San Francisco Community College District (PERB 0105E)

OVERRULED Placerville Union School District (1978) PERB Decision No. 69
STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SAN
	FRANCISCO
	COMMUNITY
	COLLEGE
DISTRICT
	FEDERATION
	OF
	TEACHERS,
LOCAL
	2121,
	CFT/AFT, 	AFL-CIO,
Charging
	Party,
vs.
SAN
	FRANCISCO
	COMMUNITY
	COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)	
Case
	No. 	SF-CE-201
PERB
	Decision
	No. 	105
October 	12,
	1979
)
)
)
)
)
)
)
)
Appearances: 	Robert
	J.
	Bezemek,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg	
& 	Roger)
	for
	San
	Francisco
	Community
College
	District
Federation 	of 	Teachers,
	Local
	2121,
	CFT/AFT, 	AFL-CIO;
	Ronald
	A.
Glick,
	Board
	Representative 	for
	San
	Francisco
	Community
	College.
Before 	Gluck,
	Chairperson;
	Moore 	and
	Gonzales,
	Members.
DECISION
This 	case 	of
	first
	impression
	is
	before 	the 	Public
Employment
	Relations
	Board
	(hereafter
	PERB
	or
	Board)
	itself
after
	an
	evidentiary
	hearing 	but 	without
	a
	hearing
	officer's
recommended
	decision.
	Oral
	argument
	was
	presented
	to
	the
	Board
itself
	on March
	13,
	1979.
	The
	central 	issue 	here
	is
	whether
the
	San
	Francisco
	Community
	College
	District
	(hereafter
District)
	committed 	an
	unfair 	practice 	in
	responding
	to 	the
passage 	of 	Proposition
	131 	by
	unilaterally
	changing
	certain
lproposition
	13,
	a
	tax
	relief
	measure 	which 	added
	article
XIIIA
	to 	the 	California Constitution, 	placed 	significant
limitations
	on
	the 	taxing
	power
	of 	local
	and
	State
	Government
and
	sharply 	reduced 	the
	amount
	of 	revenue
	that 	local 	entities
could 	raise
	by
	taxing 	property.
	The
	constitutionality

terms
	and
	conditions
	of
	employment
	without
	meeting
	and
conferring
	with 	the
	certified
	exclusive
	representative,
	the
San
	Francisco
	Community
	College
	District
	Federation 	of
	Teacbers,
Local
	2121
	(hereafter 	Federation).
	The
	District
	advanced
	a
number
	of 	defenses
	to
	its
	conduct
	but,
	for 	the 	reasons
discussed
	below,
	we
	find
	that
	the
	District
	refused
	to
	meet
	and
negotiate 	in
	good
	faith
	with
	the 	Federation
	and
	that
	no
circumstances
	existed
	that
	justified
	or
	excused
	this 	refusal.
of
	this
	measure
	was
	upheld
	in
	Amador
	Valley
	Joint
	Union 	High
Sch.
	Dist.
	v.
	State
	Bd.
	of 	Equalization
	(1978) 	22
	Cal.3d 	208.See
	also
	Sonoma County
	Organization 	of 	Public
	Employees
	v.County
	of
	Sonoma 	(1979) 	23
	Cal.3d 	296.
FACTS
The
	District
	consists
	of
	a
	city
	college
	division
(San
	Francisco 	City
	College
	campus) 	and 	a 	community
	college
centers 	division
	comprised
	of
	eight 	separate
	facilities
	for
cont~nu1ng
	education
	foi
	adu~ts.
	These
	divisions
	have 	a
combined
	total
	enrollment 	of 	61,500.
	The
	District
	has
	770
full-time
	and
	1,140
	part-time 	faculty.
The
	Federation
	was
	certified
	as
	the 	exclusive
representative
	of 	these
	employees 	on March
	23, 	1978.
	On
May
	16, 	1978,
	it
	submitted
	an
	initial
	proposal
	to 	the
	District
requesting 	negotiations
	on
	career, 	professional
	growth, 	and
yearly 	increments, 	as 	well 	as
	on 	wages, 	maintenance 	of
	past
2

W
practices,
	and
	other
	matters.
	Subsequently
	the
	parties
	agreed
to
	meet
	to
	establish
	negotiating
	ground
	rules.
	Before
	that
meeting,
	however,
	on
	June
	6,
	1978,
	the
	California 	electorate
passed
	Proposition
	13. 	Immediately
	after 	this
	initiative
measure
	passed,
	there
	was
	statewide
	concern 	about
	its
implications 	for
	local
	entities
	which 	were
	theretofore 	largely
dependent
	upon
	property 	tax
	revenue
	to
	finance
	public
	services
including 	schools.
	It
	was
	not
	clear
	whether, 	or
	when, 	any
State
	"bailout"
	funds
	would 	be
	available.2	
This 	atmosphere
of
	fiscal
	uncertainty 	led 	to
	the
	conduct
	that
	the 	Federation
complains
	of 	here.
The 	day
	after
	Proposition
	13
	passed, 	the
	District
chancellor/superintendent 	told
	Federation
	representatives
	that
he 	would 	recommend
	that
	the
	Governing 	Board
	of 	the
	District
cancel
	summer
	school,
	postpone
	sabbaticals,
	eliminate 	overtime,
and
	institute
	a
	salary
	and
	hiring 	freeze.
	On
	the
	8th, 	the
Governing 	Board
	voted
	to 	cancel
	summer
	school
	and
	to 	defer
	all
sabbatical
	leaves
	that
	had
	been 	awarded
	for 	the
	1978-79
academic
	year.3	
On
	the 	9th, 	the 	chancellor/superintendent
2Two
	bail
	out
	bills
	were
	passed
	and
	signed
	by
	theGovernor:
	SB
	154,
	on
	June 	24, 	1978,
	and
	SB
	2212 	on
	June 	30,
1978 	(Gov. 	Code
	sec.
	16250
	et 	seq.,
	as
	amended).
3The
	District's
	past 	practice
	had 	been
	to grant 	three
percent 	of
	its 	certificated
	employees
	sabbatical 	leaves 	each
year 	to 	study 	or 	travel
	abroad.
3

discussed 	the
	"pending
	fiscal 	crisis"
	with
	the
	academic
senate.
	On
	the 	15th,
	he
	declared
	his
	intent
	to
	urge
	the
Governing
	Board
	to 	declare
	a
	state
	of
	emergency.
	That
	same
	day
the 	Federation
	informed
	the
	District
	of
	its
	desire 	to 	negotiate
and
	its
	willingness 	to
	meet
	"every
	day 	and
	all
	day
	until
	a
tentative
	agreement
•..
	is
	reached
	on
	matters 	within 	the
	scope
of
	representation
	that
	would 	be
	covered
	by
	the
	proposed
declaration
	of
	emergency."
	The
	District
	replied
	that
	it
	could
not
	negotiate
	because
	the
	resolution
	had
	not
	been 	approved
	by
the
	Governing 	Board,
	because
	the
	public
	had
	not
	had 	an
opportunity 	to
	respond
	to
	the
	Federation's
	initial
	proposal,
and
	because 	procedures
	for 	negotiating
	had
	not
	been
	formalized.
At
	its
	June 	20, 	1978,
	public
	meeting, 	the
	District
	made
public
	the
	Federation's
	initial
	proposal.
	The
	Board
	also
declared
	a
	state
	of
	emergency
	and
	passed
	a
	resolution 	freezing
certificated 	salaries
	and
	yearly
	and
	career
	increments
	at
	the
1977-78
	rate,
	and
	withholding
	professional
	growth
	increments
for 	1978-79.4	
The
	resolution, 	to
	take
	effect 	at
	"mid-night
June
	30-July
	l,"
	stated 	that
	it
	was
	not 	intended 	to
	be
	in
derogation 	of 	the 	negotiating 	rights
	of 	employees.
	It
	said:
4yearly 	increments 	are
	essentially 	longevity 	step
increases.
	Eighteen 	steps 	are 	possible. 	Thereafter,
	employees
with 	three 	years
	at
	the 	previous 	rating 	plus
	a
	satisfactory
performance 	evaluation 	are
	eligible
	for 	career 	increments.
Professional
	growth 	increments 	reward
	additional 	educational
credits.
4

The
	Governing 	Board
	reaffirms
	its
willingness 	to 	negotiate
	and
	consult 	in
	good
faith
	with 	recognized
	employee
representatives 	to
	reach
	equitable
adjustment
	of 	the
	emergency
	resolutions
hereby
	adopted,
	consistent
	with
	the 	the
District's 	ability
	to
	pay
	and
	the
requirements 	of 	the
	educational
	program.
The
	Federation's 	unfair
	practice
	charge,
	filed
	on
June 	26,
	1978,
	and
	amended 	on
	October
	18,
	1978,
	alleges
	that
the
	District's
	conduct
	violated 	sections
	3543.S(a), 	(b),
	and
(c)
	of 	the 	Educational
	Employment
	Relations
	Act
	(hereafter
	EERA
or
	Act)
. 5 	The
	District
	denied
	that
	it
	had
	violated
	the 	Act,
and
	asserted
	numerous
	affirmative
	defenses.
This
	matter
	proceeded
	to
	a
	PERB
	hearing
	on
	October 	24,
1978,
	at
	which
	the
	parties 	stipulated 	that
	the 	Federation
5The
	Educational
	Employment
	Relations
	Act
	is
	codified
	at
Government 	Code
	section
	3540
	et.
	seq. 	Section
	3543.5
	provides
in
	pertinent 	part:
It
	shall
	be
	unlawful
	for
	a
	public
	school
	employer
	to:
(a) 	Impose
	or
	threaten 	to
	impose
	reprisals
	on
employees,
	to 	discriminate 	or
	threaten 	to 	discriminate
against
	employees,
	or 	otherwise
	to 	interfere
	with,
restrain,
	or 	coerce
	employees 	because 	of
	theirexercise 	of
	rights
	guaranteed
	by
	this
	chapter.
(b) 	Deny
	to
	employee
	organizations 	rights
	guaranteed
to
	them 	by
	this
	chapter.
(c)
	Refuse 	or
	fail
	to
meet 	and
	negotiate 	in
	good
	faith
with
	an
	exclusive 	representative.
All 	section 	references 	herein 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted.
5

6
had 	demanded
	negotiations
	on
	all
	the
	items
	in 	issue 	in
	this
case.
DISCUSSION
This
	Board
	has
	already
	decided
	that
	a
	District
	may
	not
unilaterally
	change
	matters 	within 	the
	scope
	of
representation6	
without
	meeting
	and
	negotiating
	upon
6section
	3543.2
	states
	in
	pertinent 	part:
The
	scope
	of
	representation
	shall
	be
	limitedto 	matters
	relating 	to
	wages,
	hours
	of
employment,
	and
	other
	terms
	and
	conditionsof
	employment.
	"Terms
	and
	conditions
	of
employment" 	mean
	health
	and
	welfare
	bene-
fits
	...
	,
	leave,
	transfer
	and
reassignment
	policies,
	safety
	conditions 	of
employment,
	class 	size,
	procedures
	to
	be
used
	for 	the 	evaluation 	of
	employees,
organizational 	security
	..•
	procedures 	for
processing 	grievances
	...
	and
	the 	layoffof 	probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	of
the
	Education
	Code.
	In
	addition,
	the
exclusive 	representative
	of
	certified
personnel
	has
	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
	such
	matters 	are 	within 	the
discretion
	of 	the 	public 	school
	employer
under
	the
	law.
	All 	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the 	public 	school
employer 	and 	may
	not
	be 	a
	subject 	of 	meeting
and
	negotiating,
	provided
	that
	nothing
herein
	may 	be
	construed 	to 	limit
	the
	rightof 	the 	public 	school
	employer
	to 	consultwith
	any 	employees
	or
	employee
	organization
on 	any
	matter 	outside 	the 	scope 	of
representation.
6

7
request 	with 	its 	employees' 	exclusive 	representative.7 	(San
Mateo 	County 	Community 	College 	District 	(6/8/79) 	PERB 	Decision
No. 	94.) 	See 	also 	Pajaro Valley 	Unified 	School 	District
(5/22/78) 	PERB 	Decision 	No. 	51, 	relying 	on 	NLRB 	v. 	Katz 	(1962)
369 	US. 	736 	[50 	LRRM 	2177].) 	In 	this 	regard, 	we 	have 	adhered
to 	federal 	precedent 	and 	have 	declined 	to 	follow 	those
jurisdictions 	that 	exempt 	public 	sector 	employers 	from 	the
prohibition 	against 	unilateral 	change. 	(Id. 	at 	17. 	Compare,
~, 	Board 	of 	Coop. 	Educ. 	Services 	v. 	PERB 	(1977) 	41 	N.Y. 	2d
753 	[95 	LRRM 	3046] .) 	The 	District 	does 	not 	dispute 	that 	salary
increases 	and 	sabbatical 	leaves 	are 	mandatory 	subjects 	of
negotiations. 	It 	agrees 	that 	the 	Federation 	sought 	discussions
on 	these 	items. 	But 	it 	urges 	this 	Board 	to 	excuse 	or 	justify
its 	conduct 	on 	several 	grounds.
The 	District's 	main 	defense 	is 	that 	its 	conduct 	was 	a
response 	to 	an 	emergency 	created 	by 	the 	passage 	of 	Proposition
13. 	In 	addition, 	the 	District 	claims 	that 	it 	was 	barred 	from
negotiating 	with 	the 	Federation 	until 	the 	public 	notice
?section 	3543.3 	provides:
A public 	school 	employer 	or 	such
representatives 	as 	it 	may 	designate 	who 	may,
but 	need 	not 	be, 	subject 	to 	either
certification 	requirements 	or 	requirements
for 	classified 	employees 	set 	forth 	in 	the
Education 	Code, 	shall 	meet 	and 	negotiate
with 	and 	only 	with 	representatives 	of
employee 	organizations 	selected 	as 	exclusive
representatives 	of 	appropriate 	units 	upon
request 	with 	regard 	to 	matters 	within 	the
scope 	of 	representation.
See 	also 	sections 	3543.S(c) 	and 	3540.l(h).
7

8
requirements
	established
	by
	sections
	3547 	(a) 	and
	(b)8 	were
satisfied.
	The
	District
	further
	asserts 	that 	certain
provisions
	of 	the
	California 	Constitution
	and
	the 	Education
Code
	prohibited
	it
	from
	granting
	salary
	step
	increments
	or
career
	or
	professional
	growth
	increments.
	It
	claims
	that
	the
Federation
	waived
	negotiations
	on
	these
	items
	by
	not
continuously
	renewing
	its
	request
	that
	the
	District
	discuss
them.
	Finally,
	the
	District 	posits
	a 	number
	of
	contract
	law
defenses.
The
	District's
	"emergency"
	defense.
The
	District
	argues
	that
	the 	passage
	of 	Proposition
	13
"mandated"
	it
	to 	"preserve 	in
	every
	possible
	way
	the 	resources
of 	the
	District."
	In
	addition,
	in
	its
	post-hearing
	brief,
	the
District 	asserts 	that
	"good-faith 	bargaining
	was
	impossible"
because
	it
	did 	not
	know 	what
	its
	revenue
	would 	be 	and
	"without
this
	minimal 	knowledge,
	there
	is 	really
	no 	way
	to 	formulate
8section
	3547
	provides 	in
	pertinent 	part:
(a)
	All
	initial
	proposals 	of 	exclusive
representatives
	and
	of 	public 	schoolemployers,
	which
	relate 	to matters 	within
the 	scope
	of 	representation, 	shall
	be
presented 	at
	a
	public
	meeting
	of 	the 	publicschool
	employer 	and
	thereafter 	shall
	be
public 	records.
(b) 	Meeting 	and
	negotiating 	shall
	not 	take
place
	on 	any
	proposal 	until
	a
	reasonabletime 	has 	elapsed 	after 	the 	submission 	of 	the
proposal 	to 	enable 	the 	public 	to
	become
informed 	and 	the 	public 	has 	the 	opportunity
to 	express
	itself
	regarding 	the 	proposal 	at
a 	meeting 	of 	the 	public 	school 	employer.
8

even
	the
	items
	that
	may
	be
	negotiated."
	As
	in
	San Mateo
	County
Community
	College
	District,
	supra,
	PERB
	Decision
	No.
	94,
	the
District
	has
	confused
	a
	negotiating
	position
	with
	a
	defense
	to
a
	unilateral
	action.
	While
	the 	lack
	of 	information
may
	be
	a
reason
	to
	maintain 	the
	status
	quo 	and
	defer 	negotiations
	until
more
	is
	known,
	it
	does
	not
	justify
	a
	refusal 	to 	negotiate.
(NLRB
	v.
	Minute
	Maid
	Corp.
	(5th
	Cir.
	1960) 	283
	F.2d
	705 	[47
LRRM
	2072]
.)
	Thus
	the
	District's
	legitimate
	economic
	concerns
did
	not
	authorize
	it
	to 	act
	unilaterally
	or
	relieve
	it
	of
	the
obligation 	to
	meet
	and
	negotiate
	with
	the 	Federation.
The
	passage 	of
	Proposition
	13
	engendered
	statewide
	concern
that
	it
	would
	result
	in
	fiscal
	chaos.
	Yet
	speculative
	concern
over 	the
	effect
	a
	law
	may
	have 	on
	the
	economy
	of
	local 	public
entities
	is
	not
	itself
	an 	emergency
	justifying 	unilateral
change. 	In
	Sonoma
	County
	Organization 	of 	Public
	Employees
	v.
County
	of
	Sonoma,
	supra,
	23
	Cal.3d
	296,
	the
	California
	Supreme
Court
	struck
	down
	as
	unconstitutional 	provisions 	of
	SB
	2212
voiding
	contractual
	agreements
	of
	local 	public
	entities
	insofar
as 	such 	agreements
	granted 	local 	public
	employees
	cost
	of
living 	increases 	in 	excess 	of 	those 	received
	by
	state
employees.
	The
	court 	explained
	that
	although
	in
	some
circumstances
	a
	state
	may
	impair
	contractual 	obligations
because 	of
	an 	emergency,
	bail
	out
	legislation
	was
	passed 	before
the
	effects 	of 	Proposition
	13 	were
	realized
	on
	July 	1, 	1978,
and
	alleviated 	the 	emergency
	that 	the 	Legislature 	claimed
justified 	the 	salary 	limitation. 	Furthermore, 	the
9

10
court
	concluded,
	no
	impairment
	of
	contracts
	was
	permissible
because
	notwithstanding 	the
	Legislature's
	declaration 	there
	was
no
	showing
	that
	an
	emergency
	in
	fact 	existed.a	
The
	District
here 	acted 	prematurely, 	out 	of
	panic,
	and
	not
	in
	response
	to
	a
bona
	fide
	emergency.
	Even
	as
	it
	acted
	on
	June 	20, 	1978,
legislation
	was
	in
	the
	works
	that
	would
	mitigate
	the
	effects
	of
Proposition
	13.
	(SB
	154
	and
	2212.)
	This
	bail
	out
	measure
	made
state
	surplus
	funds
	available 	to
	community
	college
	districts.
Since 	the
	District
	had
	until
	August
	8
	to
	finalize
	its
	budget,
the
	bail
	out
	bills
	were
	enacted
	in
	ample
	time
	to
	alleviate
	the
District's
	concerns. 	In
	addition,
	even 	assuming
	the
	District
had
	been
	correct
	in
	its
	assertion 	that
	it
	had
	to
	adopt
	a
	budget
on
	July 	1,
	SB
	2212
	extended 	budget
	deadlines 	for
	local
agencies.9
Even 	when 	a
	District 	is
	in 	fact
	confronted
	by 	an 	economic
reversal
	of
	unknown
	proportions,
	it
	may
	not 	take
	unilateral
8Government 	Code
	section
	16281
	provides 	in 	pertinent 	part:
It
	is
	the
	intent
	of 	the 	Legislature 	inenacting
	this
	chapter 	to 	alleviate
	the
current
	fiscal 	crisis
	created
	by
	the 	passage
of 	Proposition
	13
	(Article 	XIII
	A
of 	the
California 	Constitution),
	and
	to
	provide 	formaintaining
	essential 	services
	which 	would
otherwise
	be
	lost.
9sa 	2212,
	section
	34, 	provides:
Notwithstanding
	any
	other 	provision 	of
	law
for 	the 	1978-79
	fiscal 	year,
	any
	local
agency 	required
	by 	law
	to 	adopt 	a 	budget
shall
	adopt 	a 	budget 	no
	later
	than 	September
30, 	1978. 	Any
	other 	deadlines 	required 	for
the 	development 	of 	the 	budget 	may 	be 	delayed30 	days.
10

11
action
	on
	matters 	within 	the
	scope
	of
	representation,
	but
	must
bring
	its
	concerns 	about
	these matters 	to
	the
	negotiating
table.
	An
	employer
	is
	under
	no
	obligation
	at
	any
	time
	to
	reach
agreement
	with
	the
	exclusive
	representative.
	The
	duty
	imposed
by
	the
	statute 	is
	simply--but
	unconditionally--the
	duty
	to
	meet
and
	negotiate 	in
	good
	faith
	on
	matters 	within 	the
	scope
	of
representation.
	Thus
	the
	confusion
	bred
	by
	the 	passage
	of
Proposition
	13
	did
	not 	excuse
	the
	District's
	obligation 	to
	meet
and
	negotiate
	with
	the 	Federation,
	nor
	did
	it
	justify
	the
District's
	unilateral
	actions.
The
	public 	notice 	provisions
	defense.
Section
	3547(a)
	requires
	all 	initial
	proposals 	of
	employee
organizations
	and
	employers
	to
	be
	presented
	at
	a
	public
	meeting
of 	the
	employer.
	Section
	3547(b)
	prohibits
	meeting
	and
negotiating
	"until
	a
	reasonable
	time 	has
	elapsed
	.•.
	to
enable 	the 	public 	to
	become
	informed
	and
	the 	public
	has 	had
	the
opportunity 	to 	express
	itself
	regarding 	the 	proposal
	at
	a
meeting
	of 	the
	public 	school 	employer." 	In
	this
	case, 	the
Federation's
	initial
	proposal
	was
	presented
	at
	a
	public
	meeting
on 	May
	23, 	1978.
	A
public 	hearing
	on
	it
	was
	held
	on
June 	24, 	1978.
	The
	District's
	own
	initial
	proposal
	was
presented
	on August 	7 	and 	adopted
	at
	a
	public
	meeting 	on
September 	5, 	1978. 	Consequently, 	the 	District
	claims
	that
	it
could 	net 	negotiate 	with 	the 	Federation 	before 	September
	5.
11

12
Clearly
	the
	Legislature
	intended 	the
	public
	to
	be
	aware
	of
and
	have
	input
	into
	the
	negotiations 	process,
	and
	this
	decision
does
	not
	dilute 	that 	right.
	But
	sections
	3547 	(a) 	and
	(b)
	were
not 	designed
	to
	preclude
	negotiations
	at
	the
	very 	times
	when
discussion
	between
	the
	employer
	and
	the 	exclusive
representative
	is
	most
	appropriate.
	The
	negotiations 	timetable
the
	District
	describes
	was
	not
	immutable.
	The
	statute
	provides
an
	elastic
	time
	frame
	precisely
	because
	what
	is
	"reasonable
time"
	varies
	according
	to
	the 	circumstances 	surrounding
negotiations.
	When
	an 	employer
	in
	fact
	must
	act
	on
	short
notice,
	the
	statute
	telescopes 	the 	period 	for 	public 	response,
thereby 	resolving
	any
	conflict
	between
	the
	employers'
	duties
	to
meet 	and
	negotiate
	and
	to
	keep
	the
	public
	informed.
	As
	soon 	as
the
	District
	learned
	that
	Proposition
	13 	had
	passed,
	it
	could
have
	scheduled
	special
	meetings
	to 	consider
	resolution
	of 	the
problems 	posed
	by
	the
	new
	constitutional 	provision.
	(See
Education
	Code
	sections
	72129-72131.)
The
	California 	Constitution
	and
	Education
	Code
	defenses.
The
	District
	claims
	that
	article
	XVI,
	section
	18
	of 	the
California Constitution prohibited
	if
	from
	granting
	any
	salary
increases.
	That
	section 	forbids 	school
	districts
	from
"incur[ring]
	any
	indebtedness 	or
	liability
	in
	any manner
	or 	for
any 	purpose 	exceeding 	in
	any 	year 	the
	income 	and 	revenue
12

13
provided 	for
	such
	year,
	..•
"10	
But
	discussing 	matters
within 	the
	scope
	of
	representation
	with
	the 	exclusive
representative
	does
	not
	mean
	running
	afoul 	of 	the
	debt
limitation
	provisions, 	since 	negotiating
	does
	not
	mean
	agreeing
to
	salary
	increases 	in
	excess 	of 	revenue.
	As
	we
	have
	said
before,
	the
	duty
	to 	negotiate
	does
	not
	imply
	a
	duty
	to
	reach
	an
agreement.
Inherent
	in
	the
	District's
	argument
	appear
	to
	be 	two
premises:
	(1)
	that
	its
	budget
	in
	fact
	had
	to
	be
	adopted
	before
the
	start
	of 	the
	1978-79
	school 	year
	on
	July 	1,
	1978 	(Ed. 	Code
sec.
	85023),
	and 	(2)
	that
	the
	District
	would 	be 	bound
throughout
	1978-79
	by
	the
	salary
	rate
	paid
	on
	July 	1.
	(See,
e.g.,
	Rible 	v.	
Hughes 	(1944) 	24
	Cal.2d
	437,
	444 	[150
	P.2d 	455,
154
	A.L.R.
	137];
	Abraham
	v.
	Sims 	(1935) 	2
Cal.2d
	698,
	711 	[34
P.2d 	790,
	42
	P.2d 	1029];
	A.B.C.
	Federation 	of
	Teachers 	v.
A.B.C.
	Unified
	Sch.
	Dist.
	(1977) 	75
	Cal.App.3d 	332, 	337-339
[142
	Cal. 	Rptr.
	111]
.) 	Neither 	premise
	is 	correct.
	By
statute,
	community
	college
	districts
	must
	file
	their 	tentative
budgets 	with 	the 	county
	superintendent 	of
lOone
	court 	of 	appeal 	has
	reconciled 	the
	constitutional
debt
	limitation 	provision 	with 	the 	statutory
	minimum
	salary 	for
certificated
	employees
	(e.g.,
	Cal.
	Ed. 	Code
	sec.
	87826) 	by
holding
	that
	the 	debt
	limitation 	applies 	only
	to
	a
	district's
voluntary--as
	opposed
	to 	statutorily
	mandated--undertakings.
(County
	of
	Los 	Angeles 	v. 	Byram 	(1951) 	36
	Cal.2d 	694, 	699-700;
Wright 	v. 	Compton
	Unified 	Sch.
	Dist.
	(1975) 	46
	Cal.App.3d 	177.)
13

14
schools
	on
	or
	before
	July
	1.11	
(Ed. 	Code
	sec.
	85023(a)).
The
	Education
	Code
	outlines
	procedures
	by 	which
	the
	tentative
budget
	can
	be
	corrected
	and
	changed
	before 	the 	adoption 	of
	the
final
	budget
	on
	or
	before
	August
	8 	and
	its
	approval
	by
	the
county
	superintendent
	of 	schools
	on
	or 	before
	August
	15. 	(Cal.
Ed.
	Code
	secs.
	85023(b),
	(c),
	(d),
	(e).)
	Thus, 	even 	under
normal
	circumstances 	the
	District
	would
	have
	had
	the
	latitude
to
	adjust
	and
	readjust
	its
	budget
	in
	view
	of
	new
	information.
The
	Education
	Code
	directs
	governing 	boards
	of
	community
college
	districts
	to
	"fix
	and
	order 	paid 	the
	compensation
	of
persons 	in 	public
	school
	service 	requiring
	certification
qualifications
	employed 	by
	the
	board
	unless 	otherwise
prescribed
	by
	law."
	(Ed. 	Code
	sec.
	87801, 	emphasis 	added.)
Under
	factual 	situations 	that
	arose
	prior 	to
	EERA,
	similar
provisions
	of 	the 	Education
	Code
	have 	been
	held
	to 	require
districts
	to 	fix 	the
	compensation
	to
	be
	paid 	to 	teachers
	by
July 	1, 	the
	statutory
	date 	the 	school 	year 	begins.12 	Unless
a
	District
	acts 	to
	set 	salaries,
	the
	rate
	paid
	on
	July
	1
becomes
	the
	new
	salary
	schedule
	by
	operation
	of 	law.
	(E.g.,
llAn 	analogous 	argument 	was
	raised
	and
	rejected 	in
	San
Mateo 	County 	Community
	College
	District,
	supra,
	PERB
	DecTsionNo. 	94
	at
	pages 	20-21,
	a
	case 	concerning
	classified
	employees.
12california
	Education
	Code
	section
	79000
	states:
The
	school 	year 	begins
	on
	the
	first
	day
	of
July
	and 	ends 	on
	the
	last
	day
	of 	June.
14

15
Rible
	v.
	Hughes,
	supra,
	24
	Cal.2d
	437,
	433;
	Abraham
	v.
	Sims,
supra,
	2
Cal.2d.
	698,
	711; 	A.B.C.
	Federation 	of
	Teachers 	v.
A.B.C.
	Unified
	Sch.
	Dist.,
	supra,
	75
	Cal.App.3d
	332,
	338.)
	See
also
	City
	and 	County
	of
	San
	Francisco
	v.
	Cooper
	(1975) 	13
Cal.3d
	898,
	930
	at
	n.
	18.)
When
	public
	school
	employees
	select
	an
	exclusive
representative, 	that 	representative
	has
	the
	right 	to 	negotiate
with 	the
	district
	about
	"wages,
	hours
	of
	employment, 	and
	other
terms
	and
	conditions 	of
	employment."
	(Gov. 	Code
	sec.
	3543.3.
See
	also
	Government 	Code
	sections
	3543.5(a},
	3540.l(h).)
Collective 	negotiations
	thus 	supercedes
	the
	manner
	in
	which
salaries
	were
	theretofore
	set.
	Similarly,
	once
	an
	exclusive
representative
	and 	an 	employer
	negotiate
	an
	agreement,
	that
agreement
	supercedes
	individual
	employment
	contracts
	between
the
	employer
	and 	members
	of 	the
	negotiating 	unit.13
13see
	J. 	I.
	Case 	Co.
	v. 	National
	Lab.
	Rel.
	Bd. 	(1944) 	321
U.S. 	332,
	338 	[88 	L. 	Ed.
	762], 	in
	which
	the
	United
	States
Supreme
	Court
	said:
The
	very purpose 	of 	providing
	by
	statute
	for
the
	collective
	agreement
	is 	to
	supersede 	theterms 	of 	separate
	agreements 	of
	employees
with 	terms 	which
	reflect
	the 	strength
	and
bargaining
	power 	and
	serve 	the 	welfare 	of
the 	group.
	Its
	benefits
	and
	advantages 	are
open
	to 	every
	employee
	of 	the 	represented
unit,
	whatever 	the 	type 	or 	terms 	of 	his
pre-existing 	contract 	of
	employment.
See
	also, 	e.g.,
	Leechburg 	Sch.
	Dist.
	v. 	Educ. 	Assn. 	(Pa.1977) 	380 	A.2d 	1203 	[97
	LRRM
	2133]; 	Kolcum
	v. 	Board
	of
Education 	(Del. 	1975) 	335 	A.2d 	618 	[90
	LRRM
	2339); 	Local 	55
	v.School
	District
	(Iowa 	1974) 	222 	N.W.2d 	403 	[88
	LRRM
	2302];Weest 	v. 	School
15

16
The 	District's 	argument 	that 	it 	had 	to 	adopt 	a 	salary
schedule 	by 	July 	1 	is 	not 	persuasive. 	While 	the 	tentative
budget 	is 	due 	on July 	1, 	the 	final 	budget 	is 	not 	due 	until
August 	8. 	(Cal. 	Ed. 	Code 	secs. 	85023 (b), 	(d).) 	The 	Act
directs 	parties 	to 	begin 	the 	meeting 	and 	negotiating 	process
"prior 	to 	the 	adoption 	of 	the 	final 	budget 	for 	the 	ensuing 	year
... 	so 	that 	there 	is 	adequate 	time 	for 	agreement 	to 	be
reached 	or 	for 	the 	resolution 	of 	an 	impasse." 	(Gov. 	Code 	sec.
3543.7, 	emphasis 	added.) 	In 	other 	words, 	EERA 	itself
authorizes 	a 	district 	and 	an 	exclusive 	representative 	to
negotiate 	a 	wage 	schedule 	after 	July 	1. 	Thus, 	the 	District
here 	was 	not 	constrained 	to 	adopt 	and 	implement 	a 	salary
schedule 	by 	July 	1.
Waiver
The 	District 	contends 	that 	the 	Federation 	waived
negotiations 	on 	salary 	increases 	and 	sabbatical 	leaves. 	But 	at
the 	hearing 	in 	this 	matter, 	the 	parties 	stipulated 	that 	the
Federation 	had 	requested 	negotiations 	on 	all 	items 	in 	dispute.
In 	fact, 	prior 	to 	the 	time 	the 	District 	adopted 	its 	emergency
resolution 	freezing 	wages 	and 	deferring 	sabbatical 	leaves, 	the
Federation 	notified 	the 	District 	that 	it 	was 	willing 	to
negotiate 	around-the-clock 	to 	resolve 	the 	problems 	Proposition
13 	presented. 	Six 	days 	after 	the 	District 	refused 	negotiations
Commissioners 	(Ind. 	1974) 	320 	N.E.2d 	748 	[88 	LRRM 	2208]; 	Lullo
v. 	International 	Association 	of 	Firefighters 	(N.J. 	1970) 	55
N.J. 	409 	[262 	A.2d 	681, 	73 	LRRM 	2680].
16

17
and
	unilaterally
	changed 	working
	terms
	and
	conditions
	of
	unit
members,
	the 	Federation
	filed
	the
	instant
	unfair
	practice
charge.
	This
	Board
	will
	not
	readily 	infer 	that
	a
	party
	has
waived
	its
	rights
	under
	EERA;l4	
we
	will
	find
	a
	waiver
	only
when
	there
	is
	an
	intentional
	relinquishment 	of
	these
	rights,
expressed
	in
	clear
	and
	unmistakable 	terms.15	
By
	no means
	did
the 	Federation
	waive
	its
	negotiations
	rights
	here.
	Once
	the
District
	acted
	unilaterally,
	the 	Federation
	was
	not
	obligated 	to
continously
	reiterate
	its
	demand
	for 	negotiations 	in
	order
	to
safeguard
	its
	right
	to
	bring
	an
	unfair
	practice
	charge
	against
the
	District.
	Requiring
	the 	Federation
	to
	pursue
	negotiations
from
	this
	changed
	position
	would 	be
	tantamount
	to 	requiring
	it
to
	recoup
	its
	losses 	at
	the
	negotiations
	table.
	Instead 	the
Federation 	properly
	sought
	vindication
	of
	its
	rights
	through
PERB's
	unfair
	practice 	provisions.
The
	District's
	Contract
	Law
	Defenses
The
	District 	proffers
	a
	potpourri 	of
	contract
	law
	defenses,
all
	urging
	that
	under
	the 	circumstances 	created
	by
	Proposition
	13
14Amador
	Valle~
	Joint
	Union 	High
	School
	District
(10/2/78)
	PERB
	Decision
	No. 	74
	at
	p. 	8.
	See
	also
	Timken
	RollerBearing
	Co.
	v.
	NLRB
	(6th
	Cir.
	1963) 	325
	F.2d
	746 	[54
	LRRM
	2785].
15see
	Blair
	v.
	Pitchess
	(1971) 	5
	Cal.3d
	258, 	274, 	[96
Cal.Rptr.
	42, 	486 	P.2d 1242,
	45
	A LR.3d
	1206]. 	City 	of
	Los
Angeles 	v.
	Monahan 	(1976) 	55
	Cal.App.3d 	846, 	852 	[127
Cal.Rptr.763);
	NLRB
	v. 	Perkins
	Machine 	Co.
	(1st 	Cir.
	1964) 	326
F.2d
	488 	[55
	LRRM
	2204].
17

18
any
	express
	or 	implied
	contract 	the
	District
	had
	with
	the
Federation
	or
	its
	individual
	members
	must
	fall.16
	There
	may
be
	circumstances
	in
	which
	a
	violation
	of
	a
	collectively
negotiated
	agreement
	also
	constitutes
	an
	unfair
	practice.
	In
such
	cases,
	PERB
	has
	jurisdiction
	over
	the
	unfair
	practice,
	but
does
	not 	otherwise
	have
	the
	authority 	to
	enforce
	agreements.
(Sec.
	3541.S(b))
.17	
Since 	the
	District's
	contract
	law
defenses 	are
	separate
	from
	the
	negotiating 	issues 	here, 	they
are
	irrelevant
	in
	light
	of
	PERB's
	jurisdiction.
The
	Violations
The
	Board
	finds
	that
	the
	District
	violated 	section
3543.S(c) 	of 	the
	Act
	by
	failing
	and
	refusing 	to
	meet 	and
16The
	District
	alleged
	that
	any
	express 	or 	implied
contract
	with
	the 	Federation 	or
	any
	of 	the
	employees
	it
represented
	was
	null
	and
	void 	because 	of
	frustration
	of
purpose,
	mutual
	mistake, 	and/or 	as
	prejudicial 	to 	the 	public
interest.
We
	note
	that 	at
	the
	time
	the 	conduct 	complained
	of
occurred, 	the 	Federation
	had
	only
	recently
	been
	certified
	as
	he
exclusive 	representative 	of
	District 	certificated
	employees.
The
	parties
	had 	no
	negotiated
	agreement.
17section
	3541.S(b)
	provides:
The
	board
	shall
	not
	have
	authority 	toenforce 	agreements 	between
	the
	parties,
	and
shall
	not 	issue
	a
	complaint
	on 	any
	chargebased 	on
	alleged 	violation 	of 	such 	an
agreement
	that
	would
	not 	also 	constitute
	an
unfair 	practice
	under
	this 	chapter.
18

19
negotiate 	at 	the 	Federation's 	request 	over 	matters 	within 	the
scope 	of 	representation. 	In 	addition, 	we 	find 	that 	this 	same
conduct 	concurrently 	violated 	section 	3543.S(b) 	by 	denying 	the
Federation 	its 	statutory 	right 	as 	an 	exclusive 	representative
to 	represent 	unit 	members 	in 	their 	employment 	relations 	with
the 	District. 	(Sec. 	3543.l(a) .) 	In 	so 	holding, 	we 	disapprove
of 	the 	logic 	expressed 	in 	Placerville 	Union 	School 	District
(9/18/78) 	PERB 	Decision 	No. 	69, 	in which 	the 	Board 	unanimously
found 	it 	unnecessary 	to 	find 	a 	section 	3543.S(b) 	in 	addition 	to
a 	section 	3543.S(c) 	violation 	when 	such 	a 	finding 	would 	not
afford 	the 	charging 	party 	additional 	relief 	from 	PERB.
Separate 	cease 	and 	desist 	orders 	are 	separate 	remedies, 	even
when 	each 	is 	directed 	at 	the 	same 	employer 	conduct. 	(See
sec. 	3541.S(c) .) 	The 	unfair 	practice 	provisions 	of 	the 	EERA
unconditionally 	prohibit 	certain 	employer 	conduct 	that 	impedes
employees 	or 	employee 	organizations 	in 	their 	exercise 	of
protected 	rights. 	If 	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.
We 	further 	find 	that 	the 	District's 	failure 	to meet 	and
negotiate 	with 	the 	Federation 	interfered 	with 	employees 	because
of 	their 	exercise 	of 	representational 	rights 	in 	violation 	of
section 	3543.S(a). 	Collective 	negotiations 	is 	the 	cornerstone
of 	the 	EERA. 	To 	this 	end, 	employees 	have 	the 	right 	to 	select
an 	exclusive 	representative 	to meet 	and 	negotiate 	with 	the
19

20
employer
	on
	their
	behalf.
	(Sec. 	3543.)
	An
	employer's
unilateral
	change
	of 	matters 	within 	the
	scope
	of
	representation
is
	in
	derogation 	of
	its
	duty
	to 	negotiate
	with
	the 	exclusive
representative
	and
	necessarily
	interferes
	with
	employees
	in
their
	exercise
	of
	protected
	rights.
	This
	interference
constituted
	at 	least 	slight
	harm, 	and
	although
	the
	District
offered
	numerous
	reasons
	for
	its
	actions,
	none
	constituted
operational 	necessity
	that
	might 	excuse
	the
	District's
conduct.
	The
	Federation's
	charge
	is
	therefore 	sustained.
(Carlsbad
	Unified
	School
	District
	(1/30/79)
	PERB
	Decision
	No.
89
	at
	pages
	1-12.)
The 	Remedy
Section
	3541.5(c)
	gives
	PERB
	broad
	powers
	to
	remedy
	unfair
practices.
	In
	this
	case, 	the
	District
	violated
sections
	3543.S(c)
	and 	(a) 	by
	unilaterally
	withholding
	salary
increases
	and
	deferring 	sabbatical 	leaves 	for
	1978-79.
	It
	is
therefore 	appropriate 	to
	order
	restoration
	of
	yearly, 	career
and
	professional
	growth 	increments
	retroactive 	to 	July 	1,
	1978,
with
	interest
	paid
	at
	the
	rate
	of
	7
	percent.
	(San Mateo County
Community
	College
	District,
	supra,
	PERB
	Decision
	No. 	94
	at
p.
	27;
	Cal. 	Civ.
	Code
	sec.
	3287;
	Cal. 	Const.
	art.
	XXII,
	sec.
22. 	See
	also
	Sanders 	v. 	City 	of
	Los
	Angeles
	(1970) 	3
	Cal.3d
252, 	261-263.) 	Since
	sabbatical 	leaves 	cannot
	be
	reinstated
retroactively,
	we
	order 	the
	District 	to 	offer 	the 	next
opportunity 	to 	take 	sabbatical 	leave 	to 	those 	employees 	whose
20

21
1978-79
	sabbaticals
	were
	deferred.
	Moreover,
	we
	order 	the
District
	to
	reimburse
	those
	employees,
	upon
	proof,
	for
	any
directly 	related,
	unrecoverable
	out-of-pocket
	expenses
	they
incurred
	because
	their
	1978-79
	sabbaticals
	were
	deferred.
	In
the 	event
	that
	the
	parties
	are
	unable
	to
	settle
	among
themselves
	questions
	relating
	to
	reimbursement
	of
	such
expenses,
	PERB
	retains 	jurisdiction
	over
	this
	matter
	and 	upon
the
	Federation's
	request
	will
	conduct
	an
	additional
	hearing
limited
	to
	the
	proof 	of
	such
	expenses.
ORDER
Upon
	the 	foregoing
	facts,
	conclusions 	of
	law 	and
	the
	entire
record 	in
	this
	case,
	it
	is
	hereby
	ORDERED
	that
	the
	San
Francisco
	Community
	College
	District
	and
	its
	representatives
shall:
(1)
	Cease
	and
	desist
	from
	failing
	and
refusing 	to
	meet
	and
	negotiate 	in
	good
	faith
with 	the 	exclusive 	representative
	by
	taking
unilateral
	action
	on
	matters 	within 	the
scope
	of
	representation,
	as 	defined
	by
section
	3543.2.
(2)
	Cease
	and
	desist
	from
	denying
	the
Federation
	its
	right 	to 	represent 	unit
members 	by
	failing
	and
	refusing 	to
	meet 	and
negotiate
	about
	matters 	within 	the 	scope
	of
representation.
(3) 	Cease 	and
	desist
	from
	interfering
	withemployees 	because 	of
	their 	exercise 	of
	theirright
	to
	select
	an
	exclusive 	representative
to
	meet 	and
	negotiate 	with 	the
	employer 	on
their 	behalf
	by
	unilaterally
	changing
matters 	within 	the 	scope 	of 	representationwithout 	meeting 	and
	negotiating 	with 	the
exclusive 	representative.
21

22
(4)
	Take
	the 	following
	affirmative 	action
which
	is
	necessary
	to
	effectuate
	the
policies
	of 	the 	Educational
	Employment
Relations
	Act:
(a)
	Reinstate 	yearly
	increments,
career
	increments,
	and
	professional
growth
	increments 	for
	certificated
employees, 	with
	interest
	at
	the
	rate
	of
7	
percent
	for 	the
	amount 	due 	from
July 	1,
	1978,
	to 	the 	date
	of
reinstatement.
(b)
	Offer
	to
	employees
	whose
sabbatical
	leaves 	for
	1978-79 	were
deferred 	the
	next
	available
	opportunity
to
	take
	sabbatical 	leaves.
(c)
	Reimburse
	those
	employees
	whose
sabbatical
	leaves
	for
	1978-79 	were
deferred 	for
	any
	directly 	related,
unrecoverable
	out-of-pocket
	expenses,as 	proven.
(d) 	Post
	at
	all
	school
	sites,
	and
	all
other
	work
	locations
	where
	notices 	to
employees
	customarily 	are 	placed,
immediately
	upon
	receipt 	thereof,
copies 	of 	the
	notice 	attached
	as
	an
appendix
	hereto.
	Such
	posting
	shall
	be
maintained 	for
	a
	period 	of 	30consecutive
work
	days
	from
	receipt 	thereof.
Reasonable
	steps
	shall
	be
	taken 	to
insure
	that 	said 	notices 	are 	not
altered,
	defaced 	or 	covered
	by 	any
other
	material.
(e)
	Notify 	the
	San
	Francisco 	Regional
Director 	of 	the 	Public
	Employment
Relations
	Board,
	in 	writing, 	within
	20
	calendar
days 	from
	the 	date 	of
	this
	Decision, 	of
what
	steps
	the
	District
	has 	taken 	to
comply
	herewith.
This 	order
	shall
	become
	effective
	immediately
	upon
	service
22

23
thereof
	College	of
	a
	true
	copy 	on
	the
	San
	Francisco
	Community
District.
This
	an
	official
	notice.
	It
	must
	remain
	posted 	for
	30
	is
consecutive
work
	days
	from
	the 	date 	of 	posting
	and
	must
	not
	be
defaced,
	altered
	or
	covered
	by
	any
	material.
n
By:	
r
_..
- ,	
,,.
...
-	
_. 	-..
Barbara
	D.
	Moore,
	Member 	Harry Gluck, Chairperson
concurrence
	Member,
	The
	and
	dissent 	of
	Dr.
	Raymond
	J.
	Gonzales,
begins
	on 	page 	26.
23

24
Appendix:
	Notice 
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD,
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing
	in
	which
	all
	parties
	had
	the
	right
	to
participate,
	it
	has 	been
	found
	that
	the
	San
	Francisco
	Community
College
	District
	violated
	the 	Educational
	Employment
	Relations
Act
	by
	taking
	unilateral
	action 	freezing 	yearly
	increments,
career
	increments,
	and
	professional
	growth
	increments,
	and
deferring 	sabbatical 	leaves 	for
	1978-79, 	without
	meeting
	and
negotiating 	in
	good
	faith
	with 	the 	exclusive
	representative,
the
	San
	Francisco
	Community
	College
	District
	Federation 	of
Teachers,
	Local 	2121,
	CFT/AFT, 	AFL-CIO.
	It
	has
	further
	been
found
	that 	this
	same
	course 	of
	action 	interfered
	with
	San
Francisco
	Community
	College
	District
	employees
	because 	of
	their
exercise
	of
	rights 	protected
	by
	the 	Educational
	Employment
Relations 	Act.
	As 	a
	result
	of
	this
	conduct,
	we
	have 	been
ordered 	to 	post 	this 	notice,
	and
	we
	will
	abide
	by
	the 	following:
(a)
	Cease 	and
	desist
	from
	failing
	and
refusing 	to
	meet 	and
	negotiate 	in
	good
	faith
with 	the 	exclusive 	representative
	by
	taking
unilateral 	action
	on
	matters 	within 	thescope 	of 	representation 	without 	providing
the 	exclusive 	representative
	an
	opportunity
to 	negotiate 	thereon.
24

25
(b) 	Cease 	and 	desist 	from 	interfering 	with
employees' 	right 	to 	negotiate 	collectively
through 	their 	exclusive 	representative 	by
unilaterally 	changing 	matters 	within 	the
scope 	of 	representation 	without 	providing
the 	exclusive 	representative 	an 	opportunity
to 	negotiate 	thereon.
(c) 	Offer 	employees 	whose 	sabbatical 	leaves
for 	1978-79 	were 	deferred 	the 	next 	available
opportunity 	to 	take 	such 	sabbatical 	leaves.
(d) 	Upon 	proof, 	reimburse 	employees 	whose
sabbatical 	leaves 	for 	1978-79 	were 	deferred
for 	any 	directly 	related, 	unrecoverable
out-of-pocket 	expenses 	they 	incurred 	because
of 	that 	action.
SAN FRANCISCO COMMUNITY COLLEGE 	DISTRICT
By:
Superintendent
Dated:
This 	is 	an 	official 	notice. 	It 	must 	remain 	posted 	for 	30
consecutive 	work days 	from 	the 	date 	of 	posting 	and 	must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
25

Raymond
	J.
	Gonzales,
	Member
	concurring
	and
	dissenting 	in
	part:
I
	concur
	in
	the 	foregoing
	decision 	regarding 	the
	violation
of
	EERA
	section
	3543.S(c).
	I
	dissent
	regarding
	the 	findings 	of
the 	majority
	concerning
	EERA
	sections
	3543.S(a)
	and
	(b).
I
	do
	not 	find
	a
	section
	3543.S(a)
	violation 	in
	the 	case
because
	I
	do
	not 	believe 	the
	facts
	demonstrate
	the
	District
interfered
	with
	protected
	EERA
	rights 	in
	a
	way
	section
	3543.S(a)
was
	designed
	to
	protect 	against.
	Section
	3543.S(a)
	states:
It
	shall
	be
	unlawful
	for
	a
	public
	school
	employer
to:
(a) 	Impose
	or
	threaten 	to
	impose
	reprisals
	on
employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or
	coerce
employees
	because
	of
	their
	exercise 	of
	rights
guaranteed
	by
	this
	chapter.
	(Emphasis
	added.)
I
	have
	interpreted
	this
	section 	to 	require
	that
	a
	causal
	relation-
ship
	exist
	between 	employer
	action
	and 	employee
	rights.
	"'Because
of'
	connotes
	a
	causal
	relationship;
	the
	statute
	requires 	the
employer
	to
	have
	acted
	because
	of 	the
	employees'
	exercise 	of 	their
rights.
	This,
	to
	me,
	indicates 	that
	employer
	intent 	is
	a
	part
	of
a
	violation 	of 	section
	3543.S(a)
."
	While
	intent
	may
	be
	inferred,
I
	believe
	it
	can 	be
	rebutted
	by 	"an
	affirmative
	showing
	of
11
legitimate
	and
	substantial 	or 	budgetary
	justification.
1
(See
	my
concurrence 	in 	Carlsbad 	Unified 	School
	District
	(1/30/79)
	PERB
Decision
	No. 	89
	at
	pages 	20-21.) 	Here,
	I
	believe 	the 	record
1
It 	is 	difficult 	to 	understand 	exactly
	why
	there 	is
	a
section 	3543.S(a) 	violation
	under 	the 	majority's 	Carlsbad
	test,
which 	provides 	for 	balancing 	between 	the 	competing
	interest 	of
the 	employer 	and 	employee
	rights
	when
	the 	employer 	offers 	justi-
fication 	based on 	operational 	necessity, 	since 	the 	majority
decision 	in 	this 	case 	does 	not 	develop 	any 	"balancing" 	type 	of
analysis. 	See 	Carlsbad, 	supra, 	page 	10.
? fi

shows
	the
	District
	has 	demonstrated
	ample
	justification
	for
	any
possible 	"interference"
	with
	employees'
	representation
	rights,
even 	though
	this 	justification
was
	not
	sufficient
	to
	excuse
	its
duty
	to 	negotiate
	with 	the 	exclusive
	representative.
Indeed,
	the 	majority
	acknowledges
	that
	the
	District
	had
"legitimate
	economic
	concerns,"
	and
	that
	"the
	passage
	of
Proposition
	13
	engendered
	statewide
	concern
	that
	it
	would
	result
in
	fiscal
	chaos."
	It
	further
	recognizes
	that
	there
	was
	"confusion
bred
	by
	the 	passage 	of 	Proposition 	13."
	Thus,
	the
	District's
conduct 	appears
	to
	be
	quite
	understandable
	under
	the 	circumstances.
It
	appears
	to
	have 	been
	motivated
	by
	a
	desire 	to 	preserve
	its
financial
	options 	in 	the
	face
	of
	a
	perceived
	fiscal
	emergency 	and
chaos,
	rather
	than
	by
	a
	desire 	or
	intent
	to
	undermine
	the
employees'
	representation
	rights.
Further, 	in
	this
	case, 	the 	finding 	of
	a
	violation
	itself
	may
not 	serve 	as
	an
	affirmative
	showing
	of
	unlawful
	intent.
	There
has 	been
	no
	finding
	that
	the
	District
	negotiated 	in
	bad
	faith,
which 	would
	suggest
	an
	intent 	to 	interfere
	with
	employee
	rights.
To
	find
	a
	section
	3543.S(c)
	violation,
	it
	has 	been
	necessary 	for
us
	to 	find 	only
	that
	the
	District
	had 	an
	obligation 	to 	negotiate,
that
	it
	in 	fact 	refused 	to 	negotiate,
	and
	that
	the 	refusal
	was
not
	justified or
	excused 	by
	the
	District's
	perceived 	financial
cmcracncy.
	It
	has 	not 	been 	necessary 	for
	~s
	to 	reach 	the 	issu~
of whether 	the 	District 	negotiated 	in
	good
	faith, 	since
	it
27

refused 	to 	negotiate 	at 	all. 2 There 	simply 	has 	been 	no 	persua-
sive 	showing 	that 	the 	District 	acted 	with 	anti-union 	motivation.
Although 	I 	would 	not 	find 	a 	section 	3543.5(a) 	violation 	for
the 	reasons 	stated 	above, 	I 	question 	the 	necessity 	and 	wisdom of
reaching 	the 	issue 	at 	all. 	As 	I 	stated, 	the 	main 	issue 	in 	this
case 	is 	whether 	there 	was 	an 	obligation 	for 	the 	District 	to 	meet
and 	negotiate; 	i.e. 	whether 	the 	District's 	unilateral 	action 	was
excused 	or 	justified, 	not 	whether 	the 	District 	negotiated 	in 	bad
2 In 	NLRB 	v. 	Katz 	(1962), 	369 	U.S. 	736, 	[50 	LRRM 	2177] 	which
we 	adopted 	as 	guiding 	precedent 	in 	unilateral 	action 	cases 	(see
Pajaro 	Unified 	School 	District 	(5/22/78) 	PERB 	Decision 	No. 	51),
the 	u. 	s. 	Supreme 	Court 	explained why 	it was 	unnecessary 	to 	reach
the 	issue 	of 	good 	faith 	in 	finding 	a 	section 	8(a) (5) 	(failure 	to
bargain) 	violation 	under 	the 	National 	Labor 	Relations 	Act, 	where
a 	unilateral 	change 	was 	involved. 	It wrote:
[DUTY 	TO 	BARGAIN]
The 	duty 	"to 	bargain 	collectively 	enjoined
by 	§8(a) (5) 	is 	defined 	by 	§8(d) 	as 	the 	duty
to 	"meet 	. 	and 	confer 	in 	good 	faith 	with
respect 	to 	wages, 	hours, 	and 	other 	terms 	and
conditions 	of 	employment." 	Clearly, 	the 	duty
thus 	defined may 	be 	violated without 	a 	general
failure 	to 	subjective 	good 	faith; 	for 	there
is 	no 	occasion 	to 	consider 	the 	issue 	of 	good
faith 	if 	a 	party 	has 	refused 	even 	to 	negotiate
in 	fact--"to 	meet 	... 	and 	confer" 	about 	any
of 	the 	mandatory 	subjects. 	A refusal 	to
negotiate 	in 	fact 	as 	to 	any 	subject which 	is
within 	§8(d), 	and 	about 	which 	the 	union 	seeks
to 	negotiate, 	violates 	§8(a) (5), 	though 	the
employer 	has 	every 	desire 	to 	reach 	agreement
with 	the 	union 	upon 	an 	over-all 	collective
agreement 	and 	earnestly 	and 	in 	all 	good 	faith
bargains 	to 	that 	end. 	We 	hold 	that 	an 	employer's
unilateral 	change 	in 	conditions 	of 	employment
under 	negotiation 	is 	similarly 	a 	violation 	of
§8(a) (5), 	for 	it 	is 	a 	circumvention 	of 	the 	duty
to 	negotiate 	which 	frustrates 	the 	objectives 	of
§8(a) (5) 	much 	as 	does 	a 	flat 	refusal.
(Footnotes 	omitted)
Katz, 	supra, 	page 	736.
28

faith.
	Thus,
	it
	seems
	the
	section
	3543.5(a)
	violation
	is
basically
	derivative 	of
	the
	section
	3543.5(c)
	violation;
	the
finding 	of
	this
	violation,
	as 	the 	cursory 	nature 	of 	the
	majority's
discussion 	suggests,
	is
	merely
	an
	exercise 	in 	logic 	or
	illogic
	as
to
	whether
	one
	subsection 	of 	section
	3543.5
	is
	inherent 	or
implicit 	in,
	exclusive
	or 	inclusive
	of,
	some
	other 	subsection.
I
	see
	no
	reason
	for
	engaging
	in 	these
	mental
	exercises.
	To
order
	a
	district
	to
	cease
	and
	desist
	from
	interfering
	with
employees'
	representation
	rights
	in
	this
	case
	is
	essentially
identical 	to,
	and 	adds
	no
	substantive
	relief
	to,
	ordering
	a
district
	to 	cease
	and
	desist
	from
	refusing 	to 	negotiate
	with 	the
exclusive 	representative 	representing 	the
	employees.
Similarly,
	I
	would
	not 	reach 	the 	issue 	of
	the
	section
3543.5(b)
	violation 	for 	the 	reasons 	expressed
	by
	a
	unanimous
Board
	in 	Placerville
	Union
	School
	District
	(9/18/78)
	PERB
Decision
	No.
	69. 	While
	ordering 	the
	District
	to 	cease
	and
	desist
from
	denying 	an
	exclusive
	representative's 	right
	to 	negotiate
	is
technically
	distinct
	from
	ordering 	the
	District
	to 	cease
	and
desist
	from
	refusing 	to 	negotiate 	with 	the 	exclusive 	representa-
tive,
	it
	is
	obviously 	redundant,
	and
	I
	believe 	unnecessary.
Probing 	the
	inter-relationships 	of 	subsections 	of 	the 	unfair
practice 	section
	8(a)
(l)-8(a)
(5)
	has
	created 	considerable 	confu-
sion 	in 	interpreting 	the
	NLRA,
	especially 	sections 	8(a)
(3)
	and
8(a) (1),
	and
	I
	believe
	we
	should 	avoid willingly
	assuming
	this
29

burden
	of
	confusion
	which
	was
	born
	of
	a
	very
	different
	legisla-
tive 	history
	in
	the
	early
	1930's
	from
	the
	1976
	statute
	we
	are
interpreting
	here.
3
ayrn()'f(d
	J.
	Gonzlies
,11'1ernber	/R 	c
3
see
	my
	concurrence
	in
	Carlsbad 	Unified
	School
	District,
supra,
	page 	19. 	For
	a
	discussion 	of 	the
	legislative 	history
	of
the
	unfair 	practice 	sections 	of 	the
	NLRA
	and
	the 	confusion
	in
interpreting
	the
	inter-relationship 	of 	the 	unfair 	labor
practices,
	see
	also
	The
	Scienter 	Factor 	in 	Sections 	8(a)
(1) 	and
(3)
	of 	the
	Labor 	Act:
	Of
	Balancing, 	HosTile 	Motive,
	Dogs
	an~
Talls";
	~Cornell--Y:-:-Q. 	491
	(1967).
	The
	complexity
	of 	the
	inter-
relationship
	between
	sections
	8(a)
(1)
	and 	8(a)
(5)
	in
	"unilateral
change"
	cases
	is
	suggested 	in 	the
	Katz
	case
	itself. 	It
	also
involved 	the 	finding 	of
	a
	section	
TTaT
(
1)
	"interference" 	violation
along 	with 	the 	section
	(a) (5)
	refusal 	to 	bargain 	order 	but
	where
no
	cease
	and
	desist 	order
	was
	issued
	by
	the
	NLRB
	on
	the
	"inter-
ference" 	violation.
	NLRB
	v. 	Katz,
	369
	U.S. 	736, 	Fn. 	9, 	50
	LRRM
2177:
	NLRB
	v. 	Katz 	(2d
	Cir.
	1961) [47
	LRRM
	2967, 	2973.]
30