North Sacramento School District (PERB 0193E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CSEA
	and
	its
	NORTH
	SACRAMENTO
CHAPTER
	NO.
	36
8,
Charging
	Party,
v.
NORTH
	SACRAMENTO SCHOOL
	DISTRICT
Respondent.
)
)
)
)	
Case
	No.
	S-CE-203
PERB
	Decision
	No.
	193
December
	31,
	1981
)
)
)
)
)
)
)
Appearances:	
Charles
	L.
	Morrone,
	Attorney 	for
	California
School
	Employees
	Association
	and
	its
	North 	Sacramento
	Chapter
No.
	368;
	Richard
	L.
	Hamilton,
	Attorney 	(Biddle, 	Walters	
&
Bukey)
	for
	North 	Sacramento 	School
	District.
Before
	Jaeger,
	Moore, 	and 	Tovar
	Members.
DECISION
The
	instant
	case
	comes
	before 	the 	Public
	Employment
Relations
	Board
	(hereafter
	Board) 	on
	exceptions 	to 	the
	hearing
officer's
	proposed
	decision
	filed
	by
	the
	North 	Sacramento
School
	District
	(hereafter
	District).
The
	hearing
	officer
	determined
	that
	the
	District 	violated
section
	3543.S(c) 	of 	the 	Educational
	Employment
	Relations
	Act
(hereafter
	EERA)l 	by
	failing
	to
	meet 	and
	negotiate 	in
	good
lThe
	~~KA
	is
	codified 	at
	Government
	Code
	Section
	3j4U
	et.
seq. 	All 	statutory 	citations
	are 	to 	the
	Government 	Code
	unless
otherwise 	specified.
Subsection 	3543.S(c)
	states:
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.

faith
	with
	the
	California
	School
	Employees
	Association
(hereafter
	CSEA)
	regarding
	a
	reduction 	in
	employee
	work
	hours,
by
	negotiating
	directly
	with
	employees,and
	by
	taking
	unilateral
action
	on
	a
	matter
	within 	the
	scope
	of
	representation.2
The
	Board
	has 	reviewed
	the 	record
	and
	concludes
	that
	the
2section
	3543.2
	defines
	the
	scope
	of
	representation 	for
exclusive
	representatives
	as
	follows:
The
	scope
	of
	representation
	shall
	be
	limited
to 	matters
	relating
	to
	wages,
	hours 	of
employment, 	and
	other
	terms
	and
	conditions
of
	employment.
	"Terms 	and
	conditions
	of
employment"
	mean
	health
	and
	welfare
	benefits
as
	defined
	by
	Section
	53200,
	leave,
	transfer
and
	reassignment
	policies,
	safety
	conditions
of
	employment,
	class 	size,
	procedures
	to
	be
used
	for 	the
	evaluation
	of
	employees,
organizational 	security
	pursuant 	to
Section
	3546,
	procedures 	for 	processing
grievances 	pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7,
	and
	3548.8,
	and
	the
	layoff
of
	probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	of
the 	Education
	Code.
	In
	addition,
	the
exclusive 	representative
	of
	certified
personnel
	has
	the
	right
	to 	consult
	on
	the
definition
	of 	educational 	objectives,
	the
determination
	of 	the 	content
	of 	courses
	and
curriculum,
	and
	the
	selection
	of 	textbooks
to 	the
	extent
	such
	matters 	are 	within 	the
discretion
	of 	the 	public 	school
	employer
under
	the 	law.
	All 	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the 	public 	school
employer 	and
	may
	not
	be
	a
	subject
	of 	meeting
and
	negotiating,
	provided
	that
	nothing
herein
	may 	be
	construed 	to 	limit
	the
	rightof 	the 	public 	school
	employer
	to 	consult
th
	any 	employees 	or
	employee
	organization
on 	any
	matter 	outside 	the 	scope 	of
representation.
2

hearing
	officer's
	findings
	of
	fact
	as
	set
	forth
	in 	the 	proposed
decision, 	attached 	hereto, 	are
	substantially
	free
	from
prejudicial
	error
	and
	are
	adopted
	by
	the
	Board
	itself.3
The
	Board
	further
	affirms
	the 	hearing
	officer's
	conclusions
of
	law
	as 	modified
	below.
	The
	Board
	additionally
	finds
	that
the
	District's
	conduct
	violated
	subsections
	3543.S(a)
	and
(b)
• 4
3The
	District
	excepts 	to 	several
	of 	the 	hearing
	officer's
findings
	of
	fact.
	First,
	to
	her
	statement
	that
	the
	District
was
	responding
	to 	Proposition
	13
	constraints
	in 	deciding
	to
reduce 	the 	hours 	of
	work
	(hearing
	officer's
	proposed
	decision,
page
	3).
	The
	District
	alleges
	it
	was
	not 	responding
	to
Proposition
	13
	fiscal
	constraints
	in
	setting
	the
	meeting
	with
the
	employees
	and
	that
	it
	also
	was
	not 	attempting 	to
	negotiate
directly
	with 	employees. 	Although
	Proposition
	13
	was
	not 	voted
on
	until
	June 	1978,
	and
	the
	meeting 	between
	the
	District
	and
teachers'
	aides
	took
	place 	in 	the 	spring
	of 	1978,
	we
	find
	this
exception 	without
	merit.
	The
	District
	admits
	that
	during
	the
spring
	of
	1978
	it
	faced
	the 	"spectre"
	of
	Proposition
	13,
	that
it
	was
	very 	mindful 	of 	the
	issue
	and
	aware
	that
	there
	would
	be
"massive
	curtailments"
	of 	school
	districts'
	income.
	Second,
the
	District
	excepts 	to
	the 	hearing
	officer's
	conclusion
	that
reduction 	in
	hours
	notices
	were
	given
	when,
	in
	fact,
	such
notices
	were
	layoff 	notices 	issued 	in
	accordance 	with
appropriate
	Education
Code
	provisions
	as 	well 	as
	Personnel
Commission
	Rules. 	This
	second
	exception
	goes
	to 	the
	heart
	of
the 	issue 	in 	the 	case
	and
	is
	addressed 	in 	the 	discussion
section
	of 	the 	Decision.
	The
	District's
	third
	exception
	is
based 	on
	the 	hearing
	officer's
	finding
	that
	all
	the
	employees
accepted
	a
	reduction 	in 	hours.
	The
	District
	claims
	some
exercised 	the 	option 	to
	go 	on
	the
	reemployment
	list--take
	a
layoff 	in
	lieu
	of 	reduction 	in 	hours.
	The
	record
	is
	not
	clear
as
	to
	how
	many,
	if
	any, 	did 	exercise 	that 	option. 	Further,
even
	if
	the 	hearing
	officer
	misstated 	the 	record, 	her
	error
would
	not
	affect
	the
	outcome
	of 	the 	case
	and
	thus
	is
	not
prejudicial.
4subsections 	3543.S(a) 	and
	(b) 	make
	it
	unlawful 	for 	an
employer
	to:
(a) 	Impose 	or 	threaten 	to
	impose
	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
3

discriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees
	because 	of
	their
	exercise
	of
rights
	guaranteed
	by
	this
	chapter.
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed 	to
	them 	by
	this
	chapter.
An
	employer
	that
	fails
	to
	meet 	and
	negotiate
	with 	the
exclusive 	representative 	necessarily
	denies
	that 	organization
its
	right 	to 	represent
	its
	members
	in
	violation
	of 	subsection
3543.5(b).
	(San
	Francisco
	Community
	College
	District
(10/12/79)
	PERB
	Dec1s1on	
No.	
105.) 	In
	San
	Francisco
	CCD, 	a
case 	including
	a
	flat
	refusal 	to 	negotiate,
	we
	also
	determined
that
	an
	employer's
	failure
	or
	refusal 	to 	negotiate
	interferes
with
	its
	employees'
	right 	to
	be
	represented 	in
	their
	employment
relationship
	by
	the
	representative 	of
	their
	choice 	in
	violation
of 	subsection 	3543.S(a). 	Although
	in 	the
	instant
	case 	the
Association
	dropped
	its
	subsection 	3543.5(b) 	charge 	before 	the
hearing
	officer
	rendered 	his 	decision, 	the
	Board 	sua 	sponte
finds 	concurrent 	subsections
	(a) 	and
	(b)
	violations
	where
	there
is
	a
	refusal 	to 	negotiate.
	As 	we
	held 	in 	the
	San
	Francisco
case,
	if
	the
	same 	employer
	concurrently 	violates
	more
	than
	one
unfair 	practice 	provision,
	it
	is
	the 	duty 	of 	the 	Board
	to 	find
more 	than 	one
	violation.
	(See 	Oakland 	Unified 	School
	District
(4/23/80)
	PERB
	Decision	
No.	
126,
	at
	pp. 	2-3, 	footnote
	2
	and
San 	Diego 	Unified 	School 	District 	(6/19/80)
	PERB
	Decision
No. 	137, 	at 	p. 	5, 	footnote 	5.)
DISCUSSION
The
	District
	does
	not 	argue
	that
	reduction
	of
	hours
	is
	not
within 	the
	scope
	of
	representation.
	However,
	the
	District
	does
except
	to
	the 	hearing
	officer's
	characterization
	of
	its
	action
as
	a
	"reduction
	in 	hours."
	It
	claims
	it
	was
	actually
instituting
	a
	"layoff"
	procedure,
	and
	that
	only 	as
	part
	of
	that
procedure 	did
	it
	offer
	a
	reduction 	in
	hours
	in
	lieu
	of
	layoff.
We
	find
	that
	the 	hearing
	officer 	correctly
	characterized 	the
District's
	actions
	as
	a
	reduction 	in 	hours.
	The
	District's
contention
	helps 	support
	the
	finding: 	in
	lieu
	of
	means
	in
place
	of, 	instead 	of.
	As
	the 	hearing
	officer 	correctly 	points
out, 	layoffs
	and
	reduction
	of 	hours
	are 	separate 	actions:
	one
4

suspends
	the
	employment
	relationship
	entirely
	for
	a
	time;
	the
other 	maintains
	the
	relationship
	but
	alters
	some
	of
	its
	terms.
Just
	because
	the
	District
	opted 	for
	reduction 	in
	hours
	instead
of
	layoff
	does
	not
	justify
	its
	failure
	to
	meet
	and
	confer
	with
the
	exclusive
	representatives
	on 	an
	issue
	which
	is
	clearly
within
	scope
	of
	representation.5	
Healdsburg
	Union 	High
School
	District
	(6/19/80)
	PERB
	Decision	
No.	
132.
The
	District
	argues
	that
	the
	reduction 	in
	hours
	in
	lieu
	of
layoff 	notice
	is
	appropriate
	under
	subsection
	45101(9) 	and
section
	45298
	of 	the 	Education
	Code
	and
	Personnel
	Commission
Rule
	3.19.6 	Section
	3540
	provides 	in
	part 	that:
5rf
	the
	District
	was
	instituting
	a
	layoff
	as 	they
contend,
	it
	was
	still
	obligated 	to 	negotiate
	as
	to
	effects
	and
manner
	of 	implementation 	of 	the
	layoff
	-
	something
	it
	failed
	to
do.
6Education
	Code
	section
	45101
	states
	in
	pertinent
	part:
Definitions. 	Definitions
	as 	used
	in
	this
chapter:
(g)
	"Layoff 	for 	lack 	of
	funds 	or
	layoff 	for
lack 	of
	work"
	includes
	any
	reduction 	in
hours 	of
	employment
	or 	assignment
	to
	a
	class
or 	grade 	lower 	than
	that
	in
	which
	the
employee 	has 	permanence,
	voluntarily
consented 	to
	by
	the
	employee,
	in 	order
	to
avoid
	interruption
	of
	employment
	by
	layoff.
The
	provisions 	of
	this 	section 	shall
	not
apply
	to 	school
	districts
	to
	which
	the
provisions 	of
	Article
	6
	(commencing
	with
section
	45240)
	of
	this
	chapter 	are
applicable.
Education
	Code
	section
	45298
	states:
Reemployment 	and 	promotional 	examination
preference 	of 	persons 	laid 	off: 	Voluntary
5

demotions 	or 	reduction 	in 	time. 	Persons
laid 	off 	because 	of 	lack 	of 	work 	or 	lack 	of
funds 	are 	eligible 	to 	reemployment 	in
preference 	to 	new 	applicants. 	In 	addition,
such 	persons 	laid 	off 	have 	a 	right 	to
participate 	in 	promotional 	examinations
within 	the 	district 	during 	the 	period 	of
39 	months.
Employees 	who 	take 	voluntary 	demotions 	or
voluntary 	reductions 	in 	assigned 	time 	in
lieu 	of 	layoff 	shall 	be, 	at 	the 	option 	of
employee, 	returned 	to 	a 	position 	in 	their
former 	class 	or 	to 	positions 	which 	increased
assigned 	time 	as 	vacancies 	become 	available,
and 	without 	limitation 	of 	time, 	but 	if 	there
is 	a 	valid 	reemployment 	list 	they 	shall 	be
arranged 	on 	that 	list 	in 	accordance 	with
their 	proper 	seniority.
Personnel 	Commission 	Rule 	3.19 	states:
Decreases 	In Assigned 	Time
A. 	When 	a 	permanent 	position 	is 	to 	be
reduced 	in 	assigned 	time, 	the 	incumbent
shall 	have 	the 	right 	to 	transfer 	into 	any
vacant 	position 	in 	the 	class 	which 	is 	not
greater 	in 	assigned 	time 	than 	his 	former
position. 	If 	a 	vacant, 	permanent 	position
of 	equal 	time 	is 	not 	available, 	the
incumbent 	may 	bump 	the 	incumbent 	of 	a
position 	with 	equal 	time 	who 	has 	the 	least
seniority 	in 	the 	class, 	provided 	that 	he 	has
greater 	seniority. 	If 	no 	such 	option 	is
available, 	he 	may 	bump 	the 	employee 	with 	the
least 	seniority 	among 	those 	occupying
positions 	of 	less 	time 	than 	the 	original
position 	and 	greater 	time 	than 	the 	reduced
position, 	provided 	that 	he 	has 	greater
seniority. 	An 	employee 	so 	bumped 	shall 	have
similar 	bumping 	rights.
B. 	When 	an 	employee 	is 	faced 	with 	a
reduction 	in 	assigned 	time, 	the 	rules 	on
Nothing 	contained 	[in EERA] 	shall 	be 	deemed
to 	supersede 	other 	provisions 	of 	the
6

transfer
	and
	demotion
	shall
	be
	given
	a
liberal 	interpretation
	in 	order 	to 	relieve
the
	effect
	of
	such
	reduction.
C. 	The 	employee
	shall
	be
	notified
	in
writing 	of
	any
	reduction 	in 	hours.
	The
employee
	shall
	acknowled
	receipt
	of 	such
notification
	and
	agreement
	to 	the 	reduction
by
	affixing 	his 	or 	her
	signature 	to
	a
	copy
of 	the
	notification
	and
	returning 	the
	same
to 	the
	District
	Administration.
Education
	Code
	and
	the
	rules
	and
	regulations
of
	public
	school
	employers
	which
	establish
and
	regulate
	tenure
	or
	a
	merit
	or
	civil
service
	system
	or
	which
	provide 	for
	other
methods
	of
	administering
	employer-employee
relations,
	so 	long 	as
	the
	rules
	and
regulations
	or
	other
	methods
	of
	the
	public
school
	employer
	do
	not
	conflict
	with
	lawful
collective
	agreements.
The
	majority 	in
	Healdsburg,
	supra,
	interpreted
	this
language
	to
	mean
	that,
	where
	a
	proposal
	pertains
	to
	a
	subject
which
	is
	covered
	by
	the 	Education
	Code,
	the
	negotiability
	of
that
	proposal 	or
	subject
	is
	not
	precluded 	so 	long 	as
	it
	does
not
	directly 	conflict
	with 	the
	Code.
	Healdsburg,
	supra,
	at
pp. 	14-15. 	Subsection
	45101(9)
	applies 	exclusively
	to 	nonmerit
systems
	and
	is
	therefore 	inapplicable 	to
	the
	North 	Sacramento
School
	District's
	merit
	system.7	
Section
	45298,
	applicable
to 	merit
	system
	districts,
	establishes
	a
	procedure
	to
	be
followed 	regarding 	promotional
	and
	reemployment
	practices
subsequent
	to 	layoff.
	Personnel
	Commission 	Rule
	3.19
7A
	merit 	system
	district 	is
	one 	which
	observes
	civil
service 	procedures.
7

establishes
	employee
	rights
	of
	transfer
	and
	bumping
	rights
after
	it's
	been
	decided
	that
	a
	permanent
	position
	is
	to
	be
reduced
	in 	assigned 	time.
	Therefore,
	neither 	section
	45298
	of
the
	Education
	Code
	nor
	Personnel
	Commission
	Rule
	3.19
	conflict
with
	the 	finding
	that
	the
	reduction
	of 	hours
	issue
	is
negotiable.
	As
	in
	the
	voluntary 	reduction 	in
	hours
	proposal
analyzed 	in
	Healdsburg,
	supra,
	the
	notices 	sent
	out
	by
	the
District
	in 	the
	present
	case
	allowed
	the
	employees
	affected
	by
the
	layoff 	decision 	to
	voluntarily
	select
	a
	reduction 	in
	hours
in
	lieu
	of
	layoff.
	The
	Board
	in
	Healdsburg
	found
	that
	such
	a
proposal
	was
	"inextricably
	bound
	to
	employees'
	wages 	and
hours."
	Healdsburg,
	supra,
	p. 	77.
We
	find
	that
	the
	decision 	to
	reduce 	hours
	is
	within
	the
scope
	of
	representation.
	The
	District
	thus
	violated 	subsection
3543.5(c)
	by
	taking
	unilateral
	action
	on
	a
	matter 	in
	which
	the
District
	was
	obligated 	to 	negotiate.
	San Mateo
	Community
College
	District
	(6/8/79)
	PERB
	Decision
	No.
	94;
	Pajaro Valley
Unified
	School
	District
	(5/22/78)
	PERB
	Decision	
No.	
51.
Although 	the 	hearing
	officer
	did 	not 	find
	a
	violation
	of
subsections 	3543.5(a)
	and 	(b) 	when
	the
	District
	met
	directly
with 	the
	employees
	and
	instituted 	unilateral
	changes
	in 	hours,
nonetheless,
	Board
	precedent
	clearly
	supports 	our
	finding
	that
these 	acts 	are
	a
	violation
	of 	subsections 	3543.S(a)
	and
	(b).
San
	Francisco
	Community
	College
	District
	(10/12/79)
	PERB
Decision	
No. 	105.
8

ORDER
Based
	upon
	the 	foregoing
	facts,
	conclusions
	of
	law
	and
	the
entire
	record
	in
	this
	case,
	it
	is
	found
	that
	the
	North
Sacramento 	School
	District
	has
	violated
	subsections 	3543.S(a),
(b)
	and 	(c)
	of
	the 	Educational 	Relations
	Employment
	Act.
	It
	is
hereby
	ORDERED
	that
	the
	District
	and
	its
	representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
1.
	Taking
	unilateral
	action
	with
	respect 	to
	reduction 	in
hours 	of
	classified
	employees
	or
	other 	matters 	within 	the
	scope
of
	representation;
2.
	Negotiating
	or 	seeking
	to 	negotiate
	directly
	with
	unit
employees
	with
	respect 	to 	reduction
	of
	their
	hours 	or
	other
matters 	within 	the
	scope
	of
	representation;
3. 	In
	any
	other
	manner
	failing
	or
	refusing,
	upon
	request,
to
	meet
	and
	negotiate 	in
	good
	faith
	with
	CSEA
	as
	the
	exclusive
representative
	of
	its
	classified
	employees;
4. 	Denying
	CSEA
	its
	right
	to 	represent 	unit
	members	
by
failing
	and
	refusing 	to
	meet 	and
	negotiate
	about
	matters 	within
the
	scope
	of
	representation
	or
	by
	negotiating
	directly
	with
unit
	employees 	and;
5.
	Interfering
	with 	es 	because 	of
	their 	exercise
of
	their 	right 	to 	select
	an
	exclusive 	representative 	to
	meet
and
	negotiate 	with 	the 	employer 	on
	their 	behalf
	by
	unilaterally
9

changing
	matters 	within 	the
	scope
	of
	representation
	without
meeting
	and
	negotiating
	with 	the
	exclusive
	representative.
B.
	TAKE 	THE
	FOLLOWING AFFIRMATIVE 	ACTION
	WHICH
	IS
NECESSARY
	TO
	EFFECTUATE
	THE
	POLICIES
	OF
	THE
	ACT:
1.
	Reinstate,
	upon
	request,
	all
	teacher 	aides 	to
	their
full
	hours
	of
	employment
	prior
	to
	the
	June
	and
	July
	1978
reduction
	of 	hours;
	make
	whole
	each
	of 	the 	teacher 	aides
	whose
hours
	were
	so 	reduced
	for
	any
	loss
	of
	pay 	and
	benefits
	which
they
	suffered
	because
	of
	reduced 	hours
	during 	the
	1978-79
school 	year
	until
	such 	time
	as:
	(1)
	they
	are
	reinstated 	to
their
	previous
	hours
	or;
	(2)
	their
	hours 	of
	employment
	are
changed
	upon
	agreement
	with
	CSEA
	or;
	(3)
	the
	District
	has 	met
and
	negotiated 	in
	good
	faith
	with
	CSEA
	through 	the
	impasse
procedures;
2.
	Within
	five
	workdays
	of 	date
	of
	service
	of
	this
Decision, 	post 	copies 	of
	this
	ORDER
	at
	its
	headquarters
	and
	in
each
	school 	for
	30
	consecutive
	workdays
	while 	school
	is 	in
session 	in
	conspicuous
	places
	where
	notices 	to
	classified
employees
	are 	customarily 	posted;
	and
3.
	Upon
	completion 	of 	the 	posting 	period
	and
	within
	35
workd
	s
	of 	service 	of
	this 	decision, 	notify
	the 	Sacramento
regional 	director
	of 	the 	Public
	Employment
	Relations
	Board
	in
writing 	of 	the 	action 	the
	District
	has 	taken 	to
	comply
	with 	the
ORDER.
	Further, 	notify 	the 	Sacramento 	regional
10

director
	in 	writing
	when
	full
	compliance
	with
	this
	ORDER
	has
been
	achieved.
By:
	Irene
	Tovar,
	Member	
Barbara
	D.
	Moore,
	Member
Joh'W
W.
	Jaeger,•
Member
..
11

APPENDIX: 	NOTICE.
NOTICE
	TO
	EMPLOYEES
POSTED
	BY ORDER
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing
	in
	which
	all
	parties
	had
	the
	right
	to
participate,
	it
	has
	been 	found
	that
	the
	North 	Sacramento
	School
District
	violated
	the
	Educational
	Employment
	Relations
	Act
(EERA)
	by
	taking
	unilateral
	action
	regarding 	reduction
	of 	hours
for 	teacher
	aides,
	without 	providing 	the
	exclusive
representative,
	the
	California
	School
	Employees
	Association
(CSEA)
	and
	its
	North 	Sacramento 	Chapter	
No.	
368,
	with
	notice
and
	an
	opportunity 	to
	negotiate.
	As 	a
	result
	of
	this
	conduct,
we
	have 	been
	ordered
	to 	post
	this
	Notice.
	We
	will
	abide
	by
	the
following:
WE
	WILL
	NOT
	take
	unilateral
	action
	regarding
	proposed
changes
	of
	employee 	wages, 	hours 	or 	terms 	or
	conditions 	of
employment,
	without 	providing 	the 	exclusive
	representative
	with
notice
	and
	opportunity 	to 	negotiate.
WE
	WILL
	NOT
	deny
	to
	CSEA,
	or
	any
	other
	employee
organization
	of 	the
	North 	Sacramento School
	District, 	rights
guaranteed 	to
	them 	by
	the
	EERA.
WE
	WILL 	REINSTATE,	
upon	
request,
	all
	teacher 	aides 	to 	their
full
	hours 	of
	employment
	prior 	to 	the 	June
	and
	July
	1978
reduction 	of 	hours
	and 	make 	whole 	each 	of 	the 	teacher 	aides
whose
	hours 	were 	so 	reduced 	J..
-For
	an"	
J.:t	
..L'-"'....,.....,	1
r.cc
	,...-f
	......,
....	
r.a~v	
t'	
.l	
and
	...	
hi:,ni:,fi'	
__
.....
__
	+-s
	-
l

which
	they
	suffered
	as
	a
	result
	of
	the
	reduction
	of 	hours
during 	the
	1978-79
	school
	year
	until
	such 	time 	as
	(l) 	they
	are
reinstated
	to
	their
	previous
	hours
	or,
	(2)
	their
	hours 	of
employment
	are
	changed
	upon
	agreement
	with
	CSEA
	or,
	(3)
	after
the
	District
	has
	met 	and
	negotiated
	in
	good
	faith
	with
	CSEA.
Dated:	
NORTH
	SACRAMENTO
	SCHOOL
	DISTRICT
By: D
1st
r 1
ct
	Representative
=------,-~--,,----,=------:----,--,-----
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR 30
CONSECUTIVE
	WORKDAYS 	FROM THE 	DATE 	OF
	POSTING
AND 	MUST 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
	MATERIAL.
2

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE
	OF
	CALIFORNIA
CSEA
	and
	its
	NORTH 	SACRAMENTO
CHAPTER
	NO.
	368,
Charging
	Party,
v.
NORTH 	SACRAMENTO
	SCHOOL
DISTRICT,
R_e~.
s_p~o_n_d_en_t_
Unfair
	Practice
Case
	No.
	S-CE-2O3-78/79
PROPOSED
	DECISION
(6/13/79)
)
)
)
)
)
)
)
)
)
)
__________
	.
___
)
Appearances: 	Richard
	L.
	Hamilton,
	Attorney 	(Biddle, 	Walters
&	
Bukey),
	for
	North 	Sacramento 	School
	District;
	Charles
	J.
Morrone,
	Attorney,
	for
	CSEA
	and
	its
	North 	Sacramento
	Chapter
No.
	368.
Before
	Marian
	Kennedy,
	Hearing
	Officer
STATEMENT OF 	THE 	CASE
On
	December
	13, 	1978,
	CSEA
	and
	its
	North 	Sacramento
Chapter	
No. 	368
	(hereafter
	CSEA)
	filed
	an
	unfair 	practice
charge
	against
	North 	Sacramento 	School
	District 	(hereafter
District) 	alleging 	that
	the
	District
	violated 	sections
	3543,
3543.S(b)
	and
	3543.5(c)
1
of 	the 	Educational
	Employment
	Relations
Act
	(herafter
	EERA)
	by
	negotiating 	directly
	with
	employees,
for
	whom
	CSEA
	is
	an
	exclusive 	representative,
	by
	denying
.
CSEA
	its	
r1.gnc
, .
to 	represent 	these
	employees
	in 	their	
employ-
ment	
relations
	with 	the
	District,
	and 	by
	refusing 	to 	meet
and
	negotiate 	in
	good
	faith
	with
	CSEA
	with 	respect 	to
	a
reduction 	in
	work 	hours 	of 	these 	employees. 	Respondent
answered 	denying 	each 	of 	the 	allegations.
1unless 	otherwise 	specified, 	all 	statutory 	citations
are 	to 	the 	Government 	Code.

Following
	an
	informal 	conference,
	a
	formal
	hearing
	was
conducted
	in
	Sacramento
	on March
	16,
	1979.
	In
	its
	post-hearing
brief,
	CSEA
	sought
	to
	withdraw
	its
	charges
	of
	violation 	of
sections
	3543
	and
	3543.5(b)
	and
	to
	"clarify"
	its
	3543.5(c)
charge,
	alleging 	that
	the
	District
	violated 	that
	section
	by
negotiating
	directly
	with
	employees
	in
	the
	unit
	represented
	by
CSEA
	and 	by
	taking
	unilateral
	action
	on
	a
	mandatory
	subject 	of
negotiation.
	In
	its
	response
	brief,
	the
	District
	objected
	to
the
	CSEA's 	amendment
	as 	untimely,
	since 	the
	amendment was
first
	sought
	in
	CSEA's
	post-hearing
	brief.
	The
	District
acknowledged, 	however,
	that
	it
	was
	not 	prejudiced
	by
	the
language 	change. 	Since
	the
	change
	sought
	does
	not
	alter
	the
substance
	of 	the
	charge
	but
	merely
	corrects
	the 	designation 	of
the 	subsections 	of
	EERA
	allegedly 	violated,
	and
	the
	District
is
	not 	thereby 	prejudiced, 	the
	clarification 	is
	permitted
pursuant 	to
	California
	Administrative
	Code,
	title
	8,
	part
	III,
section
	32655.
FINDINGS
	OF
	FACT
The
	parties 	are 	in 	substantial
	agreement
	on
	the
facts.
	CSEA
	is
	the 	exclusive 	representative 	for
	a
comprehensive
	unit 	of
	classified
	employees
	of 	the
	District,
including 	teacher 	aides.
	The
	parties 	entered 	into
	a
collective
	bargaining 	contract 	in
	September
	of
	1977
	effective
through 	June
	of
	1980.
In April 	or
	May
	of
	1978 	Mrs. 	Bonnie Ward,
	acting
	on
behalf 	of 	the 	deputy 	superintendent 	for 	support 	services 	for
the 	District, 	held
	a
	series 	of meetings 	with 	the 	teacher
2

aides 	in 	the 	various 	District 	schools. 	In 	these 	meetings
the 	aides 	were 	asked whether 	they 	expected 	to 	return 	the
following 	year 	and what 	were 	the 	maximum 	and minimum number
of 	hours 	they would 	accept. 	The 	District 	had 	decided, 	in
response 	to 	Proposition 	13 	financial 	constraints, 	to 	reduce
the 	hours 	of 	some 	aides 	rather 	than 	lay 	off 	any 	of 	them.
Mrs. 	Ward, 	therefore, 	also 	solicited 	the 	aides' 	agreement
to 	reduced 	hours 	in 	lieu 	of 	layoff.
The 	single 	aide who 	testified 	stated 	that, 	faced 	with
such 	a 	choice, 	she 	agreed 	to 	a 	reduction 	of 	hours. 	In 	addition,
at 	least 	some 	of 	the 	aides 	were 	asked 	to 	meet 	separately 	with
their 	school 	principal 	prior 	to 	the meeting 	witn ijrs. 	Ward
and 	in 	these 	meetings 	were 	informed 	of 	their 	option 	to 	accept
reduction 	in 	hours 	in 	lieu 	of 	layoff, 	and 	acquiesced 	in 	the
reduction 	in 	hours.
In 	late 	June 	and 	early 	July 	of 	1978, 	the 	District 	sent
out 	notices 	to 	40 	teacher 	aides 	formally 	telling 	each what
their 	reduced 	hours 	would 	be 	and 	that 	their 	acceptance 	of
reduced 	hours 	was 	an 	alternative 	to 	layoff. 	The 	notice 	further
stated 	that 	any 	aide who 	did 	not 	notify 	the 	District 	that 	she
accepted 	the 	reduced 	hours 	would 	be 	laid 	off 	as 	of 	a 	specified
date. 	All 	employees 	accepted 	the 	reduction 	and 	none 	were
laid 	off.
CSEA was 	not 	notified 	of 	either 	the 	aides' 	individual
meetings 	with 	their 	principals 	or 	their 	group 	meetings 	with
Mrs. 	Ward; 	nor 	was 	CSEA 	informed 	in 	advance 	of 	the 	reduction-
in-hours 	notices.
3

CSEA
	first
	learned 	of
	the
	reduction
	in
	hours
	when
	a
field
	representative 	called
	the
	District
	in
	late
	June
	or
early
	July
	as
	part
	of
	a
	survey
	of
	school
	districts
	to
	inquire
whether
	any
	layoffs
	or 	reduction 	in
	hours
	of
	employees
	was
contemplated 	as
	a
	result
	of
	the
	passage
	of 	Proposition
	13.
Upon
	being
	told 	that
	there
	would
	be
	reductions
	in
	hours
	for
some
	teacher 	aides,
	she
	requested
	and
	subsequently
	received
copies
	of 	the
	notices 	sent
	by
	the
	District
	to
	the 	aides.
Thereafter,
	the
	field
	representative
	wrote 	to
	the
superintendent 	of
	the
	District
	protesting
	the
	District's
action 	in
	reducing
	aides'
	hours
	without
	first
	meeting
	and
negotiating
	with
	CSEA.
	At
	her
	request,
	CSEA
	and
	the
	District
met 	on
	the 	issue
	on
	July
	28,
	1978. 	At
	the
	meeting
	CSEA
demanded
	that
	the
	District
	negotiate
	with
	respect
	to
	the
reduction 	of 	hours.
	The
	District
	refused,
	asserting
that
	the 	subject
	was
	outside 	the
	scope
	of 	negotiations.
	No
further
	meetings
	were
	held.
The
	current 	negotiated 	contract
	was
	entered 	into
	by
	the
parties
	on 	September 	8, 	1977.
	Included
	in
	CSEA's
	initial
contract
	proposal
	was
	an
	article
	dealing with 	layoffs
	and
reemployment.
	The
	proposed
	article
	defined
	layoff,
	provided
that
	the personnel 	commission's
	layoff
	procedures
	shall
	apply,
and
	provided 	for 	the 	continued 	accumulation
	of 	seniority
	and
for 	rehire 	rights.
	It
	made 	no
	reference 	to 	reduction 	of
	hours
or 	reduction 	of 	hours 	in 	lieu 	of 	layoff.
	The
	District
responded
	that that 	article
	was
	outside 	the 	scope 	of
representation.
4

CSEA's 	witness, 	a 	member 	of 	the 	union's 	negotiating
team, 	testified 	that 	the 	layoff 	proposal 	was 	raised 	only
once 	in 	negotiations 	and, 	in 	light 	of 	the 	District's 	refusal
to 	discuss 	the 	proposal 	as 	outside 	of 	scope 	of 	representation,
the 	union 	did 	not 	raise 	it 	again. 	The 	District's 	negotiating
team witness 	did 	not 	recall 	the 	article 	being 	raised 	orally
in 	negotiations 	at 	all.
CSEA 	responded 	to 	the 	District's 	refusal 	to 	negotiate
the 	layoff 	article, 	as 	well 	as 	several 	others, 	by 	filing 	an
unfair 	practice 	charge with 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB) 	on May 	23, 	1977. 	On 	July 	25, 	1977, 	CSEA
wrote 	to 	the 	PERE withdrawing 	the 	charge, 	without 	prejudice, 	as
part 	of 	the 	agreement 	between 	the 	parties 	to 	a 	contract.
The 	collective 	negotiating 	contract' in 	effect 	at 	all
times 	relevant 	in 	this 	case 	includes 	a 	"waiver" 	clause which
reads 	as 	follows:
Waiver
A. 	The 	Association 	agrees 	not 	to 	initiate 	or
reopen 	negotiations 	on 	any 	topic 	before 	one
hundred 	and 	twenty 	(120) 	days 	prior 	to 	the
termination 	date 	of 	this 	Agreement, 	unless
the 	scope 	of 	representation 	under 	the 	Rodda
Act 	(SB 	160) 	is 	broadened 	by 	State 	Statute,
or 	by 	Educational 	Employment 	Relations 	Board
rule, 	regulation 	or 	order, 	in which 	case
negotiations 	may 	be 	reopened 	ninety 	(90) 	days
after 	such 	amendment 	solely on matters
hitherto 	not 	subject 	to 	negotiations.
B. 	The 	District 	retains 	the 	right 	to 	make,
modify 	and 	enforce 	reasonable 	rules 	and
procedures 	not 	inconsistent 	with 	this
Agreement.
C. 	Items 	within 	this 	agreement 	requiring
clarification may 	be 	subject 	to 	negotiation
during 	the 	period 	of 	this 	agreement 	upon 	the
request 	and mutual 	agreement. of 	both 	parties.
5

ANALYSIS 	AND 	CONCLUSIONS 	OF 	LAW
CSEA 	contends 	that 	the 	District 	committed unfair
practices 	by 	negotiating 	directly 	with 	employees 	regarding
reduction 	of 	hours 	and 	by 	unilaterally 	reducing 	their 	hours
without 	first 	negotiating 	with 	CSEA.
The 	District 	contends 	that 	the 	reduction 	of 	hours 	was
made 	in 	lieu 	of 	laying 	off 	employees 	and 	that 	it 	therefore
had 	no 	obligation 	to 	negotiate 	with 	CSEA 	and 	could
unilaterally 	take 	action 	on 	that 	subject 	on 	three 	alterna-
tive 	grounds: 	(1) 	reduction 	of 	hours 	in 	lieu 	of 	layoff 	is
not 	a 	mandatory 	subject 	of 	negotiation; 	(2) 	even 	if 	it 	is
a 	mandatory 	subject, 	the 	union 	waived 	its 	right 	to 	meet
and 	negotiate 	on 	the 	subject 	during 	the 	contract 	term by
agreeing 	to 	the 	inclusion 	of 	a 	"waiver" 	clause 	in 	the
contract; 	or 	(3) 	if 	it 	is 	a 	mandatory 	subject 	of 	negotiation,
CSEA 	is 	estopped 	from 	so 	arguing 	now because 	it 	previously
filed 	an 	unfair 	practice 	charge 	on 	that 	issue 	and 	then
withdrew 	the 	charge 	as 	part 	of 	the 	agreement 	of 	the 	parties
in 	reaching 	a 	contract.
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 ..
Meeting 	and 	negotiating 	in 	good 	faith 	is 	defined 	by
section 	3540.l(h) 	as 	follows:
. 	meeting, 	conferring, 	negotiating, 	and
discussing 	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 	incorporating 	any 	agree-
ments 	reached, 	.
6

Finally, 	"scope 	of 	representation" 	is 	defined 	in
section 	3543.2 	as 	being 	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. 	All 	matters 	not
specifically 	enumerated 	are 	reserved 	to 	the 	public
school 	employer 	and may 	not 	be 	a 	subject 	of meeting
and 	negotiating,
Scope 	of 	Representation
The 	District 	takes 	the 	position 	that 	the 	reduction 	in
hours 	of 	employees 	in 	this 	case 	does 	not 	fall 	within 	the
statutorily 	defined 	scope 	of 	representation. 	As 	part 	of
that 	argument 	the 	District 	characterizes 	its 	action 	as 	a
"layoff" 	or 	"reduction 	of 	hours 	in 	lieu 	of 	layoff." 	In
fact, 	the 	District notified 	each 	of 	40 	teacher 	aides 	that
their 	hours 	would 	be 	reduced 	to 	a 	specified number, 	that
they 	could 	signify 	acceptance 	of 	the 	new 	hours 	by 	completing
and 	returning 	a 	form 	and 	that, 	if 	an 	acceptance was 	not
received 	by 	the 	District, 	the 	aide 	would 	be 	laid 	off 	as 	of
a 	specified 	date. 	No 	one was 	laid 	off.
It 	is 	clear 	that 	the 	unilateral 	action 	taken 	here 	was 	simply
the 	altering 	of 	the 	hours 	of work 	of 	bargaining 	unit 	employees.
While 	layoffs, 	with 	one 	exception, 	are 	not 	among 	the
enumerated 	terms 	and 	conditions 	of 	employment 	in 	section
3543.2, 	there 	is 	no 	question 	that 	hours 	of 	employment 	is
explicitly 	a 	mandatory 	subject 	of 	negotiation. 	Indeed, 	the
7

District 	offers 	no 	ground 	for 	finding 	that 	reduction 	of 	hours
is 	not 	directly 	a 	matter 	of 	"hours 	of 	employment" 	and
therefore within 	scope.
The 	District's 	characterization 	of 	its 	unilateral 	action
as 	a 	layoff 	or 	reduction 	in 	hours 	in 	lieu 	of,layoff 	stems
from 	the 	Education 	Code 	requirement 	that 	any 	reduction
in 	hours 	of 	classified 	employees 	must 	be 	"consented 	to
by 	the 	employee 	in 	lieu 	of 	layoff." 	California 	Sch.
Employees 	Assn. 	v. 	Pasadena 	Unified 	Sch. 	Dist. 	(1977) 	71
Cal. App. 3d 	318; 	[ 139 	Cal. Rptr 	633] . 	Layoffs 	and 	reductions
of 	hours 	are, 	nonetheless, 	separate 	actions: 	one 	suspends
the 	employment 	relationship 	entirely 	for 	a 	time; 	the 	other
maintains 	the 	relationship 	but 	alters 	some 	of 	its 	terms.
The 	District 	made 	the 	policy 	decision 	that 	its 	educational
objectives 	would 	be 	better 	served 	by 	reducing 	the 	hours 	of
some 	40 	teacher 	aides 	rather 	than 	laying 	off 	a 	much 	smaller
number 	of 	aides. 	By 	choosing 	to 	reduce 	hours 	and maintain
the 	employment 	relationship, 	instead 	of 	instituting 	layoffs,
the 	District 	brought 	itself within 	the mandatory 	scope 	of
negotiation. 	The 	District 	cannot 	avoid 	that 	result 	by
arguing 	that, 	if 	it 	had made 	the 	other 	choice, 	then arguably
it 	would 	not 	have 	to 	negotiate.
The 	PERE 	has 	found, 	in 	accordance 	with National
Labor 	Relations 	Board 	(hereafter 	NLRB) 	precedent, 	that
an 	employer 	violates 	section 	3543.S(c) 	by 	making
unilateral 	changes 	in matters 	which 	are 	mandatory 	subjects
of 	negotiation. 	See P~jaro 	Valley 	Unified 	School 	District
8

(May 	22, 	1978) 	PERE 	No. 	51 2 and 	cases 	cited 	therein;
NRTA-AARP 	Pharmacy 	(1974) 	210 	NLRB 	443 	[86 	LRRM 	1129].
Furthermore, 	while 	the 	question 	has 	not 	yet 	been 	directly
decided 	by 	the 	PERE, 	it 	is 	well-settled 	law under 	the 	National
Labor 	Relations 	Act 	that 	an 	employer 	violates 	its 	obligation
to 	bargain 	in 	good 	faith 	with 	an 	exclusive 	representative 	by
meeting 	and 	negotiating 	directly 	with 	employees 	on matters
. 2 rn 	Pajaro, 	the 	PERE 	found 	that 	the 	unilateral 	action
of 	passing 	on 	increased 	health 	benefit 	costs 	to 	employees
did 	not 	constitute 	a 	refusal 	to 	negotiate 	in 	good 	faith
because 	the 	employer was 	merely 	continuing 	a 	past 	practice
of 	passing 	on 	those 	costs. 	In 	footnote 	#1 	of 	its 	reply 	brief,
the 	District 	alludes 	to 	t~e 	hearing 	officer's 	exclusion 	of
proffered 	"past 	practice" 	evidence. 	The 	evidence 	which 	the
District 	sought 	to 	introduce was 	that, 	prior 	to 	the 	EERA 	and
prior 	to 	any 	collective 	negotiating 	contract, 	the 	District
had 	routinely met 	with 	aides 	once 	each 	spring 	to 	solicit
information 	about 	what 	hours 	they wanted 	to 	work 	and 	where
during 	the 	next 	year. 	Essentially, 	the 	District's 	argument 	is
that 	in 	the 	past 	it 	dealt 	directly 	with 	employees 	regarding
their 	hours 	and 	it was 	only 	continuing 	that 	practice 	by
meeting 	directly with 	employees 	in 	1978-79 	rather 	than
negotiating 	with 	their 	exclusive 	representative.
The 	argument 	ignores 	the 	obvious 	fact 	that 	there 	is 	now
a 	law obligating 	the 	District 	to 	negotiate 	with 	an 	exclusive
representative 	of 	its 	employees 	and 	there 	is 	now 	such 	a
renrest=mtative	--.L- 	- 	- 	- 	while- 	there	- 	- 	- 	was- 	none 	in 	the 	nast.	J. 	"Past
practice" 	cannot 	be 	ground 	for 	continuing 	even 	well-established
acts 	which 	are 	now 	forbidden 	by 	the 	law.
Counsel 	for 	the 	District 	indicated 	in 	his 	argument 	on
admissibility 	of 	the 	evidence 	that 	he 	did 	not 	seek 	to 	introduce
evidence 	that 	CSEA had 	acquiesced 	in 	the 	District's 	dealing
directly 	with 	employees 	in 	the 	past 	and 	thereby 	waived 	its 	right
to 	object 	to 	the 	employer 	continuing 	that 	practice.
Finally, 	the 	evidence 	sought 	to 	be 	presented 	related 	only
to 	past 	obtaining 	of 	information 	from 	aides 	in 	yearly 	spring
meetings. 	The 	District 	did 	not 	offer 	to 	show 	that 	it 	has 	in
the 	past 	negotiated 	layoffs 	versus 	reduction 	in 	hours 	with
employees. 	While 	the 	soliciting 	of 	availability 	information
would 	arguably 	not 	constitute 	negotiating 	directly 	with
employees, 	it 	is 	also 	not 	the 	basis 	for 	finding 	the 	violation.
It 	is 	the 	negotiation 	directly 	with 	employees 	of 	layoffs
versus 	reduction 	of 	hours 	which 	is 	prohibited .and 	for 	which
there 	is 	no 	evidence 	of 	past 	practice. 	Thus, 	even 	if 	past
practice 	could 	somehow 	justify 	continued 	direct 	negotiation
with 	employees, 	there was 	in 	fact 	not any 	past 	practice with
respect 	to 	that.
9

within
	the
	scope
	of
	representation.
3
Thus,
	in
	Popular
Volkswagen 	(1973)
	205
	NLRB	
No. 	62
	[84
	LRRM
	1002),
	the 	board
found
	a
	violation
	based
	upon
	the
	employer
	meeting
	with
employees 	and
	seeking
	their
	agreement
	to
	a
	change
	in
working
	hours
	from
	a
	five-day
	to
	a
	four-day
	week.
Therefore, 	the
	District
	violated
	section
	3543.5(c) 	by
failing
	to
	negotiate
	with
	CSEA
	regarding 	the 	reduction
	of
hours
	and 	by
	negotiating
	directly
	with
	employees 	and
taking
	unilateral
	action
	on
	that
	subject,
	absent
	some
waiver
	of
	its
	bargaining
	rights
	by
	CSEA.
Waiver
The
	District
	contends
	that,
	even
	if
	it
	had 	an
obligation
	during
	the
	initial
	negotiation 	of 	the
	contract
to
	negotiate
	regarding 	reduction 	of
	hours,
	that 	obligation
does
	not
	exist
	during 	the
	contract
	term because
	CSEA
	waived
its
	right
	to
	negotiate
	on
	that
	subject
	by 	(1) 	making
	a
proposal 	regarding
	layoffs
	and
	then 	dropping
	it
	when
	the
District
	asserted 	that
	the 	subject
	was
	outside 	the
	scope
of 	negotiation,
	and 	(2)
	subsequently 	signing
	a
	contract
which
	included
	a
	waiver
	of
	CSEA's
	right
	to
	negotiate
	on
	any
topic
	during 	the 	contract
	term
	unless 	the
	PERB
	or 	the
Legislature
	broadened
	the
	scope
	of negotiating. 	Neither
type
	of
waiver
	is 	apprupL~at~ly
	found
	in
	this 	case.
The
	NLRB
	has
	consistently
	found
	that 	failure 	of
	a
	union
to 	obtain
	a
	particular
	concession 	during 	bargaining
	and
	its
3The 	PERB
	has 	cited with 	approval
	NLRB
	precedent 	on
this 	point 	in Hanford High 	School 	Federation 	of Teachers,
AFT, 	AFL-CIO 	v. 	Hanford 	Joint
	Union High 	School
	District
Board 	of 	Trustees 	(June 	27, 	1978) 	PERB 	No. 	58.
10

abandonment
	of
	it,
	even
	in 	return
	for 	other
	concessions,
	is
not
	sufficient
	to
	find
	a
	waiver
	of
	the
	union's
	right
	to
bargain.
	Beacon
	Piece
	Dyeing	
&	
Finishing
	Co.,
	Inc.
	(1958)
121
	NLRB
	953;
	Timken
	Roller
	Bearing
	Co.
	v.
	NLRB
	(6th
	Cir
	1963)
325
	F.2d
	746
	[54
	LRRM
	2785].
	Thus,
	in
	Beacon
	Piece
	Dyeing
the
	NLRB
	held
	that
	a
	union waiver
	of
	bargaining
	on
	mandatory
subjects
	"would
	not
	be
	readily 	inferred".
	To
	find
	waiver
based
	upon
	a
	union's 	unsuccessful
	presentation 	of
	a
bargaining
	demand
	would
	"encourage
	employers
	to
	firmly
resist
	inclusion 	in 	contracts 	of
	as
	many
	subjects
	as
	possible
with
	a
	view
	to
	such
	resistance
	giving
	them
	a
	right
	of
	unilateral
action
	thereafter
	on
	all
	subjects
	excluded
	from
	the
	contract"
and would
	"discourage
	unions
	from
	presenting
	any
	subjects 	in
negotiations
	...
[in 	order
	to 	avoid 	the]
	dilemma
	of
	either
giving
	up
	the
	demand
	and
	thereby
	losing
	its
	bargaining
	rights
on
	the
	subject, 	or
	striking
	in
	support
	of
	the
	demand
..
[which] 	would
	seriously
	impede
	the
	collective
	bargaining
process
	and
	lead 	to
	more
	strikes."
	(121
	NLRB
	960.)
	The
District 	offers
	no
	reason
	why 	a
	different 	rule
	should
	apply
in 	this
	case.
The
	District
	also
	contends
	that
	CSEA
	has 	waived
	its
right
	to 	negotiate
	during 	the 	contract
	term regarding
reduction 	of
	hours
	by
	inclusion 	in 	the 	contract 	of 	the
waiver 	clause 	quoted 	above. 	That
	contention 	also
	must
	fail.
The
	National 	Labor
	Relations
	Board
	has, 	over 	the 	years,
brought 	the
	same
	close 	scrutiny 	to
	explicit
	waiver 	clauses
in 	collective 	bargaining 	contracts 	as
	it
	has 	to 	asserted
implied waivers 	and 	has 	repeatedly 	held 	that 	"[w]aiver 	of

a 	statutory 	right 	[to 	bargain 	on 	a 	mandatory 	subject] 	will
not 	be 	lightly 	inferred. 	The 	relinquishment 	to 	be 	effective
must 	be 	'clear 	and 	unmistakable'"(NLRB 	v. 	C & C Plywood
(1967) 	148 	NLRB 	414, 	416, 	affd. 	385 	U.S. 	421 	[17 	L.Ed.2d
486, 	87 	S.Ct.559]). 	The 	PERE 	adopted 	the 	same 	review 	standard
in Amador 	Valley 	Secondary 	Educators 	Association 	(October 	2,
1978) 	PERE 	No. 	74.
Moreover, 	the 	NLRB 	has 	given waiver 	clauses 	an 	even
more 	carefully 	drawn 	interpretation where waiver 	is
asserted 	to 	justify unilateral 	action 	by 	the 	employer. 	Thus,
in 	New York Mirror 	(1965) 	151 	NLRB 	834, 	the 	NLRB 	held 	that
it 	"will 	not 	find 	that 	contract 	terms 	of 	themselves 	confer
on 	the 	employer 	a 	management 	right 	to 	take 	unilateral 	action
on 	a 	mandatory 	subject 	of 	bargaining 	unless 	the 	contract
expressly 	or 	by necessary 	implication 	confers 	such 	right."
(151 	NLRB 	at. 	839-40 	(emphasis 	added).) 	In 	addition, 	a
broadly written waiver 	clause will 	be 	scrutinized 	in
light 	of 	the 	contract 	negotiations 	to 	determine 	if 	the
union 	"consciously 	yielded" 	the 	right 	to 	negotiate 	on 	the
matter 	in 	question 	by 	inclusion 	of 	the 	waiver 	language. 	Id.
By 	contrast, 	the 	cases 	in which 	the 	NLRB 	has 	found
an 	effective waiver 	are 	almost 	exclusively waivers 	specifically
referring 	to 	the 	particular 	subject 	upon which 	bargaining
is 	later 	sought. 	Thus, 	in 	Nevada 	Cement 	Co. 	(1970) 	181
NLRB 	738, 	cited 	by 	the 	District, 	there was 	a 	specific 	contract
term regarding 	the 	subject 	about 	which 	the 	union 	sought
bargaining, 	supplementary 	income 	payments, 	and 	a 	specific
provision 	forbidding 	reopening 	on 	that 	subject 	for 	a 	fixed
12

period. 	Similarly,
	in
	Wrought 	Washer
	Manufacturing 	Co.,
	Inc.
(1968)
	171
	NLRB
	532,
	also
	cited
	by
	the
	District,
	the 	union
explicitly
	compromised
	its
	demand
	for
	an
	outside
	time
	study
by
	agreeing 	to 	the
	selection
	and
	training
	of
	an 	employee
	to
perform
	the
	time
	study
	and
	then
	later
	sought 	to
	have 	an
additional
	time
	study
	by
	an
	outside 	expert.
	The
	NLRB
found
	that
	the
	union
	had waived
	its
	right
	to
	demand
	the
study
	by
	an
	outside
	person
	by
	agreeing 	to 	the
	trained
emp 1
oyee
	compromise.
. 	4
4The
	NLRB
	arguably 	deviated
	from
	its
	carefully:
circumscribed
	interpretation 	of
	waiver
	clauses 	in
	Radioear
Corp. 	(1974) 	214
	NLRB
	362.
	There
	three
	members
	of 	the
board
	ruled, 	in 	the 	face 	of
	a
	vigorous
	dissent 	that
	the
decision
	flew
	in 	the 	face 	of 	the
	entire
	body
	of
	board
precedent 	in 	the 	subject, 	that
	an
	all-encompassing 	zipperclause 	in 	the 	contract
	by
	which
	the 	union 	agreed
	that 	"the
company
	shall 	not
	be
	obligated 	to 	bargain
	collectively with
respect 	to
	any
	subject matter 	not
	specifically 	referred 	toor 	covered 	in 	this
	agreement"
	constituted
	a
	waiver 	with
respect 	to
	a
	matter 	discussed 	during 	contract 	negotiationsbut not 	included 	in 	the 	contract.
	Even
	if
	this 	departure
from 	precedent 	portends
	a
	loosening 	of 	the 	board
1 s
	strictinterpretation 	of waiver 	clauses, 	that 	case
	is 	easily
distinguishable
	from 	the 	case 	at
	hand 	by 	both 	the 	degree
of 	discussion 	of 	the 	subject 	during 	negotiat~ons 	and 	by
the 	difference 	in 	breadth 	of 	the 	waiver 	clause.
13

In 	the 	instant 	case 	the waiver 	clause neither
specifically nor 	in 	light 	of 	the 	contract 	negotiations
covers 	the 	issue 	of 	reduction 	in 	employees' 	hours. 	That
is, 	the 	language 	of 	the 	clause 	does 	not 	expressly 	refer 	to
reduction 	of 	hours 	as 	one 	of 	the 	scope 	questions 	which 	the
parties 	intended 	to 	cover 	by 	the 	clause. 	Furthermore, 	the
evidence 	is 	clear 	that, 	while 	the 	union 	sought 	during
contract 	negotiations 	to 	include 	a 	provision 	regarding
layoffs 	and 	the 	employer 	refused 	on 	the 	ground 	that 	the
issue was 	outside 	the 	scope 	of 	negotiation, 	there was 	no
such 	discussion 	regarding 	reduction 	of 	hours. 	To 	read 	the
waiver 	clause 	at 	this 	stage 	to 	cover 	a 	matter which was
not 	in 	the 	contemplation 	of 	the 	parties 	at 	the 	time 	the
clause 	was 	agreed 	upon would 	not 	only 	co?travene 	PERE 	and
NLRB 	precedent 	as 	well 	as 	the 	fundamentals 	of 	contract
interpretation, 	but would 	seriously 	undermine 	the 	collective
negotiating 	process 	by 	removing 	from 	it 	for 	the 	contract 	term
a 	central 	and mandatory 	subject 	of 	negotiation. 	Certainly
it 	cannot 	be 	said, 	based upon 	the 	language 	of 	the 	waiver
clause 	or 	the 	negotiating 	history, 	that 	the 	contract
"expressly 	or 	by 	necessary 	implication" 	conferred 	on 	the
employer 	the 	right 	to 	take 	unilateral 	action 	on 	a 	mandatory
subject 	of 	negotiation.
The 	District 	points 	to 	part 	E. 	of 	the 	Health 	and
Welfare 	Benefits 	section 	of 	the 	contract 	as 	evidence 	that
the 	parties 	did 	contemplate unilateral 	reduction 	of
employees' 	hours 	by 	the 	District. 	That 	section 	provides 	in
14

relevant 	part:
	"Eligibility
	for
	district
	contributions
	.
once
	achieved
	in
	a
	fiscal
	year
	shall
	not
	be
	reduced
	during
that
	year,
	despite
	the
	fact
	the
	hours-per-week
	qualification
may
	change
	due
	to
	a
	reduction 	of
	hours
	in
	duty
	status."
	The
District
	contends
	that
	the 	reference
	to
	reduction 	of
	hours
shows
	that
	the
	parties
	intended 	the
	employer
	to
	have
	the
right
	to
	unilaterally
	reduce 	hours.
	The
	argument
	is
	without
merit. 
In
	New
	York
	Mirror, 	supra, 	the
	employer
	shut
	down
and
	sold
	its
	newspaper
	business 	without
	consulting 	the
exclusive 	bargaining
	representative
	and
	asserted 	that
severance
	clauses 	in
	the
	contract
	which
	provided
	for
	specific
amounts
	of
	pay
	"in
	the
	event
	of
	merger,
	consolidation,
	or
permanent
	suspension"
	of
	the
	newspaper
	similarly
	sanctioned
unilateral
	action.
	The
	board
	rejected
	the
	argument
	on
	the
ground
	that
	the 	severance 	provisions
	show
	only
	that 	the
parties
	bargained
	about
	the
	compensation
	to
	be
	paid 	to
employees
	in
	the 	event
	of
	lawful 	suspension 	of 	operations
and
	these 	provisions 	are 	entirely 	consistent
	with 	the
	union's
reserving
	its
	statutory 	right
	to 	bargain 	regarding 	the
suspension
	itself.
	In 	the
	instant
	case, 	the 	provision
preserving 	health
	and
	welfare 	benefit 	contributions
	at
	a
given
	level 	despite
	subsequent 	reductions 	in
	hours
	is 	also
entirely 	consistent 	with
	CSEA's
	reserved
	right
	to
	negotiate
regarding
	any
	reduction. 	Clearly 	the 	provision 	cannot 	be
said 	to 	"expressly 	or
	by 	necessary 	implication" 	waive
	that
right.
The 	waiver 	clause 	fails 	to 	justify 	the 	District's
unilateral 	action 	in 	this 	case 	6n 	a
	further 	separate 	and

independent
	ground.
	The
	clause
	provides
	that
	"the
Association
	agrees 	not
	to
	initiate
	or
	reopen
	negotiations
..
	"
	(emphasis
	added).
	The
	evidence
	is 	clear 	that
	the
CSEA
	did
	not
	either
	initiate
	or
	reopen
	negotiations
	but
instead
	sought 	to
	negotiate 	in
	response 	to
	the
	District's
unilateral
	action
	on
	a
	mandatory
	subject.
	There
	is
	a
	world
of 	difference
	between
	a
	union,
	on
	the
	one 	hand,
	agreeing 	to
defer
	raising 	particular
	subjects 	for 	negotiation
	during
	the
contract
	term
	and,
	on
	the
	other,
	giving 	the
	employer
carte
	blanche 	to 	take
	whatever
	unilateral
	action
	it
	chooses
on
	mandatory
	subjects.
	The
	effect
	of 	the
	latter
	interpretation
is 	totally
	to 	abdicate 	the 	union's
	role
	in 	the
	negotiating
process 	during 	the
	contract
	term
	and
	therefore
	should
	not
	be
imposed 	on
	a
	union 	based
	upon
	narrower 	waiver 	language
	but
found
	only
	where
	the
	waiver 	language 	unmistakably 	demonstrates
the 	union's 	intention
	to 	agree 	to 	such
	a
	far-reaching 	waiver.
For
	all
	the
	foregoing 	reasons, 	the
	District's
	contention
that
	CSEA
	has 	waived
	its
	rights
	to 	bargain 	during 	the
	contract
terms
	with 	respect 	to 	reduction 	of
	employees' 	hours
	is 	rejected.
5
The
	District 	refers 	in 	passing 	to 	the 	"Entire
	Agreement"
clause 	of 	the 	contract
	as
	further
	evidence 	of 	waiver.
	The
clause 	provides
	that 	the 	contract
	supersedes
	and
	cancels
	all
other
	agreements 	and no
	supplemental 	agreements
	shall
	be 	binding
unless 	executed
	by
	both
	parties 	in 	writing.
	That
	clause
adds 	nothing 	to 	the
	District
	argument
	since
	CSEA
	does
	not 	assert
the 	existence 	of
	any 	agreement 	separate
	from
	the 	contract
	as
justification 	for
	its 	right
	to 	bargain 	regarding 	reduction 	of
hours 	during 	the 	contract 	term.
16

Estoppel
Finally, 	the 	District 	contends 	that 	CSEA 	is 	estopped
from 	arguing 	that 	the 	issue 	of 	reduction 	of 	hours 	is 	a
mandatory 	subject 	of 	negotiating 	because 	it 	previously 	filed
an 	unfair 	practice 	charge 	on 	the 	District's 	earlier 	refusal
to 	negotiate 	about 	a 	layoff 	provision 	and 	then 	withdrew 	the
charge 	as 	part 	of 	the 	parties' 	overall 	settlement 	in 	reaching
a 	contract. 	That 	contention 	cannot 	stand 	for 	two 	reasons.
First, 	the withdrawal 	of 	the 	prior 	charge 	(S-CE-61-5/23/77)
was 	explicitly 	"without 	prejudice" 	to 	CSEA's 	right 	to 	refile
the 	charge. 	Certainly, 	since 	the 	same 	charge 	could have
been 	refiled 	during 	the 	appropriate 	limitations 	period, 	the
withdrawal 	"without 	prejudice" 	cannot 	be 	interpreted 	to
estop 	CSEA 	from 	filing 	a 	separate 	subsequent 	charge 	arising
from 	different 	factual 	circumstances 	and 	raising 	the 	same
and 	related 	legal 	issues.
Where 	presented with 	similar 	arguments, 	the 	NLRB 	has
routinely 	rejected 	them, 	Thus 	in 	DeTray Plating Works, 	Inc.
(1965) 	155 	NLRB 	1353, 	1360, 	the 	board 	affirmed 	the 	trial
examiner's 	holding 	that 	withdrawal 	of 	a 	charge without
prejudice, 	even 	as 	part 	of 	a 	settlement 	in 	a 	representation
case, 	does 	not 	bar 	a 	later 	charge 	on 	the 	same 	conduct. 	A
ruling 	such 	as 	the 	District 	urges 	here would 	impede 	collective
negotiations 	by 	discouraging 	union 	relinquishment 	of
refusal 	to 	bargain 	issues 	in 	favor 	of 	achieving 	a 	generally
acceptable 	contract 	out 	of 	fear 	that 	it 	would 	later 	be
estopped 	from 	preventing wide-ranging 	unilateral 	action 	by
17

the 	employer 	on matters 	about 	which 	the 	parties 	had 	reached
no 	scope 	agreement.
Secondly, 	the 	previous 	charge 	related 	to 	the 	District's
refusal 	to 	bargain with 	respect 	to 	layoffs 	and 	other 	matters
not 	including 	reduction 	of 	hours. 	Since 	unilateral 	action
upon 	reduction 	in 	hours 	presents 	a 	different 	scope 	issue,
CSEA 	cannot 	possibly 	be 	estopped 	from 	filing 	a 	charge 	on 	it
based 	upon 	its 	earlier withdrawal 	of 	the 	charge 	relating 	to 	layoffs.
For 	the 	foregoing 	reasons, 	the 	District's 	estoppel 	contention
is 	rejected.
REMEDY
Government 	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 	a 	party 	to 	cease 	and 	desist
from 	the 	unfair 	practice 	and 	to 	take 	such 	affirmative 	action
as 	will 	effectuate 	the 	policies 	of 	the 	EERA.
It 	has 	been 	found 	that 	the 	District 	failed 	to 	meet 	and
negotiate 	in 	good 	faith 	by 	unilaterally 	reducing 	the 	hours
of 	and 	negotiating 	separately with 	bargaining 	unit 	employees.
Accordingly 	the 	District will 	be 	ordered 	to 	cease 	and
desist 	from 	failing 	to 	meet 	and 	negotiate 	with 	the 	Association
on 	reduction 	of 	hours 	and 	from 	negotiating 	separately.
In 	addition, 	the 	District 	will 	be 	ordered 	to 	restore 	the
teacher 	aides 	to 	the 	"status 	quo 	ante" 	by, 	upon 	request,
reinstating 	them 	to 	their 	previous 	hours 	of 	employment 	and
making 	them whole 	for 	any 	loss 	of 	pay 	and 	benefits 	resulting
from 	the 	reduction 	in 	hours. 	This 	is 	the 	remedy 	normally
ordered 	by 	the 	NLRB 	for 	unilateral 	adverse 	changes 	in
18

working
	conditions.
	See,
	e.g.
	Abingdon
	Nursing
	Center
(1972)
	197
	NLRB
	781
	[80
	LRRM
	1470];
	Missourian
	Publishing
Company,
	Inc.
	(1975)
	216
	NLRB
	175 	[88
	LRRM
	1647].
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact
	and
	conclusions
of
	law, 	and
	the
	entire
	record
	in
	this
	case,
	it
	is
	found
	that
the
	North
	Sacramento 	School
	District
	has
	violated
	Government
Code
	section
	3543.5(c). 	Pursuant 	to
	Government
	Code
	section
3541.5(c),
	it
	is
	hereby
	ordered
	that
	North 	Sacramento
	School
District
	and
	its
	board
	members,
	superintendent
	and
	agents
shall:
A. 	CEASE
	AND
	DESIST
	FROM:
1. 	Taking
	unilateral
	action
	with
	respect
	to
	reduction
in
	hours
	of
	classified
	employees
	or
	any
	other
	mandatory
subject 	of 	negotiation;
2.	
Negotiating 	or
	seeking 	to
	negotiate
	directly
	with
bargaining
	unit
	employees
	with
	respect
	to
	reduction
	of
their
	hours
	or
	any
	other
	mandatory
	subject 	of 	negotiation;
and
3.	
In
	any
	other
	manner
	failing
	or 	refusing,
	upon
	request,
to
	meet 	and
	negotiate 	in
	good
	faith
	with
	CSEA
	as
	the
exclusive 	representative 	of
	its 	classified
	employees;
B.
	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION:
1.	
Reinstate,
	upon
	request,
	all
	teacher 	aides 	to
	their
full
	hours 	of
	employment
	prior
	to 	the 	June 	and
	July
	1978
reduction 	of 	hours 	and 	make 	whole 	each
	of 	the 	teacher
aides
	whose 	hours 	were 	so 	reduced 	for 	any
	loss 	of 	pay 	and
benefits 	which 	they 	suffered 	because 	of 	reduced 	hours
19

during
	the
	1978-79
	school
	year
	and
	until
	such 	time
	as
they
	are
	reinstated
	to
	their
	previous
	hours
	or
	their
hours
	of
	employment
	are
	changed
	upon
	agreement
	with
CSEA
	or
	after
	the
	District
	has
	met 	and
	negotiated
	in
good
	faith
	with
	CSEA
	through
	impasse;
2.	
Prepare
	and
	post
	a
	copy
	of
	this
	Order
	at
	its
headquarters
	and
	in
	each 	school
	for
	30
	working
	days
while 	school
	is
	in 	session 	in
	conspicuous
	places
where
	notices
	to
	classified
	employees
	are 	customarily
posted;
	and
3.	
Upon
	reinstatement
	and 	payment
	of
	back 	pay 	and
	bene-
fits
	and
	completion
	of 	the 	posting 	period,
	notify 	the
Sacramento
	Regional
	Director 	of
	the 	Public
	Employment
Relations
	Board
	of
	all
	action
	it
	has
	taken 	to
	comply
with
	this
	order.
Pursuant 	to
	California Administrative
	Code,
	title
	8,
section
	32305,
	this
	proposed
	decision
	and
	order
	will
	become
final
	on
	July
	3, 	1979
	unless
	a
	party
	files
	a
	timely
statement 	of 	exceptions.
	See
	Cal.
	Admin. 	Code,
	title
	8,
sec.
	32300. 	Such
	statement 	of 	exceptions
	and
	supporting
brief
	must 	be
	actually 	received
	by
	the 	Executive
	Assistant
to 	the
	Board
	at
	the 	headquarters
	office 	in
	Sacramento
	before
the 	close 	of 	business 	(5:00 	p.m.)
	on
	July
	3,
	1979
	in
order 	to 	be
	timely
	filed.
	(See 	Cal.
	Admin. 	Code,
	tit.
	8,
sec. 	32135.)
	Any
	statement 	of 	exceptions 	and
	supporting
brief
	must 	be 	served 	concurrently with
	its 	filing
	upon
	each
20

party
	to
	this
	proceeding. 	Proof
	of 	service
	shall
	be
	filed
with 	the
	Board
	itself.
Dated: 	June 	13,
	1979
21
Marian
	Kennedy
Hearing
	Officer