Mt. San Antonio Community College District (PERB 0297E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Mt. 	SAN ANTONIO COLLEGE FACULTY
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
MT. 	SAN ANTONIO 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-350
PERB Decision No. 	297
March 24, 	1983
Appearances: 	A. 	Eugene Huguenin, Jr., Attorney for
Mt. 	San Antonio College Faculty Association, 	CTA/NEA;
John J. Wagner, Attorney 	(Wagner, 	Sisneros & Wagner) 	for
Mt. 	San Antonio Community College District.
Before Tovar, 	Jaeger and Burt, Members.
DECISION
JAEGER, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
Mt. 	San Antonio Community College District 	(District) 	to 	the
attached 	proposed 	decision. 	The 	administrative 	law 	judge 	(ALJ)
found that the District violated subsections 3543.5(a), 	(b),
and 	(c) 	of 	the Educational Employment Relations Act 	(Act) 	when
it made 	unilateral 	changes 	of matters 	within 	the 	scope 	of
representation 	without 	negotiating with 	the Mt. 	San Antonio
College Faculty Association, 	CTA/NEA 	(Association).
)
)
)
)
)
)
)
)
)
)
)
_______________ )

We have 	reviewed 	the ALJ's 	findings of 	fact 	and,
determining 	that 	they are 	free 	from prejudicial 	error, 	adopt
them as 	the 	findings of 	the Board 	itself. 	We 	affirm 	the ALJ's
conclusions 	of 	law 	insofar 	as 	they 	are 	consistent 	with 	the
discussion 	below.
The 	District 	has 	filed 	numerous 	exceptions 	to 	the 	proposed
decision. 	However, 	in reviewing 	those exceptions, 	we 	find 	that
most 	of 	them are 	identical 	to 	arguments 	raised 	before 	the ALJ,
and 	fully considered 	in his 	proposed 	decision. 	Since we 	are 	in
substantial 	agreement 	with 	the ALJ's 	analysis 	of 	those 	issues,
we 	see 	no need 	to expand 	upon 	them. 	We 	therefore 	limit our
discussion 	to 	those 	exceptions 	which 	raise 	issues 	not
adequately 	considered 	in 	the 	proposed 	decision.
DISCUSSION
A. 	Change 	in 	the 	Summer 	School Program
In 	response 	to 	the 	alleged 	fiscal 	emergency 	arising 	from
the passage of Proposition 13, 	the District determined, 	in June
of 	1978, 	that 	is was 	necessary to make substantial changes 	in
its summer 	school 	course offerings. 	Accordingly, 	it 	cancelled
selected 	summer 	school 	courses 	during 	the 	first 	summer 	session,
modified 	the 	criteria 	for 	determining 	which 	courses 	would 	be
cancelled due 	to 	low 	enrollment, 	and 	cancelled 	the 	entire
second 	summer 	session.
N	
2

In addition 	to 	these 	actions, 	the District 	unilaterally
altered 	its 	existing 	practice 	of 	making 	summer 	school 	teaching
assignments on a departmental 	"rotation" 	basis. 	The ALJ 	found
that, 	prior 	to 	the 	start 	of 	the 	summer 	session on June 	19,
1978, 	at least one 	division 	dean deviated 	from 	this 	established
policy when 	he 	deprived 	certain 	instructors 	previously 	assigned
to 	teach specified 	courses 	of 	their 	assignments 	and 	replaced
them with 	instructors 	who 	had 	lost 	their 	courses 	due 	to 	the
emergency 	cancellations.
Applying 	the 	test 	set 	forth 	in Anaheim Union High 	School
District 	(10/28/81) 	PERB Decision No. 	177, 	the ALJ found 	that
the District's decision 	to cancel 	summer 	school 	courses, 	modify
the 	low-enrollment 	course 	cancellation procedure, 	and 	cancel
the 	entire 	second 	summer 	session was 	within 	its 	managerial
prerogative.1 However, 	he 	found 	that 	the 	procedure 	for
making 	summer 	school 	teaching 	assignments 	was 	closely 	related
to wages 	and hours of employment, 	and 	therefore, within the
scope 	of 	representation.2
1While 	we 	agree 	with 	the ALJ 	that 	these 	matters 	are
outside 	the 	scope 	of 	representation, 	we 	note 	that 	this
does 	not 	relieve 	the 	District 	of 	the 	duty to negotiate 	in
good 	faith 	over 	the 	effects 	of 	these 	decisions 	on
bargaining 	unit members. 	Anaheim Union High 	School
District, 	supra; 	Newman-Crows Unified School District
(6/30/82) 	PERB Decision No. 	223; 	Newark Unified School
District 	(6/30/82) 	PERB Decision No. 	225.
2 The ALJ's determination 	that 	the 	procedure 	for
making 	teaching 	assignments 	is 	within 	the 	scope 	of
representation 	is 	consistent 	with 	the 	analysis 	set 	forth
W	
3

The District excepts 	to 	the ALJ's 	finding of 	a
violation on a number of grounds. 	First, 	it argues 	that
summer 	school 	employees 	are 	not 	in 	the 	bargaining 	unit.
Second, 	it 	argues 	that Education Code 	section 	72413 	grants
the District 	superintendent 	the 	unilateral 	right 	to make
assignments. 	Third, 	it argues that, 	in any event, 	the
District 	had 	a 	past 	practice 	of 	unilaterally 	assigning
teachers 	to 	teach 	summer 	school.
The 	unit 	description 	contained 	in 	the 	original
recognition 	agreement, 	of which we 	have 	taken
administrative 	notice, 	includes 	all 	"full-time 	and
part-time contract 	instructors" 	in 	the 	unit 	and 	does 	not
otherwise exclude 	summer 	school 	instructors. 	Therefore,
the 	District's 	contention 	that 	summer 	school 	employees 	are
not 	in 	the 	unit 	is 	without merit.
Next, 	the 	District 	argues 	that Education Code 	section
72413 gives 	the District 	power 	to make 	unilateral
assignments 	of 	instructors 	and 	therefore 	precludes
negotiations.3 That 	section provides, 	in 	relevant 	part:
in Anaheim Union High School District, 	supra and 	the
Board's 	previous 	decisions 	in Palos Verdes Peninsula
Unified 	School 	District/Pleasant 	Valley 	School 	District
(7/16/79) 	PERB Decision No. 	96 and Jefferson School
District 	(6/19/80) 	PERB Decision No. 	133 	(petition 	for
review filed 7/29/80, 	1 Civil 50223).
3 The 	District's argument 	is 	based 	on 	the
supersession language 	contained 	in 	section 	3540. 	That
A	
4

The 	superintendent 	of 	each 	community 	college
district 	shall, 	in addition 	to any other 	powers
and 	duties 	granted 	to or 	imposed 	upon 	him:
(c). 	Subject to the approval of 	the governing
board, 	assign all employees 	of 	the district
employed 	in 	positions 	requiring 	certification
qualifications, 	to 	the positions 	in which they
are 	to 	serve. 	Such 	power 	to 	assign 	includes 	the
power 	to 	transfer 	an 	instructor 	from one 	campus
or 	college 	to 	another 	campus 	or 	college 	at which
the 	instructor 	is 	certificated 	to 	serve 	within
the 	district 	when 	the 	superintendent 	concludes
that 	such 	a 	transfer 	is 	in 	the 	best 	interest 	of
the 	district. 	(Emphasis 	added.)
Education Code 	section 	72413(c) 	merely permits 	a governing
board 	to 	delegate 	authority 	to 	a 	superintendent 	to make
assignments. 	The Board has 	held, 	on numerous occasions, 	that
an Education Code 	provision 	will 	not 	limit 	the 	scope 	of
representation 	so 	long 	as 	it merely 	"authorizes 	a certain
policy 	but 	falls 	short 	of 	[creating 	an] 	absolute
section provides 	in 	relevant 	part:
Nothing 	contained 	herein 	shall 	be
deemed 	to 	supersede 	other 	provisions 	of
the 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.
5
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
5

obligat[ion]." 	Jefferson School District, 	supra.4 As 	the
Board 	stated 	in Holtville Unified 	School District 	(9/30/82)
PERB Decision No. 	250, at p. 11:
. 	. 	. 	[N]egotiations 	would 	be precluded only
where 	the 	statutory language 	clearly
demonstrates 	a legislative 	intent 	to
establish 	a 	specific 	and 	unalterable
provision 	and 	where 	the 	contract 	proposals
would tend 	to replace, modify, 	or 	annul such
provisions of 	the 	[Education] 	Code.
By 	its 	express 	terms, 	Education Code 	section 	72413 	grants
only 	conditional 	authority 	to 	the 	superintendent 	to make
assignments 	or 	transfer 	employees, 	and 	thus only outlines
powers 	which 	a District may 	confer 	upon 	a 	superintendent. 	Such
-
powers must 	be 	consistent 	with 	the 	District's other 	legal
obligations, 	including 	the requirement 	that 	it negotiate with
the Association 	in good 	faith. 	There 	is nothing, 	therefore, 	in
this 	provision which 	is 	inconsistent 	with 	a 	bargaining 	duty on
the 	part 	of 	the District. 	Accordingly, 	we 	reject 	the
District's 	argument 	that Education Code 	section 	72413 	relieves
it of 	the 	duty to 	bargain over 	teaching 	assignments.
The District 	argues 	that even 	if 	the 	procedures 	for
making 	summer 	school 	assignments 	are within scope, 	it 	had 	always
4 See 	also Healdsburg 	Union High 	School 	District 	(6/19/80)
PERB Decision No. 	132; 	Solano County Community College
District, 	(6/30/82) 	PERB Decision No. 	219; 	North Sacramento
School District 	(12/31/81) 	PERB Decision No. 	193; 	Calexico"
Unified School District 	(12/20/82) 	PERB Decision No. 	265.
66

unilaterally 	assigned 	employees 	to 	teach 	summer 	school. 	As
noted 	earlier, 	the 	established 	policy 	in 	the District 	had
been 	to make 	summer 	school 	assignments 	based on 	a
departmental 	rotation system. 	In 	the 	summer 	of 	1978, 	the
District modified 	that system. 	While 	an 	employer 	is 	not
deprived 	of 	the 	right 	to make 	an 	employment 	decision
consistent 	with 	an 	established 	procedure, 	it may not
unilaterally alter 	the 	procedure 	itself. 	The 	District's
argument is, 	therefore, without merit.
For 	the 	above 	reasons, 	we 	affirm 	the ALJ's determination
that 	the District violated 	subsection 	3543.5(c) 	by
unilaterally changing 	the 	procedure 	for 	making 	summer 	school
teaching 	assignments. 	Such 	conduct 	concurrently 	violates
subsections 	3543.5(a) 	and 	(b). 	San Francisco Community
College District 	(10/12/79) 	PERB Decision No. 	105.
B. 	Assignment 	of Administrators 	to Teach Courses
In 	the 	fall 	of 	1978, 	the District 	assigned 	"overload"
teaching 	assignments 	to 	administrators 	who were 	not members
of 	the 	bargaining 	unit. 	Although 	administrators 	had 	taught
overload 	courses 	in 	the 	past, 	they had 	done 	so only after
full-time 	faculty were 	given 	first 	opportunity 	to 	receive
such 	assignments. 	The 	parties 	had 	incorporated 	this past
practice 	in 	their 	collective 	agreement 	by 	including 	a
provision 	requiring 	the 	District 	to 	give 	faculty members
notice 	and 	equal 	opportunity 	to 	bid 	for 	overload
77

assignments.5 The 	ALJ 	found 	that 	the 	assignment 	of
administrators 	to 	teach 	overload 	courses 	had 	the 	effect 	of
transferring 	unit work out of 	the 	bargaining 	unit 	and, 	as 	such,
was 	a matter 	within 	the 	scope of 	representation. 	First
National Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107
LRRM 2705]. 	Since 	the 	assignments 	were 	in violation of 	the
District's 	established course overload 	policy, 	the ALJ 	found 	it
to 	be a violation 	of 	the 	duty 	to 	negotiate 	in 	good 	faith.
The 	District 	does 	not 	deny 	that 	the 	assignment 	of overload
teaching 	responsibilities 	to 	non-unit 	members 	transferred 	work
out 	of 	the 	bargaining 	unit 	in violation of 	the 	collective
agreement 	and 	was 	a 	modification 	of 	existing 	practice 	but,
rather, 	it 	argues 	that 	there 	is 	no 	legal authority to support
the 	proposition 	that 	the 	transfer 	of 	work 	out 	of 	the 	bargaining
unit 	is 	a matter 	within 	the 	scope of 	representation.
In Rialto Unified School District 	(4/30/82) 	PERB Decision
No. 	209 	and 	Solano County Community College 	District 	(6/30/82)
PERB Decision No. 	219, 	which were 	issued 	subsequent 	to 	the
5Article 	X, 	section 	12 	of 	the 	collective 	agreement
provides:
Any 	offering of 	the District which 	is
appropriate 	to 	an 	established 	department 	and
which 	constitutes 	an 	overload 	shall 	be made
known 	to 	all 	faculty within 	such 	department
as 	soon 	as 	possible 	before 	commencement 	of
the 	offering 	and 	all 	qualified 	faculty
within 	the 	department 	shall 	have 	an 	equal
opportunity 	for 	such 	overload 	assignment.
8

proposed 	decision 	in 	this 	case, 	the Board expressly held
that 	a transfer 	of 	unit work out of 	the 	bargaining 	unit 	is 	a
matter 	fully within 	the 	scope 	of 	representation. 	See 	also
Healdsburg Union High School District, 	supra. 	Therefore,
the District's 	contention 	that 	there 	was 	no legal 	authority
to 	support 	the ALJ's determination 	is without merit.
Accordingly, 	we 	find 	that, 	by 	assigning administrators
to teach 	"overload" 	courses, 	the District 	violated
subsection 3543.5(c), 	and concurrently, subsections
2543.5(a) 	and 	(b). 	San Francisco Community College
District, supra.
C. 	Assigning Librarians 	and Counselors 	to Teach Courses
In 	the fall 	of 1978, 	the District 	assigned 	counselors
and 	librarians 	to 	teach 	a variety of 	courses 	throughout 	the
college. 	The ALJ 	found 	that 	such 	assignments 	were 	a
violation of 	the 	duty to negotiate 	in good 	faith, 	since 	they
were 	a 	departure 	from 	established 	assignment 	policy 	and
concerned 	course 	subject 	matters 	unrelated 	to 	traditional
counselor 	and 	librarian 	job duties.
The 	District 	raises 	two 	exceptions 	with 	regard 	to 	the
assignment of librarians 	to teach courses: 	first, 	that
librarians 	and 	counselors 	were 	not 	included 	in 	the 	unit 	and,
therefore 	the District was 	privileged 	to 	assign 	them 	to
teach courses 	it wanted; 	and, 	second, 	that 	the assignment of
99

counselors 	and 	librarians 	to 	teach 	courses 	was 	consistent 	with
past 	practice.6
With 	regard 	to 	the 	District's 	first 	exception, 	the 	unit
description 	contained 	in 	the original 	recognition 	agreement, 	of
which we 	have 	taken 	administrative 	notice, 	includes 	librarians
and 	counselors 	in 	the 	unit. 	Therefore, 	the District's
contention 	is without merit.
The 	thrust of 	the District's 	second 	exception 	is 	that, 	so
long 	as 	librarians 	and 	counselors 	had 	taught 	some 	courses 	in 	the
past, 	a change 	in 	the 	type of class 	assigned 	is 	irrelevant.
The ALJ 	found 	that 	previously 	counselors 	had 	taught 	special
nine-week courses 	in career 	development, 	educational planning,
career 	guidance, 	human 	potential 	and 	peer 	counselor 	training 	as
part 	of 	their 	regular 	assignments. 	Librarians 	taught 	courses 	in
library 	science 	and 	term paper 	preparation. 	These 	courses met
on 	shorter 	schedules 	than 	regular 	academic courses.
Occasionally, 	counselors 	and 	librarians 	volunteered 	to 	teach
regular 	academic courses 	on 	an overload 	basis, 	but 	these 	had 	not
been 	part 	of 	their 	regular 	assignments. 	In 	the 	fall 	of 	1978,
the 	District 	assigned 	counselors 	and 	librarians 	to 	teach 	a
variety of 	regular 	courses 	in a number 	of 	academic 	subjects.
6 The 	District 	does 	not 	argue 	that 	the 	reassignment 	of
employees 	from one 	set 	of 	duties 	to 	another 	is 	outside 	of 	the
scope of 	representation. 	Section 	3543.2, 	which 	sets 	forth 	the
scope 	of 	representation, 	expressly provides 	that 	"reassignment"
is 	a negotiable 	item. 	The 	assignment of 	librarians 	and
counselors 	to 	teach 	courses 	is 	a 	"reassignment" 	within 	the
meaning of section 3543.2, 	and 	is, 	therefore, negotiable.
10

In Rio Hondo Community College District 	(12/31/82) 	PERB
Decision No. 	279, 	at pp. 	16-19, 	the Board considered a charge
alleging 	that 	a 	unilateral 	assignment 	of 	counselors 	to 	teach
career 	guidance 	courses 	constituted 	a 	violation 	of 	subsection
3543.5(c). 	The Board found 	that, 	while 	counselors 	had not
regularly taught 	courses 	in 	the 	past, 	an 	assignment 	to 	teach
career 	development 	courses 	was 	"reasonably 	comprehended" 	within
the 	scope of 	their 	existing 	job duties. 	It thus did not
constitute 	an 	unlawful 	deviation 	from existing 	policy.
The 	facts 	in 	this 	case 	are 	easily distinguishable 	from
those 	in Rio Hondo, 	supra. 	Here 	counselors 	and librarians were
required 	to 	teach 	courses 	unrelated 	to 	their 	primary 	job
functions. 	They were required 	to 	teach 	courses 	in 	the 	art,
foreign 	languages, 	health sciences, 	business and physical
education 	departments. 	At 	least 	one 	counselor 	had 	to 	petition
to obtain 	a 	teaching 	credential 	in 	preparation 	for 	his
assignment. 	It 	is 	thus clear 	that 	these 	courses were 	not
"closely enough 	related 	to 	their 	existing duties" 	so as 	to 	be
reasonably 	comprehended 	within 	the 	District's 	established 	work
assignment policy. 	Rio Hondo, 	supra at p. 	19; 	Grant Joint
Union High School District 	(2/26/82) 	PERB Decision No. 	196.
Accordingly, 	we 	find 	that 	the 	District 	violated 	subsection
3543.5 	(c) , 	and concurrently, subsections 3543.5 	(a) 	and 	(b),
when 	it 	unilaterally assigned 	counselors 	and 	librarians 	to
teach 	courses 	in violation of 	established 	policy.
11

REMEDY
PERB 	is 	granted 	broad 	authority 	under 	subsection 	3541.5(c)
to 	remedy 	unfair 	practices. 	We 	have 	found 	that 	the District
violated subsections 	3543.5(a), 	(b), 	and 	(c) 	of the Act when it
adopted 	a 	resolution 	freezing 	salaries 	and 	the 	District's
contribution 	to health 	benefits, 	as 	well 	as 	increasing class
size. 	The District also violated subsections 3543.5(a), 	(b),
and 	(c) 	of 	the Act 	by unilaterally modifying 	the 	procedure 	for
making 	summer 	school 	teaching 	assignments 	and 	by 	assigning
administrators, 	counselors 	and 	librarians 	to 	teach 	courses 	in
derogation 	of 	established 	policy.
Accordingly, 	we 	find 	it 	appropriate 	to order 	the 	District
to 	cease 	and 	desist 	from making 	unlawful 	unilateral 	changes,
and 	to order 	it 	to 	negotiate 	upon 	demand 	with 	the Association
concerning 	those matters 	affected 	by 	its 	unlawful 	conduct,
including 	the 	effects 	of 	those 	decisions 	we 	have 	found 	to 	be
within management's exclusive 	prerogative. 	Moreover, 	we order
the District, 	upon request 	by 	the Association, 	to restore 	the
status 	quo with 	regard 	to 	the 	level 	of 	employer 	contributions
to 	employee 	health 	and 	welfare 	benefit 	plans 	and 	the 	procedure
for 	making 	course 	overload 	and 	summer 	school 	teaching
assignments.
Finally, 	the 	District 	excepts 	to 	the 	proposed 	remedy 	in
light 	of 	the 	delay 	between 	the 	hearing 	and 	the 	issuance 	of 	the
ALJ's proposed 	decision. 	It 	cites 	no 	harm 	that 	has 	occurred 	as
12

a result 	of 	the delay, 	other 	than 	the 	fact 	that 	the 	parties
have 	entered 	into 	a 	successor 	agreement. 	It has 	generally 	been
held 	that delay 	in 	the 	issuance 	of 	a Board 	decision 	is 	no 	basis
upon which 	to 	deny 	employees 	a 	remedy 	for 	an 	employer's
unlawful conduct. 	NLRB v. 	J.H. 	Rutter-Rex Mfg. Co. 	(1969) 	396
U.S. 	258 	[72 LRRM 2881]; 	NLRB v. Electric Cleaner Co. 	(1942)
315 U.S. 	685 	[10 LRRM 501]. 	As 	the U.S 	Supreme Court 	stated 	in
NLRB v. 	J.H. 	Rutter-Rex Mfg. 	Co., 	supra at 	72 LRRM 2883,
"[w]ronged 	employees 	are 	at 	least 	as much 	harmed 	by 	the Board's
delay. 	. 	. 	as 	is the wrongdoing employer." 	Accordingly, we
reject 	the District's 	exception 	to 	the 	proposed 	remedy.
ORDER
Upon 	the 	entire 	record 	in 	this 	case, 	the 	Public Employment
Relations 	Board 	finds 	that 	the Mt. 	San Antonio Community
College District violated subsections 3543.5(a), 	(b), 	and 	(c)
of 	the Educational Employment 	Relations Act. 	As 	a result of
this 	conduct, 	the Board ORDERS 	that 	it 	shall:
1. 	CEASE AND 	DESIST FROM:
(a) 	Refusing 	to negotiate 	in 	good 	faith 	with 	the
exclusive 	representative, Mt. 	San Antonio Faculty Association,
CTA/NEA by: 	(1) 	unilaterally 	adopting 	a 	resolution 	freezing
salaries 	and District 	contributions 	to 	employees' 	health 	and
welfare 	benefits 	and 	increasing 	teaching 	hours 	and 	class 	size;
(2) 	unilaterally changing 	the 	preexisting procedures 	for
assigning 	unit members 	to 	summer 	school 	classes;
13

(3) 	unilaterally 	assigning 	classroom 	courses 	and 	preparation
time 	to counselors 	and librarians; 	and, 	(4) 	unilaterally
depriving 	unit 	members 	of 	their 	right 	to 	overload 	assignments
by 	assigning 	classroom 	courses 	and 	preparation 	time 	to 	non-unit
employees.
(b) 	Interfering 	with 	employee 	rights 	under 	the
Educational Employment Relations Act 	by: 	(1) 	unilaterally
adopting 	a 	resolution 	freezing 	salaries 	and 	District
contributions 	to 	employees' 	health 	and 	welfare 	benefits 	and
increasing 	teaching 	hours 	and 	class 	size; 	(2) 	unilaterally
changing 	the 	preexisting 	procedures 	for 	assigning 	unit 	members
to 	summer 	school 	classes; 	(3) 	unilaterally assigning 	classroom
courses 	and 	preparation 	time 	to 	counselors 	and 	librarians; 	and,
(4) 	unilaterally depriving 	unit members 	of 	their 	right 	to
overload 	assignments 	by 	assigning 	classroom 	courses 	and
preparation 	time 	to 	non-unit 	employees.
(c) 	Interfering 	with 	employee 	organization 	rights
under 	the 	Educational Employment 	Relations Act 	by: 	(1)
unilaterally 	adopting 	a 	resolution 	freezing 	salaries 	and
District 	contributions 	to 	employees' 	health 	and 	welfare
benefits 	and 	increasing 	teaching 	hours 	and 	class 	size; 	(2)
unilaterally 	changing 	the 	preexisting 	procedures 	for 	assigning
unit members 	to 	summer 	school classes; 	(3) 	unilaterally
assigning 	classroom 	courses 	and 	preparation 	time 	to 	counselors
and 	librarians; 	and, 	(4) 	unilaterally depriving 	unit members 	of
14

their 	right 	to 	overload 	assignments 	by 	assigning 	classroom
courses 	and 	preparation 	time 	to 	non-unit 	employees.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(a) 	Rescind Resolution 78-4.
(b) 	Upon request of 	the Association, 	restore 	the
status 	quo 	with 	regard 	to 	the 	level 	of 	employer 	contributions
to 	employee 	health 	and 	welfare 	benefit 	plans 	and 	the 	procedure
for 	making 	course 	overload 	and 	summer 	school 	teaching
assignments.
(c) 	Upon request of 	the Association, negotiate
concerning 	all 	matters 	which 	the 	District 	unilaterally 	changed,
including 	the 	effects 	of 	those 	decisions 	found 	to 	be within
management's 	exclusive 	prerogative.
(d) 	Within 	five 	(5) 	workdays 	after 	service of 	this
Decision, 	prepare 	and 	post 	copies 	of 	the 	Notice To Employees
attached 	as 	an 	appendix hereto, 	for 	at 	least 	thirty
(30) 	consecutive workdays 	at 	its 	headquarters 	offices 	and 	in
conspicuous 	places 	at 	the 	locations 	where 	notices 	to
certificated 	employees 	are 	customarily 	posted. 	It must 	not 	be
reduced 	in 	size 	and 	reasonable 	steps 	should 	be 	taken 	to 	see
that 	it 	is 	not defaced, 	altered or 	covered 	by any material.
15

(e) 	Within 	thirty 	(30) 	days from service 	of 	this
Decision, 	give 	written 	notification 	to 	the Los Angeles 	regional
director 	of 	the 	Public Employment 	Relations Board, of the
actions 	taken 	to comply with 	this Order. 	Continue 	to 	report 	in
writing 	to 	the 	regional 	director 	as 	directed. 	All 	reports 	to
the 	regional 	director 	shall 	be 	concurrently 	served 	on 	the
charging 	party.
Members 	Tovar 	and Burt 	joined 	in 	this 	Decision.
16

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	hearing 	in Unfair 	Practice Case No. 	LA-CE-350, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the District violated 	subsections 	3543.5(a), 	( b ) ,
and 	(c) 	of 	the Educational Employment 	Relations Act.
As 	a 	result 	of 	this 	conduct, 	we 	will:
1. 	CEASE 	AND DESIST 	FROM:
(a) 	Refusing 	to 	negotiate 	in 	good 	faith 	with 	the
exclusive 	representative, 	M t . 	San Antonio Faculty Association,
CTA/NEA 	by: 	(1) 	unilaterally adopting 	a 	resolution 	freezing
salaries 	and 	District 	contributions 	to 	employees' 	health 	and
welfare 	benefits 	and 	increasing 	teaching 	hours 	and 	class 	size,
(2) 	unilaterally 	changing 	the 	preexisting 	procedures 	for
assigning 	unit members 	to 	summer 	school 	classes, 	(3)
unilaterally 	assigning 	classroom 	courses 	and 	preparation 	time
to counselors 	and 	librarians; 	and, 	(4) 	unilaterally assigning
classroom 	courses 	and 	preparation 	time 	to 	administrators.
(b) 	Interfering with 	employee 	rights 	under 	the
Educational Employment 	Relations Act 	by: 	(1) 	unilaterally
adopting 	a 	resolution 	freezing 	salaries 	and 	District
contributions 	to 	employees' 	health 	and 	welfare 	benefits 	and
increasing 	teaching 	hours 	and 	class 	size, 	(2) 	unilaterally
changing 	the 	preexisting 	procedures 	for 	assigning 	unit 	members
to 	summer 	school 	classes, 	(3) 	unilaterally assigning 	classroom
courses 	and 	preparation 	time 	to 	counselors 	and 	librarians; 	and,
(4) 	unilaterally 	assigning 	classroom 	courses 	and 	preparation
time 	to 	administrators.
(c) 	Interfering 	with 	employee 	organization 	rights
under 	the Educational Employment 	Relations Act 	by: 	(1)
unilaterally 	adopting 	a 	resolution 	freezing 	salaries 	and
District 	contributions 	to 	employees' 	health 	and welfare
benefits 	and 	increasing 	teaching 	hours 	and 	class 	size, 	(2)
unilaterally 	changing 	the 	preexisting 	procedures 	for 	assigning
unit members 	to 	summer 	school 	classes, 	(3) 	unilaterally
assigning 	classroom 	courses 	and 	preparation 	time 	to 	counselors
and 	librarians; 	and, 	(4) 	unilaterally assigning 	classroom
courses 	and 	preparation 	time 	to 	administrators.
17

2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(a) 	Rescind Resolution 78-4.
(b) 	Upon 	request 	of 	the Association, 	restore 	the
status 	quo 	with 	regard 	to 	the 	level 	of 	employer 	contributions
to 	employee 	health 	and 	welfare 	benefit 	plans 	and 	the 	procedure
for 	making 	course 	overload 	and 	summer 	school 	teaching
assignments.
(c) 	Upon request 	of 	the Association, 	negotiate
concerning 	all 	matters 	which 	the 	District 	unilaterally 	changed,
including 	the 	effects 	of 	those 	decisions 	found 	to 	be 	within
management's 	exclusive 	prerogative.
DATED: 	MT. 	SAN ANTONIO 	COLLEGE 	DISTRICT
BY Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND
MUST 	NOT 	BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
18

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MT. 	SAN ANTONIO COLLEGE FACULTY
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
MT. 	SAN ANTONIO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-350
PROPOSED 	DECISION
(2/5/82)
Appearances; 	A. 	Eugene Huguenin, Esq., 	for Mt. 	San Antonio
College Faculty Association, 	CTA/NEA; 	Wagner 	and Wagner 	by
John J. Wagner, 	Esq., 	for Mt. 	San Antonio Community College
District.
Before Stephen H. 	Naiman, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
The Mt. 	San Antonio College Faculty Association CTA/NEA
(hereafter 	Charging 	Party or 	Association) 	filed 	the 	instant
unfair 	practice 	charge 	against Mt. 	San Antonio Community
College District 	(hereafter 	Respondent or 	District) 	alleging
that 	the 	District 	had 	failed 	to meet 	and 	negotiate 	with 	the
Association 	before 	taking 	certain 	unilateral 	action 	relating 	to
the 	terms 	and 	conditions 	of 	employment of 	employees 	represented
by 	the Association. 	Pursuant 	to 	the 	Public Employment
Relations Board 	(hereafter 	PERB) 	procedures, 	an 	informal
conference was 	held, 	at 	which 	time Respondent moved 	to dismiss
)
)
)
)
)
)
)
)
)
)
)
________________ )

the 	charge 	in 	that 	it merely sought 	to enforce 	certain contract
rights 	of 	the Association. 	No 	ruling was made on 	this motion.
Commencing on September 	22, 	1978, 	formal hearings were
begun 	in 	this matter. 	After 	eight days 	of 	hearing 	the matter
was 	concluded on December 	18, 	1978, 	and 	after 	the 	filing of
responsive 	briefs was 	submitted March 	20, 	1979.
The 	charge 	was 	amended 	at 	formal 	hearing, 	party 	to clarify
allegations 	relating 	to 	certain 	alleged 	unilateral 	action
occurring on or 	about June 	7, 	1978 	and 	relating 	to 	the
assignment 	of 	summer 	school 	employees 	to 	teaching 	assignments.
Further, 	at 	the opening of 	the 	formal hearing 	in this matter,
respondent 	again moved 	to dismiss 	the 	charge 	based 	upon 	the
provisions 	of 	the 	Educational Employment Relations Act,
(hereafter 	EERA or 	Act) 	section 	3541.5(b),l which prohibits
PERB 	from 	issuing 	complaints 	on a 	charge 	based 	solely on 	a
violation of 	an 	agreement 	between 	the 	parties 	unless 	the
allegations 	would 	also 	constitute 	an 	unfair 	practice 	charge.
The motion 	to dismiss 	the 	charge was 	taken under 	submission and
is 	disposed 	of 	as 	part of 	this proposed 	decision.
II. 	FINDINGS OF FACT
A. 	1977-1979 Agreement
The Mt. 	San Antonio Faculty Association 	is 	the 	exclusive
representative of 	certificated 	employees 	of 	the District. 	On
1The 	Educational Employment Relations Act 	is 	found 	at
Government Code 	section 	3540 	et 	seq.
22

or 	about March 	15, 	1978,2 the District and Association
entered 	into a 	collective 	bargaining 	agreement 	which 	covered
terms 	and conditions of 	employment 	through June 	30, 	1979. 	The
recognition 	clause 	of 	that 	agreement 	found 	in Article 	III
expressly provides 	that 	full-time 	and 	part-time 	contract 	and
regular 	instructors, 	day 	and 	continuing 	education hourly
instructors, 	counselors and librarians are, 	inter alia,
included 	in 	the 	unit. 	The 	recognition clause 	further 	provides
that 	expressly 	excluded 	from 	the 	unit 	are 	substitute, 	hourly,
intermittent, casual, 	summer 	school 	instructors not already
members 	of 	the 	bargaining 	unit, 	and 	other 	certificated
employees 	who 	are 	employed 	for 	less 	than 	a 	full 	semester, 	plus
confidential 	and designated managerial 	employees. 	Further, 	the
recognition clause 	acknowledges 	that, 	" . . . 	[the] 	parties
agree 	that 	this 	represents 	the 	appropriate 	unit 	. . . "
Appendices A and B 	of 	the 	agreement 	set 	forth 	salary
schedules 	for 	unit members 	on 	contract 	for 	1977-78 	and 	1978-79
respectively. 	The 	salary 	scale 	for 	the 	1978-79 	academic 	year,
which would 	become effective July 1, 	1978, 	was 	approximately
5 	percent 	higher 	than 	that 	for 	1977-78. 	Appendix D set 	forth
salary rates 	for 	hourly 	unit members 	for 	1977-78 	and 	1978-79.
Appendix E 	established 	rates 	of 	additional 	remuneration 	for
special 	assignments. 	Appendix G of 	the 	agreement 	entitled
2unless 	otherwise 	indicated 	all 	dates 	refer 	to 	1978.
w3

"Summer 	Session Hourly Rate 	for 	Unit Members" 	sets out 	the
rates 	of 	pay 	for 	summer 	session work 	for 	the 	summers 	of 	1978
and 1979, 	respectively. 	Appendix G provides 	for 	an hourly rate
for 	summer 	session 	teaching which 	is 	based 	upon one percent 	of
the 	"base 	salary 	as 	determined 	by placement on 	the 	relevant
salary schedule 	for 	unit members," 	and 	further 	provides 	a
$15.77 	per 	hour 	minimum 	and 	$21.40 	per 	hour 	maximum. 	This
schedule 	is 	for 	the 	10-month 	regular 	contract 	certificated
personnel. 	Further, 	the 	salaries 	are 	set 	forth 	for 	hourly unit
members 	and 	for 	adult 	educational 	instructors.
Article X of 	the 	contract 	entitled 	"Work Hours" 	provides
that 	a unit member 	who 	is 	a 	full-time 	instructor 	shall 	be 	on
campus 	for 	30 	hours 	per 	week. 	"These 	hours 	are exclusive 	of
overload 	or 	extra-pay 	assignments."
Paragraph 	7 	of Article X provides 	that counselors 	shall 	be
on 	campus 	for 	32 	assigned 	hours 	per 	week 	exclusive 	of 	overload
or 	extra-pay 	assignments. 	Paragraph 	8 provides 	that 	full-time
librarians 	shall 	be on campus 	for 	35 	assigned 	hours per 	week.
Paragraph 	12 	of Article X provides 	that,
Any 	offering 	of 	the 	District 	which 	is
appropriate 	to 	an 	established 	department
which 	constitutes 	an 	overload 	should 	be made
known 	to 	all 	faculty within 	such 	department
as 	soon 	as 	possible 	before 	commencement of
the 	offering 	and 	all 	qualified 	faculty
within 	the 	department 	shall 	have 	an equal
opportunity 	for 	such 	overload 	assignment.
During negotiations, 	the parties were 	aware 	that 	the 	voters
of 	California would 	vote 	soon 	after 	ratification of 	the
4

contract 	on 	whether 	they 	wished 	to 	have 	property 	taxes
reduced. 	Thus, 	four 	express provisions of 	the contract were
subject 	to reopeners 	should 	the 	voters 	of California 	determine
that 	property 	taxes 	should 	be 	reduced 	pursuant 	to 	ballot
Proposition 	13. 	The 	parties 	determined 	that 	the 	areas 	in which
negotiations 	would 	be 	reopened were 	employee 	benefits, 	work
hours, 	class 	size and 	salaries. 	The 	following language was
utilized 	in 	each 	of 	the 	affected 	areas 	for 	which 	the 	parties
had 	agreed 	to 	reopen 	negotiations 	were 	Proposition 	13 	to pass:
ARTICLE 	IX
EMPLOYEE 	BENEFITS
2. 	For 	1978-79, 	the District shall pay all
costs 	for 	benefits 	as 	nearly 	identical
to 1977-78 	benefits 	as possible. 	This
provision 	for 	1978-79 	is 	on 	the
condition 	that Proposition 	13 or 	other
tax 	legislation does 	not pass 	that
would 	result 	in 	a 	loss 	of 	local 	tax
income 	for 	1978-79. 	Should 	such
constitutional 	amendment 	or 	legislation
pass, 	the employee benefits 	for 	1978-79
would 	be 	reopened 	and 	negotiated 	after
the effects of 	the laws 	are 	known. 	A
different 	carrier 	may 	be 	selected 	by
mutual 	consent 	of 	both parties 	to 	this
Agreement.
ARTICLE
WORK 	HOURS
13. 	For 	1978-79, 	should Proposition 13 or
other 	tax 	legislation pass 	that 	would
result 	in a loss 	of 	local 	tax 	income
• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	•
5

for 	1978-79, 	the work hours would 	be
renegotiated 	for 	1978-79 	after 	the
effects of 	the laws 	are 	known.
ARTICLE 	XI
CLASS 	SIZE
5. 	For 	1978-79, 	should Proposition 13 or
other 	tax 	legislation pass 	that 	would
result 	in a loss 	of 	local 	tax 	income
for 	1978-79, 	the class size would be
renegotiated 	for 	1978-79 	after 	the
effects of 	the 	laws 	are 	known.
ARTICLE 	XIII
SALARIES
2. 	For 	1978-79, 	should Proposition 13 or
other 	tax 	legislation pass 	that 	would
result 	in a loss 	of 	local 	tax 	income
for 	1978-79, 	the 	salaries would be
renegotiated 	for 	1978-79 	after 	the
affect 	[sic] 	of 	the laws are known.
In addition 	to 	the 	specific 	language 	which provided
reopeners 	in 	four 	articles 	of 	the 	contract 	should
Proposition 13 pass, 	the parties went on to agree as 	follows:
ARTICLE 	XVIII
EFFECT 	OF AGREEMENT
During 	the 	term of 	this Agreement, 	the
Association 	expressly 	waives 	and
relinquishes 	the 	right 	to meet 	and 	negotiate
and 	agrees 	that 	the District 	shall 	not 	be
obligated 	to meet 	and 	negotiate 	with 	respect
to 	any 	subject except 	as provided 	in
reopener 	clauses 	in 	this Agreement 	and
provided 	that 	the Board 	shall 	not 	reduce 	or
6
• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	•
• 	• 	•
6

eliminate 	any 	benefits 	or 	professional
advantage 	within 	the 	definition of 	3543.23
of 	the Government Code 	as 	enjoyed 	by
teachers 	as 	of 	the 	effective date 	of 	this
Agreement 	without 	first 	negotiating 	in 	good
faith with 	the Association with 	respect 	to
such 	reduction or 	elimination.
This 	shall 	not prevent 	the parties 	from
beginning 	negotiations 	in 	a 	timely 	fashion
for 	a 	successor 	agreement.
On or about May 22, 	1978, 	John D. 	Randall,
Superintendent/President of Mt. 	San Antonio College, 	issued 	to
all 	staff 	a memorandum discussing 	the 	District's 	budgetary
concerns. 	The 	focus of 	the memorandum was 	on 	the possible
passage 	of Proposition 	13. 	The memorandum discussed
alternative 	budgets, 	one 	to be 	implemented 	if 	Proposition 13
passed 	and 	the 	other 	to 	be 	adopted 	if Proposition 	13 were
defeated 	by 	the 	voters. 	In addition, 	the memorandum informed
the 	staff 	that 	were 	Proposition 	13 	to pass, 	certain 	substantial
cuts 	in 	expenditures 	of 	the College District would 	have 	to be
made. 	The memorandum alluded 	to 	areas 	where 	savings 	could 	be
achieved 	by 	reducing 	certificated 	hourly 	budget 	costs 	and 	by
using administrators, 	counselors, 	librarians, and regular
instructors 	to assume 	additional 	teaching 	responsibilities.
Further, 	the memorandum 	suggested 	indicated 	reductions 	in 	extra
pay 	assignments.
section 	3543.2 	sets 	forth 	the 	definition 	of 	the 	scope 	of
representation. 	[This 	footnote 	is 	not contained 	in 	the
original 	text 	of 	the 	contract.]
3
7
7

B. 	Proposition 	13 	Passes
On June 6, 	1978, 	the voters of California approved
Proposition 13.4 	On June 	7, 	1978, 	the Board of 	Trustees 	of
Mt. 	San Antonio College met. 	The 	agenda of 	that board meeting
contains 	substantial 	documentation 	from 	the 	administrative
staff 	and a 	1978-79 	tentative 	budget 	for 	study. 	At 	the 	board
meeting, 	the 	board 	considered 	recommendations 	of 	staff made 	in
anticipation of 	the 	passage 	of Proposition 	13, 	which would 	have
reduced 	certificated 	hourly 	employment 	by 	the 	assignment 	of
administrators, 	counselors 	and 	librarians 	to 	these 	teaching
functions. 	The 	board 	proposed 	the 	elimination 	of 	community
service programs 	except 	those which were 	self-supporting, 	and
the 	careful 	review of 	summer 	school 	offerings 	for 	the purpose
of 	reducing 	expenditures 	in 	that 	area. 	At 	the 	same meeting,
the 	board 	approved 	the 	hiring 	of 	certain 	employees 	within 	the
unit 	for 	work 	as 	summer 	school 	teachers, 	subject 	to 	the
offering of 	classes. 	These persons 	were 	to be 	hired on an
hourly 	basis pursuant 	to 	the 	contract 	agreement. 	At 	the
meeting of June 	7, 	1978, 	the board 	further 	directed 	its
administrative 	staff 	to 	take 	action 	to 	reduce expenses 	in 	the
4Proposition 	13 	placed 	significant 	limitations 	on 	the
taxing 	power 	of 	local 	and 	state 	governments 	and 	sharply 	reduced
the 	amount 	of 	revenue 	that 	local 	entities 	could 	raise 	by 	taxing
property. 	The 	constitutionality 	of 	this measure was 	upheld 	in
Amador 	Valley Joint Union High 	School District 	v. 	State 	Board
of Equalization 	(1978) 	22 Cal.3d 	208. 	See also Sonoma County
Organization of 	Public Employees v. 	County of 	Sonoma 	(1979) 	23
Cal.3d 	296.
8

face 	of 	the 	passage 	of Proposition 	13 	and 	to enter 	into
negotiations 	concerning 	matters 	which 	were 	subject 	to
negotiation 	under 	the contract 	in 	the 	face of 	the passage of
Proposition 13.
C. 	Summer 	School Cancellations
On June 	16, 	the 	Friday 	before 	summer 	school 	instruction was
scheduled 	to 	commence, 	Joseph 	Zagorski, 	Vice President 	for
Instructional Services at 	the College, 	made decisions 	to cancel
a 	number 	of 	scheduled 	summer 	school 	classes. 	The 	cancellation
decisions 	regarding 	individual 	courses 	were 	made 	in
consultation with 	the College's Division Chairpersons, 	on 	the
basis 	of 	the 	following criteria: 	courses 	which were 	not part
of 	a major, 	which did 	not lead 	to 	immediate 	employment, 	which
were 	not 	offered 	in 	large 	quantities 	during 	the 	regular 	Fall
and 	Spring 	semesters, 	which were 	not 	transfer 	courses 	to a
four-year 	institution, 	and which were multiple 	sections 	of 	the
same 	class were 	given low priority. 	Low enrollment was 	also 	a
criterion for 	class cancellation: 	generally, 	low priority
classes 	which 	did 	not 	have 	30 	students 	enrolled 	at 	the 	time 	of
the June 	16 	consideration were 	cancelled. 	Instructors 	whose
classes 	were 	cancelled 	were 	notified 	by 	their 	Division or
Department Chairs 	by 	telephone 	or 	telegram over 	the 	weekend, 	on
June 	17 or 	18, 	so 	that 	they would not meet 	their 	first classes
on Monday, June 19.
9

These 	criteria 	and 	procedures 	for 	summer 	school 	course
cancellations 	represented 	a 	change 	from 	the 	District's 	past
practice 	in 	a 	number 	of 	respects:
(1) 	In previous 	years 	the 	class 	low 	enrollment 	limit 	was
20 	students: 	scheduled 	classes 	which 	had 	20 	students 	enrolled
in 	advance 	of 	the 	commencement 	of 	instruction were 	allowed 	to
meet 	and 	were 	offered. 	The 	20 	student 	enrollment 	limit 	was
referred 	to 	in 	both 	the 	District's 	faculty 	Bulletin 	for 	Summer
School 	Instructors 	and 	in 	its 	Evening 	Division 	Faculty Handbook
which 	sets 	forth 	the 	regulations 	governing 	instruction 	in 	the
District's Continuing 	Education 	Program. 	The 	regulations 	in
the 	Evening 	Division 	Handbook 	apply 	to 	summer 	school 	employees
as 	well, 	and 	were 	incorporated 	by 	reference 	in 	the 	teaching
agreements 	issued 	individual 	instructors 	following 	the 	Board's
approval 	on 	June 	7 	of 	the 	faculty 	summer 	school 	assignments.
(2) 	Previous 	District 	policy 	had 	been 	to 	allow 	some 	summer
school 	classes 	to meet 	with 	less 	than 	20 	students. 	These
included 	pilot 	courses, 	advanced 	courses 	with 	heavy
prerequisites, courses 	meeting 	a 	special 	need 	such 	as 	a
graduation 	certificate 	or 	licensing 	required, 	and 	"assured
courses": 	those 	whose 	initial 	enrollment 	had 	been 	substantially
above 	the 	course 	minimum 	for 	the 	previous 	two 	summer 	sessions.
(3) 	In previous years, 	summer 	school 	courses 	which had
close 	to 	the 	enrollment 	limit 	prior 	to 	the 	first 	day 	of
scheduled instruction were 	allowed 	to 	meet 	on 	the 	first 	day 	of
10

classes 	to 	see 	if 	additional 	students 	would 	enroll 	at 	that
time. 	Instructors 	would 	then 	be paid 	for 	the 	first 	day of
classes, 	even 	if 	the class 	cancelled. 	The 	1978 	summer 	school
enrollment closed on Tuesday, 	June 	20. 	On June 	16, 	however,
the District 	cancelled a 	number 	of 	classes 	in which 	the
enrollment on was 	close 	to 	the 	new 	limit of 	30 	students,
without 	allowing 	them to meet on 	the 	first 	day of 	classes 	to
pick 	up additional 	students. 	Since 	they were 	not 	allowed 	to
hold 	the 	first class meeting, 	the 	instructors 	in 	the courses
close 	to 	the 	enrollment 	limit 	were 	not 	paid 	for 	the 	first 	class
as 	they had 	been 	in 	the past.
(4) 	The 	entire 	second 	summer 	session was 	cancelled,
without 	obtaining 	any 	enrollment 	figures 	for 	the 	classes
scheduled.
Following 	the 	initial 	decision 	to 	cancel 	summer 	school
classes, 	a 	number 	of 	division deans made changes 	in 	the
previously 	scheduled 	assignments 	of 	faculty 	to 	those 	classes
which 	had 	no
---t 	been 	cancelled. 	Thus 	several 	faculty members
whose 	assigned 	classes 	were 	not 	cancelled 	were 	deprived 	of
their 	assigned 	classes 	and 	the 	classes 	were 	instead 	given 	to
other 	faculty members 	whose 	scheduled 	courses 	had 	been
cancelled. 	Those 	instructor 	changes, 	which occurred 	in 	the
Division of 	Social 	Sciences, 	were made 	in an attempt 	to
equalize 	the 	remaining 	summer 	school 	assignments 	among 	faculty
originally 	scheduled 	to 	teach. 	However, 	they 	represented 	a
11

change 	in 	the District's 	prior 	procedures 	for 	assigning 	faculty
to summer 	school courses.
In previous years, 	the 	individual department chairs, 	in
consultation 	with 	their 	Division Deans, 	would 	determine 	what
summer 	school 	courses 	should 	be 	offered. 	The 	Department 	Chairs
would 	then 	consult 	the 	faculty members 	in 	their 	departments 	to
determine 	which 	individuals 	wished 	to 	teach 	summer 	school.
Assignments 	of 	individuals 	to 	summer 	school 	classes 	would 	then
be 	made 	at 	a departmental meeting 	in 	accordance 	with 	previously
established 	departmental 	policy, 	which 	varied 	with 	the
individual 	departments. 	Most 	departmental policies 	involved
some 	variation 	of 	a 	rotation system, 	according 	to which 	faculty
wishing 	to 	teach 	summer 	school 	took 	turns 	being 	assigned 	to
those 	courses 	most 	likely 	to 	attract 	enough 	students. 	Other
departments 	combined 	seniority 	considerations 	with 	rotation
amongst 	faculty.
The 	summer 	school 	assignments 	were 	then 	communicated 	to 	the
Vice 	President 	for 	Instruction. 	The 	scheduled 	classes 	were
printed 	in 	the 	summer 	session 	schedule, 	which was 	distributed
to 	the 	community 	in April. 	In 	the 	summer 	school Bulletin 	the
College explicitly reserved 	the 	right 	to cancel, 	reschedule,
equalize 	or 	combine 	classes 	and 	to 	change 	instructors 	where
such 	action 	is 	deemed 	necessary. 	Such 	changes 	were 	to be
announced 	during 	registration. 	The 	District's 	regular 	class
schedule, 	which 	listed courses 	to 	be offered during 	the Fall
12

and 	Spring 	Semesters 	of 	the 	regular 	academic 	year 	contained
similar 	language.
The Administration would 	then 	issue 	individual 	teaching
agreements 	for 	the 	specific classes 	scheduled 	to 	be 	taught. 	It
would 	also distribute 	to 	the 	faculty copies 	of 	the 	Summer
School 	Faculty 	Bulletin, 	outlining 	procedures 	and 	regulations.
The 	Board 	of 	Trustees 	would 	then 	ratify 	the 	teaching 	agreements
and 	authorize 	the 	employment of 	summer 	school 	instructors. 	The
instructors 	would 	sign 	the 	teaching 	agreements 	and 	return 	them
to 	the Continuing Education Office. 	Summer 	1978 was 	the 	first
occasion 	on which 	the 	condition 	"subject 	to 	the 	offering 	of
classes" 	was 	appended 	to 	the Board's 	ratification of 	the 	summer
school 	teaching 	agreements.
As 	a 	result 	of 	the District's 	reassignment 	of 	faculty 	to
those 	summer 	school 	classes 	remaining 	after 	the June 	16
cancellations, 	the departmental rotation policies 	for
assignment 	of 	faculty 	to 	summer 	school 	classes 	were 	not 	adhered
to in 	individual cases.
The Association President, 	Dr. 	Allen, 	first learned of 	the
summer 	school 	cancellations 	in 	telephone 	calls 	from 	unit
members on Saturday, 	June 	17. 	Dr. 	Allen 	immediately contacted
Dr. 	Randell and Dr. 	Zagorski, 	and requested 	to bargain
concerning 	the 	cancellations. 	The 	District 	refused 	to
bargain. 	The Association's 	request 	to negotiate 	the 	summer
'
school 	cancellations 	was 	repeated 	in writing 	in 	a 	letter 	dated
13

June 	18, 	1978 	from Dr. 	Allen 	to 	the President of 	the District's
Board of 	Trustees, 	and was 	subsequently 	repeated 	at meetings of
the parties on June 	28, 	1978 and August 16, 	1978. 	The District
never 	agreed 	to 	negotiate 	with 	the Association 	concerning 	the
cancellations, 	and 	such negotiations 	never 	occurred.
The 	District's 	actions 	with 	respect 	to 	summer 	school
courses 	were 	taken 	because 	Proposition 	13's 	passage 	had 	led 	to
a 	different 	budget 	situation 	than 	had 	existed 	previously.
Whereas 	in 	previous 	years 	the 	District 	had 	received 	State 	funds
for 	that 	summer 	school 	based 	on Average 	Daily Attendance 	in
such 	a way 	income 	increased 	with 	the 	number 	of 	students
enrolled, 	these 	funds 	had 	been 	replaced 	by a comprehensive
block 	grant 	to 	the District 	for 	the 	entire 	fiscal year. 	Out of
its 	block 	grant 	funds 	the 	District 	had 	established 	a 	summer
school 	budget of 	$200,000. 	In 	reconsidering which 	summer
school courses 	to offer, 	it 	therefore wished 	to use 	this budget
allocation 	in 	the 	most 	efficient 	and 	beneficial 	manner 	possible.
D. 	The District's June 	29 	Emergency Resolution, 	78-4
On June 	16, 	1978, 	the 	same day on which 	it acted 	to cancel
summer 	session classes, 	the District's Board Management Team
wrote Dr. 	Allen 	requesting 	a meeting June 	20 	for 	the purpose 	of
renegotiating Articles 	IX - 	XIII 	and Appendices B, 	D, 	E, 	F and
G of 	the 	parties' 	collective 	bargaining 	agreement. 	The letter
declared 	that 	an 	economic 	emergency 	existed 	and 	that 	the
District 	proposed 	contract 	changes 	as 	a matter 	of 	financial
14

necessity. 	The District 	stated 	its 	intention 	to 	take 	necessary
action on 	the 	cited 	items prior 	to July 	1, 	in order 	to meet 	its
legal 	time 	constraints. 	The Association President 	replied 	on
June 	19, 	stating 	that 	he would have 	to consult 	the Executive
Board 	about 	the District's 	request 	and 	the 	appointment 	of 	a
bargaining 	team. 	He 	requested 	that 	the 	District meet 	and
negotiate, 	as well, 	prior 	to taking any action in areas other
than 	those 	under 	which 	it 	had 	obligations 	under 	the 	current
collective 	bargaining 	agreement.
After 	an exchange of 	two more 	letters 	in which 	the District
accused 	the Association 	of 	recalcitrance 	and 	stated 	that 	it
would 	take 	action prior 	to July 1 	even without negotiating, 	the
District wrote 	to 	the Association on June 	23, 	1978,
communicating 	a 	proposed 	resolution 	dealing 	with 	the 	financial
effects 	of Proposition 13 	to 	be presented 	at 	its Board 	of
Trustees meeting on June 29. 	The 	resolution, 	Resolution 78-4,
proposed 	to 	reduce 	all 	rates 	of 	pay 	for 	1978-79 	identified 	in
Appendices B, 	D, 	E, 	F and G of 	the 	collective 	bargaining
agreement by 	10 percent, 	to 	increase 	class 	size 	to room
capacity, 	to increase 	teaching hours 	by 	20 percent, 	and 	to
establish a dollar 	value per 	employee 	for 	fringe 	benefits 	equal
to 	the 	amount 	paid 	by 	the 	District 	for 	such 	benefits 	during
1977-78. 	The 	resolution also provided 	that:
Any 	salaries, 	health and welfare 	benefits,
class 	size 	or 	work 	load 	subject 	to
negotiation 	under 	the 	Educational 	Employment
15
,

Relations Act 	(Government Code, 	Section
3543.2) 	will be 	subsequently 	adjusted 	to
conform 	with 	any 	agreements 	reached 	pursuant
to such 	negotiations.
The District's June 	23 	letter 	reiterated 	its 	request 	to meet
and 	negotiate 	regarding 	the 	collective 	bargaining 	agreement
reopeners, 	and 	suggested 	that 	the Association's 	responses 	had
indicated 	that 	it was 	unable 	or 	unwilling 	to meet 	and 	negotiate
on 	these matters. 	That 	same day 	the Association wrote 	the
District 	naming 	the 	members 	of 	its 	bargaining 	committee 	and
suggesting 	the 	date 	of June 	28 	for 	negotiations.
On June 	28, 	the parties met for 	two and one-half hours.
The 	District 	informed 	the 	Association 	of 	the 	resolution 	which
it would present 	at 	its Board meeting 	the next day, 	June 	29.
The 	terms 	of 	the 	resolution presented 	to 	the Association were
the 	same 	as 	those 	contained 	in 	the District's June 	23 	letter.
The 	District 	did 	not 	request 	a 	counterproposal 	from 	the
Association, 	but 	stated 	that 	Resolution 	78-4 	constituted 	its
initial 	bargaining position. 	The 	discussion on June 	28 	did not
center 	around 	the 	contents 	of 	the District's 	resolution 	but 	on
the 	issue of 	whether 	it was 	appropriate 	to 	bargain 	concerning
the 	effects 	of Proposition 	13 	at a 	time 	when 	these 	effects 	were
not 	known. 	In 	addition, 	the 	Association 	requested 	bargaining
concerning 	the 	summer 	school 	cancellations. 	The District
refused 	and 	extensive 	time was 	spent 	arguing 	this 	point.
The next day, 	June 	29, 	the District's Board of Trustees
adopted 	a 	revised 	version of 	Resolution 	78-4 	in which 	the
16

provision 	for 	salary 	reductions 	was 	replaced 	by 	a 	provision
that 	the 	salaries 	and 	supplemental 	rates 	of 	pay 	identified 	in
the 	appendices 	to 	the 	collective 	bargaining 	agreement would
remain at 	the same rates 	for 	1978-79 	as 	for 	1977-78. 	The
District 	claims 	that 	it 	changed 	its 	position 	between June 	28
and June 	29 	as 	to 	the 1978-79 	salary rates 	due 	to changes 	in
the post-Proposition 13 financial picture, 	as well 	as 	in
response 	to 	the Association's 	strenuous 	objections 	on June 	28
to 	the 	resolution. 	The 	provisions 	for 	increased 	class 	size,
increased 	teaching 	load 	and 	unchanged 	contributions 	for
employee 	benefits 	remained 	the 	same 	as 	in 	the original
resolution.
On July 	7, 	the 	District 	wrote 	to 	the Association officially
informing 	it 	that Resolution 	78-4 	had 	been 	adopted 	by 	its Board
of Trustees 	on June 	29 	as 	its 	initial 	bargaining position, 	and
requesting 	bargaining on 	the 	contract 	reopeners. 	The 	next
bargaining 	session 	did not 	take place 	until August 	16. 	At 	that
time 	the 	same 	issues were discussed as on June 	28: 	the
Association 	requested 	bargaining 	about 	summer 	school 	and 	about
the District's 	action 	in July 	transferring 	counselors 	and
librarians 	to 	the 	classroom. 	The 	District 	refused 	these
requests, 	expressing willingness 	to 	bargain only 	about
Resolution 	78-4. 	The Association denied 	that 	the meeting was 	a
bargaining 	session 	since 	no 	formal 	contract 	proposals 	had 	been
received. 	The 	latter 	argument 	also consumed 	the 	next
17

bargaining 	session on August 	21, 	1978. 	On August 23 	the
Association 	received 	written 	contract 	proposals 	from 	the
District, 	which were 	discussed 	at a meeting 	of 	the 	parties 	on
September 8, 	1978.
On August 	29, 	the District wrote 	to 	the Association
requesting 	immediate 	separate 	bargaining 	on 	the 	issue 	of
employee 	health 	and welfare 	benefits. 	It claimed 	that 	it was
necessary to act 	by Sept. 	6, 	and 	stated 	that 	it would maintain
the 	current 	dollar 	amount 	of 	employer 	contributions 	and 	the
same 	carriers 	if 	no 	agreement 	to 	the 	contrary 	were 	reached.
Under 	those 	circumstances, 	employees 	would 	be 	required 	to pay
the 	difference 	between 	the District's contribution 	and 	the
current 	cost of 	the plan. 	As 	a result of 	the District's
action, 	employees maintaining 	the Prudential package plan with
dental 	and 	vision 	coverage 	during 	1977-78 	had 	twenty-three
dollars 	per 	month 	deducted 	from 	their 	paychecks 	to cover 	the
difference 	between 	the District's 	contribution 	and 	the 	cost 	of
the 	plan. 	Past practice 	had 	been 	for 	the District 	to pay for
the 	increased 	costs 	of 	the 	employees' 	existing health 	insurance
coverage. 	In addition, 	employees 	choosing 	a less expensive
type 	of 	health 	care 	coverage 	could 	no 	longer 	use 	the difference
in 	total premiums 	to purchase 	coverage 	in other 	District
approved 	insurance 	programs 	or 	District 	approved 	tax 	shelter
annuities 	as 	in previous years.
18

The District 	claimed 	that 	its 	actions 	in passing 	Resolution
78-4 	were 	necessitated 	by 	the 	changed 	funding 	provisions
affecting 	its 	budget 	after 	the 	passage 	of 	Proposition 	13.
Following 	Proposition 13, 	the 	District 	experienced 	a 	sharp drop
in 	revenues 	received 	from local 	taxes. 	State 	funds 	were
received 	as 	a block grant, 	with no 	relation 	to Average Daily
Attendance figures 	as 	in previous years. 	In addition 	it claims
that Resolution 	78-4 	was 	written 	as 	a 	"status quo" 	resolution
which 	did 	not 	change 	the 	rights 	and 	duties 	of 	the 	parties 	under
the 	collective 	bargaining 	agreement.
At 	the 	time of 	the hearing, 	the District 	had a 	reserve 	fund
of 	at 	least 	$2,700,000 	for 	the 	1978-79 	academic year.
E. 	The Assignment 	of Administrators 	to Classroom
Responsibilities
At 	its June 	29, 	1978 meeting, 	the District's Board 	also
approved 	the 	assignments 	of 	a 	number 	of 	administrators 	to
part-time 	classroom 	teaching. 	These 	teaching 	responsibilities,
which 	ranged 	from one 	to 	four 	courses 	per 	employee 	during 	the
Fall 	semester 	1978, 	were 	in addition 	to the employees 1
administrative 	responsibilities. 	No 	additional 	compensation was
received 	by 	the 	employees 	so assigned 	over 	and 	above 	their
regular 	administrative 	salaries.
As a 	result of 	the District's 	action 	in 	assigning
administrators 	to 	the 	classroom, 	at 	least one 	regular 	full-time
faculty member, 	Andrew Markham, 	and one part-time 	instructor,
Maureen Martin, 	each 	lost 	one 	course 	which 	they had 	requested
19

for 	Fall 	1978. 	Mr. 	Markham's 	course 	assignments had 	been
approved 	by 	his 	Department 	Chair. 	Both of 	these 	individuals
taught 	in 	the History Department. 	The Association 	believes 	that
there 	are 	other 	faculty members 	who 	also 	lost 	their 	customary
overload 	assignments 	due 	to 	the District's 	actions, 	and 	requests
that 	the 	District 	provide 	it with 	information 	sufficient 	to
ascertain 	their 	identities.
The 	District's past 	practice 	had 	not 	been 	to 	assign
administrators 	to 	the 	classroom 	as 	part 	of 	their 	regular 	college
assignments, 	with 	the 	exception of 	two 	individuals whose 	regular
assignments 	were 	part-time 	administration 	and 	part-time
teaching. 	Administrators 	had 	taught 	classes 	on 	an overload
----
basis 	in 	the 	past, 	but only outside of 	their 	regular 	working
hours, 	for 	additional 	hourly remuneration. 	A District policy on
extra 	assignments 	for 	management 	personnel 	which 	was 	adopted 	at
the March 	15 	Board 	of 	Trustees 	meeting 	specifically provided
that management 	employees 	could 	teach 	extra 	courses 	on 	an
overload 	basis 	only 	if 	such 	an 	assignment would 	not 	replace 	a
contract 	or 	regular 	employee 	who would 	normally 	have 	the 	course
as 	part 	of 	his/her 	regular 	load 	or 	overload 	assignment.
As 	indicated 	in 	the 	collective 	bargaining 	agreement, 	the
procedure 	for 	the 	assignment 	of 	departmental 	overload 	(those
courses 	offered 	in 	addition 	to 	the 	full-time 	equivalents 	of 	all
the 	instructors 	teaching 	in 	the 	department) 	was 	that 	full-time
faculty 	in 	the 	department would 	be 	given 	the 	first opportunity
20

to 	teach 	such 	classes 	before 	individuals 	outside 	the 	department
were 	allowed 	to 	teach. 	As 	in 	the 	case of 	summer 	school
teaching, 	each 	department 	had 	its 	own policy for 	determining 	how
overload 	courses 	were 	to be 	assigned 	to 	individual 	faculty
members.
Although 	many 	administrators 	hold 	teaching 	credentials 	in
various 	subjects 	of 	instruction 	they 	are 	not 	considered 	members
of 	teaching 	departments 	at 	the 	college. 	Only 	faculty 	teaching
full 	time 	in a 	department 	attend 	department meetings 	regularly,
and 	are 	considered 	department 	members 	for 	purposes 	of 	overload
assignments.
F. 	Assignment of Counselors 	and Librarians 	to Teaching
Responsibilities
Early 	in July 	at 	the 	instigation of 	President 	Randall 	and
Vice-president 	Zagorski, 	the District moved 	to 	implement 	its
plan 	to 	reduce 	its 	certificated 	hourly 	budget 	by 	assigning
counselors 	and 	librarians 	to classroom 	teaching.
On July 10, 	1978, 	counselors 	in 	the college received a
two-page memo 	from Bruce Paulson, 	Dean of Student Services,
outlining 	their 	teaching 	responsibilities 	for 	Fall 	1978. 	A
third 	sheet 	set 	forth 	the 	class 	schedule 	for 	each 	individual
employee. 	Employees 	were 	given 	six 	hours 	per 	week preparation
time 	for 	their 	six-hour 	teaching 	assignments. 	Counselors 	had
been 	asked 	in May 	1978 	to 	suggest 	areas 	in which 	they were
competent 	to 	assume 	teaching 	responsibilities 	in 	the 	event 	that
Proposition 13 passed. 	Division Deans 	were 	then 	asked 	if 	they
21

could 	use 	these 	individuals, 	and 	teaching 	assignments 	were
worked out. 	The 	courses 	to be 	taught were part of 	the
employees' 	regular 	assignments 	rather 	than 	overload 	assignments
for 	additional pay on an 	hourly basis. 	All 	of 	the 	college's
counselors 	and 	all 	but 	two of 	its 	librarians were 	assigned 	to a
60 percent 	teaching 	load.
Previously 	counselors 	had 	taught 	special 	nine-week 	courses
in career development, 	educational planning, 	career guidance,
human potential 	and 	peer 	counselor 	training 	as 	part 	of 	their
regular 	assignments. 	These courses, 	however, meet on a
different 	schedule 	than 	the 	regular 	academic 	course 	offerings
within 	the 	academic 	departments: 	they meet 	only one 	hour 	per
week 	for 	nine 	weeks 	rather 	than 	three 	hours 	per 	week 	for 	the
entire 	semester. 	Students 	in 	the 	classes do not 	take
examinations 	in which 	they 	are 	tested 	on 	their 	knowledge 	of 	the
subject material, 	as 	in regular 	academic courses. 	Instead 	they
are 	given diagnostic 	tests 	to 	aid 	them 	in 	their 	selection 	of
careers. 	Librarians 	had 	in 	the past also 	taught special
courses, 	in 	library science 	and 	how 	to write a 	term paper.
However, 	the 	courses 	which 	counselors 	and 	librarians 	were
assigned 	for 	Fall 	1978 were 	not 	courses 	relating 	to 	their
counseling or 	librarian functions. 	Instead 	they were 	regular
academic 	courses 	in 	various 	academic departments 	ranging 	from
art and 	foreign languages 	to health 	sciences, 	business 	and
physical 	education. 	While 	some 	counselors 	and 	librarians 	had
22

occasionally 	taught 	such 	courses 	as 	overload 	for 	additional
pay, 	such 	teaching 	had 	never 	been part 	of 	their 	regular
assignment. 	In addition, 	unlike 	their 	academic 	teaching
assignments, 	counselors 	and 	librarians 	had 	not 	been given
preparation 	time 	for 	the 	special 	one-unit 	courses 	related 	to
their 	counseling 	and 	librarian 	functions. 	Class 	time was
simply 	part 	of 	their 	32 	hour 	weekly 	assignment.
On July 18 	the Association wrote 	to 	the District 	requesting
bargaining 	regarding 	the 	transfers 	of 	counselors 	and
librarians. 	Its 	request was 	repeated 	at 	the 	scheduled
bargaining 	session with 	the District 	on August 	21, 	and 	in 	a
further 	letter 	dated August 	28. 	On August 	29, 	the District
wrote 	to 	the Association, 	rejecting 	its 	request 	to bargain
concerning 	the 	reassignments.
Counselors 	who 	had 	protested 	the 	reassignments 	were
informed 	by administration members 	on August 	15 	that 	the
assignments 	would 	proceed 	as 	scheduled. 	The 	reassignments 	were
also mentioned 	in 	a 	"welcome 	back" 	memo 	to 	faculty 	from 	the
President 	dated August 	25.
During 	the 	summer 	and 	the 	period 	immediately preceding 	the
start of classes 	for 	the Fall Semester on September 	11, 	1981, 	a
number 	of 	counselors 	who 	had 	been 	assigned 	courses 	which 	they
had 	not 	taught 	previously or 	had 	not 	taught 	recently 	spent 	time
in preparing 	their 	assigned 	fall 	classes. 	Preparation
activities 	included 	searching 	for 	suitable 	textbooks 	and 	other
23

course materials, 	reading 	the 	subject material 	to be 	covered,
outlining 	course 	assignments 	and 	individual 	lectures, 	and
preparing 	assignments. 	Estimates 	of preparation 	time spent 	by
several witnesses 	ranged 	from 15 	to 	20 	hours 	to 	80 	to
100 hours. 	In addition, 	one counselor 	had 	to petition to
obtain a 	teaching credential, 	and 	to enroll 	in an M.A. 	program
at California State University, 	Fullerton, 	in order 	to obtain a
"partial 	credential" 	in 	the event 	that his 	application 	for 	a
regular 	credential 	was 	not 	approved.
Between August 30 and September 	8, 	1978, 	individual
counselors 	were 	notified 	by Dr. 	Paulson or 	their 	Division Deans
that 	they would 	not 	have 	to 	teach 	their 	assigned 	academic
courses 	after 	all. 	The 	reason 	for 	the 	rescission of 	the
assignments, 	according to Dr. 	Paulson, 	was that changing
information 	concerning 	the 	budget 	indicated 	by 	the 	end 	of
August 	that 	it would 	be possible 	to allow 	the 	counselors 	and
librarians 	to remain full-time 	in 	their 	regular 	positions. 	One
counselor, 	however, 	Don Greeley, 	who had been assigned 	to coach
a 	cross-country class 	in 	the 	Physical Education Department, 	had
already met 	his 	class 	for 	a period 	of 	one 	week 	by 	the 	time 	he
was 	notified 	of 	the 	assignment's 	cancellation. 	During 	the week
beginning 	September 	1, 	Mr. 	Greeley met with 	the 	team for
approximately 10 hours, 	in addition to his 32 hours' 	counseling
assignment. 	While 	the 	contract provided 	for 	an 	additional
stipend 	for 	assistant coaches, 	Mr. 	Greeley never 	asked 	for 	and
24

never 	received 	such 	a 	stipend 	as 	compensation 	for 	his 	coaching
duties 	for 	the 	week 	of 	September 	1.
The 	Association 	Requested 	Remedy
The 	Association 	requests 	a 	bargaining 	order 	with 	respect 	to
the 	issues 	raised 	by 	the District's 	actions 	and 	a 	cease 	and
desist 	order 	prohibiting 	the 	District 	from 	failing 	and 	refusing
to 	bargain 	on 	matters 	within 	the 	scope 	of 	representation 	under
Government 	Code 	section 	3543.2. 	In 	addition, 	it 	requests 	that
those 	individuals 	deprived 	of 	overload 	teaching 	by 	the
District's 	assignment 	of 	administrators 	to 	the 	classroom 	during
Fall 	1978 	be 	offered 	employment 	on 	a 	priority 	basis 	for 	the
next 	academic 	year.
III. 	ISSUES
A. 	Whether 	the 	charge 	should 	be 	dismissed 	on 	the 	basis
that 	this 	is 	solely 	an 	action 	to 	enforce 	a 	contract.
B. 	Whether 	the 	District 	took 	unlawful 	unilateral 	action
when 	it 	adopted 	Resolution 	78-4 	which 	contemplated 	certain
changes 	in 	contractual provisions.
(1) 	If 	the 	District 	took 	unilateral 	action 	in 	adopting
Resolution 	7 8 - 4 , 	may 	it 	defend 	on 	the 	ground 	that 	some
or 	part 	of 	the 	resolution 	was 	not 	implemented?
(2) 	If 	the District 	took 	unilateral 	action 	in 	adopting
Resolution 	78-4, 	was 	it merely maintaining 	the
status 	quo?
(3) 	If 	the 	District 	took 	unilateral 	action 	in 	adopting
25

Resolution 	78-4, 	was 	the 	action 	justified 	by emergency
or 	necessity?
(4) 	If 	the District 	took unilateral 	action 	in adopting
Resolution 78-4, 	did 	the Association waive 	any
objection 	to 	the 	District's 	conduct?
C. 	Whether 	the District 	violated 	the EERA when 	it 	refused
to 	bargain 	concerning 	decisions 	relating 	to 	the 	cancellation,
offering, 	and 	teaching 	assignments 	for 	certain 	summer 	school
classes or 	sessions.
D. 	Whether 	the 	District 	violated 	the EERA when 	it 	refused
to 	bargain 	concerning 	the 	assignment 	of 	overload 	classes 	to
administrators 	rather 	than 	to 	certificated 	faculty.
E. 	Whether 	the District 	violated 	the EERA when 	it 	refused
to 	bargain 	concerning 	the 	assignment 	of 	certain 	certificated
employees 	to 	teach 	classroom courses.
F. 	Whether 	any of 	the 	instances 	in which 	the District
refused 	to 	bargain 	concerned 	matters 	upon 	which 	the Association
waived 	its 	right 	to bargain.
G. 	Whether 	the 	District's 	conduct 	violates 	sections
3543.5(b) 	and 	(a) 	of 	the EERA.
H. 	What remedy, 	if 	any, 	is appropriate?
IV. 	CONCLUSIONS 	OF LAW
A. 	The Motion 	to Dismiss 	Pursuant 	to Government
Code 	Section 	3541.5(b)
At 	the 	inception 	of 	the 	hearing 	and 	throughout 	the
proceedings 	in 	this matter, 	Respondent has 	argued 	that Charging
26

Party 	is 	merely 	seeking 	to 	enforce 	contractual 	rights 	in 	its
claim of 	wrongdoing 	pursuant 	to California Government 	Code
section 3543.5(3), 	(b) 	and 	(c). 	EERA denies PERB the
" . . . 	authority 	to 	enforce 	agreements 	between 	the
parties, 	. 	. 	. 	and prohibits the issuance of a complaint on any
charge 	based 	on 	an 	alleged 	violation of 	such 	an 	agreement 	that
would 	not 	also 	constitute 	an 	unfair 	practice 	. . . " 	(California
Government Code Section 3541.5(b)).
In 	this 	case Charging 	Party 	contends 	the District 	committed
unfair 	practices 	by 	inter 	alia, 	making 	unilateral changes 	in
terms 	and 	conditions 	of 	employment, 	at least some 	of which 	are
set 	forth 	in 	the 	contract 	between 	the 	parties. 	The District,
in 	turn, 	relies on certain contractual 	defenses 	including 	the
alleged waiver 	provisions 	of 	the contract 	"zipper" 	clause,
Article XVII.
In 	almost 	every case 	of 	an 	alleged 	refusal 	to 	bargain,
based on a 	unilateral 	change of 	contractual provisions, 	PERB or
other 	administrative 	agencies must, 	of 	necessity, 	interpret 	the
terms 	of 	the 	contract 	in order 	to determine whether 	there 	has
been 	an 	unlawful 	failure 	to comply with 	them and 	consequently 	a
contractual 	change 	prohibited 	by law 	(see NLRB v. 	Katz 	(1962)
369 U.S. 736).
Thus, 	in matters 	such as 	this, 	interpretation of 	the
contract 	is 	essential 	to 	the 	issue 	of 	whether 	there 	has 	been 	a
statutory violation. 	This 	is not 	enforcement of 	the 	agreement
27

in 	the abstract, 	albeit 	should a violation be 	found,
enforcement of 	the 	contractual provisions might, 	of 	necessity,
result 	as 	part 	of 	the 	administrative 	remedy. 	Rather,
interpretation of 	the 	contract must precede 	any 	finding 	of
unilateral change, 	which if 	unexcused 	in the agreement, 	may
well be 	an unlawful 	refusal 	to bargain. 	(NLRB v. 	C & C Plywood
Corp. 	1967) 	385 U.S. 	421 	[64 LRRM 2065]; Mastro Plastics Corp.
v. 	NLRB 	(1956) 	350 U.S. 	270 	[37 LRRM 2587]; 	Sea Bay Manor Home
(1980) 	253 NLRB No. 	68; Anaconda Aluminum Co. 	(1966) 	160 NLRB
35 	[62 LRRM 1370]; 	contrast, 	[106 LRRM 1010] 	Baldwin Park
Unified School District 	(4/4/79) 	PERB Decision No. 	92.)
Thus, 	the allegations 	of 	unlawful 	unilateral 	action 	in 	this
case, 	if proved, 	would constitute at least a violation of EERA
section 3543.5(c), 	despite 	the 	fact 	they might also violate
express 	terms 	of 	the agreement 	between 	the parties. 	(See
Victor Valley Unified 	School District 	(12/31/81) 	PERB 	Decision
No. 	192; 	Davis Unified School District 	(2/22/80 	PERB Decision
No. 	116). 	PERB has jurisdiction to resolve 	the 	issues 	in this
case 	and 	accordingly 	the Motion 	to Dismiss 	is 	denied.
B. 	The Adoption 	of 	Resolution 	78-4
In San Mateo Community College District 	(6/8/79) 	PERB
No. 	94, 	and San Francisco Community College District 	(10/12/79)
PERB Decision No. 	105, 	the Board 	held 	that a public 	school
employer 	may 	not 	institute 	a 	change 	concerning matters 	within
28

the 	scope 	of 	representation 	under 	Government Code 	section
3543.25 	without 	meeting 	and 	negotiating 	upon 	request 	with 	its
employees' 	exclusive 	representative. 	The Board 	reasoned 	that
the 	same 	considerations 	which 	disfavor 	unilateral 	changes 	in
the 	private 	sector 	also obtain 	in 	the public 	sector.
Unilateral 	changes destabilize employer-employee 	relations,
damage 	negotiating 	prospects 	and 	interfere 	with 	employees'
freedom of 	choice 	in 	selecting 	their 	representatives 	by
derogating 	the 	representative's 	negotiating 	power 	and 	its
ability 	to perform 	effectively 	in 	the 	eyes 	of 	employees.
Subjective 	good 	faith 	is 	not a defense 	to a 	charge 	of 	unlawful
unilateral 	action. 	Rather 	unilateral 	action on matters 	which
require 	negotiation 	is per 	se 	unlawful 	and 	violates 	the 	duty 	to
bargain as 	required 	by the EERA. 	(San Mateo, 	supra at 	12;
Davis Unified School District, 	supra at 7-8, 	18-19; 	NLRB v.
Katz, 	369 U.S. 	supra, at 743.)
5 Section 	3543.2 	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 of
employment" 	mean 	health 	and 	welfare
benefits, 	. 	. 	. leave, transfer and
reassignment policies, 	safety conditions of
employment, 	class size, procedures to be
used 	for 	the 	evaluation of 	employees,
organizational security, 	. 	. 	. procedures
for processing grievances, 	. 	. 	. and the
layoff 	of 	probationary 	certificated 	school
district employees. 	. 	. 	.
29

Relevant 	here, 	PERB has 	expressed 	two 	important policy
reasons 	to support 	the 	finding 	of 	illegality 	in 	the 	case 	of
unilateral 	action 	by a party with 	an 	obligation 	to 	bargain.
First, 	the 	statute's 	carefully 	structured 	equality of
negotiating 	power 	between 	the 	parties 	is 	damaged 	by 	unilateral
action. 	Second, 	unilateral 	action reduces 	the employer's
accountability 	to 	the public 	and 	gives 	it 	an 	unfair 	advantage
in 	the political competition 	for 	limited 	funds.
In 	the 	instant case, 	the 	agreement 	between 	the parties
provides 	that 	should 	Proposition 13 pass, 	the parties would
specifically 	reopen 	negotiations 	on 	four 	enumerated 	items. 	The
District 	first 	requested 	that 	the 	Association 	bargain 	on 	the
four 	contract reopeners on Friday, 	June 16, 	in a letter which
announced 	the 	District's 	intention 	to 	take 	action on 	the 	items
before 	July 	1. 	The Association 	president 	responded 	on Monday,
June 	19, 	stating 	that 	he would need 	at 	least a week 	to consult
his 	Executive 	Board 	and 	to 	assemble 	the 	bargaining 	team. 	The
next day, 	June 	20, 	the District again wrote 	the Association,
accusing 	it 	of 	recalcitrance. 	The District's 	letter 	stated 	that
. 	. 	. 	the 	failure of 	the Faculty Association
to meet and negotiate in good faith 	. 	. 	.
leaves 	the District with 	no choice 	but 	to
take 	necessary 	action on 	the 	above Articles
prior 	to July 1, 	1978, 	and most 	likely at a
meeting 	expected 	to 	be 	called 	for 	June 	29,
1978.
That 	same 	day, 	the Association 	responded. 	The Association
stated 	that 	its 	president 	had 	told 	the District's
30

representative 	team 	in 	the morning, 	that 	its position was 	in
the 	mail.
This 	exchange 	of 	letters 	was 	followed 	by 	the 	District's
letter 	to 	the Association on June 	23, 	1978, 	stating 	that since
the Association's 	responses 	had 	indicated 	that 	it 	"is 	unable or
unwilling 	to meet 	and 	negotiate 	on 	these matters," 	the District
would present Resolution 78-4 	to 	its Board on June 	29, 	1978.
That 	same day, 	June 	23, 	the Association wrote 	the District
naming 	the 	members 	of 	its 	bargaining 	committee 	and 	suggesting
that 	the 	parties meet on June 	28.
Resolution 	78-4 	was 	adopted 	on June 	29 	following 	one
meeting of 	two and 	a half 	hours' 	duration, 	during which 	the
resolution's 	contents 	were 	not 	discussed. 	While 	the 	District
modified 	the 	contents 	of 	the 	resolution 	after 	the June 	28
meeting 	before presenting 	it 	to 	the 	Board, 	this 	change was 	not
the 	result 	of 	substantive 	discussions 	between 	the 	parties 	about
those contents.
There 	is 	no question 	that 	the matters 	in 	the 	four 	reopener
provisions 	are 	within 	the 	scope 	of 	representation. 	Apart 	from
the 	fact 	that 	the 	negotiation was 	expressly mandated 	by 	the
agreement 	between 	the parties, 	the 	items covered by
resolution 78-4 were rates of pay, 	class 	size, 	hours of
employment, 	and 	health and welfare 	benefits. 	These mandatory
subjects 	of 	bargaining 	required 	exhaustion 	of 	the 	negotiation
process 	before 	taking 	unilateral 	action 	by 	adoption 	of
31

resolution 	78-4 	which 	inter 	alia, 	would 	have 	altered 	the
status 	quo 	by freezing wages 	at 	their 	1977-78 	levels 	and
freezing 	the 	dollar 	amount 	of 	the District's 	contribution 	to
the 	employees' 	health and welfare 	benefits. 	Employees covered
by 	the 	Prudential 	package plan were 	required 	for 	the 	first 	time
to pay monthly 	contributions 	to complete 	the 	cost 	of 	their
coverage, 	and 	those 	with 	less 	expensive 	coverage were 	unable
for 	the 	first 	time 	to use 	the difference 	to purchase other
District 	approved 	insurance 	programs 	for 	tax 	shelter 	annuities,
under 	the District's 	"cafeteria plan" 	for 	fringe 	benefits.
(See 	San Mateo Community College District, 	supra; 	San Francisco
Community College District, 	supra; 	Davis Unified School
District 	et al., 	supra; 	Oakland Unified School District
(4/23/80) 	PERB Decision No. 	126, 	affirmed Oakland Unified
School District v. 	Public Employment Relations Board 	(1981) 	120
Cal.App.3d. 	1007.)
Thus, 	unless 	there 	is a viable defense 	to the District's
act 	of 	adopting 	and 	partially 	implementing 	Resolution 	78-4, 	the
District 	will 	be 	found 	to have 	violated 	section 	3543.5(c) 	of
the EERA.
1. 	The 	Defense 	That 	Resolution 	78-4 Was 	Not 	Implemented
The 	Board's 	reasoning 	in 	San Mateo Community College
District, 	supra, 	and San Francisco Community College District,
supra, 	implies 	that 	the District 	committed 	a per 	se 	violation
when 	it 	acted 	unilaterally 	to 	adopt 	the 	resolution on 	matters
32

within 	the 	scope 	of 	negotiations 	as defined 	by 	section 	3543.2.
Even 	if 	the 	District 	had 	done 	nothing 	to 	implement 	its
resolution, 	approval 	of 	the proposed 	actions 	by 	its 	governing
board 	is 	the 	first 	step 	in effectuating 	them. 	As such, 	the
District's 	official 	action 	on June 	29 	unfairly upset 	the
statutorily 	designed 	equality of 	bargaining 	power 	between 	the
parties 	by 	forcing 	the Association 	to 	bargain 	for 	the
rescission 	of 	an 	already 	officially 	adopted 	action. 	Placing
the Association 	in 	this 	position 	tended 	to 	undermine 	its
bargaining power 	and 	to derogate 	its 	effectiveness 	in 	the 	eyes
of 	its members. 	In addition, 	as discussed above, 	the record
shows 	that 	the 	District 	did 	implement 	at 	least 	one 	provision 	of
the 	Resolution 	which 	resulted 	in 	a 	freeze 	of 	its 	dollar 	amount
contribution 	to health benefits. 	Thus, 	this defense 	is
rejected.
2. 	The 	Defense That Resolution 	78-4 Merely
Maintained 	The 	Status 	Quo
The 	District 	argues 	that 	Resolution 	78-4 	merely maintained
the 	status quo. 	This 	argument appears to have 	two prongs,
(a) 	The 	version of 	the Resolution adopted on June 	29 merely
froze 	the dollar 	amounts of 	employees' 	salaries 	and 	of 	the
District's contributions 	to health 	and 	welfare 	benefits 	at
their 	1977-78 	levels, 	so there was 	no change 	in wages 	and
fringe 	benefits. 	(b) 	The passage of Resolution 	78-4 was merely
the 	adoption of 	the District's 	initial 	bargaining 	position 	and
33

which 	the 	Association 	was 	invited 	to 	continue 	negotiations
after 	July 	1. 	These 	contentions 	will 	be 	dealt 	with 	in 	turn.
(a) 	The 	District 	argues 	it 	maintained 	the 	status 	quo.
However, 	the 	collective 	bargaining 	agreement 	in 	effect 	between
the 	parties 	had 	called 	for 	an 	increase 	in 	salaries 	effective
July 	1, 	1978. 	For 	the District 	to freeze 	salaries, 	effective
July 1, 	1978, 	at 	their 	1977-78 	levels, 	therefore 	was 	not mere
maintenance 	of 	the 	status 	quo. 	While 	the 	contract 	called 	for
renegotiation 	of 	salaries 	should Proposition 	13 	pass, 	the
District's 	action 	froze 	salaries 	at 	their 	1977-78 	level. 	PERB
has 	declared 	that 	a unilateral 	freeze 	of 	the 	salary 	schedule 	in
the 	face 	of Proposition 	13 	financial 	exigencies 	is 	an 	unlawful
failure 	to 	negotiate 	in good 	faith. 	The 	District's 	argument
has 	been 	repeatedly 	rejected. 	San Mateo 	County 	Community
College 	District, 	supra, 	San Francisco 	Community College
District, 	supra; 	Davis Unified School District 	et 	al., 	supra.
(b) 	The 	minutes 	of 	the 	June 	29 	Board 	meeting 	reporting 	the
passage 	of 	Resolution 	78-4 	indicate 	a 	willingness 	to 	engage 	in
subsequent 	negotiations. 	In 	San 	Francisco 	Community College
District, 	supra, 	the District's Board 	of Trustees 	passed 	a
resolution 	on 	June 	20, 	1978 	declaring 	a 	state 	of 	emergency 	due
to 	the 	passage 	of 	Proposition 	1 3 , 	freezing 	salaries 	and 	yearly
and 	career 	increments 	at 	the 	1977-78 	rate, 	and 	withholding
professional 	growth 	increments 	for 	1978-79. 	PERB 	held 	that 	the
District's action 	violated 	sections 	3543.5 (a), 	(b) 	and 	(c) 	of
34

EERA. 	There, 	as here, 	the resolution affirmed 	the District's
willingness 	to make 	later 	adjustments 	in 	the measures 	adopted,
following 	negotiations 	with 	employee 	representatives. 	PERB
held 	that 	the 	District 	could 	not 	unilaterally 	institute 	changes
on matters 	within 	the 	scope 	of 	representation 	and 	then 	require
the 	Federation 	to 	"recoup 	its 	losses 	at 	the 	negotiations
table." 	Thus, 	the status quo defense 	is rejected. 	|
3. 	The 	Defense That The Adoption of 	Resolution 	78-4
Was 	Excused 	By 	Necessity 	or 	Emergency
The 	District 	argues 	the 	adoption of 	resolution 	78-4 	was
justified 	by certain necessities 	and, 	therefore, 	falls within
the exception of NLRB v. 	Katz, 	supra. 	The 	first argument which
the District 	advances 	is 	that 	it 	had 	to 	take 	economic 	action on
its 	budget before July 1, 	1978, 	relying 	upon Rible v. 	Hughes
(1944) 	24 Cal.2d 437 	[150 P. 	2d 455]. 	In 	its decision in Davis
Unified School District, 	et al, 	supra, 	PERB Decision No. 	116,
the 	PERB 	cited 	its 	decision 	in San Francisco Community College
District, 	supra 	PERB Decision No. 	105, with approval. 	In San
Francisco, 	the Board held 	that, 	"The EERA 	itself 	authorizes 	the
District 	and 	an 	exclusive 	representative 	to 	negotiate 	a wage
schedule 	after July 	1. 	Thus, 	the District was not constrained
to 	adopt 	and 	implement 	the 	salary 	schedule 	by July 	1." 	This
first defense 	based on necessity, 	must 	fail.
The 	arguments 	that 	the 	adoption of 	the 	resolution was
necessary 	to 	provide 	the 	District 	with 	sufficient 	funds 	to
negotiate 	in 	good 	faith 	or 	with 	the 	flexibility 	to 	negotiate
35

higher 	as 	well 	as 	lower 	benefits 	have 	similarity 	been
rejected. 	Ibid.
The District 	additionally 	argues 	that 	its 	actions 	were
justified 	by 	financial 	necessity, 	due 	to 	the 	loss 	of 	local
property 	tax 	revenues 	as 	a 	result 	of 	the passage 	of
Proposition 	13. 	In San Mateo Community College District,
supra, 	and San Francisco Community College District, 	supra, 	the
Board 	held 	that 	no 	fiscal 	emergency 	existed 	in June 	1978 	in 	the
period 	immediately 	following 	the 	passage 	of 	Proposition 	13
which would 	justify abrogation of 	the 	duty 	to 	bargain. 	There
the 	Board 	referred 	to 	the 	California 	Supreme Court's 	holding 	in
Sonoma County Organization 	of 	Public Employees 	v. 	County 	of
Sonoma, 	23 Cal.3d 	296, 	that Proposition 13's passage did not
create 	an 	emergency 	justifying 	the 	impairment 	of 	local public
entities 	contractual obligations, 	because 	"bailout" 	legislation
was 	passed 	by 	the 	State on June 	24 	and June 	30 	to alleviate 	the
effects 	of 	Proposition 13. 	These 	bills made 	state 	surplus
funds 	available 	to community 	colleges, 	and 	extended 	the
deadlines 	by which 	local 	agencies 	were 	required 	to 	adopt 	their
budgets. 	Since 	the 	actual 	effects 	of 	Proposition 13 were 	not
known 	in 	the 	latter 	part of June, 	and 	since 	the 	bailout
legislation was 	pending, 	this 	reasoning 	is 	dispositive 	of 	the
District's claim of 	financial 	exigency 	in 	the 	instant 	case.
The District 	admits 	that 	its 	estimate 	of 	its 	financial
situation was 	constantly changing 	in June 	and 	early July, 	as 	it
36

received 	daily 	reports on 	the 	action 	being 	taken 	in
Sacramento. 	As 	in San Mateo Community College District, 	supra,
at 17-18, 	and San Francisco Community College District, 	supra,
at 	10, 	there was 	no showing 	that a bona 	fide emergency
existed. 	"The District acted prematurely, 	out of panic, 	and
not 	in 	response 	to a 	bona 	fide 	emergency." 	San Francisco
Community College District, 	supra, 	at p. 	10. 	In San Mateo
Community College District, 	as 	here, 	the collective 	bargaining
agreement 	also provided 	for 	contract 	reopeners 	on wages 	and
fringe 	benefits. 	There 	the 	Board 	concluded 	that 	the 	parties
could 	have 	negotiated 	to 	resolve 	the 	potential 	financial
problems 	expeditiously and 	lawfully, 	pointing 	to 	their
negotiating 	duty 	under 	the 	contract 	reopener 	clause 	as 	well 	as
under 	the statute. 	(16. 	at 19, 	21) 	Here, 	the parties
conditioned 	the 	four 	contract 	reopeners 	on 	the 	passage 	of
Proposition 	13. 	This 	indicates 	that 	they specifically
contemplated 	negotiations 	to 	resolve 	any 	financial 	problems
caused 	by 	that 	contingency. 	There was 	no 	showing of 	a
supervening 	emergency 	which 	would 	absolve 	the District 	of 	its
statutory 	and 	contractually 	assumed 	obligation 	to 	bargain 	over
these matters.
Finally, 	as 	in San Mateo Community College District, 	the
District's measures 	were 	not 	in 	fact 	financially 	necessary once
the 	amount of 	funds 	available 	to 	it 	for 	the 	1978-79 	academic
year was determined. 	In San Mateo, 	supra, 	at pp. 	4 and 23,
37

PERB 	highlighted 	the 	fact 	that 	the 	District 	entered 	the 	new
fiscal 	year 	with 	an 	uncommitted 	reserve 	carry over 	of 	about
2 million, 	stating 	that 	"in 	the 	end 	the 	facts 	did 	not 	justify
the 	salary measures 	taken by 	the District." 	Here, 	the District
had 	reserves 	of 	approximately 	$2,700,000 	for 	the 	1978-79
academic year. 	Thus, 	the defense of 	economic necessity or
emergency 	is 	rejected.
4. 	The 	Defense 	That The 	Union Waived 	Its 	Right 	to Negotiate
In 	the 	instant 	case, 	the District 	requested 	negotiations 	on
or 	about June 	16. 	Both parties 	were aware of 	the 	contract
reopener 	provisions 	which 	called 	for 	negotiations 	following
passage 	of 	Proposition 13 	on June 	6. 	Neither 	party showed
great desire 	to get 	to the 	table. 	Indeed, 	the 	union's
responses 	to 	the 	District's 	request 	were 	hardly 	enthusiastic.
The demand 	for 	a week 	to poll 	the 	executive 	board 	and 	the
concomitant 	demand 	to discuss 	other 	issues, 	could 	have 	only
slowed 	down 	negotiations.6
While 	the Association 	is 	to be 	faulted 	for 	not 	coming 	to
the 	table more 	quickly following 	the District's 	request, 	it did
6 "[E]mployee 	organizations 	may 	not 	shield 	themselves
behind a 	restraint on 	unilateral 	employer 	actions 	as 	a way of
avoiding 	a measure 	of 	responsibility 	for 	negotiating 	or
resolving 	financial 	dilemmas 	confronting 	a public 	employer,"
San Mateo County Community College District, 	supra, 	at 	22.
Once 	the 	employer 	extends 	an 	invitation 	to negotiate 	to 	the
organization concerning 	a matter 	wherein 	it 	is 	faced with
financial difficulties, 	it 	is 	the organization's obligation to
respond 	promptly 	so 	that 	the 	employer 	can 	take 	effective 	steps
to meet 	its 	economic dilemma. 	(Id., 	at 	22-24)
38

respond 	affirmatively within 	a 	few 	days 	of 	the District's 	first
invitation. 	This 	"tardiness" 	of a 	few days even 	in 	the 	context
of 	the 	facts 	of 	this 	case with certain dates 	crucial 	to 	the
parties, 	does 	not 	justify 	the 	finding 	that 	the Association
refused 	to bargain or 	waived 	any 	right 	to do so. 	(Compare,
Electric Machinery Co. 	v. 	NLRB 	(5th Cir., 	1981) 	F.2d
[108 LRRM 2202, 	2205; 	see footnote 5 and cases cited therein];
Amador Valley Joint Union High 	School 	District 	(1978) 	PERB
Decision No. 	74 	[2 PERC 2192]. 	See also, 	Sutter Union High
School District 	(10/7/81) 	PERB Decision No. 	175 at pp. 	2-3 and
cases 	cited 	therein.]
On 	the 	other 	hand, 	the 	District's 	rigid July deadline 	did
not 	allow 	sufficient 	time 	for 	meaningful 	negotiations 	on 	the
four 	subjects. 	Furthermore, 	the District's 	insistence 	in 	its
letter 	of June 20, 	four 	days after 	it 	first wrote 	the
Association, 	that 	it would 	take action before July 1 	is
indicative 	of 	a predetermined 	resolve 	not 	to move 	from 	its
initial 	position. 	Its 	letter 	of June 	23 	notifying 	the
Association 	of 	the 	contents 	of 	Resolution 	78-4 	confirms 	this
attitude, 	since 	the Association 	had 	notified 	the 	District 	on
June 20 	that 	its position was 	in 	the mail. 	The District's
conclusion 	that 	the Association was 	"unable 	or 	unwilling 	to
meet 	and 	negotiate on 	these matters" 	was 	not 	justified 	by 	the
Association's behavior, 	but betrays 	an eagerness on 	the
District's 	part 	to 	find 	justification 	for 	its 	unilateral
39

action. 	Thus, 	the Association was 	not given, 	and 	therefore 	did
not 	waive, 	"a 	reasonable 	opportunity 	to 	bargain 	over 	a decision
not 	already 	firmly made 	by 	the 	employer." 	San Mateo Community
College District, 	supra, 	at 	22; 	accord, 	Sutter Union High
School District, 	supra. 	Thus, 	the 	defense 	of waiver must 	be
rejected.
The 	District's 	defenses 	having 	all 	proved 	to 	be 	without
merit, 	it 	is 	found 	that 	by 	adopting 	and 	partially 	implementing
Resolution 	78-4, 	the District 	violated 	section 	3543.5 (c) 	of 	the
EERA.
C. 	The 	Changes 	In Summer 	School 	Teaching 	Assignments 	and
Class 	Offerings
The 	Association 	claims 	that 	the 	District 	made 	unlawful
unilateral 	changes 	in 	past 	practices 	relating 	to 	the 	offering
of 	summer 	school 	classes 	and 	assignment 	of 	summer 	school
teaching work. 	Thus, 	the Association 	shows 	that:
(1) 	The 	District 	raised 	the 	low 	enrollment 	limit 	from 	20
to 	30 	students 	in 	contravention 	of 	the 	Summer 	School 	Faculty
Bulletin 	and 	the 	Evening 	Division 	Faculty 	Handbook.
(2) 	Classes 	in which 	the 	enrollment was 	close 	to 	the 	limit
were 	not 	allowed 	to meet 	the 	first 	day 	to 	pick 	up 	additional
students.
(3) 	There 	was 	a change 	in 	the 	criteria 	for 	which 	low
enrolled 	classes 	would 	nevertheless 	be 	offered. 	The 	practice
of 	offering 	"assured 	courses" 	without 	regard 	to 	current
enrollment 	figures 	was 	abandoned.
40

(4) 	The 	second 	summer 	session was 	cancelled 	without 	regard
to 	enrollment 	figures 	in 	the 	scheduled 	courses.
(5) 	The 	criteria 	for 	assigning 	faculty 	to 	the 	remaining
courses 	were 	changed 	so 	that 	some 	faculty 	members' 	assigned
classes 	were 	given 	to other 	faculty members 	whose 	classes 	had
been 	cancelled.
In 	response 	to 	the 	union's 	contention 	that 	the 	District
acted 	unlawfully 	in making 	the 	changes 	enumerated 	above, 	the
employer 	argues 	that 	summer 	school 	employees 	are 	not
represented 	by 	the Association 	and 	that 	the 	changes 	made, 	are
outside 	scope 	of 	representation.
With 	regard 	to 	its 	first 	position 	Respondent 	argues 	that
summer 	school 	instructors 	are 	not 	represented 	by 	the 	Faculty
Association, 	pointing 	to 	the 	exclusion of 	"certificated
employees 	who 	are 	employed 	for 	less 	than 	a 	semester" 	from 	the
unit 	originally 	certified 	by 	PERB. 	The 	Association 	counters 	by
showing 	the 	absence 	of 	this 	exclusionary 	language 	from 	the
recognition 	clause, 	Article 	III 	of 	the 	current 	collective
bargaining 	agreement.
However, 	the 	issue 	of 	whether 	a 	bargaining 	unit may 	be
redefined 	by 	agreement 	between 	the 	parties 	need 	not 	be 	decided
in 	this 	context, 	because 	the 	record 	shows 	that many 	summer
school 	instructors 	are 	members 	of 	the 	District's 	regular
faculty. 	The 	collective 	bargaining 	agreement 	specifically 	sets
forth 	summer 	session 	hourly 	rates 	for 	unit members; 	and 	the
41

testimony 	concerning 	summer 	school 	assignment 	policies
unquestionably 	establishes 	that 	each 	academic department 	gives
its 	faculty 	first 	choice 	of 	summer 	school 	assignments 	before
hiring 	teachers 	who 	are 	not 	regular 	faculty members.
Thus, 	what 	is 	at 	issue here 	is whether 	summer 	school
teaching 	is 	a 	term 	and 	condition of 	employment of 	certificated
employees 	of 	the District within 	the meaning 	of Government Code
section 	3543.2. 	In a recent decision by a four-member 	panel,
PERB 	set 	out 	the 	test 	for 	determining 	whether 	a 	subject 	is
within 	the 	scope 	of 	representation when 	that 	subject 	is 	not
expressly enumerated 	in Section 	3543.2 	of EERA. 	(Anaheim Union
High School District 	(10/28/81) 	PERB Decision No. 	177; 	see
also, 	Palos Verdes 	Peninsula Unified 	School District/Pleasant
Valley School District, 	(7/16/79) 	PERB Decision No. 	96.)
The Board's 	three-pronged 	test first analyzes: 	(1) 	whether
the 	subject 	logically 	and 	reasonably 	relates 	to 	an 	"enumerated"
term and 	condition of 	employment 	in 	the Act; 	next 	(2) 	whether
the 	subject 	is 	of 	such 	concern 	to 	both management 	and 	employees
that a 	conflict 	is 	likely 	to occur 	which 	can 	best 	be 	resolved
in 	the mediatory arena of 	collective 	bargaining; 	and 	(3)
whether 	such 	collective 	bargaining 	would 	significantly 	abridge
the 	employer's 	freedom 	to 	exercise 	those 	managerial
prerogatives, 	relating 	to matters 	of 	fundamental policy 	and
economic 	consideration 	"essential 	to 	the 	achievement 	of 	the
42

[employer's] 	mission". 	(Anaheim Union High School District,
supra at 	pp. 	4-5.)
Thus 	under 	the Board's 	test 	a subject 	first must 	be 	found
to 	be 	logically 	and 	reasonably 	related 	to 	a 	specifically
enumerated 	subject 	of 	bargaining. 	Next 	the 	subject would 	then
be 	analyzed 	to 	determine whether 	it 	is 	amenable 	to 	the
bargaining 	process or 	whether 	the placement of 	the 	subject 	in
the 	bargaining 	arena 	would 	create 	untenable 	restraints 	on 	the
managerial 	need 	for 	unencumbered 	decision-making 	relating 	to
fundamental 	policy 	and 	economic 	considerations. 	A 	similar 	test
has 	been 	endorsed 	by 	the United States Supreme Court 	to
determine 	what 	is 	a mandatory 	subject 	of 	bargaining 	under 	the
National 	Labor 	Relations Act. 	(See First National Maintenance
Corp. v. 	NLRB 	(1981) 	101 S.Ct. 	2573 	[107 LRRM 2705, 	2710-2713];
see also Fiberboard Paper 	Products v. 	NLRB 	(1969) 	379 U.S. 	203
[57 	LRRM 	2609].)
Applying 	this 	test, 	it 	is evident 	that 	extra 	service pay
assignments 	for 	unit members 	are 	closely 	related 	to 	their 	wages
and 	hours of 	employment. 	Teachers 	have 	strong 	interests 	in 	the
ability 	to 	earn 	extra 	compensation 	and 	in 	the 	ability 	to
determine 	if 	they wish 	to work extra hours. 	In addition, 	the
type 	of work 	done 	by 	summer 	school 	instructors 	is 	highly
similar 	to 	that 	done 	by 	instructors 	during 	the 	regular 	academic
year. 	The 	same 	courses 	are 	taught, 	with 	the same
43

pre-requisites, 	as during 	the 	regular 	academic year; 	students
receive 	the 	same 	number 	of 	units 	of 	credit 	and 	the 	same credit
towards 	a degree 	or 	vocational 	license 	as 	from courses 	offered
during 	the 	regular 	year. 	Faculty must 	have 	the 	same
qualifications 	in order 	to 	teach 	summer 	school 	as 	are 	required
for 	courses 	in 	the 	regular 	program, 	and 	summer 	school courses
are 	taught 	by 	the 	same 	faculty 	who 	teach 	during 	the 	regular
academic 	term. 	Many of 	the 	same 	students 	who 	attend 	summer
school 	also 	attend during 	the 	fall 	and 	spring 	semesters;
courses 	taken 	in 	summer 	school 	are 	used 	by 	them as
pre-requisites 	for 	more 	advanced 	courses 	in 	the 	various
academic 	and 	vocational 	programs.
The 	integration 	of 	the District's 	summer 	school program
into 	its 	regular 	curriculum 	is 	further 	evidenced 	by 	the 	fact
that 	the 	same 	regulations 	set 	forth 	in 	the Evening Division
Handbook 	also 	apply 	to summer 	school 	instruction. 	Summer
school 	teaching 	is 	therefore 	the 	same 	type of 	work 	as 	is
ordinarily done 	by 	unit members 	and 	is 	unit work. 	The 	record
reflects 	that 	selection 	for 	summer 	teaching 	assignments 	is made
by rules 	and policies within each department. 	Thus, 	in
addition 	to 	rotation 	amongst 	the 	regular 	teaching 	faculty,
summer 	school 	teaching 	assignments 	are made 	by 	seniority, 	and
other 	considerations 	and 	crediting 	factors 	earned 	by
certificated 	personnel 	during 	the 	regular 	academic year.
44

In 	addition 	to 	their 	close 	similarity 	and 	relationship 	to
teaching 	during 	the 	academic year, 	summer 	school 	teaching
assignments 	are 	arguably 	an 	employee 	benefit 	or 	professional
advantage 	which 	the 	District 	could 	only 	"reduce" 	or 	"eliminate"
following 	negotiations pursuant 	to Article 	XVIII 	of 	the
agreement. 	(See pp. 	7, 	supra, 	and 49-51 	infra.)
While 	teaching 	of 	summer 	school 	courses 	appears 	to
reasonably 	and 	logically 	relate 	to 	regular 	school-year 	teaching
assignments, 	decisions 	regarding 	the offering of 	courses 	are
analytically different. 	At 	issue 	here 	is 	whether 	management
unilaterally 	can make 	the 	decisions 	to 	cancel 	summer 	school
courses, 	to cancel an entire summer 	school session, 	to reduce
the 	kind 	and 	number 	of 	courses 	offered, 	to 	increase 	the minimum
number 	of 	students 	necessary before 	a 	course would 	be 	offered,
and 	to cancel classes 	in advance of 	the first 	session.
It 	is 	concluded 	that 	these decisions 	relate 	to managerial
prerogatives 	derived 	from 	the 	need 	to 	efficiently manage 	the
work 	force 	and make 	policy determinations 	in 	the 	face 	of 	fiscal
changes. 	The overall goal 	to provide 	a district's 	students 	and
constituents 	with 	an 	educational program encompassing 	the 	total
needs 	of 	the 	district's 	student 	body 	must be balances 	against
the 	costs 	of providing 	these programs 	and 	their 	relative
importance 	in 	the 	overall mission of 	the particular 	school
district. 	These 	are considerations which 	inherently belong 	to 	the
45

management 	of 	the 	school 	district. 	(Compare Fibreboard 	Paper
Products Corp. 	v. 	NLRB, 	supra.) 	Conversely, while teachers may
have 	an 	interest 	in 	teaching 	the courses 	offered, 	the decision
whether 	to offer 	courses 	is 	not 	easily 	resolved 	by 	the 	give 	and
take 	of 	collective 	bargaining.
Thus, 	the cancellation of 	summer 	school classes 	is
analogous 	to an 	employer's 	decision 	to close part 	of 	its
business 	for 	financial 	reasons. 	The 	decision as 	to which
classes 	to cancel, 	and on what basis 	is 	therefore a
non-negotiable management prerogative. 	The 	timing 	of 	the
decision 	to cancel 	a class 	is 	similarly non-negotiable. 	The
District 	was 	therefore 	under 	no duty 	to 	bargain with 	the
Association concerning items 	(l)-(4) 	at pp. 	40-41, 	supra.
(Compare, 	First National Maintenance Corp. 	v. 	NLRB, 	supra 107
LRRM 	at 	pp 	2710-2713.)
The 	assignment 	of 	faculty 	to 	the 	classes 	which 	have 	not
been 	cancelled, 	is 	clearly a negotiable 	issue 	for 	several
reasons. 	First, 	the question of which 	faculty are 	assigned 	the
remaining 	classes 	is one of 	the 	chief 	effects 	of 	the 	abolition
of 	summer 	school work 	for 	unit members. 	Second, 	summer
teaching 	assignments 	are 	reasonably 	related 	to wages 	and 	by
past, 	practice, 	were a contractual benefit expected by 	the
faculty. 	Finally, 	the 	allocation of 	work 	among 	similarly
situated 	employees 	is 	not 	a decision which 	legitimately 	need 	be
reserved 	to management control. 	Rather 	the decision 	to assign
46

work 	as 	between 	employees 	traditionally 	has 	been an 	issue
before 	the parties 	at 	the negotiating 	table. 	Thus, 	work
assignments 	are made on 	the 	basis 	of 	education, 	seniority,
training, 	and prior 	experience. 	Such 	questions 	are 	equally of
interest 	to employees as well 	as management.
Mt. 	San Antonio 	faculty members 	had 	traditionally 	been
assigned 	to 	summer 	school 	classes 	on 	the 	basis 	of 	department
policies, 	usually 	involving 	a 	rotation 	system. 	During 	the
weekend 	before 	the 	start 	of 	summer 	school 	classes 	on June 	19,
at 	least 	one 	Division Dean 	deviated 	from 	these 	departmental
policies 	by 	taking 	the 	scheduled 	summer 	classes 	of 	some 	unit
members 	and 	giving 	these 	classes 	to other 	members 	whose 	own
scheduled 	classes 	had 	been 	cancelled. 	While 	these 	changes 	were
made 	for 	the most 	altruistic of motives, 	they were made 	without
consulting the 	Association. 	They 	therefore 	constituted
unilateral 	action 	in 	violation of 	the 	District's 	obligation 	to
bargain 	with 	the Association 	concerning 	the 	effects 	of 	the
class 	cancellation 	and 	deviations 	from past 	assignment
practice. 	Since 	the Association was 	not 	notified 	of 	the 	summer
school cancellations prior 	to 	their 	implementation, 	it was
deprived 	of 	the 	opportunity 	to 	bargain. 	(See NLRB v. 	Royal
Plating and Polishing Co. 	(3d Cir., 	1965) 	350 F.2d 191 	[60 LRRM
2033] .)
It 	is 	therefore 	found 	that 	the 	District 	violated Government
Code 	section 	3543.5(c) 	by 	unilaterally 	taking 	action 	to 	change
47

summer 	school 	teaching 	assignments 	following 	the 	cancellation
of 	summer 	school 	classes 	without 	negotiating with 	the
Association 	concerning 	the 	effects 	of 	the 	cancellations 	and 	the
change 	in 	assignment 	policy and practice.
D. 	The Assignment 	of Overload 	Classes 	to Administrators
Extra 	duty work 	including 	overtime 	and 	other 	subjects 	which
generate 	compensation to 	unit members 	are negotiable. 	Such
extra duties which 	involve 	extra hours, 	extra pay, 	and 	extra
benefits 	bear 	an obvious 	relationship 	to wages 	and 	hours.
(Compare, Anaheim Union High School District, 	supra, 	and Palos
Verdes 	Peninsula 	Unified 	School 	District/Pleasant Valley 	School
District, 	supra.) 	It 	is well 	settled 	that 	the decision to
subcontract 	for 	services 	is within scope, 	as 	it 	relates 	to unit
work and 	therefore, 	the decision 	to subcontract 	is 	negotiable.
Thus 	the 	replacement 	of 	employees 	in 	the 	existing 	bargaining
unit 	with 	non-unit 	employees 	doing 	the 	same work 	is 	a 	statutory
subject 	of 	collective 	bargaining. 	Fibreboard 	Paper 	Products
Corporation v. 	NLRB, 	supra at 241. 	See also Palos Verdes
Peninsula 	Unified 	School 	District/Pleasant 	Valley 	School
District; supra.
In the 	instant 	case, 	the 	contract 	specifically 	states 	that
[A]ny offering 	. 	. 	. 	which is appropriate to
an 	established 	department 	which 	constitutes
an 	overload 	should 	be made 	known 	to 	all
faculty within such department 	. 	. 	. 	and all
qualified 	faculty 	within 	the 	department
shall 	have 	an equal 	opportunity 	for 	such
overload 	assignments. 	(See p. 	4, 	supra.)
48

The 	record 	here 	shows 	that 	the 	past 	practice 	of 	the District
was 	to permit 	each 	department 	to determine 	its 	own 	standards
for 	permitting 	faculty 	to 	bid 	on or 	qualify 	for 	overload
teaching 	assignments.
At 	the June 	29 	meeting, 	the District 	Board 	approved 	the
assignment of 	administrators 	to 	teaching 	positions, 	without
additional compensation, 	for 	the Fall 	semester. 	The 	record
reflects 	that 	two 	certificated 	employees 	lost 	at 	least 	one
overload 	course 	which 	they 	had 	previously 	taught 	and 	requested
to 	teach 	again. 	Although management 	employees 	had 	previously
taught overload 	courses, 	these were 	only courses 	which were 	not
taken 	by 	regular 	faculty 	as 	part 	of 	their 	overload 	assignments.
It 	is 	found 	that 	the 	District 	violated 	section 	3543.4(c)
when 	it 	denied 	overload 	teaching 	assignments 	to 	employees
Martin 	and 	Markham7 and 	instead 	gave 	the 	work 	to 	supervisory
employees. 	The 	assignment 	of 	overload 	teaching 	to 	supervisors
was 	tantamount 	to contracting 	out of 	unit 	work 	and 	subject 	to
the 	negotiation process.
7The 	Association requests, 	for 	a remedy, 	that 	the
District 	give 	it 	additional 	information 	concerning 	other
employees 	who were 	denied 	overload 	teaching 	assignments. 	It 	is
concluded 	that 	this 	information 	is 	and was 	equally 	available 	to
the Association 	through 	its 	members 	and 	accordingly 	this
request 	is denied.
49

E. 	The Assignment 	of Certificated 	Personnel To Classroom
Teaching
Changes 	in 	employment 	which 	require 	additional 	preparation
time or 	reduce 	the 	amount 	of 	available 	preparation 	time
reasonably relate 	to wages 	and 	hours. 	Increases 	in 	the 	amount
of 	time 	required 	to prepare 	for 	certificated 	functions 	can
lengthen 	the 	instructional day, 	can 	impinge on duty-free 	hours,
and 	can 	effectively 	reduce 	salary 	by 	providing 	the 	same
compensation 	for 	increased 	work 	hours 	to prepare 	for
instructional 	obligations. 	Moreover, 	collective 	bargaining 	is
best 	suited 	to 	accommodate 	conflicts 	between 	the 	teachers'
interests 	in 	the 	length 	of 	the 	instructional 	day 	and 	the
district's prerogative 	regarding 	the 	division, 	allocation 	and
assignment 	of 	work 	to accommodate 	the 	needs 	of 	the 	students.
(Compare, 	Anaheim Union High School District, 	supra; 	Palos
Verdes 	Peninsula 	Unified 	School 	District/Pleasant 	Valley 	School
District, 	supra.)
The 	record 	in 	the 	instant 	case 	indicates 	that 	certain
counselors 	and 	librarians 	were 	given 	classroom 	teaching
assignments 	for 	the Fall 	semester 	and 	allowed 	six 	hours of
preparation 	time 	each week. 	While 	both 	counselors 	and
librarians 	had 	taught courses, 	these were 	not 	regular 	academic
courses. 	They did 	not 	involve 	regular 	examinations, 	were
offered 	for 	only one 	hour 	per 	week 	for 	nine weeks 	and were
directly 	related 	to 	the 	employee's 	field 	of 	specialty. 	The
50

courses 	assigned 	for 	the Fall 	semester 	were 	outside 	the 	field
of 	specialty of 	the 	counselors 	and 	librarians 	and 	the 	record
demonstrates 	that 	some 	employees 	spent 	as much 	as 	100 hours 	in
advance 	preparation 	for 	these 	courses.
The 	record 	shows 	that 	the 	District 	rescinded 	the
assignments 	at 	the 	beginning 	of 	the 	Fall 	semester 	and 	all 	but
one 	of 	the 	counselors was 	relieved 	of 	the 	obligation 	to 	teach
any of 	the 	newly 	assigned 	courses. 	This one counselor,
Don Greely, 	was 	assigned 	to coach a 	cross 	country class 	which
met 	for 	one week. 	The 	record 	shows 	this 	class was 	covered 	by 	a
stipend 	in 	the 	contract. 	However, 	Greely never 	applied 	for 	and
never 	received 	any 	portion 	of 	the 	stipend.
It 	is 	found 	that 	the District violated 	3543.5(c) 	by
assigning 	new 	classroom 	teaching 	duties 	and 	preparation 	time 	to
counselors 	and 	librarians 	without 	first 	negotiating 	with 	the
Association. 	These 	assignments 	resulted 	in extra hours 	of 	off
duty preparation 	and were made 	in derogation of 	the 	duty 	to
bargain over 	the 	assignments 	and 	their 	impact. 	Further, 	the
unilateral grant of 	six hours 	of weekly preparation 	time was 	in
derogation of 	the 	duty of 	the 	District 	to 	bargain over 	this
specific 	issue 	of 	preparation 	time 	for 	these courses. 	Ibid.
F. 	Waiver
The 	District 	argues 	that 	except 	for 	the 	four 	enumerated
items 	subject 	to 	the 	reopener 	provisions 	of 	the 	1977-79
51

contract, 	the parties 	agreed 	to conclude 	negotiations 	on
matters 	within 	the 	scope 	of 	representation with 	the 	signing 	of
the 	1977-79 	agreement. 	Relying 	on Article 	XVIII 	of 	the
agreement, 	the District 	contends 	that 	the Association has
"waive[d] 	and 	relinquished] 	the 	right 	to meet 	and 	negotiate
and 	[has 	agreed] 	that 	the District 	shall 	not 	be obligated 	to
meet 	and 	negotiate 	with 	respect 	to 	any 	subject 	except 	as
provided 	in 	the 	reopener 	clauses 	in 	[the] 	agreement 	. . . " 	The
District 	takes 	the 	position 	that 	this 	contractual provision 	is
a 	"zipper" 	clause 	effectively waiving 	any 	right 	to negotiate
concerning matters 	within 	scope 	for 	the 	term of 	the 	agreement.
On 	the 	other 	hand, 	the Association 	relies 	on 	the 	very 	same
contractual provision to support, 	in part, 	its contention that
the 	District 	acted 	unlawfully when 	it 	unilaterally 	changed 	the
method 	of 	making 	summer 	school 	assignments, 	eliminated 	the
availability of 	summer 	school 	courses, 	denied 	certain Faculty
the 	benefit 	of 	teaching 	overload 	courses 	and 	required 	other
certificated 	personnel 	to 	teach 	classroom 	courses 	instead 	of
performing 	their 	customary 	non-classroom 	certificated
functions. 	Thus, 	the Association argues 	that Article XVIII
contains 	a proviso which 	conditions 	the 	closure 	of 	negotiations
on 	the 	District's 	"not 	reducing 	or 	eliminating 	any 	benefit 	or
professional 	advantage 	within 	the 	definition of 	section 	3543.2
of 	the Government Code 	as 	enjoyed 	by 	teachers 	as 	of 	the
52

effective 	date 	of 	this 	agreement 	without 	first 	negotiating 	in
good 	faith 	with 	the 	Association with 	respect 	to 	such 	reduction
or elimination." 	[Emphasis supplied].
With 	regard 	to 	the 	issue 	of 	the 	assignment 	of 	counselors
and 	librarians 	to 	the classroom, 	the District 	additionally
argues 	that 	the 	above-emphasized 	language 	of Article 	18 	reveals
that 	the 	parties 	intended 	to 	restrict 	the 	professional 	benefits
and 	advantages 	to 	teachers 	"in 	that 	other 	provisions 	of 	the
contract 	use 	the 	term 	'unit member 1 ."
PERB 	has 	held 	that waiver 	of 	the 	right 	to 	bargain must 	be
established 	by 	clear 	and 	unmistakable 	language. 	Amador 	Valley
Joint Union High School 	(1978) 	PERB Decision No. 	74. 	PERB will
not 	readily 	infer 	that a 	party 	has 	waived 	its 	rights 	under 	the
EERA. 	Rather, 	waiver 	of 	the 	right 	to bargain must 	be
intentional, 	clear 	and 	unmistakable. 	San Francisco Community
College District, 	supra, 	PERB Decision No. 	105 at pp. 	16-17;
Davis Unified School District, 	supra at p. 	17.
The 	use of 	the 	term 	"teachers" 	in Article XVIII 	of 	the
collective 	bargaining 	agreement 	does 	not 	show 	a 	clear 	and
unmistakable 	intention of 	the 	parties 	to exclude 	counselors 	and
librarians 	from 	the proviso 	to 	the 	"zipper" 	clause. 	Since 	all
or 	almost all of 	the employees 	in 	the 	unit are 	certificated, 	it
is 	equally 	likely 	that 	the 	term 	"teachers" 	was 	intended 	by 	at
least one of 	the parties 	to 	be 	synonymous with 	the 	expression
53

"unit members." 	Thus, 	the District's ancillary argument, 	that
the 	assignment 	of 	counselors 	and 	librarians 	to 	the 	classroom
does 	not 	negate 	the Association's 	waiver 	of 	the 	right 	to
bargain, must fail.
With 	respect 	to 	the 	District's 	chief 	claim: 	that 	the
language 	of Article 	XVIII 	waives 	the Association's 	right 	to
negotiate 	on matters 	within 	scope 	except 	for 	the 	four
specifically 	enumerated 	contract 	reopeners, 	the 	language 	of
Article 	XVIII 	clearly 	and 	unmistakably 	conditions 	the
Association's 	waiver 	of 	the 	right 	to 	bargain on 	the 	District's
forbearance 	from 	reducing 	or 	eliminating 	any 	benefits 	or
professional 	advantages 	within 	the 	definition of 	Government
Code 	section 3543.2. 	It has 	been 	found 	that 	the District
unlawfully 	and 	unilaterally 	reduced, 	abridged 	or 	eliminated 	the
following 	professional 	benefits 	or 	advantages 	within 	scope
which 	were 	enjoyed 	by 	unit members 	as 	of 	the 	effective 	date 	of
the 	agreement: 	the 	right 	to be 	assigned 	to 	summer 	school
classes 	according 	to 	established 	departmental 	policy, 	the 	right
to have 	first 	chance 	at 	overload 	teaching 	assignments 	during
the 	academic 	year, 	and 	the 	right of 	counselors 	and 	librarians
to work 	no more 	than 	their 	assigned 	32 	hours per 	week 	assisting
students 	and 	teaching 	short 	courses 	in 	their 	fields 	of
specialty. 	Since 	the 	District 	did 	reduce 	or 	eliminate 	these
professional 	advantages 	without 	first 	negotiating 	in 	good 	faith
54

with 	trie Association, 	the 	"zipper" 	clause was 	rendered
inoperative. 	There was, 	therefore, 	no waiver 	by the
Association 	of 	its 	right 	to 	bargain 	on matters 	within 	scope.
G. 	The Violation of 	Sections 	3543.5 (a) 	and 	(b)
The District 	argues 	in 	its 	brief 	that 	the Association did
not 	request 	a finding of 	a violation of 	section 3543.5(b).
This 	misstates 	the 	record. 	Charging 	Party merely withdrew
allegations 	of 	independent wrongdoing 	pursuant 	to
section 3543.5(b) 	of 	the Act. 	It 	is well 	settled 	that 	a
violation of 	section 	3543.5(c) 	also constitutes 	a derivative
violation of 	the 	affected 	employees' 	representational 	rights
under 	section 3543.5 (a) 	and 	the Association's 	rights 	under
section 3543.5(b) 	of 	the Educational Employment Relations Act,
San Francisco Community College District, 	supra. 	The
violations of 	section 3543.5(c) 	found above, 	amply 	support a
finding 	of 	these 	derivative 	violations.
REMEDY
Under Government Code 	section 3541.5(c) 	PERB 	is given:
. 	. 	. 	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.
It 	has 	been 	found 	that 	the District 	violated
section 	3543.5(c) 	by 	unilaterally adopting 	a 	resolution which
55

purported 	to 	take 	action 	to 	freeze 	unit member's 	salaries 	and
the 	dollar 	amount of 	the District's 	contributions 	to 	their
health 	and welfare 	benefits, 	and 	to 	increase 	their 	teaching
hours 	and 	class 	size; 	by 	unilaterally assigning 	unit work 	to
administrators, 	by 	unilaterally changing 	the procedures 	for
assigning 	unit members 	to 	summer 	school 	classes 	and 	by
unilaterally 	assigning 	classroom 	courses 	and 	preparation 	time
to 	non-teaching 	faculty. 	The 	violation 	of 	section 	3543.5(c)
also violated 	the 	employee's 	right 	to participate 	in 	employee
organizations pursuant 	to section 3543.5 (a) 	and 	the
Association's 	right 	to represent 	unit members 	in 	their
employment 	relations 	with 	the 	District pursuant 	to
section 3543.5(b).
It 	is 	appropriate 	to order 	the District 	to cease 	and 	desist
from 	unilaterally 	adopting 	a 	resolution which 	purports 	to
freeze 	salaries 	and District 	contributions 	to 	health 	and
welfare 	benefits 	and 	to 	increase 	teaching 	hours 	and 	class 	size,
from unilaterally assigning 	unit work 	to 	administrators, 	from
unilaterally 	changing 	the 	pre-existing 	procedures 	for 	assigning
unit members 	to 	summer 	school classes, 	and 	from unilaterally
assigning 	classroom 	courses 	and 	preparation 	time 	to
non-teaching 	faculty.
It 	is 	also appropriate 	to order 	the District 	to 	bargain
with 	the Association, 	upon request, 	concerning 	all 	those
56

matters 	with 	respect 	to which 	it made 	unilateral 	changes 	and 	to
restore 	any 	benefits 	lost 	by virtue of 	its 	unilateral 	actions,
if 	requested 	to do so by 	the Association. 	It 	is appropriate
that 	the 	decision concerning 	the matters 	desired 	to 	be
negotiated and 	the benefits, 	if any, 	to be restored, 	be 	that of
the Association 	in 	the context 	of 	its 	current 	contractual 	and
bargaining 	relationship with 	the 	District. 	This 	flexibility 	is
in 	accordance 	with 	the opinion of 	the 	Board 	in 	Sutter 	Union
High School District 	(10/7/81) 	PERB Decision No. 	175 at pp. 	7-8.
It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to
post a 	notice 	incorporating 	the 	terms 	of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a notice
will 	provide 	employees with 	notice 	that 	the District has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from this 	activity. 	It effectuates 	the purposes of 	the EERA
that 	employees 	be 	informed 	of 	the 	resolution of 	the 	controversy
and 	will 	announce 	the District's 	readiness 	to 	comply with 	the
order 	remedy. 	See 	Placerville Union 	School 	District 	(9/18/78)
PERB Decision No. 	69. 	In Pandol 	and Sons v. 	ALRB and UFW
57

(1979) 	98 Cal.App.3d 580, 	587, 	the California District Court of
Appeal 	approved 	a posting 	requirement. 	The U.S. 	Supreme Court
approved 	a 	similar 	posting 	requirement 	in NLRB v. 	Express
-
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to 	section
3541.5(c), 	it is hereby ordered that the Mt. 	San Antonio
College District, 	its 	governing 	board 	and 	its 	representatives
in Unfair 	Practice Charge No. 	LA-CE-350 	have violated
Government Code sections 3543.5(a), 	(b) 	and 	(c) 	and shall:
1. 	CEASE AND DESIST FROM:
(a) 	Refusing to negotiate 	in good 	faith with 	the
exclusive 	representative, 	Mt. 	San Antonio Faculty
Association/CTA/NEA, 	under 	the Educational Employment 	Relations
Act 	by 	unilaterally 	adopting 	a 	resolution 	which 	purports 	to
take 	action 	to 	freeze 	salaries 	and 	District 	contributions 	to
employees' 	health 	and welfare 	benefits 	and 	to 	increase 	teaching
hours 	and class 	size, 	by 	unilaterally 	changing 	the 	pre-existing
procedures 	for 	assigning 	unit members 	to 	summer 	school 	classes,
by 	unilaterally 	assigning 	unit work 	to administrators, 	and 	by
unilaterally 	assigning 	classroom 	courses 	and 	preparation 	time
to 	non-teaching 	faculty.
58

(b) 	Interfering 	with 	employee 	rights 	under 	the
Educational 	Employment 	Relations 	Act 	by 	unilaterally 	adopting 	a
resolution 	which 	purports 	to 	take 	action 	to 	freeze 	salaries 	and
District 	contributions 	to 	employees' 	health 	and 	welfare
benefits 	and 	to 	increase 	teaching 	hours 	and 	class 	size, 	by
unilaterally 	changing 	the 	pre-existing 	procedures 	for 	assigning
unit 	members 	to 	summer 	school 	classes, 	by 	unilaterally
assigning 	unit 	work 	to 	administrators, 	and 	by 	unilaterally
assigning 	classroom 	courses 	and 	preparation 	time 	to
non-teaching 	faculty.
(c) 	Interfering 	with 	employee 	organization 	rights
under 	the 	Educational 	Employment 	Relations 	Act 	by 	unilaterally
adopting 	a 	resolution 	which 	purports 	to 	take 	action 	to 	freeze
salaries 	and District 	contributions 	to 	employees' 	health 	and
welfare 	benefits 	and 	to 	increase 	teaching 	hours 	and 	class 	size,
by 	unilaterally 	changing 	the 	pre-existing 	procedures 	for
assigning 	unit members 	to 	summer 	school 	classes, 	by
unilaterally 	assigning 	unit 	work 	to 	administrators, 	and 	by
unilaterally 	assigning 	classroom 	courses 	and 	preparation 	time
to 	non-teaching 	faculty.
59

2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT.
(a) 	Upon 	request 	of 	the Association, 	bargain
concerning 	all 	matters 	which 	the 	District 	unilaterally 	changed
and 	restore 	any 	benefits 	lost 	by 	virtue 	of 	its 	unlawful
unilateral 	actions.
(b) 	Within 	five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays 	at 	its 	headquarters 	offices 	and 	in 	conspicuous
places 	at 	the 	location 	where 	notices 	to 	certificated 	employees
are 	customarily 	posted. 	It must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any material.
(c) 	Within 	twenty 	(20) 	workdays 	from 	service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
Los 	Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board, 	of 	the 	actions 	taken 	to 	comply 	with 	this
order. 	Continue 	to 	report 	in writing 	to 	the 	Regional 	Director
thereafter 	as 	directed. 	All 	reports 	to 	the 	Regional 	Director
shall 	be 	concurrently 	served 	on 	the 	charging 	party 	herein.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed Decision 	and Order 	shall
become 	final on February 	25, 	1982, 	unless 	a party 	files 	a
60

timely 	statement 	of 	exceptions. 	See California Administrative
Code, 	title 8, part III, 	section 32300. 	Such statement of
exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the 	Board 	at 	the 	headquarters 	office
of 	the 	Public Employment Relations Board 	in Sacramento 	before
the close of 	business 	(5:00 p.m.) 	on February 25, 	1982, 	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 	itself. 	See California
Administrative Code, 	title 8, part III, 	sections 32300 and
32305 	as 	amended.
DATED: 	February 5, 	1982
Stephen H. 	Naiman
Administrative 	Law 	Judge
61