Eureka City School District (PERB 0955E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EUREKA 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
EUREKA CITY 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-1467
PERB Decision No. 	955
October 27, 1992
Appearances: 	California Teachers Association, 	by Ramon E.
Romero, 	Attorney, 	for Eureka Teachers Association; 	School and
College Legal Services, 	by Robert J. 	Henry, 	General Counsel, 	for
Eureka 	City 	School 	District.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed by 	the 	Eureka
City School 	District 	(District) 	to a PERB administrative 	law
judge's 	(ALJ) 	proposed decision. 	The ALJ 	found that the District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA)1 by making a unilateral 	change 	in
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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
)
}
}
)
)
}
______________ !

the 	smoking policy without 	affording 	the 	Eureka 	Teachers
Association 	(Association) 	an opportunity to meet 	and negotiate.
The 	Board has 	reviewed the entire record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	exceptions 	and the Association's 	responses 	thereto.
Based upon this 	review, 	we hereby reverse 	the ALJ's 	decision 	for
the 	reasons 	set 	forth below.
FACTS
The Association and 	the District were parties 	to 	a
collective bargaining agreement 	(CBA), 	effective July 	1, 	1988
through June 	30, 	1991. 	The CBA contained Article 27,
Paragraph 8 	(Paragraph 8 ) , which provides:
Where unused 	space is available, 	the District
will, 	upon the request of the teacher(s) 	at
that 	school 	site, 	provide 	separate smoking
and non-smoking areas 	at that 	facility; 	or
some 	alternative 	shall 	be mutually agreed 	to
by the 	staff.
The 	District consists 	of 	eight 	elementary 	schools, 	two
junior high schools, 	a high school, 	an adult school, 	a
continuation 	school 	and the 	District headquarters 	office. 	The
various 	school 	sites 	differed 	in the manner 	in which they
implemented 	Paragraph 	8.
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(b) 	Deny to employee organizations rights
guaranteed to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
22

For example, 	at Winship Junior High School 	several 	teachers
purchased 	a 	portable 	building 	and 	the 	District 	allowed 	them 	to
place 	it on the 	school 	grounds 	for the nominal 	cost of one dollar
per year. 	The 	faculty members who 	smoked used 	this 	building.
The 	District also participates 	in a 	state 	sponsored 	grant
program which provides 	education 	and 	related 	activities 	to
encourage 	students 	to reject the use of drugs, 	alcohol and
tobacco products. 	Participation in this program required the
District 	to 	assure 	the 	State 	that 	it would adopt 	a 	tobacco-free
policy by June 	1996.
In the 	spring of 	1990, 	the District 	school board asked the
superintendent 	to develop 	a policy on tobacco use. 	An 	18-member
committee 	comprised 	of 	both 	administrators 	and 	rank-and-file
employees 	was 	created to draft 	a proposed tobacco-free 	schools
policy. 	The Association also provided a 	representative 	to 	the
committee. 	The 	committee met three times 	during the Fall 	of
1990. 	It discussed at 	length whether the policy 	should 	affect
the 	District office 	as 	there were 	rarely 	students 	at 	that
location. 	The 	committee's 	consensus was 	that the policy 	should
be 	universally 	applied. 	The 	committee 	also 	considered whether 	to
allow smoking on campus 	out of view of 	students. 	The 	committee
decided that 	it 	should create 	a policy that would provide 	a
consistent 	anti-smoking message 	for 	students; 	concluding 	that
students would be aware 	of 	the 	inconsistencies 	of 	a policy which
prohibited 	smoking 	in the vicinity of 	students, 	but 	allowed 	it
when 	students 	were 	not present. 	They 	eventually produced 	a
3
3

proposed policy 	and 	forwarded 	it 	to 	the 	school 	board.
On November 	5, 	1990, 	the 	school board first reviewed the
committee's 	"Proposed Policy on Tobacco." 	The policy 	cited
Education Code 	section 489012 as 	its 	authority. 	The proposed
policy was 	considered at 	five 	board 	meetings 	from November 	5,
1990 	to 	February 4, 	1991. 	The Association attended and expressed
its 	concerns 	about the proposed policy. 	On February 4, 	1991, 	the
school 	board 	adopted 	the 	Tobacco-Free 	Schools 	Policy 	as 	District
Policy No. 	1335. 	The policy states:
The 	Board of 	Education 	is 	committed to
promoting 	a healthy 	lifestyle 	for 	its
students 	and 	staff. 	Tobacco use is
identified 	as 	a major health risk 	for both
users 	and non users. 	Education Code 	48901
mandates 	districts 	take 	all 	steps 	deemed
practical 	to discourage 	students 	from
smoking. 	The Board has 	a 	responsibility to
promote 	a 	safe 	and healthy 	environment 	for
students, 	staff and other citizens. 	It is
the 	intention of the Board to provide 	a
school district that 	is 	tobacco 	free and,
therefore, 	model 	for students 	acceptable
health principles 	taught 	in 	school.
This policy is not a punitive measure, 	nor
does 	it 	try to dictate whether adults 	may or
may not 	smoke. 	However, 	the policy does 	tell
2Education Code 	section 48901 	states:
(a) 	No 	school 	shall permit the 	smoking or
use of tobacco, 	or any product containing
tobacco or nicotine products, 	by pupils of
the 	school while the pupils are on campus, 	or
while 	attending 	school-sponsored 	activities
or while under the 	supervision and control 	of
school district 	employees.
(b) 	The governing board of 	any 	school
district maintaining a high 	school 	shall 	take
all 	steps 	it deems practical 	to discourage
high 	school 	students 	from 	smoking.
4

adults 	they do 	not have 	the district's
permission to 	smoke or use 	tobacco products
on district property.
Beginning July 	1, 	1991, 	smoking and the use
of 	tobacco products 	shall 	be prohibited 	on
sites 	and 	in vehicles 	owned 	and/or operated
by Eureka City 	Schools. 	The tobacco-free
policy includes buildings, 	grounds and
services 	provided by 	employees 	off 	campus.
Policy 	Implementation
1. 	The Superintendent 	shall take 	steps 	to
inform all 	employees, 	visitors 	and the
community of 	the 	no tobacco policy.
A. 	"Tobacco-Free Environment" 	signs 	shall be
placed 	so 	as 	to be 	readily visible on
grounds, 	in facilities and vehicles owned
and/or operated by Eureka 	City 	Schools.
B. 	All 	employees 	shall 	receive a 	copy of the
policy 	and 	applicants 	for 	employment 	shall 	be
made 	aware 	of 	the 	tobacco-free policy.
C. 	Community groups wishing to use 	school
facilities 	and 	contractors 	shall 	be advised
of 	the policy 	and 	required 	to 	sign contracts
indicating they will 	abide by the 	tobacco-
free policy.
2. 	The district 	shall assist employees who
desire to stop 	smoking. 	When practical, 	the
district 	shall 	attempt 	to arrange 	smoking
cessation activities 	at 	times 	and 	locations
convenient to the 	employee.
Legal 	Reference: 	Education Code 	48901
The 	District's 	policy 	statement 	also provided 	the 	following
rationale 	for the 	adoption and 	implementation of 	the 	tobacco-
free policy by the 	school 	board:
The 	Surgeon General 	has 	declared 	tobacco 	use
to be 	the 	number one preventable health
hazard. 	Some 	390,000 people die annually
directly due to the 	effects 	of 	tobacco. 	The
State has 	encouraged 	school 	districts 	to
adopt a smoke-free policy. 	Locally, 	some 	14
55
\

school 	districts 	and the 	Humboldt County
Office 	of 	Education have 	adopted 	smoke-free
policies. 	The policies 	are based upon the
recognition that we 	all 	serve 	as 	role models
for 	students 	and that 	school 	districts 	should
send a 	consistent no-use message 	to 	youth.
The policy is meant to 	express 	the district's
support 	in providing 	a positive 	and
consistent message 	to our youth 	in regard to
tobacco use.
The policy applies to all District employees, 	as well as
members 	of the public while on District grounds, 	regardless 	of
the presence of students. 	Effective June 30, 	1991, 	the District
refused 	to 	renew the 	lease 	on the portable 	(smoking) 	building at
Winship 	Junior High School. 	It was 	removed by the 	teachers prior
to that date. 	The District has provided access 	for employees 	to
smoking 	cessation programs 	and 	insists 	it will 	continue 	to do 	so
in the future.
Prior to adoption of the policy, 	the 	school board deleted
reference 	to possible disciplinary 	action resulting 	from
violation of 	the 	tobacco policy. 	Superintendent Watkins
testified, 	however, 	that violation of any 	school policy would
lead to 	some 	consequences.
ALJ's 	PROPOSED 	DECISION
The ALJ 	initially reviewed the 	Board's 	decision 	in Riverside
Unified School District 	(1989) 	PERB Decision No. 	750 	(Riverside).
which held 	that 	the district's 	smoking policy was 	not 	a working
condition. 	The 	Riverside 	smoking policy prohibited 	smoking 	in
district 	facilities 	and on 	school 	grounds when 	students were 	in
the 	general 	vicinity. 	The Board held 	in Riverside that 	the
66

policy's 	educational 	objectives 	outweighed 	any potential 	impact
it could have on the employees' 	interests.
The ALJ 	applied the 	limitations 	in the 	Riverside policy
pertaining to times 	and 	locations where 	students 	are present, 	to
the 	Eureka 	tobacco-free policy. 	He 	concluded that 	the 	District
may 	establish policies 	which 	control 	behavior on 	its 	property.
However, 	he 	found that 	if 	the policy impacts 	rights 	guaranteed to
employees by EERA, 	the District must 	first negotiate the policy.
The ALJ determined that 	Education Code 	section 48901, 	relied on
by the 	District 	in adopting the 	tobacco-free policy, 	places 	its
emphasis 	on prohibiting the use 	of 	tobacco products 	by 	students.
He 	concluded that because 	the provisions 	of 	the 	Education Code
target tobacco use by students, 	the District 	is 	not 	excused 	from
negotiating 	the broader 	application of 	its 	smoking policy to
certificated employees. 	Therefore, 	the ALJ 	found those
provisions 	of 	Eureka's 	tobacco-free policy which banned 	the 	use
of tobacco products 	regardless 	of the presence of 	students, 	to be
a 	mandatory 	subject 	of bargaining within 	the 	scope 	of
representation. 	As 	a result, 	he concluded that the District had
violated 	EERA when 	it refused to negotiate 	those portions 	of 	its
tobacco-free 	policy.
DISTRICT'S 	EXCEPTIONS
The 	District 	excepted to the ALJ's 	findings 	and 	conclusions.
Specifically, 	the 	District 	contends 	the ALJ misinterpreted 	the
Board's 	decision in Riverside by 	finding 	that the 	decision 	in
that 	case was 	premised on the 	fact 	that 	the 	smoking policy 	in
7

question addressed 	"circumstances 	in which 	students 	are 	in the
general 	vicinity." 	The 	District 	also 	claims 	the ALJ 	erred 	in
concluding that 	the 	general 	language 	of 	Education Code 	section
48901 	"must be 	interpreted 	in a 	very restrictive manner" 	which
does 	not 	justify 	a 	"disregard of 	explicit 	EERA negotiations
mandates."
DISCUSSION
EERA 	section 3543.5(c) 	requires 	an employer to meet 	and
negotiate 	in good 	faith with an exclusive 	representative. 	A
unilateral 	change 	in terms 	and 	conditions 	of 	employment within
the 	scope of representation is 	a per 	se refusal 	to negotiate.
(NLRV v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177]; 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51; 	San Mateo
County Community College District 	(1979) 	PERB Decision No. 	94.)
To 	establish a unilateral 	change, 	the 	charging party must
show that 	(1) 	the employer breached or altered the parties'
written agreement or own established past practice; 	(2) 	such
action was 	taken without 	giving 	the 	exclusive 	representative
notice or an opportunity to bargain over the change; 	(3) 	the
change 	is 	not merely an isolated breach of 	the contract, 	but
amounts 	to a change of policy 	(i.e., 	has 	a generalized effect or
continuing 	impact upon bargaining unit members' 	terms 	and
conditions 	of 	employment; 	and 	(4) 	the change in policy concerns 	a
matter within the 	scope of 	representation. 	(Glendora 	Unified
School District 	(1991) 	PERB Decision No. 	876.)
88

The parties' 	CBA provides 	for 	separate 	smoking areas 	upon
request of the teachers 	at the particular school 	sites, 	under
certain circumstances. 	To the extent that the District's
Tobacco-Free Schools 	Policy alters 	the terms of the CBA, 	an
unlawful unilateral 	change may have occurred. 	However, 	it must
first 	be 	determined whether 	the 	implementation of 	the 	smoking
policy 	is 	within the 	scope 	of 	representation as 	established by
EERA 	section 	3543.2.3
3EERA section 3543.2 	states, 	in pertinent part:
(a) 	The 	scope of representation 	shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and conditions 	of
employment" 	mean health 	and welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment 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 3 548.8, 	the layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code, 	and alternative 	compensation or
benefits 	for employees 	adversely affected by
pension limitations 	. 	. 	. 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.
(b) 	. 	. 	. 	the public school employer and the
exclusive representative 	shall, 	upon request
of 	either party, 	meet 	and negotiate regarding
causes 	and procedures 	for disciplinary
action, 	other than dismissal, 	including a
suspension of pay for up to 	15 days,
99

EERA 	section 	3543.2 	also provides 	that matters 	not
specifically 	enumerated 	in the 	statute 	are 	reserved 	to 	the
employer. 	In addition, 	Article 2 of the parties' 	CBA states:
. 	. 	. 	the District retains all authority to
direct, 	maintain and operate the District to
the full 	extent of the 	law, 	except as 	limited
by the 	specific 	and express 	terms 	of 	this
Agreement, 	and then only to the 	extent 	such
terms 	are 	in 	conformity with 	law.
In Riverside	----·, 	the district, 	which previously maintained
smoking areas 	for employees within district 	facilities, 	adopted a
policy which provides, 	in pertinent part:
Effective July 	1, 	1987, 	smoking and the use
of 	tobacco products 	is 	prohibited within any
District building or 	facility. 	In addition,
smoking or the use of 	tobacco products 	by
District 	employees 	is 	prohibited on 	school
grounds when pupils 	are 	in the 	general
vicinity.
In enacting this policy, 	the district relied, 	in part, 	on
provisions 	of 	the Education Code4 which required 	each 	school
affecting certificated employees. 	If 	the
public 	school 	employer and 	the 	exclusive
representative do 	not 	reach mutual 	agreement,
then the provisions 	of 	Section 	44944 	of 	the
Education Code 	shall 	apply.
4Education Code 	section 35176.5 	states:
The 	governing board 	of 	every 	school district
shall 	adopt policies 	regarding 	the
designation of 	employee 	smoking 	areas 	or
lounges 	at 	each 	school 	site. 	These policies
may include, 	but not be limited to, 	the
establishment 	of 	procedures 	for the
determination of 	employee 	smoking areas 	by a
majority vote 	of 	the 	teachers 	and other
school 	employees 	at 	each school.
(Repealed January 	1, 	198 9.)
10

district 	to 	adopt policies 	regarding 	employee 	smoking areas.
In Riverside, 	the Board 	found that the district 	exercised
the 	management 	authority 	reserved 	to 	itself 	to 	implement 	a
smoking 	policy 	"designed 	to 	further 	a 	legislatively 	mandated 	goal
of 	discouraging 	students 	from 	smoking and to provide 	a 	smoke-
free 	environment 	for the 	students 	and the general public."
The 	Board 	in Riverside 	relied 	on the 	analysis 	in Chambersburg
Area 	School District v. 	Pennsylvania Labor Relations 	Board, 	et
al. 	(1981) 	430 A.2d 740 	[110 LRRM 2251] 	in concluding that a
smoking policy was 	not 	a mandatory 	subject of bargaining, 	but
rather a 	management prerogative. 	The 	court 	concluded 	in
Chambersburg. 	after balancing mandatory 	subjects 	of bargaining
and 	basic 	educational policy that 	"the 	educational 	motive 	behind
the 	[smoking] 	policy outweighs 	any 	impact on the employees'
interests. 	. 	. 	. 	[T]he paramount consideration in reaching this
balance 	is 	the public 	interest 	in providing 	effective and
efficient 	education for the 	School 	District's 	students."
In the present case, 	the Eureka District adopted a 	similar
smoking policy which prohibits 	students, 	employees 	and 	the
general 	public 	from using tobacco products 	in District 	buildings
and on District property. 	The 	Eureka policy goes 	farther than
Education Code 	section 	35176.6 	states:
A teacher or other 	school 	employee 	shall 	not
smoke 	on the grounds 	of 	any public 	school
except 	in the 	areas 	designated 	for employee
smoking by 	the 	governing board of 	the
district.
(Repealed January 	1, 	1989.)
11

the 	Riverside policy 	and 	also prohibits 	smoking 	in District
vehicles 	and 	applies 	to 	services provided by employees 	off-
campus. 	The policy does 	not distinguish time periods 	or
locations 	at which 	students 	might be present.
In adopting this policy, 	the District relied on the
legislative mandate 	in Education Code 	section 48901.5 The
District 	also has 	an obligation to 	establish a 	tobacco-free
policy by June 	1996 which prohibits 	the use 	of 	tobacco products
at 	anytime on District property and in District vehicles, 	in
order to 	comply with the provisions 	of a 	State Drug, 	Alcohol 	and
Tobacco 	Education grant 	program.
Eureka's policy 	identifies 	smoking as 	a major health risk
and proposes 	to 	teach 	"acceptable health principles" 	by requiring
employees 	and the general public 	to 	serve 	as 	role models 	for the
students. 	The policy is 	designed to 	educate 	students by example,
by banning 	tobacco 	use 	from District property 	and vehicles 	at 	all
times. 	The District decided that 	a policy which 	allows 	employee
and general public 	smoking, 	even at times 	and places where
students 	are not 	likely to be present, 	confuses 	the 	District's
educational 	message 	and makes 	it more difficult to 	achieve 	the
educational 	mission of 	the policy.
In reaching his decision in this 	case, 	the ALJ misinterprets
the gravamen of the Board's 	decision in Riverside. 	The Board's
fundamental 	finding 	in Riverside 	is 	that 	the 	"implementation of
the 	District's 	smoking policy was 	a direct response 	to 	the
5See 	footnote 	2.
12

Legislature's 	clear message 	regarding the health 	hazards 	of
smoking" 	and the 	Legislature's 	direction to do 	everything
practical 	to discourage 	student 	smoking. 	The 	Board 	clearly
stated 	its 	conclusion that 	"negotiations 	regarding 	implementation
of 	the policy would 	abridge 	the 	District's 	rights 	to 	accomplish
this 	legislatively mandated mission and 	its 	rights 	to 	determine
general 	educational policy." 	This 	fundamental 	finding does 	not
turn on the 	issue 	of whether the district has 	prohibited 	smoking
when 	students 	are 	not present.
Although the 	Eureka 	smoking policy 	contains 	a 	broader
smoking prohibition, 	it, 	like Riverside's policy, 	constitutes a
direct response 	to 	the Legislature's direction. 	Eureka 	exercised
its 	management prerogative 	in adopting a policy which 	it
concluded best 	implements 	the 	Legislature's 	mandate 	and 	achieves
its 	educational 	objectives.
Therefore, 	we 	conclude that the District did not violate
subsections 	(a), 	(b) 	and 	(c) 	of EERA section 3543.5 when it
adopted 	its 	Tobacco-Free 	Schools 	Policy.
As 	the 	Board has 	previously determined 	that 	establishment 	of
a 	smoking policy 	is 	a 	management prerogative designed 	to 	further
basic 	educational goals, 	it may be unnecessary to apply the 	test
set out 	in Anaheim Union High School District 	(1981) 	PERB
Decision No. 	177 	(Anaheim), 	to determine whether it falls within
the 	scope of 	representation. 	But doing 	so 	further confirms 	that
the 	District 	smoking policy does 	not 	constitute 	a 	mandatory
subject 	of bargaining.
13

In Anaheim, 	the Board 	established 	a 	three-prong test 	to
determine whether matters 	not 	specifically 	enumerated 	are 	in 	fact
negotiable under EERA 	section 	3543.2. 	In the Anaheim decision,
the 	Board 	stated:
. 	. 	. 	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.
[Fn. omitted.]
The 	California 	Supreme 	Court 	approved 	this 	test 	in 	San Mateo
City 	School 	District v. 	Public 	Employment 	Relations 	Board 	(1983)
33 Cal.3d 850 	[191 Cal.Rptr. 	800].
While 	the 	District's 	smoking policy may 	arguably 	satisfy 	the
first prong of 	the Anaheim test, 	the 	second and third prongs 	are
not met.
The 	District 	adopted 	the 	smoking policy 	in 	compliance with
the 	legislative mandate 	to provide 	a 	tobacco-free 	environment 	for
the 	students. 	All 	District 	employees 	and members 	of 	the general
public 	entering District grounds 	serve as 	role models 	for the
students 	in the use of tobacco products. 	The policy 	is designed
to educate 	students. 	However, 	the District's rationale 	in
adopting the policy also 	includes 	a 	statement that 	tobacco use 	is
a 	health 	hazard. 	Such a 	statement 	could be 	interpreted 	to
14

involve 	health 	and 	safety 	issues 	which would 	arguably 	satisfy 	the
first prong of 	the Anaheim test.
Further, 	tobacco use 	is 	a 	subject which is 	generally an
issue between 	smokers 	and non-smokers, 	and not 	necessarily 	an
issue between management 	and 	employee 	organizations. 	Judith
Geppert, 	a District teacher, 	testified that the conflict between
smoking 	and 	non-smoking 	faculty 	resulted 	in the 	language 	of
Paragraph 	8 	being 	included 	in the CBA to provide 	non-smokers 	with
a 	smoke-free 	environment. 	Although the 	issue originated 	from a
conflict among smokers 	and non-smokers, 	the 	issue was 	addressed
through 	the 	collective negotiation process. 	While parties 	are
free 	to 	negotiate 	and 	incorporate 	nonmandatory 	subjects 	of
bargaining 	into their collective bargaining agreements, 	that
action does 	not 	transform a permissive 	subject 	into a mandatory
subject. 	(Chula Vista City School 	District 	(1990) 	PERB 	Decision
No. 	834; 	Poway Unified School District 	(1988) 	PERB Decision No.
680. )
The 	second prong of 	the Anaheim test 	requires 	that 	"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." 	Although 	the Association and 	the 	District 	included
language 	in 	their CBA to 	establish a 	smoking policy 	to 	satisfy
the 	concerns 	of 	smoking and non-smoking employees, 	the 	subject
does 	not 	satisfy the 	second prong of 	the Anaheim test. 	The 	issue
of 	smoking 	in the workplace does 	not rise to 	such a 	level 	of
15

of 	smoking 	in the workplace does 	not rise 	to 	such a 	level 	of
concern 	between management 	and 	employees 	that 	collective
negotiations 	between them 	is 	the appropriate means 	for resolving
any conflict resulting 	from that issue. 	Thus, 	it fails 	the
second prong of 	the 	test.
Finally, 	requiring the District to negotiate this 	subject
would 	significantly 	abridge 	its 	freedom to 	exercise 	its
managerial prerogatives. 	The District, 	in reliance on
legislative mandates, 	is 	implementing the basic 	educational 	goals
set 	by 	the 	Legislature 	by 	establishing 	a policy designed 	to
discourage 	students 	from 	smoking. 	This 	fundamental policy 	is
dictated by 	the 	Education Code 	and to 	require 	the 	District 	to
negotiate 	its 	implementation would 	limit 	the managerial
prerogative 	needed by the 	District 	to 	achieve 	its 	educational
mission. 	Thus, 	we 	conclude that the third prong of 	the Anaheim
test 	is 	not 	satisfied and 	the Board 	finds 	that 	the 	smoking policy
is 	not 	a mandatory 	subject of bargaining within the 	scope 	of
representation under 	EERA 	section 	3543.2.
Although the 	smoking policy 	is 	not 	a mandatory 	subject 	of
bargaining, 	the effects 	of 	such a policy are negotiable. 	In Mt.
-
Diablo Unified School District 	(1983) 	PERB Decision No. 	373, 	the
Board noted that 	the decision to 	layoff 	employees 	is 	a managerial
prerogative. 	However, 	the district was obligated to negotiate
the effects 	of 	its 	layoff decision. 	Similarly, 	the Eureka
District 	is 	required to negotiate the effects 	of 	its 	tobacco-
free policy upon request of the Association, 	including any
16

disciplinary 	action 	resulting 	from 	enforcement 	of 	the policy.
Finally, 	although we have 	concluded that 	this 	smoking policy
is 	a permissive 	subject of bargaining, 	we note that the parties
have 	previously 	reached 	agreement 	on designating 	employee 	smoking
areas. 	This agreement was 	incorporated into the parties' 	CBA
which was effective July 	1, 	1988 through June 	30, 	1991. 	After
preparation of 	the 	tobacco-free policy by the 	committee 	and
several 	hearings before the District 	school board, 	the board
adopted the policy on February 	4, 	1991. 	The policy was 	to be
effective July 	1, 	1991, 	upon expiration of the CBA. 	The Board
has 	previously held 	that 	a 	unilateral 	change 	occurs 	when official
action has been taken, 	not when it becomes 	effective. 	(Anaheim
Union High School District 	(1982) 	PERB Decision No. 	201.)
In Anaheim Union High School 	District, 	supra. 	PERB Decision- -.
No. 	201, 	the District adopted a resolution on June 2 9 to reduce
employee wages 	effective July 	1, 	the 	expiration date of 	the
parties' 	CBA. 	However, 	in that case, 	the unilateral change
affected the 	subject of wages, 	clearly a mandatory 	subject 	of
bargaining. 	The Board has not, 	however, 	ruled on when the
unilateral 	change 	of 	a permissive 	subject 	of bargaining occurs.
Matters 	not within the 	scope 	of 	representation are 	reserved
to 	the 	employer and may not be 	subject to meeting and
conferring.6 Although employers 	retain the 	right 	to 	meet 	and
consult with 	employee organizations 	on any 	subject 	outside 	the
scope of 	representation, 	the parties 	are not required to bargain
6EERA section 3543.2, 	see Footnote 3.
17

over a permissive 	subject. 	However, 	once agreement 	is 	reached
concerning 	a permissive 	subject and 	it 	is 	embodied 	in the
parties' 	CBA, 	the parties are bound by the terms of the agreement
until 	its 	expiration or unless 	modified by the parties.
The 	employer retains 	its 	management prerogative 	over
subjects outside the 	scope of representation. 	Further, 	by once
bargaining 	and agreeing on a permissive 	subject, 	the parties 	do
not 	make 	the 	subject a mandatory topic 	for 	future bargaining.
(Chula Vista City School District, 	supra, 	PERB Decision No. 	834;
Poway Unified School District, 	supra	- 	, 	PERB Decision No. 	680.)
The 	nature 	of 	a permissive 	subject 	of bargaining permits 	an
employer or 	an employee 	organization to 	indicate prior 	to 	the
expiration of 	the 	agreement that 	it does 	not 	intend 	to bargain
the nonmandatory 	subject. 	Thus, 	the District did not violate
EERA when 	it acted prior to the 	expiration of 	the 	CBA to 	adopt
the 	tobacco-free policy.
ORDER
The 	unfair practice 	charge and 	complaint 	in Case
No. 	SF-CE-1467 	is hereby DISMISSED.
Member Carlyle 	joined in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	19.
18

Hesse, 	Chairperson, 	concurring: 	While I agree with the
majority's 	conclusion that 	the 	Eureka 	City 	School 	District's
(District) 	smoking policy 	is 	a nonmandatory 	subject of
bargaining, 	I wish to distance myself 	from the analysis 	and
discussion. 	I 	concur in the result. 	I write 	separately with
regard to 	the 	application of 	the 	three-prong 	test 	set 	forth 	in
Anaheim Union High School 	District 	(1981) 	PERB Decision No. 	177
(Anaheim).
In Anaheim, 	the 	Public 	Employment Relations 	Board 	(Board)
established 	a 	three-pronged 	test 	for determining whether 	matters
not 	specifically 	enumerated 	are 	in 	fact 	negotiable 	under 	section
3543.2 	of the Educational Employment Relations Act 	(EERA).1 In
that decision, 	the Board stated:
. 	. 	. 	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.
[Fn. omitted.]
This 	test was 	approved by the California 	Supreme Court 	in San
Mateo City School 	District v. 	Public 	Employment 	Relations 	Board
(1983) 	33 Cal.3d 850 	[191 Cal.Rptr 800].
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
19

In applying the Anaheim test, 	I 	find that even if the
smoking 	policy met 	the 	first 	and 	second prongs 	of 	the Anaheim
test, 	the third prong is not satisfied. 	For example, 	the
District's 	rationale 	for 	the 	smoking policy 	includes 	a 	statement
that tobacco use 	is 	a health hazard. 	Such a 	statement could be
interpreted 	to 	involve 	health 	and 	safety 	issues 	which would
arguably 	satisfy the 	first prong of 	the Anaheim test. 	With
regard to 	the 	second prong, 	tobacco use 	could be 	an 	issue between
smokers 	and non-smokers 	as well 	as 	an 	issue between management
and employee organizations. 	However, 	I 	think it is clear that
the 	District's 	smoking policy 	involves 	a 	managerial 	prerogative
to promote 	and attain a 	smoke-free 	school 	environment.
Accordingly, 	I 	would 	find that 	the 	District's 	smoking policy does
not 	satisfy the third prong of 	the Anaheim test. 	Therefore, 	the
District's 	smoking policy 	is 	a 	nonmandatory 	subject of
bargaining.
As 	the 	District's 	smoking policy 	is 	a 	nonmandatory 	subject
of bargaining, 	and 	the new 	smoking policy was 	not 	effective 	until
after the 	collective bargaining agreement had expired, 	I 	find
that 	the 	District's 	conduct did 	not 	constitute 	a 	unilateral
change in violation of EERA section 3543.5(a), 	(b) 	and 	(c).
20