PERB Decision No. 0177E•Anaheim Union High School District (PERB 0177E)
Anaheim Union High School District (PERB 0177E)
PERB Decision No. 0177ECalperb28.10.1981
Gesamter Gesetzestext
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD ANAHEIM SECONDARY TEACHERS ASSOCIATION, CTA/NEA, Charging Party, V • ANAHEIM UNION HIGH SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) _____________________ ) Case No. LA-CE-116 PERB Decision No. 177 October 28, 1981 Appearances: Paul Crost, Attorney (Reich, Addell, Crost, & Perry) for Anaheim Secondary Teachers Association, CTA/NEA; Kyle D. Brown, Attorney (Hill, Farrer & Burrill) for Anaheim Union High School District. Before Gluck, Chairperson; Jaeger, Moore, and Tovar, Members. DECISION The Anaheim Union High School District (hereafter District) excepts to a hearing officer's proposed finding that released time is a subject of mandatory negotiations and that the District may not pass the cost of compensated released time on to the exclusive representative, the Anaheim Secondary Teachers Association (hereafter ASTA). FACTS The facts are stipulated to by the parties. The Association charged that the District violated sections 3543.S(a), (b) and (c) of the Educational Employment Relations Act (hereafter EERA) ,1 alleging that the District lAll statutory references are to the California
had initially restricted released time to hours outside of the instructional workday. The District applied this policy to provide released time without compensation. A second policy, unilaterally adopted June 29, 1977, provided a maximum of 12 days' released time without loss of compensation for 7 employee negotiators. However, this policy also included a provision passing on the released-time costs by requiring the exclusive representative to pay the District at the median daily salary rate for unit employees. Throughout the period of implementation of both employer policies, the employer refused requests by the employee organization to meet and negotiate over the subject of released time. Government Code unless otherwise stated. EERA is codified at section 3540, et seq. Section 3543.5 provides, in relevant part: It shall be unlawful for public school employer to: a. Impose or threaten to impose reprisals on employees, to discriminate or threaten todiscriminate against employees, or otherwise to interfere with, restrain, or coerceemployees 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. 2
The hearing officer found that the District's initial policy was not applied unreasonably because the stipulated facts demonstrated that no burden was thereby placed on the negotiating process. The ASTA did not except to the hearing officer 1 s ruling as to this first District policy. As to the second policy, the hearing officer found: that there was no unlawful unilateral adoption of the policy because the parties to negotiation must start from some released-time base and that a school employer is free to establish the threshold policy providing that it is reasonable; that, thereafter, released time is subject to negotiations because of the subject's relationship to hours and wages; that passing on released-time costs to the exclusive representative is prohibited by section 3543.l(c) .2 DISCUSSION Three issues are raised by this case: (1) is released time a mandatory subject of negotiations; (2) if so, may the employer unilaterally establish an initial released-time policy, and (3) may an employer pass on its released-time costs to the exclusive representative? 2section 3543.l(c) states: A reasonable number of representatives of an exclusive representative shall have the right to receive reasonable periods of released time without loss of compensationwhen meeting and negotiating and for the processing of grievances. 3
Released Time is Within the Scope of Negotiations The scope of representation set forth in section 3543.2 does not include any specific reference to released time.3 However, in a series of cases dealing with the scope of representation, the Public Employment Relations Board (hereafter PERB or Board) has held that a subject is negotiable even though not specifically enumerated if (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives 3section 3543.2 provides in relevant part: The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. "Terms and conditions of employment" mean health and welfare benefits as defined by Section 53200, leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security pursuant to Section 3546, procedures for processing grievances pursuant to Sections 3548.5, 3548.6, 3548.7, and 3548.8, and the layoff of probationary certificated school district employees, pursuant to Section 44959.5 of the Education Code ..•• 4
(including matters of fundamental policy) essential to the achievement of the District's mission.4 Released time, though not specifically defined in EERA, refers to time during an employee's workday during which the employee is excused from work. In the context of section 3543.l(c), it is time during the workday during which an employee is excused from work to participate in negotiations and grievance processing. Further, pursuant to the Act's requirement, the employee is to continue to receive full compensation during reasonable periods of time excused from work for these purposes. The District's argument that released time is not related to "hours" because the employees are not actually engaged in school work during negotiations is rejected. This Board, in accord with federal and state law elsewhere, has previously found that nonworking hours during the workday may be within scope.5 The broad subject of scheduling hours during a period or during the workday was found to be in scope in Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 4san Mateo City School District (5/20/80) PERB Decision No. 129;-JetfersonSchool Dis~(6/19/80) PERB Decision No. 133; Healdsburg Union High School District (6/19/80) PERB Decision No. 132. See also Palos Verdes Peninsula Unified School District/Pleasant Valley School District (7/16/79) PERB Decision No. 96. 5palos Verdes Peninsula Unified School District/Pleasant Valley School District, supra, and cases cited therein. 5
[116 Cal. Rptr. 507; 87 LRRM 2453]. The United States Supreme Court has interpreted federal labor policy under the National Labor Relations Act (hereafter NLRA) to include within scope nonworking time as it affects working hours.6 Clearly, the subject of released time is related to wages. EERA itself requires that reasonable released time be granted without loss of compensation. Wages may be paid for hours not worked as well as for hours worked. Employees may be paid for holidays, vacations, absence due to illness, rest periods and the periods during which service on behalf of the employer is not required or performed. Here, the amount of released time without loss of compensation inherently affects the wages the employees will receive for work just as the amount of released time, irrespective of compensation, bears on the number of hours employees will or will not perform work on behalf of the ernployer.7 The District argues that released time is essentially an administrative matter which does not involve issues of substantial importance warranting negotiations. We find the reverse to be true. That the Legislature considered the matter of released time of great significance in the scheme of 6Amalgamated Meat Cutters v. Jewel Tea (1965) 381 U.S. 6 7 6 [ 5 9 LRRM 2 3 76 ] • ?Accord Axelson, Inc. (1978) 234 NLRB No. 49 [97 LRRM 1234] enf. (5th Cir. 1979) 599 F.2nd 91 [101 LRRM 3007]. 6
collective negotiations is evident from the very special treatment accorded that subject in section 3543.l(c), supra. Section 3540 sets forth the overall statutory purposes.8 Aside from these purposes explicitly mentioned, the section demonstrates the legislative belief that good-faith negotiations--that is, the voluntary and mutual resolution of employer/employee disputes--is the preferred means of maintaining labor peace in the school system and protecting the public interest in minimizing disruptions of the educational process caused by employer/employee conflicts. But, aside from these considerations, there is ample reason for finding that the mediatory influence of negotiations is best suited to the resolution of conflict over released time. Underlying the statutory mandate of section 3543.l(c), a provision not found in the NLRA, is the intent that school 8section 3540 states, in part: It is the purpose of this chapter to promote the improvement of personnel management and employer-employee relations within the public school systems in the State of California by providing a uniform basis for recognizing the right of public school employees to join organizations of their own choice, to be represented by such organizations in their professional and employment relationships with public school employers, to select one employee organization as the exclusive representative of the employees in an appropriate unit, and to afford certificated employees a voice in the formulation of educational policy ..•. 7
negotiations proceed expeditiously9 and an acknowledgement that such a result is more readily obtained if employees are relieved from work for negotiations and are not required to negotiate after the workday with a consequent undesirable impact on their teaching duties. It is essential to the negotiating scheme of things that neither side be afforded, by law, dominance over the process, thus negating the concept of mutuality and good faith. Allowing the employer to unilaterally dictate the matter of released time, including the number of employee negotiators, amounts of compensation and scheduling of sessions, would give to the employer precisely that objectionable form of dominance. If released time were not negotiable, the only statutory recourse available to employee negotiators would be to file an unfair practice charge challenging the "reasonableness" of the employer's unilateral determination. We find such a procedure impractical and inherently contradictory of the statutory goal of expeditious settlement. 9section 3543.7 states: The duty to meet and negotiate in good faith requires the parties to begin negotiations prior to the adoption of the final budget for the ensuing year sufficiently in advance of such adoption date so that there is adequate time for agreement to be reached, or for the resolution of impasse. 8
Each negotiation, from presentation of initial proposals to final settlement, has a tempo and rhythm of its own. Typically, ground rules are first established--the time and place for bargaining to start, the order of issues to be discussed, the final settlement conditions that may be imposed, questions of ratification and approval of school officials, and a variety of similar procedural matters. There generally follow sessions designed for the clarification of proposals, an interval for their evaluation and preparation of responses. Sessions on substantive matters may initially proceed at a relatively leisurely pace. Gradually, issues are settled, at least tentatively, or withdrawn and counterproposals go back. and forth. Eventually, as the more difficult issues are faced, sessions tend to become longer and more frequent. As the "deadline" approaches, sessions may extend into the late night or early morning hours and even nonworking days. "Crisis bargaining" is not uncommon. To permit the employer to decide at the outset how many hours or days will finally be required and at what times negotiations shall take place and over what duration per session is to apply an inherently unrealistic formula to these arrangements and, by definition, to establish an unreasonably inflexible and mechanistic policy. Nor would it be feasible to permit the employer to assert a new unilateral policy from day to day to accommodate these fluid and unpredictable circumstances. Indeed, it would be to 9
invite a never-ending confrontation on procedural matters best left to the mutual resolution by the parties who, in good faith, are seeking to reach the earliest possible mutually acceptable settlement of substantive differences. PERB's conclusion that the determination of released time is not a prerogative reserved to the employer and that good-faith negotiations is a proper method for resolving conflict on this subject is consistent with national labor policy. In Borg-Warner Corp. (1972) 198 NLRB 726 [80 LRRM 1790], the NLRB expressly disapproved an employer's refusal to negotiate over bargaining ground rules, including time and frequency of meetings and released time, and in St. Louis Typographical Union (1964) 149 NLRB 750 at 752 [57 LRRM 1371] the NLRB held that: It is wholly consistent with the purposes of the Act that the parties be allowed to arrive at a resolution of their differences on preliminary matters by the same methods of compromise and accommodation as are used in resolving equally difficult differences relating to substantive terms or conditions of employment. Finally, the District's reliance on Magnolia School District (6/27/77) EERelO Decision No. 19 is unavailing. There, the Board expressly declined to reach the question of lOprior to January 1, 1978, PERB was called the Educational Employment Relations Board. 10
whether released time is within the scope of negotiations. That issue was not raised by the parties. The District further argues that section 3543.l(c) provides a specific exemption from the duty to negotiate. According to the District, the explicit obligation imposed on an employer would be unnecessary if negotiability were intended. Section 3543.2, supra, expressly places certain subjects outside the scope of obligatory negotiations. Released time is not included among these matters. It is therefore impossible to find the specific exemption the District urges. We do find in section 3543.l(c) that the Legislature considered the matter of released time too important to the statutory scheme to be left either to the employer's discretion or entirely to the vagaries of negotiations. Therefore, a minimum released-time standard was established, and thus, in effect, a standard against which the parties' good faith in negotiating on the subject could be measured. The Initial Released-Time Policy We disagree with the hearing officer's conclusion that an employer is entitled to establish the initial released-time policy because negotiations have to start from some base. First, there is no legal basis for distinguishing negotiations on ground rules from negotiations on substantive issues. The duty to bargain means just that. The employer's position on procedural issues, as its position on wages, hours 11
or terms and conditions of employment, is to be expressed through its own proposals or counterproposals. Second, the realities of negotiations eliminates the need for the arbitrary and artificial distinction the hearing officer has made. For example, at some time after proposals are readied for meet and confer sessions, the parties must agree on that first meeting date. Certainly, the employer cannot insist to the exclusion of the union's position that the first meeting occur on a certain date and at a certain hour. That arrangement is mutually determined whether by letter, telephone or face to face over the legendary martini. At the same time and in the same manner, agreement on released time for that initial meeting is accomplished. Agreement on succeeding sessions may also be reached at this time, although the parties may continuously adjust their arrangements with respect to frequency and duration of sessions to accommodate the changing circumstances of negotiations as they proceed. In short, there is nothing in the process of "getting together" to start negotiation that requires the artificial division of a negotiable matter into negotiable and non-negotiable components. The Pass-on of Released-Time Costs The District argues that released-time costs may be passed along for reimbursement by the exclusive representative because section 3543.l(c) does not expressly prohibit such pass-on, 12
that the employee representatives are not actually losing compensation, and that the ultimate test for the reasonableness of the pass-on rule is whether it imposes a burden on negotiations. The argument that the statute fails to expressly prohibit pass-ons is not persuasive. For that matter, the statute does not expressly permit or contemplate cost assessment against the employee organization. EERA's statutory structure clearly sets forth an obligation upon the employer by requiring reasonable periods of released time without loss of compensation. The effect of the District's pass-on rule would be to recover with the left hand from the employees the compensation the employer is obligated to pay with its right hand. This is so because the organization's funds are derived largely, and possibly wholly, from membership dues. Thus, the employer's policy is little short of an evasion of its statutory obligation specifically and unequivocally imposed by the Act. It hardly needs repeating here that by this negotiation "tax" the very purposes of section 3543.l(c)--the expeditious settlement of contract issues, avoidance of procedural advantage to one party over the other, and impairment of the employee's opportunity to negotiate free of procedurally induced anxieties, would be frustrated. Ironically, the employer's policy would not only permit it to circumvent its statutory obligation but would place on the employees, the 13
intended beneficiaries of section 3543.l(c), the burden of financing the employer's obligation. The District's policy does not simply ignore the Act, it reverses its very meaning. Conclusion The Board therefore resolves the issues presented as follows: 1. Released time is a subject on which the District is obligated to negotiate in good faith; 2. The District may not impose a unilaterally determined released-time policy for any negotiating session, including the initial session or sessions. 3. The District may not unilaterally pass the cost of released time on to the exclusive representative. 4. By refusing to negotiate over released time without loss of compensation, the District violated section 3543.S(c) of the EERA and concurrently, section 3543.S(a) and (b) thereof. (See San Francisco Community College District (10/12/79) PERB Decision No. 105. By attempting to pass the cost of released time on to the exclusive representative, the District violated sections 3543.S(a) and (b) of the EERA. ORDER Upon the foregoing facts, conclusions of law and the entire record in this case, it is hereby ORDERED that the Anaheim Union High School District shall: 14
1. RESCIND its released time policy of June 29, 1977 and shall CEASE AND DESIST from refusing to negotiate in good faith with the Anaheim Secondary Teachers Association, CTA/NEA on the subject of released time for employee organization representatives; 2. Post at all school sites where notices to employees are customarily placed, within ten (10) workdays after the issuance of this decision, copies of the attached Notice. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that said Notices are not altered, defaced or covered by other material. 3. Notify the Los Angeles Regional Director of the Public Employment Relations Board, in writing, within twenty (20) workdays from the date of this decision, of what steps the District has taken to comply herewith. This order shall become effective immediately upon service of a true copy thereof upon the District. luck, Chairperson J~ w. Jaeger, M~bel Barbara D. Moore, Member Member Tovar's concurrence begins on page 16. 15
Member Tovar concurring: I concur. Irene Tovar, Member 16
Appendix: Notice NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD AN AGENCY OF THE STATE OF CALIFORNIA Pursuant to a hearing in which all parties have had the right to participate and the ORDER of the Public Employment Relations Board, the Anaheim Union High School District will cease and desist from refusing to meet and negotiate with the Anaheim Secondary Teachers Association, CTA/NEA on the matter of released time without loss of compensation for representatives of the exclusive representative and hereby rescinds its policy of passing on to the exclusive representative the released-time costs incurred by the District. Anaheim Union High School District By: Authorized Agent THIS IT MUST REMAIN POSTED FOR THIRTY (30) DAYS FROM THE DATE OF POSTING AND NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR BY ANY MATERIAL. 1
PUBLIC EMPLOYMENT RELATIONS BOARD OF THE STATE OF CALIFORNIA ANAHEIM SECONDARY TEACHERS ASSOCIATION, CTA/NEA, Charging Party, and ANAHEIM UNION HIGH SCHOOL DISTRICT Respondent. ) ) ) ) ) ) ) ,) ) ) ) _________________ ) Case No. LA-CE-116 PROPOSED UNFAIR PRACTICE DECISION April 10, 1978 Appearances: Paul Crost, Attorney (Reich, Adell & Crost) for Anaheim Secondary Teachers Association; Kyle D. Brown, Attorney (Hill, Farrer & Burrill) for Anaheim Union High School District. Before Bruce Barsook, Hearing Officer. PROCEDURAL HISTORY On May 2, 1977, the Anaheim Secondary Teachers Association, CTA/NEA (hereinafter Association) filed unfair practice charge LA-CE-116 against the Anaheim Union High School District (hereinafter District). On May 18, 1977, the District filed its response to the unfair practice charge. On July 14, 1977, the Association filed a first amended unfair practice charge. The District filed its response on August 1, 1977. Following a joinder of the pleadings, an informal conference was held. When the informal conference failed to resolve the dispute, the parties entered into stipulations of facts regard- ing the charges. -1-
Unfair practice charge LA-CE-116 alleges a violation of Government Code Section 3543.S(a), 1 (b) and (c) 2 in that the District denied the Association and its members reasonable released time as required by Section 3543,l(c). It further alleges that the District refused to meet and negotiate on the subject of released time and then unilaterally promulgated a released time policy, without meeting and negotiating, ~·ms unreasonable because it required reimbursement by the Association. Such application of the District's released time policy, the Association argues, frustrates the meet and negotiate process and constitutes a bad faith effort to prolong the negotiating process and to avoid reaching a mutually acceptable collective negotiating agreement. 1 The Public Employment Relations Board (hereinafter PERB) in San Die uito Union Hi h School District (EERB Decision No. 22, September , 77 at p. 1 tat in order to find a violation of Section 3543.S(a) it would have to conclude that: The District's conduct was carried out with the intent to interfere with the rights of the employees to choosean exclusive representative, or that the District's conduct had the natural and probable consequence of interfering with the employees exercise of their rights to choose an exclusive representative, notwithstanding the employer's intent or motivation. There is no evidence indicating that there was an intent to interfere with employees' rights nor is there evidence disclosing a natural and probable consequence of interference with employees' rights. Consequently, no violation of Section 3543.S(a) has beenshown and this proposed decision shall address itself only to the issues of possible section (b) and (c) violations. 2 All section references are to the Cal. Gov. Code unless otherwise specified. -2-
ISSUE 1. Did the District deny to the Association reasonable released time for purposes of meeting and negotiating during the spring 1977 negotiating sessions? 2. Did the District breach its duty to meet and negotiate in good faith by: (a) Refusing to meet and negotiate on the subject of released time or, (b) Unilaterally promulgating a released time policy without meeting and negotiating with the Association? 3. Does the District's current released time policy contravene the requirements of Section 3543.l(c) in that the policy does not grant released time without loss of compensation? FINDINGS OF FACT The stipulated facts may be sunrrnarized as follows: The Anaheim Union High School District has an average daily attendance (hereinafter ADA) of approximately 34,000. Approximately 1,377 teachers, nurses and librarians are in the Association's nego- tiating unit. On December 21, 1976, the Association was recognized by the District as the exclusive representative of the regular and part-time teachers, nurses and librarians. -3-
The Association's negotiating team was composed of one staff employee of the As.sociation and four permanent teacher members and one rotating member. The Association staff employee was the spokesperson for the team. Commencing on April 12, 1977, and continuing until June 29, 1977, the parties met and negotiated 11 times. The last day of the 1976-77 school year was June 17, 1977. The actual time spent in negotiating sessions between April 12 and June 29 was approximately 58 hours of which approximately 35 1/2 hours were prior to summer recess. Prior to April 12, 1977, and continuing thereafter, the Association proposed holding negotiating meetings at times which would have involved meeting during the school day for one-half or full-day sessions. The Association "based its request for holding negotiating meetings during class hours on both the Rodda Act and existing board policy." Other than on May 31 and June 7, 1977, the board's representative did not agree to hold negotiating sessions during the school day. 3 The board policy on released time in effect prior to June 22, 1977 was "adopted by the governing board on September 11, 1975 pursuant to the meet and confer process of the Winton 3 The parties also stipulated that: ''During the period 1974-76, with the exception of 2 days of meet and confer sessions and 4 days for grievance and arbitration hearings, under District policy GCQDA 16.8, the practice had been to meet and confer during hours when classes were not in session." -4-
Act." 4 The pertinent portion of this policy (GCQDA 16.8) provides: During the school year, the Board shall provide each of the C.E.C. 's constituent organizations with a maximum of one paid and released school day for each 10 members in the constituent organization. Membership shall be verified through the annual C.E.C. Formation Report. Such paid and released school days shall be used by the president and/or authorized members of each organization for the purpose of transacting official organization business. Additional days may be used, provided that the certificated employee organizations utilizing such days agree to reimburse the Board for the cost of such days. The Board may adopt reasonable rules and regulations to implement this section, including the use of a form for advance notification by each organization of the use of allotted days, and reasonable limitations on the number of such days which may be utilized by one individual teacher. (Enipha.si3 adc.c~) During the period from April 12, 1977 to June 29, 1977, the Association had available to its members approximately 50 days of released time under board policy GCQDA 16.8. The released time was available for organizational business, but the governing board, with the exception of May 31 and June 7, 1977, 5 refused to allow the Association to use any of those days for meeting and negotiating. During the period between April 12 and June 29, 1977, the Association made several proposals on released time for negotiating and grievance processing. The governing board consistently took the position that "the matter of released time was not subject to the meeting and negotiating process." 4 Former Ed. Code Sec. 13080 et seq. Repealed Stats. 1975, Chapter 961, Sec. 1, effective July 1, 1976. 5 The facts indicate that on May 31 and June 7, 1977, negotiations were held between 9:00 a.m. and 4:30 p.m. On these dates Association representatives received released time without loss of compensation. -5-
On June 29, 1977, the governing board of the District . . unilaterally adopted policy GCQDB. 6 Negotiations continued after June 29, 1977. Prior to August 10, 1977, impasse was declared by the Public Employment Relations Board and mediation occurred during the month of August. 7 DISCUSSION AND CONCLUSIONS OF LAW A. Did the District refuse to grant reasonable periods of released time during the Spring 1977 negotiations? Government Code Section 3543.l(c) sets forth the right of an exclusive representative to released time: (c) A reasonable number of representatives of an exclusive representative shall have the right to receive r~asonable periods of released time without loss of compensation when meeting and negotiating and for the processing of grievances. The Association alleges that the District's refusal to grant more than two days released time during the 11-session negotiating period was unreasonable and therefore a violation of Section 3543.l(c). The District denies that its refusal was unreasonable. 6 The Board had rescinded policy GCQDA 16.8 on June 22, 1977. For a description of pertinent provisions of this policy GCQDB seepage 13, infra. 7 The hearing officer takes official notice that on February18, 1978, the parties entered into an Agreement covering the period of February 8, 1978, to August 31, 1979. No provision in the Agreement provides for a released time policy. However, the parties state inAppendix C of the Agreement that if it is ultimately determined that a disputed subject, such as released time, is determined to be a mandatory subject of negotiations, the District and the Association agree to meet and negotiate on the subject. -6-
Both parties seek support from the PERB's decision in Magnolia School District. 8 In Magnolia, the district adhered to a rigid rule throughout the entire negotiation period that prevented released time during the instructional day and restricted such released time to a maximum of 30 non-teaching minutes at the end of the day. The district refused to change its policy even when the policy proved to be a hindrance to effective mediation. The Board stated that: "Reasonable released time" means, at least, that. the District has exhibited an open attitude in its consideration of the amount of released time to be allowed so that the amount is appropriate to the circumstances of the negotiations. A district's policy does not provide for reasonable periods of released time if the policy is unyielding to changing circumstances.9 The Board also indicated that "at least in some circumstances," "some released time during the instructional day" would be appropriate. The district's inflexible position in Magnolia proved to be a hindrance to meaningful negotiations and the PERB found it unreasonable. Thus, when a district adopts an inflexible released time policy which hinders negotiations, the policy is unreasonable and in violation of the Educational Employment Relations Act (hereinafter EERA or Act). Unlike the situation in Magnolia, the charging party here has not shown the District's released time policy to be inflexible, unyielding or a hindrance to a meaningful negotiations. The stipulation of facts indicates that of 11 negotiating sessions, the Association was given released time for two of them. There is nothing in the stipulation of facts to indicate the amount of released time granted by the 8 EERB Decision No. 19, June 27, 1977. 9 Id., at page 5. -7-
District in the spring of 1977 was unreasonable or inappropriate to the circumstances of the negotiations in the District as they existed at that time. There is no proof that the negotiating schedule hindered negotiations, caused any ascertainable delay or subverted the negotiating process in any specific fashion. Therefore, the Association has not proven that the District's refusal to grant additional released time was unreasonable. Section 3543.l(c) has not been violated. Accordingly, the Association's charge that the District violated Section 3543.S(b) is hereby dismissed. B. Did the District Breach its Duty to Meet and Negotiate in Good Faith? Section 3543.S(c) provides that: It ·shall be unlawful for a public school employer to: (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. A district's obligation to meet and negotiate in good faith with an exclusive representative is limited to those matters within the . scope o f representation. 10 lO See Fullerton Union High School District, EERB Decision No. 20, July 27, 1977. See also Gov. Code Sec. 3540.l(h) which provides: "Mee~ing a~d negotiating" means meeting, conferring, negotiating, and d1scuss1ng by the exclusive representative and the public school employer in a good faith effort to reach agreement on matters within the scope of representation and the execution if requested by either party, of a written document incorporati~g any agreements reached, which document shall, when accepted by the e~cl 7 sive representati~e and the public school employer, become b1nd1ng upon both parties and, notwithstanding Section 3543.7, shall not be subject to subdivision 2 of Section 1667 of the Civil Code. The agreement may be for a period of not to exceed three years. -8-
Section 3543.2 defines the scope of representation as: matters relating to wages, hours of employment, and other terms and conditions of employment. 'Terms and conditions of employment' mean health and welfare benefits ..• leave and transfer policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security ... and procedures for processing grievances •... Released time then, must relate to wages, hours of employment, or other terms and conditions of employment in order for the District to be required to meet and negotiate over it. If released time does not so relate, the District need not negotiate over the s~bject and may take unilateral action in regard to it. 11 A review of the subjects within the scope of representation leads one to the conclusion that released time is negotiable, if at all, as a matter relating to wages or hours of employment. The Association argues that released time relates to both wages and hours; the District disagrees. The PERB in Magnolia recognized that at least in some circum- stances negotiations during the instructional day are required. If released time is granted to employee negotiators but in the form of a requirement that they pay for the substitutes, the employees' 11 Gov. Code Sec. 3543.2 also provides for various "consult" items abbut which the District must consult with the exclusive representative before the District implements its determination. None of these are arguably related to released time, and indeed, no party has raised the argument that this portion of 3543.2 is applicable. -9-
effective wages have been diminished. Consequently, the amount of released time without loss of compensation relates to ,;-;rages, as employee organizations will want to maximize their effective wages by ensuring that the time that they must pay for substitutes is kept at a minimum. Released time also relates to hours. Although the total number of compensable hours is not affected by a released time policy, the distribution of those hours is affected. Courts interpreting the NLRA have held that the distribution of hours that employees work in a day 1s . a man d a t ory su b. Jee t o f b arga1n1ng. · · 12 Having determined that released time is a mandatory subject of negotiations, 13 it must next be determined whether the District refused to meet and negotiate regarding it. The stipulation of facts indicates that the District consistently refused to negotiate the subject of released time. Consequently, the District has breached its duty to meet and negotiate in good faith and it has violated Section 3543.5 (c). The Association has also alleged that the District's unilateral promulgation of policy GCQDB on June 29, 1977 constitutes a breach of the District's duty to meet and negotiate in good faith. Under 12 Cf., Camp & Mcinnes, 100 NLRB 524, '30 LRRM 1310 (1952) (reducing lunch periods 30 minutes and changing quitting time from 5:00 pm to 4:30 pm); Meat Cutters v. Jewel Tea, 381 U.S. 676, 59 LRRM 2376 (1965). 13 The hearing officer takes note of the recent NLRB decision in Axelson Inc., 234 NLRB No. 49 97 LRRM 1234 (1978), which held that ~the payment of wages for time spent in negotiations constitutes a mandatory subject of bargaining." However, because of PERB's determination in Fullerton (note 10, ante) that the scope of representation as it relates to workiniconditions under the NLRA is broader than that under the EERA, the Axelson decision cannot be given controlling weight. -10-
federal precedent, an employer's unilateral change of a mandatory subject of bargaining is regarded as a per se refusal to bargain. 14 15Normally, federal precedent would be applicable here and the District would be found to have violated Section 3543.5(c). However, because Section 3543.l(c) mandates that a district provide the exclusive representative with reasonable periods of released time it is necessary that these two notions be harmonized. The EERA requires the employer to grant "[a] reasonable number of representatives of an exclusive representative ... reasonable periods of released time .•• " In order for the employer to make such a grant it is likely that at some point it would have to unilaterally grant "reasonable periods of released time." To require an employer to both meet and negotiate regarding released time and to grant reasonable periods of released time but to condition that with the onus of commiting an unfair practice would place the employer in an unfair dilemma. If the employer met and negotiated with the exclusive representative and did not unilaterally grant released time it would be guilty of violating Section 3543.l(c). If the employer unilaterally granted reasonable released time it would be guilty of violating Section 3543.S(c). A resolution of this dilemma is apparent if an employer is permitted to unilaterally promulgate a reasonable released time policy but yet is still required to meet and negotiate regarding the subject 14 NLRB v. Katz, 369 U.S. 736, 50 LRRM 2177 (1962). 15 The PERB has stated that it is appropriate to use NLRB decisions as guides in interpreting the EERA. See Sweetwater Union High School District, EERB Decision No. 4, Nov. 23, 1976. -11-
of released time. In essence, the employer's released time policy would become a base upon which the parties would negotiate. This approach is already utilized in the EERA. For example, by statute a school district is required to maintain evaluation procedures for certificated employees 16 and grant classified employees a specified . number of holidays and days of vacations. 17 T h ese subjects are clearly matters relating to "wages, hours of employment and other terms and conditions of employment" and are hence negotiable. Thus, as is the case with released time, a district's evaluation procedure is subject to the meet and negotiate process. By meeting and negotiating on released time the parties facilitate agreement on what is "reasonable released time" and generate an effective approach to meaningful negotiations. Once a released time policy has been agreed upon by the parties, it becomes the standard of what is "reasonable" and the district's need to unilaterally promulgate a reasonable released time . d" po 1 icy isappears. 18 Naturally, this unilateral promulgation of a released time policy is only valid if it occurs before the implementation of a negotiated policy and the policy itself is reasonable. The reasonableness of the June 29, 1977 policy is the subject of the Association's third allegation. 16 Ed. Code Sec. 44660, et seq. 17 Ed. Code Secs. 45197 and 45203. 18 Thus, the District's fear that meeting and negotiatingwith the exclusive representative would subject it to attack from its employees is unfounded. Because the district and the exclusive representative have agreed upon the policy, that policy is presumed to be a reasonable one. -12-
C. Is District Released Time Policy GCQDB promulgated on June 29, 1977 reasonable? District Policy GCQDB provides in pertinent part: 1.0 Released Time - Negotiations During each school year when negotiations are in progress, and following prior notice and schedule coordination with the immediate supervising administrator, seven (7) authorized representatives of each employee organization representing a bargaining unit, shall be granted a maximum of twelve (12) full days of released time each without loss of compensation for the purpose of meeting and negotiating. This released time may be taken in minimum increments of one full day. Organizations requesting use of released time for meeting and negotiating shall reimburse the District for the value of educational services lost, as paid from publicfunds, because of the absence of employees from their duties to act in the capacity of employee organization representatives. Reimbursement shall be at the median daily salary rate of the employees comprising the bargaining unit. Reimbursement shall occur within one-hundred and twenty (120) calendar days of the dates of released time. The Association argues that Policy GCQDB is unreasonable because the grant of released time is "contingent upon an employee orgapization's picking up the tab." The District argues that the policy is a reasonable one. According to the District, Section 3543.l(c) 's proviso that released time be "without loss of compensation" was "concerned solely with the remuneration to be received by the district employee who was being released." The EERA, the District alleges, was silent as to the ability of a district to adopt a "sharing arrangement which relates -13-
to the additional costs (ie., those beyond the salary of the released employee) which are incurred by virtue of the release, and, if so, upon what formula." In the absence of legislative directive, it is the position of the District that it "may impose any cost-sharing arrangement it desires as a condition of released time, except one which in operative effect requires the exclusive representative to pay the salary of the individual so released." The District's argument is unpersuasive. Granting released time upon condition that some third party or agency compensate the district contravenes the explicit language of Section 3543.l(c) and such a policy violates the Act. Similarly, the District's reliance on Yuba City Unified School District, 19 a non-appealed he~ring officer's decision, is misdirected. Unlike a Board decision, a hearing officer decision which has not been appealed to the Board is not binding precedent. In any case, the facts in this case are distinguishable from those in Yuba City. In Yuba City the cost-sharing arrangement was instituted after a substantial amount of released time without loss of compensation had already been granted. And the nature of the cost-sharing plan was such that the District was "willing to meet on school time every week if the Association paid for substitutes on an alternating basis or to meet after school every other week." In 19 EERB Decision No. HO-U-4, May 6, 1977. -14-
this case, the District policy, unlike that found in Yuba City, does not provide the exclusive representative with at least some released time without loss of compensation. This discrepancy is fatal and therefore the District cannot rely on the Yuba City case to support its position. For the above reasons the District has violated Section 3543.S(b) in that District Policy GCQDB violates Section 3543.l(c) because it does not provide for reasonable periods of released time without loss of compensation. D. Remedy Gov. Code Section 3541.S(c) provides that the PERB shall have the power to issue a decision and order in an unfair practice case directing the offending party to "cease and desist from the unfair practice and to take such affirmative action •.. as will effectuate the policies of this chapter." 20 In Magnolia School District the Board found that the district had violated Section 3543.l(c) by refusing to grant reasonable periods of released time without loss of compensation. The Board's remedy in that case included a cease and desist order but did not direct the District to grant a specific number of hours of released 20 Note 8, ante. -15-
time for meeting and negotiating. Implicit in the Board's decision is a directive to the District to reconsider its released time policy in light of the Board's opinion. Similarly the facts in this case do not warrant an order specifying the specific amount of released time to be given to employee negotiators. The District should reconsider its policy and thereby arrive at a policy which provides for released time without loss of compensation and which "is appropriate to the circumstances of the negotiations." In addition, the District should meet and negotiate upon request with the Association regarding released time in an attempt to agree on a reasonable released time policy. The requirement that the District post copies of the order "effectuates the policies of the Act" in that it serves to inform all those employees who are vitally interested in the case of the decision relating to the unfair practice charge. The language in Section lO(c) of the National Labor Relations Act is nearly identical to Government Code Section 3541.S(c). 21 The first decision rendered by~the National Labor Relations Board (hereinafter NLRB), Pennsylvania Greyhound ' Lines, Inc., 1 NLRB 1, 1 LRRM 303 (1935), included an order to "post notices in conspicuous places in all of the places of business 21 Section lO(c) of the National Labor Relations Act (29 U.S.C. §160) provides in pertinent part that: If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complainthas engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact ~nd shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act. -16-
wherein.the employees are engaged." The NLRB found that such a posting requirement "effectuates the policies of the NLRA." The employer challenged inter alia the posting requirement. In affirming the NLRB in NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 2 LRRM 600 (1938), the United States Supreme Court stated that "[i]t is plain that the challenged provisions of the present order are of a kind contemplated by Congress in the enactment of Section l0(c) and are within its terms." In NLRB v. Empress Publishing Co., 312 U.S. 426, 8 LRRM 415 (1941), the Court commented with respect to the posting requirement, "[o]nly a word need be said of that part of the [NLRB's] order requiring the posting of notices. We have often held that ·the posting of notices advising the employees of the Board's order and announcing the readiness of the employer to obey it is within the authority conferred on the Board by Section lO(c) of the [NLRA] 'to take such affirmative action ... as will effectuate the policies of the Act.'" NLRB v. Empress Publishing Co., supra. See also City of Albany v. Helsby, 328 N.Y.S. 2d. 658, 79 LRRM 2457 (1972). Accordingly, an order to post copies of the order is deemed appropriate in this case. -17-
PROPOSED
ORDER
Upon
the foregoing
findings of
fact,
conclusions of
law,
and
the
entire
record in
this
case,
and
pursuant to
Government
Code
Section
3541.S(c)
of the Educational
Employment
Relations
Act,
it
is
hereby
ordered
that
the
Anaheim
Union High
School
District
and
its
representative
should:
1.
CEASE
AND
DESIST
FROM:
(a)
Failing
to
meet and
negotiate
in
good
faith
upon
request
with
the
Anaheim
Secondary
Teachers
Association
with
regard
to
released
time;
(b)
Failing
to grant to the
representatives
of the
Anaheim
Secondary Teachers
Association reasonable periods of
released
time
without
loss of
compensation.
2.
TAKE THE
FOLLOWING
AFFIRMATIVE
ACTION DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
EERA:
{a)
Prepare
and
post
at
all
of
its
schools
and
work
sites
for
20
working days
in conspicuous
places,
including
all
locations
where
notices
to
certificated
employees
are customarily posted,
copies of
this
Order;
(b) At
the
end
of the posting period, notify
the
Los
Angeles
Regional
Director of the Public
Employment
Relations
Board
of
the action
it
has taken to
comply
with
this
Order.
-18-It is further ordered that the charge shall be dismissed with respect to any unfair practices which are alleged and have not been found to be violations of the Act. The parties have twenty (20) calendar days after service of this Proposed Decision in which to file exceptions in accordance with California Administrative Code, Title 8, Part III, Section 32300. If no party files timely exceptions, this Proposed Decision will become final on May 5, 1978 and a Notice of Decision will issue from the Board. Dated: April 10, 1978 -19- Bruce Barsook Hearing Officer
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANAHEIM SECONDARY TEACHERS
ASSOCIATION, CTA/NEA,
Charging Party, Case No. LA-CE-116
Ve PERB Decision No. 177
ANAHEIM UNION HIGH SCHOOL DISTRICT, October 28, 1981
Respondent.
ee et et ee et ee ee ee ee
Appearances: Paul Crost, Attorney (Reich, Addell, Crost, &
Perry) for Anaheim Secondary Teachers Association, CTA/NEA;
Kyle D. Brown, Attorney (Hill, Farrer & Burrill) for Anaheim
Union High School District.
Before Giuck, Chairperson; Jaeger, Moore, and Tovar, Members.
DECISION
The Anaheim Union High School District (hereafter District)
excepts to a hearing officer's proposed finding that released
time is a subject of mandatory negotiations and that the
District may not pass the cost of compensated released time on
to the exclusive representative, the Anaheim Secondary Teachers
Association (hereafter ASTA).
PACTS
The facts are stipulated to by the parties. The
Association charged that the District violated
sections 3543.5(a), (b) and (c) of the Educational Employment
Relations Act (hereafter EERA) ,1 alleging that the District
lall statutory references are to the California
had
initially
restricted
released
time
to
hours
outside of
the
instructional
workday.
The
District
applied
this
policy to
provide
released
time
without
compensation.
A
second
policy,
unilaterally
adopted June 29,
1977,
provided
a maximum
of
12
days'
released
time
without
loss
of
compensation
for
7
employee
negotiators.
However,
this
policy
also
included
a
provision
passing
on
the
released-time costs
by
requiring
the
exclusive
representative
to
pay
the
District at
the
median
daily salary rate
for
unit
employees. Throughout
the
period of
implementation of
both
employer
policies,
the
employer
refused
requests
by
the
employee
organization to
meet
and
negotiate
over the
subject
of
released
time.
Government
Code
unless otherwise
stated.
EERA
is
codified
at
section
3540,
et
seq.
Section
3543.5
provides, in relevant
part:
It
shall
be
unlawful
for public
school
employer
to:
a.
Impose
or
threaten to
impose
reprisals
on
employees,
to discriminate
or
threaten todiscriminate against
employees, or
otherwise
to
interfere
with,
restrain,
or coerceemployees 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.
2
The
hearing
officer
found
that
the
District's
initial
policy
was
not
applied
unreasonably
because
the
stipulated
facts
demonstrated
that
no
burden
was
thereby placed
on
the
negotiating process.
The
ASTA
did
not except
to
the
hearing
officer
1 s
ruling
as
to
this
first
District
policy.
As
to
the
second
policy,
the hearing
officer
found:
that
there
was no
unlawful
unilateral
adoption of the
policy
because
the
parties
to negotiation
must
start
from
some
released-time
base
and
that
a
school
employer
is
free to
establish
the
threshold policy
providing
that
it
is
reasonable;
that,
thereafter,
released
time
is
subject to negotiations
because
of
the
subject's relationship
to
hours
and
wages;
that
passing
on
released-time costs
to the
exclusive
representative
is
prohibited
by
section 3543.l(c) .2
DISCUSSION
Three
issues are raised
by
this
case:
(1)
is
released
time
a mandatory
subject
of
negotiations;
(2)
if
so,
may
the
employer
unilaterally establish
an
initial
released-time
policy,
and (3)
may
an employer
pass on
its
released-time costs
to
the
exclusive representative?
2section 3543.l(c)
states:
A
reasonable
number
of representatives
of an
exclusive representative shall
have the
right to receive reasonable periods of
released
time without
loss of
compensationwhen meeting and
negotiating
and for the
processing of grievances.
3
Released Time is Within the Scope of Negotiations
The scope of representation set forth in section 3543.2
does not include any specific reference to released time.3
However, in a series of cases dealing with the scope of
representation, the Public Employment Relations Board
(hereafter PERB or Board) has held that a subject is negotiable
even though not specifically enumerated if (1) it is logically
and reasonably related to hours, wages or an enumerated term
and condition of employment, (2) the subject is of such concern
to both management and employees that conflict is likely to
occur and the mediatory influence of collective negotiations is
the appropriate means of resolving the conflict, and (3) the
employer's obligation to negotiate would not significantly
abridge his freedom to exercise those managerial prerogatives
3section 3543.2 provides in relevant part:
The scope of representation shall be limited
to matters relating to wages, hours of
employment, and other terms and conditions
of employment. "Terms and conditions of
employment" mean health and welfare benefits
as defined by Section 53200, leave, transfer
and reassignment policies, safety conditions
of employment, class size, procedures to be
used for the evaluation of employees,
organizational security pursuant to
Section 3546, procedures for processing
grievances pursuant to Sections 3548.5,
3548.6, 3548.7, and 3548.8, and the layoff
of probationary certificated school district
employees, pursuant to Section 44959.5 of
the Education Code ..••
4
(including matters of fundamental policy) essential to the
achievement of the District's mission.4
Released time, though not specifically defined in EERA,
refers to time during an employee's workday during which the
employee is excused from work. In the context of
section 3543.l(c), it is time during the workday during which
an employee is excused from work to participate in negotiations
and grievance processing. Further, pursuant to the Act's
requirement, the employee is to continue to receive full
compensation during reasonable periods of time excused from
work for these purposes.
The District's argument that released time is not related
to "hours" because the employees are not actually engaged in
school work during negotiations is rejected. This Board, in
accord with federal and state law elsewhere, has previously
found that nonworking hours during the workday may be within
scope.5 The broad subject of scheduling hours during a
period or during the workday was found to be in scope in
Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608
4san Mateo City School District (5/20/80) PERB Decision
No. 129;-JetfersonSchool Dis~(6/19/80) PERB Decision
No. 133; Healdsburg Union High School District (6/19/80) PERB
Decision No. 132. See also Palos Verdes Peninsula Unified
School District/Pleasant Valley School District (7/16/79) PERB
Decision No. 96.
5palos Verdes Peninsula Unified School District/Pleasant
Valley School District, supra, and cases cited therein.
5
[116 Cal. Rptr. 507; 87 LRRM 2453]. The United States Supreme
Court has interpreted federal labor policy under the National
Labor Relations Act (hereafter NLRA) to include within scope
nonworking time as it affects working hours.6
Clearly, the subject of released time is related to wages.
EERA itself requires that reasonable released time be granted
without loss of compensation. Wages may be paid for hours not
worked as well as for hours worked. Employees may be paid for
holidays, vacations, absence due to illness, rest periods and
the periods during which service on behalf of the employer is
not required or performed. Here, the amount of released time
without loss of compensation inherently affects the wages the
employees will receive for work just as the amount of released
time, irrespective of compensation, bears on the number of
hours employees will or will not perform work on behalf of the
ernployer.7
The District argues that released time is essentially an
administrative matter which does not involve issues of
substantial importance warranting negotiations. We find the
reverse to be true. That the Legislature considered the matter
of released time of great significance in the scheme of
6Amalgamated Meat Cutters v. Jewel Tea (1965) 381 U.S.
6 7 6 [ 5 9 LRRM 2 3 76 ] •
?Accord Axelson, Inc. (1978) 234 NLRB No. 49 [97 LRRM
1234] enf. (5th Cir. 1979) 599 F.2nd 91 [101 LRRM 3007].
6
collective negotiations is evident from the very special
treatment accorded that subject in section 3543.l(c), supra.
Section 3540 sets forth the overall statutory purposes.8
Aside from these purposes explicitly mentioned, the section
demonstrates the legislative belief that good-faith
negotiations--that is, the voluntary and mutual resolution of
employer/employee disputes--is the preferred means of
maintaining labor peace in the school system and protecting the
public interest in minimizing disruptions of the educational
process caused by employer/employee conflicts.
But, aside from these considerations, there is ample reason
for finding that the mediatory influence of negotiations is
best suited to the resolution of conflict over released time.
Underlying the statutory mandate of section 3543.l(c), a
provision not found in the NLRA, is the intent that school
8section 3540 states, in part:
It is the purpose of this chapter to promote
the improvement of personnel management and
employer-employee relations within the
public school systems in the State of
California by providing a uniform basis for
recognizing the right of public school
employees to join organizations of their own
choice, to be represented by such
organizations in their professional and
employment relationships with public school
employers, to select one employee
organization as the exclusive representative
of the employees in an appropriate unit, and
to afford certificated employees a voice in
the formulation of educational policy ..•.
7
negotiations proceed expeditiously9 and an acknowledgement
that such a result is more readily obtained if employees are
relieved from work for negotiations and are not required to
negotiate after the workday with a consequent undesirable
impact on their teaching duties.
It is essential to the negotiating scheme of things that
neither side be afforded, by law, dominance over the process,
thus negating the concept of mutuality and good faith.
Allowing the employer to unilaterally dictate the matter of
released time, including the number of employee negotiators,
amounts of compensation and scheduling of sessions, would give
to the employer precisely that objectionable form of
dominance. If released time were not negotiable, the only
statutory recourse available to employee negotiators would be
to file an unfair practice charge challenging the
"reasonableness" of the employer's unilateral determination.
We find such a procedure impractical and inherently
contradictory of the statutory goal of expeditious settlement.
9section 3543.7 states:
The duty to meet and negotiate in good faith
requires the parties to begin negotiations
prior to the adoption of the final budget
for the ensuing year sufficiently in advance
of such adoption date so that there is
adequate time for agreement to be reached,
or for the resolution of impasse.
8
Each negotiation, from presentation of initial proposals to
final settlement, has a tempo and rhythm of its own.
Typically, ground rules are first established--the time and
place for bargaining to start, the order of issues to be
discussed, the final settlement conditions that may be imposed,
questions of ratification and approval of school officials, and
a variety of similar procedural matters. There generally
follow sessions designed for the clarification of proposals, an
interval for their evaluation and preparation of responses.
Sessions on substantive matters may initially proceed at a
relatively leisurely pace. Gradually, issues are settled, at
least tentatively, or withdrawn and counterproposals go back.
and forth. Eventually, as the more difficult issues are faced,
sessions tend to become longer and more frequent. As the
"deadline" approaches, sessions may extend into the late night
or early morning hours and even nonworking days. "Crisis
bargaining" is not uncommon. To permit the employer to decide
at the outset how many hours or days will finally be required
and at what times negotiations shall take place and over what
duration per session is to apply an inherently unrealistic
formula to these arrangements and, by definition, to establish
an unreasonably inflexible and mechanistic policy.
Nor would it be feasible to permit the employer to assert a
new unilateral policy from day to day to accommodate these
fluid and unpredictable circumstances. Indeed, it would be to
9
invite a never-ending confrontation on procedural matters best
left to the mutual resolution by the parties who, in good
faith, are seeking to reach the earliest possible mutually
acceptable settlement of substantive differences.
PERB's conclusion that the determination of released time
is not a prerogative reserved to the employer and that
good-faith negotiations is a proper method for resolving
conflict on this subject is consistent with national labor
policy. In Borg-Warner Corp. (1972) 198 NLRB 726 [80 LRRM
1790], the NLRB expressly disapproved an employer's refusal to
negotiate over bargaining ground rules, including time and
frequency of meetings and released time, and in St. Louis
Typographical Union (1964) 149 NLRB 750 at 752 [57 LRRM 1371]
the NLRB held that:
It is wholly consistent with the purposes of
the Act that the parties be allowed to
arrive at a resolution of their differences
on preliminary matters by the same methods
of compromise and accommodation as are used
in resolving equally difficult differences
relating to substantive terms or conditions
of employment.
Finally, the District's reliance on Magnolia School
District (6/27/77) EERelO Decision No. 19 is unavailing.
There, the Board expressly declined to reach the question of
lOprior to January 1, 1978, PERB was called the
Educational Employment Relations Board.
10
whether
released
time
is
within
the
scope
of
negotiations.
That
issue
was
not
raised
by
the
parties.
The
District
further
argues
that section
3543.l(c) provides
a
specific
exemption
from
the duty to
negotiate.
According
to
the
District,
the
explicit
obligation
imposed on an
employer
would
be
unnecessary
if
negotiability
were
intended.
Section
3543.2,
supra, expressly places
certain subjects
outside
the
scope
of
obligatory negotiations.
Released time
is
not included
among
these
matters.
It
is
therefore
impossible
to find the
specific
exemption
the
District
urges.
We
do
find in
section
3543.l(c)
that
the
Legislature
considered the matter of
released
time
too important to the
statutory
scheme
to
be
left
either
to the employer's
discretion
or
entirely
to
the
vagaries of
negotiations.
Therefore,
a
minimum
released-time standard
was
established,
and
thus,
in
effect,
a
standard against
which
the
parties'
good
faith
in
negotiating
on
the
subject
could
be
measured.
The
Initial
Released-Time
Policy
We
disagree
with the hearing
officer's
conclusion
that
an
employer
is entitled
to
establish
the
initial
released-time
policy
because
negotiations
have
to
start
from
some
base.
First,
there
is
no
legal basis for distinguishing
negotiations
on ground
rules
from
negotiations
on
substantive
issues.
The
duty to bargain
means
just that.
The
employer's
position
on procedural issues,
as
its
position
on wages, hours
11
or
terms
and
conditions
of
employment,
is
to
be
expressed
through
its
own
proposals
or
counterproposals.
Second,
the
realities
of
negotiations eliminates
the
need
for the
arbitrary
and
artificial
distinction
the hearing
officer
has
made.
For
example,
at
some
time
after
proposals
are readied
for
meet and
confer
sessions,
the
parties
must
agree
on
that
first
meeting
date. Certainly,
the
employer
cannot
insist
to the
exclusion of the
union's position
that
the
first
meeting occur
on a
certain
date
and
at
a
certain
hour.
That arrangement
is
mutually determined
whether
by
letter,
telephone or face
to
face
over
the legendary
martini.
At
the
same
time
and
in the
same
manner, agreement
on
released
time
for
that
initial
meeting
is
accomplished.
Agreement on
succeeding
sessions
may
also
be
reached
at this
time, although
the
parties
may
continuously
adjust their
arrangements with
respect to
frequency
and
duration of sessions to
accommodate
the changing
circumstances of
negotiations
as they
proceed.
In
short,
there
is
nothing in the process of
"getting
together" to
start
negotiation that requires
the
artificial
division
of
a
negotiable matter into negotiable
and
non-negotiable
components.
The
Pass-on of
Released-Time Costs
The
District
argues
that released-time costs
may be
passed
along for reimbursement
by
the exclusive representative
because
section 3543.l(c) does not expressly prohibit
such pass-on,
12
that
the
employee
representatives
are
not
actually
losing
compensation,
and
that
the
ultimate
test
for the
reasonableness
of the pass-on
rule
is
whether
it
imposes
a
burden
on
negotiations.
The
argument
that
the
statute
fails
to expressly
prohibit
pass-ons
is
not
persuasive.
For
that matter,
the
statute
does
not
expressly
permit
or contemplate
cost
assessment
against
the
employee
organization.
EERA's
statutory structure
clearly sets
forth
an
obligation
upon
the
employer
by
requiring reasonable
periods
of
released
time
without
loss
of compensation.
The
effect
of the
District's
pass-on
rule
would be
to
recover with
the
left
hand from
the
employees
the
compensation
the
employer
is
obligated to
pay
with
its
right
hand. This
is
so
because
the
organization's
funds
are derived
largely,
and
possibly
wholly,
from membership
dues.
Thus,
the employer's
policy
is
little
short
of
an
evasion of
its
statutory obligation
specifically
and
unequivocally
imposed by
the Act.
It
hardly
needs
repeating here
that
by
this negotiation
"tax" the very purposes
of
section 3543.l(c)--the expeditious
settlement
of
contract issues,
avoidance of procedural
advantage to
one
party
over the
other,
and impairment
of the
employee's opportunity to negotiate free of procedurally
induced
anxieties,
would be
frustrated. Ironically, the
employer's policy
would
not only permit
it
to circumvent
its
statutory obligation but would
place
on
the employees, the
13
intended
beneficiaries
of
section 3543.l(c),
the
burden
of
financing
the employer's
obligation.
The
District's
policy
does
not simply
ignore the Act,
it
reverses
its
very meaning.
Conclusion
The
Board
therefore resolves
the
issues
presented
as
follows:
1.
Released
time
is
a
subject
on
which
the
District is
obligated to negotiate in
good
faith;
2.
The
District
may
not
impose
a
unilaterally
determined
released-time policy
for
any
negotiating session,
including the
initial
session
or
sessions.
3.
The
District
may
not
unilaterally
pass the
cost of
released
time
on
to the exclusive
representative.
4.
By
refusing to negotiate
over
released
time
without
loss
of
compensation, the
District
violated
section
3543.S(c)
of the
EERA
and
concurrently,
section
3543.S(a)
and
(b)
thereof.
(See San
Francisco
Community
College
District
(10/12/79)
PERB
Decision
No.
105.
By
attempting to pass the
cost of released
time on
to the exclusive representative,
the
District
violated sections
3543.S(a)
and (b)
of
the
EERA.
ORDER
Upon
the foregoing
facts,
conclusions of
law and the
entire
record in
this case,
it
is
hereby
ORDERED
that the
Anaheim
Union High School
District shall:
14
1. RESCIND its released time policy of June 29, 1977 and
shall CEASE AND DESIST from refusing to negotiate in
good faith with the Anaheim Secondary Teachers
Association, CTA/NEA on the subject of released time
for employee organization representatives;
2. Post at all school sites where notices to employees
are customarily placed, within ten (10) workdays after
the issuance of this decision, copies of the attached
Notice. Such posting shall be maintained for a period
of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that said Notices are not
altered, defaced or covered by other material.
3. Notify the Los Angeles Regional Director of the Public
Employment Relations Board, in writing, within twenty
(20) workdays from the date of this decision, of what
steps the District has taken to comply herewith.
This order shall become effective immediately upon service
of a true copy thereof upon the District.
luck, Chairperson J~ w. Jaeger, M~bel
Barbara D. Moore, Member
Member Tovar's concurrence begins on page 16.
15
Member Tovar concurring:
I concur.
Irene Tovar, Member
16
Appendix: Notice
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AN AGENCY OF THE STATE OF CALIFORNIA
Pursuant to a hearing in which all parties have had the
right to participate and the ORDER of the Public Employment
Relations Board, the Anaheim Union High School District will
cease and desist from refusing to meet and negotiate with the
Anaheim Secondary Teachers Association, CTA/NEA on the matter
of released time without loss of compensation for
representatives of the exclusive representative and hereby
rescinds its policy of passing on to the exclusive
representative the released-time costs incurred by the District.
Anaheim Union High School District
By: Authorized Agent
THIS IT MUST REMAIN POSTED FOR THIRTY
(30) DAYS FROM THE DATE OF POSTING AND NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR BY ANY MATERIAL.
1
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
OF THE
STATE
OF
CALIFORNIA
ANAHEIM
SECONDARY
TEACHERS
ASSOCIATION,
CTA/NEA,
Charging
Party,
and
ANAHEIM UNION
HIGH
SCHOOL
DISTRICT
Respondent.
)
)
)
)
)
)
)
,)
)
)
)
_________________
)
Case No. LA-CE-116
PROPOSED
UNFAIR
PRACTICE
DECISION
April
10,
1978
Appearances:
Paul Crost, Attorney (Reich, Adell
&
Crost)
for
Anaheim
Secondary Teachers
Association;
Kyle
D.
Brown,
Attorney
(Hill, Farrer
&
Burrill)
for
Anaheim Union High
School
District.
Before
Bruce Barsook, Hearing
Officer.
PROCEDURAL
HISTORY
On
May
2, 1977,
the
Anaheim
Secondary Teachers
Association,
CTA/NEA
(hereinafter
Association)
filed unfair practice
charge
LA-CE-116
against the
Anaheim Union High
School
District
(hereinafter
District).
On
May
18,
1977,
the
District filed
its
response to the unfair practice
charge.
On
July
14, 1977,
the Association
filed
a
first
amended
unfair practice
charge.
The
District filed
its
response on
August 1, 1977.
Following
a
joinder of the pleadings,
an
informal conference
was
held.
When
the informal conference
failed
to resolve the
dispute, the parties entered into stipulations of facts regard-
ing the charges.
-1-
Unfair
practice
charge
LA-CE-116
alleges
a
violation of
Government
Code
Section 3543.S(a),
1
(b) and
(c)
2
in
that
the
District
denied
the Association
and
its
members
reasonable
released
time
as
required
by
Section
3543,l(c).
It
further
alleges
that
the
District
refused to
meet and
negotiate
on
the
subject of released
time and
then
unilaterally
promulgated
a
released
time
policy,
without
meeting
and
negotiating,
~·ms
unreasonable because
it
required
reimbursement
by
the Association.
Such
application of
the
District's
released
time
policy, the
Association argues,
frustrates
the
meet and
negotiate
process
and
constitutes
a
bad
faith effort
to prolong the
negotiating
process
and
to
avoid reaching
a
mutually acceptable
collective
negotiating
agreement.
1
The
Public
Employment
Relations
Board
(hereinafter
PERB)
in
San
Die
uito
Union Hi
h
School
District
(EERB
Decision
No.
22,
September
, 77
at
p.
1
tat
in
order to find
a
violation of Section 3543.S(a)
it
would have
to conclude
that:
The
District's
conduct
was
carried
out with the
intent
to
interfere
with the
rights of
the
employees
to
choosean
exclusive representative, or that
the
District's
conduct had
the
natural
and
probable
consequence
of
interfering
with the
employees
exercise of their rights
to
choose an
exclusive representative, notwithstanding
the employer's
intent or motivation.
There
is
no
evidence
indicating that there
was
an
intent
to
interfere
with employees'
rights nor
is there evidence disclosing
a
natural
and
probable consequence
of interference with employees'
rights.
Consequently,
no
violation of Section 3543.S(a) has beenshown and
this
proposed decision shall address
itself
only to the
issues of possible section
(b) and (c)
violations.
2
All section references are to the Cal.
Gov. Code
unless
otherwise specified.
-2-
ISSUE
1.
Did
the
District
deny
to the
Association reasonable
released
time
for purposes
of
meeting
and
negotiating
during the
spring
1977
negotiating sessions?
2.
Did
the
District
breach
its
duty
to
meet
and
negotiate in
good
faith
by:
(a)
Refusing
to
meet
and
negotiate
on
the
subject of
released
time
or,
(b)
Unilaterally
promulgating
a
released
time
policy
without
meeting
and
negotiating
with
the Association?
3.
Does
the
District's
current released
time
policy contravene
the requirements
of Section 3543.l(c) in
that
the policy
does
not
grant released
time
without
loss of
compensation?
FINDINGS
OF
FACT
The
stipulated facts
may
be
sunrrnarized
as follows:
The Anaheim Union High School
District
has an average
daily
attendance
(hereinafter
ADA)
of
approximately 34,000.
Approximately
1,377
teachers, nurses
and
librarians are in the Association's
nego-
tiating unit.
On
December 21, 1976,
the Association
was
recognized
by
the
District
as the exclusive representative of the regular
and
part-time teachers, nurses and
librarians.
-3-
The
Association's negotiating
team
was
composed
of
one
staff
employee
of
the
As.sociation
and
four
permanent
teacher
members
and
one
rotating
member. The
Association
staff
employee
was
the
spokesperson
for
the
team.
Commencing
on
April
12,
1977, and
continuing
until
June
29,
1977,
the
parties
met and
negotiated
11
times.
The
last
day
of
the
1976-77
school
year
was
June
17,
1977.
The
actual
time
spent
in
negotiating sessions
between
April
12
and
June
29 was
approximately
58
hours
of
which
approximately
35
1/2
hours
were
prior
to
summer
recess.
Prior
to April
12,
1977, and
continuing
thereafter,
the
Association
proposed
holding
negotiating
meetings
at
times which
would
have
involved meeting during the school
day
for one-half or
full-day sessions.
The
Association
"based
its
request for holding
negotiating
meetings during
class
hours
on
both the
Rodda
Act and
existing
board
policy."
Other than
on
May 31
and
June
7, 1977,
the
board's representative
did not agree to hold
negotiating sessions
during the school
day.
3
The
board
policy
on
released
time
in effect prior
to June
22,
1977 was
"adopted
by
the
governing board
on September 11, 1975
pursuant to the
meet and
confer process of the
Winton
3 The
parties also stipulated that:
''During the period 1974-76, with the exception of
2 days
of
meet and confer sessions
and 4 days
for grievance
and
arbitration
hearings, under
District policy
GCQDA
16.8, the practice
had been
to meet and confer during hours when
classes were not in session."
-4-
Act." 4 The pertinent portion of this policy (GCQDA 16.8) provides:
During the school year, the Board shall provide
each of the C.E.C. 's constituent organizations with
a maximum of one paid and released school day for
each 10 members in the constituent organization.
Membership shall be verified through the annual
C.E.C. Formation Report. Such paid and released
school days shall be used by the president and/or
authorized members of each organization for the
purpose of transacting official organization
business. Additional days may be used, provided
that the certificated employee organizations
utilizing such days agree to reimburse the Board
for the cost of such days. The Board may adopt
reasonable rules and regulations to implement this
section, including the use of a form for advance
notification by each organization of the use of
allotted days, and reasonable limitations on the
number of such days which may be utilized by one
individual teacher. (Enipha.si3 adc.c~)
During the period from April 12, 1977 to June 29, 1977, the
Association had available to its members approximately 50 days of
released time under board policy GCQDA 16.8. The released time was
available for organizational business, but the governing board, with
the exception of May 31 and June 7, 1977, 5 refused to allow the
Association to use any of those days for meeting and negotiating.
During the period between April 12 and June 29, 1977, the
Association made several proposals on released time for negotiating
and grievance processing. The governing board consistently took the
position that "the matter of released time was not subject to the
meeting and negotiating process."
4 Former Ed. Code Sec. 13080 et seq. Repealed Stats. 1975,
Chapter 961, Sec. 1, effective July 1, 1976.
5 The facts indicate that on May 31 and June 7, 1977,
negotiations were held between 9:00 a.m. and 4:30 p.m. On these
dates Association representatives received released time without
loss of compensation.
-5-
On
June 29, 1977,
the
governing
board
of
the
District
. .
unilaterally
adopted
policy
GCQDB. 6
Negotiations
continued
after
June 29, 1977.
Prior to
August
10,
1977,
impasse
was
declared
by
the Public
Employment
Relations
Board
and
mediation occurred during the
month
of
August.
7
DISCUSSION
AND
CONCLUSIONS
OF
LAW
A.
Did
the
District
refuse to grant
reasonable periods of released
time
during the Spring
1977
negotiations?
Government
Code
Section 3543.l(c)
sets
forth
the
right
of
an
exclusive representative
to released
time:
(c)
A
reasonable
number
of representatives
of
an
exclusive representative
shall
have
the
right
to
receive
r~asonable
periods of released
time
without
loss of
compensation
when
meeting
and
negotiating
and
for the processing of grievances.
The
Association alleges that
the
District's
refusal
to
grant
more
than
two
days
released
time
during the 11-session
negotiating period
was
unreasonable
and
therefore
a
violation
of Section 3543.l(c).
The
District
denies
that
its
refusal
was
unreasonable.
6
The Board had
rescinded policy
GCQDA
16.8
on
June
22, 1977.
For
a
description of pertinent provisions of this policy
GCQDB
seepage 13,
infra.
7
The
hearing officer
takes
official notice that
on
February18, 1978,
the parties entered into
an Agreement covering the period
of February 8, 1978, to August 31, 1979.
No
provision in the
Agreement
provides for
a
released time policy.
However,
the parties state inAppendix
C
of the Agreement
that
if it
is ultimately determined that
a
disputed subject, such as released time, is determined to be
a
mandatory subject of negotiations, the District
and the Association
agree to meet and negotiate on the subject.
-6-
Both parties seek support from the PERB's decision in Magnolia
School District. 8 In Magnolia, the district adhered to a rigid
rule throughout the entire negotiation period that prevented released
time during the instructional day and restricted such released time
to a maximum of 30 non-teaching minutes at the end of the day. The
district refused to change its policy even when the policy proved to
be a hindrance to effective mediation.
The Board stated that:
"Reasonable released time" means, at least, that.
the District has exhibited an open attitude in
its consideration of the amount of released time
to be allowed so that the amount is appropriate
to the circumstances of the negotiations. A
district's policy does not provide for reasonable
periods of released time if the policy is
unyielding to changing circumstances.9
The Board also indicated that "at least in some circumstances," "some
released time during the instructional day" would be appropriate.
The district's inflexible position in Magnolia proved to be a
hindrance to meaningful negotiations and the PERB found it
unreasonable. Thus, when a district adopts an inflexible released
time policy which hinders negotiations, the policy is unreasonable and
in violation of the Educational Employment Relations Act (hereinafter
EERA or Act).
Unlike the situation in Magnolia, the charging party here has not
shown the District's released time policy to be inflexible, unyielding
or a hindrance to a meaningful negotiations. The stipulation of facts
indicates that of 11 negotiating sessions, the Association was given
released time for two of them. There is nothing in the stipulation
of facts to indicate the amount of released time granted by the
8 EERB Decision No. 19, June 27, 1977.
9 Id., at page 5.
-7-
District
in
the spring
of
1977
was
unreasonable
or
inappropriate
to
the
circumstances
of
the
negotiations in
the
District
as
they
existed
at
that
time.
There
is
no
proof
that
the
negotiating
schedule
hindered
negotiations,
caused
any
ascertainable
delay or
subverted the
negotiating
process
in
any
specific
fashion. Therefore,
the
Association
has
not
proven
that
the
District's
refusal
to
grant
additional released
time
was
unreasonable. Section 3543.l(c)
has
not
been
violated.
Accordingly,
the
Association's
charge
that
the
District
violated
Section
3543.S(b)
is
hereby dismissed.
B.
Did
the
District
Breach
its
Duty
to
Meet and
Negotiate
in
Good
Faith?
Section
3543.S(c) provides
that:
It
·shall
be
unlawful
for
a
public
school
employer
to:
(c) Refuse
or
fail
to
meet and
negotiate in
good
faith
with
an
exclusive
representative.
A
district's
obligation
to
meet and
negotiate in
good
faith
with
an
exclusive representative
is
limited to those matters within the
.
scope
o f
representation.
10
lO
See
Fullerton
Union High School
District,
EERB
Decision
No.
20,
July
27, 1977. See
also
Gov. Code
Sec.
3540.l(h)
which
provides:
"Mee~ing a~d
negotiating"
means
meeting, conferring, negotiating,
and d1scuss1ng
by
the exclusive representative
and
the public
school employer in
a good
faith effort
to reach agreement on
matters within the scope of representation
and
the execution
if
requested
by
either party, of
a
written
document
incorporati~g
any
agreements reached, which document
shall,
when
accepted
by
the
e~cl
7
sive representati~e
and the public school employer, become
b1nd1ng upon both parties and, notwithstanding Section 3543.7,
shall not be
subject to subdivision
2
of Section 1667 of the Civil
Code. The agreement may be for a period of not to exceed three
years.
-8-
Section 3543.2 defines the scope of representation as:
matters relating to wages, hours of employment,
and other terms and conditions of employment.
'Terms and conditions of employment' mean health
and welfare benefits ..• leave and transfer
policies, safety conditions of employment, class
size, procedures to be used for the evaluation of
employees, organizational security ... and
procedures for processing grievances •...
Released time then, must relate to wages, hours of employment, or
other terms and conditions of employment in order for the District to
be required to meet and negotiate over it. If released time does not
so relate, the District need not negotiate over the s~bject and may
take unilateral action in regard to it. 11
A review of the subjects within the scope of representation leads
one to the conclusion that released time is negotiable, if at all, as
a matter relating to wages or hours of employment. The Association
argues that released time relates to both wages and hours; the
District disagrees.
The PERB in Magnolia recognized that at least in some circum-
stances negotiations during the instructional day are required. If
released time is granted to employee negotiators but in the form of a
requirement that they pay for the substitutes, the employees'
11 Gov. Code Sec. 3543.2 also provides for various "consult"
items abbut which the District must consult with the exclusive
representative before the District implements its determination. None
of these are arguably related to released time, and indeed, no party
has raised the argument that this portion of 3543.2 is applicable.
-9-
effective
wages
have
been
diminished.
Consequently,
the
amount
of released
time
without
loss of
compensation
relates
to
,;-;rages,
as
employee
organizations
will
want
to
maximize
their effective
wages
by
ensuring
that
the
time
that
they
must
pay
for
substitutes
is
kept
at
a
minimum.
Released
time
also
relates
to hours.
Although
the
total
number
of
compensable hours
is
not
affected
by
a
released
time
policy, the
distribution
of
those
hours
is affected.
Courts
interpreting
the
NLRA
have
held
that
the
distribution
of
hours
that
employees
work
in
a
day
1s
. a man d a t
ory
su
b.
Jee
t o f b
arga1n1ng.
· ·
12
Having
determined
that
released
time
is
a
mandatory
subject
of
negotiations,
13
it
must
next
be
determined whether
the
District
refused to
meet
and
negotiate
regarding
it.
The
stipulation of facts
indicates that
the
District
consistently
refused to negotiate the
subject
of released
time. Consequently, the
District
has
breached
its
duty to
meet and
negotiate
in
good
faith
and
it
has
violated
Section
3543.5
(c).
The
Association
has
also alleged
that
the
District's unilateral
promulgation
of policy
GCQDB
on
June
29,
1977
constitutes
a
breach of
the
District's
duty to
meet and
negotiate
in
good
faith.
Under
12
Cf.,
Camp &
Mcinnes, 100
NLRB
524,
'30
LRRM
1310 (1952)
(reducing lunch periods
30
minutes
and
changing
quitting
time from
5:00
pm
to 4:30
pm); Meat
Cutters
v. Jewel Tea, 381 U.S. 676,
59
LRRM
2376
(1965).
13 The
hearing
officer takes note of the recent
NLRB
decision in
Axelson
Inc.,
234
NLRB No. 49 97 LRRM
1234 (1978), which
held that
~the payment
of
wages
for time spent in negotiations constitutes
a
mandatory subject of bargaining."
However, because of
PERB's
determination in Fullerton (note 10, ante) that the scope of
representation as
it
relates to workiniconditions under the
NLRA
is broader than that under the
EERA,
the Axelson decision cannot
be given controlling weight.
-10-
federal precedent, an employer's unilateral change of a mandatory
subject of bargaining is regarded as a per se refusal to bargain. 14
15Normally, federal precedent would be applicable here and the
District would be found to have violated Section 3543.5(c). However,
because Section 3543.l(c) mandates that a district provide the
exclusive representative with reasonable periods of released time it is
necessary that these two notions be harmonized.
The EERA requires the employer to grant "[a] reasonable number of
representatives of an exclusive representative ... reasonable periods
of released time .•• " In order for the employer to make such a grant
it is likely that at some point it would have to unilaterally grant
"reasonable periods of released time." To require an employer to both
meet and negotiate regarding released time and to grant reasonable
periods of released time but to condition that with the onus
of commiting an unfair practice would place the employer in an
unfair dilemma. If the employer met and negotiated with the
exclusive representative and did not unilaterally grant
released time it would be guilty of violating Section 3543.l(c).
If the employer unilaterally granted reasonable released time
it would be guilty of violating Section 3543.S(c).
A resolution of this dilemma is apparent if an employer is
permitted to unilaterally promulgate a reasonable released time policy
but yet is still required to meet and negotiate regarding the subject
14 NLRB v. Katz, 369 U.S. 736, 50 LRRM 2177 (1962).
15 The PERB has stated that it is appropriate to use NLRB
decisions as guides in interpreting the EERA. See Sweetwater
Union High School District, EERB Decision No. 4, Nov. 23, 1976.
-11-
of released
time.
In
essence, the employer's
released
time
policy
would
become
a
base
upon
which
the
parties
would
negotiate.
This
approach
is
already
utilized
in the
EERA.
For example,
by
statute
a
school
district
is
required to maintain
evaluation
procedures
for
certificated
employees
16
and
grant
classified
employees
a
specified
.
number
of
holidays
and days
of vacations.
17 T h
ese
subjects
are
clearly
matters
relating
to
"wages,
hours
of
employment and
other
terms
and
conditions
of
employment" and
are
hence
negotiable.
Thus,
as
is
the case with
released
time,
a
district's
evaluation
procedure
is
subject
to the
meet and
negotiate process.
By
meeting
and
negotiating
on
released
time
the
parties
facilitate
agreement
on
what
is
"reasonable
released
time"
and
generate
an
effective
approach
to
meaningful
negotiations.
Once
a
released
time
policy
has been agreed
upon by
the
parties,
it
becomes
the standard
of
what
is
"reasonable"
and
the
district's
need
to
unilaterally
promulgate
a
reasonable released
time
. d"
po
1
icy isappears.
18
Naturally,
this unilateral
promulgation
of
a
released
time
policy
is
only
valid
if it
occurs before the implementation
of
a
negotiated policy
and
the policy
itself
is
reasonable.
The
reasonableness of the
June
29, 1977
policy
is
the subject of
the Association's third allegation.
16
Ed. Code
Sec.
44660,
et
seq.
17
Ed. Code
Secs.
45197
and
45203.
18 Thus, the District's fear that meeting and
negotiatingwith the exclusive representative would subject it
to attack from
its
employees is unfounded. Because the district
and the exclusive
representative have agreed upon the policy, that policy is presumed
to be a reasonable one.
-12-
C.
Is
District
Released
Time
Policy
GCQDB
promulgated
on
June 29,
1977
reasonable?
District
Policy
GCQDB
provides in
pertinent part:
1.0
Released
Time -
Negotiations
During each
school year
when
negotiations are
in
progress,
and
following
prior
notice
and
schedule
coordination
with
the
immediate
supervising
administrator,
seven
(7)
authorized
representatives
of
each
employee
organization
representing
a
bargaining
unit, shall
be
granted
a maximum
of
twelve
(12)
full
days
of released
time each
without
loss
of
compensation
for the
purpose
of
meeting
and
negotiating.
This
released
time
may be
taken in
minimum
increments
of
one
full
day.
Organizations requesting
use
of
released
time
for
meeting
and
negotiating
shall
reimburse
the
District
for the value
of
educational services
lost,
as paid
from
publicfunds, because
of the
absence
of
employees
from
their
duties
to
act
in the
capacity of
employee
organization representatives.
Reimbursement
shall
be
at
the
median
daily salary rate
of the
employees
comprising the bargaining
unit.
Reimbursement
shall
occur
within
one-hundred
and
twenty
(120)
calendar
days
of the
dates of
released
time.
The
Association argues
that
Policy
GCQDB
is
unreasonable because
the grant of released
time
is
"contingent
upon an employee
orgapization's
picking
up
the
tab."
The
District
argues
that
the policy is
a
reasonable one.
According
to the
District,
Section 3543.l(c)
's
proviso that released
time be
"without loss of compensation"
was
"concerned
solely with the
remuneration to
be
received
by
the
district
employee who was
being
released."
The EERA,
the
District alleges,
was
silent
as to the
ability
of
a
district
to adopt
a
"sharing arrangement which
relates
-13-
to
the
additional costs
(ie.,
those
beyond
the
salary
of
the
released
employee)
which
are incurred
by
virtue
of
the
release,
and,
if
so,
upon
what
formula."
In
the
absence
of
legislative directive,
it
is
the
position
of
the
District
that
it
"may
impose
any
cost-sharing
arrangement
it
desires
as
a
condition of released
time, except
one
which
in operative
effect
requires
the
exclusive
representative
to
pay
the
salary
of
the
individual
so
released."
The
District's
argument
is
unpersuasive.
Granting
released
time
upon
condition
that
some
third
party or
agency compensate
the
district
contravenes the
explicit
language
of Section 3543.l(c)
and
such
a
policy
violates
the
Act.
Similarly,
the
District's
reliance
on
Yuba
City Unified
School
District,
19
a
non-appealed he~ring
officer's
decision,
is
misdirected.
Unlike
a
Board
decision,
a
hearing
officer
decision
which
has not
been
appealed
to
the
Board
is
not binding
precedent.
In
any
case, the
facts
in
this
case are
distinguishable
from
those
in
Yuba
City. In
Yuba
City the
cost-sharing
arrangement
was
instituted after
a
substantial
amount
of released
time
without
loss
of
compensation
had
already
been
granted.
And
the nature of the
cost-sharing plan
was
such
that
the
District
was
"willing to
meet
on
school
time every
week
if
the Association paid for
substitutes
on an
alternating basis or to
meet
after
school every other
week." In
19 EERB
Decision
No. HO-U-4, May
6, 1977.
-14-
this
case, the
District
policy, unlike
that
found
in
Yuba
City,
does
not
provide the
exclusive
representative
with
at least
some
released
time
without
loss of
compensation. This
discrepancy
is
fatal
and
therefore
the
District
cannot
rely
on
the
Yuba
City
case to support
its
position.
For
the
above
reasons the
District
has
violated
Section
3543.S(b)
in
that
District
Policy
GCQDB
violates
Section 3543.l(c)
because
it
does
not provide
for reasonable periods of
released
time
without
loss of
compensation.
D. Remedy
Gov. Code
Section
3541.S(c)
provides
that
the
PERB
shall
have
the
power
to issue
a
decision
and
order in
an
unfair practice
case
directing
the offending
party to
"cease
and
desist
from
the
unfair
practice
and
to take
such
affirmative action
•..
as
will effectuate
the
policies
of
this chapter."
20
In
Magnolia School
District
the
Board found
that
the
district
had
violated Section 3543.l(c)
by
refusing to grant reasonable
periods of released
time
without
loss of compensation.
The
Board's
remedy
in
that
case included
a
cease
and
desist
order but did not
direct
the
District
to grant
a
specific
number
of hours of released
20 Note
8, ante.
-15-
time
for
meeting
and
negotiating. Implicit
in the Board's
decision
is
a
directive
to the
District
to reconsider
its
released
time
policy
in
light
of
the Board's opinion.
Similarly
the
facts
in
this
case
do
not warrant
an
order specifying
the
specific
amount
of
released
time
to
be
given
to
employee
negotiators.
The
District
should
reconsider
its
policy
and
thereby
arrive at
a
policy
which
provides for
released
time
without
loss
of
compensation
and
which
"is
appropriate to
the circumstances of the
negotiations."
In
addition,
the
District
should
meet
and
negotiate
upon
request
with
the Association regarding released
time
in
an
attempt to agree
on
a
reasonable
released
time
policy.
The
requirement
that
the
District
post copies of the
order
"effectuates
the
policies
of
the
Act"
in
that
it
serves to
inform
all
those
employees
who
are
vitally
interested
in the case
of the
decision
relating
to
the
unfair practice
charge.
The
language
in
Section
lO(c)
of
the National
Labor
Relations
Act
is
nearly identical
to
Government
Code
Section
3541.S(c).
21 The
first
decision rendered by~the
National
Labor
Relations
Board
(hereinafter
NLRB),
Pennsylvania
Greyhound
'
Lines,
Inc.,
1
NLRB
1,
1
LRRM
303
(1935), included
an
order to "post
notices in conspicuous places in
all
of the places of business
21
Section lO(c) of the National
Labor
Relations
Act (29 U.S.C.
§160)
provides in pertinent part that:
If
upon
the preponderance of the testimony taken the Board
shall
be
of the opinion that
any person
named
in the complainthas engaged in or is
engaging in
any such
unfair labor
practice, then the Board
shall state its
findings of fact
~nd
shall issue
and cause to be served on such person an
order
requiring such person to cease and
desist
from such unfair
labor practice, and to take such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies of this Act.
-16-
wherein.the
employees
are
engaged."
The
NLRB
found
that
such
a
posting
requirement
"effectuates
the
policies
of the
NLRA." The
employer
challenged
inter
alia
the
posting requirement.
In
affirming
the
NLRB
in
NLRB
v.
Pennsylvania
Greyhound
Lines,
Inc.,
303
U.S. 261,
2
LRRM
600
(1938),
the
United
States
Supreme
Court
stated that
"[i]t
is plain that
the challenged
provisions of the
present order are of
a
kind
contemplated
by
Congress
in
the
enactment
of Section l0(c)
and
are within
its
terms."
In
NLRB
v.
Empress
Publishing
Co.,
312
U.S. 426,
8
LRRM
415
(1941),
the
Court
commented
with
respect to the
posting
requirement,
"[o]nly
a
word
need be
said of
that part
of
the
[NLRB's]
order requiring
the posting of notices.
We
have
often
held
that
·the
posting of notices
advising the
employees
of
the
Board's order
and announcing
the readiness of
the
employer
to
obey
it
is
within the
authority
conferred
on
the
Board by
Section
lO(c)
of
the
[NLRA]
'to
take
such
affirmative action
...
as
will effectuate
the
policies of
the
Act.'"
NLRB
v.
Empress
Publishing
Co.,
supra.
See
also City of
Albany v. Helsby,
328
N.Y.S. 2d. 658,
79
LRRM
2457
(1972). Accordingly,
an
order to
post copies of the order
is
deemed
appropriate in this
case.
-17-
PROPOSED
ORDER
Upon
the foregoing
findings of
fact,
conclusions of
law,
and
the
entire
record in
this
case,
and
pursuant to
Government
Code
Section
3541.S(c)
of the Educational
Employment
Relations
Act,
it
is
hereby
ordered
that
the
Anaheim
Union High
School
District
and
its
representative
should:
1.
CEASE
AND
DESIST
FROM:
(a)
Failing
to
meet and
negotiate
in
good
faith
upon
request
with
the
Anaheim
Secondary
Teachers
Association
with
regard
to
released
time;
(b)
Failing
to grant to the
representatives
of the
Anaheim
Secondary Teachers
Association reasonable periods of
released
time
without
loss of
compensation.
2.
TAKE THE
FOLLOWING
AFFIRMATIVE
ACTION DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
EERA:
{a)
Prepare
and
post
at
all
of
its
schools
and
work
sites
for
20
working days
in conspicuous
places,
including
all
locations
where
notices
to
certificated
employees
are customarily posted,
copies of
this
Order;
(b) At
the
end
of the posting period, notify
the
Los
Angeles
Regional
Director of the Public
Employment
Relations
Board
of
the action
it
has taken to
comply
with
this
Order.
-18-
It
is
further
ordered
that
the
charge
shall
be
dismissed
with
respect
to
any
unfair practices
which
are alleged
and
have
not
been
found
to
be
violations of
the
Act.
The
parties
have twenty
(20)
calendar
days
after
service
of this
Proposed
Decision
in
which
to
file
exceptions
in
accordance
with
California
Administrative
Code,
Title
8,
Part
III,
Section
32300.
If
no
party
files
timely
exceptions,
this
Proposed
Decision
will
become
final
on
May
5,
1978
and
a
Notice
of
Decision
will
issue
from
the
Board.
Dated:
April
10,
1978
-19-
Bruce Barsook
Hearing
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