Sierra Joint Union High School District (PERB 1083E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SIERRA HIGH 	SCHOOL DISTRICT
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SIERRA JOINT UNION HIGH SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1492
PERB Decision No. 	1083
February 	17, 	1995
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Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Sierra High School District Teachers
Association, 	CTA/NEA; 	Stroup & de Goede, 	by Raymond W. 	Dunne,
Attorney, 	for Sierra Joint Union High School District.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	Sierra
Joint Union High School 	District 	(District) 	to a proposed
decision of a PERB administrative 	law judge 	(ALJ). 	The ALJ 	found
that the District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA or Act)1 when it
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
guaranteed by this 	chapter. 	For purposes 	of

changed 	the 	salary 	schedule 	on a memorandum of 	understanding
(MOU) 	for 1991-92 	without affording 	the Sierra High School
District 	Teachers Association, 	CTA/NEA 	(Association) 	notice and
an 	opportunity 	to negotiate 	the 	decision 	to 	implement 	the 	change
in policy and/or 	the 	effects 	of 	the 	change 	in policy.
Furthermore, 	the ALJ 	found 	that 	this 	conduct denied the
Association 	its 	right 	to 	represent 	unit members 	and 	interfered
with 	the 	rights 	of 	bargaining unit 	employees 	to be 	represented.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	statement 	of 	exceptions 	and 	the Association's 	response
thereto. 	Based upon this 	review, 	the Board reverses 	the ALJ's
proposed 	decision and 	dismisses 	the 	complaint 	and unfair practice
charge 	in accordance with 	the 	following discussion.
FACTUAL 	SUMMARY
The 	parties 	began 	reopener negotiations 	for 	the 	1991-92
school year in the spring of 	1991. 	On September 23, 	1991, 	the
District 	presented a proposal 	concerning 	compensation. 	The
proposal was drafted by Robert Hansen 	(Hansen), 	District
superintendent, 	and was presented 	in anticipation of 	the upcoming
unification vote 	in November 1991. 	The language 	read:
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

Non-Contingency:
Benefits:
The District 	will 	fund 	the 	increased 	cost 	of
the 	current benefits 	for 	the 	term of 	the
1991-92 	contract.
Contingency:
With 	the 	success 	of 	the 	unification 	election
on November 5, 	1991, 	the Sierra Joint Union
High School 	District will:
(a) 	Adopt 	the Golden Hills 	Elementary
District's 	Certificated 	Salary 	Schedule 	to be
effective with 	the payroll 	paid on May 	31,
1992. [2]
Should any 	combination of 	events 	or
circumstances 	cause 	the General 	Fund's
projected 	ending balance 	to 	fall 	below 	the
minimum 4% 	required by 	the 	State's 	'Criteria
and Standards', 	then the 	contingency
provision for salary will be 	renegotiated. [3]
At 	a 	subsequent 	negotiating 	session, 	the parties 	added 	the
following language to the District's September 23, 	1991,
proposal: 	"Should unification not pass, 	negotiations will 	reopen
on 	the 	Base 	Salary 	Schedule 	and Schedule 	C." 	The 	language 	was
proposed verbally by 	the 	Association and 	reduced 	to written 	form
by Hansen, 	who testified that 	this 	language was 	the product 	of
the Association's 	desire 	to negotiate 	compensation 	items 	if 	the
unification effort 	failed. 	With the addition of 	this 	language 	to
2Hereafter, 	the unification contingency will 	be 	referred to
as 	the 	"contingency."
3Hereafter, 	the 4% 	reserve 	condition will 	be 	referred to as
the 	"condition 	subsequent."
33

the District's September 23, 	1991, 	proposal, 	the parties on
October 8, 	1991, 	reached agreement 	on a 	salary increase.4 Under
a voter-approved unification plan, 	school 	districts 	were merged
to become 	the 	Sierra Unified School 	District, 	which became 	the
employer 	of 	the 	Sierra High School 	certificated 	staff 	as 	of
July 1, 	1992. 	As a result of the agreement, 	teachers expected a
salary 	increase 	in 	their pay warrants 	for May 	through August,
1992, 	"unless 	the 	occurrence of 	either contingency forced the
parties 	to negotiate 	a different 	arrangement."
The 	record does 	not 	indicate 	that 	the parties 	ever
explicitly 	discussed whether 	adoption 	of 	the 	Golden Hills 	salary
schedule 	would 	occur 	immediately upon 	a 	favorable 	unification
vote. 	As 	it 	later became clear, 	the Association negotiators 	left
the 	negotiations 	under the 	belief 	that 	the 	Golden Hills 	salary
schedule 	would be 	adopted 	immediately 	if 	unification 	occurred,
while Hansen 	left 	the bargaining 	table under the 	impression 	that
the 	Golden Hills 	salary 	schedule would be 	adopted 	if 	unification
occurred 	and 	the 	general 	fund projected 	ending balance 	did not
fall 	below 4 	percent. 	Obviously that 	information would not be
available 	for some 	time after 	the unification vote 	in November, 	a
fact known to all 	at 	the 	table.
In fact, 	the District 	did not adopt 	the Golden Hills 	salary
schedule 	for 	the pay periods May through August 	1992. 	After
4The 	District 	governing board 	ratified 	the 	agreement 	on
October 17, 	1991. 	The minutes 	of 	that meeting describe 	the
contingency agreement as 	follows: 	"With the success 	of 	the
unification election 	the Golden Hills 	salary schedule would be
effective 	[in the] 	May 31, 	1992 payroll."
A4

attending 	school 	board meetings 	from December 	1991 	onward,
Christine O'Kelley 	(O'Kelley), 	the Association's 	chief
negotiator, 	formed the 	impression 	that 	the District 	had not
budgeted money 	for 	the 	raise 	that 	the Association 	expected as 	a
result 	of 	the 	successful unification vote. 	In March 	1992,
O'Kelley mentioned 	this 	concern 	to 	Hansen 	and asked him to 	give
the Association as much notice as 	possible 	if 	negotiations 	had 	to
be 	reopened. 	Hansen responded that 	he would do 	so, 	but 	he
indicated 	that 	at 	that 	time 	he 	did not 	foresee 	a drop 	in 	the
general 	fund balance below 4 percent. 	There 	is no evidence 	in
the 	record 	that 	the parties 	focused on 	or 	intended 	to 	establish a
"status quo" 	as 	a starting point 	in 	future negotiations.
On March 25, 	1992, 	Hansen presented a negotiations update
memo 	to 	the 	governing board. 	Regarding 	the 	condition 	subsequent,
Hansen wrote:
I 	have 	to anticipate 	that 	the 	contingency
language 	of 	the Memorandum of 	Understanding
will be 	implemented. 	. . . 	it 	is 	clear to me
that we will 	have 	to 	return to 	the bargaining
table 	as 	provided 	in 	the Memorandum of
Understanding.
Hansen provided 	the Association with a 	copy of 	the memo 	he
presented 	to 	the board. 	At 	a governing board meeting 	on
April 	23, 	1992, 	at which Association President Cindy Duwe 	(Duwe)
was present, 	Hansen reported that 	the 	contingency 	language 	in the
agreement 	"has been 	invoked" 	because 	the general 	fund's 	projected
balance 	fell 	$12,129 	short 	of 	the 	4 percent 	reserve.
5

On May 8, 	1992, 	Hansen sent5 a memo to the Association,
which read, 	in part:
Based on 	[the 	condition subsequent] 	that
provision 	the 	District will 	not 	adopt 	the
Golden Hills District's 	Certificated Salary-
Schedule 	effective with 	the 	payroll 	paid on
May 31, 	1992.
This 	same 	language does provide 	that 	the
contingency provisions 	for 	salary will 	be
renegotiated.
What 	is your pleasure?
After the Association 	received 	the May 	8 	memo 	from Hansen,
the parties had one negotiating session, 	on June 3, 	1992.
According 	to 	O'Kelley, 	the Association 	took 	the position 	that
negotiations 	must 	begin with 	the Golden Hills 	salary 	schedule 	as
the 	status 	quo 	established by 	the unification vote. 	The District
took 	the position 	that 	the prior agreement 	contained 	two
contingencies 	which needed 	to be 	satisfied before 	the 	Golden
Hills 	salary schedule was adopted: 	(1) 	the successful
unification vote and 	(2) 	a general 	fund projected ending balance
above 	4 	percent. 	Since 	the 	latter 	contingency was 	not 	satisfied,
Hansen 	explained that 	the 	status 	quo 	from which negotiations 	must
begin is 	the prior year's 	contract, 	not 	the Golden Hills 	salary
schedule.
5Hansen 	testified that 	he 	sent 	this 	memo because 	he 	had been
asked by 	the Association 	for 	official 	notice 	in writing 	if 	the
contingency language was 	to be 	invoked. 	The last 	date District
payroll 	is 	ordinarily sent 	to 	the 	county office 	for processing 	is
May 10. 	Thus, 	a change in the May 31, 	1992, 	pay warrant granting
a 	salary 	increase 	had 	to have been 	communicated 	to 	the 	county
office by May 	10.
66

During the June 3, 	1992 meeting, 	the Association proposed
that 	the District pay teachers 	for only two 	of 	the 	remaining
months 	(July and August 	1992) 	before 	teachers 	would automatically
be 	placed on 	the Golden Hills 	salary schedule 	as 	a 	result 	of 	the
unification 	implementation. 	Hansen 	subsequently discussed 	the
proposal 	with 	the 	District 	board and 	the 	District 	officially
rejected the Association's June 3 proposal 	on June 	11, 	1992.
Hansen 	then notified 	the Association 	in writing6 and made 	no
counter-proposal.
Another negotiating session was 	set 	for June 	16, 	but 	it
never 	took place. 	Hansen 	said 	that 	lawyers 	became 	involved and
the Association 	informed him it would pursue other avenues. 	On
June 16, 	1992, 	the instant unfair practice charge was 	filed.
ALJ'S 	DECISION
The 	issue 	as 	framed by the ALJ was 	whether 	the District
unlawfully refused 	to adopt 	the higher salary schedule, 	thereby
altering 	the 	terms 	of 	the 	collective bargaining agreement, 	and
thereafter 	failing 	to 	negotiate 	in 	good 	faith 	concerning 	the
promised 	salary 	increase 	for 	the period 	of May 	through August
1992.
Attempting 	to 	interpret 	the meaning 	of 	the 	contract
language, 	the ALJ first noted that:
[T]he 	record 	is 	devoid of 	any explicit
discussion across 	the 	table 	regarding 	the
6The 	response read, 	in its entirety: 	"Because of 	the
current 	fiscal 	emergency in the State, 	it would be 	imprudent 	for
this 	Board 	to 	encumber any additional 	funds."
77

meaning of 	the 	relevant 	language.
(Proposed Decision, 	p. 	16.)
In 	such cases, 	language 	should be 	construed 	in accordance with
its 	facial 	or plain meaning. 	(The Regents 	of 	the University of
California 	(1989) 	PERB Decision No. 	771-H, 	pp. 	5-6.) 	The ALJ
concluded that 	the 	language 	of 	the MOU, 	read together with 	the
bargaining 	history,7 should be 	interpreted 	to mean 	that 	the
District 	was 	obligated 	to adopt8 the 	higher 	salary 	schedule 	since
it 	was 	established as 	a new status 	quo by the 	contract. 	He also
found 	that 	the 	condition 	subsequent 	did not 	detract 	from this
obligation, since:
. 	. 	. 	the general fund contingency is an
entirely 	separate 	contingency 	of 	a different
type, 	and there 	is no language 	in the
agreement 	which purports 	to 	connect 	it 	to 	the
unification vote 	contingency 	and 	the
implications of a 	favorable vote.
(Proposed Decision, 	p. 	17.)
The ALJ 	emphasized 	that 	the District 	was 	obligated 	to 	adopt
the higher salary schedule, 	but not 	to pay it 	immediately;
7A1though 	the 	record 	contained 	"limited 	negotiating
history," 	the ALJ 	considered 	testimony 	indicating 	that
negotiations 	were 	influenced by 	the 	fact 	that 	both parties
believed 	they would benefit 	from an 	agreement 	which 	adopted 	the
Golden Hills 	salary schedule upon passage 	of unification. 	As 	the
ALJ put 	it, 	"The 	logical 	inference 	. . . 	is 	that 	the adoption of
the Golden Hills 	salary 	schedule upon a 	favorable unification
vote was 	the 	quid pro 	quo 	for 	teachers 	successfully working 	in
support 	of 	the unification."
8The ALJ noted 	that, 	although the agreement provided that
the Golden Hills 	salary 	schedule would not 	become 	"effective"
until 	the payroll paid on May 31, 	1992, 	the terms 	"adoption" 	and
"effective" 	dates were not used synonymously, 	and there was 	"no
language 	in the agreement 	that 	qualifies 	or diminishes 	the
requirement 	of mandatory 	'adoption' 	of 	the new salary schedule as
a 	result 	of 	the 	favorable unification vote."
8

however, 	the Golden Hills 	schedule became 	the 	status 	quo 	from
which negotiations 	should have 	begun when 	the 	condition
subsequent 	occurred.9 Therefore, 	when the District 	refused to
adopt 	the Golden Hills 	salary schedule, 	it unilaterally 	changed a
negotiable 	term and 	condition of 	employment 	in violation of 	EERA.
The ALJ also 	found 	that 	the District's 	rejection10 of 	the
Association's 	compromise proposal 	was 	a per se violation of 	its
obligation to negotiate 	in good faith, 	since its 	"curt, 	one 	line
rejection" 	suggested 	to 	the ALJ 	that 	the 	District 	entered 	the
negotiations 	with a 	fixed position 	that 	"hardly 	evidences 	a 	good
faith attempt 	to 	engage 	in 	the 	kind 	of 	give 	and 	take 	contemplated
by the Act."
DISTRICT'S 	EXCEPTIONS
On appeal, 	the District 	raises numerous 	exceptions 	to 	the
ALJ's proposed decision. 	Most 	of 	the 	exceptions 	relate 	to 	the
District's 	claim that 	the 	contingency would 	only 	take 	effect 	if
the 	condition subsequent 	failed to occur: 	thus, 	since the
general 	fund projected ending balance 	fell 	below 	the 	minimum 4
9The ALJ determined 	that 	it 	was 	unnecessary 	to address 	the
general 	fund 	contingency, 	for even 	if 	the 	ending balance 	fell
below 4 percent, 	the District was 	required under the 	contract 	to
negotiate 	in good 	faith 	from the 	existing 	status 	quo 	established
by the 	first 	contingency, 	which 	it had failed to do.
1OA1though the District 	cited 	financial 	reasons 	for 	rejecting
the Association's proposal, 	the ALJ noted that under prior PERB
case 	law, 	a 	fiscal 	emergency does 	not 	relieve an employer 	from
its 	obligations 	from bargaining under the Act, 	but 	at most may
form the 	basis 	for a negotiating 	stance which must 	be presented
at 	the 	table 	in a give and 	take 	atmosphere 	aimed at 	reaching 	an
agreement. 	(San Mateo County Community College District 	(1979)
PERB Decision No. 	94, 	p. 	13; 	Compton Unified School District
(1989) 	PERB Decision No. 	784, 	p. 	5.)
99

percent, 	the District was not 	obligated to adopt 	the higher
salary schedule. 	The status 	quo never changed, 	and the parties
had 	committed 	to 	renegotiating a new salary provision.11 Since
the Association 	failed to 	continue 	to 	request 	negotiations,
opting 	to 	file an unfair practice 	charge 	instead, 	the District
had fulfilled 	its 	obligations. 	Also, 	it was 	improper for the ALJ
to 	find 	that 	the District 	acted 	in bad 	faith 	in negotiations
subsequent 	to the May 31 payroll 	date.
ASSOCIATION'S 	RESPONSE 	TO DISTRICT'S 	EXCEPTIONS
The Association argues 	that 	the ALJ 	interpreted 	the 	contract
correctly, 	accorded the proper weight 	to 	testimony of witnesses,
and made proper 	findings 	on questions 	of 	fact. 	The Association's
response 	addressed 	each exception 	in 	turn.12
11As noted by 	the ALJ, 	even 	the District 	acknowledged 	that
the 	status 	quo 	from which negotiations 	would begin upon
occurrence 	of 	the 	condition 	subsequent was 	the 	salary 	schedule 	in
the prior year's 	contract.
12Regarding 	the District's 	exception 	1, 	alleging 	the 	omission
of 	certain facts, 	the 	omission was harmless 	and 	is based on an
exaggeration of 	the 	testimony 	in question. 	Exception 2,
regarding 	language added after September 23, 	is 	not 	supported by
the 	record. 	Exception 3 	challenges 	the 	admissibility of 	hearsay
evidence 	to which no 	timely objection was made. 	In exception 4,
the District 	is 	challenging 	facts 	admitted 	in 	its 	own brief 	and
lacks 	support 	in the 	record. 	Regarding 	the District's 	complaint
in exception 5, 	the ALJ's 	failure to make 	findings 	regarding
post-agreement 	conduct 	lacks 	reference 	to 	erroneous 	portions 	of
the proposed decision. 	Similarly, 	for exception 6, 	the District
provides 	insufficient 	reference 	to 	the 	record 	to 	support 	the
exception. 	Exception 	7 	constitutes 	a belated attempt 	to 	impeach
the 	credibility of 	O'Kelley's 	testimony; 	even 	if permitted 	to be
raised at 	this 	stage, 	they lack merit because 	the District 	has
not 	shown how the ALJ placed 	too much weight 	on 	that 	testimony.
According to the Association, 	the District's attempt 	to
infer 	that 	the Association understood 	that 	the 	4 	percent
contingency was 	a 	condition precedent 	to 	the 	change 	in 	the 	status
10

DISCUSSION
I 	agree with the ALJ that 	the 	decision 	in this 	case 	is 	a
result of 	contract 	interpretation. 	However, 	I also note that
there 	could be 	no unlawful 	unilateral 	change by 	the 	District
unless 	the parties 	intended 	to 	create 	a new status 	quo which
defined the Golden Hills 	schedule as 	a negotiating base whether
or not 	the 	condition 	subsequent 	occurred.
When interpreting the 	intent 	of parties 	to a 	contract, 	legal
precedent 	directs 	us 	to 	look 	for objective manifestations 	of
intent.13 Courts 	should treat 	a document as what 	it 	says 	it 	is
unless 	extrinsic 	evidence 	supplies 	notice 	of 	ambiguities.14 The
California 	Civil 	Code provides 	similar guidance:
California 	Civil 	Code 	section 	1636 	provides 	that:
A contract must 	be 	so 	interpreted as 	to give
effect 	to 	the mutual 	intention of 	the parties
as 	it existed at 	the 	time of 	contracting, 	so
far as 	the 	same 	is ascertainable and lawful.
quo 	is 	an 	"oxymoron" 	because 	the 	two 	"are not 	causally related."
Regarding exception 	8, 	which challenges 	the 	statement 	of 	the
issue, 	the Association responds 	that 	the exception is 	"absurd"
since 	the District 	always 	had 	full 	awareness 	of 	the Association's
theory of 	the 	case.
For exception 9, 	in which the District 	attacked the
discussion portion of 	the proposed decision, 	the Association
disagrees because 	the ALJ's discussion is well 	grounded in PERB
precedent.
13See, 	e.g., 	Brobeck. 	Phleaer & Harrison v. 	Telex Corp.
(1979) 	602 F.2d 866, 	cert. 	den. 	(1979) 	444 U.S. 	981 	[62 L.Ed.2d
407] .
14Krasley v. 	Superior Court 	(1980) 	101 Cal.App. 3d 425
[161 Cal.Rptr. 629].
11

California Civil 	Code 	section 	1638 	provides 	that:
The 	language of 	a 	contract 	is 	to govern 	its
interpretation, 	if 	the language is 	clear and
explicit, 	and does not 	involve an absurdity.
It 	has 	long been the 	rule 	that where a 	contract 	is 	uncertain
and ambiguous 	the court must determine, 	if possible, 	what 	is
intended, 	but 	in the absence 	of 	such ambiguity and uncertainty,
the 	court 	can only enforce 	the 	contract 	according 	to 	its 	terms.15
In this 	case, 	I have no evidence that 	the parties 	intended
anything 	other than the plain meaning of 	the words 	in their
contract. 	Furthermore, 	the language of the contract, 	read in its
entirety, 	clearly and explicitly defines 	the 	obligation of 	the
parties.16 The words used 	convey the message 	that 	the 	salary
schedule 	was 	intended to be 	renegotiated 	if 	the 	condition
subsequent 	occurred:
Should any 	combination of 	events 	or
circumstances 	cause 	the 	General 	Fund's
projected 	ending balance 	to 	fall 	below the
minimum 4% 	. . . 	then 	the 	contingency
15Petro v. 	Ohio Cas. 	Ins. 	Co. 	(1951) 	95 F.Supp. 	59 	(where a
contract 	is uncertain and ambiguous 	it becomes 	the 	duty of 	the
court to determine, 	if possible, 	what is intended, 	but in absence
of 	such ambiguity and uncertainty, 	and when contract 	is 	in all
respects valid, 	power of 	court 	is 	limited to enforcing contract
according 	to 	its 	terms).
16See U.S. 	v. 	General Motors Corp. 	(1963) 	216 F.Supp. 	362 	(in
determining meaning and effect 	of 	agreements, 	it 	is 	the duty of
the 	court 	to give 	effect 	to 	their spirit 	and purpose as
determined from all provisions of agreements); 	Harris v. 	Klure
(1962) 	205 Cal.App.2d 574 	[23 Cal.Rptr. 	313] 	(in construing a
contract, 	court 	should strive 	to ascertain its 	object as
reflected 	in provisions 	thereof 	and 	should be 	guided by
intentions 	of 	parties 	as 	disclosed by 	those provisions 	and 	should
endeavor to effect 	the 	intention and object 	thus ascertained);
see also California Civil 	Code 	sections 	1636 and 1638, 	supra.
- -
12

provision 	for 	salary will 	be 	renegotiated.
(Emphasis 	added.)
The 	effect 	of 	the occurrence 	of 	the 	condition subsequent 	is
found in California Civil 	Code 	section 1438, 	which provides 	that:
A condition 	. 	. 	. 	referring to a future
event, 	upon the happening of which the
obligation becomes 	no 	longer binding upon 	the
other party, 	if he 	chooses 	to avail himself
of 	the condition. 	[Emphasis added.]
Contrary to the view of 	the ALJ, 	the 	record shows 	that
during negotiations, 	both parties 	were 	concerned about 	the
District's 	ability 	to pay 	the 	contingent 	salaries 	during
negotiations,17 and the actions 	of 	the parties after the
condition 	subsequent 	occurred 	is 	additional 	evidence 	of 	their
intent. 	In Anchor Cas. 	Co. 	v. 	Surety Bond 	(1962) 	204 Cal.App.2d
175 	[22 Cal.Rptr. 	278], 	the court held that both prior and
subsequent 	negotiations 	and 	conversations 	of 	the parties 	may be
examined 	for assistance 	in ascertaining 	the 	true 	intention of 	the
parties 	to a contract. 	In the 	case at hand, 	it appears 	clear
17For example, 	the ALJ recited testimony by a District
representative 	(Hansen) 	that 	"his 	concern as he wrote 	the
[condition subsequent] 	language was 	to have an 	'escape 	clause' 	in
the 	event 	the unexpected occurred." 	Hansen 	testified 	that 	his
purpose 	in proposing 	the 	last 	paragraph was 	"to provide 	that 	the
projected 	ending balance 	would not 	fall 	below 	the 	four percent
required by 	the 	State's 	criteria and 	standards."
During the September 23, 	1991, 	negotiating session, 	a
discussion occurred about 	the proposal, 	especially 	the 	second
contingency. 	O'Kelley testified that, 	in her experience, 	it was
unusual 	for 	the projected general 	fund balance 	to drop below 4
percent. 	Nevertheless, 	Association negotiators questioned Hansen
about 	the possibility of 	a 	sub-4 percent 	general 	fund balance.
Hansen 	responded 	that 	he 	had no knowledge 	of 	anything 	that 	would
cause 	the balance 	to 	fall below that 	level. 	No 	further
discussion occurred about 	the meaning 	of 	the 	contingency
language.
13

from the 	conduct 	of 	the parties before and after the 	shortfall 	in
reserves 	became 	known that 	the 	condition 	subsequent 	was 	tied 	to
the 	obligation 	to pay defined salaries. 	If 	the 	condition
subsequent 	occurred, 	the parties 	intended 	to go back 	to 	the 	table
to negotiate 	salaries.
Under the plain meaning rule used by the ALJ, 	it 	is 	clear
that 	the 	unification 	clause 	obligated 	the District 	to pay defined
salaries 	after the 	contingency occurred, 	setting a 	flexible
status 	quo, 	that 	could change because 	it was 	tied to a second
event 	that might 	occur before 	the 	obligation became 	fixed. 	The
status 	quo was 	subject 	to 	further 	transformation by 	the 	condition
subsequent.
Applying 	the plain meaning 	rule 	and 	the 	other aids 	to
contract 	interpretation 	identified above, 	I 	read the 	condition
subsequent to mean that, 	once 	it occurred, 	the salaries to be
paid became undefined and 	the 	obligation 	to 	renegotiate 	arose.
It 	is 	illogical 	and 	inconsistent 	with Civil 	Code 	section
1438 	to hold 	that 	the 	salary 	schedule 	defined by 	the unification
contingency 	remained 	the 	status 	quo 	once 	the 	condition 	subsequent
occurred. 	When reserves 	fell below 4 percent, 	the District's
obligation 	to pay 	in accord with a 	defined 	salary 	schedule
expired and was 	replaced by an obligation 	to negotiate. 	That 	is
the 	status 	quo 	that 	came 	into being by agreement 	of 	the parties
and 	I 	am not 	permitted to 	speculate 	that more was 	intended by the
14

parties.18 This 	interpretation gives meaning 	to 	the 	entire
contract 	section dealing with salaries, 	rather than 	interpreting
clauses 	in a piecemeal 	fashion.
The 	record does 	not 	support 	the ALJ's 	finding 	that 	the
District 	acted 	in bad 	faith 	in negotiations 	subsequent 	to 	the
May 31 payroll 	date. 	I 	find no 	refusal 	to negotiate by the
District during the period in question. 	Hansen's June 	11, 	1992,
letter 	to 	the 	Association 	simply 	informed 	them that 	the 	District
was 	officially rejecting the Association's 	June 	3, 	1992 	proposal.
The 	letter 	itself 	did not 	constitute 	a 	refusal 	by 	the District 	to
engage 	in 	further negotiations. 	No 	further demands 	to negotiate
appear 	in the 	file; 	although another negotiating 	session was 	set
for June 	16, 	the Association 	informed Hansen it 	would pursue
other avenues.
In 	conclusion, 	since 	the District 	did not 	refuse 	a demand to
renegotiate 	salary after 	occurrence 	of 	the 	condition 	subsequent,
there was no violation. 	Accordingly, 	we 	reverse 	the ALJ's
finding that 	the District violated EERA section 3543.5(a), 	(b)
and 	(c). 	In the absence of an unfair practice, 	the Board has no
further 	jurisdiction over this 	case.19
18See, 	e.g., 	Sayble v. 	Feinman 	(1978) 	76 Cal.App.3d 509
[142 Cal.Rptr. 	895], 	citing California Code of Civil Procedure
section 	1858 	(Court 	has 	neither the power to make a 	contractual
arrangement 	for parties 	which 	they 	themselves 	did not make 	nor 	to
insert 	language 	in agreement 	that 	the 	appealing party wishes 	were
there).
19EERA section 3541.5 (b), 	which reads, 	in pertinent part:
(b) 	The board shall 	not have the authority
to enforce agreements between the parties,
15

ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	S-CE-1492 	is hereby DISMISSED.
Member Caffrey's 	concurrence begins 	on page 	17.
Member Carlyle's 	dissent begins 	on page 	27.
and shall 	not 	issue 	a 	complaint 	on any 	charge
based 	on alleged violation 	of 	any agreement
that 	would not 	also 	constitute 	an unfair
practice under this 	chapter.
16

CAFFREY, 	Member, 	concurring: 	I 	concur 	in the dismissal 	of
the 	complaint 	and unfair practice 	charge 	in 	Case 	No. 	S-CE-1492.1
I 	write 	separately 	to 	state 	the 	reasons 	on which my 	decision 	is
based.
At 	the 	center 	of 	the 	dispute 	in 	this 	case 	is 	the meaning 	of
the 	contractual 	language 	agreed 	to 	by 	the 	Sierra 	Joint 	Union 	High
School 	District 	(District) 	and 	the 	Sierra 	High 	School 	District
Teachers Association, 	CTA/NEA 	(Association) 	on October 	8, 	1991.
The 	portion 	of 	that 	language 	in question 	states, 	in part:
Contingency:
With 	the 	success 	of 	the 	unification 	election
on November 5, 	1991, 	the 	Sierra Joint Union
High 	School 	District 	will:
(a) 	Adopt 	the 	Golden Hills 	Elementary
District's 	Certificated 	Salary 	Schedule 	to 	be
effective 	with 	the 	payroll 	paid 	on May 	31,
1992.
(b) 	Adopt 	the 	revised Appendix C, 	"Schedule
of 	Hourly 	Compensation 	and 	Stipends"
beginning 	with 	the 	payroll 	paid 	on December
10, 	1991.
(Compensation 	through 	factors, 	in 	lieu 	of
stipends, 	will 	not 	be 	implemented 	in 	the
1991-92 	contract 	year.)
Should 	any 	combination 	of 	events 	or
circumstances 	cause 	the 	General 	Fund's
projected 	ending 	balance 	to 	fall 	below 	the
minimum 	4% 	required 	by 	the 	State's 	(Criteria
and Standards), 	then 	the 	contingency
provision 	for 	salary 	will 	be 	renegotiated.
(Underlining 	in 	original.)
1The administrative 	law judge 	(ALJ) 	who 	conducted the
hearing 	in 	this 	case 	left 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	employment prior to 	issuance 	of a proposed decision.
Pursuant to PERB Regulation 32168(b) 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	31001, 	et seq.), 	the case was assigned to another ALJ.
17

The 	following language, 	proposed by the Association, 	was added
prior to adoption:2
Should unification not pass, 	negotiations
will 	reopen on 	the 	Base 	Salary Schedule 	and
Schedule 	C.
The 	California 	Civil 	Code provides 	direction 	in the
interpretation of contracts. 	Civil Code section 163 8 	states, 	in
part:
The 	language of a 	contract 	is 	to govern 	its
interpretation, 	if the language 	is 	clear and
explicit, 	and does not 	involve an absurdity.
Civil Code section 1641 states, 	in part:
The whole 	of a 	contract 	is 	to be 	taken
together, 	so as 	to give effect 	to every part,
if reasonably, practicable, 	each clause
helping 	to 	interpret 	the 	other.
Civil Code section 1644 	states, 	in part:
The words 	of a 	contract 	are 	to be understood
in their ordinary and popular sense, 	. 	. 	.
Consistent with this 	guidance, 	the Board has 	found no need 	to go
beyond the plain language 	of 	the 	contract 	to ascertain 	its
meaning, 	when the 	contract 	is 	clear and unambiguous 	on its 	face.
(Marysville Joint 	Unified School 	District 	(1983) 	PERB Decision
No. 	314.) 	However, 	when the contract language is ambiguous,
extrinsic 	evidence 	such as 	bargaining history and 	the 	conduct 	of
the parties 	is 	properly 	considered by 	the 	Board 	to determine 	the
2The 	parties 	also agreed to an addendum to 	this 	language
dealing with 	the 	subject 	of 	the placement 	of 	teachers 	on 	the
Golden Hills 	Elementary District 	(Golden Hills) 	salary schedule.
The meaning of 	the addendum language 	is 	not 	in dispute 	in this
case.
18

meaning 	of 	the 	language. 	(Victor Valley Community College
District 	(1986) 	PERB Decision No. 	570 	(Victor Valley).)
Civil Code section 1436 states, 	in part:
A condition precedent 	is 	one which is 	to be
performed before 	some 	right 	dependent 	thereon
accrues, 	or some act dependent 	thereon is
performed.
The plain meaning of 	the 	contract 	language 	in question, 	and the
whole 	of 	that 	language 	taken together, 	lead to the 	conclusion
that 	two 	conditions 	precedent must 	be performed before 	the
payment 	of 	salaries 	in accordance with the Golden Hills 	salary
schedule occurs effective with the May 31, 	1992, 	payroll.
The 	first 	condition precedent 	is 	the 	success 	of 	the
November 5, 	1991, 	unification election. 	With that success, 	the
language 	indicates 	that 	the District 	will 	adopt 	the Golden Hills
salary schedule. 	While 	the 	timing of 	the adoption is
unspecified, 	it presumably is prior to the 	time 	the Golden Hills
salary schedule 	is 	to be effective, 	the May 1992 	payroll paid on
May 31, 	1992. 	If the unification election is not successful, 	the
parties 	have agreed 	that negotiations 	over 	salaries 	will 	reopen.
The 	second 	condition precedent 	requires 	that 	the 	general
fund ending balance be projected at 	or above 	4 	percent. 	"Any
combination of 	events 	or circumstances" 	causing 	the District's
projection to 	fall 	below 4 percent will 	result 	in renegotiations.
While again no timing is 	specified, 	the 	"events 	or circumstances"
are 	obviously 	in the 	future, 	and the 	language 	"any 	combination"
suggests 	that multiple 	events 	or 	circumstances may 	occur 	over
some unknown period of 	time. 	Presumably, 	the below 4 percent
19

projection 	leading 	to 	renegotiations 	would 	occur prior 	to 	the
time 	the Golden Hills salary schedule 	is 	to be effective, 	the May
1992 	payroll paid on May 31, 	1992. 	If 	the projected balance
falls below 4 percent, 	the parties 	have agreed to renegotiate
"the 	contingency provision 	for 	salary."
In this 	case, 	the parties dispute 	the 	status quo 	from which
the agreed to 	renegotiations are 	to begin, 	since 	the 	first
condition was met 	while 	the 	second condition was 	not. 	To 	resolve
this 	dispute we must 	examine 	the 	language 	of 	the 	contract 	to
determine 	what 	the 	parties 	agreed 	to 	renegotiate 	when 	they
indicated 	that 	"the 	contingency provision 	for 	salary" 	would be
renegotiated 	if 	the District 	projected 	its 	general 	fund 	ending
balance below 4 percent.
The Association argues 	that 	the 	success 	of 	the unification
election 	requires 	adoption of 	the Golden Hills 	salary 	schedule,
and 	changes 	the 	status 	quo 	from which any 	renegotiations
conducted pursuant 	to 	the 	second 	condition must 	commence. 	Under
this 	interpretation, 	the 	first condition, 	once met, 	must be given
full 	effectiveness 	without 	reference 	to 	the 	second 	condition.
Regardless 	of 	whether 	the 	general 	fund projected 	ending balance
falls below 4 percent, 	the Golden Hills 	salary schedule becomes
the 	status 	quo 	from which payments must be made 	effective May 31,
1992, 	unless the parties' 	renegotiations lead to some other
conclusion. 	Such an interpretation requires 	that 	the 	conditions
be 	taken 	separately, 	rather than together as 	required by Civil
Code 	section 1641. 	It also 	ignores 	the 	ordinary meaning of 	the
20

contract 	language, 	which is 	to govern 	its 	interpretation pursuant
to Civil 	Code section 1644.
The 	parties 	have 	agreed 	to 	renegotiate 	"the 	contingency
provision for salary" 	if 	the 	second condition is 	not met.
Webster's New World Dictionary 	(3d college ed. 	1988) 	p.301,
defines 	"contingency" 	as 	"some 	thing 	or event which depends 	on or
is 	incidental 	to another." 	In this 	case, 	the 	contingency
affecting 	salaries 	calls 	for 	the 	adoption 	of 	the Golden Hills
salary schedule 	to be dependent 	on 	the 	success 	of 	the unification
election. 	Additionally, 	the underlining of 	the word
"contingency" 	in the 	second 	condition 	is 	a 	clear reference 	to 	the
underlined word 	"Contingency" 	which 	is 	the 	heading directly 	over
the 	language 	of 	the 	first 	condition. 	The plain meaning of 	this
contract 	language, 	taken together, 	indicates 	that by agreeing to
renegotiate 	"the 	contingency provision 	for 	salary," 	the parties
have 	agreed 	to 	renegotiate 	the 	first 	condition with 	regard 	to 	the
salary schedule, 	including what effect, 	if any, 	the success of
the unification election is 	to have on salaries. 	Obviously, 	the
starting point 	of 	renegotiations would be 	the 	status 	quo 	in
effect when the parties 	agreed 	to 	this 	contract 	language.
The parties 	agreed to 	the 	contract 	language 	in October 	1991.
At 	that 	time, 	each 	condition referred to a 	future 	event which had
not 	yet 	occurred or 	failed to occur. 	Within the 	language 	of 	the
two 	conditions, 	each party proposed what would happen if 	one of
the 	conditions was 	not met. 	The Association proposed that
failure 	of 	the unification election would 	lead 	to 	reopened
21

negotiations 	on 	the base 	salary and 	stipend 	schedule. 	The
District 	proposed that 	failure 	of 	the 	general 	fund 	ending balance
to be projected at 	or above 	4 	percent would 	lead to
renegotiations 	on the salary schedule. 	The parties' 	agreement 	in
October 	1991 	that 	further negotiations 	would be 	the 	result 	of
either condition failing 	to occur, 	leads 	to 	the 	conclusion that
those 	negotiations 	would begin 	from the 	status 	quo which was 	in
effect at 	the 	time 	of 	that agreement, 	absent express 	contractual
language 	to 	the 	contrary.
The Association refers 	to Civil 	Code 	section 1654 which
states, 	in part:
In cases of uncertainty 	. 	. 	. 	the language of
a 	contract 	should be 	interpreted most
strongly against 	the 	party who 	caused 	the
uncertainty to 	exist.
Asserting 	that 	the 	disputed 	language 	is 	ambiguous 	and uncertain,
the Association argues 	that 	Civil 	Code 	section 	1654 	requires 	that
the 	uncertainty must 	be 	resolved 	in 	favor 	of 	the Association and
against 	the District, 	which drafted the disputed language. 	The
Board dealt 	with a 	similar argument 	in Butte 	Community College
District 	(1985) 	PERB Decision No. 	555 	(Butte CCD), 	stating, 	in
pertinent part:
. 	. 	. 	the reported cases pertaining to
section 	1654 	indicate 	that when the 	contract
language 	is 	arrived at 	through the process 	of
negotiations, 	section 1654 does not apply and
the 	contract provisions 	in question 	should
not 	then be 	construed against 	either party.
[Citations.]
22

Here, 	as 	in Butte CCD, 	any uncertainty of 	language which arguably
exists 	is 	resolved under the 	rules 	of 	Civil 	Code sections 	1638,
1641 and 1644, 	applied above.
Assuming arguendo 	that 	the 	language 	in question 	is
ambiguous, 	I 	find support 	for the 	interpretation described above
in 	the bargaining history and the 	conduct 	of 	the parties.
(Victor Valley.)
First, 	the disputed language was proposed by the District.
It 	is 	reasonable and logical 	to 	conclude 	that 	the District
proposed 	language which would 	require 	renegotiations 	in 	the 	face
of 	a diminishing projected general 	fund balance, 	rather 	than
implementation 	of 	the 	higher 	salary 	schedule unless 	the parties
renegotiated to some 	other conclusion. 	Second, 	the Association's
response 	to 	the District's proposal 	in September 	1991 	bargaining
was 	to discuss 	the 	likelihood of 	the projected general 	fund
ending balance 	falling below 4 	percent. 	This 	conduct 	suggests
that 	the Association was 	aware 	that 	a projection below 4 	percent
would 	effect 	the payment 	of 	salaries 	based 	on 	the Golden Hills
salary schedule, 	assuming success 	of 	the unification election.
Third, 	when the District's 	Board of 	Trustees adopted a general
fund ending balance projection below 4 percent 	in April 	1992, 	the
District 	advised 	the Association 	that 	the 	Golden Hills 	salary
schedule would not be adopted, 	consistent with 	its 	interpretation
of 	the disputed language. 	The District 	indicated to 	the
Association that 	the 	language provided for renegotiations, 	which
the Association 	requested. 	At 	the 	subsequent 	negotiating
23

session, 	while 	the Association apparently initially 	took 	the
position 	that 	renegotiations 	should begin with 	the 	Golden Hills
salary schedule as 	the 	status quo, 	the District 	explained its
position with regard to 	the 	starting point 	for negotiations, 	and
the 	Association ultimately 	offered 	a 	salary proposal 	below 	the
level 	it maintains was 	the 	status 	quo. 	The parties by their
conduct, 	therefore, 	appear to have renegotiated beginning 	from
the 	status 	quo 	in effect 	in October 	1991 	when 	they agreed to 	the
conditional 	contract 	language.
Based on the 	foregoing discussion, 	I 	conclude 	that 	the plain
meaning 	of 	the 	disputed 	language 	taken 	in 	its 	entirety,
considered 	in 	conjunction with 	the 	limited bargaining 	history,
required 	renegotiations 	pursuant 	to 	the 	second 	condition 	to 	begin
from the 	status 	quo which was 	in effect 	when the parties 	agreed
to the language 	in October 1991. 	Therefore, 	the District did not
violate 	the Educational 	Employment 	Relations Act 	(EERA) 	when 	it
took this 	position 	in May 	1992.
Alternatively, 	the Association argues 	that, 	even if the
contractual 	language 	is 	interpreted as described above, 	the
District 	intentionally underestimated 	its 	interest 	revenue 	and
resulting 	general 	fund 	ending balance 	in 	order 	to 	avoid payment
of 	salaries 	in accordance with 	the Golden Hills 	salary schedule.
The Association asserts 	that 	the 	condition leading 	to
renegotiation of salaries did not, 	in fact, 	occur, 	as an
24

objective 	projection would have 	estimated 	the 	general 	fund 	ending
balance at 	or above 4 percent.3
Much of 	the 	hearing 	in this 	case was 	devoted 	to 	testimony
concerning 	the 	District's 	accounting 	and budget 	projection
methodologies, 	and the requirements 	of 	the State 	of 	California
and 	the 	Fresno 	County Office 	of 	Education with 	regard 	to 	the
District's maintenance 	of 	general 	fund reserves 	and balances.
Additionally, 	voluminous 	budget 	and accounting documents 	were
submitted by the parties 	as 	exhibits 	during 	the hearing. 	This
testimony and information was, 	at best, 	inconclusive to establish
that 	the 	District 	intentionally 	lowered 	its 	interest 	revenue
estimate 	in 	order 	to achieve 	a general 	fund 	ending balance
projection below 4 percent. 	Furthermore, 	the language of 	the
second 	condition refers 	to 	"any combination of 	events 	or
circumstances" 	which causes 	the projection 	to 	fall 	below
4 	percent. 	"Any circumstances" 	would seem to 	include
fluctuations 	in 	the District's 	projections 	caused by 	its
assessment 	of 	the many 	factors 	and variables 	which affect
revenues 	and expenditures.
The 	Association 	simply 	has 	not 	presented 	evidence 	sufficient
to 	conclude 	that 	the 	District 	intentionally underestimated 	the
3The Association does 	not 	indicate 	how this 	alleged 	conduct
constitutes 	a violation of 	EERA. 	If 	the District 	entered 	into
the agreement 	on the 	contractual 	language with the 	intent 	to
purposefully underestimate 	the 	general 	fund 	ending balance,
presumably bad 	faith bargaining would be alleged. 	However, 	the
alleged 	conduct 	could arguably 	constitute 	an 	isolated breach 	of
the 	contract 	which 	PERB 	is 	without 	authority to 	enforce pursuant
to EERA section 3541.5(b). 	I 	find it unnecessary to resolve 	this
question, 	based on the discussion above.
25

general 	fund ending balance 	to be below 4 percent, 	in order to
avoid paying 	salaries 	according 	to 	the Golden Hills 	salary
schedule. 	The Association's argument, 	therefore, 	is rejected.
Finally, 	I 	concur in the 	finding that 	the District did not
bargain in bad faith following 	its May 8, 	1992, 	notification of
the Association 	that 	the 	Golden Hills 	salary schedule would not
be implemented. 	At the June 3, 	1992, 	negotiating session, 	the
District's 	representative 	rejected 	the Association's 	salary
proposal. 	The proposal 	was 	subsequently presented 	to 	the
District Board of Trustees, 	and on June 11, 	1992, 	the District
informed 	the Association 	that 	the 	fiscal 	situation made 	it
imprudent 	to 	encumber any additional 	funds 	for 	salary 	increases.
A second negotiating session scheduled for June 	16, 	1992, 	did not
take place. 	The Association 	filed the 	instant 	unfair practice
charge on June 16, 	1992.
The 	duty 	to bargain 	in good 	faith 	implies 	an 	intent 	by 	the
parties 	to 	reach agreement. 	(Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51.) 	However, 	the requirement
to 	negotiate 	in good 	faith does 	not 	require yielding positions
fairly maintained. 	(Oakland Unified School District 	(1982) 	PERB
Decision No. 	2 75.) 	In this 	case, 	the abbreviated record of 	the
parties' 	negotiations between June 3 and June 16, 	1992, 	is
insufficient 	to 	conclude 	that 	the 	District 	engaged 	in bad 	faith
bargaining 	in violation of 	EERA.
26

CARLYLE, 	Member, 	dissenting: 	I dissent. 	I 	conclude that
the 	Sierra Joint 	Union High 	School 	District 	(District) 	violated
the 	Educational 	Employment 	Relations Act 	(EERA) 	section
3543.5 (a), 	(b) 	and 	(c)1 when it 	changed the salary schedule on a
memorandum of 	understanding 	(MOU) 	for 	1991-92 	arid 	thereafter
refused 	to 	negotiate 	in 	good 	faith 	about 	salary 	payments 	for May
through August, 	1992.
In 	1992, 	after voter approval, 	the 	geographic portion of 	a
high 	school 	district, 	which was 	coterminous 	with 	the 	boundaries
of 	the 	elementary district 	in which 	Sierra 	High 	School 	is
situated 	(Golden Hills 	Elementary School 	District), 	was 	unified
with 	the 	Golden Hills 	District. 	The 	new District 	is 	the 	Sierra
Unified 	School 	District. 	Although 	the 	high 	school 	district's
three 	other 	constituent 	elementary 	districts 	did not 	choose 	to
participate 	in unification, 	the 	high 	school 	district 	continued 	in
EERA	1EERA 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
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.
27

existence 	for the benefit 	of 	those 	students 	residing 	in 	the
remaining 	constituent 	elementary districts. 	The high 	school
district 	is 	governed by 	its 	own separate 	school 	board, 	operated
under a 	separate budget 	from the unified district, 	and had 	its
own staff. 	Students 	from the high school 	district 	comprised
roughly 	50 	percent 	of 	Sierra High School's 	total 	enrollment 	of
approximately 	880 	students. 	These 	students 	attended Sierra High
School 	by virtue 	of 	an 	interdistrict 	attendance 	agreement 	with
the new unified 	school 	district. 	This 	arrangement was
necessitated by the 	fact 	that 	as 	a 	result 	of 	the partial
unification, 	the high school 	district 	no 	longer had available 	a
comprehensive high school 	of 	its 	own. 	Its 	sole 	remaining school
facility is a small 	continuation school. 	Thus, 	Sierra Unified
School District, 	as of July 1, 	1992, 	became the employer of the
Sierra 	High School 	certificated 	staff.
A master 	contract was 	negotiated 	for 	the 	1989-90 	school
year. 	Thereafter, 	negotiations 	occurred annually on other 	issues
including 	compensation and benefits. 	Except 	as 	modified by
subsequent negotiations, 	the master agreement 	continued 	in
effect.
In the 	spring 	of 	1991 	reopener negotiations began 	for 	the
1991-92 	school 	year. 	The Sierra High School District Teachers
Association, 	CTA/NEA 	(Association) 	initially proposed a 	five
percent 	salary 	increase. 	The District 	proposed 	only 	step and
column increases 	on the 	1991-92 	salary schedule, 	but 	no base
salary increase. 	In August 	1991, 	the parties 	resumed
28

negotiations 	and 	in September 	1991, 	reached an agreement which
contained a 	salary 	increase and two 	contingencies. 	The 	first
provided 	that 	"with 	the 	success 	of 	the unification vote" 	the
District 	"will" 	adopt a higher salary schedule, 	effective May 31,
1992. 	This would give teachers a raise 	for four months 	(May-
August, 	1992) . 	The second contingency provided that 	the salary
provision would be 	renegotiated 	if 	the 	projected general 	fund
balance 	fell 	below four percent.2
2The pertinent 	section of 	the MOU states:
Non-Contingency:
Benefits:
The District will 	fund 	the 	increased 	cost 	of
the 	current benefits 	for the 	term of 	the
1991-92 	contract.
Schedule 	C:
(a) 	Given the 	circumstance 	of 	6th and 	7th
period Sports 	in the 	1991-92 	contract year,
certificated 	employees 	under 	full-time
contract 	with 	the District 	will 	be paid
coaching 	stipends 	from the 	current 	schedule,
but 	reduced to 50% 	of 	the values 	on the
schedule. 	(The 	contingency language below
would 	increase 	the 	stipend values.)
(b) 	Provisions 	for the 2.5% 	factor will
continue as 	in the 	current 	contract.
Contingency:
With 	the 	success 	of 	the unification election
on November 5, 	1991, 	the Sierra Joint Union
High School 	District 	will:
(a) 	Adopt 	the Golden Hills 	Elementary
District's 	Certificated 	Salary 	Schedule 	to be
effective with the payroll 	paid on May 31,
1992.
29

(b) 	Adopt 	the revised Appendix C, 	'Schedule
of 	Hourly 	Compensation and Stipends'
beginning with 	the 	payroll 	paid 	on
December 10, 	1991.
(Compensation through factors, 	in lieu of
stipends, 	will not be 	implemented in the
1991-92 	contract 	year.)
Should any 	combination 	of 	events 	or
circumstances 	cause 	the General 	Fund's
projected ending balance 	to 	fall 	below the
minimum 4% 	required by 	the 	State's 	'Criteria
and Standards', 	then the contingency
provision 	for 	salary will 	be 	renegotiated.
(Underlining 	in 	original.)
In November 1991, 	unification passed. 	In May 1992, 	the
District 	claimed 	the 	general 	fund 	ending balance 	fell 	below 	four
percent 	and refused to adopt 	the higher salary scheduled. 	One
negotiating 	session was 	held 	in which 	the Association proposed
that 	teachers 	receive a 	raise 	for only two 	of 	the 	four months.
The District 	rejected the proposal 	and refused to present 	a 	.
counter-proposal 	claiming, a financial 	emergency.
The 	issue 	in the 	case as 	framed by the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	administrative 	law judge 	(ALJ)
was 	whether 	the District 	unlawfully 	refused 	to adopt 	the 	higher
salary schedule, 	thereby altering 	the 	terms 	of 	the 	collective
bargaining agreement, 	and thereafter failed to negotiate 	in good
faith 	concerning 	the promised 	salary 	increase 	for 	the period 	of
May through August, 	1992.
The 	ALJ 	first 	concluded 	that 	based upon 	the 	testimony and
the 	record of 	the 	case, 	no evidence was presented demonstrating
an 	explicit 	discussion between 	the parties 	relative 	to 	the
meaning 	of 	the 	language 	concerning 	the 	contingencies. 	Therefore,
30

the ALJ 	reviewed the 	language 	in accordance with 	its 	facial 	or
plain meeting. 	(See 	e.g., 	The Regents 	of 	the University of
California 	(1989) 	PERB Decision No. 	771-H, 	pp. 	5-6.) 	The ALJ
concluded 	that 	the MOU 	read 	together with 	the 	bargaining 	history-
should be 	interpreted to mean 	that 	the 	two 	contingencies 	of 	the
agreement between the parties 	are 	separate. 	When unification
passed, 	the ALJ 	concluded that 	the District was 	obligated to
adopt 	the 	higher 	salary 	schedule and a new status 	quo was
established as 	to 	the 	contract.
Additionally, 	the ALJ 	found that 	the 	subsequent 	contingency
concerning 	the 	4 	percent 	projected general 	fund balance 	did not
detract 	from this 	interpretation.
The 	ALJ 	then 	considered 	the bargaining 	history 	of 	the
parties 	which he 	found supported his 	interpretation of 	the MOU.
Testimony 	indicated 	that 	both parties 	believe 	that 	they 	could
achieve 	some 	benefit 	from an agreement 	which adopted 	the 	Golden
Hills 	salary 	schedule upon a 	favorable unification vote.
Further, 	in the 	testimony concerning this 	issue 	the 4 	percent
contingency was 	not 	discussed 	in any 	significant 	way.
Based upon the above, 	the ALJ concluded that 	the plain
language 	in the MOU, 	taken with a review of 	the 	limited
bargaining history, 	required the District 	to adopt 	the Golden
Hills 	salary schedule upon the 	favorable unification vote, 	thus
creating a new status 	quo. 	The ALJ 	then 	found that 	when 	the
District 	refused 	to adopt 	the 	new salary 	schedule 	it 	unilaterally
changed a negotiable 	term and 	condition of 	employment.
31

The ALJ noted 	that 	adoption of 	the Golden Hills 	salary
schedule 	did not mean 	that 	the District 	was 	obligated 	to pay 	the
salary increases 	immediately, 	only that as 	a result 	of 	the
unification vote 	the 	Golden Hills 	salary 	schedule became 	the
status 	quo 	from which negotiations 	should have begun. 	On
May 8, 	1992, 	when the District 	informed the Association that 	the
salary schedule would not be 	adopted, 	it 	unilaterally changed 	the
terms 	of a collective bargaining agreement, 	a per se violation of
its 	obligation to negotiate 	in good 	faith. 	(Grant 	Joint Union
High School District 	(1982) 	PERB Decision No. 	196.)
The ALJ then determined 	that 	the District's 	conduct 	in
officially notifying 	the Association 	two 	days 	before 	the 	cut 	off
date 	for changes 	in pay warrants 	(May 8, 	1992) 	did not evidence a
good 	faith attempt by the District 	to 	reach agreement 	on the
issue. 	While 	the Association proposed that 	teachers 	receive 	only
two of 	the 	four payments 	originally contemplated, 	the District's
one 	line 	rejection and unyielding 	response 	suggests 	that 	it
entered 	the 	negotiations 	with 	a 	fixed and perceived position 	that
made unrealistic 	any attempt 	at 	good 	faith bargaining.
Further, 	the ALJ 	found that prior PERB 	case 	law has 	found
that 	a 	fiscal 	emergency does 	not 	relieve 	an 	employer 	from 	its
obligations 	from bargaining under EERA but 	at most 	may 	form 	the
basis 	for a 	negotiating 	stance which must 	be presented at 	the
table 	in a give 	and 	take 	atmosphere 	aimed at 	reaching an
agreement. 	(See 	e.g., 	San Mateo County Community College
32

District 	(1979) 	PERB Decision No. 	94, 	p. 	13; 	Compton Unified
School District 	(1989) 	PERB Decision No. 	784, 	p. 	5.)
In addition, 	the ALJ determined that 	it 	is unnecessary to
address 	the general 	fund contingency, 	for even if 	the ending
balance 	fell 	below 	four percent 	the District was 	required under
the 	contract 	to negotiate 	in good 	faith 	from the 	existing 	status
quo 	established by the September 	1991 	agreement, 	which 	it 	failed
to do.
As 	stated correctly by the other two panel members, 	this 	is
a case of 	contractual 	interpretation. 	However, 	stating the 	issue
correctly and arriving at 	a 	correct 	result 	are 	not 	one 	in 	the
same. 	I 	conclude 	that 	the ALJ was 	correct 	on all 	findings 	of
fact, 	conclusions 	of 	law, 	and issues decided. 	A review of 	the
record 	substantiates 	the ALJ's 	view that 	little 	evidence 	exists
as 	to what 	the parties were 	thinking when 	it 	drafted 	the
contingencies 	that 	appeared 	in 	the 	agreement. 	Based upon 	the
lack of 	testimony 	from the parties 	to 	this 	issue, 	the ALJ was
proper 	in looking 	into the plain meaning of 	the 	contract. 	Where
the 	language of 	the agreement 	is 	clear and not absurd, 	it must be
followed. 	(Civil Code sec. 	1638; 	1 Witkin, 	Summary of Cal. 	Law
(9th ed. 	1987) 	sec. 	681, 	p. 	615.) 	Based upon the reading of the
contract, 	I 	find that 	the 	only condition on the duty to pay the
salary 	increase 	is 	contained 	in the 	first paragraph where 	it
states:
With 	the 	success 	of 	the unification election
on November 5. 	1991. 	the Sierra Joint Union
High School District will:
33

(a) 	Adopt 	the Golden Hills 	Elementary-
District's 	Certificated 	Salary 	Schedule 	to 	be
effective 	with 	the 	payroll 	paid 	on May 	31,
1992.
(b) 	Adopt 	the 	revised Appendix 	C, 	'Schedule
of 	Hourly 	Compensation 	and 	Stipends'
beginning 	with 	the 	payroll 	paid 	on
December 10, 	1991. 	[Emphasis added]
The 	language 	claimed by 	the 	District 	to 	excuse 	it 	from 	the
duty 	imposed 	in 	this 	first 	paragraph 	of 	the 	agreement 	is 	found 	in
the 	second paragraph, 	and reads 	as 	follows:
Should 	any 	combination 	of 	events 	or
circumstances 	cause 	the 	General 	Fund's
projected 	ending 	balance 	to 	fall 	below 	the
minimum 	4% 	required 	by 	the 	State's 	'Criteria
and 	Standards', 	then 	the 	contingency
provision 	for 	salary 	will 	be 	renegotiated.
Based upon 	the 	language 	cited above, 	I 	concur with 	the ALJ
in 	finding 	that:
(1) 	Passage 	of 	the unification measure 	on November 	5, 	1991
is 	a 	condition precedent 	to 	the 	District 	to 	pay 	two 	separate
salary 	increases, 	one 	effective December 	16, 	1991 	regarding
Schedule 	C 	and 	another 	commencing May 	31, 	1992 	regarding 	the 	Base
Salary schedule. 	Thus, 	a new status 	quo was 	established 	for
1991-92 	salaries, 	including 	the May 31, 	1992 	increase 	to 	the Base
Salary 	and 	Schedule.
(2) 	If 	the projected ending balance 	of 	the 	general 	fund
drops 	below four percent, 	the parties 	will 	renegotiate 	regarding
the 	obligation 	as 	established 	in paragraph 	one.
The 	obligation 	to 	pay 	is 	affirmatively 	stated 	and 	would 	only
become 	effective 	if 	the voter approves 	the 	unification measure.
Further, 	under 	the 	interpretation 	afforded 	the 	MOU by 	the 	other
34

two panel members, 	there would have been no logical 	reason 	for
the Association, 	its members and supporters, 	to vote for
unification. 	Obviously, 	the understanding was 	struck to garner
votes 	to pass 	this measure. 	An 	interpretation which simply
ignores 	this 	crucial 	salient 	fact 	would appear 	to be 	clearly
erroneous.
The 	language 	for the 	agreement 	was 	structured by District
officials. 	As 	the Association points 	out, 	the District 	could
have 	placed 	the 	condition 	regarding 	the District's 	general 	fund
ending balance 	in 	the 	introductory 	clause which would, 	in effect,
obligate 	the District 	to pay only 	if 	both 	conditions 	had
occurred.
----
The District 	unilaterally 	changed 	the 	status 	quo and 	failed
to negotiate 	in good 	faith. 	The District's 	actions violated 	the
applicable 	law of 	EERA and 	the ALJ's 	decision 	should be 	affirmed.
35