Los Rios Community College District (PERB 0684E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS 	RIOS 	CLASSIFIED 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE DISTRICT
Respondent.
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) 	Case 	No. 	S-CE-982
PERB 	Decision 	No. 	684
June 23, 	1988
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Appearances: 	Kathy Felch, 	Attorney, 	for 	the Los 	Rios 	Classified
Employees Association; 	Susanne M. 	Shelley, 	Attorney, 	for the Los
Rios 	Community 	College 	District.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the 	Los
Rios 	Classified 	Employees Association 	(LRCEA) 	to the proposed
decision of 	a PERB 	administrative 	law 	judge 	(ALJ) 	dismissing
its 	charge 	that 	the 	Los 	Rios 	Community 	College 	District
(District) 	unilaterally changed a past 	practice 	of 	observing
Lincoln's 	Birthday 	on 	a 	date 	which provides 	for 	two 	three-day
weekends 	in 	February 	(in 	conjunction with 	Washington's
Birthday) 	rather 	than 	one 	four-day weekend. 	The ALJ 	found 	that
LRCEA waived 	its 	right 	to bargain 	over 	the 	1985-1986 	calendar
for 	classified 	employees 	since 	it 	refused 	the 	District's
invitation 	to bargain. 	The ALJ 	rejected 	LRCEA's 	assertion 	that
the 	"zipper" 	clause 	in the parties' 	collective bargaining
agreement 	allowed 	it 	to 	refuse 	the 	invitation 	to bargain.
__)

Having 	found 	waiver 	on 	the 	part 	of 	LRCEA, 	the ALJ 	concluded
that 	it 	was 	unnecessary to address 	the 	District's 	assertion
that 	the 	charge 	was 	untimely.
We 	have 	reviewed 	the 	entire 	record, 	including 	the proposed
decision, 	the 	exceptions 	thereto and 	the 	response 	to the
exceptions 	and, 	finding 	the ALJ's 	findings 	of 	fact 	to be 	free
of 	prejudicial 	error, 	we adopt 	them as 	our 	own. 	We affirm 	the
dismissal 	of the charge. 	However, 	as 	set 	forth below, 	our
analysis 	differs 	from 	that 	of 	the ALJ.
FACTUAL 	SUMMARY
Section 17.1 of 	the parties' 	collective bargaining
agreement 	lists 	legal 	holidays, 	including Lincoln's 	Birthday
(February 1 2 ) . 	The 	agreement does 	not 	specify the dates 	of
observance 	for each holiday; 	however, 	it does make 	reference 	to
California 	Education 	Code 	section 	79020. 	That 	section mandates
the 	observance 	date 	for 	most holidays 	but 	allows 	discretion
when February 	12 	falls 	on 	certain 	days 	of 	the 	week.1 When 	it
1Education 	Code 	section 	79020 	states, 	in pertinent part;
(h) 	When Veterans 	Day or 	Lincoln 	Day would
fall 	on Tuesday, 	the 	governing board of 	a
community 	college 	district 	may 	close 	the
colleges 	on 	the preceding Monday, 	and
maintain 	classes 	on 	the 	date 	specified 	in
subdivision 	(a). 	When Veteran's 	Day or
Lincoln 	Day would 	fall 	on Wednesday, 	the
governing board 	of 	a 	community 	college
district may close 	the 	colleges 	on 	either
the 	preceding Monday 	or 	the 	following
Friday, 	and maintain classes 	on 	the 	date
specified 	in subdivision 	(a). 	When Veterans
Day or 	Lincoln 	Day would 	fall 	on 	Thursday,
the 	governing board 	of 	a 	community 	college
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falls 	on a Wednesday, 	as 	it did in 1986, 	it 	could have been
observed 	on 	either 	the preceding Monday 	or 	the 	following 	Friday.
district 	may 	close 	the 	colleges 	on 	the
following 	Friday, 	and maintain 	classes 	on
the date 	specified 	in subdivision 	(a).
On January 17, 	1985, 	District Vice-Chancellor 	Douglas
Burris 	sent 	a letter 	to Ann Lynch, 	president of LRCEA, 	(as well
as 	to 	representatives 	of 	other bargaining units) 	which proposed
to establish 	dates 	for 	"board-granted" 	days 	off 	during 	the
winter 	recess 	(December 	23-January 3 ) . 	Attached was 	a proposed
academic 	calendar 	for 	the 	1985-1986 	year. 	The 	letter 	ended by
stating:
Pursuant 	to 	the 	collective bargaining
agreement, 	if you have any questions or
desire 	to meet 	on any aspects 	of 	this
proposal, 	please give me a call. 	Our
current 	timeline 	calls 	for 	submitting 	this
item 	to 	the 	Board 	of 	Trustees 	on 	February 	6,
1985.
Burris 	testified 	that he 	expected 	to negotiate 	if 	any of 	the
representatives 	had 	concerns 	about 	the 	winter 	recess 	or
calendar. 	He 	sent 	the 	letter 	shortly after becoming
vice-chancellor 	and 	was 	unaware 	that 	in 	the past 	the 	District
had 	sent 	only 	the 	classified 	schedule 	to 	the 	employee
organizations 	for 	comment. 	Lynch 	testified 	that 	she was
surprised 	to 	receive 	the 	academic 	calendar because 	LRCEA had
previously negotiated 	only 	the 	classified 	schedule. 	She 	also
stated 	that 	she 	viewed 	Burris' 	letter 	as 	an 	offer 	to negotiate.
At Lynch's 	request, 	she and Burris met on January 28, 	1985.
They discussed primarily 	the 	winter 	recess 	issue 	and, 	according
33

to Lynch, 	they also discussed 	Lincoln's 	Birthday. 	Burris 	did
not 	recall 	discussing Lincoln's 	Birthday. 	On 	the 	same 	date,
Lynch 	wrote 	a 	follow-up 	letter 	wherein 	she 	indicated 	that 	the
"winter 	recess" 	proposal 	would be 	submitted 	to 	the 	LRCEA
executive board 	in 	early 	February. 	Lynch 	wrote 	to Burris 	again
on 	February 	13, 	stating 	that 	the 	union was 	responding 	to 	the
"District's 	desire 	to close 	the campuses 	on 	December 	23,
1985."2 Lynch 	stated 	that 	LRCEA declined 	to 	negotiate 	over
the 	issue 	until 	scheduled 	reopener 	negotiations 	in 	the 	fall 	and
that 	the 	refusal 	to bargain was based upon 	the 	zipper 	clause 	in
the parties' 	contract.^ 	Though Lynch's 	letter 	did not mention
2There 	was 	apparently 	some 	confusion 	over 	the 	status 	of
December 	23. 	The 	District's proposal 	listed 	the 	23rd as 	a work
day, 	but 	Lynch 	thought 	Burris 	had proposed 	at 	the January 	28
meeting 	that 	the 	campuses be 	closed 	that 	day 	(the 	23rd 	would
have been 	the 	only workday that week), 	forcing the 	employees 	to
use 	a 	vacation 	day. 	Burris 	recalled 	Lynch proposing 	that 	the
campuses 	close but 	that 	the 	23rd be 	deemed 	an additional
board-granted 	day 	off.
3The 	zipper 	clause 	reads 	as 	follows:
The parties 	acknowledge 	that 	during 	the
negotiations 	which 	resulted 	in 	this
Agreement, 	each had the unlimited 	right 	and
opportunity 	to make 	demands 	and proposals
with 	respect 	to 	any subject 	or 	matter
appropriate 	for 	collective bargaining, 	and
that 	the 	understanding 	and 	agreements
arrived 	at by the 	parties 	after 	the 	exercise
of 	that 	right 	and opportunity are 	set 	forth
in this Agreement. 	Therefore, 	the Board and
the Union 	for 	the 	life of 	this 	Agreement,
each 	voluntarily 	and 	unqualifiedly 	waives
the 	right, 	and each agrees 	that 	the 	other
shall 	not be 	obligated 	to bargain
collectively 	unless 	mutually 	agreed 	upon
with 	respect 	to any subject 	or matter, 	even
though 	such 	subjects 	or matter 	may not have
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Lincoln's 	Birthday, 	she 	testified 	that 	the 	letter was 	intended
to cover 	all 	calendar 	issues.
been 	within 	the 	knowledge 	or 	contemplation
of 	either 	or both of 	the parties 	at 	the 	time
they negotiated 	or 	signed 	this 	Agreement.
After 	receiving 	the 	letters 	from Lynch, 	Burris 	placed 	the
proposed 	academic 	calendar 	on 	the 	Board 	of 	Trustees 	agenda 	for
February 	20. 	Although 	copies 	of 	all 	agendas 	are 	sent 	to LRCEA,
no 	one 	from 	the 	union 	raised 	any 	issue 	at 	the 	meeting 	and 	the
calendar 	was 	adopted. 	Burris 	testified 	that 	he 	thought 	the
academic 	calendar 	was 	negotiable, 	even as 	to 	the 	classified
unit, 	but 	that 	in his 	estimation he had 	communicated 	the
proposal, 	yet 	received no 	response 	regarding any date 	on 	the
calendar. 	In 	response 	to 	a hypothetical 	question presented by
the ALJ, 	Burris 	stated 	that he 	assumed 	the 	parties 	would 	enter
into more 	formalized 	negotiations, 	should 	there be 	a major
disagreement 	over 	the 	calendar. 	However, 	he 	viewed LRCEA's
concerns 	as 	relating 	only 	to 	the winter 	recess 	issue, 	which he
viewed 	as 	separate 	from 	the 	calendar 	itself.
On 	March 	5, 	Lynch 	spoke 	with 	Classified 	Personnel 	Manager
Jimmy 	Mraule 	and 	Mraule 	followed 	up with 	a 	confirming 	letter 	of
the 	same 	date. 	Lynch had 	apparently become 	aware 	of 	the
District's 	intent 	to 	adopt 	a 	classified 	schedule 	incorporating
the 	academic 	calendar. 	They discussed both 	the 	schedule 	and 	the
winter 	recess. 	Mraule's 	letter 	assured 	Lynch 	that 	the 	District
was 	not 	proposing 	to 	require 	employees 	to 	take 	time 	off 	on
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December 	23 	as 	Lynch had 	feared. 	The 	letter 	also 	explained 	the
District's 	rationale 	for 	the 	scheduling 	of 	Lincoln's 	Birthday
(avoidance 	of 	too 	many Monday holidays 	and 	its 	consequential
effect 	on Monday 	classes) 	and 	indicated 	that 	the 	District 	was
planning 	to present 	the 	classified 	schedule 	to 	the 	Board 	of
Trustees 	on March 	20 	(incorporating 	the holiday dates 	from 	the
academic 	calendar). 	During 	the 	conversation between Lynch 	and
Mraule, 	there was 	no offer 	to negotiate 	nor 	a demand 	to do so.
When Lynch 	received 	the 	letter, 	she wrote 	to Burris 	(on March
11) 	protesting 	the 	proposed 	unilateral 	decision 	to 	celebrate
Lincoln's 	Birthday on a 	Friday 	rather 	than 	a Monday as 	provided
in 	the 	contract.4 Lynch 	stated 	in her 	letter 	that 	the
classified 	"calendar" 	was 	negotiable 	and 	requested 	that 	the
Lincoln's 	Birthday 	issue 	(like 	the winter 	recess 	issue) 	be
brought 	to 	the 	table 	during 	reopener negotiations. 	She 	referred
to the 	zipper 	clause 	in 	the parties' 	contract 	as 	authority 	for
LRCEA's 	position.
The 	classified 	schedule 	was 	not 	presented 	to 	the 	Board 	of
Trustees 	in March 	as 	planned, 	but 	it 	reappeared on 	the April
tentative agenda. 	In April, 	Lynch again wrote 	to Burris, 	noting
that 	she 	thought 	their 	earlier 	communications 	had 	resolved 	the
issue 	until 	reopeners. 	She 	requested 	that 	Burris 	make 	clear
what 	the 	District's 	intentions 	were 	with 	regard 	to 	the
44At	At 	the hearing, 	Lynch admitted 	that 	she misspoke, 	as 	the
contract 	is 	silent 	on the 	issue. 	Instead, 	what 	she meant 	to
refer 	to was past practice.
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classified 	"calendar". 	Burris 	did not 	respond. 	The 	classified
schedule 	was 	removed 	from 	the 	April 	agenda 	and was 	never
presented to 	the 	Board of 	Trustees 	for 	approval. 	At hearing,
Burris 	explained 	that 	the 	District 	thought 	it 	unnecessary, 	since
the 	prior 	approval 	of 	the 	academic 	calendar 	effectively 	adopted
a 	schedule 	for 	legal 	holidays 	for 	the 	classified 	staff 	as 	well.
A classified 	schedule was 	never 	sent 	to LRCEA, 	but 	it was
apparently 	sent 	to 	college 	deans 	for 	implementation 	and 	some
unit members had 	seen 	it during the year. 	LRCEA was 	under 	the
impression 	that 	the 	calendar 	issue 	had been held 	up 	until
reopener 	negotiations. 	LRCEA attorney 	Kathy Felch 	sent 	a 	letter
to Burris 	in July 	inquiring about 	the 	status 	of 	the 	calendar,
but 	received 	no 	reply.
In 	the 	fall 	of 	1985, 	during reopener negotiations, 	the 	issue
of 	the 	winter 	recess 	was 	raised by John Bukey, 	the 	District's
negotiator. 	He 	had been 	on 	leave 	during 	the 	earlier 	events 	and
said he 	understood 	that 	a 	problem 	existed. 	After 	viewing 	a 	copy
of 	the 	classified 	schedule 	the 	District 	was 	utilizing, 	the
negotiators 	stated 	that 	they would 	like 	to poll 	their 	members
concerning 	the 	Lincoln's 	Birthday 	issue. 	The District 	did 	not
object. 	The 	winter 	recess 	issue was 	resolved at 	this 	meeting
without 	controversy. 	On 	December 	2, 	Felch 	sent 	Bukey a 	letter
informing him 	that 	the 	membership had 	overwhelmingly 	opposed 	the
District's 	proposed 	four-day weekend 	(as 	opposed 	to 	two
three-day weekends) 	and asked 	to negotiate 	the 	issue 	further.
The 	letter 	suggested 	that 	the 	District 	had 	raised 	the 	calendar
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issue 	at 	the previous 	meeting 	and 	that 	Lincoln's 	Birthday
remained 	the 	only 	unresolved 	issue. 	Bukey 	responded by 	letter
on 	December 	20, 	stating 	that 	the 	District had 	long before
adopted 	the 	calendar 	and 	implied 	that 	the 	matter 	was 	closed.
DISCUSSION
While 	noting 	that 	the 	District's 	communications 	were 	at
times 	far 	from clear, 	especially 	in 	light 	of 	the previous
practice 	of 	adopting 	the 	academic 	calendar 	and 	classified
schedule 	separately, 	the 	ALJ 	concluded 	that 	LRCEA was 	adequately
notified 	of 	the 	District's 	calendar 	proposal 	and was 	given 	the
opportunity 	to bargain. 	The ALJ 	relied 	on both Lynch's
acknowledgment 	that 	she 	understood 	that 	the 	District 	was 	seeking
to 	negotiate 	the 	academic 	calendar 	and 	on 	the 	LRCEA board's
formal 	review of 	the 	calendar 	and winter 	recess proposal. 	The
ALJ 	further 	determined 	that 	despite 	confusing 	and 	conflicting
signals 	from 	the 	District, 	LRCEA's position was 	that 	it would
refuse 	to bargain based on 	the 	zipper 	clause. 	He, 	therefore,
viewed 	the 	case 	as 	turning 	on whether 	LRCEA could 	rely 	on 	the
zipper 	clause.
The ALJ 	rejected 	LRCEA's 	reliance 	on 	the 	zipper 	clause 	for
two 	reasons. 	First, 	he held 	that 	a zipper 	clause 	could be 	used
to defend 	a 	refusal 	to bargain any change 	in 	terms 	and
conditions 	of 	employment 	not 	covered by 	the 	contract 	only where
the 	contract 	expressly 	allowed 	such 	an 	application 	of 	the
clause, 	or where 	the 	negotiations history 	reflected a mutual
agreement 	as 	to such application. 	Second, 	he held, 	in effect,
8

that 	only 	an 	employer 	may 	rely 	on 	a 	zipper 	clause 	to defend 	a
refusal 	to bargain charge. 	Thus, 	he concluded 	that LRCEA's
refusal 	to bargain 	the 	calendar 	until 	reopeners 	acted 	as 	a
waiver of 	its 	right 	to bargain. 	Finding waiver, 	the ALJ did 	not
consider 	whether 	the 	charge 	was 	timely,
a. 	Timeliness
Before 	addressing 	LRCEA's 	reliance 	upon 	the 	zipper 	clause,
we 	find 	it 	necessary to 	first 	address 	the 	District's 	argument
that 	the 	charge was 	untimely. 	The charge 	was 	filed on March 	6,
1986. 	The 	District 	argues 	that, 	since 	it 	adopted a combined
academic 	calendar 	and 	classified 	schedule 	in 	February of 	1985,
55	the March 	1986 	filing was 	clearly 	untimely.
Prior 	to 	1985, 	the 	District had 	adopted 	the 	academic
calendar 	separately 	from 	the 	classified 	schedule. 	The 	academic
calendar 	for 	the 	upcoming 	school 	year was 	adopted 	very 	early 	in
the 	year 	and 	the 	classified 	schedule 	was 	adopted within 	a month
or 	two 	thereafter. 	The 	District 	sent 	the 	classified 	schedule 	to
the bargaining unit 	representatives 	for 	comment. 	In prior
5Section 	3541.5 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3540 et seq., 	states, 	in
pertinent 	part:
(a) Any employee, 	employee organization, 	or
employer 	shall have 	the 	right 	to 	file 	an
unfair practice charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue a complaint 	in respect 	of 	any
charge based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of the charge; 	. 	. 	.
9
• 	• 	• 	• 	• 	• 	•

years, 	the parties 	agreed on 	the 	schedule without 	formal
negotiations, 	but both 	assumed 	such 	negotiations 	would be
6	required if there was a major dispute.6 As noted above, in early 1985 the District attem
negotiate 	the 	academic 	calendar 	with 	the 	classified 	unit, 	rather
than 	a 	separate 	classified 	schedule. 	Though 	unprecedented,
LRCEA 	recognized 	this 	as 	an offer 	to bargain 	the 	calendar. 	Its
response 	was 	a 	refusal 	to bargain based on 	the 	zipper 	clause.
LRCEA 	thought 	the 	District 	had 	agreed 	to put 	the 	issue 	on hold
until 	reopeners, 	while 	the 	District apparently believed 	the
LRCEA's 	refusal 	to bargain 	allowed 	the 	District 	to 	go ahead 	and
adopt 	the 	academic 	calendar 	incorporating 	the 	classified
schedule. 	The 	District 	perpetuated 	this 	confusion by placing
consideration 	of 	a 	separate 	classified 	schedule 	on 	the 	Board 	of
Trustees' 	tentative agenda, 	then withdrawing 	it. 	During
reopener 	negotiations 	in 	the 	fall, 	LRCEA was 	surprised 	to
discover 	that 	the 	District 	would 	not 	discuss 	the 	classified
schedule because 	it 	had been 	"adopted" 	many months 	earlier.
Under 	these 	circumstances, 	we 	consider 	the 	charge 	timely.
The 	statute 	of 	limitations 	does 	not begin 	to 	run until 	the
charging party has 	actual 	or 	constructive 	knowledge 	of 	the
allegedly 	illegal 	act. 	Lake 	Elsinore 	School 	District 	(1986)
6Apparently, 	the 	informal 	discussions 	concerning 	the
classified 	schedule 	sometimes 	took place 	in 	the midst 	of
ongoing 	contract 	negotiations, 	which 	explains 	some witnesses'
recall 	of 	"formal" 	negotiations 	over 	the 	classified 	schedule.
10

PERB 	Decision No. 	563; 	Fairfield-Suisun Unified 	School 	District
(1985) 	PERB Decision No. 	547; 	see also, 	Lehigh Metal
Fabricators, 	Inc. 	(1983) 	267 NLRB 568 [114 LRRM 1064].
Here, 	the charge was 	filed on March 6, 	1986, 	within six
months of LRCEA's 	learning 	that 	the 	District had, 	in effect,
already 	adopted 	a 	classified 	schedule. 	The 	District's 	conduct
concerning 	the 	tentative 	Board 	of 	Trustees 	agenda made 	it
reasonable 	for 	LRCEA 	to believe 	that 	the 	classified 	schedule 	was
still 	an 	open 	issue. 	LRCEA's behavior 	throughout 	the period
leading up to Bukey's 	December 	20, 	1985 	letter 	is 	consistent
with 	such 	a belief. 	There 	is 	no evidence 	in 	the 	record 	that
LRCEA had become 	aware 	any earlier 	of 	the 	District's 	position
that 	a 	classified 	schedule had 	indeed been 	effectively 	adopted
in February of 	1985.
While 	we have 	concluded 	that 	LRCEA was 	misled 	as 	to whether
or 	not 	the 	District 	had adopted a 	classified 	schedule,
documentary evidence, 	as 	well 	as 	the 	testimony of LRCEA
witnesses, 	establishes 	that LRCEA recognized Burris' 	letter of
January 	15, 	1985 	as 	an offer 	to negotiate 	issues pertaining to
the 	classified 	schedule, 	including Lincoln's 	Birthday. 	The
evidence 	also 	clearly 	establishes 	that 	LRCEA decided 	to 	stand 	on
its 	view 	of 	the 	applicability of 	the 	zipper 	clause 	and 	refused
to bargain 	until 	scheduled 	reopener 	negotiations 	in 	the 	fall.
Given 	this 	evidentiary backdrop, 	we 	agree 	with 	the ALJ 	that 	if
the 	zipper 	clause 	did 	not 	suspend 	LRCEA's 	duty 	to bargain 	once
11

presented 	with 	an 	otherwise 	negotiable 	proposal,7 then 	LRCEA
waived 	the 	right 	to bargain 	over 	that 	matter,
b. 	Application of 	the 	Zipper 	Clause
As 	noted 	above, 	the ALJ 	concluded 	that 	a union 	could 	not 	use
a 	zipper 	clause 	as 	a 	"shield" 	from bargaining 	an 	employer's
proposal 	for 	a 	change 	in 	the 	status 	quo. 	He 	first 	noted 	that
the 	usual 	scenario has 	the 	employer 	relying on 	the 	zipper 	clause
in defense of union charges 	of 	a refusal 	to bargain, 	rather
than, 	as here, 	the union relying on the 	zipper 	clause 	in defense
of 	its 	refusal 	to 	request bargaining on 	a proposal properly
noticed by the 	employer. 	Second, 	the 	ALJ 	found 	troublesome 	what
he 	viewed 	as 	the 	implications 	of 	LRCEA's 	desired 	use 	of 	the
zipper 	clause, 	to wit, 	the prohibition of any changes 	in
negotiable 	terms 	and 	conditions 	of 	employment 	during 	the 	life 	of
the 	contract, 	whether 	the 	term or 	condition 	is 	covered by the
contract 	or 	not.
This 	Board has 	yet 	to articulate 	its 	view of 	the breadth 	and
effect of 	various 	zipper clauses, 	though 	it has 	clearly stated
that 	a 	zipper 	clause 	does 	not 	allow 	the 	employer 	to make
7This 	Board 	has 	consistently held 	that 	employee 	work
schedules 	or 	calendars 	and, 	specifically, 	holiday and vacation
dates, 	are negotiable. 	See, 	e.g., 	Lake Elsinore School
District 	(1986) 	PERB Decision No. 	606; 	Palos Verdes Peninsula
Unified 	School 	District/Pleasant 	Valley 	School 	District 	(1979)
PERB 	Decision No. 	96. 	While an academic calendar 	is not
negotiable, 	if 	a school 	employer 	intends 	to establish both
academic 	and 	employee work 	schedules 	in one 	calendar, 	then 	such
calendar 	is 	negotiable. 	San Jose 	Community College 	District
(1982) 	PERB Decision No. 	240; 	Oakland Unified School 	District
(1983) 	PERB Decision No. 	367.
12

unilateral changes 	in the 	status quo 	(see, 	e.g., 	Los Angeles
Community College District 	(1982) 	PERB Decision No. 	252). 	In
this 	case, 	we 	are 	not 	troubled by LRCEA's 	attempted use of 	the
zipper 	clause. 	Instead, 	we 	look 	to the plain language of 	the
zipper 	clause, 	which 	unambiguously gives both parties 	the 	right
-
to 	refuse 	to bargain 	changes 	in all 	matters 	covered by 	the 	terms
of 	the 	clause. 	The 	zipper clause 	covers 	all 	negotiable
subjects, 	even 	if 	they were not 	"within 	the knowledge 	or
contemplation of 	either 	or both parties 	at 	the 	time 	they
negotiated 	the 	agreement." 	In practical 	terms, 	the clause
purports 	to 	fix 	for 	the 	life 	of 	the 	agreement 	(absent 	mutual
agreement 	to negotiate 	changes) 	those 	terms 	and conditions 	of
employment 	established by past practice, 	as well 	as 	those
established by 	the 	express 	terms 	of 	the 	contract. 	We 	disagree
with 	the 	ALJ 	that 	this 	zipper 	clause 	could 	apply 	to
extra-contractual 	subjects 	only 	if 	it 	expressly covered 	the
particular 	subjects 	or 	if 	negotiations 	history 	demonstrated 	a
mutual 	understanding 	of 	such 	an 	application. 	To 	require 	express
mention of 	the 	particular 	subject 	or 	extrinsic 	evidence 	of
bargaining history 	would be 	to 	disregard 	the 	plain 	language 	of
the provision.8	
C
8We 	note 	that 	where 	a public 	school 	employer 	is 	faced
with a 	true 	emergency and a 	recalcitrant 	union, 	the 	employer
may 	successfully defend 	a 	unilateral 	change 	in 	the 	status 	quo
on 	the basis 	of business 	necessity. 	Fountain 	Valley 	Elementary
School 	District 	(1987) 	PERB Decision No. 	625; 	San Francisco
Community College 	District 	(1979) 	PERB 	Decision No. 	105.
13

Regardless 	of 	the existence of a zipper 	clause, 	neither
party 	to 	a 	collective bargaining agreement has 	a 	duty 	to
negotiate 	over 	any matter 	covered by 	the 	agreement 	during 	its
term 	(subject, 	of course, 	to reopener provisions). 	See, 	e.g.,
Placentia Unified 	School 	District 	(1986) 	PERB Decision No. 	595;
Palo Verde Unified 	School 	District 	(1983) 	PERB Decision No. 	321;
cf. 	NLRB v. 	Jacobs Manufacturing Co. 	(2d Cir. 	1952) 	196 F.2d 680
[30 LRRM 	2098]. 	To 	say 	that broad 	zipper 	clauses 	such as 	the
one 	involved here 	may not be 	construed 	as 	a waiver 	of bargaining
rights 	except 	as 	to 	subjects 	covered by 	the 	agreement 	would
render 	such clauses 	mere 	surplusage. 	Instead, 	we will 	look 	to
the 	language 	of 	the particular 	zipper 	clause 	and 	give 	it 	the
breadth 	that 	language 	warrants.
We 	do 	not 	view 	zipper 	clauses 	to be 	inherently 	inconsistent
with 	any 	rights 	or 	obligations 	provided by EERA. 	Indeed, 	as
long 	as 	such 	clauses 	are 	freely entered 	into, 	they 	could 	serve
to 	further stabilize and harmonize bargaining 	relationships. 	As
the 	parties 	are 	free 	to memorialize 	an 	established past practice
through 	express 	provision 	in a 	collective 	agreement, 	thereby
fixing 	the 	affected 	terms 	and 	conditions 	of 	employment 	for 	a
specified 	term, 	we 	find no significant 	distinction 	in 	the 	use of
a 	clause 	which 	creates 	the 	same 	effect, 	albeit 	on a broader
scale.9 While 	we hold 	that 	zipper 	clauses 	are 	not 	inherently
99we	we 	note 	that 	our 	approach 	is 	consistent 	with 	recent
precedent 	in 	the private 	sector. 	The 	National 	Labor 	Relations
Board 	(NLRB) 	has 	progressively eased 	its 	original 	objection 	to
14

inconsistent 	with bargaining 	rights 	and 	obligations, 	we 	leave
open 	the 	possibility 	that 	the 	character 	of 	a particular 	zipper
clause 	or 	the 	surrounding 	circumstances 	could 	render 	such 	a
clause unenforceable, 	in whole or 	in part.
zipper 	clauses. 	See 	Radioear Corporation 	(1974) 	214 NLRB 	362
[87 LRRM 1330]; GTE Automatic Electric, 	Inc. 	(1982) 	261 NLRB
149 	[110 	LRRM 	1193TI
Here, 	the 	zipper 	clause purports 	to mutually waive 	the 	right
to negotiate 	over 	any 	"subject 	or matter" 	for 	the 	term of 	the
agreement, 	whether or 	not 	such subject or matter was 	"within 	the
knowledge 	or 	contemplation" 	of 	the parties 	at 	the 	time 	the
agreement 	was 	negotiated. 	There 	is 	no 	language which 	could be
construed 	as 	limiting 	the 	effect 	of 	the 	clause 	to matters
actually 	covered 	elsewhere 	in 	the 	agreement 	or 	discussed 	during
negotiations. 	Thus, 	we construe this 	zipper 	clause as 	affording
both 	parties 	the 	right 	to 	refuse 	to 	negotiate 	changes 	in 	the
status 	quo as 	to otherwise 	negotiable 	terms 	and conditions 	of
employment 	for 	the 	duration of 	the 	agreement 	(subject 	to
reopener provisions), 	whether 	such 	terms 	and 	conditions 	are
established by 	contract 	or by past practice. 	Consequently, 	we
find 	that 	LRCEA had 	the 	right, 	in 	theory, 	to 	refuse 	to bargain
any 	proposed 	change 	in past 	practice 	with 	regard 	to 	the
scheduling of holidays. 	But 	that does 	not 	end our 	inquiry, 	for
we must now determine what 	the 	relevant past practice, 	if any,
was.
15

c. 	Past 	Practice
LRCEA 	insists 	that 	the past 	practice 	was 	to 	schedule
Lincoln's 	Birthday so as 	to create, 	in conjunction with
Washington's 	Birthday 	(the 	third Monday 	of 	February, 	as 	provided
by Education 	Code 	section 	79020(a)), 	two 	three-day weekends.
The 	District's 	decision 	to 	observe 	Lincoln's 	Birthday on 	Friday,
February 	14, 	1986,10 allegedly violates 	that past practice.
LRCEA's 	argument 	fails, 	however, 	because 	it misstates 	the past
practice.
First, 	an examination of 	the discretion afforded by
Education 	Code 	section 	79020 	in years 	prior 	to 	1986 	reveals 	that
a 	four-day weekend 	was 	never before 	an 	option. 	In 	the 	two years
other 	than 	1986 	where 	some discretion was 	afforded 	(1984 and
1985), 	two three-day weekends were created, 	but this was due 	to
the 	limitations 	imposed by the 	statute 	in 	those years. 	In 	1984,
Washington's 	Birthday was 	observed on Monday, 	February 	20, 	while
Lincoln's 	Birthday 	could have 	been 	observed 	on 	Friday,
February 10, 	Monday February 13 	or Tuesday, 	February 14. 	In
1985, 	Washington's 	Birthday was 	observed on Monday, 	February 	18,
while 	Lincoln's 	Birthday 	could have 	been 	observed 	on Monday,
February 11 or Tuesday, 	February 12. 	Thus, 	the 	fact 	that 	in 	the
two years 	prior 	to 	1986 	two 	three-day weekends 	were 	created was
due 	to 	statutory constraints, 	and was 	not 	due 	to an 	identifiable
past 	practice.
10In 1986, Washington's Birthday was observed on Monday,
February 	17.
10	10
16

Moreover, 	LRCEA's 	description of 	the past practice 	fails 	to
distinguish 	the process 	through which calendar 	issues 	(and, 	in
particular, 	the 	scheduling of holidays) 	were agreed upon 	from
the 	results 	of 	that 	process. 	The evidence 	revealed 	that 	the
classified 	schedule, 	including 	the 	scheduling of holidays, 	was
arrived 	at 	each 	year 	through 	informal 	discussions 	(which 	would
have become 	"formal 	negotiations" 	had 	there been any serious
disagreement). 	Indeed, 	it 	could hardly have been any other
way. 	The 	calendar 	necessarily varies 	from year 	to year 	and 	is
not 	readily 	susceptible 	to 	the 	application of 	a 	static policy
fixing 	its 	terms. 	This 	is 	especially 	true with 	regard 	to 	the
narrower 	issue 	of 	the 	scheduling of Lincoln's Birthday, 	for 	the
options 	allowed by 	Education 	Code 	section 	79020 	vary 	from year
to year.
In 	sum, 	the past 	practice 	that 	LRCEA could 	rightfully 	insist
adherence 	to was 	the 	annual 	process 	of 	discussing 	(or
negotiating) 	the next year's 	schedule 	in 	the winter or 	early
spring of 	each 	year. 	LRCEA clearly 	refused 	to 	take part 	in 	that
process, 	insisting 	that 	it had no duty 	to discuss 	the 	issue
until 	reopener negotiations 	scheduled 	in 	the 	fall. 	Thus,
1111	LRCEA's 	refusal constituted a clear and unmistakable waiver 	11
of 	its 	right 	to bargain the 	classified 	schedule 	(and, 	in
11This 	Board 	has 	adopted 	the 	standard 	for 	waiver 	used by
the 	National 	Labor 	Relations 	Board, 	which 	requires 	that 	a
waiver 	of bargaining 	rights 	be 	"clear 	and 	unmistakable." 	Los
Angeles 	Community College 	District 	(1982) 	PERB Decision No-. 	252.
17

particular, 	the scheduling of Lincoln's 	Birthday) 	for 	the
1985-1986 	school year.
ORDER
The 	complaint 	in 	Case No. 	S-CE-982 	is hereby DISMISSED.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
18