Stockton Unified School District (PERB 0143E)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
In the Matter of :
STOCKTON TEACHERS ASSOCIATION ,
CTA/NEA, Unfair Practice
Charging Party, 	Case Nos. S-CE-162
S-CE-225
v . 	S-CE-235
STOCKTON UNIFIED SCHOOL DISTRICT,
Respondent, 	PERB Decision No. 143
STOCKTON FEDERATION OF TEACHERS ,
AFT/AFL/CIO, November 3, 1980
Intervenor .
STOCKTON UNIFIED SCHOOL DISTRICT,
Charging Party, 	Case No. S-CO-39
v .
STOCKTON TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
Appearances: Duane B. Beeson (Beeson, Tayer and Kovach) for
Stockton Teachers Association; William F. Kay (Whitmore & Kay)
for Stockton Unified School District; Robert J. Bezemek
(Van Bourg, Allen, Weinberg and Roger ) for Stockton Federation
of Teachers.
Before Gluck, Chairperson; Moore, Member.
STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
In 	the 	Matter 	of:
STOCKTON 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
STOCKTON 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent,
STOCKTON 	FEDERATION 	OF 	TEACHERS,
AFT/AFL/CIO,
Intervenor.
Unfair 	Practice
Case 	Nos. 	S-CE-162
S-CE-225
S-CE-235
PERB 	Decision 	No. 	143
November 	3, 	1980
STOCKTON 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
STOCKTON 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
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Case 	No. 	S-CO-39
Appearances: 	Duane 	B. 	Beeson 	(Beeson, 	Tayer 	and 	Kovach) 	for
Stockton 	Teachers 	Association; 	William F. 	Kay 	(Whitmore 	& Kay)
for 	Stockton 	Unified 	School 	District; 	Robert 	J. 	Bezemek-
(Van Bourg, 	Allen, 	Weinberg 	and 	Roger) 	for 	Stockton 	Federation
of 	Teachers.
Before 	Gluck, 	Chairperson1 	Moore, 	Member.

DECISION
This case comes before the Public Employment Relations
Board (hereafter PERB or Board) on exceptions filed by the
Stockton Unified School District (hereafter District) to the
attached hearing officer's proposed decision.
Three charges were filed by the Stockton Teachers
Association (hereafter Association) against the District.
Charge number S-CE-162 was withdrawn at the time of the
hearing. 	Charge number S-CE-225 alleged that the District
violated section 3543.5 (a) , (b) and (c) 1 of the Educational
Employment Relations Act (hereafter EERA or Act) by refusing to
provide health insurance data (Count I) ; by unilaterally
The Educational Employment Relations Act is codified at
Government Code section 3540 et seq. Section 3543.5 provides
in pertinent part:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
(d) Dominate or interfere with the
formation or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
2
DECISION
This
	case
	comes
	before 	the 	Public
	Employment
	Relations
Board
	(hereafter
	PERB
	or
	Board)
	on
	exceptions
	filed
	by
	the
Stockton 	Unified
	School
	District
	(hereafter
	District)
	to 	the
attached 	hearing
	officer's
	proposed
	decision.
Three
	charges
	were
	filed
	by
	the 	Stockton 	Teachers
Association
	(hereafter
	Association)
	against
	the
	District.
Charge
	number 	S-CE-162 	was
	withdrawn
	at
	the
	time
	of 	the
hearing.
	Charge
	number 	S-CE-225
	alleged 	that
	the
	District
violated 	section
	3543.5(a),
	(b) 	and
	(c)l	
of 	the 	Educational
Employment
	Relations
	Act
	(hereafter
	EERA
	or
	Act)
	by
	refusing
	to
provide
	health
	insurance 	data
	(Count
	I);
	by
	unilaterally
lThe
	Educational
	Employment
	Relations
	Act
	is
	codified
	at
Government 	Code
	section
	3540
	et
	seq. 	Section
	3543.5
	provides
in
	pertinent 	part:
It
	shall
	be
	unlawful 	for
	a
	public 	school
employer
	to:
(a) 	Impose
	or
	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate
	or
	threaten 	to
discriminate 	against
	employees, 	or
	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees 	because
	of
	their
	exercise 	of
rights
	guaranteed
	by
	this 	chapter.
(b) 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this
	chapter.
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate
	in
good
	faith
	with
	an
	exclusive 	representative.
(d) 	Dominate
	or
	interfere
	with 	the
formation 	or
	administration of
	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to
	it,
	or 	in
	any 	way 	encourage
2

instituting a new teacher evaluation procedure (Count VII (C) ) ;
and by unlawfully supporting a rival employee organization, the
Stockton Federation of Teachers (hereafter Federation) by
scheduling the Federation to speak at a mandatory faculty
meeting (Count VII (F) (3) ) . The Federation intervened in this
latter count. Charge number S-CE-235 alleged that the District
violated section 3543.5 (a), (b) and (c) by reneging on a ground
rules agreement and by refusing to negotiate on substantive
proposals until new ground rules were adopted.
The District, in turn, in charge number S-CO-39, alleged
that the Association violated section 3543.6 (a) and (c) 2 by
refusing to meet and negotiate in good faith. All charges were
consolidated for hearing.
employees to join any organization in
preference to another.
All section references herein are to the Government Code
unless otherwise noted.
2section 3543.6 (a) and (c) provides:
It shall be unlawful for an employee
organization to:
(a) Cause or attempt to cause a public
school employer to violate Section 3543.5.
(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.
3
instituting
	a 	new
	teacher
	evaluation
	procedure
	(Count
	VII(C));
and 	by
	unlawfully 	supporting
	a
	rival
	employee
	organization,
	the
Stockton
	Federation 	of
	Teachers
	(hereafter
	Federation)
	by
scheduling 	the
	Federation 	to
	speak
	at
	a
	mandatory
	faculty
meeting
	(Count
	VII(F)
(3)).
	The
	Federation 	intervened
	in
	this
latter
	count.
	Charge
	number 	S-CE-235
	alleged
	that
	the
	District
violated 	section
	3543.5(a),
	(b) 	and 	(c)
	by
	reneging
	on
	a
	ground
rules
	agreement
	and 	by
	refusing 	to 	negotiate
	on
	substantive
proposals
	until
	new
	ground
	rules
	were
	adopted.
employees
	to 	join
	any
	organization
	in
preference 	to 	another.
All
	section 	references 	herein 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted.
The
	District,
	in
	turn,
	in 	charge
	number
	S-C0-39,
	alleged
that
	the 	Association 	violated 	section
	3543.6(a)
	and
	(c)2	
by
refusing
	to
	meet
	and
	negotiate 	in
	good
	faith.
	All 	charges
	were
consolidated
	for
	hearing.
2section
	3543.6(a)
	and 	(c)
	provides:
It
	shall
	be
	unlawful 	for
	an 	employee
organization 	to:
(a) 	Cause 	or
	attempt 	to 	cause
	a
	publicschool
	employer
	to 	violate 	Section 	3543.5.
. 	. 	. 	. . 	. 	. 	. 	. . 	. . .
·•	
. . . . 	. . 	.
(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.
3

In his proposed decision, the hearing officer found that
the District had violated sections 3543.5 (a) , (b) and (c) by
refusing to provide health benefit information to the
Association during mid-contract reopener negotiations and by
taking unilateral action affecting teacher evaluation
procedures by instituting the use of a program management
checklist. He found that the District violated
section 3543.5 (a) and (c) by failing and refusing to meet and
negotiate in good faith with the Association. 3 The hearing
officer further found that the District had violated section
3543.5 (d) by supporting the Federation and by encouraging
employees to join the Federation in preference to the
Association by placing a presentation by the Federation on the
agenda of a mandatory teachers' meeting. He dismissed the
remaining allegations in the Association charges against the
District. He also dismissed the District's charge which had
alleged that the Association had failed to meet and negotiate
in good faith with the District.
The District filed exceptions to each of the hearing
officer's findings that the District had engaged in unfair
conduct except the section 3543.5 (d) charge involving the
Federation. The District also excepted to the dismissal of its
3The hearing officer fails to mention the 3543.5 (b)
violation in the text of his opinion, although he does list it
in his posting order.
In
	his
	proposed
	decision,
	the 	hearing
	officer
	found
	that
the
	District
	had
	violated 	sections
	3543.S(a),
	(b) 	and 	(c) 	by
refusing 	to
	provide
	health
	benefit
	information 	to 	the
Association
	during
	mid-contract
	reopener
	negotiations
	and 	by
taking
	unilateral
	action
	affecting
	teacher
	evaluation
procedures
	by
	instituting
	the
	use
	of
	a
	program
management
checklist.
	He
	found
	that
	the
	District
	violated
section
	3543.S(a)
	and 	(c) 	by
	failing
	and
	refusing 	to
	meet
	and
negotiate
	in
	good
	faith
	with 	the
	Association.3	
The
	hearing
officer
	further
	found
	that
	the
	District
	had
	violated 	section
3543.S(d)
	by
	supporting 	the
	Federation
	and 	by
	encouraging
employees
	to 	join
	the
	Federation 	in 	preference 	to 	the
Association
	by
	placing
	a
	presentation	
by	
the 	Federation
	on
	the
agenda
	of
	a
	mandatory
	teachers'
	meeting.
	He
	dismissed 	the
remaining
	allegations
	in 	the 	Association 	charges
	against
	the
District.
	He
	also
	dismissed 	the
	District's
	charge
	which 	had
alleged 	that
	the 	Association
	had
	failed 	to
	meet
	and
	negotiate
in
	good
	faith
	with 	the
	District.
The
	District 	filed
	exceptions 	to
	each
	of 	the 	hearing
officer's
	findings 	that
	the
	District
	had 	engaged
	in 	unfair
conduct 	except 	the 	section
	3543.S(d) 	charge 	involving 	the
Federation.
	The
	District 	also
	excepted 	to 	the 	dismissal 	of
	its
3The
	hearing
	officer 	fails
	to
	mention 	the 	3543.S(b)
violation 	in 	the
	text 	of 	his 	opinion, 	although
	he 	does
	list 	it
in 	his 	posting 	order.
4

charge against the Association. The Association did not file
any exceptions nor any response.
Although not directly before the Board in this proceeding,
the Board takes official notice that the Federation filed a
decertification petition on May 17, 1979. The Sacramento
Regional Director on May 22, 1979, notified the parties that he
was blocking the election pending the Board's determination of
the instant unfair practice charges.
For the reasons expressed below, the Board affirms in part
and reverses in part the hearing officer's proposed decision
and order including that part of the order to which the
District did not take exception.
FACTS
The hearing officer's procedural history and findings of
fact are substantially correct and are adopted by the Board
itself to the extent modified herein.
I. The District's Refusal to Provide Information
The hearing officer found that the Association had
requested information regarding the District's monthly "payout"
for health insurance benefits for unit members. This
information was requested in preparation for the mid-term
negotiations on health benefits and wages permitted by the
existing agreement. The District responded that the
information was not available in the form requested by the
Association and advised the Association to directly contact the
UT
charge
	against
	the
	Association.
	The
	Association did
	not
	file
any
	exceptions
	nor
	any
	response.
Although
	not
	directly
	before 	the
	Board
	in
	this
	proceeding,
the
	Board
	takes
	official
	notice
	that
	the 	Federation
	filed
	a
decertification 	petition
	on
	May
	17,
	1979.
	The
	Sacramento
Regional
	Director
	on
	May
	22, 	1979,
	notified
	the
	parties 	that
	he
was
	blocking 	the
	election
	pending
	the 	Board's 	determination
	of
the
	instant
	unfair
	practice
	charges.
For
	the 	reasons 	expressed
	below,
	the
	Board
	affirms
	in
	part
and
	reverses
	in
	part
	the 	hearing
	officer's
	proposed
	decision
and
	order 	including
	that 	part
	of 	the 	order 	to
	which
	the
District
	did 	not 	take 	exception.
FACTS
The
	hearing
	officer's
	procedural
	history
	and
	findings
	of
fact
	are
	substantially 	correct
	and
	are
	adopted
	by
	the
	Board
itself
	to 	the
	extent
	modified
	herein.
I.
	The
	District's
	Refusal 	to
	Provide 	Information
The
	hearing
	officer
	found
	that
	the 	Association
	had
requested 	information 	regarding 	the
	District's
	monthly 	"payout"
for 	health 	insurance
	benefits
	for
	unit
	members.
	This
information
	was
	requested 	in 	preparation
	for 	the 	mid-term
negotiations
	on
	health 	benefits
	and 	wages
	permitted
	by
	the
existing
	agreement.
	The
	District
	responded
	that
	the
information
	was
	not
	available 	in 	the
	form
	requested	
by	
the
Association
	and
	advised 	the 	Association 	to 	directly 	contact 	the
5

insurance carrier, Blue Cross. Under protest, the Association
contacted Blue Cross for the information. When the Association
was unable to get the information from Blue Cross, it informed
the District of this and reiterated its request to the
District. 	The District repeated that it did not have the
information available to it in the form requested and that it
would be unduly burdensome to extract the data from that
provided to it by Blue Cross.
Clyde Williams, the Association's executive director,
testified that he had the Association's health consultant,
Frank Welsh, contact Blue Cross for the health cost
information. The Association introduced into evidence, over
hearsay objections by the District, a letter from Mr. Welsh,
which stated that a representative of Blue Cross had informed
him that the District had instructed the company not to release
the requested information.
Mr . Welsh's letter was not used to corroborate other
information but was the basis of a factual finding. The
hearing officer did not discuss the hearsay problem in his
proposed decision and found " . . 	[T]he Association was
informed [by Blue Cross] that the District had instructed the
carrier not to furnish any information. "4
4Hearing Officer's Proposed Decision, p. 3.
insurance
	carrier,
	Blue
	Cross.
	Under
	protest,
	the
	Association
contacted
	Blue 	Cross
	for 	the 	information.
	When
	the
	Association
was
	unable
	to 	get
	the 	information
	from
	Blue
	Cross,
	it
	informed
the
	District
	of
	this
	and
	reiterated
	its
	request 	to 	the
District.
	The
	District
	repeated
	that
	it
	did
	not
	have
	the
information
	available 	to
	it
	in 	the
	form
	requested
	and
	that
	it
would 	be
	unduly
	burdensome
	to
	extract
	the
	data
	from
	that
provided
	to
	it
	by
	Blue
	Cross.
Clyde
	Williams,
	the
	Association's
	executive
	director,
testified
	that
	he 	had
	the
	Association's 	health 	consultant,
Frank 	Welsh,
	contact
	Blue 	Cross
	for 	the 	health 	cost
information.
	The
	Association 	introduced
	into
	evidence,
	over
hearsay
	objections
	by
	the
	District,
	a
	letter
	from 	Mr.
	Welsh,
which
	stated 	that
	a
	representative
	of
	Blue
	Cross
	had
	informed
him
	that
	the
	District
	had
	instructed
	the
	company
	not
	to 	release
the 	requested 	information.
Mr.
	Welsh's
	letter
	was
	not
	used
	to 	corroborate 	other
information 	but
	was
	the
	basis 	of
	a
	factual 	finding.
	The
hearing
	officer
	did 	not 	discuss 	the 	hearsay
	problem
	in 	his
proposed
	decision
	and 	found
	11
•••
	[T]he
	Association
	was
informed
	[by
	Blue 	Cross]
	that
	the
	District
	had
	instructed 	the
carrier
	not 	to 	furnish
	any
	information.
114
4Hearing
	Officer's
	Proposed 	Decision, 	p. 	3.
6

II . 	The District's Unilateral Change in Evaluation Procedures
The hearing officer found that the District had violated
its duty to negotiate in good faith by unilaterally instituting
a checklist evaluation procedure. At the time of the change,
August 1978, a contract was in existence between the parties
which contained provisions for evaluation of teachers.
Sections 3.1 and 3.2 of Article 3 of the contract read as
follows :
3. 	EVALUATION
3.1. 	Except as amended below, the evaluation
of teachers during the term of this
Agreement shall be conducted in accord
with District Policy No. 326. During
the life of this Agreement the District
agrees not to change District Policy
No. 326 and Administrative Rules and
Regulations Nos. 3260-3269 (Evaluation
of Performance) except as amended below.
3. 2. 	The grievance procedure shall be
utilized for disputes arising over
procedural matters only. Where a
question of substance versus procedure
is involved such question shall not be
subject to the grievance procedure or
arbitration unless PERB rules the
matter to be procedural. T
arbitrator shall have the authority to
rule on other issues related to
evaluation if mutually agreed to or
authorized to do so by PERB ruling.
Under the contract, a grievance is defined as a "dispute
between the District and an aggrieved person involving a
violation, interpretation or application of a provision of this
II.
	The
	District's
	Unilateral
	Change
	in
	Evaluation 	Procedures
The
	hearing
	officer
	found
	that
	the
	District
	had
	violated
its
	duty
	to
	negotiate
	in
	good
	faith
	by
	unilaterally
	instituting
a
	checklist
	evaluation
	procedure.
	At
	the
	time
	of 	the
	change,
August
	1978,
	a
	contract
	was
	in
	existence
	between
	the
	parties
which
	contained 	provisions
	for
	evaluation 	of
	teachers.
Sections
	3.1
	and
	3.2
	of
	Article
	3
of
	the
	contract
	read
	as
follows: 
3.
	EVALUATION
3.1.
	Except 	as
	amended
	below,
	the
	evaluationof 	teachers
	during 	the
	term
	of
	this
Agreement
	shall
	be
	conducted
	in
	accord
with
	District
	Policy
	No.
	326. 	During
the
	life
	of
	this
	Agreement
	the
	District
agrees
	not
	to
	change
	District
	Policy
No. 	326 	and
	Administrative
	Rules
	and
Regulations
	Nos. 	3260-3269
	(Evaluation
of
	Performance)
	except 	as
	amended
	below.
3.2.
	The
	grievance 	procedure
	shall
	be
utilized
	for
	disputes 	arising
	over
procedural 	matters 	only.
	Where 	a
question 	of 	substance 	versus 	procedure
is
	involved
	such
	question
	shall
	not
	be
subject 	to 	the 	grievance 	procedure 	or
arbitration
	unless
	PERB
	rules
	the
matter 	to
	be
	procedural.
	The
arbitrator 	shall
	have
	the
	authority 	to
rule
	on
	other 	issues 	related
	to
evaluation
	if
	mutually 	agreed 	to 	or
authorized 	to
	do
	so
	by
	PERB
	ruling.
Under
	the
	contract,
	a
	grievance
	is
	defined 	as
	a
	"dispute
between 	the
	District
	and 	an
	aggrieved 	person 	involving
	a
violation, 	interpretation
	or 	application 	of
	a
	provision 	of 	this
7

Agreement. "5 The contract provides for binding arbitration
as the final step in the grievance process. 6
III . 	The Negotiating History Between the Parties
While the Board adopts the hearing officer's findings of
fact regarding the history of negotiations for a successor
agreement, given the complicated allegations these findings
require amplification.
The District and the Association met on March 2, 1979 to
begin formal negotiations on a successor contract. One week
prior, the District's chief negotiator, Kenneth Caves, had
announced his resignation from District employment. At the
March 2 meeting, the Association representatives expressed
concern about Caves' authority to negotiate on behalf of the
District. Caves assured the Association that he had full
authority to negotiate for the District. The parties reached
agreement on ground rules and began to discuss substantive
contract issues, each side commenting on the other side's
proposals.
The March 9 meeting between the parties was cancelled by
The	the District because it was Caves' last day of work.
Association continued to press for meetings, but the District
5Article 5, Section 1.1 of the parties' contract.
Exhibit No. 1.
6Article 5, Section 2.4.2 of the parties' contract.
Exhibit No. 1.
8
Agreement.
11
5 	The
	contract
	provides 	for 	binding
	arbitration
as 	the
	final
	step
	in
	the
	grievance
	process.6
III.
	The
	Negotiating 	History
	Between
	the
	Parties
While
	the
	Board
	adopts
	the 	hearing
	officer's
	findings 	of
fact
	regarding
	the
	history
	of 	negotiations
	for
	a
	successor
agreement, 	given
	the
	complicated
	allegations
	these 	findings
require
	amplification.
The
	District
	and
	the 	Association
	met 	on
	~rch
	2,
	1979
	to
begin 	formal
	negotiations
	on 	a
	successor
	contract.
	One 	week
prior,
	the
	District's
	chief 	negotiator,
	Kenneth
	Caves,
	had
announced
	his 	resignation
	from
	District
	employment.
	At
	the
March 	2
meeting, 	the 	Association
	representatives
	expressed
concern 	about 	Caves'
	authority 	to 	negotiate
	on
	behalf 	of 	the
District.
	Caves
	assured 	the 	Association
	that
	he 	had
	full
authority
	to
	negotiate
	for 	the
	District.
	The
	parties
	reached
agreement
	on
	ground
	rules
	and
	began
	to 	discuss 	substantive
contract 	issues,
	each
	side
	commenting 	on
	the 	other
	side's
proposals.
The 	March 	9
	meeting 	between
	the
	parties
	was
	cancelled
	by
the
	District
	because
	it
	was
	Caves'
	last
	day
	of
	work. 	The
Association 	continued 	to 	press 	for 	meetings, 	but 	the
	District
SArticle 	5, 	Section 	1.1 of 	the
	parties' 	contract.Exhibit
	No.
	1.
6Article 	5, 	Section 	2.4.2 	of 	the
	parties' 	contract.
Exhibit
	No.
	1.
8

declined, explaining that it was having difficulty in obtaining
a replacement for Caves.
The Association met with the District's new negotiator,
Joe Crossett, on April 4, 1979. He informed the Association
that he would not be available to begin negotiating until
April 26, 1979. At this introductory meeting he presented a
set of proposed ground rules for negotiations. The Association
informed him that ground rules had already been agreed upon
between the Association and the District and pressed for an
early meeting.
The Association set up an interim meeting with the District
for April 6, while Crossett was still unavailable, with
Charles Thompson, the District's attorney. At that meeting,
Thompson informed the Association that he was authorized to
discuss only one subject, a substantive item, the next year's
school calendar. The Association declined to discuss the topic
independent of the rest of the negotiating package. The
Association again pressed for additional meetings, but was told
that it would have to wait for Crossett to return.
The Association then met with Crossett on April 26. The
Association's chief negotiator, Mr. Dean Janssen, detailed for
Crossett all of the ground rules that the Association and
District had previously agreed to at the March 2 meeting. The
Association attempted to discuss contract proposals. Crossett
refused to discuss any subject besides ground rules. At the
declined, 	explaining
	that
	it
	was
	having
	difficulty
	in 	obtaining
a
	replacement
	for
	Caves.
The
	Association
	met
	with
	the
	District's
	new
	negotiator,
Joe
	Crossett,
	on
	April
	4, 	1979.
	He
	informed
	the
	Association
that
	he
	would
	not
	be
	available 	to
	begin
	negotiating
	until
April
	26, 	1979.
	At
	this
	introductory
	meeting
	he
	presented
	a
set
	of
	proposed
	ground
	rules
	for
	negotiations.
	The
	Association
informed
	him
	that
	ground
	rules
	had
	already
	been
	agreed
	upon
between
	the 	Association
	and
	the
	District
	and
	pressed 	for
	an
early
	meeting.
The
	Association
	set
	up 	an
	interim
	meeting 	with
	the
	District
for
	April
	6, 	while
	Crossett
	was
	still
	unavailable,
	with
Charles
	Thompson,
	the
	District's
	attorney.
	At
	that
	meeting,
Thompson
	informed
	the
	Association
	that
	he 	was
	authorized
	to
discuss
	only
	one
	subject,
	a
	substantive
	item,
	the 	next
	year's
school
	calendar.
	The
	Association 	declined 	to 	discuss
	the
	topic
independent 	of 	the
	rest
	of 	the 	negotiating
	package.
	The
Association 	again 	pressed 	for
	additional
	meetings, 	but
	was
	told
that
	it
	would
	have
	to 	wait 	for 	Crossett 	to 	return.
The
	Association 	then
	met
	with
	Crossett
	on
	April
	26. 	The
Association's 	chief 	negotiator,
	Mr. 	Dean
	Janssen, 	detailed
	for
Crossett
	all
	of 	the 	ground
	rules 	that
	the 	Association
	and
District
	had
	previously 	agreed 	to
	at
	the
	March 	2
meeting.
	The
Association 	attempted 	to 	discuss 	contract 	proposals. 	Crossett
refused 	to 	discuss
	any
	subject 	besides 	ground
	rules.
	At
	the
9

end of the meeting, however, Crossett suggested that the
parties discuss the school calendar. 	Janssen pointed out that
this was a substantive proposal and that he was willing to
discuss it. After ascertaining that the Association had not
received the District's new calendar proposal, Crossett refused
to give them a copy and dropped the calendar discussion.
The parties again met on April 30, 1979. Crossett
indicated that he did not care what ground rules had been
agreed to previously because he was the District's new
spokesperson and needed to develop his own rules. The District
refused to discuss substantive proposals, and the Association
refused to renegotiate ground rules. The District
representatives eventually walked out.
The parties met on May 14, 21, 22, 29 and June 4. The only
changes in the District's position were variations on the
ground rules proposals the District presented to the
Association. The District uniformly refused to discuss
substantive proposals until ground rules were agreed upon and
written down. 	The Association was also firm in refusing to
renegotiate ground rules and in insisting the parties discuss
substantive issues.
On May 14, the Association offered to mail a copy of its
understanding of the ground rules to the District if the
District would agree to stop using ground rules as a block to
negotiations, meet at alternate sites and arrange a
10
end
	of 	the 	meeting,
	however,
	Crossett
	suggested
	that
	the
parties
	discuss
	the 	school
	calendar.
	Janssen 	pointed 	out
	that
this
	was 	a
	substantive
	proposal
	and
	that
	he 	was
	willing
	to
discuss
	it.
	After
	ascertaining
	that
	the
	Association
	had
	not
received 	the
	District's
	new
	calendar 	proposal, 	Crossett
	refused
to
	give
	them
	a
	copy 	and
	dropped
	the 	calendar
	discussion.
The
	parties
	again
	met 	on
	April
	30, 	1979.
	Crossett
indicated
	that
	he
	did 	not 	care
	what 	ground
	rules
	had
	been
agreed
	to previously
	because
	he 	was
	the
	District's
	new
spokesperson
	and
	needed
	to
	develop
	his
	own
	rules.
	The
	District
refused 	to 	discuss 	substantive 	proposals,
	and
	the
	Association
refused 	to 	renegotiate
	ground
	rules.
	The
	District
representatives
	eventually
	walked
	out.
The
	parties
	met 	on
	May
	14,
	21, 	22,
	29
	and
	June 	4.
	The
	only
changes
	in 	the
	District's
	position
	were
	variations
	on
	the
ground
	rules
	proposals 	the
	District
	presented 	to
	the
Association.
	The
	District
	uniformly 	refused 	to 	discuss
substantive
	proposals
	until
	ground
	rules
	were
	agreed
	upon 	and
written
	down. 	The
	Association
	was
	also
	firm 	in 	refusing 	to
renegotiate
	ground
	rules
	and
	in
	insisting
	the
	parties
	discuss
substantive 	issues.
On 	May
	14, 	the 	Association 	offered 	to
	mail
	a 	copy
	of
	its
understanding 	of 	the
	ground
	rules 	to 	the
	District 	if
	the
District
	would
	agree 	to 	stop 	using 	ground
	rules
	as
	a
	block
	to
negotiations,
	meet
	at 	alternate 	sites
	and
	arrange
	a
10

satisfactory meeting schedule between May 14 and the end of the
school year. Crossett refused, stating that "the price was too
high. " There was thus no discussion at that meeting of
contract issues.
On May 22, the Association asked the District to discuss
items the school board had before it that the Association
thought were within scope. The District refused.
The parties called in a mediator at their May 21 and 29 and
June 4 meetings. Both sides, however, continued to maintain
their respective positions.
At the May 29th meeting, the Association renewed its May 14
offer to agree to reduce the March 2 agreement to writing if
the District would agree to alternate meeting sites, to a
satisfactory meeting schedule, and to stop using ground rules
as a block to negotiations. When the mediator took the
proposal to the District, all District personnel except
Crossett had left. Crossett took the proposal under advisement
and left.
At the June 4th meeting, Crossett asked Janssen if the
Janssen	Association would ever put ground rules in writing.
responded that ground rules were agreed to and by now the
District should have adequate notes of the ground rules.
Janssen had previously gone over the agreed-upon ground rules
with Crossett at the April 26 meeting. Crossett insisted that
11
satisfactory
	meeting
	schedule
	between
	May
	14 	and
	the
	end
	of
	the
school
	year. 	Crossett 	refused,
	stating 	that
	"the
	price
	was
	too
high."
	There
	was
	thus
	no
	discussion
	at 	that
	meeting
	of
contract 	issues.
On
	May
	22,
	the 	Association
	asked
	the
	District
	to 	discuss
items
	the 	school
	board
	had
	before
	it
	that
	the
	Association
thought
	were
	within
	scope.
	The
	District
	refused.
The
	parties
	called
	in
	a
	mediator
	at
	their
	May
	21 	and
	29
	and
June
	4
meetings.
	Both
	sides,
	however,
	continued
	to
	maintain
their
	respective
	positions.
At
	the
	May
	29th
	meeting,
	the 	Association
	renewed
	its
	May
	14
offer
	to
	agree
	to
	reduce
	the
	March 	2
	agreement
	to 	writing
	if
the
	District
	would
	agree
	to
	alternate
	meeting
	sites,
	to
	a
satisfactory
	meeting
	schedule,
	and
	to 	stop
	using
	ground
	rules
as
	a
	block
	to
	negotiations.
	When
	the
	mediator
	took
	the
proposal 	to 	the
	District,
	all
	District
	personnel 	except
Crossett
	had
	left.
	Crossett
	took
	the 	proposal
	under
	advisement
and
	left.
At
	the 	June 	4th 	meeting,
	Crossett
	asked
	Janssen
	if
	the
Association
	would
	ever
	put
	ground
	rules 	in 	writing. 	Janssen
responded
	that
	ground
	rules
	were 	agreed
	to
	and 	by 	now
	the
District
	should
	have
	adequate 	notes 	of 	the
	ground
	rules.
Janssen
	had
	previously
	gone
	over 	the 	agreed-upon 	ground
	rules
with 	Crossett 	at
	the 	April
	26
	meeting. 	Crossett 	insisted 	that
11

ground rules needed to be put in writing so that both parties
could know what they were agreeing to. Janssen declined to
enumerate the ground rules and suggested that Crossett check
with one of his negotiating team members who had been present
in earlier discussions about what was needed in the way of
ground rules.
The Association attempted to schedule meetings for the rest
of the week, but the District stated that it was the last week
of school and claimed it would be too busy. No other meetings
were scheduled. By letters, the Association continued to press
for more meetings and protested the lack of meetings. The
parties eventually agreed to postpone further meetings until
after the hearing on the instant case which was set for
June 26, 1979.
DISCUSSION
I. The District's Refusal to Provide Information
The hearing officer found that the District violated
section 3543.5 (a), (b) and (c) by refusing to give the
Association health insurance benefit cost data during
mid-contract negotiations.
Numerous cases arising under the National Labor Relations
Act (hereafter NLRA) have considered the employer's obligation
to provide employee organizations with requested
12
ground
	rules
	needed
	to
	be
	put 	in
	writing
	so
	that
	both
	parties
could
	know
	what
	they
	were
	agreeing
	to.
	Janssen 	declined
	to
enumerate
	the
	ground
	rules
	and
	suggested
	that
	Crossett
	check
with
	one
	of
	his 	negotiating
	team
	members 	who 	had
	been
	present
in
	earlier
	discussions
	about
	what
	was
	needed
	in 	the
	way
	of
ground
	rules.
The
	Association
	attempted
	to
	schedule 	meetings
	for 	the
	rest
of 	the
	week,
	but 	the
	District
	stated 	that
	it
	was
	the
	last
	week
of
	school
	and
	claimed
	it
	would 	be
	too
	busy.
	No
	other
	meetings
were
	scheduled.
	By
	letters,
	the 	Association 	continued
	to
	press
for
	more
	meetings
	and
	protested
	the 	lack 	of 	meetings.
	The
parties
	eventually
	agreed
	to
	postpone
	further
	meetings
	until
after
	the 	hearing
	on
	the
	instant
	case
	which 	was
	set
	for
June
	26,
	1979. 
DISCUSSION
I.
	The
	District's
	Refusal 	to 	Provide 	Information
The
	hearing
	officer
	found
	that
	the
	District
	violated
section 	3543.S(a),
	(b) 	and 	(c) 	by
	refusing 	to 	give 	the
Association 	health 	insurance
	benefit 	cost 	data 	during
mid-contract 	negotiations.
Numerous
	cases 	arising
	under
	the 	National
	Labor
	Relations
Act
	(hereafter
	NLRA)
	have
	considered 	the 	employer's
	obligation
to 	provide
	employee
	organizations 	with 	requested
12

information. 7 In general, the exclusive representative is
entitled to all information that is necessary and relevant to
discharging its duty to represent unit employees. (See Morris,
Developing Labor Law, p. 309 et seg. ) An employer's refusal to
provide such information evidences bad faith bargaining unless
the employer can supply adequate reasons why it cannot supply
the information. NLRB v. Truitt Mfg. Co. (1956) 351 U.s. 149
[38 LRRM 2042] .
In defining the parameters of "necessary and relevant
information" to which the representative is entitled, the
courts have concluded that information pertaining immediately
to mandatory subjects of bargaining is so intrinsic to the core
of the employer-employee relationship that it is considered
presumptively relevant and must be disclosed unless the
employer can establish that the information is plainly
irrelevant or can provide adequate reasons why it cannot
furnish the information. Western Mass. Electric Co. v. NLRB
7This Board has previously noted that federal precedents
are relevant for guidance in interpreting EERA language where
the statutes are similar. Sweetwater Union High School
District (11/23/76) EERB Decision No. 4, and see Firefighters
Union v. City of Vallejo (1974) 12 Cal. 3d 608. Both the
federal National Labor Relations Act, 29 U.S.C. 151 et seq and
the Educational Employment Relations Act, Government Code
section 3540 et seq. establish the duty to negotiate in good
faith. Section 8 (a) (5) of the NLRA and section 3543.5 (c) of
the EERA make it an unfair practice for an employer to fail to
meet and negotiate in good faith with an exclusive
representative.
13
information.?	
In
	general,
	the
	exclusive
	representative
	is
entitled
	to
	all
	information
	that
	is
	necessary
	and
	relevant
	to
discharging
	its
	duty
	to 	represent 	unit
	employees.
	(See
	Morris,
Developing
	Labor 	Law,
	p.
	309
	et
	seq.)
	An
	employer's
	refusal
	to
provide
	such
	information 	evidences
	bad
	faith
	bargaining 	unless
the
	employer 	can
	supply 	adequate 	reasons
	why
	it
	cannot 	supply
the 	information.
	NLRB
	v.
	Truitt
	Mfg. 	Co. 	(1956) 	351
	U.S.
	149
[38
	LRRM
	2042).
In
	defining
	the 	parameters
	of
	"necessary
	and
	relevant
information" 	to
	which
	the
	representative 	is
	entitled,
	the
courts
	have
	concluded
	that
	information
	pertaining
	immediately
to
	mandatory
	subjects 	of
	bargaining
	is
	so
	intrinsic
	to 	the 	core
of
	the
	employer-employee
	relationship 	that
	it
	is
	considered
presumptively
	relevant
	and
	must
	be
	disclosed 	unless 	the
employer 	can
	establish 	that
	the 	information
	is
	plainly
irrelevant
	or 	can
	provide 	adequate 	reasons
	why
	it
	cannot
furnish 	the 	information.
	Western
	Mass.
	Electric
	Co.
	v.
	NLRB
7This 	Board
	has
	previously
	noted
	that 	federal 	precedentsare 	relevant 	for 	guidance 	in
	interpreting
	EERA
	language 	where
the
	statutes
	are
	similar.
	Sweetwater
	Union High
	School
District
	(11/23/76)
	EERB
	Decision
	No.
	4,
	and
	see
	Firefighters
Union 	v.
	City 	of Vallejo
	(1974) 	12
	Cal.3d 	608. 	Both
	the
federal 	National
	Labor
	Relations 	Act,
	29
	u.s.c. 	151
	et
	~e_g
	and
the 	Educational
	Employment
	Relations 	Act, 	Governmentcocre-
section
	3540
	et
	seq.
	establish
	the 	duty
	to 	negotiate 	in
	good
faith.
	Section 	8(a)
(5)
	of 	the
	NLRA
	and
	section
	3543.S(c)
	ofthe
	EERA
	make
	it
	an
	unfair 	practice 	for
	an 	employer
	to
	fail
	tomeet 	and
	negotiate 	in 	good	
faith
	with
	an
	exclusive
representative.
13

(Ist Cir. 1978) 573 F. 2d 101 [98 LRRM 2851]; Teleprompter Corp.
v. NLRB (1st Cir. 1977) 570 F. 2d 4 [97 LRRM 2455] ;
Curtiss-Wright Corp. v. NLRB (3rd Cir. 1965) 347 F. 2d 61 [59
LRRM 2433] . )
In the instant case, the Association requested information
concerning the costs of health care benefits for unit
employees. 	The District argues that since it did not assert
that it was unable to pay health benefits, health costs were
not put in issue, are therefore not relevant and, consequently,
the District had no obligation to provide the requested data.
Current NLRB case law, however, holds that insurance plans are
mandatory subjects of bargaining, that both premiums paid and
benefits granted under a noncontributory insurance program
constitute "wages" and that this information is presumptively
relevant. See Nestle Company , Inc. (1978) 238 NLRB No. 19 [99
LRRM 1241] . 8
8The District cites Sylvania Electric Products, Inc. v.
NLRB (1st Cir. 1961) 291 F. 2d 128 [48 LRRM 2313] cert. denied
(1961) 368 U.S. 926 [49 LRRM 2173] which held that although
health benefits relate to wages and are thus a mandatory
subject of bargaining, health costs do not. However, this case
has been distinguished almost to the point of extinction by
permitting the union to demand cost information whenever the
union has sought to weigh the value of different possible
wage-benefit packages. 	Cf Sylvania Electric Products, Inc. v.
NLRB (1st Cir. 1966) 358 F. 2d 591 [61 LRRM 2657] cert. denied
(1966) 385 U.S. 852 [63 LRRM 2236] and NLRB v. General Electric
(2nd Cir. 1969) 418 F. 2d 736 [72 LRRM 2530] .
14
Corp.
	(1st
	Cir.
	1978) 	573
	F.2d
	101 	[98
	LRRM
	2851];
	Teleprompter
v.
	NLRB
	{1st
	Cir.
	1977) 	570
	F.2d
	4 	[97
	LRRM
	2455];
Curtiss-Wright
	Corp.
	v.
	NLRB
	{3rd
	Cir.
	1965) 	347
	F.2d
	61 	[59
LRRM
	2433]
.)
In
	the
	instant
	case,
	the 	Association 	requested 	information
concerning 	the
	costs 	of 	health 	care
	benefits
	for
	unit
employees.
	The
	District
	argues
	that
	since
	it
	did 	not
	assert
were
	that
	it
	was
	unable
	to
	pay
	health
	benefits,
	health 	costs
not 	put 	in
	issue,
	are
	therefore
	not
	relevant
	and,
	consequently,
the
	District
	had 	no
	obligation 	to
	provide 	the 	requested
	data.
Current
	NLRB
	case
	law, 	however,
	holds
	that
	insurance 	plans 	are
mandatory
	subjects 	of 	bargaining,
	that
	both
	premiums
	paid
	and
benefits
	granted
	under
	a
	noncontributory 	insurance
	program
constitute
	"wages" 	and
	that
	this
	information
	is
	presumptively
relevant.
	See
	Nestle
	Company,
	Inc.
	(1978) 	238
	NLRB
	No. 	19 	[99
LRRM
	1241]
.8
8The
	District 	cites
	Sylvania
	Electric
	Products, 	Inc.
	v.
NLRB
	{1st
	Cir.
	1961} 	291
	F.2d
	128 	[48
	LRRM
	2313]
	cert.
	denied
(1961)
	368
	U.S.
	926 	[49
	LRRM
	2173] 	which
	held
	that
	although
health 	benefits 	relate
	to
	wages 	and
	are 	thus
	a
	mandatory
subject 	of 	bargaining, 	health 	costs
	do
	not.
	However,
	this
	case
been
	distinguished
	almost 	to 	the
	point 	of 	extinction
	by
	has
permitting 	the
	union
	to
	demand
	cost 	information
	whenever
	the
union 	has 	sought
	to
	weigh
	the 	value
	of 	different 	possible
wage-benefit 	packages.
	Cf
	Sylvania
	Electric
	Products, 	Inc. 	v.
NLRB
	(1st 	Cir.
	1966) 	358
	F.2d
	591 	[61
	LRRM
	2657]
	cert.
	denied
(1966) 	385
	U.S.
	852 	[63
	LRRM
	2236] 	and
	NLRB
	v. 	General
	Electric
(2nd
	Cir.
	1969) 	418
	F.2d
	736 	[72
	LRRM
	253CTT.
14

In Nestle, the actual relevance of health cost data was
established by the Union's position that if the employer's
insurance costs were excessive as compared to comparable
coverage available by another carrier, the unsubstantiated cost
figures provided by the employer would not be accepted and
would form the basis of the union's demand for seeking
financial gains in other contract provisions. Similarly, in
the instant case, the Association testified that it wanted the
health cost data to evaluate whether certain fringe benefits
such as health benefits could be replaced by an increase in
wages. The Board thus concludes that the Association has
proven that the benefit cost information is relevant to the
mid-contract negotiations as to health care benefits and wages.
The District also argues that it did not violate the Act by
failing to provide the data in the form requested because to do
so would have been unduly burdensome. The general rule excuses
the employer from providing otherwise relevant information if
compliance with such requests would be unduly burdensome. 	The
burden of proving this defense lies with the employer. NLRB v.
Borden, Inc. (lst Cir. 1979) 600 F. 2d 313 [101 LRRM 2727] .
Once a request for relevant information is made, "the employer
either must supply information or adequately set forth the
reasons why it is unable to comply. " The Kroger Company (1976)
226 NLRB 512 [93 LRRM 1315] .
15
In
	Nestle,
	the
	actual
	relevance
	of 	health 	cost
	data
	was
established
	by
	the 	Union's
	position
	that
	if
	the 	employer's
insurance
	costs
	were
	excessive
	as
	compared
	to
	comparable
coverage
	available
	by
	another
	carrier,
	the
	unsubstantiated
	cost
figures
	provided
	by
	the
	employer
	would
	not
	be
	accepted
	and
would 	form
	the
	basis
	of 	the 	union's
	demand
	for 	seeking
financial
	gains 	in
	other
	contract 	provisions. 	Similarly, 	in
the
	instant
	case, 	the 	Association
	testified
	that
	it
	wanted
	the
health 	cost 	data 	to 	evaluate
	whether
	certain
	fringe
	benefits
such 	as
	health 	benefits
	could
	be
	replaced
	by
	an
	increase 	in
wages.
	The
	Board
	thus 	concludes
	that
	the 	Association
	has
proven
	that
	the
	benefit 	cost
	information
	is
	relevant 	to
	the
mid-contract 	negotiations
	as
	to 	health 	care
	benefits
	and
	wages.
The
	District
	also
	argues
	that
	it
	did 	not
	violate
	the
	Act
	by
failing
	to
	provide 	the 	data 	in 	the
	form
	requested
	because
	to
	do
so
	would
	have 	been 	unduly 	burdensome.
	The
	general 	rule
	excuses
the
	employer
	from
	providing 	otherwise
	relevant
	information
	if
compliance 	with 	such
	requests
	would 	be
	unduly 	burdensome. 	The
burden
	of
	proving
	this
	defense
	lies
	with 	the 	employer.
	NLRB
	v.
Borden,
	Inc. 	(1st 	Cir.
	1979) 	600
	F.2d
	313 	[101
	LRRM
	2727].
Once 	a
	request 	for
	relevant 	information
	is
	made,
	"the
	employer
either
	must 	supply 	information 	or 	adequately
	set 	forth 	the
reasons
	why
	it
	is
	unable 	to
	comply."
	The 	Kroger 	Company 	(1976)
226
	NLRB
	512 	[93
	LRRM
	1315].
15

In this case, the District's assertion of burdensomeness
rests on the fact that the data provided to the District by
Blue Cross pertains to all employees covered by the health
benefit plan and compilation of the requested data would
require that claims and costs incurred by unit employees be
extracted from the documents provided.
In Borden, supra, the company provided only corporate-wide
hourly benefit costs per employee and refused to break the
information down per unit employee. Reversing the
Administrative Law Judge, the NLRB held that the employer
failed to bargain in good faith by refusing to furnish the
union with the information broken down per unit employee. 	The
NLRB found that a blanket refusal to provide the information
because unit figures were not available constituted a refusal
to bargain. 	The Court upheld the NLRB's conclusion. Further
support exists for the employer's obligation to adjust the
information it has available in order to suit the specific
needs of the representative. Cf Teleprompter Corp. , supra.
Based on the District's sole assertion that the information
was not available in the form requested by the Association, the
Board does not find that the employer's obligation to provide
the benefit cost data was unduly burdensome.
The District contends that the letter from the
Association's health consultant, Frank Welsh, is inadmissible
hearsay. The District argues that, absent reliance on this
16
In
	this
	case,
	the
	District's
	assertion
	of
	burdensomeness
rests
	on
	the
	fact 	that
	the 	data
	provided
	to
	the
	District
	by
Blue 	Cross
	pertains
	to
	all
	employees
	covered
	by
	the
	health
benefit
	plan
	and
	compilation 	of 	the
	requested 	data
	would
require
	that
	claims
	and
	costs
	incurred
	by
	unit
	employees
	be
extracted
	from
	the
	documents
	provided.
In
	Borden,
	supra,
	the
	company
	provided 	only 	corporate-wide
hourly
	benefit 	costs
	per
	employee 	and
	refuseq
	to
	break
	the
information
	down
	per
	unit
	employee. 	Reversing
	the
Administrative
	Law
	Judge, 	the
	NLRB
	held
	that
	the
	employer
failed
	to 	bargain 	in
	good
	faith
	by
	refusing 	to 	furnish
	the
union 	with
	the 	information
	broken
	down
	per
	unit
	employee.
	The
NLRB
	found
	that
	a
	blanket
	refusal
	to 	provide 	the 	information
because
	unit 	figures
	were
	not
	available 	constituted
	a
	refusal
to 	bargain.
	The
	Court 	upheld
	the
	NLRB's
	conclusion. 	Further
support
	exists
	for 	the 	employer's
	obligation 	to 	adjust
	the
information
	it
	has
	available
	in 	order 	to
	suit
	the
	specific
needs
	of 	the
	representative.
	Cf
	Teleprompter
	Corp., 	supra.
Based 	on
	the
	District's
	sole
	assertion 	that
	the 	information
was
	not
	available
	in 	the
	form
	requested 	by 	the 	Association, 	the
Board 	does 	not 	find
	that
	the 	employer's
	obligation 	to 	provide
the 	benefit 	cost 	data
	was 	unduly 	burdensome.
The
	District
	contends
	that
	the
	letter
	from
	the
Association's 	health 	consultant,
	Frank Welsh,
	is
	inadmissible
hearsay.
	The
	District
	argues
	that,
	absent 	reliance
	on
	this
16

inadmissible evidence to demonstrate that it directed Blue
Cross not to provide the Association with the information, the
record does not refute its contention that the information was
otherwise available.
The Board agrees with the District that this letter is
inadmissible hearsay.
Under the regulations of the Board:
Hearsay evidence may be used for the purpose
of supplementing or explaining other
evidence but shall not be sufficient in
itself to support a finding unless it would
be admissible over objection in civil
actions . 9
Since Mr. Welsh's letter was not used to corroborate other
information but was the basis for a factual finding, the
evidence contained therein of the District's alleged
instructions to Blue Cross to withhold the information from the
Association is inadmissible hearsay.
Even absent reliance on the letter, the District's argument
fails. As stated supra, page 15, it is the District, not the
Association that has the burden of proof that providing the
information would be burdensome. The District presented no
proof, other than its bald assertion, that the Association
9PERB rules are codified at California Administrative
Code, title 8, section 31000 et seq. The above language is
codified at section 32176 (a) .
17
inadmissible
	evidence
	to
	demonstrate
	that	
it	
directed
	Blue
Cross
	not
	to
	provide 	the 	Association
	with
	the 	information, 	the
record
	does
	not
	refute
	its
	contention
	that
	the
	information
	was
otherwis'e
	available.
The
	Board
	agrees
	with
	the
	District 	that 	this
	letter
	is
inadmissible 	hearsay.
Under
	the
	regulations 	of
	the
	Board:
. 	. 	. 	. 	. 	. 	. . . . 	. 	. 	. 	. . . 	. . 	. 	. 	. . .
Hearsay
	evidence
	may
	be
	used
	for 	the
	purpose
of
	supplementing 	or
	explaining 	other
evidence 	but
	shall
	not
	be
	sufficient
	in
itself
	to
	support
	a
	finding 	unless
	it
	would
be
	admissible
	over
	objection
	in
	civil
actions.9
Since
	Mr.
	Welsh's
	letter
	was
	not
	used
	to 	corroborate 	other
information 	but
	was
	the 	basis
	for
	a
	factual 	finding, 	the
evidence 	contained
	therein 	of
	the
	District's
	alleged
instructions
	to
	Blue 	Cross
	to
	withhold
	the 	information
	from
	the
Association
	is
	inadmissible 	hearsay.
Even
	absent
	reliance
	on
	the
	letter,
	the
	District's
	argument
fails.
	As
	stated
	supra,
	page 	15,
	it
	is
	the
	District,
	not
	the
Association
	that
	has 	the
	burden
	of 	proof
	that
	providing 	the
information
	would 	be 	burdensome. 	The
	District
	presented
	no
proof, 	other 	than
	its
	bald
	assertion, 	that
	the 	Association
9PERB
	rules 	are 	codified 	at 	California 	AdministrativeCode,
	title
	8, 	section
	31000
	et
	seq.
	The 	above 	language
	iscodified 	at 	section 	32176(a).
17

could obtain the data from another source, viz. Blue Cross.
The Association presented proof that it reiterated its request
to the District for the data, informing the District that the
data was unavailable through Blue Cross. The record is also
clear that the District refused to provide the data after this
second request.
While the District's referral of the Association to Blue
Cross may not have been an express refusal to furnish the
health data, the District itself made no reasonably diligent
effort to obtain the information. NLRB v. John S. Swift Co.
(7th Cir. 1960) 277 F. 2d 641 [46 LRRM 2091]. Further, after
the Association informed the District the information was
unavailable through Blue Cross and reiterated its request, the
District did not question the Association's assertions but
flatly refused to furnish the information. Thus, the purported
availability of the information from Blue Cross was refuted by
the Association and the District was obligated to provide the
data.
The District also argues that the hearing officer erred in
basing his refusal to negotiate finding solely on the
District's refusal to furnish information rather than on the
totality of the circumstances. After a good faith demand by
the exclusive representative for relevant information, a
refusal by an employer to supply that information is a separate
violation which, standing alone, is a refusal to negotiate in
18
could
	obtain
	the
	data
	from
	another 	source,
	viz.
	Blue
	Cross.
The
	Association 	presented
	proof
	that
	it
	reiterated
	its
	request
to
	the
	District
	for 	the
	data,
	informing
	the
	District
	that
	the
data
	was
	unavailable
	through
	Blue
	Cross.
	The
	record
	is
	also
clear 	that
	the
	District
	refused
	to
	provide 	the
	data
	after 	this
second
	request.
While
	the
	District's
	referral
	of
	the 	Association
	to
	Blue
Cross
	may
	not
	have 	been
	an
	express
	refusal
	to 	furnish
	the
health 	data,
	the
	District
	itself
	made 	no
	reasonably
	diligent
effort
	to 	obtain
	the
	information.
	NLRB
	v.
	John
	S. 	Swift
	Co.
(7th
	Cir.
	1960) 	277
	F.2d
	641 	[46
	LRRM
	2091].
	Further,
	after
the
	Association
	informed
	the
	District
	the 	information
	was
unavailable
	through 	Blue 	Cross
	and
	reiterated
	its
	request, 	the
District
	did
	not
	question
	the
	Association's 	assertions
	but
flatly
	refused
	to 	furnish 	the 	information.
	Thus,
	the 	purported
availability
	of 	the 	information
	from
	Blue 	Cross
	was
	refuted
	by
the 	Association
	and
	the
	District
	was
	obligated 	to
	provide 	the
data.
The
	District
	also
	argues
	that
	the 	hearing
	officer
	erred 	in
basing
	his 	refusal
	to
	negotiate 	finding
	solely
	on
	the
strict's
	refusal 	to 	furnish 	information 	rather
	than
	on
	the
totality
	of 	the 	circumstances. 	After
	a 	good 	i
th
	demand 	by
the 	exclusive 	representative
	for
	relevant 	information,
	a
refusal
	by 	an 	employer
	to 	supply
	that
	information
	a
	separate
violation
	which, 	standing 	alone, 	is
	a
	refusal 	to 	negotiate 	in
18

good faith unless the employer can provide adequate reasons why
it cannot supply the information. See NLRB v. F. W. Woolworth
Co. (1956) 352 U.S. 938 [39 LRRM 2151], reversing (9th Cir.
1956) 235 F. 2d 319 [38 LRRM 2362], Curtiss-Wright Corp. , Wright
Aero Div. v. NLRB (3rd Cir. 1965) 347 F. 2d 61 [59 LRRM 2433].
Having correctly found a violation of section 3543.5 (c) ,
the hearing officer's finding of concurrent violations of
section 3543.5 (a) and (b) was proper. San Francisco Community
College District (10/12/79) PERB Decision No. 105 and South San
Francisco Unified School District (1/15/80) PERB Decision No.
112.
II. The District's Unilateral Change in Evaluation Procedures
The District argues that its implementation of the
checklist involves interpretation of the collective agreement
and should have been deferred to arbitration under the deferral
policy enunciated in section 3541.5 (a) . 10
10section 3541.5 reads in relevant part:
The initial determination as to whether the
charges of unfair practices are justified,
and, if so, what remedy is necessary to
effectuate the purposes of this chapter,
shall be a matter within the exclusive
jurisdiction of the board. Procedures for
investigating, hearing, and deciding these
cases shall be devised and promulgated by
the board and shall include all of the
following :
(a) Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge, except that the
19
good
	faith
	unless
	the
	employer
	can
	provide
	adequate
	reasons
	why
it
	cannot 	supply
	the 	information.
	See
	NLRB
	v.
	F.
	w.
	Woolworth
Co. 	(1956) 	352
	U.S.
	938 	(39
	LRRM
	2151),
	reversing
	(9th
	Cir.
1956)
	235
	F.2d
	319 	(38
	LRRM
	2362),
	Curtiss-Wright 	Corp.,
	Wright
Aero
	Div.
	v.
	NLRB
	(3rd
	Cir.
	1965) 	347
	F.2d
	61 	[59
	LRRM
	2433].
Having
	correctly
	found
	a
	violation
	of 	section
	3543.S(c),
the 	hearing
	officer's
	finding 	of 	concurrent
	violations 	of
section
	3543.S(a)
	and 	(b) 	was
	proper.
	San
	Francisco
	Community
College
	District
	(10/12/79)
	PERB
	Decision
	No. 	105 	and
	South
	San
Francisco 	Unified
	School
	District
	(1/15/80)
	PERB
	Decision
	No.
112.
II.
	The
	District's
	Unilateral
	Change
	in 	Evaluation 	Procedures
The
	District
	argues
	that
	its
	implementation
	of
	the
checklist
	involves
	interpretation
	of 	the
	collective
	agreement
and
	should
	have 	been
	deferred 	to
	arbitration
	under
	the
	deferral
policy
	enunciated 	in
	section
	3541.S(a) .10
l0section
	3541.5
	reads 	in
	relevant 	part:
The
	initial
	determination 	as 	to
	whether
	the
charges 	of 	unfair 	practices 	are
	justified,
and,
	if
	so,
	what 	remedy
	is
	necessary 	to
effectuate
	the 	purposes 	of
	this
	chapter,
shall
	be 	a
	matter 	within 	the 	exclusive
jurisdiction
	of 	the 	board. 	Procedures 	for
investigating, 	hearing,
	and
	deciding 	these
cases 	shall
	be
	devised
	and
	promulgated
	by
the 	board
	and
	shall
	include
	all
	of 	the
following:
(a) 	Any
	employee, 	employee
	organization, 	oremployer
	shall
	have 	the 	right 	to
	file
	an
unfair 	practice 	charge, 	except 	that 	the
19

As set forth in the statement of facts, supra, under the
parties' contract, a grievance is defined as a "dispute between
the District and an aggrieved person involving a violation,
interpretation or application of a provision of this
Agreement. "Il The contract provides for binding arbitration
as the final step in the grievance process.
The District points to Section 3.1 of Article 3 of the
contract12 which prohibits any changes in the District policy
regarding evaluations and argues that whether the unilateral
adoption of the checklist evaluation procedure constitutes a
"change" in the evaluation procedure is a proper matter for the
arbitrator to decide. Further, the District contends:
The processing of this dispute through the
negotiated grievance arbitration procedures
will resolve all issues because it will be
made clear whether or not the District
either has the right to, or is prohibited
from implementing the management checklist
in dispute. 13
board shall not do either of the following:
(2) issue a complaint against conduct
also prohibited by the provisions of the
agreement between the parties until the
grievance machinery of the agreement, if it
exists and covers the matter at issue, has
been exhausted, either by settlement or
binding arbitration. However, when the
charging party demonstrates that resort to
contract grievance procedure would be
futile, exhaustion shall not be necessary.
1lArticle 5, Section 1.1 of the parties' contract.
12set forth supra on page 7.
13Respondent's Statement of Exceptions, page 63.
20
board
	shall
	not
	do
	either
	of 	the 	following:
...
	(2)
	issue
	a
	complaint
	against
	conduct
also 	prohibited
	by
	the 	provisions 	of 	the
agreement 	between
	the
	parties 	until
	the
grievance
	machinery
	of 	the
	agreement,
	if 	it
exists
	and
	covers 	the 	matter
	at
	issue,
	has
been
	exhausted,
	either
	by
	settlement 	or
binding
	arbitration.
	However, 	when
	the
charging 	party 	demonstrates
	that 	resort 	to
contract 	grievance 	procedure
	would 	be
futile,
	exhaustion
	shall
	not
	be
	necessary.
As
	set
	forth
	in 	the 	statement
	of
	facts,
	supra,
	under
	the
parties'
	contract,
	a
	grievance
	is
	defined
	as
	a
	"dispute
	between
the
	District
	and 	an
	aggrieved 	person 	involving
	a
	violation,
interpretation
	or
	application
	of
	a
	provision 	of
	this
Agreement."11	
The
	contract
	provides 	for 	binding
	arbitration
as
	the
	final
	step
	in 	the 	grievance
	process.
The
	District
	points 	to
	Section 	3.1 	of
	Article
	3
	of 	the
contractl2	
which
	prohibits
	any
	changes
	in
	the
	District
	policy
regarding
	evaluations
	and
	argues
	that
	whether
	the
	unilateral
adoption 	of 	the
	checklist
	evaluation
	procedure
	constitutes
	a
"change"
	in 	the
	evaluation
	procedure
	is
	a
	proper 	matter 	for
	the
arbitrator
	to 	decide.
	Further,
	the
	District
	contends:
The
	processing 	of
	this
	dispute
	through
	the
negotiated 	grievance
	arbitration
	procedures
will
	resolve
	all
	issues
	because
	it
	will
	be
made
	clear
	whether 	or
	not 	the
	Districteither
	has
	the
	right 	to,
	or
	is
	prohibited
from
	implementing
	the
	management
	checklist
in
	dispute.13
llArticle
	5, 	Section 	1.1 of 	the
	parties' 	contract.
12
set 	forth 	supra 	on 	page 	7.
13Respondent's 	Statement 	of 	Exceptions, 	page 	63.
20

Section 3541.5 (a) prohibits the Board from issuing a
complaint against conduct also prohibited by the provisions of
the parties ' agreement until the agreement's grievance
machinery has been exhausted either by settlement or binding
arbitration. 	Pursuant to section 3541.5 (a) , finding that the
subject matter is covered by the contract and that the contract
requires binding arbitration, the Board dismisses this portion
of the charge. See Dry Creek Joint Elementary School District,
(7/21/80) PERB Ad-8la, 4 PERC 11141.
III . 	The District's Failure to Negotiate in Good Faith
The hearing officer found two separate violations of
section 3543.5 (a), (b) and (c) by the District in (1) refusing
to abide by the previously agreed-upon ground rules and
(2) conditioning the opening of discussions on substantive
proposals upon the reaching of a written and initialled
agreement on ground rules.
In its exceptions, the District asserts that the District
and the Association never reached an agreement on ground
rules. The District also claims that the hearing officer
incorrectly utilized a "per se" test rather than the "totality
of circumstances" test in the above two findings and in his
dismissal of the District's unfair charge against the
Association.
PERB utilizes both the "per se" and "totality of the
conduct" tests to ascertain whether a party's negotiating
21
Section
	3541.S(a)
	prohibits
	the
	Board
	from
	issuing
	a
complaint
	against
	conduct
	also 	prohibited
	by
	the
	provisions 	of
the
	parties'
	agreement
	until
	the 	agreement's 	grievance
machinery
	has
	been
	exhausted
	either
	by
	settlement
	or
	binding
arbitration.
	Pursuant 	to
	section
	3541.S(a), 	finding
	that
	the
subject
	matter
	is
	covered
	by
	the
	contract
	and
	that
	the
	contract
requires
	binding
	arbitration,
	the
	Board
	dismisses
	this
	portion
of 	the 	charge.
	See
	Dry
	Creek
	Joint
	Elementary 	School
	District,
(7/21/80)
	PERB
	Ad-8la,
	4
	PERC
	11141.
III.
	The
	District's
	Failure 	to
	Negotiate 	in
	Good
	Faith
The
	hearing
	officer
	found
	two
	separate
	violations 	of
section
	3543.S(a),
	{b) 	and 	(c) 	by
	the
	District
	in
	(1)
	refusing
to 	abide
	by
	the
	previously
	agreed-upon
	ground
	rules
	and
(2)
	conditioning 	the
	opening
	of 	discussions
	on
	substantive
proposals
	upon
	the 	reaching
	of
	a
	written
	and
	initialled
agreement
	on
	ground
	rules.
In
	its
	exceptions, 	the
	District 	asserts 	that
	the
	District
and
	the 	Association
	never 	reached
	an
	agreement
	on
	ground
rules.
	The
	District
	also
	claims
	that
	the 	hearing
	officer
incorrectly 	utilized
	a
	"per 	se"
	test
	rather
	than 	the
	"totality
of 	circumstances"
	test
	in 	the
	above 	two
	findings
	and
	in
	his
dismissal	
of	
the
	District's
	unfair 	charge
	against 	the
Association.
PERB
	utilizes
	both 	the 	"per 	se" 	and
	"totality
	of 	the
conduct"
	tests 	to 	ascertain
	whether 	a
	party's 	negotiating
21

conduct constitutes an unfair practice. 14 The PERB
delineated the distinctions between the two tests in Pajaro
Valley Unified School District (5/22/78) PERB Decision No. 51,
pages 4-5. The Board noted:
The National Labor Relations Board
(hereafter NLRB) has long held that [a duty
to bargain in good faith] requires that the
employer negotiate with a bona fide intent
to reach an agreement. In re Atlas Mills,
Inc. (1937) 3 NLRB 10 [1 LRRM 60] . The
standard generally applied to determine
whether good faith bargaining has occurred
has been called the 'totality of conduct'
test. 	See NLRB v. Stevenson Brick and Block
Co. (4th Cir. 1968) 393 F. 2d 234 68 LRRM
2086] modifying (1966) 160 NLRB 198 [62 LRRM
1605]. This test looks to the entire course
of negotiations to determine whether the
employer has negotiated with the requisite
subjective intention of reaching an
agreement.
There are certain acts, however, which have
such a potential to frustrate negotiations
and to undermine the exclusivity of the
bargaining agent that they are held unlawful
without any determination of subjective bad
faith on the part of the employer.
The latter violations are considered per se violations.
NLRB v. Katz, (1962) 369 U.S. 736 [50 LRRM 2177]. An outright
refusal to bargain or a unilateral change in the terms and
conditions of employment are two examples of per se violations
of the duty to negotiate. NLRB v. Katz, supra.
14pajaro Valley Unified School District (5/22/78) PERB
Decision No. 51.
22
conduct
	constitutes
	an
	unfair
	practice.14	
The
	PERB
delineated
	the
	distinctions
	between
	the
	two
	tests
	in
	Pajaro
Valley 	Unified
	School
	District
	{5/22/78)
	PERB
	Decision
	No.
	51,
pages
	4-5.
	The
	Board
	noted:
The
	National
	Labor
	Relations
	Board
(hereafter
	NLRB)
	has 	long
	held
	that
	[a
	duty
to
	bargain 	in
	good
	faith] 	requires
	that
	the
employer
	negotiate
	with
	a
	bona
	fide
	intentto
	reach
	an
	agreement.
	In
	re Atlas 	Mills,Inc.
	(1937) 	3
NLRB
	10 	(1
	LRRM
	60].
	The
standard 	generally 	applied
	to
	determine
whether
	good
	faith
	bargaining
	has
	occurredhas
	been
	called
	the
	'totality
	of
	conduct'
test.
	See
	NLRB
	v.
	Stevenson Brick
	and
	Block
Co.
	(4th
	Cir":"1968)
	393
	F.2d
	234 	[68
	LRRM
2086]
	modifying
	(1966) 	160
	NLRB
	198 	[62
	LRRM
1605]. 	This
	test
	looks
	to
	the
	entire
	course
of 	negotiations
	to 	determine
	whether
	the
employer 	has
	negotiated
	with 	the
	requisitesubjective 	intention
	of
	reaching
	an
agreement.
There
	are
	certain 	acts,
	however, 	which
	have
such
	a
	potential
	to
	frustrate
	negotiations
and
	to
	undermine
	the 	exclusivity 	of 	thebargaining
	agent
	that
	they 	are 	held 	unlawful
without
	any
	determination 	of
	subjective
	bad
faith
	on
	the
	part 	of
	the
	employer.
The
	latter
	violations
	are 	considered 	per 	se
	violations.
NLRB
	v. 	Katz,
	(1962) 	369
	U.S.
	736 	[50
	LRRM
	2177].
	An
	outright
refusal 	to 	bargain 	or
	a
	unilateral
	change
	in 	the
	terms
	and
conditions 	of
	employment
	are
	two
	examples
	of 	per 	se
	violations
of 	the 	duty 	to 	negotiate.
	NLRB
	v. 	Katz, 	supra.
14pajaro Valley 	Unified 	School
	District
	(5/22/78)
	PERB
Decision
	No.
	51.
22

The Board finds, as did the hearing officer, that the
District refused to negotiate any substantive contract issues,
although requested to do so by the Association, until a written
agreement on ground rules was signed. Any other conclusion is
inescapable given Crossett's testimony on the District's
intentions on ground rules:
Q. (Mr. Beeson) Does your position remain
today, Mr. Crossett, that there can be no
discussion on any substantive proposal until
there has been a written, executed,
initialled or otherwise set of ground rules?
. (Mr . Crossett) That's the District's
position at this time, yes, and we think
it's very important that there be some form
of ground rules in writing, even the
changing faces of the process. 	(Vol. III,
p. 160.)
The NLRB has held that the parties must bargain
collectively about the preliminary arrangements for
negotiations in the same manner they must bargain about
substantive terms or conditions of employment. The NLRB finds
"such preliminary matters are just as much a part of the
process of collective bargaining as negotiations over wages,
hours, etc. "15 A refusal to bargain about a mandatory
subject may constitute a per se violation of a party's duty to
bargain. NLRB v. American Compress Warehouse (CA 5 1965) 350
F . 2d 365 [59 LRRM 2739] , Union Mfg. Co. (1948) 76 NLRB 322 [21
15General Electric Co. (1968) 173 NLRB No. 46 [69 LRRM
1305, 1310].
23
The 	Board 	finds, 	as 	did 	the 	hearing 	officer, 	that 	the
District 	refused 	to 	negotiate 	any 	substantive 	contract 	issues,
although 	requested 	to 	do 	so 	by 	the 	Association, 	until 	a 	written
agreement 	on 	ground 	rules 	was 	signed. 	Any 	other 	conclusion 	is
inescapable 	given 	Crossett's 	testimony 	on 	the 	District's
intentions 	on 	ground 	rules:
Q. 	(Mr. 	Beeson) 	Does 	your 	position 	remain
today, 	Mr. 	Crossett, 	that 	there 	can 	be 	no
discussion 	on 	any 	substantive 	proposal 	until
there 	has 	been 	a 	written, 	executed,
initialled 	or 	otherwise 	set 	of 	ground 	rules?
A. 	(Mr. 	Crossett) 	That's 	the 	District's
position 	at 	this 	time, 	yes, 	and 	we 	think
it's 	very 	important 	that 	there 	be 	some 	form
of 	ground 	rules 	in 	writing, 	even 	the
changing 	faces 	of 	the 	process. 	(Vol. 	III,
p. 	160.)
The 	NLRB 	has 	held 	that 	the 	parties 	must 	bargain
collectively 	about 	the 	preliminary 	arrangements 	for
negotiations 	in 	the 	same 	manner 	they 	must 	bargain 	about
substantive 	terms 	or 	conditions 	of 	employment. 	The 	NLRB 	finds
"such 	preliminary 	matters 	are 	just 	as 	much 	a 	part 	of 	the
process 	of 	collective 	bargaining 	as 	negotiations 	over 	wages,
hours, 	etc."15 	A refusal 	to 	bargain 	about 	a 	mandatory
subject 	may 	constitute 	a 	per 	se 	violation 	of 	a 	party's 	duty 	to
bargain. 	NLRB 	v. 	American 	Compress 	Warehouse 	(CA 	5 	1965) 	350
F.2d 	365 	[59 	LRRM 	2739], 	Union 	Mfg. 	Co. 	(1948) 	76 	NLRB 	322 	[21
15General Electric 	Co. 	(1968) 	173 NLRB 	No. 	46 	[69 	LRRM
1305, 	1310].
23

LRRM 1187]. Since the District's conditioning negotiation of
substantive issues on agreement on ground rules was a part of a
total course of conduct which taken together establishes a
violation of section 3543.5 (c) , it is not necessary to decide
here whether it constituted a per se violation.
The Board affirms the hearing officer's finding that the
parties had reached an agreement on March 2 on ground rules and
that Crossett, the new District negotiator, reneged on that
agreement. The repudiation of an agreement on a single issue
has been held, by itself, not to manifest a lack of good
faith. 16 	Therefore, the Board will look at the "totality of
the circumstances" to determine whether the District's conduct
indicated good faith negotiating. The record contains evidence
of other indicia of bad faith and a paucity of mitigating
factors. 17
Although the following are, by themselves, insufficient to
prove a refusal to negotiate charge, together they show the
District had no intention of entering into an agreement with
the Association between March and June and thus violated
section 3543.5 (c) . 	The District missed or cancelled several
meetings, was recalcitrant in scheduling new meetings, and
16see NLRB v. Advanced Business Forms Corp. , (1973) 474
F . 2d 457, (82 LRRM 216 ] .
17A discussion of the Association's negotiating conduct
and its effect on the District's conduct is discussed, infra.
24
LRRM
	1187). 	Since 	the
	District's
	conditioning
	negotiation
	of
substantive 	issues
	on
	agreement
	on
	ground
	rules
	was 	a
	part
	of
	a
total
	course
	of
	conduct
	which
	taken
	together
	establishes
	a
violation
	of
	section
	3543.S(c),
	it
	is
	not 	necessary
	to
	decide
here
	whether
	it
	constituted
	a	
~	
se
	vio.lation.
The
	Board
	affirms 	the
	hearing
	officer's
	finding
	that
	the
parties
	had
	reached
	an
	agreement
	on March 	2 on
	ground
	rules
	and
that
	Crossett,
	the
	new
	District
	negotiator,
	~eneged 	on
	that
agreement.
	The
	repudiation 	of
	an
	agreement
	on 	a
	single 	issue
has
	been
	held,
	by
	itself,
	not
	to 	manifest
	a
	lack 	of
	good
faith.16	
Therefore, 	the
	Board
	will
	look
	at
	the
	"totality
	of
the
	circumstances" 	to 	determine
	whether
	the
	District's
	conduct
indicated
	good
	faith
	negotiating.
	The
	record
	contains
	evidence
of 	other
	indicia
	of
	bad
	faith
	and 	a
	paucity 	of 	mitigating
factors.17
Although
	the 	following
	are,
	by
	themselves,
	insufficient
	to
prove
	a
	refusal
	to 	negotiate 	charge, 	together
	they
	show
	the
District
	had 	no
	intention
	of 	entering 	into
	an
	agreement 	with
the 	Association
	between
	March 	and
	June
	and
	thus
	violated
section 	3543.S(c).
	The
	District
	missed 	or 	cancelled 	several
meetings,
	was
	recalcitrant
	in 	scheduling
	new
	meetings,
	and
16see
	NLRB
	v.
	Advanced
	Business
	Forms
	Corp.,
	(1973) 	474
F.2d 	457,
	T'S"T"LRRM
	216].
17A
	discussion 	of 	the 	Association's 	negotiating 	conduct
and
	its 	effect
	on
	the
	District's
	conduct
	is 	discussed, 	infra.
24

unilaterally ended some meetings. These factors, combined with
the District's reneging on the ground rules agreement and its
refusing to discuss substantive issues until new ground rules
were established, constitute a violation of section 3543.5 (c) .
The Board agrees with the hearing officer that this ". . . also
constitutes a 3543.5 (a) violation in that it interferes with
employees because of their exercise of their right to select an
exclusive representative to meet and negotiate with the
employer on their behalf by obstructing negotiations with the
exclusive representative. "18 The Board also finds the
conduct constitutes a concurrent 3543.5 (b) violation. 19
The District argues that there are many indicia of good
faith on its part to support its contention that it engaged in
good faith negotiating: for example, it presented several
counter-proposals to Crossett's first ground rules proposal.
This argument, however, ignores the fact that since the Board
finds reneging on the ground rules agreement is an indicia of
18Hearing officer's proposed decision, p. 38.
19As noted, supra, on pages 17-18, based on the Board's
decisions in San Francisco Community College District
(10/12/79) PERB Decision No. 105 and South San Francisco
Unified School District (1/15/80) PERB Decision No. 112, the
District's argument that disputes the hearing officer's finding
of concurrent violations of section 3543.5(a) is without
merit. San Francisco, supra, also supports a finding of a
concurrent 3543.5 (b) violation. The Board makes this finding
of the 3543.5 (b) violation to correct the apparent oversight of
the hearing officer. See footnote 3, supra.
25
unilaterally
	ended
	some
	meetings.
	These
	factors,
	combined
	with
the
	District's
	reneging
	on
	the
	ground
	rules
	agreement
	and
	its
refusing 	to
	discuss 	substantive 	issues
	until
	new
	ground
	rules
were
	established, 	constitute
	a
	violation
	of
	section
	3543.S(c).
The
	Board
	agrees 	with 	the 	hearing
	officer
	that
	this"
•..
	also
constitutes
	a
	3543.5(a)
	violation
	in
	that
	it
	interferes
	with
employees 	because
	of
	their
	exercise 	of
	their 	right
	to
	select
	an
exclusive 	representative 	to
	meet
	and
	negotiate
	with
	the
employer
	on
	their
	behalf
	by
	obstructing 	negotiations
	with
	the
exclusive 	representative."18	
The
	Board
	also 	finds 	the
conduct
	constitutes
	a
	concurrent
	3543.5(b)
	violation.19
The
	District
	argues
	that
	there 	are
	many
	indicia 	of
	good
faith
	on
	its
	part
	to
	support
	its
	contention
	that
	it
	engaged
	in
good
	faith
	negotiating:
	for
	example,
	it
	presented 	several
counter-proposals 	to
	Crossett's
	first
	ground
	rules 	proposal.
This 	argument, 	however,
	ignores 	the
	fact 	that
	since 	the
	Board
finds
	reneging
	on
	the
	ground
	rules
	agreement
	is
	an
	indicia 	of
18Hearing
	officer's
	proposed
	decision,
	p. 	38.
19As
	noted, 	supra,
	on
	pages 	17-18,
	based
	on
	the 	Board's
decisions 	in
	San
	Francisco
	Communit~
	College
	District
(10/12/79)
	PERB
	Decision
	No. 	105 	an 	South
	San
	FranciscoUnified 	School
	District
	(1/15/80)
	PERB
	Decision
	No.
	112,
	the
District's
	argument
	that 	disputes 	the 	hearing
	officer's
	finding
of 	concurrent 	violations 	of 	section
	3543.S(a)
	is
	without
merit.
	San
	Francisco, 	supra, 	also 	supports
	a
	finding 	of
	a
concurrent
	3543.S(b}
	violation.
	The 	Board 	makes
	this 	finding
of 	the 	3543.S(b)
	violation 	to 	correct 	the 	apparent 	oversight 	of
the 	hearing
	officer.
	See
	footnote 	3, 	supra.
25

bad faith, the District's willingness to negotiate over new
ground rule proposals different from the original ones does not
evidence good faith negotiating. The Association repeatedly
asked Crossett to contact Caves to verify the fact that an
agreement had been reached on ground rules between the
parties. Even after Crossett consulted Caves sometime in
mid-negotiations, the District's position continued to be:
(1) that no agreement had been reached on ground rules; (2)
even if there had been an agreement, Crossett had a right to
start over and; (3) the District would discuss no substantive
proposals until the parties renegotiated ground rules.
The District also contends that the changed circumstance of
a new negotiator justified its refutation of the original
ground rules agreement. The District distinguishes procedural
from substantive agreements arguing that the former can be
broken without it being an indicia of bad faith. 	The District
cites Taylor Chevrolet Corp. (1972) 199 NLRB No. 1064 [81 LRRM
1405] to support its position that a withdrawal of a procedural
agreement where bargaining circumstances have changed should
not be evidence of bad faith. In Taylor, the NLRB held that an
employer was not bound to an agreement made at the onset of
negotiations that any contract the parties might agree to
should take effect the day after the expiration of the old
contract. 	Eight months after the expiration of the old
contract, the parties negotiated a new contract with increased
26
bad
	faith,
	the
	District's
	willingness
	to
	negotiate
	over
	new
ground
	rule
	proposals
	different
	from
	the
	original
	ones
	does
	not
evidence
	good
	faith
	negotiating.
	The
	Association 	repeatedly
asked
	Crossett
	to
	contact
	Caves
	to
	verify
	the
	fact 	that
	an
agreement
	had
	been
	reached
	on
	ground
	rules
	between
	the
parties.
	Even
	after
	Crossett
	consulted
	Caves 	sometime
	in
mid-negotiations,
	the
	District's
	position
	continued
	to
	be:
(1)
	that
	no
	agreement
	had
	been
	reached
	on
	ground
	rules;
	(2)
even
	if
	there
	had
	been
	an
	agreement,
	Crossett
	had 	a
	right
	to
start
	over
	and;
	(3)
	the
	District
	would
	discuss
	no
	substantive
proposals
	until
	the
	parties
	renegotiated
	ground
	rules.
The
	District
	also
	contends
	that
	the
	changed
	circumstance
	of
a 	new
	negotiator
	justified
	its
	refutation
	of
	the
	original
ground
	rules
	agreement.
	The
	District
	distinguishes
	procedural
from
	substantive
	agreements 	arguing
	that
	the
	former 	can
	be
broken
	without
	it
	being
	an
	indicia
	of
	bad
	faith.
	The
	District
cites
	Taylor 	Chevrolet
	Corp.
	(1972) 	199
	NLRB
	No. 	1064 	[81
	LRRM
1405]
	to 	support
	its
	position 	that
	a
	withdrawal
	of
	a
	procedural
agreement 	where
	bargaining 	circumstances
	have 	changed
	should
not
	be
	evidence 	of
	bad
	faith.
	In 	Taylor, 	the
	NLRB
	held
	that
	an
employer 	was
	not
	bound
	to
	an
	agreement
	made
	at
	the 	onset 	of
negotiations 	that
	any
	contract 	the
	parties
	might 	agree 	to
should 	take
	effect
	the
	day
	after
	the 	expiration of 	the 	old
contract. 	Eight
	months
	after
	the 	expiration 	of 	the 	old
contract, 	the 	parties 	negotiated
	a 	new
	contract 	with 	increased
26

economic benefits. The NLRB found that there was never any
conscious meeting of the minds of the parties to make all
benefits subsequently agreed upon effective retroactive and
therefore there was no binding contract. The NLRB went on to
state that the spirit of good faith bargaining meant that
parties should not be procedurally bound to agreements when
they were not fully aware of the agreements' impact.
The facts in the instant case are readily distinguishable.
The new circumstance in the negotiations, the tenure of a new
negotiator, was openly and consciously discussed between the
District's old negotiator, Caves, and the Association. Caves
expressly told the Association on March 2, 1979, that, although
he was leaving, he was fully authorized by the District to act
as its agent at that meeting. 	An agreement on ground rules was
consciously reached knowing that a new negotiator would work
with these rules. Unlike Taylor, the effect of these rules
presented no surprise to either party as the rules had been
developed between the parties over the preceding two years and
were at that point a familiar routine, their efficacy
well-polished with use. Thus, the changed circumstance of a
new negotiator did not terminate this agreement.
IV. The Association's Negotiating Conduct
The District objects to the hearing officer's finding that
the Association's negotiations conduct was in response to the
District's conduct and thus did not constitute a violation of
27
economic
	benefits.
	The
	NLRB
	found
	that
	there
	was
	never
	any
conscious
	meeting
	of 	the
	minds
	of
	the
	parties
	to
	make
	all
benefits
	subsequently
	agreed
	upon
	effective 	retroactive
	and
therefore 	there
	was 	no
	binding
	contract.
	The
	NLRB
	went
	on
	to
state
	that
	the
	spirit
	of
	good
	faith
	bargaining
	meant
	that
parties
	should
	not
	be
	procedurally
	bound
	to
	agreements
	when
they
	were
	not
	fully
	aware
	of
	the 	agreements' 	impact.
The
	facts
	in 	the
	instant
	case 	are
	readily 	distinguishable.
The 	new
	circumstance 	in 	the
	negotiations,
	the 	tenure
	of
	a 	new
negotiator,
	was
	openly
	and
	consciously 	discussed
	between
	the
District's
	old
	negotiator,
	Caves,
	and
	the
	Association.
	Caves
expressly 	told 	the 	Association
	on 	March
	2, 	1979,
	that,
	although
he 	was
	leaving,
	he 	was
	fully
	authorized
	by
	the
	District
	to
	act
as
	its
	agent
	at 	that
	meeting.
	An
	agreement
	on
	ground
	rules
	was
consciously
	reached
	knowing
	that
	a 	new
	negotiator
	would 	work
with 	these
	rules.
	Unlike
	Taylor, 	the
	effect
	of 	these
	rules
presented
	no
	surprise
	to
	either
	party
	as 	the
	rules
	had
	been
developed
	between
	the
	parties
	over 	the 	preceding
	two
	years
	and
were
	at 	that 	point
	a
	familiar 	routine, 	their 	efficacy
well-polished
	with 	use.
	Thus,
	the
	changed
	circumstance 	of
	a
new
	negotiator 	did 	not 	terminate
	this
	agreement.
IV. 	The
	Association's 	Negotiating
	Conduct
The
	District 	objects 	to 	the 	hearing
	officer's
	finding 	that
the 	Association's 	negotiations 	conduct
	was
	in 	response 	to 	the
District's
	conduct 	and
	thus 	did 	not
	constitute
	a
	violation 	of
27

section 3543.6 (a) and (c) . The District argues that the
Association's conduct demonstrated a lack of good faith
negotiating and, taken in the "totality of the circumstances",
should justify the District's actions.
The District complains that the Association refused to
provide counterproposals to its new ground rules proposals.
The Association was justified, however, in resisting District
efforts to renege on the previously agreed-upon ground rules.
The Association provided Crossett with an oral recapitulation
of the Caves-Association ground rules agreement at the initial
meeting with Crossett on April 26, 1979. Crossett's insistence
that as a new negotiator he could "start over" with new ground
rules vitiates the District's argument that it was the
Association that did not want to reach an agreement on ground
rules. A part of the Caves ground rules agreement was that
those rules would not be reduced to writing, further explaining
the Association's reluctance to reduce the rules to writing.
The record amply demonstrates that the Association
continued from March, 1979 until the date of the parties' PERB
hearing to press for negoitation sessions. The Association
continued to try to discuss substantive proposals which the
District steadfastly refused to consider. Under the totality
of these circumstances, the Board affirms the hearing officer's
dismissal of the section 3543.6 (a) and (c) charges on the basis
that the Association's conduct was a reasonable attempt to
28
section
	3543.6(a)
	and
	(c).
	The
	District
	argues
	that
	the
Association's
	conduct 	demonstrated
	a
	lack 	of
	good
	faith
negotiating
	and,
	taken 	in 	the
	"totality
	of
	the
	circumstances",
should
	justify
	the
	District's
	actions.
The
	District
	complains
	that
	the 	Association 	refused
	to
provide 	counterproposals
	to
	its
	new
	ground
	rules
	proposals.
The
	Association
	was
	justified,
	however,
	in
	resisting
	District
efforts
	to
	renege
	on
	the
	previously
	agreed-upon
	ground
	rules.
The
	Association
	provided
	Crossett
	with
	an
	oral 	recapitulation
of 	the 	Caves-Association
	ground
	rules
	agreement
	at
	the
	initial
meeting 	with
	Crossett
	on
	April
	26, 	1979.
	Crossett's 	insistence
that
	as
	a 	new
	negotiator
	he
	could
	"start
	over" 	with
	new
	ground
rules
	vitiates
	the
	District's
	argument
	that
	it
	was
	the
Association
	that
	did 	not
	want
	to
	reach
	an 	agreement
	on 	ground
rules.
	A
part
	of 	the
	Caves 	ground
	rules
	agreement
	was
	that
those
	rules
	would
	not
	be
	reduced
	to 	writing, 	further 	explaining
the
	Association's 	reluctance 	to
	reduce 	the
	rules 	to 	writing.
The
	record
	amply
	demonstrates
	that
	the 	Association
continued
	from 	March, 	1979
	until
	the 	date 	of
	the
	parties'
	PERB
hearing 	to 	press 	for 	negoitation 	sessions.
	The
	Association
continued 	to
	try 	to 	discuss 	substantive 	proposals
	which
	the
District 	steadfastly
	refused 	to 	consider.
	Under
	the
	totality
of 	these 	circumstances, 	the
	Board
	affirms 	the 	hearing
	officer's
dismissal 	of 	the 	section
	3543.6(a)
	and 	(c)
	charges
	on
	the 	basis
that
	the 	Association's
	conduct
	was 	a
	reasonable 	attempt 	to
28

insist that the District abide by its original ground rules
agreement and that the parties proceed to discuss substantive
proposals . Thus, the Association's conduct did not constitute
bad faith negotiations.
By : Barbara D. Moore, Member
Harry Gluck, Chairperson, concurring:
I. The District's Refusal to Provide Information
I concur in Member Moore's finding that the health plan
cost data for unit employees sought by the Association was
related to wages, that the purpose of the union's
request--namely, to use in framing its economic proposals--was
not disputed and that such purpose is, in itself, lawful and
one which contributes to the requirement that the employer
comply and that the District failed to establish justification
for refusing the Association's request.
As stated in J. I. Case Co. v. NLRB (7th Cir. 1958) 253
F. 2d 149 [41 LRRM 2679], where the employer asserts that
providing information would be unduly burdensome, he is
obligated to provide the relevant and essential data in less
burdensome form or to make appropriate arrangements to do so.
In the case before us, the employer made no effort, in the face
of its objections, to arrange for itself a less burdensome
means of compliance with the request.
29
insist
	that
	the
	District
	abide
	by
	its
	original
	ground
	rules
agreement
	and
	that
	the
	parties
	proceed
	to 	discuss 	substantive
proposals.
	Thus,
	the
	Association's
	conduct
	did
	not
	constitute
bad
	faith
	negotiations.
By: 	Barbara 	D. 	Moore,
	Member
Harry 	Gluck,
	Chairperson, 	concurring:
I.
	The
	District's
	Refusal
	to
	Provide 	Information
I
	concur
	in
	Member
	Moore's
	finding
	that
	the
	health
	plan
cost
	data
	for
	unit
	employees
	sought
	by
	the
	Association
	was
related
	to
	wages,
	that
	the 	purpose
	of
	the
	union's
request--namely, 	to
	use
	in
	framing
	its
	economic
	proposals--was
not 	disputed
	and
	that
	such 	purpose
	is,
	in
	itself,
	lawful
	and
one 	which
	contributes
	to 	the 	requirement
	that
	the
	employer
comply 	and
	that
	the
	District
	failed
	to
	establish
	justification
for
	refusing 	the
	Association's 	request.
As
	stated 	in
	J.
	I.
	Case 	Co.
	v.
	NLRB
	(7th
	Cir.
	1958)
	253
F.2d
	149 	[41
	LRRM
	2679],where
	the
	employer
	asserts 	that
providing 	information
	would 	be 	unduly 	burdensome, 	he
	is
obligated 	to 	provide 	the 	relevant
	and
	essential 	data
	in
	less
burdensome 	form
	or 	to
	make
	appropriate 	arrangements 	to
	do
	so.
In 	the 	case 	before 	us, 	the
	employer 	made 	no
	effort,
	in
	the
	face
of
	its
	objections, 	to 	arrange 	for
	itself
	a
	less
	burdensome
means
	of 	compliance 	with 	the 	request.
29

II . 	The District's Failure to Negotiate in Good Faith
It is virtually axiomatic that an employer is required to
vest its negotiator with sufficient authority to conduct
meaningful negotiations. NLRB v. Fitzgerald Mills (CA 2d 1963)
313 F. 2d 260 [52 LRRM 2174], cert. denied 375 U.S. 834, [54
LRRM 2312]. See also, Valley Oil Co. (1974) 210 NLRB 320 [86
LRRM 1351] . I do not foreclose the possibility that a
negotiator, under certain conditions, may lawfully discuss and
even offer proposals with the open acknowledgment that his
authority is limited and that his "agreements" must be
subsequently ratified by his principal. But, the absence of
authority otherwise inevitably delays the negotiating process
and, in effect, circumvents the employer's duty to meet at
reasonable times and intervals for the purpose of reaching
agreement. Such bargaining conduct on the part of the employer
may be evidence of the employer's intent to avoid agreement.
But even where the employer intends to reach agreement
ultimately the withholding of authority from its negotiator
without disclosure of that fact forces the employee negotiator,
in effect, to bargain with himself. The employer, when the
organization's "bottom-line" is finally reached, could simply
deny that any tentative understandings were authorized and seek
to begin its negotiations with the organization's position now
fully revealed. Such tactics, in my view, go well beyond the
bounds of permissible hard bargaining.
30
II.
	The
	District's
	Failure
	to
	Negotiate 	in
	Good
	Faith
It
	is 	virtually
	axiomatic
	that
	an
	employer
	is
	required
	to
vest
	its
	negotiator
	with
	sufficient
	authority
	to
	conduct
meaningful
	negotiations.
	NLRB
	v.
	Fitzgerald
	Mills
	(CA
	2d
	1963)
313
	F.2d
	260 	[52
	LRRM
	2174],
	cert.
	denied
	375
	U.S. 	834,
	[54
LRRM
	2312].
	See
	also,
	Valley
	Oil
	Co. 	(1974) 	210
	NLRB
	320 	[86
LRRM
	1351].
	I 	do
	not
	foreclose
	the
	possibility
	that
	a
negotiator,
	under
	certain
	conditions,
	may
	lawfully 	discuss
	and
even
	offer
	proposals
	with
	the
	open 	acknowledgment
	that 	his
authority 	is
	limited
	and
	that
	his
	"agreements"
	must
	be
subsequently
	ratified
	by
	his 	principal.
	But, 	the
	absence
	of
authority
	otherwise
	inevitably
	delays 	the 	negotiating
	process
and,
	in
	effect,
	circumvents 	the 	employer's
	duty
	to
	meet
	at
reasonable 	times
	and
	intervals
	for 	the
	purpose
	of 	reaching
agreement.
	Such
	bargaining
	conduct
	on
	the
	part 	of
	the
	employer
may 	be
	evidence 	of 	the 	employer's
	intent
	to
	avoid 	agreement.
But 	even 	where
	the
	employer
	intends 	to
	reach 	agreement
ultimately
	the 	withholding
	of 	authority
	from
	its
	negotiator
without
	disclosure 	of
	that 	fact
	forces 	the
	employee
	negotiator,
in
	effect,
	to 	bargain 	with
	himself.
	The
	employer,
	when
	the
organization's
	"bottom-line"
	is 	finally
	reached, 	could 	simply
deny
	that
	any
	tentative
	understandings
	were
	authorized
	and
	seek
to 	begin
	its
	negotiations
	with 	the 	organization's 	position
	now
fully 	revealed.
	Such
	tactics,
	in
	my
	view, 	go
	well
	beyond
	the
bounds
	of 	permissible 	hard 	bargaining.
30

In this case, the facts present even a stronger indictment
of the District's conduct. There was no need for the
Association to assume that Caves had authority to make a
binding agreement for he unequivocally stated that he had the
authority to bind the District to ground rules for negotiations
even though he would be leaving the bargaining table and would
be replaced by another negotiator. Thus, either Caves
misrepresented his authority (which the facts do not indicate
and which I do not believe) or the District simply decided to
reject the agreement he reached, despite his authority.
While clearly interrelated with the matter of Caves'
authority, Crossett's reneger on the ground rules constitutes
independent evidence of bad faith. The repudiation of an
agreement reached, abruptly and without justification, destroys
that climate of mutuality requisite to the negotiating process
and delays the reaching of agreement. San Antonio Machine &
Supply Co. v. NLRB (5th Cir. 1966) 363 F. 2d 633 [62 LRRM
2674]. At the least, Crossett was obligated to justify his
repudiation of the ground rules agreement. But, the
"justification"--the retroactive removal of Caves'
authority--was, itself, improper. It cannot be the linchpin
saving the District's circular defense from collapse. 20
20I would note that typical defenses to a charge of
reneger include agreements conditioned on some subsequent event
which did not occur, misunderstanding or actual lack of
agreement in the first instance. See Food Service Co. (1973)
202 NLRB 790 [82 LRRM 1746] .
31
In
	this
	case,
	the
	facts
	present
	even
	a
	stronger
	indictment
of
	the
	District's
	conduct.
	There
	was 	no
	need
	for
	the
Association 	to
	assume
	that
	Caves
	had
	authority
	to
	make 	a
binding
	agreement
	for
	he
	unequivocally
	stated 	that
	he 	had
	the
authority 	to
	bind
	the
	District
	to
	ground
	rules
	for
	negotiations
even 	though
	he 	would 	be
	leaving 	the 	bargaining
	table
	and 	would
be
	replaced
	by
	another
	negotiator.
	Thus,
	either
	Caves
misrepresented
	his 	authority
	(which
	the
	facts
	do
	not
	indicate
and 	which
	I 	do
	not
	believe)
	or 	the
	District
	simply
	decided
	to
reject
	the
	agreement
	he
	reached,
	despite 	his 	authority.
While
	clearly 	interrelated
	with
	the 	matter
	of
	Caves'
authority, 	Crossett's
	reneger
	on
	the
	ground
	rules
	constitutes
independent 	evidence
	of
	bad
	faith.
	The
	repudiation
	of
	an
agreement
	reached, 	abruptly
	and
	without
	justification,
	destroys
that
	climate 	of 	mutuality
	requisite
	to
	the
	negotiating 	process
and
	delays 	the 	reaching 	of 	agreement.
	San
	Antonio
	Machine 	&
Supply
	Co.
	v.
	NLRB
	(5th
	Cir.
	1966) 	363
	F.2d
	633 	[62
	LRRM
2674].
	At
	the
	least,
	Crossett
	was
	obligated 	to
	justify
	his
repudiation 	of 	the
	ground
	rules
	agreement. 	But, 	the
"justification"--the 	retroactive
	removal
	of
	Caves'
authority--was,
	itself,
	improper.
	It
	cannot
	be
	the
	linchpin
saving 	the
	District's 	circular
	defense
	from
	collapse.20
201 	would
	note
	that 	typical 	defenses 	to
	a
	charge 	ofreneger 	include 	agreements 	conditioned
	on 	some
	subsequent 	eventwhich 	did 	not 	occur, 	misunderstanding 	or 	actual 	lack 	ofagreement 	in 	the
	first
	instance.
	See 	Food
	Service
	Co. 	(1973)
202
	NLRB
	790 	[82
	LRRM
	1746]. 
31

If further evidence of the District's plan to engage in a
holding action against settlement is required, it is found in
Crossett's conditioning discussion of substantive issues on a
new ground rules agreement. Where placing such conditions on
the discussion of other items is onerous or unreasonable, bad
faith may be readily inferred. American Flagpole (1968) [68
LRRM 1384]; Kroger Co. (1967) 164 NLRB 362 [65 LRRM 1089] ;
Fitzgerald Mills Corp. (1961) 133 NLRB 877 [48 LRRM 1745] ,
enforced (2nd Cir. 1963) 313 F. 2d 260 [52 LRRM 2174], cert.
denied (1963) 575 U.S. 834 [54 LRRM 2312] .
Here, as in the reneger, it was the denial of Caves'
authority which was the basis for Crossett's demand, a basis
which was onerous and unreasonable and does not rise to the
level of acceptable justification.
Considering all of these facts, I conclude that the
District failed to address its negotiating obligations with the
requisite good faith, and violated section 3543.5 (c) of the Act.
III. The Concurrent Violations
I concur with Member Moore in finding the concurrent
violations of section 3543.5 (a) and (b) for the reasons stated
in the lead opinion.
IV. The Charge Involving the Federation
This charge was consolidated by the hearing officer with
those under discussion by this Board. A single hearing was
held and one proposed decision was issued by the hearing
32
If
	further
	evidence
	of
	the
	District's
	plan 	to
	engage
	in
	a
holding
	action 	against 	settlement
	is
	required,
	it
	is
	found
	in
Crossett's
	conditioning 	discussion
	of 	substantive 	issues
	on 	a
new
	ground
	rules
	agreement.
	Where
	placing
	such
	conditions
	on
the
	discussion 	of 	other
	items
	is
	onerous 	or
	unreasonable,
	bad
faith
	may
	be
	readily 	inferred.
	American
	Flagpole
	(1968) 	[68
LRRM
	1384]i
	Kroger
	Co. 	(1967) 	164
	NLRB
	362 	[65
	LRRM
	1089]:
Fitzgerald
	Mills
	Corp.
	(1961) 	133
	NLRB
	877 	[48
	LRRM
	1745],
enforced
	(2nd
	Cir.
	1963) 	313
	F.2d
	260 	[52
	LRRM
	2174],
	cert.
denied
	(1963) 	575
	U.S.
	834 	[54
	LRRM
	2312].
Here, 	as
	in 	the 	reneger,
	it
	was
	the
	denial 	of
	Caves'
authority
	which 	was
	the
	basis
	for
	Crossett's
	demand, 	a
	basis
which 	was
	onerous
	and
	unreasonable
	and
	does
	not
	rise
	to 	the
level
	of 	acceptable
	justification.
Considering
	all
	of 	these
	facts,
	I
	conclude
	that
	the
District
	failed 	to
	address
	its
	negotiating 	obligations
	with
	the
requisite
	good
	faith,
	and
	violated 	section
	3543.5(c)
	of
	the 	Act.
III.
	The
	Concurrent
	Violations
I
	concur 	with
	Member 	Moore
	in 	finding 	the
	concurrent
violations
	of 	section
	3543.5(a)
	and 	(b)
	for 	the 	reasons
	stated
in 	the 	lead 	opinion.
IV. 	The 	Charge
	Involving 	the 	Federation
This 	charge
	was
	consolidated
	by
	the 	hearing
	officer
	with
those 	under
	discussion
	by
	this
	Board. 	A
single 	hearing
	was
held
	and 	one 	proposed 	decision
	was
	issued
	by
	the 	hearing
32

officer. No exceptions were taken from the finding involving
the Federation. PERB, therefore, should include in its order
provision for enforcing the hearing officer's decision relating
thereto . /
Harry Gluck, Chairperson
ORDER
Upon the foregoing findings of fact and conclusions of law
and the entire record in this case, it is hereby ORDERED that
the proposed decision of the hearing officer on the charges
filed by the Stockton Teachers Association and the Stockton
Unified School District is affirmed, as modified herein.
The alleged violation of section 3543.5 (a) , (b) and (c)
which refers to the District's unilateral changes in teacher
evaluation procedures by institution of the use of a "program
management checklist" is hereby DISMISSED pursuant to section
3541.5 (a) .
Upon the foregoing findings of fact, conclusions of law and
the entire record of all complaints, it is hereby ordered that
the Stockton Unified School District:
(1) CEASE AND DESIST FROM:
(a) Refusing to provide information to the Stockton
Teachers Association regarding the District's health benefit
33
officer.
	No
	exceptions
	were
	taken
	from
	the
	finding 	involving
the 	Federation.
	PERB,
	therefore,
	should
	include 	in
	its
	order
provision
	for
	~cing
	the 	hearing
	officer's
	decision
	relating
thereto./
Barry
k1uck;
	Chairperson
ORDER
Upon
	the 	foregoing
	findings 	of 	fact
	and
	conclusions
	of
	law
and
	the
	entire
	record 	in
	this
	case,
	it
	is
	hereby
	ORDERED
	that
the
	proposed
	decision 	of
	the 	hearing
	officer
	on
	the 	charges
filed
	by
	the 	Stockton 	Teachers
	Association
	and
	the 	Stockton
Unified
	School
	District 	is
	affirmed,
	as 	modified
	herein.
The
	alleged
	violation
	of 	section
	3543 .5
(a), 	(b)	
and 	(c)
which
	refers
	to 	the
	District's
	unilateral
	changes
	in 	teacher
evaluation
	procedures
	by
	institution
	of 	the
	use
	of
	a
	"program
management
	checklist"
	is
	hereby
	DISMISSED
	pursuant 	to
	section
3541.S{a).
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law
	and
the
	entire
	record
	of
	all
	complaints,
	it
	is
	hereby
	ordered
	that
the 	Stockton 	Unified 	School
	District:
(1)
	CEASE
	AND
	DESIST
	FROM:
(a)
	Refusing 	to 	provide 	information 	to 	the 	Stockton
Teachers 	Association 	regarding 	the
	District's
	health 	benefit
33

costs for employees in the representation unit upon a request
therefor; and
(b) Failing and refusing to meet and negotiate in
good faith with the Stockton Teachers Association by
withdrawing previously agreed-upon ground rules without lawful
cause and by conditioning the negotiation of substantive issues
on an unlawful demand to renegotiate such ground rules.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
(a) Within ten days of service of this decision,
prepare and post copies of the Notice attached hereto as
Appendix A for twenty consecutive workdays at its headquarters
office and in locations where notices to certificated employees
are customarily posted.
(b) within forty-five days of service of this
decision, notify in writing the Sacramento Regional Director of
the Public Employment Relations Board of the actions taken to
comply with this Order.
It is further ORDERED that the Sacramento Regional Director
is directed to process the decertification petition in light of
these findings.
PER CURIAM
34
costs
	for
	employees
	in
	the
	representation 	unit
	upon 	a
	request
therefor;
	and
(b)
	Failing
	and
	refusing
	to
	meet
	and
	negotiate
	in
good
	faith
	with 	the 	Stockton 	Teachers
	Association
	by
withdrawing
	previously
	agreed-upon
	ground
	rules
	without 	lawful
cause
	and 	by
	conditioning
	the
	negotiation
	of 	substantive 	issues
on
	an
	unlawful
	demand
	to 	renegotiate
	such 	ground
	rules.
(2)
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF THE
	EERA:
(a)
	Within
	ten
	days
	of 	service 	of
	this
	decision,
prepare
	and
	post 	copies 	of
	the 	Notice
	attached 	hereto
	as
Appendix
	A
for
	twenty
	consecutive
	workdays
	at
	its
	headquarters
office
	and
	in
	locations
	where
	notices 	to
	certificated
	employees
are 	customarily 	posted.
(b)
	Within
	forty-five
	days
	of 	service 	of
	this
decision, 	notify
	in 	writing
	the
	Sacramento 	Regional
	Director 	of
the 	Public
	Employment
	Relations
	Board
	of 	the 	actions
	taken
	to
comply
	with
	this
	Order.
It
	is
	further
	ORDERED
	that
	the
	Sacramento 	Regional
	Director
is 	directed 	to
	process 	the
	decertification 	petition
	in
	light 	of
these 	findings. 
PER	
CURIAM
34

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in cases numbered S-CE-162, S-CE-225,
S-CE-235 and S-CO-39, in which all parties participated, it has
been found that the Stockton Unified School District Board of
Trustees violated the following provisions of the Educational
Employment Relations Act (EERA) :
1 . 	3543.5 (a) , (b) and (c) by refusing during negotiations
to provide to the Stockton Teachers Association
information regarding the costs of providing health
insurance benefits.
2 . 	3543.5 (d) by supporting the Stockton Federation of
Teachers and by encouraging employees to join the
Stockton Federation of Teachers in preference to the
Stockton Teachers Association by placing on the agenda
at a mandatory teachers' meeting a presentation by the
Stockton Federation of Teachers.
3. 	3543.5 (a) , (b) and (c) by failing and refusing to meet
and negotiate in good faith with the Stockton Teachers
Association by withdrawing previously agreed-upon
ground rules without lawful cause and by conditioning
the negotiation of substantive issues on an unlawful
demand to negotiate such ground rules.
APPENDIX
	A
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State of 	California
After
	a
	hearing
	in
	cases
	numbered
	S-CE-162, 	S-CE-225,
S-CE-235
	and
	S-CO-39,
	in
	which
	all
	parties 	participated,
	it
	has
been 	found
	that
	the 	Stockton 	Unified
	School
	District
	Board
	of
Trustees
	violated
	the 	following
	provisions 	of
	the 	Educational
Employment
	Relations
	Act
	(EERA):
1. 	3543.S(a),
	{b) 	and 	{c) 	by
	refusing
	during
	negotiationsto 	provide
	to
	the 	Stockton 	Teachers
	Associationinformation 	regarding 	the
	costs
	of 	providing
	healthinsurance
	benefits.
2.	
3543.S{d)
	by
	supporting 	the 	Stockton 	Federation 	of
Teachers
	and 	by
	encouraging
	employees
	to 	join 	theStockton 	Federation 	of 	Teachers 	in 	preference 	to 	theStockton 	Teachers 	Association
	by
	placing
	on
	the 	agenda
at
	a
	mandatory
	teachers'
	meeting
	a
	presentation 	by 	theStockton 	Federation 	of 	Teachers.
3. 	3543.S(a),
	(b) 	and 	(c) 	by
	failing
	and
	refusing 	to
	meetand
	negotiate 	in
	good
	faith
	with 	the 	Stockton 	Teachers
Association	
by 	withdrawing
	previously 	agreed-uponground
	rules 	without 	lawful 	cause
	and	
by	
conditioningthe 	negotiation 	of 	substantive 	issues
	on 	an
	unlawful
demand
	to 	negotiate
	such 	ground
	rules.
1

WE WILL ABIDE BY THE FOLLOWING:
(1) CEASE AND DESIST FROM:
) Refusing to provide information to the Stockton
Teachers Association regarding the District's health benefit
costs for employees in the representation unit upon a request
therefore ;
( b ) 	Supporting the Federation or encouraging
employees to join the Federation in preference to the
Association; and
(c) Failing and refusing to meet and negotiate in
good faith with the Stockton Teachers Association by
withdrawing previously agreed-upon ground rules without lawful
cause and by conditioning the negotiation of substantive issues
by an unlawful demand to negotiate such ground rules.
STOCKTON UNIFIED SCHOOL
DISTRICT BOARD OF TRUSTEES
Dated : 	By :
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
TWENTY (20) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY
MATERIAL .
2
WE
	WILL
	ABIDE
	BY
	THE
	FOLLOWING:
{l)
	CEASE
	AND
	DESIST
	FROM:
(a)
	Refusing
	to 	provide 	information
	to
	the 	Stockton
Teachers
	Association 	regarding
	the
	District's
	health
	benefit
costs
	for
	employees
	in
	the
	representation 	unit
	upon 	a
	request
therefore;
{b)
	Supporting
	the 	Federation
	or 	encouraging
employees
	to
	join
	the 	Federation 	in 	preference 	to 	theAssociation~
	and
(c)
	Failing
	and
	refusing 	to
	meet
	and
	negotiate
	in
good
	faith
	with 	the 	Stockton Teachers
	Association
	by
withdrawing
	previously
	agreed-upon
	ground
	rules
	without 	lawful
cause
	and 	by
	conditioning
	the
	negotiation of 	substantive 	issues
by
	an
	unlawful
	demand
	to 	negotiate
	such
	ground
	rules.
STOCKTON
	UNIFIED
	SCHOOL
DISTRICT
	BOARD
	OF
	TRUSTEES
Dated:	
By:
THIS
	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR
	AT
	LEAST
TWENTY
	(20) 	CONSECUTIVE
WORKDAYS 	FROM THE 	DATE OF
	POSTING
	AND
MUST 	NOT 	BE 	REDUCED
	IN 	SIZE,
	DEFACED, 	ALTERED
	OR COVERED BY ANY
·MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
In the Matter of:
STOCKTON TEACHERS ASSOCIATION,
CTA/NEA,
Unfair Practice
Charging Party, 	Case Nos. S-CE-162
S-CE-225
v . 	S-CE-235
STOCKTON UNIFIED SCHOOL DISTRICT,
Respondent,
STOCKTON FEDERATION OF TEACHERS,
AFT/AFL/CIO,
Intervenor.
STOCKTON UNIFIED SCHOOL DISTRICT,
Charging Party, 	Case No. S-CO-39
V .
STOCKTON TEACHERS ASSOCIATION, 	PROPOSED DECISION
CTA/NEA, 	( 1-24-80
Respondent.
Appearances: 	Beeson, Tayer and Kovach by Duane B. Beeson and
Patrick J. Szymanski for Stockton Teachers Association;
San Joaquin County Counsel by Charles T. Thompson for Stockton
Unified School District; and Van Bourg, Allen, Weinberg and
Roger by Robert J. Bezemek for Stockton Federation of Teachers.
Before Stuart C. Wilson, Hearing Officer.
STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
In 	the 	Matter 	of:
STOCKTON 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
STOCKTON 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent,
STOCKTON 	FEDERATION 	OF 	TEACHERS,
AFT/AFL/CIO,
Intervenor.
Unfair 	Practice
Case 	Nos. 	S-CE-162
S-CE-225
S-CE-235
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
__________________ )
)
STOCKTON 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
STOCKTON 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
)
)
)
)
)
)
)
)
)
)
__________________ )
Case 	No. 	S-C0-39
PROPOSED 	DECISION
( 	1-24-80 	)
Appearances: 	Beeson, 	Tayer 	and 	Kovach 	by 	Duane 	B. 	Beeson 	and
Patrick 	J. 	Szymanski 	for 	Stockton 	Teachers 	Association;
San 	Joaquin 	County Counsel 	by Charles 	T. 	Thompson 	for 	Stockton
Unified 	School 	District; 	and 	Van 	Bourg, 	Allen, 	Weinberg 	and
Roger 	by 	Robert 	J. 	Bezemek 	for 	Stockton 	Federation 	of 	Teachers.
Before 	Stuart 	C. 	Wilson, 	Hearing 	Officer.

PROCEDURAL ASPECTS
These cases involve three unfair practice charges filed by
the Stockton Teachers Association (hereafter Association)
against the Stockton Unified School District (hereafter
District) and one unfair practice charge filed by the District
against the Association. The Stockton Federation of Teachers
(hereafter Federation) has intervened in one count of one
charge . 	These various charges were filed, partially withdrawn
and amended over a period of almost one year, during which
time five informal settlement conferences were held.
At the beginning of the formal hearing of these charges,
the Association moved to dismiss charge S-CE-162 in its
entirety and, at the conclusion of the formal hearing, moved
to withdraw Count VII of Case S-CE-225. Both motions were
granted.
In the remaining charges, the Association charged that the
District refused to provide it with information necessary to
perform its role as exclusive representative, took four
unilateral actions regarding matters within the scope of
representation, supported a rival employee organization in
four instances, and failed to meet and negotiate in good
faith. The District charged that the Association failed to
meet and negotiate in good faith. The various charges will be
discussed in order.
-2-
PROCEDURAL 	ASPECTS
These 	cases 	involve 	three 	unfair 	practice 	charges 	filed 	by
the 	Stockton 	Teachers 	Association 	(hereafter 	Association)
against 	the 	Stockton Unified 	School 	District 	(hereafter
District) 	and 	one 	unfair 	practice 	charge 	filed 	by 	the 	District
against 	the 	Association. 	The 	Stockton Federation 	of 	Teachers
(hereafter 	Federation) 	has 	intervened 	in 	one 	count 	of 	one
charge. 	These 	various 	charges 	were 	filed, 	partially 	withdrawn
and 	amended 	over 	a 	period 	of 	almost 	one 	year, 	during 	which
time 	five 	informal 	settlement 	conferences 	were 	held.
At 	the 	beginning 	of 	the 	formal 	hearing 	of 	these 	charges,
the 	Association 	moved 	to 	dismiss 	charge 	S-CE-162 	in 	its
entirety 	and, 	at 	the 	conclusion 	of 	the 	formal 	hearing, 	moved
to 	withdraw 	Count 	VII 	of 	Case 	S-CE-225. 	Both 	motions 	were
granted.
In 	the 	remaining 	charges, 	the 	Association 	charged 	that 	the
District 	refused 	to 	provide 	it 	with 	information 	necessary 	to
perform 	its 	role 	as 	exclusive 	representative, 	took 	four
unilateral 	actions 	regarding 	matters 	within 	the 	scope 	of
representation, 	supported 	a 	rival 	employee 	organization 	in
four 	instances, 	and 	failed 	to meet 	and 	negotiate 	in 	good
faith. 	The 	District 	charged 	that 	the 	Association 	failed 	to
meet 	and 	negotiate 	in 	good 	faith. 	The 	various 	charges 	will 	be
discussed 	in 	order.
-2-

FINDINGS OF FACT
Within the meaning of the Educational Employment Relations
Act (hereafter EERA) , California Government Code sections 3540
et seq., I it was stipulated by the parties and it is found
that the District is an employer, that the Association and the
Federation are employee organizations, and that the
Association is the exclusive representative of the
certificated negotiating unit which is the subject of these
charges.
(1) THE REFUSAL TO PROVIDE INFORMATION
During negotiations the Association requested the District
to disclose its costs of providing noncontributory health
insurance benefits for the unit. The District first replied
that it did not have the information available in that form
since the group covered by insurance included not only the
Association's unit but also all District employees, including
other units and excluded personnel.
The District suggested that the Association obtain the
information from the carrier directly. However, when this was
attempted, the Association was informed that the District had
instructed the carrier not to furnish any information.
lAll code section references are to the California
Government Code.
-3-
FINDINGS 	OF 	FACT
Within 	the 	meaning 	of 	the 	Educational 	Employment 	Relations
Act 	(hereafter 	EERA), 	California 	Government 	Code 	sections 	3540
et 	seq.,l 	it 	was 	stipulated 	by 	the 	parties 	and 	it 	is 	found
that 	the 	District 	is 	an 	employer, 	that 	the 	Association 	and 	the
Federation 	are 	employee 	organizations, 	and 	that 	the
Association 	is 	the 	exclusive 	representative 	of 	the
certificated 	negotiating 	unit 	which 	is 	the 	subject 	of 	these
charges.
(1) 	THE 	REFUSAL 	TO 	PROVIDE 	INFORMATION
During 	negotiations 	the 	Association 	requested 	the 	District
to 	disclose 	its 	costs 	of 	providing 	noncontributory 	health
insurance 	benefits 	for 	the 	unit. 	The 	District 	first 	replied
that 	it 	did 	not 	have 	the 	information 	available 	in 	that 	form
since 	the 	group 	covered 	by 	insurance 	included 	not 	only 	the
Association's 	unit 	but 	also 	all 	District 	employees, 	including
other 	units 	and 	excluded 	personnel.
The 	District 	suggested 	that 	the 	Association 	obtain 	the
information 	from 	the 	carrier 	directly. 	However, 	when 	this 	was
attempted, 	the 	Association 	was 	informed 	that 	the 	District 	had
instructed 	the 	carrier 	not 	to 	furnish 	any 	information.
lAll 	code 	section 	references 	are 	to 	the 	California
Government 	Code.
-3-

In the instant case, the Association had not proposed a
change in health insurance benefits and, after the District's
refusal to disclose its costs, the parties did tentatively
agree to maintenance of the status quo.
Regarding the Association's reason for requesting the
information, the following uncontradicted testimony was given
by the Association's chief negotiator:
The District's line during this reopener was
that they provided the benefits and as long
as they provided the benefits at no cost to
the employee, that it should be no concern
of ours what they cost. 	I was asked why I
needed that information. I indicated during
that reopener, as has been done since, that,
if the District's position is that there are
"X" number of dollars available for wages
and fringe benefits and if the District is
correct in contending that fringe benefits
increase from year to year and since we were
aware of the fact that the District was
considering going to self-insurance, that
how many dollars are spent on fringe
benefits have an impact on whether we choose
to go along with the increase or whether we
would choose to take reduced benefits and/or
whether we would choose to convert, in a
subsequent proposal, convert the dollars to
salary rather than to fringe benefits.
Based on all evidence received on this issue, it is found
that the Association requested the District's cost of
providing health insurance benefits so that it could evaluate
the desirability of negotiating over whether the money the
District spent on health benefits should be spent on
salaries. It is further found that the District could easily
have caused this information to be provided to the Association
-4-
In
	the
	instant
	case, 	the 	Association
	had
	not 	proposed
	a
change
	in 	health
	insurance
	benefits
	and,
	after
	the
	District's
refusal
	to 	disclose
	its
	costs,
	the
	parties
	did
	tentatively
agree
	to
	maintenance
	of 	the
	status
	quo.
Regarding
	the
	Association's
	reason 	for 	requesting 	the
information, 	the
	following
	uncontradicted
	testimony
	was
	given
by
	the
	Association's 	chief 	negotiator:
The
	District's
	line
	during
	this
	reopener
	was
that
	they 	provided 	the
	benefits
	and
	as
	long
as
	they 	provided 	the
	benefits 	at
	no
	cost 	to
the 	employee,
	that
	it
	should
	be 	no
	concern
of 	ours
	what
	they
	cost.
	I 	was
	asked
	why
	I
needed
	that
	information.
	I
	indicated
	during
that
	reopene0 	as
	has 	been
	done
	since,
	that,
if
	the
	District's
	position 	is 	that
	there 	are
"X"
	number
	of
	dollars 	available
	for
	wages
and
	fringe 	benefits
	and
	if
	the
	District 	is
correct 	in
	contending
	that
	fringe 	benefits
increase
	from
	year
	to
	year
	and
	since
	we
	were
aware
	of 	the
	fact 	that
	the
	District
	was
considering
	going
	to 	self-insurance, 	that
how
	many
	dollars
	are 	spent
	on
	fringe
benefits
	have 	an
	impact
	on
	whether
	we
	choose
to
	go
	along 	with 	the 	increase
	or 	whether
	we
would
	choose
	to 	take
	reduced
	benefits
	and/or
whether
	we
	would
	choose
	to 	convert, 	in
	a
subsequent
	proposal, 	convert 	the
	dollars
	to
salary 	rather
	than
	to 	fringe 	benefits.
Based 	on
	all
	evidence 	received
	on
	this 	issue,
	it
	is
	found
that
	the 	Association 	requested 	the
	District's
	cost 	of
providing 	health 	insurance
	benefits
	so
	that
	it
	could
	evaluate
the
	desirability
	of 	negotiating
	over 	whether 	the
	money
	the
District
	spent
	on
	health 	benefits
	should
	be
	spent
	on
salaries. 	It 	is 	further
	found
	that 	the
	District
	could
	easily
have 	caused
	this 	information 	to
	be 	provided 	to 	the 	Association
-4-

but refused to do so. In addition, it is found that the
Association never withdrew its request for this information.
The fact that it signed a tentative agreement regarding health
benefits is found to be merely an attempt by the Association
to gain the benefits of a contract, even though it was denied
information which it felt was necessary and relevant.
(2) UNILATERAL CHANGES
The Association alleges three such changes: institution
of a sign-in sign-out procedure, increased yard duties, and a
new evaluation procedure. The first two alleged changes will
be discussed together.
A. Sign-in sign-out procedures and increased yard duties
The sign-in sign-out procedure had a similar effect to
that which would have been produced by the use of a time
clock. Elementary school teachers were required each teaching
day to go to the principal's office, both when they arrived at
and when they left the school site, and there sign a paper
noting the time in each case. Although it might seem as if
this new procedure were designed to end tardy arrivals and
early departures, the evidence was to the contrary. 	The
District's testimony regarding the reasons for institution of
the new procedure did not include this reason and the
Association's testimony was that teachers did, in fact, comply
with the District's requirement that they be on the school
site during certain hours (hereafter school site time) .
-5-
but
	refused
	to
	do
	so.
	In
	addition,
	it
	is
	found
	that
	the
Association
	never 	withdrew
	its
	request 	for
	this
	information.
The
	fact 	that
	it
	signed
	a
	tentative
	agreement
	regarding
	health
benefits
	is
	found
	to
	be
	merely
	an
	attempt
	by
	the
	Association
to
	gain 	the
	benefits
	of
	a
	contract,
	even 	though
	it
	was
	denied
information
	which
	it
	felt
	was
	necessary
	and
	relevant.
(2)
	UNILATERAL
	CHANGES
The
	Association
	alleges
	three
	such 	changes:
	institution
of
	a
	sign-in
	sign-out 	procedure, 	increased
	yard
	duties,
	and
	a
new
	evaluation
	procedure.
	The
	first
	two
	alleged
	changes
	will
be
	discussed
	together.
A.
	Sign-in 	sign-out
	procedures
	and
	increased
	yard
	duties
The
	sign-in 	sign-out
	procedure
	had 	a
	similar
	effect 	to
that
	which 	would 	have 	been
	produced
	by
	the
	use
	of
	a
	time
clock.
	Elementary 	school
	teachers
	were
	required
	each
	teaching
day
	to
	go
	to 	the
	principal's 	office,
	both
	when
	they
	arrived 	at
and 	when
	they
	left
	the 	school
	site,
	and
	there
	sign
	a
	paper
noting 	the
	time
	in
	each
	case.
	Although
	it
	might
	seem
	as
	if
this
	new
	procedure
	were
	designed
	to
	end
	tardy
	arrivals
	and
early 	departures, 	the 	evidence
	was
	to
	the
	contrary.
	The
District's
	testimony 	regarding 	the 	reasons 	for
	institution
	of
the
	new
	procedure 	did 	not 	include
	this
	reason
	and
	the
Association's 	testimony
	was
	that 	teachers 	did, 	in
	fact,
	comply
with 	the
	District's
	requirement
	that
	they
	be 	on
	the 	school
site
	during 	certain
	hours 	(hereafter 	school
	site
	time).
-5-

Yard duty requires teachers to supervise students during
recess, lunch, and busloading. These yard duty periods last
15 minutes each. The number of yard duty periods per teacher
per school year was increased by six, so the total increase
per teacher for the entire school year was approximately
ninety minutes.
The District admits unilateral institution of these
changes. 	The only testimony regarding the effect of these
changes was that of two teachers who said the increased yard
duty cut into time they previously used to prepare for class.
Therefore, it is found that the District did unilaterally
institute these changes and that the changes required the
expenditure of a relatively small amount of additional effort
during the school year.
B. The evaluation procedure
The Association charges that the District unilaterally
changed procedures to be used for evaluation of teachers by
the institution of the use of a form entitled "program
management checklist" (hereafter checklist) . The checklist
was to be used in addition to teacher evaluation procedures
and the teacher evaluation form (hereafter contract form)
which were negotiated in the contract between the parties as
the means of teacher evaluation. The District admits that it
unilaterally instituted the use of the checklist, but contends
that the checklist does not relate to the subject of
"procedures to be used for the evaluation of employees."
-6-
Yara
	duty
	requires 	teachers 	to 	supervise 	students
	during
recess,
	lunch,
	and
	busloading.
	These
	yard 	duty
	periods
	last
15
	minutes
	each.
	The 	number
	of
	yard 	duty
	periods
	per
	teacher
per 	school
	year
	was
	increased
	by
	six,
	so 	the
	total
	increase
per
	teacher 	for 	the
	entire
	school 	year
	was
	approximately
ninety
	minutes.
The
	District
	admits
	unilateral 	institution
	of 	these
changes.
	The
	only 	testimony 	regarding 	the
	~ffect
	of
	these
changes
	was
	that
	of
	two
	teachers
	who
	said
	the
	increased
	yard
duty
	cut 	into
	time
	they
	previously
	used
	to 	prepare 	for
	class.
Therefore,
	it
	is
	found
	that
	the
	District
	did
	unilaterally
institute
	these
	changes
	and
	that
	the
	changes
	required 	the
expenditure 	of
	a
	relatively
	small
	amount
	of
	additional
	effort
during 	the 	school
	year.
B. 	The
	evaluation
	procedure
The
	Association 	charges
	that
	the
	District 	unilaterally
changed
	procedures 	to
	be
	used
	for 	evaluation 	of 	teachers
	by
the
	institution
	of 	the 	use
	of
	a 	form
	entitled
	"program
management
	checklist" 	(hereafter 	checklist).
	The
	checklist
was
	to
	be
	used
	in 	addition 	to 	teacher 	evaluation 	procedures
and
	the 	teacher 	evaluation
	form
	(hereafter 	contract
	form)
which 	were
	negotiated 	in 	the
	contract
	between 	the
	parties 	as
the
	means
	of 	teacher 	evaluation.
	The
	District
	admits
	that
	it
unilaterally 	instituted
	the 	use 	of 	the 	checklist,
	but 	contends
that 	the 	checklist
	does 	not
	relate 	to 	the 	subject 	of
"procedures 	to
	be 	used 	for 	the 	evaluation 	of 	employees."
-6-

The contract form contains five subjects of observation
which may be marked "satisfactory, " "needs improvement, " or
"unsatisfactory." The checklist contains 47 subjects of
observation which may be marked "yes" or "no. " All subjects
of observation on both forms relate exclusively to the
evaluation of teachers in the performance of their duties.
Both forms are designed to be checked during the in-class
observation of teachers by a principal.
Although the checklist has all the appearances of a form
which could easily be used to rate teacher proficiency, the
District claims that no such use was intended. Rather, it
claims that the checklist was intended and used only as an aid
to principals in increasing their evaluating skills. It was
contended that the value of the checklist for the District was
in providing evaluating training to principals and that, once
the form had been used in an actual evaluation, it had no
further use.
In addition, the use of the checklist to increase
principals' evaluating skills is a subject very closely
related to the evaluation process itself. If the use of the
checklist had its intended effect, the evaluations of teachers
would be affected because principals would then be considering
additional criteria and using different techniques and skills
which would have been developed by the use of the checklist.
In considering whether the teacher evaluations recorded
-7-
The
	contract
	form
	contains 	five 	subjects
	of
	observation
which
	may
	be 	marked
	"satisfactory,"
	"needs 	improvement,"
	or
"unsatisfactory."
	The
	checklist
	contains
	47
	subjects
	of
observation
	which
	may 	be
	marked
	"yes" 	or 	"no."
	All
	subjects
of
	observation
	on
	both
	forms
	relate
	exclusively 	to
	the
evaluation
	of 	teachers 	in
	the
	performance
	of
	their 	duties.
Both 	forms
	are 	designed
	to
	be
	checked
	during 	the
	in-class
observation
	of
	teachers
	by 	a
	principal.
Although
	the
	checklist
	has
	all
	the 	appearances 	of
	a 	form
which
	could
	easily
	be
	used
	to
	rate
	teacher
	proficiency,
	the
District
	claims
	that
	no
	such 	use
	was
	intended. 	Rather,
	it
claims
	that
	the
	checklist
	was
	intended
	and
	used
	only 	as
	an
	aid
to principals
	in 	increasing
	their
	evaluating
	skills. 	It
	was
contended
	that
	the 	value
	of 	the
	checklist
	for 	the
	District
	was
in 	providing 	evaluating
	training 	to 	principals
	and
	that,
	once
the
	form 	had
	been 	used
	in
	an
	actual 	evaluation,
	it
	had 	no
further
	use.
In
	addition, 	the
	use
	of 	the
	checklist 	to 	increase
principals'
	evaluating
	skills 	is
	a
	subject
	very
	closely
related 	to
	the
	evaluation 	process
	itself. 	If
	the
	use
	of 	the
checklist
	had
	its
	intended
	effect,
	the 	evaluations 	of
	teachers
would 	be
	affected
	because
	principals
	would
	then
	be
	considering
additional
	criteria
	and
	using
	different
	techniques
	and
	skills
which 	would 	have 	been 	developed 	by 	the 	use 	of 	the
	checklist.
In 	considering whether 	the 	teacher 	evaluations 	recorded
-7-

on the checklist were in fact intended to be used in the rating
of teacher proficiency, the following circumstances provide
inferences.
If this effort really were being expended to upgrade
principals' skills, an educational motive, it seems only
reasonable that professional educators would apply typical
educational techniques to evaluate whether the new procedure
was having the desired effect. Here, even though the
evaluation checklists were retained, there was no follow-up
procedure to determine whether the principals were actually
increasing their evaluating skills.
A copy of the completed checklist was given to the
evaluated teacher, and the checklist form contained a box for
comments and requests to the evaluated teacher which the
principals used for such things as requests for further
discussion of teacher proficiency. The only point of giving a
copy of the completed checklist to evaluated teachers and the
box on the checklist allowing principals to request teachers
to discuss matters further would be to inform teachers of
their principals' evaluations of their strong and weak points
so that teachers' rather than principals' skills would be
upgraded.
The checklist procedure required that each principal
evaluate each teacher in his school. If the procedure were
intended only to aid principals, there would be no point in
-8-
on
	the
	checklist
	were
	in
	fact
	intended
	to
	be
	used
	in
	the
	rating
of 	teacher
	proficiency, 	the
	following 	circumstances 	provide
inferences.
If 	this 	effort
	really
	were
	being
	expended
	to
	upgrade
principals'
	skills,
	an
	educational
	motive,
	it
	seems
	only
reasonable
	that
	professional
	educators
	would
	apply
	typical
educational
	techniques
	to 	evaluate
	whether
	the
	new
	procedure
was
	having
	the
	desired
	effect.
	Here, 	even 	though
	the
evaluation
	checklists
	were
	retained,
	there
	was 	no
	follow-up
procedure
	to
	determine
	whether
	the
	principals
	were
	actually
increasing
	their
	evaluating
	skills.
A
copy
	of 	the 	completed
	checklist
	was
	given
	to
	the
evaluated 	teacher,
	and
	the
	checklist
	form
	contained
	a 	box
	for
comments 	and
	requests 	to
	the
	evaluated 	teacher
	which
	the
principals
	used
	for
	such
	things
	as
	requests 	for
	further
discussion
	of
	teacher
	proficiency.
	The
	only
	point
	of
	giving
	a
copy
	of 	the 	completed
	checklist
	to 	evaluated 	teachers
	and
	the
box 	on
	the
	checklist
	allowing
	principals 	to 	request 	teachers
to 	discuss 	matters 	further
	would 	be
	to
	inform
	teachers 	of
their 	principals'
	evaluations 	of
	their
	strong
	and 	weak
	points
so
	that 	teachers' 	rather
	than
	principals' 	skills
	would 	be
upgraded.
The
	checklist
	procedure 	required 	that
	each
	principal
evaluate 	each 	teacher 	in 	his 	school. 	If
	the 	procedure 	were
intended 	only 	to 	aid 	principals, 	there
	would 	be 	no
	point 	in
-8-

requiring that each teacher be evaluated. It would be the
most unlikely of coincidences if the number of checklist
procedures which management wished each principal to perform
exactly equaled the number of teachers in that principal's
school.
Based on all evidence received on this issue, it is found
that the new checklist procedure was used to evaluate
teachers, even if those evaluations were not used to rate
teacher proficiency, and it is further found that the District
did intend to use the checklist results to rate teacher proficiency.
(3) SUPPORT OF THE FEDERATION
The Association alleges that the District unlawfully
supported the Federation by furnishing to it (a) window
information regarding the Association, (b) mailing labels
containing the names and addresses of unit members,
(c) released time for its supporters to campaign, and
(d) agenda time at a mandatory faculty meeting. 	The
individual support charges will be discussed in order.
A. 	Window information
At a time when the Federation was working toward
decertification of the Association, the parties agree and it
is found that the District furnished to the Federation, on its
request, information relating to the dates of the
decertification window period of the Association's contract.
The window period may be calculated simply by referring to the
-9-
requiring
	that
	each
	teacher
	be
	evaluated.
	It
	would 	be
	the
most
	unlikely
	of
	coincidences
	if
	the
	number
	of
	checklist
procedures
	which
	management
	wished 	each
	principal
	to
	perform
exactly
	equaled 	the
	number
	of
	teachers 	in
	that
	principal's
school.
Based
	on
	all
	evidence
	received
	on
	this
	issue,
	it
	is
	found
that
	the
	new
	checklist
	procedure
	was
	used
	to 	evaluate
teachers,
	even
	if
	those
	evaluations
	were
	not
	used
	to
	rate
teacher
	proficiency,
	and
	it
	is
	further
	found
	that
	the
	District
did 	intend 	to
	use 	the
	checklist
	results
	to
	rate
	teacher 	proficiency.
(3)
	SUPPORT
	OF 	THE
	FEDERATION
The
	Association
	alleges 	that
	the
	District
	unlawfully
supported 	the 	Federation
	by
	furnishing
	to
	it
	(a) 	window
information 	regarding 	the
	Association,
	(b)
	mailing
	labels
containing 	the
	names 	and
	addresses
	of
	unit
	members,
(c)
	released
	time
	for
	its
	supporters 	to
	campaign, 	and
(d)
	agenda 	time
	at
	a
	mandatory
	faculty
	meeting.
	The
individual
	support 	charges
	will
	be
	discussed 	in 	order.
A. 	Window
	information
At 	a
	time
	when
	the 	Federation
	was
	working 	toward
decertification
	of 	the 	Association, 	the
	parties
	agree
	and
	it
is
	found
	that
	the
	District
	furnished 	to 	the 	Federation,
	on
	its
request, 	information 	relating 	to 	the 	dates 	of 	the
decertification
	window
	period 	of 	the 	Association's 	contract.
The 	window
	period
	may 	be
	calculated 	simply 	by 	referring 	to 	the
-9-

contract which is available as a public document and the
EERA. 	The Association produced no evidence that the
furnishing of window information caused the District to exert
any influence over the Federation or that it had any effect on
employee choice between the two organizations.
B. 	The mailing labels
The parties agree and it is found that the District
furnished to the Federation, upon its request and payment, the
names and addresses of the unit members which the Association
represented. This list was produced by the District computer
and was in the form of mailing labels. It had been the
District's practice similarly to furnish such labels to other
employee organizations upon their request. In the past, the
District had furnished such lists to the Association, the
Black Teachers Association, the Spanish American Teachers
Association and the Asian American Teachers Association.
Here again, no evidence was presented of District
influence over the Federation or that the District's act
induced employees to choose an organization which would not
likely have been chosen otherwise.
C. 	Released time
The third charge is that the District provided released
time to two teachers who were Federation organizers and who
used the released time to attempt to develop Federation
support during what would otherwise have been working hours.
-10-
contract
	which
	is
	available
	as
	a
	public
	document 	and
	the
EERA.
	The
	Association
	produced
	no
	evidence
	that
	the
furnishing
	of
	window
	information
	caused
	the
	District
	to
	exert
any
	influence
	over
	the
	Federation
	or
	that
	it
	had 	any
	effect
	on
employee
	choice
	between
	the
	two
	organizations.
B. 	The
	mailing
	labels
The
	parties
	agree
	and
	it
	is
	found
	that
	the
	District
furnished 	to 	the 	Federation,
	upon
	its
	request
	and
	payment,
	the
names 	and
	addresses 	of 	the
	unit
	members 	which
	the 	Association
represented.
	This
	list
	was
	produced
	by
	the
	District
	computer
and
	was
	in 	the
	form
	of 	mailing
	labels.
	It
	had
	been
	the
District's
	practice 	similarly 	to 	furnish
	such
	labels 	to 	other
employee
	organizations
	upon
	their
	request.
	In 	the
	past,
	the
District
	had
	furnished
	such
	lists
	to 	the 	Association, 	the
Black 	Teachers
	Association, 	the 	Spanish
	American
	Teachers
Association
	and
	the
	Asian
	American
	Teachers
	Association.
Here
	again,
	no
	evidence
	was
	presented 	of
	District
influence
	over
	the 	Federation 	or
	that
	the
	District's
	act
induced 	employees
	to
	choose 	an
	organization
	which 	would
	not
likely
	have 	been 	chosen
	otherwise.
C.
	Released 	time
The
	third
	charge
	is 	that 	the
	District
	provided 	released
time
	to
	two
	teachers
	who 	were
	Federation 	organizers
	and 	who
used 	the 	released
	time
	to 	attempt 	to
	develop 	Federation
support 	during 	what 	would
	otherwise
	have 	been 	working
	hours.
-10-

On one occasion, the teacher known to be a Federation
supporter was observed during working hours at a school other
than the one at which he taught passing out cards. 	On another
occasion, another teacher was observed during working hours at
a school other than the one at which he taught, passing out
cards which the witness testified related to decertification
of the Association.
However, no evidence was offered that the District had
provided released time to either teacher to work for the
Federation. 	On the contrary, one teacher was about 15 minutes
late to work and the other reported that he had been absent
for illness on the days they apparently electioneered for the
Federation.
When the Association complained of these acts to the
principal, it did not even give the name of the teacher who had
reported in ill. It did give the principal the name of the
teacher who was late and the principal's response was that "...
he would clip (that teacher's) wings." Thus, the Association
not only offered no evidence of prior notice of the proposed
electioneering, but the evidence even indicated that the
District, when notified, indicated an intention to stop any
such abuses.
Based on the evidence received on this issue, it is found
that the cards passed out by the first teacher related to
decertification of the Association and that both teachers used
-11-
On 	one 	occasion, 	the 	teacher 	known 	to 	be 	a 	Federation
supporter 	was 	observed 	during 	working 	hours 	at 	a 	school 	other
than 	the 	one 	at 	which 	he 	taught 	passing 	out 	cards. 	On 	another
occasion, 	another 	teacher 	was 	observed 	during 	working 	hours 	at
a 	school 	other 	than 	the 	one 	at 	which 	he 	taught, 	passing 	out
cards 	which 	the 	witness 	testified 	related 	to 	decertification
of 	the 	Association.
However, 	no 	evidence 	was 	offered 	that 	the 	District 	had
provided 	released 	time 	to 	either 	teacher 	to 	work 	for 	the
Federation. 	On 	the 	contrary, 	one 	teacher 	was 	about 	15 	minutes
late 	to 	work 	and 	the 	other 	reported 	that 	he 	had 	been 	absent
for 	illness 	on 	the 	days 	they 	apparently 	electioneered 	for 	the
Federation.
When 	the 	Association 	complained 	of 	these 	acts 	to 	the
principal, 	it 	did 	not 	even 	give 	the 	name 	of 	the 	teacher 	who 	had
reported 	in 	ill. 	It 	did 	give 	the 	principal 	the 	name 	of 	the
teacher 	who 	was 	late 	and 	the 	principal's 	response 	was 	that 	"••o
he 	would 	clip 	(that 	teacher's) 	wingso" 	Thus, 	the 	Association
not 	only 	offered no 	evidence 	of 	prior 	notice 	of 	the 	proposed
electioneering, 	but 	the 	evidence 	even 	indicated 	that 	the
District, 	when 	notified, 	indicated 	an 	intention 	to 	stop 	any
such 	abuses.
Based 	on 	the 	evidence 	received 	on 	this 	issue, 	it 	is 	found
that 	the 	cards 	passed 	out 	by 	the_first 	teacher 	related 	to
decertification 	of 	the 	Association 	and 	that 	both 	teachers 	used
-11-

what should have been working time to campaign on behalf of
the Federation. However the Association has totally failed
to meet its burden of proof of District complicity in these
actions by the two teachers, and therefore it must be found
that the District had no connection with them.
D. 	The agenda
Part of the teachers' duties at one of the District's
schools was attendance at a faculty meeting held twice a month
after the last class of the day. That school's principal
prepared the agenda for the May 8, 1979 meeting and included
on it as the first item a presentation by the Federation. 	It
was stipulated by all parties and it is found that the
principal was a managerial or supervisory employee of the
District. 	At the meeting two representatives of the
Federation were introduced by the principal, spoke to the
teachers for about 15 minutes, and answered questions. 	The
topic of their presentation was how the Federation "might be
able to do a better job representing the teachers" than the
Association was doing. At the conclusion of their
presentation, they placed decertification cards on the tables
at which the teachers were sitting and stated that they would
wait until after the meeting to answer any further questions.
Neither the Association nor any other group not directly
associated with teachers' school duties had ever appeared on
the agenda or made a presentation.
-12-
what 	should 	have 	been 	working 	time 	to 	campaign 	on 	behalf 	of
the 	Federation. 	However 	the 	Association 	has 	totally 	failed
to 	meet 	its 	burden 	of 	proof 	of 	District 	complicity 	in 	these
actions 	by 	the 	two 	teachers, 	and 	therefore 	it 	must 	be 	found
that 	the 	District 	had 	no 	connection 	with 	them.
D. 	The 	agenda
Part 	of 	the 	teachers' 	duties 	at 	one 	of 	the 	District's
schools 	was 	attendance 	at 	a 	faculty 	meeting 	held 	twice 	a 	month
after 	the 	last 	class 	of 	the 	day. 	That 	school's 	principal
prepared 	the 	agenda 	for 	the 	May 	8, 	1979 	meeting 	and 	included
on 	it 	as 	the 	first 	item 	a 	presentation 	by 	the 	Federation. 	It
was 	stipulated 	by 	all 	parties 	and 	it 	is 	found 	that 	the
principal 	was 	a 	managerial 	or 	supervisory 	employee 	of 	the
District. 	At 	the 	meeting 	two 	representatives 	of 	the
Federation 	were 	introduced 	by 	the 	principal, 	spoke 	to 	the
teachers 	for 	about 	15 	minutes, 	and 	answered 	questions. 	The
topic 	of 	their 	presentation 	was 	how 	the 	Federation 	"might 	be
able 	to 	do 	a 	better 	job 	representing 	the 	teachers" 	than 	the
Association 	was 	doing. 	At 	the 	conclusion 	of 	their
presentation, 	they 	placed 	decertification 	cards 	on 	the 	tables
at 	which 	the 	teachers 	were 	sitting 	and 	stated 	that 	they 	would
wait 	until 	after 	the 	meeting 	to 	answer 	any 	further 	questions.
Neither 	the 	Association 	nor 	any 	other 	group 	not 	directly
associated 	with 	teachers' 	school 	duties 	had 	ever 	appeared 	on
the 	agenda 	or 	made 	a 	presentation.
-12-

The principal testified that, although the Federation
presentation was made at a teachers' meeting at which
attendance had always been mandatory, nevertheless he told one
of the teachers that she did not have to listen to it and that
he told the group of teachers assembled that, "Those that were
interested could listen. " A teacher who attended the meeting
testified that no one told her that the Federation presentation
was anything other than an agenda item at a mandatory meeting.
Based on all evidence received on this issue, it is found
that the principal knew or reasonably should have known that
the Federation would use its place on the agenda to campaign on
behalf of the Federation, the principal did not say to anyone
that the teachers did not have to listen to the Federation
presentation, and even if the principal had stated that the
teachers did not have to listen, since their attendance was
mandatory, they had no real alternative but to listen.
(4) THE DISTRICT'S GOOD FAITH
Formal negotiations on a successor contract began March 2,
1979. Approximately one week before that time, the District's
chief negotiator, Kenneth Caves (hereafter Caves) , announced
that he was resigning from the District's employment. However,
at that first meeting, he assured the Association that he had
full authority to negotiate on behalf of the District.
One of the first subjects of discussion at the meeting was
ground rules for negotiations. Over a series of previous
-13-
The
	principal
	testified
	that,
	although 	the 	Federation
presentation
	was 	made
	at
	a
	teachers'
	meeting
	at
	which
attendance
	had
	always 	been
	mandatory,
	nevertheless
	he
	told
	one
of
	the
	teachers
	that
	she
	did 	not
	have
	to
	listen
	to
	it
	and
	that
he
	told
	the
	group
	of
	teachers
	assembled
	that,
	"Those
	that
	were
interested
	could
	listen."
	A
teacher
	who
	attended
	the
	meeting
testified
	that
	no 	one
	told
	her
	that
	the 	Federation
	presentation
was
	anything
	other
	than
	an
	agenda
	item
	at
	a
	mandatory
	meeting.
Based
	on
	all
	evidence
	received
	on
	this
	issue,
	it
	is
	found
that
	the
	principal
	knew
	or
	reasonably 	should
	have 	known
	that
the 	Federation
	would
	use
	its
	place
	on
	the
	agenda
	to
	campaign 	on
behalf
	of 	the
	Federation, 	the
	principal
	did
	not 	say
	to
	anyone
that
	the
	teachers
	did 	not
	have
	to
	listen
	to 	the 	Federation
presentation,
	and 	even
	if
	the
	principal
	had
	stated 	that
	the
teachers
	did 	not
	have
	to
	listen,
	since
	their
	attendance
	was
mandatory, 	they
	had 	no
	real 	alternative
	but
	to
	listen.
(4)
	THE
	DISTRICT'S
	GOOD
	FAITH
Formal
	negotiations
	on 	a
	successor
	contract
	began 	March
	2,
1979. 	Approximately
	one 	week
	before
	that
	time, 	the
	District's
chief 	negotiator,
	Kenneth Caves
	(hereafter
	Caves),
	announced
that
	he 	was
	resigning
	from
	the
	District's
	employment. 	However,
at 	that
	first
	meeting,
	he
	assured 	the 	Association 	that
	he 	had
full 	authority 	to 	negotiate
	on
	behalf 	of 	the
	District.
One
	of 	the
	first
	subjects 	of 	discussion 	at
	the 	meeting
	was
ground
	rules 	for 	negotiations.
	Over 	a
	series 	of 	previous
-13-

negotiations, the parties had agreed upon a set of ground rules
although they were not reduced to writing. At this first
meeting, with some easily-agreed minor changes, the previous
ground rules were carried over into the negotiations on the
successor contract. 	Once this procedural matter was settled,
the parties began a discussion of substantive proposals.
In an effort to obtain a negotiator to replace Caves, the
District contacted five different firms or individuals, one of
whom had previous experience with the District. Some of the
five were residents of the Stockton area. Only one proposal
was received in answer to these contacts. 	Two of the five even
stated that they did not wish to become involved because of the
history of employer-employee relations problems between the
parties. 	The one proposal the District received was from
John Crossett (hereafter Crossett) , who then lived in Southern
California but was in the process of moving to within driving
distance of the District. Crossett told the District that he
wished to take a long-planned vacation with his wife during
April and the District acceded to this request when it hired
him.
On April 4, 1979, before his vacation, Crossett met the
Association negotiating team for the first time. Crossett
stated that he would be available to begin negotiations on
April 26, 1979 from 9:00 a.m. to 3:00 p.m. He stated that the
first order of business would be the establishment of ground
-14-
negotiations,
	the
	parties
	had
	agreed
	upon 	a
	set
	of
	ground
	rules
although
	they
	were
	not
	reduced
	to 	writing.
	At
	this
	first
meeting,
	with
	some
	easily-agreed
	minor
	changes, 	the
	previous
ground
	rules
	were
	carried
	over
	into
	the
	negotiations
	on
	the
successor
	contract.
	Once
	this
	procedural 	matter
	was
	settled,
the
	parties
	began
	a
	discussion 	of 	substantive 	proposals.
In
	an
	effort
	to 	obtain
	a
	negotiator 	to 	replace
	Caves,
	the
District
	contacted 	five
	different
	firms 	or
	individuals,
	one
	of
whom
	had
	previous 	experience
	with
	the
	District.
	Some
	of
	the
five
	were
	residents
	of
	the
	Stockton
	area.
	Only 	one
	proposal
was
	received 	in
	answer
	to 	these
	contacts.
	Two
	of 	the 	five
	even
stated 	that
	they 	did 	not
	wish
	to
	become
	involved 	because
	of 	the
history
	of
	employer-employee
	relations
	problems 	between
	the
parties.
	The
	one
	proposal 	the
	District
	received
	was 	from
John
	Crossett 	(hereafter
	Crossett),
	who
	then
	lived 	in
	Southern
California
	but
	was
	in 	the 	process 	of
	moving
	to
	within 	driving
distance
	of
	the
	District.
	Crossett 	told 	the
	District 	that
	he
wished
	to 	take
	a
	long-planned 	vacation
	with
	his
	wife 	during
April
	and
	the
	District
	acceded
	to 	this
	request
	when
	it
	hired
him. 
On
	April
	4, 	1979,
	before 	his 	vacation, 	Crossett
met
	the
Association 	negotiating
	team
	for 	the
	first
	time. 	Crossett
stated 	that
	he 	would 	be
	available 	to
	begin 	negotiations
	on
April 	26, 	1979 	from 	9:00 	a.m.
	to
	3:00 	p.m.
	He
	stated 	that 	the
first
	order 	of 	business
	would 	be
	the 	establishment 	of 	ground
-14-

rules. He handed a set of his proposed ground rules to the
Association team and suggested that they be ready to discuss
them at the April 26, 1979 meeting.
The Association objected to the delay of over three weeks
between meetings and also told Crossett that agreement had
already been reached on ground rules, so further discussion on
this topic was unnecessary. The three-week hiatus was
Crossett's vacation time.
One interim meeting during the three-week period was
attempted. 	On April 6, 1979, the attorney for the District met
with the Association but was only authorized to negotiate the
school calendar. The Association met with the attorney but
refused to negotiate this one subject separately from other
issues. 	The Association again requested additional meetings
but none were set before the already-scheduled April 26, 1979
meeting .
At the April 26, 1979 meeting, Crossett made it clear that
he did not intend even to discuss substantive proposals until
written and initialed agreement had been reached on ground
rules. 	Crossett carried out this intention and, in fact, never
did discuss any substantive proposals at any time during the
remainder of the negotiating sessions.
For the Association's part, it took the position that
ground rules had already been established and that further
discussion was unnecessary. The Association maintained this
-15-
rules. 	He 	handed 	a 	set 	of 	his 	proposed 	ground 	rules 	to 	the
Association 	team 	and 	suggested 	that 	they 	be 	ready 	to 	discuss
them 	at 	the 	April 	26, 	1979 	meeting.
The 	Association 	objected 	to 	the 	delay 	9f 	over 	three 	weeks
between meetings 	and 	also 	told 	Crossett 	that 	agreement 	had
already 	been 	reached 	on 	ground 	rules, 	so 	further 	discussion 	on
this 	topic 	was 	unnecessary. 	The 	three-week 	hiatus 	was
Crossett's 	vacation 	time.
One 	interim meeting 	during 	the 	three-week 	period 	was
attempted. 	On 	April 	6, 	1979, 	the 	attorney 	for 	the 	District 	met
with 	the 	Association 	but 	was 	only 	authorized 	to 	negotiate 	the
school 	calendar. 	The 	Association 	met 	with 	the 	attorney 	but
refused 	to 	negotiate 	this 	one 	subject 	separately 	from 	other
issues. 	The 	Association 	again 	requested 	additional 	meetings
but 	none 	were 	set 	before 	the 	already-scheduled 	April 	26, 	1979
meeting.
At 	the 	April 	26, 	1979 	meeting, 	Crossett 	made 	it 	clear 	that
he 	did 	not 	intend 	even 	to 	discuss 	substantive 	proposals 	until
written 	and 	initialed 	agreement 	had 	been 	reached 	on 	ground
rules. 	Crossett 	carried 	out 	this 	intention 	and, 	in 	fact, 	never
did 	discuss 	any 	substantive 	proposals 	at 	any 	time 	during 	the
remainder 	of 	the 	negotiating 	sessions.
For 	the 	Association's 	part, 	it 	took 	the 	position 	that
ground 	rules 	had 	ready 	been 	established 	and 	that 	further
discussion 	was 	unnecessary. 	The 	Association 	maintained 	this
-15-

position throughout the remainder of the negotiating sessions.
This situation resulted in discussions which even the
parties characterized as absurd. For example, at this meeting
the process degenerated to one in which the District asked a
question regarding ground rules, the Association refused to
answer but countered with a question regarding substance, the
District refused to answer but countered with another question
regarding ground rules, and so forth.
The next meeting was held April 30, 1979. In discussing
this meeting, the Association's chief negotiator testified:
I proceeded in a, which probably would be
comical if it were possible to play it back,
I would ask a question about Article I, he
would ask a question about ground rule one,
I would ask a question about Article II.
And we got through, I believe, Article XVI
in that fashion. Mr. Crossett talking about
ground rules interspersed with my talking
about contract proposals.
A meeting was scheduled for May 7, 1979. The Association
wanted the meeting to be held at the Association's premises in
accordance with the previously-agreed ground rules regarding
alternate sites. Since the District took the position that
ground rules were not yet agreed, it did not feel obliged to
have the meeting at the Association's premises. This matter
was not resolved between the parties and was left with the
Association's chief negotiator stating that he would be at the
Association's premises awaiting the arrival of the District
team. 	Crossett responded by saying he hoped the Association
-16-
position
	throughout 	the
	remainder
	of 	the
	negotiating
	sessions.
This
	situation
	resulted 	in 	discussions
	which
	even
	the
parties
	characterized
	as
	absurd.
	For
	example,
	at 	this
	meeting
the 	process
	degenerated
	to
	one
	in
	which
	the
	District
	asked
	a
question
	regarding
	ground
	rules,
	the 	Association 	refused
	to
answer
	but 	countered 	with
	a
	question
	regarding 	substance,
	the
District
	refused 	to
	answer
	but 	countered
	with 	another
	question
regarding
	ground
	rules,
	and
	so
	forth.
The
	next
	meeting
	was
	held 	April
	30,
	1979. 	In
	discussing
this
	meeting, 	the
	Association's 	chief 	negotiator
	testified:
I
	proceeded
	in
	a,
	which
	probably
	would 	be
comical
	if
	it
	were
	possible 	to
	play
	it
	back,
I 	would
	ask
	a
	question
	about
	Article
	I,
	he
would
	ask
	a
	question
	about
	ground
	rule
	one,
I 	would
	ask
	a
	question
	about
	Article
	II.
And
	we
	got 	through,
	I
	believe, 	Article
	XVI
in
	that
	fashion.
	Mr.
	Crossett 	talking
	about
ground
	rules 	interspersed
	with
	my
	talking
about
	contract 	proposals.
A
meeting
	was
	scheduled 	for
	May
	7,
	1979.
	The
	Association
wanted
	the
	meeting
	to
	be
	held
	at
	the 	Association's
	premises 	in
accordance 	with 	the 	previously-agreed
	ground
	rules
	regarding
alternate 	sites.
	Since
	the
	District
	took 	the
	position 	that
ground
	rules
	were
	not 	yet 	agreed,
	it
	did 	not
	feel
	obliged
	to
have
	the 	meeting
	at
	the 	Association's 	premises. 	This
	matter
was
	not 	resolved
	between
	the
	parties
	and 	was
	left
	with 	the
Association's 	chief 	negotiator 	stating 	that
	he 	would 	be
	at 	the
Association's 	premises 	awaiting 	the
	arrival
	of 	the
	District
team.
	Crossett
	responded 	by
	saying
	he 	hoped
	the 	Association
-16-

team didn't wait too long. The Association team received
released time for the meeting and thus arrived at its premises
at around 10:00 a.m. 	They waited there until past 3:00 p.m.
when they were notified that the District's team was meeting
at the District premises. Neither side relented and so no
meeting was held that date.
Five additional meetings were held up through June 4,
1979. At all these meetings, the Association refused to
negotiate over ground rules, but it did at least discuss the
subject of ground rules by saying that the subject was already
agreed and thus closed and by stating orally what it thought
the ground rules were.
At all of these meetings, the District refused even to
discuss, much less negotiate, any substantive proposal until
new agreement was reached on ground rules, that agreement was
reduced to writing and the parties had initialed it.
Based on all evidence received on this issue, it is found
that the District acted expeditiously in obtaining a
replacement for Caves, that the District's selection of a
negotiator from out of the area who had a vacation planned was
reasonable considering the District's limited options, and
that the delay in negotiations because of Crossett's vacation
was not unreasonable under the circumstances. However it is
further found that Crossett reneged on Caves' agreement
regarding ground rules, that throughout negotiations Crossett
-17-
team
didn't
	wait 	too 	long.
	The
	Association
	team
	received
released
	time
	for
	the
	meeting
	and
	thus
	arrived
	at
	its
	premises
at
	around
	10:00
	a.m.
	They
	waited
	there
	until
	past
	3:00 	p.m.
when
	they
	were
	notified 	that
	the
	District's
	team 	was
	meeting
at
	the
	District
	premises. 	Neither
	side
	relented
	and
	so
	no
meeting
	was
	held
	that
	date.
Five
	additional
	meetings
	were
	held
	up
	through 	June
	4,
1979.
	At
	all
	these 	meetings, 	the 	Association 	refused
	to
negotiate
	over 	ground
	rules,
	but
	it
	did
	at 	least
	discuss
	the
subject
	of
	ground
	rules
	by
	saying
	that
	the
	subject
	was
	already
agreed
	and
	thus 	closed
	and 	by
	stating 	orally
	what
	it
	thought
the
	ground
	rules
	were.
At
	all
	of 	these 	meetings, 	the
	District
	refused
	even
	to
discuss,
	much
	less 	negotiate,
	any
	substantive 	proposal
	until
new
	agreement
	was
	reached
	on
	ground
	rules, 	that
	agreement
	was
reduced
	to 	writing
	and
	the
	parties
	had
	initialed
	it.
Based 	on
	all
	evidence
	received
	on
	this
	issue,
	it
	is
	found
that
	the
	District
	acted 	expeditiously 	in 	obtaining
	a
replacement 	for 	Caves,
	that
	the
	District's
	selection
	of
	a
negotiator
	from
	out 	of 	the 	area
	who 	had 	a
	vacation 	planned
	was
reasonable 	considering 	the
	District's
	limited 	options,
	and
that
	the 	delay 	in .negotiations 	because
	of 	Crossett's 	vacation
was
	not 	unreasonable 	under 	the 	circumstances.
	However
	it
	is
further
	found
	that 	Crossett. reneged 	on Caves' 	agreement
regarding 	ground
	rules, 	that 	throughout 	negotiations 	Crossett
-17-

conditioned the opening of discussions on substantive
proposals upon the reaching of written and initialed agreement
regarding ground rules, and that Crossett refused to abide by
the alternate meeting site agreement.
(5) THE ASSOCIATION'S GOOD FAITH
The District's charge against the Association is basically
the reverse of the Association's charge against the District.
The parties agree and it is found that the Association refused
to renegotiate ground rules as insisted by the District.
ISSUES
1. Did the District violate section 3543.5 (a) , (b) and
(c) by refusing to furnish to the Association its cost of
providing health insurance benefits?
2. Did the District violate section 3543.5 (a) , (b) and
(c) by unilateral institution of the sign-in sign-out
procedure?
3. Did the District violate section 3543.5(a) , (b) and
(c) by unilateral institution of increased yard duty?
4. Did the District violate section 3543.5(a) , (b) and
(c) by unilateral institution of the program management
checklist?
5. Did the District violate section 3543.5(a) , (b) , (c)
and (d) by furnishing to the Federation information regarding
the dates of the decertification window period in the
Association's contract?
-18-
conditioned 	the 	opening 	of 	discussions 	on 	substantive
proposals 	upon 	the 	reaching 	of 	written 	and 	initialed 	agreement
regarding 	ground 	rules, 	and 	that 	Crossett 	refused 	to 	abide 	by
the 	alternate 	meeting 	site 	agreement.
(5) 	THE 	ASSOCIATION'S 	GOOD 	FAITH
The 	District's 	charge 	against 	the 	Association 	is 	basically
the 	reverse 	of 	the 	Association's 	charge 	against 	the 	District.
The 	parties 	agree 	and 	it 	is 	found 	that 	the 	Association 	refused
to 	renegotiate 	ground 	rules 	as 	insisted 	by 	the 	District.
ISSUES
1. 	Did 	the 	District 	violate 	section 	3543.5 (a), 	(b) 	and
(c) 	by 	refusing 	to 	furnish 	to 	the 	Association 	its 	cost 	of
providing 	health 	insurance 	benefits?
2. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b) 	and
(c) 	by 	unilateral 	institution 	of 	the 	sign-in 	sign-out
procedure?
3. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b) 	and
(c) 	by 	unilateral 	institution 	of 	increased 	yard 	duty?
4. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b) 	and
(c) 	by 	unilateral 	institution 	of 	the 	program 	management
checklist?
5. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b), 	(c)
and 	(d) 	by 	furnishing 	to 	the 	Federation 	information 	regarding
the 	dates 	of 	the 	decertification 	window 	period 	in 	the
Association's 	contract?
-18-

6. Did the District violate section 3543.5 (a) , (b) , (c)
and (d) by furnishing to the Federation mailing labels
containing the names and addresses of consenting unit members?
7. Did the District violate section 3543.5 (a) , (b) , (c)
and (d) in relation to the electioneering efforts of the two
teachers who were Federation supporters?
8. Did the District violate section 3543.5 (a) , (b) , (c)
and (d) by furnishing to the Federation agenda time at a
mandatory teachers' meeting?
9 . Did the District violate section 3543.5 (a) , (b) and
(c) by failing and refusing to negotiate in good faith with
the Association?
10. Did the Association violate section 3543.6 (a) and (c)
by failing and refusing to negotiate in good faith with the
District?
DISCUSSION AND CONCLUSIONS OF LAW
(1) THE REFUSAL TO PROVIDE INFORMATION
It is the general rule that an employer must furnish to an
employee organization, upon its request, information in its
possession which is necessary and relevant to the employee
organization in discharging its obligations. 	(Santa Monica
College Part-Time Faculty Association, CTA/NEA v. Santa Monica
Community College District; Santa Monica College Faculty
Association, Intervenor (9/21/79) Public Employment Relations
Board (hereafter PERB) Decision No. 103.)
-19-
6. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b), 	(c)
and 	(d) 	by 	furnishing 	to 	the 	Federation mailing 	labels
containing 	the 	names 	and 	addresses 	of 	consenting 	unit 	members?
7. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b), 	(c)
and 	(d) 	in 	relation 	to 	the 	electioneering 	efforts 	of 	the 	two
teachers 	who 	were 	Federation 	supporters?
8. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b), 	(c)
and 	{d) 	by 	furnishing 	to 	the 	Federation ·agenda time 	at 	a
mandatory 	teachers' 	meeting?
9. 	Did 	the 	District 	violate 	section 	3543.S(a), 	(b) 	and
(c) 	by 	failing 	and 	refusing 	to 	negotiate 	in 	good 	faith 	with
the 	Association?
10. 	Did 	the 	Association 	violate 	section 	3543.6(a) 	and 	(c)
by 	failing 	and 	refusing 	to 	negotiate 	in 	good 	faith 	with 	the
District?
DISCUSSION 	AND 	CONCLUSIONS 	OF 	LAW
(1) 	THE 	REFUSAL 	TO 	PROVIDE 	INFORMATION
It 	is 	the 	general 	rule 	that 	an 	employer 	must 	furnish 	to 	an
employee 	organization, 	upon 	its 	request, 	information 	in 	its
possession 	which 	is 	necessary 	and 	relevant 	to 	the 	employee
organization 	in 	discharging 	its 	obligations. 	(Santa Monica
College 	Part-Time 	Faculty Association, 	CTA/NEA v. 	Santa 	Monica
Community College 	District; 	Santa Monica 	College 	Faculty
Association, 	Intervenor 	(9/21/79) 	Public 	F.moloyment 	Relations
Board 	(hereafter 	PERB) 	Decision No. 	103.)
-19-

In determining whether the health benefit cost requested
in this was case was necessary and relevant, two cases arising
under the National Labor Relations Act (hereafter NLRA) ,
as amended, involving a union's request for employer dis-
closure of the employer's cost of providing fringe benefits are
instructive. They are Sylvania Electric Products, Inc. v.
NLRB (1st Cir. 1961) 291 F. 2d 128 [48 LRRM 2313] cert. den.
(1961) 368 U.S. 926 [49 LRRM 2173], and Sylvania Electric
Products, Inc. v. NLRB (1st Cir. 1966) 358 F. 2d 591 [61 LRRM
2657] .
The first Sylvania case, denying disclosure, states:
. Although the benefits accruing to
employees from such plans constituted "wages
that must be precisely disclosed and as to
which the employer must bargain, the cost to
the employer was not.
Since the parties did tentatively agree to continue the status
quo regarding health benefits with the District paying the
full cost thereof, the District argues that this brings the
instant case within the holding of the first Sylvania case.
However, the execution of a tentative agreement did not change
the necessity and relevancy of the requested information. 	In
NLRB v. Yawman and Erbe Manufacturing Co. (1951) 187 F. 2d 947
[27 LRRM 2524] and NLRB v. Fitzgerald Mills Corporation (1963)
313 F. 2d 260 [52 LRRM 2174], it was held that even execution
of a binding contract without receipt of the requested
information does not render the information irrelevant, since
-20-
In 	determining 	whether 	the 	health 	benefit 	cost 	requested
in 	this 	was 	case 	was 	necessary 	and 	relevant, 	two 	cases 	arising
under 	the 	National 	Labor 	Relations 	Act 	(hereafter 	NLRA),
as 	amended, 	involving 	a 	union's 	request 	for 	employer 	dis-
closure 	of 	the 	employer's 	cost 	of 	nroviding 	fringe 	benefits 	are
instructive. 	They 	are 	Sylvania 	Electric 	Products, 	Inc. 	v.
NLRB 	(1st 	Cir. 	1961) 	291 	F.2d 	128 	[48 	LRRM 	2313] 	cert. 	den.
(1961) 	368 	U.S. 	926 	[49 	LRRM 	2173], 	and 	Sylvania 	Electric
Products, 	Inc. 	v. 	NLRB 	(1st 	Cir. 	1966) 	358 	F.2d 	591 	[61 	LRRM
2657].
The 	first 	Sylvania 	case, 	denying 	disclosure, 	states:
... 	Although 	the 	benefits 	accruing 	to
employees 	from 	such 	plans 	constituted 	"wages
that 	must 	be 	precisely 	disclosed 	and 	as 	to
which 	the 	employer 	must 	bargain, 	the 	cost 	to
the 	employer 	was 	not.
Since 	the 	parties 	did 	tentatively 	agree 	to 	continue 	the 	status
quo 	regarding 	health 	benefits 	with 	the 	District 	paying 	the
full 	cost 	thereof, 	the 	District 	argues 	that 	this 	brings 	the
instant 	case 	within 	the 	holding 	of 	the 	first 	Sylvania 	case.
However, 	the 	execution 	of 	a 	tentative 	agreement 	did 	not 	change
the 	necessity 	and 	relevancy 	of 	the 	requested 	information. 	In
NLRB 	v. 	Yawman 	and 	Erbe 	Manufacturing 	Co. 	(1951) 	187 	F.2d 	947
[27 	LRRM 	2524) 	and 	NLRB 	v. 	Fitzgerald Mills 	Corporation 	(1963)
313 	F.2d 	260 	[52 	LRRM 	2174], 	it 	was 	held 	that 	even 	execution
of 	a 	binding 	contract 	without 	receipt 	of 	the 	requested
information 	does 	not 	render 	the 	information 	irrelevant, 	since
-20-

the union may simply have decided that the advantages of a
contract in hand would outweigh those which it might enjoy
with all the information available to it.
The second Sylvania case, enforcing a disclosure order
states:
However, when the union makes the same
demand in order better to evaluate the
desirability of an increase in welfare
benefits as against an equivalent increase
in take-home pay, matters as to which the
employer must bargain, the Board might
properly conclude that the information,
though collateral, was so necessary to
effective negotiation that withholding it
without good reason was inconsistent with
the duty to "exert every reasonable effort
to make and maintain agreements."
(Citation omitted. )
The order of the Board will be enforced.
(27 LRRM at p. 2659)
Here, since it was found that the Association requested
the information in order to be able to evaluate whether to
make a proposal to convert health benefit monies to salary, it
is concluded that the information regarding the District's
cost of providing health insurance benefits was relevant and
necessary for the Association properly to fulfill its role as
a party to the negotiations. It is thus concluded that the
District's obligation to negotiate in good faith required it
to furnish this information to the Association and its refusal
to do so constituted a breach of its obligation under
3543.5(c) to negotiate in good faith.
-21-
the
	union
	may
	simply
	have
	decided
	that
	the 	advantages 	of
	a
contract
	in
	hand 	would
	outweigh
	those
	which
	it
	might
	enjoy
with
	all
	the 	information
	available 	to
	it.
The
	second
	Sylvania
	case,
	enforcing
	a
	disclosure
	order
states:
However, 	when
	the
	union
	makes
	the
	same
demand
	in
	order
	better
	to 	evaluate 	the
desirability
	of
	an
	increase 	in
	welfare
benefits
	as
	against
	an
	equivalent 	increase
in
	take-home
	pay,
	matters
	as
	to
	which
	the
employer 	must
	bargain, 	the
	Board might
properly
	conclude
	that
	the 	information,
though
	collateral,
	was
	so
	necessary
	to
effective
	negotiation
	that
	withholding
	it
without
	good
	reason
	was
	inconsistent
	with
the 	duty
	to 	"exert
	every 	reasonable
	effort
to
	make 	and
	maintain 	agreements."
(Citation 	omitted.)
The
	order 	of 	the
	Board
	will
	be
	enforced.
(27
	LRRM
	at
	p.
	2659)
Here,
	since
	it
	was 	found
	that
	the 	Association 	requested
the 	information 	in 	order 	to
	be
	able 	to 	evaluate
	whether
	to
make 	a
	proposal 	to 	convert
	health 	benefit
	monies
	to 	salary,
	it
is
	concluded
	that
	the 	information 	regarding 	the
	District's
cost
	of 	providing 	health 	insurance
	benefits
	was
	relevant
	and
necessary 	for 	the 	Association 	properly
	to
	fulfill 	its
	role
	as
a
	party 	to
	the
	negotiations.
	It
	is
	thus 	concluded
	that 	the
District's
	obligation 	to 	negotiate 	in
	good
	faith
	required
	it
to 	furnish 	this
	information 	to 	the 	Association
	and
	its
	refusal
to
	do 	so
	constituted
	a
	breach 	of
	its
	obligation
	under
3543.S{c)
	to 	negotiate 	in
	good
	faith.
-21-

This act also constitutes a 3543.5 (b) violation in that
refusing to furnish the Association information necessary and
relevant to negotiations denies the Association its right
properly to represent the employees.
It also constitutes a 3543.5(a) violation in that refusing
to furnish the Association information necessary and relevant
to negotiations interferes with employees because of their
exercise of their right to select an exclusive representative
to meet and negotiate with the employer on their behalf by
denying to the exclusive representative information necessary and
relevant to its performance of its duty to represent members
of the negotiating unit.
(2) UNILATERAL CHANGES
The scope of representation under EERA is stated in
section 3543.2 and includes the subjects of "hours" and,
within the limited definition of the terms and conditions of
employment, the subject of "procedures to be used for the
evaluation of employees."
In Pajaro Valley Education Association, CTA/NEA v. Pajaro
Valley Unified School District (5/22/78) PERB Decision No. 51,
PERB has held that a unilateral change in a subject within the
scope of representation constitutes a per se violation of the
duty to negotiate. So each of the acts of the District must
be analyzed to determine whether or not they constitute a
change and whether the subject is within the scope of
representation.
A. Sign-in sign-out procedures and increased yard duty
Two PERB cases have addressed the subject of unilateral
change in duties. They are Palos Verdes Faculty Association
- 22-
This
	act
	also
	constitutes
	a
	3543.5(b)
	violation
	in
	that
refusing 	to 	furnish
	the
	Association 	information 	necessary
	and
relevant
	.to
	negotiations
	denies 	the 	Association
	its
	right
properly 	to 	represent
	the 	employees.
It
	also
	constitutes
	a
	3543.S(a)
	violation
	in
	that 	refusing
to
	furnish
	the 	Association 	information necessary
	and
	relevant
to
	negotiations
	interferes
	with
	employees
	b~cause
	of
	their
exercise 	of
	their 	right
	to
	select
	an
	exclusive
	representative
to
	meet 	and
	negotiate
	with 	the
	employer
	on
	their
	behalf
	by
denying
	to 	the 	exclusive
	representative
	information necessary
	and
relevant
	to
	its
	performance
	of
	its
	duty
	to
	represent
	members
of
	the
	negotiating
	unit.
(2)
	UNILATERAL
	CHANGES
The
	scope
	of
	representation
	under
	EERA
	is
	stated
	in
section 	3543.2
	and
	includes 	the
	subjects 	of
	"hours" 	and,
within 	the
	limited 	definition
	of 	the 	terms
	and
	conditions 	of
employment,
	the
	subject 	of 	"procedures
	to
	be
	used
	for 	the
evaluation 	of 	employees."
In 	Pajaro Valley 	Education
	Association,
	CTA/NEA
	v. 	Pajaro
Valley Unified
	School
	District
	(5/22/78)
	PERB
	Decision
	No.
	51,
PERB
	has 	held
	that
	a
	unilateral
	change
	in
	a
	subject 	within 	the
scope 	of 	representation 	constitutes
	a
	per 	se
	violation
	of 	the
duty 	to 	negotiate.
	So
	each 	of 	the 	acts 	of 	the
	District
	must
be
	analyzed 	to 	determine 	whether 	or 	not 	they
	constitute
	a
change 	and 	whether 	the 	subject 	is
	within 	the 	scope 	of
representation.
A.
	Sign-in 	sign-out 	procedures 	and 	increased 	yard 	duty
Two 	PERB 	cases 	have 	addressed 	the 	subject 	of 	unilateral
change 	in 	duties. 	They 	are 	Palos 	Verdes 	Faculty Association
-,~2-

v. Palos Verdes Peninsula Unified School District,
consolidated with Pleasant Valley School District Education
Association v. Pleasant Valley School District (7/16/79) PERB
Decision No. 96; and Fullerton Union High School District
Personnel and Guidance Association v. Fullerton Union High
School District (5/30/78) PERB Decision No. 53. Palos Verdes
holds that activities such as back-to-school night and open
house are within the scope of representation on the subject of
hours because they require teachers to perform duties after
school site time. Fullerton holds that an increase in
counselor case load to a level which cannot adequately be
performed is similarly within the scope of representation on
the subject of hours because counselors have a professional
obligation to provide at least a certain minimum level of
services to students, which obligation would not allow them
merely to reduce indefinitely the time spent per student.
Thus, the key question in determining whether the
assignment of a new duty is within the scope of representation
on the subject of hours is whether it adds to the work, if
any, a teacher must perform before or after school site time.
If it does, the change is within the scope of representation
but, if it does not, the change falls into the area of
assignment of duties within the school day and is outside the
scope of representation.
Thus, a district may unilaterally add duties up to the
point of totally consuming the school site time. If the
school site time is already totally consumed, a district may
add duties only by way of the negotiating process, or if it
also subtracts equal duties in another area. 	However , when
-23-
v. 	Palos 	Verdes 	Peninsula Unified 	School 	District,
consolidated 	with 	Pleasant Valley 	School 	District 	Education
Association 	v. 	Pleasant Valley 	School 	District 	(7/16/79) 	PERB
Decision No. 	96; 	and Fullerton Union High 	School 	District
Personnel 	and 	Guidance 	Association 	v. 	Fullerton Union 	High
School 	District 	(5/30/78) 	PERB 	Decision No. 	53. 	Palos Verdes
holds 	that 	activities 	such 	as 	back-to-school 	night 	and 	open
house 	are 	within 	the 	scope 	of 	representation 	on 	the 	subject 	of
hours 	because 	they 	require 	teachers 	to 	perform 	duties 	after
school 	site 	time. 	Fullerton 	holds 	that 	an 	increase 	in
counselor 	case 	load 	to 	a 	level 	which 	cannot 	adequately 	be
performed 	is 	similarly 	within 	the 	scope 	of 	representation 	on
the 	subject 	of 	hours 	because 	counselors 	have 	a 	professional
obligation 	to 	provide 	at 	least 	a 	certain 	minimum 	level 	of
services 	to 	students, 	which 	obligation 	would 	not 	allow 	them
merely 	to 	reduce 	indefinitely 	the 	time 	spent 	per 	student.
Thus, 	the 	key 	question 	in 	determining 	whether 	the
assignment 	of 	a 	new 	duty 	is 	within 	the 	scope 	of 	representation
on 	the 	subject 	of 	hours 	is 	whether 	it 	adds 	to 	the 	work, 	if
any, 	a 	teacher 	must 	perform 	before 	or 	after 	school 	site 	time.
If 	it 	does, 	the 	change 	is 	within 	the 	scope 	of 	representation
but, 	if 	it 	does 	not, 	the 	change 	falls 	into 	the 	area 	of
assignment 	of 	duties 	within 	the 	school 	day 	and 	is 	outside 	the
scope 	of 	representation.
Thus, 	a 	district 	may 	unilaterally 	add 	duties 	up 	to 	the
point 	of 	totally 	consuming 	the 	school 	site 	time. 	If 	the
school 	site 	time 	is 	already 	totally 	consumed, 	a 	district 	may
add 	duties 	only 	by 	way 	of 	the 	negotiating 	process, 	or 	if 	it
also 	subtracts 	equal 	duties 	in 	another 	area. 	However, 	when
-23-

the balancing reduction in duties is in the area of a
teacher's professional responsibility to students, as opposed
to clerical or housekeeping-type duties that do not involve
such professional responsibilities, Fullerton holds that a
district may not reduce duties below that which a teacher is
required by his professional responsibility to provide.
Since no proof was offered and no finding was made that
either the sign-in sign-out procedure or the increased yard
duty added to the work, if any, that teachers were required to
perform in non-school site time, or that these new duties
caused teachers to breach their professional obligations to
students, it is concluded that the District did not commit an
unfair practice by instituting these unilateral changes.
B. 	The evaluation procedure
Even accepting the District's contention that the
checklist procedure was intended solely as an aid to
principals in upgrading their evaluation skills and not as a
rating of teacher proficiency, nevertheless teachers are still
being evaluted under the new procedure. To be within the
scope of representation, the language of the EERA does not
require that the results of the "procedure" eventually be used
in the formal rating of teacher proficiency. It is sufficient
if a procedure provides for evaluation regardless of whether
the results of the evaluation are to be used further.
-24-
the 	balancing 	reduction 	in 	duties 	is 	in 	the 	area 	of 	a
teacher's 	professional 	responsibility 	to 	students, 	as 	opposed
to 	clerical 	or 	housekeeping-type 	duties 	that 	do 	not 	involve
such 	professional 	responsibilities, 	Fullerton 	holds 	that 	a
district 	may 	not 	reduce 	duties 	below 	that 	which 	a 	teacher 	is
required 	by 	his 	professional 	responsibility 	to 	provide.
Since 	no 	proof 	was 	offered 	and 	no 	finding 	was 	made 	that
either 	the 	sign-in 	sign-out 	procedure 	or 	the 	increased 	yard
duty 	added 	to 	the 	work, 	if 	any, 	that 	teachers 	were 	required 	to
perform 	in 	non-school 	site 	time, 	or 	that 	these 	new 	duties
caused 	teachers 	to 	breach 	their 	professional 	obligations 	to
students, 	it 	is 	concluded 	that 	the 	District 	did 	not 	commit 	an
unfair 	practice 	by 	instituting 	these 	unilateral 	changes.
B. 	The 	evaluation 	procedure
Even 	accepting 	the 	District's 	contention 	that 	the
checklist 	procedure 	was 	intended 	solely 	as 	an 	aid 	to
principals 	in 	upgrading 	their 	evaluation 	skills 	and 	not 	as 	a
rating 	of 	teacher 	proficiency, 	nevertheless 	teachers 	are 	still
being 	evaluted 	under 	the 	new 	procedure. 	To 	be 	within 	the
scope 	of 	representation, 	the 	language 	of 	the 	EERA does 	not
require 	that 	the 	results 	of 	the 	"procedure" 	eventually 	be 	used
in 	the 	formal 	rating 	of 	teacher 	proficiency. 	It 	is 	sufficient
if 	a 	procedure 	provides 	for 	evaluation 	regardless 	of 	whether
the 	results 	of 	the 	evaluation 	are 	to 	be 	used 	further.
-24-

In addition, even if it were somehow concluded that the
evaluation of teachers by use of the checklist was
insufficient to bring the checklist procedure within the scope
of representation, still the checklist procedure bears a close
relationship to the evaluation process. Under these
circumstances, it is appropriate to apply the tests for
determination of scope set down in Palos Verdes to the
checklist procedure to determine whether or not the closeness
of the relationship brings the checklist procedure within
scope .
These tests are as follows:
such a determination may also require
balancing of competing interests, not
merely an assessment of whether or not a
logical connection exists between the
enumerated topic and the proposed topic.
Under the latter situation, the
negotiability of a particular proposal would
depend on whether it relates primarily to
the specifically enumerated items found in
section 3543.2 or to matters of broader
educational policy in which the public's
interest is more substantial than that of
the public school employees.
and
1) Is the subject of such vital concern to
both management and employees that
controversy and conflict is likely to occur?
2) Is collective bargaining the appropriate
way of resolving that conflict? A factor in
answering the latter question is whether the
employer's obligation to negotiate would
"significantly abridge his freedom to manage
his business."
In applying the first of these tests, it seems obvious
that there is a logical connection between the checklist
-25-
In 	addition, 	even 	if 	it 	were 	somehow 	concluded 	that 	the
evaluation 	of 	teachers 	by 	use 	of 	the 	checklist 	was
insufficient 	to 	bring 	the 	checklist 	procedure 	within 	the 	scope
of 	representation, 	still 	the 	checklist 	procedure 	bears 	a 	close
relationship 	to 	the 	evaluation 	process. 	Under 	these
circumstances, 	it 	is 	appropriate 	to 	apply 	the 	tests 	for
determination 	of 	scope 	set 	down 	in 	Palos 	Verdes 	to 	the
checklist 	procedure 	to 	determine 	whethei or 	not 	the 	closeness
of 	the 	relationship 	brings 	the 	checklist 	procedure 	within
scope.
These 	tests 	are 	as 	follows:
... 	such 	a 	determination may 	also 	require
a 	balancing 	of 	competing 	interests, 	not
merely 	an 	assessment 	of 	whether 	or 	not 	a
logical 	connection 	exists 	between 	the
enumerated 	topic 	and 	the 	proposed 	topic.
Under 	the 	latter 	situation, 	the
negotiability 	of 	a 	particular 	proposal 	would
depend 	on 	whether 	it 	relates 	primarily 	to
the 	specifically 	enumerated 	items 	found 	in
section 	3543.2 	or 	to 	matters 	of 	broader
educational 	policy 	in 	which 	the 	public's
interest 	is 	more 	substantial 	than 	that 	of
the 	public 	school 	employees.
and
1) 	Is 	the 	subject 	of 	such 	vital 	concern 	to
both 	management 	and 	employees 	that
controversy 	and 	conflict 	is 	likely 	to 	occur?
2) 	Is 	collective 	bargaining 	the 	appropriate
way 	of 	resolving 	that 	conflict? 	A factor 	in
answering 	the 	latter 	question 	is 	whether 	the
employer's 	obligation 	to 	negotiate 	would
"significantly 	abridge 	his 	freedom 	to manage
his 	business."
In 	applying 	the 	first 	of 	these 	tests, 	it 	seems 	obvious
that 	there 	is 	a 	logical 	connection 	between 	the 	checklist
-25-

procedure which is purportedly designed to aid principals in
their teacher evaluation skills and the enumerated subject of
"procedures to be used for the evaluation of employees. " When
principals are told by management to upgrade their evaluation
skills by use of a checklist containing 47 items instead of
the 5 on the contract form, this is a very clear message that
management wants principals to evaluate teachers in terms of
these 47 items. 	This will have the inevitable effect of
causing principals to evaluate teachers in terms of the new
items and thus will shift the focus of the evaluation.
It must next be considered whether the checklist procedure
relates primarily to "procedures to be used for the evaluation
of employees" or to "matters of broader educational policy in
which the public's interest is more substantial than that of
the public school employees. " As discussed above, the
checklist procedure has a strong influence on how the contract
form is used and thus is strongly related to that enumerated
item. 	On the other hand, the checklist procedure bears some
relationship to the broader educational policy of assuring
teacher competence. However, every subject about which the
District and the Association are jointly concerned bears some
such relationship, and it does not appear that the
relationship here is sufficient to overcome the strong
relationship to an enumerated item.
In applying the second of these tests, it seems clear that
the checklist procedure is of such vital concern to both the
-26-
procedure
	which
	is
	purportedly
	designed
	to
	aid
	principals
	in
their
	teacher 	evaluation
	skills
	and
	the
	enumerated
	subject
	of
"procedures
	to
	be
	used
	for
	the
	evaluation
	of
	employees."
	When
principals
	are
	told
	by 	management
	to
	upgrade
	their
	evaluation
skills
	by
	use
	of
	a
	checklist
	containing
	47
	items
	instead
	of
the
	5 	on
	the
	contract
	form,
	this 	is
	a
	very
	clear
	message
	that
management
	wants
	principals
	to 	evaluate 	teachers 	in
	terms
	of
these
	47
	items.
	This
	will
	have
	the
	inevitable
	effect
	of
causing
	principals
	to 	evaluate 	teachers
	in
	terms 	of
	the
	new
items
	and
	thus
	will
	shift
	the 	focus
	of 	the
	evaluation.
It
	must
	next
	be
	considered
	whether
	the
	checklist
	procedure
relates
	primarily 	to
	"procedures
	to
	be
	used
	for
	the
	evaluation
of
	employees"
	or
	to
	"matters
	of 	broader
	educational 	policy 	in
which
	the
	public's 	interest 	is
	more
	substantial
	than
	that
	of
the
	public
	school 	employees."
	As
	discussed
	above,
	the
checklist
	procedure 	has
	a
	strong 	influence
	on
	how
	the
	contract
form
	is
	used
	and
	thus
	is
	strongly 	related 	to 	that
	enumerated
item.
	On
	the 	other
	hand,
	the
	checklist
	procedure 	bears
	some
relationship 	to
	the 	broader
	educational 	policy
	of 	assuring
teacher
	competence.
	However,
	every
	subject
	about
	which
	the
District
	and
	the 	Association 	are
	jointly
	concerned 	bears
	some
such
	relationship,
	and
	it
	does 	not 	appear
	that
	the
relationship
	here
	is 	sufficient 	to
	overcome
	the 	strong
relationship 	to
	an 	enumerated 	item.
In 	applying 	the 	second 	of 	these
	tests, 	it
	seems
	clear 	that
the 	checklist 	procedure
	is
	of 	such
	vital
	concern 	to 	both 	the
-26-

District and the Association that controversy and conflict are
likely to occur. As discussed, use of the checklist will
strongly influence how the contract form is filled out and
thus how teachers are evaluated. 	The rating of individual
teacher proficiency is of vital concern to the individual
teachers since it constitutes a judgment of their professional
abilities. Also, this rating is of vital concern to the
District because it is a tool which may be used to identify
weak performers so that their skills may be improved to the
benefit of the entire school system.
The give and take of collective bargaining seems the
appropriate way of resolving a conflict regarding a procedure
designed to improve the evaluating skills of principals. Even
though neither side is required to agree to any specific
proposal, bargaining over the issue will allow each side to
understand the other's motives and objectives, and will
facilitate the reaching of an accommodation which will satisfy
both sides. 	Bargaining over the institution of a checklist
evaluation procedure and its content certainly will not
significantly abridge the District's freedom to manage the
schools.
Applying these rules to the findings of fact on this
issue, it is first concluded that regardless of whether the
checklist results are used to rate teacher proficiency, since
teachers are evaluated, the checklist procedure is within the
scope of representation.
-27-
District 	and 	the 	Association 	that 	controversy 	and 	conflict 	are
likely 	to 	occur. 	As 	discussed, 	use 	of 	the 	checklist 	will
strongly 	influence 	how 	the 	contract 	form 	is 	filled 	out 	and
thus 	how 	teachers 	are 	evaluated. 	The 	rating 	of 	individual
teacher 	proficiency 	is 	of 	vital 	concern 	to 	the 	individual
teachers 	since 	it 	constitutes 	a 	judgment 	of 	their 	professional
abilities. 	Also, 	this 	rating 	is 	of 	vital 	concern 	to 	the
District 	because 	it 	is 	a 	tool 	which may 	be 	used 	to 	identify
weak 	performers 	so 	that 	their 	skills 	may 	be 	improved 	to 	the
benefit 	of 	the 	entire 	school 	system.
The 	give 	and 	take 	of 	collective 	bargaining 	seems 	the
appropriate 	way 	of 	resolving 	a 	conflict 	regarding 	a 	procedure
designed 	to 	improve 	the 	evaluating 	skills 	of 	principals. 	Even
though 	neither 	side 	is 	required 	to 	agree 	to 	any 	specific
proposal, 	bargaining 	over 	the 	issue 	will 	allow 	each 	side 	to
understand 	the 	other's 	motives 	and 	objectives, 	and 	will
facilitate 	the 	reaching 	of 	an 	accommodation 	which 	will 	satisfy
both 	sides. 	Bargaining 	over 	the 	institution 	of 	a 	checklist
evaluation 	procedure 	and 	its 	content 	certainly 	will 	not
significantly 	abridge 	the 	District's 	freedom 	to manage 	the
schools.
Applying 	these 	rules 	to 	the 	findings 	of 	fact 	on 	this
issue, 	it 	is 	first 	concluded 	that 	regardless 	of 	whether 	the
checklist 	results 	are 	used 	to 	rate 	teacher 	proficiency, 	since
teachers 	are 	evaluated, 	the 	checklist 	procedure 	is 	within 	the
scope 	of 	representation.
-27-

It is next concluded that the use of the checklist relates
primarily to evaluation procedures rather than to matters of
broader educational policy in which the public's interest is
more substantial than that of the public school employee. It
is further concluded that the checklist is a subject of such
vital concern to both management and employees that
controversy and conflict are likely to occur and collective
bargaining is the appropriate means of resolving the conflict
considering that the District's obligation to negotiate would
not significantly abridge its freedom to manage the schools.
These conclusions bring the checklist procedure within the
scope of representation also.
Finally, since it was found that the checklist was
intended to be used to rate teacher proficiency, it is within
the scope of representation on this theory also.
Therefore, it is concluded that the District's unilateral
institution of the checklist procedure breached the District's
obligation to negotiate in good faith on matters within the
scope of representation in violation of 3543.5 (c)
This act also constitutes a 3543.5(b) violation in that it
denies the Association its right to negotiate on behalf of
unit members regarding any proposed changes in the status quo
on subjects within the scope of representation.
o constitutes a 3543.5(a) violation in that it
interferes with employees because of their exercise of their
right to select an exclusive representive to meet and negotiate
with the employer on their behalf by unilaterally changing
matters within the scope of representation without meeting
and negotiating with the exclusive representative.
-28-
It
	is
	next
	concluded
	that
	the
	use
	of
	the
	checklist
	relates
primarily 	to 	evaluation
	procedures
	rather
	than
	to
	matters
	of
broader
	educational 	policy
	in
	which
	the
	public's 	interest 	is
more
	substantial
	than
	that
	of 	the
	public
	school
	employee.
	It
is
	further
	concluded
	that
	the
	checklist
	is
	a
	subject
	of
	such
vital
	concern
	to
	both
	management
	and
	employees
	that
controversy
	and
	conflict
	are
	likely
	to
	occur
	and
	collective
bargaining
	is
	the
	appropriate
	means
	of 	resolving
	the
	conflict
considering
	that
	the
	District's
	obligation 	to 	negotiate
	would
not
	significantly
	abridge
	its
	freedom
	to
	manage
	the
	schools.
These
	conclusions 	bring 	the
	checklist
	procedure 	within 	the
scope
	of
	representation 	also.
Finally,
	since
	it
	was
	found
	that
	the
	checklist
	was
intended
	to
	be
	used
	to 	rate
	teacher 	proficiency,
	it
	is
	within
the
	scope 	of
	representation
	on
	this
	theory
	also.
Therefore,
	it
	is
	concluded
	that
	the
	District's
	unilateral
institution
	of 	the
	checklist
	procedure 	breached 	the
	District's
obligation 	to 	negotiate 	in
	good
	faith
	on
	matters 	within 	the
scope 	of
	representation 	in
	violation
	of 	3543.S(c)
This
	act 	also 	constitutes
	a
	3543.S(b)
	violation 	in
	that
	it
denies 	the 	Association
	its
	right 	to 	negotiate
	on
	behalf 	of
unit
	members
	regarding
	any
	proposed 	changes
	in 	the
	status
	quo
on
	subjects 	within 	the 	scope 	of 	representation.
It als
also 	constitutes
	a
	3543.S(a)
	violation 	in 	that
	it
interferes 	with 	employees 	because 	of 	their 	exercise 	of 	their
right 	to 	select
	an 	exclusive 	representive 	to 	meet 	and
	negotiate
with 	the 	employer 	on
	their 	behalf by
	unilaterally 	changing
matters 	within 	the 	scope 	of 	representation without 	meeting
and 	negotiating with 	the 	exclusive 	representative.
\
-28-

(3) SUPPORT OF THE FEDERATION
The PERB has held that since the language of the EERA
regarding the furnishing of support to an employee
organization is virtually identical to that of the NLRA,
reference to National Labor Relations Board (hereafter NLRB)
precedent is appropriate. (Azusa Federation of Teachers, AFT
Local 3298 v. Azusa Unified School District (11/23/77) PERB
Decision No. 38)
NLRB cases make a distinction between impermissible
support and permissible cooperation. In making this
distinction, the totality of the employer's conduct is
evaluated in terms of its tendency to coerce employees in the
exercise of their rights. If the "natural tendency of such
support would be to inhibit employees in their choice of a
bargaining representative" and to restrict the employee group
in arm's length dealing with the employer, it is impermissible
support. (Kaiser Foundation Hospitals, Inc. (1976) 223 NLRB
No. 51 [91 LRRM 1523] .) However, if the assistance is minimal
and does not endanger the independence of the labor
organization, it is mere permissible cooperation. 	(Coamo
Knitting Mills (1964) 150 NLRB 579 [58 LRRM 1116] .)
The various charged instances of support will be discussed
in order.
A. 	Window information
Here, since no evidence was offered that the furnishing of
the window information had a natural tendency to inhibit
-29-
(3) 	SUPPORT 	OF 	THE 	FEDERATION
The 	PERB 	has 	held 	that 	since 	the 	language 	of 	the 	EERA
regarding 	the 	furnishing 	of 	support 	to 	an 	employee
organization 	is 	virtually 	identical 	to 	that 	of 	the 	NLRA,
reference 	to 	National 	Labor 	Relations 	Board 	(hereafter 	NLRB)
precedent 	is 	appropriate. 	(Azusa 	Federation 	of 	Teachers, 	AFT
Local 	3298 	v. 	Azusa 	Unified 	School 	District 	(11/23/77) 	PERB
Decision No. 	38)
NLRB 	cases 	make 	a 	distinction 	between 	impermissible
support 	and 	permissible 	cooperation. 	In making 	this
distinction, 	the 	totality 	of 	the 	employer's 	conduct 	is
evaluated 	in 	terms 	of 	its 	tendency 	to 	coerce 	employees 	in 	the
exercise 	of 	their 	rights. 	If 	the 	"natural 	tendency 	of 	such
support 	would 	be 	to 	inhibit 	employees 	in 	their 	choice 	of 	a
bargaining 	representative" 	and 	to 	restrict 	the 	employee 	group
in 	arm's 	length 	dealing 	with 	the 	employer, 	it 	is 	impermissible
support. 	(Kaiser 	Foundation 	Hospitals, 	Inc. 	{1976) 	223 	NLRB
No. 	51 	[91 	LRRM 	1523] .) 	However, 	if 	the 	assistance 	is 	minimal
and 	does 	not 	endanger 	the 	independence 	of 	the 	labor
organization, 	it 	is 	mere 	permissible 	cooperation. 	(Coamo
Knitting 	Mills 	(1964) 	150 	NLRB 	579 	[58 	LRRM 	1116] .)
The 	various 	charged 	instances 	of 	support 	will 	be 	discussed
in 	order.
A. 	Window 	information
Here, 	since 	no 	evidence 	was 	offered 	that 	the 	furnishing 	of
the 	window 	information 	had 	a 	natural 	tendency 	to 	inhibit
-29-

employees in their choice of an employee organization or that
it would restrict the employee organization in arm's-length
dealings with the employer, there is no basis for concluding
that it constituted impermissible support.
Conduct much more supportive than the furnishing of
publicly-available information has been held by the NLRB to be
merely permissible cooperation. For example, in U. S. Postal
Service (1973) 205 NLRB 607 [84 LRRM 1001], the NLRB found no
violation where, with a rival representation petition on file,
the employer voted to grant the incumbent union's request for
money with which to sponsor an employee picnic to be run by
the incumbent union. Certainly, furnishing publicly-available
information is a lower level of cooperation than voting for an
employee picnic which employees would naturally credit to the
incumbent union. Therefore, it is concluded that the
furnishing of window information did not rise to the level of
furnishing support but rather was mere permissible cooperation.
B. 	The mailing labels
Here again, since no evidence was offered that the
furnishing of mailing labels at cost had a natural tendency to
inhibit employees in their choice of an employee organization
or that it would restrict the employee organization in arm's
length dealings with the employer, there is no basis for
concluding that it constituted impermissible support.
-30-
employees 	in 	their 	choice 	of 	an 	employee 	organization 	or 	that
it 	would 	restrict 	the 	employee 	organization 	in 	arm's-length
dealings 	with 	the 	employer, 	there 	is 	no 	basis 	for 	concluding
that 	it 	constituted 	impermissible 	support.
Conduct 	much 	more 	supportive 	than 	the 	furnishing 	of
publicly-available 	information 	has 	been 	held 	by 	the 	NLRB 	to 	be
merely 	permissible 	cooperation. 	For 	example, 	in U.S. 	Postal
Service 	(1973) 	205 	NLRB 	607 	[84 	LRRM 	1001], 	the 	NLRB 	found 	no
violation 	where, 	with 	a 	rival 	representation 	petition 	on 	file,
the 	employer 	voted 	to 	grant 	the 	incumbent 	union's 	request 	for
money 	with 	which 	to 	sponsor 	an 	employee 	picnic 	to 	be 	run 	by
the 	incumbent 	union. 	Certainly, 	furnishing 	publicly-available
information 	is 	a 	lower 	level 	of 	cooperation 	than 	voting 	for 	an
employee 	picnic 	which 	employees 	would 	naturally 	credit 	to 	the
incumbent 	union. 	Therefore, 	it 	is 	concluded 	that 	the
furnishing 	of 	window 	information 	did 	not 	rise 	to 	the 	level 	of
furnishing 	support 	but 	rather 	was 	mere 	permissible 	cooperation.
B. 	The 	mailing 	labels
Here 	again, 	since 	no 	evidence 	was 	offered 	that 	the
furnishing 	of 	mailing 	labels 	at 	cost 	had 	a 	natural 	tendency 	to
inhibit 	employees 	in 	their 	choice 	of 	an 	employee 	organization
or 	that 	it 	would 	restrict 	the 	employee 	organization 	in 	arm's
length 	dealings 	with 	the 	employer, 	there 	is 	no 	basis 	for
concluding 	that 	it 	constituted 	impermissible 	support.
-30-

In Duquesne University (1972) 198 NLRB 891 [81 LRRM 1091] ,
the NLRB found that the printing of union literature and
internal election ballots at the employer's expense did not
constitute unlawful support in a situation where the school
employer had historically made its facilities freely available
to any desirous organization, including labor organizations.
Here, the District historically had furnished mailing labels
at cost, not only to the Association but also to the Black
Teachers' Association, the Spanish American Teachers'
Association and the Asian American Teachers' Association. So
this circumstance tends to support the conclusion that the
furnishing of mailing labels did not constitute unlawful
support.
Even when a rival union was involved, the NLRB found that
allowing the union to use the company's Xerox facilities was
de minimis and thus not unlawful. (Monon Trailer, Inc. (1975)
217 NLRB No. 44 [89 LRRM 1280] .)
Finally, in District 65, Distributive Workers of America
v. NLRB (D.C. Cir. 1978) 593 F. 2d 1155 [99 LRRM 2640] ,
enforcing (1977) 228 NLRB 49 [96 LRRM 1589] , the Court in
finding unlawful support looked to the employer's differing
treatment to rival unions. If in the case at hand the
District had refused the Federation's request for what it had
historically been granting to the Association and other
-31-
In
	Duquesne
	University
	(1972) 	198
	NLRB
	891 	[81
	LRRM
	1091],
the
	NLRB
	found
	that
	the
	printing
	of
	union
	literature
	and
internal 	election 	ballots 	at
	the 	employer's
	expense
	did 	not
constitute
	unlawful
	support
	in
	a
	situation
	where
	the 	school
employer
	had
	historically
	made
	its 	facilities
	freely 	available
to
	any
	desirous 	organization,
	including 	labor
	organizations.
Here,
	the
	District 	historically
	had
	furnished
	mailing
	labels
at
	cost,
	not
	only
	to
	the
	Association
	but
	also
	to
	the
	Black
Teachers' 	Association,
	the
	Spanish
	American
	Teachers'
Association
	and
	the
	Asian
	American
	Teachers' 	Association.
	So
this
	circumstance 	tends
	to
	support 	the 	conclusion
	that
	the
furnishing
	of 	mailing
	labels
	did 	not
	constitute
	unlawful
support.
Even 	when 	a
	rival
	union
	was
	involved, 	the
	NLRB
	found
	that
allowing 	the
	union
	to
	use
	the
	company's
	Xerox
	facilities
	was
de
	minimis 	and
	thus 	not 	unlawful.
	(Monon
	Trailer,
	Inc.
	(1975)
217
	NLRB
	No.
	44
	[89
	LRRM
	1280]
.)
Finally,
	in
	District
	65,
	Distributive
	Workers
	of
	America
v.
	NLRB
	(D.C.
	Cir.
	1978) 	593
	F.2d
	1155 	[99
	LRRM
	2640],
enforcing
	(1977) 	228
	NLRB
	49 	[96
	LRRM
	1589], 	the 	Court
	in
finding 	unlawful 	support 	looked
	to
	the 	employer's
	differing
treatment 	to
	rival
	unions.
	If
	in 	the 	case
	at
	hand
	the
District
	had
	refused 	the 	Federation's 	request 	for
	what
	it
	had
historically
	been
	granting 	to 	the 	Association
	and
	other
-31-

organizations, it might easily have been found to have
provided support to the Association by treating the Federation
differently.
Thus, by all the criteria mentioned, it is concluded that
the District's furnishing of mailing labels to the Federation
was not impermissible support.
C. 	Released time
If the Association had proved that the District had given
Federation supporters released time to campaign for the
Federation, that would likely have been found to have
constituted impermissible support. In Lifetime Doors (1977)
233 NLRB No. 120 [97 LRRM 1134] , the NLRB held that in the
face of a rival union petition, offering an employee time off
from work if she persuaded other employees to join the union,
coupled with recognition of that union without evidence of an
uncoerced majority, constituted impermissible support.
But here, since the Association has failed to carry its
burden of proof on the threshold question of whether the
District was involved with the use of school time by two
teachers for campaigning, it must be concluded that in this
area also the District did not furnish support to the
Federation.
D. 	The Agenda
The delivery of a pro-Federation speech to a captive
audience of teachers would have a natural tendency to cause
certain effects.
-32-
organizations,
	it
	might
	easily
	have
	been 	found
	to
	have
provided 	support 	to
	the
	Association
	by
	treating
	the
	Federation
differently.
Thus,
	by
	all
	the
	criteria
	mentioned,
	it
	is
	concluded
	that
the
	District's
	furnishing
	of 	mailing
	labels
	to
	the 	Federation
was
	not 	impermissible
	support.
C.
	Released
	time
If
	the 	Association
	had
	proved
	that
	the
	District
	had
	given
Federation 	supporters 	released
	time
	to
	campaign
	for 	the
Federation,
	that
	would
	likely
	have 	been 	found
	to
	have
constituted
	impermissible
	support. 	In 	Lifetime
	Doors
	(1977)
233
	NLRB
	No. 	120 	(97
	LRRM
	1134],
	the
	NLRB
	held
	that
	in
	the
face 	of
	a
	rival
	union
	petition,
	offering
	an 	employee 	time
	off
from 	work
	if
	she
	persuaded
	other
	employees
	to 	join
	the 	union,
coupled 	with
	recognition
	of
	that
	union
	without 	evidence 	of
	an
uncoerced
	majority, 	constituted
	impermissible 	support.
But
	here, 	since 	the 	Association
	has
	failed
	to 	carry
	its
burden
	of 	proof
	on
	the
	threshold 	question 	of
	whether 	the
District
	was
	involved 	with 	the
	use
	of 	school
	time
	by 	two
teachers 	for 	campaigning,
	it
	must 	be
	concluded
	that 	in
	this
area 	also
	the
	District
	did 	not 	furnish 	support 	to 	the
Federation.
D. 	The 	Agenda
The
	delivery 	of
	a
	pro-Federation 	speech
	to
	a
	captive
audience 	of 	teachers
	would 	have 	a
	natural 	tendency 	to 	cause
certain 	effects.
-32-

First, it would give employees the impression that since
the District chose to put the Federation on the agenda, it
must favor the Federation over the Association. This
impression by teachers would tend to cause teachers seeking to
curry favor with the District to vote as the District
apparently wished.
Second, it would tend to show the Federation to be a
forceful and powerful organization, capable of having itself
placed on a school business agenda. This impression of
strength would tend to cause teachers seeking a strong
organization to vote for the Federation.
Third, it presents the Federation campaign rhetoric to
unit members at a time when both the Federation and the
This	Association are attempting to sway the undecided vote.
would naturally tend to have the effect of causing undecided
voters to favor the Federation.
Fourth, if the Federation had won the election, it would
have tended to feel an obligation to the District for having
aided its campaign. Also, it would realize that if the
District became dissatisfied with the Federation as the
exclusive representative, it might similarly aid a rival
organization at the next opportunity. This would tend to
restrict the Federation in arm's-length dealings with the
employer .
-33-
First,
	it
	would
	give
	employees
	the 	impression
	that
	since
the
	District
	chose
	to
	put
	the
	Federation
	on
	the
	agenda,
	it
must
	favor 	the 	Federation
	over
	the
	Association.
	This
impression
	by
	teachers
	would
	tend
	to
	cause
	teachers
	seeking
	to
curry
	favor 	with
	the
	District
	to
	vote 	as
	the
	District
apparently
	wished.
Second,
	it
	would
	tend
	to
	show
	the
	Federation
	to
	be 	a
forceful
	and
	powerful
	organization,
	capable 	of
	having
	itself
placed
	on 	a
	school
	business
	agenda. 	This 	impression 	of
strength
	would
	tend
	to
	cause
	teachers
	seeking
	a
	strong
organization 	to
	vote
	for 	the
	Federation.
Third,
	it
	presents 	the 	Federation
	campaign
	rhetoric 	to
unit
	members
	at
	a
	time
	when
	both 	the 	Federation
	and
	the
Association 	are 	attempting
	to
	sway
	the
	undecided
	vote.
	This
would
	naturally
	tend
	to
	have
	the
	effect
	of 	causing 	undecided
voters 	to
	favor 	the 	Federation.
Fourth,
	if
	the
	Federation
	had 	won
	the
	election,
	it
	would
have
	tended
	to 	feel
	an
	obligation 	to
	the
	District
	for 	having
aided
	its
	campaign.
	Also,
	it
	would
	realize 	that
	if
	the
District
	became
	dissatisfied
	with 	the 	Federation 	as 	the
exclusive 	representative,
	it
	might
	similarly 	aid
	a
	rival
organization 	at
	the 	next 	opportunity.
	This
	would
	tend
	to
restrict
	the 	Federation 	in 	arm's-length 	deali
	s
	with 	the
employer.
-33-

In addition, 3543.5 (d) declares it to be unlawful for a
public school employer to ". . . in any way encourage
employees to join any organization in preference to another. "
Here, there is no dispute between the parties that the subject
of the presentation was how the Federation ". 	. might be
able to do a better job representing the teachers . . 	" than
the Association was doing. It is concluded that the
principal's act of placing the Federation on the agenda
definitely encouraged employees to join the Federation in
preference to the Association.
Thus, it is concluded that the principal's act of placing
pro-Federation speakers on the agenda of a mandatory teachers'
meeting and countenanceng the distribution of decertification
cards had the natural tendency to inhibit employees in their
choice of bargaining representatives, would tend to restrict
the employee group in arm's-length dealings with the employer,
and encouraged employees to join the Federation in preference
to the Association.
It must next be decided whether the District is liable for
the acts of the principal in this case. A school district can
only act through agents, and it was stipulated that the
principal was a managerial or supervisory employee of the
District. In Antelope Valley Community College District v.
California School Employees Association and its Chapter 374,
consolidated with California School Employees Association and
-34-
In 	addition, 	3543.S(d) 	declares 	it 	to 	be 	unlawful 	for 	a
public 	school 	employer 	to" ... 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in 	preference 	to 	another."
Here, 	there 	is 	no 	dispute 	between 	the 	parties 	that 	the 	subject
of 	the 	presentation 	was 	how 	the 	Federation". 	might 	be
able 	to 	do 	a 	better 	job 	representing 	the 	teachers 	. 	" 	than
the 	Association 	was 	doing. 	It 	is 	concluded 	that 	the
principal's 	act 	of 	placing 	the 	Federation 	on 	the 	agenda
definitely 	encouraged 	employees 	to 	join 	the 	Federation 	in
preference 	to 	the 	Association.
Thus, 	it 	is 	concluded 	that 	the 	principal's 	act 	of 	placing
pro-Federation 	speakers 	on 	the 	agenda 	of 	a 	mandatory 	teachers'
meeting 	and 	countenancing 	the 	distribution 	of 	decertification
cards 	had 	the 	natural 	tendency 	to 	inhibit 	employees 	in 	their
choice 	of 	bargaining 	representatives, 	would 	tend 	to 	restrict
the 	employee 	group 	in 	arm's-length 	dealings 	with 	the 	employer,
and 	encouraged 	employees 	to 	join 	the 	Federation 	in 	preference
to 	the 	Association.
It 	must 	next 	be 	decided 	whether 	the 	District 	is 	liable 	for
the 	acts 	of 	the 	principal 	in 	this 	case. 	A school 	district 	can
only 	act 	through 	agents, 	and 	it 	was 	stipulated 	that 	the
principal 	was 	a 	managerial 	or 	supervisory 	employee 	of 	the
District. 	In 	Antelope 	Valley 	Community College 	District 	v.
California 	School 	Employees 	Association 	and 	its 	Chapter 	374,
consolidated 	with California 	School 	Employees 	Association 	and
-34-

its Chapter 374 v. Antelope Valley Community College District
(7/18/79) PERB Decision No. 97, the PERB held an employer
liable for the acts of certain classified employees who had
been designated as managerial and supervisory. 	These
classified employees in Antelope Valley certainly were clothed
with less apparent authority to act for the District than that
possessed by a principal in the instant case. Therefore, it
is concluded that the District is responsible for the acts of
the principal here and thus committed a violation of 3543.5 (d)
by reason of the acts of the principal.
THE DISTRICT'S GOOD FAITH
The general rule regarding withdrawal from tentative
agreements is stated in American Seating Company of
Mississippi v. NLRB (1971) 424 F. 2d 106 [73 LRRM 2996, 2998]
and NLRB v. Thompson, Inc. (1971) 449 F. 2d 1333 [78 LRRM 2593]
as follows:
It is well established that the withdrawal
by the employer of contract proposals,
tentatively agreed to by both the employer
and the union in earlier bargaining
sessions, without good cause, is evidence of
a lack of good faith bargaining by the
employer .
In a case with many similarities to the case at hand, San
Antonio Machinery and Supply Corporation v. NLRB (1966)
363 F. 2d 633 [62 LRRM 2674] , management brought a new
negotiator in to on-going negotiations. The new
negotiator withdrew from tentative agreements already reached
-35-
its
	Chapter
	374
	v. 	Antelope
	Valley
	Community
	College
	District
(7/18/79)
	PERB
	Decision
	No.
	97,
	the
	PERB
	held
	an
	employer
liable
	for
	the
	acts
	of
	certain
	classified
	employees
	who
	had
been
	designated
	as 	managerial
	and
	supervisory.
	These
classified
	employees
	in
	Antelope
	Valley
	certainly
	were
	clothed
with
	less
	apparent
	authority 	to 	act
	for 	the
	District
	than
	that
possessed
	by 	a
	principal
	in 	the
	instant
	case. 	Therefore,
	it
is
	concluded
	that
	the
	District 	is
	responsible 	for
	the
	acts
	of
the
	principal
	here
	and
	thus
	committed
	a
	violation
	of
	3543.S(d)
by
	reason 	of 	the
	acts
	of 	the
	principal.
THE
	DISTRICT 1 S
GOOD
	FAITH
The
	general 	rule
	regarding
	withdrawal
	from
	tentative
agreements
	is 	stated 	in
	American
	Seating
	Company
	of
Mississippi
	v.
	NLRB
	(1971) 	424
	F.2d
	106 	[73
	LRRM
	2996,
	2998]
and
	NLRB
	v.
	Thompson,
	Inc.
	(1971) 	449
	F.2d
	1333 	[78
	LRRM
	2593]
as 	follows:
It
	is
	well
	established 	that
	the 	withdrawal
by
	the
	employer
	of
	contract 	proposals,
tentatively
	agreed
	to
	by
	both 	the
	employerand
	the
	union
	in
	earlier
	bargaining
sessions,
	without
	good
	cause,
	is
	evidence 	of
a
	lack
	of
	good
	faith
	bargaining
	by
	the
employer
	....
In
	a
	case 	with
	many
	similarities
	to 	the 	case
	at
	hand,
	San
Antonio Machinery 	and 	Supply Corporation 	v.
	NLRB
	(1966)
363
	F.2d
	633 	[62
	LRRM
	2674],
	management
	brought
	a 	new
negotiator 	in 	to 	on-going
	negotiations.
	The new
negotiator
	withdrew 	from
	tentative
	agreements 	already 	reached
-35-

in previous negotiations. The union objected but did discuss
the employer's new proposals item by item. When no agreement
was reached, a strike was called. In finding that the strike
was precipitated by the employer's unfair practice, the NLRB
quoted with approval the trial examiner's finding that ". .
(the employer) by withdrawing from and repudiating agreements
already arrived at and maintaining its changed position
without deviation . 	. failed to bargain in good faith with
the union, thus engaging in unfair labor practice . . 	. "
In the instant case, the withdrawal of agreement was in
the threshold area of ground rules rather than substance, and
thus it had an even more stultifying effect on negotiations
than a withdrawal on substantive agreements would have had.
The District's stated reasons for withdrawal were the
history of problems between the parties and Crossett's desire
to start with a clean slate in his dealings with the
Association. It is concluded that these reasons are
insufficient justification for withdrawal.
Even if the District had been correct in withdrawing from
its agreement regarding ground rules, this would not have
justified its taking and holding of the position that it would
not discuss substantive proposals until ground rules were
first agreed. Although the parties may agree regarding the
order in which they will negotiate various subjects, in the
absence of such an agreement, the attempt by one party to
-36-
in 	previous 	negotiations. 	The 	union 	objected 	but 	did 	discuss
the 	employer's 	new 	proposals 	item 	by 	item. 	When 	no 	agreement
was 	reached, 	a 	strike 	was 	called. 	In 	finding 	that 	the 	strike
was 	precipitated 	by 	the 	employer's 	unfair 	practice, 	the 	NLRB
quoted 	with 	approval 	the 	trial 	examiner's 	finding 	that" •.•
(the 	employer) 	by 	withdrawing 	from 	and 	repudiating 	agreements
already 	arrived 	at 	and 	maintaining 	its 	changed 	position
without 	deviation 	... 	failed 	to 	bargain 	in 	good 	faith 	with
the 	union, 	thus 	engaging 	in 	unfair 	labor 	practice 	.... "
In 	the 	instant 	case, 	the 	withdrawal 	of 	agreement 	was 	in
the 	threshold 	area 	of 	ground 	rules 	rather 	than 	substance, 	and
thus 	it 	had 	an 	even 	more 	stultifying 	effect 	on 	negotiations
than 	a 	withdrawal 	on 	substantive 	agreements 	would 	have 	had.
The 	District's 	stated 	reasons 	for 	withdrawal 	were 	the
history 	of 	problems 	between 	the 	parties 	and 	Crossett's 	desire
to 	start 	with 	a 	clean 	slate 	in 	his 	dealings 	with 	the
Association. 	It 	is 	concluded 	that 	these 	reasons 	are
insufficient 	justification 	for 	withdrawal.
Even 	if 	the 	District 	had 	been 	correct 	in 	withdrawing 	from
its 	agreement 	regarding 	ground 	rules, 	this 	would 	not 	have
justified 	its 	taking 	and 	holding 	of 	the 	position 	that 	it 	would
not 	discuss 	substantive 	proposals 	until 	ground 	rules 	were
first 	agreed. 	Although 	the 	parties 	may 	agree 	regarding 	the
order 	in 	which 	they 	will 	negotiate 	various 	subjects, 	in 	the
absence 	of 	such 	an 	agreement, 	the 	attempt 	by 	one 	party 	to
-36-

dictate the order in which subjects will be negotiated becomes
the imposition of a condition to the negotiating of later
subjects. 	The District may not relieve itself of its
statutorily imposed obligation to bargain in good faith on
subjects within the scope of representation, even temporarily,
by imposing conditions which must be met before it will
fulfill its statutory obligations to negotiate. In this
connection, see NLRB v. Patent Trader, Inc. (1969)
415 F. 2d 190 [71 LRRM 3086] , mod. (1970) 426 F. 2d 791 [74 LRRM
2284] ; Federal Mogul Corp. (1974) 212 NLRB 950 [87 LRRM 1105] ,
end 524 F. 2d 37 [91 LRRM 2207]; and the Adrian Daily Telegram
(1974) 214 NLRB 1103 [88 LRRM 1310].
Based upon the findings of fact and all evidence received
on this issue, it is concluded that both Caves and Crossett
were fully authorized to negotiate on behalf of the District,
that their acts are attributable to the District, and that the
parties entered into an agreement regarding ground rules for
negotiations. It is next concluded that the District's act of
hiring a new negotiator with problems regarding his place of
residence and planned vacation as one item in a totality of
circumstances, did not constitute a violation of its duty to
meet and negotiate in good faith. However, it is concluded
that the District did violate its obligation pursuant to
3543.5 (c) to negotiate in good faith by refusing to abide by
previously-agreed ground rules and by conditioning the opening
-37-
dictate 	the 	order 	in 	which 	subjects 	will 	be 	negotiated 	becomes
the 	imposition 	of 	a 	condition 	to 	the 	negotiating 	of 	later
subjects. 	The 	District 	may 	not 	relieve 	itself 	of 	its
statutorily 	imposed 	obligation 	to 	bargain 	in 	good 	faith 	on
subjects 	within 	the 	scope 	of 	representation, 	even 	temporarily,
by 	imposing 	conditions 	which 	must 	be 	met 	before 	it 	will
fulfill 	its 	statutory 	obligations 	to 	negotiate. 	In 	this
connection, 	see 	NLRB 	v. 	Patent 	Trader, 	tnc. 	(1969)
415 	F.2d 	190 	[71 	LRRM 	3086], 	mod. 	(1970) 	426 	F.2d 	791 	[74 	LRRM
2284]; 	Federal 	Mogul 	Corp. 	(1974) 	212 	NLRB 	950 	[87 	LRRM 	1105],
enfd 	524 	F.2d 	37 	[91 	LRRM 	2207]; 	and 	the 	Adrian 	Daily 	Telegram
(1974) 	214 	NLRB 	1103 	[88 	LRRM 	1310].
Based 	upon 	the 	findings 	of 	fact 	and 	all 	evidence 	received
on 	this 	issue, 	it 	is 	concluded 	that 	both Caves 	and 	Crossett
were 	fully 	authorized 	to 	negotiate 	on 	behalf 	of 	the 	District,
that 	their 	acts 	are 	attributable 	to 	the 	District, 	and 	that 	the
parties 	entered 	into 	an 	agreement 	regarding 	ground 	rules 	for
negotiations. 	It 	is 	next 	concluded 	that 	the 	District's 	act 	of
hiring 	a 	new 	negotiator 	with 	problems 	regarding 	his 	place 	of
residence 	and 	planned 	vacation 	as 	one 	item 	in 	a 	totality 	of
circumstances, 	did 	not 	constitute 	a 	violation 	of 	its 	duty 	to
meet 	and 	negotiate 	in 	good 	faith. 	However, 	it 	is 	concluded
that 	the 	District 	did 	violate 	its 	obligation 	pursuant 	to
3543.5(c) 	to 	negotiate 	in 	good 	faith 	by 	refusing 	to 	abide 	by
previously-agreed 	ground 	rules 	and 	by 	conditioning 	the 	opening
-37-

Since
	it
	has 	been
	concluded
	that
	the
	District
	breached
	its
obligation
	to 	negotiate 	in
	good
	faith
	by
	refusing 	to
	honor
	its
previous
	agreement
	regarding
	ground
	rules
	and 	by
	insisting
	on
renegotiating
	ground
	rules
	before
	even
	discussing 	substantive
proposals,
	it
	must
	be
	concluded
	that
	the
	Association
	was
within
	its
	rights
	in
	resisting
	these 	actions
	and
	therefore
committed
	no
	unfair 	practice	
by	
doing
	so.
An
PI..:RB
REMEDY
{6)
As
	to
	all
	other 	charges, 	since 	the 	eharging
	Parties 	failed
to
	sustain 	their
	burdens
	of 	proof, 	they 	should
	be
	dismissed.
(5)
of
	discussions
	on
	substantive
	proposals
	upon
	the 	reaching
	of
written
	and
	initialed
	agreement
	on
	ground
	rules.
	It
	also
constitutes
	a
	3543.S(a)
	violation
	in
	that
	it
	interferes
	with
employees
	because
	of
	their
	exercise 	of
	their 	right
	to
	select
an
	exclusive
	representative
	to
	meet 	and
	negotiate
	with 	the
employer
	on
	their
	behalf
	by
	obstructing negotiations
	with
	the
exclusive
	representative.
THE
	ASSOCIATION'S
	GOOD
	FAITH
OTHER CHARGES
is
	authorized
	by
	3541.S(c)
	to 	order
	an 	offendinr, 	p2.rty
to 	cease
	and
	desist
	from
	the 	unfair 	practice
	and
	to 	take 	such
affirmative 	action 	as
	will 	effectuate 	the 	policies 	of 	the
	EERA.
order 	that 	the
	District
	cease 	and
	desist 	the 	unlawful
practices 	set 	forth 	herein 	and, 	as 	requested
	by
	the 	Association,
an 	affirmative 	order 	that 	they 	provide 	the 	health 	benefit 	cost
information 	requested 	necessary 	to 	make 	informed 	decisions
in negotiations 	serves 	to 	effectuate 	the 	policies 	of 	the 	EERA.
of discussions on substantive proposals upon the reaching of
written and initialed agreement on ground rules. It also
constitutes a 3543.5(a) violation in that it interferes with
employees because of their exercise of their right to select
an exclusive representative to meet and negotiate with the
employer on their behalf by obstructing negotiations with the
exclusive representative.
(5) THE ASSOCIATION'S GOOD FAITH
Since it has been concluded that the District breached its
obligation to negotiate in good faith by refusing to honor its
previous agreement regarding ground rules and by insisting on
renegotiating ground rules before even discussing substantive
proposals, it must be concluded that the Association was
within its rights in resisting these actions and therefore
committed no unfair practice by doing so.
(6) OTHER CHARGES
As to all other charges, since the Charging Parties failed
to sustain their burdens of proof, they should be dismissed.
REMEDY
PLRB is authorized by 3541.5(c) to order an offending party
to cease and desist from the unfair practice and to take such
affirmative action as will effectuate the policies of the EERA.
An order that the District cease and desist the unlawful
practices set forth herein and, as requested by the Association,
an affirmative order that they provide the health benefit cost
information requested necessary to make informed decisions
in negotiations serves to effectuate the policies of the EERA.
-31-	-38-

Posting of the order is appropriate as it serves to advise
the employees in the negotiating unit of the disposition of the
unfair charge and, further, announces the readiness of the
District to comply with the order. See CSEA Chapter 658 v.
Placerville Union High School District (9/11/78) PERB Decision
No. 69 [2 PERC 2185].
- 39-
Posting 	of
	the
	order
	is
	appropriate
	as
	it
	serves 	to 	advise
the
	employees
	in
	the
	negotiating
	unit
	of
	the
	disposition
	of 	the
unfair
	charge
	and,
	further,
	announces
	the 	readiness 	of 	the
District
	to
	comply
	with
	the 	order.
	See
	CSEA
	Chapter
	658
	v.
Placerville
	Union 	High
	School
	District
	(9/11/78)
	PERB
	Decision
No. 	69 	[2
	PERC
	2185].
-39-

(a)
PROPOSED
	ORDER
(c)
(d)
(e )
(
f)
(8)
(h)
( b )
foregoing
	Upon
	the
	findings 	of
	fact,
	conclusions
	of
	law,
and
	the
	entire
	record,
	the 	following
	violations
	are
HEREBY
	DISMISSED:
by
	The
	alleged
	violation
	the
	District
	of
	section
3543.S(a),
	(b) 	and
	(c)
	regarding 	the
	sign-in
sign-out
	procedure.
the
	The
	alleged
	violations
	by
	District
	of 	section
3543.S(a),
	(b)
	and
	(c)
	regarding 	the 	increased 	yard
duty.
alleged 	the 	of
	The
	violations
	by
	District
	section
3543.S(a),
	(b),
	(c)
	and 	(d)
	regarding 	the 	furnishing
of
	window
	information.
by
	The
	alleged 	violations
	the
	District
	of 	section
3543.S(a), 	(b),
	(c)
	and 	(d)
	regarding 	the 	furnishing
of
	mailing
	labels.
by
	The
	alleged
	violations
	the
	District
	of 	section
3543.S(c)
	and 	(d)
	regarding 	the 	furnishing
	of
released
	time.
by	The
	alleged
	violation
	the
	District
	of 	section
3543.S(a), 	(b),
	(c)
	and 	(d)
	regarding 	electioneerinf,
by
	employees.
violations
	The
	alleged
	by
	the
	District
	of 	section
3543.S(a),
	(b) 	and
	(c)
	regarding 	the 	furnishing
	of
agenda 	time
	to 	the 	Federation.
violation
	The
	alleged
	by
	the Association 	of 	section
3543.6(a)
	and
	(c)
	regarding
	its
	refusal
	to
renegotiate
	ground
	rules.
findings
	Upon
	the 	foregoing 	of
	fact,
	conclusions 	of
	law,
and
	the
	entire
	record 	of
	all
	cases,
	it
	is
	hereby 	ordered
	that
the 	Stockton 	Unified 	School
	District:
AND	(1)	
CEASE
	DESIST
	FROM:
(a)
	to
	Refusing 	to 	provide 	the 	Association
information 	regarding
	its
	health 	benefit 	costs;
personnel(b)	
Unilateral 	institution 	of 	evaluation
procedures 	without 	first 	negotiating 	in 	eood 	faith with 	the
Association 	thereon;
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record, the following violations are
HEREBY DISMISSED:
(a) 	The alleged violation by the District of section
3543.5(a), (b) and (c) regarding the sign-in
sign-out procedure.
(b) 	The alleged violations by the District of section
3543.5(a), (b) and (c) regarding the increased yard
duty.
(c) 	The alleged violations by the District of section
3543.5(a), (b), (c) and (d) regarding the furnishing
of window information.
(d) 	The alleged violations by the District of section
3543. 5(a), (b), (c) and (d) regarding the furnishing
of mailing labels.
(e) 	The alleged violations by the District of section
3543.5(c) and (d) regarding the furnishing of
released time.
(f ) 	The alleged violation by the District of section
3543.5(a), (b), (c) and (d) regarding electioneering,
by employees.
(g) 	The alleged violations by the District of section
3543.5(a), (b) and (c) regarding the furnishing of
agenda time to the Federation.
(h) 	The alleged violation by the Association of section
3543.6(a) and (c) regarding its refusal to
renegotiate ground rules.
-40-
Upon the foregoing findings of fact, conclusions of law,
and the entire record of all cases, it is hereby ordered that
the Stockton Unified School District:
(1) CEASE AND DESIST FROM:
(a) Refusing to provide to the Association
information regarding its health benefit costs;
(b) Unilateral institution of personnel evaluation
procedures without first negotiating in good faith with the
Association thereon;
-40-

(c)
(c) 	At 	the 	end 	of 	the 	posting 	period, 	notify
in 	writing 	the 	Sacramento 	Regional 	Director 	of 	the 	Public
Employment 	Relations 	Board 	of 	the 	actions 	taken 	to 	comply
with this Order.
~) 	Within 	five 	days 	of 	the 	date 	this 	proposed
decision 	becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	Notice
attached 	hereto 	as Appendix A for 	forty-five 	(45) 	consecutive
,working 	days; 	at 	its 	headquarters 	office 	and 	in 	locations
where 	notices 	to 	certificated 	el!lployees 	are 	customarily 	posted.
Using 	the 	program management 	checklist 	in
marking 	performance 	of 	personnel 	within 	the 	unit;
(d) 	Supporting 	the 	federation 	or 	encouraging 	employees
to 	join 	the 	federation 	in 	preference 	to 	the 	Association; 	and
() Failing and refusing to meet and negotiate in
good faith with the Association upon its request therefor upon
subjects within the scope of representation.
(2) 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
(a) 	Within 	twenty 	(20) 	days 	of 	the 	date 	this 	decision
becomes 	final 	furnish 	the 	Association 	complete 	and 	detailed
information 	regarding 	its 	cost 	of 	providin8 	health 	care 	benefits
to 	the 	unit 	of 	employees 	represented 	by 	the 	Association.
(c)Using the program management checklist in
marking performance of personnel within the unit;
(d) Supporting the federation or encouraging employees
to join the federation in preference to the Association; and
Ce) 	Failing 	and 	refusing 	to 	meet 	and negotiate 	in
good 	faith 	with 	the Association upon 	its 	request 	therefor 	upon
subjects 	within 	the 	scope 	of 	representation.
(2) 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
(a) Within twenty (20) days of the date this decision
becomes final furnish the Association complete and detailed
information regarding its cost of providing health care benefits
to the unit of employees represented by the Association.
() Within five days of the date this proposed
decision becomes final, prepare and post copies of the Notice
attached hereto as Appendix A for forty-five (45) consecutive
working days at its headquarters office and in locations
where notices to certificated employees are customarily posted.
(c) At the end of the posting period, notify
in writing the Sacramento Regional Director of the Public
Employment Relations Board of the actions taken to comply
with 	this 	Order.
-41-	-41-

Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on February 21, 1980 	unless a party files a
timely statement of exceptions within twenty (20) calendar days
following the date of service of the Decision. Such statement
of exceptions and supporting brief must be actually received by
the Executive Assistant to the Board at the headquarters office
in Sacramento before the close of business (5:00 p.m.)
on February 21, 1980, 	in order to be timely filed. 	(See
California Administrative Code, title 8, part III,
section 32305.) Any statement of exceptions and supporting
brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall be
filed with the Board itself. (See California Administrative
Code, title 8, part III, sections 32300 and 32305, as amended. )
Dated: January 24, 1980 Stuart Wilson
Hearing Officer
-42-
Pursuant
	to
	California
	Administrative
	Code,
	title
	8,
part
	III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
February
	21, 	1980
	unless
	a
	party
	files
	a
timely 	statement
	of 	exceptions	
within
	twenty
	(20)
	calendar
	days
following 	the 	date 	of
	service 	of
	the 	Decision.
	Such
	statement
of
	exceptions
	and
	supporting
	brief
	must 	be
	actually
	received
	by
the 	Executive
	Assistant 	to
	the
	Board
	at
	the 	headquarters
	office
in
	Sacramento
	before 	the
	close 	of 	business 	(5:00
	p.m.)
on
	February
	21, 	1980,
	in 	order
	to
	be
	timely
	filed.
	(See
California
	Administrative
	Code,
	title
	8,
	part
	III,
section
	32305.)
	Any
	statement 	of 	exceptions
	and
	supporting
brief
	must
	be
	served
	concurrently	
with	
its
	filing
upon
	each
	party 	to
	this
	proceeding.
	Proof
	of
	service
	shall
	be
filed
	with 	the
	Board
	itself.	
(See	
California
	Administrative
Code,
	title
	8,
	part
	III,
	sections
	32300
	and
	32305, 	as
	amended.)
Dated: 	Jonunry
	24,
	l980
-42-
Stuart
Wilson
Bearing	
Officer·

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in cases numbered S-CE-162, S-CE-225,
S-CE-235 and S-CO-39, in which all parties participated, it has
been found that the Stockton Unified School District Board of
Trustees violated the following provisions of the Educational
Employment Relations Act (EERA) :
1. 3543.5(a), (b) and (c) by refusing during
negotiations to provide to the Stockton Teachers
Association information regarding its costs of
providing health insurance benefits.
2 . 	3543.5(a), (b) and (c) by taking unilateral action
in the area of teacher evaluation procedure by
institution of the use of the program management
checklist.
3. 	3543.5(d) by supporting the Stockton Federation of
Teachers and by encouraging employees to join the
Stockton Federation of Teachers in preference to the
Stockton Teachers Association by placing on the agenda
of a mandatory teachers' meeting a presentation by
the Stockton Federation of Teachers.
4 . 	3543.5(a), (b) and (c) by failing and refusing to
meet and negotiate in good faith with the
Stockton Teachers Association.
WE WILL ABIDE BY THE FOLLOWING:
(1) CEASE AND DESIST FROM:
(a) Refusing to provide to the Association information
regarding its health benefit costs;
(b) Unilateral institution of personnel evaluation
procedures without first negotiating in good faith with the
Association thereon;
(c) Using the program management checklist in
marking performance of personnel within the unit;
-43-
APPENDIX
	A
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER 	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of
	California
After
	a
	hearing
	in
	cases
	numbered
	S-CE-162, 	S-CE-225,
S-CE-235
	and
	S-C0-39,
	in
	which
	all
	parties 	participated,
	it
	has
been 	found
	that
	the 	Stockton 	Unified
	School
	District
	Board
	of
Trustees
	violated
	the 	following
	provisions
	of
	the 	Educational
Employment
	Relations
	Act
	(EERA):
l.	
3543.S(a),
	(b) 	and
	(c)
	by
	refusing
	during
negotiations
	to 	provide 	to 	the 	Stockton 	Teachers
Association 	information 	regarding
	its
	costs 	of
providing
	health
	insurance
	benefits.
2.	
3543.S(a),
	(b) 	and
	(c)
	by
	taking
	unilateral
	action
in 	the 	area 	of 	teacher 	evaluation
	procedure
	by
institution
	of
	the
	use
	of 	the
	program
management
checklist.
3.	
3543.S(d)
	by
	supporting 	the 	Stockton 	Federation 	of
Teachers
	and 	by
	encouraging
	employees
	to
	join
	theStockton 	Federation 	of
	Teachers
	in 	preference 	to 	the
Stockton 	Teachers
	Association
	by
	placing
	on
	the
	agenda
of
	a
	mandatory
	teachers'
	meeting
	a
	presentation
	by
the
	Stockton 	Federation 	of
	Teachers.
4. 	3543.
S(a),
	(b) 	and 	(c)
	by
	failing
	and
	refusing 	to
meet 	and
	negotiate 	in
	good
	faith
	with 	theStockton 	Teachers
	Association.
'WE	
WILL 	ABIDE
	BY
	THE 	FOLLOWING:
(1)
	CEASE
	AND
	DESIST
	FROM:
(a)
	Refusing
	to
	provide
	to
	the 	Association 	information
regarding
	its
	health 	benefit 	costs;
(b) 	Unilateral 	institution
	of 	personnel 	evaluationprocedures 	without
	first
	negotiating 	in
	good
	faith 	with 	the
Association 	thereon;
(c) 	Using 	the 	program management 	checklist 	in
marking 	performance 	of 	personnel 	within 	the 	unit;
-43-

B
and
Dated:
employees(d)	
Supporting
	the
	federation
	or
	encouraging
to
	join
	the
	federation 	in
	preference 	to 	the 	Association;
	and
STOCKTON
	UNIFIED
	SCP.OOL
DISTRICT
	BOARD
	OF
	TRUSTEES
FOR
	THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST
	REYJ.AIN
	POSTED 	AT. 	LEAS':'
FORTY-FIVE 	(45)
	CONSECUTIVE
	WORK
	DAYS 	FROM THE 	DATE 	OF
	POSTING
AND 	MUST 	NOT 	BE
	DEFACED, 	ALTERED
	OR COVERED
	BY ANY
	:t-f.ATERIAL.
(e)	
Failing
	and
	refusing
	to
	meet
	negotiate 	in
good
	faith
	with 	the 	Association
	upon
	its
	request
	therefore
upon
	subjects 	within 	the
	scope
	of
	representation.
(2)
Within 	twenty
	(20)
days
	of
	the 	date
	this
	decision
	becomes
	final
	furnish
	the 	Association
complete
	and
	detailed
	information 	regarding
	its
	cost 	of
	providing
health
	care
	benefits
	to 	the
	unit
	of
	employees
	represented
	by
	the
Association.
Superintendent
-44-
(d)Supporting the federation or encouraging employees
to join the federation in preference to the Association; and
(e)Failing and refusing to meet and negotiate in
good faith with the Association upon its request therefore
upon subjects within the scope of representation.
(2)
	TAKE 	THE
	FOLLOWING
AFFIRtfATIVE 	ACTim~:	TAKE THE FOLLOWING AFFIRMATIVE ACTION: Within twenty (20)
days of the date this decision becomes final furnish the Association
complete and detailed information regarding its cost of providing
health care benefits to the unit of employees represented by the
Association.
STOCKTON UNIFIED SCHOOL
DISTRICT BOARD OF TRUSTEES
Dated : 	By
Superintendent
y------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
FORTY-FIVE (45) CONSECUTIVE WORK DAYS FROM THE DATE OF POSTING
AND MUST NOT BE DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
-44-