Jefferson School District (PERB 0133E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEFFERSON 	CLASSROOM TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging Party,
v.
JEFFERSON SCHOOL DISTRICT,
Respondent.
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Case Nos. 	SF-CE-33
SF-CO-6
PERB Decision No. 	133
June 19, 1980
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Appearances; 	Duane B. Beeson, Attorney 	(Brundage, Beeson,
Tayer 	and 	Kovach) 	for 	Jefferson Classroom Teachers Association,
CTA/NEA; 	Ned A. 	Fine 	and Claudia Cate, 	Attorneys 	(Morrison and
Foerster) 	for 	Jefferson School District.
Before Gluck, Chairperson; 	Gonzales and Moore, Members.
DECISION
The Jefferson Unified 	School District 	(hereafter 	District)
has 	filed 	exceptions 	to 	a proposed 	decision 	issued 	by a Public
Employment Relations Board 	(hereafter 	PERB) 	hearing 	officer
adjudicating 	the 	negotiability 	of 	certain proposals 	submitted
by the exclusive 	representative, 	the Jefferson Classroom
Teachers Association 	(hereafter 	JCTA) 	on 	behalf of 	a 	unit of
certificated 	employees 	in 	the District. 	The 	employer 	objects
to 	a 	ruling 	that 	numerous 	subjects 	discussed 	herein 	are
within 	the 	scope of 	representation. 	The JCTA did 	not 	file
exceptions 	in accordance 	with PERB rule 	32300, 	but merely filed
a 	response 	to 	the 	District's 	exceptions 	which 	incorporated 	its
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post-hearing 	brief. 	We, 	therefore, 	considered only 	those
portions 	of 	the proposed 	decision 	specifically excepted 	to.
FACTS
The 	facts 	here 	are 	not 	in dispute. 	The Association was
certified 	as 	the exclusive 	representative on June 21, 	1976, 	as
a 	result of 	a 	consent 	election. 	The 	parties 	began 	negotiating
on 	contract proposals 	in August 	of 	1976. 	During 	the 	initial
sessions, 	the District made clear 	that 	it considered a
substantial number 	of 	the Association's proposals 	to be outside
the 	scope of 	bargaining. 	Although 	the District 	asked 	the 	JCTA
to 	explain 	its 	reasons 	for 	considering 	the 	proposals 	which were
negotiable, 	the District made 	no effort 	to articulate 	its
rationale 	for 	claiming 	that 	they were 	outside 	scope. 	The
counterproposals 	submitted 	by 	the 	District 	in 	September 	did 	not
address 	any of 	the 	subjects 	which 	it considered 	beyond 	scope.
Instead, 	the District's 	representative 	suggested 	that 	the
Association 	could 	consult 	with 	the 	superintendent 	over 	the
purported 	non-negotiable 	items.
In November 	of 	1976, 	the parties 	filed unfair 	practices,
each 	alleging 	that 	the 	other 	was 	violating 	EERA sections
3543.5 (c) 	and 3543.6 (c), 	respectively!. 	The District alleged
1Government Code 	section 	3543.5 	states:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
2
• 	• 	• 	• 	• 	• 	•
2

that 	the 	Association 	violated 	its 	duty 	to 	bargain 	in 	good 	faith
by proposing 	to negotiate on 	subjects 	outside 	the 	scope 	of
representation. 	The 	hearing officer 	dismissed 	this charge, 	to
which 	the 	District excepted.
The Association claimed 	in 	its 	initial charge 	and 	through
subsequent 	amendments 	that 	the District 	failed 	to 	negotiate 	in
good 	faith 	by 	refusing 	to 	bargain over 	various 	proposals 	which
it claimed 	to be outside 	scope. 	The JCTA charge 	also
complained 	of 	certain 	unilateral 	actions 	taken 	by 	the 	District
prior 	to 	and 	during 	negotiations. 	The 	hearing officer
dismissed 	one 	of 	the 	charges 	alleging 	unilateral action, 	and
sustained 	the 	other. 	Neither 	the District 	nor 	the Association
filed 	exceptions 	to 	that 	determination. 	The 	surviving 	issues,
then, 	are 	the 	negotiability of 	certain specific 	subjects 	set
forth 	hereafter 	and 	whether 	the 	JCTA violated 	Section 	3543.6(c)
by 	seeking 	to 	negotiate proposals 	beyond 	the 	scope of
representation.
DISCUSSION
The 	scope of 	negotiations 	is 	found 	in section 	3543.2 of 	the
Act:
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	a 	public 	school 	employer 	of
any of 	the 	employees of which 	it 	is 	the
exclusive 	representative.
Hereafter 	all 	statutory 	references 	will 	be 	to 	the 	Government
Code 	unless 	otherwise 	noted.
w	3

The 	scope 	of 	representation 	shall 	be 	limited
to matters 	relating 	to wages, 	hours of
employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean 	health 	and 	welfare 	benefits
as 	defined 	by Section 53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety conditions
of employment, 	class 	size, 	procedures 	to be
used 	for 	the 	evaluation of 	employees,
organizational 	security 	pursuant 	to
Section 	3546, 	procedures 	for 	processing
grievances pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8, 	and the layoff
of 	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 	right
of 	the 	public 	school 	employer 	to 	consult
with 	any 	employees 	or 	employee 	organization
on 	any matter 	outside 	the 	scope 	of
representation.
The 	District's 	objections 	are 	both 	general 	and 	specific 	in
nature. 	Its 	broad-based 	arguments may 	be 	summarized 	as 	follows;
(a) 	By 	finding 	all matters 	relating 	to enumerated 	items
negotiable, 	everything 	the employer 	does, 	or 	may do, 	would
inevitably 	be 	within 	scope. 	The 	appropriate 	test 	should 	be 	one
of 	degree: 	only matters 	having 	a 	significant 	impact 	on 	the
employees' 	job 	interests 	should 	be 	included.
(I) 	Any matter 	covered 	by 	existing 	state 	law 	is 	thereby
preempted 	and 	should 	be 	excluded 	from 	scope. 	The 	employer
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should 	not 	be 	forced 	to 	negotiate 	on 	rights 	already 	guaranteed
or 	on 	rights 	it 	has 	no power 	to grant.
(c) 	The 	hearing officer's 	requirement 	that 	the District
must 	"refine" 	proposals 	made 	by 	the Association 	to determine
their 	meaning 	and 	relationship, 	if 	any, 	to enumerated 	subjects
improperly 	opens 	up 	an 	unlimited 	new 	category of 	negotiable
subjects.
(d) 	The Association 	has 	failed 	to provide 	evidence 	of 	the
relationship of 	its proposals 	to 	enumerated 	subjects 	and,
therefore, 	has 	failed 	to 	sustain 	its 	burden of proof.
The 	Appropriate 	Test 	of 	Negotiability
There 	is 	merit 	to 	the 	District's 	argument 	that 	virtually
all matters 	subject 	to employer 	action may, 	in 	some 	way 	and 	to
some degree, 	relate 	to 	an enumerated 	subject. 	Without citing
examples 	or 	hypotheticals, 	this point may 	be 	conceded.
In 	San Mateo City 	School 	District 	(5/20/80) 	PERB 	Decision
No. 	129, 	the Board 	faced a 	similar 	question concerning 	the
meaning of the 	term "matters 	relating to 	. 	. 	. 	." 	There, 	the
question 	arose 	as 	an 	aspect 	of 	the 	general 	task 	of 	determining
negotiability. 	It was 	the Board's conclusion 	that, 	in deciding
whether 	a 	subject 	is 	one 	on which 	the 	employer 	is 	required 	to
negotiate, 	the 	threshold 	question 	is 	whether 	the 	disputed
subject logically and 	reasonably relates 	to hours, 	wages, 	or 	an
enumerated 	term and condition of employment, 	San Mateo, 	supra,
p. 13.
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The Board's 	test 	in San Mateo did not stop, 	however, 	with
establishing 	the 	threshold question, 	for 	it was 	recognized 	that
the 	determination of 	logical 	and 	reasonable 	relationship 	is 	not
always 	facially 	evident. 	To cope 	with proposals 	that 	are
arguably 	included 	or 	excluded, 	there 	is 	a 	further 	yardstick
against 	which 	disputed 	issues 	could 	be measured:
a) 	Whether 	the 	subject 	is 	of 	such concern
to 	both management 	and 	employees 	that
conflict 	is 	likely 	to occur 	and whether 	the
mediatory 	influence 	of 	collective 	bargaining
is 	the 	appropriate means of 	resolving 	the
conflict 	and 	b) 	whether 	the 	employer's
obligation 	to 	negotiate 	would 	significantly
abridge 	his 	freedom 	to exercise 	those
managerial prerogatives 	essential 	to
achievement 	of 	the 	District's 	mission.
Supra, p. 14.
That 	test 	is 	applicable 	here.
THE 	DISTRICT'S 	ARGUMENTS
The 	Test 	of 	Relationship
The 	weakness 	of 	the 	District's proposed 	test of 	significant
impact 	lies 	largely 	in 	its 	requirement 	that 	someone 	other 	than
the 	employees 	would 	be 	required 	to determine 	what 	is
significant 	to 	them. 	Certainly, 	the Legislature did 	not
undertake 	to make 	such 	judgments. 	The 	statute 	unquestionably
excludes 	certain matters 	which 	significantly 	impact 	on 	employee
job interests; 	it does 	so simply because, 	irrespective of 	the
fact, 	the Legislature 	decided 	to leave 	these matters 	to
managerial discretion. 	On 	the 	other 	hand, 	those matters 	on
which 	the 	Legislature 	required 	negotiation 	are 	stated
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unequivocally. 	Further, 	the 	statute 	contemplates 	a 	fixed 	and
permanently 	defined 	arena 	in 	which 	negotiations 	are 	to 	take
place. 	Stable 	employer-employee 	relations 	cannot 	exist 	if 	they
are 	founded 	on 	shifting 	sands 	of 	ever-changing 	scope. 	Yet,
such 	would 	be 	the 	case 	if 	the 	District's 	test 	were 	to 	be
adopted, 	for 	today's 	de 	minimus 	may 	well 	be 	tomorrow's
far-reaching 	consequence.
The 	Effect 	of 	Existing 	Statutory 	Provisions
The 	District's 	absolute 	position 	that 	any matter 	covered 	by
existing 	statute 	is 	excluded 	from 	scope 	is 	not 	persuasive.
Matters 	excluded 	from 	negotiations 	are 	specified 	in 	the 	latter
portion of 	section 	3543.2, 	supra. 	No 	reference 	to existing
statutory provisions 	is made. 	Thus, 	if 	an enumerated 	item 	is
to 	be 	excluded, 	some 	other 	statutory prohibition must 	be
located. 	Section 	3540 	states, 	inter 	alia:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the 	Education
Code 	and 	the 	rules 	and 	regulations 	of 	public
school 	employers 	which 	establish 	and
regulate 	tenure 	or 	a merit 	or 	civil 	service
system 	or 	which 	provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations 	or
other 	methods 	of 	the 	public 	school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
It 	thus 	precludes 	supersession 	of 	Education 	Code 	provisions
which:
(1) 	establish 	and 	regulate 	tenure,
(2) 	establish a merit or 	civil 	service 	system, 	or
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(3) 	establish other methods 	of 	administering 	employer-
employee 	relations.
Construing 	this 	complex provision most 	favorably 	to 	the
District's 	postion,2 	supersession 	would 	occur 	where 	an
Education Code provision 	is 	annulled or 	replaced 	by 	a
collective 	agreement. 	But, 	does 	supersession occur 	where 	the
negotiated provision 	is permitted 	by the Education Code, 	even
though 	that 	provision's 	terms 	may 	vary 	from those 	of 	the Code?
Where 	the 	Code 	sets 	forth wage, 	hour 	or 	working 	conditions
matters, 	but neither 	explicitly, 	nor 	by 	inference, 	precludes a
negotiated 	variance, 	would 	section 	3540 	be 	violated? 	We 	hold
that 	it would not 	be. 	The 	distinction 	lies between a statutory
provision 	which mandates 	a 	specific 	and 	an 	unalterable 	policy
and 	one 	which 	authorizes 	certain policy 	but 	falls 	short 	of
being 	absolutely obligatory. 	As we 	read 	section 	3540, 	those
proposals 	which 	otherwise 	meet 	our 	test 	of 	negotiability 	are
within 	scope, 	unless 	a conflicting 	Education Code provision
precludes 	variance 	from 	its 	terms.
The District's 	further 	argument 	that 	the mere 	existence of
any 	statutory 	provision 	precludes 	incorporating 	that 	provision
in the 	agreement 	is without foundation. 	First, 	the only
statutory restriction 	is 	on provisions 	found 	in 	the Education
--
2 For 	example, 	it 	is possible 	to construe 	the prohibition
in 	section 	3540 	as pertaining only to 	"systems" 	(such as 	civil
service) 	rather 	than 	to specific, 	individual personnel policies.
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Code. 	Second, 	incorporating a 	statutory mandate 	in the
agreement, 	assuming 	the 	subject matter 	is or 	relates 	to a
subject specified 	in section 3543.2, 	certainly
does 	not 	constitute 	supersession 	of 	that 	statute 	whether 	it 	is
the Education Code or 	any other 	statute. 	On the other 	hand,
there 	is 	a clearly recognizable 	value 	to 	the 	"improvement of
personnel management 	and 	employer-employee 	relations"3 	in
permitting 	inclusion of 	such matters 	within 	the 	negotiated
contract. 	Employees 	are 	entitled 	to 	know the 	rules,
regulations, 	and policies 	which govern their 	employment 	rights
and 	obligations. 	Employer-employee 	relations 	are 	inherently
improved 	when 	the 	respective 	parties 	are 	well 	informed 	as 	to
their 	mutual 	rights 	and 	obligations. 	There 	can 	be 	little 	doubt
that 	employees 	will be more 	easily 	and 	fully 	informed 	when
pertinent 	matters 	are 	to 	be 	found 	in a 	single 	document 	such as
a 	collective 	agreement 	rather 	than 	in a 	plethora of 	statutory
provisions 	which 	are 	not 	readily 	accessible 	to 	them.
Certainly, 	the 	inclusion of 	such provisions 	in 	the 	agreement
cannot 	be 	seen 	as 	an 	interference 	with management's 	necessary
freedom to direct 	the 	enterprise. 	The 	employer's obligation 	to
3 Section 3540 provides 	in part:
It 	is 	the purpose of 	this 	chapter 	to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State of
California...
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adhere 	to 	statutory 	requirements 	is 	not magnified 	by their
inclusion 	in 	a 	negotiated 	agreement.
We 	find 	no provision 	in 	the 	Educational Employment
Relations Act 	(hereafter 	EERA) 	which 	limits 	the 	negotiability
of matters 	covered 	by 	statutes 	other 	than the Education Code.
Assuming 	that 	the 	subject matter 	in question meets 	our 	test of
negotiability, 	PERB 	is without power 	to exclude 	it 	from scope.
Our 	duty 	is 	the 	enforcement 	and 	administration of 	the 	statutes
given us, 	in this case, 	the EERA. 	We are without authority or
right 	to enforce 	or 	administer 	any other 	law. 	Whatever
statutory 	conflicts may 	arise 	because 	a particular 	matter 	is
determined 	by 	this Board 	to 	be 	in 	scope must 	be 	resolved 	in a
different 	forum.
We 	find, 	therefore, 	that proposals 	to 	include 	in the
agreement matters 	covered 	by 	the Education Code 	or 	other
statutes 	are 	proper 	and 	lawful, 	provided 	the 	subject matter 	is
or 	is 	related 	to 	an enumerated 	item and 	further 	provided 	that
the 	proposal 	does 	not 	supersede 	a mandatory Education Code
provision.
The 	Employer's 	Duty 	to 	Interpret 	the 	Proposal
As 	the Board 	interprets 	the 	hearing 	officer's 	admonition,
he 	would 	hold 	the 	employer 	responsible 	for 	evaluating 	any
proposal 	to determine 	the extent of 	his 	duty 	to negotiate. 	We
find 	nothing 	wrong 	in 	this 	position.
We 	do 	not 	read 	into 	the 	hearing officer's 	words 	a
requirement 	that 	the 	employer 	search 	out 	negotiable words 	and
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phrases 	or 	struggle 	against 	the 	odds 	of 	deciphering 	the meaning
of 	obscure 	and 	dubious 	demands or 	that 	he 	negotiate 	on matters
he 	sincerely 	believes 	to be excluded. 	Taken 	in 	its 	reasonable
context, 	the 	hearing officer's 	instruction 	requires 	the
employer 	receiving 	a proposal 	to make 	a good-faith 	effort 	to
seek 	clarification of questionable 	terms 	and proposals, 	to
voice 	its 	reasons 	for 	believing 	that a proposal 	is outside
scope, 	and 	to enter 	into negotiations on 	those 	aspects of
proposals 	which 	it 	finally views as 	covered 	by 	section 	3543.2.
What 	the 	hearing officer 	seeks 	to proscribe 	is 	the 	perfunctory
refusal 	to 	consider matters 	which 	are 	not patently 	negotiable
without 	affording 	the 	opportunity 	for 	clarification or
explanation. 	The obligation 	to negotiate 	includes 	the
obligation 	to 	express 	one's 	opposition 	in 	sufficient 	detail 	to
permit 	the 	negotiating 	process 	to proceed 	on 	the 	basis 	of
mutual understanding.4 Of 	course, 	this 	does 	not mean 	that
the 	employer 	must 	finally 	agree 	that 	any particular 	proposal 	is
within scope. 	Nor, 	does 	it excuse 	the organization from making
a 	concomitant 	good-faith 	effort 	to 	clarify 	its 	proposals 	and
establish 	that 	they are 	within 	scope. 	To 	the 	extent 	of 	the
foregoing, 	we 	find 	the 	hearing officer's point well 	taken.
4Because 	the 	District 	refused 	to 	discuss 	those 	matters
which 	it 	declared 	to be 	outside 	the 	scope of 	representation,
those 	Association 	proposals 	were 	not 	clarified; 	consequently,
it 	has 	not 	been possible 	to be more 	specific 	in determining 	the
precise 	limits 	of 	their 	negotiability.
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The Association's 	Burden of 	Proof
The 	District misconceives 	the 	nature 	of 	the 	Association's
obligation 	and 	confuses questions of 	facts 	and questions 	of
law. 	Whether 	the 	subject of 	the 	proposal 	is within 	the purview
of 	section 	3543.2 	is 	a matter 	for 	this Board 	to determine 	as 	a
matter 	of 	law. 	The Association's obligation 	is 	to present
factual evidence. 	That 	evidence 	is 	the proposal 	itself. 	While
the 	Association 	is 	entitled 	to 	argue 	the 	law—and 	did 	in 	this
case—the 	"burden" 	of 	deciding 	the 	issue 	rests 	solely on PERB's
shoulders.
With all of 	the 	foregoing 	in mind, 	it 	is now appropriate 	to
turn 	to the 	specific proposals 	and 	findings 	and 	the 	exceptions
taken 	thereto:
ARTICLE 	III 	— 	PROFESSIONAL 	DUES 	OR 	FEES 	AND 	PAYROLL 	DEDUCTIONS
5. 	Upon appropriate written authorization
from the Certificated Employee, 	the
District 	shall 	deduct 	from 	the 	salary of
any Certificated 	Employee 	and 	make
appropriate 	remittance 	for 	annuities,
credit union, 	savings bonds, 	charitable
donations, 	or 	any other plans or
programs 	jointly 	approved 	by 	the
Association 	and 	the 	District.
The 	District 	appears 	to object 	to 	the phrase 	"or 	any other
plans 	or 	programs 	jointly 	approved 	by 	the Association 	and 	the
District." 	It 	also 	contends 	that 	the 	other 	proposed 	deductions
would 	supersede provisions 	of 	the Education Code. 	Two primary
arguments 	are 	advanced 	in 	support 	of 	the 	District's 	claim 	that
the proposal 	is outside of the scope of negotiation. 	First, 	it
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contends 	that 	payroll 	deductions 	need 	only 	be 	negotiated 	as
they 	relate 	to organizational 	security. 	Second, 	the District
implies 	that 	the proposal 	is 	otherwise 	unlawful 	according 	to
Abood v. 	Board of Education 	(1977) 	431 U.S. 	209 	[95 LRRM 2411].
Since Abood 	requires 	unions 	to 	finance 	expenditures 	for 	any
ideological causes by means other 	than dues deductions, 	the
proposal fails, 	according 	to the District, 	because 	it would
allow 	financing 	of 	noncollective 	bargaining 	projects 	from 	union
dues.
At 	the 	outset, 	we 	find 	that 	"payroll deductions" 	may bear 	a
strong 	relationship to wages. 	This 	latter 	term, 	specified 	in
section 	3543.2 as 	negotiable, 	must 	be 	construed 	to 	include
other 	forms 	of 	economic benefit 	arising 	out 	of 	the 	employment
relationship. 	There 	is 	an 	inseparable 	nexus 	between 	an
employee's 	current 	compensation 	and 	his 	future 	economic 	welfare
and 	security.5 	Where 	deductions 	from wages 	are 	applied 	to
annuities, 	savings bonds, 	or 	other programs designed to enhance
the 	employee's current or 	future 	economic 	status, 	they become
an 	integral part of 	the 	compensation 	structure 	and 	are 	no 	less
a matter 	of 	employee-employer 	concern 	than 	is 	the 	basic 	wage
rate. 	That certain payroll deductions, 	at least, 	are a matter
of 	employer 	concern 	which 	do 	not 	interfere 	with 	lawful
5 We 	borrow 	liberally 	from Inland 	Steel Co. 	(1948) 	77 	NLRB
1 	[21 LRRM 1310] 	enforced 	(7th Cir., 	1948) 	170 F.2d 	247 	[22
LRRM 2506], 	cert, 	denied 	(1949) 	336 U.S. 	960 	[24 LRRM 2019].
13

management prerogatives 	is 	evident 	from the 	obligation 	imposed
by 	the 	very 	statute 	the 	District 	contends 	exempts 	it 	from 	the
bargaining 	requirement. 	As 	to that claim of 	exemption, 	we 	have
already 	responded 	in our 	general comments.
We 	find 	the District's 	reliance 	on Abood, 	supra 	to be-
misplaced. 	There, 	the 	court prohibited 	the 	use of 	union dues
for 	purposes 	unrelated 	to 	the 	organization's 	collective
bargaining 	and 	representational obligations 	on 	behalf 	of
government 	employees 	unless 	specifically 	authorized 	by 	the
membership. 	Here, 	of course, 	the proposal calls 	for deductions
directly 	from 	the 	employee's 	wages. 	No 	union dues 	are 	involved
and 	"appropriate 	written 	authorization" 	of 	the 	individual
employee 	is 	required, 	thus 	circumventing 	the 	evil which Abood
prohibits—involuntary 	employee 	contributions 	to 	noncollective
bargaining 	causes.
Nevertheless, 	this 	holding 	should not 	be construed as
finding 	that 	any 	or 	all payroll 	deductions must 	be 	negotiated.
The 	relationship of 	the 	deduction 	to an enumerated 	subject 	in
section 	3543.2 must 	be 	demonstrated. 	We 	find 	that
relationship, 	as 	indicated 	above, 	with respect 	to deductions
for 	annuities, 	savings bonds, 	and credit union accounts. 	We do
not 	see 	the 	same 	relationship 	in deductions 	for 	charitable
causes 	and, 	therefore, 	find 	this portion of 	the proposal 	to be
outside 	of 	the 	mandatory 	scope of 	bargaining. 	Since 	the
remaining portion of 	the proposal 	deals 	with 	"other 	plans 	and
14

programs 	jointly 	approved 	by 	the Association 	and 	the 	District,"
(emphasis 	added), 	we 	find 	this 	aspect also within scope. 	The
employer 	obviously 	need 	not 	agree 	to negotiate 	on 	such 	plans 	or
programs 	which 	fall 	outside 	the 	relationship 	test 	we 	have
established.6 	At 	a minimum, 	the District cannot 	refuse 	to
negotiate 	deductions 	for 	plans 	or 	programs 	without 	affording 	to
the Association 	the 	opportunity 	to demonstrate 	that 	such 	a
relationship does 	or 	will exist.
ARTICLE 	I V — 	NONDISCRIMINATION
This proposed 	article 	reads:
There 	shall 	be 	no discrimination by 	the
District 	against 	any 	Certificated 	Employee
on 	account 	of membership 	in or 	activity on
behalf of 	the Association, 	particularly as
this may relate 	to employment, 	retention or
dismissal. 	There 	shall be 	no discrimination
by 	the 	Association 	or 	the 	District 	against
any Certificated Employee, 	or 	Certificated
Employee 	applicant 	because of 	sex, 	sexual
orientation, 	physical disability, race,
color, creed, national origin, marital
status, or political affiliation.
This 	proposal 	logically 	and 	reasonably 	touches 	on 	virtually
all aspects of 	the 	employment 	relationship. 	The prohibition of
discrimination 	assures 	that 	wages 	will 	be 	paid 	on 	an 	equal
66 For 	examples of plans 	and 	programs 	on which 	the 	employer
is 	not obligated 	to bargain, 	see Carpenters' 	Local 	2265 	(1962)
136 NLRB 769 	[49 LRRM 1842], 	enforced 	(6th Cir., 	1963) 	317 F.2d
269 	[53 LRRM 2311]. 	Sheet Metal Workers Local 38 	(1977) 	231
NLRB 	699 	[96 	LRRM 1190]. 	These cases pertain to employer
contributions, 	but the principle 	is equally applicable 	here.
15

race, 	union activism, 	etc.; 	that 	transfers and 	reassignments
will be 	accomplished 	in an even-handed 	fashion; 	that
evaluations 	will 	not 	reflect 	non-job-related 	biases.
A work 	place 	free 	from discrimination 	is 	of 	fundamental
interest 	to 	employees 	as 	it may surely be 	assumed 	to be 	to
employers 	alike. 	Indeed, 	statutory obligations 	imposed on
employers 	in this 	regard 	emphasize 	the point. 	(See Education
Code sections 44100-44105, 	44830; 	42 U.S.C. 	2000e et seq., 	42
U.S.C. 	1981, 	1983). 	The negotiating process 	is well suited to
the 	airing 	and 	resolution of 	the parties' concerns 	on 	this
subject. 	A collective 	agreement 	may well provide 	through 	its
administration processes 	a 	convenient 	and 	inexpensive 	means 	of
resolving 	future 	related 	disputes.
Requiring 	negotiations on a proposal 	such 	as 	this 	is 	not
seen 	as 	abridging 	the 	District's 	"freedom to exercise 	those
managerial prerogatives 	essential 	to 	the 	achievement of 	the
District's mission," 	San Mateo, 	supra p. 	14. 	This proposal
requires 	the 	employer 	to do 	nothing 	it 	is 	not 	already obligated
to 	do 	under 	applicable 	law. 	The District's 	argument 	that 	the
proposal supersedes 	the Education Code 	is 	rejected. 	The
proposal does not conflict with that Code. 	We, 	therefore, 	find
the 	proposal within 	the 	scope 	of 	representation.
7 See Jubilee Mfg. 	(1973) 	202 NLRB 	272 	[82 LRRM 1482]
affirmed 	(DC Cir., 	1974) 	504 F.2d 271 	[87 LRRM 3168].
16

The Association proposed 	the 	following 	article:
ARTICLE VI—-PUBLIC 	CHARGES
1. 	In accepting 	the 	obligation 	to protect
academic 	freedom 	and 	to 	defend 	its
Certificated 	Employees 	from 	unjust
accusations, 	the District 	shall within
three 	(3) 	calendar 	days 	report any
public 	charge 	or 	complaint 	to the
Certificated 	Employee(s) 	involved.
2. 	Should 	the 	involved employee(s) 	believe
that 	the 	allegations 	in 	the 	complaint
are 	sufficiently 	serious 	to warrant 	a
meeting, 	the employer(s) 	shall schedule
such with 	the 	complainant. 	An
Association 	representative 	may 	be
present 	at 	such meeting.
3. 	If 	the matter 	is 	not 	resolved 	at 	the
meeting 	to 	the 	satisfaction of 	the
complainant, 	the 	complainant 	shall 	set
forth 	the 	complaint 	in writing 	within
five 	(5) 	calendar 	days, 	and submit such
to the Certificated Employee(s) 	involved
and 	the 	principal or 	immediate
supervisor. 	The Certificated
Employee(s) 	involved 	shall be 	given
compensated 	release 	time 	for 	the 	purpose
of 	initialing 	and 	dating 	the 	written
complaint 	and 	preparing 	a 	written
response. 	The 	response 	shall be
attached 	to 	the written complaint. 	If
no 	written 	complaint 	is 	received 	within
five 	(5) 	calendar 	days of 	the meeting
above, 	the matter 	shall be dropped.
4. 	The 	written 	complaint 	and 	attached
response 	shall be 	placed 	in 	a separate
complaint 	file, 	and not 	in the
Certificated 	Employee's 	personnel 	file.
If 	the Certificated 	Employee 	challenges
the 	allegations 	contained 	in 	the
complaint, 	a grievance may be 	initiated
in accordance 	with Article 	XXVIII 	of
this Agreement. 	A finding 	that 	such
allegations 	are 	untrue 	shall result 	in
the 	immediate 	destruction of 	all paper
17

work pertaining 	to the complaint. 	The
failure 	by 	a Certificated 	Employee 	to
file 	a grievance 	shall 	not 	be 	construed
as 	an 	admission 	that 	the 	allegations
contained 	in 	the 	complaint 	are 	true.
5. 	The 	District 	shall 	not 	take 	any adverse
action 	against 	a 	Certificated 	Employee
on 	the 	basis 	of 	allegations 	in a citizen
or 	parent 	complaint or 	finding of 	fact,
unless 	such 	constitutes 	cause 	in
accordance 	with 	this 	agreement 	or
applicable 	laws 	of 	the 	State of
California.
The 	District 	excepts 	to 	the 	hearing 	officer's 	finding 	that
this 	proposal 	was within 	the 	scope 	of 	negotiations 	for 	two
reasons: 	1) 	there 	was no evidence 	showing 	the 	relationship
between this proposal 	and an enumerated 	subject, 	and 	2) 	the
Education 	Code 	already 	covers 	the 	subject of 	how public 	charges
are 	to be 	handled 	and 	is, 	therefore, 	superseded 	in violation of
section 3540.
This 	proposal prescribes 	a method 	available 	to employees
for 	answering 	public 	complaints made 	to 	their 	employer 	about
their 	job performance 	and 	for 	dealing 	with 	the 	removal 	from
employees' 	personnel 	files 	of 	unjustified 	and 	derogatory
material. 	Section 	3543.3 	specifically 	authorizes 	negotiations
on 	"procedures 	to 	be 	used 	for 	the 	evaluation of
employees. 	. . . " 	The 	procedure 	proposed 	here 	can 	readily 	be
seen as 	bearing 	on 	an 	enumerated 	item. 	Since 	it may be 	safely
assumed 	that 	teacher 	evaluation 	procedures 	include 	a 	review of
complaints 	including 	file material pertinent 	to performance,
the 	general 	subject matter 	of 	the 	proposal 	seems 	well within
18

the 	range of 	negotiable 	aspects 	of 	such 	evaluation procedures.
In 	short, 	the 	proposal's 	relationship to evaluation procedures,
a 	specifically 	enumerated 	term 	and 	condition 	of 	employment,
brings 	it within 	the 	scope of mandatory negotiations.
However, 	we 	find 	certain 	aspects of 	the proposal 	fall
outside 	the 	contemplation 	of 	Section 	3543.2.
Paragraphs 	2 	and 	3 	purport 	to 	impose duties on 	third
parties 	who 	are 	strangers 	to 	the 	employment 	relationship. 	To
establish meetings 	with 	complainants 	and 	require 	them 	to 	set
forth 	a complaint 	in writing 	is 	beyond 	the 	legal power 	of 	the
employer 	to effectuate. 	However, 	this proposal 	is an
illustrative 	example 	of 	one 	which 	triggers 	a duty of 	the
employer 	to express 	its 	specific objections 	to 	the 	proposal 	and
explain 	the 	reasons 	therefor. 	Far 	from 	fashioning 	acceptable
proposals 	for 	the Association, 	this 	form of objection would
allow 	the 	employee 	organization 	to 	refine 	its 	own proposals 	and
bring 	them within 	the 	legal 	scope 	of 	bargaining.
The 	District's 	exceptions 	based 	on 	the 	alleged 	supersession
of 	the 	Education Code 	are 	dismissed 	in 	accordance 	with 	our
previous 	discussion. 	We 	find 	no 	conflict 	between 	the 	Education
Code 	sections 	cited 	by 	the 	District 	and 	the 	terms 	of 	this
proposal. 	By 	refusing 	to discuss 	any 	aspect of 	this 	proposal,
the District has violated section 3543.5 (c).
19
--------

ARTICLE VII—EMPLOYMENT 	CLASSIFICATIONS 	AND 	ASSIGNMENT
This 	proposed 	article 	reads:
1. 	The District 	and 	the Association
recognized 	that 	in 	providing 	continuity
of 	instruction 	the 	welfare 	of 	students
and 	Certificated 	Employees 	must 	be 	the
foremost 	factor 	of 	consideration 	in 	the
assignment 	and 	classification 	of
Certificated Employees. 	Moreover, 	there
shall 	be 	no 	unnecessary 	interruptions 	in
the 	continuity of 	instruction.
2. 	For 	purposes of 	this Agreement,
Certificated 	Employees 	shall 	be
classified 	as Regular 	Full-time, 	Regular
Part-Time, Temporary, or Home Teacher.
A. 	Regular 	Full-Time Certificated
Employee 	- 	A Certificated 	Employee
who 	is 	regularly employed 	to 	render
services 	on 	a predetermined 	basis
for 	thirty-five 	(35) 	hours per
week. 	A Regular 	Certificated
Employee 	shall 	accumulate 	and
receive 	all 	fringe 	benefits 	as
provided 	in 	this Agreement.
B. Regular 	Part-Time 	Certificated
Employee 	- 	A Certificated 	Employee
who 	is 	regularly employed 	to 	render
services 	on 	a 	predetermined 	basis
that 	is more 	than seventeen and
one-half 	(17.5) 	hours per week, 	but
less than thirty-five 	(35) 	hours. 	A
Regular 	Part-Time 	Certificated
Employee 	shall 	receive 	salary
prorated 	in 	ratio 	to number 	of 	hours
worked 	as 	compared 	to 	a Regular
Full-Time 	Employee 	and 	shall
accumulate 	and 	receive 	all 	fringe
benefits 	as provided 	in 	the
Agreement.
C. 	Other 	Part-Time 	Certificated
Employee 	- A Certificated 	Employee
rendering 	less 	than 	seventeen 	and
one-half 	(17.5) 	hours of 	service on
a 	predetermined 	basis 	per 	week,
20

shall 	receive 	salary 	and 	fringe
benefits 	prorated 	in 	ratio 	to 	the
number 	of 	hours 	worked 	as 	compared
to 	a Regular 	Full-Time 	Certificated
Employee.
D. 	Temporary Certificated 	Employee 	- 	A
Certificated 	Employee 	who 	is
regularly 	employed 	to 	render
services 	on 	a 	predetermined 	basis
for 	one 	(1) 	school term plus one 	(1)
day 	in 	the position of 	a Regular
Certificated 	Employee 	absent 	from
service. 	A Temporary Certificated
Employee 	shall 	accumulate 	and
receive 	all 	fringe 	benefits 	as
provided 	in this Agreement, 	which 	in
the 	instance 	of 	reclassification
shall 	be 	retroactive 	to 	the 	first
day of 	continuous 	assignment.
1. 	Sections 	13336 	through 	13337.3
of 	the 	Education Code 	are
incorporated 	herein 	and
supplemented 	as 	follows:
2. 	In 	filing positions 	for 	the
ensuing school year, 	the
District 	shall 	not 	consider
applicants 	for 	employment 	unless
there 	are 	no Certificated
Employees 	who 	served 	as
temporary 	Certificated 	Employees
the 	preceding 	school year 	who
are 	credentialed 	and 	willing 	to
fill 	such positions.
3. 	In choosing 	among properly
credentialed 	temporary
Certificated 	Employees 	who 	have
applied 	to 	fill 	a position 	for
the 	ensuing 	school year, 	the
District 	shall 	use 	the 	following
criteria:
4. 	Length of 	service 	the preceding
school year 	- e.g., 	a
Certificated 	Employee 	who 	served
21

the 	full 	school year 	shall be
given 	preference 	over 	a
Certificated 	Employee 	who 	served
one 	school 	semester.
5. 	If two 	(2) 	Certificated
Employees 	have 	served 	the 	same
length of 	time 	the 	preceding
school year, 	the Certificated
Employee 	with 	the 	longer 	service
to the District, 	including
substitute service, 	shall be
selected.
6. 	"In a position", 	as 	that phrase
appears 	in Sections 	13336
through 	13337.3 	of 	the 	Education
Code, 	means 	"any position which
the 	temporary 	Certificated
Employee 	filled 	the 	preceding
school year.
E. 	Home Teacher 	- 	A Certificated
Employee 	who 	is 	regularly employed
to 	render 	services 	on 	an
availability 	or 	predetermined 	basis
in the 	home of pupils. 	Certificated
Employees 	so 	classified 	shall
accumulate 	and 	receive 	all 	fringe
benefits 	prorated 	in 	ratio 	to 	the
number 	of 	hours 	worked 	as 	compared
to 	a Regular 	Full-Time 	Certificated
Employee. 	Time 	spent 	in rendering
services 	to 	the 	District 	shall
include, 	for 	computational purposes,
conferencing with parents, 	classroom
teachers, 	travel, and relief periods.
F. 	Certificated 	Employees 	shall 	not 	be
assigned 	to 	positions 	requiring
qualifications, training, and
experience 	other 	than 	is 	currently
held 	by 	a Certificated 	Employee.
By 	establishing 	a 	classification 	system which 	determines
which 	employees 	will 	receive 	specified 	fringe 	benefits 	and
establishes 	rates 	of pay, 	this Article 	clearly 	relates 	to wages
22

and 	health 	and 	welfare 	benefits.8 	The 	subject 	of 	the
proposal must 	be 	negotiated.
In 	its 	exceptions, 	the District points 	to several Education
Code 	sections 	which 	allegedly 	supersede 	this 	proposed
classification 	scheme. 	We 	have 	considered 	all 	of 	the 	Education
Code 	sections 	cited 	by 	the 	District 	and 	find 	that 	the 	proposals
do 	not 	conflict with 	the 	Education Code 	sections.
Some of 	the proposals 	seek 	to create 	benefits 	greater 	than
the 	statute 	provides. 	For 	example, 	section 2.B. 	of Article
VII, 	classifies 	a part-time employee as one who works more 	than
17.5 	hours/week 	but 	less 	than 	35 	hours. 	Education Code 	section
13503.1 	(now 	section 	45025) 	provides 	that a 	teacher 	who works
less 	than 	a minimum day may contract 	with 	the 	district 	to 	be
classified 	as 	a part 	time 	teacher. 	"Minimum day," 	as 	defined
in 	the 	statute, 	amounts 	to approximately 19.2 hours per week 	in
elementary schools 	and 	20 	hours per 	week 	in high schools. 	This
proposal 	seeks 	to 	accomplish 	two 	things. 	It 	lowers 	the 	number
of 	hours 	per 	week 	which 	render 	teachers 	eligible 	to 	be
classified 	as part-time employees, 	and 	it addresses 	a class of
employees 	not 	covered 	by 	the 	statute—those 	who 	work more 	than
a 	"minimum day" 	or 	week, 	but 	less 	than 	full 	time. 	There 	is no
conflict 	between 	this proposal 	and 	the 	statute, 	as 	the 	statute
8 Although 	"fringe 	benefits" 	as 	used 	in this proposal 	is
not defined, 	we presume, 	because of 	its 	traditional meaning 	in
the private 	sector, 	that 	it 	includes 	health and welfare
benefits 	as 	defined 	in Education Code 	section 	53200.
23

does 	not 	require 	the district 	to perform any act different 	from
what 	is 	contemplated 	in the 	proposal. 	Therefore, 	the District
is 	not 	relieved of 	its 	obligation 	to 	negotiate 	section 	2.B.
By 	the 	same 	token, 	the District's 	supersession 	argument
against 	the 	negotiability of 	section 	2.D. 	is 	without merit.
Education Code 	sections 	44918, 	44919 	and 	44921 	all prescribe
certain rights of 	temporary employees. 	For 	example, 	Education
Code 	section 	44918 provides 	one 	year 	of 	credit 	as 	a
probationary employee 	to a 	temporary employee 	who 	has 	served
for 	at 	least 	75 percent 	of 	the days 	in which 	schools 	are open
and who 	is 	hired as a probationary 	for 	the 	following year.
Education Code 	section 	44919 	requires 	the 	District 	to classify
as 	temporary 	those 	employees 	hired 	to 	teach 	temporary 	classes
not 	to 	be 	held 	after 	the 	first 	three 	school months. 	Section
44921 allows 	the District 	to hire, 	and 	classify as 	temporary,
employees 	assigned 	to 	teach 	for 	the 	first 	semester 	only due 	to
reduction 	in 	enrollment. 	We 	find 	nothing 	in 	section 	2.D. 	that
conflicts 	with any of 	these provisions. 	Rather, 	the proposal's
definition 	supplements 	the 	statutory 	rights 	of 	temporary
employees.
Section 	2.D.(1) 	poses 	a different 	problem. 	Substitute
employees 	were 	specifically excluded 	from 	the 	unit 	agreed 	to 	by
the parties.9 The District, 	therefore, 	is not obligated 	to
9 The 	PERB 	certification 	of 	election 	describes 	the 	unit
for 	which 	the Association was 	certified 	as 	follows:
24

bargain 	with 	the 	JCTA over 	proposals 	which 	affect 	the 	interests
of employees outside 	the 	unit represented by JCTA. 	But, 	it
must 	negotiate 	to 	the 	extent 	that 	the 	proposed 	section 	2.D(1)
concerns 	temporary and 	other 	unit 	employees.
Sections 	2.D.(2) 	through 	(6) 	outline a procedure 	for
filling 	positions 	for 	the 	ensuing 	school year 	and 	essentially
give 	re-employment 	rights 	to 	employees 	who were 	temporaries
with 	the District during 	the 	previous year. 	Because 	the
question 	of 	re-employment 	necessarily 	involves 	future
entitlement 	to wages 	and 	benefits 	and 	affects 	hours 	worked 	by
bargaining 	unit 	teachers 	who 	are 	re-employed, 	these 	sections
are within scope.
All 	certified 	employees 	excluding 	substitute
teachers, managerial employees, supervisory
employees, 	confidential employees as
described 	in 	the Act. 	The 	following
positions 	are 	specifically 	excluded:
district 	superintendent, 	assistant
superintendent 	administrative 	services,
assistant 	superintendent 	educational
services, 	director 	of certified personnel
and administrative 	services, 	director 	of
food 	services, 	director 	of ESAA project,
coordinator 	of special programs, 	special
services, principal, assistant principal,
special services, principal, assistant
principal, 	director of maintenance
operations and 	transportation, 	school
psychologists, 	director 	of research 	and
evaluation, 	head music 	teacher, 	head social
studies 	teacher-ESAA, 	head 	reading 	and 	math
teacher-ESAA, 	head 	guidance 	specialist-ESAA,
head 	bilingual 	teacher.
25

2.E., 	concerning home 	teachers, 	directly relates 	to 	the
hours 	and 	benefits of 	those 	employees 	in 	that 	it defines what
activities will be deemed working 	hours 	for 	the purpose of
compensation 	and 	it prescribes 	the 	method of 	benefit 	accrual.
This proposal 	does 	not conflict with 	any portion of 	the
Education Code and, 	therefore, 	must be negotiated.
2.F. 	presumably 	seeks 	to assure 	that 	teachers 	will 	not be
assigned 	to work 	which 	requires 	training 	qualifications 	or
experience 	other 	than 	that 	required 	of 	a 	certificated
employee. 	As 	such, 	it proposes an aspect of a
transfer/reassignment policy 	and 	is within 	scope.
ARTICLE 	VIII—COMPENSATION
The 	disputed 	sections 	of 	this 	proposed 	article 	read:
2. 	D. 	Substitute 	and 	Temporary
Certificated 	Employees 	who 	are
reassigned 	as 	Regular 	Certificated
Employees will be given one 	(1)
year 	credit 	for 	previous 	experience
on 	the 	salary 	schedule 	for 	each
nine 	(9) 	months service 	in the
School 	System providing 	that 	such
Certificated 	Employees 	must 	have
worked 	at 	least 75% of 	the 	school
days 	in any previous year
considered 	for 	credit.
15. 	Payday - 	The 	regular 	payday for
Certificated 	Employees 	shall be 	the
last 	working 	day of 	every month.
Moreover, 	warrants 	shall be 	available
at 	the 	site where 	a Certificated
Employee 	is performing 	services on 	the
last 	working 	day of 	the 	month.
17. 	Notification - Certificated 	Employees
shall be 	notified 	by October 	15 of 	each
26

year, 	their 	position on 	the salary
schedule 	and 	their 	annual 	salary.
The District 	argues 	that 	section 	2.D. 	above 	is 	related 	not
to any enumerated 	item, 	but 	to permanent employment, 	a
management prerogative. 	Such 	an 	assertion 	reveals 	a 	basic
misunderstanding 	of 	the 	proposal which does 	not 	dictate 	to 	the
District whom 	it 	can or 	cannot hire. 	This proposal merely 	sets
forth 	a crediting 	system related 	to pay 	and 	benefits 	very
similar 	to 	that 	contained 	in 	Education Code 	section 	44920,
which 	specifies 	credit 	for 	previous 	experience 	in 	the 	event
substitutes 	and 	temporary employees 	are 	hired 	as 	regular
full-time 	teachers. 	This proposal, 	which calls 	for 	increased
benefits 	and wages 	based on previous 	experience, 	is 	clearly
within scope.
Because 	the 	scheduling 	of payday 	is 	addressed 	in Education
Code 	section 45048, 	the District 	argues 	that paragraph 	15 of
Article VIII 	is non-negotiable. 	That 	statute, 	along with
section 45038, 	gives 	the 	District discretion 	to establish pay
periods on a monthly, 	bi-weekly, 	or weekly basis and
establishes 	time 	periods 	within which 	warrants must 	be
distributed. 	Nothing 	in 	the proposal contravenes 	the
requirements of 	the 	statute. 	On 	the contrary, 	the 	statutory
discretion 	as 	to 	frequency of pay periods 	vested 	in 	the
District points 	to 	the proposal's 	negotiability, 	provided 	the
subject 	is 	related 	to 	an 	enumerated 	item. 	That 	when 	and 	how
27

often 	employees 	are paid 	relates 	to wages 	seems 	hardly
debatable.
The 	proposal contained 	in paragraph 	17—Notification,
merely 	seeks 	to 	have 	the 	employer 	notify employees 	of 	their 	new
wage 	rates 	and 	schedules. 	The proposal's 	relationship 	to wages
is obvious, 	and we can discern no 	interference with 	the
employer's basic managerial prerogative. 	To 	the contrary, 	the
proposal 	is 	in 	harmony with 	the 	statutory purpose of 	improving
personnel management 	and 	employer-employee 	relations.
ARTICLE 	X 	— 	WORKING 	CONDITIONS
The 	disputed 	portions 	of 	this 	article 	read:
1. 	Each 	Certificated 	Employee 	shall 	be
provided 	with 	a 	classroom 	appropriate
to their 	(sic) 	teaching assignment.
4. 	Building 	administrators 	shall consult
with 	their 	Certificated 	Employees
regarding 	the 	scheduling of classes,
assignments, 	faculty meeting 	agenda and
time, pupil attendance accounting, 	and
other 	educational matters 	that 	are
decided 	on 	an 	individual 	school basis.
8. 	All Certificated 	Employees 	shall
request 	the 	supplies 	necessary 	to
implement 	the 	program 	through 	their
immediate 	supervisor. 	Supplies will be
provided 	in a 	timely manner 	so as 	not
to cause 	a disruption 	in 	the
educational process 	of 	the 	classroom
teachers.
10. 	Adjunct duties may 	be defined 	as 	those
assigned 	and mutually 	agreed 	upon
responsibilities 	performed 	during 	the
course of 	the 	regular 	work 	day 	but
outside 	the 	classroom. 	A fair 	and
equitable 	rotation 	of 	adjunct 	duties
will 	be 	assigned 	at 	the 	beginning 	of
the 	school year.
28

12. 	Certificated Employees who are 	not
assigned 	a 	single 	classroom shall 	have
a 	central 	location 	where 	material,
equipment, 	secure storage, 	desk and
filing 	cabinet 	will 	be 	provided.
The 	District 	refused 	to 	bargain on 	this 	entire 	proposal
because 	it 	claimed 	that 	it 	was 	only 	indirectly 	related 	to any
enumerated 	subject 	and 	because 	it 	allegedly 	interfered 	with
certain management 	prerogatives.
The 	claim of 	indirectness 	is 	not 	determinative 	of 	the
negotiability of 	this proposal. 	Rather, 	the 	test 	is whether
the 	proposal 	logically 	and 	reasonably 	related 	to 	an 	enumerated
item. 	We 	find 	such a 	relationship 	arguably present 	in 	this
article.
In Paragraph 	lf 	the 	relationship 	between 	the 	physical
dimension of 	a 	classroom 	and 	the 	size 	of 	the 	class 	itself 	(the
number 	of 	students) 	appears 	to 	be 	established 	by 	the 	phrase
"appropriate 	to 	their 	teaching 	assignment." 	The 	dependence 	of
physical 	size 	on 	the 	number 	of 	students 	in the 	class 	is
self-evident. 	It 	is 	not 	unreasonable 	to assume 	that the
teacher's 	ability 	to 	provide 	effective 	instruction may 	be
impaired 	by 	crowded 	classroom conditions 	that 	can 	lead 	to
disruptions, 	loss of attention, pupil discontent, 	or other
conditions 	concerned 	with 	the 	adverse 	to 	an appropriate
educational atmosphere. 	It 	is 	also 	reasonable 	to assume 	that
school 	administration 	would 	be 	equally 	concerned. 	It 	can 	be
acknowledged 	that 	optimal 	facilities 	are 	not 	always 	available.
29

However, 	the 	employer 	response 	to proposals of 	this 	sort 	is 	the
means 	by which 	it can deal with 	such 	limitations. 	We 	see
nothing 	in 	this proposal 	itself 	which 	interferes 	with 	the
employer's 	freedom 	to 	achieve 	the 	particular 	mission with 	which
it 	is charged.
The 	District objects 	to 	the 	negotiability of paragraph 	4
above, 	on 	the grounds 	that 	it usurps management's 	right 	to
allocate 	and 	assign duties during 	the 	course 	of 	the working
day. 	This 	objection may have merit 	if 	the effect of 	the
proposal 	would 	be 	limited 	only 	to 	class 	assignments 	during
working hours. 	But, 	on 	its face, 	this paragraph speaks 	inter
alia 	to 	"faculty meeting 	agenda 	and 	time, 	pupil 	attendance
accounting 	. . . " 	These 	items might 	relate, 	for 	example, 	to
the overtime 	teachers 	are 	required 	to put 	in when 	attending
faculty 	meetings 	occurring 	beyond 	the 	regular 	working 	day,
hours 	of 	teaching 	time, 	and 	the overall workday. 	Similarly,
the 	scheduling of 	pupil 	attendance 	accounting 	may 	very 	well
impact on 	teachers' 	preparation 	requirement or 	rest 	breaks 	and,
thus, 	increase 	their working hours.
Consulting 	with 	employees 	on 	the 	scheduling 	of 	duties 	which
may affect 	their 	hours of 	employment, 	frequency 	and 	duration of
overtime, 	etc., 	will not 	interfere with or abridge 	significant
managerial prerogatives. 	The procedural 	nature of 	this
proposal 	does 	not 	prevent 	the 	District 	from conducting 	faculty
meetings 	or 	assigning 	the 	task of pupil 	attendance 	accounting
30

to 	the 	bargaining 	unit. 	It merely 	requires discussion 	over 	the
scheduling 	of 	those 	events.
To 	the 	extent 	that 	this paragraph does 	relate 	to 	the 	hours
worked by 	the bargaining 	unit, 	it must be negotiated.
The 	requirement 	that 	teachers 	be 	consulted 	on 	"other
educational matters 	that 	are 	decided 	on 	an 	individual 	school
basis" 	we 	find 	to be 	a mandatory 	subject of bargaining 	as
well. 	Although 	the 	actual 	substance of 	educational matters
need 	not 	be negotiated, 	the procedures 	for 	consultation must
be. 	The 	right of 	consultation 	is 	guaranteed 	in 	section 3543.2
ante p. 	4. 	Since 	this proposal 	seeks only 	to establish 	the
mechanism 	for 	implementing 	that 	right, 	the proposal conforms 	to
the mandates 	of 	section 	3543.2, 	and 	the employer 	may not 	refuse
to bargain over 	this proposal.
Although 	employees 	have 	an 	understandable 	interest 	in
obtaining 	supplies 	in 	an efficient 	and 	timely manner, 	the
proposal contained 	in 	Paragraph 	8 	does 	not meet 	the 	threshold
test of 	negotiability; 	it 	is 	not 	logically and 	reasonably
related 	to an enumerated 	subject. 	The Association and 	the
hearing 	officer 	relate 	the 	proposal 	to evaluations 	on 	the
theory 	that 	teachers 1 job 	performance 	(and 	necessarily,
evaluations) 	would 	be 	adversely affected 	by 	the 	absence 	of
supplies. 	Granted, 	this may be so, 	but 	the relationship 	is 	too
speculative 	and 	attenuated. 	Using 	this 	theory, 	every aspect of
a 	teachers' 	working 	life would 	be 	related 	to evaluations, 	as
the performance 	or 	nonperformance of 	various 	tasks 	could
31

conceivably affect 	evaluations 	of performance. 	We 	do 	not
believe 	that 	the 	Legislature, 	in mandating 	that 	"matters
relating 	to 	. . . 	procedures 	to 	be 	used 	for 	the 	evaluation of
employees 	. 	. 	. " b e negotiated, 	intended such a broad
interpretation 	as 	is 	urged 	by 	the 	Association.
The District complains 	that 	the proposal 	in Paragraph 	10
intrudes 	on 	the managerial 	right 	to 	assign duties 	during 	the
course of 	the day. 	In 	so doing, 	it 	ignores 	the distinction
between 	"working 	day" 	and 	"working 	time."10 	The 	former
refers 	to 	the 	hours 	during which 	employees 	are 	required 	to be
on 	the 	employer's 	premises 	and 	may 	include 	time 	during 	which
they 	are 	not 	actually performing 	duties. 	The 	latter 	refers 	to
the 	actual 	time 	engaged 	in performing 	duties 	required 	by 	the
job. 	For 	example, 	it does not 	include time spent at breaks and
lunch.
It 	is 	not 	clear 	from the proposal 	itself or 	the 	record
precisely 	what 	duties 	would 	be 	included 	within 	the 	ambit 	of
"adjunct 	duties," 	although 	by 	the 	proposed 	definition 	they
would 	not 	be performed on overtime. 	The duties 	are 	those
performed 	during 	the 	course 	of 	the 	regular 	workday. 	There 	is
some 	indication 	from 	the 	District's 	witness 	that 	adjunct 	duties
could 	include 	committee 	work done 	by 	teachers. 	Presumably,
10FO r 	a discussion of 	this 	distinction 	in 	the private
sector, 	see Essex International, 	Inc. 	(1974) 	211 NLRB 749 	[86
LRRM 	1411].
32

the 	term may also 	encompass 	duties 	that 	not 	every 	teacher 	is
required 	to perform and/or 	duties 	that 	teachers 	performed
during their 	rest periods, 	lunch or 	breaks, 	or preparation
periods. 	To this extent, 	adjunct duties may very well 	impinge
on 	teachers' 	ability to engage 	in other activities, 	both duty
and non-duty, 	thus affecting 	their 	working 	hours. 	For 	this
reason, 	the proposal 	is 	logically and 	reasonably 	related 	to
hours.11
The 	interest 	which 	employees 	have 	in 	a 	fair 	rotation of
duties 	as 	a method of 	assignment of 	tasks 	is obvious.12
Under 	the 	terms of 	this proposal, 	the 	burden of working during
free 	time 	or 	preparation periods 	is 	spread 	evenly 	throughout
the 	bargaining 	unit. 	No 	single 	teacher 	will be 	forced 	to work
longer 	hours 	than 	any other.
On 	the other 	hand, 	duty 	rotation does 	not 	illegally
interfere 	with 	the 	employer's 	legitimate 	interest 	in 	seeing
that 	the work gets done, 	for 	this proposal does 	not prevent 	the
District 	from assigning work 	to 	the 	bargaining 	unit. 	The
proposal is, therefore, negotiable.
For 	the 	reasons 	articulated 	in 	the discussion 	of 	Article 	X,
paragraph 8, 	paragraph 12, 	as written, 	is beyond the scope of
representation.
11 San_Mateo, supra.
1 2 See Central Cartage, 	Inc. 	(1978) 	236 NLRB 1232 	[98 LRRM
1554]; 	American Cyanamid Co. 	(1970) 	185 NLRB 981 	[76 LRRM 1480] •
33

ARTICLE 	XI 	— 	HOURS 	OF 	WORK
The 	disputed 	sections 	of 	this 	proposed 	article 	read:
1. 	Daily school 	sessions 	shall be published
by 	the District prior 	to 	the
commencement of 	the 	school year. 	The
proposed 	schedule 	of 	daily 	school
sessions 	shall be 	forwarded 	to 	the
association 	as 	soon 	as possible 	before
the 	1st 	day of 	school. 	These daily
schedules 	shall be 	mutually 	agreed 	upon
by 	the principal 	and 	faculty.
5. 	The 	time 	for 	regularly 	scheduled 	faculty
meetings 	will be mutually 	agreed 	upon 	by
the 	Certificated 	Employees 	and 	their
immediate 	supervisors. 	Grade 	level
meetings, 	department chairman meetings
and 	other 	faculty meetings 	shall 	not
exceed 	four 	(4) 	hours per month 	beyond
the 	normal 	teaching 	day 	unless 	mutually
agreed 	upon.
6. 	Yard duty 	schedules 	shall be mutually
agreed 	upon 	by 	the 	principal 	and 	faculty.
7. 	Preparation Time 	- Classroom teachers
shall, 	in addition to their 	lunch
period, 	have daily preparation 	time
during which 	they 	shall 	not 	be 	assigned
to 	any other 	duties 	as 	follows:
K-3 	teachers 	- one 	(1) 	hour 	within 	the
school day.
4-6 	teachers 	- one 	(1) 	hour within 	the
school day.
7-8 	teachers 	- two 	(2) 	hours within the
school day.
A. 	Teachers 	shall utilize 	their
preparation 	period 	for 	the
development 	of 	lesson plans 	and 	such
other 	activities 	as 	relate 	directly
to 	the 	improvement 	of 	instruction.
34

B. 	Teachers 	who 	find 	it 	necessary 	to
leave 	the 	school building 	during
their 	preparation 	period 	to 	obtain
materials, etc., 	for classroom
presentations 	must 	first 	notify
their 	immediate 	supervisor. 	If 	the
immediate 	supervisor 	is 	not
available, 	notification will be made
with 	the 	designated 	alternate.
9. 	Ten 	(10) 	staff development days per
school year 	will be 	allowed 	and
encouraged 	for 	staff 	development
training. 	The 	following 	times will be
followed:
Grades 	1-3 	1150 	minutes 	per
week
Grades 	4-8 	1200 	minutes 	per
week
Additional 	staff 	development 	days 	up 	to
one 	per 	week may be 	scheduled. 	However,
the minimum 	instructional 	time 	shall be
1200 minutes 	per 	week 	for 	grades 	1-3 	and
1400 minutes 	for 	grades 	4-8, 	exclusive
of 	recesses 	and 	lunch 	periods.
Exceptions 	to 	this policy will be: 	The
one 	week 	of 	minimum days 	scheduled 	in
the 	fall 	and 	spring 	semester 	for 	parent
conferencing. 	During 	these 	two 	(2)
weeks 	the 	following 	state minimums 	will
be 	followed:
Grades 	1-3 	1150 minutes
Grades 	4-6 	1200 	minutes
13. 	The 	instructional 	time 	for children 	in
Special 	Education 	shall be 	in 	accordance
with 	the 	State 	Education Code.
The District 	claims 	that 	these 	proposals 	are 	outside 	the
scope 	of 	bargaining 	because 	they 	intrude 	on 	the 	legitimate
entrepreneurial 	rights of 	the District. 	This 	is 	especially
35

true, 	the 	District 	claims, 	with 	regard 	to paragraph 	7—
Preparation Time, which, 	it asserts, 	relates only to the
allocation of 	duties 	during 	the 	regular 	working 	day.
We 	find 	that 	paragraph 	1 	is 	related 	to hours 	in 	the 	same
way 	that 	article VIII, 	paragraph 	17 	is 	related 	to wages,
(supra, 	p. 	27) 	Employees have 	a fundamental right to be
informed of 	the 	hours 	which 	they 	are 	expected 	to work. 	The
proposal does 	not 	define 	"daily 	school sessions." 	To 	the
extent 	the 	term embraces 	the 	numbers of 	hours 	the 	teachers 	are
required 	to 	be 	present—the 	hours 	between 	starting 	and 	quitting
time—the 	requirement 	that 	it 	be mutually 	agreed 	upon 	is 	within
scope 	and 	must 	be 	negotiated.13
The 	general 	subject of paragraph 	5 	relates 	to hours of work
because 	it 	touches on 	the amount of 	overtime 	employees may be
required 	to work. 	Faculty meetings may 	be 	scheduled outside
the 	regular 	teaching day. 	If 	they are 	scheduled 	then, 	the
limitation on 	the 	number 	of 	hours 	of 	faculty meetings 	per 	month
is 	nothing 	more 	than 	an 	attempt 	by employees 	to 	negotiate 	the
number 	of 	hours 	they 	work 	during 	a month. 	The 	scheduling 	of
the meetings 	is 	also an appropriate 	subject 	for 	bargaining, 	as
13Amalgamated Meatcutters v. 	Jewel Tea Co. 	(1965) 	381
U.S. 	676 	[59 LRRM 2376J; 	Palos Verdes PeninsHIa Unified 	School
District/Pleasant Valley School District, 	(7-16-79) 	PERB
Decision No. 	96.
36

it 	is 	determinative of 	whether 	these 	requirements 	fall within
overtime and, 	if so, 	when the overtime hours of work occur.
Yard 	duty 	schedules 	relate 	to 	hours 	because 	yard 	duty may
fall during 	the duty-free periods of 	teachers, 	thereby
increasing 	their 	working 	time. 	Even 	if 	this 	task were 	not
performed 	during duty-free periods, 	the proposal 	impacts on
hours 	that 	teachers 	are 	required 	to work.
Because 	the Association does 	not 	attempt 	to preclude 	the
District's 	right 	to 	assign 	the 	task of yard 	duty 	to 	the
bargaining 	unit, 	but merely 	seeks 	to bargain over 	the method of
work 	assignment, 	this proposal does 	not 	intrude on 	any
significant 	managerial 	prerogatives.14
The 	issue 	of preparation 	time 	has 	been 	addressed 	in 	San
Mateo City School District 	(5/20/80) 	PERB Decision No. 	129,
where 	we 	found 	that 	the 	employer 	had 	violated 	section 	3543.5(c)
by 	unilaterally 	reducing 	the 	amount 	of 	preparation 	time
available 	to 	the 	teachers. 	By 	reducing preparation periods,
the 	employer 	lengthened 	the 	working 	day 	because 	the 	requirement
that 	teachers prepare 	was 	not 	altered 	and 	the 	reduction
impinged on nonduty time. 	The 	change 	in preparation 	time was,
thus, 	a matter 	within 	scope 	because 	it 	affected 	hours of work.
l4	14West	west 	Orange, New Jersey PERC. 	4 NJPER 4136 	(1978); 	see
also Central Cartage 	(1978) 	236 NLRB 1232 	[98 LRRM 1554]
holding 	that 	the 	employer's 	unilateral 	change 	instituting 	set
job descriptions 	for 	employees who 	rotated 	their 	jobs
previously was 	bad 	faith 	bargaining.
37

Though 	the 	San Mateo 	employer 	claimed 	that 	the 	change 	in
preparation 	time 	merely 	constituted 	a 	reshuffling 	of
assignments 	within 	the 	regular 	workday, 	the 	Board 	answered:
"Had 	the 	District's 	actions 	not 	impinged on 	the 	employees'
personal 	time, 	both during 	and outside 	the working day, 	that
argument 	might 	be 	given 	greater 	consideration here." 	(San
Mateo p. 17).
Here, 	the District claims 	that 	the preparation 	time
proposal 	interferes 	with 	its 	ability 	to 	assign duties 	within
the 	regular 	working 	hours.
By proposing 	that 	teachers 	be 	given 	time 	off 	from 	their
regularly 	assigned 	duties 	for 	the 	purpose of preparation, 	the
Association 	seeks 	to 	shorten 	the 	duty day 	in order 	to perform
work-related 	activities. 	The 	time 	spent 	during 	the 	normal
workday 	preparing 	for 	class 	may 	represent 	time 	that 	employees
will not 	spend 	at 	other 	duties. 	The proposal clearly 	relates
to 	hours.15 	Consequently, 	the 	JCTA's 	proposal on 	preparation
time 	is within 	scope 	and must be 	negotiated. 	The District's
expressed 	concerns 	can 	be 	accommodated 	through 	its 	response 	to
the proposals.
15 In Palos 	Verdes/Pleasant 	Valley 	supra., 	PERB held 	that
the 	length of 	the 	teachers' 	instructional day 	is 	negotiable.
See also Camp & McInnis, Inc. 	(1952) 	100 NLRB 524 	[30 	LRRM
1310]; Weston and Brooker Co. 	(1965) 	154 NLRB 	747 	[60 LRRM
1015].
38

Paragraph 	9 	seems 	to propose 	employees 1 release 	from normal
working 	day obligations 	for 	the 	purpose 	of pursuing 	job-related
training 	and 	development. 	The 	proposal 	does 	not 	indicate 	where
or 	how or 	for 	whom 	the 	training would 	be provided or 	what 	pay
considerations may be 	involved. 	To 	the 	extent 	the 	proposal 	is
manifest, 	it calls 	for 	a reduction 	in 	the number 	of hours of
work 	for 	the 	purpose 	stated. 	Whether 	the 	purpose 	behind 	the
request 	for 	reduction of hours 	or 	the 	pay consequences 	that may
result 	is 	acceptable 	to 	the employer 	or 	not, 	the 	negotiations
process 	is 	the 	proper 	vehicle 	for 	the 	expression of
management's 	point of 	view. 	But 	the 	subject of 	reduction of
working 	hours 	is 	certainly within 	the 	scope of 	representation,
and 	the 	District 	is 	obligated 	to 	respond 	to 	the 	Association's
proposal.16
Paragraph 	13 	is not negotiable. 	As we pointed out 	in Palos
Verdes/Pleasant 	Valley,17 	teacher 	instructional 	time 	and
pupil 	instruction 	time 	are 	not 	necessarily 	the 	same. 	The 	time
that 	students 	spend 	receiving 	instruction 	is 	not 	related 	to an
enumerated 	subject 	in a manner 	which 	brings 	the 	subject 	into
the 	field 	of mandatory negotiation. 	The 	determination of 	the
time 	students 	will spend 	in 	instructional activities 	is 	a
16palos Verdes/Pleasant Valley, supra; 	San Mateo, 	supra.
17 Palos Verdes/Pleasant Valley, 	supra.
39
----·

matter 	of 	educational policy 	fundamental 	to 	the 	mission of 	the
District 	and 	left 	to managerial 	prerogative.
ARTICLE 	XIV -- SCHOOL CALENDAR
3. 	School Year 	Calendar 	-
A. 	There 	is 	to be 	established 	a Joint
District 	and 	Association Calendar
Committee 	consisting 	of 	the
Bargaining 	Team 	and 	the 	District's
agent.
B. 	The 	purpose of 	such Joint Committee
is 	to develop and prepare 	a 	School
Calendar. 	Such 	task 	shall be
undertaken 	and 	completed 	no 	later
than May 	15 	of 	the 	school year
preceeding 	[sic] 	the 	effective 	dates
of 	such calendar.
C. 	The Calendar 	for 	the 	school year
covered 	by 	this Agreement 	shall be
that Calendar 	as 	set 	forth 	in
Appendix B, 	attached 	to and
incorporated 	herein.
Appendix 	B 	to 	the 	proposed contract, 	which 	is 	referred 	to
in 	paragraph 	3.C above, 	sets 	the 	total number 	of 	teaching 	days
at 	175 	and 	lists 	the 	various 	school holidays during 	the year.
Despite 	the District's 	claim that 	the 	school calendar 	is 	a
matter 	which 	impacts 	primarily on 	the 	public 	and 	should,
therefore, 	be nonnegotiable, we 	find 	that 	its 	relation to hours
is 	indisputable.18 	AS 	the Board 	pointed out 	in 	Palos
Verdes/Pleasant Valley, 	supra, 	the days 	and hours per day 	that
schools 	are 	open 	for 	instruction do not 	always 	coincide 	with
18 Palos Verdes/Pleasant Valley, 	supra.
40

days or 	hours 	that 	teachers are 	required 	to work, 	but 	there 	is
a 	sufficient 	nexus 	between 	the 	calendar 	(the 	beginning 	and
ending 	dates 	of 	the 	school year, 	the 	scheduling 	and 	duration of
holidays, 	etc.) 	and 	the hours of employment 	to render 	the
calendar 	a 	negotiable 	subject.
However, 	to the extent 	that 	this proposal attempts 	to
determine 	the 	hours of 	instruction 	students 	receive, 	as
contrasted with 	the hours 	that 	teachers 	teach, 	it 	intrudes on
an 	area of 	educational policy 	that 	interferes 	with 	the
District's 	freedom 	to 	fulfill 	its 	obligation 	to achieve 	its
basic mission. 	To that extent, 	the District 	is 	not 	required 	to
negotiate 	on 	the 	matter.19
ARTICLE 	XV 	— 	SUMMER 	SCHOOL
6. 	Districtwide 	special programs 	for
Summer 	School 	will be 	defined 	as 	any
program unique 	to 	the District 	and 	not
offered 	in 	any 	school within 	the
District. 	Any Districtwide 	special
program will 	be 	staffed 	from 	applicants
throughout 	the District 	after 	the
posting of 	the 	vacancies. 	Applicants
will be 	interviewed 	by 	the 	Summer
School Director, 	and 	the Head 	Teacher
of 	the 	special 	districtwide 	program.
7. 	All Certificated Employees 	in 	the
District 	are 	equally 	eligible 	for
Summer 	School 	employment 	including
those who plan 	to 	resign at 	the 	end of
the 	regular 	school year.
19San Mateo, 	supra.
41

9. 	All Certificated Employees 	desiring
Summer 	School employment 	shall 	be 	placed
in 	teaching 	positions 	before 	other
personnel.
10. 	Where 	there 	are 	two or more 	applicants
for 	the 	same 	Summer 	School position who,
considering all 	relevant 	factors, 	are
qualified, 	seniority of employment 	in
the District 	shall govern, 	unless one of
the 	applicants 	has 	developed 	a 	specific
program that 	has 	brought 	a 	large 	class
enrollment.
Because 	this 	article 	concerns 	the 	selection procedure 	for
summer 	school 	appointments, 	the District claims 	it 	is outside
of 	scope 	in 	that 	it 	intrudes 	on management's prerogative 	to
select employees 	for 	extra duties. 	We disagree with 	this
argument.
Selection 	procedures 	applied 	to bargaining 	unit members 	for
extra duties 	that 	involve extra pay, 	extra benefits, 	and extra
hours 	worked 	bear 	a 	logical 	and obvious 	relationship 	to wages,
hours, 	and health and welfare benefits. 	Since 	summer
employment 	is 	also different work, 	perhaps done 	at a different
school 	than a 	teacher's 	regular 	school, 	this 	article 	also
arguably 	relates 	to transfer 	and 	reassignment policies. 	Hence,
the district 	is 	obligated 	to bargain over 	this proposal;
provided 	that 	summer 	school positions 	are 	included 	in 	the
unit.20
20 The hearing officer found that the record was
insufficient 	to 	determine 	whether 	summer 	school 	teachers 	were
included 	in 	the 	parties' 	recognition agreement. 	We 	affirm this
conclusion, 	and 	note 	that PERB rule 	33260 et 	seq, 	sets 	forth
procedures 	for 	disputes 	such 	as 	this one.
42

We 	would 	note, 	however, 	that 	the 	last 	sentence 	of 	paragraph
6, 	above, 	seems 	to dictate 	duties 	of 	the 	summer 	school director
and 	the 	head 	teacher, 	both 	of 	whom may 	be 	supervisory 	or
management 	employees. 	If 	so, 	the 	exclusive 	representative of
the 	certificated 	employees 	may 	not 	seek 	to prescribe 	their
duties 	and 	the 	District 	need 	not 	negotiate 	on 	that 	subject.
ARTICLE 	XVIII 	-- 	LEAVES
1. 	Code 	Incorporation 	- 	The 	benefits 	as
provided 	Certificated 	Employees 	in
section 	13453 	through 	13470 	and 	13522
through 	13552.5 	of 	the 	Education Code
are 	incorporated 	into 	this 	Agreement
except 	as 	supplemented 	in 	this 	and 	the
following 	sections 	pertaining 	to 	leave
of 	absence.
The 	Education Code 	sections 	contained 	in 	the 	article 	all
concern 	leave 	rights 	of 	certificated 	employees. 	The 	subject 	of
leaves 	is 	an 	enumerated 	item and, 	as 	discussed 	earlier, 	the
incorporation 	of 	related 	Education 	Code 	provisions 	is 	an
appropriate 	subject of 	negotiation. 	The 	District 	may 	not
refuse 	to 	consider 	this 	proposal.
ARTICLE 	XVIII 	— 	LEAVES
6.G. 	The 	District 	shall 	not 	refuse 	to 	do
any 	of 	the 	following 	because 	of 	a
Certificated 	Employee's 	pregnancy:
(1) 	hire or 	employ.
(2) 	select 	her 	for 	a 	training 	program
leading 	to 	employment 	or
promotion.
(3) 	bar 	or 	discharge 	her 	from
employment
43

(4) 	bar 	her 	from 	training 	programs 	leading 	to
employment, 	reassignment or 	promotion.
(5) 	discriminate 	against 	her 	in 	compensation 	or
in terms, 	conditions, 	or privileges of
employment.
We 	find 	this 	proposal 	within 	scope 	for 	the 	same 	reasons 	we
found 	Article 	III—Discrimination 	negotiable. 	By 	proposing
this, 	the Association 	attempts 	to 	ban 	employment discrimination
against pregnant women. 	It, 	thus, 	touches on virtually all
enumerated items: 	wages, 	hours, 	reassignments, 	transfers, 	etc.
However, 	the District 	is 	not 	obligated 	to 	negotiate 	Article
XVIII, 	6.G.(1). 	Hiring of 	new employees 	is 	not 	an enumerated
item.
ARTICLE 	XXI 	— 	CERTIFICATED 	EMPLOYEE 	EVALUATIONS
3. 	Q. 	Only 	evaluations 	conducted 	in
accordance 	with 	this 	Agreement 	may
be 	included 	in 	a 	Certificated
Employee's 	personnel 	file.
The 	District 	interprets 	this 	article 	as 	an 	attempt 	by 	the
Association 	to 	control 	the 	content 	of 	personnel 	files 	which,
the District 	claims, 	are 	the 	sole 	property of 	the 	employer. 	It
asserts 	that 	maintenance 	of 	records 	is 	a matter 	which 	should
remain 	in 	the 	District's 	total 	control.
The 	"ownership" 	of 	the 	employees' 	personnel 	files 	is
irrelevant. 	This 	proposal 	is 	designed 	to 	assure 	compliance
with 	the 	negotiated 	evaluations 	procedure 	by 	excluding 	from
personnel 	files 	evaluations 	completed 	by 	a 	process 	other 	than
that 	prescribed 	by 	the 	contract. 	The 	Association 	seeks 	to
44

prevent 	the 	District 	from 	relying 	on 	non-contract 	evaluations.
As 	such, 	this proposal 	is part of or 	related 	to the matter of
evaluation procedure 	and 	is 	negotiable.
ARTICLE 	XXII 	— 	RESIGNATION 	AND 	DISMISSALS
4. 	Rescinded Notices 	- 	The District 	shall
reimburse 	a Certificated 	Employee 	in 	the
amount of 	three 	hundred 	($300) 	dollars
whenever 	and 	at 	the 	same 	time 	that 	it
rescinds 	a written 	notice 	of 	intent 	to
dismiss, or notice to dismiss.
Moreover, 	the District shall also
reimburse 	any Certificated 	Employee 	who
has 	received 	either 	of 	the 	above 	written
notices 	for 	any 	expenses 	incurred 	in
connection 	with 	such 	Certificated
Employee's 	search 	for 	other 	employment.
The District objects 	to this proposal, 	claiming 	that 	its
purpose 	is 	to 	impose 	an 	illegal penalty on 	the District when 	it
rescinds 	notices of dismissal. 	The Association maintains 	that
this 	is 	related 	to wages 	in 	that 	it 	is 	akin 	to 	severance 	pay,
an 	unarguably negotiable 	subject 	in 	the 	private 	sector.
In 	its present 	form, 	the 	requirement 	that 	the District
reimburse 	affected employees 	$300.00 	is 	a penalty. 	The
proposal 	seeks 	damages 	for 	an administrative 	error. 	It 	bears
no 	relation 	to 	actual 	expenses 	which 	employees 	may 	incur 	as 	a
result 	of 	their 	dismissal 	notices 	being 	rescinded 	nor 	does 	it
contemplate 	compensation 	for 	actual 	termination 	of 	employment.
Additionally, 	the 	penalty aspect of 	this proposal may be
45

prohibited 	by 	the California Constitution, 	Article XI, 	section
10a.21
ARTICLE XXIII 	-- 	EARLY RETIREMENT
This proposed 	article 	reads:
1. 	The 	District 	shall provide 	an early
retirement 	program 	for 	those
Certificated 	Employees 	eligible;
providing 	that 	applications 	for
participation 	submitted 	to 	the 	District
by February 	1st 	for 	the 	following 	year.
Eligible Certificated 	Employees 	shall 	be
those 	who 	have 	attained 	fifty 	(50) 	years
of 	age, 	have 	completed 	a minimum of 	ten
(10) 	years service to the District.
2. 	No more 	than 	five 	percent 	(5%) 	of 	the
total 	Certificated 	staff 	may 	enter 	this
program per 	year, 	entrance 	and 	cutoff
requirement 	being 	based 	on 	seniority.
3. 	Certificated Employees 	participating 	in
this 	program 	shall 	be 	designated 	as
Consultants 	to 	the District; 	and as
Consultants 	they will be 	considered
independent contractors; 	a contract 	for
which must 	be 	entered 	into 	for 	a period
not 	to exceed 	five 	(5) 	years or 	to age
sixty-five 	(65) , whichever comes first;
providing 	that 	an 	Early 	Retirement
Consultant may 	choose 	to 	discontinue 	the
program at 	the 	end 	of 	any contract
year. 	A Certificated 	Employee may 	be
reinstated 	to full-time 	status, 	if 	so
requested. 	If 	reinstated, 	the employee
shall 	retain 	all 	rights 	held 	previous 	to
entering 	the 	program.
21(a) 	A local government 	body may not 	grant 	extra
compensation or 	extra 	allowance 	to a public officer, 	public
employee, 	or 	contractor 	after 	service 	has 	been 	rendered or 	a
contract 	has 	been 	entered 	into 	and performed 	in whole 	or 	in
part, 	or 	pay a claim under 	an 	agreement made 	without 	authority
of 	law.
46

4. 	Early Retirement Consultants 	shall
perform 	such 	services 	for 	the 	District
as may be mutually agreed 	upon; 	for 	a
minimum of 	twenty 	(20) 	days 	per 	year.
5. 	Participation 	in health 	and welfare
benefit 	as provided 	in 	this Agreement
may 	be 	continued 	with 	the District
incurring 	the 	cost 	of premiums 	involved.
6. 	The 	annual compensation 	shall be
$4 f 000.00.
The 	District 	has 	interpreted 	this 	proposal 	as one 	which
interferes 	with 	the 	State Teachers' Retirement 	System by
supposedly 	trying 	to 	lower 	the 	age 	at which 	employees would 	be
eligible 	for 	benefits.
The 	content 	of 	this 	proposal 	would 	very 	likely 	conflict
impermissably with 	the 	Education Code 	if 	it 	was 	intended 	to
modify 	State 	Teachers' 	Retirement 	System benefits. 	As 	we 	read
it, 	however, 	the purpose of this proposal seems to be 	to
establish 	a program of 	reduced 	working 	hours 	and 	appropriate
wages 	for 	employees over 	the age of 	50. 	As such, 	it 	is
unrelated 	to 	the Retirement 	System and, 	to the 	extent 	that 	it
does 	not 	conflict with 	Education Code provisions, 	we 	find 	it
within 	the 	scope of 	representation.
Teachers may have 	an 	interest 	in providing 	for 	a 	reduced
workload 	near 	the 	age 	of 	retirement. 	We 	find 	that 	an
obligation 	to negotiate 	such a proposal, 	within 	the 	parameters
set 	by 	the 	Education Code 	sections 	pertaining 	to 	retirement
(e.g., 	Education Code 	section 22724) 	and 	reduced workloads
47

(Education Code 	sections 	44922 and 	23919), 	would not
significantly 	interfere 	with 	those 	managerial 	prerogatives
which 	the District must 	retain 	in 	order 	to provide 	an
educational 	system.
The District 	also argues 	that 	this proposal 	is
nonnegotiable 	because 	it 	creates 	the 	status 	of 	"independent
contractors," 	a 	category 	incompatible with 	that of employee.
According 	to 	the District, 	independent contractors 	are 	not 	in
the 	unit, 	and proposals concerning 	them are, 	therefore, 	outside
the 	scope of 	representation.
Although 	the 	term, 	"independent contractor" 	creates 	some
confusion as 	it 	is used 	in 	this proposal, we do not believe
that 	it 	turns 	the 	entire 	article 	into an attempt 	to bargain
about 	employees 	outside 	the 	unit. 	The primary 	intent of 	this
proposal 	is 	to provide 	a 	future 	reduced workload 	scheme 	and 	pay
for 	current employees 	in 	the 	unit.22 	To 	this extent, 	it
concerns 	the 	hours 	and 	wages of 	bargaining 	unit 	employees.
ARTICLE 	XXIV 	— 	PARTNERSHIP 	TEACHING
This 	proposed 	article 	reads:
1. 	Definition - Partnership teaching
refers to two 	(2) 	Certificated
Employees 	sharing one 	(1) 	teaching
assignment. 	Such positions may be
22	22we	we 	do note 	that 	there 	is no obligation 	to bargain over
proposals 	that 	affect 	only 	the 	rights 	and 	benefits 	of 	former
employees 	and 	retirees, 	Allied Chemical and Alkali Workers v.
Pittsburgh Plate Glass 	(1971) 	404 U.S. 	157 	[78 LRRM 2974] 	Cf.
Titmus Optical Co. 	(1973) 	205 NLRB 974 	[84 LRRM 1245], 	holding
that 	the 	employer 	must 	bargain over 	changes 	in 	retirement
benefits 	of current employees.
48

created 	to meet 	the 	legitimate 	and
educational 	special 	needs 	of 	the
District 	and 	Certificated 	Employees.
2. 	Any assignment openings may be
available 	to 	certificated 	staff 	who
have 	indicated 	in writing 	to 	the
Personnel Director 	their 	desire 	to
teach 	in partnership. 	The deadline
shall be 	the 	same as 	for 	all other
applications 	or 	transfer 	requests 	from
any of 	the 	present 	certificated 	staff.
3. 	Partnership assignments 	shall be 	filled
only 	by Certificated 	Employees 	who 	have
jointly 	requested 	to work 	together.
4. 	Partnership position 	holders may
request 	to be 	transferred 	to a
full-time 	assignment.
5. 	There 	shall be no discrimination
against 	those 	who 	have 	previously
taught 	in partnership 	in such
consideration 	for 	full-time 	assignments,
6. 	Responsibilities of 	an assignment 	by
two 	(2) 	partners may be divided 	and/or
allocated 	according 	to 	a plan 	designed
by the 	partners, 	with 	the concurrence
of 	their 	immediate 	supervisor. 	This
shall 	include but not be 	limited 	to
attendance 	at 	regular 	staff meetings,
district meetings, 	and parent
conferences.
7. 	Absences of three 	(3) 	or 	fewer days at
one 	time may be 	covered 	by 	the 	other
partner 	providing 	they 	have 	mutually
agreed 	to such a plan. 	No penalty
shall be 	levied 	by 	the District 	against
a 	partner 	for 	such 	absences.
8. 	Partners 	shall be given a pro rata
amount of 	the 	released 	time 	allowed
other 	Certificated 	Employees 	for
preparation.
49

9. 	Partnership Certificated 	Employees
shall be 	placed 	appropriately on 	the
Salary Schedule, 	receive one 	(1) 	step
increment 	for 	each year 	of service, 	be
given 	appropriate 	added 	increments 	for
advanced degrees, 	tenure, or longevity,
and 	receive 	District-paid 	fringe
benefits 	provided 	full-time
Certificated 	Employees.
10. 	In 	every relationship with 	the 	employer
and 	other 	certificated 	staff,
partnership 	position 	holders 	shall 	be
treated 	like all 	staff, 	except as
provided 	heretofore.
Because 	this 	proposal 	supposedly 	interferes 	with 	the 	public
school 	employer's 	ability 	to decide 	the 	nature 	and 	level of
educational programs, 	the District objects to the hearing
officer's 	finding of negotiability. 	If 	this proposal 	actually
did 	dictate 	the 	District's 	decisions 	about 	the 	educational
programs 	to be provided, 	this objection may be well 	founded.
However, 	the District overlooks 	the 	nonmandatory 	language 	in
paragraph 	1; 	"Such 	positions 	[partnership 	teaching 	positions]
may 	be 	created 	to meet 	the 	legitimate 	and 	educational 	special
needs 	of 	the District 	and 	certificated 	employees," 	(emphasis
added). 	This 	article does not require 	the District to
establish partnership 	teaching positions; 	it does 	not 	even
specify 	guidelines which 	rob 	the 	employer 	of 	its 	ultimate
discretion 	in establishing 	these positions. 	By 	the 	terms of
this 	article, 	the District 	retains 	full authority 	to decide
when, 	if, 	and how many partnership positions 	to create and,
thus, 	retains 	essential control of decisions which may be
within management's 	sole 	prerogative.
50

The 	substance of 	this proposal does 	relate 	to 	the 	wages 	and
hours 	of 	teachers. 	In describing a partnership teaching
arrangement, 	it 	impliedly establishes 	half-time 	positions 	which
necessarily 	involve 	reduced 	hours 	and 	pay 	for 	those 	teachers
participating 	in 	the program. 	Paragraph 	9 prescribes 	the 	rate
of 	compensation 	(one 	step 	increment 	for 	each 	year 	of 	service)
and 	the 	amount of 	fringe 	benefits 	partnership 	teachers 	shall
receive 	(the 	same 	benefits 	which 	are 	provided 	to 	full-time
teachers) .
This 	article 	touches 	upon 	transfer 	and 	reassignment
policies, 	as 	it creates a new option 	for 	employees who wish
reassignment 	or 	transfer. 	In 	addition 	to being able 	to 	request
the 	traditional 	transfer 	to 	another 	school or 	reassignment 	to
teaching another 	subject, 	teachers, 	under 	the 	terms of this
article, 	may request 	reassignment 	to a partnership position.
Partnership 	teaching 	is 	an 	understandable 	matter 	of 	concern
to employees 	and management. 	It provides 	a system for 	reduced
hours 	and 	compensation 	for 	those 	teachers 	wishing 	to
participate, 	and 	affects 	the professional 	relationships
teaching partners 	have with each other. 	Management, 	on the
other 	hand, 	has 	an 	interest 	in overseeing 	an efficient 	school
district 	with minimum 	interruption 	in 	the 	educational process.
As 	discussed 	above, 	this proposal makes 	no 	intrusion on 	the
District's 	ability 	to 	fulfill 	the 	public mission of 	the
51

school system. 	We, 	therefore, 	find this proposal within 	the
scope of 	representation.
ARTICLE 	XXV 	— 	CERTIFICATED 	EMPLOYEE 	SAFETY
The 	disputed 	portions 	of 	this 	article 	read:
1. 	A Certificated 	Employee may use 	that
degree 	of physical 	control over 	a
student 	reasonably 	necessary 	to maintain
order, protect self, property, and the
health 	and 	safety of 	pupils.
2. 	The District 	shall give 	full support,
including 	legal 	protection 	and 	other
advisory assistance, 	to any Certificated
Employee 	assulted while 	acting 	in 	an
official 	capacity.
4. 	Certificated 	Employees 	shall 	immediately
report 	cases 	of 	assault 	or 	attack
suffered 	by 	them 	in 	conjunction 	with
their 	immediate 	superior, 	and 	to the
local police. 	Such notification shall
be 	immediately 	forwarded 	to 	the
Superintendent 	who 	shall 	comply with 	any
reasonable 	request 	from 	the 	Certificated
Employee 	for 	information 	in 	the
possession of 	the 	Superintendent
relating 	to 	the 	incident or 	the 	persons
involved, 	and 	shall act 	in appropriate
ways 	as 	liaison 	between 	the Certificated
Employee, 	the police and 	the courts.
Although 	traditional 	health 	and 	safety 	concerns 	of
employees 	have 	been 	generally 	limited 	to 	those 	conditions
brought about 	by either 	the 	negligence of 	the 	employer, 	or
hazardous 	substances 	or 	physical conditions 	peculiar 	to 	the
occupation, 	we 	find no 	reason to 	limit 	the 	concept of 	health
and 	safety to 	those 	factors. 	Teachers 	of public 	schools 	are
quite 	legitimately 	concerned 	with 	the 	threats 	to 	physical
52

safety which 	may 	be 	posed 	by 	aggressive 	and 	unruly 	students.
This proposal, 	then, 	which seeks 	to offer 	some guidelines 	to
teachers 	and 	management 	regarding 	self-protection 	from
students, 	logically relates 	to health 	and 	safety.
The employees' 	interest 	in an article relating to their
safety 	is 	obvious. 	Safety and 	health 	stand 	with wages 	as 	one
of 	the more 	fundamental 	areas of 	concern 	in a collective
bargaining 	relationship. 	The District 	does 	not 	advance 	and we
cannot 	adduce 	any manner 	in 	which 	negotiating 	this 	proposal
would 	impermissibly. 	intrude 	on 	the 	District's 	ability to
fulfill 	its mission.
The 	District 	does 	argue 	that 	this 	article 	supersedes 	the
Education Code 	and 	is 	nonnegotiable 	for 	that 	reason. 	Education
Code 	section 44807, 	cited by the District, 	recognizes 	teachers'
right 	to 	use 	the 	force 	reasonably 	necessary 	to maintain order
and protect 	the 	health 	and 	safety of pupils. 	There 	is 	nothing
in 	this 	statute which 	undermines 	the 	teachers' 	right of
self-protection or 	suggests 	that 	teachers 	do not 	have 	the
privilege 	to defend 	themselves 	against 	physical 	assault. 	There
is 	no supersession of 	the Education Code 	because 	there 	is 	no
conflict 	between 	the 	statute and 	the proposal.
ARTICLE 	XXVI 	~ 	ASSOCIATION 	AND 	CERTIFICATED 	EMPLOYEE 	RIGHTS
4. 	In order 	for 	the Association 	to
administer 	this 	Agreement 	properly 	for
the 	benefit of 	the Certificated
Employees 	and 	the 	welfare of 	the
District 	and 	to otherwise 	properly
53

represent 	the members 	of 	the 	negotiating
unit, 	representatives of 	the Association
shall have 	access 	to all 	school
buildings 	to transact official 	business,
for 	the 	purpose of 	observing 	conditions
of employment, 	and 	for 	processing
grievances.
In giving Association 	representatives 	access 	to all 	school
buildings, 	this paragraph bears 	a 	logical relationship to
grievance 	procedures. 	Access 	is 	a necessary prerequisite 	for
adequately representing grievants, 	as 	it allows 	the
representative 	to gather 	evidence, 	to discuss 	the 	grievance
with 	the 	affected employee, 	and 	to generally 	insure 	the
collective 	bargaining 	agreement 	is 	being complied with. 	Access
is also usually 	necessary 	to present grievances 	to 	the 	employer
and, 	for 	that 	reason, 	has a direct relationship to the
grievance 	procedure.
Furthermore, 	this proposal bears direct 	relation to the
administration of 	the 	collective 	bargaining agreement itself, 	as
. .. . .
organization 	representatives 	may 	very well 	require 	access 	to
school premises 	to observe 	whether 	various 	terms 	of 	the
agreement 	are 	being complied with. 	It 	is well 	settled 	that
administration of 	a 	contract 	is 	an 	essential part of 	the
collective 	bargaining process.23 	AS 	the 	Supreme Court 	noted
in Conley v. Gibson 	(1957) 	355 U.S. 	41, 	46, 	[41 LRRM 2089]:
. . . .
23 Morris, The Developing Labor Law, Ch. 11, p. 340, and
the protectio	protectionn o	of	f 	employee 	rights 	already 	secured 	by contract
(emphasi	(emphasis is added)	s 	added).
54

Collective 	bargaining 	is 	a 	continuing
process. 	Among other 	things, 	it involves
day-to-day adjustments 	in 	the 	contract 	and
other 	working 	rules, 	resolution of new
problems 	not 	covered 	by 	existing 	agreements,
and 	the 	protection of 	employee 	rights
already 	secure 	by 	contract. 	(emphasis
added).
Consequently, 	proposals 	such as 	this one, 	which directly
relate 	to 	and 	facilitate 	the 	ongoing 	collective 	bargaining
process, 	are 	necessarily within 	the 	scope of 	representation.
That 	the 	Legislature 	intended 	this 	result 	is 	supported 	by 	its
enactment of Sec. 	3543.1(b). 	This proposal, 	then, 	is
merely 	an 	incorporation of 	those 	rights 	guaranteed 	by 	the 	Act •
24
ARTICLE 	XXVI 	— 	ASSOCIATION 	AND 	CERTIFICATED 	EMPLOYEE 	RIGHTS
5. 	Information - The District will, 	upon
request, 	provide 	the Association with
any 	documents 	and/or 	data which 	will
assist 	it 	in developing 	accurate,
informed, 	and 	constructive programs 	on
behalf 	of 	Certificated 	Employees 	and
students, 	together 	with 	any other
available 	information 	which 	may 	be
necessary 	for 	the 	Association 	to 	fulfill
its 	role 	as 	the exclusive bargaining
representative.
24
3543.1(b) 	Employee organizations 	shall have
the 	right of 	access 	at 	reasonable 	times 	to
areas 	in which employees work, 	the 	right 	to
use 	institutional 	bulletin 	boards,
mailboxes, 	and other means of communication,
subject 	to 	reasonable 	regulation, 	and 	the
right 	to use 	institutional 	facilities 	at
reasonable 	times 	for 	the 	purpose 	of meetings
concerned 	with 	the 	exercise 	of 	the 	rights
guaranteed 	by 	this 	chapter.
55

5.A. 	The 	Association will 	be 	provided
with 	copies 	of minutes 	of official
Board 	of 	Trustees 	meetings 	and 	all
other 	documents 	related 	to matters
set 	forth 	in 	the above 	paragraph
that 	are 	distributed 	to Board 	of
Trustees members 	at official
meetings.
To 	the 	extent 	that 	this 	proposal 	applies 	to 	information
necessary 	to 	the Association 	for 	fulfilling 	its 	role 	as
exclusive 	representative 	of 	the 	certificated 	employees,
we 	find 	it 	negotiable. 	Paragraphs 	5 	and 	5.A. 	potentially
relate 	to 	all 	enumerated 	subjects 	because 	access 	to 	information
in 	the 	employer's 	control 	is 	a 	necessary prerequisite 	for
meaningful 	bargaining on any 	subject.25 	For 	example, 	the
Association 	would 	be 	precluded 	from 	effectively 	bargaining 	over
wages 	and 	other 	economic 	issues 	unless 	it had 	the 	projected
income of 	the District 	and other 	financial 	data. 	Similarly, 	a
grievance 	procedure 	would 	be 	rendered meaningless 	without
access 	to 	the 	information 	necessary 	to police 	the 	contract,
(accord, 	J. 	I. Case, 	supra). 	Negotiating over the proposed
obligations 	would 	not 	significantly 	add 	to 	the 	District's
already 	existing 	legal 	duties 	to make 	information 	public26
25 Aluminum Ore Co. 	v. 	NLRB 	(7th Cir., 	1942) 	131 F.2d 	485
[11 LRRM 693]; 	J. 	I. 	Case v. 	NLRB 	(1958) 	253 P.2d 149 	[41 LRRM
2679] , 	holding "that wage data 	is necessary in order 	for 	union
to 	fulfill 	its 	obligation 	to police 	and 	administer 	the
collective 	bargaining 	agreement.
26	2 see	6see 	California Public Records Act, 	California
Government Code 	section 6250 et. 	seq.
56

However, 	there 	is 	nothing 	in EERA which requires 	the
District 	to negotiate 	access 	to 	information 	that 	is 	not 	related
to 	the employment 	concerns of 	the 	teachers 	(it 	need 	not, 	for
example, 	negotiate over 	the 	requirement 	to provide data and
information 	to 	assist 	the Association 	in developing 	programs 	on
behalf of the students).
ARTICLE 	XXVI 	— 	ASSOCIATION 	AND 	CERTIFICATED 	EMPLOYEE 	RIGHTS
10. 	District School Board Meeting - The
District 	will 	furnish 	the Association
with nineteen 	(19) 	copies of 	the 	board
agenda and 	five 	(5) 	copies of 	the board
agenda 	with 	supporting 	data 	for 	all
district 	school board meetings 	to 	be
distributed 	as 	designated 	by 	the
Association 	three 	(3) 	days prior 	to the
meeting.
We 	find 	this 	proposal within 	the 	scope of 	representation
for 	the 	same 	reasons 	and 	with 	the 	same 	limitations 	stated 	under
paragraph 	5 	above. 	If 	the District believes 	that 	this proposal
encompasses 	more 	than 	that 	information 	concerning 	the
employment 	relationship, 	it 	should voice 	its objections 	in
sufficient 	detail 	to permit 	negotiations 	to proceed.
ARTICLE XXVI 	-- 	ASSOCIATION & 	CERTIFICATED EMPLOYEE 	RIGHTS
13. 	Officials of 	the Association will 	be
released 	from 	regular 	duties 	for 	the
purpose 	of 	carrying 	out Association
business, 	without loss of pay, 	at such
times 	and 	for 	such 	periods 	as 	deemed
necessary; 	with 	appropriate notice 	to
their 	building 	principal or 	immediate
supervisor.
57

This proposal 	addresses a 	reduction of working hours. 	In
addition, 	the 	proposal 	seeks 	compensation 	for 	time 	not worked
on behalf of 	the District. 	As 	stated earlier, 	a 	reduction of
working 	hours 	is 	a mandatory subject 	for 	negotiations. 	What
does not appear 	in this proposal 	is 	the 	limit, 	if any, 	on the
use or purpose of the 	released time. 	If, 	for 	example,
"Association 	business" 	means 	or 	includes processing 	grievances
or 	consulting with 	the 	employer 	on appropriate matters, 	the
proposal 	would 	certainly be 	within 	scope. 	(See EERA
3543.1(c)). 	The 	record 	fails 	to 	indicate 	that 	the 	scope of 	the
proposal 	was 	determined 	or 	clarified 	during 	the 	negotiating
process. 	The 	employer's obligation to voice 	its objections,
confusion, 	or 	concerns 	is paralleled 	by 	the organization's
obligation 	to 	clarify 	its 	position 	and 	demonstrate 	the
propriety of 	its 	proposals. 	This Board 	cannot provide 	that
clarification, 	nor 	can 	it write proposals 	for 	the exclusive
representative. 	In this 	instance we 	are 	limited 	to 	finding
that, 	to the 	extent this proposal relates 	to a reduction of
working 	hours 	without 	loss of pay, 	the 	employer 	cannot
arbitrarily 	refuse 	to 	respond 	to 	it. 	Whether 	a clarification
of 	the 	proposal 	subsequently 	reveals matters 	outside 	of 	scope
must 	be dealt with at 	that 	time.
14. 	Classroom Privacy -
A. 	No Recording 	and/or 	listening
device may be 	used 	in a 	classroom
without 	prior 	knowledge 	and
58

approval 	of 	the Certificated
Employee.
This 	article may well 	seek 	to prohibit 	the 	District's 	use
in 	evaluations 	and 	disciplinary 	actions 	of material obtained
from covert 	surveillance. 	Admittedly, 	the District has 	a need
to 	know how 	its 	employees 	are 	performing 	in 	the 	classroom, 	but
it 	could 	easily 	gather 	this 	information 	by 	in-person 	review
teams of supervisors. 	In fact, 	there 	is nothing 	in the
proposal which 	prevents 	tape 	recorders 	from being 	used, 	so 	long
as 	the 	teacher 	being 	recorded 	knows 	and 	approves 	of 	the
machines' use.
Not 	only will 	the mission of 	the District 	be 	unaffected 	by
the proposal, 	but personnel relations will, 	no doubt, 	benefit
by 	the 	prevention of 	observation.
14. 	Classroom Privacy 	-
B. 	The 	contents of Certificated
Employees' 	desks 	and 	file cabinets
shall 	be 	considered 	the
Certificated 	Employee's 	private
property 	during 	that 	Certificated
Employee's 	employment 	in 	the
District 	and 	shall 	not 	be 	subject
to 	inspection without 	the 	knowledge
and 	consent 	of 	the 	Certificated
Employee. 	Substitute Certificated
employees 	shall be permitted 	to 	enter
a 	Certificated 	Employee's 	desk 	for 	the
purpose 	of 	obtaining needed material.
While 	this 	proposal 	arguably 	relates 	to evaluations 	because
it prohibits, 	by 	implication, 	the employer's use of material
gleaned 	from 	unauthorized 	inspections 	of 	teachers' 	desks 	and
file cabinets, 	we 	find 	it objectionable. 	If 	the proposal were
59

more 	clearly directed 	at 	that 	end 	and 	did 	not mandate 	that 	the
contents 	of 	the 	desks 	and 	cabinets 	be 	considered 	the 	teachers1
private property, 	we may have found otherwise. 	As 	it 	reads, 	it
represents 	an 	impermissible 	infringement 	on 	the 	District's
. . .
ability 	to 	function. 	Any employer must 	have 	access 	to 	its own
files. 	In this case, 	the District has 	a definite need 	to have
at 	its disposal student 	records, 	personnel files, 	and various
other 	documents which may be kept 	in 	teachers' 	desks 	or 	file
cabinets. 	The Association 	cannot 	rob the District of 	its 	legal
rights 	by declaring off-limits 	a portion of 	the 	working 	area.
For 	this 	reason, 	we 	find 	the content of 	the proposal, 	as
written, nonnegotiable.
ARTICLE 	XXVII 	— 	NEGOTIATIONS 	PROCEDURES
4. 	Number of Representatives - The
Association 	shall 	designate 	not 	more
than nine 	(9) 	representatives who shall
each 	receive 	a 	sufficient 	number 	of
hours 	per 	week of 	release 	time without
loss 	of 	compensation 	to prepare 	for 	and
attend 	negotiations 	and 	impasse
proceedings.
By its very terms, 	this proposal encompasses 	an
apportionment 	of 	hours 	during 	the 	working 	day 	with 	concomitant
pay 	considerations 	for 	purposes 	relating 	to 	the 	determination
of wages, 	hours, 	and enumerated 	terms 	and conditions of
employment. 	The 	proposal does more 	than 	"relate 	to" 	such
matters. 	It 	is 	a proposal which directly deals with 	both 	hours
of work and wages and, 	consequently, 	is negotiable.
60

ARTICLE 	XXXII 	— 	CONFIDENTIAL 	FILES
This proposed 	article 	reads:
1. 	The District 	shall 	not 	base 	any adverse
action 	against 	a Certificated 	Employee
upon materials 	which 	are 	not 	contained
in 	such 	Certificated 	Employee's
personnel 	file. 	Moreover, 	the District
shall 	not 	take 	any 	adverse 	action
against 	a 	Certificated 	Employee 	upon
materials 	which 	are 	contained 	in 	such
Certificated 	Employee's 	personnel 	file
unless 	the materials 	had 	been placed 	in
the 	file 	at 	the 	time of 	the 	incident
giving 	rise 	to such materials 	and 	the
Certificated 	Employee 	had 	been 	notified
at 	such 	time 	that 	such materials were
being 	placed 	in 	the 	file.
2. 	Unless otherwise 	agreed 	to by the
involved Certificated Employee, 	a
Certificated 	Employee's 	personnel 	file
shall not 	include 	ratings, 	reports or
records which 	(1) 	were obtained prior 	to
the 	employment 	of 	the Certificated
Employee, 	(2) 	were prepared by
identifiable 	examination 	committee
members, 	or 	(3) 	were obtained 	in
connection 	with 	a 	promotional
examination.
3. 	Certificated 	Employees 	shall be 	provided
any 	negative 	or 	derogatory material
before 	it 	is placed 	in 	their personnel
file. 	They shall also be 	given an
opportunity during 	the 	school 	day 	and
with 	compensated 	release 	time 	to 	initial
and 	date 	the material 	and 	to prepare 	a
written response 	to such material. 	The
written 	response 	shall 	be 	attached 	to
the material.
6. 	The District 	shall 	keep a 	log 	indicating
the 	persons 	who 	have 	requested 	to
examine 	a personnel 	file 	as well 	as 	the
dates 	such 	requests were made. 	Such 	log
shall 	be 	available 	for 	examination by
the 	Certificated 	Employee 	or 	Association
representative, 	if 	so authorized by the
Certificated 	Employee.
61

7. 	Access 	to personnel 	files 	shall be
limited 	to 	the 	members 	of 	the 	District
administration on 	a 	need 	to 	know basis.
Board 	of 	Education members 	may 	request
the 	review of 	a Certificated 	Employee's
file 	at 	a personnel 	session of 	the
entire Board 	of 	Education. 	The 	contents
of 	all personnel 	files 	shall be 	kept 	in
the 	strictest 	confidence.
8. 	Negative or 	derogatory material 	in a
Certificated 	Employee's 	personnel 	file
shall 	be 	destroyed 	after 	remaining 	in
the 	file 	for a period of 	two 	(2) 	years.
9. 	The District 	shall maintain the
Certificated Employees' 	personnel 	files
at 	the District's central office. 	Any
files 	kept 	by 	the Certificated
Employee's 	immediate 	supervisor 	shall
not 	contain 	any material 	not 	found 	in
the district's 	files.
Although 	this proposal 	is 	entitled 	"Confidential Files,"
its 	purpose 	relates primarily 	to evaluation procedures. 	The
first 	paragraph 	prohibits 	any 	adverse 	action 	by 	the 	employer
based 	on materials 	not 	contained 	in 	the 	employee's 	personnel
files. 	Although 	"adverse 	action" 	is 	not precisely defined, 	we
assume that 	it includes suspensions, 	dismissals, 	and other
disciplinary 	actions 	and 	negative 	evaluations 	of 	employee
performance.
Paragraph 	2 	also attempts 	to 	limit 	the material on which
evaluations 	of 	performance 	are 	to 	be 	based 	by 	requiring 	the
personnel 	file, 	a 	likely source of evaluative material, 	to be
free of 	specified material. 	Similarly, 	employees would 	have 	a
chance 	to comment 	on 	negative 	evaluatory material 	under 	the
62

terms 	of 	paragraph 	3, 	a 	common procedure 	in evaluation
processes.
The 	remaining paragraphs all relate 	in the 	same way to
evaluations, 	either 	by 	limiting 	the 	nature of material which
could 	be 	used 	to evaluate, 	or 	by 	requiring negative 	assessments
to be 	destroyed after 	two years, 	or 	by 	limiting management's
access 	to 	files 	containing evaluations.
The District 	claims 	that 	this proposal 	supersedes 	the
Education Code and 	is, 	therefore, 	nonnegotiable. 	Education
Code 	sections 	44031 	and 	35283 	are 	offered 	as 	the 	alleged
superseded 	statutes. 	Section 44031 grants 	employees 	the 	right
to 	inspect 	their 	personnel 	files 	and 	provides 	released 	time 	for
reviewing 	and 	commenting on derogatory material. 	It does 	not
conflict 	in any way with 	the proposal. 	Accordingly, 	we 	reject
the District's 	claim of preemption. 	Section 35253 	gives 	the
District 	discretion 	to 	destroy 	records 	under 	certain
conditions. 	There 	is 	no conflict 	between 	the 	proposed 	article
and 	this 	statute 	because 	of 	the 	specific 	grant 	of 	discretion 	to
the District.
The 	District 	further 	argues 	that 	the 	maintenance 	of 	files
and 	their 	location 	are 	within 	the 	purview 	of managerial
prerogative. 	We 	do not 	find 	this 	argument persuasive 	in 	light
of 	the minimal 	intrusion 	into managerial 	decision making 	that
procedural matters 	such 	as 	location of 	files 	and 	their
63

destruction 	schedules 	represent. 	The 	primary 	effect of 	this
article concerns 	access 	to pertinent 	records. 	Accordingly,
this 	article roust be 	negotiated.
The 	Section 3543.6(c) 	Charge
I 	affirm 	the 	hearing 	officer's 	finding 	that 	the 	Association
did 	not 	insist 	to 	impasse 	on 	negotiating 	matters 	outside 	the
scope of 	representation and, 	for 	that 	reason, 	his dismissal of
the District's 	unfair practice charge. 	At any 	rate, 	I 	find 	the
District 	is 	not 	obligated 	to negotiate 	those 	proposals
determined 	to be 	outside 	scope 	and 	would 	dismiss 	related
portions 	of 	the Association's charge.
-/~
By./ Harry Gluck, 	Chairperson
Member 	Moore's 	concurrence 	and 	dissent 	begins 	on 	page 	65 •
The 	order 	in 	this 	case 	begins on page 	144.
64
(

Barbara D. Moore, 	Member, 	concurring 	in part and dissenting 	in
part:
Perhaps 	the most 	pivotal part of 	any collective 	negotiating
statute 	is 	the 	scope of 	representation. 	The Legislature's
enactment 	of 	a 	system of 	bilateral 	decision making 	begins 	and
ends 	with 	negotiability. 	Interpretation of 	the 	typically
laconic 	phrases 	used 	to define 	the 	negotiating 	parameters
requires 	acknowledgment 	that, 	while 	certain decisions will be
outside of 	scope 	and will 	remain within 	the 	employer's 	domain,
an 	overly 	restrictive 	view of 	negotiability may 	result 	in
substantially obstructing 	the 	very purpose 	of 	the 	legislation.
In San Mateo City 	School District 	(5/20/80) 	PERB Decision
No. 	129 	and 	in Healdsburg Union High 	School District 	(6/19/80)
PERB Decision No. 	132, 	I have set forth my 	interpretation of
the 	scope of 	representation 	language 	found 	in 	section 	3543.2 of
the EERA. 	As the Chairperson notes, 	(Ante, 	p. 6)], the 	test 	for
determining 	negotiability 	begins 	by 	assessing 	whether 	the
subject matter 	addressed 	in 	the 	proposal bears 	a 	logical 	and
reasonable 	relationship to wages, 	hours, 	or 	the statutorily
enumerated 	terms 	and 	conditions 	of 	employment. 	This
relationship 	is 	a threshold matter 	and, 	as 	I 	stated 	in
Healdsburg, 	supra, 	p. 	13, 	that analysis must be applied to each
proposal 	under 	submission. 	The 	balancing of 	competing 	employer
and 	employee 	interests 	is 	thereafter 	undertaken not, 	as 	the
Chairperson appears to suggest, 	(Ante, p. 6 ) , 	in order to
65

determine 	whether 	the 	requisite 	relationship 	exists 	between
proposals 	and 	enumerated 	subjects 	but 	in order 	to 	accomplish
the 	equally 	important 	task 	of 	insuring 	that 	the 	accommodation
which 	is 	implicit 	in 	the 	negotiating process 	is 	appropriate.
In my view, 	the determination of 	negotiability 	is most 	aptly
rendered 	through 	reliance on a 	two step process. 	(See
Healdsburg f 	supra, 	p. 	12). 	The difficult task of considering
and weighing 	the 	relative 	interests of 	the 	employees 	and 	the
employer 	is 	unnecessarily obfuscated 	by 	relying 	on 	an 	analysis
which 	injects 	these 	balancing 	factors 	into a 	determination of
the 	requisite 	relationship.
As stated 	in San Mateo, 	supra, 	p. 	36, 	each proposal that is
logically and 	reasonably related 	to wages, 	hours, 	or 	the
enumerated 	terms 	and 	conditions 	of 	employment 	is 	then analyzed
in 	terms 	of 	its 	degree of 	concern 	to 	the 	employees 	and
employer, 	the 	suitability of 	the 	negotiating process 	as 	a means
of 	resolving 	the 	dispute 	and 	whether 	the 	employer's 	obligation
to 	negotiate 	would 	significantly 	abridge 	its 	managerial
prerogatives 	or 	educational 	and 	public 	policy 	considerations.
The Chairperson posits 	that 	the District's 	test of
significant 	impact 	is 	inappropriate 	because 	it 	removes 	from 	the
employees' 	province 	the 	task of 	assigning 	significance 	to
various 	subjects 	contained 	in negotiating proposals. 	I 	am 	in
agreement 	that 	the 	employer's 	obligation 	to negotiate will 	not
be 	excused 	because 	the District 	concludes 	that 	the 	proposal
66

does 	not 	significantly 	impact on employee 	concerns. 	I do not
agree, however, 	that the Legislature, 	in enacting this statute,
drafted 	the 	language of 	section 	3543.2 without 	judging whether
specific 	items 	bore 	significance 	to employees. 	As 	set 	forth 	in
my opinion in San Mateo, 	supra, p. 	34, 	I view the scope
language 	as 	exemplifying 	the 	Legislature's 	response 	to critical
concerns of employees, employee organizations, employers, other
interested 	parties 	and 	to 	the 	concerns 	of 	the Legislature
itself.
In my view, 	the District's 	test 	requiring a 	significant
impact 	is problematic 	because 	it 	in fact 	imparts no 	"test" 	but,
instead, 	submits 	unilaterally determined conclusions. 	Indeed,
the 	need 	to 	independently 	consider 	the 	threshold 	relationship
analysis 	and 	the 	balancing of 	competing 	interests 	is made
manifest by the District's 	formula. 	The employees' 	concerns
and 	the 	employer's 	interests 	and 	prerogatives 	coupled with
educational 	and 	public 	policy 	considerations 	are 	all 	components
of 	a delicate 	and 	essential 	balance.
In this case, 	as 	in Healdsburg, 	supra, 	the District argues
that 	various 	negotiating 	proposals 	are 	nonnegotiable 	because,
based on 	the 	language of 	section 	3540 of 	the EERA, 	they
supersede 	provisions 	of other 	existing 	laws. 	My disagreement
with 	certain of 	the District's 	specific 	assertions 	regarding
supersession 	is 	set out 	infra. 	However, 	as I 	stated 	in
Healdsburg, 	supra, 	EERA's supersession prohibition can only
67

exist 	where 	actual 	conflict 	with Education Code 	sections 	is
revealed.1 	Therefore, 	I 	am 	in agreement with 	the Chairperson
that 	proposals 	which 	concern matters 	merely 	addressed 	by
portions of 	the Education Code are not, 	for 	this 	reason,
rendered 	nonnegotiable. 	As 	I 	stated 	in Healdsburg, 	supra,
p. 	18, 	to attach 	such 	an 	interpretation to the 	supersession
language 	could 	have 	the 	anomalous 	result of 	severely
restricting 	the purpose of 	the EERA. 	I 	therefore conclude
that, 	where 	a provision of 	the Education Code 	impels 	the public
school employer 	to 	take 	certain 	action or 	where 	the 	statutory
language 	evidences 	an 	intent 	to 	set 	an 	inflexible 	standard 	or
to 	insure 	immutable provisions, 	the parties 	are prohibited 	from
negotiating 	a 	provision which 	directly 	conflicts 	with 	the
imperative 	portions 	of 	the 	Education Code.
I 	am 	in 	general agreement with 	the Chairperson's 	discussion
regarding 	the 	employer's 	duty 	to 	interpret 	and 	evaluate
proposals 	submitted 	for 	negotiation. 	As 	stated 	in Healdsburg,
supra, 	p. 	8-9, 	both parties' 	obligation to participate 	in good
faith 	in 	the 	negotiating 	process 	requires 	that positions 	be
LAS 	the Chairperson 	states, 	the 	language which prohibits
supersession 	is 	complex 	and 	admittedly 	susceptible 	of 	varying
interpretations. 	However, 	I am unable 	to agree with 	the
Chairperson's 	suggestion 	that 	the 	language 	of 	section 	3540
lends 	itself 	to 	a construction 	that 	it pertains 	only 	to
systems, 	such as 	the civil service system, 	rather 	than to
specific, 	individual personnel policies. 	I 	find that a labored
construction which 	is 	not 	consistent 	with 	the 	overall 	statutory
scheme.
68

delineated, 	that proposals be 	refined and, 	through discussion,
that 	the 	parties 	attain 	clarification 	and mutual 	understanding
of 	the 	proposal's 	intent.
In 	its exceptions, 	the District asserts 	that many of 	the
hearing officer's 	conclusions 	are 	erroneous 	because, 	due 	to 	the
paucity of 	evidence 	presented 	at 	the 	hearing, 	the 	decision
rendered 	is 	not 	supported 	by 	the 	evidence. 	Perhaps 	this
resulted 	because 	there 	was 	a 	failure 	to 	fully 	utilize 	the
process of 	negotiation 	to explore 	the 	parameters 	of 	the
proposals 	and 	the 	relationship 	to enumerated 	subjects.
Whatever 	the 	cause, 	had 	additional 	evidence 	been presented 	at
the 	hearing, 	both 	the 	hearing officer 	and 	the Board 	itself
could 	have 	rendered a 	more 	precisely delineated 	decision.
However, 	I do not perceive 	the 	relative scarcity of evidence 	as
a 	fatal 	flaw 	in 	the 	hearing 	officer's 	decision.
I 	am 	in essential 	agreement 	with 	the Chairperson's
discussion 	regarding 	the 	burden 	of 	proof 	and 	his 	conclusion
that 	the 	question of 	negotiability 	is 	one of 	law 	to be 	decided
in 	accordance with 	the 	language of 	the EERA and, 	specifically,
with 	section 3543.2 of 	the Act. 	The conclusions 	set 	forth 	in
this 	discussion 	are 	based 	on 	the 	language 	contained 	in 	the
proposals 	and, 	on this 	basis, 	the question of negotiability can
properly be 	decided. 	Unquestionably, 	had 	there 	been more
evidence 	as 	to 	the meaning and 	intent of certain proposals, 	the
Board's 	determinations 	of 	negotiability could 	have 	been
69

somewhat 	more 	precise. 	That difficulty has 	been dealt 	with 	by
setting 	the 	parameters 	of 	negotiability and 	leaving 	to 	the
parties 	the 	task, 	which 	is 	rightfully theirs, 	of 	refining 	the
proposals 	through 	the 	bilateral 	give 	and 	take 	of 	negotiating.
The Chairperson 	affirms 	the 	hearing officer's dismissal of 	the
3543.6 (c) 	charge against the Association. 	I agree with this
result.
Article 	III 	- Professional Dues 	or 	Fees 	and 	Payroll Deductions
Article 	III 	concerns professional 	dues or 	fees 	and 	payroll
deductions. 	The 	District 	objected 	that 	the Association's
listed 	payroll 	deductions 	would 	supersede 	provisions 	of 	the
Education 	and 	Government Codes 	that 	set 	forth 	specific
authorized 	deductions. 	The 	District 	also declined 	to negotiate
as 	"out of 	scope" 	"any other 	plans or 	programs 	jointly approved
by 	the Association 	and 	the 	District."
Preliminarily, 	I 	agree with 	the conclusion of 	the 	hearing
officer 	and 	the 	Chairperson 	that 	payroll 	deductions 	are
negotiable 	because 	they relate 	to wages. 	The 	hearing officer's
decision 	summarizes 	the matter 	succinctly:
The 	subject of wages 	includes 	not only how
much 	compensation 	an 	employee 	will 	receive
for 	services performed, 	but also the manner
in which 	the 	compensation will 	be disbursed
to the employee. 	[Citation] 	Payroll
deductions 	are 	one mode 	of 	dispersal 	and,
therefore, 	fall within the scope of
representation. 	(H.O. 	Proposed Decision, 	p.
20) .
70

I 	also 	agree 	with 	the Chairperson's 	finding 	that 	not 	all
payroll deductions must 	be 	negotiated, 	only 	those deductions
where 	the 	relationship to 	an 	enumerated 	subject 	in
section 3543.2 	can 	be 	demonstrated. 	Each proposed 	payroll
deduction must 	be 	examined 	to determine 	a nexus 	between 	the
deduction 	and 	an 	enumerated 	subject 	in 	section 	3543.2.
I 	further 	agree with 	the Chairperson 	that 	deductions 	for
annuities, 	savings bonds 	and credit union accounts 	are within
scope.
I 	concur 	with 	the 	Chairperson's 	interpretation of 	Abood 	v.
Board of Education 	(1977) 	431 U.S. 	209 and 	find 	it 	inapplicable
to the current 	facts.
Although 	I 	agree with 	the District's 	characterization of
the King Radio Corp. 	v. 	NLRB 	(10th Cir. 	1968) 	398 F.2d 	14 	[68
LRRM 2821] 	case as 	inapplicable 	to the current 	facts, 	I
nonetheless 	find 	that 	the 	proposal 	is 	negotiable 	because 	of 	the
relationship to wages.
The 	District 	asserts 	that 	the 	subject of 	payroll deductions
has 	been 	preempted 	by 	the 	Legislature 	which 	has 	specifically
authorized 	certain payroll deductions 	(e.g., 	sections 	1152
(savings bonds); 	1155 	(credit unions); 	1156 	(insurance
premiums, 	employee organization dues, 	credit union shares,
payments 	to 	state 	agencies); 	1157.1 	(dues 	for 	employee
associations); 	1157.2 	(charitable organizations); 	1157.3 	(dues
in employee organizations, 	i.e. 	unions); 	1157.6 	(retired
employee organizations); 	and 	3543.1 	(giving employee
71

organizations 	the 	right 	to 	have 	the 	employer 	deduct membership
dues 	pursuant 	to Education Code 	sections 	45060 and 	45168)).
However, 	the 	statutes 	authorizing 	certain payroll deductions 	do
not 	preclude 	other 	payroll deductions 	from being 	negotiated.
To 	the 	contrary, 	the Legislature's 	authorization of payroll
deductions 	buttresses 	the Association's position 	that 	this 	is 	a
proper 	method of 	distributing 	wages.
Finally, 	I 	agree with 	the Chairperson's conclusion that 	the
remaining 	portion of 	the 	proposal 	dealing with 	"other 	plans 	and
programs 	. 	. 	. " i s within scope 	for 	the reasons articulated 	in
his opinion. 	So long 	as 	the Association can 	show 	the 	nexus
between 	a 	payroll 	deduction proposal 	and 	an 	enumerated 	subject
in section 3543.2, 	the employer 	has 	the duty to negotiate on
that 	issue.
Article 	IV—Nondiscrimination
Article 	IV of 	the proposals, 	which concerns
nondiscrimination, 	was 	found 	by 	the 	hearing officer 	to be
negotiable 	to 	the extent 	that 	it 	relates 	to 	transfers,
evaluation procedures 	and 	other 	enumerated 	subjects. 	In
excepting 	to 	this 	conclusion, 	the District argues 	that 	the
negotiability of 	this 	proposal 	is 	pre-empted 	by 	existing 	laws
which afford employees 	adequate protections. 	Therefore, 	the
District 	asserts, 	subjecting 	this proposal 	to 	the 	negotiating
process would 	require 	the 	parties 	to engage 	in an 	idle 	act.
72

With 	regard 	to 	several proposals 	addressed 	in 	the
Healdsburg case, 	I 	expressly rejected the 	argument that the
the 	availability of alternative 	remedies 	is 	a 	basis 	for
rendering 	a proposal 	nonnegotiable. 	While 	the discriminatory
acts 	which 	would 	be prohibited 	by 	the 	instant 	proposal may 	also
be challenged 	on 	the 	basis of other 	statutory provisions, 	the
Association 	is 	nonetheless 	free 	to exercise 	its 	judgment 	in
determining 	that 	a benefit 	is 	derived 	from 	including 	this
protection 	in 	their 	negotiated 	agreement. 	I 	therefore do not
conclude 	that 	the Association's 	right 	to negotiate 	an 	agreement
covering 	matters 	which 	are 	within 	the 	scope 	of 	representation
or 	this Board's 	power 	to enforce 	that 	right 	is 	vitiated 	by 	the
existence of 	provisions 	in 	the 	Education Code 	which 	provide
similar 	protections 	unless 	those 	provisions 	expressly 	reveal 	an
intent 	that 	they serve 	as 	the exclusive 	forum. 	The Education
Code 	provisions 	cited 	by 	the District 	impose 	no 	such
limitation.1
I 	find, 	therefore, 	that 	this proposal 	is negotiable 	to the
extent that 	it relates to wages, 	hours, 	enumerated 	terms and
conditions 	of 	employment 	and matters 	related 	thereto. 	As 	I
1 In Local 12, United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL-CIO 	(1964) 	150 NLRB 312 	[57 LRRM 1535],
the NLRB 	similarly concluded 	that 	its 	powers 	and 	duties were
"in no way 	limited 	by Title VII" 	of 	the Civil Rights Act of
1964 	noting 	the Congress' 	rejection of proposed 	language 	to 	the
Civil 	Rights Act which would 	have 	created exclusive
jurisdiction with 	the 	Equal Employment Opportunities 	Commission,
73

concluded 	in Healdsburg,supra, with 	regard 	to 	the
nondiscrimination clause, 	there 	is 	a clear 	and 	strong 	employee
interest 	in 	insuring 	nondiscriminatory 	treatment, 	and 	this
interest 	is 	not 	overridden 	by any 	legitimate 	employer 	concern.
I 	concur 	with 	the 	Chairperson's 	determination 	that 	requiring
negotiations on 	this 	proposal 	abridges 	no managerial
prerogative 	and 	with 	his 	finding 	that 	the 	negotiation 	process
is well suited 	to the airing of 	the parties' 	concerns.
Article 	VI—Public 	Charges
The 	Chairperson 	suggests 	that 	the 	breadth of 	this 	proposal
is 	limited 	to prescribing 	a 	"method 	available 	to 	employees 	for
answering 	public 	complaints 	made 	to 	their 	employer 	about 	job
performance 	. . . " 	and 	as 	such 	is 	related 	to 	an 	enumerated 	term
and condition of employment, 	i.e., 	"procedures 	to be used 	for
the evaluation of 	employees." 	I 	agree with 	the Chairperson
that 	the 	subject matter 	of 	this proposal 	is negotiable, 	but
only to 	the extent 	it 	relates 	to evaluation procedures or 	any
of 	the 	other 	enumerated 	items within 	scope. 	By 	its 	express
terms 	the proposal 	is 	not 	limited 	to 	job performance
complaints, 	but, 	instead, 	may be broadly read as encompassing
any 	type 	of 	public 	complaint 	involving 	a 	certificated 	employee.
The 	Chairperson 	also 	states 	that 	"it may 	be 	safely 	assumed
that 	teacher 	evaluation procedures 	include 	a 	review of
74

complaints 	. 	. 	. pertinent to performance." 	The testimony was
to the 	contrary; 	in this District the evaluation handbook does
not provide for utilization of public complaints as a part of
the evaluation procedure. 	This current practice of nonuse of
such complaints by the District in conducting employee
evaluations does not however 	render this item nonnegotiable.
It 	is 	negotiable notwithstanding the District's present
practice 	because it is nonetheless related to an enumerated
term and condition of employment namely, the employees'
interest in negotiating a procedure regulating the use of
public complaints for 	evaluation purposes.
Certain aspects of paragraphs 2 and 3 of this proposal
would impose a duty on parties who are strangers to the
employment relationship, 	but the overall thrust of those
paragraphs 	is 	to ensure that 	the affected employees 	are
afforded minimal due process 	rights. 	These paragraphs are
negotiable to the extent that they incorporate due process
considerations into the evaluation procedure. 	While the
proposal 	in its present 	form 	is objectionable 	in that 	it seeks
to impose duties on third parties, the proposal could be
refined by removing the mandatory requirement in paragraph 2
that the complainant meet with the employee and in paragraph 3
that 	the complainant set 	forth the complaint in writing and
provide, 	instead, that if the complainant does not do so the
complaint shall not be considered. 	I share the Chairperson's
75

view 	that 	this 	proposal 	is 	an example 	of 	one which 	requires
refinement 	by 	the 	parties.
The 	provision 	in paragraph 	3 	for 	released 	time 	to 	initial
and 	comment 	on 	the 	complaint 	does 	not 	conflict 	with Education
Code 	section 	44031. 	(See discussion 	regarding Article 	XXXII,
infra.) 	Likewise, 	the 	grounds 	for 	adverse 	action by 	the
District 	against 	an employee 	set 	forth 	in paragraph 	5 	does 	not
conflict 	with 	the 	grounds 	for 	dismissal 	of 	a 	certificated
employee 	set 	forth 	in Education Code 	section 	44932.2
2Education Code 	section 	44932 	provides 	that:
No 	permanent 	employee 	shall 	be 	dismissed
except 	for 	one 	or 	more 	of 	the 	following
charges:
(a) 	Immoral or 	unprofessional 	conduct.
(b) 	Commission, 	aiding, 	or 	advocating the
commission 	of 	acts 	of 	criminal 	syndicalism,
as 	prohibited 	by Chapter 	188, 	Statutes 	of
1919, 	or 	in any amendment 	thereof.
(c) 	Dishonesty.
(d) 	Incompetency.
(e) 	Evident 	unfitness 	for 	service.
(f) 	Physical 	or 	mental 	condition 	unfitting
him 	to 	instruct 	or 	associate 	with 	children.
(g) 	Persistent 	violation of 	or 	refusal 	to
obey 	the school 	laws 	of 	the 	state 	or
reasonable 	regulations 	prescribed 	for 	the
government 	of 	the 	public 	schools 	by 	the
State 	Board 	of 	Education or 	by 	the 	governing
board 	of 	the 	school 	district 	employing 	him.
76

The District 	claims 	that 	the 	requirement 	contained 	in
paragraph 	4 	that 	allegations 	which 	are 	found 	to be 	untrue 	be
destroyed 	immediately 	violates 	section 	6200.3 	i 	have 	found
in my discussion 	concerning Article XXXII, 	infra, 	that 	the
District 	may only destroy public 	records 	in 	accordance 	with 	the
procedure 	set 	forth 	in California Administrative Code, 	title 	5,
sections 	16020, 	et 	seq. 	That procedure does 	not permit 	the
"immediate" 	destruction of any 	records and thus, 	the 	aspect of
paragraph 	4 	requiring 	the 	"immediate" 	destruction of 	untrue
(h) 	Conviction of 	a 	felony or 	of 	any crime
involving moral 	turpitude.
(i) 	Violation of 	section 51530 of 	this code
or 	conduct specified 	in 	section 	1028 of 	the
Government code, 	added 	by Chapter 	1418 of
the Statutes of 	1947.
(j) 	Violation of 	any provision 	in sections
7001 to 7007, 	inclusive, of this code.
(k) 	Knowing membership by 	the 	employee 	in
the Communist 	Party.
3Section 6200 provides:
Every 	officer 	having 	the 	custody 	of 	any
record, map, or book, or of any paper or
proceeding of 	any court, 	filed or 	deposited
in any public office, 	or 	placed 	in his 	hands
for 	any purpose, 	who 	is guilty of 	stealing,
wilfully destroying, mutilating, 	defacing,wa . .
altering or 	falsifying, 	removing or
secreting 	the whole or 	any part of 	such
record, map, book, paper, or proceeding, or
who permits 	any other person to do so, 	is
punishable 	by 	imprisonment 	in 	the State
prison 	not 	less 	than one 	nor 	more 	than 	14
years.
77

allegations 	regarding 	a 	certificated 	employee 	conflicts 	with
those 	regulations. 	This 	aspect 	of 	paragraph 	4 	is 	therefore
nonnegotiable.
This 	proposal 	is 	negotiable 	to 	the 	extent 	indicated 	in 	the
above 	discussion.
Article VII 	- Employment 	Classi]fication 	and Assignment
Article VII 	concerns 	classification 	and 	assignment 	of
employees. 	In 	its 	exceptions, 	the District 	argues 	that 	this
proposal 	is 	nonnegotiable 	because 	it 	contains 	"an 	impermissible
restatement 	and/or 	revision 	of 	a 	multitude 	of 	Education Code
sections," 	and 	because 	it 	evidences 	a 	"blatant 	attempt 	to
infringe on management's 	right 	to select, 	classify, 	assign, 	and
direct 	its 	personnel."
While 	I 	am 	in 	agreement 	with 	the Chairperson's
determination 	that 	certain 	portions 	of 	the Article 	are
negotiable, 	I 	find 	that paragraph one 	is 	outside of 	scope.
That 	proposal 	provides 	that 	assignment 	and 	classification 	of
certificated 	employees 	be 	directed 	with 	foremost 	consideration
given 	to 	student 	welfare 	and 	continuity 	of 	instruction. 	This
proposal 	bears 	a 	logical 	and 	reasonable 	relationship 	to
employees' 	wages, 	hours 	and 	benefits 	because disruption of
educational 	programs 	can 	undeniably 	impact 	on 	the 	certificated
employee's 	working conditions. 	However, 	in my view, 	this
78

relationship 	is 	outweighed 	by 	the 	employer's 	legitimate
interest 	in educational 	policy 	concerns 	and 	its managerial
prerogatives 	in 	structuring 	and 	directing 	its 	workforce.
As I 	indicated 	in my opinion 	in San Mateo, 	supra,
educational 	policy 	concerns 	as 	well 	as managerial 	interests
must 	be 	considered 	in 	the 	balancing phase of 	negotiability
decisions. 	In 	reference 	to this 	proposal, 	the 	employer may not
be 	compelled 	to 	negotiate 	with 	the organization as 	to
educational 	continuity 	itself. 	It 	is 	up 	to the District 	to
structure 	and 	direct 	the 	continuity of 	instruction. 	The manner
in which 	such policy decisions 	impact 	on employees' 	wages,
hours, or benefits will, of course, 	be subject to
negotiations. 	However, 	the employer 	is warranted 	in 	refusing
to 	negotiate 	with 	regard 	to 	decisions 	which 	intrude 	on 	the
educational 	process 	and 	the 	instructional program. 	(See New
Rochelle 	(7/29/71) 	4 	PERB 	3704, 	in which 	the New York PERB held
that 	the 	public 	school 	employer must 	determine 	the manner 	and
means 	by which 	educational 	service 	is 	rendered; 	Yorktown
Faculty Association 	(5/13/74) 	7 	PERB 	3051, 	in which curriculum
development was 	held 	nonnegotiable 	as 	a matter 	of 	educational
policy; 	Federal Way Education Association v. 	WPERC 	1977-78 	PBC
36827, 	in which 	the Washington 	state 	court held 	that
educational 	programs 	were 	the 	sole 	responsibility 	of 	school
officials.) 	Thus, 	paragraph one of Article VII 	is
nonnegotiable.
79

The Chairperson 	finds 	that 	the 	classification 	system 	set
forth 	in paragraph 	2.A.-C. 	of 	this 	article 	is 	negotiable
because 	it 	clearly 	relates 	to wages 	and health 	and welfare
benefits 	and 	because 	the 	proposal 	does 	not 	conflict 	with 	the
Education Code 	nor 	does 	it 	require 	acts 	at variance 	with 	those
statutorily demanded. 	I 	agree with 	the Chairperson 	that 	these
proposals 	relate 	to wages. 	I 	note 	that, 	while the 	term "fringe
benefits" 	is 	not defined 	in EERA, 	I would 	interpret this phrase
to encompass subjects which relate to wages, 	leave, 	health and
welfare 	benefits 	and 	other 	enumerated 	subjects.
The 	classifications 	addressed 	in 	paragraph 	2 A-C are
offered 	for 	purposes 	of 	definition within 	the 	negotiated
agreement and, 	as 	the Chairperson observes, 	the Education Code
sections 	which 	pertain 	to 	these 	employee 	groupings 	do not
compel 	the 	employer 	to 	act 	in a manner 	which 	would conflict
with 	the proposals. 	In Healdsburg, 	supra, 	I 	addressed 	the
supersession 	language 	found 	in 	section 	3540 	of EERA and
concluded 	that 	if a proposal 	pertains 	to a subject which 	is
covered 	in 	the Education Code, 	the 	negotiability of 	that
proposal 	is 	not precluded 	so 	long as 	it does 	not 	directly
conflict 	with 	the 	code provision. 	Unless 	the 	statutory
language 	clearly 	evidences 	an 	intent 	to 	set 	an 	inflexible
standard or 	insure 	immutable 	provisions, 	negotiability should
not be 	precluded.
80

In 	reviewing 	the 	Education Code 	provisions 	which 	are
pertinent 	to paragraph 	2.A-C, 	I 	find 	no 	such 	statutory
impediment. 	Paragraphs 	2.A.,B., 	and C of 	this proposal divide
certificated 	employees 	into 	three 	categories 	which 	do 	not
exactly parallel 	the 	divisions 	of 	employees 	as 	set 	out 	in 	the
Education Code. 	In Education Code 	section 45024, 	full-time
employees 	are 	defined 	as 	persons 	employed 	for 	not 	less 	than 	the
minimum day.4 	That 	section 	specifically permits 	that 	such
employees 	can 	be 	required 	to work 	a 	longer 	period 	than 	the
minimum day 	as 	defined. 	Education Code 	section 	45025 	permits
any 	certificated person 	to 	serve 	as 	a part-time 	employee,
defined 	as 	service 	for 	less 	than 	the minimum day. 	It provides
a 	salary 	rate which, 	like paragraph 	2B, 	is 	based on a 	ratio to
full-time employees. 	No category of 	employees 	as 	is 	defined 	in
paragraph C 	is 	contained 	in 	the Education Code.
The 	categorization 	of 	employees 	contemplated 	by 	paragraphs
2.A., 	B., 	and C does 	not 	impermissibly 	conflict 	with 	the
Education Code 	sections 	referenced 	above. 	The 	stated 	purpose
of 	these paragraphs 	is 	to delineate employee groupings 	and, 	as
to 	those 	groupings, 	to 	incorporate 	the provisions of 	the
agreement 	which 	relate 	to compensation 	and 	benefits. 	The
4AS 	the Chairperson 	notes, 	the minimum day when computed
on a weekly basis 	amounts 	to approximately 	20 	hours. 	Education
Code 	sections 	46112 	through 	46116 	and 	section 	46141 	define 	the
minimum school 	day 	for 	various 	grade 	levels.
81

categories do 	not 	in 	any 	sense 	interfere with 	the 	employer's
right 	to 	direct 	the workforce or 	obstruct 	educational 	policy
considerations. 	I 	therefore 	find 	that 	the proposals 	set 	forth
in paragraphs 	2.A.,B., 	and C 	are 	negotiable.
Paragraph 2.D. 	(1-6) 	of this article pertains 	to the
employment 	security 	of 	temporary 	employees.5 	In 	my 	view,
employment 	security 	is a matter 	of 	vital 	concern 	to 	temporary
certificated 	employees. 	While I 	recognize 	that 	the employer
shares 	an 	interest 	in 	selecting 	employees 	for 	work 	assignments,
I 	do not 	conclude 	that 	this 	concern 	overshadows 	the employees'
interests 	in a manner 	which would 	require 	that 	the 	subject 	be
excluded 	from 	the negotiating process. 	As 	stated, 	infra, 	with
regard 	to 	article 	XV and 	the 	selection of 	summer 	school
positions, 	the 	selection of 	temporary employees 	for 	regular
positions 	does 	not 	raise 	the 	same 	concerns 	as are evident 	in an
initial 	hiring decision. 	The 	temporary 	employees 	have 	an
employment 	relationship 	with 	the District 	which 	is
significantly different 	than 	the 	potential 	employment
5paragraph 	2 D 	(1) 	refers 	to sections 	13336-13337.3 of
the Education Code. 	These 	are 	now contained 	in 	sections
44917-44920 of 	the 	reorganized 	Education Code. 	Although 	some
of 	these 	sections 	refer 	to substitute employees, 	since 	the
heading of 	the proposal 	is 	Temporary Certificated 	Employees 	I
assume 	the Association 	seeks 	to 	negotiate 	only 	as 	to 	those
employees. 	To the extent 	that 	the proposal 	is meant to 	include
substitutes, 	I agree with the Chairperson that 	it 	is
nonnegotiable 	since 	those 	employees 	are 	specifically 	excluded
from the 	unit.
82

relationship 	that 	a prospective 	employee 	has. 	The 	employer's
right 	to 	exercise 	its 	judgment with 	regard 	to 	employment
qualifications 	is 	insured when 	it 	initially hires 	the 	temporary
employees.
While 	the 	impact 	of 	this 	proposal 	raises 	legitimate
concerns 	relevant 	to the District's 	financial 	situation 	and 	its
flexibility 	in 	administering 	the 	educational 	system, 	which may
entail 	educational and public policy considerations, 	I do 	not
view 	these 	as 	outweighing 	the 	strong 	employee 	interests 	also
involved. 	As 	I 	stated 	in my concurring opinion 	in San Mateo,
supra, 	the mere 	presence of educational or 	public policy
considerations 	does 	not 	render 	a 	proposal 	nonnegotiable 	(at p.
37). 	Here, educational and public policy issues other 	than
flexible 	administration are 	raised 	by 	the 	proposal 	to 	the
extent 	that 	rehiring 	or 	reassignment 	of 	experienced 	teachers
may 	result in benefits 	to educational goals and, 	perhaps, 	the
continuity of 	instruction to students. 	Therefore, 	I 	view the
negotiating 	process 	as 	an 	appropriate 	forum for 	resolution 	of
these 	interests. 	I 	also 	find 	that 	no Education Code provision
compels 	action by 	the District which 	directly conflicts 	with
the mandate of paragraph 	2.D.(l-6). 	I 	agree with the
Chairperson's 	conclusion 	that 	this 	proposal 	permissibly
provides 	supplemental 	rights 	to 	temporary employees 	and 	is
negotiable.
83

Similarly, 	with 	regard 	to paragraph 	2.E. 	which 	refers 	to
home 	teachers, 	am 	in 	agreement with 	the Chairperson's 	finding
that 	this 	proposal 	relates 	to hours 	and benefits 	of home
teachers. 	The 	employer's 	interest 	in assigning 	such work 	and
in 	implementing 	educational 	policies 	to 	include 	such
instruction 	is 	not 	intruded 	upon by 	this 	otherwise 	negotiable
proposal.
Paragraph 	2.F. 	of 	article VII 	seeks 	to preclude any
assignment 	of 	certificated 	employees 	to 	positions 	requiring
qualifications, 	training or 	experience 	beyond 	that maintained
by 	the 	individual 	employee. 	This 	proposal 	bears 	a 	clear
relationship 	to 	reassignment 	and 	transfer policies.6 	It 	also
may 	relate 	to evaluation procedures. 	The District's 	interest
in 	insuring a 	sound 	educational 	program 	is 	not offset by 	this
proposal but may 	in 	fact 	be 	furthered by 	this 	item. 	I
therefore 	am 	in 	agreement with 	the Chairperson's 	conclusion
that 	it 	is negotiable.
6 I 	am aware 	of 	the 	fact 	that 	reassignment was 	not 	an
enumerated 	subject at 	the time this case arose. 	However, 	in
accordance with my discussion 	in San Mateo, 	supra, 	pages 33-36,
I 	am 	unable 	to 	conclude 	that 	reassignment 	as 	a 	negotiable 	item
was 	specifically added 	because 	it 	bears 	no 	logical or
reasonable 	relationship 	to wages, 	hours 	or other 	enumerated
terms 	of employment. 	To the contrary, 	I 	view reassignment as
affecting 	the 	employees' 	wages and hours 	because 	it has 	the
effect 	of 	specifically continuing 	the 	employment 	relationship.
84

Article 	VIII—Compensation
Article VIII 	concerns compensation. 	I 	am 	in agreement with
the Chairperson that article VIII 	is 	negotiable, 	and I
essentially agree 	with 	his 	discussion.
I 	would 	also 	note 	that 	the District's 	assertion 	that 	all of
the reemployment 	rights 	of 	temporaries 	and 	substitutes 	are
addressed 	in 	and 	preempted 	by 	Education Code
sections 44917-44921 	is without merit. 	These 	sections deal
with 	classification 	of 	substitute 	and 	temporary 	employees 	and
their 	reemployment rights. 	Paragraph 	2.D. 	does 	not conflict
with 	these provisions. 	Rather, 	it seeks 	to determine a method
by which 	regular 	certificated 	employees 	who 	have 	been
substitutes 	or 	temporary 	employees 	can obtain 	credit 	(and
presumably greater pay) 	based on 	that 	experience 	and 	in 	large
part 	tracks Education Code 	section 	44918.
As 	to paragraph 	2, 	it 	is 	entirely consistent with Education
Code 	sections 	45038 and 	45048 	as 	the Chairperson 	notes. 	The
latter 	section 	specifically provides 	that payment may 	be 	made
on 	the 	last 	working day 	of 	the month. 	The District 	argues 	that
this 	paragraph 	is 	nonnegotiable 	because 	it 	relates 	to 	summer
school 	employees 	and 	because 	Education Code 	section 	45049
controls. 	As 	to the 	latter 	argument, 	this proposal does 	not
conflict 	with Education Code 	section 	45049 	and 	is 	negotiable
provided 	that 	summer 	school positions 	are 	in the 	unit. 	As
85

discussed with reference 	to article XV, 	infra, 	that 	issue
cannot be 	determined 	here, 	and 	there 	are 	unit modification
procedures 	to deal with 	such disputes 	(PERB 	rule 	33260
et. 	seq.).
Paragraph 	15 	is 	negotiable. 	The hearing officer 	notes 	that
both public and 	private 	sector 	cases 	are 	in 	accord. 	(H.O.
Proposed Decision, p. 	39)
Paragraph 	17 	is 	negotiable 	for 	the reasons 	set 	forth 	in the
Chairperson's 	opinion.
Article 	X—Working 	Conditions
Article 	X 	relates 	to working conditions. 	The Association
asserts 	that 	each 	disputed 	paragraph 	relates 	to 	evaluation
procedures.
Paragraph 	1 	can 	arguably 	impact 	evaluation procedures 	since
a 	lack 	of 	appropriate 	classroom 	facilities 	could 	adversely
affect 	a teacher's 	evaluation. 	This 	proposal may also 	relate
to class size, 	as 	the Chairperson suggests, 	since the size and
type 	of 	classroom may vary depending on class 	size. 	I 	would
permit 	employee 	organizations 	to 	compel 	negotiations 	on 	a
narrower 	proposal which would 	insure 	that 	a 	lack 	of 	classroom
facilities 	would 	not 	negatively 	affect 	evaluations. 	The
current proposal, 	however, 	poses too substantial an
interference 	with 	the 	employer's 	interest 	in directing 	and
86

managing 	the 	certificated workforce, 	in making appropriate 	work
assignments 	and 	in parceling out 	available 	facilities 	and 	is
therefore 	not 	negotiable.
The Chairperson 	notes 	that 	employees' 	concern with 	this
proposal 	is 	the 	same 	as 	they have with 	their 	overall 	ability 	to
perform 	their 	job. 	To 	the 	extent 	this 	relates 	to 	evaluation
procedures, 	I agree. 	I note, 	though, 	that overall ability to
perform one's 	job must 	be 	tied 	to 	the 	enumerated 	terms 	and
conditions of EERA, 	or matters 	related 	to them, 	to be 	in scope.
Paragraph 	4 	attempts 	to 	secure 	a 	consultation 	right with
building 	administrators 	regarding 	scheduling, 	assignments,
faculty meetings, 	accounting requirements, 	and other
educational matters.
While 	section 	3543.2 	prescribes 	consultation on 	certain
matters 	and 	permits 	consultation on 	all other matters,
consultation 	itself 	is 	not 	listed 	among 	items 	within the 	scope
of 	negotiation. 	If an 	item 	is 	within the scope of negotiation,
the parties 	are 	free 	to propose 	merely consulting 	about 	the
item 	rather 	than 	negotiating 	about 	it. 	The Association cannot,
however, 	add 	to 	the subjects 	about which management must 	confer
with 	it by proposing 	to negotiate 	a right 	to consult about
items 	which 	are 	otherwise 	outside 	the 	scope of 	negotiation and
on which consultation 	is 	not 	required by 	the 	statute. 	This
would 	serve 	to 	circumvent 	the 	statute 	and 	bootstrap 	into
87
•

negotiations "consultation" on items which would otherwise be
within management's prerogative.
I 	agree with the hearing 	officer 	that 	the paucity of 	the
record 	makes 	it 	difficult 	to 	determine whether 	the proposed
items impact on hours of employment or only on the 	internal
structuring of 	the normal work day.
As set forth in San Mateo, 	supra, and Palos Verdes Peninsula Unified
School D i s t r i c t / P l e a s a n t Valley School District 	(7/16/79) 	PERB Decision No. 	96
if scheduling or assignments impacts on the number of hours 	in a day that a
teacher would be required to work or the distribution of hours of work, 	then
it 	is reasonably related to 	"hours of employment" 	and is negotiable.
Alternatively, 	if 	scheduling or 	assignments 	refers 	to 	the
internal ordering of 	classes or 	duties, 	the 	item falls within
the ambit of management prerogative and 	is not negotiable.
Presumably 	the proposal on faculty meetings 	pertains 	to
meetings 	required 	by the District. 	If 	such 	faculty meetings
occur 	outside the 	normal workday, 	or 	if the meetings cut 	into
an instructor's preparation, 	lunch, 	rest time or 	similar time,
the 	item relates 	to hours of employment and 	is negotiable.
Similarly, 	to 	the extent 	that 	accounting 	requirements
placed on teachers impact on available preparation, 	rest time
or 	similar 	time periods, 	the 	item 	is 	negotiable 	since 	it
relates 	to hours.
"Other 	educational matters" 	is 	so vague as 	to defy
categorization. 	I disagree with 	the Chairperson that 	this
88

seeks 	a 	mechanism for 	implementing 	consultation 	rights 	that 	the
Association possesses pursuant 	to EERA. 	I 	agree 	that
procedures 	for 	implementing 	the 	consultation 	rights 	set 	out 	in
EERA are 	negotiable. 	I view this proposal, 	however, 	as seeking
to give 	the 	employees 	the 	right 	to consult 	about 	"other
educational 	matters 	that 	are 	decided on 	a 	individual 	school
basis." 	To the extent 	that 	this 	encompasses 	only 	those
educational matters set forth 	in EERA, 	e.g. 	course content and
curriculum, 	it 	is 	negotiable. 	To the extent 	it 	encompasses
other matters, 	it is not.
Like paragraph 	1, 	paragraph 	8 may have an impact on
employee 	evaluation procedures 	because 	inadequate 	supplies
could obstruct 	satisfactory work performance. 	However, 	as
written, 	this proposal 	is 	nonnegotiable because 	it 	intrudes on
management's 	right 	and 	responsibility 	to 	allocate 	funds 	for
supplies 	as 	it deems 	necessary 	in order 	to best 	implement
educational policy. 	Again, 	a narrower 	employee proposal which
specified 	that 	a lack 	of 	adequate 	supplies 	would 	not 	reflect 	on
a 	teacher's 	evaluation would 	be 	negotiable 	as 	related 	to
evaluation 	procedures.
Paragraph 	10 refers 	to 	"adjunct duties". 	Although
management has 	a right 	to 	assign 	duties 	during 	the course of
the day, 	if 	these duties 	affect 	a teacher's preparation time,
89

rest periods, 	lunch or breaks, 	the proposal 	is logically
related to hours and thus negotiable.7
Further, 	I agree with the Chairperson's opinion that
employees have a legitimate 	interest in a fair assignment of
tasks and can negotiate to 	insure that this 	goal 	is
accomplished.
Paragraph 12 is a nonnegotiable proposal, in my view,
because 	it infringes on management's authority 	to allocate
funds 	in a manner best designed to effectuate educational
policy. 	While employees may legitimately be concerned with
attaining those 	facilities by which property is 	secure and
safe, 	this concern 	is overridden by management's 	interests.
Article XI—Hours of Work
I 	agree with the Chairperson that the subject of
paragraph 1 	is 	negotiable to the extent the Association seeks
to negotiate the number of hours the teachers are required to
be present during the workday (Palos Verdes Peninsula Unified School District/
Pleasant Valley School District, supra; 	San Mateo, 	supra) . 	However,
to 	the extent 	the Association 	seeks 	to negotiate what classes will
be held and when, 	as the last sentence of paragraph 1 may imply, the proposal
is nonnegotiable because 	it intrudes on 	the area of the employer' s
7 San 	Mateo, 	supra, 	and 	Palos Verdes, 	supra
90
---·

right 	to direct 	its 	workforce 	and 	significantly 	impinges 	on
educational policy 	issues. 	It 	is 	thus 	outside scope. 	The
Association's desire 	to 	be 	provided 	timely 	notice 	of 	the
schedule 	is 	negotiable.
I 	agree with 	the Chairperson 	that 	the subject 	of 	paragraph
5, 	i.e., 	timing of faculty meetings, 	is negotiable 	for 	the
reasons he expresses. 	The District 	has 	an 	interest 	in
controlling 	its 	workforce 	and 	there 	are 	clear 	educational
policy 	aspects 	to 	the 	number 	and 	timing of 	faculty meetings.
These 	are outweighed 	in 	this 	instance 	by 	the 	employees'
interest 	in negotiating 	the 	number of 	hours 	they are 	required
to work. 	However, 	the 	scheduling 	of 	faculty meetings 	which are
timed 	so 	as 	not 	to 	impinge on the employee's 	nonworking 	time or
preparation 	time 	is 	nonnegotiable.
The Chairperson 	finds 	that 	the 	establishment of 	"yard 	duty
schedules 	[the 	subject 	of 	paragraph 	6] 	which may 	impinge on
nonworking 	time, 	i.e., 	during lunch or breaks, 	are a required
subject of negotiation." 	I agree. 	Further, 	I 	view such
schedules 	as 	negotiable 	if 	they 	impact 	on an employee's
preparation 	time.
The subject of paragraph 7, 	i.e., 	preparation time, 	is
negotiable 	for 	the 	reasons expressed 	in San Mateo, 	supra. 	In
his 	dissent 	in San Mateo, 	Member 	Gonzales 	states 	that 	to make
preparation 	time 	negotiable, 	if 	that 	is defined 	to 	include
other 	than ministerial 	tasks 	which must be done on campus, 	is
to demean 	teaching 	as 	a profession and 	turn 	it 	into merely a
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job. 	To the contrary, 	to require 	teachers 	to prepare 	is a 	job
requirement 	and 	to prohibit 	them 	from 	negotiating 	over 	a
requirement which clearly affects 	the 	hours 	they must 	work 	is
to 	demean the worth of 	the teachers' time to 	the employer. 	It
is manifestly 	unfair 	to 	require 	work 	and extract 	it 	without 	pay
because 	it 	is 	denominated 	as 	"professional" 	work.
As 	to paragraph 	9, 	I 	view this 	proposal 	as 	outside of 	scope
because 	it 	is 	overbroad. 	While 	its provisions clearly 	refer 	to
employees' 	hours, 	and possibly evaluation procedures 	(since
training may affect 	evaluations) 	it would nonetheless 	require
that 	the 	employer 	agree 	to 	a 	specific and 	fixed 	allocation 	of
time 	for 	staff development 	for 	an 	undisclosed 	purpose. 	While
this 	proposal may 	be 	an 	area of 	legitimate 	employee 	concern 	and
may 	seek 	to 	incorporate 	a 	laudable 	program of 	needed
development, 	it 	fatally 	interferes 	with management's 	authority
to 	direct 	its workforce. 	The number 	and 	timing of 	such
training 	days may 	also 	have 	strong 	educational 	policy
implications.
To the 	extent paragraph 	9 	addressed 	providing 	training
relating 	to, 	for 	example, 	safety procedures, 	it would be
negotiable 	since 	this 	is 	an expressly enumerated 	term and
condition of employment. 	However, 	the proposal 	in 	its present
form cannot be 	read 	so 	narrowly 	and 	in 	the absence of 	further
refinement 	it 	is 	nonnegotiable.
The 	hearing 	officer 	found 	the 	subject 	matter 	of 	paragraph
13 	outside 	scope and 	thus 	nonnegotiable. 	The District 	excepted
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on 	the 	ground 	that 	there was 	not sufficient 	evidence 	in 	the
record 	to 	enable 	the 	hearing officer 	to make 	that
determination. 	Notwithstanding 	the District's objections, 	I
agree with 	the 	hearing officer 	and 	the Chairperson 	that 	this
matter 	is 	outside 	scope. 	While this 	proposal has a
relationship to teachers' 	hours, 	it unduly encroaches upon the
managerial prerogative 	of 	the District 	to 	establish 	the
requisite 	amount of 	instructional 	time 	it deems 	necessary for
children 	in special 	education.
Article XIV—Committees; 	Appendix B - School Calendar
I 	agree 	with 	the 	result 	reached 	by 	the Chairperson 	and 	his
rationale 	supporting 	that 	result.
The Chairperson did not, 	however, mention that the District
opposes 	negotiability on 	the 	ground 	that 	this 	proposal
conflicts 	with 	the 	authority 	and 	responsibility 	imposed 	on 	it
by Education Code 	sections 	350108, 	350209 and 	35161.10
8Education Code section 35010 provides 	that:
Every 	school 	district shall 	be 	under 	the
control of a 	board 	of 	school 	trustees 	or 	a
board of 	education.
9 Education Code section 35020 provides that:
The 	governing 	board of 	each 	school 	district
shall 	fix 	and 	prescribe 	the duties 	to be
performed 	by 	all persons 	in public 	school
service 	in the school district.
10 Education Code section 35161 provides that:
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That 	the District has 	the 	power 	and 	responsibility
conferred 	on 	it 	by 	these 	statutory provisions 	cannot be
denied. 	I submit, 	however, 	that 	these provisions do not
expressly confer 	power 	on 	the District 	to 	unilaterally
establish a calendar. 	Instead, 	they are 	to be 	read and
construed 	in 	conjunction with 	the provisions 	of 	the EERA which
require 	bilateral 	discussion 	between 	the 	parties 	on 	all matters
within the 	scope of 	representation.
This 	proposal 	is 	negotiable 	to the extent 	indicated by 	the
Chairperson because of 	its 	relationship to 	hours of employment,
an 	expressly 	enumerated 	item within 	scope.
Article 	XV—Summer 	School
Article 	XV pertains 	to 	summer 	school 	sessions. 	The
District's 	exceptions 	address 	those 	portions 	of 	this 	article
which 	relate 	to 	selection procedures, 	specifically paragraphs 	6
through 	10, 	which are 	designed 	to 	insure 	regular 	term 	teachers
priority 	in obtaining 	summer 	school 	positions. 	The District
maintains 	that 	it 	is 	not 	required 	to 	negotiate on the 	selection
procedure 	used 	for 	any 	staffing, 	including 	the 	staffing of
The 	governing 	board 	of 	any 	school 	district
may execute 	any 	powers delegated 	by 	law 	to
it or 	to 	the district of which 	it 	is 	the
governing 	board, 	and 	shall discharge any
duty 	imposed 	by law upon 	it 	or 	upon the
district 	of which 	it 	is 	the 	governing 	board
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summer 	school positions. 	It cites Education Code
sections 44913, 	44923 and 	51730 	in asserting 	that 	it 	should not
be 	required 	to 	negotiate 	this 	proposal. 	Those 	code 	sections
are 	neither 	directly applicable 	nor 	in conflict with 	the
Association's 	proposal.
In considering 	the 	negotiability of 	this proposal, 	I 	note
that 	the 	employer 	has 	a valid 	and 	legitimate 	interest 	in
selecting 	those persons 	who are 	to 	staff 	the summer 	school
positions available. 	In addition, 	however, 	the employees have
a 	legitimate 	interest 	in establishing 	a 	procedure 	by which
persons 	will 	be 	selected 	to 	fill 	these positions 	and 	in
obtaining 	such 	positions. 	Summer 	school 	appointment
necessarily 	results 	in an 	increase 	in 	hours 	of 	work 	and
compensation 	as 	to 	those 	teachers who also work 	in the regular
term. 	In balancing 	these 	interests, 	I 	believe that this
proposal, 	which seeks 	to establish predictable methods of
employee 	selection, 	including a 	seniority factor 	as 	set 	forth
in paragraph 10, 	is negotiable.
I 	view this 	proposal 	as 	distinguishable 	from 	initial 	hiring
decisions 	and 	more 	similar 	to decisions 	regarding 	re-employment
and 	re-call. 	The pertinent distinction 	is 	that 	the employer's
interest 	in 	initial 	selection 	raises 	concerns 	as 	to the
qualifications 	of 	those 	persons 	selected. 	Such 	hiring
decisions 	involve 	areas 	of 	managerial prerogative 	and 	also
impact 	on educational policy 	factors. 	However, 	when the
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employer's 	selection 	is 	restricted 	to a pool of 	candidates
which 	have 	already met with 	the employer's 	approval, 	as
evidenced 	by 	their 	previous 	employment 	relationship, 	then 	I
find 	no 	impermissible 	intrusion 	into 	the 	realm of 	managerial
rights 	but 	rather 	find 	that 	the 	meeting 	and 	negotiating 	process
is 	the 	forum for 	addressing 	the 	countervailing 	interests 	of 	the
teachers 	and 	the District.
In so holding, 	I note 	that I 	do not find paragraph 6 as
establishing 	that special 	programs 	for 	summer 	school will 	be
offered. 	Clearly, 	the establishment of 	such 	programs 	would 	be
a 	managerial 	prerogative with 	evident 	educational 	policy
concerns. 	My conclusion 	that 	this 	proposal 	is 	negotiable 	rests
on 	the 	assumption 	that 	paragraph 	6 defines 	special 	programs 	for
purposes 	of 	setting 	forth 	in the agreement which 	positions will
be 	governed 	by 	the 	selection procedure 	contained 	in
paragraphs 	6-10. 	I 	therefore agree that, 	in most 	respects,
paragraphs 	6-10 	of 	this 	article 	are 	negotiable.
The 	last 	sentence of 	paragraph 	6 attempts 	to 	direct 	the
District 	to have 	the 	Summer 	School Director 	and 	the Head
Teacher 	interview applicants. 	This 	intrudes 	on the 	employer's
right 	to direct and 	assign work 	tasks, 	and 	it 	is 	not 	negotiable.
I 	also wish 	to 	comment 	on 	the 	last 	clause of 	paragraph 	10
which 	refers 	to the development 	of 	specific 	programs. 	In part,
this 	proposal 	raises 	issues 	relevant 	to 	educational policy
concerns. 	On balance, 	however, 	because 	it requires 	that such
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programs 	are a 	factor 	to be 	considered 	in summer 	school
selection, 	I 	find 	that managerial 	interests 	are 	not violated,
and 	the 	proposal 	is 	not 	rendered 	nonnegotiable 	because of 	this
portion.
I 	am 	in 	agreement with 	the Chairperson 	that 	all of 	the
above are 	negotiable 	if summer 	school positions are 	in the
unit. 	I 	also 	agree that unit modification 	is 	the appropriate
way 	to 	resolve 	this 	question.
Article 	XVIII—Leaves
The District 	has 	submitted 	exceptions 	to 	the 	hearing
officer's 	conclusions 	regarding 	paragraph 1 	and 	paragraph 	6.G.
of article XVIII. 	Paragraph 	1 of 	this 	article seeks 	to
incorporate 	various Education Code 	provisions 	which 	pertain 	to
leaves 	and 	paragraph 	6.G. 	prohibits 	the 	employer 	from using
pregnancy 	as 	the 	basis 	for 	several 	employment 	related
decisions. 	As to paragraph 1 of 	this 	article, 	I am 	in
agreement with 	the Chairperson that this 	proposal, 	which
incorporates 	the 	specified 	Education Code provisions 	regarding
leave, 	is 	negotiable. 	I note that paragraph 1 refers 	to other
paragraphs 	of 	this Article 	as 	supplementing 	the Education Code
sections specified 	in paragraph 	1. 	Since 	none of 	those
paragraphs 	were 	excepted 	to by the District, 	I 	am addressing
only 	the 	incorporation 	of 	the 	specified 	code 	sections.
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As 	the 	hearing 	officer 	concluded, 	the 	supersession 	language
of 	section 	3540 of 	the EERA prohibits 	the 	negotiability of
proposals 	which 	would 	result 	in 	the 	supersession 	of 	provisions
set 	forth 	by the Education Code. 	In this 	instance, 	however, 	by
incorporating 	the Education Code 	sections 	into 	the 	parties'
negotiated 	agreement, 	the 	employer 	is 	merely obligated 	to 	act
in conformity 	with 	those 	statutory specifications. 	Thus,
because 	leave 	is 	a specifically enumerated 	term and 	condition
of 	employment 	and 	because 	the 	employer's 	interest 	in managing
employee 	leave 	is 	not jeopardized 	by this proposal, 	I 	agree
with 	the Chairperson's conclusion that 	it 	is 	negotiable.
The District 	argues 	that paragraph 	6.G. 	of 	this 	proposal 	is
nonnegotiable 	because 	various 	state 	and 	federal 	laws 	exist
which 	provide 	adequate 	remedies 	for 	such 	discriminatory
treatment. 	In my view, 	paragraph 	6.G. 	is 	negotiable 	to the
extent 	that 	it 	relates 	to 	enumerated 	subjects 	set 	forth 	in the
Act or matters 	relating 	to enumerated 	subjects. 	In other
words, 	as I 	said 	in Healdsburg, 	supra, with regard to a
nondiscrimination proposal, 	the District must 	negotiate 	this
proposal 	to 	the extent 	that 	it pertains 	to such matters as
setting 	wages, 	establishing hours of work, 	implementing leave
and 	transfer policies, 	promotions, 	or 	evaluation procedures.
With 	regard 	to the District's argument 	that 	this 	proposal 	is
unnecessary and 	thus 	nonnegotiable, 	as 	I 	stated 	in Healdsburg,
supra, 	the 	availability 	of alternative 	remedies does 	not 	render
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an otherwise 	negotiable proposal 	nonnegotiable. 	While
Education Code 	section 	44965 	pertains 	to 	leaves 	of 	absence 	for
pregnancy and 	childbirth, 	that 	provision of 	the 	statute 	does
not conflict with 	the Association's proposal.
Thus, 	I conclude 	that paragraph 	6.G.(2) 	is 	negotiable to
the 	extent 	that 	training 	selections 	affect promotions 	which 	in
turn 	relate 	to wages. 	(See my discussion with 	regard 	to Article
XIX in Healdsburg, 	supra, 	in which I conclude that promotion 	is
a negotiable subject.) 	Similarly, 	paragraph 	6.G.(4) 	is
negotiable 	because of 	its 	relationship 	to 	reassignment 	as 	well
as 	to promotions. 	Paragraph 	6.G.(5) 	specifically prohibits
discrimination as 	to wages 	and 	is 	thus clearly negotiable. 	The
"terms and conditions" 	language of subpart 	(5) 	is 	read 	to
incorporate 	those 	items 	which 	are 	enumerated 	terms 	in 	the EERA
or 	related 	to such enumerated 	terms and, 	thus, 	with 	this
limitation, 	is 	negotiable. 	As to paragraph 6.G.(1) 	and 	(3),
however, 	these proposals are outside of 	scope 	because 	the
employer's 	decision 	to 	hire 	or 	fire 	employees 	should 	not be
subjected 	to the 	negotiation process. 	While 	such 	is 	not 	the
case 	in the private 	sector, 	under 	the 	language of EERA I
conclude 	that 	on 	balance 	the 	employer's 	prerogative 	prevails
over 	the 	unquestionably 	strong 	interest 	that 	employees 	have 	in
these 	areas. 	While 	these 	actions may 	be 	challenged 	based 	on
other 	legal obligations 	imposed on the school districts, 	the
99

parties are 	not 	permitted, 	in my view, 	to 	intrude on these
managerial 	prerogatives 	as 	is 	contemplated 	by these 	subparts.
Article 	XXI—Certificated 	Employee 	Evaluations
The 	hearing 	officer 	concluded 	that 	this 	proposal 	relates 	to
"procedures 	to 	be 	used 	for 	the evaluation of employees" 	and 	is
negotiable. 	The District 	excepts 	from 	this 	conclusion on the
grounds 	that 	the proposal 	imposes 	a 	limitation on 	the material
that may 	be 	kept 	in 	an employee's personnel 	file and 	does 	not
relate 	to 	the 	actual procedures 	for 	the evaluation of a
certificated 	employee.
Employees' 	evaluations 	have 	a direct 	effect 	on their 	future
wages, 	hours of employment, 	and other 	enumerated 	terms and
conditions of employment. 	Therefore, 	employees have a vital
interest 	in 	insuring 	that 	only evaluations conducted 	in
accordance with 	a negotiated 	procedure 	be 	included 	in their
personnel 	files.
While 	articles VI 	and 	XXXII 	also 	seek 	to 	impose 	limitations
on the 	contents of personnel 	files, 	this proposal, 	viewed
independently, 	would 	only prevent 	the District 	from 	including
evaluations 	that 	are 	not conducted 	in 	accordance with 	the
negotiated 	procedure 	in an employee's personnel 	file; 	it does
not 	by 	itself 	foreclose 	the District 	from 	including other
materials 	in such 	files.
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I conclude 	therefore 	that 	the 	District's 	interest 	in
regulating 	the 	contents of 	its 	files 	does 	not 	outweigh 	the
employees' 	interest 	in guaranteeing 	that 	their 	personnel 	files
contain only 	those 	evaluations 	which 	are 	properly 	conducted 	in
accordance 	with 	the 	negotiated 	evaluation procedure.
This proposal 	is negotiable.
Article 	XXII 	- 	Resignation 	and 	Dismissals
Article 	XXII of 	these 	proposals 	refers 	to 	resignation 	and
dismissal of 	employees. 	Since 	parts 	1-3 	of 	this 	item were 	not
excepted 	to by the District, 	they are 	not 	included 	in my
review. 	Part 4 of this article, 	however, 	was excepted to by
the District. 	The 	District 	argues 	that 	the 	hearing 	officer 	was
unwarranted 	in 	finding 	that 	this 	proposal provides 	for
severance pay, 	is 	an 	economic 	benefit 	and 	is 	thus 	negotiable
because of 	its 	relationship 	to wages. 	The District disputes
the 	characterization 	as 	severance 	pay 	and 	asserts 	that 	this
proposal 	would 	impose 	a penalty 	for 	withdrawing 	dismissal
notices. 	The District argues 	this proposal 	is 	nonnegotiable
because of article XVI, 	section 6, 	of 	the California
Constitution which prohibits 	gifts of public 	funds. 	It 	also
urges 	that 	this proposal 	is 	in conflict with 	those 	provisions
of 	the 	Education 	Code 	which 	provide 	procedures 	for 	employee
discharge.
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In 	its present 	form, 	the 	proposal would 	require 	payment of
$300 	and 	payment 	of expenses 	incurred 	in connection with 	an
employee's 	search 	for 	other 	employment. 	The 	latter 	portion of
this 	item 	is 	unlike 	a penalty and 	is 	intended 	as 	compensation
for 	such 	efforts 	incurred 	as 	a 	result of 	the 	rescinded
dismissal. 	In conformity with 	the 	following discussion, 	I 	find
it negotiable.
The 	portion of 	the 	proposal which 	requires 	the 	fixed
payment of $300, 	however, 	is less easily categorized. 	To the
extent 	that 	it 	is 	intended as a penalty, 	I am in agreement with
the Chairperson 	that 	it 	is nonnegotiable. 	However, 	it 	is 	also
possible 	to 	view 	this 	demand 	as 	a 	financial 	award 	akin 	to
severance 	pay as 	the Association 	asserts.
In 	general, 	severance 	pay 	is afforded 	to discharged
employees 	in 	order 	to 	ease 	the 	burden 	that 	results 	from 	loss of
employment. 	It 	is 	generally characterized as 	a 	form of
compensation 	granted 	to 	alleviate 	the 	need 	for 	economic
adjustment 	brought 	about 	as 	a consequence 	of 	unemployment.
(Straus-Duparquet, 	Inc. 	v. 	Local Union No. 	3, 	IBEW 	(2nd Cir.
1967) 	387 F2d 	649.) 	It 	is provided 	in order 	to 	insure a worker
whose 	employment 	has 	been 	terminated 	funds 	to 	depend 	on 	until
other 	employment 	is 	found. 	(In 	re Brooklyn Citizen 	(1949) 	90
N.Y.S.2d 99 	[23 LRRM 2429]; 	In re Public Ledger, 	Inc. 	(3rd Cir.
1947) 	161 F.2d 	762 	[20 	LRRM 2012].) 	Since the Association's
proposal 	would 	require 	the 	District 	to 	alleviate 	the 	financial
102

hardship 	occasioned 	by 	the 	period 	of 	unemployment 	which would
persist 	until 	the dismissal was 	rescinded, 	the proposal may be
viewed 	as 	severance pay because 	it 	seeks 	a 	similar 	benefit.
However, 	it 	is 	also possible 	to view the proposal as
imposing 	a 	penalty on 	the 	employer. 	The 	fixed 	sum of 	$300
suggests 	that 	the 	primary purpose 	of 	this proposal 	is 	not 	to
recompense 	the 	employee 	for 	losses 	attributable 	to 	the
dismissal. 	(Owens v. 	Press Publishing Co. 	(1965) 	120 A.2d 442
[37 LRRM 2444].) 	Thus, 	while 	this proposal 	is susceptible 	to
varying 	interpretations, 	I conclude, 	consistent with the
following discussion, 	that 	the proposal 	is negotiable 	to the
extent 	that 	it 	seeks 	severance 	pay.
I 	am 	in 	agreement 	that 	this proposal 	relates 	to wages
because 	it 	contemplates 	a 	financial 	benefit 	granted 	to
employees 	whose dismissal 	notices 	were 	rescinded. 	While 	I
concur 	with 	the 	District's 	assertion 	that 	private 	sector 	case
law 	cannot 	be 	wholly adopted 	or 	viewed 	as 	controlling 	in 	the
public 	sector 	labor 	relations 	sphere, 	I nonetheless 	find 	the
instant proposal 	bears 	the 	required 	logical 	and 	reasonable
relationship 	to wages 	as 	is 	demanded 	by EERA. 	The 	employer's
interest 	in preserving 	funds, 	while a legitimate concern, 	does
not 	rise 	to 	the 	level of 	rendering 	this proposal outside of
scope. 	In balance, the employees' 	interests prevail.
I 	agree 	with 	the 	hearing officer's 	conclusion 	that 	part 	4
does 	not 	affect 	the operation of 	the 	Education Code 	provisions
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cited by the District. 	Part 4, 	by 	its 	terms, 	does not
interfere 	or 	intrude 	on 	the District's 	authority 	to effectuate
employee 	dismissals 	but 	imposes 	a 	financial 	burden with 	regard
to 	rescinded 	notices 	of 	such. 	The 	numerous 	Education Code
provisions 	cited 	by 	the 	District 	concern 	the 	dismissal
procedures 	and 	are 	not 	superseded 	by this proposal. 	Only
section 	44943 of 	the 	Education Code 	pertains 	to 	rescinded
notices, 	and 	it merely affords 	the employer 	the option of
rescinding dismissal 	notices. 	It 	is 	thus not 	in conflict with
the proposal.
Finally, 	the District argues 	that 	this proposal 	is 	rendered
nonnegotiable 	because 	it 	is 	a gift of public 	funds 	in 	violation
of 	the 	California Constitution. 	PERB 	is 	charged with 	the
responsibility of 	enforcing EERA, 	not 	the Constitution, 	and 	in
determining 	the 	negotiability of 	this 	proposal 	and 	the 	impact
of 	the 	constitutional prohibition 	as 	to gifts 	of public 	funds,
I 	am mindful of California Constitution Article 	III, 	section
3.5 which 	limits 	an 	administrative 	agency's 	power 	to 	refuse 	to
enforce 	statutes on constitutional grounds. 	This 	limitation,
however, 	does 	not preclude 	the 	agency's 	competence 	to examine
evidence 	offered 	to 	the 	agency 	in 	light 	of constitutional
standards 	or 	the 	responsibility 	to 	be 	cognizant 	of 	applicable
constitutional 	safeguards. 	(Goldin v. 	Public Utilities
Commission 	(1979) 	23 Cal.3d 638 	[153 Cal.Rptr. 	802, 	592
P.2d 289] .)
104

I 	therefore 	note 	that 	in 	interpreting 	the California
Constitution 	and 	the 	prohibition on gifts 	set 	forth 	in
Article 	6, 	section 	16, 	the California courts 	have established
that 	certain 	financial 	gains 	are 	deemed 	permissible 	to 	the
extent 	that 	they effectuate 	a public purpose. 	In establishing
this 	test, 	the court 	in County of Alameda v. 	Janssen 	(1940) 	16
Cal.2d 	276 	[106 	P.2d 	11, 	130 A.L.R. 	1141] 	stated:
The 	benefit 	to 	the 	state 	from an expenditure
for 	a 	'public 	purpose' 	is 	in 	the nature of
consideration 	and 	the 	funds 	expended 	are
therefore 	not 	a 	gift 	even 	though private
persons 	are 	benefited 	therefrom.
(See 	also City of Montclair 	v. 	Donaldson 	(1962) 	205 Cal.App.2d
201 	[22 Cal.Rptr. 	842]; California Emp. Etc. Com, v. Payne
(1947) 	31 Cal.2d 	210 	[187 P.2d 702]; 	People v. 	City of Long
Beach 	(1959) 	51 Cal.2d 	875 	[338 	P.2d 	177].) 	In view of 	this
rule, 	I 	find no reason to determine 	that 	this otherwise
negotiable 	proposal 	is 	rendered 	nonnegotiable 	because 	I
conclude 	that 	a public 	purpose 	is 	served 	by affording 	some
measure of 	financial 	support 	to 	those 	employees 	who 	are
confronted 	with 	dismissal 	notices 	which 	are 	thereafter
rescinded. 	Negotiability 	is 	therefore 	consistent with 	the
apparent 	constitutional 	standard. 	Thus, 	while 	the District 	is
in no way compelled to agree 	to this proposal, 	it may not
refuse 	to 	engage 	in meaningful 	negotiations 	with 	the 	employee
organization because, 	to the extent 	that 	it 	is viewed as
105

severance 	pay, 	the provision 	is 	within 	the 	scope of
representation 	as 	contemplated 	by 	the 	EERA.
Article 	XXIII---Early 	Retirement
The District 	asserts 	that 	if 	the 	subject of 	this proposal
is viewed 	as 	an early 	retirement provision, 	i.e., 	allowing an
employee 	to retire 	at age 	50, 	it conflicts with 	the State
Teachers 1 Retirement 	System which provides 	that 	a member 	of 	the
system may 	not 	receive 	benefits 	until 	he or 	she 	reaches 	age
55. 	A similar 	conflict 	is 	asserted 	by 	the District 	if Article
XXIII 	is 	viewed 	as 	a work 	reduction proposal 	because 	Education
Code 	section 	44922H 	specifies 	the 	conditions 	under 	which 	the
H-Education Code 	section 	44922 	provides 	as 	follows:
Notwithstanding any other 	provision, 	the
governing 	board 	of 	a 	school 	district 	may
establish 	regulations 	which 	allow 	their
certificated 	employees 	to 	reduce 	their
workload 	from 	full-time 	to part-time 	duties.
Such 	regulations 	shall 	include 	but 	shall 	not
be 	limited 	to 	the 	following 	if 	such
employees 	wish 	to 	reduce 	their 	workload 	and
maintain 	retirement 	benefits 	pursuant 	to
Section 	22724 	of 	this code 	or 	Section 	20815
of 	the 	Government Code:
(a) 	The 	employee must 	have 	reached 	the 	age
of 	55 	prior 	to 	reduction of workload.
(b) 	The 	employee must 	have 	been employed
full 	time 	in a position 	requiring
certification 	for 	at 	least 	10
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District may 	allow 	their 	employees 	to 	reduce 	their 	workload
from 	full-time 	to part-time 	duties.
years 	of 	which 	the 	immediately preceding
five 	years 	were 	full-time 	employment.
(c) 	During 	the 	period 	immediately preceding
a request 	for 	a 	reduction 	in workload, 	the
employee must 	have 	been 	employed 	full 	time
in a position 	requiring 	certification 	for 	a
total of at 	least 	five years 	without 	a break
in service. 	For purposes of 	this
subdivision, 	sabbaticals 	and 	other 	approved
leaves of 	absence 	shall 	not 	constitute 	a
break 	in service. 	Time 	spent on a
sabbatical or 	other 	approved 	leave of
absence 	shall 	not 	be 	used 	in computing 	the
five-year 	full-time 	service 	requirement
prescribed 	by 	this 	subdivision.
(d) 	The option of part-time 	employment must
be 	exercised 	at 	the 	request 	of 	the 	employee
and 	can 	be 	revoked 	only with 	the mutual
consent 	of 	the 	employer 	and 	the 	employee.
(e) 	The employee shall be paid a 	salary
which 	is 	the 	pro 	rata 	share 	of 	the 	salary he
would 	be 	earning 	had 	he 	not 	elected 	to
exercise 	the 	option 	of 	part-time 	employment
but 	shall 	retain all other 	rights 	and
benefits 	for 	which 	he makes 	the 	payments
that 	would 	be 	required 	if 	he 	remained 	in
full-time 	employment.
The 	employee 	shall 	receive 	health 	benefits
as 	provided 	in Section 53201 of 	the
Government Code 	in 	the 	same manner 	as 	a
full-time 	employee.
(f) 	The minimum part-time 	employment 	shall
be 	the 	equivalent of one-half of 	the 	number
of 	days of 	service 	required 	by 	the
employee's 	contract 	of 	employment 	during 	his
107

I 	do 	not 	view 	this 	proposal 	as 	an 	attempt 	to 	alter 	the
provisions of 	the State Teachers 1 Retirement 	law. 	In 	fact,
conflict 	between 	the proposal 	and 	the 	State Teachers'
Retirement 	System appears 	to have 	been 	consciously 	averted.
For example, 	contrary to the District's 	assertion, 	the proposal
is 	silent 	with 	respect 	to when 	employees 	participating 	in 	the
program would 	be 	eligible 	to 	begin 	receiving 	retirement
benefits. 	Nor 	does 	it 	specify 	the 	retirement 	service 	credit
such 	employees 	would 	receive 	while 	employed 	part-time.
final year 	of 	service 	in a 	full-time
position.
(g) 	This option 	is limited 	in
prekindergarten 	through 	grade 	12 	to
certificated 	employees 	who 	do 	not 	hold
positions 	with 	salaries 	above 	that of 	a
school principal.
(h) 	The 	period of 	such part-time employment
shall 	not exceed 	five 	years.
(i) 	The period of 	such part-time employment
shall 	not extend 	beyond 	the 	end of 	the
school year 	during which 	the 	employee
reaches 	his 	65th 	birthday.
This 	section 	shall 	remain 	in 	effect 	only
until June 30, 	1983, 	and as of such date 	is
repealed, 	unless 	a later 	enacted 	statute,
which 	becomes 	operative 	before 	that 	date,
deletes or extends 	such date. 	However, 	any
member 	who 	commences 	part-time 	employment
pursuant 	to this 	section prior 	to June 	30,
1983, 	may continue 	such part-time employment
and 	receive 	such 	retirement 	benefits 	and
health 	benefits 	until 	the member 	has
completed 	five 	years 	of 	such 	part-time
employment. 	(Emphasis 	added.)
108

Thus, 	while 	this 	article 	is 	labeled as 	an early retirement
proposal, 	it has more of the characteristics of a reduced
workload 	program which 	the District 	is 	permitted 	to adopt, 	by
regulation, 	pursuant 	to Education Code 	section 44922. 	Such
regulations must 	contain, 	inter 	alia, 	provisions 	regulating the
age of 	such employees, 	salary, 	fringe benefits 	and 	the minimum
number 	of 	required working 	days only 	if 	such 	employees 	wish 	to
reduce 	their 	workload 	and maintain 	retirement 	benefits 	under
the 	State 	Teachers 1 Retirement 	System. 	This 	section does 	not
prohibit 	the 	District 	from 	adopting 	another 	program 	if 	the
employees 	do 	not 	wish 	to maintain 	their 	retirement 	benefits.
Because 	the 	employees 	do not 	seek 	through 	this proposal 	to
maintain their 	retirement 	benefits, 	it does 	not conflict with
Education Code 	section 44922.
I 	concur 	in 	the Chairperson's 	statement 	that 	the 	usage of
the 	term 	"independent 	contractor" 	in 	this proposal 	creates
confusion. 	For 	example, 	in paragraph 3 the proposal refers 	to
the 	certificated 	employees 	participating 	in 	the 	program 	as
"consultants" 	and 	"independent 	contractors." 	In 	legal parlance
an 	independent 	contractor 	is, 	by definition, 	not an employee
and 	different 	rights 	and 	responsibilities 	are 	imposed 	on 	each
class 	of persons 	depending on 	that 	status. 	While 	this proposal
is thus, 	admittedly, 	somewhat confusing, 	I view the overall
thrust of 	this 	article 	as 	an attempt 	to negotiate 	a 	reduced
workload program for 	employees 	in 	the 	unit. 	As 	such, 	it 	is
109

negotiable 	because 	it 	relates 	to 	the 	hours 	and wages 	of 	the
members of 	the 	unit.
Article 	XXIV—Partnership 	Teaching
This proposal 	relates 	to job sharing. 	The 	hearing officer
and 	the Chairperson conclude 	that 	it 	is within 	the 	scope of
representation 	because 	it directly 	relates 	to wages 	and 	hours.
I 	agree. 	I 	also concur 	in the Chairperson's 	assessment 	that
the 	proposal 	relates 	to 	transfer 	and 	reassignment 	policies 	and
generally 	agree 	with 	his 	discussion on 	this Article.
The 	District 	objects 	to 	the 	hearing officer's 	findings 	and
maintains 	that 	this proposal 	impermissibly 	invades 	its
managerial 	responsibilities 	"to 	design 	and maintain 	the 	program
for 	its pupils." 	It cites Education Code sections 	51102 	and
51041 which 	relate 	generally 	to 	school districts' 	obligations
regarding 	establishment 	of programs. 	The Association's
proposal, 	however, 	does not seek 	to dictate the establishment
of partnership 	teaching 	positions, 	nor 	to 	set 	guidelines 	for
establishing 	such positions, 	functions which 	fall 	squarely
within management's 	domain. 	The 	record 	reflects 	some 	history
of 	job-sharing 	in 	the District 	(H.O. 	Proposed Decision, 	p.
91). 	This article merely proposes that, 	if such partnership
positions 	are 	created, 	the 	exclusive 	representative 	has 	the
right 	to 	negotiate 	how 	the 	establishment 	of 	such 	positions 	will
110

be 	implemented 	and 	that 	certain 	procedures 	will 	be 	followed 	to
protect 	the 	employment 	interests 	of 	employees 	who 	accept 	those
positions.
Paragraph 	3 	is 	reasonably related 	to transfer 	and
reassignment 	in 	that 	it 	insures, 	among other 	things, 	that only
teachers 	who 	desire 	to 	be 	transferred 	to partnership positions
will 	be 	transferred.
Paragraphs 	6, 	7 and 9 	are 	all 	reasonably related 	to wages
and 	hours of 	employment, 	regulating 	the 	relative 	assignments
each partner will have, 	thus affecting hours, 	(paragraph 6 ) ,
permissible absences of each partner 	(paragraph 7 ) , 	and
appropriate 	salary 	increments 	for 	each partner 	(paragraph 	9 ) .
Partnership 	teaching 	will 	obviously 	have 	educational
ramifications 	in a classroom. 	Only management, 	with 	its
educational policy mandate, 	can 	determine whether 	such 	a
teaching arrangement 	is advisable. 	However, 	once 	the decision
is made 	to 	institute 	it, 	employees have a clear 	interest 	that
fair 	assignments 	of 	such partnership positions 	are made 	and
that 	partnership employees 	receive 	appropriate 	benefits 	and
protections 	similar 	to regular 	employees. 	Thus, 	the subject of
this 	article 	is negotiable.
Article 	XXV—Certificated 	Employee 	Safety
Article 	XXV concerns 	certificated 	employees' 	safety. 	I
agree 	with 	the 	hearing 	officer's 	and Chairperson's 	conclusions
111

that 	this 	provision 	relates 	to 	safety 	conditions 	of
employment. 	The hearing officer 	noted, 	and I 	agree, 	that
physical 	facilities 	alone 	don't 	dictate 	safety 	considerations
but 	that 	human dangers 	as 	well 	can 	have 	an 	affect 	on 	teacher's
safety.
Section 	3543.2 	specifies 	"safety conditions 	of 	employment"
as 	a 	term and 	condition of 	employment. 	The Legislature 	has
thus determined that, 	as a public policy matter, 	teachers'
interest 	in 	safety exceeds 	competing 	educational policy
considerations 	such 	that 	the 	subject 	should 	be 	negotiated
rather 	than 	left 	completely 	to the District. 	I 	see no
educational policy 	interest 	or 	other 	managerial 	prerogative
that 	would 	be 	served 	by 	foreclosing 	negotiating 	on 	certificated
employees' 	safety. 	While the subject of 	student discipline has
implications 	for 	the District's 	ability to 	carry out 	its
educational mission, 	this 	proposal 	specifically 	addresses
discipline 	as 	it 	relates 	to 	teacher 	safety. 	Clearly teachers
have 	a vital 	interest 	in 	being 	able 	to defend 	themselves
against 	assaults 	by students. 	As 	the 	hearing officer 	found,
such 	assaults 	are 	less 	likely 	to 	take place when 	the 	District
fully 	supports 	its 	certificated 	employees 	in 	actions 	resulting
from 	such 	assaults.
The 	District maintains 	that 	Education Code 	sections 	44014,
44807 	and 	44808 	already afford 	certificated 	employees 	some 	of
the 	protections 	that 	they 	seek 	to negotiate here. 	It 	also
112

argues 	that 	the 	subject 	is 	covered 	by 	the Torts 	Claims Act,
specifically sections 825 and "825 (a)" 	(sic). 	Consequently, 	it
claims 	"the 	entire 	content 	of Article 	XXV is 	preempted 	by
existing 	law". 	For 	the 	reasons 	set 	forth below, 	I disagree.
Although 	several of 	the 	code 	sections mirror 	the 	paragraphs 	in
this proposal, 	the paragraphs do not conflict with 	the
enumerated 	statutes 	and 	thus 	are 	negotiable.
I 	agree 	with 	the 	Chairperson's 	assessment 	that 	Education
Code 	section 	44807, 	which 	recognizes 	a 	teacher's 	right 	to use
reasonable 	force 	to maintain order 	and 	protect 	the 	health 	and
safety of 	pupils, 	does 	not preempt 	the proposal 	for 	the 	reasons
articulated 	in his discussion.
Education Code 	section 	44808 	indemnifies 	the 	school
district 	for 	the 	conduct of 	its 	students 	when 	not 	on school
property with 	specified 	exceptions. 	This 	section 	is 	completely
irrelevant 	to 	the 	concerns 	expressed 	in 	the Association's
proposal.
Education Code 	section 	44014 	is 	almost 	identical 	to
paragraph 	4 of 	the 	proposal 	and 	does 	not 	in 	any way conflict
with 	that 	proposal.
Finally, 	I would 	note 	that 	section 825 	requires 	a public
entity, 	upon request, 	to defend 	an employee 	against claims
rising 	out 	of 	her/his 	employment 	and 	to 	indemnify 	that 	employee
against 	any 	judgment 	based 	thereon 	or 	any 	settlement 	or
compromise of the claim or 	action. 	Section "825(a)," cited by
113

the District, 	does not exist. 	Conceivably, 	the District 	is
referring 	to section 	825.2 (a) 	which 	requires 	a public entity to
reimburse 	an 	employee 	for 	any 	judgment 	encompassed 	by
section 825 which 	the 	employee 	has 	already paid. 	There 	is 	no
conflict 	between this proposal and 	sections 	825 or 	825.2(a).
The Association's 	proposal 	that 	the District 	give maximum
support 	to 	an 	assaulted 	teacher 	does 	not 	conflict 	with 	but
rather 	supplements 	the 	legislative mandate 	set 	forth 	in
sections 825 and 825.2 (a).
In summary, 	the Association's proposal 	is 	strongly related
to 	safety 	conditions 	of 	employment. 	The Association's 	great
interest 	in 	the 	safety of 	its members 	is not 	contravened 	by any
overriding management 	interest, 	nor 	do 	the proposals 	conflict
with 	existing code 	sections. 	They 	are 	therefore 	negotiable.
Article 	XXVI—Association 	and 	Certificated 	Employee 	Rights
Article 	XXVI 	of 	the 	proposals 	refers 	to Association 	and
Certificated 	Employee 	Rights. 	The Hearing Officer's
conclusions with regard to paragraphs 4, 	5, 	5.A., 	10, 	13,
14.A., 	and 	14.B. 	were excepted to by the District.
The District 	argues 	in 	its 	exceptions 	that 	paragraph 	4,
which 	seeks 	to 	insure 	access 	to all 	school buildings, 	is
rendered 	nonnegotiable 	because 	section 	3543.1(b) 	of 	the 	EERA
expressly provides 	for 	rights of 	access. 	My 	conclusion 	that
114

this 	proposal 	is 	negotiable 	is 	in accord 	with my decision 	in
Healdsburg 	in 	reference 	to article V, 	subarticle 	5.1.1. 	In
that 	case, 	I 	held 	that EERA's 	provision granting 	access 	rights
does 	not 	remove 	from the 	scope 	of 	representation 	a proposal
which 	seeks 	to 	attain contractual 	guarantees 	concerning 	access
rights.
Moreover, as the Chairperson notes, 	(Ante, p. 	57), this
proposal 	relates 	to 	the 	administration of 	the 	agreement. 	Items
which 	relate 	to 	the 	exclusive 	representative's 	role 	in
administering 	the 	agreement 	are 	negotiable 	because 	such
proposals 	relate 	to all 	items 	that 	are 	within 	the 	scope of
representation 	and 	are 	incorporated 	in 	the 	agreement. 	As 	set
forth 	in section 	3540.l(h) 	of 	the 	EERA, 	the meeting and
negotiating process 	is 	viewed 	as 	an effort 	to 	reach 	agreement
on matters 	within 	the 	scope of 	representation. 	However, 	the
purpose 	of 	the 	meeting 	and 	negotiating 	requirements 	do 	not
culminate 	with 	the 	parties' 	agreement. 	The 	administration of
the agreement, 	as the Chairperson notes, 	facilitates the
ongoing purpose of the Act. 	I 	find, 	therefore, 	that paragraph
4 of 	this 	article 	is 	negotiable.
Paragraphs 	5 	and 	5.A. 	of 	this Article 	refer 	to access 	to
information 	and 	the 	right 	to 	receive 	the minutes of 	the Board
of Trustees' 	meetings, 	respectively. 	I agree with the
Chairperson's 	holding 	that 	these proposals 	are 	negotiable 	to
the 	extent 	that 	they 	seek 	to 	review 	information 	and 	materials
115
•

necessary 	to 	the 	fulfillment 	of 	the 	Association's 	role 	as 	the
exclusive 	representative. 	I 	find 	it 	irrelevant 	to the
determination of 	negotiability 	that 	the 	employer 	is 	required 	to
provide 	the 	sought-after 	information 	because 	of 	other 	statutory
provisions.
The 	cases 	relied on 	by 	the District 	in 	its 	exceptions
concern 	allegations 	of 	unfair 	practices 	based 	on 	the 	employer's
refusal 	to provide 	the 	information or 	assistance 	in
distribution of materials 	sought 	by 	the 	employee
organizations. 	In Anaheim Union High 	School District 	(5/5/78)
iHO-U-24 	[2 PERC 2103], 	the hearingoffice	... . 	r held that the public
public 	school 	employer 	had 	not 	committed 	an 	unfair 	practice 	by
refusing 	to provide 	the 	non-exclusive 	representative 	the 	names
and addresses of employees. 	In 	so holding, 	the 	hearing officer
noted 	that 	access 	to names, 	while 	not 	governed 	by 	the EERA,
might 	be 	required 	by 	the Public Records Act which, 	he
concluded, 	PERB 	is 	not 	authorized 	to enforce. 	Unlike 	the 	issue
in Anaheim, 	the question 	in this case 	is not whether 	the EERA
requires 	that 	the District provide 	the 	information 	requested 	in
paragraphs 	5 	and 	5.A. 	of 	these proposals.12 	The 	issue 	is
12The 	employer's 	duty 	to provide 	such 	information may
arise 	in 	the 	future 	in 	the 	context of 	an 	unfair 	practice
charge. 	It 	is not 	at 	issue 	in this case, 	and I 	therefore make
no 	judgment 	as 	to 	the 	existence 	of 	that duty or 	the 	propriety
of 	the 	hearing 	officer's 	decision with 	regard 	to 	the 	unfair
practice 	charge 	in Anaheim.
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whether 	the District 	is 	required 	to 	negotiate 	as 	to 	the
proposals 	and 	thus 	the 	existence 	of other 	avenues 	of 	access 	to
materials 	is 	irrelevant. 	The employer, 	of course, may argue at
the 	negotiating 	table 	that 	the 	information 	is otherwise
available to the employees; 	however, 	the analysis of
negotiability 	is 	not 	affected 	by 	the 	availability of 	other
remedies 	or 	overlapping obligations.
With 	regard 	to portions 	of paragraph 	5, 	the Chairperson
indicates, 	(Ante, p. 58 ), 	that the EERA does not require the
District 	to negotiate 	access 	to 	information 	that 	is 	not 	related
to employment 	concerns, 	such as 	the 	requirement 	to provide 	data
to 	assist 	the Association 	in developing programs on behalf of
students. 	This 	aspect of 	the proposal does 	not 	relate 	to
enumerated 	items 	and 	intrudes 	on 	the 	employer's 	educational
policy concerns. 	I agree, 	therefore, 	that the employer was not
required 	to negotiate 	as 	to 	this 	request.
However, 	the Chairperson also 	states 	that 	in response to
this 	broadly worded proposal, 	the District 	is obligated 	to
articulate 	its 	rationale 	in 	support of 	its 	refusal 	to
negotiate. 	I 	agree with his conclusion that 	this 	information
would 	have 	facilitated 	the 	negotiating 	process, 	particularly 	as
to 	unrefined 	proposals 	such 	as 	paragraphs 	5 	and 	5.A. 	The
Chairperson's 	specific 	discussion of 	this 	obligation with
regard to these proposals, 	however, 	is reminiscent of the
hearing officer's decision 	in Healdsburg, 	supra, 	in which he
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found 	an 	unfair 	practice 	where 	the 	Districts 	failed 	to 	respond
to 	the 	employee organization's 	proposals with more 	than 	a 	terse
refusal to negotiate. 	As I stated 	in Healdsburg, 	supra, 	the
duty 	to 	negotiate 	rests 	on 	a 	finding 	that 	the 	submitted
proposal 	is within the 	scope of 	representation, 	while 	I 	agree
that 	the 	articulation of 	a 	rationale 	aids 	and 	furthers 	the
process, 	it 	is 	nonetheless 	true 	that 	no obligation to negotiate
and 	hence 	no 	unfair 	practice 	exists 	where 	the 	submitted
proposal 	is 	not 	related 	to 	the 	enumerated 	subjects 	and, 	on
balance, 	is 	ill-suited 	to the negotiating process.
In this 	case, 	the District's 	unfair 	practice 	rests on the
fact 	that, 	while clearly capable 	of extensive 	further
refinement, 	certain portions of 	the proposals 	set 	forth 	in
paragraphs 	5 	and 	5.A. 	are 	negotiable. 	To the 	extent 	that 	the
District's 	response 	to 	paragraph 	5.A. 	can 	be 	segmented,
however, 	it committed 	no unfair 	practice 	by refusing 	to
negotiate 	a 	right of 	access 	to 	information 	related 	to 	student
programs.
I 	am 	in 	essential 	agreement with 	the 	Chairperson's
conclusion 	that paragraph 	4 	is negotiable 	because, 	by 	its
terms, 	it 	logically and 	reasonably relates 	to the 	grievance
procedures 	and contract administration. 	In so concluding, 	I am
mindful 	of 	the 	employer's 	concern 	for 	uninterrupted 	educational
programs 	and 	for 	other managerial 	interests, 	such 	as 	school
security precautions, 	which may be 	affected 	by 	this proposal.
In sum, 	however, 	I 	believe 	that these 	issues can be adequately
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addressed 	during 	the 	negotiating 	process 	where 	it 	would 	be
possible 	to discuss 	some 	regulation of 	access 	in 	a manner 	that
would continue 	to 	be 	responsive 	to 	the 	legitimate 	needs of 	the
employees. 	Thus, 	since access 	is a basic need that necessarily
relates 	to 	the 	administration 	of 	the 	entire 	negotiated
agreement 	and 	is 	an 	inherent 	component of 	an effective
agreement, 	this proposal 	is, 	in my view, 	appropriately
relegated 	to 	the 	negotiating 	process.
I 	agree 	with 	the Chairperson 	that paragraph 	14.A. 	is
negotiable 	because 	of 	its 	relationship 	to evaluation
procedures. 	The District has an obvious 	interest 	in
determining 	whether 	its 	employees 	are performing 	adequately 	in
the 	classroom, 	but 	that 	interest must 	be 	balanced 	against 	the
employees' 	interest 	in not being 	evaluated by 	virtue 	of secret
tape 	recordings or 	listening 	devices. 	If 	this proposal 	is 	not
related 	to evaluation procedures, 	the District has 	not given
evidence 	as 	to 	any other 	arguably 	legitimate purpose.
While 	there 	is 	an 	arguable 	relationship between 	the 	subject
matter 	of paragraph 	14.B. 	and 	either 	evaluation procedures or
grievances, 	or 	both, 	I agree with the Chairperson that the
subject matter of this proposal, 	as written, 	is 	nonnegotiable
for 	essentially 	the 	reasons 	he expressed. 	I would point out
that 	the 	proposal 	is 	addressed 	to access 	to the employees' 	file
cabinets not the District's 	files. 	Nonetheless, 	the proposal
does 	not 	distinguish 	between material 	of 	the 	employees 	in 	those
119

files 	and 	school materials 	which 	the District 	has 	a 	legitimate
right 	and 	need 	to have 	access 	to.
Article 	XXVII—Negotiation 	Procedures
Article 	XXVII concerns 	negotiation procedures. 	The
District 	takes 	exception 	to 	the 	hearing 	officer's 	conclusion
with 	regard 	to paragraph 	4 of 	this 	article. 	That 	item
contemplates 	that 	up 	to 	nine 	Association 	representatives 	shall
be 	provided 	a 	sufficient 	number 	of 	hours 	per 	week of 	released
time without 	loss of 	compensation 	in order 	to prepare 	for 	and
attend 	negotiation and 	impasse proceedings. 	The 	hearing
officer 	rejected 	the District's 	argument 	that 	reference 	to
released 	time 	in 	section 3543.1 	of 	EERA evidences 	the
Legislature's 	intent 	to 	remove 	the 	subject 	of 	released 	time
from 	the 	negotiating process.
I 	agree with 	the 	hearing officer's 	conclusion 	that 	the
statute's 	specific 	grant 	of 	released 	time 	does 	not 	remove 	this
subject 	from 	the 	scope of 	representation provided 	it 	is
otherwise 	related 	to wages, 	hours or 	enumerated 	terms 	and
conditions 	of 	employment.
Released 	time, 	whether 	granted 	for 	preparation or 	actual
meeting and negotiating, 	relates 	to hours. 	It concerns a
request 	that 	an 	employee 	be 	released 	from her/his 	normal
working duties 	and 	be 	permitted 	to 	engage 	in 	tasks 	connected
120
,

with 	the 	negotiating process. 	Also, 	because 	this 	proposal
would 	specifically require 	that 	an 	employee 	be 	compensated 	for
these 	released 	time hours, 	it 	relates 	to wages. 	Accord
Axelson, 	Inc. 	(1978) 	234 NLRB No. 	49 	[97 LRRM 1234], affirmed
(5th Cir. 	1979) 	599 	F.2d 	91 	[101 	LRRM 3007].
I 	find no basis 	for 	concluding 	that 	the 	employer's 	interest
and 	concerns 	would 	overshadow 	a 	determination 	that 	this 	item 	is
negotiable. 	What I concluded 	in Healdsburg, 	supra, 	with regard
to 	released 	time 	for 	grievance 	processing 	is 	equally 	true
here: 	the 	fact 	that 	section 3543.1 of 	the Act 	specifically
grants 	released 	time 	supports 	the 	finding 	that 	the 	relationship
to enumerated 	subjects 	is 	not 	offset 	by any managerial 	interest
in precluding or 	regulating 	the 	provision of 	released 	time. 	I
similarly 	find 	that 	the 	portion of 	this 	proposal 	which would
permit 	released 	time 	for 	preparation 	purposes 	bears 	a 	direct
relationship 	to wages 	and 	hours 	which 	is 	not 	offset 	by 	any
prerogative held 	by the public school employer. 	Therefore, 	I
find 	that 	this 	proposal 	is 	within 	scope 	and 	should 	be 	resolved
by 	resort 	to 	the 	negotiating process.
Article 	XXXII—Confidential 	Files
This proposal, 	like Article XXI 	and 	certain 	aspects of
Article VI, 	generally seeks 	to 	impose 	limitations 	on 	the
contents of an employee's personnel file. 	In addition, 	this
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proposal would 	restrict 	access 	to personnel 	files 	and would
require 	that 	documentation 	be 	kept 	indicating what 	persons 	have
examined 	particular 	files.
Employers, 	employees 	and 	the public each 	have 	a vital
interest 	in 	the 	establishment of proper 	evaluation procedures.
The 	establishment 	and maintenance 	of 	a 	high 	level of
instruction 	by qualified 	teachers 	is 	the 	goal of 	each
interested 	group. 	Conflict 	arises, 	as 	evidenced by this
proposal, 	over 	the method 	and means which 	are 	to be 	used 	to
accomplish 	that 	goal.
Paragraph 	1 of 	this 	proposal 	would 	prohibit 	the District
from 	basing 	any 	adverse 	action 	again 	an 	employee 	on materials
which 	are 	not 	contained 	in 	the 	employee's personnel 	file.
Education Code 	section 	4403113 	prohibits 	the 	employer 	from
13Education Code 	section 44031 	reads:
Materials 	in personnel 	files of 	employees
which may 	serve 	as 	a 	basis 	for 	affecting 	the
status of 	their 	employment 	are 	to be made
available 	for 	the 	inspection of 	the 	person
involved.
Such material 	is 	not 	to 	include ratings,
reports, or 	records which 	(1) 	were obtained
prior 	to 	the 	employment 	of 	the 	person
involved, 	(2) 	were prepared 	by identifiable
examination committee members, 	or 	(3) 	were
obtained 	in 	connection 	with 	a 	promotional
examination.
Every employee 	shall 	have 	the 	right 	to
inspect 	such materials 	upon 	request,
provided 	that 	the 	request 	is made 	at 	a 	time
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including 	information of 	a 	derogatory 	nature 	in 	an 	employee's
personnel 	file 	"unless 	and 	until 	the 	employee 	is 	given 	notice
and 	an 	opportunity 	to 	review 	and 	comment 	thereon." 	While 	this
section does 	not expressly provide 	an employee 	the 	right 	to
directly confront 	his or 	her 	accusers, 	it does 	inject minimum
elements of due process 	into 	the procedure. 	However, 	neither
this 	statutory provision, 	nor 	any other 	provision of 	law,
prevents 	the 	District 	from 	taking 	adverse 	action 	against 	an
employee 	based 	on 	other 	materials 	not 	contained 	in 	such 	files
(see Cole 	v. 	Los Angeles Community College District 	(1977)
68 	CA.3d 	785 	for 	an example 	of 	a 	situation where 	an employee's
personnel 	file 	contained 	no 	derogatory 	information 	but 	where
other 	information 	which 	had 	a detrimental effect 	was 	introduced
into evidence 	by the District). 	Employees are 	therefore
justifiably 	concerned 	that 	any 	adverse 	action 	against 	them 	be
when 	such 	person 	is 	not 	actually required 	to
render 	services 	to 	the 	employing district.
Information of a derogatory nature, 	except
material mentioned 	in 	the 	second 	paragraph
of 	this 	section, 	shall not be entered or
filed 	unless 	and 	until 	the 	employee 	is 	given
notice 	and 	an 	opportunity 	to 	review 	and
comment 	thereon. 	An employee 	shall have 	the
right 	to enter, 	and have 	attached 	to any
such 	derogatory 	statement, 	his 	own comments
thereon. 	Such 	review shall 	take place
during normal business 	hours, 	and 	the
employees 	shall 	be 	released 	from duty 	for
this 	purpose 	without 	salary 	reduction.
(Emphasis 	added.)
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based 	only 	on materials 	contained 	in 	their 	personnel 	files
which 	they have 	access 	to and 	this 	concern prevails 	over 	any
interest 	the District may have 	in 	initiating 	actions 	against 	an
employee 	based on other 	materials. 	For 	these 	reasons 	I 	concur
with 	the Chairperson's 	determination 	that 	this 	paragraph 	is
negotiable.
Paragraph 	2 of 	this 	proposal would 	prevent 	the District
from 	including 	certain 	ratings, 	reports or 	records 	in an
employee's 	personnel 	file 	unless 	the 	employee 	agreed 	to 	their
inclusion. 	However, 	Education Code 	section 	44031 	specifically
provides 	that 	such 	items 	in 	the personnel 	file are not 	to be
made 	available 	for 	inspection 	and 	implicitly provides 	for 	their
inclusion 	in 	the 	files. 	Because 	this paragraph directly
conflicts with the 	statute, 	I 	find, 	contrary to the
Chairperson, 	that this 	item is nonnegotiable.
The 	District 	objects 	to 	the 	negotiability of paragraph 	3 on
the 	general ground 	that 	the 	subject 	is 	preempted 	by Education
Code 	section 	44031 	and 	on 	the 	specific 	ground 	that 	it would
grant 	an employee 	released 	time 	to 	"prepare 	a written 	response
to 	such material." 	The 	District 	argues 	that 	Education Code
section 	44031 only 	grants 	an 	employee 	released 	time 	to
"review" 	derogatory 	information 	in a personnel 	file 	and 	that 	it
does 	not 	expressly 	authorize 	released 	time 	to prepare written
comments.
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The 	District 	asserts 	an 	overly 	restrictive 	interpretation
of Education Code 	section 44031. 	This 	aspect of paragraph 	3 	is
negotiable 	because 	it 	does 	not 	conflict 	with 	Education Code
section 	44031; 	it merely 	constitutes 	an expansion of 	the 	rights
provided 	by 	that 	section.
Paragraph 	6 	would 	require 	the District 	to 	keep records
indicating 	what 	persons 	have 	perused 	an 	employee's 	personnel
file. 	That 	information could 	be 	relevant 	to an employee or 	the
Association when processing a grievance. 	Further, 	those
parties 	may 	be 	interested 	in 	determining 	whether 	an 	employee's
superior 	reviewed 	the 	personnel 	file 	before 	preparing 	an
evaluation of 	the 	employee.
Contrary 	to 	the District's claim, 	paragraph 7 	does 	not
violate the Public Records Act 	(Code sec. 	6250, 	et seq.) 	but
instead, 	is consistent with section 6254 (c) 14 of that act. 	I
note, 	however, 	that pursuant 	to section 6254.815 of the
14	1 Section	4section 	6254 (c) 	provides as follows:
Except 	as provided 	in 	Section 	6254.7,
nothing 	in 	this 	chapter 	shall be 	construed
to require disclosure of 	records 	that 	are:
(c) 	Personnel, medical, or similar files,
the 	disclosure 	of 	which 	would 	constitute 	an
unwarranted 	invasion of 	personal privacy;
15 Section 	6254.8 	reads:
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Public 	Records Act, 	personal employment 	contracts 	between 	the
District 	and 	its 	employees 	are open 	to public 	inspection. 	The
District 	could 	comply with 	the 	mandate 	of 	section 	6254.8 	and
this 	contractual provision 	by 	not 	keeping 	personal 	employment
contracts 	in personnel 	files. 	This 	is 	an example of a disputed
matter 	which 	can 	be 	appropriately 	resolved 	at 	the 	bargaining
table.
Paragraph 	8 	would 	require 	the 	District 	to destroy 	negative
or 	derogatory material 	in 	an employee's 	personnel 	file 	after 	a
two-year 	period of 	retention. 	The District claims 	that 	it 	is
illegal 	to destroy 	any public 	record 16 except 	as 	otherwise
provided 	by 	law 	and 	that 	this 	proposal 	conflicts 	with
regulations 	adopted 	by 	the 	Superintendent of 	Public 	Instruction
Every employment 	contract 	between a 	state 	or
local 	agency and 	any public 	official 	or
public 	employee 	is 	a public 	record which 	is
not 	subject 	to 	the 	provisions 	of 	section
6254 and 6255.
^Section 6200 	reads 	as 	follows:
Every 	officer 	having 	the 	custody of 	any
record, map, or book, or of any paper or
proceeding of 	any court, 	filed or 	deposited
in any public office, 	or placed 	in his hands
for 	any purpose, 	who 	is guilty of 	stealing,
willfully destroying, mutilating, 	defacing,
altering or 	falsifying, 	removing or
secreting 	the 	whole 	or 	any part 	of 	such
record, map, book, paper, or proceeding, or
who permits 	any other 	person 	to do so, 	is
punishable 	by 	imprisonment 	in 	the 	state
prison for two, 	three, or 	four years.
126

relating 	to 	the 	destruction of 	records. 	Those 	regulations 	are
contained 	in California Administrative Code, 	title 	5,
section 16020, 	et 	seq., 	and were 	adopted pursuant 	to Education
Code 	section 	35253.17
The 	Chairperson 	finds 	that 	Education Code 	section 	35253
gives 	the 	District discretion 	to 	destroy 	records 	where
destruction 	is 	not 	otherwise 	authorized or 	provided 	for 	by 	law
and 	finds 	that 	this proposal 	is 	negotiable 	evidently on 	the
basis 	that 	destruction of 	records 	is 	not otherwise 	provided 	for
by law. 	But 	destruction of 	such 	records 	is otherwise 	provided
for 	by law, 	specifically, 	section 6200. 	Thus the 	subject
matter 	of 	section 	6200 	is 	specifically 	incorporated 	by
reference 	in Education Code 	section 35253. 	It 	is 	therefore
appropriate 	for 	this 	Board 	to 	consider 	the 	impact 	of 	section
6200 	on 	the 	negotiability of 	this 	proposal.
The 	District may only destroy 	the 	records 	referred 	to 	in
the 	proposal pursuant 	to 	the 	regulations 	promulgated 	by 	the
Superintendent 	of 	Public 	Instruction 	pursuant 	to 	Education 	Code
section 35253 	(see 58 A.G. 	422 	(6/6/75) 	for a discussion
17 Education Code section 35253 reads as follows:
Whenever 	the 	destruction of 	records 	of 	a
district 	is 	not otherwise 	authorized or
provided 	for 	by 	law, 	the 	governing 	board 	of
the 	district 	may destroy 	such 	records 	of 	the
district 	in 	accordance with 	regulations 	of
the 	Superintendent 	of 	Public 	Instruction
which 	he 	is 	herewith 	authorized 	to adopt.
127

involving 	the 	interrelationship of 	these 	statutory
provisions). 	Those regulations define a "record" 	as all
"records, 	. 	. 	. papers, and documents of a school district
required 	by law 	to be 	prepared 	or 	retained or 	which 	are
prepared 	or 	retained 	as 	necessary or 	convenient 	to 	the
discharge of official duty" 	(Cal. Admin. 	Code, 	title 5, 	sec.
16020(a)) 	and provide 	that 	they shall only be 	destroyed 	as
provided by regulation 	(Cal. 	Admin. 	Code, 	title 5, 	sec.
16021). 	The 	Superintendent of each 	school district 	is 	required
to classify records as permanent, 	optional, 	or disposable 	(Cal.
Admin. Code, 	title 5, 	sec. 	16022). 	The earliest any such
record may 	be destroyed 	by 	the District 	is 	three 	years 	after
the 	school year 	in which 	they originated 	(Cal. 	Admin. 	Code,
title 5, sec. 16027) .
I 	find 	it 	unnecessary 	to determine 	the 	classification 	to
be 	accorded 	to 	negative 	or 	derogatory material 	in 	a 	personnel
file 	for 	at 	the 	very least 	such material cannot 	be destroyed
until 	three years after 	its origination and, 	therefore, 	the
requirement of paragraph 8 	of 	this proposal 	that 	it be
destroyed 	after 	remaining 	in 	the 	file 	for 	only 	two years
conflicts 	with 	these 	regulations. 	This 	proposal 	is 	therefore
nonnegotiable 	to 	the 	extent 	it would 	require 	the District 	to
destroy 	such 	records 	within 	two years.
I 	concur 	with 	the 	Chairperson 	that 	paragraph 	9 	is
negotiable. 	The 	requirement 	that 	the District 	keep employees'
128

personnel 	files 	in a central 	location 	facilitates 	access 	to
such 	files 	for 	the 	processing 	of 	grievances 	and 	determining
that 	the 	evaluation procedures 	have 	been 	properly 	adhered 	to.
While 	the District, 	for 	example, 	certainly has an 	interest 	in
keeping original documents 	in a 	safe place, 	this proposal would
not 	prevent 	the 	District 	from 	keeping 	duplicate 	sets 	of 	these
documents 	in other 	locations. 	On balance, 	the District's
interests 	in 	logistics and maintenance of 	records 	is offset 	by
the 	employees' 	interest 	in having meaningful 	access 	to
important 	records, 	and 	this provision 	is negotiable.
By 	Barbara D. 	Moore, 	Member
Member 	Gonzales 	concurrence 	and 	dissent 	begins 	on page 	130,
The order 	in 	this 	case 	begins on page 	144.
129

Raymond J. 	Gonzales, 	Member, 	dissenting 	in part 	and concurring
in part:
It would 	be 	difficult 	to overestimate 	the 	significance 	of
these 	long awaited, 	precedential, 	"scope of representation"
decisions. 	While 	all Board members 	articulated 	their
theoretical 	approach 	to 	the 	scope 	issue 	in 	San Mateo 	School
District, 	(5/20/80) 	PERB Decision No. 	129, except for 	the
matters of preparation 	time 	and 	rest 	time, 	it 	remained 	to be
seen 	just 	how 	these 	approaches 	would 	translate 	into 	rulings 	on
the 	negotiability of 	a multitude 	of 	typical 	negotiating
proposals. 	This decision, 	and 	its companion Healdsburg Union
High 	School 	District 	and 	Healdsburg 	Union 	School 	District
(6/19/80) 	PERB Decision No. 	132, 	covering both certificated and
classified 	employees, 	give 	the 	bottom line. 	Examination of 	the
Board 	holdings 	on 	the 	proposals 	at 	issue 	in 	these cases 	clearly
shows 	that 	the 	scope 	of 	representation 	under 	the 	EERA 	is,
through PERB 	interpretation, 	rendered 	the 	equivalent of 	the
scope 	of 	bargaining 	in 	the private 	sector. 	Today's 	decision 	in
Fremont Unified 	School District 	(6/19/80 	PERB Decision No. 	136)
similarly 	creates 	for 	employment 	disputes 	under 	PERB
jurisdiction 	the 	acceptability of 	the 	strike 	as 	a political 	and
economic 	weapon 	which may 	be 	brought 	to 	bear 	by 	employee
organizations, 	even during 	impasse proceedings, 	while 	involved
in 	labor 	disputes. 	The 	significance of 	these 	decisions 	should
escape no one.
130

The 	reasoning 	which 	underlies my 	interpretation 	of 	EERA
section 3543.2, 	the scope of representation, 	is 	fully set out in
my dissents 	in San Mateo, 	supra, 	and 	today's 	companion decision
in Healdsburg, 	supra. 	There 	is no need 	to repeat 	them here.
Obviously, 	given my 	interpretation of 	the 	scope of
representation 	as 	a creation of 	the 	Legislature 	unique 	to 	the
California public 	school system, 	I do not believe 	it 	is
appropriate 	to 	look 	to private 	sector 	precedent 	for 	guidance 	in
interpreting EERA section 3543.2. 	For 	this 	reason, 	my
decisions 	on 	the 	proposals 	are 	not 	grounded on, 	nor 	rely 	for
authority on, 	decisions 	rendered 	under 	the NLRA. 	My
determinations 	are 	based 	on a reading of 	the 	statute 	and
application 	of my 	test.
Before 	specifically 	indicating 	which of 	the 	proposals 	I
find 	to be 	in scope or 	out of 	scope, 	I would like 	to express my
position 	regarding 	proposals 	which 	are 	by and 	large 	unrelated
to 	any matter 	within 	scope 	but which may 	contain 	elements 	of 	a
matter 	within 	scope. 	Examples 	are 	proposals on 	the 	provision
of 	an 	appropriate 	classroom, 	the 	regulation of public 	charges
against 	teachers, 	and 	a proposal 	to control what may enter 	a
personnel 	file. 	Although 	not 	generally 	in scope, 	such a
proposal may 	in a minor way 	include an evaluation procedure, 	a
grievance procedure or 	a safety concern. 	As a result, 	it has
been determined 	that 	many 	such 	proposals 	are 	in 	scope 	"to 	the
extent 	they relate 	to" 	a matter 	within 	scope.
131

It 	is my position 	that 	any 	such 	limited delegation 	to 	the
negotiation 	process 	be 	narrow 	and 	circumscribed. 	A liberal
inclusion 	of 	a 	generally 	unrelated 	matter 	as 	negotiable 	will
offer 	great 	potential 	for 	improperly 	placing 	out 	of 	scope
matters on 	the 	negotiating 	table.
One 	can 	easily 	understand 	how 	a 	teacher's 	grievance 	or
evaluation procedure 	concern can be 	related, 	or 	tied 	into,
almost 	any matter 	concerning 	the 	operation of public 	schools.
Abstractly, 	the 	source of 	confusion would 	be 	eliminated 	if 	all
proposals 	on 	grievance 	and 	evaluation 	procedures 	were 	included
in 	comprehensive proposals on 	these matters. 	As 	a practical
matter, of course, 	the parties are free to make proposals, 	and
write 	their 	contract 	in 	any 	form they choose. 	I would 	urge
that 	parties 	resist 	the 	pressure 	to negotiate 	proposals on
matters 	not 	substantively within 	the 	scope 	of 	representation
but which 	are 	brought 	into 	the 	negotiating 	room 	through 	the
back 	door 	by 	a 	relatively minor 	component 	involving 	a matter
within 	scope.
Finally, 	in my opinion, 	the excessive and 	zealous pursuit
of 	a wide 	open 	and 	effectively 	uncontrolled 	scope 	of 	bargaining
by 	employee 	organizations 	may 	ultimately 	lead 	to 	the 	creation
of 	severe 	restraints on public employees, 	either 	by 	the
Legislature or, 	regrettably, 	through the 	initiative process.
132

ARTICLE 	III 	- PROFESSIONAL DUES OR FEES AND PAYROLL
DEDUCTIONS
I 	consider 	this 	to be within 	the 	scope of 	representation.
Disbursement of wages 	is directly related 	to, 	and 	is 	an
extention of, 	wages. 	Payroll deductions would 	be 	included 	in
this 	concept, 	as 	it concerns 	the manner 	in which payment 	is
made.
ARTICLE 	IV - 	NONDISCRIMINATION
I do 	not 	consider 	this 	to be within 	the 	scope of
representation. 	The 	general 	subject of 	nondiscrimination 	lacks
a direct 	relationship 	to 	any 	enumerated matter 	within 	scope.
ARTICLE VI 	- 	PUBLIC CHARGES
I 	consider 	the proposals 	regarding public 	charges or
complaints 	against 	employees 	to generally be 	outside 	the 	scope
of 	representation, 	except 	to 	the extent 	that 	such 	charges or
complaints 	form 	the 	basis 	for 	evaluation procedures. 	For
example, 	if a proposed 	evaluation procedure 	included public
charges, 	then 	the 	use of 	such charges would 	be negotiable. 	The
proposal 	should 	not 	be 	presumed 	to 	involve 	evaluation
procedures.
ARTICLE VII 	- 	EMPLOYMENT CLASSIFICATIONS 	AND ASSIGNMENT
I 	consider 	the 	establishment 	of 	classifications 	and 	the
matter 	of 	hiring 	employees 	into 	the 	established
classifications, 	as embodied 	in the proposals 	in issue, 	to be
outside 	of 	the 	scope of 	representation. 	Transfer 	policies
133

regarding 	interclassification movement, 	however, 	are an
enumerated 	term 	and 	condition 	of 	employment 	and 	therefore
within scope. 	I 	believe 	that 	the 	establishment of
classifications 	and 	the 	hiring 	of 	teachers 	are 	fundamental
prerogatives of 	a public 	school 	employer. 	Classification
involves 	the 	creation 	and 	description of positions 	and 	the
description of 	assignments 	which 	employees 	hired 	into 	those
positions 	will perform. 	JCTA's 	proposals 	go beyond merely
describing 	employees 	and 	classifications. 	They 	specify
limitations 	on who a District may hire 	as a 	teacher. 	(e.g.,
paragraph D.2., 	a District must 	consider 	temporary employees
first 	in hiring new teachers; 	paragraphs D.3., 	D.4., 	D.5. 	and
D.6. 	specify 	the 	criteria 	to be 	applied 	- basically 	seniority •-
in hiring new teachers). 	Significantly, 	classifications are
established 	and 	described 	by 	the 	Legislature 	in 	the 	Education
Code. 	They 	are 	not 	properly 	subject 	to creation 	through
bilateral 	negotiations. 	Elements of 	this 	article proposing
salary or 	a method of 	salary determination are, 	of 	course,
negotiable.
ARTICLE VIII 	- COMPENSATION
I 	consider 	the 	proposals 	in 	dispute 	regarding compensation
to be 	within 	the 	scope of 	representation. 	Teaching 	credit
which 	may 	form 	the 	basis 	for 	placement 	on 	the 	salary 	schedule
is 	very directly related 	to wages. 	Matters 	such as 	the 	timing
of 	payment 	of wages 	and 	the 	notification of 	employees 	of 	their
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wages 	are 	naturally a 	part 	of 	the 	concept of 	wages 	and 	also
should 	be 	negotiable.
ARTICLE X 	- WORKING 	CONDITIONS
I 	find 	these proposals 	to be out of scope, 	generally,
except 	when 	a 	safety 	condition of 	employment 	is 	involved.
Other 	than 	safety, 	the proposals 	do not directly relate 	to
wages, 	hours, 	or 	any enumerated 	term and 	condition of
employment.
Paragraph 	1. 	The 	appropriateness 	of 	classroom 	facilities
should 	not be within 	the 	scope of 	representation. 	However, 	if
a 	safety condition 	is 	specifically 	involved, 	this of course
would 	be 	subject 	to negotiation. 	I do not 	find 	the 	thrust 	of
this 	proposal 	to be either 	class 	size 	or 	an evaluation
procedure.
Paragraph 	4. 	I 	believe 	that 	all matters 	specified 	in
paragraph 	4 	are 	clearly far 	beyond 	the 	scope 	of
representation. 	The 	proposal 	itself 	identifies 	these 	as
educational matters. 	Of course, 	the 	timing of 	faculty meetings
could 	be 	a 	subject of 	negotiation 	to 	the 	extent 	it 	affects 	the
number 	of 	hours 	and 	the 	beginning 	and 	end 	in 	the work 	day.
Paragraph 	8. 	I do not 	believe 	the 	furnishing of 	supplies
to 	teachers 	should 	be 	subject 	to negotiation.
Paragraph 	10. 	I do not 	consider 	nonclassroom, 	adjunct
duties 	which 	teachers 	are 	required 	to perform 	should 	be 	a
subject 	of 	negotiation. 	A public 	school employer 	should 	have
135

the 	right 	to decide 	upon what work 	is 	to be performed. 	I do
not 	believe 	assignment 	of 	work 	should 	be 	determined 	on 	the
negotiating 	table.
Paragraph 	12. 	I do not 	believe 	that 	the provision of a
teacher 	office 	area 	is directly, 	or 	even 	indirectly, 	related 	to
a matter 	within 	scope. 	This 	is 	similar 	to provision of
classroom space. 	It appears 	that 	the proposal 	invites 	one 	to
interpret 	"hours 	of employment" 	to 	include what 	kind of work
employees 	should 	perform during 	the 	"hours" 	they 	are 	employed.
ARTICLE XI 	- HOURS OF WORK
Paragraph 	1. 	I 	believe 	that 	the 	hours 	teachers must work,
that 	is, 	teacher 	calendar 	and 	teacher workday, 	are within 	the
scope of 	representation. 	However, 	the 	instructional calendar,
that 	is, 	when 	instruction shall 	occur 	and when 	students 	shall
attend 	is 	not 	subject 	to determination 	through 	bilateral
negotiations. 	See 	Palos Verdes 	Peninsula Unified 	School
District/Pleasant Valley School District 	(7/16/79) 	PERB
Decision No. 	96.
Paragraph 	5. 	I do 	not 	consider 	the 	subject of 	the
scheduling of 	faculty meetings 	is 	within 	the 	scope 	of
representation. 	Again, 	the proposal 	is 	tantamount 	to
negotiating 	the 	assignments 	teachers 	will 	perform during 	the
hours when 	they are employed. 	Of course, 	to the extent 	they
are part of 	the 	length of 	a 	teacher's workday, 	they are 	subject
to negotiation 	as 	hours 	of employment.
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Paragraph 	6. 	CTA proposes 	that 	yard 	duty 	schedules 	are 	to
be mutually agreed 	upon by 	the principal and 	faculty. 	I 	do not
consider 	the matter 	of 	whether 	a 	teacher 	will have 	yard 	duty
assignments 	to be 	negotiable. 	If 	it 	affects 	the 	hours of
employment, however, 	it is negotiable, 	if it is directly
related 	to 	any matter 	within 	the 	scope 	of 	representation.
Paragraph 7 	Preparation 	time. 	I do not 	believe preparation
time 	is within 	the scope of 	representation. 	See my dissent 	in
San Mateo City School District 	(5/20/80) 	PERB Decision No. 	129.
Paragraph 	9. 	I do not 	consider 	proposals on allocation of
teaching 	days 	and 	staff development 	days 	to 	be within 	the 	scope
of 	representation. 	This 	is 	not 	included 	in 	"hours of
employment;" 	it 	relates only 	to what 	type of work 	teachers 	do
while 	they 	are 	employed.
ARTICLE XIV - 	SCHOOL CALENDAR
I 	find 	the 	school 	calendar 	for 	teachers 	to 	be 	within 	the
scope 	of 	representation 	as 	directly 	constituting 	hours 	of
employment. 	However, 	the 	instructional calendar, 	or when
pupils 	are 	to receive 	instruction and 	school 	is 	to be opened 	is
unrelated 	to matters within 	the 	scope 	of 	representation. 	See
Palos Verdes/Pleasant Valley, 	supra.
ARTICLE XV - 	SUMMER SCHOOL
Paragraph 6. 	I 	consider 	the 	definition of 	a 	summer 	school
program to 	be 	a 	school district prerogative 	and 	not 	subject 	to
negotiation. 	However, 	I consider 	that 	the 	selection process
137

for 	summer 	school 	teaching 	is 	within 	the 	scope of
representation 	and may 	be 	negotiated over 	for 	employees 	in 	the
unit. 	I 	believe 	this 	is 	similar 	to overtime 	employment 	and,
therefore, 	a matter 	which 	is 	a direct extension 	of 	and directly
related to wages. 	(It 	is my position 	that 	full-time, 	regular
teachers 	in 	the 	District 	constitute 	the 	appropriate 	negotiating
unit.) 	Teachers 	in 	this 	unit may negotiate 	regarding 	their
opportunity 	for 	extra 	service 	teaching 	during 	the 	summer
session. 	See my opinion 	in Redwood City 	Elementary 	School
District 	(10/23/79) 	PERB Decision No. 	107.
This 	reasoning applies as well 	to paragraphs 	7, 	9 	and 	10.
ARTICLE XVIII 	- LEAVES
The matter 	of 	leaves, 	including maternity leave, 	is
specifically 	enumerated 	as 	a 	term 	and 	condition 	of 	employment
within 	the 	scope of 	representation. 	I 	therefore consider 	it 	to
be negotiable.
ARTICLE XXI 	- 	CERTIFICATED EMPLOYEE 	EVALUATIONS
I 	consider 	the CTA's proposals 	to 	be 	within 	scope 	only 	to
the 	extent 	that 	it 	involves 	a procedure 	to be 	used 	for 	the
evaluation of employees, 	but not on evaluations 	themselves.
Matters 	such 	as 	whether 	certificated 	employees 	will 	be
evaluated 	or 	whether 	teachers 	will 	be 	promoted 	or 	suffer
adverse 	action depending on 	the 	ultimate 	result 	of 	the
evaluation are 	not 	"procedural". 	I do not believe 	that 	a
contractual 	evaluation 	procedure 	should 	operate 	to 	supersede 	or
138

preclude 	application 	of 	the 	Education 	Code provisions
providing 	for 	evaluation 	of 	certificated 	employees 	in
detail. 	Regarding materials which may be 	kept 	in District
personnel 	files, 	these 	are 	the 	subject of negotiations only to
the 	extent 	that 	they may 	form the 	basis 	for 	evaluation, 	or 	are
involved 	in a grievance.
ARTICLE XXII 	- 	RESIGNATION AND DISMISSAL
Paragraph 	4. 	This proposal concerns 	severance 	pay. 	Such
an 	economic 	benefit 	is 	a natural 	extension 	and 	directly 	related
to wages. 	It 	is within scope.
ARTICLE XXIII 	- EARLY RETIREMENT
I 	consider 	the 	subject 	of 	early 	retirement 	to 	be 	within 	the
scope of negotiations. 	It 	is directly related 	to, 	and an
extension of, 	the 	concept of 	wages 	and of 	health 	and welfare
benefits.
ARTICLE XXIV 	- 	PARTNERSHIP TEACHING
I 	consider 	the 	partnership 	teaching proposal 	to 	be within
the 	scope 	of 	negotiations 	only 	to 	the 	extent which 	it 	proposes
to 	set 	the 	hours 	of employment 	for 	negotiating 	unit members.
The 	decision 	as 	to 	teaching 	format 	or 	type of 	class 	should
remain a prerogative of 	the 	school 	board.
ARTICLE XXV - 	CERTIFICATED 	EMPLOYEES' 	SAFETY
Paragraph 	1. 	Paragraph 	1 proposes 	to define 	the 	standard
of 	physical 	control 	certificated 	employee 	may 	use 	over 	a
student 	under 	certain 	conditions. 	While 	this 	obviously 	relates
139

to 	safety, 	the 	scope of 	representation 	requires 	that 	the matter
be 	a 	"safety condition of employment." 	It 	is questionable
whether 	a 	standard of 	physical 	force 	is 	a 	safety condition 	of
employment. 	Statutes 	codified 	in 	the California Penal Code 	and
elsewhere 	provide 	for 	standards 	of permissible 	physical 	force
generally, 	and 	in school settings 	in particular. 	In addition,
corporeal punishment of 	students 	is 	a matter 	of 	great 	public
concern and 	is 	the 	subject of considerable 	legislation. 	While
the 	need 	for 	the exercise of physical 	force 	to protect 	"self,
property, 	and 	the 	health and 	safety of pupils 	is 	self evident,"
the 	necessity 	for 	physical 	force 	by a 	teacher 	to 	"maintain
order" 	is more questionable. 	On balance, 	it 	is within scope to
the extent 	it concerns 	the 	teacher's 	safety, 	not 	"property" 	or
maintenance 	of 	"order."
Paragraphs 2 	and 4 	I consider 	to be within the 	scope of
representation. 	Support 	for 	employees 	who 	have 	been 	assaulted
and 	reports 	made 	in connection 	therewith 	are 	very closely
related 	to 	and 	natural 	extensions 	of 	the 	safety 	conditions 	of
employment.
ARTICLE XXIV - 	ASSOCIATION AND CERTIFICATED EMPLOYEE 	RIGHTS
In general, 	I do not 	find 	these proposals 	to be directly
related 	to 	any matter 	within 	the 	scope 	of 	representation.
I do 	not 	consider 	the proposals 	in 	sections 	4, 	5 	and 	5.A.
to be within 	the 	scope of 	representation, 	except 	to 	the 	extent
that 	these 	proposals 	specifically 	are 	necessarily 	tied 	to 	the
140

processing of 	grievances. 	The 	concept 	that 	certain 	information
in 	the 	possession 	of 	the 	employer 	will 	be 	necessary 	in order 	to
process 	a 	grievance 	is 	merely a 	subpart 	of grievance 	processing
generally.
Paragraph 	10 	is 	in essence 	no more 	than 	the Association
seeking 	to 	bargain about a 	subsidy 	in materials 	for 	its
Association. 	The 	agenda 	for 	school board meetings 	is 	a matter
of public 	record 	and 	available 	to 	anyone 	for 	the 	asking, 	as
provided 	for 	by the Legislature 	in 	the Education Code. 	There
is 	hardly a direct 	relationship to wages, 	hours or 	any
enumerated 	matter.
Paragraph 	13 	I 	consider 	to be outside 	the 	scope of
negotiations. 	The proposal 	that CTA officials will be paid 	by
the 	District 	for 	all 	the 	time 	they 	need 	to conduct 	union
business 	is 	essentially a proposal 	for 	financial 	subsidy of 	the
conduct of 	union business 	by the employer. 	As 	it may 	relate 	to
release 	time 	for 	processing of grievances or 	negotiations, 	such
release 	time 	has 	been provided 	for 	in 	the EERA by 	the
Legislature 	in a separate 	section, 	EERA section 3543.l(c).
Furthermore, 	the 	subject of 	release 	time 	should 	not 	be 	subject
to negotiations, 	as 	the employer 	has 	the 	right 	to assign
responsibilities 	to 	teachers 	during 	the 	time 	for 	which 	they are
receiving 	compensation, 	subject 	to 	the 	requirements of 	section
3543.l(c).
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Paragraph 	14(a) 	and 	(b) 	are not subject 	to negotiations 	in
my opinion. 	The 	subject of 	classroom privacy 	is 	not directly,
or 	even remotely, 	related 	to wages, 	hours or 	any enumerated
term and 	condition of 	employment. 	Secret 	recordings or
surveillance could, 	however, 	be within scope when directly
related 	to 	an 	evaluation 	procedure.
ARTICLE XXVII 	- 	NEGOTIATION 	PROCEDURE
I 	consider 	the 	general 	subject 	of 	negotiations 	procedures
for 	matters 	which 	are 	within 	the 	scope of 	representation 	to
also 	be an appropriate matter 	for 	negotiation. 	This 	is 	not 	so
much 	because 	negotiation groundrules 	or 	procedures 	are 	directly
related 	to any particular 	subject 	but 	rather 	because 	they 	are
inherent 	in 	the 	concept of 	negotiating 	on a 	particular 	matter.
For 	example, 	if employees are to negotiate wages, 	hours,
benefits, 	class size, 	and safety conditions, 	it will be
necessary 	for 	the parties 	to discuss when 	they will meet, 	how
often 	they will meet, 	and 	the 	order 	in which 	the matters 	will
be 	negotiated.
ARTICLE XXXII 	- CONFIDENTIAL FILES
I 	consider 	the 	subject of 	the 	District's 	personnel 	files,
and 	the 	confidentiality 	thereof, 	to generally be 	not within 	the
scope of 	representation. 	To 	the 	extent 	that 	the confidential
files may be 	involved or 	used 	in an evaluation procedure, 	the
processing of a grievance, 	a 	transfer or 	reassignment, 	or 	loss
of wages 	and 	benefits, 	then 	and 	only 	then would 	they come
142

within the scope of representation. 	Beyond this 	limited 	area
of overlap, however, the subject matter of personnel files,
confidential or otherwise, 	is not an enumerated matter within
section 3543.2, nor is it directly related to, or a natural
extension of, 	any such matter.
./Raymond J. 	Gonsales Member
The order 	in this case begins on page 144,
143
/

ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law, 	and 	the
entire 	record 	in 	this 	case, 	and 	pursuant 	to Government Code
section 3541.5(c), 	it 	is hereby ORDERED that 	the Jefferson
School 	District 	and 	its 	representatives 	shall 	CEASE AND 	DESIST
from failing or 	refusing 	to meet 	and 	negotiate 	in good 	faith 	to
the 	extent 	indicated 	in 	this 	decision 	in 	the 	discussion of each
Article 	and 	the portions 	thereof, 	upon 	request 	to do 	so by 	the
exclusive 	representative 	of 	the 	District's 	certificated
employees, on the following matters:
1. 	ARTICLE 	III 	- 	Professional Dues or 	Fees 	and Payroll
Deductions.
2. 	ARTICLE IV 	- 	Nondiscrimination.
3. 	ARTICLE VI 	Public Charges, 	paragraphs l f 	2, 	3
and 	5.
4. 	ARTICLE VII 	- 	Employment 	Classifications 	and
Assignments, 	paragraphs 	2.A.-C;
2.D.; 	2.E.; 	and 	2.F.
5. 	ARTICLE VII - Compensation.
6. 	ARTICLE X 	- 	Working Conditions, 	paragraphs 	4 	and
10.
7. 	ARTICLE XI 	Hours of Work, paragraphs 1, 	5, 	6,
and 	7.
8. 	ARTICLE XIV 	School Calendar.
9. 	ARTICLE XV 	Summer 	School.
10. 	ARTICLE XVIII - 	Leaves.
11. 	ARTICLE XXI 	- 	Evaluations.
12. 	ARTICLE XXII 	- 	Resignations 	and Dismissals.
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13. 	ARTICLE XXIII 	- 	Early Retirement.
14. 	ARTICLE XXIV 	- 	Partnership 	Teaching.
15. 	ARTICLE XXV 	- 	Employee 	Safety.
16. 	ARTICLE XXVI 	- 	Association 	and Certificated 	Employee
Rights, paragraphs 4, 5, 5a, 10, 13,
and 	14a.
17. 	ARTICLE XXVII 	Negotiations 	Procedures•
18. 	ARTICLE XXXII 	- 	Confidential Files, 	paragraphs 1, 	3,
6, 	7, 	and 9.
It 	is 	further 	ORDERED 	that 	the 	Jefferson 	School District
shall 	not 	be 	required 	to meet 	and 	negotiate 	in 	good 	faith 	with
the 	exclusive 	representative 	of 	the 	District's 	certificated
employees 	on 	the 	following matters:
19. 	ARTICLE VI 	- 	Public Charges, 	paragraph 	4.
20. 	ARTICLE VII 	- 	Classification, 	paragraph 	1.
21. 	ARTICLE X 	- 	Working Conditions, 	paragraphs 	1, 	8,
and 12.
22. 	ARTICLE XI 	- 	Hours, 	paragraphs 9 	and 	11.
23. 	ARTICLE XXVI 	- 	Association Rights, 	paragraph 	14b.
24. 	ARTICLE XXXII 	- 	Confidential Files, 	paragraphs 2 and
8.
It 	is 	further 	ORDERED 	that 	Jefferson School 	District 	shall
post 	copies of 	this 	order 	in conspicuous 	places 	where 	notices
to 	certificated 	employees 	are 	customarily placed 	at 	its
headquarters 	office 	and 	at 	each of 	its 	school 	sites 	for 	twenty
(20) 	consecutive workdays. 	Copies of 	this order 	shall be
posted 	immediately 	upon 	receipt 	thereof. 	Reasonable 	steps
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shall be 	taken 	to ensure 	that copies of 	this 	order 	are 	not
altered, 	defaced, 	or covered 	by any other material.
It 	is 	further 	ORDERED 	that 	the 	unfair practice 	charges
filed 	by 	the 	Jefferson Classroom Teachers Association, 	CTA/NEA
are 	SUSTAINED with 	respect 	to 	those matters 	covered 	by
subparagraphs 	1 	through 	18 	above of 	this order 	and 	that 	the
unfair 	practice 	charges 	filed 	by 	the 	Jefferson 	Classroom
Teachers Association, 	CTA/NEA are DISMISSED with 	respect 	to
those matters 	covered 	by 	subparagraphs 	19 	through 	24 	of 	this
order.
It 	is 	further 	ORDERED 	that 	the 	unfair 	practice 	filed 	by 	the
Jefferson 	School 	District 	against 	the 	Jefferson Classroom
Teachers Association 	is 	DISMISSED.
This 	order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof on 	the Jefferson School District.
PER 	CURIAM
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\

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 unfair 	practice case Nos. 	SF-CE-33 	and
SF-CO-6, 	in which all parties had the right to participate, 	it
has 	been 	found 	that 	the 	Jefferson 	School 	District 	violated 	the
Educational 	Employment 	Relations 	Act 	by 	failing 	and 	refusing 	to
negotiate 	with 	respect 	to certain matters 	within 	the 	scope of
representation 	and 	which 	are 	set 	forth 	in 	the 	attached order of
. .
the 	Public 	Employment 	Relations 	Board.
It 	has 	also 	been 	found 	that 	the 	Jefferson School 	District
did 	not 	violate 	the Educational 	Employment Relations Act 	by
failing 	and 	refusing 	to meet 	and 	negotiate with 	respect 	to
certain other 	matters which 	are 	not within 	the 	scope of
representation 	and 	which 	are 	set 	forth 	on 	the 	attached 	order 	of
the 	Public 	Employment Relations 	Board.
We 	have 	been 	ordered 	to post 	this 	notice 	and:
WE WILL NOT fail or 	refuse 	to negotiate 	in 	good 	faith 	with
the 	exclusive 	representative 	of 	the 	certificated 	employees 	of
the Jefferson 	School District on 	those 	matters 	within 	scope 	if
requested 	to do 	so.
By: Superintendent
Jefferson 	School 	District
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