Redwood City School District (PERB 0115E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL 377,
COUNCIL 57, AFL-CIO,
Case No. SF-CE-172
Charging Party,
PERB Decision No. 115V .
REDWOOD CITY SCHOOL DISTRICT, February 7, 1980
Appearances: J. Anthony Gaenslen, Attorney (Norback, DuRard,
Belkin & Carcione) for American Federation of State, County
and Municipal Employees, Local 377, Council 57, AFL-CIO;
Richard J. Loftus, Jr. , Attorney (Paterson & Taggart) for
Redwood City School District.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter Board) on exceptions taken by the American Federation
of State, County and Municipal Employees, Local 377, Council
57, AFL-CIO (hereafter AFSCME) to the hearing officer's proposed
decision. AFSCME objects to the hearing officer's conclusion
that the Redwood City School District did not engage in conduct
violative of section 3543.5(c) or (e) of the Educational Employ-
ment Relations Act (hereafter EERA) .
The Educational Employment Relations Act is codified at
Government Code section 3540 et seq.
STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
AMERICAN
	FEDERATION
	OF
	STATE,
	COUNTY
AND
	MUNICIPAL
	EMPLOYEES,
	LOCAL
	377,
COUNCIL
	57,
	AFL-CIO,
Charging
	Party,
v.
REDWOOD
	CITY
	SCHOOL
	DISTRICT,
Respondent.
t.	Responden
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Case
	No. 	SF-CE-172
PERB
	Decision
	No. 	115
February
	7,
	1980
Appearances:	
J.
	Anthony
	Gaenslen, 	Attorney
	(Norback, 	DuRard,
Belkin	
&	
Carcione)
	for
	American
	Federation 	of
	State,
	Countyand
	Municipal
	Employees,
	Local
	377,
	Council
	57,
	AFL-CIO;
Richard
	J. 	Loftus,
	Jr.,
	Attorney 	(Paterson	
&	
Taggart)
	for
Redwood
	City
	School
	District.
Before
	Gluck,
	Chairperson;
	Gonzales 	and Moore, 	Memberso
DECISION
This
	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	Board) 	on
	exceptions 	taken
	by
	the
	American
	Federation
of 	State,
	County 	and
	Municipal
	Employees, 	Local
	377,
	Council
57,
	AFL-CIO
	(hereafter
	AFSCME)
	to 	the 	hearing
	officer's
	proposed
decisiono
	AFSCME
	objects 	to 	the 	hearing
	officer's
	conclusion
that
	the
	Redwood
	City
	School
	District
	did 	not
	engage
	in
	conduct
violative 	of 	section 	3543.5(c) 	or 	(e) 	of 	the 	Educational
	Employ-
ment
	Relations 	Act
	(hereafter
	EERA)ol
1The
	Educational
	Employment
	Relations 	Act
	is 	codified 	at
Government 	Code
	section
	3540
	et 	seq,

The Board has considered the record as a whole and the
attached proposed decision in light of the exceptions filed.
The Board is in agreement with and hereby adopts the hearing
officer's findings of fact and conclusions of law. 	The
hearing officer's proposed decision, attached hereto, is like-
wise adopted by this Board.
ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, it is hereby ORDERED that
the unfair practice charge be dismissed.
Section 3543.5(c) and (e) state:
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.
(e) 	Refuse to participate in good faith in the
impasse procedure set forth in Article 9
(commencing with Section 3548).
The Board notes that the hearing officer's discussion of
AFSCME's surface bargaining charge is in conformity with the
Board's decision in Muroc Unified School District (12/15/78)
PERB Decision No. 80, issued subsequent to the hearing officer's
proposed decision.
-2-
The 	Board 	has 	considered 	the 	record 	as 	a 	whole 	and 	the
attached 	proposed 	decision 	in 	light 	of 	the 	exceptions 	filed.
The 	Board 	is 	in 	agreement with 	and 	hereby 	adopts 	the 	hearing
2
officer's 	findings 	of 	fact 	and 	conclusions 	of 	law. 	The
hearing 	officer's 	proposed 	decision, 	attached 	hereto, 	is 	like-
wise 	adopted 	by 	this 	Board.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire record 	in 	this 	case, 	it 	is 	hereby 	ORDERED 	that
the 	unfair 	practice 	charge 	be 	dismissed.
PER CURIUM	PER CURIUM
Section 	3543.5(c) 	and 	(e) 	state:
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.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in 	the
impasse 	procedure 	set 	forth 	in Article 	9
(commencing 	with 	Section 	3548).
2The 	Board 	notes 	that 	the 	hearing 	officer's 	discussion 	of
AFSCME's 	surface 	bargaining 	charge 	is 	in 	conformity with 	the
Board's 	decision 	in Muroc 	Unified 	School 	District 	(12/15/78)
·PERB Decision No. 	80, 	issued 	subsequent 	to 	the 	hearing 	officer's
proposed 	decision.
-2-

PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
In the Matter of:
LOCAL 377, COUNCIL 57, AFSCME, AFL-CIO, 	Case No. SF-CE-172
Charging Party,
VS .
REDWOOD CITY SCHOOL DISTRICT, 	PROPOSED DECISION
UNFAIR PRACTICE CHARGE
Respondent. 	April 25, 1978
Appearances : 	J. Anthony Gaenslen, Attorney (Norback, Durard and
Belkin) for Local 377, Council 57, AFSCME, AFL-CIO; Richard Loftus,
Attorney (Paterson and Taggart) for Redwood City School District.
Before Sharrel J. Wyatt, Hearing Officer.
PROCEDURAL BACKGROUND
On January 19, 1978, Local 377, Council 57, AFSCME, AFL-CIO
(hereinafter AFSCME or Charging Party) filed an unfair charge against
the Redwood City School District " (hereinafter District or Re
with the Public Employment Relations Board (hereinafter PERB) which
Redwood City School District is located in San Mateo County and
8100 attending grades
K-8 attending school at 15 sites. 1977 California Public School
Directory, California State Department of Education at p. 470.
-1-
PUBLIC
EMPIDYMENT
RELATIONS
BOARD
STA'IE
OF
CALIFORNIA
In
the
Matter
of:
LOCAL
377,
	COUNCIL
57,
	AFSQ1E,
	AFL-CIO,
Charging
Party,
vs.
REDWCOD
CITY
SCHOOL
DISTRICT,
Respondent.
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Case
No.
	SF-CE-172
PROPOSED
DECISION
UNFAIR PRACTICE
CHARGE
April 25, 	1978
Appearances:	
J.
	Anthony Gaenslen, Attorney (Norback, 	Durard and
Belkin)
	for
Local 377,Council 57,
AFSCME,
	AFL-CIO;
	Richard Loftus,
Attorney (Paterson and Taggart)
	for
Redwood
City School
District.
Before
Sharrel
J.
Wyatt, Hearing
Officer.
PROCEDURAL
BACKGROUND
On
January 19, 1978, Local 377, Council 57,
AFSCME,
	AFL-CIO
(hereinafter
AFSCME
or
Charging Party)
	filed
an
unfair
charge against
the
Redwood
City School
District
1
(hereinafter
District
or spondent)
with the Public Employment Relations Board
(hereinafter
PERE)
	which
Respondent)
1Redwood
City School
District is
located
in
San Mateo County and
has an enrollment of approximately	an enrollment
of
appro:x:imately 8100
attending gradesK-8
attending school
at
15
sites.
	1977 California Public School
Directory, 	California State Department
of
Education
at
p.
	470.
has
-1-

was amended on February 1, 1978 and February 16, 1978. The charges
essentially allege violation of Section 3543.5(c) and (e) for (1)
surface bargaining, (2) failure to participate in the mediation in good
faith and (3) breach of the agreement to grant release time. During
the hearing which was held at Redwood City on March 16 and 17
and April 6 and 7, 1978, the charge relating to breach of the
agreement to grant release time was withdrawn with prejudice.
At the close of Charging Party's evidence, the Respondent made
a motion to dismiss for failure to prove a prima facie case
which was granted for the reasons set forth hereinafter.
FINDINGS OF FACT
AFSCME was certified as the exclusive bargaining representative
for the maintenance and operations unit at Redwood City School District
by the Educational Employment Relations Board" on February 11, 1977,
following a consent election.
All references are to the Government Code unless otherwise indicated.
3section 3543.5(c) and (e) state:
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;
(e) Refuse to participate in good faith in the impasse
procedure set forth in Article 9 (commencing with
Section 3
Predecessor to the Public Employment Relations Board.
-2-
was amended on February 1, 	1978 and February 16, 	1978.
	The
charges
essentially
allege violation
of
Section
2 3543.5(c) 3 and (e)
	for
	(1)
surface
bargaining, 	(2)
	failure
to
participate in
the ~ediation
in
good
faith
and 	(3) breach
of
the
agreement
to grant
release
time. 	During
the
hearing
which
was
held
at
Redwood
City
on March
16
and
17
and
April
6 and 7, 	1978,
	the
charge
relating
to
breach
of
the
agreement
to
grant
release
time
was
withdrawn
with prejudice.
At
the close of
Charging
Party's
evidence,
	the
Respondent
ma.de
a
notion
to
dismiss
	for
failure
to
prove a prima
facie
case
which
wat:
granted
for the
reasons
	set
forth hereinafter.
FINDINGS
OF FACT
AFSCME
was
certified
as
	the exclusive bargaining
representative
for the
maintenance and operations
tm.i.t
at
Redwood
City School
District
by
the
Educational Employment Relations Board4 on February 11, 1977,
following a consent
election.
2
All references are to
the Goverrnrent
Code
unless otherwise
indicated.
3
section
3543.S(c) 	and (e)
	state:
It
shall
be unlawful
for
a public school employer to:
(c) Refuse
or
fail
	to
meet and
negotiate
in
good
faith
withan exclusive representative;
(e) Refuse
to participate
in
good
faith in
the impasse
procedure
set forth
in
Article
9 (corrmencing with
Section 548.	
35480
4Predecessor to the Public Employment Relations Board.
-2-

After certification, AFSCME sought input from employees in the
unit and put together an initial proposal. AFSCME and the District
exchanged initial proposals as required by the public notice
provisions of Article 8 of the Act.
The first meet and negotiate session was held on May 16, 1977.
As a rule, the parties worked from AFSCME's proposal at the table.
As negotiations progressed, one of the major items in issue was work
week/work day. The maintenance and operations day crew had worked
8 hours per day, 40 hours per week. The swing shift worked 7% hours
per day, 37% hours per week. The swing shift had received the same
amount of pay for 37% hours as the day shift employees received for
40 hours. AFSCME sought a 7% hour day, 37% hour work week for all employees
in the unit. There was no Monday - Friday work week for employees in the
District. AFSCME proposed a Monday through Friday standard work week with
work outside the standard work week to be paid at overtime rates. No swing
shift differential had been paid by the District previously. AFSCME
sought a 5%% swing shift differential. In the course of negotiations,
Prior to the consent election, the superintendent, at a public
meeting of the Board of Trustees in September or October of 1976,
indicated that CSEA had always represented employees in the District,
that the District would prefer to continue to deal with
classified employees as one group, and that he did not feel that
AFSCME should represent employees. The hearing officer ruled that
this background information was not of probative value in
that it did not tend to prove or disprove elements of the
pending charges.
-3-
After
certification,
AFSCME
sought
input
from employees
in
the
unit
and
put together
an
initial
proposal.
	AFSCME
and
the
District
exchanged
initial
proposals as required
by
the public
notice
provisions
of
Article
8
of
the
Act. 5
The
first
m2et and
negotiate
session
was
held
on
May
16, 	1977.
As a
rule,
	the
parties
worked frornAFSCME's proposal
at
the
table.
As
negotiations
progressed, one
of
the
major items
in
issue
was
work
week/work day. 	The
naintenance and
operations
day
cre»1
had worked
8 hours
per
day, 	40 hours
per
week. 	The swing
shift
worked
77z
hours
per
day,	
377z
hours
per
week. 	The swing
shift
had
received the
same
am:Junt
of
pay
for
377z
hours
as the
day
shift
employees received
for
40
hours.
	AFSCME
sought a
77z
hour day,	
377z
hour work week
for
all
employees
in
the
unit.
	There was no
Yionday
- Friday work week
for
employees
	in
the
District.
	AFSCME
proposed a
M:mday
tb.rough Friday standard work week w-ith
work
outside the standard work week
to be paid
at
overtime
rates.
	No
swing
shift
differential
had been
paid
by
the
District
previously.
	AFSCME
sought a
5%
swing
shift differential.
	In the
	course
of negotiations,
5
Prior to the consent
election, 	the superintendent,
	at
a publicmeeting
of
the Board
of
Trustees
	in
September
or
October
of
1976,
indicated
that
CSEA
had always represented employees
in
the
District,that
the
District
would
prefer to continue to deal with
classified
employees as one group, 	and
that
he did not feel that
AFSCME
should represent employees. 	The hearing
officer ruled that
this
background information was
not
of
probative value
in
that
it
did not tend to prove
or disprove elements
of thepending charges.
-3-

the District sought an 8 hour day, 40 hour week for all employees
in the unit. In response to that position, AFSCME sought compensation
for the increased half an hour per day to be worked by the swing
shift. The increase sought varied from 6-1/4% to 6-3/4%%. The increased
half an hour per day of work represented a 6-3/4% increase in work week.
On December 12, 1977, the District offered a 40 hour work
week, any five consecutive days, and 5%% swing shift differential.
AFSCME rejected this offer.
On January 10, 1978, the District offered 8 hours per day
and 40 per week except for the swing shift which would continue on
7% hours per day and 37% hours per week. No Monday - Friday
work week was included. This represented the status quo to AFSCME
and was rejected.
On January 13, 1978, the parties were in agreement on use of
school mails and remittance of dues. Grievance procedures were
discussed and at a later date, the District moved from its position
insisting on American Arbitration Association.
At the session of January 18, 1978, Dr. Cochran, a member of the
District's team indicated the Board of Trustees would be resistant
to anything that smacked of taking away management's right to manage
and they would not be able to swing all three: Monday - Friday
work week, 73 hour work day, and 5%% swing shift differential.
During caucus, Dr. Cochran returned to the room where the
AFSCME team was, indicated he should not be there, that he was not
-4-
the
District
sought an 8 hour day,
	40
hour week
for
all
employees
in
the
unit. 	In
response
to
that
position,
AFSG1E
sought compensation
for the
increased
half
an hour
per
day
to
be worked by
the
swing
shift.
	The
increase
sought
varied
from 6-1/4%
to
6-3/4%. 	The
increased
half
an hour
per
day
of
work
represented
a 6-3/4%
increase
in
work week.
On
Decerrber 12, 	1977,
	the
District
offered
a
40
hour work
week, 	any
five
consecutive days, 	and
5%
swing
shift
differential.
AFSG1E
rejected
this offer.
On
January 10, 1978,
	the
District
offered
8 hours
per
day
and 40
per
week except
for
the
swing
shift
which would continue on
7~
hours
per
day and
37\
hours
per
week.
	No
lvbnday - Friday
work week was included. 	This
represented the
status
quo
	to
AFSCl-1E
and was
rejected.
On
January
13, 	1978, 	the
parties
were
in
agreement on use
of
school mails and remittance
of
dues. 	Grievance procedures were
discussed and
at
a
later
date, 	the
District
roved from
its
position
insisting
on American
Arbitration
Association.
At
the session of
January 18, 1978, Dr. 	Cochran, a
member
of the
District's
team indicated the Board
of
Trustees would be
resistant
to anything
that
smacked
of
taking
away management's
right
to
mm.age
and they would
not
be able to swing
all
three:
1:'.bnday
- Friday
work week,
	7\
hour work day, 	and
5~~
swing
shift differential.
During caucus, Dr. 	Cochran returned to the roomvvhere the
AFSG1E
team was, 	indicated he should not be there, 	that
he was not
-4-

negotiating, but that he wanted to clarify AFSCME's position on work
week/work day. AFSCME indicated their position was 8 hour day/40 hour
week, Monday through Friday work week, 5%% swing shift, and 64% for the extra
half an hour for swing shift.
Later in this session, the AFSCME representative felt there was
no way to reach a middle ground on work week/work day, and suggested a
side letter on flex time as an alternative. A booklet on flex time
prepared by U.C.L.A. was loaned to the District.
At this same meet and negotiate session, Dr. Wilson, the superintendent,
stated that the end of AFSCME's certification year was approaching
quickly. He stated that it was not to the District's advantage to
have AFSCME decertified if the District had its druthers. On the other
hand, it wouldn't break their heart. He stated that if AFSCME did not
give the District representatives time to take the agreement to the
Board of Trustees, they would not be able to complete it before
decertification. The parties were aware that CSFA had declared its
intent to seek decertification.
Earlier, on November 30, 1977, the AFSCME representative had met
with Dr. Hill, a representative from the District, at a restaurant and
raised the issue that AFSCME's certification would be running out.
A similar conversation was held at the same restaurant with Drs. Hill and Wilson
in early January, 1978. They said they had no desire for decertification.
At the January 19, 1978 meet and negotiate session, the AFSCME
representative offered to prepare language on flex time during caucus
and the District agreed to look at it. 	ring caucus, AFSCME began
to prepare the language, but after caucus the District indicated they were
not interested in it.
-5-
negotiating, but
	that
he wanted 	to
clarify
AFSCME'
s
pudtion
on
1.1ork
week/work day.
	AFSCME
indicated
their
position
was
8 hour day/
40
hour
week, 1-bnday through
Friday
work week,
	5%
swing
shift,
	and
	6\%
for
	the
extra
half
an hour
for
swing
shift.
later
in this
session, 	the
AFSCME
representative
felt
	there
was
no
way
to
reach
a middle grotmd on work week/work day, 	and suggested a
side
letter
on
flex
time
as
an
alternative.
	A
booklet
on
flex
	tirne
prepared by
U.
C.
L.A. was loaned
to
the
District.
At
	this
	same rneet and
negotiate session,
	Dr. Wilson,
	the
superintendP..nt,
stated that
the
end
of
AFSCME's
certification
year
was
approaching
quickly.
	He
stated that
	it
was
not to the
District's
advantage
to
have
AFSQ'1E
decertified
if
the
District
had
its
druthers.	
On	
the
other
hand,
	it
wouldn't break
their
heart.
	He
stated that
if
AFSCME
did not
give the
District
represe..~tatives time
to
take the
agreerrent
to
	the
. Board
of
Trustees,
	they would
not
be able
	to
complete
it
before
decertificationo
	The
parties
were aware
	that
CSEA
had declared ii-s
intent
to
seek
decertification.
Earlier,
	on Noverrber 30,
	19
	, 	the
AFSCME
representative
had
rret
with Dr.
	Hill,
	a
representative
from the
District, 	at
a
restaurant
and
raised the issue that
	AFSQ'1E's
	certification
would be running
out.
A
similar
conversation was
held
at
the
same
restaurant with Drs.
	Hill
and
in early
January, 	1978. 	They
said
they had no
desire for decertification.
At the January 19, 1978 meet and ne1?;otiate session, 	the
AFSQ-1E
representative offered to prepare language on
flex
time during caucus
and the District
agreed to look
at Du. 	During caucus,
AFSCME
began
to prepare the language, but after
caucus the District indicated thev were
not interested in
it.
-5-

A heated discussion on work week/work day followed and AFSCME
indicated no resolution was possible, so impasse was likely.
After caucus, the District suggested that the AFSCME local chapter
president serve as the AFSCME spokesperson rather than the AFSCME
business agent who had been spokesperson. This suggestion was
emphatically rejected and a caucus followed.
Following caucus, moods had cooled. The District offered a
y through Friday work week, an 8 hour day, 40 hour work week,
a 5% swing shift differential with a side letter on flex time. The
District's offer did not mention 6 % additional pay for those swing shift
employees whose work day would increase from 7% to 8 hours.
AFSCME caucused. During the caucus, the additional 6%% for the
increased half an hour was discussed. Following caucus, AFS
accepted the District's work week/work day proposal. The 6% for the
half an hour increase was not mentioned to any District representative.
No specific wording was agreed to, but the parties felt they had
conceptual agreement. Dr. Cochran indicated that was a lot to give.
Thereafter, negotiations moved rapidly and tentative agreement
was reached on a number of items. On several items, AFSCME changed
their position by agreeing to the status quo. At the end of the day,
AFSOME's representative stated, "We are pretty close."
On January 23, 1978, the parties met and agreement was reached on a
The 6%% for the increased half an hour was not
mentioned. Dr. Hill, a negotiator for the District, suggested a
three-year agreement as the Board of Trustees and administration were
-6-
A heated discussion on work week/work day followed and AFSCME
indicated no resolution was possible, 	so impasse was likely.
After caucus, 	the District suggested that the AFSCME local chapter
president serve as the AFSCME spokesperson rather than the AFSCME
business agent who had been spokesperson. 	This suggestion was
emphatically rejected and a caucus followed.
Following caucus, rroods had cooled. 	The District offered a
Monda through Friday work week, 	an 8 hour day, 40 hour work week,
a 5% swing shift differential with a side letter on flex time. 	The
District's offer did not mention 6\% additional pay for those swing shift
ernμloyees v.ihose work day would increase from 7¾. to 8 hours.
Mmday
AFSCME caucused. 	During the caucus, 	the additional 63,,;% for the
u:icreased half an hour was discussed. 	Following caucus, CME E
accepted the District's work week/work day proposal. 	The 6\% for the
half an hour increase was not mentioned to any District representative.
No specific wording was agreed to, 	but the parties felt they had
conceptual agreement. 	Dr. 	Cochran indicated that was 	a lot to give.
AFSCM
Thereafter, negotiations IIDved rapidly and tentative agreement
was reached on a nurrber of items. 	On several items, AFSCME changed
their position by agreeing to the status quo. 	the end of the day,
AFSCME's representative stated, 	"We are pretty close. 11
On January 23, 	1978, 	the parties met and agreement was reached on a
number of items. 	The 6~ 	for the increased half an hour was not
rr€ntioned. 	Dr. Hill, 	a negotiator for the District, 	suggested a
three-year agreement as the Board of Trustees and administration were
nurrber
-6-

anxious to return to items other than collective bargaining. On
January 25, 1978, there was some question as to three percentage
figures and the District's basis for arriving at them. Computations
had to be checked.
AFSCME then inquired as to how the staff on swing shift was to be
adjusted to reflect the additional 6%% representing compensation for the
half an hour increase in work day.
The District expressed surprise. Dr. Hill indicated that the
District throught they had agreement on work week/work day without the
61% increase for employees on swing shift.
AFSCME indicated that 	fered
by the District including 63% for the additional half an hour,
they would declare impasse.
Following caucus, the District's representatives suggested that
they keep discussions open and revert to a 7% hour work day with no
AFSCME suggested a 7% hour work day for swing shift with a 3%
differential.
AFSCME at all times felt that the District knew they had
a firm position requiring 6%% for the extra half an hour for swing shift
and, therefore, that the District's offer of January 19 implicitly
included 61%% for the extra half an hour.
Dr. Cochran, after it became evident that the parties did not have
conceptual agreement on work week/work day, stated that the District
felt they had agreement without the 6-3/4%% pay increase by giving
The 6-3/4%% was the increase initially sought by AFSCME.
-7-
anxious
	to
return
to
	items
other
than
collective
bargaining.	
On
January 25, 	1978,
	there
was
	some
question as
to
three
percentage
figures
	and
the
District's
basis for arriving
at
themo
	Computations
had
to
be checked.
AFSCME
then inquired
as
	to
how
the
staff
on swing
shift
was
	to
be
adjusted
to
reflect
the additional
6%%
representing
compensation
for the
half
an
hour
increase
in
work day.
The
District
expressed
surpriseo
	Dr.
	Hill
indicated
that
the
District
throught they had agreement on work week/work day
without
the
6%%
increase for
employees on swing
shift.
AFSQ1E
indicated	
ifif they didn't have the agreement of	they
didn't
have 	agreement
offered
by
the
District
	including
6%%
for
the
additional
half
an hour
they would
declare
impasse.
Following caucus,
	the
District's
representatives
	suggested
that
they keep
discussions
open and
revert
to
a
	7~
hour work day
with
no
differential.
al
o	
differenti
AFSCME
suggested a
7~
hour work day
for
swing
shift
with
a
3%
differential.
AFSCME
at all
times
felt
	that the
District
knew
they had
a firm position requiring
6\%
for the extra half
an hour
for
swing
shift
and,
	therefore, 	that the
District's offer of
January 19
implicitly
included
6%%
for the extra half
an hour.
Dr. 	Cochran,
	after
it
became evident that the parties did not have
conceptual agreement on work week/work day,
	stated that the District
felt
	they had agreement without the 6-3/4%6 pay increase by giving
6Toe 6-3/4~~ was the increase initially sought by
AFSCME.
-7-

the 5% differential to employees on swing shift.
The District suggested AFSCME accept the District's last counter-
proposal so they could take it to the Board that night and avoid the
decertification problem.
AFSCME indicated they were very close to impasse. The District
said they could not subscribe to this. A meet and negotiate session
was scheduled for February 2, 1978.
After the session adjourned, the AFSCME committee met to discuss
continuing to meet and negotiate or declaring impasse.
By letter of January 30, 1978, AFSCME declared impasse. On
January 31, 1978, the District wrote to AFSCME indicating they assumed
that since AFSCME had declared impasse, the meet and negotiate
session of February 2, 1978 was cancelled.
By letter of February 3, 1978, the San Francisco Regional Director
of PERB found an impasse existed. The District appealed the finding
of the Regional Director to the Executive Director of the PERB.
The mediator from State Conciliation Service contacted AFSCME on
February 6, 1978. On February 8, 1978, the AFSCME representative
spoke to the mediator to discuss the basis for the impasse. AFSCME
was ready to meet at any time on 24 hours' notice or less.
On Saturday, February 11, the date AFSCME's certification expired,
the mediator called the AFSCME representative and suggested trying to
set up meetings for Tuesday, February 14 or the following Thursday or
On Thursday, February 16, the mediator told AFSCME's representative
no meeting was set up because the District declined to meet pending
-8-
the
5%
differential
to
	employees on swing
shift.
The
District
suggested
AFSCME
accept
the
District's
last
colID.ter-
proposal
so
	they could
take
it
to the
Board
that
night
and
avoid
the
decertification
problemo
AFSCME
indicated
they
were
very
close
to
impasseo 	The
District
said
they
could
not
subscribe
to
thiso
	A meet and
negotiate session
was
	scheduled
for
February 2, 	1978.
After
the session
adjourned,
	the
AFSCME
comnittee met
to
discuss
continuing
to
meet and
negotiate
or
declaring
impasse.
By
letter
of
January 30, 	1978,
AFSCME
declared
impasse.	
On
January 31, 	1978,
	the
District
wrote
to
AFSCME
indicating
they
assumed
that
since
AFSQ1E
had
declared
impasse,
	the
meet and
negotiate
session
of
February 2, 	1978 was
	cancelled.
By
letter
of
Februai-y 3, 	1978,
	the
San Frai1cisco Regional
Director
of
PERB
folID.d
an impasse existeda 	The
District
appealed
the finding
of the
Regional
Director to the
Executive
Director
of
the
PERB.
The rrediator from
State Conciliation Service contacted
AFSCME
on
February 6, 	1978.	
On
February 8, 	1978,
	the
AFSCME
representative
spoke
to the rrediator
to
discuss the basis for the
impasseo
	AFSCME
was ready
to
meet
at
any time on 24
	hours' 	notice or less,
On Saturday, February 11,
	the date
AFSCME's
certification
expired,
the mediator
called the
AFSCME
representative
and suggested
trying to
set
up meetings
for
Tuesday, 	February 14
or the following Thursday
or
Friday.	Friday.
On Thursday, February 16, 	the mediator told
AFSCME
's representative
no meeting was set up because the District declined to meet pending
-8-

resolution of the appeal of the impasse, and that he had spoken to the
Regional Director. The Regional Director had spoken with the District on
February 15, 1978, to indicate mediation should continue pending the
The first mediation session was held on February 23, 1978. At the
next session on March 2, 1978, several counterproposals on work week/
work day were exchanged. The union's final counterproposal was to be
taken back to the Board of Trustees. Two days after the Board met,
the mediator reported to AFSCME that the proposal was not acceptable.
No official explanation was given to AFSCME.
CSEA filed for decertification on March 10, 1978.
Following a hearing in this matter on March 16, 1978, the parties
were scheduled to meet with the mediator. The District indicated
they would not meet, but later spent time talking with the mediator.
On March 31, 1978, the mediator declared that factfinding was
appropriate.
AFSCME placed the agreement reached between the District and CSEA
in evidence. This agreement covers clerical and paraprofessional
employees and provides for a 37% hour work week. Because of State
requirements under the retirement fund, clerical employees had moved from
a 7 hour work day to a 7% hour work day and had received a commensurate
increase in pay.
The agreement with CSEA provides:
expanded to other classes by mutual
agreement of the District and CSEA subject to the rules of EERB."
The District points out that AFSCME proposed the following language:
-9-
resolution of the appeal of the impasse, 	and that he l1ad spoken to the
Regional Director. 	The Regional Director had spoken with the District on
February 15, 1978, 	to indicate mediation should continue pending the
appeal.	appeal.
The first mediation session was held on February 23, 1978. 	At the
next session on March 2, 1978, 	several counterproposals on vJOrk week/
vJOrk day were exchanged. 	The union's final counterproposal was to be
taken back to the Board of Trustees. 	Two days after the Board met,
the mediator reported to AFSCME that the proposal was not acceptable.
No official explanation was given to AFSCME.
CSEA filed for decertification on March 10, 1978.
Following a hearing in this matter on }'hrch 16, 1978, 	the parties
were scheduled to meet with the mediator. 	The District indicated
they would not meet, but later spent time talking with the mediator.
On March 31, 1978, 	the mediator declared that factfinding was
appropriate.
AFSCME placed the agreement reached between the District and CSEA
in evidence. 	This agreement covers clerical and paraprofessional
employees and provides for a 37\ hour work week. 	Because of State
requirements under the retirement fund, 	clerical employees had moved from
a 7 hour work day to a 7\ hour work day and had received a comnensurate
increase in pay.
The agreeme..YJ.t with CSEA provides:
"The bargaining unit may be 	expanded to other classes by mutual
agreement of the District and CSEA subject to the rules of
bargaining unit may be EERB."
The District points out that AFSCME proposed the following language:
-9-

"The Employer further recognizes the Union as the exclusive
bargaining representative for all newly created positions,
except those that lawfully are certificated, management,
confidential and supervisory."
The District made a counterproposal of similar language.
Finally, AFSCME placed evidence on the record that on one occasion
in March of 1978, an employee on sick leave was at the maintenance
yard during coffee break attempting to get authorization cards for
CSEA signed. On another occasion, another employee who ha
her work day was in the maintenance yard near closing time with a
CSEA field representative talking to employees. AFSCME made protest
over failure of these persons to sign in and over presence of the field
representative during working hours. The employee on sick leave
said he was an employee and didn't have to sign in. AFSCME had no
knowledge of whether the CSEA field representative had signed in at
District administration offices or whether the District had followed
up on AFSCME's protests.
CONCLUSIONS OF LAW
The charge of surface bargaining was dismissed for failure to
prove a 	facie case. The record reflects that the District gave
issues. On the central issue of work week/work day,
there was substantial movement on the part of the District on s
Monday - Friday work week, 5 swing shift differential and 	side
letter on flex time. Following the January 19, 1978 session, AFSCME
claims they had the belief that the District's offer included the 61%.
The District's belief was that their offer had been accepted as
proffered without the 61.
-10-
nThe Employer further recognizes the Union as the exclusive
bargaining representative for all newly created positions,
except those that lawfully are certificated, management,
confidential and supervisory."
The District made a cotmterproposal of similar language.
Finally, AFSCME placed evidence on the record that on one occasion
in March of 1978, an employee on sick leave was at the
yard during coffee break attempting to get authorization cards for
CSEA signed. 	On another occasion, 	another employee who had	d completed
her work day was in the maintenance yard 	near closing tim2 with a
CSEA field representative talking to employees. 	AFSCME made protest
over failure of these persons to sign in and over presence of the field
representative during workine hours. 	The employee on sick leave
said he was an employee and didn' t 	have to sign ino 	AFSCME had no
knowledge of whether the CSEA field representative had signed in at
District administration offices or wbether the District had followed
up on AFSCME's protestso
CONCLUSIONS OF LAW
The charge of surface bargaining was dismissed for failure to
prove 	a prima facie case. 	The record reflects that the District gave
on a number of issues. 	On the central issue of work week/work day,
there was substantial novement on the part of the District on tandard
J\bnday - Friday work week, 	5% swing shift differential and in the 	side
letter on flex time 	Following the January 19, 1978 session 	AFSCME
claims they had the belief that the District's offer included the 6%%.
The District's belief was that their offer had been accepted as
proffered without the 6%%.
-10-

The District offer of January 19, 1978 did not include the 63%
for the additional half an hour. The District reasonably hoped that
the 5%% differential would suffice. Despite the fact that AFSCME
discussed the 6 % in caucus, they never raised it with the District
on the 19th of January. Since negotiations involve constant movement
of parties from heretofore adamant positions, AFSCME's secret
retention of its position on the 6% cannot be transformed into a tacit
offer by the District or an effort by the District to lead AFSCME to
believe they had given in on this issue of the 6%% so as to delay
negotiations until certification ran out. The District made a specific
offer and AFSCME accepted the offer. If AFSCME thought the offer
included the 6 %, they should have mentioned it. Their failure to do so
cannot be transformed into surface bargaining on the part of the District.
While the offering of a proposal which cannot be accepted coupled
with an inflexible attitude on major issues and the failure to offer
reasonable alternatives has been held to be surface bargaining, that has
not occurred in this case. Although AFSCME suggests the District knew they
could not accept an offer unless it included the 61%, they never made that
position clear to the District. The movement made by the District from
no set work week to any consecutive five days and, finally, to AFSCME's
demand of a Monday-Friday work week and from no swingshift differential to
a 5%% swingshift differential, does not support the accusation of an
'S. Marina & Sons, 163 NLRB 1071, 65 LRRM 1054 (1967), Ray E. Hansen, Jr.,
Mig. , 137 NRB 251, 50 LRRM 1134 (1962) .
-11-
The
District offer
of
January 19, 1978
did not
include the
6%%
for the additional
half
an hour. 	The
District
reasonably hoped
that
the
5%
differential
would
sufficeo 	Despite
the
fact that
AFSCME
discussed
the
6%%
in
caucus, 	they never
raised
it
with the
District
on
the
19th
of
January. 	Since
negotiations
	involve
constant
TIDvernent
of parties
from
heretofore
adarnant
positions,
AFSCME's
secret
retention
of
its
position
on
the
6¾%
cannot be
transfonred
into
a
	tacit
offer
by
the
District
or
an
effort
by
the
District
to
lead
AFSCME
to
believe
they had given
in
on
this
	issue
of
the
6\~~
so as
	to
delay
negotiations
until certification
ran out.
	The
District
made
a
specific
offer
and
AFSCME
accepted
the
offer.
	If
AFSCME
thoup-.,ht
the
offer
included
the
6\%, 	they should have mentioned
it.
	Their
failure
	to
do so
cannot be transfonned
into
surface bargaining on
the
part
.of the
District.
While
the offeri.ig
of
a proposal wt1ich
ca..'1Il.ot
be accepted coupled
with
an
inflexible attitude
on major
issues
and the
failure
	to
offer
reasonable
alternatives
r,as been
held to
be
surface bargaining,
7
that
has
not
occurred
in this
	case. 	Although
AFSCME
suggests the
District
knew they
could
not accept an
offer
unless
it
included the
6\%, 	they never made
	that
position clear to the
District.
	The
TIDvement
made
by the
District
from
no
set
work week
to
any consecutive
five
days and,
	finally,
	to
AFSCME's
demand
of
a M)nday-Friday work week and from no swingshift
differential to
a
5%
swingshift
differential,
	does
not support the accusation
	of
an
7s. :Marina & Sons, 	163
NLRB
1071, 	65
LRRM
1054 (1967),
	Ray
E. Hansen,
	Jr.,
Mfg., 	137
NLRB
251, 	50
LRRM
1134 (1962).
-11-

inflexible attitude. The District was also willing to revert from its
position that swingshift move from a 73 hour day/37% hour week to an
8 hour day/40 hour week back to accepting the status quo of a 7% hour day/
37% hour week.
Assuming, arguendo, that the District's proposal on January 19th
had been predictably unacceptable as claimed by AFSCME, it would not
constitute surface bargaining unless it foreclosed future negotiations
or was so patently unreasonable as to frustrate possible agreement.
Neither the District's offer of January 19th nor its response to discovery
of error on January 25th evidence intent to foreclose future negotiations.
Nor can it be said that the District was trying to push AFSCME
to decertification. The fact that the certification year would be up
on February 11, 1978 was raised by AFSCME on November 30, 1977 and
again in January, 1978. Nothing in the record indicates intent by the
District to do anything other than attempt to reach agreement. The
fact that AFSCME subjectively felt pressured to reach agreement is not
attributable to the District, but to the objective fact that only one
year of certification is provided following election.
The desire expressed by the District to reach agreement soon so
they would have time to take it to the Board of Trustees for ratification
before AFSCME's certification expired and the suggestion of a three-year
-12-
inflexible attitude.
	The
District
was
also
willing
to
revert
from
its
position that
swingshift
nove from a
7%.
hour
day/37%.
hour week
to
an
8 hour day/40 hour week back
to
accepting
the
status
quo
of
a
7%.
hour day/
37%.
hour week.
Assuming, 	arguendo,
	that
the
District's
proposal on January
19th
had been
predictably
unacceptable
as
claimed by
AFSCME,
	it
would
not
constitute
surface bargaining unless
	it
foreclosed
future negotiations
or
was so
patently
unreasonable as
	to
frustrate
possible
agreement.
Neither the
District's
offer of
January
19th nor
its
response
to discovery
of
error
on January 25th evidence
intent
to foreclose future negotiations.
Nor can
it
be
said that
the
District
was
	trying to
push
AFSCME
to decertificationo
	The
fact that
the
certification
year
would be up
on February 11, 1978 was
raised
by
AFSCME
on November 30, 	1977 and
again
in
January, 	1978. 	Nothing
in
the record indicates
inte.11.t
by
the
District
to
do
anything
other
than attempt to reach agreement. 	The
fact that
AFSCME
subjectively
felt
pressured
to
reach agreement
is
not
attributable
to the
District,
	but to the objective fact that
only one
year
of certification is
provided following
election.
The
desire
expressed by
the
District
to reach agreement soon so
they would have time to take
it
to the Board
of
Trustees for
ratification
before
AFSCME's
certification
expired and the suggestion
of
a three-year
-12-

agreement by them is evidence of the desire for peace in employer/
employee relations, not an expression of desire to oust AFSCME in
favor of CSEA.
AFSCME argues that the work week offer by the District constitutes
a net decrease in pay. Nothing in the record supports this argument.
AFSCME argues that the District's final offer was a take-it or
leave-it offer and that the District never moved from adamant insistence
on a 40 hour work week. However, the record reflects that when the
mutual mistake as to work week was discovered on January 25, 1978, the
District offered to revert to a 7% hour work week for swing shift and
delete the differential; proposals were also exchanged in mediation.
AFSCME urges the 373 hour work week for clerical as evidence of
preference on the part of the District. Since this represents an
increase, this evidence is irrelevant for purposes of showing
preference. The background, pay rates, and terms and conditions of
employment for clericals simply are not analogous to the conditions
of employment in the maintenance and operations unit.
AFSCME claims the language in the agreement with CSEA . is designed
to simply sweep the maintenance and operations unit under that agreement.
It cannot be said that the language was designed for anything more than
including new classifications within the CSEA unit, should any be created.
Presumably, that was the intent of similar language in AFSCME's proposed
agreement. The contrac 	reement between CSEA and the
See p. 9, supra.
-13-
agreement by them
is
evidence
of
the
desire for
peace
in
employer/
employee
relations,
not
an
expression
of
desire to 	oust
AFSCME
in
favor
of
CSEA.
AFSCl-'lE
argues
	that
the
work week
offer
by
the
District
constitutes
a
net
decrease
in
pay. 	Nothing
in
the record
supports
	this
argument.
AFSCl-'lE
argues
	that
the
District's
final offer
was a
take-it or
leave-it offer
and
that
the
District
never
IIDved
from adamant
insistence
on a
40
hour work week. 	However,
	the
record
reflects that
when
the
mutual mistake as
	to
work week was
	discovered on January 25, 	1978,
	the
District
offered to
revert
to
a
7\
hour work week
for
swing
shift
and
delete
the
differential;
	proposals were
also
exch~Dged
iD
mediation.
AFSCl-'lE
urges
	the 37\ hour work week
for
clerical
as
evidence
of
preference on
the
part of
the
District.
	Since
this
represents
an
increase,
	this
	evidence
is
irrelevant for
purposes·
of
showing
preference.
	The background, 	pay
rates,
	and tenns and conditions
of
employment
for
clericals
simply
are not
analogous
	to the conditions
of
employment
in
the
maintenance and operations
unit.
8
is
designed
to simply sweep
the
maintenance and operations
mit
under
that
agreement.
It
cannot be
said that
the language was designed
for
anything IIDre
than
including new
classifications within the
CSEA
mit,
	should any be created.
Presumably,
	that
was
	the intent of similar
language
in
AFSCME'
s 	proposed
agreerre.rit. 	contract language 	the agreement bev.veen
CSEA
and
thet language in the ag
AFSCl-'lE
claims
the
language
in
the
agreement with
CSEA
8
Seep. 	9,
	~·
-13-

District is not evidence of intent by the District to include maintenance
and operations employees under that agreement.
Regarding failure to participate in the impasse procedures in
good faith, impasse was found by letter of February 3, 1978; the
mediator contacted AFSCME on February 6 and spoke with their
representative on February 8, 1978. On the 11th, the mediator
suggested they attempt to meet on the 14th, 16th or 17th. On the 16th,
the mediator advised AFSCME that the District had declined to meet
because the finding of impasse was being appealed. The Regional
Director spoke with the District on the 15th and advised them that,
under the rules and regulations, mediation should continue pending
outcome of the appeal. The record does not reflect when the mediator
spoke with the District, or how long a delay, if any, resulted. because
the District declined to mediate pending outcome of their appeal.
Nor does the record reflect that the District refused to mediate at
any time subsequent to their conversation with the Regional Director.
Based on this record, it cannot be said that the District refused to
participate in good faith in the impasse procedures.
AFSCME argues persistent refusal to participate in mediation with
the exception of February 23 and March 2, 1978. The record reflects
only the one delay of unexplained length on the part of the District.
There is no evidence of persistent refusal.
Further, it is noted th 	CME never attempted to communicate with
the District to move the process along. Nor is this a situation where
time was of the essence and the slightest delay would create irreparable
-14-
District
is
not
evidence
of
intent
by
the
District
to include
maintenance
and
operations
employees under
that
agreement.
Regarding
failure
	to
participate in
the
impasse procedures
in
good
faith,
	impasse
was
	found by
letter
of
February 3, 	1978;
	the
mediator
contacted
AFSCME
on February 6 and spoke
with
their
representative
on February 8, 1978.
	On
the
11th,
	the
mediator
suggested they attempt
to
meet on
the
14th, 	16th
or
17th.
	On
the 16th,
the
mediator advised
AFSCME
that
the
District
had
declined
to
meet
because
the finding
of
impasse
was
being appealed. 	The Regional
Director
spoke
with the
District
on
the
15th and advised them
that,
under
the
rules
and
regulations,
	mediation should conth-iue pending
outcome
of
the appeal.
	The
record
does
not
reflect
when
the
rnediator
spoke
with the
District,
	or
how
long a delay,
	if
any;
	resulted.because
the
District
declined
to
mediate pending outcome
of
their
appealo
Nor does
	the record
reflect
that
the
District
refused to
mediate
at
any t:irre subsequent
to
their
conversation with the
Regional
Director.
Based on
this
record,
	it
cannot be
said that
the
District
refused to
participate in
good
faith in
the impasse procedures.
AFSCME
argues
persistent refusal to participate in
rnediation
with
the exception
of
February
23
and March 2, 	1978. 	The record
reflects
only the one delay
of
unexplained length on the
part of
the
District.
There
is
no evidence
of persistent refusal.
Further,
	it
is
notedat AFS
AFSCME
never attempted to conmunicate with
the District to IIDve the process along. 	Nor
is this
a
situation
'Where
time was
of the essence and the slightest
delay would create irreparable
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injury. Because of the timing of the declaration of impasse by AFSCME,
it was not until February 11, 1978, the date on which AFSCME's certification
year expired, that the mediator called AFSOME to suggest specific dates
the following week for mediation. Thus, there was no possibility that
rapid action could result in agreement while AFSCME was still within the
protective umbrella of their certification year.
For the foregoing reasons, it is found that AFSCME failed to put on
sufficient evidence to support the charge of failure to participate in
the mediation procedures in good faith.
Since AFSCME completed their case and the record failed to support
their charges, this dismissal will be without leave to amend.
AMENDED PROPOSED ORDER
Upon the foregoing findings of facts, conclusion of laws and the
entire record in this case, it is HEREBY ORDERED THAT THE UNFAIR PRACTICE
CHARGE, ALLEGING VIOLATION OF SECTIONS 3543.5(c) & (e) , FILED BY LOCAL 377,
COUNCIL 57, AFSCME, AFL-CIO ARE DISMISSED.
The parties have twenty (20) calendar days after service of this
Proposed Decision in which to file exceptions in accordance with California
Administrative Code, Title 8, Part III, Section 32300. If no party files
timely exceptions, this Proposed Decision will become final on May 26, 1978
and a Notice of Decision will issue from the Board.
Dated: May 1, 1978
Sharrel J.
Hearing Officer
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injury. 	Because of the timing of the declaration of impasse by AFSCME,
it was not until February 11, 	1978, 	the date on which AFSQ1E's certification
year expired, 	thaf: the TIEdiator called AFSQ1E to suggest specific dates
the following week for TIEdiation. 	Thus, 	there was no possibility that
rapid action could result in agreerrent while AFSQ1E was still within the
protective umbrella of their certification year.
For the foregoing reasons, it is found that AFSQ1E failed to put on
sufficient evidence to support the charge of failure to participate in
the TIEdiation procedures in good faith.
Since AFSQ1E completed their case and the record failed to support
their charges, 	this dismissal will be without leave to arr.end.
AMENDED PROPOSED ORDER
Upon the foregoing findings of facts, 	conclusion of laws and the
entire record in tjlis case, 	it is HEREBY ORDERED THAT TilE UNFAIR PRACTICE
CHARGE, ALLEGING VIOIATION OF SECTIONS 3543.S(c) & (e), 	FILED BY lDCAL 377,
COUNCIL 57, AFSQ1E, AFL-CIO ARE DISMISSED.
The parties have twenty (20) 	calendar days after service of this
Proposed Decision in which to file exceptions in accordance with California
Administrative Code, 	Title 8, 	Part III, 	Section 32300, 	If no party files
timely exceptions, 	this Proposed Decision will become final on May 26, 	1978
and a Notice of Decision will issue from the Board.
Dated: May 1, 	1978
✓ 	I I..,. 	j
Sharrel J. Wyatt
Hearing Officer
Wyatt{,,/ 	&
-15-