Redwoods Community College District (PERB 1141E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	SF-CE-1719
PERB Decision No. 	1141
February 28, 	1996
Appearances: 	Arnie R. 	Braafladt, 	Attorney, 	for California School
Employees Association; 	School 	and College 	Legal 	Services by
Patrick D. 	Sisneros, 	Attorney, 	for Redwoods Community College
District.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the
Redwoods 	Community College District 	(District) 	to a 	PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto). 	The ALJ 	concluded that 	the District violated section
3543.5(b), 	(c) 	and 	(e) 	of the Educational Employment Relations
Act 	(EERA)1 when, 	prior to completion of impasse, 	it unilaterally
1BERA	ERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	EERA section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
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changed 	the 	hours 	of 	security officers.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	District's 	exceptions 	and 	the 	response 	thereto
filed by 	the California School 	Employees Association 	(CSEA). 	The
Board 	finds 	the ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law to
be 	free 	of 	prejudicial 	error and adopts 	them as 	the 	decision of
the 	Board 	itself 	consistent 	with 	the 	following 	discussion.
DISCUSSION
An exclusive 	representative 	is 	free 	to negotiate 	a waiver
of 	its 	right 	to bargain over 	certain mandatory subjects 	of
bargaining 	for a 	specified 	contractual 	period. 	The 	waiver must
be 	clear and unmistakable 	and 	cover all 	aspects 	of 	the particular
matter 	in question. 	(Los Angeles 	Community College District
(1982) 	PERB Decision No. 	252; 	Amador Valley Joint Union High
School District 	(1978) 	PERB Decision No. 	74.) 	Such a waiver
may authorize 	the 	employer 	to make 	unilateral 	changes 	in 	that
mandatory subject. 	Here, 	there 	is no 	clear and unmistakable
waiver of 	CSEA's 	right 	to negotiate 	following 	completion of 	the
mediation process provided 	for in Article 4 	of 	the parties'
collective bargaining agreement. 	Therefore, 	the District's
contention 	that 	it 	was 	free 	to unilaterally 	implement 	its 	final
proposal 	upon 	completion of 	the 	contract mediation process 	is
without merit.
good 	faith with 	an 	exclusive 	representative.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth in Article 	9
(commencing with Section 3548).
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The 	Board notes 	that 	parties 	to a 	collective 	bargaining
agreement 	are 	not 	prohibited by 	this 	decision 	from negotiating
alternative methods 	to attempt 	to resolve disputes. 	However,
if 	the agreed upon dispute 	resolution process 	is unsuccessful,
the parties 	are prohibited 	from making a unilateral 	change 	in a
negotiable 	subject 	(Moreno Valley Unified School Dist, 	v. 	Public
Employment Relations Bd. 	(1983) 	142 Cal.App.3d 191 	[191 Cal.Rptr.
60]) 	or engaging 	in strike activities 	(Westminster School
District 	(1982) 	PERB Decision No. 	277; 	Fresno Unified School
District 	(1982) 	PERB Decision No. 	208) 	until 	they have completed
the 	statutory impasse procedure 	set 	out 	in EERA.
ORDER
Based on 	the 	findings 	of 	fact 	and conclusions 	of 	law and the
entire 	record in this matter, 	the Board finds 	that 	the Redwoods
Community 	College District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(b), 	(c) 	and 	(e). 	The District violated EERA section
3543.5(c) 	by unilaterally 	changing 	its 	past 	practice 	of 	allowing
security officers 	to work 	fixed 	shifts. 	Because 	this 	action had
the additional 	effect 	of 	interfering with 	the 	right 	of 	the
California 	School 	Employees Association 	(CSEA) 	to 	represent 	its
members, 	the unilateral 	change also was 	a violation of 	section
3543.5(b). 	The District also violated section 3543.5(e) 	by
refusing 	to participate 	in good 	faith 	in 	the 	impasse procedure
set 	out 	in EERA.
The 	allegation 	that 	the District's 	conduct violated 	section
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3543.5(a) 	and all 	other allegations 	are 	hereby DISMISSED.
Pursuant to EERA section 3541.5(c), 	it is hereby ORDERED
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing 	the past practice 	of
allowing 	security 	officers 	to 	work 	fixed 	shifts 	by 	changing 	their
hours 	to 	rotating shifts.
2. 	Interfering with the 	right 	of 	CSEA to 	represent
its members.
3. 	Refusing 	to participate 	in good 	faith 	in the
impasse procedure 	set 	out 	in the 	EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF EERA:
1. 	Within thirty-five 	(35) 	days 	following service of
the 	final 	decision in this matter, 	reinstate 	for all 	security
officers 	the 	fixed 	shifts which were 	in effect prior 	to July 	10,
1994.
2. 	Within thirty-five 	(35) 	days 	following 	the date
this Decision is no 	longer subject 	to 	reconsideration, 	post 	at
all 	work 	locations 	where 	notices 	to 	employees are 	customarily
placed, 	copies 	of 	the Notice attached hereto as an Appendix.
The 	Notice must 	be 	signed by an authorized agent 	of 	the 	District
indicating 	that 	the District will 	comply with the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be 	taken to
insure that 	the Notice is not 	reduced in size, 	defaced, 	altered
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or 	covered by any 	other material.
3. 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	San Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with 	the 	director's 	instructions.
Chairman 	Caffrey 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence 	and dissent 	begins 	on page 	6.
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s

GARCIA, 	Member, 	concurring and dissenting: 	The majority
affirms 	the administrative 	law judge's 	(ALJ) 	conclusion that 	the
Redwoods 	Community College 	District 	(District) 	violated 	section
3543.5(b), 	(c) 	and 	(e) 	of the Educational Employment Relations
Act 	(EERA) 	because 	it unilaterally changed its past practice 	of
allowing 	security officers 	to work 	fixed 	shifts. 	The ALJ 	found
that 	the District had not violated EERA section 3543.5(a) 	and
dismissed that 	allegation and all 	other allegations. 	I 	concur
with the dismissal 	of 	the 	(a) 	violation, 	but 	I dissent 	from the
rest 	of 	the majority opinion and 	find 	that 	no violation was
committed by the District, 	for the 	reasons below.
The 	second 	full 	paragraph on page 	2 	of 	the majority opinion
is an afterthought 	to 	this 	dissent. 	It 	is 	a conclusory rationale
to 	escape 	the 	statutory prohibition against 	interfering with 	the
parties' 	alternative dispute resolution agreement.
BACKGROUND
Parties' 	Collective Bargaining Agreement
The parties 	in this 	case agreed that 	certain types 	of
dispute 	would be 	resolved by a 	separate procedure 	from the
impasse 	resolution procedure 	contained 	in EERA. 	Article 	IV of
the 	1991-93 	agreement between the parties provides 	in part:
Work week: 	The work week 	for employees 	shall
consist of 	five consecutive days, 	eight hours
of work 	(excluding 	lunch periods) 	per day for
all 	employees. 	Each position shall be
assigned a 	fixed, 	regular and ascertainable
minimum number of 	daily hours 	and annual 	days
of 	employment. 	This article 	shall 	not
restrict 	the District's 	right 	to 	extend 	the
regular work day 	or work week 	on an 	overtime
basis when, 	in the opinion of the District,
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such 	is 	necessary to 	carry on the business 	of
the District. 	The District 	retains 	the 	right
to 	employ and assign employees 	to 	less 	than
full 	time work assignments.
4.1.1 	The District 	has 	the 	right 	to 	seek
voluntary adjustments 	of 	employees'
work schedules 	(the hours 	in each
day and the days 	of 	the week, 	not
the total number of hours),
directly with 	the 	employees 	on a
non-coercive basis, 	without 	the
intervention of 	CSEA. 	CSEA will
accept 	such adjustments,
voluntarily agreed upon by 	the
employees 	involved, 	without
protest.
4.1.2 	In 	the 	event 	voluntary agreement 	on
proposed adjustments 	cannot 	be
achieved between 	the 	District 	and
the affected employees, 	the 	issue
shall 	be 	subject 	to 	negotiations
between the District and CSEA. 	If
negotiations 	on 	the 	issue are not
successful, 	assistance will be
requested 	from Humboldt 	Mediation
Services, 	rather than other
resource agencies available. 	Both
the 	District 	and CSEA agree 	that
such disputes 	shall 	not be
submitted 	to a 	fact-finding 	panel
under the provisions 	of 	the
Educational 	Employment 	Relations
Act. 	[Emphasis added.]
Factual 	Background
The District proposed to 	change 	the hours 	of 	security
officers. 	When the 	California School 	Employees Association
(CSEA) 	objected, 	in early 1994 	the District 	invoked the
alternative 	impasse 	resolution procedure 	quoted above. 	Humboldt
Mediation Services 	attempted 	to 	resolve 	the 	dispute 	during a
mediation session on March 23, 	1994, 	but was not successful.
CSEA was 	willing 	to 	continue mediation but 	the District 	declined
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and, 	relying on the contractual procedure, 	on June 9 	it 	informed
CSEA that 	it 	would make 	the 	change 	regarding 	the 	hours 	effective
July 10, 	1994. 	On June 20, 	1994, 	CSEA filed a request that PERB
declare 	impasse 	and appoint 	a mediator.
On June 22, 	1994, 	CSEA filed an unfair practice 	charge with
the 	Public 	Employment Relations 	Board 	(PERB) 	alleging 	that 	the
District 	had unlawfully 	implemented a unilateral 	change 	and 	its
failure 	to participate 	in 	the 	statutory 	impasse procedure
constituted a violation of EERA section 3543.5(e), 	(a) 	and 	(b).
On July 11, 	1994, 	PERB made a finding that 	the parties were
at 	impasse 	and appointed a mediator pursuant 	to 	the 	EERA 	impasse
resolution procedure. 	Meanwhile, 	the District 	implemented the
change 	in hours 	as 	announced on July 	10. 	The 	PERB-appointed
mediator 	conducted a 	single mediation 	session on September 	13,
1994. 	The mediator was unable 	to resolve 	the dispute over hours
but 	did not 	certify 	the matter 	to 	fact-finding and no 	fact-
finding panel 	was 	appointed. 	The ALJ 	found no 	evidence 	that 	CSEA
attempted 	to move 	the 	dispute 	to 	fact-finding despite 	the
mediator's 	failure 	to 	certify 	the procedure.
Issue
The main issue in this 	case, 	as 	framed by the ALJ, 	is
whether a public 	school 	employer and a 	labor union 	can waive by
contract 	the 	impasse 	resolution procedure 	set 	out 	in EERA. 	The
ALJ 	found 	that 	such a waiver 	is 	invalid and unenforceable. 	My
interpretation of 	the law and the parties' 	contract 	results 	in
the 	opposite 	conclusion.
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Statutory 	Provisions 	Allowing Alternate 	Procedures
The 	right 	to use an alternative 	dispute 	resolution 	is
expressly preserved in EERA section 3548, 	which states, 	in
pertinent part:
Nothing 	in 	this 	section 	shall 	be 	construed 	to
prevent 	the parties 	from mutually agreeing
upon 	their own mediation procedure and 	in 	the
event of 	such agreement, 	the board shall not
appoint 	its own mediator, 	unless 	failure 	to
do 	so would be 	inconsistent 	with 	the policies
of 	this 	chapter. 	[Emphasis added.]
Section 3548.1, 	which provides 	further detail 	on the
statutory impasse 	resolution procedure, 	is phrased in permissive
rather than mandatory language. 	That 	section provides, 	in
pertinent part, 	that:
(a) 	If 	the mediator is unable to effect
settlement 	of 	the 	controversy within 	15 	days
after his 	appointment 	and 	the mediator
declares 	that 	factfinding 	is appropriate 	to
the 	resolution of 	the 	impasse, 	either party
may, 	by written notification to the 	other,
request 	that 	their differences 	be 	submitted
to a 	factfinding panel. 	Within 	five days
after receipt 	of 	the written request, 	each
party shall 	select 	a person to 	serve as 	its
member of 	the 	factfinding panel. 	The board
shall, 	within five days after such selection,
select 	a 	chairperson of 	the 	factfinding
panel. 	The 	chairperson designated by the
board shall 	not, 	without 	the 	consent 	of both
parties, 	be 	the same person who served as
,
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mediator pursuant to Section 3548. [1]
(Emphasis 	added.)
In view of 	the 	fact 	that 	section 3548 	expressly reserves 	to
parties 	the 	right 	to resolve 	disputes privately, 	my reading 	of
these 	two 	statutes 	is 	that 	the 	Legislature did not mandate
parties 	to use 	the 	entire 	statutory 	impasse procedure 	in all
cases 	and 	the 	statute prohibits 	PERB 	from appointing a mediator.2
Although 	the majority opinion 	concedes 	that 	parties 	"are 	not
prohibited 	. 	. 	. 	from negotiating alternative methods to attempt
to 	resolve disputes," 	the majority and 	the ALJ 	treat 	the
statutory 	impasse procedure as mandatory, 	ignoring 	the 	statutory
prohibition against 	appointing a mediator as well 	as 	the parties'
clear agreement 	not 	to 	employ 	the 	PERB 	fact-finding procedure.
This 	interpretation 	erroneously 	compels 	the parties 	to use 	a
confusing hybrid 	of 	the 	statutory procedure 	and 	their 	own
1 Section 3548.1 	is written 	in permissive and mandatory
language: 	i.e., 	in cases where 	the parties have not agreed to an
alternate procedure, 	either party may request 	to submit 	their
- - -	dispute 	to a 	factfinding panel 	pursuant 	to section 3548.1, 	and
once 	that 	occurs 	the 	remainder of 	the process 	is mandatory 	(since
the 	language 	of 	the 	statute 	changes 	to mandatory language after
that point). 	In spite of 	the confusion caused by the language,
the 	section does 	not 	impact my decision 	since 	no 	request 	to
submit 	to 	fact-finding 	occurred.
2Parties may agree 	to 	substitute portions 	of 	the 	statutory
impasse 	resolution procedures 	even after a party declares
impasse: 	see, 	e.g., 	PERB Regulation 32791 	(PERB regulations are
- -codified at 	California Code of Regulations, 	title 	8, 	section
31001 et 	seq.), 	which provides 	that the parties have the right
to:
. 	. 	. 	mutually agree upon their own mediation
procedures, 	including the right 	to arrange
for a mediator of 	their choice, 	in lieu of
the mediation procedure 	set 	forth 	in 	these
regulations.
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mediation procedure; 	furthermore, 	it 	conflicts with the state
policy 	that 	encourages private 	resolution 	of 	disputes.
As 	their rationale 	for this 	conclusion, 	CSEA and the ALJ
rely on San Diego Teachers Association v. 	Superior Court 	(1979)-
24 	Cal.3d 1 	[154 Cal.Rptr. 	893] 	(San Diego) 	and several 	PERB
cases3 as 	prohibiting parties 	from waiving 	the 	statutory 	impasse
procedure. 	The ALJ refers 	to the San Diego case, 	which states
that 	the purpose 	of 	the 	EERA impasse procedure 	is 	to head off
strikes, 	which is a public benefit. 	Therefore, 	according to the
ALJ, 	since 	"[t]he 	impasse procedure was 	not put 	into 	the 	law as a
right 	for the primary benefit 	of 	the parties. 	. . . 	it may not be
waived 	through an agreement 	of 	the parties."
I 	agree with 	the ALJ 	that 	the 	San Diego 	case 	and 	the 	other
cases 	cited by 	CSEA support 	mandatory 	fact-finding when a 	strike
is threatened. 	However, 	when no strike is threatened, 	the
parties 	retain 	the 	right 	to 	employ 	their alternative procedure.
Refusing 	to 	enforce 	that 	right 	absent 	facts 	that 	a 	strike 	is
imminent 	renders 	EERA section 3548 	meaningless. 	According 	to 	the
majority interpretation, 	section 3548 permits, 	or even
encourages, 	a useless act: 	although parties may make private
agreements, 	they are destined to be 	found 	"invalid and
unenforceable" 	when one party decides 	it would have been better
off 	using 	the 	EERA procedure at 	PERB.
3The 	cited PERB 	cases 	include Modesto City Schools 	(1983)
PERB Decision No. 	291 	(Modesto), 	Charter Oak Unified School
District 	(1991) 	PERB Decision No. 	873 	(Charter Oak), 	and Temple
City Unified School District 	(1990) 	PERB Decision No. 	841 	(Temple
City).
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I 	also note 	that 	several 	of 	the 	cases 	CSEA cites 	in 	support
of 	its 	no-waiver argument 	are 	factually 	inapposite 	to 	the 	case at
bar in two significant ways. 	First, 	as the ALJ noted, 	this 	is a
case of 	first 	impression; 	none of 	the 	cited cases 	involved
interpretation 	of 	contract 	language 	specifically waiving 	the
statutory factfinding process. 	Second, 	the 	cited cases 	tested
the 	legality of 	a party's 	conduct where 	the parties 	had begun to
use 	the 	statutory procedure but 	one party elected 	to deviate 	from
the procedure 	late 	in the process 	(e.g., 	after fact-finding had
occurred, 	in Modesto and Charter Oak: 	and after exhaustion of 	the
statutory impasse procedure, 	in Temple City). 	The issue in those
cases 	was 	whether 	that 	deviation 	from the process 	constituted an
unfair labor practice, 	not whether the parties 	could 	(and did)
validly waive the statutory process. 	In this 	case, 	by contrast,
the District 	refused 	to 	take part 	in 	the 	statutory procedure 	at
all 	in reliance 	on 	its 	contractual 	agreement.
Furthermore, 	it 	should be noted that 	CSEA did not 	object 	to
sending 	the 	dispute 	to Humboldt Mediation Services 	in accordance
with 	the 	contractual 	procedure 	and only attempted 	to 	invoke 	the
statutory procedure 	later. 	This 	shows 	that 	CSEA waived the
statutory procedure, 	and PERB 	is prohibited 	from mandating 	its
use.
In conclusion, 	I 	find no precedent 	on point barring parties
from waiving 	the 	EERA impasse 	resolution procedure 	in 	the 	absence
of 	circumstances 	suggesting a 	strike 	is 	imminent. 	Reading EERA
section 	3548 	and 	3548.1 	together 	confirms 	that 	EERA encourages
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alternative 	dispute 	resolution by prior 	agreement 	that 	cannot 	be
overridden by PERB 	except under the 	threat 	of 	a strike. 	That 	is
the 	current 	state 	of 	law on this 	subject.
Comparing 	the 	conclusory rationale 	of 	the majority 	in 	this
case to the unanimous, 	and legally well 	founded, 	opinion in
Barstow Unified School District 	(1996) 	PERB Decision No. 	1138
(Barstow USD)4 demonstrates 	that 	their concept of waiver is
arbitrarily 	employed 	to 	ignore 	the 	clearly 	stated 	intent 	of 	the
parties 	here and the parties' 	statutory right 	to bypass
factfinding. 	The parties 	in this 	case 	expressly waived 	fact-
finding 	to arrive 	at 	a decision point 	(impasse) 	early 	in their
dispute. 	Once 	Humboldt Mediation Services was unsuccessful 	in
ending the dispute, 	the 	situation was 	the equivalent 	of 	impasse
and the District was 	free 	to 	implement 	the 	change. 	The
District's 	action was 	consistent with its 	last, 	best 	and 	final
offer and 	therefore 	not 	an unfair 	labor practice.
4In Barstow USD, 	the Board held that 	the parties 	had validly
waived by 	contract 	the union's 	right 	to negotiate 	over a
particular 	topic 	(the District's 	decision 	to 	contract 	out
transportation services). 	The Board, 	using sound legal analysis,
held that 	the 	language of 	the 	contract was 	"clear and explicit"
and 	constituted a 	"clear and unmistakable waiver" 	waiver 	of 	the
union's 	right 	to negotiate 	that 	topic.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1719,
California School 	Employees Association v. 	Redwoods 	Community
College District, 	in which all parties had the right 	to
participate, 	it has been found that 	the Redwoods 	Community
College District 	(District) 	violated 	the 	Educational 	Employment
Relations Act 	(Act), 	Government Code section 3543.5(c), 	(b) 	and
(e). 	The District violated EERA when, 	prior to completion of 	the
statutory 	impasse procedure, 	it unilaterally changed the hours 	of
security officers. 	Because 	this 	action had the additional 	effect
of 	interfering with the 	right 	of 	the 	California School 	Employees
Association 	(CSEA) 	to represent 	its members, 	the unilateral
change also was a violation of 	section 3543.5(b). 	The District
also violated EERA by refusing 	to participate 	in good 	faith 	in
the 	impasse procedure set 	out 	in EERA.
As a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing 	the past 	practice 	of
allowing 	security 	officers 	to work 	fixed 	shifts 	by 	changing
their hours 	to 	rotating 	shifts.
2. 	Interfering with 	the 	right 	of 	CSEA to 	represent
its members.
3. 	Refusing 	to participate 	in good faith 	in 	the
impasse procedure 	set 	out 	in EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
Within thirty-five 	(35) 	days 	following service of
the 	final 	decision in this matter, 	reinstate 	for all 	security
officers 	the 	fixed shifts 	which were 	in effect prior to July 	10,
1994.
Dated: 	REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST NOT BE
REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1719
PROPOSED 	DECISION
(4/19/95)
Appearances: 	David R. 	Young, 	Labor Relations Representative, 	and
Arnie R. 	Braafladt, 	Attorney, 	for the California School 	Employees
Association; 	Patrick D. 	Sisneros, 	Associate General Counsel,
School 	and College 	Legal 	Services, 	for the Redwoods 	Community
College District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case presents 	the novel 	question of whether a public
school 	employer and a 	labor union 	can waive 	by 	contract 	the
impasse 	resolution procedure 	set 	out 	in 	the 	Educational
Employment Relations Act 	(EERA). 	In 1991, 	these parties agreed
to 	a 	contractual 	impasse 	resolution procedure 	different 	from that
set 	out 	in 	the 	EERA. 	Three years 	later they fell 	into a dispute
about 	its 	application. 	The present 	action soon 	followed.
The 	dispute 	arose when 	the 	employer proposed 	to 	change 	the
hours 	of 	security officers. 	When the union objected, 	the
employer 	invoked 	the 	alternative 	procedure. 	After exhausting 	the
alternative procedure 	the 	employer announced 	that 	it 	would go
forward with the 	change 	in hours. 	Dissatisfied with 	this 	result,
the union 	invoked the 	statutory procedure. 	The 	employer, 	relying
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
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)
-----------~

on the 	earlier agreement, 	went 	ahead with the 	change anyway. 	The
statutory procedure was 	never 	completed. 	The union now contends
that 	by 	these 	actions 	the 	employer 	failed 	to participate 	in 	the
impasse 	procedure 	in good 	faith.
The 	California 	School 	Employees Association 	(CSEA or Union)
commenced this action on June 22, 	1994, 	by filing an unfair
practice 	charge 	against 	the 	Redwoods 	Community College 	District
(District). 	The general 	counsel 	of 	the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	issued a 	complaint 	against 	the
District on November 4, 	1994.
The 	complaint 	alleges 	that 	the 	District 	and 	the 	Union
participated in a mediation session on March 23, 	1994, 	regarding
the 	District's 	proposal 	to 	implement 	a 	change 	in work shifts 	for
security 	officers. 	The 	complaint 	alleges 	that 	following 	the
mediation 	session 	the District 	refused 	to participate 	in
additional mediation sessions. 	This was 	despite 	the Union's
willingness 	to 	do 	so and despite 	the mediator's 	failure 	to
certify 	that 	further attempts 	at mediation would be 	futile. 	The
complaint alleges 	that on or about July 10, 	1993, 	the District
unilaterally 	implemented 	its 	proposal 	to 	assign 	security 	officers
to 	rotating 	shifts 	rather 	than 	fixed shifts. 	The 	complaint
alleges 	that 	by these acts 	the District 	failed 	to participate 	in
the 	impasse procedure 	in 	good 	faith 	in violation 	of 	EERA section
3543.5(e), (a) and (b).
1 Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	The 	EERA is 	codified at Government 	Code
section 3540 	et 	seq. 	In relevant part, 	section 3543.5 provides
22

The District 	answered the 	complaint 	on November 28, 	1994,
denying generally the operative 	allegations 	against 	it. 	A
hearing was held on January 31, 	1995, 	at 	the college 	campus 	in
Eureka. 	With the 	filing of briefs, 	the matter was 	submitted 	for
decision on April 	5, 	1995.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under 	the 	EERA.
Continuously since 	19 77 and at all 	times 	relevant here, 	the
Union has 	been 	the 	exclusive 	representative 	of 	a 	comprehensive
unit 	of 	the District's 	classified employees. 	Included within
the unit 	are 	the District's 	four 	full-time 	security officers.
Throughout 	the 	relevant 	period, 	the parties 	were 	negotiating 	for
a successor to 	the agreement which expired on December 31, 	1993.
They did not 	reach a 	new agreement 	until 	just 	before 	the 	hearing
in January of 	1995.
as follows:
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.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
33

Prior to 	1987, 	the District's 	security officers worked
rotating 	shifts 	which means 	that 	each 	officer 	sometimes 	worked
days, 	sometimes evenings and sometimes nights. 	In 1987, 	the
shift 	assignments became 	fixed. 	From that 	time until 	the 	change
at 	issue, 	one 	security officer was 	permanently assigned 	to
work 	from 	7:00 	a.m. 	to 	3:30 	p.m., 	one was 	assigned 	from 3:00 	p.m.
to 	11:30 	p.m. 	and one 	from 11:00 p.m. 	to 	7:30 	a.m. 	The 	fourth
officer, 	the 	relief 	officer, 	always worked rotating shifts 	to
cover the days 	off 	of 	the 	three 	officers 	on 	fixed shifts.
Not 	long 	after Rich Rohweder became 	District 	director 	of
public services/safety, 	during or about 	199 0, 	he suggested that
the 	security officers 	return 	to 	rotating 	shifts. 	The 	officers
disliked 	this 	plan and resisted 	the 	change. 	The proposal
remained 	under 	discussion 	in 	the 	security 	department 	until 	June
of 	1993 	when District 	representatives 	became more 	insistent upon
the 	change. 	At 	that 	time, 	the 	security officers 	sought 	the
assistance 	of 	CSEA to block the 	change. 	There 	followed a 	series
of 	discussions 	between CSEA and District 	representatives 	over 	the
proposed 	change. 	These 	discussions 	were 	held at 	informal
"problem 	solving" 	meetings 	which 	take 	place between 	CSEA and
District 	representatives 	every two 	to 	three weeks.
Although no agreement had been reached, 	Mr. 	Rohweder on
August 	10, 	1993, 	sent a memo to the public 	safety officers
announcing his 	intention 	to 	institute 	rotating 	shifts 	on 	the
first 	Thursday 	in November. 	The memo described the 	change 	as
necessary 	to 	ensure 	that 	all 	officers 	become knowledgeable 	about
4

security problems 	on all 	shifts. 	The memo predicted 	that
rotating 	shifts 	would result 	in 	safety 	officers 	becoming more
diversified and better experienced 	"to 	the 	overall 	benefit 	of 	the
entire campus."
In response to Mr. 	Rohweder's memo of August 	10, 	1993, 	CSEA
requested 	formal 	negotiations 	on 	the proposed 	change 	in hours.
One 	formal bargaining session was held on September 30, 	1993, 	but
the matter was not 	resolved. 	Nevertheless, 	the parties 	continued
to 	discuss 	the 	subject 	at 	their 	informal 	problem solving 	sessions
and 	the District 	delayed 	implementation 	of 	the 	change 	past 	the
November date which was 	set 	forth 	in Mr. 	Rohweder's memo.
The 	contract provision on hours 	states 	that 	employees 	in the
bargaining unit 	shall 	have 	"a 	fixed, 	regular and ascertainable
minimum number of 	daily hours." 	The 	contract 	provides 	further
that 	the 	District may 	"seek voluntary adjustments 	of 	employees'
work schedules" 	which is 	defined to mean 	"the hours 	in each day
and the days 	of 	the week, 	not 	the total 	number of hours." 	If
there 	is 	no voluntary agreement 	between 	employee 	and 	employer
about 	a 	change 	in hours, 	the 	contract provides 	for negotiations
between CSEA and 	the District. 	There 	follows 	the 	alternative
procedure 	that 	is 	at 	the 	center of 	this 	dispute.2
2Article 	IV of 	the 	1991-93 	agreement between 	the parties
provides 	in relevant part 	as 	follows:
4.1 	Work week: 	The 	work week 	for 	employees 	shall
consist 	of 	five 	consecutive days, 	eight hours
of 	work 	(excluding 	lunch periods) 	per day 	for
all 	employees. 	Each position shall be
assigned a 	fixed, 	regular and ascertainable
minimum number 	of 	daily hours 	and annual 	days
55

Under the alternative procedure, 	the parties agree 	that 	if
negotiations 	about 	hours are not 	successful, 	they will 	invite a
private, 	community-based organization, 	Humboldt Mediation
Services, 	into the dispute. 	If Humboldt Mediation fails, 	the
procedure provides 	that 	the dispute 	"shall 	not 	be 	submitted 	to a
fact-finding panel 	under 	the provisions 	of 	the 	Educational
Employment Relations Act."
of 	employment. 	This article shall not
restrict 	the District's 	right 	to 	extend 	the
regular work day 	or work week 	on an 	overtime
basis when, 	in the opinion of 	the District,
such 	is 	necessary to 	carry on 	the business 	of
the District. 	The District 	retains 	the 	right
to 	employ and assign employees 	to 	less 	than
full 	time work assignments.
4.1.1 	The 	District 	has 	the 	right 	to 	seek
voluntary adjustments 	of 	employees'
work schedules 	(the 	hours 	in each
day and the days 	of 	the week, 	not
the total number of hours), 	directly
with 	the 	employees 	on a non-coercive
basis, 	without 	the 	intervention of 	CSEA.
CSEA will 	accept 	such adjustments,
voluntarily 	agreed upon 	by 	the
employees 	involved, 	without protest.
4.1.2. 	In the 	event voluntary agreement 	on
proposed 	adjustments 	cannot 	be 	achieved
between 	the 	District 	and 	the 	affected
employees, 	the 	issue shall be subject 	to
negotiations 	between 	the District 	and
CSEA. 	If 	negotiations 	on the 	issue are
not 	successful, 	assistance will be
requested 	from 	Humboldt 	Mediation
Services, 	rather than other resource
agencies 	available. 	Both the District
and CSEA agree 	that 	such disputes 	shall
not 	be 	submitted 	to a 	fact-finding panel
under 	the provisions 	of 	the 	Educational
Employment 	Relations Act.
66

The 	alternative mediation procedure 	originally was 	developed
in the 	1987 	negotiations between the parties. 	Cathy Dellabalma,
the 	chief 	District 	negotiator that year, 	testified 	that 	at 	the
time 	the parties 	were having many disagreements 	about 	changes 	in
hours, 	in particular 	for security officers. 	She 	testified that
the District 	considered 	the:
. 	. 	. 	formal process, 	where we went through
fact 	finding 	. . . 	an 	expensive 	process 	[and]
. 	. 	. 	[v]ery time consuming. 	. 	. 	. 	And the
rationale behind that, 	if we go 	through that
whole process, 	at 	the end the District 	is
free 	to 	implement 	their 	last best 	offer.
By 	shortening 	that 	process 	and 	going 	with
the Humboldt Mediation Services, 	we would 	-
- - 	the 	end result would be 	the 	s a m e - - t h a t
the 	District would be 	able 	to 	implement
their last best 	offer at 	that point, 	but
it 	would provide a 	forum that was much
less 	time 	consuming and not 	as 	hostile
and would achieve 	the 	results 	in a more
expedient 	way.
Ms. 	Dellabalma knew of 	the work of Humboldt Mediation and
suggested 	it 	as 	an alternative 	to 	the 	statutory process.
Following 	the 	negotiating 	session where Ms. 	Dellabalma
suggested 	the 	alternative procedure, 	CSEA Field Representative
David R. 	Young accepted the procedure in an August 31, 	19 87,
letter to 	counsel 	for the District. 	Initially, 	the procedure was
not written 	into 	the 	agreement 	between 	the parties 	but 	existed 	in
the 	form of 	the 	side 	letter. 	It was written into 	the 	contract 	as
part 	of 	the article 	on hours 	in 	1991.
In early 	1994, 	the District 	invoked the alternative 	impasse
resolution procedure which 	is 	at 	issue. 	Humboldt Mediation
attempted 	to 	resolve 	the 	dispute 	during 	a mediation 	session 	on
77

March 23, 	1994, 	but was not successful. 	CSEA was willing to
continue 	mediation but 	the 	District 	declined and 	on June 	9,
informed 	the Union 	that 	it would make 	the 	hours 	change 	effective
July 10, 	1994. 	CSEA responded to the District's announcement by-
filing 	on June 	20 	a 	request 	that 	PERB determine 	that 	the parties
were 	at 	impasse and appoint 	a mediator. 	The San 	Francisco
Regional 	Office of 	the PERB 	followed on July 11, 	1994, 	with a
finding 	that 	the parties were at 	impasse. 	The 	PERB 	regional
office 	appointed 	a mediator.
The 	District 	meanwhile 	implemented 	the 	change 	in hours 	on
July 10, 	as announced. 	Under the new schedule, 	the hours 	of
security 	officers 	are 	changed 	every 	four months. 	An 	officer who
begins 	a 	four-month period on days will 	then rotate 	to 	four
months 	on 	the 	evening 	shift 	followed by 	four months 	at 	night
followed by 	four months 	on the 	relief 	shift. 	The 	officer 	then
goes 	back to 	the day 	shift.
The 	PERB-appointed mediator 	conducted 	a 	single 	mediation
session, 	held on September 13, 	1994. 	The mediator was unable to
resolve 	the 	dispute 	over hours 	and did not 	certify 	the matter 	to
fact-finding. 	There was 	testimony 	that 	the 	reason 	the mediator
"may have" 	given 	for not 	authorizing 	fact-finding was 	the waiver
provision 	in 	the agreement. 	No 	fact-finding panel 	was 	appointed.
There 	is 	no 	evidence 	that 	CSEA attempted 	to move 	the 	dispute 	to
fact-finding 	despite 	the mediator's 	failure 	to 	certify 	the
procedure. 	However, 	given the District's 	insistence on the
contractual 	procedure, 	CSEA reasonably 	could have 	assumed 	that
8

further 	attempts 	by 	it 	to 	take 	the 	dispute 	to 	fact-finding 	would
have 	been 	futile.
LEGAL 	ISSUES
1) 	May 	the 	parties 	waive 	by 	agreement 	the 	impasse
resolution procedure 	set 	out 	in 	the 	EERA?
2) 	If 	not, 	did the 	District 	fail 	to participate 	in 	the
impasse 	procedure 	in 	good 	faith 	and 	thereby violate 	section
3543.5(e), 	(a) 	and 	(b) 	when it:
A) 	Implemented 	the 	change 	in 	hours 	prior 	to
exhausting 	the 	statutory 	impasse 	procedure?
B) 	Refused 	to 	participate 	in 	further mediation 	and/or
fact-finding?
CONCLUSIONS 	OF 	LAW
Waiver 	of 	Impasse 	Procedure
Whether 	the 	parties 	may 	waive 	statutory 	rights 	or 	other
statutory provisions 	depends 	upon 	the 	nature 	of 	the 	right 	or
provision which they 	seek to waive. 	It 	is 	clear, 	for example,
that 	an 	exclusive 	representative 	may 	waive 	its 	right 	to 	negotiate
about 	a matter within 	the 	scope 	of 	representation 	during 	the
life 	of 	an 	agreement.3 The 	only 	requirement 	is 	that 	such 	a
contractual 	waiver 	be 	"clear 	and unmistakable." 	(Amador Valley
Joint 	Union High School 	District 	(1978) 	PERB Decision No. 	74.)
An 	exclusive 	representative 	also may waive 	its 	right 	to 	file 	a
grievance 	in 	its 	own name, 	although 	an 	employer may 	not 	insist 	to
3 See, 	generally, 	California 	Public 	Sector Labor Relations.
Matthew Bender, 	1994, 	at pp. 	10-34 	through 10-38.
9

impasse upon such a provision. 	(See Mt. 	Diablo Unified School
District 	(1990) 	PERB Decision No. 	844 	and cases 	cited therein.)
It 	similarly 	is 	true 	that 	certain 	statutory provisions
are not within the power of 	the parties 	to waive. 	The parties,
for example, 	may not 	agree by 	contract 	upon 	the unit 	placement
of 	employees 	so as 	to preclude 	PERB 	review through a unit
modification petition. 	This 	is because 	"PERB 	is 	empowered to
resolve any unit placement 	'disputes' 	and the parties 	cannot, 	by
agreement 	or otherwise, 	divest 	the Board of 	such jurisdiction."
(Hemet Unified School District 	(1990) 	PERB Decision No. 	820.)
The 	question here 	is 	whether 	the 	EERA impasse procedure 	is 	a
right 	which 	the 	parties 	may waive 	or a 	statutory 	requirement 	that
is 	not 	a party 	right 	and 	therefore may not 	be waived by 	them.
The District 	argues 	that 	the parties may waive 	the 	statutory
impasse 	resolution procedure, 	pointing 	to section 3548 	which
allows 	them to 	agree 	to 	a mediation procedure 	different 	from that
in 	the 	EERA. 	The District 	sees 	in this provision 	legislative
approval 	of 	other processes. 	The District also 	finds 	support 	for
the 	right 	of 	the parties 	to 	institute 	their own 	impasse
resolution procedure 	in 	federal 	cases4 decided under 	the National
Labor Relations Act. 	The District 	reasons 	that 	if 	federal 	cases
permit 	a 	collective bargaining 	agreement 	to 	override 	federal 	law,
public 	policy was 	not 	violated when 	these 	parties 	established an
impasse procedure 	that 	differs 	from the 	EERA.
4In particular, 	Boys Market v. 	Retail 	Clerks Union 	(19701
398 U.S. 	235 	[74 	LRRM 2257] 	and Buffalo Forge v. 	United
Steelworkers of America 	(1976) 	428 U.S. 	397 	[92 LRRM 3032].
10

The 	Union argues 	that 	the 	purported 	contractual 	waiver 	of
the 	statutory 	impasse procedure 	is 	invalid because 	the 	EERA
provision 	is mandatory. 	The Union argues 	that 	although 	the
statute permits 	the parties 	to establish 	their own mediation
procedure, 	it grants no such right 	to bypass 	the 	fact-finding
process. 	The Union cites 	PERB and state 	court 	decisions5 which
find a 	legislative purpose 	of 	heading 	off 	strikes 	in 	the 	impasse
procedure. 	Such a legislative purpose, 	the Union continues,
would be 	undermined 	if 	parties 	could waive 	the 	statutory 	impasse
procedure. 	Since 	it 	is undisputed that 	the District 	refused to
participate 	in the 	statutory procedure, 	the Union concludes, 	the
unilateral 	change was 	unlawful.
"The 	impasse procedures 	almost 	certainly were 	included 	in
the 	EERA for 	the purpose 	of 	heading off 	strikes." 	(San Diego at
p. 	8.) 	Accordingly, 	it 	is 	settled law that until 	the 	impasse
procedure 	has 	been 	completed, 	the 	employer may not make 	a
unilateral 	change 	in a negotiable 	subject 	(Moreno Valley Unified
School District v. 	Public Employment Relations 	Board 	(1983) 	142
Cal.App.3d 191, 	[191 Cal.Rptr. 	60]) 	(Moreno Valley) 	and the
exclusive 	representative may 	not 	strike 	(Westminster 	School
District 	(1982) 	PERB Decision No. 	277 	and Fresno Unified School
District 	(1982) 	PERB Decision No. 	208).
The 	EERA impasse procedure 	is 	set 	out 	in 	the 	statute's
Article 	9, 	commencing at 	section 3548. 	Under the 	statutory
5In particular, 	Modesto City Schools 	(1983) 	PERB Decision
No. 	291 and San Diego Teachers Association v. 	Superior Court
(1979) 	24 Cal.3d 1 	[154 Cal.Rptr. 	893] 	(San Diego).
11

impasse procedure, 	the Board 	is 	to appoint a mediator within 	five
working 	days 	and 	the mediator 	shall 	meet 	with 	the 	parties
"forthwith" 	in an effort 	to help 	resolve 	their differences.6 If
the mediator 	is 	unable 	to 	settle 	the 	dispute and declares 	that
fact-finding 	is 	appropriate, 	either party may 	then move 	the
dispute 	to 	fact-finding.7
"The 	impasse 	procedure 	of 	EERA contemplates 	a 	continuation
of 	the bargaining process with the 	aid of 	neutral 	third parties.
[citation.] 	Mediation is 	an 	instrument 	designed 	to advance 	the
parties' 	efforts 	to reach agreement; 	fact-finding is a second
such 	tool 	required by 	the 	law when mediation 	fails 	to bring about
agreement. 	. 	. 	. 	[T]he fact-finder's recommendations are a
crucial 	element 	in 	the 	legislative 	process 	structured 	to bring
about 	peacefully negotiated agreements." 	(Modesto 	City 	Schools,
supra, 	PERB Decision No. 	291.)
Once 	the dispute has been moved to mediation, 	the parties 	do
not have 	the 	choice 	of 	opting out 	of 	the process. 	The EERA does
afford 	the 	parties 	a 	limited 	right 	to 	choose an alternative
process. 	They may agree 	to 	their own mediation procedure8 and,
6Section 3548.
7Section 3548.1.
8In relevant part, 	section 3548 provides as 	follows:
. 	. 	. 	Nothing in this section shall be
construed 	to prevent 	the 	parties 	from
mutually 	agreeing 	upon 	their 	own mediation
procedure and 	in 	the 	event 	of 	such agreement,
the board shall 	not 	appoint 	its 	own mediator,
unless 	failure 	to 	do 	so would be 	inconsistent
with the policies 	of 	this 	chapter. 	If 	the
12

within 	five days 	of when the 	PERB appoints 	the 	chair of 	a 	fact-
finding panel, 	they may select 	their own chair.9 But 	there 	is 	no
provision 	in 	the 	EERA which grants 	the parties 	the 	right 	to
substitute 	entirely 	their 	own 	impasse 	resolution procedure 	for
that 	in the statute. 	Indeed, 	one 	could infer that 	the
Legislature, 	when 	confronted with a 	recommendation 	that 	it 	grant
the parties 	such a right, 	chose not 	to do so.
The 	EERA followed by two years 	the 	issuance 	in 19 73 	of 	The
Final 	Report 	of 	the Assembly Advisory Council 	on Public 	Employee
Relations. 	This 	report, 	prepared by a panel 	of distinguished
labor 	law scholars, 	recommended 	the 	enactment 	of 	a 	comprehensive
law to 	regulate 	employer-employee 	relations 	in 	the 	public
sector. 	As part 	of 	the proposed law, 	the 	report 	recommended
the 	creation 	of 	an 	impasse 	resolution procedure 	that 	would
provide 	"a mechanism for protecting public 	health or 	safety 	if 	it
should be 	jeopardized."10 The 	proposed 	statute 	would have
parties 	agree 	upon 	their 	own mediation
procedure, 	the cost of the services of any
appointed mediator, 	unless 	appointed by the
board, 	including any per diem fees, 	and
actual 	and necessary 	travel 	and 	subsistence
expenses, 	shall be borne 	equally by the
parties.
9In relevant part, 	section 3548.1 provides:
(b) 	Within five days 	after the board selects
a 	chairperson of 	the 	factfinding panel, 	the
parties may mutually agree upon a person 	to
serve 	as 	chairperson 	in lieu 	of 	the person
selected by 	the 	board.
10Final 	Report 	of 	the Assembly Advisory 	Council 	on 	Public
Employee Relations. March 15, 	1973, 	at p. 	236.
13

allowed 	either party 	to 	negotiations 	to 	opt 	for 	fact-finding.
The 	proposed 	statute 	also would 	have 	permitted 	strikes 	and
lockouts 	under 	certain conditions.
The 	advisory 	council 	also 	recommended 	that 	the 	"parties
should be permitted 	to avoid 	or abort 	the 	operation 	of 	the
recommended 	statutory impasse procedure" 	if 	they 	could agree 	on a
binding alternative. 	Toward this 	end, 	the 	council 	included the
following provision on 	interest 	disputes 	in 	the 	draft 	statute 	it
submitted 	to 	the 	Legislature:
The provisions 	of 	this Article 	shall 	be
inapplicable 	to 	any 	employer 	and 	recognized
certified 	employee 	organization which 	agree
to a procedure 	for settlement 	of 	their
differences 	that will 	result 	in decisions
that 	are 	final 	and binding.
The EERA, 	as noted above, 	contains no such provision. 	Upon a
declaration by PERB 	that 	the parties 	are at 	impasse, 	adherence 	to
the 	statutory 	impasse procedure 	is 	not voluntary.
It 	seems 	clear 	that 	the 	Legislature 	considered and 	rejected
the 	idea 	that 	the parties 	should be allowed 	to agree upon 	their
own alternative 	impasse 	resolution procedure. 	From this 	history,
I 	would 	infer 	that 	the authors 	of 	the 	EERA wrote 	into 	the 	law the
only 	impasse 	resolution procedure 	they 	intended 	for 	the 	parties
to 	employ. 	If 	the parties 	now were permitted to write an
alternative 	procedure, 	they would be 	substituting 	their 	judgment
for that 	of 	the Legislature.
14

Since 	the 	impasse procedure 	"almost 	certainly" 	was 	included
in 	the 	EERA 	"for 	the purpose 	of 	heading 	off 	strikes,"11 I
conclude 	that 	the 	procedure was 	designed primarily 	for 	the
benefit 	of 	the public. 	It was 	intended by the 	Legislature 	to
protect 	the public 	from the 	disruption of public 	employee 	strikes
by providing 	a method 	other 	than a 	work 	stoppage 	for 	resolving 	a
deadlock 	in bargaining. 	The 	statutory 	impasse 	resolution
procedure 	is 	a 	tool 	written 	into 	the 	law 	for PERB's 	use 	in
heading off 	strikes. 	The 	impasse procedure was 	not put 	into 	the
law as a 	right 	for the primary benefit 	of 	the parties.
In this 	regard, 	the 	California procedure 	is 	entirely
different 	from that 	established under 	federal 	law 	for 	the 	private
sector. 	Federal 	law allows 	the parties 	to use 	their economic
weapons 	to 	resolve 	disputes 	with minimal 	government 	interference.
The 	federal 	cases 	cited by the District 	involve voluntary
agreements 	by 	employers 	and unions 	to 	create 	their 	own 	impasse
resolution devices 	where 	the 	government 	has 	not 	acted. 	Because
California 	has 	chosen a method designed 	to minimize 	public
employee 	strikes, 	I 	find the 	federal 	cases 	to be unpersuasive.
Accordingly, 	since the 	impasse procedure is not a right 	for
the primary benefit 	of 	the parties, 	I 	conclude 	that 	it may not be
waived through an agreement 	of 	the parties. 	The 	contract
provision written by 	the 	District 	and 	CSEA which purports 	to 	bar
the 	parties 	from employing 	the 	EERA 	fact-finding process 	is
therefore 	invalid 	and unenforceable.
11San Diego at p. 	8.
15

Conduct 	During Mediation
If 	the 	statutory procedure 	is 	to achieve 	its 	public policy
goals, 	the parties must use 	it 	in good faith. 	For this 	reason,
the 	EERA makes 	it unlawful 	for a public 	school 	employer to
"refuse 	to participate 	in good 	faith 	in 	the 	impasse procedure 	set
forth in Article 9" 	of the EERA. 	(Section 3543.5 (e) .) 	A refusal
to participate 	in good 	faith may 	occur as 	a unilateral 	change 	in
employment 	conditions made 	after 	the 	impasse procedure 	has 	been
invoked but before 	it has been completed. 	(Moreno Valley.) 	A
violation also may occur as 	a 	flat 	refusal 	to participate 	in 	the
statutory procedure.
The 	complaint 	here 	is based on both of 	these 	theories. 	It
is 	alleged 	that 	the District made a unilateral 	change prior 	to
the 	completion of 	the 	impasse procedure. 	It also 	is alleged that
the District 	refused 	to participate 	in the 	impasse procedure 	to
its 	completion. 	In both of 	these allegations, 	the District 	is
accused 	of 	doing 	exactly what 	the 	alternative procedure 	was
designed 	to allow. 	The 	contract 	specifically provides 	that:
Both 	the 	District 	and 	CSEA agree 	that 	such
disputes 	shall 	not be 	submitted 	to a 	fact-
finding panel 	under 	the provisions 	of 	the
Educational 	Employment 	Relations Act.
Ms. 	Dellabalma 	testified 	that 	the District 	wanted 	this 	language
to avoid the 	"expensive" 	and 	"time consuming" 	process 	of 	fact-
finding. 	She 	testified 	that 	the District believed 	that 	if 	at 	the
end of 	fact-finding 	the District 	was 	"free 	to 	implement 	[its]
last best 	offer" 	then why not 	shorten the process with 	"a 	forum
that 	was 	much 	less 	time 	consuming and not 	as 	hostile."
16

It 	is 	undisputed that 	the District made 	the 	change 	in
hours 	unilaterally and prior 	to 	the 	completion 	of 	the 	statutory-
impasse procedure. 	However, 	the 	theory of 	the 	complaint 	is 	that
the 	change was made 	after 	the 	impasse procedure had been
commenced but before 	it was 	completed. 	Actually, 	the 	change was
made before 	the 	statutory 	impasse procedure was 	commenced. 	It
was 	on June 	9, 	1994, 	that 	the District announced a 	firm decision
to 	implement 	the 	change 	in hours. 	The 	change went 	into effect 	on
July 10, 	1994. 	The 	PERB did not make a 	finding that 	the parties
were at 	impasse until 	July 11, 	1994, 	the day after the 	change 	in
hours 	went 	into effect.
Since 	the 	District 	actually announced and made 	the 	change
in hours prior to the 	commencement 	of 	the 	impasse procedure, 	the
action 	could not 	have been a 	failure 	to participate 	in 	the
impasse procedure 	in good faith. 	If 	the action was unlawful,
it 	was 	a 	failure 	to negotiate 	in good 	faith 	in violation of
section 3543.5(c).12
An 	employer's 	pre-impasse unilateral 	change 	in an
established, 	negotiable practice violates 	its duty to meet 	and
negotiate in good faith. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50
LRRM 2177].) 	Such unilateral 	changes 	are 	inherently destructive
of 	employee 	rights 	and are 	a 	failure per 	se 	of 	the 	duty to
12Section 3543.5 (c) 	provides 	that 	it 	shall be unlawful 	for a
public 	school 	employer to:
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
17

negotiate 	in good faith. 	(Davis Unified School District, 	et al.
(1980) 	PERB Decision No. 	116.)
The 	change at 	issue 	involved hours, 	a negotiable 	subject13
under the EERA. 	The 	term 	"hours" 	includes 	not 	only the number of
hours 	to be worked but also 	the 	time 	of 	day when they are 	to be
worked. 	Thus, 	a change 	in work shifts 	is a change 	in hours and
is 	a negotiable action. 	(Los Angeles 	Community College District
(1982) 	PERB Decision No. 	252.) 	Since the change affected all
security officers 	and was permanent 	in nature, 	it 	is 	clear that
it 	had both 	"a generalized effect" 	and a 	"continuing 	impact" 	on
the members 	of 	the negotiating unit. 	(Grant Joint Union High
School District 	(1982) 	PERB Decision No. 	196.)
Accordingly, 	I 	conclude that 	the July 10 	change 	in hours was
a 	failure 	to 	negotiate 	in good 	faith 	in violation 	of 	section
3543.5(c).14 Since 	the action also had the 	effect 	of 	denying
CSEA the 	right 	to 	represent 	its members, 	it also was 	in violation
of 	section 3543.5(b). 	There 	is no evidence 	that 	the 	failure 	to
negotiate 	in good 	faith also 	denied 	to 	individual 	employees
rights protected by the 	EERA. 	The 	allegation 	that 	the District
13See section 3543.2.
14The District may be 	found 	in violation of 	section 	3543.5 (c)
even 	though 	the 	complaint 	did not 	allege 	a violation of 	that
section. 	A complaint 	need not meet 	the 	technical 	pleading
requirements 	of private 	lawsuits. 	The 	critical 	question is
whether 	the 	respondent was 	informed of 	the 	nature 	of 	the 	alleged
violations. 	(Moreno Valley at pp. 	202-204.) 	In this 	case 	the
District 	was 	informed 	through 	the 	complaint 	that 	it 	was 	accused
of making a unilateral 	change 	in hours. 	Thus, 	the 	fundamental
question was 	placed 	in 	issue by the 	complaint.
18

violated section 3543.5(a) 	therefore must be dismissed. 	(Tahoe-
Truckee Unified School District 	(1988) 	PERB Decision No. 	668.)
Finally, 	it 	is undisputed that 	in reliance upon the
contractual 	impasse 	provision 	the 	District 	refused 	to participate
in 	the 	statutory 	impasse 	resolution procedure 	after 	September 	13.
This 	refusal 	was 	a violation of 	the 	duty 	to participate 	in the
impasse 	procedure 	in good 	faith 	in violation of 	section
3543.5 (e).15 The allegation that by failing to participate 	in
the 	impasse 	procedure 	in good 	faith 	the 	District 	also violated
section 3543.5(a) 	and 	(b) 	is dismissed. 	(Moreno Valley at
pp. 	205-206.)
REMEDY
The 	PERB 	in section 3541.5(c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an 	offending party 	to 	cease 	and
desist 	from the unfair practice 	and 	to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
Here, 	the District unilaterally changed the hours 	of
security officers 	from fixed to 	rotating 	shifts. 	The District
also 	refused 	to participate 	in 	the 	statutory 	impasse 	resolution
procedure 	in good 	faith. 	The appropriate 	remedy 	in a unilateral
15I 	reject 	the District's 	argument 	that because 	of 	its
agreement 	to 	the 	alternate procedure 	CSEA should be 	estopped
from claiming 	that 	the District 	committed an unfair practice.
Since 	the 	rights 	at 	issue 	are 	those 	of 	the public and not 	the
parties, 	it was not within CSEA's power to agree to their waiver.
The District 	cannot 	now use 	the defense 	of 	equitable 	estoppel 	to
preclude 	a 	challenge 	to an action which neither 	it 	nor CSEA had
the 	right 	to take.
19

change 	case 	is a return to the 	status quo ante. 	Here, 	this means
that 	the 	District 	be 	directed 	to 	restore 	the 	fixed 	shifts 	for
security officers 	which were 	in effect prior to July 10, 	1994.
It 	is 	further appropriate 	that 	the District be directed to
cease 	and desist 	from unilaterally 	changing 	the 	hours 	of
employees 	and 	from refusing 	to participate 	in 	the 	impasse
procedure 	in good 	faith. 	The District 	also 	should be 	required 	to
post a notice 	incorporating 	the 	terms 	of 	the order. 	Posting of
such a notice, 	signed by an authorized agent 	of 	the District,
will 	provide 	employees with notice 	that 	the District 	has 	acted 	in
an unlawful manner, 	is being 	required to 	cease 	and desist 	from
this 	activity, 	and will 	comply with the 	order. 	It 	effectuates
the purposes 	of 	the 	EERA that 	employees 	be 	informed of 	the
resolution 	of 	this 	controversy and 	the District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	(Placerville Union School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Redwoods
Community College 	District 	(District) 	violated 	section 	3543.5(c)
of 	the Educational 	Employment Relations Act 	(Act). 	The District
violated 	the Act 	by unilaterally 	changing 	its 	past 	practice 	of
allowing 	security officers 	to work 	fixed 	shifts. 	Because 	this
action had the 	additional 	effect 	of 	interfering with 	the 	right 	of
the 	California School 	Employees Association 	(CSEA) 	to represent
its members, 	the unilateral 	change also was a violation of
20

section 3543.5(b). 	The District also violated the act by
refusing 	to participate 	in good 	faith 	in 	the 	impasse procedure
set 	out 	in the Act. 	The allegation that 	the District's 	conduct
violated 	section 3543.5(a) 	and all 	other allegations 	are 	hereby
DISMISSED.
Pursuant 	to section 3541.5 (c) 	of 	the Government Code, 	it
hereby 	is 	ORDERED 	that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	changing 	the past practice 	of
allowing 	security 	officers 	to work 	fixed 	shifts 	by 	changing 	their
hours 	to 	rotating shifts.
2. 	By the 	same 	conduct, 	interfering with the 	right 	of
CSEA to 	represent 	its members.
3. 	Refusing 	to participate 	in good 	faith 	in the
impasse procedure 	set 	out 	in 	the 	EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Within thirty 	(30) 	workdays of the service of
a 	final 	decision 	in this matter, 	reinstate 	for all 	security
officers 	the 	fixed shifts which were 	in effect prior to July 10,
1994.
2. 	Within ten 	(10) 	workdays 	of 	the 	service of a 	final
decision 	in this matter, 	post at all 	work locations where notices
to 	classified employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must 	be 	signed
by an authorized agent 	of 	the District, 	indicating 	that 	the
21

District 	will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to ensure 	that 	the
Notice 	is 	not 	reduced in size, 	altered, 	defaced or covered with
any 	other material.
3. 	Upon issuance of a final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to
the 	San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 	20
days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" 	when
actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the
last 	day 	set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; 	Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any 	statement 	of 	exceptions 	and 	supporting brief must 	be
served 	concurrently with 	its 	filing upon 	each party 	to 	this
22

proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law Judge
23