to

parents/guardians/caregivers should follow a formal initial assessment to ensure that

the student is not endangered by parental notification.” Thus, under the board policy,

not even the Superintendent or designee is necessarily required in all situations to notify

the student’s parent or guardian of a student’s contemplated or attempted suicide. BP

5141.52 does require school personnel to notify parent(s) or guardian(s) of an out-of-

school suicide attempt or death by suicide, but it does not specify the title, position, or

individual(s) responsible for making contacting in these circumstances.

AR 5141.52 reiterates the directive of the board policy that a staff member who

suspects or knows of suicidal intentions based on a student's verbalizations or acts of

self-harm must “promptly notify the principal, school counselor, school social worker, or

18
school psychologist, who shall implement district intervention protocols as appropriate.”

Regarding parental notification, AR 5141.52 states:

“Although any personal information that a student discloses

to a school counselor shall generally not be revealed,
released, referenced, or discussed with third parties, the
counselor may report to the principal or student’s
parents/guardians when there is reasonable cause to believe
that disclosure is necessary to avert a clear and present
danger to the health, safety, or welfare of the student or
others in the school community. In addition, the counselor
may disclose information of a personal nature to
psychotherapists, other healthcare providers, or the school
nurse for the sole purpose of referring the student for
treatment.”

(Emphasis added.)

This provision expressly contemplates that a school counselor may, but is not

generally required to, disclose “any personal information” that a student has disclosed to

the counselor. Thus, even in cases of contemplated or attempted suicide, parental

notification of “any personal information” obtained by a school counselor from a student

is not the norm but the exception, and only when “there is reasonable cause to believe

that disclosure is necessary to avert a clear and present danger to the health, safety, or

welfare of the student or others in the school community.”

Like the anti-bullying policy discussed above, BP and AR 5141.52 appear to

contemplate at most, a two-tiered reporting procedure, in which certificated staff may,

under specified circumstances, be required to report certain student conduct to an

administrator, who may then be responsible for contacting the student’s parent(s) or

guardian(s). Thus, under BP and AR 5141.52, the “Superintendent or designee,” and

not certificated staff, is responsible for “follow up with the parent/guardian and student in

19
a timely manner to provide referrals to appropriate services as needed” and for taking

additional steps, including contacting child protective services, if the parent/guardian

does not access treatment for the student.

7. District Job Specifications for Teaching Positions

In addition to board policies, the record also contains several job specifications,

i.e., job descriptions, including two for Elementary Teachers corresponding to primary

and upper grades; one for Middle School Teacher; and four job specifications for High

School Teachers with specializations in language arts, mathematics, music, and social

sciences. All specifications follow a similar format and contain standardized language

requiring incumbents to “[c]reate[] a flexible program and environment favorable to

learning and personal growth in accordance with each student’s ability.”

All teacher job specifications also include some language requiring the

incumbent to communicate with parents and other District personnel about “student

progress” and to hold parent conferences. For example, the Middle School Teacher job

specification states that the incumbent “[c]ommunicates with parents, teachers,

administrators, and school counselors on student progress, and actively participates in

meeting related to individual student’s development,” while the four High School

Teacher job specifications contain language requiring the incumbent to “[c]ommunicate[]

with parents and school counselors on student progress.” Among the other non-

exhaustive list of duties in their job specifications, high school teachers also

“[e]stablishe[] and maintain[] standards of pupil behavior required to provide an orderly

and productive environment.”7

7 The record also contains a job specification for Licensed Clinical Social

20
 Having reviewed the District’s preexisting parental notification policies and

regulations, and relevant job duties for District teachers, I now turn to BP 5020.01.

D. Adoption of BP 5020.01 (Parental Notification)

The Complaint alleges, and the District admits, that before August 2023, it had

no policy “requiring employees to notify parents or guardians that their student is

transgender and/or seeking to access educational services as a transgender student.”

Union witnesses confirmed that this was their understanding before adoption of BP

5020.01. Diaz testified that before the 2023-2024 school year when BP 5020.01 was

adopted, the District had accommodated requests by gender non-conforming students

to use a different name and different pronouns in class, to use a different changing

room for physical education classes, and to use different restroom facilities. He testified

that unit members were not required to report to an administrator or notify a parent or

guardian if a student requested to be identified or treated as a gender other than their

biological sex, wanted to use a name that was not their legal name, asked to be

identified by pronouns that did not align with the student’s biological sex, wanted to

access sex-segregated programs or activities that did not align with the student’s

biological sex, or requested a change to information in the student’s official or unofficial

school records.

Worker. As discussed below, there was witness testimony that licensed clinical social
workers employed by the District are prohibited by their licensing and professional
responsibilities from disclosing a student’s transgender or gender non-conforming
conduct without the student’s consent. However, this requirement is not reflected in
the job specification for this position.

21
 High school Language Arts teacher Derek Heid similarly acknowledged that

“[c]ommunicat[ion] with parents and school counselors on student progress” was among

the required duties in his job specification, and that in addition to conducting parent-

teacher conferences to discuss academic progress, social development, and any

behavioral issues, he sent a weekly update informing his student’s parents of “what

we’re reading in class, the major assignments coming that week, where we’re headed,

[and] how close we are to the end of the school year.” However, Heid testified that

students had asked him to “try out” gender non-conforming names or pronouns; that he

had never reported such requests to parents; and that he was concerned that doing so

pursuant to BP 5020.01 would undermine the trust of his students. According to Heid,

“students have to feel that they are reasonably safe to explore ideas” and “to

communicate with [their instructor] and their peers without judgment … of those ideas,”

whether curricular or otherwise.

Jessica Byrnes offered similar testimony. She interned with the District during

the 2019-2020 school year and has worked as a social worker at Temecula Middle

School since the 2020-2021 school year. Byrnes testified that in years past, students

had asked her to use gender non-conforming names and pronouns; that she considered

such information about a student’s identity, sexual orientation, or gender preferences to

be confidential and not something that her licensure requirements or the National

Association of Social Workers’ Code of Ethics would permit her to disclose without the

student’s consent; and that, before adoption of 5020.01, she knew of no District policy

that required her to do so.

22
 The Complaint further alleges, the District admits, and the parties have

stipulated, that the agenda for BOE’s August 22, 2023 meeting was made publicly

available on Thursday, August 17, 2023, when it was posted on the District’s website.

The parties further stipulated that other than posting the meeting agenda on this

website, the District provided the Association with no notice that BOE was considering

adopting BP 5020.01 the following week.8 The District further admits that BOE adopted

BP 5020.01 at its August 22, 2023 meeting and that the District “did not afford [the

Association] an opportunity to negotiate the decision to implement the change ….” Diaz

was one of approximately 35 individuals who spoke during the public comment section

of the meeting regarding adoption of BP 5020.01. Diaz asserted that the policy was

negotiable because it would change teachers’ duties and working conditions.

E. Provisions of BP 5020.01 at Issue

Two aspects of BP 5020.01 are at issue: (1) the reporting requirement for

students’ transgender or gender non-conforming conduct, and (2) the expansion of

employees’ obligation to report all instances of physical or verbal altercations.

1. Parental Notification Requirement for Student Transgender and

Gender Non-Conforming Conduct

Section 1 of BP 5020.01 creates reporting requirements for transgender or

gender non-conforming conduct by a student. It requires the “principal/designee(s),

8 Both Dayus and Diaz testified that they learned about BP 5020.01 when the
agenda for the August 22, 2023 school board meeting was posted the previous Friday,
which was August 18, 2023. I need not resolve the one-day discrepancy between
their testimony and the parties’ stipulation that the agenda was posted one day earlier
because it would not affect the analysis or result discussed below.

23
certificated staff, and school counselors” to report in writing to a student’s parent(s) or

guardian(s) within three days of learning that a student is:

“a. Requesting to be identified or treated as a gender (as

defined in Education Code section 201.7) other than the
student’s biological sex or gender listed on the student’s
birth certificate or any other official records. [¶] This includes
any request by the student to use a name that differs from
their legal name (other than a commonly recognized
diminutive of the child’s legal name) or to use pronouns that
do not align with the student’s biological sex or gender listed
on the student’s birth certificate or other official records.

“b. Accessing sex-segregated school programs and

activities, including athletic teams and competitions, or using
bathroom or changing facilities that do not align with the
student’s biological sex or gender listed on the birth
certificate or other official records.

“c. Requesting to change any information contained in the

student’s official or unofficial records.”

2. Parental Notification for all Incidents or Complaints of Physical and/or

Verbal Altercations Involving a Student

The other aspect of BP 5020.01 at issue concerns the scope of student

altercations requiring parental notification.9 Section 4 of BP 5020.01 provides:

“The principal/designee or certificated staff shall notify the

parent(s)/guardian(s) of any incident or complaint of a verbal
or physical altercation involving their child, including bullying

9Sections 2 and 3 of BP 5020.01 include parental notification requirements

regarding physical injuries to students and suicide attempts or suicidal ideation. The
Association does not challenge these provisions, while the District argues that they,
along with other board policies discussed above, are evidence of an established past
practice requiring parental notification on various subjects. Because sections 2 and 3
were adopted at the same time as the disputed provisions in sections 1 and 4 of BP
5020.01, I do not regard them as probative evidence of any established past practice.

24
 by or against their child, within three days of the occurrence.
Any student, parent/guardian, or other individual who
believes that a student has been subjected to bullying or
who has witnessed bullying may report the incident to a
teacher, the principal, the District compliance officer, or any
other available school employee. Any complaint of bullying,
whether it is discriminatory or nondiscriminatory, shall be
investigated and resolved in accordance with law and the
District’s uniform complaint procedures (UCP) specified in
Administrative Regulation 1312.3.”

Although this passage may include an incident or complaint of “bullying by or

against [a] child,” it does not necessarily require an incident or complaint of bullying to

make the incident or complaint subject to the mandatory reporting requirement.

Instead, on its face, it requires the principal/designee or certificated staff to notify

parent(s) or guardian(s) “of any incident or complaint of a verbal or physical altercation

involving their child ….” When examined about this distinction, Arce admitted that “as

written,” section 4 of BP 5020.02 quoted above created new duties for certificated staff.

F. Implementing Parental Notification for Gender Non-Conforming Conduct

Dayus testified that there was an immediate and “significant unrest” among staff

regarding BP 5020.01. The day after its adoption, District administrators formed a

committee, known as the AR 5020.01 Committee, whose purpose was twofold: (1) to

“begin the process of communicating with staff” about the policy and (2) to draft an

implementing regulation. According to Dayus, who chaired the committee, the

committee also included the interim and assistant superintendents, two Directors of

Student Welfare and Success, the Director of Special Education, the District’s Human

Resource Directors and assistant superintendent.10 Other District personnel, including

10 Arce testified that he was not in fact a member of this committee but

25
the District’s Business Services Assistant Superintendent and counselors represented

by the Association, later joined or attended the committee’s meetings on an ad hoc

basis, as described below.

By the afternoon of August 23, 2023, the committee had drafted a multi-point

message, which Velez e-mailed to all District staff. According to the message, the

“[d]iscussion among the board members during the meeting conveyed an understanding

that staff will now take steps to develop an accompanying administrative regulation …

before implementing [the] board policy.” It added that the AR would “provide protocols,

training directives, and instruction to staff on how to implement the policy” and “provide

clarification and guidance for all district employees.”

Other points in Velez’s message suggested that developing the regulation “will

take a few weeks” for at least two reasons. First, according to Velez’s message, the

process may require “a thorough review of currently adopted policies and the resolution

of any potential conflicts related to parent notification, rights, and student privacy laws

as well as confidentiality and student services such as bullying reporting and mental

health services.” Her message also noted that because “this policy may potentially

affect employees’ working conditions, as discussed in the board meeting,” the District

intended to “collaborate with our employee labor groups as needed.”

confirmed that he met with Dayus within the first 48 hours after adoption of BP
5020.01 to emphasize the importance of involving the Association and the classified
employees’ representative when implementing BP 5020.01. Because there is no
dispute that Arce met with Dayus about developing an administrative regulation shortly
after adoption of BP 5020.01, I need not resolve the discrepancy in whether Arce
considered himself a member of the committee or only a one-time visitor.

26
 G. The Association’s Demand to Bargain BP 5020.01

On September 7, 2023, Diaz sent a written demand to bargain BP 5020.01 to the

five members of BOE. Diaz’s letter asserted that some reporting requirements of the

policy violated students’ constitutional privacy rights and therefore conflicted with

professional and credentialing requirements that unit members maintain student

confidentiality; that unit members “would likely be left uncertain about how [the policy]

would be applied and what their professional obligations would be if the policy were

adopted; and that because the policy affected employee job duties and added to the

grounds for discipline, it was subject to negotiation under EERA.”

Diaz testified, without contradiction, that the District never responded to the

Association’s September 7, 2023 demand for decisional bargaining. The District’s

position in this dispute was and remains that it was not required to engage in decisional

bargaining before adopting BP 5020.01. Arce testified, and Diaz confirmed, that during

negotiations on September 18, 2023, the District asked the Association to negotiate

over the effects of BP 5020.01 by participating in the development of the corresponding

administrative regulation on the subject. At the PERB hearing, Arce recalled that he

“specifically mentioned that the District would be working to create a committee and

solicit input related to this” and that he “may have even discussed that some input was

already underway as it pertains to people like social workers and counselors.”

As discussed below, several months later, the District again offered to discuss

negotiable impacts or effects of BP 5020.01. On both occasions, the Association

refused to do so and explained that it considered adoption of BP 5020.01 subject to

decisional bargaining.

27
 H. Developing a Draft AR 5020.01

After drafting the District-wide message for Velez, the AR 5020.01 Committee

began soliciting input from District and site administrators, parents, and other

stakeholders to prepare an administrative regulation. Among other concerns, the

committee sought to reconcile the language of BP 5020.01, which required “certificated

staff” and more specifically “school counselors” to disclose certain student conduct in

apparent conflict with a duty of confidentiality owed to students under these employees’

licensure and certification requirements. Dayus and the other committee members

decided that they would need input not only from administrators and parents but also

from members of the District’s social-emotional learning teams, which included school

counselors and licensed clinical social workers.

The District’s Director of Secondary Curriculum and Instruction developed a

Google survey with the title “Parent Notification BP Feedback Form” which was

provided to various directors who, in turn, distributed it to counselors, social workers,

and school psychologists under their direction to solicit their input on how the

requirements of BP 5020.01 would “impact the way you support students during

counseling meetings” and what points in the previous message sent by Velez needed

further clarification. Other questions in the survey asked employees to indicate if “a

member of your team [was] willing to serve on the committee that will design the

administrative regulation,” and if so, to identify such individuals to the AR 5020.01

Committee. Dayus testified that the primary concern expressed by counselors, social

workers, and school psychologists responding to the survey was that BP 5020.01 was

“going to put these professionals at risk for what their own credential[s] required them to

28
do,” an issue that the policy itself did not address. According to Dayus: “That’s why we

wanted the AR to address it so that they understood that they still are able to maintain

the level of confidentiality that they always had.”

In addition to the survey, Dayus convened a series of meetings with employees

in the three certificated positions identified above. On September 27, 2023, an AR

5020.01 Committee meeting was combined with a Common Counseling Meeting, a

regularly scheduled, mandatory meeting for all secondary school counselors. Dayus

described the approximately 25 counselors in attendance as comprising an ad hoc

“subcommittee” of the AR 5020.01 Committee. On October 4, 2023, Dayus convened a

similar meeting with employees on the District’s Social Emotional Learning team,

including counselors and social workers.

Despite Arce’s urging, Dayus acknowledged that at no point was an Association

representative invited or allowed to attend these or any other meetings of the AR

5020.01 Committee. Dayus testified that she was unaware of any prohibition against

the District soliciting exclusively-represented employees for feedback before making a

proposal on the same subject to their representative. However, she also acknowledged

that in her seven years’ experience on the District’s bargaining team, negotiations had

“always” been conducted through the Association’s negotiating team, rather than

directly with the employees.

By January 13, 2024, the AR 5020.01 Committee had finalized a draft regulation

for implementing BP 5020.01. Three parts of the draft regulation are relevant to the

issue of parental notification for students’ gender non-conforming conduct.11 The initial

11 Other sections, including section 5’s provisions for “Notification for

29
(unnumbered) paragraphs contain various recitals in which the District reiterates its

commitment to notifying parents and guardians of and involving them in their children’s

school-related activities.

A second part of the draft regulation (comprising paragraphs 1 and 2) reiterates

the gender non-conforming parental notification requirements stated in BP 5020.01.

However, instead of requiring certificated employees to notify parents directly, these

provisions would require employees to promptly notify the principal or designee, who

would in turn meet with the student to discuss the request to change a name, pronouns,

or other information in school records and to inform the student of the District’s

parent/guardian notification procedures. The draft AR 5020.01 would provide a three-

day period in which the student “may withdraw” the requested change. According to the

draft regulation: “If the student’s request is subsequently withdrawn within three days,

the requested change and parent/guardian notification shall not occur.”

A third (unnumbered) section of the draft regulation identifies several

circumstances and corresponding legal authorities whereby school counselors, school

psychologists, and social workers would be exempt from the above reporting

requirements due to credentialing requirements or other legal or professional obligations

to maintain student confidentiality. This portion of the draft AR is quoted here in full:

“Notwithstanding the above, no notification to the

parent(s)/guardian(s) will be made if such notification would
violate Education Code Section 49602. Specifically, no
notification to the parent(s)/guardian(s) will be made if such
notification would result in the disclosure of any information
of a personal nature by a pupil 12 years of age or older that

Altercations and Bullying,” are discussed below, as necessary.

30
was disclosed by the pupil in the process of receiving
counseling as specified in Education Code Section 49600
from a school counselor, school psychologist, social worker
possessing a valid credential with a specialization in pupil
personnel services, unless the exception in subsection (d) or
(e), below, applies. Such information shall not be revealed,
released, discussed, or referred to, except as follows:

“(a) Discussion with psychotherapists as defined by Section

1010 of the Evidence Code, other health care provider, or
the school nurse, for the sole purpose of referring the pupil
for treatment.

“(b) Reporting of child abuse or neglect as required by Article

2.5 (commencing with Section 11165) of Chapter 2 of Title 1
of Part 4 of the Penal Code.

“(c) Reporting information to the principal or parents of the

pupil when the school counselor has reasonable cause to
believe that disclosure is necessary to avert a clear and
present danger to the health, safety or welfare of the pupil or
the following other persons living in the school community:
administrators, teachers, school staff, parents, pupils and
other school community members.

“(d) Reporting information to the principal, other persons

inside the school, as necessary, the parents of the pupil, and
other persons outside the school when the pupil indicates
that a crime, involving the likelihood of personal injury or
significant or substantial property losses, will be or has been
committed.

“(e) Reporting information to one or more persons specified

in a written waiver after this written waiver of confidence is
read and signed by the pupil and preserved in the pupil’s file.

“Notwithstanding the foregoing, a school counselor, school

psychologist, or social worker possessing a valid credential
with a specialization in pupil personnel services shall not
disclose information subject to California Education Code

31
 Section 49602 to the parents of a pupil 12 years or older
when they have reasonable cause to believe that the
disclosure would result in a clear and present danger to the
health, safety, or welfare of the pupil. In the case
parental/guardian notification cannot be made because there
is reasonable suspicion of child abuse or neglect, school
employees, as mandated reporters, shall follow the
necessary procedures of reporting as outlined by law.”

Dayus testified that AR 5020.01 Committee chose to exempt elementary and

secondary school counselors, social workers, and school psychologists from BP

5020.01’s parental notification requirements because of the results obtained from the

Google survey and the meetings with these employees. According to Dayus, whatever

their different job duties and credentials, employees in these three classifications were

subject to “the same requirements of confidentiality” in their dealings with students. It is

unclear from the record whether these exemptions can be reconciled with BP 5020.01,

which expressly identifies “school counselors” and indeed all “certificated staff” as

subject to the parental notification requirements. For example, Arce testified that if a

counselor, social worker, or other employee providing social-emotional or psychological

support to students is required to follow some Education Code or other provision of law

mandating student confidentiality, those matters would be appropriate for effects

bargaining and thus could effectively be carved out from the requirements of a board

policy. However, at the PERB hearing, both Dayus and Arce also conceded that under

the District’s bylaws, the language of a board policy supersedes any conflicting

provision in an administrative regulation.

Another issue in dispute is whether the exceptions proposed for counselors,

social workers, and psychologists are sufficient to address the licensing or credentialing

32
requirements of other certificated employees. The draft AR 5020.01 includes no

exemption for classroom teachers, who comprise most of the Association’s unit, and it is

undisputed that unless expressly exempted, school nurses and other certificated

employees would be required to report students’ gender non-conforming conduct, if the

regulation proposed by Dayus’s committee were enforced as written. Dayus

acknowledged “other complications related to teachers and their ability to follow [BP

5020.01’s gender non-conforming reporting requirement] based on existing policy” such

as California Department of Education licensing requirements, but she testified that “our

starting point was with those three groups.”

I. Uncertainty Regarding the Parental Notification Requirement of AR 5020.01

for Students’ Gender Non-Conforming Requests
On February 8, 2024, Arce provided the Association’s negotiators with a copy of

the draft AR 5020.01 and asked to have it added to the agenda for negotiations

scheduled for the following day. Arce’s letter informed the Association that the AR

5020.01 Committee had met with employees exclusively represented by the Association

to solicit their input on the draft regulation and that the District “greatly appreciate[d]” the

employees’ “assistance in the development of AR 5020.1.”

During negotiations on February 9, 2024, District representatives again offered to

discuss any negotiable impacts or effects of BP 5020.01. Arce also informed the

Association that a memo would “likely” be sent the following week advising staff of the

implementation and enforcement of AR 5020.1. The Association again refused to

engage in effects bargaining, with the explanation that it considered adoption of BP

5020.01 to be subject to decisional bargaining.

33
 The draft AR 5020.01 was shared with site administrators for feedback at a

“horizontal” meeting in March 2024. Dayus testified that it has also been circulated to

those groups of employees who had previously provided feedback, namely, counselors,

social workers, and school psychologists, but not to other certificated staff. According to

Dayus, AR 5020.01 “is in effect” but not officially implemented. There was conflicting

information about whether its “official” implementation was awaiting action by the

District’s Superintendent or whether, like the underlying board policy, the draft

administrative regulation must also be formally adopted by a vote of BOE.

District and Association witnesses expressed uncertainty regarding whether and

how BP and AR 5020.01 were being enforced with regard to students’ gender non-

conforming requests or other conduct. Dayus testified that she had no specific

information on whether site administrators were expecting or requiring certificated staff

to follow the parental notification requirements of BP 5020.01 in the absence of a

formally adopted regulation on the subject. However, Dayus testified that she believed

that “based on the effective Board policy,” site administrators might “encourage

[certificated staff] to report to them” if a student asked to change pronouns or if any of

the other circumstances specified in BP 5020.01 arose. She added: “I think our school

administrators are following what it says [in BP 5020.01] to the best of their ability while

they’re waiting for an administrative regulation that involves certificated staff” and that

“some” site administrators “would be following this … in the role that that they serve.”

Arce also expressed some uncertainty about whether the parental notification

requirements of BP 5020.01 were subject to enforcement in the absence of a final or

officially adopted administrative regulation. Arce testified that he and other assistant

34
superintendents with whom he had discussed the issue agreed that under the CBA’s

due process requirements, certificated employees should not be disciplined for failing to

comply with BP 5020.01 until the corresponding AR had been finalized and circulated to

all affected employees. Arce testified that he had shared this view with “the top boss,”

but because Woods had expressed no opinion on the subject, Arce was unable to

articulate the District’s “official position” at the PERB hearing.

Diaz testified that he was unaware of any instances in which certificated

employees had been disciplined or evaluated for their alleged failure to comply with the

parental notification requirements of BP 5020.01. However, he testified that he had

spoken with a probationary teacher who was concerned about non-renewal after being

counseled by an administrator to follow the requirements of BP 5020.01.

Byrnes recounted her involvement in a series of events that occurred sometime

between Winter and Spring breaks 2023 after a middle school student had asked a

teacher to use different pronouns and a different name than the student’s official name.

Byrnes testified that the teacher was unsure whether BP 5020.01 was in effect and

approached an administrator for guidance on how to respond to the student’s request.

The administrator asked Byrnes and a counselor to support the social-emotional well-

being of the student and to explain to the student that the student had a three-day

“grace period” to rethink and withdraw the request to use different pronouns and a

different name before the District would notify the student’s parents. According to

Byrnes, the student’s parents were never contacted about the student’s request

because the student withdrew it within the three-day grace period. Although portions of

Byrnes’s account, including events allegedly occurring before the administrator

35
contacted her, are objectionable as hearsay and lacking personal knowledge, Arce’s

testimony corroborated the essential details, including that at some point after the draft

AR 5020.01 was circulated to administrators but not formally adopted, a middle school

student was given three days to withdraw a gender non-conforming request and that

because this request was withdrawn within three days, the student’s parents were never

notified of the request.

J. Classroom Management and Draft AR 5020.01 Provisions Requiring

Parental Notification for Student Altercations and Bullying

Diaz described “classroom management,” which entails creating “a welcoming,

positive and inclusive environment to make sure that students are ready to learn” and

“focused on the hard work of actually learning the material” as “the main part of the job”

of being a teacher. According to Diaz, elementary and middle school students often

have verbal altercations because of misinterpretations of what was said or presumed to

have been said. Sometimes an incident or student interaction “doesn’t lead to anything

else” but requires a day or two for the students to work through the issue and realize it

was just a misunderstanding.

Diaz testified that before adoption of 5020.01, teachers had discretion under BP

5131.2 (Bullying) to decide whether to report student altercations to parents and District

administrators based on the teacher’s sense of whether it was leading to harm or had

resulted in harm. By contrast, Diaz understood BP 5020.01 and the corresponding draft

AR to require that “any incident of complaint, verbal or physical, be reported” which Diaz

testified “would increase the amount of reporting to parents and increasing the time

commitment to be able to do so.” Heid similarly testified, without contradiction, that BP

5020.01 expanded teacher’s parental notification duties because before adoption of the

36
policy, he was not required to report every verbal altercation between students to their

parent(s) or guardian(s).

Under the heading “Notification for Altercations and Bullying,” paragraph 5 of the

draft AR 5020.01 states:

“The principal/designee or certificated staff shall notify the

parent(s)/guardian(s) of any significant incident or complaint
of a verbal or physical altercation involving their child,
including bullying by or against their child, within three
school days of the occurrence. Any student, parent/guardian,
or other individual who believes that a student has been
subjected to bullying or who has witnessed bullying may
report the incident to a teacher, principal, the district
compliance officer, the Let’s Talk link on the website, or any
other available school employee.”

The draft regulation then appears to recite the same statutory definition of

“bullying” from Education Code section 48900, subdivision (r), as appears in BP 5131.2.

However, the draft AR 5020.01 in the record ends mid-sentence and is presumably

incomplete. Because it is impossible to compare the full contents of the draft AR

5020.01 with the parental notification provisions on student altercations and bullying in

the preexisting board policy, I make no findings on that subject.

K. AR 6115’s Ban on Flags and Depictions of Flags on School Grounds

1. Adoption of Revised AR 6115

The Complaint alleges, and the District admits, that before September 12, 2023,

the District “did not maintain a policy prohibiting the display of flags other than those of

the United States of America and the State of California.” The Complaint further

alleges, the District admits, and the parties have stipulated, that the agenda for the

District’s September 12, 2023 school board meeting was first made publicly available on

37
September 8, 2023, when it was posted on the District’s website, and that other than

publicly posting this agenda on its website, the District provided the Association with no

notice of its intent to adopt revisions to AR 6115 affecting the display of flags on school

grounds. The District further admits that on September 12, 2023, it adopted revisions to

AR 6115 affecting the display of flags on school grounds and that it “did not afford [the

Association] an opportunity to negotiate the decision to implement [this] change ….”

The September 12, 2023 revisions to AR 6115 stated: “Flags other than the

United States of America and the State of California.” They defined a “flag” as “a

display representing a flag of distinct color and design used as a symbol, standard,

signal, or emblem” and limited the display of flags as follows:

“No flag other than the United States of America and State of
California may be displayed on school grounds, including
classrooms, unless it is a country, state, or United States
military flag used solely for educational purposes within the
adopted curriculum. Any other flag must be approved by the
Superintendent or designee prior to displaying, if and only if,
it is used for educational purposes and only during the
related instructional period.

“Flags of higher education institutions, school flags,

pennants, and awards representing academic and
extracurricular awards shall be permitted as part of the
college and career program.”

2. Association’s Demand to Bargain Revisions to AR 6115

As of September 12, 2023, when BOE adopted the revisions to AR 6115, the

parties were scheduled to meet for negotiations on September 18, 2023. At that

meeting, the Association’s representatives raised several questions and concerns about

the text, meaning, and enforcement of the revised AR 6115. According to excerpts from

38
the District’s bargaining notes, there was even some question about whether the

language adopted by BOE was the final version or whether the AR would undergo

further revisions. Arce confessed that he was unsure how to answer these questions

but about offered assurances that “implementation is something that employees need to

be communicated with and about” and that “further clarifications” would be forthcoming.

On September 20, 2023, the Association sent the District a demand to cease and

desist and to bargain over the decision and effects of the revisions to AR 6115. On

September 22, 2023, Arce responded to the Association’s correspondence by stating

that the District “would be happy to meet and bargain related to any negotiable impacts

and effects associated with the revisions to AR 6115” and asked the Association to

identify any negotiable impacts or effects it wished to discuss. District and Association

witnesses alike testified that the Association declined the District’s offers to engage in

effects bargaining over the revisions to AR 6115.

3. Implementation of the Revised AR 6115

In the meantime, the District began implementing the revised regulation. As with

the parental notification regulation, Dayus was again tasked with chairing a committee

to oversee implementation of the revised AR 6115. However, she considered it

“interesting” that unlike the parental notification regulation, BOE had adopted these

revisions to AR 6115 without first soliciting input from administrators and staff.

According to Dayus, because the AR 6115 revisions were adopted “without that level of

work,” the implementation committee that she chaired consisted only of Executive

Cabinet members without employee subcommittees and its scope was more limited.

The scope of the ad hoc Executive Cabinet Committee was therefore limited to soliciting

39
questions from administrators, creating a “frequently asked questions” document to

assist teachers and other staff in understanding and following the newly adopted

provisions of AR 6115, and developing a standardized form to obtain permission to

display any flags or depictions of flags other than those authorized by AR 6115.

Although Dayus had no role in developing the revisions to AR 6115, her

understanding was that these revisions were intended to specify “the allowable flags

that will be displayed” not only in classrooms but anywhere “on campuses.” Pursuant to

the second sentence of the above quoted passage, the ad hoc Executive Cabinet

Committee developed a template document for employees to request approval to

display flags “directly related to curriculum and instruction” that would otherwise be

banned from displaying on school grounds under AR 6115. The template was sent to

principals, assistant principals and other designated administrators at each site within

the District with instructions to amend it as necessary to address the circumstances of

their site and then to send it as a link to all teachers and staff. Dayus explained that a

standardized approval form seemed like the way to implement the revised AR 6115

requirements most efficiently. However, she acknowledged that the revised regulation

did not mention a form or specify any other approval process, and she testified that, in

her opinion, employees could also obtain verbal approval to display a flag by meeting

with the principal, vice principal, or other designated site administrator.

The other task of the ad hoc Executive Cabinet Committee, preparing a FAQ

document for employees, was also completed within weeks. On October 6, 2023, the

District sent an e-mail signed by Arce that referred staff to the FAQ document prepared

by the ad hoc Executive Cabinet Committee to address questions “related to what is

40
allowed and what is not allowed” under BP 6115 and the revised regulation. Arce’s

message also advised staff that the flag approval process developed by the ad hoc

committee “will be in full effect and implemented beginning Monday, October 16, 2023.”

4. Removal of Flags from Classrooms under Revised AR 6115

Diaz testified that based on the “confusing conversation about what constituted a

flag” at the BOE meeting when AR 6115 was revised, “everything with a rainbow is

questioned,” and that the District’s FAQ document had not clarified such questions as

whether a picture on a poster or a mug constituted a prohibited flag within the meaning

of the revised AR 6115. Over the District’s hearsay objection, Diaz also testified that

since revision of AR 6115, teachers have told him about flags and other items, including

a safe space sign with a rainbow and a CTA insignia, that teachers had removed from

classrooms either at the request of administrators or on their own. Although portions of

this testimony were hearsay, the general thrust of this testimony was corroborated by

other, non-hearsay portions of Diaz’s testimony and by the testimony of other

witnesses. Diaz testified that he personally observed flags, posters, and other items

that were removed from classrooms during his visits to schools in late 2023 and early

2024 after AR 6115 was revised.

Heid was one teacher who removed a rainbow flag from his classroom after the

prohibition on flags was added to AR 6115. Like his testimony regarding the parental

notification requirements of BP 5020.01, Heid explained that prohibiting the display of

pride flags in the classroom undermined the environment of trust and mutual respect

that he relied on as a teacher. Heid testified:

“I use the [rainbow] flag as a way to demonstrate that my

space is non-judgmental. There is no easy shorthand for

41
 that now and it’s certainly not something that can come up
during curriculum. So if they don’t trust, they cannot learn.
Right now, I have no easy way to show them that trust and
so learning becomes that much more difficult.”

There was no testimony or other evidence indicating that the District has

repudiated Arce’s October 6, 2023 message advising staff that the flag approval

process developed by the ad hoc committee “will be in full effect and implemented

beginning Monday, October 16, 2023.” Arce also confirmed the general rule that board

policies and administrative regulations are “effective” upon adoption by BOE, and he

acknowledged that “technically,” a teacher can be disciplined for not complying with any

duly adopted board policy or administrative regulation, including AR 6115’s ban on

displaying unauthorized flags anywhere on school grounds. Arce was also unable to

recall any instance during his tenure with the District when a board policy or

administrative regulation had been adopted by BOE but not enforced.

ISSUES

I. BP 5020.01’s Parental Notification Requirements

A. Did the District fail or refuse to meet and negotiate in violation of EERA section

3543.5, subdivision (c), and derivatively interfere with protected rights in

violation of EERA section 3543.5, subdivisions (a) and (b), by adopting Board

Policy 5020.01 (Parental Notification) without providing the Association with

notice and meaningful opportunity to meet and negotiate over this decision?

B. Should PERB consider unalleged violations urged by the Association that:

1. By requiring certificated employees to report every verbal altercation among

students, including those that do not result in apparent “harm” as defined by

42
 the Education Code, did the District fail or refuse to meet and negotiate over

the impacts or effects of BP 5020.01?

2. By proposing that the Association meet and negotiate over the effects of BP

5020.01, did the District insist on an illegal subject of bargaining?

II. AR 6115 Revisions Prohibiting Display of Flags on School Grounds

A. Did the District interfere with protected employee and/or organization rights

in violation of EERA section 3543.5, subdivisions (a) and/or (b), by

promulgating, maintaining, and/or enforcing the revised AR 6115

(“Ceremonies and Observances”) which contains vague and/or overbroad

provisions which employees could reasonably construe to prohibit protected

activities?

B. Did the District fail or refuse to meet and negotiate in violation of EERA

section 3543.5, subdivision (c), and derivatively interfere with protected

rights in violation of EERA section 3543.5, subdivisions (a) and (b), by

adopting Administrative Regulation 6115 (Ceremonies and Observances)

without providing the Association with notice and meaningful opportunity to

meet and negotiate over the effects of this decision?

CONCLUSIONS OF LAW

I. BP 5020.01 Parental Notification Requirements

As framed by paragraph 3 of the Complaint and the evidence presented at

hearing, the issue here is whether BOE’s admitted adoption of certain parental

notification requirements under BP 5020.01 on August 22, 2023 without notice and

43
opportunity for bargaining over this decision and/or its effects violated the District’s

meet-and-negotiate obligations under EERA.

A. Parental Notification for Transgender and Gender Non-Conforming Conduct

To establish a prima facie case that a respondent employer violated its decisional

bargaining obligation, an exclusive representative must prove: (1) the employer

changed or deviated from the status quo; (2) the change or deviation concerned a

matter within the scope of representation; (3) the change or deviation had a generalized

effect or continuing impact on represented employees’ terms or conditions of

employment; and (4) the employer reached its decision without first providing adequate

advance notice of the proposed change to the exclusive representative and bargaining

in good faith over the decision, at the union’s request, until the parties reached an

agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB

Decision No. 2796, p. 9 (Bellflower).)

1. Change in Status Quo

There are three primary means of proving that an employer has deviated from

the status quo: (1) deviation from a written agreement or written policy; (2) a change in

established past practice; or (3) a newly created policy, or application or enforcement of

existing policy in a new way. (Kern County Hospital Authority (2022) PERB Decision

No. 2847-M, p. 10; Bellflower, supra, PERB Decision No. 2796, p. 10.)

There is no serious dispute that adoption of BP 5020.01 satisfies this element.

Paragraph 3 of the Complaint alleges, and the District’s Answer admits, that before

August 2023, the District “did not maintain a policy requiring employees to notify parents

or guardians that their student is transgender and/or seeking to access educational

44
services as a transgender student.” The Answer also admits the material allegations in

Paragraph 4 of the Complaint, and the parties stipulated that on

August 22, 2023, BOE adopted BP 5020.1, a parental notification policy for certain

gender non-conforming student requests which, on its face, is applicable to the District’s

“principal/designee(s), certificated staff, and school counselors.”12

Although the District does not dispute the underlying facts, including its adoption

of a new policy requiring parental notification, it contests the legal conclusion or mixed

conclusion of law and fact that adoption of BP 5020.1 changed the status quo. The

District argues that because it has an established past practice of adopting and

enforcing policies requiring parental notification on various subjects without bargaining

with the Association, BOE’s adoption of BP 5020.01 did nothing to alter the status quo.

Because this argument relies on additional facts and circumstances not alleged in the

Complaint nor essential to proving the prima facie case, I address it separately in the

discussion of affirmative defenses below. (Evid. Code, § 500; cf. PERB Reg. 32178;

City of Roseville (2016) PERB Decision No. 2505-M, p. 15 [charging party only required

to plead and prove facts essential for prima facie case].)13

12 Newly assigned job duties may also be used to show a deviation from the
status quo where such duties were not “reasonably comprehended” by the employee’s
existing duties or classification. (State of California (California Correctional Health Care
Services) (2022) PERB Decision No. 2823-S, p. 10 (CCHCS); County of Santa Clara
(2022) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022)
PERB Decision No. 2819, pp. 30-31.) However, because this is simply another way of
saying that material changes to job duties are within scope, I address this issue in the
discussion of negotiability below.

13
Some Board decisions treat an asserted past practice as negating an
element of the prima facie case of a unilateral change. (See, e.g., Hacienda La
Puente Unified School District (1997) PERB Decision No. 1186, fn. 3.) However, if an

45
 The District also argues that the transgender parental notification policy has not

been implemented because some classifications of certificated employees were

exempted from its requirements and because the Human Resources and Development

Department has not instructed school site administrators to discipline other certificated

employees who fail to comply with BP 5020.01’s parental notification requirements.

However, I am not persuaded by these arguments because they rely on faulty

interpretations of PERB precedent and the District’s own policies.

Under PERB precedent, “[a] change in policy occurs on the date a firm decision

is made even if the decision is not scheduled to take effect immediately, or even if it is

never implemented.” (City of Milpitas (2015) PERB Decision No. 2443-M, pp. 15-16.)

“[E]ven if an employer does not implement a change in policy until later, or perhaps not

at all, its direct communications with employees soliciting the change demonstrates that

the employer has already reached a firm decision for the purpose of demonstrating that

a unilateral change has occurred.” (City of Sacramento (2013) PERB Decision

No. 2351-M, p. 35.) Thus, the operative employer action here is not whether BP

5020.01 has been fully implemented or whether it has been used to discipline

employees, but whether BOE reached a firm decision to add to or change the District’s

parental notification policies without adequate notice to the Association. (Id. at p. 27;

see also County of Monterey (2018) PERB Decision No. 2579-M, p. 13.)

asserted past practice is extraneous to proving the prima facie case, it is more
appropriately understood as an affirmative defense. (Evid. Code, § 500; Culver City,
supra, PERB Decision No. 2731-M, pp. 16-17.)

46
 There is no factual dispute on this issue. Before adoption of BP 5020.01, other

board policies and administrative regulations, such as BP and AR 5141.52 regarding

suicide prevention, and the District’s job specifications required certificated unit

employees to communicate with parents or guardians regarding students’ academic

progress, violent or threatening behavioral issues, or matters posing a threat to student

health or safety. However, the District’s admissions, the parties’ stipulated facts, and

other undisputed evidence, including the text board policies themselves, demonstrate

that until adoption of BP 5020.01, certificated employees were not required to contact

parents or guardians regarding students’ use of nicknames or pronouns, students’

gender identity or expression, or any other student choices not affecting academic

matters or health and safety. Without deciding whether such conduct is protected from

disclosure by the Education Code, teachers’ credentialing and professional obligations,

and/or District policies governing student records and confidential information, adoption

of BP 5020.01 indisputably created a new parental notification policy where previously

none had existed, and/or it expanded the District’s parental notification requirements to

new subjects, thereby applying existing policy in a new way.

The District also argues that by expressly exempting school counselors,

psychologists, and social workers from BP 5020.01’s parental notification requirements,

the draft AR 5020.01 moots any argument that the District altered the status quo by

requiring certificated employees to perform duties arguably in conflict with their licensing

requirements or any professional obligations to maintain confidentiality of student

information. The Association argues that under Assembly Bill (AB) 1955, teachers and

indeed all other certificated employees are also prohibited from disclosing a student’s

47
gender identity or expression to any person without the student’s consent. AB 1955

was not signed into law until July 15, 2024, i.e., almost three months after the hearing in

this matter, and almost one year after BOE adopted BP 5020.01. However, the

Association argues that it applies retroactively because it states that it is declaratory of

existing law. I need not decide under the circumstances whether the Legislature

intended AB 1995 to apply retroactively because, as indicated above, the District’s firm

decision to alter the status quo in August 2023 rather than its implementation, selective

implementation, or non-implementation of that decision through a subsequent regulation

is the operative event for a unilateral change theory.

Moreover, regardless of whether AB 1955 was intended to apply retroactively to

conduct occurring in August 2023, the District’s contention that it can avoid liability

through a subsequent regulation that conflicts with the board policy the regulation

purports to implement is contrary to the evidence and the District’s own policies. On its

face, BP 5020.01 requires the District’s “principal/designee(s), certificated staff, and

school counselors” to notify parents or guardians if a student asks to change pronouns

or a nickname, seeks to access or use sex-segregated school activities or facilities that

do not align with the student’s biological sex or the gender listed on the student’s birth

certificate or other official records, or asks to change information contained in the

student’s official or unofficial records. The District’s bylaws state that unless otherwise

indicated at the time of adoption, board policies are effective upon adoption, and there

is no evidence that when BOE adopted BP 5020.01 on August 22, 2023, it intended to

postpone the effective date of the policy to some later, unspecified date.

48
 Although the draft AR 5020.01 would exempt counselors, psychologists, and

social workers from some of the policy’s reporting requirements, there are several

factual and legal problems with this contention. First, the draft regulation has never

been adopted. Because it never took effect, any argument that the District’s draft AR

could cure infirmities in the underlying board policy must fail for this reason alone.

Second, despite Arce’s testimony that a valid AR could have been negotiated, he

conceded, and it is undisputed that an administrative regulation is not effective to the

extent it conflicts with a board policy. Because BP 5020.01 expressly requires

“certificated staff” and “school counselors” to notify parents or guardians of certain

student gender non-conforming conduct, it is questionable under the District’s bylaws

whether an AR (much less a draft AR) purporting to exclude employees from the board

policy’s requirements could supersede the plain language of the policy itself.

Third, even assuming a properly adopted administrative regulation could cure

deficiencies in a board policy that the regulation purports to implement, the subsequent

adoption of such a regulation might limit the scope of a PERB-ordered remedy, but it

would not extinguish liability for the unilateral change. Unlike allegations of employer

interference, PERB has never allowed an employer to “cure” a unilateral change by

publicly disavowing or repudiating its prior conduct. (Jurupa Unified School District

(2015) PERB Decision No. 2458, pp. 12-13 & fn. 13.)

The first element of the test for a unilateral change is therefore met.

2. Negotiability

EERA Section 3543.2, subdivision (a)(1), expressly enumerates “wages, hours of

employment, and other terms and conditions of employment” as mandatory subjects of

49
bargaining. Where EERA expressly identifies a subject as negotiable, the issue

requires no further analysis. (Huntington Beach Union High School District (2003)

PERB Decision No. 1525, pp. 8-9.) Moreover, because EERA defines the scope of

representation to include not only subjects specifically enumerated as such but also

“matters relating to” those subjects, matters not specifically enumerated by EERA as

negotiable may nonetheless be found within the scope of representation under the test

announced in Anaheim Union High School District (1981) PERB Decision No. 177, and

approved by the California Supreme Court in San Mateo City School Dist. v. Public

Employment Relations Bd. (1983) 33 Cal.3d 850, 857-858. Where PERB and/or judicial

precedent already establishes “subject-specific standards” showing how the Anaheim

test (or the similar Richmond Firefighters test for negotiability under the Meyers-Milias-

Brown Act) applies to a given topic, there is no need to continually “reinvent the wheel.”

(The Accelerated Schools (2023) PERB Decision No. 2855, p. 15; City & County of San

Francisco (2022) PERB Decision No. 2846-M, p. 18, fn. 15; State of California

(Department of Personnel Administration) (1986) PERB Decision No. 574-S, p. 10.)

The Association argues that BP 5020.01’s parental notification requirements

regarding students’ gender non-conforming conduct are negotiable on three grounds:

(a) because they potentially affect employees’ hours of work; (b) because they

materially change employee job duties; and (c) because they may serve as

performance standards and/or as grounds for discipline. The District urges that

because they are primarily concerned with student conduct and fulfilment of the

District’s educational mission, they are not themselves negotiable but, at best, subject

only to effects bargaining.

50
 a. The Record Fails to Show Any Material Effect on Hours or Workload

The enumerated subject “hours of work” includes the length of the workday and

the amount of duty-free time during the workday. (Cloverdale Unified School District

(1991) PERB Decision No. 911, pp. 16-17.) To demonstrate that new or changed

duties affect hours of work, the charging party must show that the change has more

than a purely speculative impact on the length of the workday or the amount of

employees’ duty-free time. (Healdsburg Union Elementary School District (1994) PERB

Decision No. 1033, p. 6; Imperial Unified School District (1990) PERB Decision No. 825,

pp. 9-10 (Imperial).)

For example, employers may alter the instructional schedule without

negotiations, unless the changes affect the length of the workday or the amount of

available duty-free time. (Imperial, supra, PERB Decision No. 825, pp. 7-8.) Notably,

“[t]he Board will not presume an effect on [the] length of [the] workday or on duty-free

time.” (Healdsburg, supra, PERB Decision No. 1033. p. 6.) Rather, “the charging party

has the burden of proving that the employer’s change impacted negotiable terms and

conditions of employment.” (Ibid.; State of California (Department of Youth Authority)

(1997) PERB Decision No. 1215-S, adopting dismissal letter at p. 5; PERB Reg.

32178.) Whether alleged as a violation of the employer’s decisional or effects

bargaining obligation, the evidence must show that the change or addition of duties had

more than a minimal or purely speculative impact on employee hours. (Imperial, supra,

at pp. 9-12; Trustees of the California State University (2012) PERB Decision No. 2287-

H, pp. 12-13; State of California (Agricultural Labor Relations Board) (1984) PERB

Decision No. 431-S, p. 7.)

51
 Similarly, here, the evidence offered by the Association was too limited and

speculative to indicate that adoption of the parental notification policy regarding

student’s gender non-conforming conduct would have any material effect on the length

of the workday, while there was no evidence suggesting any effect on the availability or

amount of teachers’ duty-free time. As an initial matter, BP 5020.01’s parental

notification provisions for student transgender or gender non-conforming conduct have

no apparent effect on class size, the number of courses assigned, or any other readily

quantifiable metric of teachers’ workload or hours. (cf. Davis Joint Unified School

District (1984) PERB Decision No. 393, pp. 13-14 (Davis).) The only evidence

presented on this subject consisted of testimony by Anthony Saavedra, the Primary

Contact Staff at the California Teachers Association’s Murrieta Regional Resource

Center, that because BP 5020.01 requires teachers to report certain student gender

non-conforming conduct within three days, if a teacher became aware of such conduct

on the last day of the school year, communicating with the student’s parent or guardian

could effectively require the teacher to perform work duties outside the school year.

There was no evidence regarding the frequency with which the District’s students

change their preferred pronouns or nicknames, seek to access or use of sex-

segregated school activities or facilities that do not align with their biological sex or the

gender listed on the student’s birth certificate or other official records, or ask to change

information contained in their official or unofficial records. While it is conceivable that a

teacher could become aware of such student conduct on the last day of the school year,

in the absence of some information suggesting this is a fairly common occurrence, it is

52
too speculative to suppose that such events are even likely to occur on the final day of

the school year as opposed to any one of the other 180-odd days of the school year.

In such circumstances, PERB has held that occasional deviations from the

standard workday are insufficient to establish a discernible change in employees’ hours

of work to come within scope. As explained in Davis, supra, PERB Decision No. 393:

“In the area of professional employment, an employee

frequently is charged with the obligation to fulfill certain
specified duties according to professional standards. Such a
professional position may have attached to it a workday of a
nominally stated length. By this we mean that the position
may be described or spoken of in certain contexts as having
a particular workday, as from 9:00 a.m. to 5:00 p.m., while in
practice the work time required of the employee will be no
less than that which is required to properly discharge the
assigned duties. The nominally stated length of the workday
may in practice serve as a minimum requirement of job
attendance, or it may have no relationship to the employee’s
actual work time at all.”

(Id. at pp. 18-19.)

Thus, even in the relatively unlikely circumstances postulated by the Association,

it does not appear that PERB would regard such isolated deviations from teachers’

regular schedule or work year as warranting a finding of negotiability. The record is

therefore insufficient to establish that teachers’ reporting requirements for the student

gender non-conforming conduct specified in BP 5020.01 would have anything more

than a minimal and conjectural impact on employee hours of work.

b. Whether BP 5020.01 Materially Altered Employee Job Duties

PERB has long held that material changes to employee job duties are within the

scope of representation, unless the change was mandated by external law. (County of

53
Santa Clara, supra, PERB Decision No. 2820-M, p. 7; Cerritos, supra, PERB Decision

No. 2819, pp. 30-31; Davis, supra, PERB Decision No. 393, pp. 25-26 & fn. 11.)

Changes mandated by external law are negotiable to the extent the employer has some

discretion in how to carry out that mandate. (County of Sacramento (2020) PERB

Decision No. 2745-M, pp. 17-18.) Even where external law establishes immutable

standards that leave no discretion in how they will be implemented, to the extent they

affect matters relating to wages, hours, or other terms and conditions of employment,

employers and exclusive representatives may still negotiate over whether to include

those immutable standards in a collective bargaining agreement. (Regents of the

University of California (2010) PERB Decision No. 2094-H, pp. 19-20; Trustees of the

California State University (2003) PERB Decision No. 1507-H, adopting proposed

decision at p. 21 (Trustees); Healdsburg High School District (1984) PERB Decision

No. 375, p. 11.)

Here, there is no contention that the parental notification requirements of BP

5020.01 were mandated by external law. If anything, there is an issue of whether they

were prohibited by external law. Again, however, I need not reach that issue because

the record demonstrates that the parental notification requirements regarding gender

non-conforming conduct imposed by BP 5020.01 were not reasonably comprehended

by the existing duties of teachers and other certificated employees.

Newly assigned job duties are negotiable if they were not “reasonably

comprehended” within the employees’ prior duties or assignments. (CCHCS, supra,

PERB Decision No. 2823-S, p. 10; County of Santa Clara, supra, PERB Decision

No. 2820-M, p. 7; Cerritos Community College District, supra, PERB Decision No. 2819,

54
pp. 30-31; Alum Rock Union Elementary School District (1983) PERB Decision No. 322,

pp. 21-22; and cases cited therein.) The term “reasonably comprehended” is an

objective standard that considers all the relevant circumstances, including past practice,

training, and employee job descriptions. (CCHCS, supra, p. 10; County of Santa Clara,

supra, PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District

(1982) PERB Decision No. 279, pp. 17-18.) To apply this standard, PERB compares

past duties or assignments to new duties or assignments through the eyes of a

reasonable employee under the existing circumstances. (County of Santa Clara, supra,

PERB Decision No. 2820-M, p. 8.)

The District admits that before adoption of BP 5020.01, it had no policy requiring

parental notification regarding student gender identity or expression, and the

uncontradicted testimony of classroom teachers was that creating this requirement,

regardless of student consent, was contrary to established past practice and

undermined teachers’ efforts to create a “safe” learning environment based on mutual

respect and trust. According to Heid, “students have to feel that they are reasonably

safe to explore ideas” and “to communicate with [their instructor] and their peers without

judgment … of those ideas,” whether they pertain to academic matters or a student’s

social and personal development.

Heid’s testimony was not simply uncontradicted. It was essentially corroborated

by the substantive, collectively bargained standards used to evaluate employee

performance. These include “[e]ngaging and supporting all students in learning”;

“[c]reating and maintaining effective environments for student learning”; and [p]lanning

instruction and designing learning experiences for all students.” The CBA’s emphasis

55
on inclusivity as essential for an effective learning environment further supports the

uncontradicted testimony of Heid, Diaz, and Byrnes that BP 5020.01’s parental

notification requirements for certain student conduct imposed a new duty that was not

reasonably comprehended by the District’s job specifications, the collectively bargained

standards for evaluating employee performance, or past practice.

As discussed above, BP 5020.01 expressly required not only “school counselors”

but all “certificated staff” to report certain gender non-conforming conduct by students,

and Arce admitted that adoption of the policy “potentially” imposes new job duties on

certificated staff and that “as such … it should be bargained.” When asked to clarify the

term “potentially,” Arce abandoned even this qualifier. He testified that BP 5020.01

could not be implemented without the cooperation and compliance of certificated staff.

Based on the record evidence and PERB precedent, I agree with the assessment

of the District’s highest labor relations official, namely that BP 5020.01 imposed new

duties on certificated employees that “as such … it should be bargained.” However, I

disagree with the District’s position that its parental notification policy is primarily

concerned with the District’s educational mission and its relationship with students and

parents rather than its role as a public school employer or its collective bargaining

relationship with the Association. Consequently, I do agree that the District’s duty to

bargain under EERA was limited to effects and implementation.

PERB takes a pragmatic, rather than a formalistic or reductionist approach to

determining negotiability. For example, in City of Sacramento, supra, PERB Decision

No. 2351-M, a departmental reorganization and resulting reduction in force were not

subject to mandatory bargaining, while the employer’s simultaneous and factually

56
interrelated decision to transfer work from one bargaining unit to another was fully

negotiable. (Id. at p. 24; see also City of Milpitas, supra, PERB Decision No. 2443-M,

pp. 16-17 [employer’s managerial prerogative to lay off employees does defeat

negotiability when layoffs are result of negotiable outsourcing decision based on labor

costs].) In the EERA context, this duality is reflected in the adoption of a student or

academic calendar, which is a managerial prerogative, versus the adoption of a work or

employee calendar, which is subject to mandatory bargaining. (West Contra Costa

Unified School District (2023) PERB Decision No. 2881, pp. 14-15; Antelope Valley

Community College District (2023) PERB Decision No. 2854, p. 4.) Even when such

decisions coincide as a single decision of the employer’s governing body, for PERB’s

purpose of determining negotiability, they are analytically distinct decisions or actions

with different legal implications.

The District’s designation of the disputed policy as a primarily student-centered

policy in the 5000 series of its numerical topic index rather than a labor-management

issue in the 4000-series is not dispositive of its negotiability. Even if BP 5020.01

concerns educational policy, a management decision or action may have both

permissive and mandatory aspects. This duality does not relegate the mandatory

aspects of the employer’s decision or action to effects-only bargaining. The negotiability

element of PERB’s test for a unilateral change is therefore satisfied insofar as BP

5020.01 material altered certificated employees’ job duties by expanding the parental

notification requirements.

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 c. BP 5020.01 Is Also Negotiable by Establishing a New or Additional
Cause for Discipline of Unit Members
EERA section 3543.2, subdivision (b), designates the cause and procedures for

discipline as mandatory subjects for bargaining, and thus to the extent failure to comply

with BP provides a cause for disciplining certificated employees, its adoption, and not

merely the effects of its adoption, was subject to negotiation. (San Bernardino City

Unified School District (1982) PERB Decision No. 255, p. 11.) The parties dispute

whether employees were subject to discipline for violating BP 5020.01 and,

consequently, whether it was subject to decisional or merely effects bargaining. The

Association contends that, upon adoption, BP 5020.01 constituted District policy and

therefore provided grounds for discipline. The District argues that because full

implementation was postponed, employees faced no reasonable fear of discipline

based solely on BOE’s adoption of BP 5020.01, and that it had only an obligation, upon

request, to bargain over the effects of BP 5020.01. For the following reasons, I find the

District’s argument unpersuasive.

As discussed above, the District’s bylaws state that board policies and

administrative regulations are “effective” upon adoption by BOE, and while the Interim

Superintendent advised employees that an administrative regulation was being

developed to specify how BP 5020.01 would be implemented, there was no indication in

the record that BOE intended that the parental notification policy would not be effective,

pending adoption of the corresponding regulation.

Board Policy 2210 (Administrative Discretion Regarding Board Policy) grants the

Superintendent or designee discretion to “act on behalf of the [D]istrict in a manner that

is consistent with law and Board policies” in situations not specifically addressed by a

58
written policy and “when immediate action is necessary to avoid any risk to the safety or

security of students, staff, or district property or to prevent disruption of school

operations ….” By specifying in detail the circumstances in which the Superintendent

may act on behalf of the District without written BOE authority, the logical conclusion is

that in other circumstances, the Superintendent must implement and enforce board

policies as written. Thus, while the Superintendent or designee was responsible for

developing and implementing regulation for BP 5020.01, it does not appear that the

District’s bylaws and board policies authorized the Superintendent or designee to

postpone the effective date of BP 5020.01 without BOE approval. Arce confirmed this

interpretation. He acknowledged that “technically,” a teacher can be disciplined for not

complying with any duly adopted board policy or administrative regulation. He was also

unable to recall any instance during his tenure with the District in which a board policy

or administrative regulation had been adopted by BOE but not enforced.

Although District administrators and employees alike were understandably

uncertain about how BP 5020.01’s parental notification policies would be implemented, I

conclude that “technically” they were in effect, and that employees could reasonably

anticipate discipline or other adverse consequence for defying those requirements.

Accordingly, the policy was also negotiable insofar as it provided a new or additional

cause for employee discipline.

3. Without Notice and Meaningful Opportunity for Negotiations

EERA section 3543.2, subdivision (a)(2), requires a public school employer to

“give reasonable written notice to the exclusive representative of the public school

employer’s intent to make any change to matters within the scope of representation of

59
the employees represented by the exclusive representative . . ..” The form and amount

of notice that is “reasonable” necessarily varies under the circumstances of each case.

(City of Sacramento, supra, PERB Decision No. 2351-M, pp. 29-30.)

Generally, a public meeting agenda for the employer’s governing body does not

provide sufficient notice unless the employer provides such documentation to a union

official in a manner reasonably calculated to draw attention to a specific item and with

adequate time for good faith negotiations. (Oakland Unified School District (2023)

PERB Decision No. 2875, p. 21; Regents of the University of California (2004) PERB

Decision No. 1689-H, adopting proposed decision at p. 45; Victor Valley Union High

School District (1986) PERB Decision No. 565, pp. 5-6 & fn. 6.) Regardless of what

form it takes, the employer’s notice must also be provided sufficiently in advance of a

firm decision to alter matters within scope, or before implementation of a non-negotiable

decision having negotiable effects, to allow the representative time to decide whether to

request information, demand bargaining, consult its members, acquiesce to the change,

or take other action. (City of Sacramento, supra, PERB Decision No. 2351-M, pp. 29-

30; Victor Valley, supra, PERB Decision No. 565, p. 5.)

The stipulated facts demonstrate that the District failed to comply with its notice

obligations under EERA. The Association learned of the BOE agenda at the same time

as the general public, i.e., when it was posted on the District’s website approximately

three business days before the meeting itself. There was no District communication to

Diaz nor to any other union official with authority to request bargaining nor any other

circumstances reasonably calculated to draw attention to the proposed parental

notification policy, and given the controversial nature of the policy, I find that even if the

60
Association had actual notice of the proposal on Thursday,

August 17, 2023, there was insufficient time remaining before the vote for the

Association to make an informed decision on whether to request information, demand

bargaining, consult its members, acquiesce to the change, or take other action.

This element of the test for a unilateral change is also satisfied.

4. Generalized Effect or Continuing Impact

Nor is there any serious dispute that the parental notification requirements had

and continue to have a generalized effect or continuing impact on unit members’ terms

and conditions of employment. This element of the test for a unilateral change is met if

the challenged decision or action alters a term or condition of employment or if the

respondent asserts a non-existent right to continue or repeat the action in the future.

(West Contra Costa Unified School District, supra, PERB Decision No. 2881, pp. 15-16;

Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8.)

Because the District asserts, incorrectly, that it was a managerial prerogative rather

than a fully negotiable decision to adopt BP 5020.01, it effectively asserts a right to

repeat the same or similar conduct, and thus its decision has continuing impact on

terms and conditions of employment.

The record supports each element of a prima facie case of a unilateral change.

Absent a valid defense, the District has committed a per se violation of its duty to meet

and negotiate under EERA.

5. The District’s Defenses Lack Merit

The District has argued two defenses: that it was authorized by established past

practice to adopt and enforce parental notification policies, and that the Association

61
waived any interest it may have had in negotiations over BP 5020.01 by refusing

repeated invitations to engage in effects bargaining. Neither argument requires

extended discussion.

Although other District policies required certificated employees to communicate

with parents or guardians regarding academic performance, behavioral problems, and

matters posing a threat to student health or safety, as discussed above, BP 5020.01’s

parental notification requirements for students’ choice of nicknames and pronouns or for

other gender non-conforming conduct exceed reasonable expectations regarding the

scope of preexisting parental notification policies or the past practice asserted by the

District. A student’s gender identity or expression is not a recognized metric of

academic progress, and unlike the District’s parental notification requirements regarding

bullying, suicide prevention, or student health care and emergencies, BP 5020.01 does

not address student delinquency or misconduct, nor any other issue that threatens

student health or safety.

Any assertion of waiver by inaction is similarly lacking in merit. The District was

only ever willing to engage in effects bargaining, while, as discussed above, adoption of

BP 5020.01 was subject to decisional bargaining. The Association could not have

knowingly and voluntarily relinquished a right to decisional bargaining that it never had

the opportunity to exercise. (Kern County Hospital Authority, supra, PERB Decision No.

2847-M, pp. 17-18; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24.)

Additionally, under PERB precedent, if the exclusive representative only learns of a

change in the status quo after the employer has already reached a firm decision on the

subject, by definition, the employer’s notice was inadequate, and the defense of waiver

62
by inaction is unavailable as a matter of law. (City of Sacramento, supra, PERB

Decision No. 2351-M, pp. 33-34.) For reasons discussed above, three business days’

notice was inadequate, and any defense of waiver by inaction therefore fails.

6. Derivative Violations

A unilateral change also denies the representational rights of both the employees

and the exclusive representative without proof of any additional conduct. (Oak Grove

School District (1985) PERB Decision No. 503, p. 7.) Establishing a unilateral change

thus also establishes the separate unfair practices of employer interference with

employee rights and the denial of the organization’s right to represent employees.

(County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) Because the District

has been found to have committed unexcused unilateral changes affecting negotiable

matters, it is also found to have derivatively interfered with and denied representational

rights in violation of EERA section 3543.5, subdivisions (a) and (b), as alleged in

paragraphs 7 and 8 of the Complaint.

B. Unalleged Theories Urged by the Association

Under the unalleged violations doctrine, PERB may only consider theories of

liability not appearing in the complaint if: (1) the respondent has had adequate notice

and opportunity to defend against the unalleged matter; (2) the unalleged conduct is

intimately related to the subject matter of the complaint and is part of the same course

of conduct; (3) the matter has been fully litigated; (4) the parties have had the

opportunity to examine and be cross-examined on the issue; and (5) the unalleged

conduct occurred within the same limitations period as those matters alleged in the

complaint. (Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th

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158, 192–193, affirming in relevant part, Fresno County Superior Court (2017) PERB

Decision No. 2517-C (Fresno Court); see also State of California (Department of Social

Services) (2009) PERB Decision No. 2072-S, pp. 3–4.) Generally, “the evidence

justifying application of the unalleged violations doctrine should be expressly stated, so

that all parties are aware of the basis for finding that an unalleged violation can be

heard without any unfairness.” (Roseville, supra, PERB Decision No. 2505-M, p. 25,

citing Fresno County Superior Court (2008) PERB Decision No. 1942-C, pp. 14-15, 17.)

1. BP 5020.01’s Expanded Parental Notification Requirements for Any

Verbal and Physical Student Altercations

a. Whether to Consider this Issue as an Unalleged Violation

The Association’s brief argues that the District unilaterally expanded the scope of

parental notification requirements for instances of bullying by requiring certificated

employees to report every verbal altercation among students, including those that do

not result in apparent “harm” as defined by the Education Code. Although the

Complaint alleges that adoption of BP 5020.01 unilaterally imposed new or different

parental notification requirements for certificated employees, it references only those

requirements of BP 5020.01 section 1.a through 1.c regarding student gender non-

conforming conduct and student requests to change information in student records.

The Complaint contains no reference to section 4 of BP 5020.01, requiring certificated

staff to notify parent(s) or guardian(s) “of any incident or complaint of a verbal or

physical altercation involving their child, including bullying by or against their child,

within three days of the occurrence.”

However, the parental notification requirements regarding student altercations

were part of the same board policy referenced in the Complaint; were intimately related

64
to the subject matter of the complaint and part of the same course of conduct; and

occurred within the same limitations period as the matters alleged in the complaint.

Under the circumstances, I conclude that the notice and other requirements of the

unalleged violations doctrine have also been met. The District had adequate notice of

the issue, which was presented in both the Association’s unfair practice charge and its

opening statement. (See Fresno Court, supra, PERB Decision No. 2517-C, p. 14; cf.

County of Sacramento, supra, PERB Decision No. 2745-M, pp. 15-16.) In its opening

statement, the Association asserted that adoption of BP 5020.01 “unilaterally imposed

new job duties on bargaining unit members.” The first example of these allegedly newly

imposed duties was described as follows:

“This new policy requires that bargaining unit members notify

the parents or guardians of any incident or complaint of a
verbal or physical altercation involving their child including
but not limited to bullying by or against their child within three
days of the occurrence.

“The policy that was in place prior to the passage of this new
policy only required bargaining unit members to notify the
principal of such incidents if a student, parent, guardian or
other individual reported to the teacher that they had been
subjected to or had witnessed bullying.”

As described in the Findings of Fact above, the Association also examined its

witnesses extensively on this issue. Diaz testified that an important component of

classroom management was knowing when to notify parents or guardians of students’

verbal altercations, which were often resolved on their own once the students involved

realized it was based on a misunderstanding. Both Diaz and Heid also testified that

before adoption of BP 5020.01, teachers were not required to report every complaint of

a verbal altercation between students to parent(s) or guardian(s). Counsel for the

65
District was afforded full opportunity to cross examine Diaz and Heid on these subjects.

Because all requirements of the unalleged violations doctrine have been met, PERB

may consider the Association’s argument that BP 5020.01 section 4 imposed new

duties by requiring employees to report all verbal altercations between students.

b. Merits of Unalleged Theory Regarding Reporting Requirements for

Student Verbal Altercations

i. Change in Status Quo

As argued in the Association’s brief, section 4 of BP 5020.01 significantly

expanded the scope of certificated employees’ parental notification requirements.

Although BP 5131.2, the District’s preexisting board policy on bullying, does not contain

a uniform definition of “bullying,” its incorporation by reference of the provisions of

Education Code section 48900 appears to limit the proscribed conduct to “severe or

pervasive physical or verbal act[s] or conduct.” By contrast, section 4 of BP 5020.01

requires certificated employees to “notify the parent(s)/guardian(s) of any incident or

complaint of a verbal or physical altercation involving their child, including bullying by or

against their child, within three days of the occurrence.” (Emphasis added.)

Witness testimony supported the Association’s contention that section 4 of BP

5020.01 changed terms and conditions of employment. Diaz and Heid testified, without

contradiction, that under BP 5131.2 they had not been required to report every verbal

altercation between students. Diaz also explained why, in his experience, the discretion

not to intervene in a purely verbal altercation was an important tool in classroom

management. According to Diaz, non-intervention allowed students to resolve the issue

themselves after realizing that the incident had stemmed from a misunderstanding.

66
 The record includes an incomplete copy of the draft regulation specifying how the

District intends to implement section 4 of BP 5020.01 requiring certificated staff to report

verbal altercations between students, and the District did not address the issue in its

post-hearing brief. Given the broader scope of student altercations that must be

reported under BP 5020.01 as compared to the “severe or pervasive” standard

articulated in BP 5131.2, the uncontradicted, unimpeached testimony of Diaz and Heid

is “certainly sufficient to carry the burden of proof in an unfair practice case.” (City of

Sacramento, supra, PERB Decision No. 2351-M, p. 32, citing Mt. Diablo Unified School

District (1984) PERB Decision No. 373c, p. 4; see also PERB Reg. 32178.)

Accordingly, I find that through adoption of section 4 of BP 5020.01, the District applied

existing policy in a new way by requiring certificated staff to report every verbal

altercation between students, whereas previously teachers had discretion not to report

such instances, if they did not involve “severe or pervasive” acts or conduct.

ii. Negotiability

I find that this change in policy was also negotiable for essentially the same

reasons discussed above regarding the other parental notification requirements of BP

5020.01. Job duties and assignments generally fall within the scope of

representation. (County of Santa Clara, supra, PERB Decision 2820-M, p. 7.) “[A]n

employer must normally bargain a change to represented employees’ job duties if it is a

material change, meaning that the employer is assigning work that was not ‘reasonably

comprehended within the employee’s existing job duties.’” (Cerritos CCD, supra, PERB

Decision No. 2819, p. 30, citing Oakland Unified School District (2003) PERB Decision

No. 1544, pp. 5-8 & adopting warning letter at p. 2.)

67
 Association witnesses testified that before adoption of BP 5020.01, classroom

teachers had discretion to decide whether to notify parents or guardians of student

altercations not rising to the level of “severe or pervasive” conduct. Diaz explained that

because students often resolved these misunderstandings themselves, the discretion

not to involve parents in every verbal altercation between students was an effective tool

for classroom management and thus a reasonable expectation or component of the

position. The District neither impeached the testimony of these witnesses nor put on

any contrary evidence. Because removing such discretion was a material change to the

duties of the position, the expanded parental notification requirements regarding student

verbal altercations was negotiable.

iii. Lack of Notice

Because the verbal altercation reporting requirement was part of the same board

policy discussed above, there is no need here to repeat the discussion regarding the

District’s inadequate notice before BOE reached a firm decision to change or add to the

District’s existing parental notification requirements. The District failed to give

reasonable written notice of its intent to change matters within the scope of

representation of the employees represented by the Association, as required by EERA.

(EERA, § 3543.2, subd. (a)(2).)

iv. Generalized Effect or Continuing Impact

Likewise, there is no serious question that this change or addition in parental

notification requirements had a generalized effect or continuing impact on terms and

conditions of employment. While acknowledging that BP 5020.01 “expands certain

requirements of … certificated staff,” including notifying parents or guardians whenever

68
their children “are involved in verbal or physical altercations, including bullying,” the

District’s position statement and post-hearing brief variously and incorrectly argue that

this change was authorized by the CBA, past practice, and PERB precedent.

I am not persuaded by any of these arguments. Because waiver by contract is

an affirmative defense, I address the District’s reliance on the CBA below rather than

here as part of the prima facie case. Here, it is sufficient to note that the PERB

authorities cited in the District’s position statement also fail to authorize unilateral action

in the present circumstances. Contrary to the District’s argument, Modesto City and

High School Districts (1986) PERB Decision No. 566 does not speak to the issue of

unilateral changes to job duties.

Likewise, the various PERB cases cited by the District regarding past practice

are distinguishable because the disputed action here exceeded the scope of any

existing parental notification practice, as defined by preexisting board policies on such

issues as bullying, suicide prevention, and student emergencies and health care. For

example, unlike BP 5020.01, the District’s preexisting anti-bullying policy does not

require certificated employees to contact or report directly to the student’s parent or

guardian. It is therefore not probative evidence of any asserted past practice requiring

parental notification by certificated employees. Uncontradicted witness testimony also

established that before adoption of BP 5020.01, teachers were not required to report

every verbal or physical altercation between students. By asserting, incorrectly, that it

had a legal right to change the status quo, the District’s position statement and post-

hearing brief satisfy the generalized effect or continuing impact requirement.

69
 The record supports each element of a prima facie case of a unilateral change.

Absent a valid defense, the District has committed a per se violation of its duty to meet

and negotiate over the scope of parental notification requirements under EER section

3543.5, subdivision (c).

v. Waiver by Contract Defense

An employer may lawfully take unilateral action on a matter within the scope of

representation where the exclusive representative has waived its right to meet and

confer over the subject. (Modoc County Office of Education (2019) PERB Decision

No. 2684, p. 11.) However, a waiver of the right to bargain over a particular subject

must be established by “clear and unmistakable” evidence indicating an intentional

relinquishment of that right. (City of Culver City (2020) PERB Decision No. 2731-M, p.

13; Fullerton Joint Union School District (2004) PERB Decision No. 1633, pp. 5-7.) A

broadly worded management rights clause does not meet the “clear and unmistakable”

standard for waiver. (San Bernardino Community College District (2018) PERB

Decision No. 2599, pp. 12-14; Regents of the University of California (1998) PERB

Decision No. 1255-H, adopting proposed decision at pp. 38-39.)

Directing the workforce is at the core of managerial control, and the District

undoubtedly has the right to define its relationship with students’ parents or guardians to

fulfil its educational mission. (EERA, § 3540; Davis, supra, PERB Decision No. 393,

p. 26.) The CBA’s District Rights Article also permits the District to “hire, classify,

assign, evaluate, promote, terminate, and discipline employees.” However, decades of

PERB precedent treat material changes to employee duties as negotiable, and the CBA

contains no clear and unmistakable language authorizing the District to unilaterally alter

70
assignments in a manner that is contrary to job specifications, past practice, and

reasonable employee expectations.

Language in Article 3 (District Rights) asserting that the District “retains all of its

powers and authority to direct, manage, and control to the full extent of the law” or that

the District may exercise its powers, rights, authority, duties, responsibilities, judgment

and discretion unless limited by specific and express terms of the Agreement also

provide no assistance to the District here. Because EERA contains no management

rights clause, a contract provision cannot reserve to the employer a right to act

unilaterally that it did not have. (Los Angeles Unified School District (2002) PERB

Decision No. 1501, p. 4; Carlsbad Unified School District (1979) PERB Decision No. 89,

pp. 8-9 (Carlsbad).)

Because the record supports all the elements for a unilateral change, and

because the District has neither asserted nor argued any valid defense on this issue,

pursuant to Superior Court v. Public Employment Relations Bd., supra, 30 Cal.App.5th

at pp. 192–193 and similar PERB authority, I find that the District violated its duty to

meet and negotiate under EERA by unilaterally expanding certificated employees’

parental notification requirements to encompass “any” student verbal altercations.

c. Whether Unalleged Derivative Theories Are Appropriate

Having found liability for an unalleged unilateral change, there remains the

question of whether unalleged derivative theories of liability are also appropriate. The

general rule is that because a unilateral change effectively denies the representational

rights of both the employees and the exclusive representative, once an unexcused

unilateral change has been established, finding derivative interference theories is also

71
appropriate without further proof. (County of Santa Clara (2021) PERB Order No. Ad-

485-M, p. 9; Oak Grove, supra, PERB Decision No. 503, p. 7.) PERB precedent also

directs that “[w]here the same employer conduct concurrently violates more than one

unfair practice provision, it is the duty of the Board to find more than one violation.”

(State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision

No. 2282-S, p. 15, citing San Francisco Community College District (1979) PERB

Decision No. 105.) However, the above cases involved allegations that were alleged in

the complaint, not unalleged violations.

Moreover, the Association has not argued for finding any unalleged derivative

theories of interference corresponding to the unalleged unilateral change that was

asserted in its brief. Its brief asserts: “The District’s unilateral changes, particularly its

revision of AR 6115, constitute interference under the EERA because those changes

result in harm to protected employee rights.” It then explains why adoption of AR 6115,

which (as discussed below) was alleged in the Complaint, independently interfered with

protected rights. The brief does not explain how the unalleged unilateral change

regarding student verbal altercations also interferes with protected rights, nor does the

brief assert that it does so derivatively. Thus, in addition to being unalleged, i.e., not

included in the Complaint, any derivative interference theories here were also

unasserted, i.e., not urged or even mentioned in the Association’s brief, even if only to

identify them as independent or derivative. (See County of Santa Clara, supra, PERB

Order No. Ad-485-M, p. 9.)

Under the circumstances, I regard any unalleged (and unasserted) derivative

interference theories as failing to satisfy the criteria of PERB’s unalleged violations

72
doctrine, including the requirement that unalleged matters be “fully litigated.” I therefore

decline to extend the unalleged violations doctrine here to include unalleged and

unasserted derivative violations stemming from an unalleged unilateral change.

2. Whether to Consider the Association’s Unalleged Theory That the

District Proposed or Imposed a Prohibited Subject of Bargaining
Citing City of San Jose (2013) PERB Decision No. 2341-M, the Association’s

brief also argues that because BP 5020.01 violates external law, the District committed

a per se violation of its duty to meet and negotiate by “impos[ing]” a prohibited subject of

bargaining.14 As an initial matter, the word “impose” is usually a term of art in labor

relations, and its usage in the passage cited from City of San Jose appears to refer to

whether and under what circumstances an employer may, after bargaining to impasse

and exhausting all applicable impasse resolution procedures, lawfully impose terms and

conditions of employment from its last, best, and final offer. (Id. at pp. 41-46; see, e.g.,

City of Glendale (2020) PERB Decision No. 2694-M, p. 59.) However, it is undisputed

that the parties never bargained nor participated in impasse resolution procedures

regarding BP 5020.01 or the corresponding administrative regulation. Although the

parties were in negotiations throughout late 2023 and early 2024, there was no

evidence that these negotiations resulted in impasse, that the District ever “imposed” its

last, best, and final offer, nor that any last, best, and final offer included BP 5020.01,

14The Association also relies on the proposed decision in PERB Unfair Practice
Case No. SA-CE-3136-E. Although PERB has no regulation analogous to the rules of
court prohibiting parties from citing non-precedential decisions as authority, because
the proposed decision in SA-CE-3136-E is pending before the Board on exceptions, it
would be inappropriate for me to consider or comment on it, including whether it has
any persuasive value for the issues in the present case.

73
which had already been in effect since BOE’s vote on August 22, 2023. I construe the

Association’s argument to be not that the District “imposed” unlawful terms and

conditions after bargaining to impasse but that by repeatedly inviting bargaining over the

effects of BP 5020.01, the District insisted on negotiating a prohibited subject of

bargaining. (City of San Jose, supra, PERB Decision No. 2341-M, p. 44; Berkeley

Unified School District (2012) PERB Decision No. 2268, pp. 3-9, & fn. 3.)

In either event, the issue is not alleged in PERB’s Complaint. Therefore, to be

considered, it must satisfy the requirements of the unalleged violations test. For the

following reasons, I conclude that it fails to do so.

During its opening statement, the Association asserted the following:

“The District is starting to point out that after it adopted this

new policy it belatedly offered to bargain the effects, but this
offer eliminates the meaning of the Union’s role as it
presumes that unit members will take on the new duties.
And in the case of gender non-conforming students, it limits
the unit to negotiating exactly how unit members should go
about violating the constitutional rights of students and
violating clear CDE guidance.”

Thus, to the extent the Association raised any issue about whether BP 5020.01

violated external law, it was primarily a rhetorical point that was subordinate to the

Association’s claim that BP 5020.01 was subject to decisional and not merely effects

bargaining. Otherwise, the Association did not assert that BP 5020.01 violated

constitutional rights or any other external law. Nor did the Association indicate at any

other point during the hearing that it intended to argue a per se theory of liability not

alleged in the Complaint and that turned on finding that BP 5020.01 violated

constitutional rights or any other provision of external law.

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 During the District’s opening statement, counsel for the District summarized the

allegations in the Complaint and then asserted: “Those are the issues properly before

PERB.” Counsel for the District then asserted that this case is not about whether the

District’s parental notification policies “are lawful outside of the requirements of EERA.”

According to the District’s opening statement, “[t]hose questions require an analysis of

state and federal laws including those communicated in [Department of Education]

guidance, … Title IX, the Education Code and the California State Constitution,” and

“are presently being litigated in courts with appropriate jurisdiction.”

During the ensuing discussion of the parties’ proposed exhibits, I indicated my

agreement with the District that whether the parental notification policy violated external

law was “not the issue in front of me” and asked counsel for the Association for any

appellate authority that this policy “violates a constitutional right of [privacy] or … equal

protection” or any provision of other external law. Counsel for the Association

responded: “We are certainly not here asking PERB to rule on the legality of what we

have termed the forced outing portions of 5020.1.” Based on this response, I advised

counsel for the parties that I would admit “a limited amount of evidence” on whether BP

5020.01 violated external law but “only to the extent it bears on [the] negotiability of the

[parental notification] policy itself.” The Association neither objected to this ruling on the

limited relevance of external law nor moved to amend the Complaint to include any

claims that BP 5020.01 violated any provision of external law.15

15 Among the materials initially submitted as a proposed exhibit by the

Association but never offered into evidence was Legal Alert No. OAG-2024-02 issued
by the California Attorney General on January 11, 2024 regarding “Forced Disclosure
Policies re: Transgender and Gender Non-Conforming Students.” In its post-hearing
brief, the Association requests that I now take administrative notice of this document to

75
 It is doubtful whether the Association’s fleeting and apparently rhetorical

reference to “negotiating exactly how unit members should go about violating the

constitutional rights of students and violating clear CDE guidance” was sufficient to

place the District and PERB on notice of any unalleged violation based on finding that

BP 5020.01 violated external law. (Burbank Unified School District (1986) PERB

Decision No. 589, adopting partial warning letter at p. 3; cf. Fresno Court, supra, PERB

Decision No. 2517, pp. 14-15 [repeated and detailed explanation of unalleged claim in

charging party’s opening statement ensured adequate notice of the issue].) However,

the ensuing discussion, my ruling limiting the relevance of external law to the issue of

negotiability of BP 5020.01, and the Association’s failure to object to that ruling, all

indicated that the Association was “not … asking PERB to rule on the legality of … the

forced outing portions of 5020.1” under external law. In similar circumstances where a

party has affirmatively stated at the outset of the hearing that it does not intend to

pursue a claim or defense, the Board has declined to consider the issue, regardless of

support the unalleged claim that the District proposed or imposed a prohibited subject of
bargaining. A request for administrative notice should normally be made before the end
of the hearing, so that all parties have notice and opportunity to contest any debatable
facts. (Cupertino Union School District (1989) PERB Decision No. 764, pp. 12-13, fn.
5; Antelope Valley Community College District (1979) PERB Decision No. 97, pp. 23-
24.) The Association has offered no reason why the Attorney General Legal Alert
should be administratively noticed after the hearing, when the District has no
opportunity to object. The request for administrative notice is therefore untimely.
Additionally, to be administratively noticed, the matter must also be relevant to the
issues in the case. (Evid. Code, § 210; Sierra Club v. City of Orange (2008) 163
Cal.App.4th 523, 548.) Here, Attorney General Legal Alert is irrelevant to the extent it
pertains to an unalleged theory of liability not properly before me. Alternatively, to the
extent it bears on the negotiability of BP 5020.01 (or lack thereof), it is cumulative of
other evidence in the record and therefore unnecessary. (PERB Reg. 32176.) For all
these reasons, I deny the Association’s request for administrative notice.

76
whether it was in fact fully litigated. (Beverly Hills Unified School District (1990) PERB

Decision No. 789, p. 12 (Beverly Hills USD); Los Angeles Unified School District (1988)

PERB Decision No. 659, pp. 3-4.)

Accordingly, the District did not have adequate notice and opportunity to defend

against the unalleged matter. To the extent the District reasonably relied on my

evidentiary ruling limiting the relevance of external law to issues of negotiability, i.e., to

an element of the unilateral change claim that was alleged in the Complaint, the District

was also denied an opportunity to fully litigate and to examine and be cross-examined

on the issue. (Beverly Hills USD, supra, PERB Decision No. 789, p. 12.) By any

measure, the Association’s contention that the District insisted on or imposed an illegal

subject of bargaining is not appropriate for consideration as an unalleged violation.

II. AR 6115 Revisions Prohibiting Display of Flags on School Grounds

A. Interference/Unreasonable Ceremonies and Activities Regulation

Paragraphs 9 through 11 of the Complaint allege that by maintaining a

“Ceremonies and Observances” regulation containing “vague and/or overbroad

provisions which employees could reasonably construe to prohibit activities protected by

[EERA],” the District has independently interfered with protected rights.

1. Interference Standard

To establish a prima facie case of interference, the charging party must

demonstrate that the employer’s conduct tends to or does result in harm to protected

rights. (Carlsbad, supra, PERB Decision No. 89, pp. 10-11.) The test is an objective

one considered from the standpoint of a reasonable employee or employee organization

under the circumstances and is therefore not dependent on whether the employer

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harbored an unlawful motive, intent, or purpose, nor whether employees or employee

organizations were in fact intimidated or discouraged from exercising protected rights.

(Ibid.; Contra Costa County Fire Protection District (2018) PERB Decision No. 2632-M,

pp. 18-19 & fn. 12 (Contra Costa Fire); Petaluma City Elementary School District/Joint

Union High School District (2016) PERB Decision No. 2485, p. 42 (Petaluma).) If a

prima facie case is established, PERB balances the degree of harm to protected rights

against any legitimate business interest established by the employer. (Hilmar Unified

School District (2004) PERB Decision No. 1725, p. 16, citing Carlsbad, supra, at pp. 10-

11.) “Where the harm is slight, the Board will entertain a defense of operational

necessity and then balance the competing interests.” (Ibid.) Where the harm is

inherently destructive of protected rights, the employer must show its conduct was

caused by circumstances beyond its control and that no alternative action was

available. (Contra Costa Fire, supra, PERB Decision No. 2632-M, p. 22.) Similarly,

where the rights interfered with or denied include an employee organization’s right of

access, the employer must demonstrate that the restriction is: (1) necessary to the

efficient operation of the employer’s business and/or the safety of employees and

others; and (2) narrowly drawn to avoid overbroad, unnecessary interference with

protected rights. (County of Riverside (2012) PERB Decision No. 2233-M, p. 7.)

2. EERA Protects the Rights of Employees and Employee Organizations to

Display Flags, Insignia, and Union Regalia at Work
An interference violation may be found only where a PERB-administered statute

guarantees the right(s) asserted by the charging party. (Hartnell Community College

District (2018) PERB Decision No. 2567, p. 5; Gonzales Union High School District

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(1984) PERB Decision No. 410, pp. 29-32.) Here, there is no question that AR 6115’s

ban on displaying flags implicates EERA-protected rights.

EERA section 3543 guarantees public school employees the rights to “form, join,

and participate in the activities of employee organizations” in matters concerning

employer-employee relations and to refrain from doing so without employer

interference, coercion, or restraint. EERA Section 3543.1 also guarantees employee

organizations “the right to represent their members in their employment relations with

public school employers,” the “right of access at reasonable times to areas in which

employees work,” and “the right to use institutional bulletin boards, mailboxes, and other

means of communication, subject to reasonable regulation ….”

Under longstanding PERB precedent, these provisions guarantee employees

and employee organizations the right to discuss wages and working conditions at work;

to solicit one another to participate or refrain from participating in union or other

organizational activities; to display union clothing, buttons, or pins in the workplace; and

to distribute literature on these subjects during non-work time and in non-work locations.

(Petaluma, supra, PERB Decision No. 2485, pp. 44-45; County of Sacramento (2014)

PERB Decision No. 2393-M, pp. 21-22, 24; East Whittier (2004) PERB Decision

No. 1727, p. 9; State of California (Employment Development Department) (2001)

PERB Decision No. 1365a-S, p. 10; State of California (Department of Parks and

Recreation) (1993) PERB Decision No. 1026-S, pp. 4-5 (Parks and Recreation); State of

California (Department of Transportation) (1983) PERB Decision No. 302-S, adopting

proposed decision at p. 21, fn. 17.) Like private-sector precedent, PERB has held that

the basic right of employees and employee organizations to communicate at work is not

79
defeasible, i.e., cannot be waived. (Petaluma, supra, at p. 40, fn. 11.) Unlike private-

sector precedent, the fact that other forms of communication are also available does not

diminish these rights. (County of Riverside, supra, PERB Decision No. 2233-M, p. 7;

Parks and Recreation, supra, at p. 6.)

PERB and California courts have also repeatedly held that the PERB-

administered statutes guarantee employees the right to present their grievances and

workplace concerns through both traditional and social media “to garner the public’s

support for labor’s position, to demonstrate the strength and support for union demands,

[and] to build solidarity among fellow employees ….” (Regents of the University of

California (2012) PERB Decision No. 2300-H, p. 16; see also Alameda Health System

(2023) PERB Decision No. 2856-M, p. 34; California Teachers Assn. v. Public

Employment Relations Bd. (2009) 169 Cal.App.4th 1076, 1091-92; State of California

(Department of Corrections and Rehabilitation) (2009) PERB Decision No. 2024-S,

adopting dismissal letter at p. 2.)

3. AR 6115’s Ban on Displaying Flags is Presumptively Invalid

Employer rules that ban a general category of conduct encompassing both

protected and unprotected activity are presumptively unlawful because of their likely

chilling effect. (Santee Elementary School District (2006) PERB Decision No. 1822, pp.

11-13 (Santee).) Irrespective of its implementation or enforcement, the mere

promulgation or maintenance of an over-inclusive rule banning both protected and

unprotected activity is therefore invalid, absent special circumstances. (Ibid.; Regents

of the University of California (2018) 2616-H, pp. 9-16; Petaluma, supra, PERB Decision

No. 2485, pp. 46-47; County of Sacramento, supra, PERB Decision No. 2393-M, p 24;

80
EDD, supra, PERB Decision No. 1365a-S, p. 10; Rio Hondo Community College District

(1983) PERB Decision No. 292, pp. 11-14, overruled on other grounds by Oakland

Unified School District (2024) PERB Decision No. 2906.)

The portion of AR 6115 in dispute bans the display of all flags “on school

grounds, including classrooms.” It recognizes an exception for the U.S. flag and the

state flag of California, regardless of the purpose for the display, and it creates another

exception for the flag of “a country, state, or [a] United States military flag,” when

displayed “solely for educational purposes within the adopted curriculum.” The

Regulation states: “Any other flag must be approved by the Superintendent or designee

prior to displaying, if and only if, it is used for educational purposes and only during the

related instructional period.” District communications sent to employees, including the

Flag Approval Form developed by the ad hoc Executive Cabinet Committee, define a

flag as “a display representing a flag of distinct color and design used as a symbol,

standard, signal, or emblem.”

a. AR 6115 Is Presumptively Void for Vagueness and Ambiguity

As an initial matter, the language of AR 6115 is vague and ambiguous, owing to

poor draftsmanship and the ungrammatical sentence structure of the “if and only if”

condition in the second sentence. The first sentence includes a broad restriction on

displaying flags, except for certain content-based exceptions, such as the flags of

states, countries or the “United States military.” It is unclear from the second sentence

whether the dependent clause “if and only if” refers to the display of flags in the previous

sentence or to the need to obtain approval for exceptions to the restriction stated in the

first sentence. Depending on which construction was intended, employees would either

81
need to seek approval “if and only if” a desired flag did not fit one of the expressly stated

exceptions or “if and only if” the flag would be “used for educational purposes and only

during the related instructional period.” The first construction includes a broader

restriction. The second applies if special approval is needed to ensure that flags

“related to the instructional period” will be used only for educational purposes, while

other flags not used for educational purposes may continue to be displayed without

Superintendent approval.

A separate communication to District employees indicates that the former, more

restrictive construction was intended. However, Arce admitted at the hearing that the

wording was reasonably susceptible to either meaning. As a result, employees would

reasonably be confused about the scope of conduct prohibited by the rule, a question

that cannot be resolved solely with reference to the document itself.

The ambiguity of the regulation thus makes it unclear whether employees must

seek special approval for displaying, for example, union flags or insignia, or whether an

exception for union flags is categorically unavailable under the rule. In either event, the

rule is presumptively invalid. It either categorically bans union flags and depictions of

union flags in all circumstances or places an undue burden on protected activity by

requiring employees to seek an exception from the rule’s content-based restriction

before displaying any flags or depictions of flags other than those specifically allowed

under the Regulation. However, even assuming there is some potentially lawful

application of the rule, in deciding whether to exercise protected rights, employees

cannot be required to risk discipline or face uncertainty about what conduct is or is not

permitted due to latent ambiguity in the employer’s rule. (Los Angeles Community

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College District (2014) PERB Decision No. 2404, p. 6 (LACCD); see also City & County

of San Francisco (2017) PERB Decision No. 2536-M, p. 14.)

b. AR 6115’s Ban on Displaying Flags Is Over-Inclusive

The Regulation’s general ban on displaying flags or depictions of flags is also

fatally overinclusive. As interpreted by the District, the revised Regulation permits the

Superintendent or designee to approve the display of a flag other than those expressly

identified in the Regulation “if and only if” the flag will be “used for educational purposes

and only during the related instructional period.” The Regulation thus bans the display

of union flags or depictions of union flags, whether on buttons, stickers, mugs, lanyards,

hats, clothing, or other personal items worn or carried by employees. In East Whittier,

supra, PERB Decision No. 1727, PERB held that “the right to wear union buttons

attaches in instructional settings as it does elsewhere.” (Id. at p. 11.) In subsequent

decisions, PERB has reiterated this general rule that employees may display their

support for (or opposition to) the exclusive representative in the workplace through

buttons, clothing, or other personal items. (City of Sacramento (2020) PERB Decision

No. 2702-M, pp. 9-10; County of Sacramento, supra, 2393-M, pp. 21-22, 24.) Because

AR 6115 prohibits the display of union flags and depictions of union flags on buttons,

lapel pins, lanyards, hats, clothing or other personal items, it is a presumptively invalid

restriction on employees’ rights to communicate with one another in the workplace.

(EERA, § 3543, subd. (a); East Whittier, supra, PERB Decision No. 1727, p. 9.)

The Regulation also restricts other categories of speech besides simply those

specifically concerned with support for or opposition to an employee organization.

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 Under the PERB statutes, employee speech is presumptively protected if it is

“related to matters of legitimate concern to the employees as employees so as to come

within the right to participate in the activities of an employee organization for the

purpose of representation on matters of employer-employee relations.” (Chula Vista

Elementary School District (2018) PERB Decision No. 2586, p. 15, quoting Rancho

Santiago Community College District (1986) PERB Decision No. 602, p. 12, internal

quotation marks omitted; Trustees of the California State University (2017) PERB

Decision No. 2522-H, p. 11.) However, unlike the other PERB statutes, EERA is not

concerned solely with the employment relationship nor limited to traditional subjects of

collective bargaining. One purpose of EERA is to “afford certificated employees a voice

in the formulation of educational policy,” and to that end, the statute guarantees public

school employees the right to representation in both their employment and professional

relationships with public school employers. (EERA, § 3540; Berkeley Unified School

District (2015) PERB Decision No. 2411, p. 16 (Berkeley USD).) Besides guaranteeing

collective bargaining over wages, hours, and other terms and conditions of employment,

EERA also grants the exclusive representative of certificated employees “the right to

consult on the definition of educational objectives, the determination of the content of

courses and curriculum, and the selection of textbooks to the extent those matters are

within the discretion of the public school employer under the law.” (EERA, § 3543.2,

subd. (a)(2); Oxnard Union High School District (2022) PERB Decision No. 2803, p. 41.)

Because EERA protects employee speech regarding the “autonomy and effectiveness

of the exclusive representative” (Mount San Jacinto Community College District (2018)

PERB Decision No. 2605, pp. 7-8), it necessarily also protects employee speech

84
regarding the subjects of consultation. Thus, “the definition of educational objectives”

and “the determination of the content of courses and curriculum” are matters of

legitimate concern to employees as employees under EERA, and certificated employee

speech on these subjects is protected. (Walnut Valley Unified School District (2016)

PERB Decision No. 2495, pp. 12-13; Berkeley USD, supra, at p. 19; see also Mt. San

Jacinto Community College District (2023) PERB Decision No. 2865, p. 18, fn. 12.)

Additionally, Association witnesses testified, without contradiction, that they had

a legitimate concern in displaying trans and pride flags, and that the District’s

categorical ban on such materials in the classroom negatively affected their working

conditions and ability to perform the duties and expectations of their teaching positions.

Diaz described “classroom management” as “the main part of the job” of being a

teacher and testified that it entails creating “a welcoming, positive and inclusive

environment to make sure that students are ready to learn” and “focused on the hard

work of actually learning the material.”

Heid similarly testified that “students have to feel that they are reasonably safe to

explore ideas” and “to communicate with [their instructor] and their peers without

judgment … of those ideas,” whether curricular or otherwise. Heid previously “use[d]

the [rainbow] flag as a way to demonstrate that [his] space is non-judgmental” but he

testified that following the revisions to AR 6115, “[t]here is no easy shorthand for that

now and it’s certainly not something that can come up during curriculum.” According to

Heid: “[I]f [students] don’t trust, they cannot learn” and with “no easy way to show them

that trust … learning becomes that much more difficult.”

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 Public school employers maintain the managerial prerogative to determine what

curriculum and programs will be offered. (Whisman Elementary School District (1991)

PERB Decision No. 868, p. 19.) However, an employer cannot exercise a managerial

prerogative to restrict the scope of protected rights. (Carlsbad, supra, PERB Decision

No. 89, p. 9.) Even accepting the District’s characterization of AR 6115 as affecting

“patriotic exercises and instructional materials provided by the District,” BOE’s

September 12, 2023 revisions to the Regulation necessarily affect educational policy

and the content of curriculum, and there is no evidence that the specific revisions to AR

6115 adopted by BOE were mandated by the Education Code or other external law.

Because the District’s revisions to AR 6115 categorically restricted the scope of

permissible employee speech regarding educational policy, the content of curriculum,

and matters affecting teachers’ working conditions, they are presumptively invalid.

AR 6115’s broad prohibition against displaying union flags and items depicting

union flags is also a presumptively invalid restriction on the Association’s statutory

rights, including its right to represent employees, its right of access at reasonable times

to areas in which employees work; its right to use bulletin boards, mailboxes, and other

means of communication, subject to reasonable regulations; and its right to use

institutional facilities at reasonable times. (EERA, § 3543.1, subds. (a), (b).) An

employer’s regulation of an organization’s access rights is reasonable if it is consistent

with the basic labor law principles of EERA, which are designed to insure effective and

nondisruptive organizational communications and employee organizations’ access to

employees at the workplace. (Long Beach Unified School District (1980) PERB

Decision No. 130, pp. 4, 6-7, 10.) As revised, AR 6115 prohibits the Association from

86
communicating its message to employees by way of flags or depictions of flags,

whether they be on buttons, lapel pins, lanyards, mugs, or other personal items worn,

carried, or otherwise used in the classroom or anywhere else on school grounds.

To the extent the Association wishes to communicate with employees with

posters, fliers, newsletters, or other graphic or printed materials containing depictions of

flags, AR 6115 prohibits it from doing so on bulletin boards, in mailboxes, and by other

means of communication, despite statutory language to the contrary. (EERA, § 3543.1,

subd. (b).) An employer’s content-based restrictions and prior restraint on union or

employee communications are also presumptively invalid. (County of Orange (2019)

PERB Decision No. 2611-M, pp. 7-10, adopting proposed decision at pp. 38-49;

Petaluma, supra, PERB Decision No. 2485, p. 48; Desert Community College District

(2007) PERB Decision No. 1921, pp. 10-11.)

c. AR 6115 Unreasonably Bans Union Access and Employee Protected

Activity in Non-Work Settings
Restrictions on union access and employee communication and solicitation

during nonworking time and restrictions on distribution during nonworking time and in

nonworking areas are presumptively invalid. (Long Beach USD, supra, PERB Decision

No. 130, pp. 7, 9-10; Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793.) Although

working time is for work, employers have no legitimate interest in regulating employee

speech or other non-disruptive protected activity during non-work times or in non-work

areas. (City of Sacramento, supra, PERB Decision No. 2702-M, p. 9; Fresno Court,

supra, PERB Decision No. 2517-C, p. 29; Regents of the University of California, supra,

PERB Decision No. 2616-H, p. 11, fn. 9.) Upon a showing of special circumstances, an

employer may reserve to itself exclusive use of a specific location or means of

87
communication (Regents of University of California v. PERB (1986) 177 Cal.App.3d

648), but no authority has ever held that an employer may restrict certain categories of

non-disruptive and otherwise protected speech throughout its entire premises, including

non-work areas.

AR 6115 is facially overbroad in that, without exception or qualification, it bans

the display of flags and depictions of flags “on school grounds,” which necessarily

includes break rooms, employee lounges, bulletin boards, parking lots, and other non-

work areas. In addition to impermissibly restricting buttons and other items that

employees may wear or display on their person while doing so, this provision of AR

6115 effectively bans the distribution of literature or other printed or graphic materials

displaying union flags by nonworking employees in non-work areas and by Association

staff in non-work areas. Even assuming the presence of special circumstances in

instructional settings, which the District has not shown, there would still be no

justification for extending AR 6115’s restrictions to break rooms, employee lounges,

parking lots, District offices, unused classrooms, and other non-instructional or non-

public settings. (Fresno Court, supra, PERB Decision No. 2517-C, p. 29; Long Beach

USD, supra, PERB Decision No. 130, p. 22; see also Los Angeles County Superior

Court (2008) PERB Decision No. 1979-C, p. 21, overruled in part by Napa Valley

Community College District (2018) PERB Decision No. 2563.) AR 6115’s restriction on

the display of union flags or insignia “on school grounds,” including non-work areas,

therefore provides additional grounds for finding the rule presumptively invalid.

88
 4. The District Has Failed to Demonstrate Special Circumstances

An employer has the burden of demonstrating special circumstances justifying

any vague, overbroad, or otherwise presumptively invalid rule. To show special

circumstances, the employer is not required to show that “actual disruption” resulted

from the display of union insignia, though such evidence, or the lack thereof, may be a

factor to consider. (Regents of the University of California, supra, PERB Decision

No. 2616-H, p. 17; East Whittier, supra, PERB Decision No. 1727, p. 13.) However, the

employer is required to produce case-specific evidence demonstrating the operational

or business necessity ostensibly outweighing the statutory rights of employees or

employee organizations. “General, speculative, isolated or [conclusory] evidence of

potential disruption to an employer’s operations does not amount to special

circumstances” sufficient to rebut a presumption of invalidity. (County of Sacramento,

supra, PERB Decision No. 2393-M, p. 24, citing Goodyear Tire and Rubber Co. (2011)

357 NLRB No. 38.) As noted above, in East Whittier, supra, PERB Decision No. 1727,

the Board held there is no presumption of special circumstances simply because the

display of pro-union or anti-union messages appears in the classroom. Rather, the

employer has the burden in each case, of demonstrating special circumstances to justify

its restrictions on protected activity. (Id. at p. 10; see also City of Sacramento, supra,

PERB Decision No. 2702-M, pp. 9-10.)

The record contains no evidence that the revised AR 6115 was necessary to

ensure safe operations, maintain discipline, or prevent disruptive, obscene, violent, or

otherwise unprotected speech, and the District has failed to identify any other special

circumstances to warrant banning the display of union flags anywhere on school

89
grounds, including classrooms. Instead, the District defends AR 6115 by claiming that it

is not specifically directed at union flags and that witness testimony failed to

demonstrate any instance of actual enforcement against union flags.

However, as explained above, neither argument has any bearing here. The rule

is a disfavored content-based restriction. The fact that it does not specifically single out

union flags or depictions of union flags is not determinative, since it is undisputed that

by allowing only certain, other flags, the revised AR 6115 would reasonably or logically

have this effect. (Superior Court v. Public Employment Relations Bd., supra,

30 Cal.App.5th at pp. 196–197.) Such “[c]ontent-based restrictions are highly

disfavored, in part, because there are so few circumstances in which they are based on

legitimate justification,” particularly if they extend to non-disruptive union or employee

communications during non-work time, in non-work areas, or other circumstances

where the employer has no legitimate interest in choosing which messages to suppress.

(Petaluma, supra, PERB Decision No. 2485, p. 48; see also El Camino Healthcare

District, et al. (2023) PERB Decision No. 2868-M, pp. 55-56, judicial appeal pending.)

Irrespective of how or whether it has been enforced, the District’s adoption and

maintenance of a rule banning both protected and unprotected speech is sufficient to

state a prima facie case. (City & County of San Francisco, supra, PERB Decision

No. 2536-M, p. 29; LACCD, supra, PERB Decision No. 2404, p. 6; Clovis Unified School

District (1984) PERB Decision No. 389, pp. 14-15.) Because the District has

demonstrated no special circumstances, operational necessity, nor circumstances

beyond its control, it is unnecessary here to assess whether the resulting harm was

comparatively slight or inherently destructive of protected rights.

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 5. The District Has Also Failed to Demonstrate Waiver

Although the District’s brief discusses waiver in response to the Complaint’s

unilateral change allegations, the defense may also apply to interference allegations. A

union and employer may agree to restrict union or other protected activity of employees

during paid, non-working time, if the restriction does not seriously impair employees’

right to communicate about union matters. (County of San Joaquin (2021) PERB

Decision No. 2775-M, p. 40; Petaluma Elementary School District/Joint Union High

School District (2018) PERB Decision No. 2590, p. 11, citing NLRB v. Magnavox Co. of

Tennessee (1974) 415 U.S. 322, 326-327; Trustees of the California State University

(1995) PERB Decision No. 1094-H, adopting warning letter at pp. 1-2; see also

Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708.) A “waiver of statutory

rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an

‘intentional relinquishment’ of a given right.” The party asserting waiver carries “the

burdens of production and persuasion.” (County of San Joaquin, supra; Regents of the

University of California (Irvine) (2018) PERB Decision No. 2593-H, pp. 9-12; Regents of

the University of California, supra, PERB Decision No. 2300-H, p. 27.)

The District claims that under Article 3 of the CBA, the District “retains all powers

and authority to direct, manage, and control to the full extent of the law” unless

specifically and expressly limited by the terms of the CBA, and because the Association

offered no evidence showing that the CBA has limiting terms related to the display of

flags, the District was authorized by the CBA to revise AR 6115 unilaterally. I am not

persuaded that language of Article 3 constitutes a clear and unmistakable waiver of the

rights at issue. As explained previously, because EERA guarantees employees and

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employee organizations rights of access, solicitation, distribution, and basic

communication in the workplace, a contract provision cannot reserve to the employer a

right to act unilaterally that it does not have under the statute. (Los Angeles Unified

School District, supra, PERB Decision No. 1501, p. 4; Carlsbad, supra, PERB Decision

No. 89, pp. 8-9 [inherent managerial interests must coexist with protected rights].)

The language of Article 3 also differs noticeably from instances in which PERB

has found a clear and unmistakable waiver. In Monrovia Unified School District (1984)

PERB Decision No. 460, the management rights clause gave the District the right to

“determine, implement, supplement, change, modify or discontinue, in whole or in part,

temporarily or permanently” the “selection, classification, direction, promotion, demotion,

discipline and termination of all personnel of the District ….” (Id., at p. 3, emphasis

added.) PERB found this language sufficiently clear and specific to give the District

discretion to issue a written warning and to suspend an employee for insubordination

and breach of professional responsibilities, even if the specific grounds cited in the

District’s disciplinary documents had not been negotiated. (Id. at p. 14.) By contrast,

absent from the language of Article 3 of the CBA are any references to supplementing,

changing, or modifying employer rules or any similar verbiage affecting the statutory

rights of employee organizations and employees to reasonable access, and non-

disruptive solicitation, distribution, or communication in the workplace, whether during

non-work time and in non-work areas or otherwise.

Similarly, in Trustees of the California State University, the exclusive

representative was found to have partially waived any statutory right to file grievances it

may have had, where the parties’ agreement defined a “grievant” to include “the Union”

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but only when alleging a violation of the Union Rights Article of the Agreement. In other

circumstances, where the contract language defined a “grievant” as an “employee” but

did not unequivocally and uniformly preclude the exclusive representative’s use of the

grievance procedure, no clear and unmistakable waiver was found. (Kern County

Hospital Authority, supra, PERB Decision No. 2847-M, pp. 13-17; Omnitrans (2010)

PERB Decision No. 2143-M, pp. 7-8; Omnitrans (2009) PERB Decision No. 2010-M,

adopting proposed decision at pp. 6-7.)

Here, Article 3 authorizes the District “to establish educational goals and

objectives; to determine the organization, kinds and levels of educational services to be

provided and methods and means of providing them; to “insure the rights and

educational opportunities of students”; and to “hire, classify, assign, evaluate, promote,

terminate, and discipline employees.” This language does not address or even mention

union and employee rights of access and communication in the workplace nor purport to

authorize the District to establish content-based restrictions on union and employee

communications. To the extent other provisions of the CBA address these subjects

they reinforce or preserve these statutory rights rather than waive or limit them. Article

2 (Unit Rights) recognizes the rights of the Association and its representatives to “[u]se

school mailboxes, e-mail and the District mail service to the extent authorized by law”;

to use “[b]ulletin board space in designated areas to which bargaining unit members

have access”; to “[u]se District facilities at reasonable times before and after duty hours,

provided that prior approval is obtained according to District ‘Use of Facilities’

regulations”; and to “[t]ransact official Association business on District property during

non-duty hours, so long as the transaction of such business does not interfere with the

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educational process or a unit member’s professional duties.” Rather than authorizing

the District to establish any prior restraint on the content of Association communications

with unit members, Article 2 provides that “the Association will provide the

Superintendent with a copy of any such communication it feels may be of concern to the

District.” Article 27 prohibits certain “concerted activities,” including a “strike, work

stoppage, slow-down, [or] picketing of the District by the Association or by its officers or

agents, during the term of the Agreement” and subjects employees to discipline if they

engage in these proscribed activities. However, the Article does not, even by

implication, define the term “concerted activities” to include other union or employee

rights, such as rights of access or communication in the workplace, and the District has

identified no other provision of the CBA that would, even arguably, waive these statutory

rights. The CBA therefore fails to support the District’s waiver argument and expressly

contradicts the District’s asserted right to establish a content-based restriction on

Association or employee communications, including those that include depictions of

flags other than those authorized by the revised AR 6115.

In the absence of any viable defense, I conclude that by promulgating and

maintaining the revised “Flags and Ceremonies” provisions of AR 6115, the District

interfered with the protected rights of employees and the Association, in violation of

EERA section 3543.5, subdivisions (a) and (b), as alleged in the Complaint.

B. Because the Interference Claims Adequately Dispose of the Issues,

there Is No Need to Decide Whether Adoption of AR 6115 Was a
Unilateral Change

Paragraphs 12-17 of the Complaint allege that by adopting the revised AR 6115

banning the display of flags anywhere on school grounds, the District unilaterally

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changed the status quo in violation of its duty to meet and negotiate and derivatively

interfered with and denied protected rights. However, I have already sustained the

Complaint’s allegations that promulgation and maintenance of the “Flags and

Ceremonies” revisions to AR 6115 interfere with protected rights of employees and the

Association. As discussed below, the standard remedy for maintaining an unlawful rule

is an order to cease and desist maintaining and enforcing the rule, to rescind or “void”

the rule, to make injured parties and affected employees whole, and to post electronic

and physical notice to advise employees of PERB’s decision and order.

Even if sustained, the Complaint’s unilateral change allegations regarding the

revised AR 6115 would not, as a practical matter, augment or alter the cease-and-

desist, rescission, make-whole, and notice posting provisions already available because

of the above findings and conclusions regarding employer interference.

At one time, the Board’s position was that separate cease-and-desist orders and

additional notice posting provisions were, in effect, separate remedies, and that the

Board and its agents were therefore obligated to find additional unfair practices

supported by the same conduct. (State of California (Department of Corrections &

Rehabilitation), supra, PERB Decision No. 2282-S, p. 15, citing San Francisco

Community College District (1979) PERB Decision No. 105.) However, in several

recent decisions, the Board has moved away from that reasoning where finding

additional violations based on the same conduct “would not materially alter the Board’s

remedy.” (City of Bellflower (2021) PERB Decision No. 2770-M, p. 10; County of San

Joaquin (2021) PERB Decision No. 2761-M, p. 83; City of Glendale, supra, PERB

Decision No. 2694-M, pp. 58-59.) Although resolving the Complaint’s unilateral change

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allegations regarding AR 6115 might, arguably, clarify the parties’ respective rights and

obligations regarding the scope of representation under EERA, it would also

overshadow or eclipse entirely the parties’ efforts to clarify and resolve such disputes in

the first instance at the bargaining table (County of Santa Clara (2024) PERB Decision

No. 2900-M, p. 12; City of Selma (2014) PERB Decision No. 2380-M, pp. 14-15 & fn. 9),

while having the disadvantage of adding to the length of this proposed decision. I

therefore decline to address the issue. The allegations in paragraphs 12-17 of the

Complaint are therefore dismissed.

REMEDY

The Legislature has delegated to PERB broad powers to remedy unfair practices,

including the power to direct an offending party to cease and desist its unlawful conduct

and to take such affirmative action as the Board deems necessary to effectuate the

policies and purposes of the statute. (Gov. Code, § 3541.3; City of Pasadena (2014)

PERB Order No. Ad-406-M, p. 12.) An appropriate remedial order seeks restoration of

the situation as nearly as possible to that which would have obtained but for the unfair

labor practice. (Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.)

In addition to PERB’s standard cease-and-desist order, the Association requests

that the District be ordered to rescind Board Policy 5020.01 and Administrative

Regulation 6115, and to post notice regarding its unfair practices.

A. Unilateral Adoption of BP 5020.01

The normal remedy for an employer’s unilateral change is to restore the prior

status quo by ordering the employer to rescind its decision and by making the exclusive

representative and affected employees whole for any losses suffered because of the

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unauthorized change(s) to matters within scope. (California State Employees’ Assn. v.

Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 946; Oakland Unified

School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1014–

1015.) The District shall be ordered to rescind BOE’s adoption of BP 5020.01 and all

communications with employees announcing the promulgation of AR 5020.01.

Although there was some uncertainty among District witnesses about whether or

to what extent BP 5020.01 and the corresponding AR were in effect, no evidence was

presented that any employees have been disciplined for failure to comply with the

policy, nor that the Association or employees have suffered any other compensable

harm as result of BP 5020.01’s adoption, maintenance, or enforcement. The

Association also did not request make-whole relief at the PERB hearing or in its brief. It

is therefore unnecessary to order make-whole relief for the District’s adoption of BP

5020.01 and/or AR 5020.01 at this stage of the proceedings. Pursuant to City & County

of San Francisco (2021) PERB Decision No. 2757-M and cases cited at pages 14-15

therein, the Association may raise in PERB compliance proceedings any instances of

discipline, negative employee evaluations, or other injuries allegedly resulting from

BOE’s adoption of BP 5020.01 and/or the corresponding AR that have occurred since

the PERB hearing in this matter.

B. AR 6115’s Unlawful Prohibition on Flags and Depictions of Flags

Where an employer promulgates, maintains, or enforces a rule that interferes

with protected rights, PERB orders the employer to cease and desist from future

interference, rescind or void the unlawful rule or portion of the rule, make any injured

parties and affected employees whole for losses suffered as a result of the unfair

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practices, and post notice to employees concerning the violation(s). (Santee, supra,

PERB Decision No. 1822, p. 15; Rio Hondo CCD, supra, PERB Decision No. 292, p. 32;

LACCD, supra, PERB Decision No. 2404, pp. 21-22; see also Contra Costa Fire, supra,

PERB Decision No. 2632-M, pp. 56-58.)

Here, the District has interfered with the access, solicitation, distribution, and

basic communication rights of the Association and employees by adopting and

maintaining an unlawful content-based rule generally banning flags and depictions of

flags anywhere on school grounds. In addition to PERB’s standard cease-and-desist

order, an appropriate remedy is therefore to order that the September 12, 2023

revisions to AR 6115 be rescinded.

Although the Association has requested that the District be ordered to rescind AR

6115 and “restore the status quo,” it has not asked to expunge any disciplinary action or

negative evaluations of employees, nor requested backpay, nor identified any other

affirmative relief necessary to “undo” the effects of AR 6115’s revision. Because the

Association has neither alleged nor proven that employees were disciplined or

negatively evaluated based on their non-compliance with the revised AR 6115, or that

the Association or employees suffered any other compensable harm as a direct result of

AR 6115’s adoption, maintenance, or enforcement, it is unnecessary to order make

whole relief at this stage of the proceedings. Pursuant to City & County of San

Francisco, supra, PERB Decision No. 2757-M and cases cited at pages 14-15 therein,

the Association may raise in PERB compliance proceedings any instances of discipline,

negative employee evaluations, or other injuries warranting expungement, backpay, or

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other make-whole relief allegedly resulting from the revised AR 6115 that have occurred

since the PERB hearing in this matter.

C. Physical and Electronic Notice Posting Requirements

An order to post physical and electronic notice is an essential and near universal

component of PERB unfair practice remedies. (City of Commerce (2018) PERB

Decision No. 2602-M, pp. 16-18; City of Sacramento, supra, PERB Decision No. 2351-

M, pp. 2, 43-46.) The notice serves to inform affected employees of their rights under

the statute and of the employer’s willingness to comply with the law and to deter future

misconduct. (City of Sacramento, supra, at p. 44; City & County of San Francisco

(2020) PERB Decision No. 2698-M, pp. 12-13.) Finding nothing in the record or the

parties’ briefs to suggest otherwise, I conclude that posting physical and electronic

notice to employees is also appropriate here.

PROPOSED ORDER

Upon the foregoing findings of fact and conclusions of law, and the entire record

in the case, it is found that TEMECULA VALLEY UNIFIED SCHOOL DISTRICT

(District) violated the Educational Employment Relations Act, Government Code

sections 3543.5, (a), (b), and (c), by unilaterally adopting BP 5020.01, a board policy

requiring certificated employees to notify parents or guardians of certain transgender or

gender non-conforming conduct by students and to notify parents or guardians of all

instances of verbal or physical altercations between students, and thereby also

interfering with or denying protected rights of employees and the Temecula Valley

Educators Association, CTA/NEA, which is the exclusive representative of the District’s

certificated employees; and by adopting, maintaining, and/or enforcing revisions to AR

99
6115, an administrative regulation that includes a general and overly broad ban on

displaying flags or depictions of flags anywhere on school grounds and thereby

interferes with and/or denies protected access, solicitation, distribution, and basic

communication rights of the Association and employees.

Pursuant to sections 3541.3, subdivisions (b), (i), and (k), and 3541.5,

subdivision (c), of the Government Code, it hereby is ORDERED that the District, its

governing board and its representatives shall:

A. CEASE AND DESIST FROM:

1. Adopting board policies and/or administrative regulations affecting

matters within scope without providing the Association with reasonable advance notice

and meaningful opportunity for the Association to request meeting and negotiating.

2. Adopting, maintaining, and/or enforcing board policies and/or

administrative regulations that interfere with and/or deny protected rights of employees

and/or the Association to reasonable access, solicitation, distribution, and/or basic

communication in the workplace about working conditions.

B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO

EFFECTUATE THE POLICIES OF THE ACT:

1. Rescind BP 5020.01 and any corresponding administrative

regulations and/or communications with certificated employees implementing and/or

enforcing BP 5020.01.

2. Rescind the Revised AR 6115 adopted on September 12, 2023 and

any corresponding communications with certificated employees implementing and/or

enforcing the revised AR 6115.

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 3. Within 10 workdays of the service of a final decision in this matter,

post at all work locations where notices to employees in the District’s certificated unit

are posted, copies of the Notice attached hereto as an Appendix. The Notice must be

signed by an authorized agent of the District, indicating that it will comply with the terms

of this Order. Such posting shall be maintained for a period of 30 consecutive

workdays. The Notice shall also be posted by electronic message, intranet, internet

site, and other electronic means used by the District to communicate with certificated

employees. Reasonable steps shall be taken to ensure that the Notice is not reduced in

size, altered, defaced or covered with any other material.16

4. Written notification of the actions taken to comply with this Order

shall be made to the General Counsel of the Public Employment Relations Board

(PERB or Board), or the General Counsel’s designee. The District shall provide reports,

in writing, as directed by the General Counsel or his/her designee. All reports regarding

compliance with this Order shall be concurrently served on the Association.

RIGHT OF APPEAL

A party may appeal this proposed decision by filing with the Board itself a

statement of exceptions within 20 days after the proposed decision is served. (PERB

Reg. 32300.) If a timely statement of exceptions is not filed, the proposed decision will

become final. (PERB Reg. 32305, subd. (a).)

16 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

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 The statement of exceptions must be a single, integrated document that may be

in the form of a brief and may contain tables of contents and authorities, but may not

exceed 14,000 words, excluding tables of contents and authorities. Requests to exceed

the 14,000-word limit must establish good cause for exceeding the limit and be filed with

the Board itself and served on all parties no later than five days before the statement of

exceptions is due. PERB Regulation 32300, subdivision (a), is specific as to what the

statement of exceptions must contain. Non-compliance with the requirements of PERB

Regulation 32300 will result in the Board not considering such filing, absent good cause.

(PERB Reg. 32300, subd. (d).)

The text of PERB’s regulations may be found at PERB’s website:

www.perb.ca.gov/laws-and-regulations/.

A. Electronic Filing Requirements

Unless otherwise specified, electronic filings are mandatory when filing appeal

documents with PERB. (PERB Reg. 32110, subd. (a).) Appeal documents may be

electronically filed by registering with and uploading documents to the “ePERB Portal”

that is found on PERB’s website: https://eperb-portal.ecourt.com/public-portal/. To the

extent possible, all documents that are electronically filed must be in a PDF format and

text searchable. (PERB Reg. 32110, subd. (d).) A filing party must adhere to electronic

service requirements described below.

B. Filing Requirements for Unrepresented Individuals

Individuals not represented by an attorney or union representative, are

encouraged to electronically file their documents as specified above; however, such

individuals may also submit their documents to PERB for filing via in-person delivery,

102
US Mail, or other delivery service. (PERB Reg. 32110, subds. (a) and (b).) All paper

documents are considered “filed” when the originals, including proof of service (see

below), are actually received by PERB’s Headquarters during a regular PERB business

day. (PERB Reg. 32135, subd. (a).) Documents may be double-sided, but must not be

stapled or otherwise bound. (PERB Reg. 32135, subd. (b).)

The Board’s mailing address and contact information is as follows:

Public Employment Relations Board

Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
Telephone: (916) 322-8231

C. Service and Proof of Service

Concurrent service of documents on the other party and proof of service are

required. (PERB Regs. 32300, subd. (a), 32140, subd. (c), and 32093.) A proof of

service form is located on PERB’s website: www.perb.ca.gov/about/forms/. Electronic

service of documents through ePERB or e-mail is authorized only when the party being

served has agreed to accept electronic service in this matter. (See PERB Regs. 32140,

subd. (b), and 32093.)

D. Extension of Time

An extension of time to file a statement of exceptions can be requested only in

some cases. (PERB Reg. 32305, subds. (b) and (c).) A request for an extension of

time in which to file a statement of exceptions with the Board itself must be in writing

and filed with the Board at least three calendar days before the expiration of the time

required to file the statement of exceptions. The request must indicate good cause and,

if known, the position of each of the other parties regarding the request. The request

103
shall be accompanied by proof of service of the request upon each party. (PERB Reg.

32132.)

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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California

After a hearing in Unfair Practice Case No. LA-CE-6841-E, Temecula Valley

Educators Association, CTA/NEA v. Temecula Valley Unified School District, in which all
parties had the right to participate, it has been found that the Temecula Valley Unified
School District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3540 et seq. by adopting board policies and/or administrative
regulations affecting matters within scope without providing the Association with
reasonable advance notice and meaningful opportunity to request meeting and
negotiating, and by adopting, maintaining, and/or enforcing administrative regulations that
interfere with protected rights of employees and/or the Association.
Because of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Adopting board policies and/or administrative regulations affecting
matters within scope without providing the Association with reasonable advance notice and
meaningful opportunity for meeting and negotiating; and
2. Adopting, maintaining, and/or enforcing administrative regulations that
interfere with and/or deny protected rights of employees and/or the Association.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind BP 5020.01 and any corresponding administrative regulations
and/or communications with certificated employees implementing and/or enforcing BP
5020.01; and
2. Rescind the Revised AR 6115 adopted on September 12, 2023 and
any corresponding communications with certificated employees implementing and/or
enforcing the revised AR 6115.

Dated: _____________________ Temecula Valley Unified School District

By: _________________________________
Authorized Agent

THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30

CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
 PROOF OF SERVICE

I declare that I am a resident of or employed in the County of Sacramento,

California. I am over the age of 18 years and not a party to the within entitled cause.
The name and address of my residence or business is Public Employment Relations
Board, Sacramento Regional Office, 1031 18th Street, Sacramento, CA, 95811-4124.

On October 14, 2024, I served the Cover Letter and Proposed Decision
regarding Case No. LA-CE-6841-E on the parties listed below by

I am personally and readily familiar with the business practice of the Public
Employment Relations Board for collection and processing of correspondence for
mailing with the United States Postal Service, and I caused such envelope(s)
with postage thereon fully prepaid to be placed in the United States Postal
Service at Sacramento, California.
Personal delivery.
X Electronic service (e-mail).

Stephanie J. Joseph, Staff Counsel Dean Adams, Attorney

California Teachers Association Adams Silva & McNally LLP
11745 E. Telegraph Road 2888 Loker Avenue, Suite 303
Santa Fe Springs, CA 90670 Carlsbad, CA 92010
Email: sjoseph@cta.org Email: dadams@asmesq.com

Laurie Kamerrer, Attorney

Adams Silva & McNally LLP
898 N. Pacific Coast Hwy Suite 825
El Segundo, CA 90245
Email: lkamerrer@asmesq.com

I declare under penalty of perjury that the foregoing is true and correct and that
this declaration was executed on October 14, 2024, at Sacramento, California.

Maryna Maltseva /s/ Maryna Maltseva

(Type or print name) (Signature)