Arvin Union School District (PERB 0300E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ARVIN ELEMENTARY TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
ARVIN 	UNION SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1294
PERB Decision No. 	300
March 30, 	1983
Appearances; 	Charles R. 	Gustafson, Attorney for Arvin
Elementary Teachers Association, 	CTA/NEA; 	and Frank V. 	Fekete
Attorney 	(Schools Legal Service) 	for Arvin Union School
District.
Before Gluck, Chairperson; 	Tovar and Burt, Members.
DECISION
TOVAR, Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed 	by 	the
Arvin Union School District 	(District) 	to 	the 	hearing officer's
proposed 	decision. 	In 	that 	proposed 	decision, 	the 	hearing
officer 	concluded 	that 	a procedure 	for 	certificated 	employee
discipline 	short 	of 	dismissal 	(the Policy) 	is 	a subject within
the 	scope 	of 	representation 	and 	the District's 	failure 	to
negotiate 	such 	a 	procedure 	with 	the 	exclusive 	representative 	of
the 	certificated 	employees, 	the Arvin Elementary Teachers
Association, CTA/NEA 	(Association), 	constitutes a violation of
subsection 	3543.5(c). 	Further, 	the hearing officer 	found 	that
the Association did 	not waive 	its 	right 	to 	such 	negotiations
)
)
)
)
)
)
)
)
)
)
_______________ )

and 	concluded 	that 	the District 	violated 	subsections 	3543.5(a),
(b) 	and 	(c) 	of 	the Educational Employment Relations Act1
(EERA or 	the Act). 	The 	hearing officer's proposed 	decision 	is
incorporated 	by 	reference 	herein.
The Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of 	the
District's 	exceptions 	and 	adopts 	the 	hearing 	officer's 	findings
of 	fact 	as 	free 	from prejudicial 	error. 	We 	also 	adopt 	his
conclusions 	of 	law 	insofar 	as 	they 	are 	consistent 	with 	this
Decision.
DISCUSSION
The District 	asserts 	it 	has 	the 	inherent 	authority 	to
impose 	discipline 	short of dismissal and 	that 	since 	1976, 	it
along 	with all 	other 	California 	school 	districts, 	has 	enjoyed
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	specified, 	all 	references 	shall be 	to
the Government 	Code.
Subsections 3543.5(a), 	(b) 	and 	(c) 	provide as follows:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
22

the 	power 	to discipline 	through 	the 	provision 	of Education Code
section 35160. 	That 	section states 	that:
. 	. 	. 	the governing board of any school
district may 	initiate 	and 	carry 	on 	any
program, 	activity, 	or may otherwise act 	in
any manner 	which 	is 	not 	in 	conflict 	with or
inconsistent with, 	or preempted 	by, 	any law
which 	is 	not 	in 	conflict 	with 	the purposes
for 	which 	school 	districts 	are 	established.
We 	acknowledge 	the District's 	inherent 	right 	to
discipline. 	However, 	there 	is no conflict 	in the 	interface 	of
this 	education 	code 	section 	and 	the 	scope 	of 	negotiations
provision 	under EERA. 	Finding 	that 	a subject 	is within 	the
scope of 	negotiations 	does 	not 	deprive 	the District 	of 	its
ultimate 	authority to discipline. 	It only means 	that 	the
District 	has 	an 	obligation 	to 	negotiate 	in 	good 	faith prior 	to
the 	adoption 	and 	implementation 	of 	such 	a policy.
The District 	contends 	that 	the Policy 	at 	issue 	in 	the
instant 	case 	is 	a subject which 	is 	outside 	the 	scope of
negotiations, 	and 	that 	it was 	therefore 	free 	to unilaterally
adopt and 	implement 	it. 	The 	scope 	of 	negotiations 	is 	defined
at 	section 	3543.2 	of EERA.2 In Anaheim Union High School
2Section 	3543.2 provides 	as 	follows:
(a) 	The 	scope of 	representation shall 	be
limited 	to matters 	relating 	to wages, 	hours
of 	employment, 	and other 	terms 	and
conditions 	of employment. 	"Terms 	and
conditions 	of 	employment" 	mean 	health 	and
welfare 	benefits 	as 	defined 	by Section
53200, 	leave, 	transfer and reassignment
33

District 	(10/28/81) 	PERB Decision No. 	177,3 the Board
articulated 	a 	test 	to 	be 	applied 	in 	determining 	whether 	a
particular 	matter 	is 	within 	the 	statutory 	scope 	of
negotiation. 	That 	test provides 	that a 	subject 	is 	negotiable
if 	it 	first 	logically and 	reasonably relates 	to wages, 	hours or
one of 	the 	enumerated 	terms 	and 	conditions 	of 	employment. 	If
this 	threshold 	test 	is met, 	the proposal will 	be 	analyzed 	in
policies, 	safety conditions of 	employment,
class 	size, 	procedures 	to be used 	for 	the
evaluation of employees, 	organizational
security pursuant 	to Section 	3546,
procedures 	for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
the 	right 	to consult 	on 	the 	definition 	of
educational objectives, 	the determination of
the content of 	courses 	and curriculum, 	and
the 	selection of 	textbooks 	to 	the 	extent
such matters 	are 	within 	the 	discretion 	of
the 	public 	school 	employer 	under 	the 	law.
All 	matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school 	employer 	and
may 	not 	be 	a 	subject 	of meeting 	and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right 	of 	the
public 	school 	employer 	to 	consult 	with 	any
employees 	or 	employee 	organization 	on 	any
matter 	outside 	the 	scope 	of 	representation.
3The 	hearing 	officer 	and 	the 	parties 	refer 	to 	the Board's
scope 	test 	enunciated 	in Healdsburg 	Union High 	School 	District
(6/19/80) 	PERB Decision No. 	132. 	This case 	is currently on
appeal. 	See Cal. Supreme Court, Docket No. 	82-W-0077, 	(1 Civil
50199).
4
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
4

terms of 	1) 	its degree of 	concern 	to 	the 	employees 	and 	the
employer, 	2) 	the 	suitability of 	the negotiating process 	as 	a
means of 	resolving 	the dispute 	and 	3) 	whether 	the 	employer's
obligation 	to 	negotiate 	would 	significantly 	abridge 	its
managerial 	prerogatives.
In 	the 	instant case, 	the Policy 	in question contemplates
imposition 	of 	fines 	and 	suspension 	without 	pay. 	Obviously,
imposition of 	a 	fine 	directly affects 	wages, 	and 	a suspension
without pay directly affects 	both hours 	and wages. 	Thus, 	the
threshold 	test 	of 	negotiability 	is 	met.
The District 	concedes 	that 	the Policy 	has 	an 	impact 	upon
wages 	and 	hours, 	but contends 	that 	it 	is merely an 	"incidental"
impact 	because 	the 	penalties 	imposed 	are 	not permanent.
Clearly, 	a fine 	is a permanent reduction 	in wages, 	and a
suspension 	without 	pay 	permanently 	deprives 	employees 	of 	both
wages and hours. 	In addition, 	a finding, 	per Anaheim, 	that a
matter 	bears 	a 	logical 	and 	reasonable 	relationship 	to
enumerated 	subjects 	does 	not 	turn 	on 	whether 	the matter
"permanently" 	affects 	an 	enumerated 	item.
Having 	found 	that 	the 	disciplinary 	policy 	affects
enumerated 	items 	within 	scope, 	we must 	next 	evaluate 	the
proposal 	in 	light of 	the 	other 	standards 	set 	out 	in 	the Anaheim
test.
The 	subject of discipline 	is 	one 	of 	great 	concern 	to
employees 	and management 	alike 	because 	it 	impacts on wages,
55

hours 	and 	benefits, 	and 	because 	such 	a policy sets 	the
standards of 	behavior 	at 	the work site. 	It 	is 	also one 	of 	the
ways 	in 	which 	the District may 	be 	assured 	of 	keeping order 	and
running 	an 	effective 	and 	professional program.
The 	subject 	of 	discipline 	is 	one 	with 	a great potential 	for
conflict 	since 	the 	imposition 	of 	discipline 	presumes 	a
confrontation 	between 	employer 	and 	employee. 	Collective
negotiations 	regarding 	procedures 	for 	discipline 	provides 	a
mediatory 	influence 	and 	a 	forum 	for 	conflict 	resolution. 	It
also provides 	the 	employees 	with 	an 	opportunity 	to 	assure 	that
the 	disciplinary 	criteria 	and 	procedures 	are 	fair.
We do 	not 	find 	that 	the 	unique 	value 	of 	collective
negotiations 	for 	formulation 	of 	criteria 	and procedures 	for
discipline 	is 	outweighed 	by 	the 	extent 	to which 	such 	a
requirement 	would 	abridge 	the 	District's 	freedom 	to 	exercise
managerial prerogatives. 	The 	District would maintain 	its
inherent 	right 	to 	initiate 	discipline 	and 	retain 	the 	authority
to 	determine 	the 	manner 	in which 	a 	negotiated 	disciplinary
policy would 	be 	applied 	to a particular 	situation. 	In
addition, 	the 	obligation 	to negotiate 	such 	an 	issue 	would not
interfere 	unduly 	with 	the District's 	achievement 	of 	its
educational mission.
In San 	Bernardino 	City Unified 	School 	District 	(10/29/82)
PERB Decision No. 	255, 	at p. 	11, 	we held 	that 	" . . . 	rules of
conduct 	which 	subject 	employees 	to 	disciplinary 	action 	are
66

subject 	to 	negotiation 	both 	as 	to criteria 	for 	discipline 	and
as 	to procedure 	to 	be 	followed. 	The 	unilateral 	adoption 	of
such 	rules 	therefore 	violates 	the 	employer's 	duty 	to 	notify 	the
exclusive 	representative 	and 	provide 	it 	with 	an 	opportunity 	to
negotiate."
The 	holding 	that 	disciplinary procedures 	are 	within 	scope
is 	in 	accord 	with 	established 	precedent 	under 	the National
Labor Relations Act. 	See Peerless Publications, 	Inc. 	(1977)
231 NLRB 244 	[95 LRRM 1611]; Alfred M. Lewis, 	Inc. 	(1977) 	229
NLRB 757 	[95 LRRM 1216]; 	Schraffts Candy Co. 	(1979) 	244 NLRB
No. 	89, 	[102 LRRM 1274].
For 	the 	aforementioned 	reasons 	we 	conclude 	that 	the 	Policy
is 	within 	the 	scope of 	negotiations.
The 	District contends 	that Healdsburg, 	supra, 	which held
that procedures 	for 	discipline 	are within scope, 	is
distinguishable 	because 	the 	unit 	in 	that 	case 	was 	composed 	of
classified 	employees 	whereas 	the 	instant 	case 	deals 	with
certificated 	employees. 	This 	contention 	is 	not 	persuasive.
The District 	has 	failed 	to 	demonstrate 	any 	factors 	peculiar 	to
classified 	employees 	which 	would 	render 	the 	decision 	that
disciplinary 	procedures 	are 	within 	scope 	inapplicable 	to
certificated 	employees. 	The Board's decision 	in Healdsburg 	is
based on 	an 	analysis 	of 	the 	scope 	of 	representation language 	of
the Act 	in 	relation 	to 	the 	proposed 	disciplinary procedure 	and
not 	on 	any 	employment 	trait 	associated 	exclusively 	with
77

classified 	employees. 	As 	noted 	above, 	the Board 	recently held
disciplinary procedures 	to 	be within 	scope 	in 	a case 	dealing
with 	certificated 	employees. 	San Bernardino City Unified
School District, 	supra.
The District 	further 	contends 	that AB 	777 	(Chapter 	100,
Statutes 	of 	1981),4 which 	amended 	the 	scope 	language 	of
subsection 	3543.2 	to 	expressly 	include 	causes 	and 	procedures
for 	disciplinary action 	short of dismissal, 	is 	an 	indication
that 	the Legislature 	did 	not 	intend 	for 	such matters 	to 	be
within 	scope prior 	to 	the 	effective 	date 	of 	that 	legislation,
January 1, 	1982. 	The District argues 	that, 	when 	the
Legislature 	added 	the 	new 	enumerated 	subjects 	to 	the 	scope
section, 	it meant 	that 	those new subjects were outside 	scope
prior 	to 	the 	amendment.
4AB 	777 	adds 	the 	following 	to 	the 	scope 	of 	representation
language 	in Government Code 	section 	3543.2.
(b) 	Notwithstanding Section 44944 	of 	the
Education Code, 	the public 	school 	employer
and 	the 	exclusive 	representative 	shall 	meet
and 	negotiate 	regarding 	causes 	and
procedures 	for 	disciplinary 	action, 	other
than dismissal, 	affecting 	certificated
employees. 	If 	the public 	school employer
and 	the 	exclusive 	representative 	do 	not
reach mutual agreement, 	then 	the provisions
of 	section 44944 	of 	the Education Code 	shall
prevail.
AB 	61 	(Chapter 	1093), 	further 	amended AB777 	to provide 	that
negotiation 	on 	causes 	and 	procedures 	for 	dismissal 	need 	only
take place 	on 	request of 	either 	the 	employer 	or 	employees.
88

The 	addition of 	a 	new enumerated 	subject 	to 	the 	scope
section 	doesn't mean 	such 	a 	subject 	was 	not 	previously 	related
to 	an enumerated 	item. 	The 	change 	in 	the 	law means 	that 	the
-
negotiability 	of 	specific procedures 	for 	disciplinary 	action
arising 	after January 1, 	1982 	no 	longer 	need 	be 	analyzed 	in
terms 	of 	the Anaheim 	balancing 	test. 	We 	apply our Anaheim 	test
to 	analyze 	those 	items 	which 	were 	not 	enumerated 	prior 	to 	the
effective 	date 	of 	the 	legislation, 	or 	which 	are 	not 	currently
enumerated, 	but 	which may 	be 	related 	to 	an 	enumerated 	item
within 	the 	scope 	of 	representation.
Waiver 	Argument
The 	District 	asserts 	that 	the Association 	has 	waived 	its
right 	to negotiate 	regarding 	the 	adoption of 	the Policy. 	This
contention 	is 	also 	rejected.
Current PERB 	and NLRB precedent 	support 	the 	hearing
officer's 	finding 	that 	an 	exclusive 	representative's 	waiver 	of
the 	right 	to negotiate must 	be 	"clear 	and 	unmistakable." 	In
San Mateo County Community College District 	(6/8/79) 	PERB
Decision No. 	94 	at p. 	22 	the Board 	held that, 	for 	an employer
to show 	that a 	union waived 	its 	right 	to negotiate, 	it must
demonstrate:
. 	. 	.either 	clear 	and 	unmistakable
language, 	Amador Valley Joint Union High
School District 	(citation), 	or demonstrative
behavior 	waiving 	a 	reasonable 	opportunity 	to
bargain over 	a decision 	not 	already 	firmly
made 	by 	the 	employer. 	[citations.]
(Emphasis 	added.)
99

In accord, 	see Harrison Manufacturing v. 	UAW 	(1980) 	253
NLRB No. 	97 	[106 LRRM 1021]; 	NLRB v. 	Cone Mills 	(4th Cir. 	1967)
373 F.2d 	595 	[64 LRRM 2536]; 	Caravelle Boat 	(1977) 	227 NLRB
No. 	162 	[95 	LRRM 1003].
In 	the 	instant 	case 	the 	certificated 	employees 	came 	back
for 	orientation during 	the week 	of August 25-29, 	1980. 	The
governing 	board 	of 	the District 	had 	its 	"first 	reading" 	of 	the
Policy on August 	6, 	1980. 	The only way 	the District 	gave
notice of 	the meeting was 	to post 	the 	agenda 	at 	various 	school
locations. 	This 	general publication of 	the 	board 	agenda does
not 	constitute 	effective 	notice 	to 	the 	exclusive 	representative
of proposed 	changes 	in scope matters. 	It was also not 	the
practice 	for 	the Association 	to 	attend 	board meetings 	unless 	it
was 	aware of 	items of special 	concern to 	its members. 	Mr. 	Mark
Salvaggio, 	the president of 	the Association, 	could 	not 	recall
exactly when 	he 	first 	received 	the minutes 	of 	the August 	6
special 	board meeting. 	The 	evidence 	indicates 	the 	earliest 	he
might have 	had 	actual notice 	of 	the minutes was August 	13, 	when
the 	District 	and 	the Association met 	at 	the Association's
offices 	for 	a mediation 	session. 	However, 	he did 	testify 	that
he 	certainly had 	the minutes 	of 	the August 	6 meeting 	as 	of
August 	22, 	when 	the 	parties 	had a subsequent mediation
session. 	The 	governing 	board 	adopted 	the 	proposed 	discipline
procedure, Policy 5.117, 	at 	its meeting on August 21, 	1980.5
5John Davis, 	the District 	superintendent, 	testified 	that
10

The District 	argues Mr. 	Salvaggio 	had 	an opportunity 	to
comment 	on 	the Policy 	at 	the 	mediation 	session 	held 	between 	the
Association 	and 	the District on August 	22 	if 	not 	earlier.
While this might be 	true, 	it 	is 	irrelevant 	to a determination
as 	to whether 	the 	right 	to negotiate 	prior 	to a policy's
adoption 	has 	been 	waived.
The Association's 	failure 	to protest 	the 	adoption 	of 	the
disciplinary procedure 	until 	December 	306 does 	not 	constitute
a waiver, 	because 	the Association did 	not 	have 	a 	reasonable
opportunity 	to 	negotiate 	prior 	to 	the 	adoption 	of 	the Policy.
It 	would 	have 	been futile 	for 	the Association 	to 	request
negotiations 	after 	adoption 	of 	the 	policy 	on August 	21.7
San Mateo Community College District, 	supra.
the 	notice 	for 	regular 	board meetings 	is posted 	48 	hours 	in
advance 	at 	the District office 	and special meetings, 	24 	hours
in advance, 	also at 	the District office. 	He 	indicated 	that 	the
board 	has 	a 	policy 	that 	it must 	have 	a 	first 	reading of 	any
policy at 	a 	separate 	board meeting prior 	to 	its 	adoption.
6Mr. 	Salvaggio 	objected 	to 	the 	District 	about 	the 	policy
at 	a December 	30th 	meeting 	he 	had 	with District Superintendent
John Davis, 	after 	Salvaggio 	learned 	that 	the policy was 	to 	be
applied 	to an 	employee. 	Mr. 	Davis 	testified 	that 	at 	that
meeting 	Salvaggio 	said he 	[Salvaggio] 	"felt 	it was 	an unfair
labor 	practice 	because 	we 	had 	adopted 	it 	unilaterally."
7The Policy 	itself 	bears 	the 	date 	"6/80" 	on 	the 	bottom of
the page. 	Even 	if 	we 	assume 	that Mr. 	Salvaggio had 	actual
notice of 	the minutes 	as 	of August 	13, 	the 	earliest 	he 	could
have 	received 	a 	copy, 	we 	still 	do 	not 	find 	that 	the 	failure 	to
demand 	negotiations 	for 	eight 	days 	constituted 	a 	sufficient
failure of vigilance 	to constitute a waiver. 	In addition, 	the
charge 	was 	filed 	within 	the 	six-month 	statute 	of 	limitations
applicable 	to 	unfair 	labor 	practices 	under 	the Act. 	See
subsection 3541.5(a)(1).
11

Request 	for 	Oral Argument
The 	District 	requests 	an 	opportunity 	to present 	oral
argument 	before 	the Board. 	The 	only argument 	it 	cites 	in
support 	of 	such 	a 	request 	is 	that 	a decision 	by 	the Board 	that
there 	was 	no mandatory 	duty 	to 	negotiate 	on 	this 	subject 	prior
to January 	1, 	1982, 	will 	not 	harm 	the 	interests 	of 	those who
seek 	to negotiate 	this 	subject after January 1, 	1982, 	but 	a
contrary decision will 	do 	"wholesale 	violence 	to 	the 	structure
and 	purpose 	of 	the Rodda Act 	and 	collective 	bargaining."
We deny 	the 	District's 	request. 	The Board 	has 	conducted 	a
full 	and 	fair 	hearing. 	The 	parties 	have 	had 	extensive
opportunity 	to present 	briefs 	in support of 	their 	arguments,
and 	have 	availed 	themselves 	of 	that opportunity. 	The Board
finds 	the 	issues 	and 	evidence 	sufficiently 	clear 	and 	complete
to 	render 	oral 	argument 	unnecessary.
The 	District 	did 	not 	except 	to 	the 	hearing 	officer's
proposed 	remedy. 	We 	hereby 	affirm 	the 	remedy.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3541.5, 	it 	is 	hereby ORDERED 	that 	the Arvin Union
School District 	and 	its 	representatives 	shall:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Violating 	subsection 	3543.5(c) 	by 	refusing 	to
negotiate 	in 	good 	faith 	with 	the 	exclusive 	representative,
12

Arvin Elementary Teachers Association, 	by 	unilaterally 	adopting
a 	new policy on 	certificated 	employee 	discipline 	that 	is 	within
the 	scope 	of 	representation 	under 	the Educational Employment
Relations Act.
2. 	Violating 	subsection 	3543.5(a) 	by 	interfering 	with
employee 	rights 	under 	the Educational Employment 	Relations Act
by 	unilaterally 	adopting 	a 	new 	policy 	on 	certificated 	employee
discipline 	that 	is 	within 	the 	scope 	of 	representation 	under 	the
Educational Employment 	Relations Act.
3. 	Violating 	subsection 	3543.5(b) 	by 	interfering 	with
employee 	organization 	rights 	under 	the Educational Employment
Relations Act 	by 	unilaterally 	adopting 	a 	new policy 	on
certificated 	employee 	discipline 	that 	is 	within 	the 	scope 	of
representation 	under 	the Educational Employment 	Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION WHICH 	IS
NECESSARY TO EFFECTUATE 	THE 	POLICIES 	OF 	THE EDUCATIONAL
EMPLOYMENT 	RELATIONS ACT:
1. 	Rescind 	District Policy 	5.117 	- 	Certificated
Discipline Short of Dismissal, 	adopted August 21, 	1980.
2. 	Restore 	to 	any certificated 	employee(s) 	all 	salary,
rights 	and 	privileges 	such 	employee(s) 	would 	have 	earned 	but
for 	the 	implementation of District Policy 	5.117 	(8/21/80). 	Any
such 	retroactive 	salary 	shall 	be 	accompanied 	by 	interest 	at 	a
7 	percent 	per 	annum 	rate.
3. 	Delete 	all 	references 	to 	any 	attempted 	disciplinary
action(s) 	from all District 	records, 	including 	but 	not 	limited
13

to, 	the 	affected 	employee(s) 	personnel 	records 	relating 	to any
disciplinary 	action 	implemented 	or 	initiated 	pursuant 	to
District Policy 5.117 	(8/21/80).
C. 	Within 	five 	(5) 	workdays 	after 	the 	date 	of 	service 	of
this Decision, 	prepare 	and 	post copies of 	the Notice To
Employees 	attached 	as 	an 	appendix hereto, 	signed 	by 	an
authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	at 	least 	thirty 	(30) 	consecutive 	workdays 	at 	all
work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed. 	Such Notice must 	not 	be 	reduced 	in 	size 	and 	reasonable
steps 	shall 	be 	taken 	to 	ensure 	that 	they 	are 	not 	defaced,
altered 	or 	covered 	by 	any material.
D. 	Within 	twenty 	(20) 	workdays 	from service of 	this
Decision, 	notify 	the Los Angeles 	regional director 	of 	the
Public Employment Relations Board, 	in writing, 	of 	the 	steps
taken 	to 	comply with 	this 	Order.
Member Burt 	joined 	in 	this Decision.
Chairperson Gluck's Concurrence 	and Dissent 	begins 	on page 	15,
14

Gluck, 	Chairperson, 	concurring and dissenting: 	I find
difficulty 	in 	reconciling 	the 	majority's 	conclusions 	that 	an
employer 	has 	the 	"inherent 	right" 	and 	"ultimate 	authority" 	to
impose 	discipline 	and 	"determine 	the 	manner 	in which 	a
negotiated 	disciplinary policy would 	be 	applied" 	but must
nevertheless 	negotiate 	its 	proposed 	policy.
As 	I 	see 	it, 	the 	employer's 	legitimate 	interest 	in assuring
the 	orderly 	processing 	of 	its 	day-to-day operations 	does 	not
endow 	it, 	in pursuit of that objective, 	with 	the unilateral
power 	to modify the 	employees' 	wages, 	hours or working
conditions. 	Here, 	the District's disciplinary policy
incorporating 	suspension 	from 	employment 	directly 	modifies 	the
employees' 	wages and hours. 	It cannot 	be single-handedly
imposed.1
The 	District's 	argument 	that 	Education 	Code 	section 	35160
relieves 	it 	of 	the obligation 	to 	negotiate 	on discipline,
misconceives 	the 	supersession 	requirement. 	As 	PERB has
repeatedly 	held, 	a 	subject 	otherwise 	meeting 	the Anaheim 	test
of 	negotiability will 	be 	found 	nonnegotiable 	where 	an 	immutable
and 	contravening 	Education 	Code 	provision 	precludes 	the
employer 	from exercising 	its 	discretion 	with 	respect 	to 	a
pertinent 	proposal.2
1Government 	Code 	section 	3543.2.
2Healdsburg 	Union High 	School District, 	supra; 	Jefferson
School District 	(6/19/80) 	PERB Decision No. 	133; 	San Bernardino
Unified School District, 	supra.
15

The 	Code 	section on which 	the 	District 	relies 	makes 	it
clear 	that 	this 	constraint does 	not 	exist. 	It 	reads 	in
pertinent part:
. 	. 	. 	the governing board 	. 	. 	. may initiate
and 	carry on 	any program, 	activity, 	or may
otherwise 	act 	in any manner 	which 	is 	not 	in
conflict 	with 	. . . 	or 	preempted 	by, 	any 	law
and 	which 	is 	not 	in conflict with 	the
purposes 	for 	which 	school districts 	are
established.
Certainly, 	EERA 	is 	not 	a law 	which 	conflicts 	with 	such
purposes. 	Indeed, 	its 	very 	thrust 	is 	the preemption of
unilateral 	school 	board 	power 	by 	the 	bilateral process 	of
negotiations 	as 	to 	those matters 	the Legislature 	has 	chosen 	to
place 	within 	scope.
The 	provision 	for 	disciplinary fines; 	I 	find 	this
provision of 	the 	policy 	particularly problematical. 	The 	policy
is 	remarkably vague, 	shedding 	no 	light on 	the 	grounds 	for 	or
nature 	of 	such disciplinary 	action. 	Are 	they 	intended 	as
punitive 	assessments 	against 	some 	undefined 	employee 	conduct
which 	the District 	considers 	objectionable? 	Are 	they meant 	to
recover 	for 	the District 	losses 	it 	sustains 	as 	a result of
employee misconduct, 	much 	in 	the 	nature of 	compensatory damages
or 	valid offsets 	against 	wages?3 	Are 	the 	fine 	amounts 	to 	be
3See 	Kerr's 	Catering 	Service 	v. 	Department 	of 	Industrial
Relations 	(1962) 	57 Cal.2d 	319, 	upholding 	respondent's 	ruling
that 	the 	employer's 	recoupment 	of 	daily 	breakage 	losses 	from
employee 	commissions 	was 	illegal 	absent 	employee 	negligence 	or
wrongdoing 	resulting 	in 	the 	losses.
16

fixed 	and 	certain or 	to 	be 	arbitrarily 	assessed 	by 	the District
on an ad 	hoc 	basis? 	Absent 	answers 	to 	these questions, 	the
negotiability of 	this 	aspect 	of 	the 	policy - 	indeed, 	the
legality of 	such 	a provision4 	- 	cannot 	be 	determined.5
Section 	221 	of 	the California Labor Code provides:
It 	shall 	be 	unlawful 	for 	any employer 	to
collect 	or 	receive 	from 	an 	employee 	any part
of 	wages 	theretofore 	paid 	by 	said 	employer
to 	said 	employee.6
In Shalz v. 	Union High School District 	(1943) 	58 	Cal.App.2d
599, 	606, 	the court, 	in considering Labor Code section 224,
which permits 	certain 	employer 	deductions 	from 	wages 	pursuant
to written agreement of 	the 	employee, 	stated:
The purpose 	and 	intent 	of 	the Act 	is plain
and 	its 	object 	should 	not 	be 	defeated 	by
overnice construction. 	(20 Cal. Jur. 	981.)
It 	is 	not 	the punishment of 	the 	offender 	in
the 	sense 	ordinarily applicable 	to 	the 	term,
but 	rather 	the 	recovery of 	the 	penalty 	as 	a
fixed sum by way of 	indemnity 	. 	. 	.
We 	may 	fairly 	assume 	from 	the 	wording 	of
section 	224 	of 	the Labor 	Code 	that 	it was
undoubtedly 	the 	express 	intent 	of 	the
4See 	Chairman Gluck's 	opinion 	that 	a 	union 	proposal 	for
fines 	to 	be 	assessed 	against 	the 	school 	district 	is 	not
negotiable. 	Jefferson School District, 	supra, p. 	45.
5Jefferson School District, 	supra, pp. 10, 11.
6Applicability 	of 	this 	section 	and 	section 	224 	of 	the
Labor Code 	to public 	employees 	is 	not clear. 	The public 	policy
reflected 	in 	these 	sections 	would 	appear 	to pertain 	to 	the
employees 	here 	since 	section 	220 	of 	the Code 	expressly makes
only 	section 	200-211 	and 	215-219 	inapplicable.
17

Legislature 	to 	allow proper 	deductions 	of
the kind involved in this appeal. 	. 	.[the
lower 	court] 	held 	that 	such 	charges must
bear 	some 	reasonable 	relation 	to 	the
services 	furnished, 	and with 	such 	statement
of 	the 	law we 	are 	entirely 	in 	accord,
(pp. 606, 607.)
And, 	in People v. 	Power 	(1958) 	159 	Cal.App.2d Supp. 	869, 	it was
held 	that 	because 	of 	the 	economic 	position 	of 	the 	average
worker 	and, 	in particular, 	his 	dependence on wages 	for 	the
necessities of life 	for 	himself 	and 	family, 	it 	is 	essential 	to
public welfare 	that 	he 	receive 	his 	wages 	when 	due.
Thus, 	it 	seems manifest 	that 	employee 	fines which bear 	no
relation 	to 	services 	furnished 	and 	which 	are 	intended 	purely 	as
punitive measures, 	contravene 	this 	Legislative 	declaration 	of
public policy and were 	not 	intended 	to 	be 	included 	among 	those
negotiable matters 	listed 	in 	section 	3543.2. 	See Morris,
Developing Labor 	Law 	(1971 	Ed.) 	pp. 	435-439; 	a proposal 	calling
for 	illegal 	conduct 	is 	not 	negotiable.
I 	conclude, 	therefore, 	that 	aside from the matter 	of
unilateral 	imposition, 	the 	charging party 	is 	entitled 	to
receive 	from 	the 	District 	clarification 	of 	this 	portion 	of 	the
policy 	in 	the 	form of a 	specific proposal 	which will 	enable 	it
to 	form a belief 	as 	to 	its 	negotiability. J
	7
7Jefferson 	School District, 	supra.
18

The 	waiver 	issue; 	The 	employer's obligation 	to 	give 	notice
to 	the 	exclusive 	representative 	exceeds 	that 	implied 	in 	the
majority's 	decision. 	Since 	unilateral 	action 	on 	negotiable
subjects 	is prohibited, 	the employer 	who wishes 	to effect
changes 	in such 	matters must 	give 	direct 	and 	specific 	notice 	to
the 	exclusive 	representative of 	its 	desire 	to 	enter 	into
pertinent 	negotiations. 	Proper 	notice 	cannot 	be 	achieved 	by
rumor 	or 	announcement 	intended 	for 	another's 	eyes. 	It 	should
be 	in 	no 	lesser 	form 	than 	that 	required 	of 	an 	exclusive
representative 	which 	seeks 	to open 	negotiations.
This 	does 	not 	mean 	that 	an 	exclusive 	representative 	having
actual 	knowledge 	of 	unilateral 	action 	can 	invariably 	escape 	a
waiver 	defense. 	"Clear 	and 	unmistakable" 	evidence 	that 	the
representative 	has 	consciously 	relinquished 	its 	bargaining
right 	will 	defeat 	an 	unfair 	practice 	charge 	of 	the 	kind 	filed
here.8 Nor 	do 	I 	rule 	out 	the 	possibility 	that 	unreasonably
prolonged 	silence 	or 	inactivity 	following 	such 	knowledge 	would
have 	a similar 	effect. 	The 	procedural 	structure 	of 	public
agencies, 	where executive 	action 	is 	undertaken by
quasi-legislative 	boards 	at 	periodic 	public 	meetings 	pursuant
to public 	notice 	and 	"second 	reading" 	requirements, 	may demand
that 	a more 	stringent 	obligation 	be 	placed 	on 	a protesting
organization 	than 	that 	imposed 	in 	the 	private 	sector.
8caravelle Boat Co. 	(1972) 	227 NLRB 1335 	[95 LRRM 1003].
19

Be 	that 	as 	it may, 	the 	facts 	here 	do not 	support a 	finding
of waiver. 	Had 	Salvaggio 	seen 	the August 	6 minutes 	prior 	to
August 	21, 	he would 	have 	known 	that 	the 	school 	board 	deferred
action on 	the 	policy 	to 	a date 	uncertain. 	There would have
been 	no 	pressing 	need 	for 	immediate 	reaction. 	He 	next 	"heard"
of 	the policy after 	its 	adoption. 	Thereafter, 	despite 	its
delay 	in 	filing 	the 	charge, 	the Association was 	neither 	silent
nor 	inactive. 	Its president met with 	the 	school 	superintendent
to 	get 	information concerning 	the policy. 	Thereafter, 	it
sought 	legal advice on 	the 	matter. 	Finally, 	it 	filed 	this
charge 	promptly 	after 	the 	first 	implementation 	of 	the
policy 	- 	and 	within 	the 	six-month 	period 	the 	statute
allows.9 None 	of 	these 	events 	demonstrate 	assent 	or
disinterest 	in 	the 	District's 	action. 	They contradict 	the
claim 	that 	the 	Association 	consciously 	relinquished 	its 	right
to negotiate.
To 	the 	extent 	indicated, 	I concur 	in 	the 	findings 	that 	the
District, 	by 	its 	unilateral 	adoption of 	the disciplinary
policy, violated subsections 3543.5(a), 	(b) 	and 	(c) 	of the Act.
9Government 	Code 	section 	3541.5. 	This 	section indicates
that 	"delayed" 	filings, 	at least absent special circumstances,
are 	not 	condemned 	by 	the 	Legislature.
20

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the State 	of 	California
After 	a hearing 	in unfair practice case No. 	LA-CE-1294, 	in
which all parties 	had 	the 	right 	to participate, 	it 	has 	been
found 	that 	the Arvin Union School District 	violated 	the
Educational Employment Relations Act 	(EERA) 	by 	unilaterally
promulgating 	a 	certificated 	employee 	comprehensive 	discipline
procedure 	short 	of 	dismissal 	and 	by 	such 	action 	(1) 	failed 	to
meet 	and 	negotiate 	in good 	faith 	with 	the Arvin Elementary
Teachers Association on 	the 	subject 	of 	the 	promulgation of 	such
procedure, 	in violation of subsection 3543.5(c); 	(2) 	denied the
employee 	organization 	rights 	guaranteed 	them 	in 	violation 	of
section 3543.5(b); 	and 	(3) 	interfered with the 	employees 	in
their 	exercise 	of 	guaranteed 	rights 	in violation 	of 	subsection
3543.5(a). 	As a result of 	this conduct, 	we have 	been ordered
to post 	this Notice 	and we 	will 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Refusing 	to 	negotiate 	in 	good 	faith with 	the 	exclusive
representative, Arvin Elementary Teachers Association, 	CTA/NEA,
by 	unilaterally 	adopting 	a 	new 	policy 	on 	certificated 	employee
discipline 	that 	is 	within 	the 	scope 	of 	representation 	under 	the
Educational Employment 	Relations Act.
2. 	Interfering 	with 	employee 	rights 	under 	the Educational
Employment Relations Act 	by 	unilaterally 	adopting 	a 	new 	policy
on 	certificated 	employee 	discipline 	that 	is 	within 	the 	scope 	of
representation 	under 	the Educational Employment 	Relations Act.
3. 	Interfering 	with 	employee 	organizations 	rights 	under
the Educational Employment 	Relations Act 	by 	unilaterally
adopting 	a 	new 	policy 	on 	certificated 	employee 	discipline 	that
is 	within 	the 	scope 	of 	representation 	under 	the Educational
Employment 	Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION WHICH 	IS 	NECESSARY TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Rescind 	District Policy 	5.117 	- 	Certificated
Discipline Short of Dismissal, 	adopted August 21, 	1980.
2. 	Restore 	to 	any 	certificated 	employee(s) 	all 	salary,
rights 	and 	privileges 	such 	employee(s) 	would 	have 	earned 	but

for 	the 	implementation of District Policy 	5.117 	(8/21/80). 	Any
such 	retroactive 	salary 	shall 	be 	accompanied 	by 	interest 	at 	a
7 	percent 	per 	annum 	rate.
3. 	Delete 	all 	references 	to 	any 	attempted 	disciplinary
action(s) 	under Policy 	5.117 	from all District 	records,
including 	but 	not 	limited 	to, 	the 	affected 	employee(s)
personnel 	records 	relating 	to 	any 	disciplinary 	action
implemented 	or 	initiated 	pursuant 	to 	District 	Policy 	5.117
(8/21/80) .
DATED: 	ARVIN 	UNION 	SCHOOL 	DISTRICT
By: Authorized 	Representative
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 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL OR
REDUCED IN SIZE.
22