Davis Unified School District/New Haven Unified School District/Newark Unified School District/State Center Community College District/Centinela Valley Union High School District (PERB 0116E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, 	)
Charging Party,
v.
DAVIS UNIFIED SCHOOL DISTRICT,
Respondent.
) 	Case No. 	S-CE-78
)
NEW HAVEN TEACHERS ASSOCIATION, 	CTA/NEA, 	}
Charging Party, 	)
v.
NEW HAVEN UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-126
)
-)
NEWARK TEACHERS ASSOCIATION,
Charging Party,
v.
NEWARK UNIFIED SCHOOL DISTRICT,
Employee Organization.
)
) Case No. 	SF-CE-127
PERB DECISION NO. 	116
February 22, 	1980
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
Charging Party,
STATE CENTER COMMUNITY COLLEGE DISTRICT,
Respondent.
}
) 	Case No. 	S-CE-80
)
I
CENTINELA VALLEY SECONDARY TEACHERS
ASSOCIATION,
Charging Party,
v.
CENTINELA VALLEY UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-180

2
Appearances; 	Charles L. 	Morrone, 	Attorney, 	for California
School Employees Association; 	Gary G. 	Mathiason and Harlan E.
Van Wye, Attorneys 	(Littler, Mendelson, Fastiff & Tichy), for
Davis Joint Unified School District; 	J. 	Michael Amis, 	Attorney
(White, Giambroni & Walters), 	for New Haven Teachers
Association, 	CTA/NEA and 	for Newark Teachers Association; 	Jon A.
Hudak, 	Attorney 	(Breon, Galgani 	& Godino), 	for New Haven Unified
School District; 	Lee T. 	Paterson, Attorney 	(Paterson and
Taggart), 	for Newark Unified School District; 	Robert W. 	Stroup,
Attorney 	(Paterson 	& Taggart) 	for 	State Center 	Community College
District; 	Charles R. 	Gustafson, 	Attorney for Centinela Valley
Secondary Teachers Association; 	William Kay, 	Attorney 	(Whitmore
& Kay) 	for 	Centinela Valley Union High School District.
Before Gluck, Chairperson; Gonzales, Member.1
DECISION
These 	cases 	are before 	the 	Public Employment Relations Board
(hereafter 	PERB or 	Board) 	on exceptions by 	the 	State Center
Community College District 	(hereafter 	State 	Center 	District),
the 	New Haven Unified 	School 	District 	(hereafter 	New Haven
District), 	the Newark Unified School District 	(hereafter Newark
District), 	the Davis Unified School District 	(hereafter Davis
District), 	the Centinela Valley Union High School District
1 Board Member Moore 	did not participate 	in 	this decision.
2

3
(hereafter 	Centinela District), 	and 	the California School
Employees Association 	(hereafter CSEA) 	to five 	hearing 	officers'
proposed 	decisions. 	They 	have 	been 	consolidated 	for 	decision
because 	they 	concern 	the 	same 	issue: 	Whether 	a public 	school
employer 	may 	unilaterally 	freeze 	"step 	and 	column" 	salary
increases of 	its employees.
Each 	hearing 	officer's 	decision 	found 	that 	the 	step 	and
column 	salary 	freezes 	in question were 	unilateral 	changes 	in
employment 	conditions 	which 	constituted 	unlawful 	refusals 	to
meet 	and 	negotiate. 	Additionally, 	in each case 	the 	hearing
officer 	found, 	citing 	San Dieguito Union High 	School
District,2 that 	the 	salary 	freeze 	had 	the 	natural 	and probable
consequence 	of 	interfering 	with 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act3 so 	that 	the District's 	conduct 	violated
section 3543.5(a). 	All 	five districts 	have excepted 	to the
findings 	of 	the 	hearing 	officers 	that 	their 	actions 	in 	freezing
step 	and 	column 	salary 	increases 	violated 	sections 	3543.5 (a) 	and
2(9/2/77) 	EERB Decision No. 	22. 	In Carlsbad Unified
School District 	(1/30/79) 	PERB Decision No. 	89, 	a majority of
the Board 	overruled 	San Dieguito to 	the 	extent 	it 	held 	that 	an
unlawful 	motive must be 	shown 	in proving 	a 	violation 	of
section 3543.5 (a).
3The 	Educational 	Employment 	Relations Act 	(hereafter 	EERA)
is 	codified 	at Government Code 	section 	3540 	et 	seq. 	All 	further
statutory 	citations 	are 	to 	the 	Government Code 	unless 	otherwise
specified.
W

• 	• 	•
4
3543.5(c).4 CSEA has 	taken exception 	to the 	findings of 	the
hearing 	officer 	in 	State 	Center 	that 	CSEA had 	waived 	any 	claim
to 	retroactive 	payment 	of 	salary 	increments.
We 	have 	considered 	each of 	the 	records 	as 	a 	whole 	in 	light
of 	all 	the 	exceptions 	filed 	and 	affirm the 	findings of 	the
hearing officers 	that, 	in each case, 	the district 	failed 	to
negotiate 	on matters 	within 	the 	scope 	of 	representation.
However, 	in State Center 	we 	find 	there 	was 	no waiver of 	the
rights 	of 	employees 	to 	retroactive payment of 	salary 	increments,
The 	two Board members participating 	in 	these 	cases 	disagree
on 	whether 	a 	failure 	to meet 	and 	negotiate 	necessarily
constitutes 	an 	interference 	with 	employees because 	of 	their
exercise 	of 	rights 	under 	the 	EERA in 	violation of 	section
3543.5(a) 	and 	therefore 	reach no decision on 	that 	issue 	here.
See 	San Francisco Community College District 	(10/12/79) 	PERB
4Sections 3543.5(a) 	and 	(c) 	provide:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate 	against employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.

5
Decision No. 	105 	for 	a discussion of 	this 	issue 	as 	decided by a
majority 	of 	the present 	Board.
The 	Newark 	and Davis 	Districts 	have 	requested 	an 	opportunity
to orally argue 	the 	issues 	in 	their 	cases before 	the Board. 	We
deny 	these 	requests; 	the 	issues 	have 	been adequately developed
in 	the briefs 	submitted 	to 	the Board.
FACTS
Step 	and 	Column 	Salary 	Increases
These 	cases 	concern 	the 	freeze 	on 	salaries 	which 	occurred
when 	the 	public 	school 	employers 	in question 	unilaterally
eliminated 	so-called 	step 	and 	column 	increases 	during
negotiations 	for 	a 	1977-78 	contract. 	Step 	and column 	increases
are methods of 	automatically 	increasing 	employees' 	salaries 	for
longevity 	(step) 	and qualifications 	(column).
For 	instance, 	in Newark, 	a portion of the 1976-77 	salary
schedule 	for 	certificated 	employees 	was 	as 	follows:
STEP CLASS 	I
AB CLASS 	II
AB + 15 CLASS 	III
AB + 30 CLASS 	IV
AB + 45 CLASS 	V
AB + 60
CLASS 	VI
AB 	+ 75
1 	9,414 	10,005 	10,596 	11,181
2 	10,005 	10,596 	11,188 	11,780 	12,371
3 	10,596 	11,188 	11,780 	12,371 	12,962 	13,544
4 	11,188 	11,780 	12,371 	12,962 	13,544 	14,146
5 	11,780 	12,371 	12,962 	13,544 	14,146 	14,737
6 	12,371 	12,962 	13,544 	14,146 	14,737 	15,329
7 	12,962 	13,554 	14,146 	14,737 	15,329 	15,920
8 	13,544 	14,146 	14,737 	15,329 	15,920 	16,512
9 	14,146 	14,737 	15,329 	15,920 	16,512 	17,103
10 	14,737 	15,329 	15,920 	16,512 	17,103 	17,695
11 	16,512 	17,103 	17,695 	18,286
12 	17,103 	17,695 	18,286 	18,878
13 	17,695 	18,286 	18,878 	19,469

6
As 	employees gained 	longevity, 	they moved 	from one 	step 	to
the 	next 	each year. 	As 	they attained more 	educational
training, 	they moved 	from one 	column 	to 	the 	next.
In each 	case 	before 	the Board, 	the 	district admittedly
implemented policies 	which placed 	the 	employees 	in question 	at
the 	same 	position 	and 	dollar 	amount 	on 	the 	1977-78 	salary
schedule 	as 	they 	had 	attained 	during 	the 	1976-77 	fiscal year.
In Davis, New Haven, Newark, 	State Center, and Centinela
the 	hearing 	officers' 	statements 	of procedural 	history and
facts 	are 	without prejudicial 	error 	and 	are 	adopted 	as 	the
findings 	of 	the Board 	itself.5
DISCUSSION
In 	their 	exceptions 	and 	supporting 	briefs, 	the 	districts
make 	the 	following 	arguments:
1. 	PERB 	should 	not 	follow 	federal precedent 	that 	a
unilateral 	salary 	freeze may be 	a 	failure 	to
negotiate; 	PERB 	should 	instead 	look 	to certain public
sector 	precedent which 	finds 	such a 	freeze 	to be
lawful.
5 In Centinela, 	the 	record does 	not 	support 	the 	hearing
officer's 	statement 	that when 	the 	budget was 	adopted, 	the
superintendent 	was 	aware 	that 	additional 	savings 	could 	be
achieved by alterations 	in class 	size. 	However, 	since 	our
decision 	does 	not 	rest 	on 	a 	finding 	that 	the Centinela District
had 	the 	financial 	ability 	to pay 	increments 	as 	of 	September 	7,
we 	do not 	find 	this 	error 	to be 	significant.
6

7
2. 	Even 	if PERB does 	follow federal precedent, 	there was
no 	change 	in 	the 	status quo because 	there was 	no past
practice 	of paying 	salary 	increments.
a. 	The past practice 	has been 	to reach 	agreement
on 	salary 	increments 	before 	implementation.
b. 	Past practices 	cannot be 	established 	by
evidence 	of 	conduct prior 	to 	implementation of 	the
EERA.
c. 	The 	practice 	was 	terminated 	by 	an 	interim
agreement between 	the parties.
3. 	The 	district 	fulfilled 	its 	obligation by negotiating
before 	freezing 	salaries.
4. 	The 	totality of 	circumstances 	indicates 	that 	the
district 	negotiated 	in good 	faith; 	therefore 	under
federal precedent 	no 	violation 	should 	be 	found.
5. 	Since 	California 	case 	law 	indicates 	that 	salaries
cannot 	be 	reduced 	after 	July 	1,6 	the 	freeze 	was
justified:
a. 	by fiscal necessity;
6 See, e.g., Rible v. 	Hughes 	(1944) 	24 Cal.2d 437, 	444 	[150
P.2d 455, 	154 A.L.R. 	137]; 	Abraham v. 	Sims 	(1935) 	2 Cal.2d 698,
711 	[34 P.2d 790, 	43 P.2d 1029]; 	A.B.C. 	Federation of Teachers
v. 	A.B.C Unified Sch. 	Dist. 	(1977) 	75 Cal.App.3d 332, 	337-339
[142 Cal. 	Rptr. 	111]. 	Also see San Mateo County Community
College District 	(6/8/79) 	PERB Decision No. 	94; 	San Francisco
Community College District 	(10/12/79) 	PERB Decision No. 	105.
7

8
b. 	to preserve 	the 	negotiating position of 	the
district 	and 	maintain 	flexibility 	in 	negotiations.
Two of 	these 	arguments, 	raised by all 	the districts, go to
the 	overall 	issue 	of whether 	unilateral wage 	freezes 	in general
constitute 	an 	unlawful 	failure 	to 	negotiate 	in good 	faith.
These 	are: 	whether 	PERB 	should 	follow 	that public 	sector
precedent which 	finds 	wage 	freezes 	to be 	lawful, 	and whether
such 	wage 	freezes 	should 	be 	justified 	by California 	case 	law
that 	certificated 	employee 	wages 	cannot 	be 	reduced 	by 	the
District 	after 	July 	1.
PERB 	has 	already 	responded 	to 	these 	arguments 	in 	San Mateo
County Community College District, 	supra PERB Decision No. 	94
and San Francisco Community College District, 	supra PERB
Decision No. 	105. 	In those 	cases, 	the Board decided that 	the
district's 	unilateral 	salary freeze 	in 	the 	face 	of 	a perceived
financial 	emergency engendered 	by 	the passage 	of 	Proposition 	13
constituted 	an 	unlawful 	failure 	to negotiate 	in good 	faith.
In 	its 	decision in San Mateo, 	the Board set forth 	its
reasons 	for 	prohibiting 	unilateral 	changes 	in 	terms 	and
conditions of employment. 	In so doing, 	it rejected the
district's 	argument 	that 	PERB 	should 	follow 	those 	jurisdictions
that 	have 	held 	that withholding 	salary 	increments 	does 	not
constitute unilateral 	change 	or 	is 	justified by 	the 	differences
between public 	and private employers. 	See, 	e.g., 	Board of
Cooperative 	Educational 	Services 	of Dockland County v. 	New York
Co

State 	Public Employment Relations Board 	(1977) 	41 	N.Y.2d 753 	[95
LRRM 3046]. 	This position was 	affirmed 	in San Francisco
Community College District, supra, PERB Decision No. 	105, 	at
page 	7.
In 	neither 	San Mateo nor 	San Francisco did 	the Board
directly 	address 	the 	issue of 	whether 	a 	salary 	freeze 	is 	a
unilateral change 	in employment conditions; 	in those cases, 	the
districts 	acknowledged 	that 	they 	had 	changed 	employment
conditions, 	but 	argued 	that 	their 	changes were 	necessary under
the circumstances. 	Several districts 	in 	the present cases 	argue
that 	a salary freeze 	is not a unilateral change, 	but 	rather 	is
necessary 	to maintain 	the 	status quo, 	relying 	on 	certain public
sector 	cases.7
7 See, 	e.g., 	Board of Cooperative Educational Services of
Rockland 	County 	v. 	New York 	State 	Public 	Employment 	Relations
Board, 	supra, 	41 N.Y.2d 753; Pinellas County Police Benevolent
Association v. 	City of St. 	Petersburg 	(1977) 	3 FPER 205 	[95 LRRM
3027].
9

conditions 	of 	employment,"8 and 	found 	the 	district's 	action
lawful because 	it 	was 	consistent with 	the district's past
practice. 	And 	in NLRB v. 	Allied Products Corp. 	(6th Cir. 	1977)
548 F.2d 644 	[94 LRRM 2433], 	the court stated, 	"The 	[NLRA] 	is
violated 	by 	a 	unilateral 	change 	in 	the 	existing 	wage 	structure
whether 	that 	change be 	an 	increase 	or 	the 	denial 	of 	a 	scheduled
increase." 	Public employment 	relations 	boards 	and 	courts 	in
other 	states 	have 	also 	considered 	incremental 	salary 	increases
as part of 	the 	status quo. 	See, 	e.g., 	Hudson County 	(1978)
4 	NJPER 87; 	Ledyard Board of Education 	(1977) 	Connecticut 	State
Board 	of Labor Relations Decision No. 	1564; 	Springfield Board of
Education 	v. 	Springfield 	Education Association 	(1977)
47 	Ill.App.3d 	193 	[95 LRRM 3000]. 	Also see Hernando County
School Board 	(Fla. 	1977) 	3 FPER 246; 	University of Maine 	(1979)
Maine Labor Relations Board Case No. 	79-08, 	which hold 	that 	the
unilateral 	elimination 	of 	regularly 	scheduled 	salary 	increments
during 	negotiations 	for 	a 	first 	collective 	bargaining 	agreement
is 	an 	unlawful 	refusal 	to negotiate.
8While 	the 	PERB 	is 	not 	bound 	by case 	law developed 	under
the National Labor Relations Act, 	29 U.S.C. 	section 151 et 	seq.
(hereafter NLRA), 	it may take cognizance of 	federal precedent 	in
interpreting provisions of 	the 	EERA which 	are 	similar 	to
provisions 	in 	the NLRA. 	See, 	e.g., 	Sweetwater Union High School
District 	(11/23/76) 	EERB Decision No. 	4; 	also see Fire Fighters~
Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608. 	Both the NLRA
and 	the EERA provide 	that 	it 	is 	unlawful 	for 	an employer 	to
refuse 	to negotiate 	in good 	faith with 	an exclusive
representative 	(29 U.S.C. 	sec. 158(a)(5); Gov. Code sec.
3543.5(c)) .
10

In all of 	the present cases, 	the consistent past practice
was 	that 	employees 	would 	advance 	in pay grade 	annually 	according
to 	their 	increasing 	level of 	experience 	and, 	for 	certificated
employees, 	educational attainment. 	The 	status quo was 	not 	the
dollar amount paid to each employee on July 1, 	1977. 	The 	status
quo was 	that 	employees 	would 	obtain 	salary 	increases 	each 	fall
if 	they met certain requirements. 	Thus, 	each district's
unilateral 	decision 	to eliminate 	the 	regularly 	scheduled 	salary
advancements 	constituted 	a change 	in 	the 	status quo.9
In each of 	the cases before 	us, 	the 	district argues 	that
even 	if 	its 	action 	in 	freezing 	salaries was 	a 	unilateral 	change,
it 	had 	to 	take 	this 	action by 	the beginning 	of 	the 	school year
(July 	1) 	since 	it would be 	unable 	to lower 	the 	increments 	after
that 	date.10 	Because 	of 	this, 	the districts argue, 	they lose
1 0 In County and City of San Francisco v. 	Cooper 	(1975) 	13
Cal.3d 898, 930, fn. 18 	[120 Cal.Rptr. 	707, 534 P.2d 403], the
California Supreme Court noted: 	". 	. 	.Past cases clearly
indicate 	. 	. 	. 	that a school board may not lower 	salaries 	fixed
by 	its 	salary schedule 	after 	the beginning of 	the 	school year. 	,
. 	." 	The Court cited Rible v. 	Hughes, 	supra, 	24 Cal.2d 437;
Abraham v. 	Sims, 	supra, 	2 Cal.2d 698; 	Aebli v. 	Board of
Education 	(1944) 	62 Cal App.2d 706 	[145 	P.2d 601]. 	The most
recent case on 	this 	issue 	is A.B.C. 	Federation of Teachers v.
A.B.C. 	Unified School District, 	supra, 	75 Cal.App.3d 332.
California Education Code 	section 79000 	states:
The 	school year 	begins 	on 	the 	first 	day of July 	and
ends on 	the 	last 	day of June.
9For 	a 	further 	discussion of 	this 	issue 	with 	respect 	to
the Centinela District, 	see pages 23-24, 	infra.
11

any 	flexibility 	to negotiate 	lower 	increments, 	even 	in 	the 	face
of 	financial 	difficulties. 	Therefore, 	they must 	unilaterally
freeze 	salaries, 	or 	even lower 	them as was done 	in San Mateo, 	in
order 	to preserve 	all 	negotiating 	options. 	In both San Mateo
and San Francisco, 	PERB 	rejected 	such 	arguments.
In San Mateo, 	which 	involved classified employees, 	PERB
found 	the 	line of 	cases 	ending 	with A.B.C. 	Federation of
Teachers v. 	A.B.C. Unified School District, 	supra, 	75 Cal.App.3d
332, 	to be 	inapplicable 	since 	those 	cases 	were 	decided before
the 	EERA was 	enacted 	and 	applied 	to 	teachers, 	not classified
employees. 	San Francisco, 	however, 	involved certificated
employees, 	including 	teachers. 	In 	that case, 	the Board noted:
The District's 	argument 	that 	it 	had 	to adopt
a 	salary 	schedule 	by July 	1 	is 	not
persuasive. 	While 	the 	tentative 	budget 	is
due 	on July 	1, 	the 	final budget 	is 	not due
until August 8. 	(Cal. 	Ed. 	Code secs.
85023(b), 	(d).) 	The Act directs parties to
begin 	the meeting 	and 	negotiating 	process
"prior 	to 	the 	adoption of 	the 	final budget
for 	the 	ensuing 	year 	. . . 	so 	that 	there 	is
adequate 	time 	for 	agreement 	to be 	reached or
for 	the 	resolution of 	an 	impasse." 	(Gov.
Code sec. 	3543.7, emphasis added.) 	In other
words, 	EERA 	itself 	authorizes 	a district and
an 	exclusive 	representative 	to negotiate 	a
wage 	schedule after July 1. 	Thus, 	the
District 	here 	was 	not 	constrained 	to 	adopt
and 	implement 	a 	salary 	schedule 	by July 	1.
Furthermore, 	the 	cases 	cited by 	the 	districts 	involve
factual 	situations 	that 	arose prior 	to 	the 	enactment of 	the
EERA. 	In 	these 	cases, 	the courts 	first note 	that 	school
governing 	boards 	have 	the 	authority 	to 	raise 	and 	lower 	salaries
12

unilaterally. 	Among 	the 	few 	limitations 	on 	this 	authority was
that 	it must be 	exercised before 	the 	beginning 	of 	the 	school
year. 	Thus, 	in Abraham v. Sims, supra, 	2 Cal.2d 698, 711, the
court 	stated:
The power 	of 	the 	trustees 	to 	raise 	or 	reduce
the 	salaries 	of permanent 	teachers 	cannot be
doubted, 	provided 	it 	is 	reasonably exercised
and 	no 	attempt 	is made 	after 	the beginning
of 	any particular 	school 	year 	to 	reduce 	the
salaries 	for 	that year. 	(Emphasis 	added.)
And in Rible v. Hughes, supra, 	24 Cal.2d 437, 	444, 	it said:
[A] 	board of 	education may exercise 	its
discretion 	in 	adopting 	salary 	schedules
fixing 	the 	compensation 	to be 	paid permanent
teachers 	although 	(1) 	the 	schedule must be
adopted prior 	to 	the 	beginning 	of 	the 	school
year. 	. 	.11 	(Emphasis added.)
The EERA, 	however, 	limited 	the 	discretionary authority of
school governing 	boards. 	After 	employees 	in an appropriate 	unit
have 	selected 	an exclusive 	representative, 	that 	representative
has 	the 	right 	to negotiate with 	the 	district about wages, 	hours
of 	employment, 	and other 	terms 	and 	conditions of 	employment.
(Gov. 	Code sec. 	3543.3, 	3543.1, 	3543.5(c).) 	The district cannot
change 	employment 	conditions 	without 	first meeting 	and
negotiating 	with 	the 	exclusive 	representative. 	(Pajaro Valley
Unified School District, 	supra, 	PERB Decision No. 	51.) 	Thus,
. 	. 	.(2) 	any allowance based upon years of 	training 	and
experience must be 	uniform, 	and 	subject 	to 	reasonable
classification; 	and 	(3) 	the schedule must not be
arbitrary, 	discriminatory or 	unreasonable.
11 The 	other 	limitations 	listed 	by 	the 	court 	are:
13

collective 	negotiations 	supersedes 	the manner 	in 	which 	salaries
were 	previously 	set.
The 	system of 	collective 	negotiations 	under 	the 	EERA 	is
incompatible with 	the 	cases 	cited by 	the 	districts. 	If 	those
cases 	applied, 	negotiations 	would be 	distorted 	in 	any of 	three
alternative ways. 	(1) 	Districts would be precluded 	from
attempting 	to negotiate 	a 	salary decrease; 	this 	would 	impose 	a
limitation 	on 	the 	district's 	ability 	to 	negotiate 	an 	item 	which
is 	clearly 	within 	the 	scope 	of 	representation 	under 	the EERA.
(2) 	Districts would be 	forced 	to 	attempt 	to complete
negotiations by 	the July 	1 	deadline, 	an unrealistic 	solution
since 	necessary 	financial 	information may be 	unavailable 	at 	that
time. 	(3) 	Districts would be 	forced 	to 	take 	unilateral action
to maintain 	their 	flexibility. 	Such 	action 	is 	so antithetical
to 	the 	give 	and 	take 	of 	the 	negotiating 	process 	that we 	have
found 	it 	to be 	a 	refusal 	to negotiate. 	See 	San Mateo County
Community College District, 	supra, 	PERB Decision No. 	94, 	at
pages 14-17.
Since 	the 	cases 	cited by 	the 	districts 	are 	incompatible 	with
the 	collective 	negotiations 	system mandated 	by 	the 	EERA 	and 	were
based 	on 	situations 	arising 	before 	the 	implementation 	of 	the
EERA, 	they do not persuade 	us 	that 	they compel 	an exception 	to
our 	holdings prohibiting 	unilateral 	change.
In summary, 	we 	affirm our 	decision 	in San Mateo County
Community College District, 	supra, PERB Decision No. 	94, 	and
14

San Francisco Community College District, 	supra, 	PERB Decision
No. 	105, 	that 	the 	unilateral elimination of a past practice of
granting 	annual 	step 	and 	column 	salary 	increases 	constitutes 	a
change 	in 	the 	status quo and may be 	a 	violation of 	the 	duty 	to
negotiate 	in good 	faith.
There 	are, 	however, 	defenses 	to a charge of unlawful
unilateral 	change. 	For 	an employer's 	unilateral 	action 	to be
considered 	unlawful, 	that 	action must constitute 	a change 	in 	the
status 	quo 	relating 	to a matter 	within 	the 	scope 	of
representation, made 	without 	notice 	and 	an opportunity 	to
negotiate 	extended 	to 	the 	exclusive 	representative.12
Thus, 	an employer 	action 	affecting 	an employment 	condition
may be 	lawful 	if 	it 	is 	consistent with 	an established
practice.13 Also, 	an employer 	action may be 	lawful 	if 	the
12NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].
1 3 In Pajaro Valley Unified School District, 	supra, 	PERB
Decision No. 	51, 	the District's 	action 	in passing on to
employees 	the 	cost of 	increased 	insurance premiums was
consistent 	with 	its past practice 	of 	contributing 	only a 	sum
certain 	for 	employee 	health benefits pending 	the 	outcome 	of
negotiations, 	and 	the Board 	found 	no 	unlawful 	unilateral
change. 	Also see NLRB v. 	Ralph Printing 	and Lithog. 	Co. 	(8th
Cir. 	1970) 	433 F.2d 1058, cert. denied 	(1971) 	401 U.S. 	925,
where 	the 	court 	said:
Where 	there 	is 	a well-established 	company
policy of granting 	certain 	increases 	at
specific times, 	which 	is a part and parcel
of 	the existing 	wage 	structure, 	the 	company
is 	not 	required 	to 	inform 	the 	union 	and
bargain 	concerning 	these 	increases.
15

exclusive 	representative 	has 	waived 	its 	right 	to negotiate,
either 	through 	agreement 	or 	through 	a 	failure 	to 	request
negotiation 	when 	notified of 	a proposed 	change. 	Several
districts 	have 	argued 	that, 	in 	light of 	the circumstances 	in
their 	districts, 	their 	actions 	in 	freezing 	salaries 	were 	not
unlawful 	unilateral changes.
Since 	these 	contentions 	rest on the 	facts 	in each case, 	we
will 	discuss 	each 	case 	individually.
Davis 	District
On June 	29, 	1976, 	the Davis District and CSEA entered 	into
an 	interim agreement, 	which provided 	in pertinent part:
During 	this period of negotiations, 	the
District 	and CSEA 	agree 	that policies
covered 	under 	the meet 	and 	negotiate
provisions of 	the Rodda Act 	(SB 	160) 	(and
any 	applicable 	subsequent 	legislation) 	will
remain 	in effect 	until 	a 	written agreement
is 	reached 	and 	ratified by 	the parties 	or
the 	impasse mechanism 	under 	the 	Rodda Act
has 	been 	utilized. 	During 	this 	interim
period 	the 	above policies 	will be modified
by 	the 	Board 	only 	if 	required 	by emergency
conditions or 	state 	and/or 	federal 	laws 	or
regulations.
This 	agreement 	shall 	become 	effective
July 	1, 	1976 	and shall 	remain 	in effect 	for
twelve 	calendar 	months 	or 	until 	completion
of 	a binding 	written 	agreement by 	the
parties, 	but 	shall 	terminate 	no latter 	than
June 30, 1977.
The Davis 	District 	argues 	that CSEA, 	having 	bargained 	for
this 	agreement making policies 	constant 	during 	a 	limited 	time,
should 	not 	complain 	when 	the 	District 	did 	not 	grant 	salary
16

increments 	after 	the 	agreement expired. 	This 	is 	essentially a
waiver 	argument: 	the exclusive 	representative, 	by making 	a
limited 	term agreement 	to maintain 	the 	status quo, 	has 	waived
its 	right 	to negotiate 	changes 	in 	the 	status quo after 	the
expiration of 	that agreement. 	We disagree. 	As we 	stated 	in San
Francisco Community College District, 	supra, 	PERB Decision No.
105, 	we will 	not 	readily 	infer 	that a party has waived 	its
rights 	under 	the EERA; 	we will 	find a waiver 	only when 	there 	is
an 	intentional 	reliquishment of 	these 	rights, 	expressed 	in clear
and 	unmistakable 	terms. 	14 	There 	is 	no 	indication 	in 	the
agreement 	that 	by obtaining 	a 	contractual 	right 	to 	continued
employment policies 	for 	a 	specified period, 	CSEA 	intended 	to
relinquish 	its 	statutory 	right 	to 	an 	unchanged 	status 	quo
pending 	negotiations, 	thereby waiving 	its 	right 	to negotiate
proposed 	changes.
The Davis 	District 	also argues 	that 	it 	negotiated 	in good
faith, 	all wage 	items 	remained on 	the 	table, 	and 	it 	had no
intent 	to 	undermine CSEA's 	position 	as 	exclusive
representative. 	It 	states 	that 	in private 	sector 	unilateral
change 	cases, 	the NLRB and 	the 	courts 	focus on 	"the 	entire 	scope
of 	conduct" 	in 	determining 	whether 	the 	employer 	refused 	to
negotiate 	in good 	faith.
1 4 Also 	see Amador 	Valley 	Joint 	Union 	School 	District
(10/2/78) 	PERB Decision No. 	74.
17

We believe 	this 	is a misreading of 	federal precedent. 	In
NLRB v. Katz, 	supra, 	369 U.S. 	736, 	the United States Supreme
Court 	said:
Clearly, 	the 	duty 	thus 	defined may be
violated without 	a 	general 	failure 	of
subjective good 	faith; 	for 	there 	is 	no
occasion 	to consider 	the 	issue 	of good 	faith
if 	a party has 	refused 	even 	to 	negotiate in
-fact 	. . . . 	A 	refusal 	to 	negotiate 	in 	fact
as to any subject within section 8 (d) , 	and
about which 	the 	union 	seeks 	to negotiate,
violates 	section 8(a)(5) 	though 	the 	employer
has 	every 	desire 	to 	reach 	agreement 	with 	the
union 	upon 	an 	over-all 	collective 	agreement
and 	earnestly 	and 	in all good 	faith bargains
to 	that 	end. 	We 	hold 	that 	an 	employer's
unilateral 	change 	in conditions 	of
employment 	under 	negotiation 	is 	similarly 	a
violation of section 8(a)(5), 	for it is a
circumvention 	of 	the 	duty 	to 	negotiate 	which
frustrates 	the 	objectives 	of 	section 8(a)(5)
much as does 	a 	flat 	refusal.
Furthermore, 	in NLRB v. Allied Products Corp., 	supra, 	548 F.2d
644, 	the court said:
Proof of violation of 	section 8(a)(5) 	by
showing 	unilateral 	changes may 	not be
rebutted by proof 	of 	the 	employer's 	good
faith 	or 	of 	the 	absence of 	anti-union
animus 	. . . . 	[Par.] 	The 	fact 	that 	the
Company 	offered 	to 	discuss 	re-institution 	of
the merit 	increases 	does 	not mitigate 	its
violation 	by 	unilaterally 	discontinuing
without 	negotiation with 	its 	employees'
representative, 	the 	established merit 	review
procedure.
And PERB, 	in San Mateo County Community College District, 	supra,
PERB Decision No. 	95, 	stated:
18

These 	reasons 	[for prohibiting 	unilateral
changes] 	are 	convincing 	even 	though
case-by-case 	determinations 	of 	employer
intent might reveal, 	as 	in this proceeding,
that 	the 	employer 	did 	not 	act 	with
subjective 	bad 	faith.
Thus, 	whether or 	not 	the Davis District 	acted with
subjective 	good 	faith, 	we 	nevertheless 	determine 	that 	it
violated 	section 	3543.5(c) 	by 	unilaterally 	eliminating 	annual
salary 	increments.
Newark 	District
Before 	the Newark 	Teachers Association was 	certified 	as 	the
exclusive 	representative of 	certificated 	employees, 	the Newark
District 	and 	the Certificated Employees 	Council 	(CEC) 	agreed 	to
a 	one-year 	extension 	of 	the memorandum of 	understanding 	expiring
on June 30, 	1976. 	The Newark District argues 	that 	the 	salary
schedule 	contained 	in 	this 	agreement 	should 	not 	be 	implemented
beyond 	the 	expiration 	date 	of 	that 	agreement 	because 	"[t]here
was 	no 	agreement 	that 	notwithstanding 	the 	expiration of 	the
interim 	agreement 	that 	the 	salary 	schedule 	would 	nevertheless
continue." 	The District 	apparently believes 	that 	by 	signing 	an
agreement 	as 	a member of 	the CEC, 	the Newark Teachers
Association 	waived 	its 	right 	as 	exclusive 	representative 	to
negotiate 	any proposed 	changes 	in 	employment 	conditions 	after
that 	agreement expired. 	For 	the 	reasons expressed above 	in
Davis, 	we 	find no 	"clear 	and 	unmistakable 	language" 	pointing 	to
any 	such 	waiver.
19

The 	Newark District 	also argues 	that 	its 	unilateral 	action
was motivated by budgetary limitations. 	The District 	is 	not
claiming 	that 	its 	action 	in 	freezing 	salaries 	was 	necessary
because 	sufficient funds were not available, 	since 	it
acknowledged 	that 	it 	had 	reserved 	enough 	funds 	to pay 	step 	and
column 	increases. 	The District's 	argument 	is based on 	its
belief 	that 	once 	the 	increments 	have been given, 	it 	will 	have 	no
flexibility 	to 	negotiate 	any other 	uses 	for 	these 	limited 	funds
after 	July 1. 	As 	noted above, 	we believe 	the 	cases cited by 	the
District 	(note 6, 	ante) 	are 	inapplicable 	because 	they arose
prior 	to 	the 	enactment of 	a 	system of 	collective 	negotiations 	in
the EERA.
New Haven 	District
The 	New Haven District argues 	that 	the Board 	should 	exclude
evidence 	of pre-EERA practices, 	citing prior 	Board 	unit
determination 	proceedings.15
Those 	cases 	are not 	really applicable, 	having 	been decided
in a 	unit 	determination 	context 	where 	we 	were 	looking 	at
representational practices. 	In any event, 	the Board did admit
and examine pre-EERA evidence 	to 	determine 	the 	extent 	to 	which
"established practices" 	within 	the meaning 	of 	section
15Fremont Unified School 	District 	(12/16/76) 	EERB
Decision No. 	6; 	Sweetwater Unified school District 	(11/23/76)
EERB Decision No. 	4; 	Oakland Unified School District 	(3/29/77)
EERB Decision No. 	15.
20

3545(a)16 	would 	influence 	its 	unit 	determinations 	in 	those
cases. 	We 	found pre-EERA representational practices 	under 	the
Winton Act1
-7 sufficiently 	different 	from 	those 	under 	the 	EERA
to give 	little 	weight 	to 	the 	established practices 	criterion 	in
determining 	the 	appropriateness of a unit. 	In 	so finding, 	we
never 	intended 	to 	indicate 	that past 	employment practices 	have
little 	significance when 	considering 	employers' 	obligation 	to
maintain 	the 	status quo during 	negotiations 	under 	the 	EERA.
Since 	the 	EERA existed 	for 	only 	a year 	at 	the 	time 	the 	districts
froze employees' 	salaries, 	we necessarily look 	to pre-EERA
employment 	conditions 	to determine 	the 	status quo. 	See 	Pajaro
Valley Unified School District, supra, PERB Decision No. 	51, 	in
which 	we 	examined pre-EERA practices 	to 	determine 	whether 	the
district's conduct, 	alleged to be a unilateral change, 	was
actually 	consistent with 	the 	district's 	past practice 	of 	paying
a 	set 	amount 	for 	health benefits.
16Section 3545 (a) provides:
In each case 	where 	the 	appropriateness of
the 	unit 	is 	an 	issue, 	the board shall decide
the question on 	the basis of 	the 	community
of 	interest 	between 	and 	among 	the 	employees
and 	their 	established practices 	including,
among 	other 	things, 	the 	extent 	to which such
employees belong 	to 	the 	same 	employee
organization, 	and 	the effect of 	the 	size of
the 	unit 	on 	the 	efficient operation of 	the
school district.
17Former 	Education Code 	section 	13080 	et 	seq. 	repealed
Stats. 	1975, 	chapter 961, 	section 1, 	effective July 1, 	1976 •
21

State 	Center 	District
State Center District contends 	that, 	in 	the absence of 	an
express 	reservation of rights, 	the charges against 	it were
rendered moot 	by CSEA's 	conscious 	choice 	of 	an agreement with 	a
higher 	immediate pay 	increase 	but 	without 	retroactive
reinstatement of 	salary 	increments. 	That choice, 	State Center
District 	contends, 	constituted a clear 	settlement of 	the 	issues
between 	the parties 	and 	a waiver 	of 	the 	rights of 	the 	employees.
The Board discussed 	the 	related 	issues 	of 	waiver 	of 	rights,
settlement of disputes, 	and 	the 	resulting mooting 	of cases 	in
Amador Valley Joint Union School District, 	supra, 	PERB Decision
No. 	74. 	In Amador, 	the Board held 	that a negotiated agreement
was prospective 	only 	and did 	not 	serve 	as 	a 	settlement of 	the
already pending 	charge 	involving 	a 	unilateral 	salary 	freeze. 	We
stated 	that a 	waiver 	of 	such 	a 	charge must 	be 	established 	by
clear 	and 	unmistakable 	language. 	As 	the 	underlying 	question of
the propriety of 	the 	employer's 	conduct 	had 	not been 	resolved,
we 	held 	that 	the 	case was 	not moot.
Similarly, 	the 	negotiated agreement 	in State Center 	is
neither 	a settlement 	nor 	a waiver. 	The 	dispute 	as 	to whether
the District 	committed 	an 	unfair practice 	remains. 	The
negotiated 	agreement 	does 	not 	contain 	an express 	waiver 	or
settlement 	clause, 	nor 	did 	the District 	ever 	request 	such 	a
waiver 	or 	settlement 	of CSEA. 	The 	fact 	that CSEA rejected
salary proposals providing 	retroactive 	increments 	does 	not 	imply
22

that 	the parties 	settled 	their 	dispute 	as 	to whether 	the
District 	had 	the 	right 	to withhold 	those 	increments 	or 	that CSEA
intended 	to waive 	its 	right 	to continue 	to pursue 	its 	unfair
practice 	charge 	against 	the District.18
Centinela 	District
The Centinela District argues 	that 	in 	two previous years,
the parties 	had 	negotiated 	step 	and 	column 	increments 	and 	had
reached 	agreement 	on 	that 	issue 	before 	employees 	were 	advanced
on 	the salary schedule. 	Therefore, 	the District argues,
automatic 	advancement 	on 	the 	salary 	schedule 	was 	not 	a past
practice 	and 	the District's 	salary 	freeze 	was 	not 	an 	unlawful
unilateral 	change.
It 	is 	undisputed 	that 	salaries 	had 	never 	been 	frozen 	in 	the
past; 	since at least 1971, 	eligible employees had without
exception 	received annual 	increments. 	If 	the Association and
the District 	had 	not 	reached agreement on a 	new schedule, 	the
eligible 	certificated 	employees 	advanced 	on 	the previous 	year's
schedule. 	For 	example, 	the parties did not 	reach agreement on
the 	1976-77 	salary schedule 	until November 	1, 	1976. 	Teachers
18 Cf. 	Beacon Piece Dying 	& Finishing Co. 	(1958) 	121 NLRB
953 	[42 LRRM 1489], 	where 	the NLRB found 	that a union's 	action
in 	abandoning 	a bargaining 	demand 	in 	return 	for 	other
concessions 	does 	not 	constitute 	an 	implied waiver 	of 	a 	statutory
right 	to bargain on 	that 	topic 	since 	dropping 	a demand 	is 	not 	a
clear 	and 	unmistakable 	showing 	that 	there was 	a waiver, 	and 	such
a waiver 	will 	not 	be 	readily 	inferred.
18
23

entitled 	to 	step 	and 	column 	increases 	advanced 	on 	the 	1975-76
salary 	schedule 	until 	the 	new schedule 	went 	into effect.
The District does 	not dispute 	this, 	but 	states 	that 	the
parties 	negotiated 	a 	separate 	agreement 	regarding 	step 	and
column 	increases 	in August 	1976 	before 	such 	increases 	were
granted. 	This, 	the District argues, 	indicates 	that 	the past
practice 	had 	changed: 	annual 	increments 	would 	not be granted
unless 	the parties 	reached 	an 	agreement.
The Association 	representative 	has 	no 	recollection 	of
specific 	negotiations 	on 	salary 	increments 	or 	of 	reaching 	a
separate 	agreement on 	that subject 	in August. 	There 	is 	no
indication 	that 	the Association was 	ever 	aware 	of 	a possibility
that 	the District would 	not 	have provided 	increments 	if 	an
agreement was not reached. 	In 	fact, 	the Association
representative 	believes 	that 	he 	has 	never 	negotiated 	step 	and
column 	increases.
However, 	assuming 	for 	the 	sake of argument 	that 	the
Association 	and 	the District 	did 	agree 	in August 	that 	employees
would 	receive 	increments, 	the District was merely 	agreeing 	to do
what 	it 	was 	already obligated 	to 	do—pay 	salary 	increments
pending 	the 	negotiation of 	a 	new agreement. 	An 	agreement 	to
maintain 	the 	status quo does 	not 	demonstrate 	a change 	in 	the
status quo; 	thus 	the 	alleged 	agreement 	to pay 	salary 	increments
does 	not 	indicate 	a 	new practice of 	withholding 	increments 	until
such 	an agreement 	is 	reached.
24

The Centinela District 	also 	argues 	that 	its 	action was 	not
an 	unlawful 	unilateral 	change because 	the parties 	were
negotiating 	salary 	increments 	when 	the 	District 	froze 	salaries.
This 	argument 	fails 	for 	two reasons. 	Assuming 	that 	the parties
were, 	in fact, 	negotiating 	salary 	increments at 	the 	time 	the
District 	implemented 	the 	salary 	freeze, 	they 	had 	certainly 	not
reached agreement on 	that 	issue, 	nor 	were 	they at 	impasse. 	In
the private 	sector, 	a 	unilateral 	change made during 	negotiations
and before 	impasse 	is 	no more 	lawful 	than a 	unilateral change
made 	without giving 	the 	exclusive 	representative 	notice 	and 	an
opportunity to bargain. 	In NLRB v. Katz, supra, 	369 U.S. 	736,
the Court 	found 	the employees' 	unilateral action on a 	subject
under 	negotiation 	to be 	unlawful. 	While 	we 	do not 	here 	decide
whether 	an 	employer 	is 	free 	to 	take 	unilateral 	action 	after
impasse 	has been 	reached, 	we 	find 	that a unilateral 	change 	on 	a
subject under 	negotiations, 	in 	the absence of 	circumstances
which might 	necessitate 	the 	unilateral 	action, 	is a failure 	to
negotiate 	in violation of 	section 3543.5(c).
In addition, 	the 	record does 	not 	indicate 	that 	the parties
negotiated 	the 	issue 	of whether 	or 	not 	the 	employees 	would
receive 	salary 	increments prior 	to September 	7, 	1977, 	when 	the
Association was 	informed 	of 	the District's 	decision 	to 	freeze
salaries. 	The Association 	initially proposed 	a 	formula 	in 	which
the percentage 	of 	available 	funds 	the District 	spent 	on wages
and 	fringe 	benefits 	for 	certificated 	employees 	in 	1976-77 	would
-
25

----
remain 	the 	same 	in 1977-78. 	Since 	the 	formula 	included all
funds 	spent by 	the District, 	it 	included amounts 	spent on annual
salary 	increments. 	But 	this 	does 	not mean 	that 	the Association
was 	negotiating 	for 	something 	it 	believed 	it 	already 	had:
annual 	salary 	increments pursuant 	to a 	salary 	schedule. 	The
amount 	spent 	by 	the District 	also 	included 	the 	teachers'
previous 	salaries, 	but 	this 	fact 	does 	not 	indicate 	that 	the
parties 	negotiated whether 	or 	not 	the 	teachers 	would 	continue 	to
receive 	the same amount. 	Furthermore, 	during negotiations, 	the
parties 	discussed 	the 	issue 	of 	whether 	teachers 	returning 	from
unpaid 	leaves of 	absence 	would 	receive 	increments. 	Surely 	such
a 	discussion would have 	been premature 	if 	there 	had been 	any
doubt 	that eligible 	teachers 	who 	had 	not 	been on 	leave 	would
advance on 	the 	salary schedule. 	In 	summary, 	there 	is 	no clear
and 	unmistakable 	indication 	that 	the 	parties 	actually 	negotiated
whether 	or 	not 	teachers would 	receive 	increments; 	we will 	not
infer 	such 	negotiations 	from 	the 	fact 	that 	the 	parties
negotiated 	the 	general 	subject 	of 	salaries.
The District also argues 	that Katz 	stands 	for 	the
proposition 	that 	the 	employer's 	only 	obligation 	is 	to provide 	an
opportunity 	to negotiate; 	whether 	or 	not 	the parties 	actually
negotiated, 	the Association 	had 	a 	three-month period 	to
negotiate 	before 	the 	salary 	freeze 	would affect 	the 	employees'
first paychecks. 	This 	argument 	assumes 	that 	the Association
knew 	that 	the 	District 	intended 	to 	freeze 	salaries. 	We 	find
26

this 	assumption 	unwarranted. 	The District 	acknowledges 	that 	it
never 	specifically 	told 	the Association 	that 	it 	would 	freeze
salaries 	until 	negotiations 	on 	increments 	were 	completed, 	but
claims 	that 	the Association 	should 	have 	known 	the 	District's
intention 	from 	the proposed 	budget, 	which provided 	for 	no
increase 	in teachers' 	salaries. 	To expect 	the Association to
infer 	from 	that 	budget 	item 	the 	knowledge 	that 	the 	District
intended 	to make 	a major 	change 	in 	the 	status quo 	is
unrealistic, 	particularly when 	it 	is possible 	that 	the 	budgeted
amount 	could 	remain 	the 	same 	and 	still provide 	for 	regular
increments 	due 	to personnel attrition. 	Therefore, 	we 	find 	that
the Association 	did not 	have 	knowledge 	of, 	and 	an 	opportunity 	to
negotiate on, 	the 	salary freeze 	until September 	7, 	1977. 	This
did 	not 	allow 	sufficient 	time 	for 	effective 	negotiations 	before
September 	12, 	the 	date 	by which 	salaries 	had 	to be 	set 	in order
to 	issue 	September paychecks.
The District 	attempts 	to make 	a distinction between
negotiations prior 	to a 	first 	contract 	and 	negotiations
subsequent 	to an expired 	contract. 	We 	find 	this 	distinction 	is
irrelevant 	in 	unilateral 	change 	cases. 	An employer may change
negotiable 	terms 	and 	conditions 	of 	employment 	when 	no 	contract
is 	in effect. 	But the 	employer must 	first provide 	an
opportunity 	to 	negotiate 	and, 	if 	negotiations 	are 	requested,
must 	negotiate 	in 	a good 	faith 	attempt 	to 	reach 	agreement 	before
27

making 	changes.19 As 	noted 	above, 	the Centinela District 	did
not provide 	an 	adequate opportunity 	to negotiate.
The District 	also 	argues 	that 	the 	totality of 	circumstances
demonstrates 	that 	it 	negotiated 	in a good 	faith effort 	to 	reach
agreement. 	As 	discussed above, 	in 	responding 	to the Davis
District's 	similar 	argument, 	good faith 	is 	not a defense 	to a
section 3543.5 (c) 	charge 	involving 	a unilateral change of 	a
subject 	within 	the 	scope 	of 	representation 	under 	section 	3543.2.
Finally 	the District 	argues 	that 	its 	action 	in unilaterally
freezing 	salaries 	was 	justified by 	its 	financial 	situation; 	it
states 	that 	it 	did not 	have 	sufficient 	funds 	to pay 	increments
for 	the 	next year. 	Whether 	or 	not 	the District did 	have money
available, 	a point disputed by 	the parties, 	the District had an
obligation 	to 	negotiate proposed 	changes 	in 	employment
conditions 	before 	implementing 	them. 	This 	obligation 	to
negotiate 	does 	not 	in 	any 	way 	entail 	an obligation 	to 	reach
agreement, 	but 	it does entail 	an obligation to meet and
1 9 See, 	e.g., 	Hinson v. 	NLRB 	(8th Cir. 	1970) 	428 F.2d 133,
136 	[73 	LRRM 2667; 	74 	LRRM 2194]
The 	spirit of 	the National 	Labor Relations
Act 	and 	the more persuasive 	authorities
stand 	for 	the proposition 	that, 	even after
expiration of 	a 	collective 	bargaining
contract, 	an employer 	is 	under 	an obligation
to 	bargain 	with 	the 	Union 	[fn. omitted]
before 	he 	may permissibly make 	a 	unilateral
change 	in 	those 	terms 	and 	conditions 	of
employment 	comprising mandatory 	subjects 	of
bargaining.
28

negotiate 	in a good 	faith effort 	to 	reach 	an 	agreement before
implementing 	proposed 	changes.
The Board 	has 	held 	that 	even 	the 	financial 	uncertainty
engendered 	by Proposition 	13 	did 	not 	relieve 	the 	districts 	of
their 	obligation 	to negotiate proposed 	changes. 	San Mateo
County Community College District, 	supra, 	PERB Decision No. 	94;
San Francisco Community College District, 	supra, 	PERB Decision
No. 	105. 	In San Francisco, 	the Board said:
Even when a District 	is 	in 	fact 	confronted
by 	an 	economic 	reversal 	of 	unknown
proportions, 	it may not 	take 	unilateral
action on matters within 	the 	scope 	of
representation, 	but must bring 	its 	concerns
about 	these 	matters 	to 	the 	negotiating
table. 	An employer 	is 	under 	no obligation
at 	any 	time 	to 	reach 	agreement with 	the
exclusive 	representative. 	The 	duty 	imposed
by 	the 	statute 	is 	simply—but
unconditionally—the 	duty 	to meet 	and
negotiate 	in good 	faith on matters within
the 	scope of 	representation. 	Thus 	the
confusion bred 	by 	the passage 	of
Proposition 13 	did 	not excuse 	the District's
obligation 	to meet 	and 	negotiate with 	the
Federation, 	nor 	did 	it 	justify 	the
District's 	unilateral 	actions.
In this 	case, 	the District, 	with 	its early knowledge of 	its
financial 	situation, 	had 	no excuse 	for 	failing 	to notify 	the
union of 	its proposal 	to 	freeze 	salary 	increments 	with 	enough
time 	to allow meaningful 	negotiations 	to take place. 	The
District 	failed 	to do 	so 	and 	thus breached 	its 	duty 	to meet 	and
negotiate 	in violation of section 3543.5 (c).
29

REMEDY
Under 	section 3541.5(c),20 PERB has broad powers 	to remedy
unfair practices. 	In each of 	these 	cases, 	the district violated
section 	3543.5(c) 	by 	unilaterally 	withholding 	scheduled 	salary
increases 	from eligible 	employees. 	The Board 	finds 	it
appropriate 	to order 	each 	district 	to cease 	and 	desist 	from
making 	unilateral 	changes 	in matters 	within 	the 	scope 	of
representation 	and 	to post 	the 	appropriate 	attached 	notice.
Furthermore, 	the Board 	finds 	it appropriate 	to order 	the
reinstatement 	of 	salary 	increments 	and 	retroactive 	backpay 	in
the Davis, 	Newark, 	Centinela, 	and State Center Districts. 	This
remedy 	is 	unnecessary 	in 	the New Haven District 	because 	the
parties 	reached 	an agreement 	in 	which 	the District 	agreed 	to
made 	a 	retroactive payment 	of 	the 	withheld 	salary 	increments.
In Davis, 	Newark, 	and Centinela, 	the districts and employee
organizations 	had 	not 	reached 	agreements 	including 	retroactive
salary 	increments 	as of 	the 	date 	of 	the 	unfair practice 	hearings
in 	those 	cases. 	It 	is 	therefore 	appropriate 	to order 	each
20Section 3541.5(c) 	states:
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
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back pay, 	as will effectuate 	the policies of
this 	chapter.
30

district 	to 	lift 	its 	freeze 	on 	salary 	increments 	and 	to pay 	any
step 	or 	column 	increases 	that 	eligible 	employees 	would 	have
received 	if 	salaries 	had 	not been 	frozen, 	with 	interest at 	the
rate 	of 	7 	percent. 	(San Mateo County Community College
District, supra, PERB Decision No. 	94, at p. 	27; 	San Francisco
Community College District, 	supra, 	PERB Decision No. 	105, 	at
p. 20; Cal. Civ. Code sec. 3287; Cal. Const, art. XXII, sec.
22. 	See 	also Sanders v. 	City of Los Angeles 	(1970) 	3 Cal.3d
252, 	261-263.) 	For 	the Davis and Newark Districts, 	such payment
shall 	be 	retroactive 	to July 1, 	1977. 	For 	the Centinela
District, 	such payment shall be 	retroactive 	to September 7, 	1977,
In 	the 	event 	that 	any 	of 	these 	districts 	has 	reached 	an
agreement 	with 	the 	exclusive 	representative 	which 	includes 	the
retroactive 	restoration of 	the withheld 	salary 	increments, 	that
District may 	notify 	the 	Board 	so 	that 	a 	revised 	Order 	and 	notice
may 	be 	issued.
In State 	Center, 	the 	District 	and CSEA had 	reached 	an
agreement prior 	to 	the 	unfair 	practice 	hearing 	which 	did 	not
include 	retroactive 	salary 	increments. 	The 	hearing 	officer
found 	that 	the 	negotiations 	history 	indicated 	that 	CSEA waived
its 	demand 	for 	retroactive 	reinstatement of 	step 	increases. 	We
disagree. 	The 	negotiations between CSEA and 	the District 	were
conducted 	with 	the 	knowledge 	that 	this 	unfair 	practice 	charge
was pending. 	The 	normal 	remedy 	for 	an 	unlawful 	unilateral
31

withdrawal 	of 	a benefit 	is 	the 	restoration of 	that benefit.21
Given 	this, 	CSEA's 	acceptance of 	the District proposal granting
a 	7.8 	percent 	pay 	increase 	with 	no 	retroactive 	increments,
coupled 	with CSEA's 	continued 	insistence 	that 	it 	intended 	to
continue 	to 	seek 	the 	retroactive 	increments 	via 	the 	unfair
practice proceedings, 	cannot be 	read as 	an 	indication 	that CSEA
consciously 	chose 	a higher 	immediate pay 	increase 	in 	lieu of 	the
retroactive 	increments. 	It 	is more 	likely an 	indication 	that
CSEA went 	as 	far 	as 	it 	could 	in 	negotiations 	with 	the District,
while 	continuing 	to 	seek 	a 	remedy 	for 	the District's 	unfair
practice 	through 	this 	unfair practice proceeding. 	If 	the
District 	had 	coupled 	its 	7.8 	percent proposal 	with 	a 	condition
that CSEA agree 	not 	to 	seek 	retroactive 	increments, 	and CSEA had
accepted, 	it 	would be 	clear 	that CSEA had waived 	any demand 	for
retroactive 	increments. 	This 	is not the case, 	however, 	and 	it
appears 	unlikely 	that CSEA would 	have 	accepted 	such 	an offer.
We 	do 	not 	know how 	negotiations 	would 	have proceeded 	if 	the
District 	had 	not 	acted 	unlawfully 	by 	freezing 	step 	increments.
In 	the 	absence 	of 	an agreement 	in which CSEA clearly 	waived 	the
right of 	the 	unit members 	to be made 	whole 	for 	the 	losses 	caused
by 	the District's 	unlawful 	acts, 	we 	find 	it 	appropriate 	to
remedy 	the 	District's 	unfair 	practice 	by granting 	increments
pursuant 	to 	the 	1976-77 	salary 	schedule 	to eligible 	employees
2 1 See Morris, 	The Developing Law Law 	(BNA 1971) 	at p. 	858).
32

retroactive 	to July l f 	1977, 	plus 	interest 	at 7 percent per
annum.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law and 	the 	entire
records 	in 	these 	cases, 	the Public Employment Relations Board
ORDERS that:
1. 	The Davis Unified School 	District, 	the New Haven
Unified 	School 	District, 	the 	Newark Unified 	School
District, 	the State Center 	Community College District,
and 	the 	Centinela Valley Union 	High 	School 	District
shall 	cease 	and 	desist 	from 	taking 	unilateral 	action
with respect to employee wages, 	hours, 	or 	terms and
conditions 	of 	employment 	as 	defined 	by Government Code
section 3543.2, 	without providing 	the exclusive
representative 	with 	notice 	and 	opportunity 	to 	negotiate.
2. 	The 	Davis Unified 	School 	District 	shall 	reinstate
yearly 	salary 	increments 	for 	classified employees, 	with
interest at 	the 	rate of 7 percent 	for 	the amount 	due
from July 1, 	1977, 	to the date of 	reinstatement.
3. 	The 	Newark Unified 	School 	District 	shall 	reinstate
yearly 	salary 	increments 	for 	certificated 	employees,
with 	interest 	at 	the 	rate 	of 	7 percent 	for 	the amount
due 	from July 1, 	1977, 	to the date of 	reinstatement.
4. 	The 	State Center 	Community College District 	shall
reinstate 	yearly 	salary 	increments 	for 	classified
employees, 	with 	interest at 	the 	rate of 7 percent 	for
the amount due 	from July 1, 	1977, 	to the date of
reinstatement.
5. 	The 	Centinela Valley Union High 	School 	District 	shall
reinstate 	yearly 	salary 	increments 	for 	certificated
employees, 	with 	interest at 	the 	rate of 7 percent for
the amount due 	from September 	7, 	1977, 	to the 	date of
reinstatement.
6. 	Each district shall:
(a) 	Post at all 	school sites, 	and all other work
locations 	where 	notices 	to employees 	customarily
are placed, 	immediately 	upon 	receipt 	thereof,
33

copies 	of 	the 	appropriate 	notice 	attached 	as 	an
appendix 	hereto . 	Such posting 	shall 	be 	maintained
for 	a 	period 	of 	30 	consecutive 	days 	from 	receipt
thereof . 	Reasonable 	steps 	should 	be 	taken 	to
insure 	that 	said 	notices 	are 	not 	altered, 	defaced
or 	covered 	by 	any 	other 	material .
(b)	(b) 	Notify 	the 	appropriate 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board, 	in writing,
within 	20 	days 	from 	the 	date 	of 	this 	Decision, 	of
what 	steps 	the 	District 	has 	taken 	to 	comply
herewith .
This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	each 	district.
J&p . 	Raymond 	J. 	Gonza l es, 	Member 	Harry 	Gluck, 	Chairperson
/
34
I
copies of the appropriate notice attached as an
appendix hereto. 	Such posting shall be maintained
for a period of 30 consecutive days from receipt
thereof. Reasonable steps should be taken to
insure that said notices are not altered, defaced
or covered by any other material.
Notify the appropriate regional director of the
Public Employment Relations Board, in writing,
within 20 days from the date of this Decision, of
what steps the District has taken to comply
herewith.
This Order shall become effective immediately upon service
of a true copy thereof on each district.
Jap. 	Raymond J. Gonzales, 	Member 	Harry 	Gluck, 	Chairperson
34

Appendix; 	Notice.
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD,
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all parties 	had 	the 	right 	to
participate, 	it 	has been 	found 	that 	the 	Davis 	Unified 	School
District 	violated 	the 	Educational 	Employment 	Relations 	Act 	by
taking 	unilateral 	action 	regarding 	proposed 	changes 	of 	employee
wages 	and 	step 	increments, 	without providing 	the 	exclusive
representative, 	California 	School Employees Association, 	with
notice 	and 	opportunity 	to 	negotiate. 	As 	a 	result 	of 	this
conduct, 	we 	have 	been 	ordered 	to post 	this 	notice. 	We 	will
abide 	by 	the 	following:
(a) 	WE WILL 	NOT 	take 	unilateral 	action 	regarding 	proposed
changes of 	employee 	wages, 	hours 	or 	terms or 	conditions 	of
employment, 	without providing 	the 	exclusive 	representative 	with
notice 	and 	opportunity 	to 	negotiate.
(b) 	WE WILL 	reinstate 	step 	increment payments 	for
classified employees, 	with payment of 	interest 	at 	7 	percent 	for
the 	amount 	due 	from July 	1, 	1977 	to 	the 	date 	of 	reinstatement.
DAVIS 	UNIFIED 	SCHOOL 	DISTRICT
By:
Superintendent
Dated:
This 	is 	an official 	notice. 	It must 	remain posted 	for
30 	consecutive 	days 	from 	the 	date 	of posting 	and must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
35

Appendix; 	Notice.
NOTICE 	TO 	EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD,
An Agency of 	the 	State 	of 	California
After 	a hearing 	in which 	all parties 	had 	the 	right 	to
participate, 	it 	has been 	found 	that 	the 	New Haven Unified School
District 	violated 	the 	Educational 	Employment Relations Act by
taking 	unilateral 	action 	regarding 	salary 	increments, 	without
providing 	the 	exclusive 	representative, 	New Haven Teachers
Association CTA/NEA, 	with 	notice 	and 	opportunity 	to negotiate.
As 	a 	result of 	this conduct, 	we 	have been ordered 	to post 	this
notice. 	We 	will 	abide 	by 	the 	following:
WE WILL 	NOT 	take 	unilateral 	action 	regarding 	proposed
changes of 	employee 	wages, 	hours or 	terms or 	conditions of
employment, 	without providing 	the 	exclusive 	representative with
notice 	and opportunity 	to 	negotiate.
NEW 	HAVEN 	UNIFIED 	SCHOOL 	DISTRICT
By:
Superintendent
Dated:
This 	is 	an official 	notice. 	It must 	remain posted 	for
30 	consecutive 	days 	from 	the 	date 	of posting 	and must 	not be
defaced, 	altered or 	covered by 	any material.
36

Appendix; 	Notice.
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD,
An Agency of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Newark Unified 	School
District 	violated 	the 	Educational 	Employment 	Relations 	Act 	by
taking 	unilateral 	action 	regarding 	salary 	increments, 	without
providing 	the 	exclusive 	representative, 	Newark Teachers
Association, 	with 	notice 	and 	opportunity 	to negotiate. 	As 	a
result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post 	this
notice. 	We 	will 	abide 	by 	the 	following:
(a) 	WE WILL 	NOT take 	unilateral 	action 	regarding 	proposed
changes of 	employee 	wages, 	hours 	or 	terms or 	conditions of
employment, 	without providing 	the 	exclusive 	representative 	with
notice 	and 	opportunity 	to 	negotiate.
(b) 	WE WILL 	reinstate 	step 	increment payments 	for
certificated employees, 	with payment of 	interest 	at 	7 percent
for 	the 	amount 	due 	from July 	1, 	1977 	to 	the 	date 	of
reinstatement.
NEWARK 	UNIFIED 	SCHOOL 	DISTRICT
By:
Superintendent
Dated:
This 	is 	an 	official 	notice. 	It must 	remain posted 	for
30 	consecutive 	days 	from 	the 	date 	of posting 	and must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
37

Appendix: 	Notice.
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD,
An Agency of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has been 	found 	that 	the 	State 	Center 	Community
College 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	by 	taking 	unilateral 	action 	regarding 	salary 	increments,
without providing 	the 	exclusive 	representative, 	California
School 	Employees 	Association, 	with 	notice 	and 	opportunity 	to
negotiate. 	As 	a 	result 	of 	this 	conduct, 	we 	have 	been ordered 	to
post 	this 	notice. 	We 	will 	abide 	by 	the 	following:
(a) 	WE WILL NOT 	take 	unilateral 	action 	regarding 	proposed
changes 	of 	employee 	wages, 	hours 	or 	terms or 	conditions 	of
employment, 	without providing 	the 	exclusive 	representative 	with
notice 	and 	opportunity 	to 	negotiate.
(b) 	WE WILL 	reinstate 	step 	increment payments 	for
classified 	employees, 	with payment of 	interest 	at 	7 	percent 	for
the 	amount 	due 	from July 	1, 	1977 	to 	the 	date 	of 	reinstatement.
STATE 	CENTER COMMUNITY 	COLLEGE
DISTRICT
By: Superintendent
Dated:
This 	is 	an official 	notice. 	It must 	remain posted 	for
30 	consecutive 	days 	from 	the 	date 	of posting 	and must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
38

Appendix; 	Notice.
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD,
An Agency of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Centinela Valley Union
High 	School 	District 	violated 	the 	Educational 	Employment
Relations 	Act 	by 	taking 	unilateral 	action 	regarding 	salary
increments, 	without providing 	the exclusive 	representative,
Centinela Valley 	Secondary 	Teachers Association, 	with 	notice 	and
opportunity 	to negotiate. 	As 	a 	result 	of 	this 	conduct, 	we 	have
been 	ordered 	to post 	this 	notice. 	We 	will 	abide 	by 	the
following:
(a) 	WE WILL 	NOT 	take 	unilateral 	action 	regarding 	proposed
changes 	of 	employee 	wages, 	hours 	or 	terms or 	conditions 	of
employment, 	without providing 	the 	exclusive 	representative 	with
notice 	and 	opportunity 	to 	negotiate.
(b) 	WE WILL reinstate 	step 	increment payments 	for
certificated employees, 	with payment of 	interest 	at 	7 	percent
for 	the 	amount 	due 	from September 	7, 	1977 	to 	the 	date 	of
reinstatement.
CENTINELA 	VALLEY 	UNION 	HIGH
SCHOOL 	DISTRICT
By:
Superintendent
Dated:
This 	is 	an official 	notice. 	It must 	remain posted 	for
30 	consecutive 	days 	from 	the 	date 	of posting 	and must 	not 	be
defaced, 	altered 	or 	covered 	by 	any material.
39