Sacramento City Unified School District (Spencer) (PERB 0205E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
JOSEPH A. 	SPENCER,
Complainant,
APPELLANT,
V •
SACRAMENTO 	CITY 	UNIFIED SCHOOL
DISTRICT,
Respondent,
and
SACRAMENTO 	CITY TEACHERS 	ASSOCIATION,
Respondent.
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Case 	Nos. 	S-PN-2
S-R-88
PERB 	Decision No. 	205
April 	9, 	1982
~ppearances: 	John 	A. 	Spencer, 	Chairman, 	Children First.
Before Gluck, 	Chairperson; 	Moore 	and Jaeger, 	Members.
DECISION
John A. 	Spencer, 	chairman 	of 	Children First 	(Complainant),
appeals 	an 	order 	of 	the 	Sacramento 	regional 	director 	of 	the
Public Employment 	Relations 	Board 	(PERB) 	dismissing 	his 	public
notice 	complaints 	thout 	leave 	to 	amend. 	Upon 	consi 	ation
entire 	record, 	in 	li 	t 	ainant's 	exc 	ions, 	t
Board 	affirms 	r 	director 1 s 	termination

PROCEDURAL 	HISTORY
Complainant 	alleges 	that 	Respondents 	Sacramento City
Unified School 	District 	(District) 	and 	the Sacramento City
Teachers 	Association 	(Association) 	violated 	subsections
3547(a), 	(b), 	and 	(d) 	of 	the 	Educational Employment 	Relations
Act 	(EERA)l 	by 	failing 	to 	provide 	the 	public 	with 	adequate
notice 	and 	opportunity 	to 	comment 	on 	certain 	of 	the
Association's 	proposals. 	The 	regional 	director 	dismissed
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code.
Subsections 	3547(a), 	(b) 	and 	(d) 	provide 	as 	follows:
(a) 	All 	initial 	proposals 	of 	exclusive
representatives 	and 	of 	public 	school
employers, 	which 	relate 	to 	matters 	within
the 	scope 	of 	representation, 	shall 	be
presented 	at 	a 	public meeting 	of 	the 	public
school 	employer 	and 	thereafter 	shall 	be
public 	records.
(b) 	Meeting 	and 	negotiating 	shall 	not 	take
place 	on 	any 	proposal 	until 	a 	reasonable
time 	has 	elapsed 	after 	the 	submission 	of 	the
proposal 	to 	enable 	the 	public 	to 	become
informed 	and 	the 	public 	has 	the 	opportunity
to 	express 	itself 	regarding 	the 	proposal 	at
a 	meeting 	of 	the 	public 	school 	employer.
(d) 	New 	subjects 	of 	meeting 	and 	negotiating
arising 	after 	the 	presentation 	of 	initial
proposals 	shall 	be 	made 	public 	within 	24
hours. 	If 	a 	vote 	is 	taken 	on 	such 	subject
by 	the 	public 	school 	employer, 	the 	vote
thereon 	by 	each 	member 	voting 	shall 	also 	be
made 	public 	within 	24 	hours.
2

Complainant's 	allegations 	respecting 	subsections 	3547(a) 	and
(d) 	without 	leave 	to 	amend, 	and 	dismissed 	his 	subsection
3547(b) 	allegation 	with 	leave 	to 	amend. 	Subsequently,
Complainant 	filed 	a 	timely 	appeal 	respecting 	the 	dismissal 	of
his 	subsection 	3547(a} 	and 	(d) 	allegations 	and 	an 	amendment 	of
his 	subsection 	3547(b) 	allegation. 	Thereafter, 	the 	regional
director 	dismissed 	the 	amended 	complaint 	without 	leave 	to
amend. 	Complainant 	then 	appealed 	the 	dismissal 	of 	his 	amended
complaint.
FACTS
Respondents 	entered 	into 	a 	collective 	bargaining 	agreement
effective 	for 	the 	period 	of 	July 	1, 	1980 	through 	June 	30, 	1983,
which 	included 	a 	reopener 	clause 	on 	subjects 	of 	compensation,
class 	size, 	and 	school 	calendar. 	In 	addition 	to 	these
subjects, 	each 	party 	could 	elect 	to 	reopen 	on 	two 	additional
subjects 	of 	its 	choice. 	Pursuant 	to 	this 	provision, 	the
District 	selected 	"hours 	of 	employment" 	and 	II employee
benefits"; 	the 	Association 	selected 	"grievance 	procedure" 	and
"transfers." 	The District 	immediately 	presented 	proposals 	on
the 	five 	subjects, 	including 	the 	two 	it 	selected. 	The
Association 	did 	likewise. 	The District 	also 	submitted
proposals 	on 	the 	two 	subjects 	the Association 	had 	chosen. 	The
Association 	did 	not 	respond 	to 	the District's 	optional
proposals, 	hours 	and 	benefits.
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All 	proposals 	were 	made 	available 	to 	the 	public 	in
accordance 	with 	the 	District's 	public 	notice 	policy.2
Negotiations 	were 	later 	commenced 	in 	accord 	with 	the 	policy
timetable.
After 	negotiations 	began, 	Complainant 	learned 	for 	the 	first
time 	through 	a District 	publication 	summarizing 	the 	status 	of
negotiations 	that 	the Association 	had 	made 	counterproposals
during 	negotiations 	on 	hours 	of 	employment 	and 	employee
benefits, 	the 	two 	optional 	subjects 	chosen 	by 	the 	District.
The 	publication 	set 	forth 	the 	gist 	of 	the 	Association's
proposal 	on 	hours 	of 	employment, 	but 	not 	the Association's
proposal 	on 	benefits. 	Complainant 	asserts 	that 	at 	no 	time 	was
the 	public 	afforded 	an 	opportunity 	to 	comment 	on 	these
Association 	proposals.
On October 	19, 	1981, 	the 	parties 	executed 	the 	amendments 	to
the 	1980-83 	contract 	covering 	all 	of 	the 	subjects 	in 	question.
In 	dismissing 	the 	complaints, 	the 	regional 	director 	found:
(1) 	the 	Association's 	proposals 	on 	hours 	and 	benefits 	were
counterproposals 	and 	therefore 	were 	not 	subject 	to 	the 	public
notice 	requirements; 	(2) 	because 	the District 	controls 	the
2The 	record 	indicates 	that 	the 	District 1 s 	public 	notice
policy 	provides 	for 	a 	30-day 	period 	between 	the 	presentation 	of
initial 	proposals 	and 	final 	adoption 	by 	the 	District 	of 	its
proposals 	and 	the 	commencement 	of 	negotiations. 	During 	this
30-day 	period, 	there 	are 	generally 	at 	least 	three 	public
meetings 	of 	the 	board 	of 	education 	in 	the District. 	The 	public
may 	comment 	on 	initial 	proposals 	at 	any 	public 	meeting 	of 	the
board 	of 	education 	during 	the 	30-day 	notice 	period.
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subject 	matter 	of 	its 	public 	meeting 	agendas, 	an 	employee
organization 	is 	not 	a 	proper 	respondent 	to 	a 	complaint 	alleging
a 	violation 	of 	subsection 	3547(a);3 	(3) 	the Association's
proposals 	on 	hours 	and 	benefits 	were 	not 	"new 	subjects"
requiring 	prior 	public 	notice; 	and 	(4) 	an 	employee 	organization
is 	not 	a 	proper 	respondent 	where 	the 	complaint 	alleges 	failure
to 	publicly 	notice 	"new 	subjects."
DISCUSSION
Appellant 	argues 	that 	the Association's 	response 	to 	the
District's 	proposals 	on 	hours 	and 	benefits 	is 	subject 	to 	the
public 	notice 	requirement 	because 	the 	public must 	be 	informed
of 	the 	respective 	positions 	of 	the 	parties 	before 	it 	can
intelligently 	comment 	on 	them. 	We 	disagree.
Section 	3547(a) 	requires 	only 	that
All 	initial 	proposals 	of 	exclusive
representatives 	and 	of 	public 	school
employers, 	which 	relate 	to 	matters 	within
the 	scope 	of 	representation, 	shall 	be
presented 	at 	a 	public meeting 	of 	the 	public
school 	employer 	and 	thereafter 	shall 	be
public 	records.
It 	may 	be 	assumed 	that 	the 	Legislature 	was 	aware 	of 	the
ordinary 	and 	distinctive 	meaning 	of 	each 	of 	the 	terms 	"initial
proposals 11 	and 	11 counterproposals 11 	in 	the 	collective 	bargaining
3Los 	Angeles 	Community College 	District 	( 3/3/81) 	PERB
Decision No. 	158.
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scheme 	when 	it 	drafted 	this 	language.4 	Such 	an 	assumption 	is
supported 	by 	reference 	to 	a 	similar 	provision 	found 	in 	the
State 	Employees Employment 	Relations Act.5 	There, 	section
3523, 	unlike 	section 	3547, 	specifically 	addresses 	both
categories 	of 	proposals:
(a) 	All 	initial 	meet 	and 	confer 	proposals
of 	recognized 	employee 	organizations 	shall
be 	presented 	to 	the 	employer 	at 	a 	public
meeting, 	and 	such 	proposals 	thereafter 	shall
be 	a 	public 	record.
All 	initial 	meet 	and 	confer 	proposals or
counterproposals 	of 	the 	emaloyer 	shall 	be
presented 	to 	the 	recognize 	employee
organization 	at 	a 	public 	meeting, 	and 	such
proposals or 	counterpro~osals 	thereafter
shall 	be 	a 	public 	recor 	• 	(Emphasis 	added.)
It 	seems 	beyond 	dispute 	that 	the 	purpose 	of 	section 	3547 	is
to 	enable 	the 	public 	to 	give 	its 	views 	on 	subjects 	under
negotiation 	to 	its 	elected 	officials 	for 	the 	purpose 	of
influencing 	the 	latter's 	bargaining 	decisions 	(subsection
3547(e)). 	Subsection 	(c) 	requires 	the 	employer 	to 	defer
adopting 	it~ 	initial 	proposals 	until 	the 	public 	has 	had 	the
opportunity 	to 	comment 	on 	them.
By 	the 	District's 	noticing 	of 	and 	subsequent 	public 	meeting
on 	its 	own 	proposals 	and 	its 	counterproposals 	to 	the
4see 	also Webster's Third New 	International 	Dictionary
(1976 	Unabridged Edition): 	Counterproposal: 	.A 	countering
proposal; 	a 	rejoinder 	to 	something 	proposed. 	Initial: 	Marking
the 	commencement; 	beginning; 	first.
5codified 	at 	Government 	Code 	section 	3512 	et 	seq.
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Association's, 	both 	the 	letter 	and 	the 	spirit 	of 	section 	3547
were 	complied 	with. 	We 	find 	in 	section 	3547 	no 	requirement
that 	counterproposals 	made 	by 	the 	exclusive 	representative 	be
publicly 	noticed 	prior 	to 	the 	commencement 	of 	negotiations.
ORDER
Based 	on 	the 	foregoing 	decision 	and 	the 	entire 	record 	in
this 	case, 	the 	Board 	hereby 	ORDERS 	that 	Appellant's 	public
notice 	complaint 	be 	DISMISSED 	in 	its 	entirety.
Joh'i? Jaeger, 	Member- 	-
Member 	Moore, 	concurring 	and 	dissenting:
Because 	I 	feel 	the 	majority 	view 	subverts 	the 	intent 	of 	the
public 	notice 	provisions 	of 	EERA, 	and 	thus 	shortchanges 	the
public, 	I 	must 	respectfully 	dissent.
The 	facts 	are 	essentially 	as 	presented 	by 	the 	majority. 	At
the 	time 	prescribed 	by 	the 	contract, 	each 	party 	elected 	to
reopen 	negotiations 	regarding 	two 	subjects. 	The 	District
selected 	"hours 	of 	employment" 	and 	"employee 	benefits"; 	the
Association 	selected 	"grievance 	procedure" 	and 	"transfers."
The 	District 	immediately 	presented 	proposals 	respecting 	each 	of
the 	subjects 	upon 	which 	negotiations 	were 	to 	be 	reopened,
including 	those 	suggested 	by 	the 	Association. 	The 	Association
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presented 	proposals 	on 	each 	subject 	except 	hours 	of 	employment
and 	employee 	benefits 	(the 	two 	elective 	subjects 	chosen 	for
reopened 	negotiations 	by 	the District).
The 	Association 	proposals 	respecting 	these 	latter 	two
issues 	were 	never 	made 	available 	to 	the 	public, 	nor 	was 	there
an 	opportunity 	for 	any 	public 	comment 	on Association 	proposals
respecting 	these 	subjects 	prior 	to 	the 	commencement 	of
negotiations. 	Indeed, 	at 	no 	time 	was 	any 	member 	of 	the 	public
given 	an 	opportunity 	to 	comment 	upon 	the 	initial 	Association
proposals 	respecting 	hours 	of 	employment 	or 	employee 	benefits.
Initially 	it 	should 	be 	noted 	that 	the 	Board 	has 	held 	that
proposals 	for 	amendments 	to 	an 	existing 	agreement 	are 	"initial
proposals'' 	within 	the 	meaning 	of 	subsection 	354 7 (a) 	and 	thus
that 	such 	proposals 	must 	be 	presented 	at 	a 	public 	meeting.
(Los 	Angeles 	CCD, 	supra.) 	At 	the 	heart 	of 	the 	majority's
dismissal 	of 	the 	instant 	allegations 	is 	its 	determination 	that
the 	proposals 	by 	the 	Association 	regarding 	hours 	of 	employment
and 	employee 	benefits 	were 	merely 	counterproposals 	to 	those
presented 	by 	the 	District, 	and 	hence 	that 	they 	need 	not 	be
sunshined.
It 	is 	true 	that 	the 	District 	selected 	hours 	of 	employment
and 	employee 	benefits 	as 	subjects 	regarding 	which 	negotiations
would 	be 	reopened 	and 	submitted 	initial 	proposals 	of 	its 	own
regarding 	those 	subjects. 	Thus, 	as 	the 	majority 	notes, 	the
subsequent 	proposals 	regarding 	those 	subjects 	by 	the
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Association 	were 	"counterproposals", 	within 	the 	literal 	meaning
of 	that 	term. 	It 	is 	no 	less 	true, 	however, 	that 	the
Association's 	proposals 	regarding 	these 	subjects 	constituted
its 	initial 	proposals 	on 	these 	subjects.l 	As 	a 	hearing
officer 	stated, 	with 	Board 	approval, 	in Los 	Angeles 	CCD, 	supra:
It 	does 	not 	appear 	to 	be 	an 	unreasonable
burden 	to 	require 	a 	public 	school 	employer
and 	the 	exclusive 	representative 	to
"sunshine" 	their 	initial 	proposals 	on
possible 	amendments 	to 	their 	agreement. 	Nor
does 	it 	seem 	to 	be 	unreasonable 	to 	permit
the 	public 	to 	provide 	input 	on 	the 	issue
being 	negotiated. 	In 	either 	event, 	the
public's 	role 	is 	limited 	and 	the 	parties 	are
free 	to 	reject, 	modify 	or 	adopt 	the
suggestions 	of 	the 	public.
Taken 	to 	its 	logical 	conclusion, 	the 	holding 	of 	the
majority 	in 	the 	instant 	case 	could 	require 	the 	sunshining 	of
the 	"initial" 	proposals 	of 	only 	one 	of 	the 	parties 	to 	a
collective 	negotiating 	relationship, 	for, 	unless 	initial
proposals 	sprang 	into 	being 	simultaneously, 	the 	inital 	proposal
of 	one 	party would 	be 	a 	"counterproposal" 	to 	that 	of 	the 	other
lwhile 	I 	certainly 	agree 	with Mr. 	Webster's 	definition 	of
the 	terms 	"counterproposal" 	and 	"initial", 	I 	believe 	that 	the
majority's 	blithe 	citation 	of 	those 	definitions 	is 	an 	overly
simplistic 	analysis 	of 	the 	realities 	of 	collective 	bargaining.
As 	pointed 	out 	in 	the 	text, 	a 	party's 	initial 	("beginning,
first") 	proposal 	regarding 	a 	given 	issue 	may 	also 	be 	a
11
rejoinder 	to 	something 	proposed. 11 	I 	would 	not 	hold 	that 	each
ensuing 	exchange 	of 	proposals 	must 	be 	sunshined 	to 	satisfy 	the
requirements 	of 	section 	3547. 	That 	section 	requires 	simply
that 	a 	party's 	initial 	("marking 	the 	commencement; 	beginning;
first") 	proposal 	on 	a 	given 	subject, 	such 	as 	the 	Association's
so-called 	counterproposal 	regarding 	hours 	of 	employment 	and
employee 	benefits 	herein, 	be 	sunshined.
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party. 	Such 	a 	conclusion 	would 	be 	anomalous 	and 	would
frustrate 	the 	purposes 	of 	the 	Act. 	The 	proposals 	by 	the
Association 	relating 	to 	hours 	of 	employment 	and 	employee
benefits, 	although 	they 	followed 	the 	District's 	proposals
chronologically, 	were 	"initial 	proposals" 	within 	the 	meaning 	of
subsection 	3547(a) 	since 	they 	were 	the 	Association's 	first
proposals 	on 	those 	subjects.2
I 	also 	reject 	the 	holding 	of 	the 	regional 	director,
implicitly 	affirmed 	by 	the 	majority, 	that 	the 	purpose 	of
section 	3547 	is 	simply 	to 	ensure 	that 	the 	public 	is 	informed 	of
the 	subjects 	of 	negotiations 	to 	the 	extent 	that 	it 	implies 	that
it 	would 	be 	sufficient 	if 	the 	District 	merely 	listed 	the
headings 	or 	titles 	of 	the 	subjects 	upon 	which 	negotiations 	were
to 	be 	held 	and 	allowed 	the 	public 	to 	express 	its 	opinions
regarding 	those 	subjects 	without 	fleshing 	out 	what 	its 	position
was 	regarding 	them. 	Such 	a 	result 	would 	subvert 	the 	purpose 	of
the 	public 	notice 	sections 	of 	the 	statute. 	As 	noted 	by 	the
hearing 	officer 	in Los Angeles 	CCD, 	supra:
2The 	majority 	asserts 	that 	the 	Legislature's 	use 	of 	the
word 	"counterproposals" 	in SEERA 	section 	3523, 	and 	its 	omission
from 	section 	3547, 	indicates 	that 	the 	Legislature 	intended 	that
a 	distinction 	be 	made 	between 	initial 	proposals 	and
counterproposals. 	I 	see 	no ~onflict 	between 	section 	3523 	and
my 	interpretation 	of 	the 	language 	of 	section 	3547. 	I 	read
section 	3523 	to 	require 	that 	the 	State 	employer's 	initial
proposals 	and 	all 	counterproposals 	thereafter 	be 	sunshined. 	As
I 	have 	made 	clear 	above, 	I 	believe 	that 	EERA 	requires
sunshining 	only 	of 	so-called 	counterproposals 	which 	constitute
a 	party's 	initial 	proposal 	regarding 	a 	subject.
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The 	public's 	right 	to 	know 	and 	to 	have 	input
in 	the 	negotiation 	process 	is 	thus 	not
absolute. 	The EERA 	limits 	the 	public's 	role
to 	being 	informed 	of 	the 	initial 	proposals
presented 	and 	to 	the 	right 	to 	input 	on 	the
issues 	presented 	by 	the 	initial 	proposals.
Correspondingly, 	the 	public 	school 	employer
and 	the 	exclusive 	representative 	do 	not 	have
an 	absolute 	right 	to 	negotiate 	in
secret 	-- 	they 	must 	make 	their 	initial
proposals 	public 	and 	provide 	the 	public 	with
a 	reasonable 	opportunity 	to 	provide 	input.
It 	is 	thus 	clear 	that 	the 	proposals, 	including 	the
positions 	on 	subjects, 	must 	be 	sunshined, 	and 	not 	merely 	the
subjects 	themselves. 	Otherwise 	there 	can 	be 	no 	reasonable
opportunity 	to 	provide 	input. 	As 	the 	Board 	noted 	recently 	in
Palo Alto Unified 	School 	District 	(12/2/81) 	PERB 	Decision
No. 	184:
The 	Board 	recognizes 	that 	the 	initial
proposals 	presented 	to 	the 	public 	must 	be
sufficiently developed 	to 	permit 	the 	public
to 	comprehend 	them. 	An 	initial 	proposal
which 	is 	simply 	a 	statement 	of 	the 	subject
matter 	such 	as 	"wages" 	does 	not 	adequately
inform 	the 	public 	of 	the 	issues 	that 	will 	be
negotiated.
The Association's 	proposals 	regarding 	hours 	of 	employment
and 	employee 	benefits 	were 	initial 	proposals 	within 	the 	meaning
of 	subsection 	3547(a); 	thus 	EERA 	requires 	that 	they 	be
presented 	at 	a 	public 	meeting 	of 	the 	public 	school 	employer 	and
become 	public 	records. 	EERA 	further 	requires, 	pursuant 	to
subsection 	3547(b), 	that 	Respondents 	refrain 	from 	meeting 	and
negotiating 	until 	such 	time 	as 	the 	public 	has 	been 	presented
with 	both 	the 	District's 	and 	the 	Association's 	proposals
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respecting 	those 	subjects 	and 	given 	a 	reasonable 	opportunity 	to
become 	informed 	and 	comment 	upon 	them 	at 	a 	meeting 	of 	the
public 	school 	employer.
In 	sum, 	I 	would 	find 	that 	the 	District 	and Association
violated 	subsection 	3547(b) 	by meeting 	and 	negotiating
regarding 	the 	Association's 	proposals 	on 	hours 	of 	work 	and
employee 	benefits 	without 	first 	sunshining 	those 	proposals 	and
giving 	the 	public 	an 	opportunity 	to 	comment 	upon 	them 	at 	a
public meeting 	of 	the 	District.3 	This 	does 	not 	mean 	that 	the
parties 	had 	a 	duty 	to 	forego 	negotiations 	on 	any 	other 	topics
until 	the 	Association 	made 	initial 	proposals 	regarding 	hours 	of
work 	and 	employee 	benefits. 	Rather, 	the 	parties' 	obligation
3Because 	I 	would 	find 	that 	the 	Association's 	proposals
regarding 	hours 	of 	employment 	and 	employee 	benefits 	were
initial 	proposals 	and 	not 	"new 	subjects 	of 	meeting 	and
negotiating" 	within 	the 	meaning 	of 	subsection 	3547(d), 	I 	would
find 	that 	the 	provisons 	of 	that 	subsection 	were 	not 	violated 	by
the 	conduct 	of 	the 	District 	and 	Association 	in 	this 	case.
Further, 	I 	agree 	with 	the 	majority 	that 	the 	Association 	is 	not
a 	proper 	respondent 	to 	the 	subsection 	3547(a) 	allegation 	and
would 	dismiss 	that 	allegation 	as 	to 	the Association. 	See
Los 	Angeles 	CCD, 	supra. 	In 	the 	circumstances 	of 	this 	case, 	I
would 	not 	find 	that 	tne 	District 	violated 	subsection 	3547(a),
either. 	There 	is 	no 	showing 	that 	the District 	was 	presented
with 	particular 	proposals 	by 	the Association 	and 	requested 	to
sunshine 	them 	and 	then 	failed 	or 	refused 	to 	publish 	them 	or
present 	them. 	It 	is 	up 	to 	the 	Association 	to 	tell 	the 	District
ich 	Associat 	opo 	are 	to 	be 	sunshi 	• 	If
Association 	fails 	to 	include 	all 	appropriate 	proposals, 	it 	does
not 	fall 	to 	the District 	to 	sunshine 	proposals 	for 	the
Association 	without 	its 	request 	or 	consent. 	The 	District's
responsibility 	is 	simply 	to 	not 	meet 	and 	confer 	over 	those
proposals 	ich 	not 	been 	r 	sunshined.
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herein 	was 	to 	timely 	commence 	negotiations 	on 	those 	proposals
which 	had 	been 	fully 	developed 	and 	sunshined.
For 	the 	reasons 	set 	forth 	above, 	I 	would 	find 	that 	the
District 	and 	Association 	violated 	subsection 	3547(b) 	by
commencing 	negotiations 	regarding 	hours 	of 	work 	and 	employee
benefits 	prior 	to 	sunshining 	the 	Association's 	proposals
thereon.
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