Placentia Unified School District * * * OVERRULED IN PART BY The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0595E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	PLACENTIA
CHAPTER 	#293,
Charging 	Party,
v.
PLACENTIA UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1602
PERB Decision No. 	595
November 4, 	1986
Appearances: 	Rutan 	& Tucker 	by David C. 	Larsen 	for 	Placentia
Unified 	School 	District.
Before Burt, 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed 	by the
respondent, 	Placentia Unified School District 	(District), 	to
the 	attached 	proposed 	decision 	of 	an 	administrative 	law 	judge
(ALJ). 	The ALJ 	found 	that 	the District violated 	sections
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA) 	by refusing 	to 	negotiate 	the effects 	of 	layoffs
and decisions 	to 	reduce 	assignments 	in 	1982.
1 The 	EERA is 	codified 	at Government Code 	section 3540, 	et
seq,
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* * * OVERRULED IN PART BY The Accelerated Schools (2023) PERB
Decision No. 2855 * * *

We 	find 	the ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law
to 	be 	free 	of 	prejudicial 	error 	and 	adopt 	them as 	our 	own,
consistent with 	the discussion below. 	We write 	separately 	to
more 	fully 	address 	the 	District's 	waiver 	defense with 	regard 	to
layoff 	effects, 	to 	comment briefly on the District's 	obligation
to 	bargain 	the 	reductions 	in hours 	and 	to make 	clarifying
changes 	in 	the 	proposed 	order.
DISCUSSION
After 	learning 	of 	proposed 	layoffs 	and 	reductions 	in 	hours
in 1982, 	the charging party, 	California School Employees
Association and 	its 	Placentia Chapter #293 	(CSEA), 	requested
that 	the District 	bargain over 	the 	reductions 	in hours 	and
various 	effects 	of 	layoff. 	The effects 	of 	layoff 	listed 	in
CSEA's 	proposal 	primarily concerned 	severance 	pay, 	continuation
of 	health 	and welfare benefits, 	and 	reinstatement 	of 	former
salary 	and 	benefits 	levels 	upon 	reemployment. 	With 	the
exception 	of 	one 	provision 	concerning 	voluntary demotions,
which was withdrawn because 	the 	parties' 	then current 	contract
(1980-1983) 	clearly covered that 	subject, 	none of 	the effects
sought 	to 	be 	negotiated were 	expressly covered 	by the
contract's 	layoff 	article.2 The 	1980-1983 	contract 	did not
contain 	a 	"zipper 	clause," 	nor 	any other 	provision 	that 	could
2CSEA's 	1982 	proposal 	on 	layoff 	effects 	is 	summarized 	at
pp. 	12-14 	of 	the 	attached proposed decision.
22

be construed 	as 	an express waiver 	of 	the 	right 	to 	bargain
subjects 	not 	covered by the contract. 	Additionally, 	there
was 	no 	evidence 	that 	the 	specific 	items 	in the 	1982 	proposal
were 	discussed 	by 	the 	parties 	during 	their 	1980 	contract
negotiations. 	In fact, 	while there was 	substantial 	testimony
concerning 	the provision on notice of 	layoffs, 	there was 	little
evidence 	presented 	concerning 	other 	aspects 	of 	the 	layoff
article.
The District 	argues 	that 	its 	duty to 	bargain was 	satisfied
by 	inclusion of 	the 	layoff 	article 	in the contract, 	and 	that
CSEA 	thereby waived 	any 	right 	to 	bargain 	further 	on 	layoff
effects. 	The 	Board 	has 	adopted 	the 	standard 	for waiver 	used 	by
the National Labor Relations 	Board 	(NLRB), 	which 	requires 	that
a waiver 	of 	statutory 	rights 	be 	"clear 	and unmistakable."
3The 	1980-1983 	contract 	did 	contain 	the 	following
management 	rights 	clause:
It 	is 	understood 	and 	agreed 	that 	the
District 	has 	all 	the 	customary 	and usual
rights, 	powers, 	functions and authority to
discharge 	its 	obligations. 	All 	of 	the
rights, 	powers, 	or authority which the
District 	had prior 	to 	the 	execution of 	this
Agreement 	are 	retained 	except 	as 	those
rights, 	powers, 	and functions or authority
which 	are 	specifically 	abridged 	or 	modified
by this Agreement.
This 	provision 	can 	reasonably be 	interpreted 	to 	allow 	the
District, 	for the term of 	the contract, 	to 	adhere to 	any
existing 	policies 	or 	practices 	not modified by the 	contract,
without 	obligation 	to bargain. 	The District 	did have 	a
pre-existing 	layoff 	policy, 	but 	it 	too was 	silent 	as 	to 	the
specific 	layoff 	effects 	sought 	to 	be 	negotiated 	by CSEA 	in 	1982
W
	3

Further, 	a union waives 	its 	right 	to bargain a 	subject 	only if
the 	subject was 	"fully discussed" 	or 	"consciously explored" 	and
the 	union 	"consciously yielded" 	its 	interest 	in the matter.
Los 	Angeles 	Community College District 	(1982) 	PERB 	Decision
No. 252.
Waiver 	is 	most 	readily 	apparent where 	the 	specific 	subject
is 	covered 	by the 	express 	terms 	of 	an existing 	collective
bargaining 	agreement. 	See, 	e.g., 	Solano County Community
College District 	(1982) 	PERB Decision No. 	219. 	Waiver 	is 	also
found 	from evidence 	of 	negotiating 	history 	reflecting 	a
conscious 	abandonment 	of 	the 	right 	to 	bargain over 	a 	particular
subject. 	See, 	e.g. Palo Verde Unified School District 	(1983)
PERB Decision No. 	321; 	St. Mary's Hospital. 	(1982) 	260 NLRB
1237 	[109 	LRRM 1343]. 	A 	"zipper clause" 	might 	also 	be the
basis 	for 	finding 	a 	waiver.4 While 	a 	"zipper 	clause" 	does
not 	allow 	an employer 	to make unilateral 	changes 	in 	terms 	and
conditions 	of 	employment, 	it may provide the privilege of
maintaining 	existing 	policies 	for 	the 	term of 	the 	contract. 	In
the 	absence of 	some 	form of waiver, 	the duty to 	bargain
continues 	during 	the 	term of 	a 	collective 	agreement.
4"Zipper 	clauses" 	typically state 	that 	there 	shall 	be 	no
further 	duty 	to 	bargain 	negotiable 	subjects 	during 	the 	term of
contract. 	Sometimes 	the clause 	is 	expressly 	limited 	to
subjects 	actually 	discussed 	during 	negotiations 	and 	sometimes
purports 	to 	cover 	even 	subjects 	not 	in the contemplation of
either 	party at 	the 	time of 	negotiations. 	Undoubtedly, 	zipper
clauses 	arose 	as 	a means 	of 	avoiding 	the 	type of 	dispute
involved 	herein.
A
	4

South 	San Francisco Unified 	School 	District 	(1983) 	PERB
Decision No. 	343; 	NLRB v. 	Jacobs Manufacturing Co. 	196 	F.2d.680
(2d Cir. 	1952) 	(30 	LRRM 2098).
In the present case, 	there 	is 	no express 	contractual
language, 	bargaining 	history5 or 	zipper 	clause 	on which 	to
base 	a 	finding 	of waiver. 	The District 	nevertheless 	argues
that 	the 	negotiation of 	some 	layoff 	effects 	into 	the 	contract
itself 	constitutes 	a waiver 	of 	the 	right 	to 	bargain other 	types
of 	effects. 	We 	can 	find 	no 	authority 	for 	the 	proposition 	that
negotiation over 	a 	broad 	subject 	such 	as 	layoffs 	itself
constitutes waiver 	as 	to 	particular 	aspects 	of 	the 	subject 	that
neither 	were 	discussed 	nor 	covered 	by 	the 	eventually 	agreed
upon 	contract 	language.
5The 	District's 	chief 	negotiator, 	Larry Clem, 	testified
that 	the District's 	position 	in negotiations 	was 	that 	either
there would 	be 	a 	layoff 	article 	or 	there would 	be 	negotiations
each time 	a 	layoff 	arose. 	CSEA's 	chief 	negotiator,
Liz 	Stephens, 	testified 	that 	she 	and Clem understood 	that 	the
layoff 	article 	covered 	primarily procedures 	for 	layoff 	and 	that
the 	parties would meet 	to 	discuss 	layoff 	effects 	should 	the
need 	arise. 	The ALJ did 	not 	expressly credit 	either witness's
testimony over 	the other, 	nor do we. 	We 	find 	that 	the
testimony most 	reasonably 	reveals 	a misunderstanding 	at 	the
bargaining 	table 	over 	the 	negotiation of 	layoff 	effects 	not
covered by the contract. 	At most, 	the testimony is
inconclusive 	as 	to 	the parties' 	intent 	in negotiating 	the
layoff 	article which appeared 	in 	the contract. 	As 	a waiver 	of
bargaining 	rights 	must 	be 	"clear 	and 	unmistakable," 	such
testimony provides 	little 	support 	for 	the 	District's 	position.
5
5
5

In 	all 	prior decisions 	of 	this 	Board, 	and 	in 	applicable
NLRB precedent, 	there has 	been 	some 	further evidence of waiver
not present 	in the case herein.6 	See, 	e.g., 	Solano County
Community College District, 	supra, 	(union sought 	to 	negotiate
layoff 	effects 	clearly covered by the parties' 	contract),
South 	San Francisco Unified 	School 	District, 	supra 	(contract
contained 	a 	zipper clause, 	an 	"effect of 	agreement" 	clause
which stated 	that, 	in the 	absence of 	contract provisions,
Personnel 	Commission policies would 	apply, 	and 	there was
evidence 	that 	in 	negotiations 	the 	union 	consciously 	abandoned
efforts 	to modify the Personnel Commission policies), 	Placer
Hills Union School District 	(1982) 	PERB Decision No. 	262
(established 	past 	practice 	allowed 	the 	District 	unfettered
discretion to 	lay off 	CETA workers when their 	funding 	ran out),
St. 	Mary's Hospital, 	supra 	(evidence 	showed that dental 	plan
6Despite 	our 	dissenting 	colleague's 	protestation 	that 	our
decision 	is 	inconsistent with both 	federal 	precedent 	and 	prior
PERB decisions, 	the cases 	he 	relies 	on merely stand 	for 	the
proposition 	that 	a 	party has 	no mid-term obligation 	to
renegotiate 	subject 	matters 	specifically covered 	by 	a
collective 	agreement. 	As 	explained 	above, 	that 	is 	not 	the
factual 	situation we 	face 	in the 	instant 	case. 	None of 	the
decisions 	cited 	rely solely on 	the 	"comprehensive" 	nature 	of 	a
contractual 	provision which does 	not 	specifically cover 	the
matters 	at 	issue; 	thus, 	they are not 	inconsistent with the
result 	we 	reach 	in 	the 	instant 	case.
By our 	decision 	in 	this 	case we do 	not 	foreclose 	the
possibility that 	a 	contract 	provision could be 	so
all-encompassing 	as 	to 	impliedly 	include 	non-specified 	terms.
Because we do 	not 	find 	the provision 	at 	issue here 	to 	be 	of
such character, 	we 	leave this 	issue 	for 	another day.
6
6
6

was 	discussed 	and 	abandoned 	in 	circumstances 	reflecting 	a
trade-off for other provisions), 	Nevada Cement Co. 	(1970) 	181
NLRB 	738 	[74 	LRRM 1013] 	(items union 	sought 	to 	negotiate were
clearly covered by the contract). 	Our 	prior decision 	in
Mt. 	Diablo Unified School District 	(1983) 	PERB Decision
No. 	373, 	where the union sought mid-term negotiations 	on
various 	layoff 	effects, 	supports 	our 	approach 	in the present
case. 	While there was 	no 	layoff 	article per 	se, 	the District
claimed 	that 	various 	provisions 	of 	the parties' 	contract 	did
cover 	the matters 	at 	issue. 	The Board 	analyzed 	each 	specific
bargaining 	proposal 	separately, 	finding 	those 	expressly covered
by 	the 	contract 	non-negotiable 	but 	finding 	those 	on which 	the
contract was 	silent 	negotiable. 7
In 	finding 	no waiver on the 	facts 	of 	this 	case, 	we note
that 	not 	only must 	a waiver 	be 	"clear 	and unmistakable" 	but
waiver 	is 	also 	an affirmative defense, 	therefore, 	the party
asserting 	it 	(in this case, 	the District) 	bears 	the burden of
proof. 	Morgan Hill Unified 	School 	District 	(1985) 	PERB
7 In 	its 	exceptions, 	the District 	claims 	that 	the 	proposed
decision 	in 	the 	instant 	case 	is 	inconsistent with 	a 	PERB ALJ's
decision 	in 	Pacific 	Grove Unified 	School 	District 	(1982) 	PERB
Decision No. 	HO-U-142 	[6 PERC 13135]. 	While ALJ decisions are
not 	precedential 	unless 	expressly 	adopted 	by 	the 	Board 	itself
(PERB Regulation 	32215, 	codified 	at California Administrative
Code, 	title 8 ) , 	nevertheless, 	Pacific Grove is not inconsistent
with the 	result 	in the 	instant case. 	In Pacific Grove, 	the ALJ
expressly 	relied 	on 	contract 	language which 	generally covered
the 	subject 	of 	layoff 	effects 	in combination with 	a 	strong
zipper 	clause.
77

Decision No. 	554, 	California Evidence Code section 500,
Trujillo v. 	Los Angeles 	(1969) 	276 Cal.App.2d 333 	[81 Cal.
Rptr. 	146], 	Insurance Workers' 	International Union. AFL-CIO
(1980) 	NLRB Gen. 	Coun. Ad. Memo No. 	5-CB-3391 	[106 LRRM 1469].
Thus, 	not only must waiver be clearly established, 	but 	any
doubts 	must 	be 	resolved 	against 	the 	party 	asserting 	waiver.
While 	the 	inclusion 	in 	a 	contract 	of 	a 	layoff 	article covering
some 	effects 	permits 	the 	inference 	that 	the 	subject was
exhausted 	in negotiations, 	the 	"clear 	and unmistakable"
standard 	requires 	that 	the 	evidence 	of waiver 	be 	conclusive.
In this case, 	it is not. u
8Acknowledging 	that 	the 	evidence 	failed 	to 	reflect 	a
mutual 	understanding 	that 	the 	subject 	of 	layoff 	effects was
exhausted 	in negotiations, 	our 	dissenting 	colleague
nevertheless would 	resolve 	this 	uncertainty 	in 	favor 	of 	the
District. 	He does 	this 	by reframing 	the 	issue 	so 	as 	not 	to
involve 	any waiver 	analysis, 	thus 	eliminating 	the District's
burden of 	proof. 	He begins 	by asserting 	that 	the District
satisfied 	its 	obligation 	to 	bargain by agreeing 	to 	a
comprehensive 	layoff 	article. 	He 	then concludes 	that 	CSEA has
the 	burden 	to 	show that 	some 	residual 	duty to 	bargain
remained. 	Since 	the evidence of 	exhaustion of 	the 	subject 	in
negotiations 	is 	inconclusive, 	he 	reasons 	that 	the uncertainty
must 	be 	resolved 	against 	CSEA. 	This 	attempt 	to 	stand waiver
analysis 	"on its head" 	is clever, 	but patently fallacious.
The 	essential 	disagreement we 	have with our 	colleague 	is
whether 	or 	not 	the 	contract 	sufficiently covers 	the matter 	at
issue 	so 	as 	to waive 	any 	right 	to 	further 	negotiations 	during
the term of 	the contract. 	In other words, 	does 	the contract
language 	itself 	(or 	other 	evidence) 	act 	to 	suspend 	the duty to
bargain? 	If 	so, 	the District 	had no 	further 	obligation to
negotiate; 	if not, 	there was such an obligation. 	Thus, while
the 	issue 	can 	be 	framed 	as 	whether 	bargaining 	obligations 	were
fulfilled, 	it 	is 	the presence or 	absence of waiver 	that
ultimately decides 	the 	issue. 	In this 	instance, 	the existence
88

On 	the 	issue of 	reduction 	in hours, 	we 	agree 	that 	the
District 	did 	not 	satisfy 	its 	duty 	to 	negotiate 	the 	decision 	and
effects. 	In 	its 	initial 	proposal, 	CSEA proposed 	language
identical to that 	in Education Code section 45101(g), 	to wit,
Layoff 	for 	lack of 	funds 	or 	lack of work
includes 	any 	reduction 	in hours 	of
employment 	or 	assignment 	to 	a 	class 	or grade
lower 	than 	that 	in which the 	employee has
permanence, 	voluntarily consented to 	by the
employee, 	in order 	to 	avoid 	interruption of
employment 	by 	layoff.
Consistent with 	its 	position on CSEA's 	other 	proposals, 	the
District 	refused 	to 	include 	Education Code 	language 	in 	the
contract. 	The District 	took the position that 	since 	a
of waiver, 	and 	the duty to bargain 	are merely 	"two 	sides 	of 	the
same 	coin" 	and 	cannot 	legitimately be viewed 	as 	separate
issues. 	Therefore, 	our 	application of waiver 	analysis 	is
appropriate.
Further, 	even 	if our 	colleague's 	framing of 	the 	issue was
correct, 	his 	reasoning contains 	a 	fatal 	flaw. 	We 	agree that,
at 	the 	time of 	contract negotiations, 	the District 	fulfilled
its 	then existing 	duty to 	bargain, 	which was 	triggered by the
submission of 	proposals 	on 	layoff 	effects. 	However, 	here the
issue 	is whether 	or 	not 	a 	further 	duty to 	bargain was 	triggered
by 	a 	later 	request 	to 	negotiate over 	effects 	not 	specifically
covered 	by the 	contract. 	By failing 	to 	differentiate 	between
these 	two 	triggering events, 	our 	colleague begins with the
false 	premise 	that 	the 	District 	had 	already fulfilled 	its 	duty
to bargain. 	In so doing, 	his 	reasoning becomes circular, 	as
his 	premise 	and conclusion are essentially the 	same. 	In
deciding whether 	the District 	had 	a 	mid-term duty to 	bargain,
our 	colleague 	begins 	by 	assuming 	that 	the 	duty to 	bargain 	had
already been 	fulfilled. 	He would 	find 	a 	further 	duty to
bargain not 	as 	a matter of 	law, 	but only if 	the District 	had
expressly agreed 	to 	negotiate 	further. 	This 	analysis 	fails 	to
recognize 	that 	the duty to bargain 	is 	not 	necessarily
extinguished 	or 	suspended 	upon 	the 	signing 	of 	a 	contract
(depending 	upon 	the 	content 	of 	the 	contract) 	and may be
continuing.
9
I
9

reduction 	in hours was 	defined 	as 	a 	layoff 	under 	the Code,
language 	in the contract was 	not necessary. 	In addition, 	the
District's 	Classified 	Personnel 	Reduction 	Policy 	also 	included
a 	provision defining 	layoff 	to 	include 	a 	reduction 	in hours.
CSEA dropped that portion of 	its proposal. 	Thus, 	the contract
is 	silent 	as 	to 	reductions 	in hours. 	The District 	claims 	the
parties 	understood 	that 	the 	Education Code 	section 	45101(g)
definition of 	"layoff" 	(which 	includes 	voluntary 	reductions 	in
lieu of 	layoff) 	would be used. 	CSEA claims 	that 	the contracted
layoff 	article was 	not 	intended to 	include 	reduction of 	hours.
We 	find 	the 	evidence 	insufficient 	to 	conclude 	that 	the 	parties
consciously 	and 	fully explored 	the 	issue 	and 	intended 	the
layoff 	article 	to 	cover 	reductions 	in hours. 	In view of 	the
management 	rights 	clause noted 	above, 	the District 	could
follow, 	to 	the extent 	applicable, 	and without 	obligation to
bargain, 	the 	personnel 	policy with 	regard 	to 	the 	implementation
of 	reductions. 	However, 	the policy does 	not grant 	the District
the 	right to unilaterally decide to 	reduce hours. 	Thus, 	as 	the
ALJ concluded, 	the District 	had 	a duty to 	negotiate 	the
decision to 	reduce 	assignments. 	Pittsburg Unified 	School
District 	(1983) 	PERB Decision No. 	318.
Furthermore, 	both the Education Code 	and CSEA's 	proposal
refer 	to 	reductions 	in 	hours 	"voluntarily consented 	to 	by the
employee." 	There 	is 	no evidence 	that 	the 	reduction 	in hours 	in
10

this case was voluntarily consented to by the employees.9
The 	District 	also 	excepts 	to 	the 	absence 	of 	any express
provision 	in 	the 	proposed 	order 	for 	the 	offset 	of 	wages 	earned
through other 	employment. 	While 	the 	order 	can 	reasonably be
read 	to 	impliedly account 	for 	such 	an offset, 	we 	find 	it
prudent 	to 	clarify the 	order. 	We 	shall 	also modify the 	order
to 	expressly 	account 	for 	the 	effect 	of 	subsequent 	agreements
between 	the 	parties 	upon 	the 	restoration of 	the 	status 	quo 	ante
and upon monetary 	liability. 	Additionally, 	with 	regard 	to 	the
failure to negotiate 	layoff 	effects, 	we 	shall 	provide 	for 	a
limited 	back pay 	remedy 	in 	an effort 	to 	approximate 	the
parties' 	bargaining 	positions 	had 	there been no violation.
Solano County Community College District, 	supra; 	Transmarine
Navigation Corporation 	(1968) 	170 	NLRB 389
[67 	LRRM 	1419].
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(c), 	it 	is hereby ORDERED that the Placentia
9 We 	pass 	no 	opinion on 	the 	authority of 	school 	employers
to 	reduce 	hours without 	the 	consent 	of 	affected 	employees,
since 	the 	parties 	have not 	raised 	this 	as 	an 	issue 	in the
case. 	See, 	California School Employees Association v. 	Pasadena
Unified School District 	(1977) 	71 Cal.App.3d 318; 	58
Ops.Atty.Gen. 	357 	(1975). 	See also Education Code section
35160.
11
<

Unified 	School, 	its 	governing 	Board 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with 	the 	exclusive 	representative 	of 	its 	classified
employees 	by 	taking 	unilateral 	action 	on matters 	within 	the
scope of 	representation, 	as defined 	in section 3543.2,
specifically, 	the 	impact 	of 	layoffs 	and 	the decision to 	reduce
the 	hours 	of work of 	employees.
2. 	Denying 	the California 	School Employees
Association 	and 	its 	Placentia 	Chapter 	#293 	their 	right 	to
represent unit members 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	about matters within 	the 	scope 	of 	representation.
3. 	Interfering with employees' 	right 	to 	select 	an
exclusive 	representative 	to 	meet 	and 	confer with 	the 	employer
on 	their 	behalf 	by unilaterally 	changing 	matters 	within 	the
scope 	of 	representation without 	first 	providing 	the 	exclusive
representative with 	notice 	and 	the 	opportunity to 	meet 	and
confer.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSES OF THE EDUCATIONAL 	EMPLOYMENT RELATIONS
ACT:
1. 	Upon 	request of 	the Association, 	rescind the
decision to 	reduce the hours 	of work of 	the teachers' 	aides 	and
the 	account 	clerk effectuated 	in June 	and 	September 	1982. 	The
three 	employees 	whose 	hours 	were 	reduced 	shall 	be made whole
12

for 	any 	loss 	of 	economic benefits 	suffered 	as 	a 	result 	of 	the
District's 	reduction in hours, 	with 	interest 	at 	the 	rate of
7 	percent 	per 	annum until: 	(1) 	the date 	the parties 	reach
agreement; 	(2) 	completion of the statutory impasse procedures;
(3) 	the 	failure of 	CSEA to 	request 	bargaining within 	10 	days
following 	the date 	this 	Decision 	is 	no 	longer 	subject 	to
reconsideration; 	or 	(4) 	the 	subsequent 	failure of CSEA to
bargain 	in good faith. 	However, 	if 	subsequent 	to 	the
District's 	unlawful 	action the parties 	have, 	on their 	own
initiative, 	reached 	agreement 	or 	negotiated 	through 	the
completion 	of 	statutory 	impasse 	procedures 	concerning
reductions 	in hours, 	then monetary 	liability shall 	terminate 	at
that 	time 	and 	the 	status 	quo 	ante 	shall 	not 	be 	restored.
2. 	Beginning 	10 days 	after 	this 	Decision 	is 	no
longer 	subject 	to 	reconsideration, 	pay the employees who were
laid 	off 	in 	June 	and 	September 	1982 	their 	salary 	and 	benefits
at 	the 	rate being paid prior 	to 	their 	layoff until: 	(1) 	the
date 	the 	District 	bargains 	to 	agreement with 	CSEA 	regarding 	the
impact 	of 	its 	decision 	to 	lay off 	the concerned employees; 	or
(2) 	the date 	the District 	and CSEA bargain to 	a 	bona 	fide
impasse; 	or 	(3) 	the 	failure of CSEA to 	request bargaining
within 	10 	days 	after 	this 	Decision 	is 	no 	longer 	subject 	to
reconsideration or 	to 	commence 	negotiations within 	5 working
days 	of 	the District's 	notice of 	its desire to bargain; 	or 	(4)
the 	subsequent 	failure 	of 	CSEA to 	bargain 	in 	good 	faith.
13

However, 	in no event shall 	the 	sum paid to 	these employees
exceed 	the 	amount 	they would 	have 	earned 	in wages 	and 	benefits
from the 	date 	of 	their 	layoff 	in either 	June 	or 	September 	1982
to 	the 	time 	they 	secured 	or 	refused 	equivalent 	employment
elsewhere, 	provided, 	however, 	that 	in no event 	shall 	they be
paid 	less 	than 	they would 	have 	earned 	for 	a 	two-week period 	at
their 	normal 	rate 	of 	pay 	and 	benefits when 	last 	in 	the
District's 	employ. 	The District 	shall 	be 	entitled 	to 	offset
from any 	amounts 	owed pursuant 	to 	this 	Order 	the value of wages
and 	benefits 	secured 	from 	alternative 	employment 	during 	the
period 	of 	liability.
3. 	Within thirty-five 	(35) 	days 	following 	the date
this Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post
copies 	signed by an 	authorized 	agent 	of 	the District, 	of 	the
Notice To Employees 	attached 	as 	an Appendix hereto, 	for 	at
least 	30 	consecutive workdays 	at 	its 	headquarters 	office 	and 	in
conspicuous 	places 	at 	the 	locations where 	notices 	to 	classified
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;
4. 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order 	shall 	be made 	to 	the Los Angeles
Regional 	Director 	of 	the 	Public Employment Relations 	Board 	in
accordance with his 	instructions.
14

This 	Order 	shall 	be 	effective 	immediately upon 	service
of 	a 	true 	copy thereof 	upon 	the 	Placentia 	Unified 	School
District.
Member 	Burt 	joined 	in this 	Decision. 	Member 	Porter's
concurrence 	and dissent begins 	on page 	16.
15

Porter, 	Member, 	concurring and dissenting: 	I concur 	in 	that
portion 	of 	the 	majority opinion 	that 	finds 	that 	the 	District 	did
not 	satisfy 	its 	duty 	to 	negotiate 	the 	decision 	and 	effects 	of 	the
reduction 	in hours. 	However, 	I do not agree 	that 	the District was
obligated 	to engage 	in 	additional 	negotiations 	on 	the 	subject 	of
the 	effects 	of 	its 	decision 	to 	lay off 	the 	classified employees.
I 	reach 	that 	conclusion based on 	the 	record 	in 	this 	case, 	prior
Board 	precedent, 	and 	the 	underlying purposes 	of 	the 	EERA.
Both 	parties 	to this 	dispute 	agree 	that, 	during the 	course
of 	the 	negotiations 	of 	the 	collective bargaining agreement, 	CSEA
proposed, 	and 	the parties 	negotiated, 	contract 	language on 	the
subject 	of 	effects 	of 	layoff. 	They both 	agree, 	and 	the 	contract
demonstrates, 	that 	an agreement was 	reached on 	this 	subject
matter, 	and 	comprehensive 	provisions 	were 	included 	in 	the 	contract
that 	covered 	the 	effects 	of 	layoff.11 	They disagree 	on 	whether
1 The 	layoff 	article 	in 	the 	negotiated 	agreement 	encompasses
the 	following 	topics: 	notice 	to the 	employee, 	including the
timing, 	content, 	and manner of service; 	notice 	to the Association;
order of 	layoff; 	definition of 	"length of 	service"; 	bumping
rights; 	voluntary demotions or transfers; 	priority right of
retention 	over 	short-term 	employees; 	acceptance 	of 	substitute 	or
short-term 	employment 	by the 	employee 	on 	layoff 	status; 	refusal
of 	short-term employment; 	procedures 	for 	layoff, 	including 	the
order 	of layoff, 	establishment of a 	reemployment 	list, 	order of
layoff 	in 	the 	event of equal 	seniority; 	reemployment 	rights,
including duration of 	such 	rights, 	order of 	reemployment, 	priority
of 	reemployment 	over 	other hires, 	promotional 	opportunities,
reemployment 	rights 	of employees 	who 	take 	voluntary demotions 	or
reduction 	in 	assigned 	time; 	early retirement 	in 	lieu 	of 	layoff;
maintenance 	of 	a 	seniority 	roster; 	notification 	of 	reemployment
opportunities; 	manner of 	employee 	acceptance 	or 	rejection 	of
reemployment 	offers 	and 	continued 	reemployment 	rights 	if 	offer
rejected; 	right 	to be 	reemployed 	in 	the highest 	rated 	job
classification; 	and 	rights 	of 	an 	employee who 	is 	improperly 	laid
off.
16

their 	intent 	was 	to 	foreclose 	subsequent 	negotiations 	on 	this
subject 	matter 	at 	the 	time 	a 	layoff was 	implemented.
The 	District 	insists 	that 	it 	took 	an 	adamant position 	at 	the
table 	that 	it would 	not 	agree 	to put 	the 	layoff provision 	into
the 	contract 	if 	it 	was 	going 	to be 	obligated 	to 	renegotiate 	the
subject 	at 	the 	time 	of a 	layoff. 	However, 	since 	the union 	took
the position 	that 	it would not, 	as a matter of policy, 	agree 	to a
zipper 	clause, 	no such clause was 	included. 	Instead, 	the parties
agreed 	to 	the 	management 	rights 	provision 	that 	reserved 	to 	the
District 	all 	the 	"customary and usual 	rights, 	powers, 	functions
and 	authority 	to 	discharge 	its 	obligations." 	The 	District 	also
retained 	"all 	of 	the 	rights, 	powers, 	or 	authority which the
District had prior to the execution of this Agreement 	. 	. 	.
except as 	those 	rights, 	powers, 	and 	functions or authority which
are 	specifically 	abridged 	or 	modified by 	this 	Agreement." 	The
District 	understood 	this 	to give 	it 	the 	same 	rights 	as 	would 	a
zipper 	clause 	or 	a 	waiver provision.
CSEA, 	on 	the 	other hand, 	claims 	it 	took 	the position 	that
what 	it 	proposed 	and 	negotiated did 	not 	constitute 	a 	waiver 	as
to 	specific 	effects 	not 	negotiated 	at 	the 	time, 	inasmuch 	as 	its
original 	proposal 	was 	primarily 	"procedural" 	effects, 	while 	the
proposal 	at 	the 	time 	of 	the 	layoff 	concerned 	more 	substantive
effects, 	such as 	severance pay, 	etc. 	It 	is not clear that CSEA
made 	this 	position known 	at 	the 	table, 	in 	light of 	the 	District's
statement 	that 	it 	would not put 	the 	article 	in 	the 	contract 	at
all 	if 	it was 	still 	obligated 	to negotiate 	further 	effects.
17

Neither 	the 	ALJ 	nor 	the 	majority 	resolved 	this 	conflict 	in
the 	record, 	instead 	deciding 	that 	there was 	no mutual
understanding and, 	therefore, 	the 	District, 	having the burden of
establishing waiver, 	did not meet 	its burden. 	I disagree with
this 	analysis 	of 	the 	issue. 	The 	contract 	on 	its 	face establishes
that 	the parties 	negotiated a 	comprehensive, 	albeit not
all-inclusive, 	article on 	the effects of 	layoff. 	In 	light of
this, 	the 	District 	did 	satisfy 	its 	obligation 	to negotiate 	the
effects 	of 	the 	layoff, 	unless 	the parties 	specifically agreed
that 	further 	negotiations 	would occur. 	The burden 	of
establishing 	such 	an 	agreement 	would 	fall 	on 	CSEA as 	the 	charging
party 	asserting 	that 	the 	District had 	some 	further 	obligation 	to
negotiate. 	Since 	the 	majority would 	find 	no meeting of 	the 	minds
on 	the 	question 	of 	whether 	further 	negotiations 	would be 	required
at 	the 	time of a 	layoff, 	CSEA has 	failed to carry 	its burden 	of
proving 	that 	it 	reserved 	some 	residual 	right 	to 	negotiate.
Until 	today, 	a 	party 	that 	negotiated 	a 	subject 	to agreement
and 	agreed 	to place 	that 	subject 	in 	the 	collective bargaining
agreement 	had 	no 	further 	obligation 	to 	renegotiate 	the 	subject
matter 	for 	the 	duration 	of 	the 	agreement, 	absent 	some 	agreement
or understanding 	to do so. 	Clearly, 	this 	does 	not authorize 	an
employer 	to make 	some 	kind of 	change 	in 	its 	policy or 	to act
inconsistently with 	the 	terms of 	the 	contract. 	Further, 	this
does 	not 	allow 	an 	employer 	to develop a 	new policy on 	a
negotiable 	subject 	without 	negotiating. 	It 	also does 	not 	allow
a 	party 	to 	refuse 	to 	negotiate 	a 	subject 	not 	covered by 	the
18

agreement 	or 	the 	negotiations 	in 	the 	absence 	of 	a 	zipper 	clause.
However, 	the 	majority writes 	new 	law by 	requiring 	an 	employer 	to
go back 	to 	the 	table 	in 	the middle 	of 	a 	contract 	and 	negotiate
additional 	provisions 	into 	the 	agreement because 	those 	specific
proposals 	were 	not 	addressed 	at 	the 	time 	the 	subject was 	fully
negotiated 	and because 	the 	parties 	did 	not 	put 	a 	zipper 	clause
into 	the 	contract, 	whenever 	the 	"triggering event" 	of a 	union
request 	to negotiate 	occurs. 	This 	conclusion 	flies 	in 	the 	face
of 	the 	goal 	of peaceful 	labor 	relations 	that 	ideally 	results
from 	a 	stable 	bargaining 	relationship 	enjoyed during 	the 	term 	of
an 	agreement 	derived 	from good 	faith 	negotiations. 	It 	is
inconsistent 	with 	PERB precedent 	and 	unsupported 	by 	federal
labor 	decisions.
Past 	Board 	decisions 	have 	found 	that 	a 	district 	that has
negotiated a 	subject, 	and agreed 	to 	include 	those provisions 	in
the 	agreement, 	has 	no 	further 	obligation 	to 	renegotiate 	that
subject during 	the 	term of 	the 	agreement. 	Further, 	these
decisions 	do not 	rely on 	the 	existence 	of a 	zipper 	clause 	to
reach 	such a 	finding.
First, 	the 	Board has 	specifically 	rejected 	the 	argument 	that
"procedures" 	and 	"effects" of layoff are 	somehow distinct. 	In
Conejo Valley 	Unified 	School 	District 	(1984) 	PERB 	Decision
No. 	376, 	at p. 	8, 	footnote 2, 	the Board stated:
. 	. 	. 	we reject 	CSEA's claim on exceptions
that 	layoff 	procedures 	are 	something
separate 	and 	distinct 	from 	layoff 	effects.
PERB has 	developed 	the 	notion 	of 	a 	broad
negotiable 	area 	we have 	generally 	referred
to as 	"implementation 	and 	effects 	of 	layoff"
19

or, 	more briefly, 	"layoff effects." 	By
these 	terms 	we have 	meant 	to 	signify a
grouping 	of 	all 	subjects 	within 	the 	scope 	of
representation 	which 	may 	appropriately be
negotiated 	in 	connection 	with 	a 	managerial
decision 	to 	lay off. 	Layoff procedures 	(or
"implementation" 	issues) 	have been 	treated
as 	being within 	the broad 	area 	of 	"effects
bargaining." 	See, 	e.g., 	South 	San Francisco
Unified 	School 	District 	(9/2/83) 	PERB
Decision No. 	343. 	As we said 	in Mt. 	Diablo
Unified 	School 	District 	(12/30/83) 	PERB
Decision No. 	373:
We 	do 	not wish 	to 	imply 	that
"implementation of layoff" 	is a
separate 	subject 	of bargaining 	from
"effects of layoff;" 	rather, 	the
former is, 	broadly speaking, 	a
sub-category 	of 	the 	latter.
Board 	decisions 	have 	also 	firmly established 	that, 	once 	the
parties 	agree 	to a 	comprehensive 	layoff policy 	in 	the 	contract,
the 	district 	is 	under 	no obligation 	to 	renegotiate 	the 	subject
when 	it 	implements 	a 	layoff. 	For example, 	in Kern Community
College 	District 	(1983) 	PERB Decision No. 	337, 	the Board 	stated,
at p. 13:
Of course, 	where 	a public 	school 	employer
and 	an 	exclusive 	representative have 	agreed
in 	advance 	on a 	comprehensive policy to be
implemented 	in 	the 	event 	of a 	layoff
decision, 	the parties 	are 	not obligated to
renegotiate 	those 	matters 	each 	time 	the
District 	announces 	a 	decision 	to 	lay off.
This 	is 	so even where 	such agreement 	is
inferred 	from 	an 	existing, 	established 	or
past practice. 	See 	Placer Hills 	Union
School 	District 	(11/30/82) 	PERB Decision
No. 262.
Similarly, 	in 	San Mateo City School 	District 	(1984) 	PERB
Decision 	No. 	383, 	the Board addressed 	the 	issue of 	the 	district's
obligation 	to 	negotiate 	a 	layoff 	article 	during 	the 	course 	of
20

the 	contract 	negotiations. 	The 	Board 	characterized 	the 	union's
proposals 	as 	addressing 	issues 	related 	to 	the 	implementation 	of
layoffs, 	including the circumstances, 	timing and notice of
layoffs, 	seniority, 	options 	in lieu of layoff, 	bumping and
reemployment 	rights, 	and voluntary demotions 	or 	reductions 	in
hours. 	The Board 	also reiterated 	its 	rule 	that, 	in addition 	to
the 	impact on 	employees 	laid off, 	a 	layoff 	"may concurrently
impact 	upon 	those 	employees 	who 	remain," 	citing Newman-Crows
Landing Unified 	School 	District 	(1982) 	PERB Decision No. 	223.
The Board stated, 	at pp. 	21-22:
In Mt. Diablo [Decision No. 	373], we also
found 	that, 	where 	the parties had 	already
negotiated 	and 	included 	in 	their 	collective
bargaining 	agreement 	provisions 	covering
layoff 	effects, 	the Association waived 	its
right 	to 	renegotiate 	the 	issue 	when 	a 	layoff
was announced. 	Mt. Diablo, 	supra, 	pp. 46,
62.
In 	the 	instant 	case, 	CSEA properly sought 	to
negotiate 	the 	effects 	of 	layoff 	"before 	the
fact, 	when 	such dialogue 	can potentially be
of the greatest value." 	Newark, 	supra, 	p. 	6.
Negotiations 	at 	such 	time 	not 	only avoid 	the
heated 	emotions 	and 	crisis 	atmosphere
engendered by 	impending 	layoffs, 	they also
avoid 	the 	statutory 	time 	constraints 	which
arise 	once 	the 	decision 	to 	lay off has been
firmly made. 	Indeed, 	successful 	negotiations
over 	the 	effects 	of 	layoff 	during 	regular
contract 	negotiations 	avoid 	any 	danger 	of
the 	concern 	alluded 	to by the 	District, 	that
its 	ability 	to 	lay off 	would be 	compromised
by 	requiring 	it 	to 	negotiate 	through 	impasse
on 	layoff 	effects. 	For 	these 	reasons,
negotiations 	over 	the 	effects 	of 	layoff
during 	normal 	contract 	negotiations 	serve 	a
salutory 	purpose 	and 	are 	viewed 	favorably by
the 	Board. 	(Emphasis 	added.)
21

Further, 	in 	Solano County 	Community 	College 	District 	(1982)
PERB 	Decision 	No. 	219, 	the 	Board 	found 	that 	the district did 	not
violate 	the Act 	when 	it 	implemented a 	layoff 	in a 	manner
consistent 	with 	the 	terms 	of 	the 	collective bargaining 	agreement,
and 	found 	that 	no 	further 	negotiations 	were 	required. 	The 	Board
stated, 	at pp. 	7-8:
The 	layoff 	was 	carried 	out 	in 	accord with
the 	relevant 	provisions 	of 	the 	collective
bargaining 	agreement 	which 	the 	parties 	had
negotiated 	and 	was 	therefore 	lawful 	under
the 	Act. 	The Board 	determined 	in Healdsburg
Union High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132, 	that the decision to
initiate 	a 	layoff 	is 	within 	the managerial
prerogative 	of 	a 	district 	and 	that bilateral
negotiations 	are 	required 	as 	to 	the 	effects
and 	implementation 	of 	the 	district's
operational 	decision.
The 	evidence 	discloses 	that 	the 	District 	and
the 	Association 	did 	meet 	and 	negotiate
concerning 	the 	effects 	and 	implementation 	of
the 	layoff decision. 	They did 	reach
agreement 	through 	bilateral 	negotiations
concerning 	the procedure 	for 	layoffs. 	In
fact, 	on June 15, 	1978, 	they modified
Article 	XIX of 	their 	agreement 	to 	reflect
the 	results 	of 	their 	contract 	reopener
discussion 	concerning 	these 	additional
layoff procedures. 	The decision 	to 	institute
a 	layoff 	was 	within 	the 	District's 	managerial
rights. 	Their 	legal 	obligation 	to discuss
the 	effects 	and 	implementation 	of 	that
decision 	was 	the 	subject 	of 	these 	reopener
discussions between 	the parties.
In 	Newark 	Unified 	School 	District, 	Board of 	Education 	(1982)
PERB Decision No. 	225, 	the Board stated, 	at p. 	5:
Thus, 	while 	an employer 	is 	free to determine
that a 	layoff is required, 	it may not, 	in
the 	absence 	of 	agreement 	or 	the 	completion
of 	negotiations, 	unilaterally 	implement
in-scope effects 	that 	are 	inconsistent 	with
22

existing laws, 	contract provisions, 	policies,
or 	established practices. 	(Emphasis 	added.)
In 	South 	San 	Francisco Unified 	School 	District 	(1983) 	PERB
Decision 	No. 	343, 	the district was 	not 	required to negotiate 	the
effects 	of a 	layoff, 	since 	the 	contract between 	the parties
contained 	a 	management 	rights 	clause 	that 	provided 	that 	the
contract 	would 	prevail 	over 	the 	district's 	existing practices,
procedures 	and personnel 	commission 	rules, 	and that, 	in the
absence 	of 	contract provisions, 	such policies were 	discretionary
with 	the 	district. 	The contract 	also 	contained a 	zipper 	clause.
The 	Board 	found 	that 	the 	district had 	no 	duty to 	negotiate 	the
layoff 	or 	its 	effects, 	since 	the parties had 	already negotiated
layoffs 	and, 	thus, 	the district had 	the 	right to lay off 	in a
manner 	consistent 	with 	the 	contract 	and 	the 	personnel 	commission
rules. 	Further, 	the 	union 	contractually agreed that 	the
provisions 	of 	the 	personnel 	commission 	rules 	would be 	the
controlling 	procedures 	for 	the 	term 	of 	the 	agreement.
Consequently, 	it was 	not 	entitled 	to a 	second opportunity to
negotiate 	the 	subject 	when 	the 	district 	decided 	to 	lay off
employees. 	While 	the 	Board 	found 	that 	the 	zipper 	clause 	also
evidenced 	a 	waiver, 	the 	decision 	does 	not primarily 	rely on 	that
for 	its 	conclusion.
Federal 	law 	likewise 	does 	not 	support 	the majority opinion.
First, 	section 	8(d) 	of 	the National 	Labor 	Relations Act 	(29
23

U.S.C.A. 	section 	158(d)) 	specifically allows 	a party 	to 	refuse
to 	negotiate 	over 	a 	subject 	included 	in 	the 	contract 	during 	the
term of 	the 	agreement. 	Second, 	the 	case 	cited 	in 	the majority
opinion, 	NLRB v. 	Jacobs Mfg. 	Co. 	(2d Cir. 	1952) 	196 F.2d 680 	[30
LRRM 2098], 	does 	not 	stand 	for 	the proposition 	that, 	"[i]n 	the
absence 	of 	some 	form of waiver, 	the 	duty to bargain 	continues
during 	the 	term 	of 	a 	collective 	agreement." 	(Majority opinion,
at pp. 	4-5.) 	Indeed, 	in 	the context of 	negotiations pursuant 	to
a 	contractual 	reopener, 	the 	court 	was 	asked 	to determine 	whether
an 	employer had 	an 	obligation 	to 	negotiate 	as 	to 	"subjects 	which
were 	neither 	discussed nor 	embodied 	in 	any of 	the 	terms 	and
conditions of 	the 	contract." 	(30 LRRM at 	2100). 	The court
specifically did 	not 	pass 	on 	the 	NLRB's 	holding below 	that 	the
employer has 	no 	duty 	to 	negotiate 	a 	subject 	that 	was 	discussed
during 	the 	contract 	negotiations, 	but 	not 	included 	in 	the
agreement, 	where 	the 	reopener 	language 	did 	not 	include 	that
topic. 	The board had 	relied on 	section 	8(d) 	to 	find 	that 	the
employer 	did 	not have 	an 	obligation 	to bargain 	that 	subject
during 	the 	term 	of 	the 	contract.
2Section 	8(d) 	provides, 	in part, 	that the duty to bargain
collectively:
. 	. 	. 	shall 	not be construed as 	requiring
either party to discuss 	or 	agree 	to 	any
modification 	of 	the 	terms 	and 	conditions
contained 	in a 	contract 	for a 	fixed period,
if 	such modification 	is 	to become 	effective
before 	such 	terms 	and 	conditions 	can be
reopened 	under 	the provisions 	of 	the
contract. . . .
24

Further, 	in Mead Corporation v. 	NLRB 	(11th Cir. 	1983) 	697
F.2d .1013 	[112 LRRM 2797, 	2802], 	the court stated:
Thus 	section 	8(d) 	of 	the Act 	relieves 	the
parties 	of 	the 	duty during 	the 	term of 	a
labor 	agreement 	to bargain 	over 	subjects
that 	are 	specifically 	included 	in 	the 	terms
and 	conditions 	of 	the 	contract. 	NL Indus.,
Inc. 	v. 	NLRB 	(8th Cir. 	1976) 	536 F.2d 786,
787 	[92 LRRM 2937]; NLRB v. 	Jacobs Mfg. 	Co.,
196 	F.2d 	680, 	684 	[30 	LRRM 	2098].
In 	the present 	case, 	the parties 	negotiated 	the 	implementation
and 	effects 	of 	layoff 	during 	the 	course 	of 	their 	regular
negotiations. 	The 	fact 	that 	there 	may have been 	other possible
proposals 	or 	effects 	they did 	not 	negotiate 	does 	not 	give 	CSEA
the 	right 	to 	tie 	up 	the 	layoff by demanding 	to 	renegotiate 	the
layoff 	article 	to 	add 	to 	those 	effects 	already 	included 	in 	the
contract. 	Such 	a 	conclusion would 	encourage 	an 	employer 	to
refuse 	to negotiate a 	layoff 	article 	into the contract, 	knowing
that 	it had 	to 	turn 	around 	and 	negotiate 	the 	subject 	again before
it 	could proceed 	to 	implement a 	layoff. 	This 	would 	contradict
the 	expressed policy 	of 	encouraging 	the parties 	to 	resolve 	such
issues prior 	to the 	time 	at which a 	layoff 	is 	imminent. 	Further,
the 	absence 	of a 	zipper 	clause 	in 	this 	case does 	not 	compel 	a
different conclusion. 	Where, 	as here, 	the parties have 	included
a 	comprehensive 	layoff article 	in 	their 	agreement, 	the 	District
has 	satisfied 	its 	obligation 	to 	negotiate 	the 	effects 	of 	the
layoff. 	For that 	reason, 	I dissent.
25

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY NOTICE 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair Practice Case No. 	LA-CE-1602,
California 	School 	Employees 	Association 	and 	Its 	Placentia
Chapter #293 v. 	Placentia Unified School District, 	it has been
found 	that 	the 	Placentia 	Unified 	School 	District 	violated
California Government Code section 3543.5(a), (b), 	and 	(c) 	by
refusing 	to 	bargain 	regarding 	the 	impact 	of 	layoffs 	and 	the
decision to 	reduce 	the hours 	of work of 	employees 	in June 	and
September of 	1982.
As 	a 	result 	of 	this 	conduct we have been ordered 	to 	post
this 	Notice, 	and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with 	the 	exclusive 	representative 	of 	the 	District's
certificated 	employees 	by 	taking 	unilateral 	action 	on matters
within the 	scope of 	representation, 	as 	defined 	in 	section
3543.2, 	specifically, 	the 	impact of 	layoffs 	and the decision to
reduce 	the hours 	of work of 	employees.
2. 	Denying 	the California 	School 	Employees
Association 	and 	its 	Placentia Chapter 	#293 	their 	right 	to
represent 	unit 	members 	by 	failing 	and 	refusing 	to 	meet 	and
negotiate 	about matters within the 	scope 	of 	representation.
3. 	Interfering with employees' 	right 	to 	select 	an
exclusive 	representative 	to 	meet 	and 	confer with 	the 	employer
on 	their 	behalf 	by unilaterally 	changing 	matters 	within 	the
scope 	of 	representation without 	first 	providing 	the 	exclusive
representative with 	notice 	and 	the 	opportunity 	to 	meet 	and
confer.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
1. 	Upon 	request 	of 	the Association, 	rescind 	the
decision to 	reduce the hours 	of work of 	the teachers' 	aides 	and
the 	account 	clerk effectuated 	in June 	and 	September 	1982. 	The
three 	employees whose 	hours 	were 	reduced 	shall 	be made whole
for 	any 	loss 	of 	economic benefits 	suffered 	as 	a 	result 	of 	the
•

District's 	reduction in hours, 	with 	interest 	at 	the 	rate of
7 	percent 	per 	annum until: 	(1) 	the date 	the parties 	reach
agreement; 	(2) 	completion of 	the statutory impasse procedures;
(3) 	the 	failure 	of 	CSEA to 	request 	bargaining within 	10 	days
after 	this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration or
(4) 	the 	subsequent 	failure of 	CSEA to 	bargain 	in good 	faith.
However, 	if 	subsequent 	to 	the District's 	unlawful 	action 	the
parties 	have, 	on their own initiative, 	reached 	agreement 	or
negotiated 	through 	the 	completion 	of 	statutory 	impasse
procedures 	concerning 	reduction 	in hours, 	then monetary
liability 	shall 	terminate 	at 	that 	time 	and 	the 	status 	quo 	ante
shall 	not 	be 	restored.
2. 	Beginning 	10 	days 	from the date 	this 	Decision 	is
no 	longer 	subject 	to 	reconsideration, 	pay the employees who
were 	laid 	off 	in June 	and 	September 	1982 	their 	salary and
benefits 	at 	the 	rate being 	paid prior 	to 	their 	layoff 	until:
(1) 	the date the District bargains 	to 	agreement with CSEA
regarding 	the 	impact 	of 	its 	decision 	to 	layoff 	the 	concerned
employees; 	or 	(2) 	the date the District 	and CSEA bargain to 	a
bona 	fide 	impasse; 	or 	(3) 	the 	failure of 	CSEA to 	request
bargaining within 	10 days 	after 	this Decision 	is 	no 	longer
subject 	to 	reconsideration or 	to 	commence 	negotiations within
five working 	days 	of 	the District's 	notice of 	its 	desire 	to
bargain; 	or 	(4) 	the subsequent 	failure of CSEA to bargain in
good 	faith. 	However, 	in no 	event 	shall 	the 	sum paid 	to 	these
employees 	exceed 	the 	amount 	they would 	have 	earned 	in wages 	and
benefits 	from the date 	of 	their 	layoff 	in either 	June 	or
September 	1982 	to 	the 	time 	they 	secured 	or 	refused 	equivalent
employment elsewhere, 	provided, 	however, 	that 	in no event shall
they be 	paid 	less 	than 	they would 	have 	earned 	for 	a 	two-week
period 	at 	their 	normal 	rate of 	pay 	and benefits when 	last 	in
the District's 	employ. 	The District 	shall 	be entitled 	to
offset 	from 	any 	amounts 	owed 	pursuant 	to 	this 	Order 	the value
of 	wages 	and 	benefits 	secured 	from 	alternative 	employment
during 	the 	period 	of 	liability.
Dated: 	PLACENTIA UNIFIED 	SCHOOL 	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.
N	2

PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OF THE 	STATE OF CALIFORNIA
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	PLACENTIA
CHAPTER #293,
Charging 	Party,
v.
PLACENTIA 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-1602
PROPOSED 	DECISION
(7/25/83)
Appearances; 	Greg A. 	Marvel, 	Field Representative, 	Thomas A.
Fields, 	Field 	Director 	for 	California School Employees
Association 	and 	its 	Placentia Chapter 	#293; 	David C. 	Larsen,
Attorney 	(Rutan 	& 	Tucker) 	for 	Placentia Unified School District.
Before Barbara E. 	Miller, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 	2, 	1982, 	the California School Employees
Association 	and 	its 	Placentia 	Chapter 	#293 	(hereinafter 	CSEA,
Association, 	or Charging 	Party) 	filed 	an unfair practice charge
against 	the 	Placentia Unified 	School 	District 	(hereinafter
District or 	Respondent). 	A complaint was 	issued on July 30,
1982.
The charge, 	which was amended on November 	3, 	1982, 	alleges
that the District violated sections 3543.5(a), 	(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations 	Act1 by 	refusing 	to
1The 	Educational Employment 	Relations Act 	(EERA) 	is
codified 	at Government Code, 	section 3540, 	et seq. 	Unless
)
)
)
)
)
)
)
)
)
)
)
)
__________ )
Thi	Thi is proposed decision has been appealed to the
Boa,·u	Board 	may not be cited as	may not be cited as
unless	unless we wecision and	...... .....cisioo and 	precedent
adopted by the Board.	adopted by the Board. 	its rationale have been

negotiate 	regarding 	the 	effects 	of 	layoffs 	and 	the decision 	to
reduce 	assignments.
The 	District 	answered 	the 	amended 	charge 	on December 	1,
1982, 	and 	denied 	that an unfair practice had been committed.
The 	District 	contends 	that 	it 	took 	no action on matters within
the 	scope of 	representation 	and 	that 	its 	actions were
consistent 	with 	past 	practice 	and 	the 	contract 	negotiated 	by
the parties.
An 	informal conference was conducted on September 	13, 	1982,
and 	when 	the 	parties 	were 	unable 	to 	resolve 	their 	differences 	a
formal hearing was 	requested on November 	11, 	1982. 	That
hearing 	was 	conducted on February 9, 	1983, 	the parties 	filed
responsive post 	hearing 	briefs 	and 	the 	case was 	submitted 	for
decision on May 25, 	1983.
otherwise 	indicated, 	all code 	references will be 	to the
California Government Code. 	Section 3543.5 provides, 	in
relevant part, 	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.
N
	2

FINDINGS 	OF 	FACT
CSEA 	is 	an employee organization and 	the District 	is 	a
public 	school 	employer 	as 	those 	terms 	are 	defined 	in 	the EERA.
At 	all 	times 	relevant hereto, 	CSEA has 	been 	the exclusive
representative 	of 	a 	unit 	comprised 	of 	classified 	employees of
the 	District which maintains 	a 	non-merit 	system as 	that phrase
is 	defined 	in 	the 	California Education Code. 	The District and
CSEA were 	parties 	to 	a 	negotiated 	agreement 	which 	expired 	on
June 	30, 	1980, 	and 	sometime 	in February 1980 the parties
commenced 	negotiations 	for 	a 	successor 	agreement 	which 	became
effective on September 	8, 	1980, 	with 	an expiration date of
June 30, 1983.2
Negotiations 	Regarding 	Layoffs 	for 	the 	1980-1983 	Contract
Prior 	to September 	8, 	1980, 	the collective bargaining
agreement 	between 	the 	District 	and 	CSEA did 	not have 	a
provision 	covering 	layoffs. 	When 	the District 	found 	it
necessary 	to 	lay off personnel 	after 	the passage 	of
Proposition 13 	in 	1978, 	it adhered 	to 	the provisions of 	the
Education 	Code 	and 	the 	District's 	Classified 	Personnel
Reduction 	Policy.
Many meetings 	during 	the 	1980-83 	negotiations 	concerned
proposals 	for 	a provision governing 	layoffs. 	During 	those
meetings 	the 	chief 	negotiator 	for 	the 	Placentia Chapter 	of 	CSEA
2 The 	parties 	stipulated 	to all 	the 	findings 	in 	this
paragraph.
W3

was Vivian Elizabeth 	"Liz" 	Stephens who had 	served 	in 	that
capacity since 	1978. 	Prior 	to 	that 	time, 	Stephens had 	spent
five 	years 	as 	the 	CSEA chapter president 	at 	Chaffey Union High
School 	and 	approximately 	eight 	years 	as 	a 	state-wide
representative 	for 	CSEA. 	Larry Clem, 	the District's Director
of Classified Personnel, 	Employer-Employee Relations, 	was 	the
chief 	negotiator 	for 	the 	District 	and 	had 	represented 	the
District 	in 	that 	capacity since 	approximately 	1978. 	Prior 	to
that 	time, 	Clem was 	a chief 	negotiator 	for 	an unidentified
employee organization. 	Over 	all, 	he had about 	16 years of
labor 	relations 	experience.
The 	initial CSEA proposal provided, 	in 	relevant part, 	as
follows:
A. 	Reason 	for 	Layoff: 	Layoff shall occur
only 	for 	lack 	of 	work 	or 	lack 	of 	funds.
Lack 	of 	funds means 	that 	the 	District
cannot 	sustain 	a positive 	financial
dollar 	balance 	with 	the payment of one
further 	month's 	anticipated 	payroll.
Per Ed. 	Code 45101 	(g) 	- 	"Layoff for
lack of 	funds or 	lack of work".
Includes 	any 	reduction 	in hours of
employment or 	assignment 	to a class or
grade 	lower 	than 	that 	in which 	the
employee, has permanence, voluntarily
consented 	to by 	the 	employee, 	in order
to 	avoid 	interruption 	of 	employment 	by
layoff.
B. 	Notice of Layoff: 	Any layoffs 	under
this 	section 	shall 	only 	take place
effective 	as 	of 	the 	end 	of 	an 	academic
year. 	The District 	shall 	notify both
C.S.E.A. 	and 	the 	affected 	employees 	in
writing 	no 	later 	than April 	15th of 	any
planned 	layoffs. 	The 	District 	and
C.S.E.A. 	shall meet 	no 	later 	than
A	4

May 	1st 	following 	the 	receipt of 	any
notices 	of 	layoff 	to 	review 	the proposed
layoffs 	and 	determine 	the 	order 	of
layoff 	within 	the 	provisions 	of 	this
agreement. 	Any 	notice of 	layoffs 	shall
specify 	the 	reason 	for 	layoff 	and
identify by 	name 	and 	classification 	the
employees 	designated 	for 	layoff.
Failure 	to give 	written 	notice 	under
the 	provisions 	of 	this 	section 	shall
invalidate 	the 	layoff.
C. 	Reduction 	in Hours; 	Any reduction 	in
regularly 	assigned 	time 	shall 	be
considered 	a 	layoff 	under 	the provisions
of 	this Article.
The provisions 	in the employer's counter-proposal were, 	in
relevant part, 	as follows:
Section 	19.1 Notice of 	Layoff;
19.1.1 	The 	District 	shall 	notify 	the
Association 	and 	affected 	employees
in 	writing 	a 	minimum of 	thirty 	(30)
days prior 	to 	the 	date 	of 	any layoff
for 	lack 	of 	work 	or 	funds 	as
determined 	by 	the 	District.
19.1.2 	The 	notice 	to 	the 	affected 	employee
shall 	specify 	the 	reason 	for 	the
layoff 	and 	be 	given 	by personal
delivery or 	by certified mail 	to 	the
last 	known 	address of 	the employee.
19.1.3 	The 	notice 	to 	the Association 	shall
specify 	the 	reason 	for 	the 	layoff
and 	identify by name 	and
classification 	the 	employees
designated 	for 	layoff.
In addition, 	the 	employer's counter-proposal 	included the
following 	language:
19.4 	Nothing 	herein 	shall 	be construed 	as
a 	limitation 	on 	the 	governing
board's 	right 	to determine 	the 	need
55

for 	a 	reduction 	in 	services or 	to
otherwise 	establish 	levels 	of
service or 	numbers of employees.
With one 	exception, 	relevant here, 	the 	layoff provision
eventually 	ratified 	by 	the 	parties 	was 	the 	District's
proposal.3 Article 	19.4, 	however, 	was deleted and 	the
parties 	agreed 	to 	a Management 	Rights 	clause which provided:
It 	is 	understood 	and 	agreed 	that 	the
District 	has 	all 	the 	customary 	and 	usual
rights, 	powers, 	functions and authority to
discharge 	its obligations. 	All of 	the
rights, 	powers, 	or authority which the
District 	had 	prior 	to 	the 	execution of 	this
Agreement 	are 	retained 	except 	as 	those
rights, powers, 	and functions or authority
which 	[sic] 	are 	specifically abridged or
modified 	by 	this Agreement.
With 	respect 	to 	the 	negotiations 	regarding 	the 	above-quoted
provisions, 	Stephens 	testified 	that, 	as a matter of practice,
she 	did 	not 	agree 	to either 	waiver 	or 	zipper 	clauses.
Accordingly, 	she 	refused 	to agree 	to a 	layoff 	article which
included 	the 	District's 	section 	19.4. 	Stephens 	further
testified 	that 	the 	layoff 	article 	was 	only 	intended 	to 	cover
procedures 	for 	a 	layoff 	and 	not 	the 	impact of 	a 	layoff on
matters within 	scope. 	She 	testified:
33Both	aoth 	the Association's 	and 	the 	District's proposals
contained 	other 	provisions pertaining 	to 	the order 	of 	layoffs,
bumping 	rights, 	and 	employee 	rights 	relative 	to 	short 	term
positions 	and 	the 	acceptance 	of 	short 	term or 	substitute
assignments. 	They also contained 	a 	list of 	items pertaining 	to
the procedures 	to be 	used 	in 	the 	event of 	a 	layoff. 	No
evidence 	was 	presented 	regarding 	the 	negotiations 	on 	those
aspects of 	the 	two proposals or 	as 	to why, 	to 	the extent 	they
differed, 	the District's proposal was 	ultimately 	adopted.
66

The purpose of 	the 	article was 	to 	establish
a procedure 	so 	that 	a 	layoff 	could 	be
orderly done. 	One of 	the objections 	in the
waiver 	in 	the proposal 	from the 	District 	and
the discussion 	that ensued, 	I believe 	that
we 	discussed 	that 	there 	could 	be 	numerous
things 	that 	could 	happen 	as 	a 	result of 	a
layoff 	and 	it was 	not meant 	to cover 	that 	in
the procedure. 	It was meant 	to establish a
procedure 	for 	accomplishing 	layoff.
On direct examination, 	Stephens 	testified 	that during
negotiations 	she 	and 	Clem discussed 	the 	effects 	of 	future
negotiations 	and 	reached 	the 	following 	understanding:
At 	the 	time of 	layoffs 	in the 	future we
would meet 	to discuss 	and 	negotiate 	any
effects 	of 	that 	layoff 	that might happen.
Upon 	examination 	by 	the Administrative 	Law Judge 	regarding
her 	conversation 	with 	Clem pertaining 	to 	future 	negotiations 	on
the 	effects of 	any layoffs which might 	occur, 	Stephens 	could
not 	recall 	the 	specific words 	of 	the 	conversations 	during 	the
course of 	negotiations; 	she was 	quite 	specific with 	respect 	to
CSEA's 	intent, 	however 	and 	testified:
I believe 	the 	conversation was 	in
relationship 	to 	the 	section of 	their
proposal 	that 	would 	have given us 	a waiver,
have 	given 	the District 	a waiver 	not 	to
negotiate 	anything 	further 	on 	layoffs 	and 	I
would 	not 	agree 	to 	that 	and 	during 	that
conversation, 	I can't 	recall exactly what
was 	said, 	but 	I 	know that 	the 	intent was
that 	we 	would discuss 	layoffs 	as 	they
occurred 	as 	far 	as 	the 	effects of 	those
layoffs. 	This was only meant 	to be a
procedure.
With 	respect 	to 	the Management 	Rights Clause, 	Stephens did
note 	that 	she 	considered 	it quite 	limited. 	She 	understood 	it
77

and 	agreed 	to 	it 	as 	a 	reservation of 	rights 	to 	the District
that 	were 	not 	expressly 	included 	in 	the contract, 	"except 	in
those 	instances 	that 	are 	controlled 	by 	law." 	Based 	upon 	all of
her 	testimony, 	it 	is concluded 	that 	at 	no 	time did 	Stephens
believe 	any of 	the 	agreed-upon 	language 	changes 	compromised
CSEA's 	rights pursuant 	to 	the EERA.
Clem's 	description of 	the 	negotiations 	regarding 	the 	layoff
provision was 	distinctly different 	from 	that of 	Stephens. 	With
respect 	to 	layoffs, 	and 	the CSEA proposal 	for 	meetings
subsequent 	to 	the 	notice of 	layoff, 	Clem testified:
Well, 	again we were getting 	towards 	the end
of 	our 	negotiations 	and 	basically we 	said,
if 	your 	intent 	is 	that we 	negotiate 	every
layoff 	that we do, 	that we wouldn't agree 	to
have 	this 	article 	in 	the contract. 	If 	it 	is
your 	intent 	to have 	the 	article 	in 	the
contract, 	then 	that couldn't 	stay.
Clem expressly denied 	the Association 	ever 	stated 	that 	it
intended 	to 	negotiate 	each 	time 	the 	District proposed 	to 	lay
off employees.
With 	respect 	to 	the 	District's 	section 	19.4 	and 	its
eventual 	elimination 	from 	the 	layoff 	article, 	Clem 	testified
that 	it was 	the District's position that, 	by the article, 	it
was preserving 	the 	District's 	right 	to determine 	the 	need 	for 	a
layoff. 	Clem 	testified 	that 	since 	he 	believed 	that 	the
Management Rights 	clause 	accomplished 	the 	same 	result, 	he did
not oppose 	the deletion of 	19.4.
88

It 	is of 	significance 	that 	throughout his 	testimony Clem
described 	the 	District's 	negotiating posture 	as 	that 	of
refusing 	to 	agree 	to meet 	regarding 	the 	need 	for 	a 	layoff. 	He
never 	testified 	that 	the 	District 	sought 	to avoid 	meeting
regarding 	the 	impact of 	layoffs. 	Although 	there 	is 	no direct
evidence 	in 	this 	regard, 	based 	upon his overall 	testimony and
his 	responses 	to a variety of questions, 	it 	is concluded 	that
at 	the 	time of 	negotiations, 	Clem did not perceive 	the
difference 	between 	negotiations 	regarding 	the 	need 	for 	a 	layoff
and 	negotiations 	regarding 	the 	effects of 	a 	layoff. 	It 	is
further 	concluded 	that 	any 	language 	"concessions" 	made 	by CSEA
were 	in 	response 	to 	the 	demands 	of 	the 	District 	and 	they only
had 	the 	effect of 	assuring 	the 	District 	that 	it 	had 	the 	right
to determine 	the 	need 	for 	a 	layoff.
With 	respect 	to 	the 	language 	in CSEA's 	initial proposal
regarding 	a 	reduction 	in hours, 	Clem opposed 	its 	inclusion
ecause 	it 	recited 	language 	from 	the 	Education Code 	and
throughout 	negotiations 	he 	took 	the 	position 	that 	Code 	language
hould 	not be 	contained 	in 	the 	agreement. 	He also 	took 	the
osition 	that 	since 	a 	reduction 	in hours was defined 	as 	a
ayoff 	under 	the Code, 	language 	in 	the contract was not
ecessary. 	Moreover, 	the District's Classified 	Personnel
eduction 	Policy 	also 	included provision 	for 	a 	reduction 	in
ours. 	Although 	there 	is 	no evidence 	regarding 	the 	reasons
tephens 	agreed 	to 	delete 	the 	language governing 	a 	reduction 	in
b
s
p
l
n
R
h
S
9

hours,4 the 	Association's proposal 	was 	deleted 	and 	no
reference 	to a 	reduction 	in hours 	was 	included 	in 	the contract.
Layoffs 	in 19815
In October 	of 	1981 	the 	District gave 	notice 	to CSEA of 	its
intention 	to 	lay off 	or 	eliminate 	the positions of 	12.5
custodians, 	two 	laundry operators, 	one part-time 	laundry driver
and 	one 	accountant. 	Stephens 	had 	no 	independent 	recollection
of 	that 	layoff 	and 	her 	memory was 	not 	refreshed 	by 	reference 	to
Respondent's 	exhibits 	such 	as 	agenda 	notices 	and 	Board 	minutes
4It 	should 	be 	noted 	that 	the 	District's 	Personnel
Reduction Policy 	is 	not 	consistent 	with 	the 	relevant provisions
of 	the Education Code. 	The District's policy defines 	layoff 	as
follows:
Layoff 	- means 	the 	termination of 	an
employee 	for 	lack 	of 	funds 	or 	lack 	of work,
or 	any reduction 	in hours of 	employment.
By comparison, 	Education Code 	section 45101 	(g) 	treats 	the
subject as 	follows:
"Layoff 	for 	lack 	of 	funds 	or 	layoff 	for 	lack
of 	work" 	includes 	any 	reduction 	in hours of
employment or 	assignment 	to a class or grade
lower 	than 	that 	in which 	the 	employee has
permanence, 	voluntarily consented 	to by 	the
employee, 	in order 	to avoid 	interruption of
employment by layoff. 	(Emphasis 	added.)
Nevertheless, 	the District has 	not 	argued 	that 	its policy
superseded 	the 	Education 	Code 	either 	before 	or 	after 	the
ratification of 	the 	contract 	and 	there 	is 	no 	factual or 	legal
basis 	for 	concluding 	that 	it did 	so.
5There 	is 	evidence 	in 	the 	record 	that 	the District 	laid
off 	employees 	in 	1978 	but 	there 	is 	no 	evidence 	regarding what
discussions, 	if any, 	took place between CSEA and 	the District.
Similarly, 	there 	is 	no evidence 	that 	any employees
involuntarily 	suffered 	a 	reduction 	in hours 	at 	any 	time.
10

or 	questions 	regarding 	conversations 	with Clem. 	However, 	Clem
testified 	that 	when he gave 	her 	verbal 	notice of 	the planned
layoff 	of 	classified 	personnel, 	Stephens 	said 	that 	they 	should
sit 	down 	and 	negotiate 	regarding 	the 	continuation of 	fringe
benefits 	and 	severance pay. 	Clem 	testified:
. 	. 	. and I said, uh-uh, Liz, we've
exhausted 	that 	during 	negotiations 	and, 	you
know, 	we 	agreed 	that we would 	not be
negotiating 	every 	layoff. 	And 	the matter
was 	dropped.
On November 	20, 	1981, 	the 	layoff of the above-mentioned
employees 	became effective.
However, 	some discussions 	did 	take place 	regarding 	the
impact of 	the 	layoff on 	the 	remaining 	custodians. 	On
November 	17, 	1981, 	Stephens wrote a letter 	to Clem demanding
that he 	negotiate on 	the 	unilateral 	change 	in hours 	for 	the
remaining 	custodians. 	Although 	Stephens 	did 	not 	recall 	taking
part 	in more 	than one meeting 	to discuss 	that 	subject, 	Clem
testified 	that 	he participated 	in 	approximately 	five 	meetings
where 	the 	problems 	were 	apparently 	resolved 	to CSEA's
satisfaction.
Events 	Leading 	to 	the 	Filing 	of 	the Unfair 	Practice Charge
Greg Marvel 	is 	a 	field 	representative 	for 	CSEA who, 	during
the 	spring of 	1982, 	was 	assigned 	responsibility for 	the
Placentia 	area. 	Sometime late 	in April 	1982, 	Marvel and
Chapter 	President 	Ray Castillo were meeting 	with 	Clem. 	Clem
asked 	the 	CSEA 	representatives 	what 	their 	position would 	be 	in
11

the 	event 	the 	District 	found 	it 	necessary 	to 	lay off 	classified
personnel. 	Since Marvel was 	new 	to 	this particular 	assignment
with CSEA, 	he 	said 	he 	had 	to 	familiarize himself with 	the
layoff provisions 	in 	the contract and accordingly, 	the matter
was 	not 	pursued 	at 	that 	time.
During 	subsequent meetings on May 13 	and May 26, 	however,
Marvel 	advised 	Clem 	that 	CSEA's 	position 	was 	that 	the 	District
had 	to bargain 	about 	the 	effects 	of 	any 	layoff 	and 	about 	any
decision to reduce assignments. 	On May 27, 	1982, 	Marvel wrote
to 	Clem confirming 	their 	conversation of 	the 	day 	before 	and
memorializing 	CSEA's 	demand 	that 	the 	District 	take 	no 	action
until 	the parties 	were given 	an opportunity 	to negotiate.
Representatives from CSEA did meet with 	Clem on May 	28,
1982. 	At 	that 	time, 	CSEA prepared 	a proposal 	and 	indicated 	to
the District 	that 	it 	wanted 	to 	bargain on a 	number 	of 	items
which may be 	summarized 	as 	follows:
1. 	Order 	of 	Reduction 	This proposal provided 	that 	no CETA
or 	other 	employees 	not 	from 	the 	classified 	service 	would
perform 	the 	work 	of 	laid 	off 	workers. 	It 	also provided 	that 	no
work 	of 	laid 	off 	workers 	would 	be 	contracted out.
2. 	Voluntary Demotion 	This provision 	related 	to 	the
circumstances 	under 	which 	an 	employee 	could 	request 	voluntary
demotion 	to a position 	in which 	he/she had 	not 	served 	if 	the
employee 	possessed 	the 	minimum qualifications 	for 	the position
in question.
12

3. 	Health 	and Welfare Benefits 	This provision would
require 	the 	District 	to continue 	to pay 	for 	full 	employee
coverage 	for 	a period of 	12 months 	following 	the 	layoff.
4. 	Sick 	Leave Benefits 	This 	section provided 	that
employees 	would 	be 	credited 	with 	accrued 	sick 	leave 	if 	and 	when
they were 	rehired 	by 	the 	district.
5. 	Vacation Benefits 	This 	section provided 	that
employees 	would 	be 	paid 	all 	accumulated 	vacation benefits 	upon
layoff 	and would, 	when 	rehired, 	be 	at 	the 	same vacation accrual
rate.
6. 	Salary Placement 	This proposal pertained 	to 	the 	rate
at 	which 	an 	employee 	would 	be hired 	back.
7. 	Salary Placement 	for 	Employees 	Exercising 	Displacement
Rights 	This 	section provided 	that 	salaries 	would 	remain 	the
same 	for 	lateral displacement 	and 	that 	for 	displacement 	to a
lower 	position, 	the 	salary 	step 	selected 	would 	be 	that 	closest
to what 	the 	employee previously 	earned.
11
8. 	Severance 	Pay 	This 	section 	required 	a minimum of 	two
months of pay.
9. 	Paid 	Leave 	This 	section provided 	that persons on a
paid 	leave 	would 	continue 	in 	that 	status 	even 	if 	their 	position
was 	eliminated.
10. 	Work 	Load 	This 	section provided 	that 	no employee
remaining 	in 	the 	bargaining 	unit 	would 	be 	subject 	to an
increased 	work 	load.
13

11. 	Reduction 	in Assignments 	This 	section provided 	that
the District 	could 	not 	reduce 	any assignments 	and 	that 	if 	there
was a 	lack of work or 	lack of 	funds, 	the 	remedy was 	to
eliminate positions.
Although 	discussions 	did 	take place 	regarding 	CSEA's
proposals, 	and CSEA dropped 	item number 	two because 	it was
already covered 	by 	the contract. 	Clem made 	it clear 	that 	the
District 	did 	not 	intend 	to 	negotiate 	regarding 	the 	effects of
layoffs 	or 	the 	decision 	to 	reduce 	assignments 	because CSEA had
contractually 	waived 	any 	right 	it 	had 	to 	bargain 	about 	such
matters.
Following 	the meeting on May 28, 	1982, 	the Board of
Trustees 	took 	action 	to 	approve 	the 	layoff of 	certain personnel
and 	the 	reduction of hours of 	two 	teachers' 	aides 	from seven
hours 	per 	day 	to 	three 	and 	three-quarter 	hours per 	day. 	Clem
wrote 	to Castillo and 	explained 	the Board's 	action 	and
expressed 	his 	willingness 	to discuss matters 	with 	Castillo 	if
he 	thought 	the Board's 	actions 	were 	inconsistent with 	the
contract.6
On June 	2, 	1982, 	Marvel wrote 	to the Board of Trustees of
the 	District 	outlining 	CSEA's position 	and 	urging 	the 	Board 	to
rescind 	its 	action 	until 	the 	District 	and 	CSEA had 	had 	an
6At 	the 	PERB hearing, 	CSEA stipulated 	that 	it was not
alleging 	any 	violation of 	the 	collective 	bargaining 	contract
with 	respect 	to 	the 	action 	taken by 	the 	District 	in 	laying off
employees 	and 	reducing employees 	in hours.
14

opportunity 	to 	negotiate. 	Marvel's 	letter 	was 	followed by a
presentation 	to the Board 	at 	its meeting on June 	14, 	1982.
According 	to Marvel, 	the Board 	never 	formally 	responded 	to
CSEA's 	request, 	but Clem did 	communicate with him 	indicating
that 	if CSEA wanted 	resolution of 	the dispute, 	it would have 	to
go 	to PERB. 	The 	employees 	in question were 	laid off or 	reduced
in hours, effective June 30, 1982.
In 	late July, 	CSEA was 	again advised 	that 	the Board
intended 	to 	layoff 	two cooks 	and 	reduce 	the 	work 	year 	of 	an
Account 	Clerk 	I. 	Again Marvel was 	advised 	by Clem 	that 	the
District 	would 	not 	bargain 	regarding 	either 	the 	effects 	of 	the
layoffs 	or 	the 	decision 	to 	reduce 	the 	work 	year 	of 	the Account
Clerk. 	Those personnel 	actions 	became effective on
September 8, 	1982.
ISSUES
1. 	Is 	a public 	school 	employer 	required 	to 	negotiate with
an 	exclusive 	representative 	regarding 	the 	effects 	of 	a 	layoff?
2. 	Is 	the 	decision 	to 	reduce 	hours of employment or 	the
length of 	the 	work 	year 	a matter 	within 	the 	scope of
representation7 in 	a 	non-merit 	school district covered by
Education 	Code 	section 	45101(g)?
7Section 	3543.2(a) 	defines 	the 	scope of 	representation as
follows:
The 	scope 	of 	representation 	shall 	be 	limited
to matters 	relating 	to wages, 	hours of
15

3. 	Did CSEA waive 	its 	right 	to bargain about 	the 	impact of
layoffs 	or 	the decision 	to reduce hours?
CONCLUSIONS 	OF 	LAW
Scope 	of 	Representation-Effects 	of 	Layoffs
The 	District 	takes 	the position 	that matters 	concerning 	the
effects 	of 	a 	layoff 	are 	outside 	the 	scope of 	representation 	and
accordingly, 	its 	refusal 	to bargain with CSEA was 	not
unlawful. 	CSEA, 	relying, 	in part, 	upon Newman-Crows Landing
Unified 	School District 	(6/30/82) 	PERB Decision No. 	223
maintains 	that 	the effects 	or 	the 	impact of 	a 	layoff 	are a
mandatory 	subject 	of 	negotiations.
In Newman-Crows 	Landing, 	the 	PERB noted 	that although 	the
decision 	to 	lay off 	employees 	is 	clearly a management 	right,
employment, 	and other 	terms 	and conditions
of 	employment. 	"Terms 	and 	conditions of
employment" 	leave, 	transfer 	and 	reassignment
policies, 	safety conditions of employment,
class 	size, 	procedures 	to be used 	for 	the
evaluation of employees, 	organizational
security pursuant 	to 	section 	3546,
procedures 	for 	processing 	grievances
pursuant to sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 of 	the 	Education
Code. 	. 	. 	. 	All matters not specifically
enumerated 	are 	reserved 	to 	the 	public 	school
employer 	and may not 	be 	a 	subject of meeting
and 	negotiating, 	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.
16

since 	"[t]he 	layoff 	of 	employees 	unquestionably 	impacts 	on
their wages, 	hours, 	and other conditions of employment" a
school district 	is 	obliged 	to give 	the 	exclusive 	representative
an 	opportunity 	to 	negotiate 	regarding 	the 	effects of 	the 	layoff
on 	matters 	within 	the 	scope 	of 	representation.8
In 	reaching 	that 	conclusion, 	the 	PERB applied 	the 	standards
it 	had 	developed 	in Anaheim Union High 	School District
(10/28/81) 	PERB Decision No. 	177 	for 	determining whether
matters 	fall 	within 	the 	scope of 	representation when 	they are
not specifically enumerated 	in section 	3543.2(a). 	The Anaheim
test provides:
[A] 	subject 	is negotiable even 	though not
specifically enumerated 	if 	(1) 	it 	is
logically 	and 	reasonably 	related 	to hours,
wages 	or 	an 	enumerated 	term 	and 	condition of
employment, 	(2) 	the subject is of such
concern 	to 	both 	management 	and 	employees
that 	conflict 	is 	likely 	to occur 	and 	the
mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means of
resolving 	the conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not
significantly abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental policy)
essential 	to 	the 	achievement of 	the
district's 	mission.
Since 	the 	formal hearing 	in 	the 	instant case, 	the California
Supreme 	Court 	decided 	the 	case 	of 	San Mateo City 	School
District 	v. 	Public 	Employment 	Relations Board 	(1983)
8In 	Newman-Crows 	Landing 	the 	PERB 	found 	no violation of
the Act, 	however, 	because 	it 	found 	the 	union had only made a
demand 	to bargain 	about 	the 	layoff 	itself.
17

33 Cal.3d 	850. 	In that case, 	the Court approved 	the use of
PERB's Anaheim 	test 	to determine 	whether 	a matter 	is
negotiable. 	Therefore, 	based 	upon PERB precedent and
application of 	the 	Anaheim 	test, 	an employer 	cannot 	refuse 	to
bargain 	with 	the 	exclusive 	representative 	regarding 	the 	impact
of 	layoffs 	on 	matters 	within 	the 	scope 	of 	representation.9
Scope 	of 	Representation-Decision 	to 	Reduce 	Hours
The 	District 	takes 	the 	position 	that 	since 	the 	decision 	to
lay off 	employees 	is 	non-negotiable 	and 	since 	the 	decision 	to
reduce hours of work 	for 	employees 	is, 	as a matter of law, 	the
same 	as 	a decision 	to layoff, 	that 	decision 	is also outside 	the
scope of 	representation. 	That argument, 	which 	is based upon
the 	definitional 	language 	set 	forth 	in Education Code 	section
45101 	(g), 	was 	recently considered 	by the PERB and 	rejected.
In 	Pittsburg Unified 	School 	District 	(6/10/83) 	PERB Decision
No. 	318 	the Board held 	that 	even 	in a non-merit 	school district
decisions 	regarding 	a 	reduction 	in 	hours 	of work 	or 	length of
the work 	year 	must 	be 	negotiated.
In Pittsburg, 	the PERB 	interpreted Education Code 	section
45101 	(g) 	and 	the Court of Appeal's decision 	in CSEA v.
9Unlike 	the union 	in Newman-Crows Landing, 	supra, 	in the
instant 	case CSEA made 	an 	appropriate 	demand. 	The 	evidence
established 	that 	CSEA never 	challenged 	or 	sought 	to negotiate
the decision 	to 	lay off. 	Most of 	the proposals 	related 	to
workload, 	fringe benefits, 	and wages, 	matters directly related
or 	reasonably 	related 	to 	enumerated 	subjects 	within 	the 	scope
of 	representation.
18

Pasadena Unified School District 	(1977) 	41 Cal. 	App.3d 318, 	a
case 	involving 	the 	application of 	that 	section, 	and 	noted:
In our 	view, 	the Pasadena decision 	stands
only 	for 	the obvious proposition 	that, 	when
faced 	with 	a bona 	fide 	lack 	of 	funds or 	lack
of work, 	an 	employer may offer 	to employees
the 	option of 	accepting 	a 	reduction 	in 	their
hours 	in 	lieu of layoff, 	so long as 	it
selects 	those 	to whom 	it 	tenders 	such offers
by 	the 	same manner 	prescribed 	in 	the
Education Code 	for 	selection 	for 	layoff. 	It
does 	not 	expressly or 	impliedly hold 	that
the 	Education Code 	enables 	school 	employers
to 	reduce 	the hours 	of employees 	in lieu of
layoff without 	their 	consent, 	nor does 	it
hold 	that 	an 	involuntary 	reduction 	in hours
is 	the equivalent of 	a 	layoff by Education
Code definition. 	Pittsburg at p. 	15.
In 	the 	instant case, 	there 	is 	no evidence 	that 	the District
received 	or 	even 	sought 	the 	consent of 	the 	employees 	who were
reduced 	in 	hours 	and 	the 	employee 	whose 	work 	year 	was
shortened. 	Thus, 	in 	failing 	to comply with 	the provisions of
the Education Code, 	the District cannot use 	it as a shield 	in
this proceeding.
Moreover, 	even had 	the 	District complied with 	the
provisions of 	the Education Code, 	the decision 	to 	reduce hours
would 	still be 	negotiable. 	The mere 	fact 	that 	the 	terms 	layoff
and 	reduction 	in 	hours 	are 	treated 	the 	same 	under 	certain
limited 	circumstances 	in 	the 	Education Code 	does 	not compel 	the
same 	interpretation of 	those words 	in 	the EERA. 	"Hours" 	is a
specifically 	enumerated 	subject 	of 	bargaining 	under 	the 	EERA,
"layoff" 	is not. 	As 	the Board 	noted 	in Pittsburg, 	supra:
19

[T]he 	right 	of public 	school 	employers 	to
unilaterally decide 	to 	layoff 	is 	a 	limited
exception 	to 	the principle 	that 	all
decisions 	affecting 	wages 	and 	hours must 	be
negotiated. 	Id. 	at p. 	19.
-
See 	also, 	North Sacramento School District 	(12/31/81) 	PERB
Decision No. 	193. 	Thus, 	absent some viable defense, 	the
District's 	refusal 	to bargain with 	CSEA regarding 	the 	decision
to 	reduce 	hours 	and 	the 	length 	of 	the 	school year 	for 	certain
employees constitutes a violation of 	section 3543.5 	(c).
The Waiver 	Defense
The 	District 	alleges 	that 	CSEA waived 	whatever 	rights 	it
might 	have 	to 	bargain 	regarding 	the 	impact of 	layoffs 	and 	the
decision 	to reduce hours. 	That waiver, 	the District alleges,
is 	evidenced 	by 	the 	bargaining 	history 	and 	the 	contract
language 	ultimately 	ratified 	by CSEA and 	by virtue 	of 	the 	fact
that 	CSEA abandoned 	its 	alleged 	right 	to 	bargain 	regarding 	the
impact of 	layoffs 	in October 	1981.
CSEA takes 	the position 	that 	it 	never 	waived 	its 	right 	to
bargain about 	the 	aforementioned 	subjects. 	It 	is 	alleged 	that
Stephens 	specifically 	refused 	to agree 	to a 	"waiver" 	clause 	in
the 	layoff 	section of 	the 	contract 	and 	that 	the Management
Rights clause 	is 	too general 	to constitute a waiver of 	specific
statutory 	rights. 	CSEA further 	argues 	that even 	if 	its 	failure
to pursue 	a 	demand 	to 	negotiate 	regarding 	all 	the 	effects of
the 	layoff 	in 	1981 constitutes 	a waiver 	of 	its 	rights with
respect 	to layoffs, 	there was 	no reduction 	in hours 	in 	1981
20

and, 	accordingly, 	no waiver 	can be 	found 	with 	respect 	to 	the
District's 	duty 	to bargain 	about 	its 	decision 	to 	reduce 	hours
and 	the 	length 	of 	the work 	year.
It 	is well 	settled 	that 	in order 	to 	find a waiver 	PERB
requires 	clear 	and 	unmistakable 	evidence 	that 	a party has
relinquished 	its 	right 	to bargain. 	Amador Valley Joint Union
High School District 	(10/2/78) 	PERB Decision No. 	74.
With 	respect 	to contract 	terms 	serving 	as 	evidence 	of 	a
waiver, 	in Los Angeles Community College District 	(10/18/82)
PERB Decision No. 	252, 	the Board held:
[C]ontract 	terms 	will 	not 	justify a
unilateral management 	act 	on 	a mandatory
subject 	of 	bargaining 	unless 	the 	contract
expressly 	or 	by 	necessary 	implication
confers 	such 	right. 	New York Mirror 	(1965)
151 NLRB 834, 	[58 LRRM 1456, 1457].
Here, 	the 	contract 	between CSEA and 	the 	District does 	not
justify unilateral action. 	There 	is no waiver, 	either 	express
or 	implied 	in 	the 	layoff 	section 	itself. 	The Management Rights
clause 	is, 	as Stephens correctly characterized 	it, 	"quite
limited." 	The District 	retained 	the 	right 	to do 	that which 	it
had 	a 	right 	to do prior 	to 	the 	execution of 	the contract.
Since 	the District 	did 	not 	have 	the 	right 	to 	refuse 	to bargain
regarding 	the 	effects 	of 	the 	layoff on matters 	within 	the 	scope
of 	representation 	and 	the 	decision 	to 	reduce 	hours of work
prior 	to execution of 	the 	contract, 	the Management Rights
clause 	did 	not 	confer 	that 	right.
21

In Los Angeles Community College District, 	supra, 	the PERB
also addressed 	the 	use of bargaining 	history as 	evidence 	of 	a
waiver 	of 	a 	statutory 	right. 	Citing 	cases 	decided 	in 	the
private 	sector,10 the 	Board 	held:
Under 	the 	National 	Labor 	Relations Act 	(NLRA
or Act), 	union conduct 	in negotiations will
make 	out a waiver 	only 	if 	a 	subject was
"fully discussed" 	or 	"consciously 	explored"
and 	the 	union 	"consciously yielded" 	its
interest 	in the matter. 	Press Co. 	(1958)
121 NLRB 976. 	. 	. 	. 	The fact that a union
drops 	a contract proposal during 	the 	course
of 	negotiations 	does 	not mean 	it has waived
its 	bargaining 	rights 	and 	ceded 	the matter
to management prerogative. 	Beacon Piece
Dyeing 	and 	Finishing Co 	(1958) 	121 NLRB
953. 	Where, 	during negotiations, 	a union
attempts 	to 	improve 	upon or, 	as 	in this
case, 	to codify the 	status quo 	in 	the
contract and 	fails 	to do so, 	the 	status quo
remains 	as 	it was 	before 	the proposal was
offered. 	The union has 	lost 	its opportunity
to codify 	the matter, 	it has 	failed 	to make
the matter 	subject 	to 	the 	contract's
enforcement procedures 	or 	to gain 	any other
benefit 	that might have 	accrued 	to 	it 	if 	its
effort had succeeded. 	. 	. 	. 	But the union
has 	not 	relinquished 	its 	statutory right 	to
reject 	a management 	attempt 	to 	unilaterally
change 	the 	status 	quo without 	first
negotiating with 	the 	union. 	In a 	sentence,
by dropping 	its 	demand, 	the 	union 	loses what
it 	sought 	to gain, 	but 	it does 	not 	thereby
grant 	management 	the 	right 	to 	subsequently
institute 	any unilateral change 	it chooses.
A contrary 	rule 	would 	both 	discourage 	a
10It 	is 	appropriate 	for 	the Board 	to 	take 	guidance 	from
federal 	labor 	law precedent 	when 	applicable 	to public 	sector
labor 	relations 	issues. 	Fire Fighters Union, 	Local 	1186 v.
City of Vallejo 	(1974) 	12 Cal.3d 608 	[116 Cal.Rptr. 	507]; 	Los
Angeles 	County Civil 	Service 	Commission v. 	Superior 	Court
(1978) 	23 Cal.3d 65 	[151 Cal.Rptr. 	547].
22

union 	from making 	proposals 	and 	management
from 	agreeing 	to 	any proposals 	made,
seriously 	impeding 	the 	collective 	bargaining
process. 	Beacon Piece, 	supra. 	Id at
pp. 	12-13.
In 	the 	instant case, 	through bargaining, 	CSEA attempted 	to
codify 	some 	of 	the 	rights 	it 	had 	under 	the EERA and 	some of 	the
protections 	its members 	had pursuant 	to 	the Education Code. 	As
noted 	in 	the paragraph quoted 	above, 	in abandoning 	that effort
CSEA did 	not 	give 	up 	its 	statutory 	rights.11 Accordingly, 	no
waiver 	is 	found 	in either 	the contract or 	the 	bargaining
history.
The 	only 	remaining 	defense 	advanced 	by 	the 	District 	is 	that
the 	inaction of 	CSEA when 	it 	received 	notice of 	a proposed
layoff 	in 	1981 	constitutes 	either 	a waiver 	of 	the 	right 	to
bargain regarding 	the 	effects of 	layoffs 	in 	1982 or 	constitutes
an 	admission 	by CSEA that 	it 	had 	waived 	its 	right 	to bargain
regarding 	layoffs. 	No matter 	how 	this 	aspect of 	the defense 	is
characterized, 	it cannot be 	sustained.
It 	is 	true 	Clem 	testified 	that 	when 	Stephens 	requested
negotiations 	in 	1981 	and 	Clem 	responded 	the matter 	had 	been
exhausted 	at 	the 	table, 	Stephens did 	not 	take 	any 	further
11Respondent's 	reliance on Nevada Cement Co. 	(1970) 	181
NLRB 	738 	is misplaced. 	In 	that 	case 	the Board 	found 	that a
union had 	waived 	its 	right 	to bargain 	about 	continued 	employer
contributions 	to a Supplemental 	Income Plan 	(SIP). 	But there,
unlike here, 	the contract was not 	silent. 	It specifically
addressed 	SIP contributions 	and 	the 	extent 	of 	the 	employer's
obligation 	to make 	them.
23

action 	with 	respect 	to 	the 	matters 	of 	fringe benefits 	and
severance 	pay. 	Discussions 	and meetings did 	take place,
however, 	regarding 	the 	impact of 	the 	1981 	layoff on 	the work
load 	and 	hours 	of 	the 	remaining 	work 	force. 	Respondent has 	not
cited 	any 	authority 	for 	the 	proposition 	that 	CSEA abandoned 	its
statutory 	right 	to bargain 	about 	the 	effects of 	layoffs on
matters 	within 	the 	scope 	of 	representation because 	on a 	single
occasion 	it did 	not 	choose 	to exercise 	the 	full 	scope of 	its
right. 	The mere 	fact Stephens 	did 	not pursue 	all aspects of
her 	request 	to negotiate 	is 	simply not 	a 	sufficient basis 	to
conclude 	that 	she 	was 	acknowledging 	or 	agreeing 	to 	that CSEA
had 	waived 	its 	right 	to negotiate 	in 	the 	course of contract
negotiations 	the year 	before.
Obviously, 	since 	the District did 	not 	attempt 	to
involuntarily 	reduce 	the 	working 	hours 	of 	employees 	in 	1981,
the 	District's 	allegation 	of 	waiver 	by 	inaction can have 	no
application 	to CSEA's 	1982 	bargaining 	demand on 	that 	subject.
Based 	upon 	the 	foregoing, 	it 	is 	found 	that 	the District
violated 	section 	3543.5(c) 	in 	failing 	to give CSEA an
opportunity 	to meet 	and 	negotiate 	regarding 	the 	effects 	of
layoffs 	on matters 	within 	the 	scope 	of 	representation 	and 	on
the 	decision 	to 	reduce 	the 	length 	of 	the 	workday and 	the 	length
of 	the 	work 	year. 	In 	taking 	action 	in violation of 	section
3543.5(c), 	the District concurrently violated sections
24

3543.5(a) 	and 	(b). 	San Francisco Community College District
(10/12/79) 	PERB Decision No. 	105.
REMEDY
In a 	case 	in which 	the 	employer 	has 	taken 	unilateral
action, 	it 	is appropriate 	to order 	that employer 	to restore 	the
status quo ante. 	In 	the 	instant case, 	the Charging Party has
requested 	an 	order 	restoring 	the 	status 	quo 	and 	making 	the
affected 	employees 	whole 	for 	any 	loss of 	wages 	or 	other
benefits 	arising 	from 	the 	unlawful 	unilateral 	action.
Such 	a 	remedy 	is 	appropriate 	with 	respect 	to 	those
employees 	who 	suffered 	an 	involuntary 	reduction 	in hours or
length 	of 	the 	school year 	because 	the 	District 	was 	obligated 	to
bargain 	about 	the 	decision 	itself. 	Accordingly, 	upon 	request
by CSEA, 	the 	two 	teacher's 	aides 	and 	the Account Clerk 	I 	shall
be 	reinstated 	to 	their 	full 	hours 	of 	employment prior 	to June
and 	September, 	respectively. 	The 	three 	employees whose 	hours
were 	reduced 	shall 	be made 	whole 	for 	any 	loss 	of 	economic
benefits 	suffered 	as 	a 	result 	of 	the 	District's 	reduction 	in
hours, 	with 	interest 	at 	the 	rate of 	7 percent per 	annum until:
(1) 	the date 	the parties 	reach agreement; 	(2) 	completion of the
statutory 	impasse procedures; 	(3) 	the 	failure of CSEA to
request 	bargaining 	within 	10 	days 	following 	service 	of 	this
decision; 	or 	(4) 	the 	subsequent 	failure of CSEA to bargain 	in
good 	faith. 	North 	Sacramento School District 	(12/31/81) 	PERB
25

Decision No. 	193; 	Alum Rock Unified 	Elementary School District
(6/27/83) 	PERB Decision No. 	322.
The 	restoration of 	the 	status 	quo 	and 	a make 	whole 	remedy
are 	not 	appropriate 	with 	respect 	to 	those 	employees who were
laid off. 	That 	is 	because 	there 	is 	no dispute 	that 	the
District 	had 	the 	authority 	to 	unilaterally 	decide 	to 	lay off
employees. 	See 	Newark 	Unified 	School District, Board of
Education 	(6/30/82) 	PERB Decision No. 	225; 	South Bay Union
School 	District 	Board 	of 	Trustees 	(8/19/82) 	PERB Decision
No. 	207a. 	Nevertheless, 	the duty to bargain arises before a
layoff 	is 	effectuated 	and 	a mere 	bargaining 	order 	will 	not
restore 	CSEA 	to 	the 	bargaining 	position 	it 	had prior 	to 	the
layoff.
The question of 	the 	appropriate 	remedy 	for 	an employer
refusal 	to 	bargain 	over 	the 	effects 	of 	a 	decision when 	the
decision 	itself 	is 	a management 	right 	is 	one which has 	been
considered by 	the NLRB, 	federal courts, 	and 	the California
Supreme Court. 	In Highland Ranch v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 Cal.3d 	848, 	the Supreme Court
approved 	the 	concept 	of 	a 	limited 	back-pay award 	in 	a case
where 	the 	employer 	had 	refused 	to bargain over 	the 	effects 	of
selling 	its 	ranch. 	Quoting 	extensively 	from the NLRB's
decision 	in Transmarine Navigation Corp. 	(1968) 	170 NLRB 389,
the 	Court 	held:
It 	is apparent 	that, 	as a result of the
[employer's] 	unlawful 	failure 	to bargain
26

about 	[the] 	effects 	[of 	its 	termination of
employment], 	the 	[employees] 	were denied an
opportunity 	to 	bargain 	through 	their
. 	. 	. 	representative at a time prior 	to the
shutdown 	when 	such 	bargaining 	would 	have
been meaningful 	in 	easing 	the 	hardship on
employees 	whose 	jobs 	are 	being 	terminated
. . . . 	Under 	the 	circumstances 	of 	this
case 	. . . 	it 	is 	impossible 	to 	reestablish a
situation 	equivalent 	to 	that 	which would
have prevailed 	had 	the 	[employer] 	more
timely 	fulfilled 	its 	statutory 	bargaining
obligation. 	In 	fashioning 	an appropriate
remedy, 	we must 	be guided 	by 	the principle
that 	the wrongdoer, 	rather 	than 	the victims
of 	the wrongdoing, 	should 	bear 	the
consequences of his unlawful conduct, 	and
that 	the 	remedy 	should 	'be 	adapted 	to 	the
situation 	that 	calls 	for 	redress.'" 	(170
N.L.R.B 	at p. 	389 	(quoting 	Labor Board v.
Mackay Co. 	(1938) 	304 U.S. 	333, 	348 	[82
L.Ed. 	1381, 1391, 	58 S.Ct. 	904]).)
Applying 	these principles 	to 	the 	instant
case, 	we deem it necessary, 	in order 	to
effectuate 	the purposes of 	the Act, 	to
require 	the 	[employer] 	to bargain with 	the
Union 	concerning 	the 	effects 	of 	the 	shutdown
on 	its 	[former employees]. 	Under 	the
present circumstances, 	however, 	a bargaining
order 	alone 	cannot 	serve 	as 	an adequate
remedy 	for 	the 	unfair 	labor 	practices
committed by the 	[employer]. 	As we recently
pointed 	out 	in 	Royal 	Plating 	and 	Polishing
Co., Inc. 	[(1966) 160 N.E.R.B. 990, 997]:
'The Act 	required more 	than pro 	forma
bargaining, 	but pro 	forma bargaining 	is all
that 	is 	likely 	to 	result 	unless 	the Union
can 	now 	bargain 	under 	conditions 	essentially
similar 	to 	those 	that 	would 	have obtained,
had 	[the employer] 	bargained 	at 	the 	time 	the
Act 	required 	it 	to do 	so. 	If 	the Union must
bargain devoid of 	all economic 	strength, 	we
would 	perpetuate 	the 	situation 	created 	by
[the employer's] 	deliberate concealment of
relevant 	facts 	from 	the 	Union 	which
prevented 	the 	Union 	from meaningful
bargaining.'" 	(Id., 	at p. 	390.) 	29 Cal.3d at
863.
27

For 	the 	reasons 	set 	forth 	in Highland 	Ranch 	the 	remedy
approved 	in 	that case 	is 	appropriate 	in 	the 	instant case.
Accordingly, 	beginning 	10 	days 	from service of 	the 	final
decision 	in 	this 	case, 	the 	employer 	will be 	required 	to pay 	the
laid-off 	employees 	their 	salary 	and 	benefits 	at 	the 	rate 	being
paid 	just prior 	to 	their 	lay off until: 	(1) 	the date 	the
District 	bargains 	to 	agreement 	with 	CSEA 	regarding 	the 	impact
of 	its decision 	to lay off 	the concerned 	employees; 	or 	(2) 	the
date 	the District 	and CSEA bargain 	to a bona 	fide 	impasse; 	or
(3) 	the 	failure of CSEA to 	request bargaining within 	10 	days
after 	service 	of 	this 	decision or 	to 	commence 	negotiations
within 	5 working 	days of 	the District's 	notice of 	its desire 	to
bargain; 	or 	(4) 	the 	subsequent 	failure of CSEA to bargain 	in
good 	faith.
It 	is 	also appropriate 	to order 	the 	District 	to cease 	and
desist 	from 	refusing 	to 	bargain 	with 	the 	CSEA 	regarding 	the
impact of 	layoffs 	on matters 	within 	the 	scope 	of 	representation
and 	its decisions 	to reduce assignments. 	Additionally, 	the
District 	will 	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, 	defaced, 	altered or 	covered 	by any material. 	Posting
such 	a 	notice 	will 	inform employees 	that 	the District 	has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to cease 	and 	desist
28

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
ordered 	remedy. 	See 	Placerville Union School 	District
(9/18/78) 	PERB Decision No. 	69. 	In Pandol and Sons v. 	ALRB and
UFW 	(1979) 	98 Cal.App.3d 589, 	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 Government
Code 	section 3541.5(c), 	it 	is hereby ordered that 	the Placentia
Unified 	School, 	its 	governing Board 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	of 	its 	certificated
employees 	by 	taking 	unilateral 	action 	on matters 	within 	the
scope of 	representation, 	as 	defined 	in 	section 	3543.2
specifically with 	reference 	to 	the 	impact 	of 	layoffs 	and 	the
decision 	to 	reduce 	the hours of work 	of employees.
2. 	Denying 	the California School Employees
Association 	and 	its 	Placentia Chapter 	#293 	their 	right 	to
29

represent 	unit members 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	about matters 	within 	the 	scope 	of 	representation.
3. 	Interfering 	with 	employees 	because of 	their
exercise 	of 	their 	right 	to 	select 	an exclusive 	representative
to meet 	and 	confer 	with 	the 	employer 	on 	their 	behalf 	by
unilaterally 	changing matters 	within 	the 	scope 	of
representation 	without 	first 	providing 	notice 	and 	the
opportunity 	to meet 	and 	confer 	to 	the 	exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE EDUCATIONAL 	EMPLOYMENT RELATIONS
ACT:
1. 	Upon 	request of 	the Association, 	rescind 	the
decision 	to 	reduce 	hours 	of 	work of 	the 	teacher's 	aides 	and 	the
account 	clerk 	effectuated 	in June 	and 	September 	1982. 	The
three 	employees 	whose 	hours 	were 	reduced 	shall be made whole
for 	any 	loss 	of 	economic 	benefits 	suffered 	as 	a 	result of 	the
District's 	reduction 	in 	hours 	with 	interest 	at 	the 	rate of
7 percent per 	annum until: 	(1) 	the date 	the parties 	reach
agreement; 	(2) 	completion of 	the 	statutory 	impasse procedures;
(3) 	the 	failure of CSEA to 	request 	bargaining within 	10 	days
following 	service of 	this decision; 	or 	(4) 	the 	subsequent
failure of 	CSEA to bargain 	in good 	faith.
2. 	Beginning 	10 	days 	from 	service of 	the 	final
decision herein, 	pay 	the 	employees who were 	laid off 	in June
and 	September 	their 	salary 	and 	benefits 	at 	the 	rate 	being paid
prior 	to 	their 	layoff until: 	(1) 	the date 	the District
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bargains 	to 	agreement 	with 	CSEA regarding 	the 	impact of 	its
decision 	to 	lay off 	the concerned 	employees; 	or 	(2) 	the date
the District 	and CSEA bargain 	to a bona 	fide 	impasse; 	or
(3) 	the 	failure of CSEA to 	request 	bargaining within 	10 	days
from 	service 	after 	issuance 	of 	the 	final 	decision or 	to
commence 	negotiations within 	5 	working 	days 	of 	the 	District's
notice of 	its desire 	to bargain; 	or 	(4) 	the subsequent 	failure
of 	CSEA to bargain 	in good 	faith.
3. 	Within 	five 	(5) 	days after 	this decision becomes
final, 	prepare 	and post 	copies of 	the NOTICE TO EMPLOYEES
attached 	as 	an appendix hereto, 	for 	at 	least 30 consecutive
workdays 	at 	its 	headquarters 	office 	and 	in conspicuous places
at 	the 	locations 	were 	notices 	to classified 	employees 	are
customarily posted. 	It must 	not be 	reduced 	in 	size 	and
reasonable 	steps 	and 	should be 	taken 	to 	see 	that 	it 	is 	not
defaced, 	altered 	or 	covered 	by any material;
4. 	Within 	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
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become 	final 	on 	August 	15, 	1983, 	unless 	a party 	files 	a
timely 	statement of 	exceptions. 	In 	accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part 	III, 	section 32300. 	Such 	statement of exceptions and
supporting 	brief must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations Board 	itself 	at 	the 	headquarters office 	in
Sacramento before 	the close 	of 	business 	(5:00 p.m.)
on 	August 	15, 	1983, 	or 	sent 	by 	telegraph 	or 	certified United
States mail, 	postmarked 	not 	later 	than 	the 	last day 	for 	filing
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, 	section 32300 and 32305.
Dated: 	July 25, 	1983
Barbara E. Miller
Administrative Law Judge
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