Placerville Union School District * * * OVERRULED IN PART by San Francisco Community College District (1979) PERB Decision No. 105 (PERB 0069E)

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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
OVERRULED IN PART by San Francisco Community College District
(1979) PERB Decision No. 105.
STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL EMPLOYEES ASSOCIATION,
CHAPTER 	658,
Charging Party,
v.
PLACERVILLE UNION 	SCHOOL 	DISTRICT,
Respondent.
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)
)
) 	Case No. 	S-CE-36
PERB Decision No.69
September 	18, 	1978
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Appearances; 	Gifford 	D. 	Massey 	for 	California 	School Employees
Association, 	Chapter 658; 	Edna E.J. 	Francis, Attorney 	(Paterson
and 	Taggart) 	for 	Placerville 	Union 	School District.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members.
DECISION
California 	School 	Employees Association, 	Chapter 	658
(hereafter 	CSEA) 	excepts 	to 	the 	attached 	hearing 	officer's
recommended 	decision 	that 	Placerville 	Union 	School 	District
(hereafter 	District) 	did 	not 	violate 	Educational 	Employment
Relations 	Act'1 section 	3543.5(b) 	or 	(c) 	by ratifying 	the
-'-The 	Educational Employment 	Relations 	Act(hereafter
EERA) 	is 	codified 	at Government Code 	section 3540 	et 	seq.
Gov. 	Code sec. 	3543.5(b) 	and 	(c) 	provides:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate
in 	good 	faith 	with 	an 	exclusive
representative...
All 	statutory 	references 	hereafter 	are 	to 	the 	Government
Code 	unless 	otherwise 	specified.

tentative 	agreement, 	excluding 	the 	organizational 	security
clause, 	reached 	by CSEA and 	the District 	in 	negotiations.
Specifically, 	CSEA excepts 	to 	the 	hearing 	officer's 	conclusions
that 	there 	exists 	no 	evidence of 	District motivation 	in
opposition 	to collective 	negotiations; 	that 	ratification by 	the
District of 	less 	than 	the 	entire 	tentative 	agreement 	was 	a
rejection 	and 	counteroffer 	of 	a 	new 	tentative 	agreement; 	that
CSEA 	should 	have 	accepted 	the 	new 	tentative 	agreement 	or
rejected 	it 	and 	demanded 	additional 	negotiations; 	and 	that 	it
was 	proper 	for 	the 	District's 	governing 	board 	to 	allow citizens
to 	speak 	against 	the 	tentative 	agreement 	at 	a public meeting 	of
the 	governing 	board 	immediately prior 	to 	the 	time 	set 	for 	its
ratification 	of 	the 	tentative 	agreement.
The parties 	entered 	into a 	stipulation of 	facts 	in 	lieu of
presenting 	evidence 	at 	a 	formal hearing. 	This 	decision 	is
based 	upon 	both 	the 	stipulated 	facts 	and 	matters 	alleged 	in
CSEA's 	unfair 	practice 	charge which 	the 	District 	in 	its 	answer
either 	admitted 	or 	failed 	to 	respond 	to or 	deny. 2
FACTS
The 	findings 	of 	fact 	set 	forth 	in 	the 	attached 	recommended
decision 	of 	the 	hearing 	officer 	accurately 	summarize 	the
2Board rule 35008(c), codified in Cal. Admin. Code, 	tit.
8, 	sec. 	35008(c), 	effective both when 	the District 	filed 	its
answer, 	and at 	the present time as Board 	rule 32635 (c),
provides:
If 	the 	answer 	fails 	to 	deny or 	respond 	to 	a
particular 	allegation, 	the 	Board may 	find
such 	failure 	constitutes 	an 	admission of 	the
truth 	of 	the 	facts 	stated 	therein 	and 	a
waiver 	of 	respondent's 	right 	to 	contest 	the
particular 	allegation.
2

3
stipulated 	facts 	and 	are 	hereby 	adopted 	by 	the 	Board 	itself.
Additionally, 	the 	following 	facts 	are 	based 	upon CSEA's 	charge
and 	the 	District's 	answer.
On January 14, 	1977, 	the District's negotiator 	sent a
letter 	to 	the president of CSEA, 	informing 	her 	that 	the
governing 	board 	had 	ratified 	the 	tentative 	agreement 	with 	the
exclusion of 	the 	organizational 	security clause. 	The 	letter
read:
Please 	be 	advised 	that 	the 	Board 	of
Education at 	their 	January 	11, 	1977 meeting
ratified 	the 	proposed 	tentative 	agreement
between 	your 	organization 	and 	the 	Board 	with
the 	exclusion 	of 	the 	Organization 	Security
Article.
As you 	know, 	they did 	so on my
recommendation; 	the basis of which 	is:
1. 	In 	view of 	the 	Community concern 	and
the Boards' 	view on Organizational
Security, 	as contained 	in 	the 	tentative
proposals, 	it 	seemed 	in the best
interest of both 	parties 	to 	remove 	or
isolate 	those 	areas of difference.
2. 	Secondly, 	since we 	are 	on 	the 	threshold
of successor proposals, 	it 	is vitally
important 	to all of 	us 	that 	those
proposals 	be made 	without 	the 	present
emotional climate.
3. 	Thirdly, 	and most 	importantly, 	there
are 	components 	of 	the 	agreement 	that
employees need, 	e.g. 	salary, 	health
benefits, grievance machinery, leaves,
etc.
I 	am as 	disappointed 	as 	I 	know you 	are 	in
our 	inability 	to 	reach 	a 	smooth 	conclusion
to 	our 	negotiation 	efforts 	- especially 	for
our 	first 	contract.
I 	shall 	be most 	happy 	to meet with 	you 	and
your 	representatives.
W

4
The 	organizational 	security 	clause 	which 	the 	District
refused 	to 	ratify on December 	14 	and 	January 	11 had 	been
proposed 	by 	the 	District 	as 	a 	counteroffer 	to CSEA's 	initial
proposal 	on 	organizational 	security.
DISCUSSION
The 	central 	issue 	in 	this 	case 	is 	whether 	the 	District
refused 	or 	failed 	to meet 	and 	negotiate 	in good 	faith 	with
CSEA, 	which 	is 	the 	exclusive 	representative of 	the 	District's
classified 	employees, 	in violation of 	section 	3543.5(b)
and (c).3
The 	purpose 	of 	the 	EERA is:
to promote 	the 	improvement 	of personnel
management 	and 	employer-employee 	relations
within 	the 	public 	school 	systems 	in 	the
State 	of California 	by 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, 	to select one employee
organization 	as 	the 	exclusive 	representative
3Section 	3543.5(b) 	and 	(c) 	is quoted, 	supra, 	at
footnote 	1.
See 	also section 3540.l(h) 	which provides:
"Meeting 	and 	negotiating" 	means 	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, 	which document 	shall, 	when accepted
by 	the 	exclusive 	representative 	and 	the
public 	school employer, 	become 	binding 	upon
both parties....

5
of 	the 	employees 	in 	an 	appropriate
unit....4
Thus 	the 	collective 	negotiations 	process 	is 	the means 	by which
the 	EERA's purpose of 	improving personnel, 	management 	and
employer-employee 	relations 	is 	to be 	realized.
The 	duty 	to meet 	and 	negotiate 	in good 	faith 	is 	the 	core of
the 	collective 	negotiations process. 	Collective 	negotiations
refers 	to a bilateral process 	whereby 	the 	employer 	and
exclusive 	representative 	jointly, 	in good 	faith, 	seek 	to
resolve 	issues 	of 	wages, 	hours 	and 	other 	terms 	and 	conditions
of 	employment.C
5 Parties 	which 	meet 	and 	negotiate 	in 	good
faith 	should 	resolve 	their 	differences 	at 	the 	negotiating 	table
rather 	than 	through 	unilateral 	actions 	which 	may 	cause 	discord
in 	the 	employer-employee 	relationship.66
In 	the present case, 	the District 	avoided 	the 	bilateral
negotiations 	process 	when 	the 	governing 	board 	unilaterally
4 Section 	3540.
5"[C]ollective 	bargaining" 	is 	a 	shared 	process 	in which
each party, 	labor 	union 	and 	employer, 	has 	the 	right 	to play an
active 	role. 	General Electric Company 	(1964) 	150 NLRB 192, 	194
[57 	LRRM 1491].
6 The case 	of NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177] 	speaks 	generally 	to 	the 	requirement 	that 	an employer
refrain 	from 	unilateral 	actions 	in 	derogation of 	the 	bilateral
negotiating 	process. 	See 	also 	Pajaro Valley Education
Association 	(5/22/78) 	PERB Decision No. 	51.
The 	EERB 	takes 	cognizance 	of 	cases 	decided 	under 	the 	Labor
Management Relations Act, 	as amended, 	codified 	at 29 U.S.C,
sec. 	151 et 	seq. 	(hereafter LMRA), 	when the language of 	the
EERA and 	LMRA is 	identical or 	similar. 	Fire Fighters 	v. 	City
of Vallejo 	(1974) 	12 Cal.3d 	608; 	Sweetwater Union High School
District(ll/23/76) 	EERB Decision No. 	4.
5

6
deleted 	a 	significant 	portion 	of 	the 	tentative 	agreement 	and
ratified 	only 	the 	remainder. 	This 	action 	occurred 	at 	a meeting
of 	the 	governing 	board 	where 	the 	give 	and 	take 	of 	negotiations
was 	absent. 	CSEA did 	not 	have 	the 	opportunity 	to comment 	upon
the 	District's 	action 	in 	further 	negotiations, 	and 	it 	did 	not
have 	the 	opportunity 	to 	negotiate 	for 	another 	provision 	in
place 	of 	the 	deleted 	organizational 	security provision. 	The
Board 	finds 	that 	CSEA 	should 	have 	had 	these 	opportunities 	and
therefore 	concludes 	that 	the 	District 	committed 	an 	unfair
practice 	by 	its 	unilateral 	action.
The 	Board 	does 	not 	decide 	whether 	an offer 	by 	the 	District
to 	return 	to 	the 	negotiating 	table 	would 	have 	cured 	the
unlawful partial 	ratification. 	A return 	to 	negotiations 	may
have 	enabled CSEA 	to gain other 	benefits 	in 	the contract 	in
exchange 	for 	giving 	up 	the 	organizational 	security 	clause.
However, 	the District made no such offer. 	Rather, 	it
unilaterally 	declared 	the 	negotiations 	had 	been concluded 	in
the 	January 14 	letter.
The 	District's 	failure 	to 	negotiate 	in 	good 	faith 	is
further 	found 	in 	the 	fact 	that 	it 	stripped 	the 	organizational
security 	provision 	from 	the 	tentative 	agreement 	upon 	the 	advice
of 	the 	District's 	negotiator 	who 	had 	previously 	agreed 	with
CSEA 	in 	the 	"Agreement 	for 	Negotiations" 	that 	he would 	endorse
and 	support 	the 	total 	tentative 	agreement. 	The District
negotiator's 	pledge 	of 	support 	was 	a 	key 	negotiations 	guideline
directed 	toward 	establishing 	a 	basic 	trust 	between 	the 	parties
and 	toward 	ensuring 	that 	the 	District's 	negotiator 	would 	act
6

7
only within 	the 	authority 	extended 	to 	him 	by 	the 	governing
board. 	It 	was 	an unfair practice 	for 	the 	negotiator, 	the
District's 	agent, 	to 	renege on his 	agreement 	to 	support 	the
entire 	tentative 	agreement. 	This 	is 	especially 	so 	in 	the
present 	case 	because 	the 	organizational 	security 	provision
severed 	by 	the 	governing 	board 	had 	originally 	been 	proposed 	by
the District.
CSEA 	in 	its 	exceptions 	claims 	the 	District 	acted 	unlawfully
when 	it allowed members of 	the public 	to 	address 	it 	at 	the
December 	14 	meeting 	regarding 	their 	opposition 	to 	the
organizational 	security clause. 	CSEA argues 	that 	section 	3547
provides 	for 	public 	participation 	in 	the 	negotiations 	process
only at 	the presentation of 	the parties' 	initial proposals 	at
public meetings of 	the 	employer, 	and 	thereafter 	the public
should 	not 	be 	allowed 	to comment 	to 	the 	governing 	board 	on
negotiations or 	a 	tentative 	agreement.77
77 Section 	3547 	provides:
(a) 	All 	initial proposals of exclusive
representatives 	and 	of 	public 	school
employers, 	which 	relate 	to matters within
the 	scope of representation, 	shall be
presented 	at 	a 	public meeting of 	the 	public
school 	employer 	and 	thereafter 	shall 	be
public 	records.
(b) 	Meeting 	and 	negotiating 	shall not 	take
place 	on 	any proposal 	until 	a 	reasonable
time 	has 	elapsed 	after 	the 	submission of 	the
proposal 	to enable 	the 	public 	to become
informed 	and 	the 	public 	has 	the 	opportunity
to 	express 	itself 	regarding 	the 	proposal 	at
a 	meeting 	of 	the 	public 	school 	employer.
(c) 	After 	the public 	has had 	the
opportunity 	to express 	itself, 	the public
7

8
The 	Board 	finds 	that 	the 	District 	did 	not 	act 	improperly 	by
allowing 	the public 	to address 	it 	at 	the 	December 	14 	meeting.
Section 	3547 	sets 	forth 	only 	a minimum 	requirement 	for 	public
participation 	in 	the 	negotiations process 	at 	the 	time 	the
initial 	negotiations proposals 	are 	developed. 	It 	does 	not
suggest 	that 	additional 	public 	involvement 	is prohibited
thereafter. 	The District 	is, 	after 	all, 	a public employer,
financed 	by public 	funds 	paid 	in 	the 	form of 	taxes 	by members
of the public. 	Thus, 	public participation to 	the extent of
addressing 	a district's 	governing 	board 	at 	a 	public 	meeting 	is
entirely appropriate. 	Additionally, 	it 	is 	noted 	that 	this
conclusion 	is 	consistent 	with 	the 	recent 	case 	of City of
Madison, Joint School District No. 	8 v. Wisconsin Employment
Relations Commission 	(1976) 	429 U.S. 	167 	[50 L.Ed.2d 376, 	97
S.Ct. 	421], 	which held 	that 	it was proper 	for 	an 	individual
school employer 	shall, 	at a meeting which 	is
open 	to 	the public, 	adopt 	its 	initial
proposal.
(d) 	New 	subjects 	of meeting 	and 	negotiating
arising 	after 	the 	presentation 	of 	initial
proposals 	shall 	be made 	public 	within 	24
hours. 	If a vote 	is 	taken on 	such subject
by 	the public 	school employer, 	the vote
thereon 	by 	each 	member 	voting 	shall 	also 	be
made 	public within 24 	hours.
(e)The 	board 	may 	adopt 	regulations 	for 	the
purpose 	of 	implementing 	this 	section, 	which
are 	consistent 	with 	the 	intent 	of 	the
section; 	namely 	that 	the public be 	informed
of 	the 	issues 	that 	are 	being 	negotiated 	upon
and 	have 	full 	opportunity 	to 	express 	their
views 	on 	the 	issues 	to 	the 	public 	school
employer, 	and 	to 	know of 	the 	positions of
their 	elected 	representatives.
8

teacher 	to 	address 	a 	school district 	governing 	board 	at 	a
public meeting 	regarding 	a proposal 	the 	district 	was
negotiating 	with 	an 	exclusive 	representative.
Based 	on 	the 	foregoing discussion, 	it 	is concluded 	that 	the
District 	refused 	or 	failed 	to meet 	and 	negotiate 	in 	good 	faith
with 	CSEA 	both 	when 	it 	unilaterally 	deleted 	a 	significant
portion 	of 	the 	tentative 	agreement 	and 	ratified 	only 	the
remainder, 	and 	when 	the 	District's 	negotiator 	failed
to support 	the 	total 	tentative 	agreement, 	in violation of
section 3543.5 (c). 	It 	is also concluded 	that 	the District did
not violate 	section 	3543.5(c) 	when 	it 	allowed 	members 	of 	the
public 	to 	address 	it 	at 	the 	December 	14 meeting.
CSEA 	argues 	that 	the 	District 	also violated 	section
3543.5(b) 	by 	its 	actions 	in 	that CSEA was 	denied 	its 	right
under 	section 	3543.l(a) 	to 	represent 	its 	unit 	in 	their
employment 	relations 	with 	the 	District 	because 	the 	District
refused 	or 	failed 	to meet 	and 	negotiate 	in 	good 	faith 	with
CSEA.8 However, 	having 	found 	a 	violation 	of 	section
8Section 	3543.l(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.
9

3543.5(c), 	the Board does 	not also 	find a derivative violation
of 	section 	3543.5(b). 	Section 3543.5(c) 	specifically addresses
the 	refusal or 	failure 	to meet 	and 	negotiate 	in good 	faith. 	It
is 	unnecessary 	to 	find 	that 	section 3543.5(b) 	was 	also designed
to protect 	that 	right 	since 	such 	a 	finding would 	not 	afford
additional relief to CSEA.9
The 	District 	argues 	in 	its 	defense 	in 	the 	present 	case 	that
the 	governing 	board 	did 	not 	vest 	in 	its 	negotiator 	authority 	to
reach 	a 	full 	and 	binding 	agreement 	on 	contract 	terms 	with 	CSEA,
that 	CSEA 	knew 	the 	governing 	board 	would 	have 	to 	ratify 	the
tentative 	agreement, 	and 	that 	the 	action 	taken by 	the 	governing
board 	was 	consistent with 	the 	parties' 	"Agreement 	for
Negotiations." 	This argument does not, 	however, 	address 	the
real 	issue presented 	by 	this case, 	which 	is whether 	it was
proper 	for 	the 	District 	to 	unilaterally 	sever 	the
organizational 	security 	provision 	from 	the 	tentative 	agreement
and 	ratify 	only 	what 	remained.
9 See Magnolia 	School 	District 	(6/27/77) 	EERB Decision
No. 19.
The 	National 	Labor 	Relations 	Board 	finds 	derivative
violations of 	section 8(a)(l) 	when 	it 	finds violations of
section 8(a)(2), 	(3), 	(4) 	and 	(5) 	of the LMRA. 	However, 	the
relevant 	statutory 	language 	of 	the 	LMRA 	is 	different 	than 	in
the present case, 	and 	the 	finding of derivative violations 	is
based 	on 	the 	legislative 	history 	underlying 	the 	LMRA. 	Art
Metals Construction Co. 	v. 	NLRB 	(1940) 	109 F.2d 945 	[6 LRRM
732]. 	See also, Oberer, The Scienter Factor 	in Sections
8(a)(l) 	and 	(3) 	of the Labor Act; 	Of Balancing, 	Hostile Motive,
Dogs and Tails 	(1967) 	52 	Cornell Law Quarterly 	491.
10

• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
REMEDY
As 	a 	remedy 	for 	the 	violations, 	the Board orders 	that 	the
parties 	shall 	return 	to 	the 	negotiations 	table, 	should CSEA so
request, 	to negotiate 	any and 	all proposals 	presented 	by CSEA
on 	subjects within 	the 	scope 	of 	representation 	in 	return 	for
CSEA's 	loss 	of 	the 	organizational 	security provision. 	The
present 	agreement 	shall 	remain 	in 	effect 	until 	superseded 	by
any 	subsequent 	agreement 	reached 	by 	the 	parties. 	The
District's 	negotiator 	shall 	endorse 	and 	support 	any 	tentative
agreement 	presented 	to 	the 	governing 	board 	for 	ratification.
The 	District 	will 	be 	required 	to post 	copies of 	the 	order.
Section 	3541.3 	provides:
The Board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties:
(i) 	To 	investigate 	unfair practice charges
or 	alleged violations of 	this 	chapter, 	and
take 	such 	action 	and 	make 	such
determinations 	in 	respect of 	such 	charges 	or
alleged 	violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this
chapter.
(n) 	To 	take 	such other 	action as 	the 	board
deems 	necessary 	to discharge 	its powers 	and
duties 	and 	otherwise 	to effectuate 	the
purposes 	of 	this 	chapter.
And 	section 	3541.5 	provides:
The 	initial determination 	as 	to whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what remedy is necessary to
effectuate 	the 	purposes of 	this 	chapter,
shall 	be 	a matter 	within 	the 	exclusive
jurisdiction of 	the 	Board 	....
(c) 	The Board 	shall have 	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
11

action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as will 	effectuate 	the policies of
this chapter.
The 	Board 	finds 	that 	to 	effectuate 	the 	policies 	and 	purposes 	of
the 	EERA, 	it 	is 	important 	that 	the 	employees 	affected 	by 	this
decision 	and 	order 	be 	notified 	of 	their 	rights 	under 	the 	EERA
and 	the 	findings 	of 	the Board 	in 	relationship 	thereto. 	Posting
copies 	of 	the 	order 	will 	inform 	the 	District's 	employees 	that
the 	District's 	conduct 	of 	partially 	ratifying 	the 	tentative
agreement 	violated 	the 	EERA.
A posting 	requirement 	has 	been 	upheld 	by 	the 	United 	States
Supreme 	Court 	interpreting 	section 	10(c) 	of 	the 	Labor
,n
Management 	Relations Act, 	as 	amended,10 which 	is 	nearly
identical to section 3541.5(c), 	in NLRB v. 	Express Publishing
Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415]. 	New York's highest court
has 	upheld 	a 	posting 	requirement 	ordered 	by 	the 	New York 	Public
Employment 	Relations Board 	against 	a public 	agency. 	City of
Albany v. 	Helsby 	(1972) 	327 N.Y.S.2d 	658 	[79 LRRM 2457].
10 The 	Labor 	Management 	Relations 	Act 	(hereafter 	LMRA)
amended 	the National Labor 	Relations Act 	and, 	as 	amended, 	is
codified at 29 U.S.C, 	sec. 	151 et seq.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public 	Employment 	Relations 	Board ORDERS 	that:
1. 	The 	partial ratification 	by 	the 	Placerville 	Union
School 	District 	of 	the 	tentative 	agreement between 	it 	and
California School Employees Association, 	Chapter 	658, 	excluding
12

the 	organizational 	security clause, 	constitutes 	a 	refusal or
failure 	to meet 	and 	negotiate 	in good 	faith 	in violation of
Government Code 	section 3543.5(c).
2. 	The District 	negotiator's 	failure 	to endorse 	and
support 	the 	total 	tentative 	agreement 	when 	it 	was 	presented 	to
the 	District's 	governing board 	for 	ratification, 	contrary 	to
his 	agreement with 	CSEA 	that 	he 	would 	endorse 	and 	support 	it,
constitutes 	a 	refusal or 	failure 	to meet 	and 	negotiate 	in good
faith 	in 	violation of Government Code 	section 3543.5(c).
3. 	The 	District 	and CSEA shall 	return 	to 	the 	negotiations
table, 	should CSEA so request, 	to negotiate 	any and 	all
proposals presented 	by CSEA on 	subjects 	within 	the 	scope 	of
representation;
4. 	The 	agreement 	ratified 	by 	the 	District's 	governing
board 	shall 	remain 	in 	effect 	until 	superseded 	by 	any 	subsequent
agreement 	reach 	by CSEA and 	the 	District.
5. 	The 	District's 	negotiator 	shall 	endorse 	and 	support
any 	tentative 	agreement 	presented 	to 	the 	District's 	governing
board 	for 	ratification.
FURTHER, 	The 	Public 	Employment 	Relations 	Board 	ORDERS 	that
Placerville 	Union 	School 	District 	shall:
1. 	Prepare 	and 	post 	copies 	of 	this 	Order 	at 	each 	of 	its
school 	sites 	for 	20 workdays 	in conspicuous places, 	including
all 	locations where 	notices 	to employees 	are 	customarily placed;
13

By 	RaymondJ.Gonzales,Membe :iber
t/ JerilouCossack Twohey, 	Member
14
Har;yGluck ~, 	Cha chairperson
I
2. 	Notify 	the 	Sacramento 	regional 	director 	of 	the 	Public
Employment 	Relations 	Board 	of 	the 	actions 	it 	has 	taken 	to
comply with 	this 	Order.
By 	Raymond J. Gonzales , Memberber 	Harry Gluckk, Cha chairperson
Jerilou Cossack Twohey, Member
14

)
')
)
________________ )
EDUCATIONAL EMPLOYMENT RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA
In the Matter of:
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
Charging Party,
-vs.-
PLACERVILLE 	UNION 	SCHOOL DISTRICT,
Respondent.
) 	Unfair 	Practice
Case No. 	S-CE-36	)
)
) i.
)
)
)
Appearances: 	Gifford D. 	Massey, 	for California School Employees
Association; 	Edna E. 	J. Francis, Attorney (Paterson and Taggart),
for Placerville Union School District.
Before Sharrel J. 	Wyatt, 	Hearing Officer.
STATEMENT OF THE CASE
On January 28, 	1977, 	California School Employees Association
(hereinafter Charging Party) 	filed an unfair practice 	charge
against 	Placerville 	Union 	School 	District 	(hereinafter 	Respondent)
alleging violation of Government 	Code 	Section 3543.5(b) and 	11(c)
with the Educational 	Employment 	Relations 	Board.
Charging Party 	essentially alleges 	that 	an agree-
ment was 	negotiated with the Respondent 	and 	that 	the Respondent,
-1-
11 All 	references 	are 	to 	sections 	of 	the Government 	Code unless
otherwise 	indicated.

at 	the regularly 	scheduled meeting 	of 	its 	Governing 	Board,
refused to approve 	the 	agreement which contained a 	security-
clause and refused to 	sever the organizational 	security .
agreement 	from the remainder 	of the 	agreement 	and allow a vote
of the members 	in the negotiating unit. 	After 	severing 	the
organizational 	security clause, 	the Respondent allegedly
ratified 	the balance 	of 	the agreement.
Respondent 	filed an answer 	in which it 	essentially admitted
the 	above 	allegations 	and alleged that, 	pursuant 	to 	the
negotiation procedures 	agreed to between the parties, 	all
agreements were 	tentative 	only until 	ratified by 	the 	Respondent's
Governing 	Board.
An informal conference was held on March 24, 	1977 	and a
formal hearing on April 27, 	1977. 	At the formal hearing, 	the
parties 	entered into 	a 	stipulation of 	facts.
FINDINGS 	OF FACT
Respondent 	is 	located in El Dorado 	County and has 	an
average 	daily 	attendance 	of 	approximately 	1100 	students 	attending
three 	schools. 	In May of 1976, 	Respondent recognized Charging
Party as 	the 	exclusive representative 	for all 	classified
employees 	excluding management, 	confidential 	and 	supervisory
positions. 	After presentation of Charging Party's 	initial
proposal 	and a public meeting to present 	the proposal, 	the
parties 	commenced to bargain. 	At 	their 	first negotiating
session, 	the parties 	signed an "Agreement for Negotiations" which
provided, 	in pertinent part, 	as follows:
-2-

"2(a). 	There shall be no final agreement on particular
portions 	of 	the 	contract 	being negotiated by 	the 	parties
until 	a 	total written agreement 	on 	all parts 	of 	the 	contract
is 	reached and ratified. 	However, 	as written proposals 	are
considered by 	the parties, 	tentative written agreements
on various 	articles 	and/or 	sections 	of 	the 	contract being
negotiated may 	occur. 	These 	tentative written 	agreements
shall 	only become 	final 	and binding 	on 	the 	Board 	of
Education after 	they have been 	submitted 	to, 	received by,
and ratified by 	the 	Board of Education, 	such ratification
being 	subsequent 	to 	the 	Board's 	prompt 	receipt 	of 	an
official 	and 	signed 	letter 	from 	the 	Placerville 	Association
of 	Classified 	Employees 	verifying 	the 	Placerville Association
of 	Classified Employees 	complete 	and 	total 	ratification 	of 	the
agreed-to 	contract 	between 	the parties.
3. 	The Negotiators 	for both Board 	of Education and 	the
Placerville Association of 	Classified Employees 	agree 	to
endorse 	and 	support 	the 	total 	tentative 	agreement 	at
ratification.
4. 	The Placerville Association of Classified Employees
agrees 	that members 	of 	its 	negotiating 	team are 	authorized
to negotiate 	and make 	tentative 	agreements 	for 	the
Association 	subject 	to 	ratification by 	the Association.
7. 	As 	tentative agreements 	are reached, 	they shall be
initialed by 	the 	Placerville Association 	of 	Classified
Employees 	and 	the 	Board's 	representatives."
Charging 	Party's 	initial 	proposal 	contained 	a proposal
relating 	to 	organizational 	security. 	During negotiations,
Respondent's negotiator, 	with 	the 	awareness 	of Respondent's
Governing Board, 	presented a 	counter-proposal 	relating 	to
organizational 	security. 	The 	final 	tentative 	agreement 	reached
by 	the parties' 	negotiators 	in November 	of 	1976 	contained an
organizational 	security 	clause.
The 	parties 	then 	signed 	a memorandum of understanding which
provided 	for 	retroactive 	pay 	in 	the December 	salary warrant
based on 	the 	tentative 	agreement 	they had reached. 	The memorandum
-3-

of understanding 	recognized 	that 	Charging Party would need 	to
obtain membership 	ratification and 	legal 	review of 	the 	tentative
agreement 	subsequent 	to 	ratification by 	the 	Board of Education and
provided 	for pro-rata 	repayment 	of 	the 	retroactive 	pay 	from
future 	salary warrants 	in 	the 	event 	that 	ratification was
not 	obtained.
When the Governing Board met on December 14, 	1976, 	the
Respondent's 	negotiator 	recommended 	that 	the 	Governing 	Board
ratify the agreement reached by the parties. 	Members 	of
the public who were present 	at 	the meeting of 	the Board of
Education voiced opposition 	to 	the 	organizational 	security
clause and, 	following executive 	session, 	the Board of Education
voted 	to 	table ratification of 	the 	tentative 	agreement until
they could consult with legal counsel. 	Thereafter, 	on
January 11, 	1977, 	the Governing Board met and ratified the
tentative 	agreement 	reached by 	the negotiators 	for 	the parties
excluding 	the 	organizational 	security clause.
The 	stipulated facts 	do not 	reflect refusal by Respondent
to 	sever 	the organizational 	security clause for a 	separate vote
by 	the members 	of 	the appropriate negotiating unit.
ISSUE
Whether 	the Respondent violated Section 3543.5(b) 	or 	(c) 	of
the Act by 	failing 	to ratify 	the 	tentative 	agreement 	reached by
the parties 	including 	the 	organizational 	security clause.
-4-

CONCLUSIONS 	OF LAW
There 	is 	no 	allegation nor 	is 	it 	argued 	that Respondents
refused 	or 	failed 	to meet 	and negotiate 	in 	good 	faith or 	denied
to 	Charging Party rights 	guaranteed 	to 	it by 	the EERA up 	to 	the
time 	that 	the 	tentative 	agreement 	reached by 	the parties was 	acted
upon by 	the Respondent's 	Governing 	Board. 	The unfair 	charges
arise 	out 	of 	an 	alleged breach of 	the Agreement 	for Negotiations
entered 	into by 	the parties. 	It 	is 	undisputed 	that Respondent
received 	the 	entire 	tentative 	agreement, 	severed 	the 	organizational
security clause, 	and "ratified" 	the balance of 	the 	tentative
agreement.
Charging 	Party 	argues:
1. 	that Respondent was 	obligated 	to 	ratify or reject 	the
agreement negotiated by 	its 	designated representative 	in 	toto;
2. 	that 	in failing 	to ratify or reject 	the 	agreement 	in 	toto,
Respondent 	unilaterally 	took 	away 	a 	clause 	gained by 	Charging
Party 	in 	the 	give 	and 	take 	of negotiating.
The Agreement 	for Negotiation provides 	that 	the 	tentative
agreement 	reached by 	the parties 	shall 	only become 	final 	and
binding 	after 	it 	has 	been 	"submitted 	to, 	received by and ratified
by 	the 	Board 	of Education." 	It 	further provides 	that 	such ratifica-
tion 	shall 	be 	subsequent 	to 	the 	Board's 	prompt 	receipt 	of 	an
official 	signed 	letter 	from Charging 	Party verifying 	complete
and 	total 	ratification.
-5-

In 	the Memorandum of 	Understanding 	entered 	into 	between 	the
parties 	on November 29, 	1976, 	they agreed to 	implement retroactive
pay based 	on 	the 	tentative 	agreement 	they had reached. 	They 	also
reversed 	the 	sequence 	for 	ratification 	and 	provided 	for membership
ratification by Charging 	Party 	subsequent 	to 	ratification by 	the
Board 	of Education.
Thus 	the parties 	had 	agreed 	to 	reverse 	the 	order 	in which
ratification was 	to 	occur, 	placing the burden on 	the Respondent
to act 	first.
"Meeting and negotiating" means meeting, 	conferring,
negotiating 	and 	discussing...in 	a 	good 	faith 	effort 	to 	reach
2
agreement 	on matters 	within 	the 	scope 	of 	representation,"2 and,
like 	the Labor Management Relations 	Act,3 as 	amended(LMRA), 	good
faith negotiations 	do not 	require 	that 	the parties 	reach agreement,
4
but 	that 	each party make 	a 	good 	faith effort 	to 	reach agreement.
The Agreement 	for 	Negotiations 	entered 	into 	between 	the 	parties
contemplates 	that neither 	side was 	authorized 	to 	enter 	into 	a
binding 	agreement. 	Each side was 	to work 	toward 	tentative
agreement which would 	then have 	to 	be 	ratified.
Under LRMA precedent, 	refusal 	to ratify a contract 	to which
representatives 	had 	tentatively 	agreed because 	of 	the 	union
security 	clause was 	held not 	to be 	a violation of 	that 	act by 	the
NLRB. 	(Milwaukee Electric Tool Corporation, 	(1954), 	110 NLRB
977). 	There, 	as here, 	each side had sufficient authority to accept
2 Section 3540.l(h).
3 Section 8(d).
4 NLRB v. American Insurance Co., 	(SSC 1952), 	30 LRRM 2147, 	at 2149.
-6-

tentative 	commitments which each 	deemed would have 	a 	strong
likelihood of acceptance and there, 	as here, 	there was no evidence
of motivation in opposition to 	collective negotiations.
Ratification 	in 	this 	context 	contemplates 	acceptance
of all 	of 	the 	terms 	and conditions 	of the 	tentative 	agree-
ment which had been reached by 	the 	representatives 	of 	the
parties. 	It 	is basic 	to contract 	law that an acceptance
must 	conform to 	the 	terms 	of 	the offer and must not propose
new terms. 	If acceptance varies 	from the offer, 	it 	is no
u
longer an acceptance, 	but 	constitutes 	a 	counter-offer n	5 and a
rejection.66
Thus 	ratification by 	the 	Respondent's 	Governing Board of
something 	less 	than 	the 	entire 	tentative 	agreement 	reached
by the representatives 	of 	the parties 	is 	a rejection and a
counter-offer. 	Charging Party, 	at its option, 	may treat
such an action as 	a counter-offer and accept 	it by means 	of
the 	ratification procedure 	set 	forth in 	the Memorandum of
Understanding of November 29, 	1976, 	or Charging Party may
treat 	a ratification that varies 	the 	terms 	of 	the 	tentative
agreement 	as 	a rejection 	and request 	that Respondent 	meet
and negotiate. 	Since 	the record does not 	reflect 	that Respondent
refused 	to meet 	and negotiate 	subsequent 	to 	rejection of 	the
tentative agreement, 	no violation of Sections 	3543.5(c) 	is 	found.
The 	stipulated 	facts 	do not 	reflect 	that Respondents 	refused
to 	sever 	the 	organizational 	security clause 	for a 	separate vote
5Apablasa v. Merritt and Co., 	(1959), 	176 CA 2d 719, 	726, 	1 C.R. 	500.
Howard v. 	Chow (1938) 	27 CA 2d 755, 	757, 	81 P. 	2d 994. 	Also see
Civil 	Code 	Section 1585.
6Landberg v. Landberg (1972), 	24 CA 3d 742, 	752, 	757, 	101 C.R. 	335.
-7-

,
-8-
by members of the appropriate unit. Since the right to have	by members 	of 	the 	appropriate unit. 	Since 	the 	right 	to have
the organizational security clause severed and voted upon	the 	organizational 	security 	clause 	severed 	and voted upon
separately vests in the public school employer under Section	separately vests 	in 	the 	public 	school 	employer under 	Section
7
)	3546 (a	3546(a) 	and not the exclusive representative, such a refusal	and not 	the 	exclusive 	representative, 	such a 	refusal
by a public school employer would not be a denial of rights	by a 	public 	school 	employer would not 	be 	a 	denial 	of 	rights
guaranteed to employee organizations in violation of Section	guaranteed 	to 	employee 	organizations 	in violation of 	Section
3543.5 in any event. Thus, no violation of Section 3543 (b) is found.	3543 . 5 	in any event. 	Thus, 	no violation of 	Section 3543 (b) 	is 	found .,
RECOMMENDED ORDER .	RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of	Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law, and the entire record of this case, and pursuant to	law, 	and the 	entire 	record of 	this 	case, 	and pursuant 	to
Government	Government Code Section 3541.5 (c) , it is hereby ordered:	Code 	Section 3541 . 5 (c), 	it 	is hereby ordered:
1.	1 .The unfair practice charge against the Placerville	The unfair 	practice 	charge 	against 	the 	Placerville
Union School District is hereby DISMISSED.	Union 	School 	District 	is 	hereby DISMISSED.
Pursuant 	to Title 	8, 	California Administrative 	Code
Section 	35029, 	this 	recommended decision and order 	shall
become 	final 	on Sept . 	14, 	1977, 	unless 	a party files 	a
timely 	statement 	of 	exceptions. 	See 	8 	Cal. 	Admin. 	Code
Sec . 	35030.
Pursuant to Title 8, California Administrative Code
Section 35029, this recommended decision and order shall
become final on Sept. 14, 	1977, unless a party files a
timely statement of exceptions. See 8 Cal. Admin. Code
Sec. 35030.
Dated:	Dated : 	September 2, 1977	September 2, 	1977
Sharrel J. Wyatt	Sharrel J . 	Wyatt
Hearing Officer	Hearing 	Officer
7
Section 3546 (a) states: "An organizational security arrangement, in	Section 3546 (a) 	states: 	" An organizational 	security arrangement, 	in
order to be effective, must be agreed upon by both parties to the	order 	to be 	effective, 	must 	be 	agreed upon by both parties 	to 	the
agreement. At the time the issue is being negotiated, the public	agreement. 	At 	the 	time 	the 	issue 	is 	being negotiated, 	the public
school employer may require that the organizational security pro	school 	employer may require 	that 	the 	organizational	- 	security pro-
vision	vision be severed from the remainder of the proposed agreement and	be 	severed 	from 	the 	remainder 	of 	the 	proposed 	agreement 	and
cause the organizational security provision to be voted upon	cause 	the 	organizational 	security provision 	to 	be voted upon
separately by all members in the appropriate negotiating unit,	separately by all 	members 	in 	the 	appropriate 	negotiating unit,
in accordance with rules and regulations promulgated by the board.	in accordance 	with rules 	and regulations 	promulgated by 	the 	board.
Upon such a vote, the organizational security provision will	Upon 	such a 	vote, 	the 	organizational 	security provision will
become effective only if a majority of those members of the	become 	effective 	only 	if 	a 	majority of 	those members 	of 	the
negotiating unit voting approve the agreement. Such vote shall	negotiating unit 	voting 	approve 	the 	agreement. 	Such vote 	shall
not be deemed to either ratify or defeat the remaining provisions	not 	be 	deemed 	to 	either 	ratify or 	defeat 	the 	remaining provisions
of the proposed agreement. "	of 	the proposed 	agreement . "