Ross School District Board of Trustees (PERB 0048E)

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STATE OF CALIFORNIA
DECISION OF THE PUBLIC
EMPLOYMENT RELATIONS BOARD
In the Matter of:
ROSS SCHOOL DISTRICT TEACHERS
ASSOCIATION,
Charging Party,
vs.
ROSS SCHOOL DISTRICT BOARD OF
TRUSTEES,
Respondent.
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) 	Case No. SF-CE-39
PERB Decision No. 	48
February 21, 	1978
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Appearances: 	David P. McCullum, Attorney, for Ross School District Teachers
Association; Margaret O'Donnell, Attorney (Breon, Galgani and Godino), for
Ross School District Board of Trustees.
Before Gonzales and Cossack Twohey, Members.
OPINION
This case is before the Public Employment Relations Board on the Ross
School District Board of 	Trustees' exception to the hearing officer's
Recommended Decision, dated October 21, 1977, in the above-captioned unfair
practice charge. 	The Ross School District Board of Trustees takes exception
to "the conclusion of law that the Educational Employment Relations Act (EERA)
Government Code, Section 3549.1(a) requires that negotiating sessions between
a public school employer and the exclusive representative be closed to the
public unless the parties mutually agree otherwise."
The Board has considered the record and the Recommended Decision in

1light of the exception, 	stipulated facts and briefs. 	We affirm the findings
of fact, 	the discussion and conclusions of law of the hearing officer, 	and
adopt his recommended order.
By: 	Raymond 	J. Gonzales, 	Member 	JerilouJ erilou Cossa:dt Twohey, 	Member
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Member Twohey would have accepted Charging Party's response to the
District's 	exceptions since the hearing officer's recommended decision had
already been appealed to the Board, 	requiring the Board to examine the
record. 	However, 	in this case Charging Party has prevailed in all material
respects. 	Charging Party would derive no benefit 	from delaying issuance of
this decision in order to consider its response to the District's exceptions .
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EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OF CALIFORNIA
In the matter of:
ROSS 	SCHOOL DISTRICT TEACHERS
ASSOCIATION, Charging 	Party,
vs.
ROSS 	SCHOOL DISTRICT BOARD OF
TRUSTEES,
Respondent.
CASE No. 	SF-CE-39
RECOMMENDED 	DECISION
October 21, 	1977
Appearances; 	Donald P. 	McCullum, 	Attorney, 	for 	Ross School District
Teachers Association; 	Margaret O'Donnell, 	Attorney 	(Breon, 	Galgani
and Godino) 	for 	Ross 	School District 	Board of 	Trustees.
Before Gerald A. 	Becker, 	Hearing Officer.
PROCEDURAL 	HISTORY
On December 	21, 	1976, 	the Ross School District
Teachers 	Association 	(hereinafter 	"Association") 	filed 	an 	unfair
practice 	charge 	against 	the 	Ross 	School 	District 	Board 	of 	Trustees
(hereinafter 	"District") 	essentially 	alleging 	that 	the 	District
violated Government Code 	§§ 	3543.5(b) 	and 	3543.5 (c) 	by unilaterally
requiring 	that 	negotiating 	sessions 	with 	the 	Association 	be 	open 	to
the 	public. 	The 	District 	filed 	an 	answer 	not 	denying 	the 	factual
allegations of 	the 	charge, 	but 	affirmatively alleging 	that 	it
interprets Government Code 	§3549.1(a) 	to support 	its position, 	which
position 	is 	in 	accord with 	the wishes of 	the community.

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Instead of 	holding 	a hearing, 	the 	parties 	agreed 	to
submit 	the matter 	to this 	hearing officer 	for 	a 	recommended 	decision
based 	on 	a 	stipulated 	statement 	of 	facts 	and 	written 	briefs. 	The
essential 	stipulated 	facts 	are 	summarized 	below 	under 	Findings 	of
Fact.
ISSUE
Can 	one 	party 	unilaterally 	insist 	that 	negotiating
sessions 	under 	the 	EERA between 	an 	exclusive 	representative 	and 	a
public 	school 	employer's 	designated 	representative 	be 	open 	to 	the
public?
FINDINGS 	OF 	FACT
The 	essential 	stipulated 	facts may 	be 	summarized 	as
follows:
From 	the 	start 	of 	negotiations 	for 	the 	1976-77 	school
year, 	pursuant 	to a vote of 	its governing 	board, 	the District 	insis-
ted 	that 	all 	negotiating 	sessions 	be 	open 	to the public. 	The Asso-
ciation 	negotiated 	with 	the 	District's 	negotiations 	representatives
in public 	under 	protest. 	Its 	requests 	to 	the 	District 	to 	reconsider
its position were 	to no avail.
The 	parties 	negotiated 	in public on 	19 occasions 	be-
tween December 	20, 	1976 and May 3, 	1977, 	for periods of 	time ranging
between one-half 	and 	five 	hours 	for 	a 	total of 	52 	hours. 	Between
three 	and 	eleven members 	of 	the 	public 	attended 	the 	negotiating
sessions 	through early March, 	1977. 	There 	is 	no evidence 	as 	to how
many attended 	thereafter. 	On May 	9, 	1977, 	agreement was 	reached

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between 	the 	Association 	and 	the 	District 	for 	July 	1, 	1976 	through
lJune 	30, 	1978. 	However, 	under 	a 	"reopener" 	clause 	in 	the
contract, 	certain 	topics presently 	are 	being 	renegotiated.
The 	District's 	position 	to 	negotiate 	in public was 	in
accord 	with 	the 	wishes 	of 	the 	community. 	The 	District 	claims 	that
open 	sessions 	eliminated 	the 	need 	for 	interim, 	written memoranda 	on
items 	upon 	which 	agreement 	had 	been 	reached, 	and 	that 	through 	early
March, 	1977, 	the 	negotiating 	sessions were 	free 	from 	"inflammatory
interpretations 	and 	accusations" 	on 	both 	sides.
DISCUSSION 	AND 	CONCLUSIONS 	OF 	LAW
The 	arguments 	of 	the 	parties 	focus 	on 	the 	language 	of
Government 	Code 	§3549.1 	of 	the 	Educational 	Employment 	Relations 	Act
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(EERA) 	which provides 	as 	follows:
3549.1. 	All 	the proceedings 	set 	forth 	in
subdivisions 	(a) 	to 	(d), 	inclusive, shall be
exempt 	from 	the 	provisions 	of 	Sections 	965 	and
966 of 	the 	Education 	Code, 	the 	Bagley Act 	(Ar-
ticle 	9 	(commencing with 	Section 	11120) 	of Chap-
ter 	1 of 	Part 	1 of 	Division 	3) 	and 	the 	Ralph M.
Brown 	Act 	(Chapter 	9 	commencing 	with 	Section
54950)of 	Part 	1 of 	Division 	2 of 	Title 	5,
unless 	the 	parties 	mutually 	agree 	otherwise:
(a) 	Any meeting 	and 	negotiating 	discussion
between 	a 	public 	school 	employer 	and 	a 	recog-
nized 	or 	certified 	employee 	organization.
l Although 	the 	stipulated 	statement 	of 	facts 	indicates 	that 	th
agreement 	is 	for 	only 	the 	1976-77 	school year, 	official 	notice 	i
taken 	of 	the 	agreement 	on 	file 	in 	the 	San 	Francisco 	Regional 	Offic
pursuant 	to 	EERB Regulation 	32120, 	which 	agreement 	states 	that 	it 	i
operative 	through June 30, 	1978
Government 	Code 	§§3540 	et seq.

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(b) 	Any meeting 	of 	a mediator 	with 	either
party or 	both 	parties 	to 	the 	meeting 	and 	negoti-
ating process,
(c) 	Any hearing, meeting, or 	investiga-
tion conducted 	by a 	factfinder 	or 	arbitrator.
(d) 	Any executive 	session of 	the public
school 	employer 	or 	between 	the 	school 	employer
and 	its 	designated 	representative 	for 	the 	purpose
of 	discussing 	its 	position 	regarding 	any matter
within 	the 	scope of 	representation 	and 	instructing
its 	designated 	representatives.
Subsection 	(a) 	clearly exempts 	negotiating 	sessions 	between a public
school 	employer 	and 	an 	exclusive 	representative 	from various 	open
meeting laws 3/ unless the parties agree otherwise. In addition to
the 	public 	meeting 	requirement, 	other 	exempted 	requirements 	concern
the 	taking 	of 	minutes 	and public 	notices 	and agendas.
But 	a 	literal 	reading 	of 	§3549.1 	does 	not provide 	a
complete 	answer 	to 	the question here 	for 	two reasons. 	First, 	the
exempted open meeting 	requirements 	apply only 	to meetings 	of 	a
quorum of 	the school board. 	See Government Code 	§54952.3; 	32 Ops.
Cal. 	Atty. Gen. 	240 	(1958). 	Since meetings of 	less than a quorum or
having only 	school board representatives 	in attendance 	(e.g. 	a negotiat-
ing session) 	are not 	subject 	to 	the open meeting laws, 	limiting our
discussion 	for 	the moment 	to 	the 	exemptions 	themselves 	in 	§3549.1,
it would 	be meaningless 	surplusage 	to construe 	§3549.1 	to exempt
such 	already exempt meetings. 	Such a construction 	is 	to 	be 	avoided
3 The 	exemption 	from 	the 	Bagley Act 	appears 	to be 	superfluous 	since
by 	its 	terms 	it does 	not 	apply 	to 	school 	districts. 	Read Government
Code 	§1121 of 	the 	Bagley Act 	in conjunction with Government 	Code
§54951 of 	the Brown Act. 	The apparent explanation 	is 	that Govern-
ment Code 	§3549.1 was 	amended 	into 	SB 	160 	by the 	Assembly 	and was
taken 	almost 	in 	its 	entirety 	from AB 	1781 	of 	the 	same 	legislative
session which 	applied 	to 	all public 	employees.

(45 Cal. 	Jur. 2d, "Statutes," §117) 	and 	thus 	the exemptions
themselves 	in 	§3549.1 must 	apply only 	to 	actual meetings 	of 	the
school 	board 	itself.
The 	second 	reason 	why 	a 	literal 	reading 	of 	§3549.1
does 	not 	provide 	a 	complete 	answer 	is 	that 	exemption 	from mandatory
open meetings 	does 	not 	necessarily 	imply 	the 	opposite, 	i.e., 	that
all 	negotiating 	sessions must 	be 	in private. 	Nevertheless, 	as
discussed 	below, 	the overall 	treatment 	in 	the 	EERA of 	public
participation 	in 	the negotiations 	process, 	as well 	as 	a 	review
of 	the 	authorities 	from other 	jurisdictions, 	leads 	to 	the 	conclusion
that 	negotiating 	sessions 	are 	intended 	to 	be 	private 	unless 	both
parties 	agree 	otherwise.
The 	EERA provides 	for 	public 	participation 	in 	only
certain 	portions 	of 	the 	negotiations 	process. 	Government 	Code 	§3547
requires 	all 	initial 	negotiating proposals 	to 	be made 	public. 	New
subjects 	of 	negotiations 	similarly must 	be made 	public 	within 	24
hours. 	Also, 	upon conclusion of 	negotiations, 	the Brown Act
requires 	the 	school 	board's 	ratification of 	the 	agreement 	to 	be 	at
an 	open meeting. 	Under 	the 	Public 	Records Act 	(Government 	Code
§6250 et 	seq.), 	the written agreement 	also becomes a public 	record
when 	filed 	with 	the 	EERB 	Regional 	Office 	as 	required 	by 	EERB
Regulation 	32120.
Having 	provided 	for 	public 	disclosure 	essentially 	only
at 	the 	opening 	and 	close of 	negotiations, 	it must 	be 	assumed 	that
the 	Legislature 	did 	not 	intend 	that 	the 	intermediate 	portions 	of 	the
negotiations 	process 	be 	subject 	to public 	scrutiny. 	Government Code
§3547(d), 	which 	requires 	new negotiations 	subjects 	to be made public
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within 24 hours after they arise, 	assumes that negotiations will be
private. 	Private 	strategy sessions between the employer 	and 	its
negotiator 	are authorized by Government Code 	§3549.l(d). 	See also
Government Code 	§54957.6. 	Government Code 	§3549.1(a) 	specifically
exempts 	negotiating 	sessions conducted by the 	school board 	itself
from open meeting requirements. 	If 	negotiating sessions with the
school board 	itself 	are not required 	to be open unless the parties
agree otherwise, 	there is no reason why a different result should
obtain when the board conducts negotiations 	through a representative
as permitted by Government Code §3543.3.
Subsections 	(b) 	and 	(c) 	of §3549.1 exempt mediation
and 	factfinding 	from the Brown Act. 	The 	legislative 	intent must
have been to guarantee 	the privacy of 	such sessions without 	the
school board in attendance 	since most 	fact-finding or mediation
sessions 	do not take place during a school board meeting. 	As
with negotiations, 	these activities 	traditionally are conducted in
private. 	(See Government Code 	§3548.3 which provides 	that 	fact-
finding reports 	are to be 	submitted to 	the parties privately.)
Respondent's 	argument 	that exemption 	from the open
meeting 	requirement merely 	leaves 	the 	issue of 	closed negotiations
undecided 	is answered 	by considering 	the exemption 	in light of 	the
above discussion and the phrase, 	"unless the parties mutually agree
otherwise." 	While this 	language could have been more clearly
drafted, 	it is apparent when read in context that the legislative
intent 	is 	to protect certain aspects of 	the negotiations process

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from public 	scrutiny unless 	both parties 	agree 	otherwise. 	Thus 	it 	is
found 	that 	the 	legislative 	intent 	of 	§3549.1 	is 	not 	only 	to 	exempt
negotiations-related 	school 	board 	meetings 	from 	open 	meeting
requirements, 	but 	also 	to guarantee 	the 	privacy of 	the 	enumerated
activities 	unless 	both parties 	desire 	the presence of 	the 	public.
In 	other 	states 	with 	public 	employee 	collective
bargaining 	statutes 	the 	issue 	of 	public 	bargaining 	has 	been 	con-
fronted with 	similar 	results. 	In 	Pennsylvannia 	it was 	held 	that 	:
"The 	parties 	can 	only 	impose 	their 	presence
upon 	each 	other. 	Bringing 	in 	non-mutually-
agreed-upon 	third 	parties 	is 	a 	violation of
the 	obligation 	of 	the 	party 	who 	brought 	the
third 	party 	into 	the 	negotiations."
(Bethlehem Area 	School 	District 	(Pa. 	1973)
3 PPER 102, 104.
At 	the 	time, 	Pennsylvannia 	had 	no open meeting 	law 	and 	no 	reference
in 	its 	Public 	Employee 	Relations 	Act 	to open or 	closed 	negotiating
sessions. 	The 	Board 	did 	note 	that 	its 	Act provided 	for 	public
disclosure when deemed 	beneficial 	to 	the 	public 	interest, 	i.e., 	of
fact 	finders' 	reports 	in certain circumstances.
In Massachusetts, 	the rule 	is the same.
"The 	underlying 	principal 	(sic)
for 	this 	rule 	is 	that 	open collec-
tive 	bargaining 	sessions 	may 	have
the 	effect 	of 	inhibiting 	'the 	give
and 	take 	so necessary 	for 	success-
ful 	bargaining.'"
(Town of Norton 	(Mass. 	1976) 	3 MLC
1140, 	1141; 	see also Town of Marion
(Mass. 	1975) 	2 MLC 1256; 	Town of Win-
chendon 	(Mass. 	1976) 	3 MLC 131b.;)
Massachusetts's 	open 	meeting 	law 	allows 	for 	executive 	sessions 	to
conduct 	collective 	bargaining 	sessions. 	It 	was 	held 	that 	this 	law
allows 	for 	open 	bargaining 	sessions 	only 	if 	agreeable 	to 	both
parties. 	If one party refuses, 	however, 	continued 	insistence on

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open 	sessions 	by 	the other 	party constitutes 	a per 	se 	violation of
the duty to bargain 	in good 	faith. 	Town of Norton, 	supra, 	at 1142;
Town of Winchendon, 	supra, 	at 1317.
See also, Opinion of Counsel 	(N.Y. 	1976) 	9 PERB 5013 .
A public 	employer 	may 	not 	unilaterally 	permit 	outside 	participation
in negotiations. 	Cf. 	Bassett v. 	Braddock 	(Fla. 	1972) 	262 So.2d
425, 	80 	LRRM 2955 and Talbot v. 	Concord Union School District
(N.H. 	1974) 	323 A.2d 912, 	87 LRRM 3159, 	which held that despite
open meeting 	laws, 	the 	public 	had 	no 	right 	to attend 	negotiating 	ses-
sions. 44 	In 	the 	Bassett case, 	the 	Florida 	Supreme Court 	noted 	the:
"impressive, 	uncontroverted 	testimony
by 	respectable 	national 	authorities 	in
the 	field 	, 	that meaningful collective
bargaining 	in 	the 	circumstances 	here
would 	be 	destroyed 	if 	full 	publicity were
accorded 	at 	each 	step of 	the 	negotiations."
(262 So.2d 425, 	426)
There 	is 	no NLRB precedent 	directly on 	point 	since 	the
federal 	law concerns only private, 	and 	not public, 	sector
bargaining. 	However, 	in L.G. 	Everist, 	Inc. 	(1953) 	103 NLRB 308,
309, 	31 LRRM 1553, 	the NLRB held, 	among other 	things, 	that the
employer's 	insistence 	upon 	bargaining 	in 	the 	presence 	of
rank-and-file 	employees 	"was 	contrary 	to 	uniform 	industrial 	practice
and was 	not 	conducive 	to 	the orderly, 	informal 	and 	frank discussion
of 	the 	issues... 	." 	See also Fruit Packers v. 	NLRB 	(D.C. 	Cir. 	1963)
316 F. 	2d 389, 	52 LRRM 2537, 	2538.
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The 	Bassett 	case 	has 	been 	legislatively overruled 	. 	By 	statute,
negotiating 	sessions 	now 	are 	required 	to be 	open 	to 	the public. 	See
2 Fla. 	St. 	L. Rev. 	537, 	540 	(1974). 	There is no similar statute in
California.
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In Architectural Fiberglass 	(1967) 	165 NLRB 238, 	239,
65 LRRM 1331 and Southern Transport, 	Inc. 	(1964) 	150 NLRB 305, 	58
LRRM 	1017, 	cases 	respectively 	involving 	insistence on 	the 	use 	in
negotiations 	of 	a 	tape 	recorder 	and 	a 	binding 	verbatim 	transcript 	of
the 	bargaining 	sessions, 	the 	NLRB viewed 	the 	actions 	in 	the 	context
of 	the 	respondent's entire 	course of 	conduct, 	and 	in 	both 	cases
found 	that 	unilateral 	insistence 	on 	these 	preconditions 	consti-
tuted 	bad-faith 	bargaining. 	The Eighth 	Circuit 	denied 	enforcement 	of
the 	latter 	case, 	however, 	noting 	that 	a 	verbatim 	transcript would
not 	inhibit 	negotiations 	since 	the 	parties were 	free 	to 	engage 	in
"off-the-record" 	statements 	and 	discussion. 	NLRB v. 	Southern
Transport, 	Inc. 	(8th Cir., 	1966) 	355 F. 	2d 978, 	61 LRRM 2277, 	2280.
In the present 	case, 	there 	is no 	indication that 	the District
permitted 	such 	off-the-record 	discussion.
Therefore, 	in 	view of 	the 	above 	discussion 	and 	autho-
rities, 	it 	is 	concluded 	that 	one 	party 	to negotiations 	may 	not
unilaterally 	insist on 	public 	negotiations 	sessions, 	and 	that 	to do
so constitutes 	a 	refusal 	to meet 	and 	negotiate 	in good 	faith 	under
Government Code 	§3543.5(c). 	Having so 	found, 	it 	follows 	that
Government 	Code 	§3543.5(b) 	also 	has 	been violated by 	the 	District
since 	its 	actions 	have 	interfered 	with 	the 	Association's 	right 	under
Government Code 	§3543.1 	to 	represent 	its members 	in 	their 	employment
relations 	with 	the 	District.

RECOMMENDED 	ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions of
law 	and 	the 	entire 	record of 	this 	case, 	and pursuant 	to Government
Code 	§3541.5 (c) 	of the Educational Employment Relations Act, 	it 	is
hereby ordered 	that 	the 	Ross 	School 	District, 	its 	Board of 	Trustees,
superintendent 	and 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	insisting on conducting 	negotia-
tions 	sessions 	with 	the 	Ross 	School 	District
Teachers Association 	in public;
2. 	In like manner 	denying 	to the Ross School Dis-
trict 	Teachers 	Association 	rights 	guaranteed 	by
the 	EERA.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Prepare 	and post 	at 	its 	headquarters 	office
and 	in each 	school 	for 	twenty 	(20) 	working days
in 	a conspicuous 	place 	at 	the 	location where
notices 	to certificated 	employees 	are customa-
rily posted, 	a copy of this order; 	.
2. 	At 	the end of 	the posting period, 	notify the
San 	Francisco Regional 	Director 	of 	the 	action
it 	has 	taken 	to comply with 	this order.
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Pursuant 	to 	Title 	8, 	California 	Administrative 	Code
Section 	35029, 	this 	recommended 	decision 	and 	order 	shall 	become
final 	on 	November 	2, --------1977, 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions . 	See 	Title 	8, 	California Administra-
tive 	Code 	Section 	35030 .
Dated: 	October 	21, 	1977
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GERALD A. 	BECKER
Hearing Officer