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July 7, 2014

PERB Holds Employer’s Changes In Treatment Of Released Time Is An Unfair Labor Practice

School employer clients often ask to what extent “released time” must be allowed without running afoul of the law, and when recouping released time compensation from a union is permitted. While some aspects of released time are governed by statute, a recent decision of the Public Employment Relations Board provides insight into the subtleties of the duty to bargain released time and union reimbursement for the compensation of the released members.

The concept of “released time” is fairly broad, taking on different meanings in various contexts.  Simply put, “released time” means an employee is performing tasks on behalf of the exclusive representative rather than for the employer during work hours.

Released time may be provided by statute (Education Code §§ 44987 [certificated unit executives], 45210(a) [classified unit executives], 45210(b) [unelected classified unit members to attend organizational activities]; and Government Code § 3543.1(c) [processing grievances or meeting/negotiating]), and may otherwise be agreed to in a collective bargaining agreement. We have long advised that non-statutory released time is subject to bargaining inasmuch as it relates to wages and other terms of employment. Depending on the role of the individual being released, or the purpose of the released time, the employer’s discretion in granting or denying the released time may range from broad, to narrow, to nonexistent. (See Tracy Educators Ass’n v. Superior Court (2002) 96 Cal.App.4th 530 [district cannot limit employees’ leave rights under Education Code section 44987 through collective bargaining negotiations].) The ability of a school district employer to recoup compensation from the union is similarly limited.

In a decision issued on June 17, 2014, PERB determined a school district committed an unfair labor practice by unilaterally terminating its policy of providing 40% released time for certificated union elected officers after the union refused to reimburse the district for approximately a decade of past released time. (Centinela Valley Union High School District (2014) PERB Decision No. 2378.) A provision in the collective bargaining agreement (Article 12) allowed for 40% released time for the association president for the purpose of participating “in district/school meetings, employee training, school site visits, and improvement of community relations.”

In 2011, the district wrote to the certificated association requesting reimbursement for elected officers’ released time under Education Code section 44987 (noting that such payment must be made within 10 days, but offering to set up a payment plan). An invoice attached to the letter sought $312,387.26 for released time for elected officers between 2001 and 2011. The district had never previously requested reimbursement for the presidents’ released time. When the association refused to reimburse it, the district terminated the Article 12 released time for the union president. The association filed a charge with PERB, alleging the district committed an unfair labor practice by (1) demanding reimbursement for past release time and (2) unilaterally terminating its policy of providing 40% released time to the association’s presidents.

District witnesses testified the district sought reimbursement due to its dire fiscal situation, and because it had recently learned of the right to reimbursement under Education Code section 44987. The district argued elected union officers’ released time under the Education Code was outside the scope of the EERA, and therefore not subject to bargaining.  

PERB found the district’s narrow interpretation of the negotiability of released time was contrary to the relevant case law. PERB further noted that Education Code section 44987 did not provide such a “specific and unalterable” policy as to supersede the parties’ bargaining obligations. (See Jefferson School District (1980) PERB Decision No. 133.) PERB concluded the district’s termination of its negotiated provision of 40% released time for association presidents was an unlawful unilateral change.

PERB determined the 40% released time for the association president was distinct from released time under the Education Code. Article 12 stated the 40% released time was for the purposes of participating “in district/school meetings, employee training, school site visits, and improvement of community relations.” By contrast, PERB noted the “exemplar of section 44987, which is to provide the ability to attend employee organization meetings.” According to PERB, the district never treated the Article 12 leave time as Education Code section 44987 released time. PERB noted, “Section 44987 has been in the Education Code since 1978. The parties are presumed to have knowledge of the laws affecting their workplace and bargaining rights. That section 12.19 [of the agreement] provided presidents with 40 percent leave since, at least, the 2001–2002 school year without the District requesting reimbursement strongly suggests that section 12.19 was never intended to be governed by Education Code section 44987.”

The Centinela Valley decision should dissuade school district employers from seeking—without first providing notice and an opportunity to bargain—reimbursement for bargained-for released time under the Education Code if the employer has a past practice of not seeking such reimbursement. The decision reinforces the concept that released time granted for purposes beyond the exemplary activities enumerated in the Education Code may fall outside the scope of reimbursable time unless the employer has an established practice of treating such leave as Education Code released time.

Because these statutory release periods are for different purposes, the leave allowed under the Education Code is in addition to the negotiated released time available under the EERA. Only leave taken under the Education Code provisions is reimbursable by the association. 


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