PERB Decision No. 0129E

Full text

ANNULLED by San Mateo City School District v. PERB (1983) 33
Cal.3d 850, and REPLACED by Healdsburg Union High School District
and Healdsburg Union School District/San Mateo City School District
(1984) PERB Decision No. 375 STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN MATEO ELEMENTARY TEACHERS'
ASSOCIATION, CTA/NEA,
Charging Party, 	Case No. SF-CE-36
and 	PERB Decision No. 129
SAN MATEO CITY SCHOOL DISTRICT, 	May 20, 1980
Respondent.
Appearances: Rubin Tepper, Attorney for San Mateo Elementary
Teachers Association, CTA/NEA; J. Michael Taggart, Attorney
(Paterson and Taggart) for San Mateo City School District.
Before Gluck, Chairperson; Gonzales, and Moore, Members.
DECISION
This case is before the Public Employment Relations Board
(formerly Educational Employment Relations Board and
hereinafter referred to as PERB) on exceptions raised by the
respondent San Mateo City School District (hereafter District)
to the attached hearing officer's decision. 	The amended unfair
practice charge filed by the San Mateo Elementary Teachers'
Association (hereafter SMETA) alleged that the District
violated section 3543.5 (c) of the Educational Employment
Relations Act (hereafter EERA) I by refusing or failing to
1T 	cational Employment Relations Act is codified at
section 3540 et seq. of the Government Code. Unless noted
otherwise herein, all statutory references are to the
Government Code.
STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SAN MATEO 	ELEMENTARY 	TEACHERS 1
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
and
SAN MATEO CITY 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	SF-CE-36
PERB Decision 	No. 	129
May 	20, 	1980
Appearances: 	Rubin 	Tepper, 	Attorney 	for 	San Mateo 	Elementary
Teachers' 	Association, 	CTA/NEA; 	J. 	Michael 	Taggart, 	Attorney
(Paterson 	and 	Taggart) 	for 	San Mateo City 	School 	District.
Before 	Gluck, 	Chairperson; 	Gonzales, 	and Moore, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(formerly 	Educational 	Employment 	Relations 	Board 	and
hereinafter 	referred 	to 	as 	PERB) 	on 	exceptions 	raised 	by 	the
respondent 	San Mateo City 	School 	District 	(hereafter 	District)
to 	the 	attached 	hearing 	officer's 	decision. 	The 	amended 	unfair
practice 	charge 	filed 	by 	the 	San Mateo 	Elementary 	Teachers'
Association 	(hereafter 	SMETA) 	alleged 	that 	the District
violated 	section 	3543.S(c) 	of 	the 	Educational 	Employment
Relations 	Act 	{hereafter 	EERA)l 	by 	refusing 	or 	failing 	to
l he Edu	The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
section 	3540 	et 	seq. 	of 	the 	Government 	Code. 	Unless 	noted
otherwise 	herein, 	all 	statutory 	references 	are 	to 	the
Government 	Code.

meet 	and 	negotiate 	in 	good 	faith 	over 	the 	length 	of 	the
instructional 	day, 	preparation 	time, 	and 	rest 	time. 	SMETA 	also
alleged 	that 	the 	District, 	during 	the 	1976-1977 	and 	1977-1978
negotiations, 	unilaterally 	adopted 	changes 	in 	the 	length 	of 	the
teachers' 	instructional 	day 	and 	preparation 	time. 	The 	District
denied 	that 	such 	changes 	affect 	hours 	of 	employment, 	asserting
that 	such 	matters 	are 	outside 	the 	scope 	of 	representation 	as
defined 	in 	section 	3543,2.
meet and negotiate in good faith over the length of the
After a hearing, the PERB hearing officer concluded that
the District violated section 3543.5(c) during the 1976-1977
negotiations by refusing to negotiate on instructional time and
preparation time and by unilaterally lengthening the
instructional day and concomitantly reducing preparation
time. He further concluded that although there was a violation
as to preparation time during 1977-1978 negotiations, there was
none committed then with respect to instructional time. He
decided that the Association failed to prove that rest time is
a proper subject of negotiation and, therefore, declined to
to this subject.
The District excepts to the hearing officer's
determinations that the instructional day and preparation time
are within the scope of representation and that its unilateral
changes constituted refusal to negotiate in good faith. 	The
District also argues that the 1976-1977 contract reached by the
parties mooted the issues raised in the charge.
After 	a 	hearing, 	the 	PERB 	hearing 	officer 	concluded 	that
the 	District 	violated 	section 	3543.5(c) 	during 	the 	1976-1977
negotiations 	by 	refusing 	to 	negotiate 	on 	instructional 	time 	and
preparation 	time 	and 	by 	unilaterally 	lengthening 	the
instructional 	day 	and 	concomitantly 	reducing 	preparation
time. 	He 	further 	concluded 	that 	although 	there 	was 	a 	violation
as 	to 	preparation 	time 	during 	1977-1978 	negotiations, 	there 	was
none 	committed 	then 	with 	respect 	to 	instructional 	time. 	He
decided 	that 	the 	Association 	failed 	to 	prove 	that 	rest 	time 	is
a 	proper 	subject 	of 	negotiation 	and, 	therefore, 	declined 	to
determine whether the District had negotiated in good faith asgood 	faith 	as
to 	this 	subject.
determine 	whether 	the 	District 	had 	negotiated 	in
The 	District 	excepts 	to 	the 	hearing 	officer's
determinations 	that 	the 	instructional 	day 	and 	preparation 	time
are 	within 	the 	scope 	of 	representation 	and 	that 	its 	unilateral
changes 	constituted 	refusal 	to 	negotiate 	in 	good 	faith. 	The
District 	also 	argues 	that 	the 	1976-1977 	contract 	reached 	by 	the
parties 	mooted 	the 	issues 	raised 	in 	the 	charge.
2
instructional day, preparation time, and rest time. SMETA also
alleged that the District, during the 1976-1977 and 1977-1978
negotiations, unilaterally adopted changes in the length of the
teachers' instructional day and preparation time. The District
denied that such changes affect hours of employment, asserting
that such matters are outside the scope of representation as
defined in section 3543. 2.

FACTS
On
	May
	13,
	1976, 	the
	District
	recognized
	SMETA
	as
	the
exclusive
	representative
	of
	its
	certificated
	employees. 	In
In
July
	1976,
	SMETA
	submitted
	its 	initial
	contract
	proposals 	for
1976-1977,
	which
	included
	provisions
	regarding
	instructional
duty
	time,
	preparation
	time,
	and
	rest
	time.
	In 	September,
	the
parties
	commenced
	negotiations
	which
	continued
	until
February
	1,
	1977.
On May 13, 1976, the District recognized SMETA as the
FACTS
On 	November
	9,
	1976, 	the
	District's
	Board
	of 	Trustees
formally
	adopted 	changes
	in
	its
	Policy
	and
	Regulation 	6112.
On November 9, 1976, the District's Board of Trustees
2
2
2policy
	6112, 	as 	modified, 	provided
	in
	pertinent
	part:	policy 6112, as modified, provided in pertinent part:
The
	Board
	of
	Education
	shall
	adopt
	a
schedule 	for
	lengths 	of 	the 	school
	day
	upon
recommendation
	of 	the 	Superintendent,
cognizant 	of 	the 	requirements 	of 	the
	State
Education
	Code
	and
	the 	diverse 	educational
needs
	of 	the
	students.
The Board of Education shall adopt a
Regulation 	6112, 	as 	modified, 	provided
	in 	pertinent 	part:	Regulation 6112, as modified, provided in pertinent part:
Daily 	schedules	
of	
classes 	shall	
be
determined
	by
	the
	principal
	of
	each 	school
with 	the 	approval 	of 	the 	Superintendent.Schedules 	adopted 	should
	meet	
all	
state
	laws
and	
district
	regulations.
Daily schedules of classes shall be
Variations 	in	
the 	schedules 	are 	permissible
at 	discretion 	of 	the 	Principal
	when
adjustments 	are 	necessary 	to 	reconcile 	class
and 	bus
	schedules 	or
	when
	adjustments
	will
provide	
better 	utilization	
of 	school 	time
for	
instructional
	or 	administrativepurposes. 	All 	variations
	must 	have 	the
prior	
approval
	of 	the 	Superintendent 	ofSchools.
Variations in the schedules are permissible
W
3
formally adopted changes in its Policy and Regulation 6112. 2
schedule for lengths of the school day upon
recommendation of the Superintendent,
cognizant of the requirements of the State
Education Code and the diverse educational
needs of the students.
determined by the principal of each school
with the approval of the Superintendent.
Schedules adopted should meet all state laws
and district regulations.
at discretion of the Principal when
adjustments are necessary to reconcile class
and bus schedules or when adjustments will
provide better utilization of school time
for instructional or administrative
purposes. All variations must have the
prior approval of the Superintendent of
Schools.
exclusive representative of its certificated employees.
July 1976, SMETA submitted its initial contract proposals for
1976-1977, which included provisions regarding instructional
duty time, preparation time, and rest time. In September, the
parties commenced negotiations which continued until
February 1, 1977.

The
	change
	effectively
	lengthened 	the
	minimum
	instructional
day
The change effectively lengthened the minimum instructional
3	
as
	of 	January
	1977,
	by
	adding
	six
	minutes
	of
instructional
	time
	per
	day 	and
	subtracting
	thirty
	minutes
	of
teacher 	preparation
	time
	allocated
	on Wednesdays. 	The overall	The
	overall
7
	1/4-hour
	workday 	and
	the
	duty-free
	lunch
	period 	for
	teachers
remained
	unaltered.
	According
	to
	the
	District, 	this
	measure
was
	necessary
	because
	of
	parental
	concerns
	that
	the
	District
had
	the
	shortest 	instructional
	day
	of
	all
	school
	districts
	in
San 	Mateo
	County.
	On
	December
	13,
	1976,
	SMETA
	filed 	this
unfair 	practice
	charge.
instructional time per day and subtracting thirty minutes of
The
	parties
	continued
	to 	negotiate.
	On
	February
	1,
	1977,
following 	mediation, 	the
	District
	and
	SMETA
	agreed
	to
	a
contract,
	the 	duration 	of
	which
	was
	through 	June
	30,
	1977 	and
thereafter 	until
	one
	of 	the
	parties
	served
	written 	request 	for
renegotiation.
	Wage
	issues
	were
	resolved 	but
	the
	issue
	of
hours	
was
	specifically
	left
	unaddressed	
pending	
resolution 	of
the
	instant 	unfair 	practice
	case.
The parties continued to negotiate. On February 1, 1977,
Shortly
	thereafter
	the
	parties
	began
	negotiations 	for
1977-1978.
	SMETA
	resubmitted
	its
	proposal 	of	
1976-1977 	on 	the
instructional	
day.
	The	
District	
did 	not	
respond
	on
	this
issue.
	It
	did	
acknowledge	
in
	its	
memorandum
	of	
March
	8,
	1977
to
	SMETA
	that 	if	
the	
PERB
	ruled 	the
	instructional	
day	
within
Shortly thereafter the parties began negotiations for
3	See Education Code section 46100 et seq. which mandates
the	
minimum
	instructional	
day	
in 	public 	schools.
see
4
day3 as of January 1977, by adding six minutes of
teacher preparation time allocated on Wednesdays.
7 1/4-hour workday and the duty-free lunch period for teachers
remained unaltered. According to the District, this measure
was necessary because of parental concerns that the District
had the shortest instructional day of all school districts in
San Mateo County. On December 13, 1976, SMETA filed this
unfair practice charge.
following mediation, the District and SMETA agreed to a
contract, the duration of which was through June 30, 1977 and
thereafter until one of the parties served written request for
renegotiation. Wage issues were resolved but the issue of
hours was specifically left unaddressed pending resolution of
the instant unfair practice case.
1977-1978. SMETA resubmitted its proposal of 1976-1977 on the
instructional day. The District did not respond on this
issue. It did acknowledge in its memorandum of March 8, 1977
to SMETA that if the PERB ruled the instructional day within
Education 	Code	
section
	46100
	et	
seq.
	which 	mandates
the minimum instructional day in public schools.

the
	scope
	of
	representation,the
	reopener
	clause 	of 	the
1976-1977
	agreement
	could
	be
	utilized
	to 	negotiate
	the
instructional
	day
	issue.
the scope of representation, the reopener clause of the
SMETA
	also
	proposed
	not
	less
	than
	one
	hour
	of
	preparation
time
	and
	a
	twenty-minute
	rest
	period 	for
	each
	two
	hours
	of
instructional
	time.
	The
	District
	contended
	that
	unused
noninstructional
	time
	was
	excess
	time
	which
	teachers
	could
	use
for
	preparation.
	If,
	however,
	a
	teacher
	could 	not
	complete
	the
necessary
	preparation
	for
	classroom
	work 	on
	unallocated 	time,
the
	District
	expected
	teachers 	to
	use 	time
	outside 	of 	school
	to
prepare.
	In 	response
	to
	SMETA's
	proposal
	on
	rest
	time, 	the
District
	proposed
	that
	employees
	would 	have
	a
	break
	for
personal
	needs
	every
	two
	hours.
	There
	is
	no	
evidence 	in 	the
record
	either 	that
	SMETA
	sought
	further 	negotiations
	or
	that
the	
District
	subsequently 	refused 	to 	discuss
	rest
	time.
SMETA also proposed not less than one hour of preparation
On
	April 	19,	
1977, 	the
	District	
again 	adopted 	changes
	in
Policy
	and
	Regulation 	6112,4	
effective
	September
	1977. 	These	effective September 1977. These
On April 19, 1977, the District again adopted changes in
4Policy 6112, as again modified, provided in pertinent	
4policy
	6112,
	as 	again 	modified, 	provided 	in 	pertinent
part:	
part:
The 	San 	Mateo	
City	
School	
District 	will
provide
	an
	educational
	program
	for
	all
children	
with 	the	
maximum 	amount	
of
instructional
	time
	in 	school
	consistent
	with
sound
	educational	
practice.
The San Mateo City School District will
The 	Board
	of
	Education 	adopts 	the 	following
minimum 	and 	maximum
	lengths 	for 	the
instructional	
day. 	These 	times 	for 	the
The Board of Education adopts the following
5
1976-1977 agreement could be utilized to negotiate the
instructional day issue.
time and a twenty-minute rest period for each two hours of
instructional time. The District contended that unused
noninstructional time was excess time which teachers could use
for preparation. If, however, a teacher could not complete the
necessary preparation for classroom work on unallocated time,
the District expected teachers to use time outside of school to
prepare. In response to SMETA's proposal on rest time, the
District proposed that employees would have a break for
personal needs every two hours. There is no evidence in the
record either that SMETA sought further negotiations or that
the District subsequently refused to discuss rest time.
Policy and Regulation 6112,4
provide an educational program for all
children with the maximum amount of
instructional time in school consistent with
sound educational practice.
minimum and maximum lengths for the
instructional day. These times for the

changes
	increased 	the
	instructional
	day
	by 	30
	minutes
	and 	would
have
	eliminated 	the
	Wednesday
	preparation
	period
	entirely
	if
the
	existing
	staggered
	class
	schedules
	were
	maintained.
changes increased the instructional day by 30 minutes and would
instructional
	day
	are
	indicated
	as
	average
minutes 	per
	day
	for
	a
	five-day 	period 	and
exclusive 	of 	passing
	time, 	lunch, 	recess
	and
other
	non-instructional
	activities.
instructional day are indicated as average
Minimun	Minimun 	Maximum	Maximum
Kindergarten	Kindergarten
Grades 1-2
180	180
260
180Grades
	1-2	
260	
300
180
300
Grade
	3	Grade 3	
280	280	
310	310
Grades 	4-5	Grades 4-5
Grades 6-7-8
300	300
315
330
Grades
	6-7-8	
315 	345
330
345
The
	range
	for 	the 	length 	of 	the
instructional
	day
	at
	each
	grade
	level
provides 	for 	the 	uniqueness
	of
	each
	school
community,
	for 	the 	increasing 	maturity 	of
the
	children
	and
	for 	the 	opportunity 	of 	the
instructional
	staff
	to
	see
	more
	effective
ways
	to
	educate
	children.
	Should
	a
	school
wish
	to
	develop
	a
	schedule
	which
	exceeds
	the
range
	of
	minutes 	for 	the 	length 	of 	theaverage
	instructional
	day
	at
	any
	grade
level,
	such 	approval
	may 	be
	given
	by
	the
Board
	of
	Education,
	upon
	recommendation
	ofthe 	Superintendent 	of
	Schools.
The range for the length of the
Regulation
	6112
	in 	pertinent 	part
	provides:	Regulation 6112 in pertinent part provides:
Daily 	schedules 	for
	each 	school
	shall
	be
determined
	by
	the
	principal
	of	
each
	schoolwith 	the 	approval	
of 	the 	Superintendent
	and
the
	Board
	of 	Education. 	School
	schedulesshould 	meet
	all 	state
	laws,
	policies
	of 	the
Board
	of 	Education,
	and
	district
	regulations.
Daily schedules for each school shall be
The 	minimum 	and 	maximum
	length 	of 	theaverage
	instructional
	day
	for 	each 	grade
	isset 	forth 	in 	Policy
	6112. 	Should 	a
	schoolwish
	to 	adopt 	a
	schedule 	with 	the 	length 	of
the 	instructional
	day
	different
	than 	these
The minimum and maximum length of the
6
have eliminated the Wednesday preparation period entirely if
the existing staggered class schedules were maintained.
minutes per day for a five-day period and
exclusive of passing time, lunch, recess and
other non-instructional activities.
instructional day at each grade level
provides for the uniqueness of each school
community, for the increasing maturity of
the children and for the opportunity of the
instructional staff to see more effective
ways to educate children. Should a school
wish to develop a schedule which exceeds the
range of minutes for the length of the
average instructional day at any grade
level, such approval may be given by the
Board of Education, upon recommendation of
the Superintendent of Schools.
determined by the principal of each school
with the approval of the Superintendent and
the Board of Education. School schedules
should meet all state laws, policies of the
Board of Education, and district regulations.
average instructional day for each grade is
set forth in Policy 6112. Should a school
wish to adopt a schedule with the length of
the instructional day different than these

DISCUSSION	DISCUSSION
The
	scope
	of
	representation
	is
	set
	out
	in 	section
	3543.2:	The scope of representation is set out in section 3543.2:
The
	scope
	of
	representation
	shall
	be
	limited
to 	matters
	relating
	to
	wages,
	hours
	of
employment,
	and
	other
	terms
	and
	conditions
of employment.	
of
	employment.
	"Terms 	and
	conditions 	of
employment" 	means
	health
	and
	welfare
benefits
	as 	defined
	by
	section
	53200,
	leave,
transfer,
	and
	reassignment
	policies,
	safety
conditions
	of
	employment,
	class 	size,
procedures
	to
	be
	used
	for 	the
	evaluation 	of
employees,
	organizational 	security
	pursuant
to
	section
	3546,
	procedures
	forprocessing 	grievances 	pursuant
	to 	sections
3548.5, 	3548.6, 	3548.7,
	and
	3548.8,
	and
	the
layoff
	of 	probationary
	certificated
	school
district
	employees,
	pursuant
	to
section 	44949.5 	of
	the 	Education
	Code.
	In
addition,
	the
	exclusive 	representative
	of
certificated
	personnel
	has
	the
	right
	to
consult
	on
	the
	definition
	of 	educational
objectives,
	the 	determination 	of 	the 	content
of	
courses
	and
	cirriculum,
	and
	the
	selection
of 	textbooks
	to
	the
	extent
	such
	matters 	are
within
	the
	discretion
	of 	the
	public
	school
employer 	under
	the
	law.
	All 	matters
	not
specifically
	enumerated
	are 	reserved
	to
	the
public 	school
	employer
	and 	may
	not
	bea	
subject 	of
	meeting
	and
	negotiating
	...
The scope of representation shall be limited
The	
question 	before 	the
	Board
	is
	whether 	any
	of 	the
disputed
	subjects--length of 	the
	instructional
	day,
	preparation
time,	
and	
rest 	periods-falls
	within 	the
	scope
	of 	negotiations
as defined by section 3543.2. It is the Association's
contention 	that 	the 	matters 	are 	covered	
under
	the 	term 	"hours
The question before the Board is whether any of the
minimum 	and 	maximum
	times,
	a
	specificexception
	must 	be 	made
	for 	each 	school
year. 	Policy
	6112
	designates 	the 	average
times 	for
	a
	five-day 	period.
minimum and maximum times, a specific
7
to matters relating to wages, hours of
employment, and other terms and conditions
"Terms and conditions of
employment" means health and welfare
benefits as defined by section 53200, leave,
transfer, and reassignment policies, safety
conditions of employment, class size,
procedures to be used for the evaluation of
employees, organizational security pursuant
to section 3546, procedures for
processing grievances pursuant to sections
3548.5, 3548.6, 3548.7, and 3548.8, and the
layoff of probationary certificated school
district employees, pursuant to
section 44949.5 of the Education Code. In
addition, the exclusive representative of
certificated personnel has the right to
consult on the definition of educational
objectives, the determination of the content
of courses and cirriculum, and the selection
textbooks to the extent such matters are
within the discretion of the public school
employer under the law. All matters not
specifically enumerated are reserved to the
public school employer and may not be
a subject of meeting and negotiating
disputed subjects--length of the instructional day, preparation
time, and rest periods-falls within the scope of negotiations
as 	defined	
by
	section 	3543.2.
	It
	is	
the 	Association
1 s
contention that the matters are covered under the term "hours
exception must be made for each school
year. Policy 6112 designates the average
times for a five-day period.

of
	employment."
	The
	District
	contends
	that
	the
	subjects 	are
matters
	of
	educational 	policy
	and,
	therefore,
	outside
	of
	scope.
of employment. " The District contends that the subjects are
Reference
	to
	private
	sector
	experience
	is
	marginally
helpful	
as	
there
	has
	been
	little
	litigation
	based
	on
	the
	term
"hours
	of
	employment."
	Because,
	unlike
	EERA,
	the 	National
Labor
	Relations
	Act
	(hereafter
	NLRA)
Reference to private sector experience is marginally
55
does
	not
	have
	limiting
language
	defining
	"terms
	and
	conditions
	of
	employment,"
	the
case
	law
	developed
	under
	the
	federal
	statute
	tends
	to
	blur 	the
distinction
	between
	"hours"
	and
	"terms
	and
	conditions." 	The	The
NLRA
	does 	not
	require
	that 	distinctions
	be 	made
	between
categories 	of
	mandatory
	subjects
	of 	bargaining. 	Nevertheless,
an
	examination
	of
	NLRB
	and
	judicial
	treatment 	of 	bargaining
subjects
	concerning 	hours
	and
	nonwork
	time
	is
	useful 	in
deciding 	the
	issues 	presented
	by
	this
	case.
language defining "terms and conditions of employment," the
6
In
	Amalga~ated
	Meat
	Cutters
	v. 	Jewel
	Tea
	Co. 	(1965) 	381
U.	
U.S. 	676,	
691 	[59
	LRRM
	2376],
	the
	Supreme
	Court 	expressed	
the
obligation
	as 	follows:
In Amalgamated Meat Cutters v. Jewel Tea Co. (1965) 381
The
	particular
	hours	
of	
the
	day 	and
	the
particular
	days
	of 	the
	week
	during
	which
employees
	may 	be
	required 	to
	work
	are
subjects 	well 	within	
the 	realm
	of
	wages,hours
	and
	other 	terms	
and	
conditions 	of
employment 	about 	which 	employers
	and	
unionsmust 	bargain.
The particular hours of the day and the
5529 	use	
section	
151	
et
	seq.	29 USC section 151 et seq.
Co
6
Fire 	Fighters
	Union
	v. 	City 	of 	Vallejo
	(1974) 	12
	Cal.3d
608	
608.. Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3d
8
matters of educational policy and, therefore, outside of scope.
helpful as there has been little litigation based on the term
"hours of employment. " Because, unlike EERA, the National
Labor Relations Act (hereafter NLRA) 	does not have limiting
case law developed under the federal statute tends to blur the
distinction between "hours" and "terms and conditions."
NLRA does not require that distinctions be made between
categories of mandatory subjects of bargaining. Nevertheless,
an examination of NLRB and judicial treatment of bargaining
subjects concerning hours and nonwork time is useful in
deciding the issues presented by this case. 6
S. 676, 691 [59 LRRM 2376], the Supreme Court expressed the
obligation as follows:
particular days of the week during which
employees may be required to work are
subjects well within the realm of wages,
hours and other terms and conditions of
employment about which employers and unions
must bargain.

Pursuant
	to
	this
	general
	principle,
	the
	obligation
	to
negotiate
	was
	held
	to
	include
	whether 	working
	hours
	were
	to
fall
	in
	the 	daytime,
	nighttime, 	or
	Sundays.
Pursuant to this general principle, the obligation to
7e	
In
	Weston	
&
Brooker
	Co.
	(1965) 	154
	NLRB
	747
	[60
	LRRM
	1015]
	the 	National
Labor
	Relations
	Board,
	citing
	NLRB
	v.
	Katz
	(1962)
	396
	U.S.
	736
[ 50
	LRRM
	2177
],
	held
	that
	the 	length 	of 	the
	workday
	was 	a
mandatory
	subject
	of
	negotiations
	and
	that
	an
	employer's
unilateral
	change
	in
	that
	workday
	constituted
	a
	violation
	of
its obligation to negotiate in good faith. In Camp & Mcinnes,
(1952)
	100
	NLRB
	524
	[30
	LRRM
	1310],
	the
	employer
	was
found
	to
	be
	in
	violation
	for 	having,
	inter
	alia,
	unilaterally
reduced
	the
	lunch
	period. 	Certain 	other 	matters,
	such 	as
vacations, 	holidays, 	sick 	leave,
	and
	other
	nonwork
	time
	issues
have
	been 	found
	to
	be
	subject 	to 	negotiations
	under
	the 	phrase
"other
	terms
	and
	conditions 	of
	employment.
11
Brooker Co. (1965) 154 NLRB 747 [60 LRRM 1015] the National
8
It
	is
	true	
that 	the
	definition
	of
	"terms
	and
	conditions 	of
employment"
	contained 	in 	section
	3543.2,
	does 	not 	include
	among
the
	enumerated 	items 	those 	matters
	which
	are 	in 	dispute 	in
	this
case.
	But,
	it
	is
	reasonable
	to
	conclude
	that	
the	
Legislature
It is true that the definition of "terms and conditions of
7
?Morris, 	Develoeing
	Labor 	Law,	
page 	404, 	fn 	69.	Morris, Developing Labor Law, page 404, fn 69.
8B
NLRB
	v. 	Katz,
	(1962) 	369	
U.S.
	736 	[50
	LRRM
	2177];
	NLRB
	v.
Sharon Hats, Inc., (1961) 289 F. 2d 628 [48 LRRM 2098] ; Great
Southern Teaching Co. , v. NLRB (1942) 127 F. 2d 180 [10 LRRM
571].
	See
	also Kendell 	College
	(1977) 	228
	NLRB
	1083 	[95
	LRRM
1094], 	holding	
that 	class 	schedules 	of 	college 	teachers 	are
included in the term "hours."
NLRB v. Katz, (1962) 369 U.S. 736 [50 LRRM 2177 ] ; NLRB V.
9
negotiate was held to include whether working hours were to
fall in the daytime, nighttime, or Sundays.7 In W ston &
Brooker Co. (1965) 154 NLRB 747 [60 LRRM 1015] the National
employment" contained in section 3543.2, does not include among
the enumerated items those matters which are in dispute in this
case. But, it is reasonable to conclude that the Legislature
Sharon
	Hats, 	Inc.,
	(1961) 	289
	F. 2d 628 	[ 48
	LRRM
	209-STT	
§.;-_ea!_
~Sou-tfiern 	Teacn.Tn9 	Co. ,
	v.
	NLRB
	( 1942) 	127 	F. 2d 180 	[ 10 	LRRM
571] . 	See also Kendell College (1977) 228 NLRB 1083 [95 LRRM
1094], holding that class schedules of college teachers are
included 	in 	the 	term	
11
hours.
11
Labor Relations Board, citing NLRB v. Katz (1962) 396 U.S. 736
[50 LRRM 2177], held that the length of the workday was a
mandatory subject of negotiations and that an employer's
unilateral change in that workday constituted a violation of
its
	obligation 	to 	negotiate 	in
	good
	faith.
	In
	Came 	&
Mcinnes,
!~c.,	Inc., (1952) 100 NLRB 524 [30 LRRM 1310] , the employer was
found to be in violation for having, inter alia, unilaterally
reduced the lunch period. Certain other matters, such as
vacations, holidays, sick leave, and other nonwork time issues
have been found to be subject to negotiations under the phrase
"other terms and conditions of employment. "8

in
	so
	limiting
	the 	phrase 	"other
	terms
	and
	conditions
	of
employment"
	sought 	only
	to
	satisfy
	two
	basic
	objectives:
(1)	
exempting
	from
	the
	scope
	of
	negotiations
	certain
	matters 	of
fundamental
	educational 	policy
	over
	which
	managerial
	control
was
	to
	be
	preserved 	as
	essential
	to
	achievement
	of 	the
constitutional
	and
	statutory
	mission 	of 	the 	school
	district
and,
	(2)
	the
	designation 	of
	specifically
	approved
	subjects
which
	may
	bear
	no
	relationship 	to
	wages
	or
	hours
	of
	employment
and,
	therefore,
	could 	not
	be
	covered
	by
	those
	two
	"umbrella"
terms.
	In 	other
	words,
	by
	limiting
	"terms
	and
	conditions
	of
employment"
	to 	the
	enumerated
	items, 	the 	Legislature
	did 	not
intend 	to
	exclude
	all
	other
	subjects
	which
	are 	considered
negotiable
	terms
	and
	conditions
	under
	the
	NLRA,
	but
	which
	are
not
	specifically 	listed
	in
	EERA.
in so limiting the phrase "other terms and conditions of
It
	is
	for
	this
	reason
	that
	EERA
	adopts
	a
	phrase 	not
	found
in
	the
	NLRA:
	"all
	matters
	related 	to."
	Therefore,
	to
determine 	whether
	a
	non-enumerated 	item
	is
	within 	scope,
	it
	is
necessary 	to 	find
	that
	it
	is 	logically
	and
	reasonably
	related
to
	wages, 	hours 	or
	an
	enumerated
	subject
	under 	"terms	
and
conditions 	of	
employment.
11
It is for this reason that EERA adopts a phrase not found
Central 	to
	its
	opposition 	to
	a	
finding 	that	
any	
of 	the
disputed 	items
	falls
	within 	the
	meaning
	of 	"hours 	of
employment"
	is
	the
	District's
	contention 	that
	each 	involves
	a
question 	of 	educational 	policy 	reserved 	to
	its 	unilateral
decision-making 	authority. 	First,
	assuming, 	?rguendo,
	that
Central to its opposition to a finding that any of the
10	10
employment" sought only to satisfy two basic objectives:
(1) exempting from the scope of negotiations certain matters of
fundamental educational policy over which managerial control
was to be preserved as essential to achievement of the
constitutional and statutory mission of the school district
and, (2) the designation of specifically approved subjects
which may bear no relationship to wages or hours of employment
and, therefore, could not be covered by those two "umbrella"
terms . 	In other words, by limiting "terms and conditions of
employment" to the enumerated items, the Legislature did not
intend to exclude all other subjects which are considered
negotiable terms and conditions under the NLRA, but which are
not specifically listed in EERA.
in the NLRA: 	"all matters related to. " Therefore, to
determine whether a non-enumerated item is within scope, it is
necessary to find that it is logically and reasonably related
to wages, hours or an enumerated subject under "terms and
conditions of employment."
disputed items falls within the meaning of "hours of
employment" is the District's contention that each involves a
question of educational policy reserved to its unilateral
decision-making authority. First, assuming, arguendo, that

educational 	policy matters
	are,
	per
	se,
	outside
	the
	scope
	of
bargaining, 	the
	District's
	position
	fails
	to
	consider
	that
	to
the
	extent
	that
	a
	lawful
	management
	decision
	affects
	the
employees'
	wages,
	hours 	or
	negotiable
	terms
	and
	conditions
	of
employment,
	the
	consequences
	of
	that
	decision 	are 	subject 	to
mandatory
	negotiations.
	Even
	where
	the
	employer
	has
	been
excused
	from
	an
	obligation 	to 	negotiate
	a
	decision
	which
	lies
at
	the
	core 	of
	entreprenurial 	control, 	his
	duty
	to 	negotiate
over 	the
	impact
	of
	that
	decision
	remains.
educational policy matters are, per se, outside the scope of
9
Second,
	the
	District's
	contention
	that
	negotiating
	on
	these
items
	would
	bring 	matters 	of 	educational 	policy 	into
	the
collective
	bargaining 	arena	
and	
out 	of 	the
	hands
	of
parent/teachers 	associations, 	students,
	and
	parents 	in 	the
community
	is
	without 	foundation.
	The
	District's
	position 	that
the 	concurrent 	presence 	of 	educational 	policy 	considerations
precludes
	negotiability
	would
	virtually,
	if
	not
	totally,
eliminate
	all
	subjects 	of 	bargaining.
	The
	matter 	of
	wages
might
	well 	run 	head-long
	into
	a 	management
	decision 	to
	expend
available
	revenues
	on
	additional
	classroom 	equipment
	and
textbooks; 	length 	of	
working 	day
	or 	the
	number
	of
	working 	days
per 	year 	might
	well 	clash 	with 	the 	scheduling
	of
	student
Second, the District's contention that negotiating on these
11
9Fibreboard Paper Products v. NLRB (1964) 379 U.S. 203
[57 LRRM 2609]; NLRB v. Transmission Navigation Corp. (1967)
380 F. 2d 933 [65 LRRM 2861]; NLRB v. Royal Plating & Polishing
Co. (1965) 350 F. 2d 191 [60 LRRM 2033] .
11
Fibreboard 	Paper 	Products 	v.
	NL~B
	(1964) 	379
	U.S.
	203
bargaining, the District's position fails to consider that to
the extent that a lawful management decision affects the
employees' wages, hours or negotiable terms and conditions of
employment, the consequences of that decision are subject to
mandatory negotiations. Even where the employer has been
excused from an obligation to negotiate a decision which lies
at the core of entreprenurial control, his duty to negotiate
over the impact of that decision remains.9
items would bring matters of educational policy into the
collective bargaining arena and out of the hands of
parent/teachers associations, students, and parents in the
community is without foundation. The District's position that
the concurrent presence of educational policy considerations
precludes negotiability would virtually, if not totally,
eliminate all subjects of bargaining. The matter of wages
might well run head-long into a management decision to expend
available revenues on additional classroom equipment and
textbooks; length of working day or the number of working days
per year might well clash with the scheduling of student
[57
	LRRM
	2609];	
~L~~	
v. 	Transmission
	Nav~9.aticn 	Core.
	(1967}
Co • 	( 19 6 5 ) 	3 5 0 	F . 2 d 191 	[ 6 0
	LRRM	
2 0 3 3 ] •
380
	F.2d
	933 	[65
	LRRM
	2861];
	NLg~ v. 	Royal 	Plating
	&
Polishing

classroom 	requirements;	classroom requirements; 10 teacher evaluation procedures,	
lO	
teacher 	evaluation
	procedures,
specifically
	negotiable
	under
	section 	3543,2,
	might
	fall
	victim
to 	policy
	determinations
	related
	to
	the
	quality
	of
	education
provided.
specifically negotiable under section 3543.2, might fall victim
The
	obligation 	to 	deal
	with 	the
	employees
	over
	related
issues
	of
	employee
	relations 	arising
	out 	of
	educational 	policy
decision-making
	does
	not
	require
	or
	entail
	a
	surrender 	of
	those
central
	managerial
	prerogatives
	which
	remain
	unchallenged.
Here,
	for
	example,
	the
	District's
	unilateral 	right
	to 	increase
the
	student's 	instruction
	time
	is
	not
	disputed.
	But,
	where
	the
teacher's
	concern 	with
	their
	wages 	and
	hours
	and
	terms
	and
conditions 	of
	employment
	tend
	to
	conflict
	with
	that
	managerial
decision,
	it
	is
	the 	very 	funcion 	of 	the 	mediatory
	influence
	of
collective
	negotiations 	to 	resolve	
such	
conflict.
The obligation to deal with the employees over related
11
Third, the District's contention erroneously implies that
the obligation to negotiate is tantamount to the obligation to
acquiesce.
Third,
12
2
Just
	as 	the	
presence 	of 	educational 	policy 	considerations
does	
not 	per 	se 	exclude	
a
	given
	subject
	from	
scope, 	so 	the	
mere
Just as the presence of educational policy considerations
10See Palos Verdes Peninsula Unified School	
lOsee 	Palos 	Verdes
	Peninsula 	Unified 	School
District/Pleasant
	Valley 	School
	District,
	(7716/79)	
PERB
Decision
	No. 	96
	holding
	that
	the
	number	
of	
workdays
	per 	year	
issubject 	to 	negotiations.
District/Pleasant Valley School District, (7/16/79) PERB
1lsee Palos Verdes/Pleasant Valley, id., at pp 31-32.11
see 	Palos 	VerdeslPleasant 	Valley,	
id.,
	at
	pp	
31-32.
12	
12see
	San
	Francisco,	
Community
	College 	District
(10/12/79) PERB Decision No. 105, p. I1.
see San Francisco, Community College District
12	12
to policy determinations related to the quality of education
provided.
issues of employee relations arising out of educational policy
decision-making does not require or entail a surrender of those
central managerial prerogatives which remain unchallenged.
Here, for example, the District's unilateral right to increase
the student's instruction time is not disputed. But, where the
teacher's concern with their wages and hours and terms and
conditions of employment tend to conflict with that managerial
decision, it is the very funcion of the mediatory influence of
collective negotiations to resolve such conflict. ll
the
	District
1 s
	contention 	erroneously 	implies
	that
the
	obligation 	to 	negotiate
	is
	tantamount
	to
	the
	obligation 	to
acquiesce. 1
does not per se exclude a given subject from scope, so the mere
Decision No. 96 holding that the number of workdays per year is
subject to negotiations.
(10/12/79)	
PERB
	Decision	
No.~r.

presence 	of
	employee
	concerns
	over
	wages,
	hours,
	or 	terms
	and
conditions
	of
	employment
	does
	not
	require 	negotiations
	on
	all
matters
	which
	impact
	on
	educational
	policy.
	There
	are
	at
	the
core 	of
	the 	managerial
	function
	certain
	policy matters
	which
are
	so
	fundamental
	to
	the
	basic
	achievement
	of 	the 	agency's
mission,
	or
	which
	impinge
	so
	tangentially
	and
	minimally
	on
employee
	interests
	that
	they
	may
	be
	properly
	excluded
	from
	the
bargaining 	arena.
presence of employee concerns over wages, hours, or terms and
Thus,
	the
	Board
	may
	be
	faced 	with
	a
	need
	to
	balance
	the
competing
	interests
	represented
	by
	management's
	obligation 	to
fulfill
	the 	mission 	of 	the
	District
	on
	the
	one 	hand, and
employee
	concerns 	with
	wages,
	hours
	and
	terms
	and
	conditions 	of
employment,
	on
	the
	other. 	Similarly,
	we
	must
	reconcile 	the
apparently 	contradictory 	statutory
	phrases: 	"limited to" and	
"limited 	to"
	and
"all
	matters
	relating 	to."
	The
	first
	phrase 	evinces
	a
legislative
	decision 	to 	grant
	a 	more
	restricted
	scope
	of
negotiability
	than
	that
	provided
	by
	the
	NLRA;
	the
	latter
	phrase
provides
	a
	latitude
	greater
	than
	that
	which 	would
	result
	from 	a
narrow
	construction 	of 	the 	"terms
	and
	conditions"
	statutory
language.
Thus, the Board may be faced with a need to balance the
The
	threshold 	question 	of 	negotiability 	inevitably 	turns
	on
whether
	the 	subject 	of 	the 	proposal 	"relates 	to"
	wages,
	hours,
or 	the 	enumerated 	terms 	and	
conditions 	of
	employment. 	The	The
relationship	
need	
not 	be 	so
	direct
	or 	obvious 	as 	to
	be
	little
more 	than 	synonomous
	with
	a 	mandatory	
subject, 	but 	the 	proposal
must
	logically	
and	
reasonably 	relate 	to
	a
	statutory 	subject.
The threshold question of negotiability inevitably turns on
13	13
conditions of employment does not require negotiations on all
matters which impact on educational policy. 	There are at the
core of the managerial function certain policy matters which
are so fundamental to the basic achievement of the agency's
mission, or which impinge so tangentially and minimally on
employee interests that they may be properly excluded from the
bargaining arena.
competing interests represented by management's obligation to
fulfill the mission of the District on the one hand, and
employee concerns with wages, hours and terms and conditions of
employment, on the other. Similarly, we must reconcile the
apparently contradictory statutory phrases:
"all matters relating to." The first phrase evinces a
legislative decision to grant a more restricted scope of
negotiability than that provided by the NLRA; the latter phrase
provides a latitude greater than that which would result from a
narrow construction of the "terms and conditions" statutory
language.
whether the subject of the proposal "relates to" wages, hours,
or the enumerated terms and conditions of employment.
relationship need not be so direct or obvious as to be little
more than synonomous with a mandatory subject, but the proposal
must logically and reasonably relate to a statutory subject.

If
	a
	proposal 	arguably
	meets
	the
	threshold
	test,
	it
	may
	be
necessary
	to
	apply
	the 	balancing
	test
	where
	the
	issue
	is
neither 	patently
	within
	or
	outside
	scope.
	The
	Board
	should
then
	consider:
If a proposal arguably meets the threshold test, it may be
a)	
a)	
whether
	the
	subject
	is
	of
	such
	concern
	to
	both
management 	and
	employees
	that 	conflict
	is
	likely
	to
	occur
	and
whether
	the 	mediatory
	influence
	of
	collective
	bargaining
	is
	the
appropriate
	means
	of
	resolving
	the
	conflict,
	and 	b)
	whether
	the
enployer's obligation to negotiate would significantly abridge
his
	freedom
	to 	exercise
	those 	managerial
	prerogatives
	essential
to	to achievement of the District's mission, Palos Verdes/Pleasant
See also Fibreboard Paper Products v. NLRB,
supra; Allied Chemical and Alkalai Workers v. Pittsburgh Plate
Glass
	(1971) 	404
	U.S.
	157 	[78
	LRRM
	2974].
Measured
	by
	these
	tests,
	the
	Board
	finds
	that
	length
	of
	the
instructional
	day,
	preparation
	time
	and
	rest
	periods 	are
"matters related to the hours of employment" over which the
District 	is
	obligated 	to 	negotiate.
Rest 	Periods	Rest Periods
Measured by these tests, the Board finds that length of the
The	
hearing	
officer's	
grounds
	for 	finding 	that 	the
Association 	"failed 	to	
prove"
	that	
rest	
time	
is	
negotiable
	and
his 	conclusion, 	without 	explanation, 	that
	the 	subject 	is
	not
negotiable 	are 	unclear.
	The
	relevant 	fact 	before 	the 	hearing
officer was undisputed: the Association proposed twenty minutes
of
	relief
	time 	from 	work
	for 	purposes 	of 	rest
	every
	two
	hours.
The hearing officer's grounds for finding that the
14	14
necessary to apply the balancing test where the issue is
neither patently within or outside scope. The Board should
then consider:
whether the subject is of such concern to both
management and employees that conflict is likely to occur and
whether the mediatory influence of collective bargaining is the
appropriate means of resolving the conflict, and b) whether the
enployer
1 s
	obligation 	to 	negotiate
	would
	significantly
	abridge
his freedom to exercise those managerial prerogatives essential
achievement
	of
	the
	District's
	mission, 	Palos 	Verdes/Pleasant
Valley, supra.	
Valley,
	_1§.:9££.~•
	See
	also
	F
ibreboard_P~~r
	Product_s
	v.
	NLRB,
~ra:
	Allied
	Chemical
	and
	Alkalai
	Workers 	v.
	Pittsburgh 	Plate
Glass (1971) 404 U.S. 157 [78 LRRM 2974] .
instructional day, preparation time and rest periods are
11
matters 	related
	to 	the 	hours	
of	
employment"
	over
	which	
the
District is obligated to negotiate.
Association "failed to prove" that rest time is negotiable and
his conclusion, without explanation, that the subject is not
negotiable are unclear. The relevant fact before the hearing
officer
	was
	undisputed: 	the 	Association 	proposed 	tw~nty 	minutes
of relief time from work for purposes of rest every two hours.

The
	issue
	of
	law
	clearly
	raised
	by
	this
	proposal
	is
	whether
	the
subject
	is
	within
	the
	scope
	of
	negotiations
	defined 	in
section
	3543.2.
The issue of law clearly raised by this proposal is whether the
The
	negotiability 	of
	"hours
	of
	employment"
	includes, 	of
necessity, 	negotiability
	of 	the
	hours
	during
	which
	employees
are
	not
	required 	to
	work. 	They
	are 	but
	different
	sides
	of 	the
same
	coin.
	It
	is
	not
	possible 	to 	negotiate
	a 	7
	1/4-hour
workday
	without
	indirectly
	"negotiating"
	a
	16
	3/4-hour
work-free
	day.
	Similarly,
	it
	is
	inherent 	in 	the
	negotiability
of
	the
	workday
	that
	one
	may
	deal
	with 	the
	placement
	and
duration 	within
	that
	time
	frame
	of
	lunch
	periods
	and
	the
designation
	and
	nature 	of
	relief
	time
	from
	the
	performance
	of
one's 	duties. 13	Not
The negotiability of "hours of employment" includes, of
Nothing
	in
	the 	record
	here
	suggests
	that
	the
obligation 	to 	negotiate
	on
	these 	matters
	would
	significantly
abridge
	an
	employer's
	ability
	to
	fulfill
	the 	mission 	of 	the
District.
	Thus,
	the
	subject
	of
	rest
	periods	
falls	
within 	the
scope
	of
	mandatory	
collective 	negotiations.
hing in the record here suggests that the
Instructional
	Day 	and
	Preparation
	Time	Instructional Day and Preparation Time
The
	instructional	
day	
includes
	two
	distinguishable
elements: 	the	
amount	
of	
time 	students 	are 	required 	to	
be	
in
The instructional day includes two distinguishable
13	
13 "what one's hours are to be, what amount of work is
expected during those hours, what periods of relief are
available,	
what
	safety 	practices 	are 	observed,
	would
	all	
seem
conditions of employment. " Fireboard Paper Products v. NLRB
(1964) 	379
	U.S.
	203
	at
	222 	[57
	LRRM
	2609], 	concurring 	opinion
of 	Justice 	Stewart.
"what
15	15
subject is within the scope of negotiations defined in
section 3543.2.
necessity, negotiability of the hours during which employees
are not required to work. They are but different sides of the
same coin. It is not possible to negotiate a 7 1/4-hour
workday without indirectly "negotiating" a 16 3/4-hour
work-free day. Similarly, it is inherent in the negotiability
of the workday that one may deal with the placement and
duration within that time frame of lunch periods and the
designation and nature of relief time from the performance of
one's duties. 13
obligation to negotiate on these matters would significantly
abridge an employer's ability to fulfill the mission of the
District. Thus, the subject of rest periods falls within the
scope of mandatory collective negotiations.
elements: the amount of time students are required to be in
one's
	hours 	are 	to 	be,	
what 	amount	
of	
work
	is
exp~cted 	during 	those 	hours,
	what
	periods 	of
	relief
_are
available, what safety practices are observed, would all seem
conditions 	of
	employment.
11	
Fireboard
	Pa~r
	Products 	v.	
NLRB
(1964) 379 U.S. 203 at 222 [57 LRRM 2609], concurring opinion
of Justice Stewart.

school
	for
	instruction
	and
	the
	amount
	of
	time
	teachers 	are
required 	to
	spend
	during 	the
	working 	day
	instructing
	students.
Although
	the
	two may
	coincide,
	they
	are
	not
	necessarily
identical.
	Nor,
	is
	the
	teachers'
	instructional
	day
	synonymous
with
	their
	working
	day. 	In
	this
	instance,
	teachers 	are
required
	to
	be
	at
	school
	for
	7
	1/4
	hours 	per
	day.
	However,
	not
all
	of
	this
	time
	is
	spent 	in
	instructing 	students. 	Some	
Some
portion
	of
	the
	workday
	has
	been
	utilized
	for
	instructional
preparation
	and
	it
	is
	undisputed
	that
	the
	District
	requires
	and
the
	job
	mandates
	that
	teachers
	spend
	some
	time
	in
	that
activity.14
school for instruction and the amount of time teachers are
As 	a
	requirement
	of 	the 	teaching
	"job," 	preparation
	time
	is
a 	component	
of	
the
	teachers'
	employment
	obligation
	in 	the
	same
sense 	as 	are 	classroom
	instruction
	and
	other
	mandated
	duties
such
	as
	parent-teacher 	conferences, 	giving 	examinations, 	or
grading
	students.
	While
	it
	may 	be 	conceded
	for 	purposes
	of
this
	case,
	the 	matter 	not 	being
	in
	issue, 	that
	the
	District's
requirement
	that
	teachers 	"prepare" 	for
	instruction
	is
	a
	matter
of 	managerial 	prerogative
	not
	subject 	to 	negotiations, 	to
	the
As a requirement of the teaching "job, " preparation time is
14	
1 while the definition of preparation time is not clearly
demonstrated 	in 	the 	record 	before 	the 	Board,
	it
	apparently
includes 	planning 	for
	and
	preparation 	of 	the 	subject 	matter 	to
be 	covered 	in 	class,
	arranging 	for 	the
	availability
	and
distribution
	of 	teaching 	aids
	and
	materials,
	and 	review
	ofstudent 	records; 	in 	brief,
	a
	combination 	of 	professional
	and
ministerial 	activities
	designed 	to 	expedite 	the 	presentation 	of
educational 	subject 	matter.
4while
16	16
required to spend during the working day instructing students.
Although the two may coincide, they are not necessarily
identical. Nor, is the teachers' instructional day synonymous
with their working day. In this instance, teachers are
required to be at school for 7 1/4 hours per day. However, not
all of this time is spent in instructing students.
portion of the workday has been utilized for instructional
preparation and it is undisputed that the District requires and
the job mandates that teachers spend some time in that
activity . 14
a component of the teachers' employment obligation in the same
sense as are classroom instruction and other mandated duties
such as parent-teacher conferences, giving examinations, or
grading students. While it may be conceded for purposes of
this case, the matter not being in issue, that the District's
requirement that teachers "prepare" for instruction is a matter
of managerial prerogative not subject to negotiations, to the
the	
definition 	of 	preparation	
time	
is
	not	
clearly
demonstrated in the record before the Board, it apparently
includes planning for and preparation of the subject matter to
be covered in class, arranging for the availability and
distribution of teaching aids and materials, and review of
student records; in brief, a combination of professional and
ministerial activities designed to expedite the presentation of
educational subject matter.

extent
	that
	requirement
	relates
	to
	the
	teachers'
	hours 	of
employment,
	the 	matter
	is
	subject 	to
	bilateral
	determination.
extent that requirement relates to the teachers' hours of
Here,
	the 	length
	of 	the
	teachers'
	instructional
	day
	was
unilaterally
	altered
	by
	the
	District.
	The
	effect
	of
	that
alteration
	was
	to
	reduce
	the
	amount
	of
	time
	available 	for
required 	preparation.
	Indeed,
	the
	District
	acknowledged
	that
preparation 	duties
	would
	have
	to
	be
	fulfilled
	not 	only
	during
duty-free
	or
	personal-use
	hours 	enjoyed
	by
	the
	teachers,
	but
even
	during 	hours
	outside 	the
	teachers' 	regular	
7	
1/4-hour
workday.
	Such 	a
	requirement
	constitutes
	an
	extension 	of 	the
employees'
	7
	1/4
	hour 	workday.
Here, the length of the teachers' instructional day was
It
	is
	for 	the
	same
	reason
	that
	the
	District
	cannot
	claim
that
	changing
	the 	length 	of 	the
	instructional
	day 	and
	the
resulting
	modification 	of 	preparation
	time 	merely
	constitute
	a
reshuffling
	of
	work
	assignments
	within
	a
	fixed
	workday 	and
	is
a
	pure 	work-scheduling
	prerogative.
	Had
	the
	District's
	actions
not
	impinged
	on
	the
	employees'
	personal 	time,
	both
	during
	and
outside
	the
	working 	day,
	that
	argument 	might
	be
	given
	greater
consideration 	here.	
But	
such
	is
	not 	the 	case.	
Indeed,	
the
ultimate	
effect	
of
	the	
District's
	action	
here 	could 	impinge	
not
only	
on	
the	
teachers
1
	interest
	in	
hours
	of
	employment
	but 	on
their
	wages	
as 	well.	
It
	is
	a
	necessary 	concomitant
	of
extending 	the
	workday
	that 	the	
relationship
	between
compensation 	and 	working 	hours	
is 	altered,	
the	
unit 	of
	pay 	per
unit 	of	
working 	time 	being 	reduced.
It is for the same reason that the District cannot claim
17	17
employment, the matter is subject to bilateral determination.
unilaterally altered by the District. The effect of that
alteration was to reduce the amount of time available for
required preparation. Indeed, the District acknowledged that
preparation duties would have to be fulfilled not only during
duty-free or personal-use hours enjoyed by the teachers, but
even during hours outside the teachers' regular 7 1/4-hour
workday. Such a requirement constitutes an extension of the
employees' 7 1/4 hour workday.
that changing the length of the instructional day and the
resulting modification of preparation time merely constitute a
reshuffling of work assignments within a fixed workday and is
a pure work-scheduling prerogative. Had the District's actions
not impinged on the employees' personal time, both during and
outside the working day, that argument might be given greater
consideration here. But such is not the case. Indeed, the
ultimate effect of the District's action here could impinge not
only on the teachers' interest in hours of employment but on
their wages as well. It is a necessary concomitant of
extending the workday that the relationship between
compensation and working hours is altered, the unit of pay per
unit of working time being reduced.

In Palos Verdes/Pleasant Valley, supra, the Board found
that
	the
	length
	of 	the
	teachers
	workday
	was
	negotiable
	and
	that
the
	District's
	obligation
	to 	negotiate
	on
	this
	subject
	did
	not
interfere
	with
	its
	freedom
	to 	exercise
	essential
	managerial
prerogatives.
	The
	District
	retained
	the
	freedom
	to
	decide
where
	and
	for
	how
	long
	students
	would
	be
	required
	to
	attend
class.
	The
	Board 	acknowledged
	that
	the
	District's
determination 	of 	student
	obligations
	and
	the
	teachers'
interests
	in 	the 	length
	of
	their 	instructional
	day
	could
	lead
to
	conflict.
	It
	was
	the 	Board's
	view
	that
	such
	conflicts
	are
best
	accommodated
	through 	the
	collective
	negotiation 	process.
The 	same
	principle 	applies
	here.
	While
	the
	District
	may
	extend
student
	instructional
	time,
	it
	may
	not,
	at
	the
	same
	time,
unilaterally
	modify
	the
	teachers'
	working 	time
	or 	refuse 	to
negotiate
	proposed 	changes
	in
	the
	teachers'
	working
	time.
In
Implicit 	in 	the
	District's
	proposal
	that 	preparation 	for
classroom
	instruction
	be
	performed 	during
	duty-free
	time
	or
after
	the
	close 	of 	the
	workday
	is
	the 	theory
	that 	preparation
is
	a
	personal 	obligation 	of
	a
	professional 	occupation. 	The	The
record 	here
	plainly 	indicates 	that 	preparation 	for
	instruction
is
	a
	requirement
	imposed 	on
	the 	teachers
	by
	the
	District. 	Such
preparation
	is,
	therefore,
	a
	condition 	of
	employment, 	an
	aspect
of the teachers' obligatory job duties. Because it is a
"professional" 	responsibility 	hardly 	distinguishes 	preparation
from 	any
	other 	aspect 	of 	the 	teaching 	job, 	which, 	excepting
Implicit in the District's proposal that preparation for
18	18
Palos 	Verdes/Pleasant Valley,	
~-~~~,	
the
	Board
	found
that the length of the teachers workday was negotiable and that
the District's obligation to negotiate on this subject did not
interfere with its freedom to exercise essential managerial
prerogatives. The District retained the freedom to decide
where and for how long students would be required to attend
class. The Board acknowledged that the District's
determination of student obligations and the teachers'
interests in the length of their instructional day could lead
to conflict. It was the Board's view that such conflicts are
best accommodated through the collective negotiation process.
The same principle applies here. While the District may extend
student instructional time, it may not, at the same time,
unilaterally modify the teachers' working time or refuse to
negotiate proposed changes in the teachers' working time.
classroom instruction be performed during duty-free time or
after the close of the workday is the theory that preparation
is a personal obligation of a professional occupation.
record here plainly indicates that preparation for instruction
is a requirement imposed on the teachers by the District. 	Such
preparation is, therefore, a condition of employment, an aspect
of 	the 	teachers
1
	obligatory 	job
	duties.
	Because
	it
	is
	a
"professional" responsibility hardly distinguishes preparation
from any other aspect of the teaching job, which, excepting

some
peripheral
and
minor "paperwork"
duties,
is
in
its
totality
a
professional
occupation.
To
segregate required
components
of the
total
teaching
obligation into negotiable
and
non-negotiable
categories
is
to create
an
artificial
distinction.
To
the
extent
that
preparation
time
is
a
condition
of
employment
which
relates
to
hours
of
employment,
it
is
properly
a
subject
of
negotiations.
some peripheral and minor "paperwork" duties, is in its
In
summary,
to
the
extent
that
a
change
in the
length of
the
teachers'
instructional
day
affects
the length of the
working
day
or
existing duty-free
time, the
subject
is
negotiable. Similarly,
at least
to the
extent
that
changes
in
available preparation
time
affect
the length of the
employees'
workday
or
duty-free
time,
that
subject
is
negotiable.
In summary, to the extent that a change in the length of
Waiver
Waiver
As an
alternative
defense
to
the charge
alleging
a
refusal
to
meet
and
negotiate
on
the
instructional
day,
the
District
argues
that
the 1976-1977
contract constituted
a
waiver
by.
SMETA
of
its
right
to negotiate
any
items for the
remainder
of
the school year.
The
evidence
amply
proves otherwise.
As an alternative defense to the charge alleging a refusal
Section
"C"
of the agreement ates that SMETA Section "C" of the agreements ind
lS ic
indicates that
SMETA
waived
the
right to further negotiation of
terms
within the waived the right to further negotiation of terms within the
15
15Limitations
on
Further Negotiations for
1976-77 Limitations on Further Negotiations for 1976-77
It is the desire
and
intention of the
partiesnot to require further negotiations effecting1976-77 contract year either for
a
It is the desire and intention of the parties
19 19
totality a professional occupation. To segregate required
components of the total teaching obligation into negotiable and
non--negotiable categories is to create an artificial
distinction. To the extent that preparation time is a
condition of employment which relates to hours of employment,
it is properly a subject of negotiations.
the teachers' instructional day affects the length of the
working day or existing duty-free time, the subject is
negotiable. Similarly, at least to the extent that changes in
available preparation time affect the length of the employees'
workday or duty-free time, that subject is negotiable.
to meet and negotiate on the instructional day, the District
argues that the 1976-1977 contract constituted a waiver by
SMETA of its right to negotiate any items for the remainder of
the school year. The evidence amply proves otherwise.
not to require further negotiations effecting
1976-77 contract year either for a

scope 	of 	representation 	except 	when 	the 	District 	changes 	policy
for 	reasons 	other 	than 	an 	emergency. 	The 	agreement 	also 	states
that 	the 	"zipper" 	clause 	in 	Section 	"D-8" 16	xp 	was 	expressly 	not
intended 	to 	negate 	Section 	"C". 	At 	the 	hearing, 	the 	parties
stipulated 	that 	the 	District 	was 	not 	impelled 	by 	an 	emergency
to 	change 	the 	length 	of 	the 	instructional 	day. 	Testimony 	also
indicated 	that 	during 	mediation, 	the 	subject 	of 	hours 	was
specifically 	left 	unaddressed 	pending 	resolution 	of 	this 	charge
essly not
scope of representation except when the District changes policy
comprehensive 	contract 	covering 	all 	issues
within 	scope 	of 	negotiations 	or 	regarding
singular 	issues 	within 	scope. 	SMETA
expressly 	waives 	the 	right 	to 	further
negotiations 	effecting 	1976-77 	contract
year, 	except 	in 	cases 	where 	the 	District 	has
initiated 	change 	(or 	proposal 	for 	change 	to
take 	effect 	during 	1976-77), 	other 	than 	in
cases 	of 	actual 	emergency 	regarding 	matters
which 	are 	properly 	within 	the 	scope 	of
negotiations.
comprehensive contract covering all issues
16	1 	Completion of Meet and Negotiation	6completion
During 	the 	term 	of 	this 	Agreement, 	the
Association 	expressly 	waives 	and
relinquishes 	the 	right 	to meet 	and 	negotiate
and 	agrees 	that 	the 	District 	shall 	not 	be
obligated 	to meet 	and 	negotiate 	with 	respect
to 	any 	subject 	or 	matter 	whether 	or 	not
referred 	to 	or 	covered 	in 	this 	Agreement,
even 	though 	such 	subject 	or 	matter 	may 	not
have 	been 	within 	the 	knowledge 	or
contemplation 	of 	either 	or 	both 	the 	District
or 	the 	Association 	at 	the 	time 	they 	met 	and
negotiated 	on 	and 	executed 	this 	Agreement,
and 	even 	though 	such 	subjects 	or 	matters
were 	proposed 	and 	later 	withdrawn. 	(For	(For
1976-77 	this 	article 	shall 	not 	negate
item C.)
During the term of this Agreement, the
20	20
for reasons other than an emergency. The agreement also states
that the "zipper" clause in Section "D-8"16 was e 	r
within scope of negotiations or regarding
singular issues within scope. SMETA
expressly waives the right to further
negotiations effecting 1976-77 contract
year, except in cases where the District has
initiated change (or proposal for change to
take effect during 1976-77) , other than in
cases of actual emergency regarding matters
which are properly within the scope of
negotiations.
of 	Meet 	and 	Negotiation
Association expressly waives and
relinquishes the right to meet and negotiate
and agrees that the District shall not be
obligated to meet and negotiate with respect
to any subject or matter whether or not
referred to or covered in this Agreement,
even though such subject or matter may not
have been within the knowledge or
contemplation of either or both the District
or the Association at the time they met and
negotiated on and executed this Agreement,
and even though such subjects or matters
were proposed and later withdrawn.
1976-77 this article shall not negate
item C. )
intended to negate Section "C". At the hearing, the parties
stipulated that the District was not impelled by an emergency
to change the length of the instructional day. Testimony also
indicated that during mediation, the subject of hours was
specifically left unaddressed pending resolution of this charge

and
	that
	Section
	"C" 	was
	included
	in
	the
	contract
	to
	allow
SMETA
	to
	pursue
	the 	charge.
	Not
	only 	did 	the
	parties
	engage
	in
mediation
	with
	the 	understanding
	that
	the
	unfair
	practice
dispute
	would	
be	
resolved
	by
	the
	PERB,
	but 	the
	contract
	itself
accommodates
	SMETA's
	pursuit
	of
	such
	resolution.
and that Section "C" was included in the contract to allow
Absent
	clear
	and
	unequivocal 	language 	or 	conduct
	to
	the
contrary,
	PERB
	will
	not
	readily 	infer 	that
	a
	party
	has
	waived
	a
statutory
	right.
Absent clear and unequivocal language or conduct to the
17	
Far
	from
	explicitly
	relinquishing
	or
implicitly
	abandoning
	its
	request 	to
	negotiate,
	SMETA
	actively
pursued
	its
	right
	through
	the 	only
	means
	available 	to
	it,
	these
unfair 	practice
	proceedings.
implicitly abandoning its request to negotiate, SMETA actively
For
	all
	the 	preceding 	reasons, 	the
	Board
	finds
	that
	the
District
	violated 	section
	3543.S(c)
	of 	the
	EERA
	by
	refusing
during 	the
	1976-1977
	sessions 	to
	meet 	and
	negotiate 	in
	good
faith
	over
	the
	effects
	of
	changes
	in 	the 	length	
of	
the 	student
instructional
	day 	on	
teacher
	instructional	
day	
and	
preparation
time.	
time.
For all the preceding reasons, the Board finds that the
We
	also 	find
	that
	the
	District
	violated 	section
	3544.5(c)
by
	refusing 	during 	the
	1976-1977
	sessions 	to
	meet 	and
	negotiate
with 	respect 	to
	rest	
time,
	and
	that 	the	
District's	
conduct	
in
unilaterally 	increasing	
teacher 	preparation 	time 	in
	January
We also find that the District violated section 3544.5(c)
17	17NLRB	
v. 	Perkins
	Machine 	Co.
	(1st 	Cir.	
1964) 	326
	F.2d
488 [55 LRRM 2204]; Timkin Roller Bearing Co. v. NLRB (6th Cir.
1963) 	325
	F.2d	
746 	[54
	LRRM
	2785];
	Amador
	Valley 	Joint
	Union
High School District (10/2/78) PERB Decision No. 74.
NLRB v. Perkins Machine Co. (1st Cir. 1964) 326 F. 2d
21	21
SMETA to pursue the charge. Not only did the parties engage in
mediation with the understanding that the unfair practice
dispute would be resolved by the PERB, but the contract itself
accommodates SMETA's pursuit of such resolution.
contrary, PERB will not readily infer that a party has waived a
statutory right. 17 Far from explicitly relinquishing or
pursued its right through the only means available to it, these
unfair practice proceedings.
District violated section 3543.5 (c) of the EERA by refusing
during the 1976-1977 sessions to meet and negotiate in good
faith over the effects of changes in the length of the student
instructional day on teacher instructional day and preparation
by refusing during the 1976-1977 sessions to meet and negotiate
with respect to rest time, and that the District's conduct in
unilaterally increasing teacher preparation time in January
488 	[55
	LRRM	
2204]; 	Timkln Roller 	Bearing
Co.
	v.	
~L~~	
(6th	
Cir.
1963) 325 F. 2d 746 [54 LRRM 2785]; Amador Valley Joint Union
~igh 	School
	District 	(10/2/78)	
PERB
	Decision
	No. 	74.

1977
	constituted
	a
	refusal
	to
	meet
	and
	negotiate 	in
	good
	faith
within
	the
	meaning
	of
	that 	section.
1977 constituted a refusal to meet and negotiate in good faith
The
	1977-1978 	Negotiations	The 1977-1978 Negotiations
The
	hearing
	officer
	concluded
	that
	the
	evidence
	was
insufficient
	to
	support
	a
	conclusion
	that
	the
	District
unlawfully 	refused
	to 	negotiate
	with
	respect 	to 	instructional
day
	in
	the 	1977-78 meetings.
	SMETA
	presented
	its 	initial
proposal
	which
	the
	District
	refused 	to
	discuss.
	SMETA
	did
	not
press
	the 	issue
	further.
	It
	is
	clear 	that
	any
	additional
efforts
	by
	SMETA
	to 	reintroduce 	the
	subject 	of
	instructional
time
	into 	negotiations
	would 	have 	been
	rejected
	by
	the
District.
	The
	District
	failed
	even
	to
	respond
	to
	SMETA's
proposal.
	Furthermore,
	the
	District's
	position 	in
	1976-1977
indicated
	no
	likelihood
	of 	eventual 	discussion	
of	
its
	own
volition.
	To
	the
	contrary, 	the
	District
	was
	adamant
	in
	its
determination
	that
	it
	was
	not	
obligated 	to 	negotiate
	any	
aspect
of 	the
	instructional
	day
	with
	SMETA.
	To
	require
	SMETA
	to
engage
	in
	an
	additional 	series
	of 	requests 	for 	negotiation 	in
these 	circumstances	
would 	be
	to 	require
	SMETA
	to
	engage
	in
	a
predictably	
futile 	act.
The hearing officer concluded that the evidence was
Accordingly,
	we	
find 	that 	the	
District's	
1977-1978
	refusal
to 	discuss 	teacher	
instructional	
day
	with	
SMETA
	constitutes
	a
refusal to negotiate violative of EERA section 3543.5 (c) .
Accordingly, we find that the District's 1977-1978 refusal
The
	hearing	
officer	
concluded 	that 	the	
District	
had
unlawfully 	refused 	to 	negotiate 	with
	SMETA
	about 	teacher
The hearing officer concluded that the District had
22	22
within the meaning of that section.
insufficient to support a conclusion that the District
unlawfully refused to negotiate with respect to instructional
day in the 1977-78 meetings. SMETA presented its initial
proposal which the District refused to discuss. SMETA did not
press the issue further. It is clear that any additional
efforts by SMETA to reintroduce the subject of instructional
time into negotiations would have been rejected by the
District. The District failed even to respond to SMETA's
proposal. Furthermore, the District's position in 1976-1977
indicated no likelihood of eventual discussion of its own
volition. To the contrary, the District was adamant in its
determination that it was not obligated to negotiate any aspect
of the instructional day with SMETA. To require SMETA to
engage in an additional series of requests for negotiation in
these circumstances would be to require SMETA to engage in a
predictably futile act.
to discuss teacher instructional day with SMETA constitutes a
refusal 	to 	negotiate 	violative 	of
	EERA	
section 	3543.S(c).
unlawfully refused to negotiate with SMETA about teacher

preparation
	time
	during
	the
	1977-1978
	sessions.
	The
	District
contends
	that 	this
	finding
	was
	premature 	because
	the
	parties
were
	still
	engaged
	in 	negotiations
	at
	the
	time
	of
	the 	hearing.
preparation time during the 1977-1978 sessions. The District
According
	to
	the
	District,
	it
	submitted
	a
	purported
counterproposal
	on
	preparation
	time
	during
	the
	1977-1978
sessions.
	The
	District's
	"proposal"
	was
	that
	unassigned
	time
during 	the
	workday 	would
	constitute
	preparation
	time.
	The
hearing
	officer 	correctly
	found
	that
	this
	"proposal"
	was
	really
no
	counterproposal
	at
	all.	
It	
merely 	reduced
	to 	writing 	the
District's
	original
	stance
	that
	it
	was
	under
	no
	obligation 	to
negotiate
	about
	designating
	time
	for
	preparation.
	The
District's
	so-called
	counterproposal 	lacks 	the 	essence
	of 	the
effort	
to	
reach
	agreement
	implicit
	in 	the
	definition
	of
	good
faith
	negotiation.
	Accordingly,
	we
	find
	that
	the
	District
unlawfully 	refused
	to 	negotiate
	about
	teacher 	preparation
	time
during 	the
	1977-1978
	sessions.
According to the District, it submitted a purported
18
Finally,
	SMETA
	contends
	that
	the
	District
	refused
	to
negotiate 	rest
	time 	during 	the
	1977-1978
	sessions. 	The	The
District
	did, 	in
	fact,
	present
	at 	least
	one
	substantive
proposal	
on
	this
	matter.	
The	
record	
discloses
	no
	evidence
Finally, SMETA contends that the District refused to
18	
18See NLRB v. Montgomery Ward (9th Cir. 1943) 133 F. 2d 676
[12 LRRM 508] ; NLRB v. Boss Mig. Co. (7th Cir. 1941) 118 F. 2d 187
8 LRRM 729], cert. denied (1941) 313 U.S. 595; Inter Polymer
Industries, Inc. (1972) 196 NLRB 729, [80 LRRM 1509] ;
San Isabel Electric Services, Inc. (1976) 225 NLRB 1073
[93 LRRM 1055] .
see
23	23
contends that this finding was premature because the parties
were still engaged in negotiations at the time of the hearing.
counterproposal on preparation time during the 1977-1978
sessions. 	The District's "proposal" was that unassigned time
during the workday would constitute preparation time. The
hearing officer correctly found that this "proposal" was really
no counterproposal at all. It merely reduced to writing the
District's original stance that it was under no obligation to
negotiate about designating time for preparation. The
District's so-called counterproposal lacks the essence of the
effort to reach agreement implicit in the definition of good
faith negotiation. 	Accordingly, we find that the District
unlawfully refused to negotiate about teacher preparation time
during the 1977-1978 sessions. 18
negotiate rest time during the 1977-1978 sessions.
District did, in fact, present at least one substantive
proposal on this matter. 	The record discloses no evidence
NLRB
	v. 	Montgomeryj!~rd
	(9th
	Cir.
	1943) 	133
	F.2d
	676
[12
	LRRM
	508];
	NLRB
	v. 	Boss	
M:fg.	
Co.
	(7th
	Cir.
	1941) 	118
	F.2d
	187
[8
	LRRM
	729],
	cert.
	denied
	(1941) 	313
	U.S. 	595;
	Inter 	Poly 	er
Industries,
	Inc. 	(1972) 	196	
NLRB
	729,
	[80
	LRRM 	1'5"0"9T;
·san	
Isabel 	Electric
	Ser
vices, 	Inc.
	( 197
6) 	225	
NLRB	
107 3
[93
	LRRM
	1055].

that the District subsequently resumed the 1976-1977 posture
that it was not obligated to negotiate about rest time.
Accordingly, we dismiss the allegation that the District
refused to negotiate rest time during the 1977-1978 sessions.
that the District subsequently resumed the 1976-1977 posture
REMEDY REMEDY
As a remedy for the violations, As a remedy for the violations, 19 the oard orders that 19B the Board orders that
the District return to the status quo ante by reinstating the the District return to the status quo ante by reinstating the
19 19The Board's remedial authority is found in sec. 3541.3: The Board's remedial authority is found in sec. 3541.3:
The Board shall have all of the following
powers and duties:
The Board shall have all of the following
. . . . . . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . .
(i) To investigate unfair practice charges
or alleged violations of this chapter, and
take such action and make such determi-
nations in respect of such charges or
alleged violations as the board deems
necessary to effectuate the policies of this
chapter.
(lJ
. . . . . . . . . . .
(n) To take such other action as the board
deems necessary to discharge its powers and
duties and otherwise to effectuate the
purposes of this chapter.
(n)
and in sec. 3541.5: and in sec. 3541.5:
The initial determination as to whether the
charges of unfair practices are justified,
and, if so, what remedy is necessary to
effectuate the purposes of this chapter,
shall be a matter within the exclusive
jurisdiction of the Board .
The initial determination as to whether the
. . . . . . . . . . . . . .. .. . ...; . . . . . . . . . . . ...
(c) The Board shall have the power to issue
a decision and order directing an offending
party to cease and desist from the unfair
practice and to take such affirmative
action, including but not limited to the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
(c)
24 24
that it was not obligated to negotiate about rest time.
Accordingly, we dismiss the allegation that the District
refused to negotiate rest time during the 1977-1978 sessions.
powers and duties:
To investigate unfair practice charges
or alleged violations of this chapter, and
take such action and make such determin
nations in respect of such charges or
alleged violations as the board deems
necessary to effectuate the policies of this
chapter.
To take such other action as the board
deems necessary to discharge its powers and
duties and otherwise to effectuate the
purposes of this chapter.
charges of unfair practices are justified,
and, if so, what remedy is necessary to
effectuate the purposes of this chapter,
shall be a matter within the exclusive
jurisdiction of the Board ...•
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.

schedule 	with
	respect 	to 	preparation
	time
	and
	duty-free
	time
that
	was
	in
	effect
	prior
	to
	January
	1,
	1977. 	In
	recognition
	of
the
	fact 	that
	a
	substantial
	period 	of
	time 	has
	elapsed
	since
the
	appeal
	of 	the 	hearing
	officer's
	decision 	in
	this
	case,
	we
acknowledge
	the
	possibility
	that
	the
	parties
	may
	have
	agreed
	to
some
	other
	schedule
	which
	is
	mutually
	satisfactory.
	However,
we
	know
	of	
no 	such 	accommodation.
	To
	maximize
	the
	flexibility
of 	the 	Board's
	order,
	we
	expressly 	leave 	with
	the
	SMETA
	the
right
	to
	waive
	the 	requirement
	that
	the
	District 	reinstate
	the
schedule.
schedule with respect to preparation time and duty-free time
The
	Board
	further 	orders
	that
	the
	parties
	return 	to 	the
bargaining
	table,
	should
	SMETA
	so
	request, 	to 	negotiate
	with
respect
	to 	teacher
	instructional
	time,
	preparation
	time
	and
rest
	periods.
The Board further orders that the parties return to the
The
	District 	shall 	also
	be
	required 	to 	sign
	and
	post 	the
Notice
	to	
Employees	
attached 	as
	Appendix
	to
	this
	Decision
	and
Order.
The District shall also be required to sign and post the
To
	effectuate
	the
	policies
	and
	purposes 	of 	the
	EERA
	the
employees
	affected	
by 	the
	District's
	unlawful 	conduct 	should
	be
notified of the Board's order and of the District's readiness
to	
comply.	
Posting 	the 	attached 	Notice
	to	
Employees	
will
satisfy 	this
	purpose.	satisfy this purpose. 20
To effectuate the policies and purposes of the EERA the
20.
20	2 A
	similar	
requirement 	has 	been 	upheld 	by
	the 	United
States	
Supreme	
Court
	interpreting 	section 	l0(c) 	of 	the
	Labor
Management
	Relations 	Act, 	as	
amended, 	which	
is 	nearly 	identical
0A similar requirement has been upheld by the United
25	25
that was in effect prior to January 1, 1977. In recognition of
the fact that a substantial period of time has elapsed since
the appeal of the hearing officer's decision in this case, we
acknowledge the possibility that the parties may have agreed to
some other schedule which is mutually satisfactory. However,
we know of no such accommodation. To maximize the flexibility
of the Board's order, we expressly leave with the SMETA the
right to waive the requirement that the District reinstate the
schedule.
bargaining table, should SMETA so request, to negotiate with
respect to teacher instructional time, preparation time and
rest periods.
Notice to Employees attached as Appendix to this Decision and
Order.
employees affected by the District's unlawful conduct should be
notified 	of
	the	
Board
1 s	
order
	and
	of
	the	
District's
	readiness
to comply. Posting the attached Notice to Employees will
.
States Supreme Court interpreting section 10(c) of the Labor
Management Relations Act, as amended, which is nearly identical

ORDER
Upon
	the 	foregoing
	facts,
	conclusions 	of
	law,
	and
	entire
record in this case, and pursuant to Government Code 3541.5 (c) ,
it
	is
	hereby
	ORDERED
	that
	the
	San Mateo
	City
	School
	District
and
	its
	representatives
	shall:
Upon the foregoing facts, conclusions of law, and entire
ORDER
A.	A.	
CEASE
	AND
	DESIST
	FROM:	CEASE AND DESIST FROM:
(a)	
Failing
	and
	refusing 	to
	meet
	and
	negotiate 	in
	good
faith
	with
	the
	San Mateo
	Elementary
	Teachers'
Association
	with
	respect 	to
	teacher
	preparation
and
	rest
	time
	and
	teacher
	instructional
	day.
ailing and refusing to meet and negotiate in good	
(a) F
(b)	(b)	
Unilaterally
	changing
	the
	hours
	of
	employment,
including 	length 	of 	the
	day,
	rest
	time,
preparation
	time, 	or 	other 	conditions 	of
employment
	without
	negotiating
	with
	the
	San 	Mateo
Elementary
	Teachers' 	Association.
Unilaterally changing the hours of employment,
B.	
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE 	EDUCATIONAL
	EMPLOYMENT
RELATIONS 	ACT:
TAKE
(1)	
(1) R
Reinstate 	the 	schedules 	with
	respect 	to
preparation
	time	
and	
rest
	periods
	that
	were
	in
effect	
prior 	to
	January	
1,
	1977,
	if
	the
einstate the schedules with respect to
to 	section
	3541.5 (c)
	in
	NLRB
	v.	
Ex
	ress 	Publishin
	Co. 	(1941)
312 U. S. 426 [8 LRRM 415] . New York's highest court has upheld
a
	posting 	requirement 	ordered
	by	
the	
New York
	Public	
Employment
Relations Board against a public agency. (City of Albany v.
Helsby (1972) 327 N. Y. S. 2d 658 [79 LRRM 24571].	(1972)
to section 3541.5 (c) in NLRB v. Express Publishing Co. (1941)
26	26
including length of the day, rest time,
preparation time, or other conditions of
employment without negotiating with the San Mateo
Elementary Teachers' Association.
'rHE FOLLOWING 	AFFIRMA'rIVE
	ACTIONS 	DESIGNED
	TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
312
	U.S.
	426 	[8
	LRRM	
415T:"--New Yor 	s 	19
	est
	court-has 	upheld
a posting requirement ordered by the New York Public Employment
Relations
	Board
	against
	a	
public 	agency. 	(City 	of 	Albany 	v.Helsb~ 	327 	N.Y.S.2d 	658 	[79
	LRRM
	24571].
record
	in
	this
	case,
	and
	pursuant
	to
	Government
	Code
	3541.S(c),
it is hereby ORDERED that the San Mateo City School District
and its representatives shall:
faith with the San Mateo Elementary Teachers'
Association with respect to teacher preparation
and rest time and teacher instructional day.
preparation time and rest periods that were in
effect prior to January 1, 1977, if the

Association
	so
	requests.	Association so requests.
(2)	(2) U
(3)	(3)	
Post 	copies
	of 	the 	attached 	notice
	marked
"Appendix"
	in
	conspicuous
	places
	where
	notices 	to
employees
	are 	customarily
	placed
	at
	its
headquarters'
	office
	and
	at
	each
	of
	its
	school
sites
	for
	20
	consecutive
	workdays. 	Copies
	of
	this
notice,
	after
	being 	duly 	signed
	by
	the
superintendent 	of 	the
	District, 	shall
	be
	posted
immediately
	after 	receipt 	thereof.
	Reasonable
steps
	should
	be
	taken 	to 	insure
	that
	said 	notices
are
	not
	altered,
	defaced 	or 	covered
	by
	any
	other
material.
Post copies of the attached notice marked
(4)	(4) N
This 	order
	shall
	become
	effective
	immediately
	upon
	service
of
	a
	true
	copy
	thereof
	on
	the
	San 	Mateo
	City 	school
	District.
This order shall become effective immediately upon service
By : Harry Gluck, Chairperson	By:
Member Barbara D. Moore's concurrence begins on page 29.	
Me
27
Upon
	request,
	meet
	and
	negotiate 	in
	good
	faith
with 	the
	San 	Mateo
	Elementary
	Teachers'
Association
	with
	respect 	to 	preparation
	time
	and
the
	length
	of
	teachers'
	instructional
	day.
pon request, meet and negotiate in good faith
Notify 	the
	San
	Francisco 	regional
	director
	of 	the
Public
	Employment
	Relations
	Board
	in 	writing
within
	20
	days
	from
	the
	receipt
	of
	this
	decision,
of
	what
	steps 	the
	District
	has 	taken
	to
	comply
herewith.
otify the San Francisco regional director of the
A
	/)
27
"Appendix" in conspicuous places where notices to
employees are customarily placed at its
headquarters' office and at each of its school
sites for 20 consecutive workdays. Copies of this
notice, after being duly signed by the
superintendent of the District, shall be posted
immediately after receipt thereof. Reasonable
steps should be taken to insure that said notices
are not altered, defaced or covered by any other
material.
of a true copy thereof on the San Mateo City school District.
Harry 	Gluck, 	Chair 	rson
er 	Barbara 	D. 	Moore's 	concurrence 	begins 	on 	page 	29.
with the San Mateo Elementary Teachers'
Association with respect to preparation time and
the length of teachers' instructional day.
Public Employment Relations Board in writing
within 20 days from the receipt of this decision,
of what steps the District has taken to comply
herewith.

APPENDIX	
APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of
	California	An Agency of the State of California
After
	a
	hearing 	in 	unfair
	practice
	case
	No.
	SF-CE-36,
	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	has 	been
found
	that
	the
	San Mateo
	City
	School
	District
	violated 	the
Educational
	Employment
	Relations
	Act 	by
	failing
	and
	refusing
	to
meet
	and
	negotiate
	with 	the
	San Mateo
	Elementary
	Teachers'
Association
	with
	respect 	to 	preparation
	time
	and
	effects
	of
changes
	in
	the 	length 	of 	the
	instructional
	day.
	As 	a
	result
	of
this
	conduct,
	we	
have 	been
	ordered
	to 	post
	this
	notice
	and
	we
will
	abide
	by
	the 	following:
After a hearing in unfair practice case No. SF-CE-36, in
WE
WILL
	NOT
	fail
	or
	refuse,
	upon
	request, 	to
	meet	
and
negotiate
	with 	the
	San Mateo
	Elementary 	Teachers' 	Association
with 	respect 	to 	teacher 	preparation
	and
	rest
	time
	and
	teacher
instructional
	day.
WE WILL NOT fail or refuse, upon request, to meet and
WE
	WILL
	NOT CHANGE
	the 	wages, 	hours
	of
	employment,
	or 	other
terms 	and	
conditions 	of
	employment
	without	
negotiating 	with 	the
San 	Mateo 	Elementary Teachers'	
Association.
WE WILL NOT CHANGE the wages, hours of employment, or other
San Mateo
	City	
School	
District	San Mateo City School District
By :	By:
Dated:	Dated:
28	28
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
which all parties had the right to participate, it has been
found that the San Mateo City School District violated the
Educational Employment Relations Act by failing and refusing to
meet and negotiate with the San Mateo Elementary Teachers'
Association with respect to preparation time and effects of
changes in the length of the instructional day. As a result of
this conduct, we have been ordered to post this notice and we
will abide by the following:
negotiate with the San Mateo Elementary Teachers' Association
with respect to teacher preparation and rest time and teacher
instructional day.
terms and conditions of employment without negotiating with the
San Mateo Elementary Teachers' Association.

Member
	Moore,
	concurring:	Member Moore, concurring:
While
	I
	agree 	with 	the
	result
	reached
	by
	Chairperson
	Gluck,
I
	disagree
	with
	certain
	aspects 	of
	his
	discussion
	concerning
the
	interpretation
	of
	the
	scope
	of
	representation
	language
	set
forth
	in
	section
	3543.2
	of 	the 	Educational
	Employment
	Relations
Act
	(hereafter
	EERA
or
	Act).
While I agree with the result reached by Chairperson Gluck,
Because
	many
	provisions 	of
	EERA
	are 	patterned
	on
	the
National
	Labor
	Relations
	Act
	(hereafter
	NLRA), 	I 	do
	not
	view
	it
as
	inconsequential
	or
	serendipitous
	that
	the
	Legislature
drafted
	the
	critical
	language 	governing 	the
	scope	
of
representation 	in
	EERA
	in
	a 	manner
	which
	differs
	sharply
	from
that
	found
	in
	the
	NLRA
Because many provisions of EERA are patterned on the
.lil	
While
	this
	departure
	from
	the
	NLRA
is clear, a definitive interpretation of section 3543.2 is less
clear.
is 
In
	an
	effort
	to
	interpret
	section 	3543.2,
	it
	is
	necessary
to 	reconcile
	certain
	phrases
	which
	suggest
	ambiguous
	if
	not
conflicting 	results.
	The
	Legislature's 	specific 	definition
	of
In an effort to interpret section 3543.2, it is necessary
ls	
lsection
	8(d)
	of
	the
	NLRA
	provides 	in 	pertinent 	part:	ection 8 (d) of the NLRA provides in pertinent part:
For 	purposes
	of	
this 	section, 	to 	bargain
collectively 	is
	the 	performance
	of
	the
mutual	
obligation 	of
	the
	employer 	and
	the
representative 	of
	the 	employees	
to
	meet
	at
reasonable 	times	
and	
confer 	in
	good	
faith
with	
respect 	to
	wages,
	hours,
	and	
other
terms and conditions of employment.
For purposes of this section, to bargain
Section 	3543.2 	governs 	the 	scope
	of 	representation
	under
EERA and is set out in full at page 7, supra.
Section 3543.2 governs the scope of representation under
29	29
I disagree with certain aspects of his discussion concerning
the interpretation of the scope of representation language set
forth in section 3543.2 of the Educational Employment Relations
Act (hereafter EERA or Act) .
National Labor Relations Act (hereafter NLRA) , I do not view it
as inconsequential or serendipitous that the Legislature
drafted the critical language governing the scope of
representation in EERA in a manner which differs sharply from
that found in the NLRA. I Wh e this departure from the NLRA
clear,
	a
	definitive 	interpretation
	of
	section
	3543c2
	is
	less
clear.
to reconcile certain phrases which suggest ambiguous if not
conflicting results. The Legislature's specific definition of
collectively is the performance of the
mutual obligation of the employer and the
representative of the employees to meet at
reasonable times and confer in good faith
with respect to wages, hours, and other
terms	
and	
conditions 	of
	employment .	
...
EERA	
and
	is 	set 	out 	in 	full
	at 	page
	7,
	~upra.

the 	phrase
	"other
	terms
	and
	conditions 	of
	employment" 	and
	the
instruction 	that
	the
	scope
	of
	representation
	be
	"limited
	to"
wages,
	hours
	and
	those
	enumerated
	subjects
	seem
	to
	urge
	a
limited
	view
	of
	scope. 	This
	suggestion,
	however, 	must 	be
considered
	in
	light
	of
	the
	Legislature's 	directive,
	again
unlike 	the
	NLRA,
	that
	"matters
	relating
	to"
	wages,
	hours
	and
the
	enumerated 	terms
	and
	conditions 	of
	employment
	are
	subject
to
	the
	negotiating 	process.
	This 	language 	appears
	to
	urge
	a
broadening
	of
	the
	scope
	of 	representation
	to 	include
	a
	zone
	of
related
	though
	unspecified
	subjects.
the phrase "other terms and conditions of employment" and the
I
	have
	considered 	the 	language
	of
	section
	3543.2
	in
	its
entirety
	and
	have
	reached
	two
	conclusions.
	First,
	I
	agree 	with
the 	Chairperson's 	finding
	that
	the
	Legislature
	did 	not 	intend
to
	exclude
	from
	the
	negotiating 	process
	all
	subjects
	which
	are
bargainable
	terms
	and
	conditions 	of
	employment
	under
	the
	NLRA
but
	which
	are 	not
	listed	
in	
section
	3543.2
	of
	EERA. 	The
	basis
for
	this 	result
	stems
	from
	the
	"relating
	to" 	language
	which
must
	bring
	some
	non-·enumerated
	subjects 	within
	scope 	or
	that
language
	would 	be 	a
	nullity.
	Fundamental
	rules
	of
	statutory
construction 	require 	that
	some 	meaning 	be
	given
	to
	all
statutory
	phrases	
employed.	
(Siler
	v.
	Industrial
	Accident
Commission (1957) 150 C.A. 2d 157 [309 P. 2d 910] .) I also
conclude, however, that the Legislature's adoption of EERA's
unique
	statutory	
language	
reveals
	its
	intent 	to 	grant
	a
narrower 	scope 	of 	representation	
than
	that 	afforded
	by
	the
I have considered the language of section 3543.2 in its
30	30
instruction that the scope of representation be "limited to"
wages, hours and those enumerated subjects seem to urge a
limited view of scope. This suggestion, however, must be
considered in light of the Legislature's directive, again
unlike the NLRA, that "matters relating to" wages, hours and
the enumerated terms and conditions of employment are subject
to the negotiating process. This language appears to urge a
broadening of the scope of representation to include a zone of
related though unspecified subjects.
entirety and have reached two conclusions. First, I agree with
the Chairperson's finding that the Legislature did not intend
to exclude from the negotiating process all subjects which are
bargainable terms and conditions of employment under the NLRA
but which are not listed in section 3543.2 of EERA. The basis
for this result stems from the "relating to" language which
must bring some non-enumerated subjects within scope or that
language would be a nullity. Fundamental rules of statutory
construction require that some meaning be given to all
statutory phrases employed. (Siler v. Industrial Accident
Commission 	(1957) 	150 	C.A.2d 	157 	[309
	P.2d
	910] .} 	I
	also
conclude,
	however,	
that 	the	
Legislature's	
adoption 	of	
EERA 1 s
unique statutory language reveals its intent to grant a
narrower scope of representation than that afforded by the

NLRA. 	The
	"limited
	to" 	language
	plainly
	points 	to
	such
	an
interpretation.
NLRA.
The
	Chairperson 	opines
	that
	the
	specific
	enumeration
	of
terms
	and
	conditions
	was
	designed
	"to
	satisfy
	only
	two
	basic
objectives."	
(Ante,
p.
	10.)
	I
	am
	unable
	to
	concede
	that
	the
Legislature's
	objectives
	are
	necessarily
	as
	clearly 	discernible
or 	as
	limited
	as
	his
	opinion
	suggests.
The Chairperson opines that the specific enumeration of
In
	addition 	to 	specifying
	items
	not
	related
	to
	wages
	and
hours, 	the 	Chairperson
	asserts 	that	
by 	enumerating 	terms
	and
conditions 	the
	Legislature's
	sole
	remaining
	objective
	was
	to
exempt
	from
	scope
	certain
	matters 	of
	fundamental
	educational
policy
	over
	which
	managerial
	control
	was
	essential
	to 	the
achievement	
of	
the 	mission 	of 	the 	school
	district.
	I
	am
	unable
to 	find 	support 	for
	this 	definitive 	interpretation.
	I
	believe
it
	proposes 	too
	narrow
	a
	reading 	of 	the
	Legislature's
	purpose
and 	may
	mistakenly 	suggest
	that
	the
	scope
	of
	representation
under
	EERA
	is
	indistinguishable
	from
	negotiability
	under
	the
NLRA.
In addition to specifying items not related to wages and
Since 	school
	districts
	have
	only 	the
	power 	and
	authority
delegated 	to
	them
Since school districts have only the power and authority
2e and
	because
	numerous
	subjects
	which
	are
bargainable 	in 	the	
private 	sector 	are 	covered	
by	
statute 	in 	the
public 	sector, 	the 	Legislature	
has 	had an
	historical	
role 	in
bargainable in the private sector are covered by statute in the
2
2See Education Code section 35161; Uhlmann v. Alhambra
City High School District (1963) 221 C. A. 2d 228 [34 Cal. Rptr.
341].. 
see
31	31
The "limited to" language plainly points to such an
interpretation.
terms and conditions was designed "to satisfy only two basic
objectives." (Ante, p. 10. ) 	I am unable to concede that the
Legislature's objectives are necessarily as clearly discernible
or as limited as his opinion suggests.
hours, the Chairperson asserts that by enumeratiog terms and
conditions the Legislature's sole remaining objective was to
exempt from scope certain matters of fundamental educational
policy over which managerial control was essential to the
achievement of the mission of the school district. I am unable
to find support for this definitive interpretation. I believe
it proposes too narrow a reading of the Legislature's purpose
and may mistakenly suggest that the scope of representation
under EERA is indistinguishable from negotiability under the
NLRA.
delegated to them and b cause numerous subjects which are
public sector, the Legislature has had an historical role in
Education	
Code	
section
	35161; 	Uhlmann
	v. 	Alhambra
f_l~~gh
	School_District	
(1963) 	221 	C.A.2d 	228 	[34
	Cal. 	Rptr.
341]

establishing
	employment
	policy 	in
	the
	educational 	sphere. 	EERA	
EERA
was
	the
	first
	comprehensive
	collective
	negotiating
	statute
	to
be
	enacted
	by
	the
	Legislature.
	Therefore,
	I
	believe
	that,
	to
some
	extent,
	limitations
	on
	scope
	as 	expressed
	by
	the 	defined
terms
	and
	conditions 	reveal
	a
	legislative
	concern
	that
	some
matters 	within
	its
	domain
	remain
	undelegated
	to
	the
negotiations 	process.
establishing employment policy in the educational sphere.
In
	setting
	forth 	his
	theory, 	the 	Chairperson
	declares,
"There
	is 	at
	the 	core 	of
	the 	managerial
	function
	certain
	policy
matters
	which
	are
	so 	fundamental
	to
	the
	basic
	achievement	
of
the agency's mission . . . that they may be properly excluded
from
	the
	bargaining 	arena."
	(Ante,
	p.
	13.)
	To
	the
	extent
	that
this
	view
	suggests
	that
	enumeration
	exempts
	from
	negotiability
only 	those
	decisions
	which
	in 	the
	private 	sector
	are
denominated 	as	
lying 	"at
	the 	core 	of
	entrepreneurial 	control,"
I
	disagree
	and 	view
	the
	Legislature's 	limiting
	language
	in
	a
broader 	sense.
In setting forth his theory, the Chairperson declares,
3
Secondarily,
	I
	do
	not 	agree 	with
	his
	view
	that
	the
Legislature's
	enumerated
	list
	of
	terms
	and
	conditions 	rests
	on
a
	conclusion
	that
	these 	items
	may
	not 	otherwise
	relate 	to
	wages
Secondarily, I do not agree with his view that the
331 	have	
considered
	and
	addressed
	this
	interpretation 	of
the Chairperson's analysis because of his reliance on his
concurring opinion in Palos Verdes/Pleasant Valley (7/16/79)
PERB Decision No. 96, citing Fibreboard Paper Prods. Corp. v.
NLRB
	(1964) 	379	
U.S.
	203 	[57
	LRRM
	2609],
	and
	because
	it
	is
unclear	
whether 	he	
distinguishes	
managerial	
prerogatives
	from
educational 	policy.
	(Ante, 	pp. 	12-13.)
1 have considered and addressed this interpretation of
32	32
was the first comprehensive collective negotiating statute to
be enacted by the Legislature. Therefore, I believe that, to
some extent, limitations on scope as expressed by the defined
terms and conditions reveal a legislative concern that some
matters within its domain remain undelegated to the
negotiations process.
"There is at the core of the managerial function certain policy
matters which are so fundamental to the basic achievement of
the 	agency's 	mission
	..•
	that
	they
	may
	be
	properly
	excluded
from the bargaining arena." (Ante, p. 13.) To the extent that
this view suggests that enumeration exempts from negotiability
only those decisions which in the private sector are
denominated as lying "at the core of entrepreneurial control,"
I disagree and view the Legislature's limiting language in a
broader sense. 3
Legislature's enumerated list of terms and conditions rests on
a conclusion that these items may not otherwise relate to wages
the 	Chairperson
1 s
	analysis
	because
	of 	his 	reliance
	on
	his
concurring 	opinion 	in 	Palos Verdes/Pleasant Valle~ 	(7/16/79)
PERB
	Decision
	No.
	96,
	citing 	Fibreboard 	Paper
	Pros.
	Corp~ 	v.
NLRB (1964) 379 U.S. 203 [57 LRRM 2609], and because it is
unclear whether he distinguishes managerial prerogatives from
educational policy. (Ante, pp. 12-13.)

or 	hours.
	To
	the
	contrary, 	leave,
	for
	example,
	bears
	a
	logical
and
	reasonable
	relationship
	to
	both
	wages 	and
	hours.
	Time
	off
from
	work
	as 	leave
	necessarily
	relates
	to
	hours
	worked, 	and
compensation
	granted
	or
	withheld 	for
	such
	time
	off 	necessarily
relates
	to
	wages.
	Similarly, 	benefits
	can
	be 	viewed
	as
additional
	compensation
	for
	work 	and
	thus
	related
	to
	wages.
Other 	enumerated
	subjects
	such
	as
	safety,
	for
	example,
	may
	be
viewed
	as
	unrelated
	or
	more
	tangentially 	related
	to
	wages 	and
hours.
or hours. To the contrary, leave, for example, bears a logical
In
	my
	view, 	however,
	many
	of 	the 	items
	specifically
enumerated
	as
	terms
	and
	conditions
	would 	be
	negotiable
	under
the	
"relating
	to" 	language
	of 	the
	scope
	section. 	This	
This
conclusion 	could 	suggest
	that,
	as 	to
	those
	subjects,
	their
enumeration
	is
	superfluous 	since
	it
	does
	not
	broaden
	the
	scope
of	
representation
	because 	they
	would 	be
	negotiable
	based
	on
their 	relationship
	to
	wages 	and
	hours.
	I
	do
	not 	believe,
however,
	that
	the
	enumerated 	terms
	and
	conditions,
	and	
the
matters
	relating 	to
	wages 	and
	hours,are 	or
	were
	intended
	to
	be
mutually 	exclusive
	or
	discrete 	categories
	of 	negotiable
subjects.	
subjects.
	In
	sum,
	the 	enumeration	
of	
terms
	and
	conditions
	has
interpretive 	significance	
but
	it
	does 	not 	only
	identify
specific
	items 	which
	are	
logically	
or
	analytically 	distinct
from 	wages 	or
	hours.
In my view, however, many of the items specifically
In	
my
	opinion, 	the 	enumerated
	list	
of	
terms	
and
	conditions
reflects	
the	
fact 	that	
EERA,
	like	
other 	far-reaching
In my opinion, the enumerated list of terms and conditions
33	33
and reasonable relationship to both wages and hours. Time off
from work as leave necessarily relates to hours worked, and
compensation granted or withheld for such time off necessarily
relates to wages. Similarly, benefits can be viewed as
additional compensation for work and thus related to wages.
Other enumerated subjects such as safety, for example, may be
viewed as unrelated or more tangentially related to wages and
hours.
enumerated as terms and conditions would be negotiable under
the "relating to" language of the scope section.
conclusion could suggest that, as to those subjects, their
enumeration is superfluous since it does not broaden the scope
of representation because they would be negotiable based on
their relationship to wages and hours. I do not believe,
however, that the enumerated terms and conditions, and the
matters relating to wages and hours, are or were intended to be
mutually exclusive or discrete categories of negotiable
In sum, the enumeration of terms and conditions has
interpretive significance but it does not only identify
specific items which are logically or analytically distinct
from wages or hours.
reflects the fact that EERA, like other far-reaching

legislative
	enactments,
	emerged
	as
	a
	product
	of 	exhaustive
lobbying
	by
	groups
	likely
	to
	be
	affected
	by
	the
	statute.
	The
legislative
	process
	is
	undeniably
	one
	of
	compromise
	and,
	in
	my
view,
	the
	language
	of
	section
	3543.2
	exemplifies
	the
Legislature's
	response
	to
	the
	critical
	concerns
	of
	employees,
employee
	organizations,
	employers,
	other
	interested
	parties,
and,
	indeed, 	the
	Legislature's
	own
	concerns.
	By
	defining
	terms
and
	conditions,
	I
	believe
	the
	Legislature
	responded
	to
	these
concerns
	and
	sought
	to
	delineate
	certain
	items
	in 	order
	to
avoid
	any
	possibility
	that
	through 	the
	interpretive
	process 	of
PERB
	subjects
	it
	determined 	should
	be
	negotiable
	would 	be
judged 	as 	being
	outside	
of	
scope.
	Class
	size
	is
	one
	such
item.
	It
	is
	a
	matter	
of 	critical
	importance
	to 	educational
employees
	and
	employers
	as 	well 	as
	to
	the
	Legislature
	because
of	
the 	public 	policy 	issues 	necessarily
	involved. 	Class
	size
has	
been	
afforded
	both
	negotiable
	and
	non-negotiable
	status
when
	left
	to
	the
	interpretive
	process;
legislative enactments, emerged as a product of exhaustive
4 	the
	Legislature
4See Fullerton Union High School District (5/30/78) PERB	
4see
	Fullerton
	Union 	High
	School
	District
	(5/30/78)
	PERB
Decision
	No. 	53
	at
	pages 	8-9
	and
	cases
	cited 	in 	footnotes
	3
and	
4.
	Additionally, 	the 	Legislature	
chose
	to
	specifically
enumerate
	class 	size,
	even 	though	
it
	is
	also
	a
	subject	
which
could
	have 	been 	deemed
	negotiable
	because
	of	
its
	relationshipto
	wages 	and	
hours. 	In Clark
	County 	School
	District
	v. 	LocalGovernment 	Employee-Management
	Relations
	Board 	(1974) 	90 	Nev.
442 	[530
	P.2d 	114,
	88
	LRRM
	2774]
	cited 	in 	Fullerton,	
the
	Nevada
Supreme	
Court 	upheld 	the
	Nevada	
Board's 	finding, 	inter 	alia,
that 	class 	size 	relates 	to	
hours 	because
	class 	density 	affects
hours
	of 	preparation	
and
	post-class 	evaluation
	and
	relates 	to
wages 	because
	it
	affects	
the	
total
	amount	
of	
work
	required 	fora	
fixed	
amount	
of 	compensation.
Decision No. 53 at pages 8-9 and cases cited in footnotes 3
34	34
lobbying by groups likely to be affected by the statute. The
legislative process is undeniably one of compromise and, in my
view, the language of section 3543.2 exemplifies the
Legislature's response to the critical concerns of employees,
employee organizations, employers, other interested parties,
and, indeed, the Legislature's own concerns. By defining terms
and conditions, I believe the Legislature responded to these
concerns and sought to delineate certain items in order to
avoid any possibility that through the interpretive process of
PERB subjects it determined should be negotiable would be
judged as being outside of scope. Class size is one such
item. It is a matter of critical importance to educational
employees and employers as well as to the Legislature because
of the public policy issues necessarily involved. Class size
has been afforded both negotiable and non-negotiable status
when left to the interpretive process; 4 the Legislature
and 4. Additionally, the Legislature chose to specifically
enumerate class size, even though it is also a subject which
could have been deemed negotiable because of its relationship
to wages and hours. In Clark County School District v. Local
Government Employee-Management Relations Board (1974) 90 Nev.
442 [530 P. 2d 114, 88 LRRM 2774] cited in Fullerton, the Nevada
Supreme Court upheld the Nevada Board's finding, inter alia,
that class size relates to hours because class density affects
hours of preparation and post-class evaluation and relates to
wages because it affects the total amount of work required for
a fixed amount of compensation.

determined
	that 	class 	size
	should
	be
	subject
	to 	the
	bilateral
negotiating
	process
	and, 	having 	so
	determined,
	was
	careful 	to
specify
	this
	intent
	by
	enumerating
	it
	as
	a
	term
	and
	condition
of
	employment.
determined that class size should be subject to the bilateral
The
	reason
	for,
	and
	the
	significance 	of,
	the 	exclusion 	of
items
	from
	the
	enumerated
	list
	is
	more
	difficult
	to
	discern.
Several 	explanations,
	however,
	are
	plausible.
	Certain
	items
which
	do
	not 	appear
	among
	the
	enumerated
	list
	may
	have
	been
excluded 	because 	the
	Legislature
	felt
	that 	their 	negotiability
was
	assured
	based
	on 	a
	direct
	and
	compelling
	relationship 	to
wages,
	hours 	or 	the
	enumerated 	terms
	and
	conditions.
	Other
subjects,
	where
	the
	relationship 	is
	not
	manifest,
	may
	not
	have
been 	enumerated 	because 	the
	Legislature
	perceived
	that 	reliance
on
	the
	interpretive
	process
	and 	on
	the
	expertise
	of
	this
	Board
to
	perform
	that
	task
	was
	appropriate.
The reason for, and the significance of, the exclusion of
As
	set
	forth 	in 	the 	foregoing
	discussion,
	I
	am
	unable
	to
adopt 	the
	Chairperson's 	conclusion
	that
	the
	two
	objectives
	he
sets 	forth
	are 	the 	sole 	reasons 	for 	the
	Legislature's
enumeration 	of
	the 	terms
	and
	conditions 	of
	employment. 	The	The
alternative 	considerations
	I 	have 	posed
	are 	also 	plausible
explanations	
for 	the 	enumeration. 	In
	certain 	situations,
	these
explantions 	or
	others
	may
	assist 	this
	Board	
in 	determining
negotiability 	if	
they 	lend 	persuasive 	interpretive 	significance
or
	clarify	
the	
legislative 	intent.	
The
	absence
	of
	a
	particular
item 	from 	among
	the	
list	
of	
enumerated
	subjects,
	however,
	is
As set forth in the foregoing discussion, I am unable to
a
n
35	35
negotiating process and, having so determined, was careful to
specify this intent by enumeratiog it as a term and condition
of employment.
items from the enumerated list is more difficult to discern.
Several explanations, however, are plausible. Certain items
which do not appear among the enumerated list may have been
excluded because the Legislature felt that their negotiability
was assured based on a direct and compelling relationship to
wages, hours or the enumerated terms and conditions. Other
subjects, where the relationship is not manifest, may not have
been enumerated because the Legislature perceived that reliance
on the interpretive process and on the expertise of this Board
to perform that task was appropriate.
adopt the Chairperson's conclusion that the two objectives he
sets forth are the sole reasons for the Legislature's
enumeration of the terms and conditions of employment.
lternative considerations I have posed are also plausible
explanations for the enumeration. 	In certain situations, these
explantions or others may assist this Board in determining
egotiability if they lend persuasive interpretive significance
or clarify the legislative intent. The absence of a particular
item from among the list of enumerated subjects, however, is

inconclusive
	and
	cannot
	be
	determinative 	of
	the
	question 	of
negotiability.
	The
	language
	which
	permits
	negotiations
	as
	to
matters
	"relating
	to"
	wages,
	hours
	and
	terms
	and
	conditions
would 	be
	rendered 	meaningless
	if
	determinative
	significance
were
	attached 	to
	the
	absence
	of
	an
	item
	from
	the
	enumerated
list.
	Thus,
	in
	assessing
	negotiability,
	I 	do
	not 	see
	a
statutory 	basis
	for 	concluding
	that
	a
	specific
	subject
	was
intentionally
	omitted
	because
	the
	Legislature
	intended
	it
	to
	be
non-negotiable. 	Rather,
	I
	agree 	with
	the 	Chairperson
	that
	a
balancing
	test 	is
	to
	be
	used
	to assess
	negotiability,
	and 	I
essentially
	agree 	with 	the
	test
	he
	sets 	forth.
inconclusive and cannot be determinative of the question of
All 	proposals
	must 	be
	logically
	and
	reasonably
	related
	to
wages, 	hours 	or
	one
	of 	the
	enumerated
	terms.
	If 	this
	threshold
test 	is
	met,
	the 	proposal
	must
	then
	be
	analyzed
	in
	terms
	of
	its
degree 	of 	concern
	to 	the
	employees
	and
	the 	employer,
	the
suitability
	of
	the
	negotiating 	process 	as
	a 	means
	of 	resolving
the
	disputei
	and,
	finally,
	whether
	the 	employer's
	obligation 	to
negotiate
	would
	significantly
	abridge
	its
	managerial
prerogatives
	or
	educational
	and
	public 	policy 	considerations.
Because 	"managerial 	prerogatives" 	has 	been
	defined 	in 	the
context 	of 	the
	private 	sector
	employer,
	it
	is
	helpful 	to
specifically
	add
	to
	this
	balancing
	test
	a
	reference 	to 	the
constraints
	on management
	in 	the 	public 	sector.
All proposals must be logically and reasonably related to
As	
in 	the 	case 	of 	the 	private 	sector, 	certain 	operational
decisions 	will
	be 	excluded 	from 	scope 	as 	managerial
As in the case of the private sector, certain operational
36	36
negotiability. The language which permits negotiations as to
matters "relating to" wages, hours and terms and conditions
would be rendered meaningless if determinative significance
were attached to the absence of an item from the enumerated
list. Thus, in assessing negotiability, I do not see a
statutory basis for concluding that a specific subject was
intentionally omitted because the Legislature intended it to be
non-negotiable. Rather, I agree with the Chairperson that a
balancing test is to be used to assess negotiability, and I
essentially agree with the test he sets forth.
wages, hours or one of the enumerated terms. If this threshold
test is met, the proposal must then be analyzed in terms of its
degree of concern to the employees and the employer, the
suitability of the negotiating process as a means of resolving
the dispute, and, finally, whether the employer's obligation to
negotiate would significantly abridge its managerial
prerogatives or educational and public policy considerations.
Because "managerial prerogatives" has been defined in the
context of the private sector employer, it is helpful to
specifically add to this balancing test a reference to the
constraints on management in the public sector.
decisions will be excluded from scope as managerial

An item otherwise related to legitimate employee concerns
prerogatives. Other decisions, however, which may be unique to
the public sector may involve serious and substantial public
policy issues which the public school employer must consider.
may be ill suited to the negotiating process because it is
inextricably related to educational policy or bound to
substantial considerations affecting the public. However, as
the instant case demonstrates, consideration of these factors
does not mean that the mere presence of educational or public
policy 	considerations
	per 	se 	excludes
	a
	subject
	from
	scope. 	I I
agree with the Chairperson's discussion that such a view might
eliminate virtually all subjects from negotiations. Likewise,
the non-negotiability of educational policy matters does not
mean that the impact of such matters on wages, hours and terms
and conditions of employment are not negotiable. (San Mateo
County Community College District (6/8/79) PERB Decision No.
94.) However, because some legitimate educational or public
policy concerns may not be easily characterized as lying at the
"core of entrepreneurial control" or as "essential to the
agency's mission, " I believe that these factors must be
specifically noted and included in the equation when PERB
balances competing interests in negotiability disputes.
prerogatives.
	Other
	decisions,
	however,
	which
	may 	be
	unique
	to
the 	public 	sector
	may
	involve
	serious
	and
	substantial
	public
policy
	issues
	which
	the
	public
	school
	employer 	must
	consider.
An
	item
	otherwise
	related 	to 	legitimate
	employee
	concerns
may
	be
	ill
	suited
	to 	the
	negotiating
	process
	because
	it
	is
inextricably 	related
	to 	educational 	policy
	or
	bound
	to
substantial
	considerations 	affecting
	the
	public.
	However,
	as
the
	instant
	case 	demonstrates,
	consideration
	of 	these
	factors
does
	not
	mean
	that
	the
	mere
	presence	
of	
educational
	or
	public
policy considerations per se excludes a subject from scope.
agree
	with
	the 	Chairperson's 	discussion
	that
	such
	a
	view
	might
eliminate
	virtually
	all
	subjects
	from
	negotiations.
	Likewise,
the
	non-negotiability	
of	
educational 	policy 	matters
	does
	not
mean
	that
	the 	impact
	of
	such
	matters
	on 	wages,
	hours
	and
	terms
and
	conditions 	of
	employment
	are 	not
	negotiable.
	(San Mateo
County
	Community
	College
	District
	{6/8/79)
	PERB
	Decision
	No.
94.)
	However,
	because
	some
	legitimate 	educational
	or
	public
policy
	concerns
	may
	not
	be
	easily 	characterized
	as 	lying
	at
	the
"core 	of 	entrepreneurial 	control"
	or 	as
	"essential 	to 	the
agency's 	mission,"
	I
	believe
	that
	these 	factors
	must 	be
specifically	
noted
	and
	included 	in 	the 	equation
	when
	PERB
balances 	competing
	interests 	in 	negotiability 	disputes.
37	37

I
	join
	in
	the
	Chairperson's
	opinion
	to
	the
	extent
	that
	it
is
	in
	conformity 	with 	the 	foregoing
	discussion.
Barbara D. Moore, Member
I join in the Chairperson's opinion to the extent that it
Raymond J. Gonzales, Member, dissenting in part:	Raymond
In
	this
	case,
	the
	Board
	confronts 	the 	issue 	of
	scope
	of
representation
	for 	the
	first
	time
	since
	the
	split
	decision
	in
Palos Verdes Peninsula Unified School District/Pleasant Valley
School District (7/16/79) PERB Decision No. 96, a 1-1 decision
in
	which
	Member 	Moore
	did 	not
	participate.
	That
	the
	Board
remains 	divided
	is
	evidence
	of 	the 	complexity
	of 	the 	issue
	and
the 	confusion
	engendered
	by
	section
	3543.2.
In this case, the Board confronts the issue of scope of
In 	Palos 	Verdes,
	I
	noted
	that
	the
	interpretation
	of
	that
section 	is
	arguable, 	contrasting
	language
	indicating
	that
	the
Legislature
	intended
	a
	very
	limited
	scope
	("The
	scope
	of
representation 	shall
	be
	limited 	to,"
	"All 	matters 	not
specifically
	enumerated
	are 	reserved 	to 	the 	public 	school
employer") 	with 	language
	indicating
	a
	broader
	intent 	("matters
relating 	to").
	I
	concluded
	that 	"the 	language 	and
	structure 	of
this 	provision 	suggests
	a
	far
	more
	restrictive
	scope 	of
negotiations 	than
	is
	found 	in 	most
	other 	public 	sector
legislation. " (Supra, at pp. 16-17.)
In Palos Verdes, I noted that the interpretation of that
38
~arbaraD.
----
38
is in conformity with the foregoing discussion.
J.
	Gonzales,
	Member,
	dissenting
	in
	part:
representation for the first time since the split decision in
Palos
	Verdes
	Peninsula 	Unified
	School
	District/Pleasant
	Valley
Sc~~~!_District
	(7/16/79)
	PERB
	Decision
	No.
	96,
	a
	1-1
	decision
in which Member Moore did not participate. That the Board
remains divided is evidence of the complexity of the issue and
the confusion engendered by section 3543.2.
section is arguable, contrasting language indicating that the
Legislature intended a very limited scope ("The scope of
representation shall be limited to, " "All matters not
specifically enumerated are reserved to the public school
employer") with language indicating a broader intent ("matters
relating to") . I concluded that "the language and structure of
this provision suggests a far more restrictive scope of
negotiations than is found in most other public sector
legislation."
	(§_upra,
	at 	pp. 	16-17.)
Moore,
	Member

The
	more
	I
	examine
	the
	language
	of
	section
	3543.2,
	the
	more
I
	am
	convinced
	that
	the
	Legislature
	intended
	to 	enact
	a
	narrow
scope provision.	
scope
	provision.
	The
	Legislature
	was
	aware
	of 	the
	ongoing
debate 	as
	to
	whether
	the
	differences
	between
	the
	public
	and
private 	sectors
	should
	be
	reflected
	in
	a
	narrower 	scope
	of
representation
	in 	the
	public
	sector.
	In
	response,
	the
Legislature
	chose 	not
	to
	follow
	the
	private 	sector
	model:
instead of including all "terms and conditions of employment"
within
	scope, 	the 	Legislature
	defined 	the
	phrase,
	limiting
	it
to
	certain
	specified
	employment
	conditions.
The more I examine the language of section 3543.2, the more
Each
	member
	of 	the
	Board
	finds
	different
	reasons 	for
	the
specific
	enumeration
	of 	negotiable
	terms
	and
	conditions 	of
employment
	in 	section
	3543_2. 	Chairperson
	Gluck
	believes 	the
Legislature
	"sought 	only
	to
	satisfy
	two
	basic
	objectives."
Neither
	constitutes
	an
	adequate
	explanation 	for 	the
	legislative
action.
	The
	first
	was
	to
	exempt
	"certain
	matters 	of
fundamental
	ucational 	policy
	over
	which
	managerial
	control
was
	to
	be
	preserved 	as
	essential 	to
	the
	achievement
	of 	the
constitutional
	and
	statutory
	mission 	of 	the 	school
	district."
(Gluck opinion, p. 10, ante. ) Surely the Legislature could
have satisfied that concern in a much more direct manner by
simply 	inc 	ing
	a 	management
	rights 	of 	the
Each member of the Board finds different reasons for the
39	39
I am convinced that the Legislature intended to enact a narrow
The Legislature was aware of the ongoing
debate as to whether the differences between the public and
private sectors should be reflected in a narrower scope of
representation in the public sector. In response, the
Legislature chose not to follow the private sector model:
instead
	of 	including 	al~
	"terms
	and
	conditions 	of
	employmentn
within scope, the Legislature defined the phrase, limiting it
to certain specified employment conditions.
specific enumeration of negotiable terms and conditions of
employment in section 3543.2. Chairperson Gluck believes the
Legislature "sought only to satisfy two basic objectives."
Neither constitutes an adequate explanation for the legislative
action. The first was to exempt "certain matters of
fundamental educational policy over which managerial control
was to be preserved as essential to the achievement of the
constitutional and statutory mission of the school district."
(Gluck
	opin
	,
	p. 	10,
	ante.) 	Surely 	the 	Legislature
	could
satisfi
	that
	concern
	in
	a 	much 	more
	direct
	manner
simply including a management rights clause of the type found

in many other public employee negotiating statutes. 1 The	
in
	many
	other 	public
	employee
	negotiating
	statutes.l	
The
second
	objective
	was
	to 	designate
	"specifically
	approved
subjects
	which
	may
	bear
	no
	relationship 	to
	wages
	or
	hours
	of
employment
	and,
	therefore,
	could 	not
	be
	covered
	by
	those
	two
umbrella' terms. " (Gluck opinion, p. 10, ante. ) But using	
But
	using
the 	phrase
	"terms
	and
	conditions 	of
	employment"
	without
limitation
	would
	have
	met
	that 	objective. 	Further,
	as
	Member
Moore
	notes,
	some
	of
	the
	enumerated
	items,
	such
	as
	benefits
	and
leave
	policies,
	are 	in
	fact 	logically 	related
	to
	wages 	and
hours.	
hours.
	(Moore
	opinion,
	pp.
	32.-33,
	ante.)
second objective was to designate "specifically approved
Member
	Moore
	acknowledges
	that
	the
	specific
	enumeration
	is,
to
	a
	certain 	extent, 	indicative 	of
	a
	legislative 	intent
	to
impose
	limits
	on
	scope.
	But
	she
	also
	sees 	the
	list
	more
	as
	a
guide
	to 	subjects 	to
	be
	included
	rather
	than 	those
	to
	be
excluded, 	finding
	that
	the
	absence
	of
	a
	particular
	item cannot
be
	determinative	
of 	the 	question 	of
	negotiability.
	I
disagree. 	Certain 	controversial
	and
	significant 	subjects 	are
conspicuously 	absent
	from
	the
	definition
	of
	terms
	and
conditions 	of
	employment.
	It
	defies
	all
	common
	logic 	to
believe 	that
	the 	Legislature
	would 	have	
left	
such
	subjects 	to
be 	found	
negotiable
	on 	the	
basis	
of 	their 	relationship	
to
	an
Member Moore acknowledges that the specific enumeration is,
lsee,	
e.g.,
	Minnesota 	Public
	Employment 	Labor	
RelationsAct,
	section 	179.66;	
Pennsylvania 	Public
	Employe
	Relations 	Act,
section
	1101.702.
s
40	40
subjects which may bear no relationship to wages or hours of
employment and, therefore, could not be covered by those two
'umbrella'
	terms.
11
	(Gluck
	opinion,
	p. 	10,
	ante.)
the phrase "terms and conditions of employment" without
limitation would have met that objective. Further, as Member
Moore notes, some of the enumerated items, such as benefits and
leave policies, are in fact logically related to wages and
(Moore opinion, pp. 32-33, ante. )
to a certain extent, indicative of a legislative intent to
impose limits on scope. But she also sees the list more as a
guide to subjects to be included rather than those to be
excluded, finding that the absence of a particular item cannot
be determinative of the question of negotiability.
disagree. Certain controversial and significant subjects are
conspicuously absent from the definition of terms and
conditions of employment. It defies all common logic to
believe that the Legislature would have left such subjects to
be found negotiable on the basis of their relationship to an
ee, e.g. , Minnesota Public Employment Labor Relations
Act, section 179. 66; Pennsylvania Public Employe Relations Act,
section 1101. 702.

enumerated
	item.
	For 	example,
	the
	issue
	of
	layoffs
	has
	a
certain
	logical 	relationship
	to
	both
	wages 	and
	hours.
	But
	I
cannot
	believe
	that
	the
	Legislature
	intended
	such
	a
	significant
issue
	as
	layoffs 	to
	be
	negotiable
	on
	the
	basis
	of
	this
relationship; 	to
	me,
	the
	omission
	from
	the
	enumerated
	list
	of
negotiable
	items
	clearly
	indicates
	an
	intent
	to
	exclude
	this
subject
	from
	scope.
enumerated item. For example, the issue of layoffs has a
I
	find
	the
	Legislature's
	enumeration
	of
	specific
	terms
	and
conditions
	of
	employment
	to
	be 	a
	significant
	indication
	of
	its
intent
	to 	enact
	a
	narrow 	scope
	of
	representation.
	This
	intent
is
	further
	manifested
	in 	section
	3543.2
	by
	the 	"limited 	to"
language
	and
	the
	provision
	that
	"matters 	not
	specifically
enumerated
	above
	are 	reserved 	to 	the
	public
	school
	employer	
and
may not be a subject of meeting and negotiating
I find the Legislature's enumeration of specific terms and
2
It
	is
	within
	this
	context
	that
	the 	phrase 	"matters
	relating
to"
	must
	be
	interpreted.
	This 	language 	has 	been
	the 	focus
	of
those
	who
	wish
	to 	find
	a
	broad 	scope
	of
	representation.
	But,
if
	the 	phrase
	is
	construed 	broadly, 	the
	Legislature's 	efforts
It is within this context that the phrase "matters relating
2To a certain extent, the statutory inclusion within	2To 	a
	certain 	extentr	
the	
statutory 	inclusion 	withinscope	
of 	"matters 	related
	to"	
the	
specifically	
enumerated 	itemsappears	
to
	conflict	
with 	the
	exclusion	
from	
scope
	of 	"allmatters 	not
	specifically
	enumerated."
	On
	a
	literal
	level, 	thiscontradiction
	can 	be
	resolved 	by	
interpreting 	specifically
enumerated
	matters 	to 	include 	matters 	relating 	to
	the	
listed
terms	
and	
conditions 	of
	employment.
	If
	the 	phrase 	"matters
related
	to"
	is
	interpreted 	broadly, 	however, 	the	
legislativeintent 	in	
emphasizing 	the 	exclusion
	from 	scope
	of
	all	
matters
not specifically enumerated will be thwarted.
scope of "matters related to" the specifically enumerated items
41	41
certain logical relationship to both wages and hours. But I
cannot believe that the Legislature intended such a significant
issue as layoffs to be negotiable on the basis of this
relationship; to me, the omission from the enumerated list of
negotiable items clearly indicates an intent to exclude this
subject from scope.
conditions of employment to be a significant indication of its
intent to enact a narrow scope of representation. This intent
is further manifested in section 3543.2 by the "limited to"
language and the provision that "matters not specifically
enumerated above are reserved to the public school employer and
may
	not
	be 	a
	subject
	of
	meeting
	and
	negotiating. 	" 2
n
to" must be interpreted. This language has been the focus of
those who wish to find a broad scope of representation. But,
if the phrase is construed broadly, the Legislature's efforts
appears to conflict with the exclusion from scope of "all
matters not specifically enumerated. " On a literal level, this
contradiction can be resolved by interpreting specifically
enumerated matters to include matters relating to the listed
terms and conditions of employment. If the phrase "matters
related to" is interpreted broadly, however, the legislative
intent in emphasizing the exclusion from scope of all matters
not 	~_p~9ifically enumerated
	will	
be
	thwarted.

to
	specifically 	limit
	negotiable
	terms
	and
	conditions
	of
employment
	will
	be
	nullified;
	a
	"logical" 	relationship
	can
	be
found 	between
	almost
	any
	negotiations
	proposal
	and 	an
enumerated 	term
	of
	employment.
	I
	do
	not
	believe
	that
	the
Legislature
	made
	an
	effort
	to
	develop
	a
	specific
	list
	of
negotiable
	items 	only
	to
	make
	the
	list
	meaningless 	through
	the
use	
of	
the
	term
	"relating 	to."
to specifically limit negotiable terms and conditions of
The
	more
	reasonable
	construction
	is
	that
	a
	matter
	is
related
	to
	a
	specifically
	enumerated 	item
	if
	it
	is,
	in 	essence,
an
	extension 	of
	that
	item.
	For 	example, 	an
	incentive
	pay
	plan
is 	essentially
	an
	extension 	of 	the 	concept 	of
	wages.
	On
	the
other
	hand,
	a
	promotional
	policy
	may
	be
	considered
	logically
related
	to
	wages
	in
	that
	a
	promotion
	generally 	leads
	to
	a
salary 	increase.
	But
	it
	is
	not
	an
	extension	
of	
wages
	since
	it
includes 	considerations,
	such
	as
	proficiency,
	which 	go 	beyond
questions	
of	
what
	salary
	should
	be
	paid	
for 	what 	work, 	and
	thus
should 	not
	be
	negotiable
	under
	section
	3543.2. 	This
construction
	does
	not
	make
	the 	phrase 	"matters
	relating
	to"
	a
nullity.
	The
	language
	was
	included, 	not
	to 	appreciably
	broaden
the	
parameters	
provided
	by
	the 	enumerated
	items,	
but
	to 	allow	
a
certain
	amount	
of	
flexibility	
and	
to 	eliminate
	definitional
arguments	
wherein 	the	
parties	
debate 	whether
	a	
proposal	
is
The more reasonable construction is that a matter is
42	42
employment will be nullified; a "logical" relationship can be
found between almost any negotiations proposal and an
enumerated term of employment. I do not believe that the
Legislature made an effort to develop a specific list of
negotiable items only to make the list meaningless through the
use of the term "relating to."
related to a specifically enumerated item if it is, in essence,
an extension of that item. 	For example, an incentive pay plan
is essentially an extension of the concept of wages. On the
other hand, a promotional policy may be considered logically
related to wages in that a promotion generally leads to a
salary increase. But it is not an extension of wages since it
includes considerations, such as proficiency, which go beyond
questions of what salary should be paid for what work, and thus
should not be negotiable under section 3543. 2. This
construction does not make the phrase "matters relating to" a
nullity. 	The language was included, not to appreciably broaden
the parameters provided by the enumerated items, but to allow a
certain amount of flexibility and to eliminate definitional
arguments wherein the parties debate whether a proposal is

encompassed
	within
	the
	meaning
	of
	a
	particular
	enumerated
item.
encompassed within the meaning of a particular enumerated
3
A
cardinal 	rule 	of 	construction
	is
	that
	a
	construction
making
	some
	words
	surplusage
	is
	to
	be
	avoided. 	People v.	
People 	v.
Gilbert
	(1969)
	1
	Cal.3d
	475, 	480.
	If
	the
	Legislature
	had
intended 	"matters
	relating
	to"
	to
	receive
	the 	reading
	proposed
by
	the
	majority,
	then
	many
	of 	the
	specifically
	enumerated 	terms
and
	conditions
	of
	employment
	are 	superfluous.
	For
	example,
health
	and
	welfare
	benefits
	are
	included
	on
	the
	list
	of
negotiable
	terms
	of
	employment
	despite
	the
	logical
	connection
between 	such
	benefits
	and 	wages.
	This
	inclusion
	would
	have
been
	unnecessary
	if
	the 	Legislature
	had
	interpreted 	"relating
to" 	as 	broadly 	as 	the 	majority
	interprets
	it.
	On
	the 	other
hand, 	subjects
	such
	as
	shift 	differentials,
	overtime
compensation,
	and
	supplemental
	pay
	are
	not
	listed
	because
	they
are
	essentially
	extensions 	of
	wages.4
A cardinal rule of construction is that a construction
3	See, e.g., cases decided under the Iowa Public
Employment
	Relations
	Act,
	which
	specifically
	lists
	mandatory
subjects of negotiation.	
subjects 	of 	negotiation.
	(Sec.
	20.9.)
	There, 	scope
	disputes
hinge 	on 	whether
	a
	proposal
	is
	included 	within
	a
	listedsubject:	
in	
one
	case,	
the
	parties 	disagreed
	on 	whether
	health
insurance 	for 	dependents
	and
	family
	members 	was
	included
	in	
the
specifically 	listed
	term
	"insurance." 	Charles 	City
	School
District v. PERB (Iowa S. Ct. , 1979) 100 LRRM 3163.
see,
4
4Compare Iowa Public Employment Relations Act
section 	20.9	
which	
also
	lists	
specific 	negotiable 	subjects.
The
	list	
includes
	wages 	and	
shift 	differentials,
	overtimecompensation,
	and
	supplemental pay.
compare
43	43
making some words surplusage is to be avoided.
Gilbert (1969) 1 Cal. 3d 475, 480. If the Legislature had
intended "matters relating to" to receive the reading proposed
by the majority, then many of the specifically enumerated terms
and conditions of employment are superfluous. For example,
health and welfare benefits are included on the list of
negotiable terms of employment despite the logical connection
between such benefits and wages. This inclusion would have
been unnecessary if the Legislature had interpreted "relating
to" as broadly as the majority interprets it. On the other
hand, subjects such as shift differentials, overtime
compensation, and supplemental pay are not listed because they
are essentially extensions of wages. 4
e.g.,
	cases 	decided
	under
	the
	Iowa
	Public
Employment Relations Act, which specifically lists mandatory
(Sec. 20.9.) There, scope disputes
hinge on whether a proposal is included within a listed
subject: in one case, the parties disagreed on whether health
insurance for dependents and family members was included in the
specifically listed term "insurance. " Charles City School
District
	v.
	PERB
	(Iowas.ct.,
	1979)
	100
	LRRM
	3163.
Iowa
	Public
	Employment
	Relations
	Act
section 20.9 which also lists specific negotiable subjects.
The list includes wages and shift differentials, overtime
compensation, and supplemental pay.
item. 3

The
	Legislature's
	reasons 	for
	enacting
	a
	narrow 	scope
	of
representation
	are 	rooted
	in
	the
	differences
	between
	the 	public
and
	private 	sectors.
The Legislature's reasons for enacting a narrow scope of
5	e	
There
	are 	differences
	in
	mission
	and
motivation:
Employers
	in 	the
	private
	sector 	are
motivated
	by
	the
	profit
	to
	be
	returned
	from
the
	enterprise
	whereas
	public
	employers
	arecustodians 	of 	public
	funds
	and 	mandated
	to
perform governmental
	functions
	aseconomically
	and
	effectively
	as
	possible.
Employers in the private sector are
motivation:
The
	employer
	in 	the
	private 	sector
	is
constrained
	only
	by
	investors
	who
	are
	most
concerned
	with 	the
	return
	for
	their
investment
	whereas
	the
	public
	employer 	must
adhere
	to
	the
	statutory
	enactments
	which
control
	the 	operation 	of
	the
	enterprise.
(Pennsylvania
	Labor
	Relations
	Bd.
	v.
	State
College
	Area
	School
	District,
	supra,
	90
	LRRM
2081, 	2082.)
The employer in the private sector is
There are differences in sources of funding: public
institutions
	derive
	revenue
	from
	taxation
	as
	opposed
	to 	the
sale
	of
	goods 	and
	services 	in 	the
	private 	sector.
	But
	the
	most
significant distinction is in the impact of collective
'I'here
5
5These
	differences
	have 	been 	widely
	discussed 	in
	articles
and
	cases.
	See,
	e.g.,
	Summers,
	Public 	Sector 	Bargaining:Problems
	of
	Governmental 	Decisionmaking
	(1975) 	44
	Cincinnati
L.	
L.Rev. 	669;
	Sackman,
	Redefining
	the
	Scope
	of
	Bargaining
Public
	Employment 	(1977) 	19 	Boston College
	L.Rev.
	155;
	Corbett,
Determining
	the
	Scope
	of 	Public 	Sector 	Collective 	Bargaining:
A
New
	Look
	Via
	a
	Balancing 	Formula 	(1979) 	40 	Montana
	L.Rev.
231; Pennsylavnia Labor Relations Bd. v. State College Area
School Dist. (1975) 337 A2d 262 [90 LRRM 2081]; Ridgefield Park
Educ. Assn. v. Ridgefield Park Bd. of Educ. (1978) 78 N. J. 144
[393 A. 2d 278]; Charles City School District v. PERB, supra,
100 LRRM 3163.
These differences have been widely discussed in articles
44	44
representation are rooted in the differences between the public
and private sectors. Ther 	are differences in mission and
constrained only by investors who are most
concerned with the return for their
investment whereas the public employer must
adhere to the statutory enactments which
control the operation of the enterprise.
(Pennsylvania Labor Relations Bd. v. State
College Area School District, supra, 90 LRRM
2081, 2082.)
are 	di
f
	ences 	in 	sources 	of
	funding:
	public
institutions derive revenue from taxation as opposed to the
sale of goods and services in the private sector. But the most
and cases. See, e.g. , Summers, Public Sector Bargaining:
Problems of Governmental Decisionmaking (1975) 44 Cincinnati
Rev. 669; Sackman, Redefining the Scope of Bargaining in
Public Employment (1977) 19 Boston College L. Rev. 155; Corbett,
Determining the Scope of Public Sector Collective Bargaining:
A New Look Via a Balancing Formula (1979) 40 Montana L. Rev.
231;
	Pennsylavnia
	Labor
	Relations
	Bd.
	v. 	State
	College_ Area
School
	Dist.
	(1975) 	3?7
	A2d
	262 	[90
	LRRM
	2081]
	Riqg~f.ield_Par~Educ. 	Assn. 	v.
	Ri~~ld
	Park
	.
	of
	Educ. 	(
	71!)T~ N.J.
	IT4
TTg~78];
	Charles 	City 	~chool
	District
	v. 	PE~,'~-"'-"'-~'
100
	LRRM
	3
	3.
motivated by the profit to be returned from
the enterprise whereas public employers are
custodians of public funds and mandated to
perform governmental functions as
economically and effectively as possible.

negotiations
	on
	the
	employer's
	decisionmaking
	processes.
Before 	the
	introduction 	of
	collective
	bargaining
	in 	the
	private
sector,
	employers
	made
	decisions
	relating
	to
	terms
	and
conditions 	of
	employment
	unilaterally:
	bilateral
	collective
bargaining
	broadened
	this
	process
	by
	involving
	employees
	in
these	these decisions.	
decisions.
	Governmental
	decisionmaking,
	on
	the
	other
hand, 	has
	traditionally
	been
	viewed
	as
	a
	multilateral
	process
involving 	the
	participation
	of
	many
	different 	interest
	groups.
A
bilateral
	negotiations
	process
	limits
	the
	participation
	of
other
	interest
	groups
	in 	issues
	that
	are 	within 	the
	mandatory
scope
	of 	negotiations.
	As 	I
	noted
	in
	Palos 	Verdes/Pleasant
Valley, supra, PERB Decision No. 96, the main justification in
the 	public 	sector
	for 	excluding
	a
	topic
	from mandated
negotiations
	is
	that
negotiations on the employer's decisionmaking processes.
certain
	demands
	involve
	such
	significant
public 	policy 	considerations
	that
	a
determination 	of
	them
	in 	the
	isolatedcontext 	of
	negotiations, 	limited 	to
	labor
and 	management, 	would
	deprive 	other
	parties,
namely
	the
	public,
	the 	parents
	and
	the
students
	who
	also
	have
	a
	vital 	interest
	inthe
	particular
	outcome,
	from
	having
	input.
(Id.
	at
	p. 	23.)
certain demands involve such significant
Furthermore, 	including
	an
	issue 	in
	scope
	may
	result
	in
	a
particular
	response
	to 	that 	issue
	being
	imbedded
	in
	a
multi-year 	contract
	which
	cannot
	be
	modified 	in 	response
	to
changing 	conditions 	without 	the 	consent 	of 	the
	employee
organization. 	In 	addition,	
under 	a
	binding
	arbitration 	clause,
the 	terms	
of 	the 	contract	
may 	be
	interpreted	
and 	implemented 	by
Furthermore, including an issue in scope may result in a
45	45
Before the introduction of collective bargaining in the private
sector, employers made decisions relating to terms and
conditions of employment unilaterally; bilateral collective
bargaining broadened this process by involving employees in
Governmental decisionmaking, on the other
hand, has traditionally been viewed as a multilateral process
involving the participation of many different interest groups.
A bilateral negotiations process limits the participation of
other interest groups in issues that are within the mandatory
scope of negotiations. As I noted in Palos Verdes/Pleasant
Valley,
	~upra,
	PERB
	Decision
	No.
	96,
	the
	main
	justification
	in
the public sector for excluding a topic from mandated
negotiations is that
public policy considerations that a
determination of them in the isolated
context of negotiations, limited to labor
and management, would deprive other parties,
namely the public, the parents and the
students who also have a vital interest in
the particular outcome, from having input.
(Id. at p. 23.)
particular response to that issue being imbedded in a
multi-year contract which cannot be modified in response to
changing conditions without the consent of the employee
organization. In addition, under a binding arbitration clause,
the terms of the contract may be interpreted and implemented by

an
	outside
	arbitrator,
	who
	has
	responsibility,
	not
	to
	the
public,
	but 	only 	for 	enforcing 	the
	contractual
	agreement
between
	the
	parties.
an outside arbitrator, who has responsibility, not to the
Some
	issues
	are 	appropriate
	for
	bilateral
	determination
through
	collective
	negotiations; 	others 	are 	not. 	The
Legislature
	expressed
	its
	view
	of
	which
	issues
	can
	be
appropriately
	determined 	through
	negotiations
	when
	it
	replaced
the
	meet
	and
	confer 	requirements
	of
	the
	Winton Act
The
Some issues are appropriate for bilateral determination
6e	the meet and confer requirements of the Winton Act with th	
with
	the
good
	faith
	negotiations
	requirements
	of 	the
	EERA.
	A
comparison
of 	the
	scope
	of 	representation 	sections 	of 	the
	two
	acts
indicates 	that
	the 	Legislature 	appreciably
	narrowed
	the 	range
of 	issues 	subject 	to
	the
	more
	stringent 	collective
	negotiations
process.
good faith negotiations requirements of the EERA. A comparison
7	
Its
	action
	should
	not
	be
	undermined
	by
	an
expansive
	interpretation
	of
	"matters
	relating
	to."	expansive interpretation of "matters relating to."
In 	Palos Verdes/Pleasant Valley, 	supra,
	PERB
	Decision
No.
	96,
	I
	proposed
	a
	balancing
	test
	similar 	to
	that
	proposed
today
	by Member 	Moore.
	After 	discussing
	some
	of 	the
In Palos Verdes/Pleasant Valley, supra, PERB Decision
6Former Education Code section 13080 et seq. , repealed	6Former
	Education
	Code
	section
	13080
	et
	seq.,
	repealed
Stats.
	1975,
	chapter 	961,
	effective
	July 	1,
	1976.	Stats. 1975, chapter 961, effective July 1, 1976.
7	
7under 	the	
Winton
	Act, 	the 	scope	
of 	representationincluded:
Under the Winton Act, the scope of representation
[A]ll 	matters 	relating 	to
	employment
conditions	
and	
employer-employee	
relations,including, 	but 	not 	limited 	to
	wages, 	hours
and
	conditions 	of
	employment. 	(Former 	Ed.Code	
sec. 	13084.)
[A]
46	46
public, but only for enforcing the contractual agreement
between the parties.
through collective negotiations; others are not.
Legislature expressed its view of which issues can be
appropriately determined through negotiations when it replaced
of the scope of representation sections of the two acts
indicates that the Legislature appreciably narrowed the range
of issues subject to the more stringent collective negotiations
process. / Its action should not be undermined by an
No. 96, I proposed a balancing test similar to that proposed
today by Member Moore. After discussing some of the
included:
ll matters relating to employment
conditions and employer-employee relations,
including, but not limited to wages, hours
and conditions of employment. 	(Former Ed.
Code sec. 13084.)

differences
	between
	the
	public
	and
	private 	sectors. 	I
concluded:
differences between the public and private sectors.
But
	where
	the
	[proposed
	negotiation
subjects]
	are
	not 	enumerated,
	thus
	requiring
a
	Board
	determination 	of
	what
	the
relationship
	is
	between
	the
	proposed
	item
and
	[an
	enumerated]
	topic,
	I
	am
	satisfied
that
	such
	a
	determination
	may
	also 	require
	a
balancing
	of
	competing
	interests,
	not
	merely
an
	assessment
	of
	whether
	or
	not
	a
	logical
connection
	exists
	between
	the
	enumerated
topic
	and
	the
	proposed
	topic.
	Under
	the
latter
	situation,
	the
	negotiability
	of
	a
particular
	proposal
	would
	depend 	on
	whether
it
	relates
	primarily
	to
	the
	specifically
enumerated
	items
	found
	in
	section
	3543.2
	or
to 	matters 	of
	broader
	educational 	policy 	in
which
	the
	public's 	interests
	is
	more
substantial
	than
	that
	of
	the 	public 	school
employee.
	(Id., 	at
	p.
	28)
But where the [proposed negotiation
Given
	the
	majority's 	position
	in
	this
	case,
	I 	no
	longer
feel 	that	
a
	balancing
	test
	adequately
	protects
	the
Legislature's 	intent 	to 	create
	a
	narrow 	scope
	provision.
	At
best,
	balancing
	reflects
	a
	subjective 	determination 	of 	the
weight
	to
	be
	given 	the
	factors
	on
	either
	side 	of 	the
	scale.
	At
worst,
	it
	is
	an
	easy
	way
	to
	rationalize
	a
	predetermined
decision.
Given the majority's position in this case, I no longer
A
narrow
	reading 	of 	the 	phrase 	"matters
	relating
	to"
	best
fulfills
	the
	legislative 	intent	
that	
districts	
and
	employee
organizations 	negotiate 	only 	those 	issues
	which	
the	
Legislature
has 	determined
	are 	suitable
	for 	resolution
	through
	the
bilateral collective negotiations process.
are 	neither 	expressly
	enumerated 	nor 	extensions 	of	
enumerated
A narrow reading of the phrase "matters relating to" best
47	47
I
concluded:
subjects] are not enumerated, thus requiring
a Board determination of what the
relationship is between the proposed item
and [an enumerated] topic, I am satisfied
that such a determination may also require a
balancing of competing interests, not merely
an assessment of whether or not a logical
connection exists between the enumerated
topic and the proposed topic. Under the
latter situation, the negotiability of a
particular proposal would depend on whether
it relates primarily to the specifically
enumerated items found in section 3543.2 or
to matters of broader educational policy in
which the public's interests is more
substantial than that of the public school
employee. (Id. , at p. 28)
feel that a balancing test adequately protects the
Legislature's intent to create a narrow scope provision. At
best, balancing reflects a subjective determination of the
weight to be given the factors on either side of the scale. At
worst, it is an easy way to rationalize a predetermined
decision.
fulfills the legislative intent that districts and employee
organizations negotiate only those issues which the Legislature
has determined are suitable for resolution through the
bilateral 	collective 	negotiations 	process. 	Those matters which	Those 	matt~rs 	which
are neither expressly enumerated nor extensions of enumerated

items
	are
	left
	to
	normal
	governmental
	decision-making
processes,
	which
	allow
	participation
	by
	parents
	and
	taxpayers
as
	well
	as
	employee
	groups.
items are left to normal governmental decision-making
Rest
	Time	Rest Time
I
	agree 	with
	the
	majority's
	finding
	that
	rest
	time
	is
	a
negotiable 	condition 	of
	employment
	under
	section
	3543.2.
I agree with the majority's finding that rest time is a
Preparation
	Time	Preparation Time
Hidden
	in
	the
	middle
	of
	footnote
	14
	of 	the 	majority
decision
	is
	perhaps
	the
	most
	preposterous 	ruling 	of
	this
	Board
to 	date,
	a
	ruling 	that
	has
	the
	potential
	of 	radically
	altering
the 	very 	foundations
	of 	the 	teaching
	profession.
	The
	majority
rules
	not 	only
	that
	preparation
	time
	is
	negotiable,
	but
	that
preparation
	time
	is
	"the
	combination
	of 	professional
	and
ministerial
	activities
	designed
	to 	expedite 	the
	presentation
	of
educational 	subject matter." 	Professional 	preparation
	is
	the
very 	hallmark
	of
	the 	teaching 	profession
	and
	should
	not
	be
characterized
	simply 	as 	hours 	of
	work 	and
	thus
	subject 	to
negotiations.
	The
	majority's 	decision 	that
	the
	time 	needed
	for
planning
	and
	preparation 	of 	the 	subject
	matter
	to
	be
	covered 	in
class 	is
	negotiable
	flies	
in 	the 	face	
of 	the
	whole
	notion
	of
teaching 	as
	a
	profession.
	To
	say
	that
	a	
teacher 	should
	be
allowed 	to 	read
	Moby
	Dick 	on
	school 	time	
in 	order 	to 	prepare 	to
discuss
	it
	in 	class 	is 	like	
allowing 	the 	physician 	to	
read 	up
on 	appendectomies 	in 	the 	surgery
	room	
while 	the 	patient	
lies
etherized	
upon 	a
	table.
Hidden in the middle of footnote 14 of the majority
48	48
processes, which allow participation by parents and taxpayers
as well as employee groups.
negotiable condition of employment under section 3543.2.
decision is perhaps the most preposterous ruling of this Board
to date, a ruling that has the potential of radically altering
the very foundations of the teaching profession. The majority
rules not only that preparation time is negotiable, but that
preparation time is "the combination of professional and
ministerial activities designed to expedite the presentation of
educational subject matter. " Professional preparation is the
very hallmark of the teaching profession and should not be
characterized simply as hours of work and thus subject to
negotiations. The majority's decision that the time needed for
planning and preparation of the subject matter to be covered in
class is negotiable flies in the face of the whole notion of
teaching as a profession. To say that a teacher should be
allowed to read Moby Dick on school time in order to prepare to
discuss it in class is like allowing the physician to read up
on appendectomies in the surgery room while the patient lies
etherized upon a table.

As
	professional
	employees,
	teachers
	have
	in
	the
	past
	been
paid
	a
	salary
	as
	compensation
	not
	for
	a
	fixed
	number
	of
	hours
of
	work
	but 	for
	whatever 	time
	it
	takes 	to
	perform
	their
	job
effectively.
	Today's
	decision
	changes
	that,
	substituting
	a
view
	of 	teachers
	as
	workers
	and
	trade
	unionists, 	putting
	in
	a
specific
	number
	of
	hours
	daily,
	in 	place 	of 	teachers
	as
professional
	educators.
	Teachers 	themselves 	should
	be
	incensed
by
	this
	decision
	for,
	in
	a 	few
	strokes
	of 	the
	typewriter,
	it
has 	taken
	their
	profession
	and
	converted
	it
	into
	just
	a
	job.
As professional employees, teachers have in the past been
The
	bottom
	line
	in 	the 	majority 	decision
	is
	that
	the
preparation
	for
	class,
	the 	grading 	of 	papers,
	and
	the
compilation 	of
	grades
	must
	all
	be 	done
	within 	the 	confines 	of
the 	teaching
	day.
	Where
	on-campus
	time
	was
	once
	considered
only	
part	
of	
a
	teacher's 	responsibility,
	under
	the
	majority's
guidance
	it
	will
	be
	seen 	as 	the	
total
	worktime. 	Additional	
Additional
preparation
	time
	will
	be
	seen 	as 	reducing
	their
	11
unit
	of
	pay
per
	unit	
of	
working 	time"
	{Gluck
	opinion, 	p. 	17,
	ant~_)
	and
	thus
not
	part
	of 	the 	job.
The bottom line in the majority decision is that the
In 	the
	past,
	the
	fact 	that	
a	
teacher's
	work
	year 	included	
a
paid 	three
	months
	off
	for	
summer
	vacation,
	two 	weeks
	for
Christmas,
	a 	week
	for 	Easter
1 	a	
dozen
	holidays, 	semester
breaks,	
etcetera,
	was 	ample
	compensation 	for 	the
	rigors 	of
classroom 	teaching.	
Now	
the 	majority
	makes 	a
	ruling 	that
	would
continue 	the 	notion 	of
	four 	months	
paid 	vacation,	
but
In the past, the fact that a teacher's work year included a
49	49
paid a salary as compensation not for a fixed number of hours
of work but for whatever time it takes to perform their job
effectively. Today's decision changes that, substituting a
view of teachers as workers and trade unionists, putting in a
specific number of hours daily, in place of teachers as
professional educators. Teachers themselves should be incensed
by this decision for, in a few strokes of the typewriter, it
has taken their profession and converted it into just a job.
preparation for class, the grading of papers, and the
compilation of grades must all be done within the confines of
the teaching day. Where on-campus time was once considered
only part of a teacher's responsibility, under the majority's
guidance it will be seen as the total worktime.
preparation time will be seen as reducing their "unit of pay
per unit of working time" (Gluck opinion, p. 17, ante) and thus
not part of the job.
paid three months off for summer vacation, two weeks for
Christmas, a week for Easter, a dozen holidays, semester
breaks, etcetera, was ample compensation for the rigors of
classroom teaching. Now the majority makes a ruling that would
continue the notion of four months paid vacation, but

additionally
	allow
	teachers
	to
	prepare
	themselves 	for
	teaching
by
	doing
	it
	on
	the 	job
	and
	at
	the 	taxpayers'
	expense.
additionally allow teachers to prepare themselves for teaching
Furthermore,
	the 	majority
	fails
	to
	take
	into
	account
	the
impracticality of
	its
	decision. 	Total
	hours
	at
	work,
	break
time
	and
	lunch 	time 	can
	be
	uniform
	for
	all
	teachers. 	But the	
But
	the
time
	necessary
	to
	prepare 	for 	teaching
	is
	idiosyncratic,
varying 	according
	to
	the
	teacher's
	experience
	in
	teaching
	a
particular 	class,
	the
	teacher's 	overall
	experience
	and
	ability,
the 	teaching 	techniques
	used
	by
	the
	teacher,
	and
	other
factors.
	As
	an
	illustration,
	a
	first
	year
	teacher 	assigned
	to
a
	freshman
	English
	class
	may
	develop
	a
	lesson 	plan 	involving
several
	essay
	exams 	and
	written
	homework
	assignments. This	
This
teacher
	is 	likely
	to
	spend
	much 	more
	time
	preparing
	than
	is
	a
teacher
	who
	has
	taught
	freshman
	English 	for 	the
	past
	10
	years
with
	a
	standardized 	lesson 	plan 	using 	mostly
	multiple 	choice
tests.
	The
	differences 	in 	lesson 	plans
	and
	teaching
techniques, 	in 	familiarity
	with
	the
	materials,	
and	
in
	overall
teaching 	experience
	all
	contribute
	the
	differences 	in
preparation
	time
	required
	to
	teach 	the
	same
	course.
	Thus, 	any
set
	amount
	of 	preparation
	time
	is 	likely 	to
	provide
	some
teachers 	with
	extra
	paid 	free 	time, 	while 	other	
teachers
	would
have
	to 	put 	in 	additional
	time 	on
	their
	own 	anyway.
Furthermore, the majority fails to take into account the
Finally, 	the 	majority's 	decision 	will
	unreasonably
	limit
districts'
	discretion	
in 	important
	policy 	areas.	
Many
significant	
managerial 	and
	educational 	decisions
	do	
not
	affect
Finally, the majority's decision will unreasonably limit
50	50
by doing it on the job and at the taxpayers' expense.
impracticality of its decision. 	Total hours at work, break
time and lunch time can be uniform for all teachers.
time necessary to prepare for teaching is idiosyncratic,
varying according to the teacher's experience in teaching a
particular class, the teacher's overall experience and ability,
the teaching techniques used by the teacher, and other
factors. As an illustration, a first year teacher assigned to
a freshman English class may develop a lesson plan involving
several essay exams and written homework assignments.
teacher is likely to spend much more time preparing than is a
teacher who has taught freshman English for the past 10 years
with a standardized lesson plan using mostly multiple choice
tests. The differences in lesson plans and teaching
techniques, in familiarity with the materials, and in overall
teaching experience all contribute the differences in
preparation time required to teach the same course. Thus, any
set amount of preparation time is likely to provide some
teachers with extra paid free time, while other teachers would
have to put in additional time on their own anyway.
districts' discretion in important policy areas. Many
significant managerial and educational decisions do not affect

a
	teacher's
	hours
	at
	achool
	and
	in
	the 	classroom, 	but
	do 	have
an
	impact
	on
	preparation
	time.
	A
change
	in
	textbooks
	requires
teachers 	affected
	by
	the
	change
	to
	spend
	some
	additional
	time
familiarizing
	themselves 	with
	the
	new
	text
	and
	developing
	new
lesson 	plans.
	A
change
	in
	course
	content
	also 	requires
	new
lesson 	plans.
	Teaching
	a
	class
	one
	has 	never
	taught 	before
requires 	additional 	preparation.
	Thus,
	districts
	will 	lose
	the
flexibility
	to
	respond
	to
	changing
	enrollments
	by
	changing
class
	assignments.
	For 	example,
	a
	district
	would
	be
	unable
	to
assign
	a
	teacher
	who
	has
	previously 	taught
	only
	senior
	English
to
	teach
	freshman
	English 	without
	first
	negotiating
	the
	impact
of
	that
	decision
	on
	the
	teacher's
	preparation
	time.
a teacher's hours at achool and in the classroom, but do have
While
	it
	is
	true
	that
	negotiating
	the
	impact
	of
	a
	decision
is
	not
	exactly
	the
	same
	as
	negotiating
	the 	decision
	itself,
impact
	negotiations
	limit
	management 1 s
	ability
	to 	adjust 	to
changing
	circumstances.
	An
	unexpected
	increase 	in 	enrollment
in
	September
	may
	require
	schedule 	changes
	and 	new
	class
assignments.
	The
	majority 	decision
	would 	seem
	to 	require 	the
district
	to
	hold 	those
	changes
	in
	abeyance
	during 	the 	time
	it
takes 	to 	negotiate 	the
	impact
	of 	the
	new 	work
	assignments.
While it is true that negotiating the impact of a decision
Also 	impact
	negotiations
	may
	themselves
	affect
	the
district's
	decision
	making.
	I
	cannot 	believe 	that 	the
Legislature, 	after
	making 	a
	clear 	separation 	in 	section
	3543.2
between
	negotiable
	terms 	and
	conditions 	of
	employment 	and
educational 	policy 	matters, 	intended 	to 	allow 	educational
Also impact negotiations may themselves affect the
51	51
an impact on preparation time. A change in textbooks requires
teachers affected by the change to spend some additional time
familiarizing themselves with the new text and developing new
lesson plans. A change in course content also requires new
lesson plans. Teaching a class one has never taught before
requires additional preparation. Thus, districts will lose the
flexibility to respond to changing enrollments by changing
class assignments. For example, a district would be unable to
assign a teacher who has previously taught only senior English
to teach freshman English without first negotiating the impact
of that decision on the teacher's preparation time.
is not exactly the same as negotiating the decision itself,
impact negotiations limit management's ability to adjust to
changing circumstances. An unexpected increase in enrollment
in September may require schedule changes and new class
assignments. The majority decision would seem to require the
district to hold those changes in abeyance during the time it
takes to negotiate the impact of the new work assignments.
district's decision making. I cannot believe that the
Legislature, after making a clear separation in section 3543.2
between negotiable terms and conditions of employment and
educational policy matters, intended to allow educational

policy 	decisions 	to
	be
	made
	at
	the
	negotiating
	table
	via 	the
backdoor
	of 	negotiating
	the
	decisions'
	impact
	on
	preparation
time.	
time.
policy decisions to be made at the negotiating table via the
Thus
	I 	do
	not
	believe
	that
	preparation
	time,
	as 	defined
	by
the
	majority,
	is
	a
	negotiable
	subject.
	Teachers 	have,
	however,
certain ministerial
	tasks
	which 	must
	be 	done 	on
	campus:
checking
	out
	projectors
	and
	other
	equipment, 	running
	off
dittos,
	turning 	in
	attendance
	forms,
	checking
	their
	mailboxes,
etc.
	Negotiating 	for
	a
	certain
	amount
	of
	time
	during
	the
workday
	for 	the
	performance
	of 	these 	types
	of
	campus
	duties
	may
be
	appropriate,
	but
	there
	is
	no 	way 	I
	could
	interpret
negotiable 	preparation
	time
	to
	include
	academic
	preparation
	for
the
	presentation
	of
	subject
	matter 	in 	the 	classroom.
Thus I do not believe that preparation time, as defined by
The
	majority's 	ruling 	indicates 	that
	it
	has
	no
	sensitivity
to 	the
	unique
	nature 	of 	teaching 	as
	a
	profession.
	To
	them,
	it
is
	merely
	another 	job,
	to
	be
	treated 	like
	other
	jobs
	in 	the
private 	sector 	cases 	they
	cite
	so
	often.
	By
	relying
	on
	cases
like
	Amalgamated 	Meat
	Cutters,8 	the 	majority 	gives 	school
children
	and
	parents
	no 	more
	consideration 	in 	cases 	dealing
with
	collective 	negotiations
	than
	sides 	of 	beef 	hanging 	on
in 	frozen
	meat
	rs.
	To
	at 	to 	resolve
The majority's ruling indicates that it has no sensitivity
8 Amalgamated Meat Cutters v. Jewel Tea (1965) 381 U.s.	8Amalgamated 	Meat
	Cutters 	v. 	Jewel
	Tea 	( 	65) 	381 	U.S.
676 	[59 	LRRM-2376].	676 [59 LRRM 2376] .
52	52
backdoor of negotiating the decisions' impact on preparation
the majority, is a negotiable subject. Teachers have, however,
certain ministerial tasks which must be done on campus:
checking out projectors and other equipment, running off
dittos, turning in attendance forms, checking their mailboxes,
etc. Negotiating for a certain amount of time during the
workday for the performance of these types of campus duties may
be appropriate, but there is no way I could interpret
negotiable preparation time to include academic preparation for
the presentation of subject matter in the classroom.
to the unique nature of teaching as a profession. To them, it
is merely another job, to be treated like other jobs in the
private sector cases they cite so often. By relying on cases
like Amalgamated Meat Cutters, the majority gives school
children and parents no more consideration in cases dealing
with collective negotiations than sides of beef hanging on
steel hooks in frozen meat lockers. To attempt to resolve the

issues
	of
	scope
	of
	representation
	by
	using
	private 	sector
collective
	bargaining
	history
	is
	to 	relegate
	our
	schools
	to
	the
status
	of
	assembly
	or
	disassembly
	plants.
issues of scope of representation by using private sector
Raymond J. Gonzales, Member/
53	53
collective bargaining history is to relegate our schools to the
status of assembly or disassembly plants.

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE OF CALIFORNIA
SAN
	MATEO
	ELEMENTARY
	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging
	Party,
vs
SAN
	MATEO
	CITY
	SCHOOL
	DISTRICT,
Respondent.
SAN MATEO ELEMENTARY TEACHERS
Case
	No. 	SF-CE-36
Recommended
	Decision
January 	10,
	1978
Case No. SF-CE-36
Appearances:	
Appearances:	
Rubin
	Tepper,
	Attorney, 	for
	San 	Mateo
	Elementary
Teachers Association CTA/NEA; J. Michael Taggart, Attorney (Paterson
&	
Taggart}
	for
	San 	Mateo
	City
	School
	District.
Rubin Tepper, Attorney, for San Mateo Elementary
Before 	Gerald	
A.	
Becker, 	Hearing
	Officer.	Before Gerald A. Becker, Hearing Officer.
PROCEDURAL
	HISTORY	PROCEDURAL HISTORY
On
	December
	13, 	1976,
	the
	San 	Mateo
	Elementary
Teachers 	Association
	CTA/NEA
	(hereinafter,
	"Association")
	filed
	an
unfair 	practice
	charge
	against
	the
	San 	Mateo
	City
	School
	District
(hereinafter 	"District") 	alleging
	a
	violation
	of
	Government 	Code
Section 	3543.5(c)
On December 13, 1976, the San Mateo Elementary
1
in
	that
	the
	District 	unilaterally
	lengthened
the
	instructional
	day
Section 3543.5 (c) in that the District unilaterally lengthened
the instructional day without meeting and negotiating.
2
without 	meeting
	and
	negotiating. 	An
amendment
	to 	the 	charge
	was
	filed
	on 	March 	28, 	1977
	alleging 	that
An
)
)
)
)
)
)
)
)
)
)
)
)
)
___________________
)
1
All 	statutory 	references 	are 	to 	the
	Government 	Code.	All statutory references are to the Government Code.
2For
	present 	purposes, 	"instructional
	day"
	is 	defined 	as 	the
number
	of 	minutes 	per 	day 	during 	which
	students 	are 	in 	contact 	with
teachers.
"For present purposes, "instructional day" is defined as the
l
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION, CTA/NEA,
Charging Party,
VS
SAN MATEO CITY SCHOOL DISTRICT,
Respondent.
Recommended Decision
January 10, 1978
Teachers
	Association
	CTA/NEA~
	J.
	Michael
	Taggart, 	Attorney 	(Paterson
Taggart) for San Mateo City School District.
Teachers Association CTA/NEA (hereinafter, "Association") filed an
unfair practice charge against the San Mateo City School District
(hereinafter "District") alleging a violation of Government Code
amendment to the charge was filed on March 28, 1977 alleging that
number of minutes per day during which students are in contact with
teachers.

the
	parties
	had
	reached
	agreement
	on 	wages
	but 	not
	hours,
	that
	in
subsequent
	negotiations
	the
	District
	refused
	to 	negotiate
	in
	good
faith
	concerning
	teacher
	preparation
	and
	rest
	time,
	and
	that
	the
District was considering further unilateral change in the instruc-
tional
	day.
	The
	District
	takes 	the
	position 	that
	the
	instructional
day
	is
	not
	within' the
	scope
	of
	representation(§
	3543.2).
the parties had reached agreement on wages but not hours, that in
On
	July
	18,
	1977,
	a
	hearing
	was
	held
	on
	the 	charge
before
	this
	hearing
	officer 	at
	the 	Public
	Employment
	Relations
Board
	(hereinafter
	PERB
	or
	EERB),(formerly
	the 	Educational
Employment
	Relations
	Board)
	Regional
	Office
	in
	San
	Francisco.
At
	the
	close
	of
	charging
	party's
	case, 	the 	respondent
	District
moved
	to 	dismiss 	the
	charge
	on
	three
	grounds:
On July 18, 1977, a hearing was held on the charge
a.	
a.	
the
	allegations 	relating
	to 	the
	1976-77
	school
year
	were
	mooted 	by
	the
	parties'
	1976-77
	collective 	negotiations
agreement;
the allegations relating to the 1976-77 school
b.	
b. 	the
	allegations 	pertaining 	to 	the
	1977-78
negotiations 	are
	premature
	since 	the
	subject 	of
	"hours"
	still
	was
being
	negotiated;
the allegations pertaining to the 1977-78
c.	C.	
the
	allegation
	concerning 	the
	change
	in 	the
instructional day for the 1977-78 school year should be deferred to
the 	grievance 	procedure 	in 	the
	1976-77
	collective 	negotiations
agreement.
instructional
the allegation concerning the change in the
The motion was denied on all grounds without preju-
dice 	to
	renewal 	in 	the
	District's
	post-hearing 	brief.
	The
	mootness
and
	prematurity grounds 	are 	argued 	in 	the
	District's 	brief,
	but 	not
the 	issue 	of 	deferral 	to 	the 	contract 	grievance 	procedure.
1
The
	parties 	stipulated 	that 	the 	District
	and 	the
Association 	respectively 	are 	an 	employer 	and 	employee 	organization
The parties stipulated that the District and the
The
	motion
	was
	ied
	on 	s
	without
	eju-
2
subsequent negotiations the District refused to negotiate in good
faith concerning teacher preparation and rest time, and that the
District
	was
	considering
	further
	unilateral
	change
	in 	the
	instruc-
tional day. The District takes the position that the instructional
day is not within the scope of representation ($ 3543.2) .
before this hearing officer at the Public Employment Relations
Board (hereinafter PERB or EERB) , (formerly the Educational
Employment Relations Board) Regional Office in San Francisco.
At the close of charging party's case, the respondent District
moved to dismiss the charge on three grounds:
year were mooted by the parties' 1976-77 collective negotiations
agreement ;
negotiations are premature since the subject of "hours" still was
being negotiated;
the grievance procedure in the 1976-77 collective negotiations
agreement.
day
	the
	197 	78
	school 	year 	should
	deferr 	to
dice to renewal in the District's post-hearing brief. The mootness
and prematurity grounds are argued in the District's brief, but not
the issue of deferral to the contract grievance procedure.
Association respectively are an employer and employee organization

within 	the 	meaning 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA) .
within the meaning of the Educational Employment Relations Act
3
(EERA)
ISSUES
1. 	Did 	the 	parties' 	collective 	negotiations 	agreement 	for 	the
1976-77 	school 	year 	moot 	the 	allegations 	concerning 	the 	District's
unilateral 	change 	in 	the 	instructional 	day 	during 	the 	1976-77 	school
year?
ISSUES
2.	2. 	Were 	the 	two 	unilateral 	increases 	in 	the 	instructional 	day 	by
the 	District 	made 	in 	violation 	of 	its 	duty 	under 	Government 	Code
$ 3543.5(c) to meet and negotiate in good faith?
Were the two unilateral increases in the instructional day by
3.	3. 	During 	the 	1977-78 	negotiations, 	has 	the 	District 	negotiated 	in
good 	faith 	regarding 	the 	instructional 	day, 	teacher 	preparation 	time
and 	teacher 	rest 	time?
uring the 1977-78 negotiations, has the District negotiated in
FINDINGS 	OF 	FACT	FINDINGS OF FACT
A. 	Mootness 	Issue	A.
On 	January 	1, 	1977, 	the 	District 	unilaterally 	changed
Policy 	and 	Regulation 	6112, 	increasing 	the 	instructional 	day 	by
varying 	amounts 	in 	different 	grades 	and 	schools 	in 	the 	District. 	At
Audubon 	school, 	for 	example, 	the 	change 	reduced 	teachers' 	Wednesday
afternoon 	preparation 	time 	by 	30 	minutes. 	The 	total 	workday 	for 	all
teachers 	remained 	the 	same, 	7-1/4 	hours.
On January 1, 1977, the District unilaterally changed
The 	Association's 	initial 	negotiations 	proposal 	in
July, 	1976 	for 	the 	1976-77 	school 	year 	included 	proposals 	on
"instructional 	duty 	time," 	"planning 	time" 	and 	"relief 	time."
3
The Association's initial negotiations proposal in
Gov. Code SS 3540, et seg.	Gov. 	Code§§ 	3540, ~-
w
1. Did the parties' collective negotiations agreement for the
1976-77 school year moot the allegations concerning the District's
3
.
the District made in violation of its duty under Government Code
§ 	3543.S{c) 	to 	meet 	and 	negotiate 	in 	good 	faith?
D
good faith regarding the instructional day, teacher preparation time
and teacher rest time?
Mootness Issue
Policy and Regulation 6112, increasing the instructional day by
varying amounts in different grades and schools in the District. At
Audubon school, for example, the change reduced teachers' Wednesday
afternoon preparation time by 30 minutes. The total workday for all
teachers remained the same, 7-1/4 hours.
July, 1976 for the 1976-77 school year included proposals on
"instructional duty time," "planning time" and "relief time."
unilateral change in the instructional day during the 1976-77 school
year?

The
	parties
	entered
	into
	a
	collective
	negotiations
agreement
	on
	February
	1,
	1977
	to
	continue 	in
	effect
	through
	June 	30,
1977 	and
	thereafter
	until
	written
	notification	
by 	one
	of 	the
parties.
	Although
	negotiations
	for 	the 	following 	school 	year
	began
soon
	after 	this
	agreement
	was
	signed, 	there
	is
	no
	evidence
	that
	the
parties
	treated
	the
	negotiations
	as
	a
	rescission
	of
	their
	previous
agreement.
	There
	being
	no
	evidence
	of
	a
	successor
	agreement,
	in
this
	opinion
	it
	will
	be
	presumed
	that
	the
	parties'
	February
	1,
	1977
agreement
	still
	was
	in
	effect.
	In 	paragraph
	C
of 	the
	Agreement,
	the
Association
	waived
	the
	right
	to 	further 	negotiations
	for
	1976-77
"except 	in 	cases
	where
	the
	District
	has
	initiated
	change
Paragraph 	D.8,
	the 	"zipper"
	clause,
	in
	which
	the 	Association
	waives
the
	right
	to 	negotiate
	on
	any
	matter
	whether 	or 	not 	covered 	in 	the
agreement,
	is
	expressly
	made
	subject 	to 	the 	proviso
	that 	"[f]
	or
1976-77 this article shall not negate item C. ." Paragraph A also
provides
	that
	there 	will
	be 	no
	further 	negotiations
	for
	1976-77
except
	as 	might 	occur
	under
	paragraph
	C.
	Paragraph
	A
further
contains
	a
	list
	of 	regulations	
which	
the
	District
	agreed 	not 	to
change. 	Omitted
	from
	the
	regulations
	on
	the
	list
	affecting
	hours
	is
Regulation
	6112
	concerning 	the
	instructional
	day.
The parties entered into a collective negotiations
Witnesses 	for 	both
	parties 	testified 	that
	it
	was
agreed
	that
	the 	dispute 	concerning
	negotiability
	of 	the
	instruc-
tional
	day 	would 	be
	submitted 	to 	the
	EERB
	for 	determination.
Dr. 	David
	Shapiro, 	the
	District's
	associate 	superintendent
	and
negotiator, 	further 	testified 	that 	if
	the
	EERB
	rules 	that
	the
instructional
	day
	is 	within 	the 	scope 	of 	representation, 	the
Witnesses for both parties testified that it was
4
agreement on February 1, 1977 to continue in effect through June 30,
1977 and thereafter until written notification by one of the
parties. Although negotiations for the following school year began
soon after this agreement was signed, there is no evidence that the
parties treated the negotiations as a rescission of their previous
agreement. There being no evidence of a successor agreement, in
this opinion it will be presumed that the parties' February 1, 1977
agreement still was in effect. In paragraph C of the Agreement, the
Association waived the right to further negotiations for 1976-77
"except in cases where the District has initiated change . . .
Paragraph D. 8, the "zipper" clause, in which the Association waives
the right to negotiate on any matter whether or not covered in the
agreement, is expressly made subject to the proviso that "[fl or
1976-77
	this 	article
	shall
	not 	negate 	item	
c
•.
"	
Paragraph
	A
also
provides that there will be no further negotiations for 1976-77
except as might occur under paragraph C. Paragraph A further
contains a list of regulations which the District agreed not to
change. Omitted from the regulations on the list affecting hours is
Regulation 6112 concerning the instructional day.
agreed that the dispute concerning negotiability of the instruc-
tional day would be submitted to the EERB for determination.
Dr. David Shapiro, the District's associate superintendent and
negotiator, further testified that if the EERB rules that the
instructional day is within the scope of representation, the

above-quoted
	"reopener"
	provision
	of 	the
	agreement
	could
	be
	utilized
by
	the 	Association
	to 	negotiate
	the
	instructional
	day. 	This
understanding
	is
	memorialized
	in
	a
	March
	8,
	1977
	memorandum
	from
Dr.
	Shapiro
	to
	Mr.
	John
	Secor, 	the
	Association's
	executive
	direc-
tor.
	This
	memorandum
	also
	states
	that
	the
	Association
	could
negotiate
	the
	instructional
	day
	if
	it
	became
	common,
	statewide
practice
	to
	do
	so.
above-quoted "reopener" provision of the agreement could be utilized
practice to do so.
B.
	Instructional
	Day,
	Teacher
	Preparation
	and
	Rest
	Time	B.
In
	addition 	to
	the 	increase
	in 	the
	instructional
	day
effective
	January
	1,
	1977,
	on
	April
	19,
	1977
	the 	school
	board
unilaterally
	adopted
	a
	further 	increase
	in 	the
	instructional
	day
	to
be
	effective 	at
	the
	start
	of 	school 	in
	September, 	1977. 	The	
The
Association
	had 	ample
	notice 	of 	the 	increase
	prior
	to
	its
	adoption.
The
	reason 	for 	these 	increases 	in
	instructional
	day
	was
	parental
concern
	that
	the
	District's
	instructional
	day
	was
	the
	shortest
	among
the 	school
	districts
	in 	the
	County.
	At 	Audubon
	school,
	this
	second
increase 	in 	the
	instructional
	day
	will
	eliminate
	teachers'
	Wednesday
afternoon 	planning 	time.
In addition to the increase in the instructional day
The
	lengthened
	instructional
	day 	would
	increase
Audubon
	teachers
1
	workday 	by
	five
	minutes
	if
	they 	are 	required 	to
	be
at
	school
	30
	minutes 	before
	and
	after
	the 	students
	as 	provided 	in
District
	policy.
	However,
	District
	policy 	allows 	school
	principals
to 	vary
	this
	30
	minute 	requirement
	and
	principals
	have 	been
	directed
not 	to 	exceed
	a
	7-1/4 	hour 	workday
	for 	teachers 	in 	the 	1977-78
school 	year.
The lengthened instructional day would increase
Throughout 	the 	1976-77 	negotiations 	between 	the
parties,
	and 	continuing 	to 	the 	date 	of 	hearing, 	the 	parties
Throughout the 1976-77 negotiations between the
55
by the Association to negotiate the instructional day. This
understanding is memorialized in a March 8, 1977 memorandum from
Dr. Shapiro to Mr. John Secor, the Association's executive direc-
tor . 	This memorandum also states that the Association could
negotiate the instructional day if it became common, statewide
Instructional Day, Teacher Preparation and Rest Time
effective January 1, 1977, on April 19, 1977 the school board
unilaterally adopted a further increase in the instructional day to
be effective at the start of school in September, 1977.
Association had ample notice of the increase prior to its adoption.
The reason for these increases in instructional day was parental
concern that the District's instructional day was the shortest among
the school districts in the County. At Audubon school, this second
increase in the instructional day will eliminate teachers' Wednesday
afternoon planning time.
Audubon teachers' workday by five minutes if they are required to be
at school 30 minutes before and after the students as provided in
District policy. However, District policy allows school principals
to vary this 30 minute requirement and principals have been directed
not to exceed a 7-1/4 hour workday for teachers in the 1977-78
school year .
parties, and continuing to the date of hearing, the parties

stipulated 	that
	the
	Association
	has
	taken 	the
	position
	that
	the
length
	of 	the
	instructional
	day
	is
	negotiable,
	while
	the
	District
took
	the
	position
	in 	the
	1976-77
	negotiations
	that
	the
	instructional
day
	was
	non-negotiable.
stipulated that the Association has taken the position that the
Negotiations 	for
	1977-78
	commenced
	soon
	after
	the
signing
	of 	the
	1976-77 	agreement
	on
	February
	1,
	1977.
	In
	the
1977-78
	negotiations
	the
	Association
	has 	asked
	for 	not
	less
	than
one 	hour
	daily
	to
	be
	used
	exclusively
	for 	lesson
	planning
	and
preparation
	and
	related
	teaching
	duties. 	The Association addition-	
The
	Association
	addition-
ally
	asked
	for
	twenty 	minute
	"rest
	periods" 	for
	each
	two
	hours
	of
student
	instructional
	time.
	The
	District's
	third
	counter-proposal
on
	"hours" 	provided
	in
	pertinent 	part 	that 	"[d]aily
	time
	in
	excess
of
	instructional
	and
	other
	duty
	time
	is
	designated 	for
	unit
	member
use,"
	and
	that
	teachers
	will
	not
	be
	required 	to
	work 	more
	than
	two
hours 	without
	a
	"break 	for 	personal 	needs."
	In 	the 	middle
	schools
(grades
	7-8), 	the
	District
	proposed
	that
	the 	student 	passing
	time
between
	periods
	would
	constitute 	this
	break.
	It
	proposed
	no
	spe-
cific
	rest
	time
	for 	teachers 	in 	grades
	K-6. 	Under
	the
	District's
proposal, 	teachers 	could
	use
	the 	"excess"
	time
	for
	preparation 	if
they 	wish.
Negotiations for 1977-78 commenced soon after the
With
	respect 	to 	the
	instructional
	day
	issue
	in 	the
1977-78
	negotiations, 	the 	Association
	initially
	adopted
	its
	proposal
from
	the 	year 	before
	which
	specified
	the
	number
	of 	minutes 	of
"instructional
	duty 	time" 	for 	teachers 	in 	the 	various 	grade
	levels.
The
	District's 	initial
	counterproposal
	on
	"hours" 	did 	not 	respond 	to
the 	"instructional 	duty 	time" 	issue,
	nor 	do 	any 	of
	its 	later
	propo-
sals.
	On 	March 	8, 	1977, 	the 	District 	stated 	its 	negotiations
With respect to the instructional day issue in the
6
length of the instructional day is negotiable, while the District
took the position in the 1976-77 negotiations that the instructional
day was non-negotiable.
signing of the 1976-77 agreement on February 1, 1977. In the
1977-78 negotiations the Association has asked for not less than
one hour daily to be used exclusively for lesson planning and
preparation and related teaching duties.
ally asked for twenty minute "rest periods" for each two hours of
student instructional time. The District's third counter-proposal
on "hours" provided in pertinent part that "[djaily time in excess
of instructional and other duty time is designated for unit member
use," and that teachers will not be required to work more than two
hours without a "break for personal needs." In the middle schools
(grades 7-8), the District proposed that the student passing time
between periods would constitute this break. It proposed no spe-
cific rest time for teachers in grades K-6. Under the District's
proposal, teachers could use the "excess" time for preparation if
they wish.
1977-78 negotiations, the Association initially adopted its proposal
from the year before which specified the number of minutes of
"instructional duty time" for teachers in the various grade levels.
The District's initial counterproposal on "hours" did not respond to
the "instructional duty time" issue, nor do any of its later propo-
sals. On March 8, 1977, the District stated its negotiations

position 	that
	the
	instructional
	day
	was
	non-negotiable.
	There
	are
two
	further
	Association
	negotiations
	proposals 	in 	evidence,
respectively
	dated 	February
	24
	and
	June 	28, 	1977.
	Neither
	one
contains
	a
	proposal
	on
	"instructional
	duty
	time"
	or 	the
	instruct-
ional
	day,
	nor
	is
	there
	evidence
	in 	the 	record 	of
	negotiations
	for
1977-78
	on
	this 	specific
	item.
	To
	the
	date 	of 	the
	hearing,
	no
further 	negotiations
	proposals
	were
	made 	by
	the
	parties.
position that the instructional day was non-negotiable. There are
In
	negotiations,
	both
	parties
	agreed
	that
	the
teachers'
	workday
	should
	be
	7-1/4
	hours
	and
	that
	the
	duties
	of
	a
teacher,
	including 	lesson 	preparation
	and
	planning,
	require
	more
than 	7-1/4
	hours 	per 	day.
	There
	is
	an
	inverse
	relationship
	between
the
	instructional	
day	
and
	teachers'
	"excess"
	time
	during 	the
	workday.
In negotiations, both parties agreed that the
DISCUSSION
	AND
	CONCLUSIONS 	OF
	LAW	DISCUSSION AND CONCLUSIONS OF LAW
1. 	Reservation 	of 	the
	negotiability
	of 	the
	instructional
	day
	in 	the
1976-77
	collective
	negotiations
	agreement.
1
Construing 	the
	parties'
	February
	1,
	1977
	collective
negotiations
	agreement
	in
	light
	of 	the 	testimony 	presented	
by	
both
parties,
Construing the parties' February 1, 1977 collective
4
it
	is
	apparent
	that
	the 	Association 	reserved 	the
	right
to
	reopen
	negotiations
	on 	any
	subject 	in
	which
	the
	District
initiated
	change
	effective
	in 	the
	1976-77
	school 	year. 	The	
The
unilateral
	modification
	by
	the
	District
	of 	Policy
	and
	Regulation
parties," it is apparent that the Association reserved the right
7
4
*
Although
	Section 	3541.S(b)
	prohibits
	the
	EERB
	from
	enforcing
agreements 	between 	the
	parties,
	by
	analogy
	to 	National 	Labor
Relations
	Act
	precedent
	this
	Board
	may
	construe
	a
	collective
negotiations 	agreement 	where
	necessary 	to 	the 	determination 	of 	an
unfair 	practice 	charge.
	NLRB
	v.
	C & C Plywood 	Corp. 	(1967) 	385
	U.S.
421, 	64
	LRRM
	2065.
Although Section 3541.5(b) prohibits the EERB from enforcing
7
two further Association negotiations proposals in evidence,
respectively dated February 24 and June 28, 1977. Neither one
contains a proposal on "instructional duty time" or the instruct-
ional day, nor is there evidence in the record of negotiations for
1977-78 on this specific item. To the date of the hearing, no
further negotiations proposals were made by the parties.
teachers' workday should be 7-1/4 hours and that the duties of a
teacher, including lesson preparation and planning, require more
than 7-1/4 hours per day. There is an inverse relationship between
the instructional day and teachers' "excess" time during the workday.
. 	Reservation of the negotiability of the instructional day in the
1976-77 collective negotiations agreement.
negotiations agreement in light of the testimony presented by both
to reopen negotiations on any subject in which the District
initiated change effective in the 1976-77 school year .
unilateral modification by the District of Policy and Regulation
agreements between the parties, by analogy to National Labor
Relations Act precedent this Board may construe a collective
negotiations agreement where necessary to the determination of an
unfair practice charge. NLRB v. C & C Plywood Corp. (1967) 385 U.S.
421, 64 LRRM 2065.

6112
	to
	lengthen 	the
	instructional
	day
	is
	one
	such
	change. 	The	
The
intent
	of 	the
	parties
	was
	that
	if
	the
	instructional
	day
	eventually
was
	found
	to
	be
	negotiable,
	the
	collective
	negotiations
	agreement
would
	not 	bar
	the 	Association
	from
	requesting 	to
	negotiate
	the
subject.
6112 to lengthen the instructional day is one such change.
In
	view
	of 	the
	circumstances,
	it
	would 	be
	contrary 	to
the
	parties'
	understanding
	and
	inherently 	unfair 	to
	hold
	that
	the
issue
	concerning 	the
	District's
	January
	1,
	1977
	unilateral
	change
	in
the
	instructional
	day
	is
	mooted
	by
	the
	parties'
	collective
	negotia-
tions
	agreement.
In view of the circumstances, it would be contrary to
2. The unilateral increases in the instructional day and related	
The
	unilateral
	increases
	in 	the
	instructional
	day 	and
	related
negotiations.	
negotiations.
Since 	the
	instructional
	day
	is
	not
	specifically
enumerated
	in§
	3543.2
	as 	within 	the
	scope
	of
	representation,
	it
	is
negotiable
	only
	if
	it
	is
	a
	"matter
	relating
	to"
	an
	enumerated
	item.
In
	this
	case,
	"hours 	of
	employment" 	seems
	to
	be
	the 	only
	likely
candidate.
Since the instructional day is not specifically
Decisions
	from
	other
	jurisdictions 	offer
	little
guidance.
	There
	is
	no
	analogue
	to 	instructional
	day
	in
	private
industry.
	In 	other
	states
	in
	which
	decisions 	relating
	to 	the
subject 	matter
	at 	issue
	have 	been 	found, 	the
	definitions 	of
	the
scope 	of 	representation
	do
	not
	limit
	terms 	or 	conditions 	of
employment
	to 	certain
	enumerated 	items 	as
	does§
	3543.2.
Accordingly, 	these 	states
	have
	little
	trouble 	determining
	that
instructional 	or 	preparation 	time 	are 	related 	generally 	to
	terms 	or
Decisions from other jurisdictions offer little
Co	8
intent of the parties was that if the instructional day eventually
was found to be negotiable, the collective negotiations agreement
would not bar the Association from requesting to negotiate the
subject.
the parties' understanding and inherently unfair to hold that the
issue concerning the District's January 1, 1977 unilateral change in
the instructional day is mooted by the parties' collective negotia-
tions agreement.
enumerated in $ 3543.2 as within the scope of representation, it is
negotiable only if it is a "matter relating to" an enumerated item.
In this case, "hours of employment" seems to be the only likely
candidate.
guidance. 	There is no analogue to instructional day in private
industry. In other states in which decisions relating to the
subject matter at issue have been found, the definitions of the
scope of representation do not limit terms or conditions of
employment to certain enumerated items as does $ 3543.2.
Accordingly, these states have little trouble determining that
instructional or preparation time are related generally to terms or

conditions 	of 	employment. 	See, 	e.g., 	Nazareth 	Area 	Education
Association 	(Pa. 	1972) 	2 	PPER 	194; 	Springfield 	Education 	Association
v. 	Springfield 	School 	District, 	et 	al. 	(Oregon 	1976) 	547 	P.2d 	647,
92 	LRRM 	2583; 	West 	Hartford 	Education 	Association 	v. 	De 	Courcy
(Conn. 	1972) 	295 	A.2d 	526, 	80 	LRRM 	2422, 	at 	2430; 	Clark 	County
School 	District 	v. 	Local 	Government 	Employee-Management 	Relations
Board 	(Nev. 	1974) 	530 	P.2d 	114, 	88 	LRRM 	2774. 	In 	the 	Connecticut
and 	Nevada 	cases, 	the 	state 	supreme 	courts 	also 	held 	"teacher 	load"
(essentially 	class 	plus 	preparation 	time) 	to 	be 	negotiable.
conditions of employment. See, e.g. , Nazareth Area Education
5
(essentially class plus preparation time) to be negotiable.
However, 	some 	states 	hold 	these 	items 	to 	be
non-negotiable 	because 	they 	involve 	educational 	policy 	and 	therefore
are 	a 	matter 	of 	management 	prerogative. 	Nazareth 	Area 	Education
Association, 	supra; 	Springfield 	Education 	Association 	v. 	Springfield
School 	District, 	et 	al., 	supra; 	Somers 	Faculty 	Association 	v. 	Somers
Central 	School 	District 	(N.Y. 	1976) 	9 	PERB 	3022, 	at 	3023; 	Oak 	Creek
Education 	Association 	v. 	Wisconsin 	Employment 	Relations 	Commission
(Wisc. 	1975) 	91 	LRRM 	2821, 	at 	2824.
However, some states hold these items to be
Even 	though 	the 	instructional 	day 	and 	preparation
time 	may 	be 	matters 	of 	educational 	policy, 	it 	must 	be 	recognized
that 	they 	nevertheless 	may 	have 	an 	effect 	on 	a 	negotiable 	item 	such
Even though the instructional day and preparation
5
See also, Pasco County School Board (Fla. 1976) 3 FPER 9, at
14-15, 	which 	held 	"planning 	days" 	to 	be 	negotiable, 	and 	Town 	of
Arlington 	and 	IAFF, 	Local 	297 	(Mass. 	1976) 	3 MLC 	1263, 	a 	hearing
officer decision holding that rearrangement of the work day of fire
alarm 	operators, 	without 	changing 	the 	starting 	or 	ending 	times, 	is
a 	change 	in 	"hours" 	and 	therefore 	negotiable.
see
9
Association (Pa. 1972) 2 PPER 194; Springfield Education Association
v. Springfield School District, et al. (Oregon 1976) 547 P. 2d 647,
92 LRRM 2583; West Hartford Education Association v. De Courcy
(Conn. 1972) 295 A. 2d 526, 80 LRRM 2422, at 2430; Clark County
School District v. Local Government Employee-Management Relations
Board (Nev. 1974) 530 P. 2d 114, 88 LRRM 2774. In the Connecticut
and Nevada cases, the state supreme courts also held "teacher load"
non-negotiable because they involve educational policy and therefore
are a matter of management prerogative. Nazareth Area Education
Association, supra; Springfield Education Association v. Springfield
School District, et al. , supra; Somers Faculty Association v. Somers
Central School District (N.Y. 1976) 9 PERB 3022, at 3023; Oak Creek
Education Association v. Wisconsin Employment Relations Commission
(Wisc. 1975) 91 LRRM 2821, at 2824.
time may be matters of educational policy, it must be recognized
that they nevertheless may have an effect on a negotiable item such
also, 	Pasco 	County 	School 	Board 	(Fla. 	1976) 	3 	FPER 	9, 	at
14-15, which held "planning days" to be negotiable, and Town of
Arlington and IAFF, Local 297 (Mass. 1976) 3 MLC 1263, a hearing
o-ricer 	decision 	ho 	ding 	tat 	rearrangement 	of 	the 	work 	day 	of 	fire
alarm operators, without changing the starting or ending times, is
a change in "hours" and therefore negotiable.

as 	hours. 	Thus, 	in 	State 	of 	New 	Jersey 	(Stockton 	State 	College)
(1977) 	3 	NJPER 	62, 	and 	in West 	Irondequoit 	Board 	of 	Education 	(N.Y.
1971) 	4 	PERB 	3725, 	although 	changes 	in 	student 	class 	hours 	and 	class
size 	respectively 	were 	said 	to 	be 	non-negotiable, 	it 	was 	held 	in
both 	cases 	that 	the 	impact 	of 	the 	changes 	on 	negotiable 	items 	had 	to
be 	negotiated. 	See 	also, 	Oak 	Creek 	Education 	Association 	v.
Wisconsin 	Employment 	Relations 	Commission, 	supra.
as hours. Thus, in State of New Jersey (Stockton State College)
In 	the 	present 	case, 	both 	parties 	agree 	that 	teaching
duties, 	including 	lesson 	planning 	and 	preparation, 	require 	more 	time
than 	the 	teachers' 	7-1/4 	hour 	workday. 	This 	being 	the 	case, 	any-
thing 	which 	decreases 	the 	time 	during 	the 	workday 	which 	teachers 	can
use 	for 	preparation 	(such 	as 	an 	increase 	in 	the 	instructional 	day),
will 	increase 	the 	amount 	of 	time 	teachers 	must 	spend 	on 	work-related
duties 	beyond 	the 	7-1/4 	hour 	workday.
In the present case, both parties agree that teaching
Although 	the 	teachers' 	workday 	in 	this 	case 	nominally
is 	7-1/4 	hours, 	their 	real 	workday 	is 	longer 	and 	includes 	time 	spent
in 	preparation 	outside 	of 	the 	7-1/4 	hours. 	Therefore, 	an 	increase
in 	the 	instructional 	day, 	which 	in 	this 	case 	decreased 	in-school
preparation 	time 	at 	least 	for 	some 	teachers, 	has 	the 	effect 	of
increasing 	the 	actual 	number 	of 	hours 	of 	work 	for 	these 	teachers.
Accordingly, 	it 	is 	found 	that 	in 	this 	case 	the 	District 	violated 	its
duty 	to 	negotiate 	in 	good 	faith 	under§ 	3543.S(c) 	by 	its 	unilateral
change 	in 	the 	instructional 	day 	for 	the 	1976-77 	school 	year 	in 	that
this 	change 	had 	an 	impact 	on 	teachers' 	working 	hours, 	and 	therefore
is 	a 	matter 	relating 	to 	"hours 	of 	employment," 	a 	negotiable 	subject
under§ 	3543.2.
Although the teachers' workday in this case nominally
10	10
(1977) 3 NJPER 62, and in West Irondequoit Board of Education (N. Y.
1971) 4 PERB 3725, although changes in student class hours and class
size respectively were said to be non-negotiable, it was held in
both cases that the impact of the changes on negotiable items had to
be negotiated. See also, Oak Creek Education Association v.
Wisconsin Employment Relations Commission, supra.
duties, including lesson planning and preparation, require more time
than the teachers' 7-1/4 hour workday. This being the case, any-
thing which decreases the time during the workday which teachers can
use for preparation (such as an increase in the instructional day) ,
will increase the amount of time teachers must spend on work-related
duties beyond the 7-1/4 hour workday.
is 7-1/4 hours, their real workday is longer and includes time spent
in preparation outside of the 7-1/4 hours. Therefore, an increase
in the instructional day, which in this case decreased in-school
preparation time at least for some teachers, has the effect of
increasing the actual number of hours of work for these teachers.
Accordingly, it is found that in this case the District violated its
duty to negotiate in good faith under $ 3543.5(c) by its unilateral
change in the instructional day for the 1976-77 school year in that
this change had an impact on teachers' working hours, and therefore
is a matter relating to "hours of employment, " a negotiable subject
under $ 3543.2.

It
	follows
	that
	the
	District
	further 	violated
	its
duty
	to 	negotiate
	in
	good
	faith
	by
	refusing 	to
	negotiate
	the
instructional	
day	
upon
	the
	Association's
	request
	during 	the
	1976-77
negotiations.
It follows that the District further violated its
Turning
	to
	the
	instructional
	day
	issue
	in 	the
	1977-78
negotiations,
	it
	seems
	that
	although 	the 	Association
	initially
	made
a
	proposal
	on
	the
	subject,
	it
	dropped
	all
	reference 	to
	the
	instruc-
tional
	day
	in
	its
	subsequent
	negotiations 	proposals.
	The
	record
	is
silent
	concerning 	the 	circumstances
	or 	reasons 	for
	this
	negotiations
change.
	Under
	these 	circumstances,
	although 	the 	Association
	argues
the 	issue 	in
	its
	brief,
	there
	is 	insufficient
	evidence
	to
	determine
whether
	in 	the
	1977-78
	negotiations
	the
	District
	negotiated
	in
	good
faith
	concerning 	the
	instructional
	day. 	Since
	the 	Association
	has
the
	burden
	of 	proof
	(Cal.
	Admin.
	Code,
	Tit.
	8,
	§
	35027)
	its
	charge
must
	fail
	on
	this
	point.
Turning to the instructional day issue in the 1977-78
With
	respect 	to
	the
	second
	unilateral
	increase 	in
	the
instructional
	day, 	adopted
	by
	the
	District
	on
	April 	19,
	1977
	to
	be
effective 	at
	the
	start
	of 	school 	the 	following 	September,
	it
	is
noted
	that
	it
	came
	after
	the 	Association
	dropped
	its
	negotiations
proposal 	concerning 	the
	instructional
	day. 	Although
	it	
knew	
of 	the
proposed
	increase, 	there
	is
	no
	evidence
	that
	the 	Association
requested 	to 	negotiate 	the 	matter 	prior 	to
	its
	adoption 	or
	implemen-
tation.
	Even 	where
	the
	employee
	organization 	protests 	the
employer's 	proposed
	unilateral 	action
	and
	files
	an
	unfair 	labor
practice 	charge, 	the
	NLRB
	has 	held 	that 	failure 	to 	request 	to
negotiate 	the 	matter 	constitutes
	a
	waiver 	of
	its 	statutory 	rights.
With respect to the second unilateral increase in the
11	11
duty to negotiate in good faith by refusing to negotiate the
instructional day upon the Association's request during the 1976-77
negotiations.
negotiations, it seems that although the Association initially made
a proposal on the subject, it dropped all reference to the instruc-
tional day in its subsequent negotiations proposals. The record is
silent concerning the circumstances or reasons for this negotiations
change. Under these circumstances, although the Association argues
the issue in its brief, there is insufficient evidence to determine
whether in the 1977-78 negotiations the District negotiated in good
faith concerning the instructional day. Since the Association has
the burden of proof (Cal. Admin. Code, Tit. 8, $ 35027) its charge
must fail on this point.
instructional day, adopted by the District on April 19, 1977 to be
effective at the start of school the following September, it is
noted that it came after the Association dropped its negotiations
proposal concerning the instructional day. Although it knew of the
proposed increase, there is no evidence that the Association
requested to negotiate the matter prior to its adoption or implemen
tation. Even where the employee organization protests the
employer's proposed unilateral action and files an unfair labor
practice charge, the NLRB has held that failure to request to
negotiate the matter constitutes a waiver of its statutory rights.

American
	Busline, 	Inc.
	(1967) 	164
	NLRB
	1055,
	65
	LRRM
	1265,
Medicenter
	Mid-South
	Hospital
	(1975)
	221
	NLRB
	670,
	90
	LRRM
	1576.
American Busline, Inc. (1967) 164 NLRB 1055, 65 LRRM 1265,
In
	the
	present 	case,
	however,
	it
	would
	have 	been
futile
	for 	the 	Association
	to 	request 	to 	negotiate.
	Throughout
	the
current
	and
	previous
	negotiations,
	the
	District
	continuously
	took
the
	position 	that
	the
	instructional
	day
	was
	non-negotiable,
	and
	in
the
	March
	8,
	1977
	memorandum
	referred
	to
	in 	the 	Findings
	of 	Fact,
the
	District
	stated
	it
	would
	not
	alter
	its
	position
	except
	upon
	an
EERB
	decision
	or
	contrary
	statewide
	practice.
	Previously,
	the
District
	had
	taken
	similar
	unilateral
	action
	in 	the 	face 	of 	the
Association's
	request 	to
	negotiate.
	The
	situation 	is
	analogous
	to
the
	statutorily-provided
	"futility"
	exception
	to
	the 	requirement
	of
exhaustion 	of 	the
	contract
	grievance 	procedure
	prior
	to
	initiating
unfair 	practice
	proceedings.
	(See§
	3541.S(a)
.)
	Under
	the 	circum-
stances,
	the
	Association
cannot
	be
	blamed
	for
	its
	failure
	to 	request
to 	negotiate 	the
	instructional
	day
	increase.
In the present case, however, it would have been
Furthermore, 	the
	District
	did 	not
	raise 	this
	issue 	of
waiver
	in
	its
	Answers
	to
	either
	the
	original
	charge 	or 	the
	amend-
ment, 	or
	at
	the 	hearing 	or 	in
	its
	brief.
	"Waiver"
	is
	an
	affirmative
defense,
	which
	if
	not
	raised, 	is
	itself
	waived.
	Witkin, 	Cal.
Procedure 	2d,
	§
	945,
	p.
	2525.
Furthermore, the District did not raise this issue of
3. 	Teacher
	preparation
	time 	as
	an 	item
	of 	negotiations.	3.
As
	previously 	indicated,
	both
	parties
	agree
	that
teachers' 	duties, 	including 	preparation, 	require
	more
	time 	than
	is
available 	in 	the 	7-1/4 	hour 	workday. 	Thus, 	as 	previously 	discussed,
increasing 	teacher 	preparation 	time 	during 	the 	workday
	effectively
As previously indicated, both parties agree that
12	12
Medicenter Mid-South Hospital (1975) 221 NLRB 670, 90 LRRM 1576.
futile for the Association to request to negotiate. Throughout the
current and previous negotiations, the District continuously took
the position that the instructional day was non-negotiable, and in
the March 8, 1977 memorandum referred to in the Findings of Fact,
the District stated it would not alter its position except upon an
EERB decision or contrary statewide practice. Previously, the
District had taken similar unilateral action in the face of the
Association's request to negotiate. The situation is analogous to
the statutorily-provided "futility" exception to the requirement of
exhaustion of the contract grievance procedure prior to initiating
unfair practice proceedings. (See $ 3541.5(a) .) Under the circum-
stances, the Association cannot be blamed for its failure to request
to negotiate the instructional day increase.
waiver in its Answers to either the original charge or the amend-
ment, or at the hearing or in its brief. 	"Waiver" is an affirmative
defense, which if not raised, is itself waived. Witkin, Cal.
Procedure 2d, $ 945, p. 2525.
Teacher preparation time as an item of negotiations.
teachers' duties, including preparation, require more time than is
available in the 7-1/4 hour workday. Thus, as previously discussed,
increasing teacher preparation time during the workday effectively

would 	reduce 	the 	total 	number 	of 	actual 	hours 	during 	the 	day 	that
teachers 	are 	required 	to 	spend 	on 	work-related 	duties, 	and
vice-versa. 	Therefore, 	under 	the 	facts 	in 	this 	case, 	preparation
time 	is 	a 	matter 	related 	to 	hours 	of 	employi:nent 	and 	is 	a 	negotiable
item 	within 	the 	scope 	of 	representation 	(§ 	3543.2).
would reduce the total number of actual hours during the day that
However, 	although 	the 	District 	contends 	that 	prepara-
tion 	time 	is 	non-negotiable, 	it 	also 	argues 	that 	it 	has 	satisfied
its 	obligation 	to 	negotiate 	in 	good 	faith 	by 	its 	proposal 	that
unassigned 	time 	during 	the 	schoolday 	could 	be 	used 	by 	teachers 	as
they 	see 	fit. 	But 	this 	really 	is 	a 	proposal 	of 	no 	real 	significance
in 	that 	it 	merely 	states 	the 	obvious, 	i.e., 	when 	the 	District 	has
not 	assigned 	duties 	to 	a 	teacher, 	the 	teacher 	has 	unassigned 	time 	at
his 	or 	her 	disposal. 	It 	does 	not 	address 	the 	issue 	properly 	placed
on 	the 	table 	by 	the 	Association 	of 	a 	set 	amount 	of 	preparation 	time
during 	the 	workday 	not 	subject 	to 	other 	duty 	assignments 	by 	the
District. 	Under 	the 	District's 	proposal, 	it 	theoretically 	could
fill 	the 	entire 	7-1/4 	hour 	workday 	with 	duty 	assignments, 	leaving 	no
time 	for 	preparation. 	The 	amount 	of 	time 	available 	for 	preparation
thus 	would 	remain 	entirely 	within 	the 	District's 	discretion 	and
really 	would 	be 	no 	different 	from 	the 	situation 	which 	obtained 	prior
to 	negotiations.
However, although the District contends that prepara-
The 	District 	also 	urges 	that 	is 	is 	premature 	to 	judge
whether 	it 	has 	negotiated 	in 	good 	faith 	because 	at 	the 	time 	of 	the
hearing, 	negotiations 	were 	still 	in 	progress 	and 	the 	parties'
negotiations 	positions 	could 	be 	changed 	at 	a 	later 	date. 	But 	at 	the
time 	of 	the 	hearing 	the 	parties 	already 	had 	been 	in 	negotiations
The District also urges that is is premature to judge
13	13
teachers are required to spend on work-related duties, and
vice-versa. 	Therefore, under the facts in this case, preparation
time is a matter related to hours of employment and is a negotiable
item within the scope of representation ($ 3543.2) .
tion time is non-negotiable, it also argues that it has satisfied
its obligation to negotiate in good faith by its proposal that
unassigned time during the schoolday could be used by teachers as
they see fit. But this really is a proposal of no real significance
in that it merely states the obvious, i.e. , when the District has
not assigned duties to a teacher, the teacher has unassigned time at
his or her disposal. It does not address the issue properly placed
on the table by the Association of a set amount of preparation time
during the workday not subject to other duty assignments by the
District. Under the District's proposal, it theoretically could
fill the entire 7-1/4 hour workday with duty assignments, leaving no
time for preparation. The amount of time available for preparation
thus would remain entirely within the District's discretion and
really would be no different from the situation which obtained prior
to negotiations.
whether it has negotiated in good faith because at the time of the
hearing, negotiations were still in progress and the parties'
negotiations positions could be changed at a later date. But at the
time of the hearing the parties already had been in negotiations

almost
	six
	months.
	The
	District's
	"unassigned
	time"
	proposal
	was
made
	only
	three
	weeks
	before 	the 	hearing
	and, 	as
	just
	discussed,
	was
not
	a
	substantive
	change
	in 	the
	District's
	position.
	It
	is
	apparent
that
	since 	the
	District
	never
	changed
	its
	position
	that
	the
	instruc-
tional
	day
	is
	non-negotiable,
	it
	could 	not
	make
	a
	more
	meaningful
proposal
	on
	preparation
	time
	as
	such
	a
	proposal
	would
	infringe
	on
its
	claimed
	right
	to
	make
	unilateral
	changes
	in 	the
	instructional
day.
almost six months.
Accordingly,
	it
	is
	found
	that
	under
	the 	circumstances
of
	this
	case, 	preparation
	time
	is
	negotiable,
	the
	District
	has
failed
	to 	negotiate
	this
	subject
	in
	good
	faith,
	and
	therefore
	it
	has
violated $ 3543.5(c) .
Accordingly, it is found that under the circumstances
4.
	Teachers'
	rest
	time 	as
	an
	item
of
negotiations.	4.
There
	is
	evidence 	as
	to 	the
	specific
	uses 	proposed
for
	this
	time.
	The
	hearing
	officer
	presumes
	that
	it
	would
	be
reserved 	for
	teachers' 	personal, 	rather
	than
	work-related,
	needs.
There is evidence as to the specific uses proposed
Both
	parties
	have
	made
	negotiations 	proposals
	on
teachers' 	rest
	time, 	but 	the 	Association
	alleges 	that
	the
	District
has 	not 	negotiated
	the
	subject 	in
	good
	faith. 	However , the hearing	
However,
	the 	hearing
officer
	finds
	that
	it
	is
	first
	necessary 	to 	determine 	whether
	it
has 	been 	demonstrated
	that 	rest 	is
	a
	negotiable 	subject
this
	case.
	Even
	though 	no
	party 	raises
	the 	issue,
	§
	3543.2
prohibits
	negot
	on 	any
	ect 	not
	cifically
	enumerated
as 	within 	the 	scope
	of 	representation. 	Therefore, 	even 	though
the 	parties
	do
	not 	raise 	the 	issue,
	it
	would 	be
	inconsistent with
this 	clear 	statutory
	mandate, 	and would not 	"effectuate 	the 	policies
of 	[the
	EERA]" 	(§
	3541.S(c)), 	for 	the
	PERB
	to 	order
	a
	party 	to
negotiate 	in 	good 	faith 	over 	a
	non-negotiable 	item.
Both parties have made negotiations proposals on
14	14
The District's "unassigned time" proposal was
made only three weeks before the hearing and, as just discussed, was
not a substantive change in the District's position. It is apparent
that since the District never changed its position that the instruc-
tional day is non-negotiable, it could not make a more meaningful
proposal on preparation time as such a proposal would infringe on
its claimed right to make unilateral changes in the instructional
day .
of this case, preparation time is negotiable, the District has
failed to negotiate this subject in good faith, and therefore it has
violated§
	3543.S(c).
Teachers' rest time as an item of negotiations.
for this time. 	The hearing officer presumes that it would be
reserved for teachers' personal, rather than work-related, needs.
teachers' rest time, but the Association alleges that the District
has not negotiated the subject in good faith.
officer finds that it is first necessary to determine whether it
has been demonstrated that rest time is a negotiable subject in
this case. Even though no party raises the issue, $ 3543.2
prohibits negotiations on any subject not specifically enumerated
as within the scope of representation. 	Therefore, even though
the parties do not raise the issue, it would be inconsistent with
this clear statutory mandate, and would not "effectuate the policies
of [ the EERA]" ($ 3541.5(c)), for the PERB to order a party to
negotiate in good faith over a non-negotiable item.

It may be 	that 	arguments 	could 	be made 	relating
teacher 	rest 	time 	to 	"safety 	conditions 	of 	employment," 	or 	other
negotiable 	subjects 	under§ 	3543.2. 	In 	the 	present 	case, 	the
Association 	seeks 	to 	relate 	rest 	time 	only 	to 	teachers' 	"hours
of employment." But in this case the evidence is insufficient
to 	show how 	the 	amount 	of 	rest 	time 	for 	teachers 	might 	be 	related
to 	hours 	of 	employment. 	Since 	the 	Association has 	the 	burden 	of
proof, 	Cal. 	Administrative 	Code, 	Title 	8, 	§35027, 	and 	it 	has 	not
been 	shown 	that 	rest 	time 	is 	related 	to 	a 	negotiable 	subject 	under
$ 3543.2, the hearing officer declines to determine whether the
District 	negotiated 	in 	good 	faith 	on 	this 	item.
It may be that arguments could be made relating
RECOMMENDED ORDER	RECOMMENDED ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law 	and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	Government
Code $ 3541.5 (c) , it is hereby ordered that the San Mateo City
School 	District, 	its 	governing 	board, 	superintendent 	and 	other
representatives 	shall:
Upon the foregoing findings of fact, conclusions of
A.	A. 	CEASE 	AND 	DESIST 	FROM:	CEASE AND DESIST FROM:
1.1. 	Unilaterally 	taking 	action 	on 	matters 	within 	the
scope 	of 	representation 	without 	meeting 	and 	negotiating 	upon 	request
with 	the 	San 	Mateo 	Elementary 	Teachers 	Association.
nilaterally taking action on matters within the
2.	2. Failing or refusing to meet and negotiate in good
faith with the San Mateo Elementary Teachers Association upon
request with regard to teacher preparation time.
Faili
B.B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
15	15
teacher rest time to "safety conditions of employment, " or other
negotiable subjects under $ 3543.2. In the present case, the
Association seeks to relate rest time only to teachers' "hours
of 	~mployment." 	But 	in 	this 	case 	the 	evidence 	is 	insufficient
to show how the amount of rest time for teachers might be related
to hours of employment. Since the Association has the burden of
proof, Cal. Administrative Code, Title 8, $35027, and it has not
been shown that rest time is related to a negotiable subject under
§ 	3543.2, 	the 	hearing 	officer 	declines 	to 	determine 	whether 	the
District negotiated in good faith on this item.
law and the entire record in this case, and pursuant to Government
Code§ 	3541.S(c), 	it 	is 	hereby ordered 	that 	the 	San Mateo 	City
School District, its governing board, superintendent and other
representatives shall:
U
scope of representation without meeting and negotiating upon request
with the San Mateo Elementary Teachers Association.
or 	refusi 	to 	meet 	iate 	in
i 	wi 	the 	San 	Mateo 	Elementary 	s 	Association
request 	with 	regard 	to 	teacher 	preparation 	time.
TO EFFECTUATE THE POLICIES OF THE ACT:

GERALD A. BECKER
16
the	1.	
1.Rescind its two unilateral increases in the
instructional
	day
	to
	be
	effective
	not
	later
	than
	60
	days
	after
issuance of this Recommended Order; or'
Rescind
Mateo	2.
2.	
In 	the
	alternative,
	meet
	with 	the
	San
Elementary Teachers
	Association
	and
	resolve
	this
	dispute
	in
	a
manner
	which
	is
	mutually
	acceptable 	to 	the
	parties
	and
	advise
the
	San
	Francisco
	Regional
	Director
	of
	such
	alternative 	resolution.
n the alternative, meet with the San Mateo
3
Order
	i. Prepare and post a copy of this Order until
rescission
	of 	the
	instructional
	day
	Jncrease
	at
	its
	headquarters
office
	and
	in
	each
	school
	at
	a
	conspicuous
	location
	where
	notices 	to
certificated
	employees
	are 	customarily posted.
Prepare
notify
	At
	the
	end
	of
	the
	posting 	period,
	the
	San
Francisco
	Regional
	Director 	of 	the
	action
	it
	has
	taken
	to
	comply
with
	this
	Order.
4.	4 At the end of the posting period, notify the San
Francisco Regional Director of the action it has taken to comply
with this Order.
IT IS FURTHER ORDERED that the unfair practice charge
is
	DISMISSED
	with
	respect 	to
	the
	allegations 	that
	the
	San 	Mateo
	City
School District violated Government Code $ 3543.5 (c) by failing to
meet 	and
	negotiate 	in
	good
	faith
	with 	the
	San Mateo
	Elementary
Teachers 	Association 	during 	the
	1977-78
	negotiations 	regarding 	the
length 	of 	the
	instructional
	day 	and
	teacher
	rest
	time.
practice
Pursuant to Cal. Admin. Code, Tit. 8, Section 35029,
this
	Recommended
	Decision
	and 	Order
	shall
	become
	final
on
	January
	23, 	1978,
	unless
	a
	party
	files
	a
	timely 	statement 	of
exceptions 	within 	seven
	(7) 	calendar
	days
	of 	service.
	See
	Cal.
Administrative
	Code,
	Tit.
	8, 	Section
	35030.
Admin.
Dated: 	January 	10, 	1978
GERALD 	A. 	BECKER
Hearing 	Officer
Dated: January 10, 1978
16
Hearing Officer
its
	two
	unilateral
	increases
	in
instructional day to be effective not later than 60 days after
issuance
	of
	this
	Recommended
	Order;
	or'
I
Elementary Teachers Association and resolve this dispute in a
manner which is mutually acceptable to the parties and advise
the San Francisco Regional Director of such alternative resolution.
and
	post
	a
	copy
	of
	this
	until
rescission of the instructional day increase at its headquarters
office and in each school at a conspicuous location where notices to
certificated employees are customarily posted.
IT 	IS
	FURTHER
	ORDERED
	that
	the
	unfair
	charge
is DISMISSED with respect to the allegations that the San Mateo City
School
	District
	violated
	Government
	Code§
	3543.S(c)
	by
	failing
	to
meet and negotiate in good faith with the San Mateo Elementary
Teachers Association during the 1977-78 negotiations regarding the
length of the instructional day and teacher rest time.
Pursuant 	to
	Cal
..
	Code,
	Tit.
	8, 	Section
	35029,
this Recommended Decision and Order shall become final
on January 23, 1978, unless a party files a timely statement of
exceptions within seven (7) calendar days of service. See Cal.
Administrative Code, Tit. 8, Section 35030.

San Mateo City School District * * * ANNULLED by San Mateo City School District v. PERB (1983) 33 Cal.3d 850, and REPLACED by Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375 (PERB 0129E)

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