San Dieguito Union High School District * * * OVERRULED IN PART by Carlsbad Unified School District (1979) PERB Decision No. 89, and also OVERRULED IN PART by Los Angeles Unified School District (1983) PERB Decision No. 285 (PERB 0022E)

OVERRULED IN PART by Carlsbad Unified School District (1979) PERB
Decision No. 89, and also OVERRULED IN PART by Los Angeles Unified
School District (1983) PERB Decision No. 285
STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN DIEGUITO FACULTY ASSOCIATION,
Charging Party
vs
SAN DIEGUITO UNION HIGH SCHOOL DISTRICT,
Respondent
)
)
) 	Case No. LA-CE-1
EERB DECISION NO. 22
)
)
)
)
Appearances: 	Charles R. Gustafson, Attorney, for San Dieguito Faculty Association/
California Teachers Association/National Education Association; Lee T. Paterson,
Attorney (Paterson & Taggart), for San Dieguito Union High School District.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
With an unfair practice charge filed on July 8, 1976, and amended on
October 4, 1976, the San Dieguito Faculty Association (Association) alleges that
the San Dieguito Union High School District violated certain sections of the
Educational Employment Relations Act (EERA), in that the District's Board of Trustees
unilaterally rescinded and revised personnel policies in June and August of 1976.
The District filed an answer denying that it had violated the EERA and also filed a
motion to dismiss the charge. 	The case is before this Board on appeal from a
hearing officer's recommended decision and order dismissing the unfair practice
charge following a hearing. 	Both the Association and the District filed with the
EERB exceptions to the hearing officer's recommended decision and order, and
supporting briefs.
Gov. Code Sec. 3540 et seq. , sometimes referred to here as the Educational
Employment Relations Act or EERA. 	The Association alleges that the District's
conduct, as set out in the charge, violated Gov. Code Secs. 3543, 3543.1(a),
3543.5(a), 3543.5(b), 3543.5(d), and 3544-3544.9, quoted in full or summarized at
page 7 infra.

The Alleged Unlawful
Action of June 1976
For at least five years before the events leading to the charge in this case,
the District and the Certificated Employees Council (CEC) in the San Dieguito
Union High School District met and conferred under procedures established by the
2
Winton Act. 	The events prompting the filing of this charge began in November of
1975 when the CEC requested a meet and confer session on personnel action by the
District which the teachers wanted the School Board to rescind.
On February 9, 1976, 	the CEC requested a meet and confer session with the
District to discuss immediate changes for the 1976-77 school year on the subjects
of horizontal movement on the salary schedule, credit for outside experience, extra-
work pay, social security coverage for extra-work pay, cost of living increases,
and class assignment.
The District replied on March 11, 1976, stating that it had always been
willing to discuss personnel matters at meet and confer sessions with the CEC,
pursuant to the Winton Act. 	The District also pointed out that its assignment and
transfer policy had been the subject of previous meet and confer sessions and was
last amended by the Board on March 14, 1974 after consultation with the CEC. 	The
District's reply also rejected the CEC's request for "an immediate salary increase,"
in that personnel costs would be considered later in the development of the entire
1976-77 school year budget. 	The District made no counter proposals in its
March 11, 1976 reply to the CEC.
On March 24, 1976, the CEC made a written request for counter proposals from
the District. 	As part of that request, the CEC asked for a meet and confer session
on April 1, 1976. 	The requested agenda for that meeting concerned the six disputed
subjects plus any subjects the District wanted to add.
On March 30, 1976, the District replied in writing to the CEC request of
March 24, 1976. 	That response was entitled "Board's Counter Proposal." 	In that
letter, 	the District said it was in its third year of a "difficult financial situation";
that during the past three years, 	the budget had been balanced primarily by "reducing
reserves and cutting expenditures not related to personnel"; 	that since the largest
expenditure in the District is for employee wages and benefits, the District could
not continue to balance the budget without curtailing some personnel costs. 	The
Board's letter then responded specifically to the six items under discussion.
Concerning horizontal movement, 	credit for outside experience and extra pay based on
2Former Ed. Code Sec. 13080 et seq., repealed, stats 1975, Ch. 961, Sec. 1, effective
July 1, 1976.
- 2 -

the salary schedule, 	the District's position was that it would make no changes
in respect to these items, a position based on the District's desire to curb some
projected long-term personnel costs. 	On the subject of social security for
extra-work pay, 	the District took the position that it would not add social
security benefits for certain employees who receive extra-work pay since that
would result in additional costs to the District. 	The District also said that the
CEC's proposal on social security would benefit only "a limited number of employees."
The District reiterated its March 11 position on a cost of living increase, stating
that it had to deal with all requests for wages and benefits in "one total package."
The District also requested that the CEC consider presenting its salary and
benefit package for the next year "as soon as possible," and said that its assignment
and transfer policy would be reviewed by the administration. 	Thus, in summary, 	the
District in its March 30, 1976 letter made no counter proposals but did indicate
why it was rejecting the CEC's proposals at that time. 3
In response to the District's March 30 letter, the CEC on April 7, 1976 wrote
the District a letter stating in part that "the only 'counter proposal' offered by
the Board's representative is 'no'". 	The letter indicated that the District was
not meeting and conferring in good faith. 	It noted that the preliminary budget
presented to the District by the Superintendent contained no provision for any of
the six items originally proposed by the CEC. 	The letter also acknowledged the
District's suggestion that the CEC participate in planning a budget for the 1976-77
school year and indicated its willingness to volunteer time and "expertise" in
joining with the District in those discussions. 	The letter concluded by asking the
District to direct its representative to include the views of the CEC in the
discussion on the proposed 1976-77 budget.
The District's Board of Trustees received the CEC 	1976-77 proposals on May 4, 1976 an<
placed them on the agenda for its May 16 public meeting. 	On May 25, 1976, the
District delivered its written counter proposals to the CEC and also presented in
3On April 6, 1976, the San Dieguito Faculty Association, the charging party,
filed with the District a request for recognition as the exclusive representative
of a unit of certificated employees. 	Subsequently, a timely intervention petition
was filed on April 30, 1976 by the American Federation of Teachers, Local 1933, the
District notified the EERB that it desired a representation election pursuant to
Gov. Code Sec. 	3544.5, the parties entered into a consent election agreement
which was approved by an EERB agent, and a representation election was conducted by
the EERB on March 24, 1977. 	The EERB Regional Director's tally of ballots shows the
following election results:
Votes cast for San Dieguito Federation of Teachers/AFT. 	. 	. 	.105
Votes cast for San Dieguito Faculty Association/CTA/NEA . 	. 	.140
Votes cast for no representation 	3
The Association was certified as the exclusive representative on April 5, 1977.
- 3 -

writing to the CEC its proposals concerning several other policy changes which the
District indicated "must be revised before the collective bargaining provisions of
SB 160 go into effect on July 1, 1976." 	These policies were paid leaves, unpaid
leaves, transfer procedures, class size, evaluation procedures, grievance procedures,
and safety conditions of employment. 	In the letter of May 25, 1976, the District
offered to "meet and confer on these policies at any time it is mutually convenient
to the CEC and the Board's team."
On June 3, 1976 and June 9, 1976, the District and the CEC met and conferred
on the District's proposals of May 25. 	At the June 9 meet and confer session, the
meeting opened with an exchange of proposals. 	The CEC withdrew its request for a
cost of living increase of 10%. 	The CEC conditionally accepted $9.25 per hour for
extra-pay work commencing on June 19, 1976, and an increase for driver training to
$9.25 per hour. 	The CEC adhered to its position on credit for outside experience
and on extending health benefits to employees' families; it continued to propose a
social security program for certificated personnel.
The District indicated that it was prepared to make a final salary proposal
contingent on adding the M.A. to the certificated salary schedule. 	The District's
"final figure" for salary adjustments for the 1976-77 school year was $237,000, to
be applied in one of two ways: 	(1) apply the entire amount to the certificated
salary schedule, which would increase that schedule by approximately 5.7% or,
(2) apply approximately $21,000 to increase the hourly rate for extra pay in all
areas except driver training to $9.25 per hour and increase the driver training
rate to $8.61 per hour; then apply the remaining $216,000 to the certificated
salary schedule, which would increase that schedule by approximately 5.25%. 	The
parties then reached agreement or partial agreement on the following items: 	personal
illness or injury leave, personal necessity leave, bereavement leave, judicial
government leave, industrial accident leave, and quarantine leave. 	The parties
reached no agreement on sabbatical leave. 	The CEC rejected the District's sabbatical
leave proposal and requested that the Board re-write it and place it on a future
agenda. 	The District adhered to its earlier position on credit for previous
experience, health coverage for employees' families and a social security program
for certificated personnel.
On June 11, 1976, the President of the District's Board of Trustees, in a
letter to the CEC, stated that the policy changes proposed by the District and
presented to the CEC for consideration were within the scope of representation under
the EERA that would then take effect on July 1, 1976. 	The letter states "the Board
is of the firm opinion that certain revisions are necessary in these policies prior
- 4 -

to that date", and that the "extra wording of the revised policies is, of course, subject
to the Winton Act's meet and confer process." 	The letter states further the Board's
intention to take action on June 30 on all of the policies presented at the May 25
school board meeting. 	The letter noted that areas of agreement by the District and
the CEC would be the subject of Board action before June 30 and that policies on
which agreement between the Board and the CEC had not been reached would be considered
at meet and confer discussions "prior to Board adoption."
The CEC and the District met on June 14 and 15 for further meet and confer
sessions. 	The minutes for those meetings and the parties' pleadings indicate that the
two parties reached agreement on fourteen policies, 	that two were returned to the
District for further consideration and that both the District and the CEC declared
persistent disagreement on sabbatical leave, transfer procedures, evaluation procedures,
grievance procedures, and assignment procedures. 	Pursuant to the Winton Act, the CEC
on June 15, 1976 requested factfinding on the five topics of disagreement. 	On
June 16 the District issued a memorandum to its personnel staff noting the persistent-
disagreement status of the five topics.
On June 24, 1976, the District adopted revised policies on the five subjects
of the CEC's factfinding request, and on two other policies, family sick leave and
hours of employment. 	The District refused the CEC's request to defer action until
an exclusive representative was selected and certified. 	The CEC made no further
request to meet with the District and the District's "final proposal" then became
effective at midnight on June 30, 1976.
At midnight on June 30, 1976, the Winton Act expired.
The Alleged Unlawful
Action of August 1976
At a public meeting on August 5, 1976, the District reviewed a. second set
of 	personnel policy proposals it made on May 27, 1976. 	The Board adopted its
proposed changes at an August 26 meeting. 	The CEC, the Association, and the
Federation received copies of the agendas for the August 5 and August 26 Board
meetings, but did not request a meeting with the District to discuss the District's
proposed policy changes .
4 Former Ed. Code Sec. 13087.1, repealed, stats 1975, Ch. 961, Sec. 1.
See note 2 supra.
- 5 -

The Parties' Contentions
Charging Party
The argument of the charging party is that by unilaterally rescinding or
revising personnel policies on June 24 and August 26, 1976, the District violated
both the Winton Act and the EERA in several respects: 	(1) by failing to fulfill its
obligation to consult in good faith with the CEC and the charging party; 	(2) by
failing to consult in good faith, 	the District intended to impose reprisals on
employees and to interfere with and coerce employees because of the exercise of
their rights guaranteed by the Winton Act and the EERA; and (3) by taking those
actions in respect to the meet and confer process, the District interfered with
the charging party's right to represent its members and encouraged employees to
reject the selection of an exclusive representative. 	The Association also contends
that the District unlawfully failed to participate in the Winton Act's impasse
procedures.
The District
The District's position is 	(1) 	that under the EERA it had no obligation to
consult in good faith with a non-exclusive representative; 	(2) that if it had
such a duty, 	that duty was met since the pattern of meeting and conferring was at
all times conducted by the District in good faith; 	(3) that there was no evidence
that the District restrained or coerced employees in violation of the EERA; 	(4) 	that
to whatever extent the District may have violated the Winton Act, the EERB is without
jurisdiction to remedy violations of the Winton Act; and (5) 	that the EERB lacks
jurisdiction to resolve unfair practice allegations based on conduct which took
place before July 1, 1976.
-6-

The Applicable Sections of the EERA
The Association alleges that the District's conduct, as described in the
Association's charge, violated the following provisions of the EERA.
Government Code Section 3543.5 provides:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against
employees, or otherwise to interfere with, restrain,
or coerce employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights guaranteed to
them by this chapter. * * *
(d) Dominate or interfere with the formation or administration
of any employee organization, or contribute financial
or other support to it, or in any way encourage employees
to join any organization in preference to another.
Government Code Section 3543.1(a) provides:
Employee organizations shall have the right to represent their
members in their employment relations with public school
employers, except that once an employee organization is
recognized or certified as the exclusive representative of
an appropriate unit pursuant to Section 3544.1 or 3544.7,
respectively, only that employee organization may represent
that unit in their employment relations with the public school
employer. 	Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal of individuals from membership.
The Association did not file exceptions to the hearing officer's dismissal of the
charge that Gov. Code Sec. 	3543.5(c) had been violated by the District. 	The finding
and conclusion of the hearing officer from which no exception was taken dismissed
the charge in that respect on the ground that there was no "exclusive representative"
within the meaning of Gov. Code Sec. 3543.5(c) during the time of the District's
alleged unlawful conduct. 	Gov. Code Sec. 3543.5(c) provides:
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.
Charging party also alleges a violation of Gov. Code Secs. 3544-3544.9.
Sections 3544, 3544.1, 3544.3, 3544.5, 3544.7 all concern representation procedures.
There is neither an allegation nor evidence that the District denied the charging party's
right to use the EERA's representation procedures. 	Gov. Code Sec. 3544.9 provides
that a recognized or certified employee organization "shall fairly represent
each and every employee in the appropriate unit." 	That section is not applicable here,
since it involves a charge against an employee organization.
-7-

Government Code Section 3543 provides:
Public school employees shall have the right to form, join,
and participate in the activities of employee organizations
of their own choosing for the purpose of representation on
all matters of employer-employee relations. 	Public school
employees shall also have the right to refuse to join or
participate in the activities of employee organizations and
shall have the right to represent themselves individually
in their employment relations with the public school employer,
except that once the employees in an appropriate unit have
selected an exclusive representative and it has been
recognized pursuant to Section 3544.1 or certified pursuant
to Section 3544.7, no employee in that unit may meet and
negotiate with the public school employer.
Any employee may at any time present grievances to his
employer, and have such grievances adjusted, without the
intervention of the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms of a written agreement then in
effect; provided that the public school employer shall not
agree to a resolution of the grievance until the exclusive
representative has received a copy of the grievance and the
proposed resolution and has been given the opportunity to
file a response.
The Hearing Officer's Recommended Decision
In his recommended decision, 	the hearing officer determined that by amending
the EERA, 	the Legislature intended to make the unfair labor practice sections of
the EERA retroactive. 	He therefore concluded that the EERB had jurisdiction to
resolve 	alleged unfair practices occurring on and after April 1, 1976, rather than
As found by the hearing officer: 	"As originally enacted on September 22, 1975,
chapter 961 of the statutes of 1975 provided three different operative dates for
various sections of the EERA. 	Sections 3541 and 3541.5, which establish the EERB
and define the EERB's powers and duties, became operative on January 1, 1976.
Sections 3543, 3543.1, 3544, 3544.1, 3544.3, 3544.5, 3544.7 and 3545, which (1) grant
to public school employees the right to choose an exclusive bargaining representative;
(2) grant to employee organizations certain enumerated rights; and (3) establish
procedures for certification of an exclusive representative, became operative on
April 1, 1976. 	All other sections of the EERA, including the unfair practice
provisions contained in Sections 3543.5 and 3543.6 became operative on July 1, 1976."
—8-

on and after July 1, 1976, as alleged by the District.
The hearing officer found, nonetheless, that the unilateral actions allegedly
taken by the District did not constitute an unfair practice. 	He reasoned
as follows: 	(1) the only right accorded to a non-exclusive employee organization
is the right to "meet and consult" and to have its requests considered by the
employer; 	that since the District met and consulted with the CEC on several
occasions, the District fulfilled its statutory obligation; 	(2) the evidence did
not establish that the District intended to discourage union membership or that
the District's actions otherwise interfered with the employees' rights to select
an exclusive representative; 	(3) the District's conduct did not have the "natural
consequence" of discouraging or interfering with the employees' rights to select
an exclusive representative; and (4) the charging party's contention that the
respondent violated Government Code Section 3543.5(d) because the respondent's
actions had the effect of encouraging employees to select "no representation",
was without merit since Government Code Section 3543(d) refers "only to actions
which encourage employees to join one organization over another."
We sustain the hearing officer's dismissal of the unfair practice charge.
But we do not adopt all of the hearing officer's reasoning in support of the
dismissal.
The Retroactivity Issue
An amendment to the EERA, effective July 10, 1976, made certain provisions
in the unfair practice section of the Act effective April 1, 1976 rather than
July 1, 1976.8
Without characterizing it as such, the District, at the hearing and in its
exceptions to the Board, in effect challenges the constitutional validity of the
EERA's retroactivity amendment. 	Meeting that argument head on, 	the hearing officer
decided that "remedial statutes can be validly retrospective, and because the
respondent has suffered no increased liability, 	SB 1471 properly grants jurisdiction
to the Educational Employment Relations Board to hear and decide this case."
We do not decide the constitutional issue implicitly argued by the District and
implicitly resolved by the hearing officer. 	As a statutory administrative agency with
no power to find a statute unconstitutional, we are bound to interpret the EERA as
8 Ibid.
-9-

we find it and leave to the judiciary questions concerning the constitutional validity
of the EERA on its face. 9
The Duty to Consult
The charging party concedes that the District, 	in June and August of 1976,
was not obligated to meet and negotiate in good faith with any employee organization,
since no exclusive representative had been recognized or certified during those times.
The Association is thus compelled to argue that the District's alleged unilateral
changes in personnel policies was a failure of the employer's obligation to consult.
We agree with the hearing officer's conclusion that the District did not
violate the EERA by failing to consult with the Association. 	Government Code
Section 3543.2 	outlines the breadth of the obligation to meet and negotiate and
9See Hand v. Board of Examiners In Veterinary Medicine, 66 Cal. App. 3d 605,
618-620 (1977); compare Southern Pacific Transportation Co. v. Public Utilities
Commission, 18 Cal. 3d 308, 134 Cal. Rptr. 189 (1976), holding that an administrative
agency deriving its authority from the State Constitution has the authority to determine
the constitutionality of the statute it is called upon to apply.
1 0 Gov. Code Sec. 3543.2 provides:
The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms
and conditions of employment. 	"Terms and conditions of
employment" mean health and welfare benefits as defined
by Section 53200, leave and transfer policies, safety
conditions of employment, class size, procedures to be
used for the evaluation of employees, organizational
security pursuant to Section 3546, and procedures for
processing grievances pursuant to Sections 3548.5, 3548.6,
3548.7 and 3548.8. 	In addition, the exclusive repre-
sentative of certificated personnel has the right to
consult on the definition of educational objectives, the
determination of the content of courses and curriculum,
and the selection of textbooks to the extent such matters
are within the discretion of the public school employer
under the law. 	All matters not specifically enumerated
are reserved to the public school employer and may not be
a subject of meeting and negotiating, provided that
nothing herein may be construed to limit the right of the
public school employer to consult with any employees or
employee organization on any matter outside the scope
of representation. 	(Continued)
-10-

provides in essence that the duty to consult on specified educational-policy
matters begins where the duty to meet and negotiate terminates. 	The EERA does
not require consultation with an employee organization that is not an exclusive
representative in an appropriate representation unit. 	Government Code Section
3543.2 provides that "the exclusive representative . 	. 	. has the right to consult"
on specified matters of educational policy. 	[Emphasis added.] 	On matters that are
neither within the scope of representation nor within the purview of the "right to
consult", a school employer "may" consult but has no duty to consult. 	In sum,
Government Code Section 3543.2 creates two obligatory classes and one optional class
of subjects: 	(1) a mandatory duty to negotiate with an exclusive representative
on certain subjects; 	(2) a mandatory duty to consult with an exclusive representative
on certain subjects; and (3) an option to consult or not consult with any employee
or employee organization on remaining subjects. 	Charging party's case is outside
of classes (1) and (2), above, because charging party was not the exclusive
representative during the period in question. 	Charging party may not rely upon
class (3), above, since a school employer may, but need not, consult on any such matters,
The obligation to consult means that a school employer must consider the exclusive
representative's proposals, but a school employer is not bound to attempt in good
(continued)
Gov. Code Sec. 3540.l(h) defines "meeting and negotiating" as
" . . . meeting, conferring, negotiating, and discussing
by the exclusive representative and the public school
employer in a good faith effort to reach agreement on
matters within the scope of representation and the
execution, if requested by either party, of a written
document incorporating any agreements reached . 	. 	.."
-11-

faith to reach a negotiated written agreement. 	Apart from Government Code
Section 3543.2, the EERA contains no other reference to an obligation to consult.
The EERA does not define the term "consult", as used in Gov. Code Sec. 3543.2.
However, 	the duty to consult appears to be the same as the duty to "meet and confer"
as used in the now repealed Winton Act. 	Former Ed. Code Sec. 13081(d), provided:
'Meet and confer' means that a public school employer, or
such representatives as it may designate, and representatives
of employee organizations shall have the mutual obligation to
exchange freely information, opinions, and proposals; and to
make and consider recommendations under orderly procedures in
a conscientious effort to reach agreement by written resolution,
regulation, or policy of the governing board effectuating such
recommendations.
The Winton Act's meet and confer procedures were intended to apply, among
other things, 	to meeting and conferring in respect to "educational objectives, the
determination of the content of courses and curricula, the selection of textbooks and
other aspects of the instructional program to the extent such matters are within the
discretion of the public school employer or governing board under the law • 	. 	.."
Former Ed. Code Sec.13085. 	The EERA, in Gov. Code Sec. 3543.2, extends the duty to
consult to the same educational-policy matters as those described in the Winton Act,
former Ed. Code Sec. 13085. 	Thus, it appears that the extent of the duty to consult,
as that duty arises under the EERA, is a carry-over from the Winton Act.
In San Juan Teachers Association v. San Juan Unified School District, 44 Cal. App.
3d 232, 252 (1974), the Court of Appeal, in noting distinctions between the meet-and-
confer obligation and the obligation to negotiate said:
"There is no statutory requirement that the employer
'negotiate' in the sense of striving to reach a
contract, bargain or agreement. 	Rather, the
statutory obligation of the employer is expressed
in the words 	'meet and confer.'"
The Court also noted with approval the decision of the Court of Appeal in Grasko v. Los
Angeles City Board of Education, 31 Cal. App. 3d 290 at 303-304 (1973), 82 LRRM 3098
(1973), interpreting the now-repealed Winton Act, that "the Legislature has determined
that binding written contracts or agreements have no place in the field of labor
relations between a public school employer and its employees."
-12-

During the time of the events leading to the charge in this case, not
only was there no exclusive representative but, in addition, no appropriate unit
had been established by consent of the parties or by direction of the EERB. 	If,
as argued by the charging party, a duty to consult may arise in advance of
certification or recognition of an exclusive representative, and in advance of the
identification of an appropriate unit, an employer would be obligated to consult
with any employee organization, no matter how many made the request, and in respect
to any unit, no matter how inappropriate or how varied in number, with resulting
confusion as the employer attempted to resolve possibly conflicting consultation
requests made in behalf of possibly overlapping groups of employees. 	For that
reason, we think that Government Code Section 3543.1, which gives employee organizations
the "right to represent their members in their employment relations with public
school employers" in advance of the selection of an exclusive representative cannot
be read to conflict with the plain language in Government Code Section 3543.2, which
provides that the duty to consult applies only to an exclusive representative.
In any event, 	even on the assumption that the District was under a duty to consult,
as alleged by the Association, 	the District fulfilled its obligation by holding several
meetings with the CEC, by listening to its proposals, by agreeing to some and
disagreeing 	with others. 	The District did more than merely listen. 	True, the
District never intended to reach a written accord with the CEC on any of the issues
discussed, but it was not under any obligation to make that attempt in the absence
of an exclusive representative.12
In respect to the charge that the District failed to consult in August of
1976, it is true that consultation did not occur. 	However, it is undisputed that the
Association did not respond to the District's notice that it intended to change the
policies that were changed at the Board's meeting of August 26, 1976. 	As the
hearing officer found, the charging party "waived its right to challenge this action
by the District." 	While it may be argued that it would have been futile for the
charging party to make a request that the personnel policies not be changed at the
August meeting of the District's Board of Trustees, we find that such a request would
not have been futile in view of the pattern of meeting and conferring which preceded
the August 26 meeting of the Board of Trustees, and concerning which we have previously
found that the District fulfilled its obligation to consult.
Our finding that the District did not violate a duty to consult with the
charging party necessarily disposes of the charging party's contentions that the
Note 6 supra.
-13-

District violated Government Code Sections 3543.1(a)
13
and 3543.5(b),
14
since the
alleged denial of charging party's "rights guaranteed 	. . . by this chapter",
Government Code Section 3543.5(b), refers to rights under Government Code Section
3543.l(a).
The Alleged Interference With The Right
To Select An Exclusive Representative
In arguing that the District's conduct during the meet and confer sessions
interfered with the efforts of the employees to exercise their rights to choose an
exclusive representative, the Association relies upon Government Code Section 3543.5(a),
which makes it unlawful for employers "to interfere with, restrain, or coerce employees
because of their exercise of rights guaranteed by [the EERA]." 	The charging party thus
argues that the same conduct which we find not violative of the employer's statutory
obligation to consult, also violates Government Code Section 3543.5(a).
We find no violation of Government Code Section 3543.5(a). 	In order to find a
violation of this section, we would at minimum have to conclude that the District's
conduct was carried out with the intent to interfere with the rights of the employees
to choose an exclusive representative, or that the District's conduct had the natural
and probable consequence of interfering with the employees exercise of their rights to
choose an exclusive representative, notwithstanding the employer's intent or motivation.
We find neither.
Government Code Section 3543.5(a) combines the language of National Labor Relations
Act Sections 8(a)(l) and 8(a)(3). 	Section 8(a)(l) of the NLRA provides that it shall be
an unfair labor practice for an employer to "interfere with, restrain or coerce
employees in the exercise of the rights guaranteed in Section 7."
See p. 7 supra.
See p. 7 supra.
1 5 29 U.S. Code Sec. 158(a)(l).
1 6 29 U.S. Code Sec. 158(a)(3).
Section 7 of the NLRA, 29 U.S. Code Sec. 157, provides:
Employees shall have the right to self-organization, to form, join
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3)
-14-

Section 8(a)(3) of the NLRA makes it an unfair labor practice for an employer
"by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization. 	. 	.." 	Both parties in this case appropriately rely upon NLRA
cases interpreting Sections 8(a)(l) and 8(a)(3) of the NLRA.
The National Labor Relations Board has decided a number of cases on the
difficult question of what effect, if any, motive or purpose has in determining
whether there is a Section 8(a)(l) NLRA violation. 	It appears that generally,
when the employer grants a wage increase or other economic change during a union
organizing campaign, proof of an illegal motive is not required if the employer's
19
actions may reasonably be said to interfere with the union's organizing campaign.
But if a valid reason, unrelated to union activity, 	can be established for a change
in benefits, no unlawful interference is found.20
The United States Supreme Court has held that the finding of a Section 8(a)(3)
violation will normally turn on the employer's motivation. 21 Section 8(a)(l) makes
it unlawful simply to interfere with employees in the exercise of Section 7 rights;
there is no language on motive or purpose. 	However, 	the use of the words "discrimination"
and "discouragement" in NLRA Section 8(a)(3) 	suggests that motivation is a key factor
in any Section 8(a)(3) violation.
Unlike Section 8(a)(l) of the NLRA, Government Code Section 3543.5(a) seems to
make motive or purpose a requirement for a violation. 	The pertinent part of Government
18
See Los Angeles Unified School District, EERB Decision No. 5, November 24, 1976, n.l.
1 9 See Tonkawa Refining Co., 175 NLRB 619, 623, 71 LRRM 1041 (1969), aff'd,
434 F. 2d 1041, 76 LRRM 2127 (10th Cir. 1970); American Freightways Co. Inc., 124 NLRB
146, 44 LRRM 1302 (1959).
20
See Evansville and Ohio Valley Transportation Co., 223 NLRB 184, 92 LRRM 1157
(1976); Champion Pneumatic Machinery Co., 152 NLRB 300, 306, 59 LRRM 1089 (1965);
International Shoe Co., 123 NLRB 682, 43 LRRM 1520 (1959).
2 1 See American Ship Building Co. v. NLRB, 380 U.S. 300, 58 LRRM 2672, 2676
(1965).
-15-

Code Section 3543.5(a) reads: 	"It shall be unlawful for a public school
employer to: 	(a) . 	. 	• interfere with, restrain or coerce employees because of
their exercise of rights guaranteed by this chapter." 	[Emphasis added.] 	Inter-
ference "because of" is quite different from mere "interference in." 	"Because of"
connotes purposeful or intentional behavior; "interference in" connotes interference
with or without an unlawful intent.
The District's Intent
We find, in agreement with the hearing officer, that the District had no
unlawful intent; that instead, the District's posture during the meet and confer
sessions was motivated by the District's desire to change its personnel policies
"before the collective bargaining provisions of 	[the EERA] 	go into effect on
July 1, 1976."
The District was apparently under the impression that between April 1, 1976
and July 1, 1976, it was only subject to the meet-and-confer standard of the
Winton Act, and consequently, that on July 1, 1976 and thereafter, the District
would be obligated to negotiate in good faith, within the meaning of Government
Code Section 3540.l(h) on all matters within the scope of representation, following
the selection of an exclusive representative.
We need not consider the wisdom of the District's tactics in this regard, except
to the extent that they may have violated the EERA. 	We cannot find that the District
violated Government Code Section 3543.5(a) and (b)22
without finding that through unlawful
means 	the District intended to encourage a "no representation" vote at the
representation election. 	In addition to finding no unlawful means, we find no intent,
lawful or unlawful, on the part of the District, to encourage a "no representation"
vote. 	The District's intent to gain a superior negotiating position beginning
July 1, 1976 is not consistent with an intent to encourage a "no representation vote"
in an EERB conducted representation election. 	Indeed, the District's actions during
the period in question were inconsistent with a desire to encourage a "no representation"
vote, since its actions were consistent with an intent to negotiate, and an
intention to negotiate is inconsistent with a desire to avoid representation altogether.
The Consequences of the District's Action
We find that the District's conduct in question was not such that it had the
natural and probable consequence of encouraging a "no representation" vote. 	The
District's meet and confer tactics during the period in question might well have
22 See p. 7 supra.	•
-16-

had the natural and probable consequence of placing an exclusive representative
in a less desirable negotiating position at the outset of negotiations taking
place on and after July 1, 1976. 	But that, alone, did not have the further
natural and probable effect of discouraging employees from selecting an employee
organization as exclusive representative. 	The possibility that the District's
conduct in question had the opposite effect of encouraging a vote for representation
is at least as great, if not greater, than the possibility that the District's conduct
had the effect of discouraging employees from voting for representation by an
employee organization.
The EERA Section 3543.5(d) Contention
Charging party contends that the District's actions violated Government Code
Section 3543.5(d), which provides:
It shall be unlawful for a public school employer to:
* ft *
Dominate or interfere with the formation or
administration of any employee organization,
or contribute financial or other support to
it, or in any way encourage employees to join
any organization in preference to another.
In alleging a violation of this section of the EERA, 	the charging party relies upon
the same action of the District that the charging party cites in arguing that the
District violated other sections of the EERA. 	Specifically, it is contended that
the District's conduct in question encouraged employees to select "no representation".
We have already found that the District's conduct did not have that effect and
that the District did not have that intent. 	It follows that these actions did not
constitute a violation of Government Code Section 3543.5(d). 	It is not even
argued by the charging party that the District's conduct encouraged employees to
join an employee organization in preference to another employee organization. 	Nor
is it argued that the District dominated or interfered with the formation or
administration of any employee organization or contributed financial or other support
to an employee organization. 	Thus, while it is alleged that the District violated
Section 3543.5(d), the charging party's argument boils down to nothing more than the
mere allegation, unsupported by evidence in the record, that part of Section 3543.5(d),
was violated. 	We find no violation of Government Code Section 3543.5(d).
The Alleged Winton Act Violations
Charging party contends that the District's conduct in question, as already
described, violated the Winton Act and that the District's failure to participate
in the impasse procedures provided by the Winton Act is also a violation of the
Winton Act.
-17-

The jurisdiction of the EERB is limited to cases arising under the EERA. 	Thus,
while it is possible that the District may have violated the Winton Act, a matter
on which we make no finding, 	the remedy for any such violation would exist in a
forum other than the EERB.
ORDER
The hearing officer's dismissal of the unfair practice charge filed by the
San Dieguito Faculty Association against the San Dieguito Union High School District,
following a hearing, is sustained.
By: 	Reginald Alleyne, 	Chairman 	Raymond 	J. 	Gonzales 	Member 	7
Dated: 	September 2, 	1977
Jerilou H. Cossack, Member, concurring in part and dissenting in part:
There are several aspects of the majority opinion with which I am in substantial dis-
agreement. 	First and most important, 	I disagree with the majority's determination
that motive or purpose is a prerequisite to establishing a violation of Section 3543.5(a)
and, inferentially, Section 3543.6(a). 	Second, I disagree with the majority's con-
clusion that the employer did not violate Section 3543.5(a). 	Third, 	I disagree with
the majority's conclusion that a requisite element of a Section 3543.5(d) violation
is an employer's intention to encourage employees to vote for one organization over
another or to encourage a "no representation" vote. 	Fourth, while I agree with the
majority that pursuant to Section 3543.2 an employer is only obligated to "consult"
with an exclusive representative, 	I disagree with the majority's apparent determina-
tion that an employer is not obligated pursuant to Section 3543.1(a) 	to discuss, 	in
some fashion, 	"employment relations" with a non-exclusive representative, particularly
in the absence of an exclusive representative. 	Finally, 	I disagree with the reason
the majority concluded that the retroactive amendment to the EERA is valid.
I
Since the most devastating and far-reaching decision of the majority is its con-
clusion that motive or purpose is a prerequisite for establishing a violation of
Section 3543.5(a), 	I will dissent from that aspect of the majority opinion first.
Presumably, 	since Sec. 3543.6(a) provides that it shall be unlawful for an employee
organization to cause or attempt to cause an employer to violate Sec. 	3543.5, the
majority also intends to impose the same requirement of motive or purpose in this
area as well.
-18-

The majority's opinion is, at best, insensitive to the preservation of the rights
guaranteed by the Educational Employment Relations Act (EERA). 	Section 3540 gives
employees the right to ". . . join organizations of their own choice, to be repre-
sented by such organizations in their professional and employment relationships with
public school employer, 	[and] 	to select one employee organization as the exclusive
representative . 	. 	. ." 	Defeat of these rights does not necessarily depend on the
existence of anti-employee organization motivation. 	Activity protected by the EERA
acquires a precarious status indeed if the employer is allowed without substantial
financial justification to reduce existing benefits coincidental with the employees'
exercise of rights granted them by the EERA.
The majority, in reaching their conclusion, states,
The United States Supreme Court has held that the finding of a Section
8(a)(3) violation [of the National Labor Relations Act] 	will normally
turn on the employer's motivation. 	See American Ship Building Co. v.
NLRB, 380 U.S. 300, 58 LRRM 2672, 2676 (1965). 	Section 8(a)(l) [of
the National Labor Relations Act] 	makes it unlawful simply to inter-
fere with employees in the exercise of Section 7 rights; and "dis-
couragement" in NLRA Section 8(a)(3) suggests that motivation is a
key factor in any Section 8(a)(3) violation.
Unlike Section 8(a)(1) of the NLRA, Government Code Section 3543.5(a)
seems to make motive or purpose a requirement for a violation. 	The
pertinent part of Government Code Section 3543.5(a) reads: 	"It shall
be unlawful for a public school employer to : 	(a) . . . interfere
with, restrain or coerce employees because of their exercise of rights
guaranteed by this chapter." 	[Emphasis added.] 	Interference "because
of" is quite different from mere "interference in". 	"Because of"
connotes interference with or without an unlawful intent.
The language of the Educational Employment Relations Act (EERA) and the National
Labor Relations Act (NLRA) is similar but not identical.
8
In fact, 	the language
2Section 3543.5(a) of the EERA states:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals on employees, to discriminate
or threaten to discriminate against employees, or otherwise to interfere
with, restrain, or coerce employees because of their exercise of rights
guaranteed by this chapter.
Section 8(a)(l) and (3) of the NLRA state:
Sec. 	8.(a) It shall be an unfair labor practice for an employer—
(1) To interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7;
******
(3) By discrimination in regard to higher or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization: 	. . . .
-19-

of Section 3543.5(a) of the EERA is much more sweeping in its prohibition than
that of the NLRA. 	That conduct which is prohibited by Section 8(a)(3) of the
NLRA is only discrimination which encourages or discourages membership in a
labor 	organization.3 	Section 3543.5(a) of the EERA prohibits discrimination of
any kind against employees because they exercised any rights guaranteed in the EERA.
Even under the more restricted prohibited conduct of the NLRA, however, 	the National
Labor Relations Board (NLRB) and the United States Supreme Court, in interpreting
Section 8(a)(3), have determined that when the discriminatory conduct is inherently
destructive of important employee rights, no proof of anti-union motive or intent
is necessary to establish a violation, even if the employer introduces affir-
mative evidence of business justifications. 	See NLRB v. Great Dane Trailers,
Inc.,
4
and NLRB v. 	Fleetwood Trailer 	Co.5 	Conversely, when the harm to employee
rights is comparatively slight and the employer's conduct is lawful on its face
and serves a substantial and legitimate business end, an affirmative showing of
unlawful motivation must be demonstrated. 	See NLRB v. Brown
x and American Ship
Building Co. v. NLRB.
American Ship Building Co. v. NLRB, relied upon by the majority, involved an em-
ployer lock-out to gain bargaining leverage after impasse had been reached in
negotiations for contract renewal. 	The Court sought to balance the employer's
right to manage its enterprise in a relatively unfettered fashion against the
rights guaranteed to employees by the NLRA. 	Concluding that some proof of un-
lawful motivation was both necessary and absent, 	the Court found that the lock-
out is not "one of those acts which is demonstrably so destructive of collective
bargaining that the Board need not inquire into employer motivation."
8
The
Court went on to state that while in some cases "the employer's conduct carries
with it an inference of unlawful intention so compelling that it is justifiable
to disbelieve the employer's protestations of innocent purpose,"9 a bargaining
3 NLRB v. Erie Resistor Corp., 373 U.S. 221, 53 LRRM 2121 (1963).
388 U.S. 26, 65 LRRM 2465 (1967).
5 389 U.S. 375, 66 LRRM 2737 (1967).
380 U.S. 278, 289, 58 LRRM 2663 (1965).
7 380 U.S. 300, 311-313, 58 LRRM 2672 (1965).
8 Id. 	at 310.
-20-
9Id. at 311-312.

lock-out after impasse is not such a case. 	The majority, in reliance on
American Ship Building Co. has refused to take cognizance of the substantial
difference in the relative ability of employees to protect themselves from re-
taliation prior to and subsequent to the selection of an exclusive representative.
The words "because of" contained in Section 3543.5(a) do not contemplate specific
manifestation of a deliberate intent to violate that section. 	Rather, the only
thing these words mean is that the employer did something which it would not
have done except that employees exercised the rights guaranteed by the EERA.
In other words, 	the employer did something because the employees exercised rights
guaranteed by the EERA. 	Not all action taken by an employer as a result of the
employees' exercise of rights guaranteed by the EERA is unlawful, only that which
interferes with, restrains, coerces or discriminates against employees. 	Inter-
ference, restraint, coercion or discrimination may be the result of an employer's
conduct, even though that result was not intended. 	The majority by its decision
today has not only robbed the Board of the ability to remedy such conduct, it
has given employers a free hand to do whatever they may so long as they do not
admit that the action was taken because the employees engaged in activity pro-
tected by the EERA.
There is an inherent inequity between an employer and its employees. 	Both the
NLRB and the U.S. 	Supreme Court have long recognized that this inequity places
special obligations and limitations not present in other contexts on employers
in dealing with their employees. 	Compare the Court's discussion of First Amend-
ment rights in NLRB v. Gissel Packing Co., 395 U.S. 575, 71 LRRM 2481 (1969),
with New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 	This inequity is par-
ticularly susceptible to exploitation during the initial organizational stages
and the infancy of the negotiating process. 	Thus, this Board ought to be jealous
of its authority to ensure that the rights established by the EERA are protected.
The majority has imposed a more restricted interpretation on the Board's ability
to protect these rights than that imposed by the U.S. 	Supreme Court in inter-
preting more restrictive language.
II
In the instant case, 	even under the majority's view that motive is a requisite
element to establish a violation of Section 3543.5(a), a violation is established.
The employer's repeatedly stated reason for insisting on changing the personnel
policies in question prior to July 1, 	1976, was that it desired to put itself
in a better negotiating position prior to the date it was obligated to meet and
-21-

negotiate with an exclusive representative under the terms of the EERA. 	Trustee
Doug Fouquet stated at the May 27, 	1976 Board of Trustees meeting that:
The Board felt that, in view of the change in the law, we had to revise
the wording of many of our policies as of July 1st. 	There will be an
opportunity for meet and confer prior to that time and I would cer-
tainly assume after that time, but we still got to get our own books
in order with the way the new law reads as of July 1st.
The District's chief negotiator reiterated the sentiment at the June 9, 	1976
certificated employee counsel (CEC) meeting, that:
. 	. 	. you know we're starting a whole new ball game and that ball game
is going to start from—ah—we would like to have one level of policy
and you would like to have another and its going to be something in
between that, and gradually we're going to put things back into the
policy that we will agree on on certain condition.
At the June 14, 	1976 CEC meeting with the District, the District's principle
negotiator stated the whole matter very succinctly:
They 	[the District] are not willing to go along with some of the pol-
icies they have right now as the starting point of negotiation. 	They
are not happy with them right now.
Trustee Dave Thompson at the June 24, 	1976 meeting of the Board of Trustees, when
asked why the policies in dispute had to be changed at that time since they had
been in effect since 1974, stated:
. 	. 	. the board has taken the position that they desire the policies
to be in effect as of July 1st and, um, or I think they will.
It is clear that the District, anticipating that an exclusive representative would
be selected by its certificated employees, decided to change certain of its policies,
In most instances, 	the change was to lower existing benefits described in these
policies. 	Moreover, it is clear from the record as a whole that the District was
fixed in its approach and determination to either lower or rescind certain of its
policies and that it entered meet and confer sessions with the CEC with this in
mind. 	The sole justification proffered by the District for these reductions in
fringe benefit levels was the declining financial prospects of the District. 	How-
ever, no evidence was introduced by the District to support its contention that
its financial posture mandated such a reduction in policies at that time. 	It is
hard to imagine conduct more fitting the description of a "fist inside the velvet
glove" decried by the Supreme Court in NLRB v. Exchange Parts Co., 375 U.S. 405,
55 LRRM 2098 (1964).
The mere fact that the District did not mount a vigorous no representation cam-
-22-

paign in no way nullifies or mitigates against the coercive impact of its reduction
in benefits for the avowed purpose of placing itself in a better bargaining po-
sition. 	It is clear that but for the exercise of the rights guaranteed by EERA,
specifically "the right of public school employees to join organizations of their
own choice, 	to be represented by such organizations in their professional and
employment relationships with public school employers, 	to select one employee
organization as the exclusive representative of the employees in an appropriate
unit, 	. 	. 	." 	the employer would not have changed the policies in question.
While it may be true that the District is in a difficult financial situation,
a matter upon which no evidence was introduced or taken, the District did not
rely on its financial misfortunes as justification for reducing its benefits.
Moreover, if the District is indeed in financial straits, it is well understood
that financial necessity is ample justification for negotiating reduced wages
and other terms and conditions of employment. 	Certainly nothing in the concept
or traditional interpretation of the policy of collective bargaining or collec-
tive negotiations mandates that wages and fringe benefits must be increased with
each successive contract. 	While it is in the nature of things that employees
seek more with each contract, more cannot be had, or even the status quo main-
tained, if the employer does not have the money with which to do it. 	Even in
the private sector, where employers generally do not operate within the same
fiscal restraints as the public school system, the U.S. Supreme Court has acknowl-
edged wage decreases as legitimate.
Nor do I agree with the majority that the employee organization, in the circum-
stances of this case, was obligated to separately challenge the District's per-
sonnel changes first stated on May 27, 	1976 and promulgated on August 26, 1976..12
10
Gov. Code Sec. 3540. 	(Emphasis added.)
11In NLRB v. Truitt Mfg. Co., 	351 U.S. 149, 38 LRRM 2042 (1959) the Court stated:
The ability of an employer to increase wages without injury to his
business is a commonly considered factor in wage negotiations.
Claims for increased wages have sometimes been abandoned because
of an employer's unsatisfactory business condition; employees have
even voted to accept wage decreases because of such conditions.
12
Some of these proposed changes are clearly matters of management prerogative;
others are questionable. 	However, the District itself chose to present them
to the employees. 	Having once done so, I do not think the employee organiza-
tions are obligated to refrain from opinion and comment.
-23-

Discussion between the District and the employee organizations on both the May
25 and May 27 proposals was not segmented but rather occurred simultaneously.
In fact, at least one of the May 27 proposals, that concerning assignment, was
certified to factfinding along with the other matters proposed on May 25 about
which persistent disagreement was declared.
The District had declared it was going to change the personnel policies. 	All
requests for delay of the June 24 action were rejected. 	Request for delay of
the August action was made. 	There was no reasonable basis for believing another
round of requests would have altered in any way the District's intent to adopt
the policy 	changes. 	To require the charging party to partake in more futility
would be to require them to pump oil from a dry hole.
III
In concluding that the District had not violated Section 3543.5(d), a conclusion
with which I am in accord, the hearing officer stated:
The unfair practice in Section 3543.5(d) is the encouragement of em-
ployees to join one organization over another. 	In this case, "no
representation" has not been shown to be an employee organization.
Moreover, the EERA does not make it an unfair practice for an employer
to urge its employees to vote for "no representation" so long as the
employer conducts itself lawfully. 	Here, the evidence does not in-
dicate that respondent even attempted to mount a "no representation"
campaign.
Charging Party's Section 3543.5(d) charge is without merit. 	No unfair
practice was committed under Section 3543.5(d).
The majority also concludes that no violation of this section was committed. 	It
seems to acknowledge that a violation of this section may occur in circumstances
other than when an employer is seeking to encourage employees to vote for one
organization over another or when an employer has mounted a "no representation"
campaign. 	However, it has not specifically rejected the hearing officer's
conclusion that these are requisite elements of a Section 3543.5(d) violation.
I wish to do so.
The purpose of a provision such as Section 3543.5(d) is to insure that an organ-
ization purporting to act on behalf of employees in the negotiating relationship
not be rendered so subject to employer control or dependent upon employer favor
as to deprive it of the will and capacity to give its wholehearted devotion to
the interest of the employees it represents. 	An employer may engage in conduct
-24-

violative of this section even in the absence of competing employee organizations.
See Hotpoint Division, General Electric Company, 	and Duquesne University of
the Holy Ghost. 14
IV
Both the charging party and the District object to the hearing officer's equation
of the right of an employee organization to represent its members in Section
3543.l(a) with the employer's obligation to consult with an exclusive repre-
sentative described in Section 3543.2. 	I agree with the apparent opinion of
the majority that these two sections of the EERA are not 	synonymous. 	I do
not think that the right of a non-exclusive employee organization to represent
its members encompasses an obligation on the part of the employer to reach
agreement with the non-exclusive representative. 	The employer here solicited
the views of the non-exclusive representatives, listened to them, modified some
of its proposals and refused to modify others. 	This pattern of behavior afforded
the non-exclusive representatives the opportunity to represent their members as
contemplated by Section 3543.1(a). 	Accordingly, I agree that there is no
violation of Section 3543.5(b).
V
Finally, I do not believe that the validity of the retroactive amend-
ments to the EERA 	may be summarily assumed without comment. 	True, as the majority
implies, legislative enactments assume a strong presumption of validity. 	However,
as the California Supreme Court has stated in Southern Pacific Transportation Co.
v. Public Utilities Commission,17
An administrative agency's obligation to adhere to the Constitution
is not limited to mere promulgation of rules, but extends to the
agency's application of legislation to the facts presented. 	[Citations
omitted.] 	Obviously, administrative agencies, like police officers
[citations omitted] must obey the Constitution and may not deprive
persons of constitutional rights.
13 128 NLRB 788, 46 LRRM 1421 (1960).
14 198 NLRB 891, 81 LRRM 1091 (1972).
I do not agree that the obligation to "consult" established by Section 3543.2
is the same as the obligation to "meet and confer" enunciated in the now re-
pealed Winton Act. 	However, I find it unnecessary to reach any definition of
consultation here inasmuch as the obligation is only imposed on an employer in
dealing with an exclusive representative and there was no exclusive representative
at any material time.
l63B 1471, Stats. 1976, ch. 421.
1 7 18 Cal. 3d 308, at footnote 2, 311 (1976).
-25-

In a few cases involving the question whether a litigant may raise
constitutional issues in court when he has not exhausted administra-
tive remedies, it has been indicated that administrative agencies
may not determine the validity of statutes, invalidating the leg-
islative will. 	[Citations omitted.] 	The exhaustion question, of
course, involves a number of considerations other than whether a
statute excuses an administrator from his constitutional duties.
Taken literally, the two lines of authority are difficult to reconcile.
When the United States Supreme Court, for example, repudiates the
separate but equal doctrine established by the statutes of one state,
should the school boards of other states continue to apply identical
statutes until a court declares them invalid; should the boards, recog-
nizing the potential denial of constitutional rights, enforce the Con-
stitution on a case-by-case basis without considering whether the
statutes may be enforced in some other case; or should the boards
recognize the invalidity of the statutes? 	The first position will
result in denial of constitutional rights; the second, although pro-
tecting constitutional rights, is wasteful, ignores reality and compels
intellectual dishonesty insofar as the administrator must close his
eyes to the fact that deprivation of constitutional rights will occur
in all cases to which the statute may be applied. 	Only the third
complies with the board's duty to determine and follow the law.
In Hand v. Board of Examiners in Veterinary Medicine, 18 a case relied upon by the
majority, the appellate court determined that only administrative agencies of
constitutional origin may determine whether statutes enacted by the legislature
were constitutional. 	The court relied upon the constitutional separation of
powers between the legislative, executive and judicial branches. 	The instant
case, however, unlike Hand but like Public Utilities Commission, is one in which
a party before the agency contests the agency's basic jurisdiction to pass on
the merits of the case before it. 	While it is one thing to say that a litigant
need not raise questions concerning the validity of the enabling legislation
before the administrative agency, it is quite another to say that the admini-
strative agency must not rule on the challenge to 	its enabling legislation once
raised. 	In the instant case a litigant contends that we lack authority to hear
the merits of the case. 	An initial decision by this agency on the 	validity of
SB 1471 in no way usurps the authority of the courts to determine the ultimate
issue. 	Nor does it in any way infringe on the authority of the legislature to
enact legislation. 	It is merely ensuring that we attempt to exercise the authority
of the Board in a fashion consistent with the Constitution of the State of
California.
l 8 66 Cal. App. 3d 605, 618-620 (1977).
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The EERA as originally enacted, i.e., SB 160, gave school district employees the
right to organize and join employee organizations for the purpose of meeting and
negotiating with the school districts, effective April 1, 1976. 	However, it
provided no remedy if the rights guaranteed to employees were infringed upon
between April 1, 	1976 and July 1, 1976. 	While it was not filed with the Secretary
of State until July 10, 	1976, SB 1471 was introduced into the Senate on January
23, 	1976. 	SB 1471, in essence, provided a remedy otherwise lacking in SB 160 in
the event that the rights granted by SB 160 were abridged.
In the general course of things, in determining the validity of retroactive legis-
lation, the social benefits of the rights gained must be balanced against the
harm a retroactive application may cause. 19
In the instant case the legislature established the public policy of, among other
things, 	" . . . providing a uniform basis for recognizing the right of public school
employees to join organizations of their own choice, to be represented by such
organizations in their professional and employment relationships with public
school employers, 	[and] 	to select one employee organization as the exclusive
representative of the employees in an appropriate unit, 	. 	. 	. ." 	As the hearing
officer in this case stated, "[a] right without a remedy is no right at all."
By enacting SB 1471 the legislature obviously intended to prohibit conduct which
abrogated the rights it had granted public school employees 	coincidental 	with
the date that public school employees received those rights. 	The question then
becomes whether the district's right to manage its employer-employee relations
without consideration of the rights granted to employees in their employment
relationship with the school district must give way at all, or to what extent, to
a consideration of the rights granted to employees by SB 160. 	It is a well-estab-
lished principle that the courts will not recognize an even arguably vested right
if they find that the "right" is the power to do wrong. 	Cohen v. Wright, 22 Cal.
293, 327 (1863). 	The validity of a retroactive statute is questionable when some
vested right has been harmed. 	Kenney v. Wolff, 	102 Cal.App.2d 132 (1951). 	Since
the general policy articulated by the legislature as the purpose of the passage
See "The Supreme Court and the Constitutionality for Retroactive Legislation,"
73 Harv.L.Rev. 692 (1960); "Constitutional and Legislative Considerations in
Retroactive Law Making," 48 Cal.L.Rev. 216 (1960) and "Retroactivity of the
1975 California Community Property Reforms," 48 So.Cal.L.Rev. 977 (1975).
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of SB 160 is to ". 	. 	. promote the improvement of personnel management and employer-
employee relations within the public school systems in the State of California . 	. 	.'
we must determine whether SB 1471 promoted that policy and general object. 	It is
axiomatic that sound personnel management and employer-employee relations would
be seriously undermined if employees sought to exercise rights granted them by
the legislature, were wronged as a result of that exercise and the wrong was
unable to be redressed.
By 	Jerilou H. Cossack, 	Member
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20
Since Section 3543.5(c) 	relates to rights which were not fully granted by either
SB 160 in its original form or by SB 1471, 	I do not consider here whether the
legislature intended to make this section of the act retroactive to April 1, 1976.