Anaheim Union High School District (PERB 0201E)

DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
ANAHEIM SECONDARY
	TEACHERS
ASSOCIATION, 	CTA/NEA
Charging
	Party,
v.
ANAHEIM 	UNION
	HIGH
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
_____________________ )
Case
	No. 	LA-CE-347
PERB
	Decision
	No. 	201
March
	26,
	1982
Appearances:	
Kyle
	D.
	Brown,
	Attorney
	(Hill, 	Farrer	
&	
Burrill)
for
	Ananeirn
	Union 	High
	School
	District;
	A.
	Eugene
	Huguenin,
Jr.,
	Attorney
	(California
	Teachers
	Association) 	for
	Anaheim
Secondary Teachers
	Association,
	CTA/NEA.
Before
	Jaeger,
	Moore, 	and
	Tovar,
	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(PERB
	or	
Board) 	on
	exceptions
	filed
	by
	the
	Anaheim 	Union High
School
	District
	(District) 	to
	the 	attached 	hearing
	officer's
proposed
	decision.
	The
	hearing
	officer
	found
	that
	the
	District
violated 	subsection
	3543.S(c)	
of 	the 	Educational
	Employment
Relations	
Act
	(EERA
	or 	the 	Act)
1 	by	
unilaterally
	reducing
lEERA
	is 	codified 	at
	Government 	Code
	section
	3540
et
	seq. 	All 	statutory 	references 	in 	this 	decision 	are 	to 	the
Government 	Code,
	unless 	otherwise 	noted.
Subsection 	3543.S(c) 	provides:
It
	shall
	be 	unlawful 	for	
a
	public 	schoolemployer 	to:

salaries,
	fringe
	benefits,
	and
	extra 	service
	pay
	for
certificated
	employees
	on
	June
	29
	and
	August 	28, 	1978.
After 	considering
	the
	entire
	record 	in
	this
	matter
	the
Board
	finds
	the 	hearing
	officer's
	findings
	of
	fact
	to
	be
	free
from
	prejudicial
	error
	and,
	on
	that 	basis,
	adopts 	those
findings
	as 	the
	findings
	of 	the
	Board
	itself.
	The
	Board
affirms
	the 	hearing
	officer's
	conclusions 	of
	law
	in
	accordance
with 	the 	following
	discussion.
DISCUSSION
The
	hearing
	officer
	found
	that
	the
	June
	29
	resolution 	of
the
	District's
	Board
	of 	Trustees
	was 	an
	unlawful
	unilateral
change
	of 	matters 	within 	the
	scope
	of
	representation
2	
in
(c)
	Refuse 	or
	fail
	to
	meet
	and
	negotiate 	in
good
	faith
	with
	an
	exclusive
	representative.
2The
	parties
	do
	not
	dispute
	the
	fact 	that
	the
	subjectmatter 	of 	the 	alleged
	unilateral
	change
	falls
	within 	the 	scope
of 	representation
	as
	defined
	by
	section
	3543.2. 	That
	section
states:
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
employment" 	mean
	health
	and
	we
	are 	benefits
as 	defined
	by
	section
	53200,
	leave, 	transfer
and
	reassignment
	policies, 	safety 	conditions
employment,
	class 	size,
	procedures 	to
	be
used 	for 	the 	evaluation 	of 	employees,
anizat 	security 	rsuant 	to
Section 	3546, 	procedures 	processiievances 	suant 	to 	Sections 	3548.5,
2

violation
	of 	subsection
	3543.S(c) .3
The
	District
	advanced
	a 	number
	of 	defenses 	to
	its
	conduct,
which
	the 	hearing
	officer
	rejected
	as
	failing
	to
	excuse
	its
unilateral
	actions
	on
	June 	29,
	1978.
	In
	its
	exceptions, 	the
District
	advances
	these
	same
	defenses.
	While
	we
	affirm 	the
hearing
	officer's
	rejection
	of
	the
	District's
	defenses,
	we
modify
	to
	some
	extent 	his
	rationale
	for
	doing
	so.
3548.6, 	3548.7,
	and
	3548.8,
	and
	the
	layoff
of
	probationary
	certificated
	school
	district
employees,
	pursuant 	to Section
	44959.5
	ofthe
	Education
	Code.
	In
	addition,
	the
exclusive 	representative
	of
	certificated
personnel
	has
	the
	right
	to 	consult
	on
	the
definition
	of 	educational
	objectives,
	the
determination 	of 	the
	content 	of 	courses
	and
curriculum,
	and
	the
	selection
	of 	textbooks
to
	the
	extent
	such
	matters 	are 	within 	the
discretion
	of 	the
	public
	school
	employer
under
	the 	law.
	All 	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the
	public
	school
employer
	and 	may
	not
	be 	a
	subject
	of 	meeting
and
	negotiating,
	provided
	that
	nothing
herein
	may 	be
	construed 	to
	limit
	the
	right
of 	the 	public
	school
	employer
	to 	consult
with
	any 	employees
	or
	employee
	organization
on 	any
	matter 	outside
	the 	scope
	of
representation.
3In
	addition, 	the 	hearing
	officer
	found
	that
	the
District's
	August
	28
	resolution 	constituted
	a
	separate
violation 	of 	subsection 	3543.S(c). 	In 	reaching
	this 	result,	
he
found, 	as
	a
	matter 	of 	law,	
that
	the
	duty 	to 	bargain 	extendsthrough 	completion 	of 	the
	statutory
	impasse 	procedure.
	We
	need
not 	reach
	this
	question. 	Since 	the
	District's
	conduct
	on
June 	29,
	1978
	constituted
	an 	unlawful
	unilateral
	change, 	any
subsequent 	action	
by	
the
	District	
based 	upon
	that	
prior
unlawful 	conduct
	would
	necessarily	
be	
impermissible.
3

A. 	Business 	Necessity 	Defense
The 	District's 	primary 	defense 	is 	that 	it 	acted 	on 	the 	good
faith 	belief 	that 	it 	must 	reduce 	the 	salaries 	of 	certificated
employees 	by July 	1, 	or 	any 	reduction 	it 	made 	after 	that 	date
would 	be 	unlawful. 	Rible 	v. 	Hughes 	(1944) 	24 	Cal.2d 	437, 	444
[150 	P.2d 	455]. 	Such 	a 	reduction 	was 	necessary, 	it 	argues, 	in
light 	of 	the 	substantial 	loss 	of 	revenue 	which, 	at 	that 	time,
it 	was 	predicted 	would 	result 	from 	the 	passage 	of
Proposition 	13 	on June 	6, 	1978. 	The 	District 	relies 	on
language 	in NLRB 	v. 	Katz 	(1962) 	396 	U.S. 	736 	[50 	LRRM 	2177,
2182] , 4 	in 	which 	the 	United 	States 	Supreme 	Court 	stated:
We 	do 	not 	foreclose 	the 	possibility 	that
there 	might 	be 	circumstances 	which 	the
[NLRB] 	could 	or 	should 	accept 	as 	excusing 	or
justifying 	unilateral 	action[.]
The 	District 	argues 	that, 	had 	it 	not 	acted 	by July 	1 	and
had 	it 	later 	been 	forced 	to 	forego 	the 	salary 	reduction 	because
the 	effect 	of 	Rible 	v. 	Hughes, 	supra, 	its 	contingency
reserve 	fund 	would 	have 	fallen 	to 	a 	dangerously 	low 	level.
The 	hearing 	officer, 	relying 	on 	the 	Board's 	decisions 	in
San 	Francisco 	Community College 	District 	(10/10/79) 	PERB
Decis 	No. 	105 	and 	San Mateo County Community 	lege
4It 	is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
f 	ral 	labor 	law 	precedent 	when 	applicable 	to 	public 	sector
labor 	relat 	issues. 	Firefighers 	Union, 	Local 	1186 	v.
Vallejo 	( 	74) 	12 	.3d 	608 	[116 	Cal.Rptr. 	507]~
Los 	Angeles 	County Ci 	1 	Service 	Commiss 	v. 	Superior 	Court
(1978) 	23 	Cal.3d 	65 	[151 	Cal.Rptr. 	547].
4

District 	(6/8/79) 	PERB 	Decision No. 	94, 	held 	that 	the
District's 	claims 	of 	inability 	to 	pay 	did 	not 	relieve 	it 	of 	its
duty 	to 	bargain 	in 	good 	faith.
In 	reaching 	this 	conclusion, 	the 	hearing 	officer 	assumed,
without 	deciding, 	that 	the 	District 	was 	constrained 	by
applicable 	case 	law 	to 	reduce 	salaries 	of 	certificated
employees 	by July 	1. 	He 	then 	made 	a 	finding 	that 	the 	District
was 	not 	legally 	required 	to 	maintain 	any 	reserve 	fund 	at 	all,
thus 	rejecting 	the 	District's 	underlying 	rationale 	for 	imposing
the 	salary 	reduction.
We 	feel 	that 	the 	hearing 	officer 	reached 	the 	right
conclusion 	concerning 	the 	District's 	business 	justification
defense, 	but 	did 	so 	for 	the 	wrong 	reason. 	It 	is 	not 	within 	the
purview 	of 	this 	Board 	to 	determine 	what 	is 	the 	appropriate
level 	of 	reserve 	funds 	for 	a 	public 	school 	employer 	to
maintain, 	unless 	the 	employer's 	overall 	conduct 	with 	regard 	to
its 	reserve 	funds 	evidences 	an 	unwillingness 	to 	bargain 	1n 	good
faith 	as 	the 	Act 	proscribes. 	San Mateo, 	supra.
Contrary 	to 	the 	hearing 	officer's 	determination, 	we 	find
that 	the 	District 	was 	under 	no 	legal 	obligation 	to 	reduce
certificated 	salaries 	by July 	1. 	It 	is 	therefore 	unnecessary
to 	consider 	the 	question 	of 	whether 	such 	a 	forfeiture 	would
have 	reduced 	the 	contingency 	funds 	of 	the 	District 	to 	a
dangerously 	low 	level 	had 	it 	occurred.
In San Francisco 	Community College 	District, 	supra, 	the
Board 	rejected 	a 	business 	necessity 	argument 	nearly 	identical
5

to 	that 	advanced 	by 	the 	District 	in 	this 	case. 	In
San 	Francisco, 	the 	employer 	argued 	that 	it 	was 	required 	to
reduce 	teacher 	salaries 	by July 	1 	or 	it 	would 	be 	bound 	by 	the
salary 	rate 	paid 	on 	that 	date 	throughout 	the 	1977-78 	academic
year. 	Rible 	v. 	Hughes, 	supra; 	Abraham 	v. 	Sims 	(1935) 	2 Cal.2d
698, 	711 	[34 	P.2d 	790, 	42 	P.2d 	1029]; 	A.B.C. 	Federation 	of
Teachers 	v. 	A.B.C. 	Unified 	Sch. 	Dist. 	(1977) 	75 	Cal.App.3d 	332,
337-339 	[142 	Cal.Rptr. 	111] .5
The 	Board 	found 	that 	those 	cases 	concerned 	individual
employment 	contracts 	and 	were 	no 	longer 	applicable 	in 	light 	of
the 	passage 	of 	the 	Educational 	Employment 	Relations 	Act. 	As
the 	Board 	noted, 	" ..• 	[O]nce 	an 	exclusive 	representative 	and
an 	employer 	negotiate 	an 	agreement, 	that 	agreement 	supersedes
individual 	employment 	contracts 	between 	the 	employer 	and
members 	of 	the 	negotiating 	unit." 	San Francisco, 	supra, 	at
p. 	15, 	citing 	J. 	I. 	Case Co. 	v. 	NLRB 	(1944) 	321 	U.S. 	332, 	338
[14 	LRP~~ 	501].
The 	District 	concedes 	that 	the 	Board's 	decision 	in
San Francisco, 	supra, 	disposes 	of 	its 	business 	necessity
defense 	but 	argues 	that, 	since 	it 	did 	not 	have 	benefit 	of 	that
decision 	in June 	of 	1978, 	it 	should 	not 	be 	bound 	by 	that
5The 	employer 	in 	San Francisco 	argued 	that 	in 	addition 	to
the 	constraints 	imposed 	by 	the 	above-cited 	cases, 	it 	was
required 	by 	certain 	provisions 	of 	the Education 	Code 	to 	adopt
its 	budget 	by July 	1. 	The 	Board 	rejected 	that 	claim. 	Since
the 	employer 	in 	this 	case 	has 	raised 	no 	similar 	arguments, 	we
need 	not 	consider 	them. 	See San Francisco, 	supra 	at 	p. 	13-15.
6

holding.
	Viewing
	the 	record
	in
	its
	totality
	we
	can
	find
	no
reason
	to
	conclude
	that
	the
	employer
	in
	this
	case
	should
	be
	any
less
	responsible
	for
	its
	conduct 	than 	the
	employer
	who 	was
found
	to
	have
	acted 	unlawfully
	in
	San
	Francisco.6
B. 	Waiver
	Defense
The
	District
	argues
	that
	by
	delaying 	the
	beginning
	of
negotiations
	until 	after
	July 	1,
	1978,
	the
	Anaheim
	Secondary
Teachers
	Association,
	CTA/NEA,
	(Association 	or
	ASTA)
	waived
	its
right 	to
	bargain
	over
	the
	District's
	proposed
	across-the-board
reduction 	in
	salary
	and
	fringe
	benefits.
	The
	hearing
	officer
rejected
	the
	District's
	waiver 	argument,
	finding
	that
	the
parties
	had,
	on
	June 	27,
	1978,
	mutually 	agreed
	to 	delay
negotiations
	until
	August
	2,
	and
	that
	such
	an
	agreement
	was
inconsistent
	with
	a
	waiver
	of 	bargaining
	rights.
	He
	conceded
that
	the 	Association
	was
	"aware"
	of 	the
	July
	1
	deadline
	by
which
	the
	District
	thought
	itself
	legally
	obligated 	to
	reduce
salaries,
	but
	found
	that 	there
	was
	insufficient
	evidence
	to
establish 	that 	frustration
	of 	the
	District's
	supposed
	legal
obligations
	was
	the 	Association's
	motivating 	reason 	for 	seeking
61n
	San Francisco,	
supra,	
at
	pp.
	10-16,	
the	
Board
responded
	to 	the 	employer's 	argument
	that
	it
	had
	to
	reduce
salaries
	by
	July 	1,
	1978 	by
	noting:
	(1) 	That
	EERA
	section
3543.7 	and
	Education
	Code
	section
	87801
	clearly
	contemplate
that 	negotiations
	and
	the 	fixing 	of
	salaries
	may
	occur	
afterJuly	
l;
	and 	(2)
	that,	
in
	any	
case, 	the 	Proposition	
13	
bailout
measure 	(SB 	2212)
	extended
	local	
budget	
deadlines 	untilSeptember 	30, 	1978. 	Thus, 	the	
Board	
concluded, 	the 	employer
should 	reasonably 	have 	known
	that
	it
	was
	not 	legally 	obligated
to 	fix 	salaries
	and
	benefits
	by
	July 	1.
7

the
	delay.
	He
	noted
	that
	the 	Association
	had
	other
	reasons
	for
wanting
	to 	delay
	negotiations,
	including
	a
	desire
	to
	comply
with 	proper
	public 	notice
	procedures
	and
	to
	have
	sufficient
time
	to
	develop
	its
	proposals.
We
	can
	find
	no
	basis
	upon
	which
	to
	conclude
	that
	the
Association
	waived
	its
	right
	to 	bargain
	over
	the
	District's
comtemplated
	salary
	reduction.
	In 	order
	to
	prove
	that
	the
Association
	waived
	its
	right
	to 	negotiate
	over
	the
	changes
adopted
	by
	the
	District,
	the
	District
	must
	show
	either 	clear
and
	unmistakable
	contract
	language 	or 	demonstrative 	behavior
waiving
	a
	reasonable 	opportunity
	to
	bargain
	over
	a
	decision
	not
already 	firmly
	made 	by
	the
	employer.
	San Mateo,
	supra;
	Amador
Valley
	Joint
	Union High
	School
	District
	(10/2/82}
	PERB
	Decision
No.
	74;
	Timken
Roller
	Bearing
	Co.
	v.
	NLRB
	(6th
	Cir.
	1963)
	325
F.2d 	746,
	[54
	LRRM
	2785];
	NLRB
	v.
	Cone
	Mills
	(4th
	Cir.
	1967)
373
	F.2d 	595,
	[64
	LRRM
	2536].
	As
	the
	NLRB
	stated
	in 	Caravelle
227
	NLRB
	162 	[95
	LR&.\1
	1003,
	1006],
	11
[t)
he
	Board 	and
courts
	have
	repeatedly 	held
	that
	a
	waiver
	of 	bargaining
	rights
by	
a
	union
	will
	not
	be
	lightly
	inferred
	and
	must 	be
	clearly
	and
unequivocably 	conveyed."
In
	this 	case,	
the	
parties
	mutually 	agreed 	on June 	27,
	1978
that
	they
	would 	commence
	negotiations 	in 	early
	August. 	This
agreement
	was
	reached
	two 	days	
prior 	to	
the 	time
	that
	the
District	
took	
action 	at
	its
	June	
29 	board 	meeting
	to	
impose
	the
across-the-board 	salary 	reduction.
	It 	is 	difficult
	to 	see
	how
8

a 	bilateral 	agreement 	to 	delay 	negotiations 	can 	be 	construed 	as
demonstrable 	behavior 	waiving 	the 	right 	to 	bargain.
The 	District's 	argument 	presupposes 	that 	it 	was, 	in 	fact,
legally 	required 	to 	reduce 	salaries 	by July 	1 	or 	else
permanently 	forego 	such 	a 	reduction. 	Since 	we 	have 	found 	that
the 	District 	had 	no 	legal 	obligation 	to 	act 	by July 	1, 	it 	would
be 	inconsistent 	to 	bind 	the 	Association 	to 	that 	deadline.
Moreover, 	we 	note 	that 	the 	parties 	had 	drafted 	Appendix 	D of
the 	collective 	agreement 	specifically 	in 	contemplation 	of 	the
passage 	of 	Proposition 	13. 	That 	provision 	gave 	the 	District
the 	right 	to 	withhold 	an 	agreed-upon 	salary 	increase 	and 	reopen
negotiations 	on 	salaries 	and 	fringe 	benefits? 	in 	the 	event
that 	the 	passage 	of 	Proposition 	13 	caused 	a 	financial 	crisis 	in
the 	District. 	Appendix 	D placed 	no July 	1 	deadline 	on 	the
completion 	of 	the 	reopened 	negotiations. 	Nevertheless, 	the
testimony 	of 	Assistant 	Superintendent 	Robert 	Siedel 	indicates
that 	the 	District 	had 	been 	long 	aware 	of 	the 	July 	1 	deadline
supposedly 	imposed 	upon 	the 	District 	by Rible 	v. 	Hughes, 	supra
and 	its 	progeny. 	As 	the 	hearing 	officer 	indicates, 	if
7The 	hearing 	ficer 	erroneou 	he 	, 	at 	pp. 	of
the 	proposed 	decision, 	that 	Appendix 	D did 	not 	grant 	the
District 	the 	right 	to 	reopen 	negotiation 	on 	salaries 	in 	the
event 	that 	Proposition 	13 	passed. 	This 	error 	is 	not
ici 	to 	the 	District, 	insofar 	as 	a 	findi 	that 	the
Distri 	d 	have 	the 	right 	to 	reopen 	negotiations 	does 	not
excuse 	its 	unlawf 	uct 	on June 	29, 	1978.
9

anything,
	equitable 	considerations
	suggest
	that
	the
	District
should
	have
	been
	bound 	by
	its
	contractual 	obligation
	to
negotiate
	in
	good
	faith
	irrespective
	of
	its
	sense 	of 	urgency.
C.
	June
	29
	Resolution
	Was
	a
	Unilateral
	Change
The
	District
	argues
	that,
	since
	it
	did 	not 	immediately
implement
	its
	June
	29
	resolution,
	its
	actions
	on
	that
	date
amounted
	to
	nothing
	more
	than
	an
	11
initial
	proposal."
	It
	points
to
	its
	willingness 	to 	negotiate
	thereafter
	as
	evidence
supportive
	of
	this
	characterization
	of
	its
	June
	29
	conduct.
The
	hearing
	officer
	found
	that
	the 	June
	29
	resolution
	was
official
	action
	of 	the
	District,
	and
	thus
	an
	unlawful
unilateral
	change.
We
	can
	find
	no
	merit 	in 	the
	District's
	contentions.
	The
fact 	that
	the
	June
	29
	resolution
	had 	a
	deferred
	effective
	date
does
	not
	alter
	its 	official
	character.
	As
	the
	District
	itself
pointed 	out 	in
	an August 	24,
	1978
	letter
	to 	the Association,
	if
the
	parties
	did 	not 	reach
	an 	agreement 	by	
the
	end
	of 	September,
the
	salary
	and
	benefit 	reductions
	imposed 	by
	the
	June
	29
resolution
	would 	become
	automatically
	effective.
	This
conclusion
	is 	further 	reinforced
	by	
the	
fact 	that
	the 	budget
which
	the
	District
	adopted
	on
	August 	14,	
1978 	was
	based 	on	
the
ten 	percent 	reduction 	contemplated 	by 	the 	June
	29
	resolution.
Moreover, 	as 	the	
District
	so
	forcefully
	argues 	in
	its
post-hearing 	brief,
	the 	primary 	reason 	that	
it
	issued
	its
June
	29
	resolution
	was
	that
	it 	felt 	itself 	legally 	obligated 	to
10

take 	official 	action 	reducing 	salaries 	and 	benefits 	prior 	to
July 	1, 	1978 	or 	possibly 	forego 	such 	reductions 	entirely. 	It
is 	inconsistent 	for 	the 	District 	now 	to 	argue 	that 	the June 	29
resolution 	was 	intended 	to 	be 	an 	unofficial 	initial 	proposal.
We 	can 	find 	no 	basis 	upon 	which 	to 	conclude 	that 	the
District's 	actions 	on June 	29 	were 	not 	official 	and 	legally
effective. 	Were 	we 	to 	characterize 	an 	employer's 	official
action 	unilaterally 	reducing 	salaries 	as 	an 	"initial 	bargaining
proposal" 	simply 	because 	it 	had 	a 	deferred 	effective 	date 	we
would 	be 	legitimizing 	a 	tactic 	patently 	offensive 	to 	the
statutory 	requirement 	of 	good 	faith 	bargaining.
On 	the 	basis 	of 	the 	foregoing 	analysis, 	the 	Board 	affirms
the 	hearing 	officer's 	finding 	of 	a 	violation 	of
subsection 	3543.S(c) 	arising 	out 	of 	the 	conduct 	of 	the Anaheim
Union High 	School 	District 	on June 	29, 	1978.
REMEDY
The Board 	affirms 	the 	appropriateness 	of 	the 	hearing
officer's 	remedy 	of 	a 	return 	to 	the 	status 	quo 	ante.8 	To
effectuate 	the 	policies 	and 	purposes 	of 	the Act 	the 	employees
8The 	Board's 	remedial 	authority 	is 	found 	in
subsection 	3541.S(c), 	which 	provides:
The 	board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies 	of
this 	chapter.
11

affected 	by 	the 	District's 	unlawful 	conduct 	shall 	be 	notified
of 	its 	willingness 	to 	comply 	with 	the 	Board's Order 	by
requiring 	the 	District 	to 	post 	the 	attached 	"Notice 	to
Employees."
The 	Board 	denies 	the 	District's 	request, 	made 	pursuant 	to
PERB 	rule 	32315, 9 	that 	it 	hear 	oral 	argument 	of 	this 	case.
Since 	the 	legal 	issues 	have 	been 	adequately 	briefed 	by 	the
parties 	and 	the 	factual 	record 	is 	sufficient 	to 	support 	our
decision, 	there 	is 	no 	need 	to 	hear 	oral 	argument 	in 	this 	matter.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	entire
record 	in 	this 	case, 	and 	pursuant 	to Government 	Code
subsection 	3541.S(c), 	it 	is 	hereby ORDERED 	that 	the Anaheim
Union High 	School 	District 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
Failing 	or 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith 	by 	taking 	unilateral 	action 	affecting 	wages, 	hours 	or
PERB 	rules 	and 	regulations 	are 	codified 	at 	title 	8,
California Administrative Code 	section 	31000 	et 	seq. 	PERB 	rule
32315 	s
9
A party 	desiring 	to 	argue 	orally 	before
Board 	itself 	regarding 	the 	exceptions 	to 	the
proposed 	decision 	shall 	file, 	with 	the
statement 	of 	exceptions 	or 	the 	response 	to
the 	statement 	exceptions, 	a 	written
t 	stating 	reasons 	the
t. 	Upon 	request 	or 	its 	own
the 	Board 	itself 	may 	direct 	oral
argument.
12

terms
	and
	conditions 	of
	employment
	as
	defined 	in
section
	3543.2
	of 	the
	EERA.
B.
	TAKE 	THE
	FOLLOWING
AFFIRMATIVE
	ACTIONS 	DESIGNED
·ro
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EERA:
1.
	Reinstate 	step
	increments 	for 	those
	employees
represented
	by
	ASTA,
	with
	payment
	of
	interest 	at
	the
	rate
of	
7	
percent
	per
	annum,
	for 	the
	amount 	due 	from
	the
	date 	of
suspension 	of
	said
	increments
	to
	the 	date 	of
	reinstatement.
2. 	Post
	at
	all
	school
	sites,
	and
	all
	other
	work
locations
	where
	notices 	to
	employees
	customarily 	are
placed, 	within
	10 	workdays
	following 	date 	of
	service 	of
this
	decision,
	copies 	of 	the
	Notice
	attached
	as
	an
	appendix
hereto.
	Such
	posting
	shall
	be
	maintained 	for
	a
	period 	of
at 	least
	30
	consecutive
	work
	days.
	Reasonable
	steps
	shall
be
	taken
	to
	ensure
	that 	said 	notices 	are
	not
	altered,
d
	aced
	or 	covered
	by
	any
	other 	material
	or 	reduced
	in
	size.
"l
.J.	
Mail 	or
	distribute
	to
	employees
	represented 	by
ASTA
	a
	copy
	of 	the 	Notice 	attached
	as 	appendix
	hereto 	by
giving 	individual 	notice
	accompanying 	one 	round
	of
	District
warrants.
4. 	At 	end
	the
	ti
	riod, 	notify 	the
Los 	Angeles 	Regional 	Dir 	in 	writing 	the
	act
en
	to
	comply
	this
	Order.
13

This
	Order
	shall
	become
	effective
	immediately
	upon
	service
of
	a
	true
	copy
	thereof
	on
	the
	Anaheim
	Union High
	School
District.
By: "-::fohn
	W.
	Jaeger,
	MEttnber	
Barbara
	D.
	Moore,
	Member
n
Irene
	Tovar,
	Member
14

APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
Agency
	of 	the
	State
	of
	California
After
	a
	hearing
	in
	case
	no.
	LA-CA-347
	in
	which
	all
	parties
participated,
	it
	has
	been 	found
	that
	the
	Anaheim
	Union High
School
	District
	violated
	the 	Educational
	Employment
	Relations
Act
	(Government
	Code
	subsection
	3541.S(c)}
	by
	taking
	unilateral
action
	regarding
	proposed 	changes
	of
	wages 	and
	step
	increments
of
	employees
	represented
	by
	the
	Anaheim
	Secondary Teachers
Association,
	CTA/NEA. 	As 	a
	result
	of
	this
	conduct,
	we
	have
been
	ordered
	to
	post
	this
	Notice 	as
	well 	as 	mail 	or
	distribute
this
	Notice 	with
	one 	round
	of
	pay
	warrants.
	We
	will
	abide
	by
the 	following:
A.
	CEASE
	AND
	DESIST
	FROM
	taking
	unilateral
action
	regarding
	proposed 	changes
	on
	wages,
	hours
or 	terms
	and
	conditions 	of
	employment
	as
	defined
in 	section
	3543.2
	of 	the
	EERA
	without
	negotiating
with 	the
	Anaheim
	Secondary Teachers
	Association,
CTA/NEA.
B.
	TAKE 	THE
	FOLLOWING
AFFIRMATIVE ACTIONS
DESIGNED
	TO
	EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EERA:
Reinstate 	step
	increments 	for 	those
	employees
represented
	by
	ASTA,
	with
	payment
	interest 	at
the
	rate
	of 	seven
	percent
	r 	annum,
	for 	the
amount 	due 	from
	the 	date 	suspension 	said
increments 	to 	date 	reinstatment.
Dated:	
ANAHEIM 	UNION 	HIGH 	SCHOOL 	DISTRICT
By:
Authorized Agent
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
30 	CONSECUTIVE
	WORK DAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	DEFACED, 	ALTERED 	OR COVERED BY ANY MATERIAL.

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ANAHEIM
	SECONDARY
	TEACHERS
ASSOCIATION,
Charging
	Party,
v.
ANAHEIM
	UNION 	HIGH
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
) 
Unfair
	Practice
	Case
Noo
	LA-CE-347-78/79
PROPOSED
	DECISION
(10/29/79)
Appearances:	
Kyle
	D.
	Brown,
	Attorney
	(Hill, 	Farrer	
&	
Burrill)
for
	Anaheim
	Union 	High
	School
	Districti
	A.
	Eugene
	Huguenin,
Jr.,
	Attorney 	for
	Anaheim
	Secondary 	Teachers
	Association.
Decision
	by
	Allen
	R.
	Link, 	Hearing 	Officero
PROCEDURAL
	HISTORY
On
	July 	19,
	1978,
	the
	Anaheim
	Secondary Teachers
Association 	(hereafter
	ASTA)
	filed
	an
	unfair 	practice
	charge
with 	the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB)
against 	the
	Anaheim
	Union 	High
	School
	District
	(hereafter
District).
	On
	September
	15, 	1978,
	ASTA
	filed
	an 	amended
	unfair
practice
	charge.
The
	charge, 	as
	amended,
	alleges 	that
	the
	District 	violated
section 	3543.S(a),
	(b) 	and 	(c)
	of 	the 	Educational
	Employment
Relations
	Act
	(hereafter 	Act)l 	in 	unilaterally
	adopting
resolutions
	on 	June
	29
	and 	August 	28, 	1978 	which
	adversely
lGovernment 	Code
	section
	3540
	et 	seq. 	Unless 	otherwise
noted, 	all 	references 	are 	to 	the 	Government 	Code.

altered
	the
	salary
	schedule
	and
	reduced
	fringe
	benefits
	and
extra-service
	pay.
The
	District
	filed
	its
	answer
	to
	the
	unfair
	practice
charge
	on
	August
	14,
	1978
	and
	an
	informal 	conference
	was
	held
on
	August
	25, 	1978.
	The
	District
	filed
	its
	answer
	to
	the
amended
	unfair
	practice
	charge
	on
	September 	22, 	1978.
A
formal
	hearing
	was
	held
	by 	David
	Schlossberg
	on
November 	21
	and 	22, 	1978.
	At
	the
	hearing,
	ASTA
	further
	amended
by
	deleting
	the
	alleged
	violations
	of 	section
	3543.S(a)
	and
	(b),
alleging
	only
	a
	violation
	of
	section
	3543.S(c).
2
Opening
	and
	closing
	simultaneous
	briefs
	were
	filed
	by
	the
representatives,
	and
	the 	matter
	was
	submitted
	on
	April 	9,
	1979.
FINDINGS
	OF
	FACT
The
	District 	is
	located 	in
	Orange
	county
	and
	is
	comprised
of
	16
	junior
	high
	schools,
	9
	high
	schools
	and 	2
	special
schools.
	Average
	daily
	attendance
	is
	approximately 	33,742. 	In
December
	1976,
	ASTA
	was
	recognized 	as 	the 	exclusive 	representa-
tive
	of
	a
	negotiating 	unit 	consisting
	of 	approximately
	1300
certificated
	employees.
2sec. 	3543.S(c) 	provides 	that
	it
	shall
	be 	unlawful 	for
	a
public 	school 	employer
	to:
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	ingood
	faith
	with 	an
	exclusive 	representative.
-2-

1978-79 	Contract 	Provisions
On 	February 	8, 	1978, 	the 	District 	and 	ASTA 	executed 	a
written 	agreement, 	which 	expires 	on 	August 	31, 	1979. 	The
contract 	provides 	for 	a 	traditional 	school 	teacher 	salary
schedule, 	that 	is, 	one 	with 	yearly 	vertical 	step 	increases 	for
experience 	and 	columnar 	movements 	for 	educational 	attainment.
Appendix 	D of 	that 	contract 	provides 	as 	follows:
SALARY
The 	Board 	agrees 	that 	prior 	to
September 	1, 	1978, 	it 	will 	provide 	a 	5%
across-the-board 	salary 	increase 	based 	on 	the
1977/78 	salary 	schedule, 	retroactive 	to
July 	1, 	1978. 	Said 	salary 	increase 	shall 	be
subject 	to 	the 	Board's 	assessment 	of 	its
overall 	financial 	condition 	and 	educational
priorities. 	The 	Board 	shall 	have 	final
decision 	on 	all 	educational 	priorities
including 	control 	of 	budgetary matters.
If 	in 	the 	sole 	discretion 	of 	the 	Board 	it
concludes 	after 	such 	assessment 	of 	its
financial 	condition 	and 	educational 	priorities
that 	such 	salary 	increase 	should 	not 	be 	paid,
the 	Board 	has 	full 	power 	to 	withhold 	said
salary 	increase.
In 	the 	event 	the 	above 	salary 	increase 	becomes
effective, 	the 	parties 	agree 	to 	reopen
negotiations 	on 	health 	and 	welfare 	benefits
and 	extra-service 	pay. 	No 	other 	items 	will 	be
the 	subject 	of 	negotiations 	until
April 	16, 	1979.
In 	the 	event 	the 	above 	salary 	increase 	is 	not
granted 	by 	the 	Board 	of 	Trustees, 	the 	parties
agree 	to 	reopen 	negotiations 	on 	salary, 	health
and 	welfare 	benefits 	and 	extra-service 	pay.
No 	other 	items 	will 	be 	the 	subject 	of
negotiations 	until 	April 	16, 	1979.
-3-

In
	the
	alternative,
	if
	the 	Association
believes
	that
	more
	than
	5%
	is
	available,
	and
provided
	that
	written 	notice
	is
	given
	to 	the
Board
	prior
	to
	August
	15,
	1978;
	[sic] 	the
Association
	may
	reopen
	salary
	negotiations 	for
the
	1978-79
	school
	year.
According
	to 	the
	District's
	chief 	negotiator,
	Robert
Seidel,
	Appendix
	D was
	proposed
	by
	the
	District
	because
	the
District
	desired 	to
	be
	able 	to
	reopen
	negotiations
	"should
such
	an
	emergency
	condition
	such
	as
	that
	[i.e.,
	Proposition
	13]
pass.
11
Pursuant
	to
	this
	provision,
	ASTA
	submitted
	a
	proposal
	on
May
	12,
	1978
	to
	reopen
	negotiations
	on
	health
	and
	welfare
benefits
	and
	extra-service
	pay.
On
	June
	6,
	1978,
	the
	California 	electorate
	voted
	in 	favor
of 	Proposition
	13. 	This
	initiative
	added
	article
	XIIIA
	to
	the
California Constitution
	and 	had
	the
	effect
	of 	sharply 	reducing
the
	amount
	of
	revenue
	local
	entities,
	including 	school
districts,
	could
	raise
	by means
	of 	property 	taxes.
District's 	Initial
	Proposal
At
	its
	June 	16,
	1978
	meeting, 	the
	board
	of
	trustees
adopted
	a
	resolution
	announcing
	that
	it
	was
	unable	
to	
pay
	the
5
	percent 	salary 	increase 	provided 	for 	in
	Appendix 	D.
	In
addition, 	the 	board 	of 	trustees 	presented
	its 	initial
	proposal
for 	the 	reopener
	on 	wages,
	health
	and
	welfare 	benefits
	and
extra-service
	pay. 	This 	proposal 	called 	for
	a 	20
	percent
-4-

across-the-board
	reduction
	in
	salaries,3	
and
similar
	reductions
	in 	health
	and
	welfare
	benefits
	and
extra-service
	pay.4
Mr.
	Seidel
	had
	a
	telephone
	conversation
	on
	June
	14
	with
William
	Harju,
	ASTA's
	chief 	negotiator,
	wherein
	he
	advised
Mr.
	Harju
	of 	the
	District's
	forthcoming
	initial
	proposal.
Mr.
	Seidel 	requested
	at 	that
	time
	that
	the
	parties
	begin
negotiations
	on
	June
	23,
	which
	was
	one 	day
	after
	the
	second
board meeting
	to 	consider
	its 	initial
	proposal.
	Mr.
	Harju 	did
not
	agree, 	for 	three
	reasons:
	(1)
	He
	was
	aware
	of
	the
	July
	1
deadline	
by	
which
	the
	District
	was
	required 	to
	act
	in 	order 	to
reduce
	salaries
	for 	the
	upcoming
	school
	year;
	(2)
	he 	was
concerned 	about
	the
	possible
	lack 	of
	sufficient
	public
	notice;
and
	(3)
	ASTA
	needed 	time
	to
	develop
	its
	proposals.
	Mr.
	Harju
advised
	Mr.
	Seidel
	that
	ASTA
	would
	not 	be 	prepared
	to 	begin
negotiations
	until 	after
	the
	first
	board
	of
	trustees
	meeting
	in
3The
	decrease
	was 	20
	percent 	across-the-board 	for 	the
fourth
	and
	subsequent
	step
	increments.
	The
	proposed
	salary
schedule
	retained
	the
	$100
	differential
	between
	steps
	1
	and 	2,
2 	and
	3,
	and 	3 	and
	4,
	as 	well 	as
	the
	$200
	raise
	for 	the 	20th
year
	and
	the
	$400
	raise
	for 	the 	25th 	year 	provided 	for 	in 	the
existing 	salary
	schedule.
4The
	specific
	changes
	in 	health
	and
	welfare 	benefits	
and
extra-service
	pay
	are 	not
	detailed 	in
	this 	decision.
	By
	the
time	
the
	parties	
reached 	impasse,
	on 	August	
11,
	substantial
agreement 	had 	been 	reached 	on most	
of 	these 	issues.
	Moreover,
unlike	
the	
salary 	issue,
	ASTA	
has 	not 	requested
	a 	remedy	
for
the 	allegedly
	unlawful 	changes
	of 	health	
and
	welfare 	benefits
and	
extra-service	
pay.
-5-

July.
	On
	June 	27,
	Mr.
	Seidel
	and
	Mr.
	Harju 	scheduled
	the
	first
three 	negotiations 	sessions
	for
	August
	2,
	3
	and
	4.
The
	June
	29
	Resolution
At
	its
	June
	29
	meeting, 	the
	board
	of
	trustees
	adopted
	a
resolution
	which
	reduced
	salaries
	10
	percent 	across-the-board
and
	altered
	the
	salary
	schedule
	in
	a
	manner 	which 	had
	the
effect
	of
	freezing
	step
	raises
	based
	on
	experience.5	
This
same
	resolution 	also
	provided
	for
	10
	percent 	reductions
	in
health
	and
	welfare
	benefits
	and
	extra-service
	pay.
The
	reasons
	cited
	in 	the
	resolution
	for
	its
	adoption
were:
	(1)
	the
	substantial
	reduction 	in
	revenue 	caused
	by
	the
passage
	of 	Proposition
	13;
	(2)
	article
	XVIII,
	section
	16
	of 	the
California Constitution,
	which
	prohibited
	a
	school
	district
from
	incurring
	indebtedness 	exceeding
	its
	income
	without
	the
consent 	of 	two-thirds 	of 	the
	district's
	eligible
	voters;
	and
(3)
	Rible 	v.
	Hughes 	(1944) 	24
	Cal.2d
	437, 	444, 	which
	required
Sunder
	the 	revised 	salary
	schedule, 	the
	amounts
	in 	the
first
	two
	steps
	were
	repeated
	and
	each
	step 	thereafter
	was
renumbered 	so
	that
	an
	employee's
	vertical
	step
	movement
	in
	the
same 	column
	resulted 	in 	the
	same
	dollar
	amount
	of
	salary, 	less
10
	percent.
	For 	example, 	an 	employee
	who 	was
	placed
	at	
the
17th	
step, 	1st	
column 	on
	the 	1977-78
	salary	
schedule 	received$18,370; 	under
	the 	June
	29
	resolution, 	that
	employee 	would 	move
to 	the 	18th 	step
	and
	receive
	$18,370
	x 	90
	percent,
	or 	$16,533.
Under
	the
	1977-78
	schedule,
	an 	employee
	at
	the 	18th
	step, 	1st
column 	would 	have
	received 	$18,722.
Like 	the 	June 	16	
initial	
proposal, 	the 	June
	29
	salary
schedule	
was
	not
	a
	true 	across-the-board 	decrease.	
The 	$100
increases
	were
	retained
	between
	steps
	up
	to 	the 	5th	
step(formerly 	the 	4th
	step),
	as 	were
	the
	$200 	and 	$400
	raises 	for
the 	20th 	and 	25th 	years, 	respectively.
-6-

that
	if
	salaries
	for 	the
	1978-79
	school 	year
	were
	to
	be
reduced, 	the
	new
	salary
	schedule
	had
	to
	be
	adopted
	before
July
	1,
	1978.
The
	resolution 	stated 	that
	the
	District
	would
	engage
	in
bargaining
	with
	ASTA
	with
	the
	view
	of
	making
	adjustments
	upward
as
	monies
	became
	available
	through
	new
	legislation
	for 	the
1978-79
	school
	year.
Similar
	resolutions
	calling
	for
	10
	percent
	across-the-
board
	decreases
	were
	also
	adopted
	for
	all
	the 	other
	employees
in
	the
	District.
Negotiations 	History
On
	July 	13,
	ASTA
	presented
	its 	initial
	proposal
	on
salaries.
	That
	proposal
	was
	"sunshined"
	at
	the
	board
	of
trustees
	meeting
	of
	July
	27.
At
	the
	first
	negotiations 	session 	of
	August
	2, 	the
District
	proposed
	a 	5
	percent 	decrease
	on
	the
	amounts
	contained
in 	the
	1978-79
	salary
	schedule, 	but 	without 	the
	structural
change 	adopted 	as
	part
	of 	the
	June
	29
	resolution.
	Thus, 	under
this
	proposal,
	an 	employee 	would
	receive
	a
	salary 	increase
based
	upon
	his
	or 	her
	step
	movement
	for 	the 	additional
experience	
accumulated.
On
	August
	3, 	the	
District
	proposed
	a
	zero 	percent
decrease,	
but 	with 	the	
structural	
change
	depriving 	employees	
of
step 	increases.
	On	
the 	average, 	step 	increases 	result 	in
	a
raise 	of 	approximately 	2.4 	percent.
-7-

ASTA
maintained
	its
	position
	for 	the
	5
	percent
	increase
provided 	for
	in
	Appendix
	D,
	and
	also
	sought
	to
	include
	a
provision 	for
	further
	reopening
	of
	negotiations.
No
	new
	proposals
	were
	made 	on
	salaries 	at
	the
	negotiations
sessions
	of
	August
	4,
	9
	and
	11.
	On
	August
	11,
	the
	parties
agreed
	that
	they
	had
	reached 	impasse.
	At
	that
	time
	ASTA
	and
the
	District
	had
	agreed
	on
	self-insurance	
of	
health
	and
	welfare
instead
	of 	continuing
	with
	Blue
	Cross, 	although
	there
	were
still
	some
	differences 	in 	the
	amounts 	and
	types 	of 	coverage.
The
	self-insurance
	program 	implemented
	by
	the
	District
	cost
$192,061
	more
	than 	the 	previous
	year's
	costs
	with
	Blue
	Cross.
However,
	this
	amount 	was
	substantially 	less
	than
	what
	the
renewed 	Blue
	Cross
	plan
	would 	have
	cost,
	as
	premiums 	had
increased
	35
	percent.
As
	of
	August
	11, 	the
	parties
	had
	also
	agreed
	to
	a
	zero
percent 	increase 	for
	extra-service
	pay.
	There
	was
	still
disagreement
	on
	the
	District's
	proposal 	to 	eliminate 	the
stipend 	for
	certain 	special
	education 	teachers
	and
	ASTA's
proposal 	to 	equalize 	the
	extra-service
	pay	
for 	boys'
	and
	girls'
coaches.
On
	August	
11,	
Mr.
	Harju 	requested
	PERB	
to 	declare 	that
impasse
	existed,
	which
	it
	did,
	on 	August
	29.6	
A
mediator
	was
6According	
to
	PERB
	case
	file
	LA-R-94A,
	of	
which	
officialnotice 	is 	taken,
	ASTA
	wrote
	a
	letter
	on 	August 	14
	requesting
that 	its
	August 	11
	letter
	requesting
	an 	impasse 	be 	held 	inabeyance
	until
	August 	28.
-8-

appointed,
	and
	a
	mediation
	session
	was
	held
	on
	September
	11.
That
	effort
	was
	unsuccessful,
	and
	the
	matter
	was
	certified
	for
factfinding.
	The
	factfinding
	hearing
	was
	scheduled
	for
November 	28
	(six
	days
	following 	the
	close
	of 	the 	hearing
	on
this
	unfair
	practice
	charge).
The
	August
	28
	Resolution
Meanwhile,
	the
	board
	of
	trustees
	adopted
	a
	resolution
	on
August
	28
	which 	implemented
	the
	District's 	last
	offer
	of
August
	11 	on
	salaries,
	health
	and
	welfare
	benefits
	and
extra-service
	pay.
	The
	resolution 	stated 	that
	the
	District's
action
	was
	taken 	without
	prejudice 	to
	a
	bilateral
	agreement
	or
other 	action
	which
	might
	be
	arrived
	at
	as
	the
	result
	of
	impasse
proceedings 	or
	further 	negotiations
	with
	ASTA.
The
	District
	felt
	it
	was
	necessary
	to
	adopt
	the
	August
	28
resolution
	for
	several
	reasons:
	(l)
	The
	payroll
	department
needed
	sufficient
	notice 	of 	the
	amount
	of 	the
	salaries
	in 	order
to 	issue
	the
	September
	warrants
	on
	time;
	(2)
	if
	the 	board
	of
trustees
	did
	not
	act,
	then 	the
	June
	29
	resolution
	would
	have
been 	implemented, 	which 	would 	have 	meant 	a
	10
	percent 	reduction
in
	salaries
	instead 	of 	zero 	percent
	(not 	including 	the
	loss
	of
the 	step 	increases 	in
	either 	case):
	(3)
	it
	was
	necessary 	to
take
	some
	action 	regarding 	the
	Blue 	Cross
	policy;	
and 	(4)
	if
the
	District
	paid 	the 	step 	increases,
	it	
would 	reduce
	its
contingency 	reserves 	to
	a 	mere
	1/2 	percent.
-9-

When
	the
	new
	school 	year
	began
	in
	September,
	the
	District
actually
	implemented
	the
	pay
	freeze.
	Testimony
	in
	the 	record
demonstrates
	that 	unit
	members
	did 	not
	receive 	the
	pay
increases
	for
	which
	they
	would
	have
	qualified
	under
	the
District's
	previous
	practice.
The
	District's
	Financial
	Condition
The
	District's 	total
	income
	during 	1977-78
	was
	$60,377,000.
After
	learning
	what
	its
	financial
	situation
	would
	be
	under
SB
	154
	in
	early 	July,
	the
	District
	prepared
	its
	public
	budget
for 	1978-79. 	Total
	income
	was
	estimated 	to
	be
	$57,740,000.
Certificated 	salaries
	were
	shown
	as
	$27,652,000;
	classified
salaries,
	$6,546,000;
	and 	employee
	benefits,
	$7,018,000.
	Also
included
	was
	an
	appropriations
	contingency
	reserve
	fund
	of
$5,605,000.
The
	adopted 	budget
	for
	1978-79 	(adopted
	on
	August 	14)
showed
	total
	income
	of 	$58,340,000, 	including
	a
	contingency
reserve
	fund	
of	
$5,458,000.
The
	public
	budget
	and
	the 	adopted 	budget
	were
	both 	based
on
	the
	10
	percent 	reductions
	and
	freezing
	of 	step 	increases
contemplated
	by
	the 	June
	29
	resolution.
	After 	the
	10
	percent
reduction
	was
	restored, 	the 	contingency 	reserve
	fund
	in 	the
adopted 	budget
	was 	reduced	
to 	$1,400,000.	
Included 	in 	the
contingency 	reserve
	fund	
figures	
is	
approximately 	$370,000 	for
petty 	cash
	and
	inventory.
-10-

The
	cost
	of
	paying
	step
	increases
	for
	all
	employees
	would
have
	been
	$750,000,
	of
	which 	$550,000
	was
	for
	certificated
salaries.
In 	the
	spring 	of
	1978,
	the
	District
	received
	a
	notice
	from
the
	county
	superintendent 	of
	schools
	that
	the
	District's
reserves
	were
	approaching
	a
	dangerously
	low
	level
	of	
2	
percent.
District's
	Past
	Practice
	Regarding
	Step
	Increases
Step
	increases
	have
	always 	been
	paid
	by
	the
	District.
However,
	in
	June
	1973 	and
	June 	1976,
	the
	board
	of
	trustees
initially
	took
	action 	to 	freeze
	step 	increases
	for 	the
following 	school 	year 	because
	of
	concerns 	about
	sufficient
income.
	Prior 	to 	those 	school
	years, 	the 	freezes
	were
rescinded.
	In
	June 	1975,
	the
	board
	of
	trustees
	considered
	a
similar
	recommendation
	by
	the
	superintendent,
	but
	rejected
	the
proposal 	in 	executive 	session 	prior 	to
	any
	public
	meeting 	on	
it.
ISSUE
Whether
	the
	District
	violated 	section
	3543.S(c)
	by
the
	pay
	freeze
	which
	it
	implemented
	in 	the
	fall	
of	
1978.
CONCLUSIONS 	OF
	LAW
The	
issue 	presented
	by
	this
	case
	is
	not
	new. 	The
	PERB	
has
faced 	the	
precise 	question 	as 	presented 	here	
in	
the 	case 	of
California	
School 	Employees
	Association, 	Chapter
	No. 	33
	v.	
San
Mateo 	county
	Community
	college 	District
	(6/8/79)	
PERB	
Decision
-11-

No. 	94. 	That 	case 	is 	controlling 	in 	the 	present 	factual
setting.
Section 	3543.5 	(c) 	of 	the 	EERA provides 	that
It 	shall 	be 	unlawful 	for 	a 	public 	employer 	to:
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in 	good 	faith
with 	an 	exclusive 	representative.
Under 	section 	3543.5(c), 	it 	is 	unlawful 	for 	a 	public 	school
employer 	to 	refuse 	or 	fail 	to 	meet 	and 	negotiate 	in 	good 	faith
with 	an 	exclusive 	representative 	about 	a 	matter 	within 	the
scope 	of 	representation.? 	It 	cannot 	be 	disputed 	that 	the
matter 	in 	question 	here, 	wages, 	is 	a 	subject 	directly 	within
the 	scope 	of 	representation. 	Applying 	the 	federal 	precedent 	in
7rn 	relevant 	part, 	Government 	Code 	section 	3543.2
defines 	the 	scope 	of 	representation 	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 •...
-12-

NLRB
	v.
	Katz
	(1962) 	369
	U.S.
	736
	[50
	LRRM
	2177],
	the
	PERB
	has
held
	that
	it
	is
	a
	violation
	of
	section
	3543.S(c)
	to
	make 	a
unilateral
	change,
	prior
	to
	any
	negotiating
	impasse, 	about
matters 	within
	the
	scope
	of
	representation.
	CSEA
	v.
	San
	Mateo,
supra,
	PERB
	Decision
	No.
	94;
	Pajaro Valley 	Unified
	School
District
	(5/22/78)
	PERB
	Decision
	No.
	51.
	The
	specific
conclusion 	in
	San 	Mateo
	was
	that
	an
	employer
	violated
section
	3543.S(c)
	by
	unilaterally
	denying
	expected 	annual 	pay
increments.
The
	District
	contends,
	however,
	that
	step 	increases 	in
past
	years
	have
	not
	been
	automatic
	and
	therefore
	its
	suspension
of 	step 	increases
	marks
	no
	unilateral
	change
	in 	past
	practice.
The
	District
	bases
	this
	argument
	on
	its
	assertion 	that
	in
recent 	years 	the
	board
	of
	trustees
	has 	used
	its
	independent
judgment
	to
	determine 	whether
	it
	could
	afford 	step 	increases.
The
	fact
	is,
	however,
	the
	consistent 	past 	pattern
	has 	been
	to
pay
	the
	step 	increases.
	They
	have
	never 	been
	withheld,
	and
therefore
	are
	legitimately
	considered 	as
	part
	of 	the
	status
	quo
with
	respect 	to 	teacher
	salaries.
The
	District
	Was
	Required
	To
	Maintain
	The
	Status
	Quo
	Pending
Completion
	Of 	The
	PERB
	Impasse 	Procedures
In
	ivate 	sector
	an
	ates 	his
	du
	to
bar 	in
	if
	he
	unilateral 	institutes
	sin
	exi.sti
	terms
and
	conditions
	employment
	during 	negotiations.
	However,
-13-

after 	bargaining 	to 	an 	impasse, 	that 	is, 	after 	good-faith
negotiations 	have 	exhausted 	the 	prospects 	of 	reaching 	an
agreement 	with 	the 	union, 	the 	private 	sector 	employer 	does 	not
commit 	an 	unfair 	labor 	practice 	by making 	unilateral 	changes
that 	are 	reasonably 	comprehended 	within 	his 	pre-impasse
proposals.8
In 	the 	private 	sector, 	once 	an 	impasse 	occurs, 	a 	union
often 	resorts 	to 	economic 	force 	in 	the 	hope 	that 	striking 	and
picketing 	will 	force 	concessions 	from 	the 	employer. 	Counsel
for 	the 	District 	argues 	that 	the 	mediation 	and 	factfinding
processes 	established 	by 	the 	EERA were 	enacted 	by 	the
Legislature 	to 	accomplish 	in 	the 	public 	sector 	what 	economic
force 	does 	in 	the 	private 	sector, 	that 	is, 	to 	break 	the
impasse. 	Thus, 	it 	is 	argued, 	impasse 	occurs 	at 	the 	same 	time
in 	the 	public 	sector 	as 	it 	does 	in 	the 	private 	sector, 	and 	the
public 	school 	employer 	should 	be 	permitted 	to 	implement
unilateral 	changes 	to 	the 	same 	extent 	its 	private 	sector
counterpart 	would.
Nevertheless, 	for 	the 	reasons 	which 	follow, 	it 	is
concluded 	that 	unilateral 	changes 	may 	not, 	as 	a 	general 	rule,
be 	implemented 	until 	after 	completion 	of 	the 	impasse 	procedure
established 	by 	the 	EERA.
8see 	Taft 	Broadcasting Co. 	(1967) 	163 	NLRB 	475, 	478
[64 	LRRM 	1386, 	1388].
-14-

The
	PERB
	impasse
	procedures 	are
	set
	out
	in 	sections
	3548
through 	3548.4.
	Section
	3548
	provides
	that 	either
	party
	may
declare
	that
	an
	impasse 	has 	been
	reached
	in
	negotiations
	and
may
	request
	PERB
	to
	appoint
	a
	mediator
	for 	the
	purpose
	of
assisting
	them
	in 	reconciling
	their
	differences
	and
	resolving
the 	controversy
	on
	terms
	which
	are 	mutually
	acceptable.
	If
PERB
	determines
	that
	an
	impasse
	exists,
	a
	mediator
	is
appointed. 	Section
	3548.1
	provides
	that
	if
	the 	mediator
	is
unable
	to
	effect
	settlement
	and
	if
	he
	declares
	that
	factfinding
is
	appropriate,
	then
	either
	party
	may
	request
	factfinding.
Section
	3548.3
	provides
	that
	if
	the
	dispute
	is
	not
	settled
within
	30
	days
	after
	the
	appointment
	of 	the
	factfinding 	panel,
or,
	upon
	agreement
	by
	both
	parties,
	within
	a
	longer
	period,
	the
factfinding
	panel
	shall
	issue
	a
	written,
	advisory
	report
recommending
	the
	terms
	of
	settlement.
	The
	public
	school
employer
	is
	required 	to
	make
	the 	report 	public 	within
	10
	days
after
	its
	receipt.
	Section
	3548.4
	provides
	that
	the 	mediator
may
	continue 	mediation
	efforts
	on
	the 	basis
	of 	the
	factfinding
report.
	(Emphasis
	added.)
This 	impasse
	procedure 	should
	be 	viewed
	in
	reality
	as
	an
extension 	of 	the 	negotiating 	process 	rather
	than
	a
	procedure
separate
	and
	apart
	from
	negotiations.
	This
	is
	evident
	from 	the
fact	
that	
settlement 	during 	factfinding 	is	
contemplated,	
that
factfinding 	is
	advisory 	only, 	that 	mediation 	can	
be	
resumed
after 	factfinding	
and	
that 	section
	3549
	reserves 	to	
the	
public
-15-

school
	employer
	the
	authority 	to
	make
	the
	final
	decision 	with
regard
	to
	all
	matters 	within
	the
	scope
	of
	representation.
	As
an
	aid 	to
	bilateral
	negotiations,
	the 	success 	of 	the
	impasse
procedure
	depends
	upon
	the
	good
	faith 	participation
	of
	the
parties.
	Since
	the
	impasse
	procedure
	is
	an
	extension 	of
negotiations,
	the 	question
	of
	either 	party's
	good
	or
	bad
	faith
during
	impasse
	should
	be
	evaluated
	according
	to 	similar
standards
	as 	those
	by
	which
	good
	or
	bad
	faith
	during
negotiations
	are
	judged.
Therefore,
	just
	as
	unilateral
	changes
	in 	conditions 	of
employment
	under
	negotiation
	frustrate
	the
	objectives
	of
meeting
	and
	negotiating,
	so 	too
	do
	unilateral
	changes
	in
conditions 	of
	employment
	under
	mediation 	or
	factfinding
frustrate
	the
	objectives
	of 	the
	impasse
	procedure. 	Together,
the
	meet
	and
	negotiation
	process
	and
	the
	impasse
	procedure
constitute
	the
	collective 	negotiations 	process.
	It
	is
concluded,
	therefore, 	that 	unilateral
	changes, 	absent
	a
	valid
defense, 	are 	prohibited
	by
	the
	EERA
	until
	the 	completion
	of
	the
impasse
	procedure.
	Because
	the
	impasse
	procedure
	is
	an
extension 	of
	negotiations, 	the
	unlawful 	change 	would
	constitute
a
	violation
	of 	section 	3543.5(c),
	and
	not 	merely
	a
	violation
	of
section 	3543.S(e).
	The
	latter
	section 	provides
	that
	it
	is
unlawful 	for
	a
	public 	school 	employer
	to 	refuse 	to 	participate
in
	good
	faith 	in 	the 	impasse 	procedure. 	While 	a
	unilateral
change 	during 	impasse
	will 	probably 	result 	in
	a
	violation 	of
-16-

section
	3543.S(e),
	it
	is
	permissible
	for
	charging
	party
	to
limit
	the 	charge
	to 	3543.S(c).
District
	Defenses
	and 	Arguments
In
	its
	posthearing
	briefs,
	Counsel
	for 	the
	District 	raises
several
	arguments
	to
	justify
	the
	District's
	unilateral
	adoption
of
	the
	June
	29 	and
	August
	28
	resolutions.
	Some
	of 	these
	have
been
	discussed 	already.
	The
	remainder
	are
	addressed
	below.
A.
	Business
	necessity
The
	District
	contends
	that
	business
	necessity 	required
	it
to
	take 	the
	actions
	it
	did.
	With
	respect 	to 	the
	June
	29
resolution,
	it
	is
	argued
	that
	the
	dire 	financial 	forecasts
resulting
	from
	the 	passage
	of 	Proposition
	13, 	coupled 	with 	the
requirement
	under
	Rible
	v.
	Hughes
	(1944)
	24
	Cal.2d 	437,
	444
and
	its
	progeny
	that
	any
	reductions 	in
	salaries
	be
	taken
	prior
to 	July
	1,
	required 	the
	10
	percent 	reductions	
and	
loss 	of 	step
increases.
	Concerning
	the
	August 	28
	resolution,
	the
	District
maintains
	that
	its
	contingency 	reserve
	fund 	would 	have 	been
	an
unacceptable
	1/2 	percent	
of	
budgeted 	income.
Similar
	arguments 	were
	considered
	by
	the
	PERB
	in
	San 	Mateo
and 	found	
unconvincing.
	11
(I)nability 	to	
pay,
11	
the
	PERB
concluded,
	"is
	a
	negotiating 	position 	rather
	than
	an
	excuse
	to
avoid 	the	
negotiating 	obligation 	entirely."
	An
	analysis 	of
the	
facts
	in 	the 	present 	case 	provides 	no
	justification	
for	
a
conclusion 	different
	from
	that
	reached 	by	
the	
PERB
	in
	San
Mateo.
-17-

The
	District's
	position
	finds
	its
	authority
	in
	dictum
	from
NLRB
	v. 	Katz, 	supra
	(1962) 	369
	U.S.
	736 	[50
	LRRM
	2177,
	2182],
where
	the
	Supreme
	Court
	stated:
[W]e
	do
	not
	foreclose
	the
	possibility
	that
there
	might
	be
	circumstances
	which
	the
Board
	could
	or
	should
	accept
	as 	excusing 	or
justifying 	unilateral
	action
Assuming,
	without 	deciding,
	that
	the 	case
	law 	does
	require
the
	District
	to
	take
	action
	by
	July
	1
	in 	order
	to
	reduce
salaries,
	and
	recognizing
	that
	there
	was 	a
	degree
	of
uncertainty
	regarding 	the
	financial
	outlook 	for 	the
	upcoming
school
	year, 	nevertheless
	the
	District
	has
	failed
	to
	establish
a
	bona
	fide 	business
	necessity
	for 	adopting 	the
	resolutions.
At
	the
	outset,
	a 	few
	words
	about 	contingency
	funds
	is
appropriate.
	Education
	Code
	sections
	42124
	and
	42125
	provide
that
	a
	school
	district
	may
	maintain
	a
	general 	reserve
	and 	an
undistributed 	reserve, 	respectively.
	But, 	notwithstanding 	the
warnings
	of
	the 	county
	superintendent 	of 	schools, 	there
	appears
to
	be 	no
	statutory
	or
	other 	authority 	requiring
	a
	school
district
	to 	maintain
	a
	reserve 	in
	any 	amount.9
It
	appears
	that
	the
	District
	overreacted 	to 	the
Proposition
	13
	problem, 	as
	illustrated
	by
	this 	analysis 	of 	the
public
	budget:
9Education
	Code
	section
	42637
	does 	provide 	that 	the
county 	superintendent 	of 	schools
	may
	conduct
	a
	review 	of
	a
school
	district's
	budget 	and 	make 	recommendations
	to 	insure
that 	expenditures
	do
	not 	exceed 	budgeted 	income.
-18-

Certificated
	salaries	
$27,652,000
Classified
	salaries	
6,546,000
Employee
	benefits	
7,018,000
Total
	compensation 	based
	on10%
	salary
	reduction
	andno
	step 	increases	
$41,216,000
divided
	by
	90%
Total
	compensation
	with
	0%
salary
	reduction
	and 	no
step
	increases	
$45,795,556
Cost
	of
	restoring
	10%
reduction	
$
	4,579,556
Cost
	of
	restoring 	stepincreases	
750,000
Total
	cost
	of
	restoring
	10%
reduction
	and
	step 	increases	
$5,329,556
Total
	amount
	of
	reserves	
$
	5,605,000Less
	petty
	cash
	&
inventory	
-
	370,000Net
	usable
	reserve	
$5,235,000
Thus,
	assuming,
	without
	deciding,
	that
	no
	other
	budget
cuts
	were
	possible,
	only
	a
	nominal
	reduction
	in
	employee
benefits
	was
	necessary,
	based
	on
	the 	information 	obtained
about
	SB
	154
	in 	early 	July.
	Recognizing
	that 	this 	analysis
takes
	advantage
	of
	hindsight, 	there 	are 	also 	other 	reasons 	for
concluding
	that
	there
	was 	no
	business
	necessity 	for 	the
District's
	drastic
	reduction 	in 	benefits.
At
	the 	hearing 	the
	District's
	chief 	negotiator 	stated 	that
Appendix 	D was	
proposed
	by
	the	
District
	in 	contemplation 	of
the 	passage
	of 	Proposition 	13.
	Appendix 	D
permits 	the
District
	to 	withhold 	the 	bargained-for
	5
	percent 	across-the-
board	
increase, 	but
	it
	did 	not 	grant 	the	
District	
the	
right 	to
reopen	
salaries. 	If
	the 	contemplated 	passage 	of
	Propo-
sition
	13
	only
	stirred
	the
	District 	into 	seeking
	a
	withholding
-19-

of 	a 	future 	increase 	at 	the 	time 	the 	contract 	was 	negotiated,
it 	is 	difficult 	to 	accept 	that 	the 	District 	really 	believed 	a
few 	months 	later 	that 	business 	necessity 	required 	the 	much
more 	drastic 	action 	of 	June 	29.
Furthermore, 	the 	evidence 	establishes 	that 	the 	income
estimated 	under 	the 	public 	budget 	($57,740,000) 	represented
only 	a 	4.37 	percent 	decrease 	from 	the 	actual 	income 	received
for 	the 	1977-78 	school 	year 	($60,377,000). 	The 	income 	listed
in 	the 	August 	14 	adopted 	budget 	($58,340,000) 	was 	only 	3.37
percent 	less 	than 	that 	received 	for 	that 	year. 	This 	is
significant, 	for 	in 	Sonoma County 	Organization 	of 	Public
Employees 	v. 	County 	of 	Sonoma 	(1979) 	23 	Ca1.3d 	296, 	310-312,
the 	California 	Supreme 	Court 	ruled 	that 	6 	percent 	reduction 	in
revenue 	was 	not 	a 	sufficient 	emergency 	to 	justify 	impairment
of 	contracts. 	It 	should 	similarly 	be 	concluded 	that 	a
6 	percent 	reduction 	in 	revenue 	is 	not 	a 	sufficient 	basis 	to
justify 	abrogation 	of 	the 	statutory 	duty 	to meet 	and 	negotiate
in 	good 	faith. 	In 	this 	case, 	the 	loss 	in 	revenue 	was
substantially 	less 	than 	6 percent.
With 	respect 	to 	the 	August 	29 	resolution, 	there 	was 	a
$1,030,000 	usable 	contingency 	reserve 	fund 	after 	the 	10
percent 	reduction 	was 	restored. 	There 	still 	would 	have 	been 	a
$280,000 	fund 	if 	the 	step 	increases 	had 	been 	paid. 	Since 	the
District 	was 	not 	required 	to 	maintain 	a 	reserve 	fund, 	there
was 	no 	business 	necessity 	for 	abrogating 	its 	duty 	to 	negotiate.
-20-

B. 	Not 	prejudicial 	to 	future 	negotiations
The 	District 	maintains 	that 	the 	resolutions 	were 	justified
by 	business 	necessity 	and 	further 	mitigated 	by 	its 	announced
intention 	to 	fully 	participate 	in 	the 	negotiations 	and 	impasse
procedures. 	The 	fact 	is, 	there 	was 	no 	business 	necessity 	and
the 	District 	offered 	to 	do 	nothing 	more 	than 	it 	was 	already
required 	to 	do 	-- 	negotiate!
c. 	Abandonment 	of 	bargaining 	position
The 	District 	argues 	that 	if 	the 	parties 	had 	in 	fact
negotiated 	an 	agreement 	not 	to 	pay 	step 	increases 	after 	the
District 	began 	paying 	them, 	the 	District 	would 	be 	unable 	to
recoup 	the 	prior 	payments 	without 	severely 	disrupting 	employee
relations 	and 	morale. 	As 	a 	matter 	of 	practicality, 	the
District 	would 	be 	abandoning 	its 	bargaining 	position. 	It 	is
suggested 	here 	that 	the 	adverse 	impact 	upon 	employee 	relations
and 	morale 	would 	be 	no 	greater 	than 	it 	is 	in 	the 	case 	where,
as 	here, 	the 	public 	school 	employer 	unilaterally 	withdraws 	a
benefit 	which 	the 	employees 	have 	every 	reason 	to 	expect 	and
which 	was 	negotiated 	as 	part 	of 	the 	contract 	currently 	in
effect.
D. 	June 	29 	resolution 	not 	implemented
District 	ar 	t 	June 	29 	re 	tion 	was 	not 	an
action 	at 	1, 	since 	that 	reso 	tion 	was 	never
fact 	is, 	both 	resolutions 	were 	official 	actions 	the
-21-

board 	of 	trustees. 	The 	fact 	that 	the 	District 	rescinds 	an
unlawful 	action 	in 	favor 	of 	a 	less 	damaging 	unlawful 	action
does 	not 	alter 	the 	character 	of 	the 	first 	action. 	The 	EERA
prohibits 	unfair 	practices, 	not 	just 	harmful 	results.
E. 	Good 	faith
The 	District 	alleges 	that 	it 	acted 	in 	good 	faith 	in 	trying
to maintain 	a 	contingency 	fund 	reserve 	and 	that 	PERB 	should
not 	second-guess 	that 	effort. 	However, 	the 	premise 	underlying
the 	United 	States 	Supreme 	court's 	decision 	in 	NLRB 	v. 	Katz,
supra 	(1962) 	369 	u.s. 	736 	[50 	LRRM 	2177] 	is 	that 	unilateral
action 	is 	inconsistent 	with 	good 	faith, 	and 	such 	action 	will
be 	permitted 	only 	in 	the 	most 	unusual 	of 	circumstances. 	A
good 	faith 	belief 	that 	business 	necessity 	exists 	is 	not
sufficient. 	CSEA V. 	San 	Mateo, 	supra, 	PERB 	Decision 	No. 	94.
F. 	Waiver
The 	District 	contends 	that 	ASTA waived 	its 	right 	to 	insist
that 	the 	District 	exhaust 	the 	impasse 	procedure 	because 	ASTA
first 	purposely 	stalled, 	and 	then 	knowingly 	agreed 	to 	postpone
negotiations 	until 	August. 	While 	it 	is 	true 	that 	the 	July 	1
line 	was 	one 	of 	consi 	ations 	.ASTA 	did 	not 	ree
to 	negotiate 	immediate 	, 	there 	were 	other 	reasons 	as 	well.
Speculation 	aside, 	the 	evidence 	is 	ins 	ficient 	to 	establish
that 	that 	was 	the 	motivati 	reason. 	As 	delay 	in
negotiations 	until 	August, 	it 	can 	a 	said 	that 	a
-22-

bilateral 	agreement 	to 	set 	negotiations 	sessions 	for 	early
August 	absolved 	the 	District 	of 	its 	obligation 	to 	bargain 	in
good 	faith 	{i.e., 	not 	implement 	unilateral 	changes).
Thus, 	it 	is 	concluded 	that 	the 	District 	had 	no 	valid
defenses 	for 	its 	unilateral 	denial 	of 	incremental 	pay
increases 	in 	the 	fall 	of 	1978 	and 	in 	so 	doing 	the 	District
violated 	section 	3543.S(c).
REMEDY
ASTA 	urges 	that 	the 	District 	be 	ordered 	to 	implement 	its
established 	practice 	of 	paying 	step 	increases 	for 	experience.
ASTA 	also 	requests 	interest 	on 	the 	salaries 	withheld 	from 	the
employees. 	Finally, 	ASTA 	requests 	that 	the 	District 	be
required 	to 	post 	a 	cease 	and 	desist 	order.
Section 	3541.S(c) 	provides 	that:
The 	board .shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies
of 	this 	chapter.
In 	the 	present 	case, 	the 	employer 	has 	unilaterally
disrupted 	the 	status 	quo, 	causing 	economic 	losses 	to 	employees
in 	the 	unit. 	A remedy 	requiring 	the 	employer 	to 	restore 	the
status quo 	by 	repaying 	the 	lost 	wages 	is 	appropriate 	to
effectuate 	the 	policies 	of 	the 	EERA 	because 	it 	restores 	the
-23-

parties 	to 	the 	positions 	they 	occupied 	prior 	to 	the 	unlawful
act.10
With 	respect 	to 	interest 	on 	the 	back 	pay 	award, 	the 	NLRB
customarily 	awards 	interest 	in 	similar 	circumstances. 	See 	Isis
Plumbing 	& Heating 	Co. 	(1962) 	138 	NLRB 	716 	[51 	LRRM 	1122];
Reserve 	Supply Corp. 	v. 	NLRB 	(2d Cir. 	1963) 	317 	F.2d 	785
[53 	LRRM 	2374]. 	The 	PERB 	relied 	on 	this 	precedent 	in 	ordering
payment 	of 	interest 	in 	San Mateo.
Under 	California 	law, 	pursuant 	to 	Civil 	Code 	section
3287(a),ll 	school 	districts 	and 	other 	public 	employers 	have
been 	ordered 	to 	pay 	interest 	on 	back 	pay 	awarded 	to 	employees.
See 	Mass 	v. 	Board 	of 	Eduation 	(1964) 	61. 	Cal.2d 	612
[39 	Cal.Rptr. 	739]; 	Sanders 	v. 	City 	of 	Los 	Angeles 	(1970)
lOsuch 	a 	remedy 	is 	in 	accord 	with 	NLRB 	precedent. 	See
NLRB 	v. 	Allied 	Products 	Corp. 	( 6th Cir. 	1977) 	548 	F. 2d 	644
T9t1LRRM 	2433].
llcivil 	Code 	Section 	3287(a) 	provides:
Every 	person 	who 	is 	entitled 	to 	recover
damages 	certain, 	or 	capable 	of 	being made
certain 	by 	calculation, 	and 	the 	right 	to
recover 	which 	is 	vested 	in 	him 	upon 	a
particular 	day, 	is 	entitled 	also 	to 	recover
interest 	thereon 	from 	that 	day, 	except
during 	such 	time 	as 	the 	debtor 	is 	prevented
by 	law, 	or 	by 	the 	act 	of 	the 	creditor 	from
paying 	the 	debt. 	This 	section 	is
applicable 	to 	recovery 	of 	damages 	and
interest 	from 	any 	such 	debtor, 	including
the 	state 	or 	any 	county, 	city, 	city 	and
county, 	municipal 	corporation, 	public
district, 	public 	agency, 	or 	any 	political
subdivision 	of 	the 	state.
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3 Cal.3d 	252 	[90 	Cal.Rptr. 	169]: 	see 	also 	Tripp 	v. 	Swoap 	(1976)
17 	Cal.3d 	671, 	677-685 	[131 	Cal.Rptr. 	789].
Thus, 	although 	section 	3541.S(c) 	does 	not 	expressly
authorize 	interest 	on 	back 	pay 	awards, 	based 	on 	the 	above 	NLRB
and 	state 	precedent, 	it 	is 	appropriate 	to 	add 	interest 	at 	the
legal 	rate 	to 	the 	back 	pay 	awara.12
It 	is 	also 	appropriate 	that 	the 	District 	be 	ordered 	to
cease 	and 	desist 	from 	unlawful 	unilateral 	actions 	and 	to 	post 	a
notice 	about 	this 	decision.13 	In 	addition, 	individual 	notice
of 	the 	order 	should 	also 	accompany 	one 	round 	of 	District 	salary
payments 	to 	all 	employees. 	This 	procedure 	will 	insure 	that
employees 	are 	directly 	informed 	in 	a 	relevant 	context 	(i.e.,
the 	pay 	envelope) 	of 	the 	reason 	for 	the 	restoration 	in 	step
increments.
ASTA 	did 	not 	request 	any 	remedy 	with 	respect 	to 	the
unilateral 	changes 	in 	health 	and 	welfare 	benefits 	and
extra-service 	pay, 	perhaps 	because 	substantial 	agreement 	had
2	1 california Constitution, 	article 	XV, 	section 	1
prescribes 	a 	rate 	of 	interest 	of 	7 	percent 	per 	annum.
Although 	the 	National 	Labor 	Relations 	Board 	imposes 	6 	percent
interest 	(the 	current 	adjusted 	prime 	rate) 	on 	back 	pay 	awards
(Florida 	Steel 	Corp. 	(1977) 	231 	NLRB 	651 	[96 	LRRM 1070]), 	the
California 	legal 	rate 	is 	the 	appropriate 	one 	to 	be 	applied.
13see 	California 	School 	Employees 	Association, 	Chapter
658 	v. 	Placerville 	Union 	School 	District 	(97I"B718) 	PERB
Decision 	No. 	69: 	and 	Oceanside-Carlsbad Unified 	School
District 	(1/30/79) 	PERB 	Decision 	No. 	89.
·
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maintained 	for 	a 	period 	of 	at 	least 	30 	consecutive 	work 	days.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	said 	notices
are 	not 	altered, 	defaced 	or 	covered 	by 	any 	other 	material.
3. 	Mail 	or 	distribute 	to 	employees 	represented 	by 	ASTA 	a
copy 	of 	the 	notice 	attached 	as 	appendix 	hereto 	by 	giving
individual 	notice 	accompanying 	one 	round 	of 	District 	pay
warrants.
4. 	At 	the 	end 	of 	the 	posting 	period, 	notify 	the 	Los
Angeles 	Regional 	Director 	of 	the 	actions 	taken 	to 	comply 	with
this 	Order.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	November 	19, 	1979 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions 	within 	twenty 	(20) 	calendar 	days
following 	the 	date 	of 	service 	of 	the 	decision. 	Such 	statement
of 	exceptions 	and 	supporting 	brief 	must 	be 	actually 	received
by 	the 	executive 	assistant 	to 	the 	Board 	at 	the 	headquarters
office 	in 	Sacramento 	before 	the 	close 	of 	business 	(5:00 	P.M.)
on 	November 	19, 	1979 	in 	order 	to 	be 	timely 	filed. 	(See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32135.) 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently 	with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with 	the 	Board
-27-

been
	reached
	by
	the
	time
	of
	impasse
	(see
	footnote
	4,
	supra).
Therefore,
	no 	remedy
	is
	ordered.
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law
and
	the
	entire
	record
	in
	this
	case,
	and
	pursuant 	to
section
	3541.S(c)
	of 	the
	EERA,
	it
	is
	hereby
	ordered
	that
	the
Anaheim
	Union 	High
	School
	District,
	its
	governing 	board,
superintendent
	and
	other
	representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
Taking
	unilateral
	action
	regarding
	proposed 	changes
	on
wages, 	hours
	or
	terms
	and
	conditions 	of
	employment
	as
	defined
in 	section
	3543.2
	of
	the
	EERA
	prior
	to 	the
	completion
	of 	the
impasse
	procedure
	set
	out 	in 	sections
	3548
	through
	3548.4 	of
the
	EERA.
B.
	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE 	THE
	POLICIES
	OF 	THE
	EERA:
1. 	Reinstate 	step
	increments 	for 	those
	employees
represented
	by 	ASTA,
	with
	payment	
of 	interest 	at
	7
	percent 	for
the
	amount 	due 	from
	the 	date 	of 	suspension	
of 	said 	increments
to	
the 	date 	of 	reinstatement.
2.
	Post
	at
	all
	school
	sites,
	and
	all
	other
	work
	locations
where
	notices 	to	
employees	
customarily 	are 	placed,
	on
	the 	date
this	
proposed	
decision	
becomes	
final,
	copies 	of 	the 	notice
attached 	as 	an 	appendix 	hereto.
	Such
	posting 	shall
	be
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itself. 	(See 	California 	Administrative 	Code, 	title 	8, 	part
III, 	sections 	32300 	and 	32305, 	as 	amended.)
Dated: 	October 	29, 	1979
-28-
ALLEN 	R. 	LINK
Hearing 	Officer

NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
APPENDIX
After 	a 	hearing 	in 	case 	noo 	LA-CE-347 	in which 	all 	parties
participated, 	it 	has 	been 	found 	that 	the 	Anaheim Union High
School 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	(Government 	Code 	section 	354lo5(c)) 	by 	taking 	unilateral
action 	regarding 	proposed 	changes 	of wages 	and 	step 	increments
of 	employees 	represented 	by 	the 	Anaheim Secondary 	Teachers
Association 	prior 	to 	the 	completion 	of 	the 	impasse 	procedure
established by 	the 	Educational 	Employment 	Relations 	Acto 	As 	a
result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this 	notice
as 	well 	as 	mail 	or 	distribute 	this 	notice 	with 	one 	round 	of 	pay
warrants. 	We 	will 	abide 	by 	the 	following:
Ao 	CEASE AND 	DESIST FROM 	taking 	unilateral 	action
regarding 	proposed 	changes 	on wages, 	hours 	or 	terms
and 	conditions 	of 	employment 	as 	defined 	in
section 	354302 	of 	the 	EERA prior 	to 	the 	completion
of 	the 	impasse 	procedure 	set 	out 	in 	sections 	3548
through 	354804 	of 	the 	EERAo
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EERA: 	Reinstate
step 	increments 	for 	those 	employees 	represented by
ASTA, 	with 	payment 	of 	interest 	at 	seven 	percent 	for
the 	amount 	due 	from 	the 	date 	of 	suspension 	of 	said
increments 	to 	the 	date 	of 	reinstatement.
Dated: 	ANAHEIM UNION HIGH 	SCHOOL 	DISTRICT
By:
Superintendent
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST 	REMAIN 	POSTED
FOR AT 	LEAST 	30 	CONSECUTIVE WORK 	DAYS 	FROM THE 	DATE
OF 	POSTING AND MUST NOT 	BE 	DEFACED, 	ALTERED 	OR COVERED
BY ANY MATERIAL.
-29-