Healdsburg Union High School District and Healdsburg Union 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 0132E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

** * 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

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,

Charging Party, Case No. SF-CE-68

Ve PERB Decision No. 132
HEALDSBURG UNION HIGH SCHOOL
DISTRICT and HEALDSBURG UNION
SCHOOL DISTRICT,

June 19, 1980

)
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)
)
)
)
)
)
)
)
Respondents. )
)

Appearances: Charles L. Morrone, Attorney for California
School Employees Association; W. Craig Biddle, Attorney
(Biddle, Walters & Bukey), for Healdsburg Union High School
District and Healdsburg Union School District.

Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION

In the instant case, the Public Employment Relations Board
(hereafter PERB or Board) considers the appeal brought by the
California School Employees Association (hereafter Association
or Charging Party). In brief, the Association alleges that the
Healdsburg Union High School District and the Healdsburg Union
School District (hereafter Districts) violated sections
3543.5(b) and (c) of the Educational Employment Relations

Act! by refusing to negotiate regarding contract proposals

lthe Educational Employment Relations Act (hereafter EERA

which
	the 	Association
	argues 	are
	within
	the
	scope
	of
representation
	as
	set
	forth
	in
	section
	3543.2
	of
	the
	Act.2
The
	findings 	of
	fact
	as
	set
	forth
	in 	the 	hearing
	officer's
or
	Act)
	is
	codified
	at
	Government 	Code
	section
	3540
	et
	seq.
Unless
	otherwise 	noted,
	all
	subsequent
	statutory 	referencesare 	to
	the
	Government 	Code.
Sections
	3543.5(b)
	and 	(c)
	provide:
It
	shall
	be
	unlawful 	for
	a
	public
	school
employer
	to:
. . 	. . . . . . 	. 	. 	. 	. 	. 	. . 	. . . . 	. 	. . .
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
(c)
	Refuse
	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with
	an
	exclusive
	representative.
2section
	3543.2
	of 	the
	Act
	provides:
The
	scope
	of
	representation
	shall
	be
	limitedto 	matters
	relating
	to
	wages,
	hours
	of
employment, 	and
	other
	terms
	and
	conditions
of
	employment. 	"Terms 	and
	conditions 	of
employment" 	mean
	health
	and
	welfare
	benefits
as 	defined
	by
	Section
	53200,
	leave,
	transfer
and
	reassignment
	policies, 	safety 	conditionsof
	employment,
	class 	size,
	procedures
	to
	be
used
	for 	the 	evaluation 	of
	employees,
organizational 	security
	pursuant 	to 	Section
3546,
	procedures 	for 	processing 	grievances
pursuant 	to 	Section 	3548.5, 	3548.6, 	3548.7,
and
	3548.8,
	and
	the
	layoff 	of 	probationary
certificated
	school
	district
	employees,
pursuant 	to 	Section
	44959.5
	of 	the 	Education
Code.
	In
	addition, 	the 	exclusive
representative 	of
	certified
	personnel 	has
the
	right
	to 	consult
	on
	the
	definition 	of
educational 	objectives, 	the 	determination 	ofthe 	content 	of 	courses
	and
	curriculum,
	and
se	
tion 	textbooks 	to 	the 	extent
2

proposed
	decision
	are
	free
	from
	prejudicial
	error
	and
	are
adopted
	by
	the
	Board
	itself.
	Each
	of 	the
	items
	which
	the
parties
	have
	stipulated
	are 	in
	dispute
	are
	examined
	and
discussed
	below.
DISCUSSION
In
	previous
	decisions,
	this
	Board
	has
	examined
	the 	scope 	of
representation
	to
	be
	afforded
	under
	the
	language
	of
	the
	EERA.
(Fullerton
	Union 	High
	School
	District
	(7/27/77)
	EERB
	Decision
No.
	20
	and
	(5/30/78)
	PERB
	Decision
	No. 	53~ 	Sonoma
	County
	Office
of
	Education 	(11/23/77)
	EERB
	Decision
	No. 	40;
	Palos
Verdes/Pleasant 	Valley 	(7/16/79)
	PERB
	Decision
	No.
	96;
San 	Mateo
	City
	School
	District
	(5/20/80)
	PERB
	Decision
	No.
129.)
	While
	past
	and
	present
	members
	of
	this
	Board 	have
advanced
	varying
	tests
	to
	measure
	the
	scope
	of
	representation,
there
	is,
	nonetheless,
	substantial
	agreement
	that
	the
	statutory
language 	as
	contained 	in 	the
	EERA
	offers
	no
	definitive 	or
conclusive 	standard.
	This
	results
	from
	the
	juxtaposition 	of
language 	which,
	on
	the
	one
	hand,
	suggests
	that
	a
	broad
such
	matters 	are 	within 	the
	discretion 	ofthe 	public 	school
	employer 	under
	the 	law.
All 	matters 	not
	specifically
	enumerated
	arereserved 	to 	the 	public 	school
	employer 	andmay
	not
	be 	a
	subject 	of
	meeting
	and
negotiating,
	provided
	that
	nothing 	herein
may
	be
	construed 	to 	limit
	the
	right 	of 	the
public 	school 	employer
	to 	consult 	with 	any
employees 	or 	employee
	organizat
	on 	any
matter 	outside 	the 	scope 	of 	representation.
3

definition
	be
	applied
	and,
	on
	the
	other, 	that
	a 	more
	narrow
interpretation
	was
	intended.
The
	recent
	case
	of
	San
	Mateo,
	s~pra,
	contains
	each 	Board
member's
	view
	of 	the
	appropriate 	resolution
	of
	the
	tension
between
	the 	language
	"relating
	to"
	and
	"limited 	to",
	and
	those
views
	need
	not
	be
	repeated
	at
	length 	here.
	While
	differing
	as
to
	the 	reasons 	for
	and
	significance
	of
	the
	particular 	structure
of 	section
	3543.2,
	two 	members
	agree
	that
	the
	appropriate
	means
of
	determining 	the
	negotiability
	of
	a
	specific
	subject 	or
proposal
	is
	a
	balancing
	test.
	As
	stated
	in
	San 	Mateo
	and
	as
discussed
	more
	fully
	infra,
	a
	subject 	is
	negotiable
	if
	it
	first
logically
	and
	reasonably
	relates
	to
	wages,
	hours 	or
	one
	of
	the
enumerated 	terms
	and
	conditions 	of
	employment.
	If
	this
threshold
	test
	is
	met, 	the 	proposal
	will
	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
	whether
	the 	employer's
	obligation 	to
	negotiate
would
	significantly
	abridge
	its
	managerial
	prerogatives 	or
educational
	and
	public 	policy 	considerations.3
3The
	basic 	difference
	between
	my
	view 	and
	that
	of
	the
Chairperson's 	is 	that
	I 	would
	specifically 	factor 	into 	the
balancing 	process 	educational
	and
	public 	policy 	considerations,
as 	well 	as 	managerial 	prerogatives.
In
	his 	opinion 	in 	Palos 	Verdes/Pleasant 	Valley,
	supra,
Dr. 	Gonzales 	proposed
	a
	balancing
	test.
	However,
	in 	San 	Mateo,
rejects
	a
	balancing
	st
	because
	it
	is
	a
	subj 	ive
4

Turning 	to 	the 	specifics 	of 	this 	case, 	there 	are 	only 	two
issues: 	is 	the 	case 	moot 	because 	the 	contract 	year 	during
which 	these 	issues 	arose 	has 	passed 	and, 	if 	not, 	are 	the
specific 	proposals 	negotiable 	or 	nonnegotiable. 	Since 	neither
the 	District 	or 	the 	Association 	has 	excepted 	to 	any 	of 	the
hearing 	officer's 	findings 	of 	fact, 	there 	are 	no 	factual 	issues
before 	the 	Board 	for 	consideration.
The 	Board 	finds 	that 	the 	issue 	is 	not 	moot. 	It 	is 	well
settled 	law 	that 	where 	the 	issues 	persist 	beyond 	the 	specific
case, 	that 	case 	is 	not 	rendered 	moot. 	(See 	Amador 	Valley 	Joint
Union 	High 	School 	District 	(10/2/78) 	PERB 	Decision 	No. 	74 	and
cases 	cited 	therein.) 	The 	issue 	of 	negotiability 	of 	the
subjects 	contained 	in 	the 	various 	proposals 	is 	of 	significance
in 	current 	and 	future 	contract 	negotiations 	in 	the 	Healdsburg
Districts 	and 	in 	school 	districts 	throughout 	the 	state. 	It 	is
therefore 	appropriate 	for 	PERB 	to 	resolve 	these 	issues 	since
"In 	cases 	clarifying 	parties' 	rights 	and 	obligations 	under 	a
new 	law, 	the 	public 	interest 	is 	served 	by 	deciding 	the
determination 	and 	proposes 	that 	negotiability 	be 	decided 	on 	the
basis 	of 	whether 	a 	negotiating 	proposal 	is 	an 	extension 	of 	an
enumerated 	item.
In 	my 	view, 	determining 	the 	negotiability 	of 	an 	item 	based
on 	its 	being 	an 	extension 	of 	an 	enumerated 	subject 	similarly
involves 	a 	subjective 	analysis. 	It 	is 	still 	a 	question 	of 	line
drawing, 	and 	there 	will 	still 	be 	gray 	areas. 	Indeed, 	it 	seems
unavoidable 	that 	a 	degree 	of 	subjectivity 	be 	involved 	in
determining 	whether 	a 	subject 	is 	negotiable.
5

underlying
	issue."
	(Amador
	Valley, 	supra,
	citing
	U.S.
	v.
	W.T.
Grant
	Co
• 	( 19 5 3 ) 	3 4 5 U• S . 	6 2 9 . )
The
	parties
	have
	stipulated
	as
	to 	the
	negotiations
proposals
	which
	are 	in
	dispute.
	The
	Districts
	assert
	that
these 	proposals 	are
	outside 	of
	scope
	and
	concede
	that
	they 	did
not
	negotiate
	with
	regard
	to
	any
	of
	them.
	Therefore,
	the
question
	is
	solely
	whether
	these 	proposals
	fall
	within
	the
scope
	of
	representation
	as 	defined 	in
	section
	3543.2
	of
	the
	Act
and
	are
	therefore 	negotiable.
The
	hearing
	officer
	found
	that
	several
	challenged 	proposals
were
	overbroad
	and
	therefore
	nonnegotiable 	in
	their 	present
form,
	but 	nonetheless 	held
	that
	it
	was 	an
	unfair
	practice
	for
the
	Districts
	to 	not
	respond 	with
	more
	than
	a
	flat
	rejection
	of
the 	proposal
	(see 	for
	example
	p.
	37
	of 	the
	H.O.
	decision).
These
	findings 	are
	contrary 	to 	his
	holding
	that
	"the
	refusal
	to
discuss 	that
	which
	is
	not
	negotiable
	is
	not
	an
	unfair
practice."
	(H.O.
	decision 	p.
	20.)
	Similarly,
	the
	hearing
officer 	states
	that 	"failure
	to
	respond 	with
	more
	than
	a
summary
	rejection 	is
	itself
	an
	unfair 	practice
	where
	the
proffered 	proposal
	is
	arguably 	within 	scope."
	(H.O.
	decision
p.
	20.)
In
	sum,
	the 	hearing
	officer's
	view
	appears
	to
	be
	that 	if
	a
proposal 	is
	arguably 	within 	scope, 	then
	it
	is
	an
	unfair
practice
	for 	the
	Districts 	to
	respond 	to 	that 	proposal
	with
	a
summary
	rejection
	even
	if
	PERB
	later
	determines
6

proposal
	is
	nonnegotiable.
	In
	support 	of
	his
	conclusion, 	the
hearing
	officer
	referred
	to
	German's
	treatise
	on
	private 	sector
labor
	law 	which
	indicates 	that
	good
	faith
	negotiations 	require
the
	parties
	to
	articulate
	supporting 	reasons 	for
	their
	contract
proposals
	and
	to
	listen
	and 	weigh
	arguments
	presented
	at
	the
bargaining
	table
	in
	an
	effort
	to
	reach
	a
	basis
	for
	a
	written
agreement.
I 	do
	not
	dispute
	this
	characterization
	of 	the
	good
	faith
bargaining 	process
	nor
	its
	applicability
	to 	the 	requirements 	of
the
	EERA.
	However, 	any
	review
	of 	the
	parties'
	conduct
	for
evidence
	of
	good
	or
	bad
	faith 	participation
	necessarily
presupposes
	that
	an
	obligation 	to
	bargain
	exists.
	With
	regard
to 	section
	B(d)
	of 	the 	National
	Labor
	Relations
	Act
	(hereafter
NLRA)
	which
	sets 	forth 	the
	duty
	to
	barga~n
	in
·good
-faith
	in
	the
private 	sector,4	
Professor
	Gorman
	states:
At
	the
	heart 	of 	the
	section 	are 	the 	phrases"confer 	in	
good	
faith"
	and 	"wages,
	hours,
and
	other
	terms
	and
	conditions 	of
employment."
	The
	latter
	phrase
	outlines
	the
so-called
	mandatory
	subjects
	which
	set
	the
boundaries
	of 	the
	parties'
	duty 	to 	bargain;
within 	those 	boundaries 	the 	duty
	applies,
while 	outside
	them
	either 	party
	may
	declineto 	bargain
	and
	is
	free 	to
	make 	and
	implement
decisions
	unilaterally.
	(p. 	399) 	(Emphasis
added.)
4section
	B(d)
	of 	the
	NLRA
	ovides
	pertinent 	part:
For
	the 	purposes 	of 	this 	section, 	to 	bargain
collectively 	is 	the 	performance 	of 	the
mutual 	obligation 	of 	the 	employer 	and
	the
7

Based 	on 	this 	fundamental 	tenet 	of 	labor 	law, 	I 	expressly
disavow 	the 	hearing 	officer's 	reasoning 	and 	the 	results. 	I
conclude, 	to 	the 	contrary, 	that 	if 	a 	party 	flatly 	refuses 	to
negotiate 	a 	proposal 	and 	the 	proposal 	is 	later 	found 	by 	PERB 	to
be 	out 	of 	scope, 	that 	party 	has 	not 	committed 	an 	unfair
practice 	because 	no 	duty 	to 	negotiate 	existed 	which 	the
employer 	violated.
The 	hearing 	officer's 	determination 	that 	a 	party 	must
respond 	to 	negotiating 	proposals 	which 	are 	not 	clearly 	within
or 	clearly 	outside 	of 	scope 	no 	doubt 	arose 	in 	the 	instant 	case
because 	numerous 	proposals 	were 	expressed 	in 	extremely 	broad
language. 	Similarly, 	our 	determination 	of 	negotiability, 	has
been 	rendered 	more 	difficult 	by 	the 	fact 	that 	the 	parties
failed 	to 	appropriately 	refine 	proposals 	through 	the
negotiations 	process 	itself.
In 	my 	view, 	the 	side 	offering 	a 	proposal 	has 	a
responsibility 	to 	frame 	it 	in 	such 	a 	way 	that 	it 	is 	susceptible
to 	meaningful 	negotiations. 	Similarly, 	the 	side 	receiving 	a
proposal 	has 	a 	responsibility 	to 	offer 	a 	meaningful 	response
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, 	or 	the
negotiation 	of 	an 	agreement, 	or 	any 	question
arising 	thereunder, 	and 	the 	execution 	of 	a
written 	contract 	incorporating 	any 	agreement
reached 	is 	requested 	by 	either 	party 	to
agree 	to 	a 	proposal 	or 	require 	the 	making 	of
a 	concession 	...
8

and 	not 	to 	summarily 	reject 	a 	proposal 	which 	may, 	in 	some
respects, 	pertain 	to 	issues 	which 	are 	appropriately
negotiable. 	However, 	while 	some 	refinement 	and 	specificity 	in
drafting 	is 	necessary, 	the 	form 	in 	which 	proposals 	are
initially 	presented 	marks 	only 	the 	beginning 	of 	the 	negotiating
process. 	Indeed, 	if 	one 	side 	can 	refuse 	to 	negotiate 	about 	a
proposal 	until 	the 	offering 	side 	has 	so 	narrowed 	it 	that 	it
contains 	only 	items 	the 	former 	accepts 	as 	unquestionably
within 	scope, 	then 	the 	bilateral 	process 	is 	thwarted 	rather
than 	served.
Clarification 	as 	to 	what 	the 	proposal 	is 	meant 	to 	encompass
is 	best 	attained 	through 	discussion 	and 	submission 	of
counterproposals 	presented 	by 	the 	negotiating 	parties. 	That 	is
clearly 	missing 	in 	this 	case. 	Many 	of 	the 	proposals 	which 	the
Board 	finds 	itself 	ruling 	on 	should 	have 	been 	narrowed 	and
refined 	through 	negotiations 	so 	the 	issues 	were 	crystalized 	and
the 	focus 	more 	apparent. 	Instead, 	we 	have 	been 	presented 	with
proposals 	which 	may 	or 	may 	not 	be 	negotiable 	depending 	on 	their
range 	of 	application.
With 	regard 	to 	some 	proposals 	which 	contained 	no 	limitation
the 	language, 	the 	overbread 	is 	fatal, 	and 	I 	have 	fo
them 	nonnegotiable. 	As 	to 	other 	proposals, 	I 	have 	indicated
the 	parameters 	within 	which 	they 	are 	negotiable 	and 	have 	left
to 	the 	parties 	the 	task 	of 	refinement, 	a 	task 	which 	they 	should
perf 	i 	iati 	ocess. 	It 	is 	inte
9

that
	the
	parties
	can 	shape
	these 	proposals
	to
	more
	specific
concerns 	in 	conformity 	with
	this
	decision.
	Given
	the 	passage
of
	time, 	the
	Board
	has
	determined
	that
	the
	communicative
	and•
mediatory
	nature 	of 	the
	collective
	negotiations
	process
	would
not
	be
	served
	by
	our
	requiring 	that
	these 	proposals
	be
	subject
to
	requirements 	of
	re-refinement
	before
	our
	determining
	whether
any
	obligation
	to
	negotiate
	was
	established.
	Rather,
	we
	have
examined 	each
	of 	the
	proposals,
	determined
	its
	negotiability
and 	have
	indicated
	the 	bases 	for
	our
	decision
	offering
	guidance
to
	the
	parties'
	future 	negotiating
	efforts.
In
	response
	to 	the 	hearing
	officer's
	decision, 	the
Districts
	argue
	that
	it
	is
	beyond 	PERB's
	authority 	to 	extend
the
	scope
	of
	representation.
	This
	Board
	is
	charged 	with
	the
authority
	to
	implement
	the 	provisions 	of 	the
	EERA,
	including
	a
specific
	delegation 	"to
	determine 	in 	disputed 	cases 	whether
	a
particular
	item
	is
	within
	or 	without 	the
	scope
	of
representation."
	(Sec. 	3541.3(b) .)
	An
	administrative
	agency
like
	PERB,
	directed 	to 	carry 	out
	a
	particular 	statute,
	must
adopt
	a
	construction 	of 	statutory
	language.
	(Bodinson
	Mfg.
	Co.
v.
	California
	Employment 	Commission 	(1941) 	17
	C.2d 	321;
	see
section
	3541.3(n) .)
	Clearly, 	this
	Board
	is 	authori
	to
interpret
	what
	is
	encompassed
	within 	the
	statute
	and,
necessarily, 	to 	analyze
	and
	interpret
	the 	"relating
	to"
language
	set 	th 	in 	section 	3543.2.
10

The
	District 	states
	in
	its
	brief
	supporting
	its
	statement
of
	exceptions
	that
	"
...
	it
	is
	to
	be
	preferred
	that
	bargaining
parties
	make
	such
	determinations
	as
	to
	scope
	with 	only 	guidance
from
	the
	Board,
	not
	intervention."
	(p.
	14) 	I
	agree
	and
	view
the
	following
	discussion
	as
	appropriate
	interpretive
	guidance.
I
	note
	that
	a
	decision
	that
	a
	proposal
	is
	negotiable
	is
	not
a
	reflection
	on
	the
	merits
	of 	the
	proposal.
	In
	many
	instances,
however,
	I
	have
	given
	an
	indication 	of
	the
	appropriate
parameters 	of 	proposals
	while
	leaving 	to 	the
	face-to-face
negotiating
	process
	the
	task 	of 	refining
	the
	proposals.
While
	objecting 	to
	PERB's
	interpretation,
	the
	Districts
urge 	the 	adoption
	of
	their
	own
	interpretation.
	They
	assert
that
	the 	Legislature
	did 	not 	use
	the
	same
	scope 	language
	that
was
	in 	the
	Winton
	Act 	and
	that 	this 	fact
	reflects
	the
Legislature's
	narrowing
	of
	scope 	under
	EERA.
	In
	the
	Districts'
view, 	anything
	which
	is
	not
	enumerated
	or
	which
	does
	not
	have
	a
"direct"
	and
	"inextricable" 	relationship
	to
	an
	enumerated 	term
is
	subject
	only
	to 	consultation
	with 	the
	Districts.
	In
	its
view,
	it
	is
	the
	Districts
	which
	decide 	whether 	or 	not
	they
	wish
to 	consult.
The
	interpretation 	proffered	
by	
the
	Districts 	is 	clearly
	a
narrowing 	of
	scope
	from
	the
	Winton
	Act. 	Indeed,
	it
	is 	so
narrow
	that
	it
	belies
	the
	Districts' 	assertion 	that
	little
except
	what
	is 	specifically
	enumerated
	is 	negotiable. 	While
the	
District
	concedes 	in	
its	
opening	
brief 	that 	finding 	only
11

enumerated
	subjects
	within
	scope
	would
	violate
	the
	letter
	and
the
	spirit
	of
	EERA
	(p.
	13),
	it
	offers
	little
	to 	resolve 	the
question
	of
	what
	else 	is
	negotiable.
	Rather,
	it
	hammers
	at
	the
view
	that
	EERA
	has
	a
	narrow
	scope
	and
	ignores 	the
	fact
	that
	the
Legislature
	just
	as
	deliberately
	included 	the
	words
	"relating
to" 	as
	it
	did
	"limited
	to."
The
	hearing
	officer
	examines
	various 	public
	sector 	cases
concerning
	scope
	of
	representation
	which 	have
	utilized
	tests
which
	focus
	on
	whether
	the
	subject
	in 	question
	is 	"directly
related"
	or
	"significantly 	related"
	or 	"fundamentally
	related"
to
	the
	statutory
	standard 	in
	that
	state.
	(School
	District
	of
Seward
	Education
	Association 	v.
	School
	District
	of
	Seward
{1972)
	199 	N.W.2d
	752 	[80
	LRRM
	3393];
	Clark
	County
	School
District
	v. 	Local
	Government
	EMRB
	(1974) 	530
	P.2d
	114
	[80
	LRRM
2774];
	Aberdeen
	Education
	Association 	v.
	Aberdeen 	Board
	of
Education
	(1974) 	215 	N.W.2d 	837 	[85
	LRRM
	2801];
	Unified 	School
District
	of
	Racine 	County
	v.
	WERC
	(1977) 	259 	N.W.2d 	724
[97
	LRRM
	2489);
	City 	of 	Beloit 	v.
	WERC
	(1976) 	242 	N.W.2d 	231
[92
	LRRM
	3318]
.)
As
	the 	majority 	stated
	in
	San 	Mateo,
	we
	have
	determined
that
	negotiability 	is
	more
	aptly
	determined
	by 	a 	two
	step
process.5	
First,
	the 	disputed 	subject
	must
	bear
	a
	logical
5The
	cases 	cited
	above
	rely
	on
	tests
	which 	have 	combineda 	two
	step process 	into
	one. 	In
	effect,
	they 	weigh
	the
relative 	rests
	employers 	s
	to 	ide 	on
12

and
	reasonable
	relationship
	to
	an
	enumerated
	subject.
	If
	that
relationship
	is
	established,
	the
	competing
	interests
	raised
	by
the 	proposal 	are 	balanced.
	This
	test
	has
	been
	applied
	to
	each
'
of
	the
	proposals
	set
	forth 	infra
	in
	determining
	negotiability.
Unlike
	the 	hearing
	officer
	who
	divided 	proposals
	into
	two
categories,
	the
	negotiability
	of
	one
	category
	being
	deemed
"self-evident,"
	I
	find
	that
	the
	same
	analysis
	must
	be
	applied
to
	each
	proposal.
	Thus,
	while
	this
	analysis
	will
	reveal 	the
necessary
	relationship
	and
	result
	more
	immediately
	in
	certain
cases
	than
	in
	others,
	I
	nonetheless
	conclude
	that
	the
	same
analysis
	is
	appropriately
	applied
	as
	to
	each
	proposal
	under
submission.
As
	stated
	above,
	the
	District
	proposes
	a
	test
	that
	a
disputed 	subject
	is
	negotiable
	only
	if
	there
	is
	a
	"direct"
	and
"inextricable" 	relationship
	with
	an
	enumerated
	item. 	{p. 	12 	of
its
	brief
	in 	support 	of 	exceptions.)
	This
	test 	is
	no
	less
subjective
	than
	any
	other.
	Indeed,
	it
	may
	even
	lack
	some
	of
the 	protections 	of 	the
	majority's
	test.
	Reasonable 	minds 	can
differ
	as
	to
	whether
	subjects
	such 	as 	promotions 	bear
	a
	direct
and
	inextricable 	relationship 	to
	wages 	and
	hours.
	The
District's
	analysis 	stops 	there.
	We
	find
	it
	is
	more
appropriate,
	having 	found 	such
	a
	relationship, 	to
	then 	weigh
which
	side 	of 	the 	sea 	the 	disputed 	subjects
	fall. 	It 	is
	then
said 	to
	be
	"directly" 	related 	to 	that 	side.
13

the
	competing
	interests
	of
	employees
	and
	employers
	to
	determine
whether
	the
	negotiations
	process
	is
	the
	suitable
	forum
	for
resolving 	these
	disputes.
Certain 	aspects 	of
	negotiability
	not
	specifically
	addressed
in
	San
	Mateo,
	supra
	are
	raised
	by 	a 	number
	of 	the
	proposals
which
	seek
	to 	incorporate
	statutory
	provisions 	into
	the
agreement 	or 	seek
	some
	modification 	of
	existing
	statutes.
EERA,
	unlike
	its
	two
	descendants,
	SEERA
	and
	HEERA,
	does
	not
contain
	a
	supersession 	clause
	setting
	forth
	which
	statutes
	may
be
	superseded
	by 	a 	memorandum
	of 	understanding
	in
	conflict
	with
the
	specified
	statutes.
	Rather
	EERA,
	similar 	to
	the
	Winton
	Act
and
	the
	Meyers-Milias-Brown
	Act,6 	provides 	in
	section
	3540
that
	nothing
	in
	EERA
shall
	be
	deemed
	to
	supersede 	the
	other
provisions 	of 	the 	Education
Code 	and
	the
rules
	and
	regulations 	of 	public 	school
employers
	which
	establish
	and
	regulate
ternure
	or
	a
	merit
	or
	civil
	service
	system
or
	which
	provide 	for 	other
	methods
	ofadministering
	employer-employee
	relations,
so 	long 	as
	the
	rules
	and
	regulations
	or
other
	methods
	of 	the 	public 	school
	employer
do
	not
	conflict
	with 	lawful
collective
agreements.
I
	interpret 	this
	language
	to
	mean
	that
	where 	a
	proposal
pertains 	to
	a
	subject
	which
	is
	covered
	by
	the 	Education
6The 	Winton 	Act 	was
	codified 	at
	former
	section
	13080
	et
seq. 	of 	the 	Education
	Code. 	Former
	section
	13080
	containedanalogous 	supersession 	language.
	The
	Meyers-Milias-Brown 	Act
is 	codified 	at
	Government 	Code
	section
	3500
	et
	seq. 	Section
3500 	contains 	analogous 	supersession
14

the
	negotiability
	of
	that
	proposal
	is
	not
	precluded
	so
	long 	as
it
	does
	not
	directly 	conflict
	with
	the
	code.
	For
	example,
	the
Association 	proposal
	in
	Article
	10.1 	seeks
	to
	negotiate
	a
provision 	requiring
	the
	Districts
	to
	pay
	for 	the
	cleaning
	and
maintenance
	of
	uniforms. 	This
	is
	an
	addition 	to
	Ed. 	Code
section
	451387	
but
	is
	negotiable
	because
	that
	section
	does
not 	provide
	that
	the
	District 	shall
	pay
	for 	only
	that
	which
	is
listed
	and
	nothing
	else.
At
	the
	time
	when
	this
	case
	arose,
	some
	of 	the
	enumerated
subjects
	set
	forth 	in 	section
	3543.2
	were
	also
	covered
	by
statute
	(leave,
	for
	example,
	is
	discussed
	at
	Education
	Code
sections
	45190
	et 	seq.).
	If
	PERB
	were
	to
	adopt
	the
	view
	that
the
	mere
	existence 	of
	a
	statutory
	provision
	precluded
negotiability,
	many
	issues 	of
	central
	employee
	concern 	would
	be
excluded
	from
	negotiations.
	For 	example,
	Member
	Gonzales
	notes
?section
	45138
	of 	the 	Education
	Code
	states:
Uniforms;
	costs
The
	governing 	board
	of
	any
	school
	district
may
	require 	the
	wearing
	of
	a
	distinctive
uniform
	by
	classified
	personnel.
	The
	costof 	the 	purchase, 	lease
	or
	rental 	ofuniforms, 	equipment,
	identification
	badges,emblems, 	and
	cards 	required
	by
	the
	districtshall
	be 	borne
	by
	the
	district.
This
	section 	shall
	apply 	to
	districts 	that
have 	adopted 	the 	merit
	system 	in 	the
	same
manner 	and 	e
	ect
	as
	if 	it
	were 	a
	part 	of
Article
	6 	(commencing
	with 	Sect
	45240)
is
15

in
	San Mateo
	at
	p.
	43
	that
	overtime
	compensation
	is
	not
	listed
in
	the
	enumeration
	of
	terms
	and
	conditions
	because
	it
	is
essentially
	an
	extension 	of
	wages 	and
	is
	therefore 	negotiable.
Section
	45128
	of
	the 	Education
	Code,
	however,
	pertains 	to
overtime.
	Thus,
	by
	adopting
	a
	view
	that
	any
	contract 	proposal
which
	is
	also
	covered
	by
	statute 	is
	nonnegotiable,
	any
	proposal
regarding
	overtime
	would 	be
	excluded
	from
	negotiations
	because
of
	EERA's
	supersession
	language
	even 	though
	it
	is
	an
	integral
part
	of
	the
	wage
	scheme.
The
	Pennsylvania
	Supreme
	Court
	similarly 	rejected
	such
	a
conclusion
	in
	PLRB
	v.
	State
	College
	Area
	School
	District
	(1975)
6
	PPER
	92 	[90
	LRRM
	2081].
	In
	that
	case, 	the
	Court
	considered
section
	703
	of
	the 	Pennsylvania 	Public
	Employees
	Relations
	Act
which
	prohibited
	parties
	from
	negotiating 	provisions 	in
	their
agreements
	if
	the 	implementation
	of 	those
	provisions
	"would
	be
in 	violation 	of,
	or
	inconsistent
	with, 	or 	in
	conflict
	with"
	any
Pennsylvania
	statute
	or 	municipal
	charter 	provision. 	In
reconciling
	this
	language 	with 	the
	directive
	of 	section
	701
permitting 	negotiations
	over 	wages, 	hours
	and
	terms
	and
conditions 	of
	employment,
	the 	Court 	noted
	that, 	prior 	to 	the
enactment 	of
	the 	state 	Act, 	collective
	bargaining
	by
	public
employers
	was
	not 	required
	and
	that
	the 	report 	issued
	by
	the
Governor's
	Commission
	suggested 	the
	need
	for
	collective
bargaining 	to 	restore
	harmony
	to 	the 	public 	sector, 	to
el
	nate
	strikes
	and
	unrest, 	to 	pr	
e
16

orderly 	and 	constructive 	relationships 	between 	public 	employers
and 	employees. 	In 	this 	light, 	the 	Court 	commented, 	the
supersession 	provision 	must 	be 	narrowly 	interpreted 	because 	it
would 	be 	absurd 	to 	suggest 	that 	the 	Pennsylvania 	Legislature
deliberately 	intended 	to 	provide 	merely 	an 	"illusory 	right 	of
collective 	bargaining." 	(PLRB 	at 	p. 	94.)
The 	Court 	further 	stated:
The 	mere 	fact 	that 	a 	particular 	subject
matter 	may 	be 	covered 	by 	legislation 	does
not 	remove 	it 	from 	collective 	bargaining
under 	section 	701 	if 	it 	bears 	on 	the
question 	of 	wages, 	hours 	and 	conditions 	of
employment. 	We 	believe 	that 	section 	703
only 	prevents 	the 	agreement 	to 	and
implementation 	of 	any 	term 	which 	would 	be 	in
violation 	of 	or 	inconsistent 	with 	any
statutory 	directive.
. 	. 	. . . . . . . 	. . 	. 	. . 	. 	. . 	. . . 	. 	. 	.
Section 	703 	merely 	prevents 	a 	term 	of 	a
collective 	bargaining 	agreement 	from 	being
in 	violation 	of 	existing 	law. 	Cf. 	Board 	of
Education, 	City 	of 	Englewood 	v. 	Englewood
Teachers 	Ass'n., 	64 	N.J. 	1, 	311 	A.2d 	729, 	85
LRRM 	2137 	(1973); 	Board 	of 	Education 	of
Union 	Free 	School 	District 	#3 	v. 	Associated
Teachers 	of 	Huntington, 	Inc., 	30 	N.Y.2d 	122,
282 	N.E.2d 	109, 	79 	LRRM 	2881 	(1972); 	Joint
School 	District 	#8 	v. 	Wisconsin 	Employment
Relations 	Board, 	37 	Wis.2d 	483, 	155 	N.W.2d
78 	(1967). 	If 	however 	the 	General 	Assembly
mandates 	a 	particular 	responsibility 	to 	be
discharged 	by 	the 	board 	and 	the 	board 	alone,
then 	the 	matter 	is 	removed 	from 	bargaining
under 	section 	701 	even 	if 	it 	has 	direct
impact 	upon 	"wages, 	hours 	and 	other 	terms 	or
conditions 	of 	employment."
17

We therefore conclude that items bargainable
under section 701 are only excluded under
section 703 where other applicable statutory
provisions explicitly and definitively
prohibit the public employer from making an
agreement as to that specific term or
condition of employment.8
In my view, the supersession language of section 3540
should similarly be read to preclude negotiability only where
the Education Code provisions in conflict would be replaced,
set aside or annulled by the language of the proposed contract
clause. Unless the statutory language clearly evidences an
intent to set an inflexible standard or insure immutable
provisions, the negotiability of a proposal should not be
precluded. As the Pennsylvania Court similarly noted, an
interpretation which would remove subjects from the scope of
representation because certain portions of the Education Code
pertain to that subject would have the anomalous result of
severely restricting the purpose of the EERA. By requiring
direct conflict, the words of section 3540 are interpreted in a
manner which promotes rather than defeats the general purpose
of EERA, furthers construction with reference to the whole
system of law of which it is a part, and renders a result in
accordance with the intention of the lawmakers. (In re Lynwood
Herald American (1957) 152 Cal.App.2d 901 [313 P.2d 584] ;
Select Base Materials v . Board of Equalization (1959) 51 C a l .2d
SpLRB, supra, p. 95.
18

640 	[335
	P.2d 	672]:
	Bush
	v. 	Bright
	(1968) 	264
	Cal.App.2d
	788
[71
	Cal.Rptr.
	123]
.)
Thus,
	where
	a
	provision 	of
	the 	Education
	Code
	impels
certain
	action,
	the
	parties
	are
	prohibited
	by
	section
	3540
	of
the
	EERA
	from
	negotiating
	a
	provision
	which
	directly 	conflicts
with
	the
	imperative
	portion 	of
	the
	Code.9
The
	District
	concedes
	that
	it
	refused
	to
	meet
	and
	negotiate
as 	to
	all
	the 	proposals. 	Therefore,
	as
	to
	those
	items
	the
Board
	finds 	negotiable, 	the
	District
	has
	violated
section
	3543.5(c).
	Moreover,
	as
	we
	found
	in
	San
	Francisco
Community
	College
	District
	(10/12/79)
	PERB
	Decision
	No.
	105,
	by
refusing 	to
	meet
	and
	negotiate,
	the
	employer
	necessarily 	denies
an 	employee
	organization
	the
	right
	to 	represent
	its
	members
	in
the 	negotiations
	process
	and
	concurrently
	violates
section
	3543.5(b). 	Therefore
	we
	overrule 	the 	hearing
	officer's
dismissal 	of
	this
	charge.
9rn
	Union
	Free 	School
	District,
	Town
	of
	Cheektowaga
	v.
Nyquist
	(1975) 	8
	PERB
	7516,
	the
	New
	York
	Court
	of
	Appeals
concluded
	that,
	under
	the 	Taylor
	Law,
	provisions 	of
	collective
b
'l..oi-Jo..':,-,.£..	
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,11.":3	
'-"'':7.._'-,._,11.
	~nroomonts
	'-,1,	
~~nno~	
.._11,A.AAl.
	\.,,.
	onor~~o	t''-.L~'--'-	
~~	
~unerse~o	
J:::'	
'UL'-	
{=nor~r;uo
provisions 	of
	the 	Education
	Law.
	It
	limited
\.,,'-J IJ
	.t..
the
	scope
.LilL,t"'-.Lt;....t.'-"'-V"-"
of
bargaining
	when
	in
	conflict
	with
	"plain
	and
	clear 	pr~hibitions
found
	in
	statute
	or
	decisional
	law" 	and
	stated:
The
	heart 	of 	our
	present 	holding
	is 	that
	where,as 	with 	the 	issue
	now
	before 	us, 	there
	is
	an
imperative 	provision 	of 	the 	Education
	Law,
	to 	the
extent 	that
	such
	provision 	is
	imperative,
	it
	is
beyond
	the
	power
	of 	the
	parties 	to
	alter
	ormodify
	the 	statutory 	provision
	by
	collectivebargaining, 	agreement 	to 	arbitrate
	or 	rwise.(Emphasis 	added.)
19

Article 	II. 	No 	Discrimination
In 	Article 	II, 	CSEA 	seeks 	to 	negotiate 	concerning 	three
proposals 	which 	relate 	to 	discrimination. 	The 	proposals 	are 	as
follows:
Article 	II. 	No 	Discrimination
2.1 	Discrimination 	Prohibited: 	No 	employee
in 	the 	bargaining 	unit 	shall 	be 	appointed,
reduced, 	removed, 	or 	in 	any 	way 	favored 	or
discriminated 	against 	because 	of 	his/her
political 	opinions 	or 	affiliations, 	or
because 	of 	race, 	national 	origin, 	religion,
or 	marital 	status 	and, 	to 	the 	extent
prohibited 	by 	law, 	no 	person 	shall 	be
discriminated 	against 	because 	of 	age, 	sex,
or 	physical 	handicap.
2.2 	No 	Discrimination 	on 	Account 	of 	CSEA
Activity: 	Neither 	the 	District 	nor 	CSEA
shall 	interfere 	with, 	intimidate, 	restrain,
coerce, 	or 	discriminate 	against 	employees
because 	of 	the 	exercise 	of 	rights 	to 	engage
or 	not 	to 	engage 	in 	CSEA activity.
2.3 	Affirmative 	Action: 	The 	District 	and
CSEA 	agree 	that 	an 	effective 	affirmative
action 	program 	is 	beneficial 	to 	the
District, 	employees, 	and 	the 	community. 	The
parties 	agree 	and 	understand 	that 	the
responsibility 	for 	an 	affirmative 	action
plan 	rests 	with 	the 	employer. 	The 	District
shall 	consult 	with 	CSEA 	in 	preparing 	the
affirmative 	action 	plan 	and 	further 	agrees
that 	no 	provision 	shall 	be 	adopted 	in 	the
affirmative 	action 	plan 	that 	violates
employee 	rights 	as 	set 	out 	in 	this 	agreement.
As 	to 	subarticles 	2.1 	and 	2.2, 	I 	find 	that 	the 	discrimination
prohibitions 	are 	negotiable 	to 	the 	extent 	that 	they 	relate 	to
enumerated 	subjects 	as 	set 	forth 	in 	the 	Act 	or 	matters 	relating
to 	enumerated 	subjects. 	In 	other 	words, 	the 	Districts 	must
20

negotiate
	with
	CSEA
	as
	to 	discriminatory
	conduct
	involved
	in
such
	matters
	as
	setting
	wages,
	establishing
	hours
	of
	work
	or
	in
implementing
	leave
	and
	transfer 	policies.
	Clearly, 	there
	is
	a
strong
	employee
	interest
	in 	insuring
	nondiscriminatory
treatment 	in
	such
	matters 	of
	significant
	employee
	concerns.
Conversely,
	there
	is
	no
	overriding
	employer
	interest
	which
persuades
	me
	that
	it
	would 	be
	inappropriate 	to
	compel
	the
District
	to
	engage
	in
	negotiations
	concerning
	these
discrimination 	proposals.
	In 	so
	deciding,
	I
	specifically
reject
	the 	hearing
	officer's
	conclusion
	that,
	as
	limited
	above,
either
	provision
	significantly
	impairs
	a
	District's
	legitimate
policy 	objectives
	or
	impinges
	on
	reserved
	management
prerogatives.
With
	regard
	to
	subarticle
	2.3,
	however,
	I
	find
	that
preparation 	of
	an
	affirmative 	action
	plan
	does
	involve
	the
District's
	prerogative 	to
	establish
	such
	a
	policy.
	In
	Rutgers,
The
	State 	University
	(1976) 	2 NJPER
	13, 	the
	New
	Jersey 	Public
Employment
	Relations
	Commission
	considered 	the
	negotiability
	of
a
	proposal 	requiring 	the
	employee
	organization's
	approval 	of
	an
affirmative 	action 	plan
	prior
	to 	submission
	to 	federal 	and
state
	agenc
	s.10	
The 	Commission
	stated:
10The
	New
	Jersey
	Employer-Employee
	Relations
	Act
	requires
parties 	to
	meet 	and
	negotiate 	"with 	respect 	to 	grievances	
and
terms
	and
	conditions 	of
	employment." 	(NJSA 	34:13A-5.3)
21

Therefore,
	we
	conclude
	that
	the 	University
cannot
	be
	compelled
	to 	negotiate
	regarding
AAUP
	approval
	prior
	to
	the 	submission
	of
affirmative 	action 	plans--negotiations
	in
	no
event
	require
	approval
	by
	either
	party 	to
	a
position
	taken
	by
	the
	other--but
	the
University
	is
	required 	to 	negotiate
regarding
	terms
	and
	conditions 	of
	employment
which
	are
	affected
	by
	such
	plans
	as
	well
	as
regarding 	the
	impact
	of
	management
	decisions
on
	terms
	and
	conditions 	of
	employment
	of
unit
	members.
I
	am
	in
	agreement
	with
	this
	conclusion. 	Establishment
	of
	an
affirmative 	action
	plan
	itself
	may
	involve 	expenditures
	of
funds
	for
	recruitment,
	adapting
	job
	functions 	to
	provide
opportunities
	for 	persons 	with
	nontraditional
	employment
histories,
	and
	changes
	in
	hiring
	or
	promotion
	policies 	to
	meet
affirmative 	action 	goals.
	Thus,
	while
	the
	impact
	that
	any
	such
affirmative 	action
	plan
	may
	have
	on
	enumerated
	subjects 	or
matters
	relating
	to
	enumerated
	subjects
	is
	negotiable,
	CSEA may
not
	compel
	the
	Districts
	to 	negotiate
	a
	provision
	which
	grants
a
	consultation 	right
	regarding 	the
	preparation 	of 	the
	plan
itself.
Article
	V.
	Organizational 	Rights
The
	proposals 	presented
	by
	CSEA
	in 	Article
	V
concern
organizational 	rights. 	Subarticle
	5.1.1
	provides:
5.1.1
	The
	right 	of 	access
	at
	reasonable
times 	to 	areas 	in
	which 	employees 	work.
I
	find
	that 	this
	proposal 	bears
	a
	direct 	relationship 	to 	the
processing 	of 	grievances,
	an 	enumerated 	item 	under
	EERA.
	Thus,
in
	r
	to 	insure
	CSEA
	will
	i
	access
22

to grievants, witnesses, and materials necessary to process
grievances, the Districts are required to negotiate as to this
proposal because the management interest in controlling and
regulating an organization's access to employees in the work
place does not outweigh the significant interests of
employees. Although EERA provides employee organizations a
right of access, I do not believe this fact removes an
otherwise negotiable subject from scope. Finally, access is
precisely the type of subject which would best be dealt with
through the give and take of the bilateral process of meeting
and negotiating.
Subarticle 5.1.2 provides:
The right to use without charge
institutional bulletin boards, mailboxes,
and the use of the school mail system and
other District means of communication for
the posting or transmission of information
or notices concerning CSEA matters.
In my view, this provision is negotiable because it is related
to the entire process of administering the agreement reached by
the exclusive representative and the public school employer.
Clearly, the central result contemplated by the passage of the
EERA was to permit parties to negotiate a binding agreement
cover ing matters within the scope of representation.H The
^Section 3540.1(h) states in pertinent part:
(h) "Meeting and negotiating" means
23

proposal
	profferred
	by
	CSEA
	seeks
	to 	insure
	that
	it
	will
	have
various
	communication
	channels
	available 	to 	transmit
information
	to
	the
	employees
	it
	represents.
	This
	proposal
	is
negotiable
	because
	it
	relates
	to
	all
	subjects
	within
	scope
contained 	in 	the
	negotiated
	agreement
	and
	because
	it
	relates
	to
the
	collective
	negotiation
	process
	and
	the
	administration 	of
the
	entire
	agreement.
	While
	the
	District
	also
	has
	an
	interest
in
	the 	access 	to
	and
	use
	of 	these
	means
	of
	communication,
	it
	is
not
	so
	strong
	as
	to
	preclude
	negotiability.
	As
	with
	access
	and
other 	issues,
	I 	do
	not
	view
	the
	existence 	of
	similar
	or
	exact
statutory
	provisions
	as
	precluding
	negotiability.
CSEA
	proposes 	the 	following
	provision 	in
	subarticle
	5.1.3:
5.1.3
	The
	right
	to
	use
	without 	charge
institutional
	equipment,
	facilities,
	and
buildings
	at
	reasonable 	times.
meeting,
	conferring, 	negotiating,
	and
discussing	
by	
the 	exclusive 	representative
and
	the 	public 	school
	employer
	in
	a 	good
faith 	effort
	to
	reach 	agreement
	on
	matterswithin 	the
	scope
	of 	representation
	and
	the
execution,
	if
	requested
	by
	either 	party, 	of
a
	written
	document
	incorporating
	any
agreements 	reached,
	which 	document
	shall;
when
	accepted
	by
	the 	exclusive
representative
	and
	the 	public 	schoolemployer,
	become
	binding
	upon
	both
	parties
and, 	notwithstanding 	Section 	3543.7,
	shall
not
	be
	subject 	to 	subdivision
	2
	ofSection
	1667
	of 	the
	Civil
	Code. 	The
agreement
	may 	be
	for
	a
	period 	of 	not 	toexceed
	three 	years.
24

In 	assessing 	the 	negotiability 	of 	this 	proposal, 	the 	hearing
officer 	considered 	section 	3543.S(d) 	of 	EERA,12 	which
prohibits 	the 	employer 	from making 	financial 	contributions 	in
support 	of 	any 	particular 	employee 	organization. 	This
provision 	of 	the 	EERA 	is 	derived 	from 	section 	8(a) (2) 	of 	the
NLRA which 	similarly 	forbids 	employers 	to 	give 	financial
assistance 	to 	a 	labor 	organization. 	A proviso 	contained 	in
section 	8(a)(2) 	states:
..• an 	employer 	shall 	not 	be 	prohibited
from 	permitting 	employees 	to 	confer 	with 	him
during 	work 	hours 	without 	loss 	of 	time 	or
pay.
Application 	of 	this 	provision 	by 	the 	federal 	courts 	and 	the
NLRB 	has 	required 	that 	the 	totality 	of 	the 	circumstances 	be
considered 	in 	order 	to 	distinguish 	unlawful 	support, 	which
involves 	some 	degree 	of 	control 	and 	influence, 	from 	employer
cooperation, 	which 	is 	a 	principal purpose 	of 	labor 	relations
statute. 	(NLRB 	v. 	Maqic 	Slacks, 	Inc. 	(1963) 	314 	F.2d 	844 	[52
LRRM 	2641].) 	The 	right 	to 	use 	the 	employer's 	premises 	is
12section 	3543.S(d) 	states:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
25

viewed
	as
	permissible 	cooperation
	and, 	as
	this
	Board
	stated
	in
Azusa
	Unified
	School
	District
	(11/23/77)
	EERB
	Decision
	No.
	38,
is
	not 	per
	se
	unlawful.
	(Coamo
	Knitting 	Mills,
	Inc.
	(
1964)
	150
NLRB
	579 	[58
	LRRM
	1116];
	Chicago
	Rawhide 	Mfg. 	Co.
	v.
	NLRB
	(7th
Cir
	1955) 	221
	F.2d
	165 	[35
	LRRM
	2665];
	Hotpoint
	Co.
	v.
	NLRB
(7th
	Cir.
	1961) 	289
	F.2d
	683 	[48
	LRRM
	2101]
.)
	Thus,
	while
certain
	proposals
	as
	discussed
	infra
	concerning
	employer
financial
	support
	may 	be
	nonnegotiable
	if
	they 	seek 	such
support 	for 	the
	purpose
	of 	obtaining
	special
	preferential
treatment,
	the
	purpose
	of
	the
	instant
	proposal
	encompasses
	a
legitimate
	request 	for 	the
	use
	of
	equipment
	and
	facilities
necessary 	for
	CSEA
	to
	fulfill 	its
	role
	as
	exclusive
representative.
	Therefore,
	to
	the
	extent 	that
	this
	proposal
seeks
	to 	negotiate 	matters
	such
	as
	entitlement 	to
	a
	meeting
room
	to
	be
	used
	when
	discussing
	and
	preparing 	grievances,
	that
use, 	without 	charge,
	is
	not 	the 	type
	of 	financial 	intrusion
prohibited
	by
	section
	3543.5(d). 	Rather,
	subarticle 	5.1.3 	is
within 	the 	union's 	legitimate
	concerns.
Although
	EERA
	requires 	the
	District
	to 	provide 	access
	to
institutional 	bulletin
	boards, 	mailboxes, 	other
	means
	of
communication
	and
	institutional 	facilities,
	such
	requirement
does 	not
	mean,
	of 	course, 	that
	because
	this
	proposal
	is
negotiable 	that
	the
	District 	is
	compelled
	to
	agree 	to
	it
	as
written.
	I
	find
	no
	reason 	concluding
	that,
	on
	its 	face,
26

this 	subarticle 	is 	nonnegotiable 	because 	it 	improperly 	invades
the 	area 	of 	management's 	rights.
Subarticle 	5.1.4 	presented 	by 	CSEA 	states 	as 	follows:
5.1.4 	The 	right 	to 	review 	employees'
personnel 	files 	and 	any 	other 	records
dealing 	with 	employees 	when 	accompanied 	by
the 	employee 	or 	on 	presentation 	of 	a 	written
authorization 	signed 	by 	the 	employee.
I 	am 	in 	agreement 	with 	the 	hearing 	officer's 	conclusion 	that
this 	proposal 	relates 	to 	the 	processing 	of 	grievances 	and 	is
therefore 	negotiable. 	Access 	to 	written 	material 	concerning 	a
specific 	employee, 	when 	accompanied 	by 	the 	employee's 	approval,
is 	critical 	to 	effective 	enforcement 	of 	the 	negotiated
agreement. 	This 	proposal 	evidences 	legitimate 	employee
concerns 	as 	to 	the 	administration 	of 	the 	contract 	because
enforcement 	of 	the 	negotiated 	agreement 	through 	the 	negotiated
grievance 	procedure 	depends 	on 	the 	availability 	of 	evidence
needed 	to 	reveal 	departures 	from 	agreed-upon 	employment
policies. 	I 	am 	also 	in 	agreement 	with 	the 	Chairperson's
conclusion 	that 	this 	proposal 	bears 	a 	logical 	relationship 	to
employee 	evaluations. 	Because 	this 	proposal 	incorporates
employee 	authorization 	and 	presents 	no 	intrusion 	into
managerial 	pre 	ives 	or 	matters 	of 	public 	policy 	reser 	to
employer 	control, 	it 	is 	negotiable.
Proposal 	5.1.5 	states 	as 	follows:
5.1.5 	The 	right 	to 	be 	supplied 	a
complete 	"hire 	date" 	seniority 	roster 	of 	all
bargaining 	unit 	employees 	on 	ef 	ive
27

date 	of
	this
	agreement
	and
	every
	three
	(3)
months
	thereafter.
	The
	roster 	shall
indicate
	the
	employee's
	present
classification
	and
	primary
	job
	site.
This
	proposal 	requesting
	that
	CSEA
	be
	provided
	the
	seniority
roster
	is,
	as 	the
	hearing
	officer
	concluded,
	negotiable
	because
it
	bears
	a
	close
	relationship
	to
	wages,
	hours,
	transfer
	and
leave,
	matters
	that
	are 	frequently
	affected
	by
	the
	individual
employee's
	seniority.
	Committing
	this
	proposal
	to
	the
negotiating
	process
	does
	not
	intrude
	on
	central
	management
rights,
	prerogatives
	or
	policy 	considerations.
CSEA
	also
	proposed
	other
	subarticles
	concerning 	the
distribution
	of
	information.
	Subarticle 	5.1.6, 	5.1.7, 	5.1.8
and
	5.1.9
	provide 	as 	follows:
5.1.6
	The
	right
	to 	receive
	upon
	request
	two
(2)
	copies 	of
	any 	and
	all
	written 	reports
submitted
	to
	any
	other
	governmental 	agency.
5.1.7
	The
	right
	to 	receive
	two 	(2)
	copiesof
	all
	applications 	to
	any
	other
governmental 	agency
	for
	any
	grant,
	funding,or 	approval
	of
	any
	kind
	when
	such
	grant,
funding, 	or 	approval 	can 	reasonably
	be
expected 	to
	have 	an
	impact,
	direct
	or
indirect,
	on
	the
	classified
	service;
	and
said 	copies
	shall
	be
	forwarded
	to
	CSEA
	inthe
	same 	manner 	and
	at
	the
	same
	time 	as 	the
subject 	matter
	is
	submitted 	for
consideration 	to 	the 	public 	schoolemployer.
	No
	action
	on
	such
	matters
	shall
be
	taken
	by
	the
	employer
	until
	CSEA
	has 	been
provided 	the 	opportunity 	to
	review
	and
comment.
5.1.8
	The
	right 	to 	receive
	two 	(2)
	copies
of
	any 	budget 	or
	financial 	materialsubmitted
	at
	any 	time
	to 	the 	governing 	board.
28

5.1.9 	The 	right 	to 	review 	at 	all 	reasonable
times 	any 	other 	material 	in 	the 	possession
of 	or 	produced 	by 	the 	District 	necessary 	for
CSEA 	to 	fulfill 	its 	role 	as 	the 	exclusive
bargaining 	representative.
Subarticle 	5.1.6, 	in 	its 	present 	form, 	would 	permit 	CSEA 	to
receive, 	upon 	request, 	copies 	of 	written 	reports 	that 	the
District 	submits 	to 	other 	governmental 	agencies. 	Were 	this
proposal 	limited 	to 	materials 	related 	to 	enumerated 	subjects
and 	thus 	necessary 	for 	CSEA 	to 	fulfill 	its 	roll 	as 	bargaining
representative, 	this 	proposal 	would 	be 	negotiable. 	However, 	as
it 	is 	written, 	subarticle 	5.1.6 	is 	overly 	broad 	since 	it 	would
require 	the 	employer 	to 	furnish 	reports 	totally 	unrelated 	to
the 	employment 	relationship. 	CSEA's 	right 	to 	receive
information 	and 	materials 	must 	be 	confined 	to 	its 	role 	as
exclusive 	representative. 	This 	proposal 	contains 	no 	such
limitation 	and 	is 	therefore 	nonnegotiable.
Subarticle 	5.1.9 	proposes 	a 	right 	to 	review 	other 	materials
produced 	by 	or 	in 	the 	possession 	of 	the 	District 	which 	are
"necessary 	for 	CSEA 	to 	fulfill 	its 	role 	as 	the 	exclusive
bargaining 	representative." 	While 	the 	language 	of 	this
proposal 	more 	clearly 	limits 	the 	purpose 	for 	the 	information
sought, 	it 	too 	may 	be 	additionally 	refined 	duri 	the
negotiating 	process. 	However, 	to 	the 	extent 	that 	it 	concerns
the 	right 	to 	review 	information 	necessary 	to 	administer 	the
agreement 	or 	otherwise 	assist 	CSEA 	in 	its 	role 	as
29

representative, 	this 	proposal 	is 	negotiable.13 	No 	overriding
interest 	of 	the 	District 	to 	keep 	all 	of 	such 	information 	from
the 	CSEA 	representative 	overcomes 	the 	Association's 	legitimate
purpose 	aimed 	at 	performing 	its 	role 	as 	the 	exclusive
representative.
Subarticles 	5.1.7 	and 	5.1.8 	pertain 	to 	the 	right 	to 	review
grant 	and 	funding 	requests 	and 	budgetary 	and 	financial 	material
submitted 	to 	the 	governing 	board, 	respectively. 	While 	it 	is
apparent 	that 	both 	proposals 	have 	a 	discernible 	relationship 	to
wages 	and 	other 	enumerated 	subjects 	which 	are 	affected 	by
financial 	considerations, 	the 	breadth 	of 	these 	items 	as 	written
13Although 	the 	hearing 	officer 	determines 	that 	subarticle
5.1.9 	is 	negotiable, 	he 	cites 	NLRB 	v. 	Milgo 	Industrial, 	Inc.
(2d 	Cir. 	1977) 	567 	F.2d 	540 	[97 	LRRM 	2079], 	enf. 	(1977)
229 	NLRB 	No. 	13 	(96 	LRRM 	1347}, 	for 	the 	proposition 	that 	the
employer 	is 	not 	required 	to 	supply 	information 	when 	it 	is
readily 	available 	elsewhere. 	In 	Milgo, 	the 	Court 	held 	that 	the
employer 	had 	not 	refused 	to 	bargain 	when 	it 	failed 	to 	supply
the 	union 	with 	a 	copy 	of 	the 	employer's 	health 	plan 	which 	was
available 	to 	the 	union. 	The 	Court 	noted, 	however, 	that 	the
failure 	to 	provide 	information 	regarding 	pension 	costs,
relevant 	to 	the 	union's 	efforts 	to 	bargain 	as 	to 	pensions, 	was
unlawful. 	(NLRB 	v. 	Truit 	Mfg. 	Co. 	(1956) 	351 	U.S. 	149 	[38 	LRRM
2042]; 	NLRB 	v. 	Acme 	Industrial 	Co. 	(1967) 	385 	U.S. 	432 	[64 	LRRM
2069] .) 	The 	Court 	also 	noted 	that 	where 	the 	union 	had
unknowingly 	been 	provided 	the 	information 	requested, 	the
employer 	was 	required 	to 	so 	advise. 	In 	any 	event, 	the
negotiability 	of 	CSEA's 	proposal 	does 	not 	depend 	on 	whether 	an
employee 	organization may 	be 	able 	to 	obtain 	necessary
information 	from 	other 	sources 	in 	certain 	instances. 	It 	is 	the
continuing 	need 	for 	the 	information 	relevant 	to 	bargaining
efforts 	that 	1s 	critical 	and 	CSEA may 	demand 	that 	the
negotiated 	agreement 	include 	an 	affirmative 	promise 	that
information 	related 	to 	wages, 	hours 	and 	other 	enumerated
subjects 	be 	provided.
30

goes 	beyond 	CSEA's 	interests 	and 	intrudes 	on 	the 	employer's
central 	managerial 	responsibilities. 	Both 	items 	concern
submissions 	which 	may 	potentially 	impact 	on 	the 	budget 	but
which 	are, 	at 	the 	time 	requested, 	likely 	to 	be 	a 	part 	of 	the
employer's 	planning 	process. 	The 	proposal 	does 	not 	limit 	the
requests 	for 	information 	to 	documents 	which 	are 	set 	for 	action
by 	the 	Districts 	or 	advanced 	in 	the 	form 	of 	budgetary
proposals. 	Therefore, 	while 	both 	subarticles 	may 	ultimately
bear 	a 	close 	relationship 	to 	negotiable 	topics, 	as 	submitted,
they 	impinge 	on 	management's 	right 	to 	flexibly 	and 	internally
explore 	budgetary 	considerations 	prior 	to 	formulating 	final
proposals 	for 	action.
In 	subarticle 	5.1.10, 	CSEA made 	the 	following 	proposal:
5.1.10 	The 	right 	of 	release 	time 	for
employees 	who 	are 	CSEA 	state 	officers 	to
conduct 	necessary CSEA 	business.
By 	its 	terms, 	this 	proposal 	relates 	to 	both 	wages 	and 	hours
because 	released 	time 	necessarily means 	release 	from 	work
during 	work 	hours 	without 	loss 	of 	pay. 	While 	the 	employer
clearly 	has 	an 	interest 	in 	the 	amount 	of 	time 	its 	employees 	are
being 	paid 	but 	not 	performing 	their 	regular 	job 	functions~ 	that
interest 	does 	not 	outweigh 	the 	employees' 	interest 	havi
released 	time 	to 	process 	grievances 	or 	to 	conduct 	other
appropriate 	CSEA 	business 	relative 	to 	fulfilling 	its
obligations 	as 	exc 	ive 	representative 	so 	as 	to 	eel
31

negotiability 	of 	this 	item.14 	The 	necessary 	refinement 	of
this 	proposal 	should 	be 	accomplished 	by 	the 	negotiating
process. 	Therefore, 	this 	proposal, 	which 	seeks 	released 	time
to 	conduct 	necessary 	CSEA 	business, 	is 	negotiable 	since 	its
relationship 	to 	wages 	and 	hours 	is 	not 	offset 	by 	considerations
involving 	management 	prerogatives 	or 	educational 	or 	public
policy 	concerns 	such 	that 	it 	should 	be 	excluded 	from 	scope.
CSEA's 	proposal 	set 	forth 	in 	subarticle 	5.1.11 	provides:
5.1.11 	The 	right 	of 	release 	time 	for 	CSEA
chapter 	delegates 	to 	attend 	the 	CSEA Annual
Conference, 	with 	the 	District 	to 	provide
$250 	in 	conference 	expenses 	for 	each
delegate.
Unlike 	subarticle 	5.1.3 	which 	the 	Board 	concludes 	is 	negotiable
because 	it 	seeks 	use 	of 	district 	facilities, 	without 	charge,
necessary 	for 	CSEA 	to 	effectively 	perform 	its 	role 	as 	exclusive
representative, 	the 	instant 	proposal 	seeks 	a 	commitment 	from
the 	District 	to 	finance 	the 	expenses 	of 	CSEA conference
delegates.
14r 	am 	in 	essential 	agreement 	with 	the 	Chairperson's
assertion 	that 	the 	financial 	impact 	of 	this 	and 	other 	proposals
is 	a 	matter 	most 	appropriately 	raised 	at 	the 	negotiating
table. 	Inability 	to 	pay 	for 	a 	proposal 	is 	a 	negotiating
position 	and 	not 	a 	reason 	refusing 	to 	negotiate. 	However,
the 	fiscal 	ramifications 	of 	a 	proposal 	may 	also 	be 	pertinent 	to
the 	employer's 	legitimate 	concerns 	with 	matters 	of 	educational
and 	public 	policy. 	I 	therefore 	feel 	that 	it 	is 	appropriate 	to
address 	the 	issue 	of 	financial 	burdens 	when 	balancing 	the
competing 	interests 	of 	the 	parties 	because, 	in 	some 	instances,
the 	economic 	impact 	may 	be 	so 	severe 	as 	to 	compel 	the
conclusion 	that 	resolution 	of 	the 	dispute 	is 	ill-suited 	to 	the
iati 	ocess.
32

The
	NLRB
	has
	considered 	the
	propriety
	of 	various 	types
	of
financial
	assistance
	provided
	by
	an 	employer
	to
	an
	employee
organization.
	Direct
	cash
	payments
	are
	illegal
	(Meyer
	and
Welch 	(1950) 	91
	NLRB
	1102 	[ 26
	LRRM
	16 2 5 ] )
	as
	are
	payments
	of
union
	legal
	fees
	(Bev
	Cal
	Optical
	Company 	(1966) 	157
	NLRB
	1287
[ 157
	LRRM
	1559])
	and
	financial 	assistance
	derived
	from
	vending
machines
	and
	flower 	funds
	(Connor
	Foundry
	Com:eany 	(1952)
	100
NLRB
	146 	[30
	LRRM
	1250]).
	Other
	forms
	of
	financial 	assistance,
however,
	are
	viewed
	as
	permissible
	friendly
	cooperation 	(Post
Publishing
	(1962) 	136
	NLRB
	272 	[49
	LRRM
	1768],
	enf.
	denied
	(7th
Cir.)
	311
	F.2d
	565 	[52
	LRRM
	106])
	or
	excused 	because
	the
	amount
of 	assistance 	is
	deemed
	minimal.
	(Coppus
	Engineering
Corporation
	(1956) 	115
	NLRB
	1387 	[38
	LRRM
	1079],
	enf. 	denied
(1st 	Cir.
	1957) 	240
	F.2d
	564 	[39
	LRRM
	2315]).
Cases
	involving
	financial 	assistance 	to 	subsidize
attendance
	at
	union
	functions 	are
	most
	pertinent 	to
	the
proposal 	in 	question.
	In
	general, 	financial 	assistance
	to
employees
	for
	time
	spent
	at
	union 	meetings
	is
	permitted
provided 	these
	meetings 	are
	strictly
	confined
	to 	conferences
with 	the 	employer. 	{Essex Wire 	(1954) 	107
	NLRB
	1153 	[33
	LRRM
1338], 	enf.
	denied 	another 	grounds 	sub
	nom
	NLRB
	v.
	Associated
Machines,
	Inc.
	(6th
	Cir.
	1955) 	219
	F.2d
	433 	[35
	LRRM
	2431]
.)
However,
	if
	meetings 	involve 	such
	things 	as 	discussions
	of
internal
	union
	affairs,
	then
	payment
	for 	worker
	attendance 	is
consi
	r
	to
	i
	financi	
s 	t
	to	
e
33

organization.
	(Farmbest,
	Inc.
	(1965) 	154
	NLRB
	1421 	[60
	LRRM
1159]
	enf.
	granted 	in
	part
	and
	denied
	in
	part
	(8th
	Cir.
	1967)
370
	F.2d
	1015 	[64
	LRRM
	2203]
.)
While
	the
	distinction
	between
	meetings
	involving
	employer
communication
	and
	internal
	union
	business
	is
	maintained 	because
of
	the 	express
	language
	of
	the 	proviso 	contained 	in 	the
	NLRA, 	I
am
	persuaded
	that 	financial
	support
	is
	impermissible
	when
	its
primary 	purpose
	is
	to 	subsidize
	internal
	union
	business.
	The
comment
	in 	Dairylea 	Cooperative 	Inc.
	(1975) 	219
	NLRB
	656
	[89
LRRM
	1737]
	with 	regard
	to
	the 	employer's
	payment
	to
	union
stewards
	is 	similarly 	appropriate:
...
it
	nevertheless
	remains
	the
	union'stask 	to 	build
	and
	maintain
	its
	own
organization
••.
The
	CSEA
	Annual
	Conference
	is
	an
	organizational
	endeavor
	at
which,
	it
	can
	reasonably
	be
	presumed,
	discussions
	and
	workshops
will 	pertain 	at 	least
	in
	part
	to 	internal
	union
	affairs. 	I,
therefore,
	conclude
	that 	this
	demand
	goes 	beyond
	the
	legitimate
financial
	support
	essential
	to
	CSEA's
	role
	as 	exclusive
representative.
	(Seaway 	Food 	Town,
	Inc.
	(1978) 	235
	NLRB
	1554
[98
	LRRM
	1233]. 	Rather, 	as 	the 	hearing
	officer
	found,
	this
proposal 	seeks 	the
	financial
	support
	which 	a
	district 	is
prohibited
	from
	granting
	by
	section 	3543.S(d) 	of 	the 	Act.
	I
therefore
	conclude
	that 	this 	subarticle 	is
	nonnegotiable
	to
	the
extent 	that
	it
	proposes 	grant 	of
	$250
	to
	each
	conference
delegate.
	CSEA may, 	however, 	seek 	to 	include 	in
	its 	releas
34

time 	proposals 	specific 	release 	for 	attendance 	at 	CSEA
conferences 	and 	meetings 	which 	might 	qualify 	as 	necessary 	CSEA
business.
Subarticle 	5.1.12 	concerns 	orientation 	sessions 	and
provides:
5.1.12 	The 	right 	to 	conduct 	orientation
sessions 	on 	this 	agreement 	for 	bargaining
unit 	employees 	during 	regular 	working 	hours.
This 	proposal 	seeks 	released 	time 	for 	orientation 	sessions 	and
therefore 	relates 	to 	hours 	and 	wages. 	The 	provision 	is
directed 	at 	acquainting 	unit 	members 	with 	provisions 	of 	the
agreement 	and, 	therefore, 	also 	bears 	a 	relationship 	to 	the
grievance 	procedure 	because 	its 	goal 	is 	employee 	awareness 	of
and 	acquaintance 	with 	the 	terms 	of 	the 	agreement 	which 	are
subject 	to 	the 	grievance 	procedure. 	Management 	also 	has
significant 	concerns 	in 	that 	the 	District's 	right 	to 	direct
employees 	is 	affected 	by 	this 	proposal. 	The 	orientation
sessions 	will 	take 	employees 	away 	from 	their 	normal 	job
duties. 	In 	balance, 	however, 	the 	hearing 	officer's 	conclusion
that 	this 	proposal 	is 	negotiable 	is 	sound.
In 	subarticle 	5.2, 	CSEA 	seeks 	to 	negotiate 	a 	provision
prohibiting 	the 	District's 	formation 	of 	advisory 	committees.
It 	provides:
5.2 	Prohibition 	Against 	Advisory Committees:
The 	District 	shall 	not 	form 	or 	cause 	to 	be
formed 	any 	advisory 	committee 	on 	any 	matter
35

concerning 	bargaining 	unit 	employees 	without
the 	consent 	of 	CSEA.
In 	its 	present 	form, 	this 	proposal 	is 	nonnegotiable. 	It 	fails
to 	limit 	the 	prohibition 	on 	advisory 	committees 	to 	actual
advice 	or 	proposals 	which 	would, 	if 	adopted, 	impact 	o~ wages,
hours, 	or 	other 	enumerated 	items. 	Rather, 	it 	precludes 	the
formation 	of 	any 	committee 	relating 	to 	any 	matter 	of 	employee
concern. 	By 	its 	terms, 	this 	item 	fails 	to 	demonstrate 	the
requisite 	connection 	to 	a 	negotiable 	subject 	and, 	more
importantly, 	by 	its 	breadth, 	impermissibly 	intrudes 	into 	the
area 	of 	management's 	prerogatives 	including 	public 	policy
considerations. 	Such 	committees 	might 	well 	be 	citizen
committees 	concerned 	with 	broad 	issues 	of 	the 	school 	district's
operation 	and 	goals 	which 	would 	no 	doubt 	concern 	negotiating
unit 	members 	but 	which 	are 	nonnegotiable 	as 	within 	management's
legitimate 	sphere.
In 	subarticle 	5.3, 	CSEA 	seeks 	to 	restrict 	District
negotiations 	and 	agreements 	with 	other 	organizations. 	It
provides:
5.3 	Restriction 	on 	District 	Negotiations
and 	Agreements: 	The 	District 	shall 	conduct
no 	negotiations 	nor 	enter 	into 	any 	agreement
with 	any 	other 	organization 	on 	matters
concerning 	the 	rights 	1)E 	bargaining 	unit
employees 	and/or 	CSEA without 	prior 	notice
to 	and 	approval 	by CSEA of 	the 	negotiations
and 	the 	agreement.
The 	hearing 	officer 	found 	that 	this 	item 	bore 	a 	tangential
relationsh 	to 	enumerated 	items 	r, 	was
36

nonnegotiable 	because 	the 	substance 	of 	the 	proposal 	was
adequately 	covered 	by 	the 	unfair 	practice 	provisions 	of 	the 	Act.
In 	my 	view, 	this 	proposal 	is 	nonnegotiable 	because 	it 	is
overly 	broad. 	By 	its 	terms, 	it 	prohibits 	the 	employer 	from
conducting 	negotiations 	as 	to 	any 	agreement 	with 	~!!Yother
organization 	on 	"matters 	concerning 	the 	rights 	of 	bargaining
unit 	employees." 	This 	proposal 	is 	not 	limited 	to 	matters
relating 	to 	wages, 	hours 	or 	enumerated 	subjects 	nor 	is 	it
limited 	to 	negotiations 	with 	other 	employee 	organizations.15
It 	is 	not 	negotiable.
CSEA's 	proposal 	in 	subarticle 	5.4 	provides:
5.4 	Distribution 	of 	Contract: 	Within
thirty 	{30) 	days 	after 	the 	execution 	of 	this
contract, 	the 	District 	shall 	print 	or
duplicate 	and 	provide 	without 	charge 	a 	copy
of 	this 	contract 	to 	every 	employee 	in 	the
bargaining 	unit. 	Any 	employee 	who 	becomes 	a
member 	of 	the 	bargaining 	unit 	after 	the
execution 	of 	this 	agreement 	shall 	be
provided 	with 	a 	copy 	of 	this 	agreement 	by
the 	District 	without 	charge 	at 	the 	time 	of
employment. 	Each 	employee 	in 	the 	bargaining
unit 	shall 	be 	provided 	by 	the 	District
without 	charge 	with 	a 	copy of 	any 	written
changes 	agreed 	to 	by 	the 	parties 	to 	this
agreement 	during 	the 	life 	of 	this 	agreement.
This 	proposal 	would 	require 	that 	the 	public 	school 	employer
finance 	the 	cost 	of 	duplicating 	the 	parties' 	negotiated
15The 	fact 	that 	CSEA 	seeks 	to 	incorporate 	this
prohibition 	into 	their 	agreement 	thereby 	providing 	resolution
and 	remedy 	through 	the 	grievance 	procedure 	in 	addition 	to
unfair 	actice 	procedures 	is 	irrelevant 	to 	the 	question 	of
i 	ili
37

agreement.
	I
	find
	that
	this
	type
	of
	financial
	support
	is
similar
	to
	that
	sought
	in
	subarticle
	5.1.11.
	Contrary
	to
	the
hearing
	officer's
	conclusion,
	this
	proposal
	intrudes
	into
	the
area
	of
	conduct
	prohibited
	by
	section
	3543.5(d).
	CSEA
	urges
that 	this
	provision
	relates
	to
	the 	grievance 	process
	because
the
	availability
	of 	the
	contract 	will 	effectuate 	that
	process.
The
	asserted
	relationship,
	however,
	is 	insufficient
	to 	support
a
	negotiability
	finding
	because
	it
	ignores 	the
	major
	thrust
	of
the 	proposal
	which
	plainly
	seeks
	financial
	support
	rather
	than
the
	right
	to
	distribute.
	The
	right
	to
	conduct
	orientation
sessions
	during
	working 	time 	proposed
	in
	subarticle
	5.1.12
	has
a
	financial
	impact
	but
	is
	focused
	on
	the
	right
	to
	conduct
orientation.
	Subarticle
	5.4
	does
	not 	seek
	the
	right
	to
distribute
	the
	contract
	but
	rather
	the 	placement
	of
	fiscal
responsibility
	on
	the
	employer.
	I
	conclude,
	therefore,
	that
subarticle
	5.4
	is,
	in
	its
	present
	form,
	nonnegotiable.
Subarticle
	5.5 	of
	CSEA's
	proposals
	states:
5.5
	Management
	Orientation:
	District
Management
	shall
	conduct
	orientationsessions
	on
	this
	agreement
	for
	Management,
Supervisory
	and
	Confidential
	employees.
CSEA
	asserts 	that 	this
	proposal, 	sought 	in 	order 	to 	insure 	that
nonunit
	members
	are 	familiar
	with 	the 	terms
	of 	the 	agreement
to
	facilitate
	grievance 	settlement, 	is
	negotiable 	because
it
	bears
	a
	sufficient 	relationship 	to 	grievance 	procedures.
The
	ust 	of 	this 	provision,
	however, 	seeks 	to
	compel
38

management 	to 	conduct 	orientation 	sessions 	and 	therefore
fatally 	invades 	management's 	prerogative 	to 	direct 	its
management 	team 	and 	to 	determine 	if 	and 	when 	it 	will 	provide
them 	with 	such 	orientation 	sessions. 	Thus, 	the 	proposal 	is
outside 	of 	the 	scope 	of 	negotiations 	contemplated 	by 	the 	EERA.
Article 	VI. 	Job 	Representatives
The 	totality 	of 	Article 	VI 	of 	CSEA's 	contract 	proposals
concerns 	union 	job 	representatives. 	The 	article 	provides 	as
follows:
6.1 	Purpose: 	The 	District 	recognizes 	the
need 	and 	affirms 	the 	right 	of 	CSEA 	to
designate 	Job 	Representatives 	from 	among
employees 	in 	the 	unit. 	It 	is 	agreed 	that
CSEA 	in 	appointing 	such 	representatives 	does
so 	for 	the 	purpose 	of 	promoting 	an 	effective
relationship 	between 	the 	District 	and
employees 	by 	helping 	to 	settle 	problems 	at
the 	lowest 	level 	of 	supervision.
6.2 	Selection 	of 	Job 	Representatives: 	CSEA
reserves 	the 	right 	to 	designate 	the 	number
and 	the 	method 	of 	selection 	of 	Job
Representatives. 	CSEA 	shall 	notify 	the
District 	in 	writing 	of 	the 	names 	of 	the 	Job
Representatives 	and 	the 	group 	they
represent. 	If 	a 	change 	is 	made, 	the
District 	shall 	be 	advised 	in 	writing 	of 	such
change.
Duties 	and 	Responsibilites 	of 	Job
Representatives: 	The 	following 	shall 	be
understood 	to 	constitute 	the 	duties 	and
responsibilities 	of 	Job 	Representatives:
6.3.1 	After 	notifying 	his/her 	immediate
superior, 	a 	Job 	Representative 	shall 	be
permitted 	to 	leave 	his/her 	normal 	work 	area
duri 	reasonable 	times 	in 	order 	to 	assist
in 	investigation, 	preparation, 	writing, 	and
presentation 	grievances. 	The 	Job
39

Representative
	is
	permitted
	to 	discuss
	any
problem
	with
	all
	employees
	immediately
concerned, 	and,
	if
	appropriate, 	to
	attempt
to
	achieve
	settlement
	in
	accordance 	with
	the
grievance 	procedure.
6.3.2
	If,
	due
	to
	an
	emergency,
	an
	adequate
level
	of
	service
	cannot
	be
	maintained 	in 	the
absence
	of
	a
	Job
	Representative
	at
	the
	time
of 	the
	notification
	mentioned
	in
	6.3.1,
	the
Job
	Representative
	shall
	be
	permitted
	to
leave
	his/her
	normal
	work
	area
	no
	later
	than
two
	hours
	after
	the
	Job
	Representativeprovides
	notification.
6.3.3
	A
Job
	Representative
	shall
	be
	granted
release
	time
	with
	pay
	to
	accompany 	a
CAL-OSHA
	representative
	conducting
	an
on-site
	walk-around
	safety
	inspection 	of
	any
area,
	department,
	division,
	or
	other
subdivision 	for
	which
	the
	Job
	Representative
has
	responsibilities
	as
	a
	Job
	Representative.
6.4
	Authority:
	Job
	Representatives
	shall
have
	the
	authority 	to
	file
	notice
	and
	take
action
	on
	behalf 	of 	bargaining
	unit
employees
	relative
	to 	rights
	afforded
	under
this
	agreement.
6.5
	CSEA
	Staff
	Assistance:
	Job
Representatives
	shall 	at
	any
	time 	be
entitled
	to
	seek
	and
	obtain 	assistance
	from
CSEA
	Staff
	Personnel.
CSEA
	argues,
	and
	I
	agree,
	that
	the
	provisions
	set 	forth
	in
Article
	VI
	relate
	to
	wages,
	hours
	and
	the 	grievance
procedures.
	The
	selection
	and
	authority 	of 	job
	representatives
relates 	directly
	to 	the 	administration 	the 	provisions	
of	
the
agreement.
Typically, 	job 	representatives
	or 	union
	stewards, 	as 	they
are 	fr 	ly 	called,
	form
	funct
	critical
	the 	entire
grievance 	ocedure.
	As
	set 	out	
s	
ti
	6.3.1,
40

representatives 	investigate
	and
	prepare 	grievances
	and
	present
the 	merits
	of 	the 	grievance
	to
	the
	individual
	designated
	to
hear 	the
	issues
	at
	the
	various
	steps
	of 	the
	process.
Subarticles
	6.3.1,
	6.3.2
	and
	6.3.3
	additionally
	bear
	a
relationship
	to
	hours
	and 	wages
	because
	the 	proposals 	seek
released
	time
	for
	employees
	serving
	as
	CSEA
	job
representatives.
	Section 	3543.l(c) 	of
	EERA,
	which
	specifically
grants
	employee
	organization 	representatives
	the
	right 	to
receive 	reasonable 	periods 	of
	released
	time
	for
	grievance
processing,
	does
	not
	preclude 	the 	finding
	that
	these 	proposals
are 	negotiable.
	To
	the
	contrary,
	the
	Legislature's
	intent
	to
insure
	that
	organization 	representatives
	shall
	be
	granted
reasonable
	amounts
	of 	released
	time
	for 	grievance
	processing
without
	loss 	of
	compensation
	supports 	the 	conclusion
	that
	the
relationship
	to
	enumerated
	subjects
	is
	not
	offset
	by 	a
managerial
	interest
	in 	precluding 	or
	regulating 	released 	time.
In
	finding
	that 	Article
	VI,
	in
	its
	entirety, 	is
	a
negotiable 	subject,
	I
	specifically 	reject
	the 	hearing
	officer's
finding
	that 	subarticle
	6.5
	is
	overly
	broad
	and
	therefore
outside 	of 	scope.
	It
	is 	related 	to 	the 	grievance 	procedure
	as
well 	as
	to
	hours
	and 	wages
	to 	the 	extent 	that
	it
	contemplates
released
	time 	for 	the 	job
	representatives 	to 	obtain 	assistance
from
	CSEA
	staff
	personnel. 	Since 	the
	District
	does 	not
regulate 	the 	entitlement 	to 	ass 	tance, 	the 	thrust 	of 	the
41

proposal
	is 	clearly
	the
	provision 	of
	time
	for
	obtaining
	such
assistance.
	In
	sum,
	Article
	VI
	is
	negotiable.
Article
	X.
	Employee
	Expenses
	and
	Materials
Article
	X
concerns
	several
	proposals
	which
	relate
	to
employee
	expenses
	and
	materials.
	Subarticle
	10.1
	provides:
10.1
	Uniforms:
	The
	District
	shall
	pay
	the
full
	cost 	of 	the 	purchase,
	lease,
	rental,
cleaning
	and
	maintenance
	of
	uniforms,equipment,
	identification
	badges,
	emblems
and
	cards 	required
	by
	the
	District
	to
	beworn
	or
	used
	by
	bargaining
	unit
	employees.
This
	provision,
	as
	the 	hearing
	officer
	found,
	relates
	to
	wages
because
	it
	releases
	the
	individual
	employee 	from
	assuming
	the
cost
	of
	uniforms, 	equipment, 	badges,
	emblems 	and
	cards.
	By
	its
terms,
	this
	item
	accommodates 	any
	right 	that
	management
	has 	in
determining
	if
	certain
	of
	its
	classified
	employees
	will
	be
required 	to
	wear
	uniforms 	or
	carry
	identification
	badges,
emblems
	or
	cards.
	In
	this
	regard,
	subarticle
	10.1 	in
	no
	way
contravenes 	or 	supersedes
	section
	45138
	of 	the 	Education
Code.16	
It
	seeks
	to 	incorporate 	into
	the 	provisions 	of
	the
negotiated
	agreement
	this 	statutory 	right
	and
	to 	provide
	that
16In
	pertinent 	part, 	section
	45138
	of 	the 	Education
	Code
provides: 
The
	governing 	board
	of
	any
	school
	district
may
	require 	the 	wearing 	of
	a
	distinctive
uniform
	by
	classified
	personnel.
	The
	costof 	the 	purchase, 	lease
	or
	rental 	ofuniforms, 	equipment,
	identification
	badges,emblems, 	and
	cards 	required
	by
	the
	district
11
	ne 	by
	district.
42

any
	failure
	to
	assume
	the
	financial
	burden
	and
	thereby
eliminate
	incursions
	into
	the
	employees'
	wages
	will
	be
	subject
to
	remedy
	through
	the 	grievance 	procedure.
	Although
	it
	also
seeks
	to
	have
	the
	Districts
	pay
	for
	cleaning
	and
	maintenance,
such
	a
	provision
	does
	not
	conflict
	with
	section
	45138,
	supra,
since
	the
	statute
	does
	not 	provide
	that
	the
	specified
	items 	are
the
	only
	costs
	the
	Districts
	may
	bear.
	I
	therefore
	conclude
that 	subarticle 	10.1
	is
	negotiable.
Subarticles
	10.2.1
	and
	10.2.2
	provide:
10.2.1
	Tools:
	The
	District
	agrees 	toprovide
	all
	tools,
	equipment,
	and
	supplies
reasonably 	necessary 	to
	bargaining
	unit
employees
	for
	performance
	of
	employment
duties.
10.2.2
	Notwithstanding
	Section
	10.2.1,
	if
an
	employee
	in 	the 	bargaining
	unit
	provides
tools
	or
	equipment 	belonging
	to 	the
	employee
for
	use
	in
	the 	course 	of
	employment,
	the
District
	agrees 	to
	provide
	a
	safe 	place 	to
store
	the
	tools
	and
	equipment
	and
	agrees 	to
pay
	for
	any
	loss
	or
	damage
	or 	for 	thereplacement
	cost
	of 	the
	tools 	resulting
	from
normal
	wear 	and
	tear.
Taken
	together,
	these 	provisions
	logically
	and
	reasonably
relate
	to
	wages.
	They
	require 	the
	Districts
	to
	bear
	the
	cost
of 	furnishing
	most
	tools,
	etc.,
	and
	require 	that
	when
	tools
	and
equipment 	which 	belong
	to
	employees
	are
	on
	the 	job,
	the
Districts 	will
	be
	required 	to
	assume
	the
	responsibility	
of
providing
	a
	safe 	storage 	place
	and
	to
	pay
	for
	loss,
	damage
	or
replacement 	costs
	if
	necessitated 	by	
wear
	ar.
	These
s	
ti
	seek 	to 	event 	such 	s 	from
	bei 	re
	ir
43

to
	use
	their
	own
	wages
	to
	generally
	finance 	the
	cost
	of
	tools,
equipment
	and
	supplies
	and,
	in
	the 	event 	of
	use
	of
	their
personal
	tools,
	etc.,
	the
	cost
	for
	loss
	or
	damage
	attendant 	to
the
	use
	of
	such
	equipment. 	In
	agreement
	with 	the 	hearing
officer's
	conclusion,
	I
	find 	these
	two
	proposals
	to
	be
negotiable.
In
	its
	proposal
	set
	forth
	in
	subarticle
	10.3,
	CSEA
	seeks 	to
negotiate
	the 	following:
10.3 	Replacing
	or 	Repairing
	Employee's
Property:
	The
	District 	shall 	fully
compensate
	all
	bargaining
	unit
	employees
	for
loss
	or
	damage
	to 	personal 	property 	in 	thecourse 	of
	employment.
This
	provision,
	like 	subarticles
	10.2.1
	and
	10.2.2 discussed
above,
	is 	related
	to
	employees'
	wages
	because
	it
	proposes
	that
the
	Districts
	bear
	financial 	responsibility
	for
	loss
	or
	damage
to 	personal 	property.
	It
	is,
	by
	its
	terms,
	limited 	to 	such
loss
	or
	damage 	which
	is
	occasioned 	in 	the 	course 	of
	employment
and
	involves
	no
	impermissible
	intrusion 	into 	the 	sphere
	of
managerial
	control
	or
	public 	policy.
	It
	is
	therefore
	fully
negotiable.
The
	Proposal
	set 	forth
	in
	subarticle
	10.5 	provides:
10.5
	Non-owned 	Automobile
	Insurance:
	The
District
	agrees 	to 	provide 	the 	primary
personal 	injury
	and
	property
	damage
insurance 	to 	protect
	employees
	in 	the 	event
that
	employees
	are 	required 	to 	use
	theirpersonal 	vehicles
	on 	employer
	business.
44

The
	hearing
	officer
	concluded
	that
	this
	item
	is
	negotiable
because
	it
	relates
	to
	wages 	and
	because, 	with 	regard
	to
expenses
	incurred
	following
	personal
	injury,
	it
	additionally
relates
	to
	health
	and
	welfare
	benefits.
	I
	am
	in
	agreement 	with
this
	assessment.
CSEA's
	proposal
	seeks
	to 	obtain
	agreement
	that
	the
Districts
	provide
	this
	insurance
	coverage 	so
	that 	individual
employees
	need
	not 	deduct
	such 	expenses
	from
	their
	wages.
Health
	and
	welfare
	benefits,
	as
	an
	enumerated 	term
	and
condition 	of
	employment, 	encompasses
	the
	benefit
	of
	financial
responsibility
	assumed 	by
	the
	employer
	for 	insurance 	coverage
for
	an
	employee's
	personal
	injury.
	The
	employer 	must
	negotiate
about
	this
	provision.
In
	subarticle
	10.7,
	CSEA
	proposes 	the 	following 	item:
10.7
	Employee
	Achievement
	Awards: 	The
District
	agrees 	to 	provide
	a
	regular
	program
of
	monetary 	awards
	for 	valuable 	suggestions,
services,
	or
	accomplishments
	to 	bargaining
unit
	employees 	under
	the 	provisions 	of
Education
	Code
	Sections 	(sic)
	12917
	or
	its
successor.
	The
	District
	agrees 	to
	develop
the
	program
	through
	consultation
	with
	CSEA.
The
	provision 	in 	the 	Education
	Code, 	which
	is
	expressly
incorporated 	into 	this
	proposal, 	permits 	the 	public 	school
employer
	to 	grant
	achievement 	awards.17	
Through
	the
17section
	12917
	has 	been
	recodified 	without 	change
	assection
	44015
	of 	the 	revised
	(1977)
	Education 	Code.
	It
	readsas 	follows:
45

negotiating 	process,
	CSEA
	seeks
	to
	participate
	in
	the
development
	of
	a
	regular
	program
	of
	awards
	consistent
	with 	the
The
	governing
	board
	of
	a
	school
	district
	may
make
	awards
	to
	employees
	who:
(a)
	Propose
	procedures 	or 	ideas
	which
thereafter
	are
	adopted
	and
	effectuated,
	and
which
	result
	in
	eliminating
	or 	reducing
district
	expenditures 	or
	improving
operations;
	or
(b)
	Perform
	special 	acts
	or
	specialservices
	in 	the 	public
	interest;
	or
(c)
	By
	their
	superior
	accomplishments,
	make
exceptional 	contributions 	to
	the
	efficiency,
economy
	or
	other
	improvement
	in
	operations
of
	the 	school
	district.
Before
	any
	such
	awards
	are
	made,
	the
governing 	board
	shall
	adopt
	rules
	and
regulations.
	The
	board
	may
	appoint
	one
	or
more
	merit
	award
	committees
	made 	up
	of
district
	officers,
	district
	employees,
	or
private
	citizens
	to 	consider
	employee
proposals, 	special 	acts, 	special 	services,
or
	superior
	accomplishments
	and
	to 	act
affirmatively
	or
	negatively 	thereon 	or
	to
provide
	appropriate
	recommendations
	thereon
to
	the 	board.
Any 	award
	granted
	under
	the 	provisions 	of
this
	section
	which 	may 	be 	made 	by 	an 	awards
committee 	under
	appropriate
	district
	rules,
shall
	not 	exceed
	two
	hundred
	dollars
	($200),
unless
	a
	larger
	award
	is
	expressly
	approvedby
	the 	governing 	board.
When 	an 	awards 	program
	is 	established 	in
	a
school
	district
	under
	the 	provisions 	of
	thissection, 	the 	governing 	board
	shall
	budget
funds 	for
	this
	purpose 	but
	may
	authorize
awards 	from 	funds 	under
	its
	control
	whether
or 	not 	budgeted 	funds 	have 	been 	provided 	or
the
	budge
	are 	exhaus
46

Education 	Code 	rather 	than 	to 	rely 	on 	discretionary 	and
sporadic 	grants 	initiated 	solely 	at 	the 	will 	of 	the 	employer.
I 	find, 	therefore, 	that 	the 	proposal 	set 	forth 	in
subarticle 	10.7 	is 	compatible 	with 	applicable 	Education 	Code
provisions 	and 	is 	a 	subject 	about 	which 	the 	parties 	must
negotiate 	in 	compliance 	with 	the 	EERA. 	I 	find 	that 	the 	subject
of 	achievement 	awards 	relates 	to 	wages 	as 	well 	as 	to 	evaluation
procedures.
In 	reviewing 	this 	proposal, 	the 	hearing 	officer 	examined
numerous 	cases 	which 	distinguish 	merit 	or 	incentive 	pay 	from
gifts 	or 	bonuses. 	(NLRB 	v. 	Wonder 	State 	Mfg. 	Co. 	(8th 	Cir.
1965) 	344 	F.2d 	210 	[59 	LRRM 	2065]; 	NLRB 	v. 	Niles-Bement-Pond
Co. 	(2d 	Cir. 	1952) 	199 	F.2d 	713 	[31 	LRRM 	2057] .) 	The 	hearing
officer 	also 	considered 	federal 	precedent 	relating 	to 	incentive
or 	wage 	enhancement 	plans 	which 	are 	found 	to 	be 	negotiable
subjects 	notwithstanding 	the 	employer's 	argument 	that
encouragement 	of 	productivity 	is 	a 	management 	prerogative.
(NLRB 	v. 	Century Cement 	Mfg. 	Co. 	(2d 	Cir. 	1953) 	208 	F.2d 	84
[33 	LRRM 	2061]; 	NLRB 	v. 	Katz 	(1962) 	369 	U.S. 	736 	[82 	s.ct.
1107, 	50 	LRRM 	2177] .) 	He 	concluded 	that 	CSEA's 	proposal 	seeks
to 	compel 	negotiations 	regarding 	gifts 	and 	that 	CSEA cannot
require 	the 	employer 	to 	negotiate 	such 	a 	discretionary 	award.
I 	disagree.
The 	monetary 	grants 	delineated 	in 	the 	Education 	Code
include 	employees 1 	suggestions 	propos 	resulti 	int
47

elimination 	or 	reduction 	of 	expenditures, 	operation
improvements, 	performance 	of 	special 	acts 	or 	services 	in 	the
public 	interest, 	superior 	accomplishments 	and 	exceptional
contributions. 	I 	perceive these 	bases 	for 	awards 	as 	analogous
to 	productivity 	encouragement 	in 	the 	private 	sector 	in 	that
they 	are 	an 	inducement 	to 	work 	and 	are 	remuneration 	for 	work
accomplished. 	The 	proposal 	is 	an 	effort 	to 	reduce 	the
completely 	discretionary 	nature 	of 	award 	grants 	and 	to
standardize 	the 	process.
The 	Iowa 	Public 	Employment 	Relations 	Board 	determined 	that
monetary 	recognition 	of 	employees' 	work 	performance 	as 	measured
by 	employees' 	attitudes, 	efficiency 	and 	production 	is 	merit 	pay
and, 	viewing 	such 	as 	increased 	compensation, 	held 	that 	the
procedures 	for 	distribution 	of 	merit 	pay 	relate 	to 	wages 	and
are 	negotiable. 	{In 	re 	Area 	IV Community 	College 	Education
Association 	(PERB 	1976) 	Case 	Nos. 	663 	and 	674.)
I 	similarly 	conclude 	that 	this 	proposal 	relates 	to 	the
procedures 	for 	merit 	pay 	and 	bears 	a 	logical 	and 	reasonable
relationship 	to 	employee 	wages. 	I 	also 	perceive 	a 	logical 	and
reasonable 	relationship 	to 	evaluative 	procedures. 	No
management 	prerogative 	exists 	which 	vitiates 	this 	cone 	sion 	of
negotiability. 	To 	the 	contrary, 	I 	find 	that 	significant 	public
policy 	considerations 	relevant 	to 	improved 	efficiency 	of
operations 	are 	served 	by 	subjecting 	this 	proposal 	to 	the
iating
48

Subarticle 	10.8 	as 	proposed 	by CSEA provides:
10.8 	Hold 	Harmless 	Clause: 	Whenever 	any
civil 	or 	criminal 	action 	is 	brought 	against
an 	employee 	for 	any 	action 	or 	omission
arising 	out 	of, 	or 	in 	the 	course 	of, 	the
duties 	of 	that 	employee, 	the 	District 	agrees
to 	pay 	the 	costs 	of 	defending 	such 	action,
including 	costs 	of 	counsel 	and 	of 	appeals,
if 	any, 	and 	shall 	hold 	harmless 	from 	and
protect 	such 	employee 	from 	any 	financial
loss 	resulting 	therefrom.
Similar 	to 	other 	subarticles 	discussed 	above, 	this 	provision,
as 	the 	hearing 	officer 	concluded, 	bears 	ample 	relationship 	to
wages. 	While 	management 	clearly 	has 	a 	financial 	interest, 	that
concern 	is 	present 	in 	numerous 	negotiable 	proposals 	and 	does
not 	render 	a 	proposal 	nonnegotiable. 	This 	proposal 	is
negotiable 	because 	it 	seeks 	to 	avoid 	financial 	loss 	arising 	out
of 	civil 	or 	criminal 	actions 	initiated 	against 	an 	employee 	and
it 	therefore 	relates 	to 	employees' 	salary 	or 	remuneration.
(See 	Bittendorf 	Community 	School 	District 	and 	Dubuque 	Community
School 	District 	(Iowa 	PERB 	1976) 	Case 	Nos. 	598 	and 	602.)
Article 	XI. 	Rights 	of 	Bargaining 	Unit 	Upon
Change 	in 	School 	Districts
Article 	XI 	of 	CSEA's 	proposals 	seeks 	to 	protect 	the 	rights
of 	the 	bargaining 	unit 	employees 	and 	their 	exclusive
representative 	in 	the 	event 	of 	changes 	in 	the 	school 	district.
It 	reads 	as 	follows:
Rights 	of 	Bargaining 	Unit: 	Any 	division,
uniting, 	unification, 	unionization,
annexation, 	or 	merger 	or 	deunification, 	or
change 	District 	aries 	or
49

organization 	shall 	not 	affect 	the 	rights 	of
individual 	bargaining 	unit 	employees 	under
this 	Agreement, 	nor 	alter 	the 	exclusive
representation 	standing 	of 	CSEA. 	This
Agreement 	shall 	be 	binding 	upon 	any 	new
governing 	board 	resulting 	therefrom, 	which
employs 	employees 	currently a 	part 	of 	the
bargaining 	unit 	during 	the 	term 	of 	this
Agreement.
CSEA urges 	that 	this 	item 	relates 	to 	every mandatory 	subject
under 	EERA 	because 	it 	seeks 	to 	preserve 	and 	protect 	the
contract 	rights 	of 	unit 	employees. 	The 	subject 	of 	employees'
rights 	and 	changes 	in 	school 	districts 	is 	addressed 	in
section 	45118 	of 	the 	Education 	Code 	which 	provides:
Any 	division, 	uniting, 	unionization,
annexation, 	merger, 	or 	change 	of 	school
district 	boundaries 	shall 	not 	affect 	the
rights 	of 	persons 	employed 	in 	positions 	not
requiring 	certification 	qualifications 	to
continue 	in 	employment 	for 	not 	less 	than 	two
years 	and 	to 	retain 	the 	salary, 	leaves 	and
other 	benefits 	which 	they 	would 	have 	had 	had
the 	reorganization 	not 	occurred, 	and 	in 	the
manner 	provided 	in 	this 	article:
(a) 	All 	employees 	of 	every 	school 	district
which 	is 	included 	in 	any 	other 	district, 	or
all 	districts 	included 	in 	a 	new 	district,
shall 	become 	employees 	of 	the 	new 	district.
(b) 	When 	a 	portion of 	the 	territory 	of 	any
district 	becomes 	a 	part 	of 	another 	district
employees 	regulary 	assigned 	to 	perform 	their
duties 	in 	the 	territory 	affected 	shall
become 	employees 	of 	the 	acquiring 	district.
Employees 	whose 	assignments 	pertained 	to 	the
affected 	territory, 	but 	whose 	employment
situs 	was 	not 	in 	such 	territory, 	may 	elect
to 	remain 	with 	the 	original 	district 	or
become 	employees 	of 	the 	acquiring 	district.
50

{c)
	When
	the
	territory
	of
	any
	district
	is
divided
	between
	or
	among 	two
	or
	more
districts
	and
	the
	original
	district
	ceases
to
	exist,
	employees
	of 	the
	original
	district
regularly
	assigned
	to
	perform
	their
	duties
in
	any
	specific
	territory
	of
	such
	district
shall
	become
	employees
	of 	the
	district
acquiring 	the
	territory.
	Employees
	not
assigned
	to
	specific
	territory
	within 	the
original
	district
	shall
	become
	employees
	of
any
	acquiring
	district
	at 	their 	election.
(d) 	Employees
	regularly
	assigned
	by
	the
original
	district
	to
	any
	school
	in 	said
district
	shall
	be 	an 	employee
	of 	the
district
	in
	which
	said
	school
	is
	located.
Except 	as
	herein
	provided, 	nothing
	herein
shall
	deprive 	the
	governing
	board
	of 	the
acquiring
	district
	from 	making
	reasonablereassignments
	of
	duties.
Assuming
	that
	the
	proposal
	relates
	to 	the
	enumerated
	subjects
as
	CSEA
	asserts,
	the 	breadth 	of
	the
	article
	renders
	it
nonnegotiable
	because
	it
	precludes 	the
	Districts
	from
	making
any
	division, 	uniting, 	unification,
	annexation, 	merger,
	or
change
	of 	boundaries 	or
	organization
	which 	would
	affect
employees
	or
	alter
	CSEA's
	status
	as
	exclusive
	representative.
Without 	doubt,
	this
	proposal 	intrudes 	into 	essential
	and
central
	areas 	of
	management
	prerogative
	as 	well 	as
	educational
and
	public policy 	concerns.
	CSEA
	is
	permitted 	to 	negotiate
	a
proposal
	which
	addresses 	the
	impact
	and
	implementation
	of
	such
decisions.
	However, 	by
	the 	terms 	of
	this 	article,
	CSEA
	seeks
to 	prohibit 	the
	District's
	decision 	to 	deunify 	the 	school
district,
	for 	example,
	if 	it
	affects
	the
	rights 	of 	unit
employees 	or
	CSEA's
	status
	as 	the 	exclusive 	representative.
51

Such
	prohibitions
	intrude
	on
	essential
	managerial
	prerogatives
and,
	thus,
	I
	conclude
	that,
	in
	this
	respect,
	the
	present
proposal
	is
	nonnegotiable.
Article
	XVII.
	Hiring
In
	Article
	XVII,
	CSEA
	seeks
	to
	define 	various
	categories
	of
employees
	and,
	it
	argues,
	to 	protect
	the
	wage 	and
	hour
interests
	of
	unit
	employees.
	Subarticle 	17.1
	deals
	with
short-term
	employees
	and
	provides:
17.1
	Short-Term
	Employees:
17.1.1
	Persons
	hired
	for
	a
	specific
temporary
	project
	of 	limited 	duration
	whichwhen
	completed
	shall
	no
	longer
	be
	required
shall
	be
	classed
	as
	short-term
	employees.
17.1.2
	The
	District 	shall
	notify
	CSEA
	in
writing 	of
	any
	proposed
	hiring
	of 	short-term
employees
	and
	shall
	indicate
	the
	project
	for
which
	hired
	and
	the 	probable
	duration 	of
employment
	at 	least
	ten
	(10)
	days
	prior 	to
the
	employment.
	CSEA
	shall
	be
	notified
	in
writing
	immediately
	of
	any 	change
	in
employment
	status,
	nature 	of
	project,
	or
duration 	of 	project 	affecting
	such 	employees.
17.1.3
	No
	employee
	shall
	fill
	a
	short-term
position
	or
	positions
	for
	more
	than 	126working 	days
	in
	any
	twelve
	(12)
	consecutive
months.
17.1.4
	No
	employee
	serving 	in
	a
	short-term
position
	for 	126 	days
	in
	any
	twelve 	(12)
consecutive
	months
	shall
	be 	employed
	in
	any
capacity
	by
	the
	district
	for
	a
	period 	of 	six
(6) 	months
	after
	the 	completion 	of 	the126-day
	period.
17.1.5
	If
	a
	short-term 	position 	is 	utilized
for
	more
	than
	126
	days, 	the 	position 	shall
become 	a
	bargaining 	unit 	position.
52

In 	assessing 	these 	items, 	the 	hearing 	officer 	concluded 	that,
while 	related 	to 	wages 	and 	hours, 	the 	proposals 	concerned
employees 	outside 	of 	the 	negotiating 	unit 	and 	were 	therefore
nonnegotiable.
In 	pertinent 	part, 	section 	45103 	of 	the 	Education 	Code
defines 	short-term 	employees 	as 	being 	nonclassified 	employees.
Since 	CSEA 	is 	the 	exclusive 	representative 	of 	the 	unit 	of
classified 	employees, 	these 	proposals 	do 	in 	fact 	relate 	to
positions 	over 	which 	CSEA 	is 	not 	authorized 	to 	speak.
Subarticles 	17.1.1 	through 	17.1.5 	are 	thus 	nonnegotiable.
Subarticle 	17.2 	concerns 	restricted 	employees 	and 	provides:
17.2 	Restricted 	Employees: 	A restricted
employee 	shall 	become 	a 	regular 	employee
after 	completing 	126 	working 	days 	service
and 	fulfilling 	any 	requirements 	imposed 	on
other 	persons 	serving 	in 	the 	same 	class 	as
regular 	employees. 	The 	District 	shall
provide 	restricted 	employees 	with 	an
opportunity 	to 	meet 	any 	requirements 	imposed
on 	other 	persons 	serving 	in 	the 	same 	class
as 	regular 	employees. 	On 	becoming 	a 	regular
employee 	the 	restricted 	employee 	shall 	be
considered 	as 	a 	regular 	employee 	as 	of 	the
initial 	date 	of 	employment 	for 	the 	purpose
of 	all 	benefits 	of 	employment 	except
bargaining 	unit 	seniority. 	The 	bargaining
unit 	seniority 	rights 	of 	such 	employee 	shall
commence 	as 	of 	the 	127th 	work 	day 	in 	the
position, 	and 	the 	employee 	shall 	be
immediately 	subject 	to 	the 	organizational
security 	provisions 	in 	this 	agreement.
In 	part, 	this 	provis 	concerns 	the 	classification 	of 	a
restricted 	employee 	and 	the 	requirements 	for 	classification 	as
a 	regular 	employee. 	Unlike 	short-term 	employees, 	restric
53

employees 	are 	not 	expressly 	excluded 	from 	the 	classified
service. 	However, 	section 	45105 	of 	the 	Education 	Code 	provides
in 	pertinent 	part:
(b) 	Notwithstanding 	the 	provisions 	of
subdivision 	(a), 	if 	specially 	funded
positions 	are 	restricted 	to 	employment 	of
persons 	in 	low-income 	groups, 	from
designated 	impoverished 	areas 	and 	other
criteria 	which 	restricts 	the 	privilege 	of
all 	citizens 	to 	compete 	for 	employment 	in
such 	positions, 	all 	such 	positions 	shall, 	in
addition 	to 	the 	regular 	class 	title, 	be
classified 	as 	"restricted." 	Their 	selection
and 	retention 	shall 	be 	made 	on 	the 	same
basis 	as 	that 	of 	persons 	selected 	and
r~tained 	in 	positions 	that 	are 	a 	part 	of 	the
regular 	school 	program, 	.
(2) 	Persons 	employed 	in 	positions 	properly
classified 	as 	"restricted" 	shall 	be
classified 	employees 	for 	all 	purposes 	except:
(A) 	They 	shall 	not 	be 	accorded 	employment
permanency 	under 	Section 	45113 	or
Section 	45301 	of 	this 	code, 	whichever 	is
applicable.
(B) 	They 	shall 	not 	acquire 	seniority
credits 	for 	the 	purposes 	of 	Sections 	45298
and 	45308 	of 	this 	code 	or, 	in 	a 	district 	not
having 	the 	merit 	(civil 	service) 	system, 	for
the 	purposes 	of 	layoff 	for 	lack 	of 	work 	or
lack 	of 	funds 	as 	may 	be 	established 	by 	rule
of 	the 	governing 	board.
(C) 	The 	provisions 	of 	Sections 	45287
45289 	shall 	not 	apply 	to 	"restricted"
employees.
(D) 	They 	shall 	not 	be 	eligible 	for
promotion 	into 	the 	regular 	classified
service 	or, 	in 	districts 	that 	have 	adopted
the 	merit 	system, 	shall 	not 	be 	subject 	to
54

the 	prov1s1ons 	of 	Section 	45241, 	until 	they
have 	complied 	with 	the 	provisions 	of
subdivision 	(c).
Based 	on 	this 	language, 	restricted 	employees 	are 	officially
considered 	to 	be 	part 	of 	the 	classified 	service 	although 	they
are 	not 	so 	considered 	for 	certain 	delineated 	purposes. 	Thus,
for 	those 	aspects 	of 	restricted 	employees' 	employment
relationship 	for 	which 	they 	are 	deemed 	classified 	employees, 	an
exclusive 	representative 	could 	submit 	proposals 	and 	negotiate
with 	the 	employer 	as 	to 	restricted 	employees. 	As 	to 	the
instant 	proposal, 	however, 	CSEA 	seeks 	to 	negotiate 	the
procedure 	by 	which 	persons 	occupying 	restricted 	positions
acquire 	permanent 	status 	and 	the 	impact 	of 	this 	on 	regular
classified 	employees.
In 	this 	regard, 	section 	45105 	states 	as 	follows:
(c) 	At 	any 	time, 	after 	completion 	of 	six
months 	of 	satisfactory 	service, 	a 	person
serving 	in 	a 	"restricted" 	position 	shall 	be
given 	the 	opportunity 	to 	take 	such
qualifying 	examinations 	as 	are 	required 	for
all 	other 	persons 	serving 	in 	the 	same 	class
in 	the 	regular 	classified 	service. 	If 	such
person 	satisfactorily 	completes 	the
qualifying 	examination, 	regardless 	of 	final
numerical 	listing 	on 	an 	eligibility 	list, 	he
shall 	be 	accorded 	full 	rights, 	benefits 	and
burdens 	of 	any 	other 	classified 	employee
serving 	in 	the 	regular 	classified 	service.
His 	service 	in 	the 	regular 	classified
service 	shall 	be 	counted 	from 	the 	original
date 	of 	employment 	in 	the 	"restricted"
position 	and 	shall 	continue 	even 	though 	he
continues 	to 	serve 	in 	a 	"restr 	ted"
position.
55

Based
	on
	this
	language, 	the
	transition
	of
	a
	restricted
	employee
to
	regular
	classified
	service
	is
	codified
	by
	the
	statutory
provision
	and,
	in
	pertinent
	part,
	it
	conflicts
	with
	CSEA's
proposal.
	Therefore, 	the 	proposal
	is
	nonnegotiable.
CSEA's
	assertion 	that
	this
	proposal
	is
	negotiable
	because
of
	its
	impact
	on
	regular
	classified
	personnel
	is
	likewise
without
	merit.
	Section
	45105(e)
	provides:
(e)
	It
	is
	the
	intent
	of
	the
	Legislature
	in
enacting
	this
	section 	to
	clearly 	set
	forth
that
	positions
	normally
	a
	part
	of 	the
classified
	service 	are
	included
	thereinregardless 	of
	the 	source
	of
	income
	to
sustain
	such
	positions
	and
	to
	effectively
implement
	specially
	funded 	programs
	intended
to
	provide 	job
	opportunities
	for 	untrained
and
	impoverished
	persons 	but
	to
	do
	so
	in
	a
manner
	that 	will
	not
	be
	disruptive
	nor
detrimental 	to
	the
	normal
	employment
procedures
	relating
	to
	classified
	school
service.
The 	manner
	set
	forth
	above
	by 	which
	restricted
	employees
	are
	to
gain 	entrance 	into 	the 	regular
	classified
	service 	is
specifically
	delineated
	by
	statute.
	Section
	45105(e}
	further
evidences 	the
	Legislature's 	intent 	that
	those 	procedures
prevail.
	Therefore,
	subarticle
	17.2
	is
	nonnegotiable.
Subarticle
	17.3 	concerns
	substitute
	employees
	and
	provides:
17.3
	Substitute
	Employees:
	An
	employee
employed
	as
	a
	substitute
	for
	more
	than
	100
working 	days
	in
	any
	six
	(6) 	month
	period
shall
	be 	deemed 	a
	regular
	employee 	on
	the
first
	working 	day
	following 	the 	completion
of 	the 	100th 	day
	of 	service
	and 	suchemployee
	shall
	be 	immediately
	subject 	to 	the
organizational 	security 	provisions 	in 	this
eement.
56

As 	to 	this 	item, 	I 	am 	in 	agreement 	with 	the 	hearing 	officer
that 	it 	refers 	to 	a 	group 	of 	employees 	statutorily 	defined 	as
nonclassified 	personnel 	and 	therefore 	outside 	of 	the
negotiating 	unit 	and 	beyond 	CSEA's 	area 	of 	legitimate 	concern.
Section 	45103 	of 	the 	Education Code 	states 	that
"Substitute 	and 	short-term 	employees,
employed 	and 	paid 	for 	less 	than 	75 	percent
of 	a 	school 	year, 	shall 	not 	be 	a 	part 	of 	the
classified 	service.
II 	• 	II 	II 	e 	II 	II 	e 	• 	II 	11 0 	0 	II 	II 	II 	II 	II 	II 	II 	II 	II 	II
"Seventy-five 	percent 	of 	a 	school 	year"
means 	195 	working 	days 	..•.
The 	provisions 	of 	subarticle 	17.3 	attempt 	to 	define 	substitute
employees 	in 	a 	manner 	which 	conflicts 	with 	this 	definition.
This 	proposal 	is 	therefore 	not 	negotiable.
CSEA's 	proposal 	set 	forth 	in 	subarticle 	17.4 	concerns
student 	employees 	and 	provides:
17.4 	Student 	Employees: 	The 	District 	shall
not 	employ 	any 	students 	under 	any 	secondary
school 	or 	college 	work-study 	program, 	or 	in
any 	state- 	or 	federally-funded 	work
experience 	program 	in 	any 	position 	that
would 	directly 	or 	indirectly 	affect 	the
rights 	of 	CSEA or 	of 	any 	employee 	in 	the
bargaining 	unit.
While 	student 	employees 	are 	beyond 	the 	bounds 	of 	CSEA's 	unit,
is 	proposal 	focuses 	on 	the 	impact 	that 	the 	reliance 	on
student 	employees 	may 	have 	on 	unit 	employees. 	It 	clearly 	seeks
to 	preserve 	the 	work 	of 	unit 	employees 	and 	relates 	thereby 	to
wages, 	hours, 	and 	enumerated 	terms 	conditions
57

employment.
	The
	Districts
	have
	legitimate
	interests
	in 	the
employment
	of
	students
	since,
	for
	example, 	such
	work 	may
provide
	students
	with
	the
	financial
	ability
	to
	remain
	in
school.
	Nonetheless,
	central
	employee
	concerns
	are
	also
involved.
	The
	negotiating
	process
	is
	an
	appropriate
	forum
	for
resolving 	these
	competing
	interests.
	The
	proposal
	is
negotiable
	as
	to 	the
	impact
	of
	employment
	of 	students
	on
	the
wages, 	hours
	and
	enumerated 	terms
	and
	conditions 	of
	employment
of 	unit
	members.
	It
	is
	noted
	that 	section
	45103
	states
	in
pertinent 	part:
Employment
	of
	either 	full-time
	or
	part-timestudents
	...
	shall
	not
	result
	in
	thedisplacement
	of
	classified
	personnel 	orimpair
	existing 	contracts
	for
	services.
CSEA's
	proposal
	does
	not
	conflict
	with
	this 	statutory
	language.
Subarticle 	17.5
	concerns 	the
	distribution
	of
	job
information
	and
	provides:
17.5 	Distribution
	of
	Job
	Information:
	Upon
initial
	employment 	and
	each 	change
	in
classification
	each
	affected
	employee
	in 	the
bargaining
	unit 	shall
	receive
	a
	copy
	of 	the
applicable 	job
	description,
	a
	specification
of 	the
	monthly 	and
	hourly
	rates 	applicable
to 	his
	or 	her
	position,
	a
	statement 	of 	the
duties
	of 	the
	position,
	a
	statement 	of 	theemployee's
	regular
	work
	site,
	regularlyassigned
	work
	shift,
	the 	hours 	per 	day, 	days
per
	week, 	and 	months
	per 	year.
On
	its
	face, 	this
	provision
	relates 	to
	wages
	and 	hours
	of
	unit
employees. 	Access
	to
	this
	information
	may
	also 	relate 	to
	the
grievance 	procedure 	because, 	in 	the 	event 	of
	a
	di
	,
	it
	will
58

permit 	each 	classified 	employee 	to 	review 	the 	employer's
designation 	with 	regard 	to 	her/his 	job description, 	wages,
duties, 	work 	site, 	assigned 	shift 	and 	hours. 	There 	is 	no
employer 	prerogative 	which 	overrides 	the 	employees' 	need 	to 	be
provided 	with 	this 	information. 	In 	agreement 	with 	the 	hearing
officer, 	I 	find 	this 	proposal 	to 	be 	negotiable.
Article 	XIX. 	Promotion
Article 	XIX 	concerns 	promotions 	and 	provides 	as 	follows:
19.1 	First 	Consideration: 	Employees 	in 	the
bargaining 	unit 	shall 	be 	given 	first
consideration 	in 	filling 	any 	job 	vacancy
which 	can 	be 	considered 	a 	promotion 	after
the 	annoucement 	of 	the 	position 	vacancy.
19.2 	Posting 	of 	Notice:
19.2.1 	Notice 	of 	all 	job 	vacancies 	shall 	be
posted 	on 	bulletin 	boards 	in 	prominent
locations 	at 	each 	District 	job 	site.
19.2.2 	The 	job 	vacancy 	notice 	shall 	remain
posted 	for 	a 	period 	of 	six 	(6) 	full 	working
days, 	during 	which 	time 	employees 	may 	file
for 	the 	vacancy. 	Any 	employee 	who 	will 	be
on 	leave 	or 	layoff 	during 	the 	period 	of 	the
posting 	shall 	be 	mailed 	a 	copy 	of 	the 	notice
by 	First 	Class 	Mail 	on 	the 	date 	the 	position
is 	posted.
19.3 	Notice 	Contents: 	The 	job 	vacancy
notice 	shall 	include: 	The 	job 	title, 	a
brief 	description 	of 	the 	position 	and
duties, 	the 	minimum qualifications 	required
for 	the 	position, 	the 	assigned 	job 	site, 	the
number 	of 	hours 	per 	day, 	regular 	assigned
work 	shift 	times, 	days 	per 	week, 	and 	months
per 	year 	assigned 	to 	the 	position, 	the
salar 	range, 	and 	the 	deadline 	for 	fili 	to
fi 	vacancy.
59

19.4
	Filing:
	Any
	employee
	in
	the
bargaining
	unit
	may
	file
	for 	the
	vacancy
	by
submitting
	written 	notice 	to
	the 	personnel
department
	within 	the
	filing
	period.
	Any
employee 	on
	leave
	or
	vacation
	may
	authorize
his/her
	Job
	Representative
	to
	file
	on
	the
employee's
	behalf.
19.5
	Certification
	of 	Applicants:
	Within
five
	(5)
	days
	following 	completion
	of 	the
filing
	period,
	the 	personnel
	office 	shall
certify
	in 	writing
	the
	qualifications
	of
applicants
	and
	notify
	each
	applicant
	of
his/her
	standing.
19.6 	Promotional 	Order:
	Any
	employee
	inthe 	bargaining
	unit
	who
	files
	for 	the
vacancy
	during 	the 	posting 	period
	and
	meets
the
	minimum
	qualifications 	shall
	be
	promoted
into
	the 	vacant
	position.
	If
	two 	(2)
	or
more
	employees
	who
	file
	meet
	the
	minimum
qualifications,
	the
	employee
	with 	the
greatest
	bargaining
	unit 	seniority 	shall
	be
the
	one
	promoted.
	In
	the 	event
	that
	two 	(2)
or
	more
	employees 	have
	identical 	seniority,
the
	employee
	to
	fill
	the
	position
	shall
	be
selected
	by
	lot.
Provisions
	set
	forth
	in
	this 	article
	seek
	to
	provide 	employees
with
	substantive
	as 	well 	as
	procedural
	rights 	pertaining
	to
promotions.
	Typically,
	persons 	granted
	promotions
	are
	subject
to
	the 	employer's 	review 	through 	the 	evaluation 	procedure 	in
order 	to 	insure
	that
	the 	best 	qualified
	candidate
	is 	selected.
The
	substantive 	provisions 	of
	this 	article 	set 	forth 	the
	need
for 	evaluations,
	and
	therefore
	I
	conclude
	that 	this
	artic
bears
	a
	logical
	and
	reasonable
	relationship 	to 	evaluation
procedures.
60

In 	addition, 	promotions 	also 	typically 	impact 	on 	the 	wages
received 	by 	employees. 	Therefore, 	the 	promotion 	article 	is
also 	related 	to 	wages.
The 	employer's 	interest 	extends 	to 	concerns 	that 	only
qualified 	employees 	occupy 	positions 	that 	require 	greater
responsibility 	or 	skill. 	Subarticles 	19.2 	through 	19.5 	concern
procedural 	rights 	of 	employees 	and 	do 	not 	substantially 	intrude
on 	the 	employer's 	managerial 	concerns. 	Subarticle 	19.1 	would
require 	first 	consideration 	be 	given 	to 	unit 	employees 	but, 	by
its 	terms, 	would 	not 	compel 	selection 	of 	any 	individual
employee 	and 	certainly 	not 	an 	unqualified 	candidate.
Subarticle 	19.6 	similarly 	poses 	no 	threat 	to 	the 	employer's
legitimate 	concern 	for 	qualified 	employees 	because 	it
contemplates 	that 	any 	employee 	selected 	will 	first 	meet 	the
minimum 	qualifications 	required 	by 	the 	vacant 	position.
While 	the 	employer 	has 	a 	valid 	interest 	in 	choosing 	not
only 	qualified 	persons 	but 	employees 	it 	desires 	to 	select,
employees 	have 	a 	strong 	interest 	in 	receiving 	priority
promotional 	consideration. 	No 	central 	managerial 	prerogative
is 	usurped 	by 	requiring 	these 	conflicting 	interests 	to 	be
subjected 	to 	the 	meeting 	and 	negotiating 	ss. 	There 	e,
to 	the 	extent 	that 	this 	article 	relates 	to 	an 	employee's
promotion 	into 	negotiating 	unit 	positions, 	it 	is
61

negotiable.18 	As 	the 	hearing 	officer 	notes, 	the 	proposals
are 	negotiable 	here 	only 	as 	to 	employees 	CSEA 	represents 	as
part 	of 	this 	unit.
Article 	XX. 	Classification, 	Reclassification,
and 	Abolition 	of 	Positions
Article 	XX 	relates 	to 	classification, 	reclassification 	and
abolition 	of 	positions. 	Subarticle 	20.1 	provides:
20.1 	Placement 	in 	Class: 	Every 	bargaining
unit 	position 	shall 	be 	placed 	in 	a 	class.
The 	individual 	employee's 	position 	classification 	directly
impacts 	on 	her/his 	wages 	and 	hours 	of 	employment 	as 	well 	as 	on
transfer 	policies, 	safety 	conditions 	and 	evaluation
procedures. 	CSEA's 	attempt 	to 	require 	that 	each 	position 	be
classified 	invades 	no 	managerial 	prerogative 	since 	applicable
provisions 	of 	the 	Education 	Code 	impose 	a 	similar 	requirement.
(See 	Ed. 	Code 	sec. 	45103.) 	This 	proposal 	merely 	seeks 	to
include 	this 	obligation 	in 	the 	negotiated 	agreement 	thereby
18r 	am 	in 	agreement 	with 	the 	hearing 	officer's 	comment
that 	the 	defeat 	of 	Senate 	Bill 	No. 	288, 	which 	sought 	to 	amend
section 	3543.2 	of 	EER..~ 	to 	include 	promotions 	as 	an 	enumerated
item, 	is 	not 	determinative 	of 	the 	question 	of 	negotiability.
It 	is 	speculative 	to 	decide 	whether 	the 	bill 	was 	intended 	to
add 	a 	subject 	which 	was 	previously 	excluded 	or 	to 	specify 	what
was 	the 	previous 	intent 	of 	section 	3543.2. 	Defeat 	may 	have
meant 	there 	was 	legislative 	opposition 	to 	providing 	that
promotions 	were 	negotiable. 	Or 	it 	may 	have 	meant 	that
legislation 	was 	unnecessary 	since 	promotions 	were 	already
assumed 	to 	be 	covered 	in 	3543.2. 	In 	sum, 	it 	is 	not 	possible 	to
reach 	any 	clear 	interpretation 	from 	the 	defeat 	of 	such 	a
legislative 	proposal.
62

subjecting 	the 	employer's 	failure 	to 	comply 	to 	the 	grievance
procedure. 	The 	proposal 	is 	negotiable.
Subarticle 	20.2 	provides:
20.2 	Classification 	and 	Reclassification
Requirement: 	Position 	classification 	and
reclassification 	shall 	be 	subject 	to 	mutual
written 	agreement 	between 	the 	District 	and
CSEA, 	and 	any 	dispute 	shall 	be 	subject 	to
the 	grievance 	procedure. 	Either 	party may
propose 	a 	reclassification 	at 	any 	time
during 	the 	life 	of 	this 	agreement 	for 	any
position.
This 	provision 	pertains 	to 	position 	classifications 	and 	is
related 	to 	wages, 	hours 	and 	other 	enumerated 	items 	as 	discussed
above 	in 	reference 	to 	subarticle 	20.1. 	This 	item, 	however,
would 	additionally 	permit 	CSEA 	to 	take 	an 	active 	role 	in 	the
classification 	or 	reclassification 	decision 	itself.
As 	defined 	by 	Education 	Code 	section 	4510l(a), 	the
classification 	of 	positions 	involves 	a 	myriad 	of 	critical
management 	concerns 	including 	questions 	central 	to 	the
employer's 	mission 	such 	as 	the 	direction 	and 	organization 	of
the 	work 	force. 	In 	my 	view, 	because 	decisions 	of 	this 	nature
bear 	heavily 	on 	the 	employer's 	right 	to manage 	its 	work 	force
and 	may 	impact 	on 	public 	policy 	concerns, 	I 	view 	classification
and 	reclassification 	decisions 	as 	il 	ited 	to 	the 	bilateral
negotiation 	process. 	Although 	employees 	have 	a 	strong 	interest
in 	the 	effect 	decisions 	regarding 	classification 	and
rec 	sification 	on 	their 	wages, 	hours 	enumerated 	terms
conditions, 	this 	tance 	the 	manageri 	concerns 	are
63

sufficiently
	strong 	to
	render
	this
	proposal 	nonnegotiable.
CSEA
may
	vary
	its
	proposal
	and
	seek
	to
	gain
	avenues
	of
	relief
through 	the 	grievance
	procedure 	for 	those
	employees
	who
	contest
the 	appropriateness 	of
	their
	placement
	in
	a
	specific
	category.
Similarly,
	the 	inaccuracy 	of
	an
	existing
	classification
	may 	be
addressed 	in
	a
	proposal
	which 	would
	permit
	resolution
	of
	such
disputes
	through
	the 	grievance 	procedure.
	However,
	the 	breadth
of 	subarticle
	20.2
	extends
	beyond
	remedial
	procedures.
	As
	the
Chairperson
	states,
	to
	the
	extent
	that 	this
	proposal 	seeks 	to
impose 	an
	absolute
	prohibition
	on
	management's
	decision
	to
reclassify
	or
	create
	new
	classifications,
	it
	is
	beyond
	the
scope
	of 	negotiating.
	Thus,
	in
	its
	current
	form,
	this
subarticle 	is
	nonnegotiable.
CSEA's
	proposal 	in
	item 	20.3 	concerns
	new
	positions 	or
classes
	of
	positions
	and
	provides:
20.3
	New
	Positions
	or 	Classes 	of
	Positions:
All
	newly
	created 	position
	or
	classes 	of
positions,
	unless
	specifically
	exempted
	by
law,
	shall
	be
	assigned 	to 	the 	bargaining
unit
	if
	the 	job
	descriptions 	describe 	duties
performed
	by 	employees
	in 	the 	bargaining
unit
	or
	which 	by
	the 	nature 	of 	the
	duties
should 	reasonably
	be
	assigned 	to 	the
bargaining
	unit.
Contrary 	to 	the 	hearing
	officer's
	conclusion,
	this 	proposal 	is
nonnegotiable 	because
	it
	seeks 	to 	ensure
	that
	all
	newly
	created
positions
	or
	classes 	of 	positions 	shall
	be
	assigned 	to
	the
negotiating 	unit
	which
	CSEA
	currently 	represents.
	While
	it
	is
likely 	that 	posit
	whi
	describe 	duties 	per
	unit
64

employees
	or
	which
	involve
	duties 	similar
	in 	nature 	to
	those
performed
	by
	unit
	employees
	may 	be
	included 	in 	the
	existing
unit,
	the
	rules
	and
	regulations
	of
	this
	agency,
	as 	well 	as
	EERA
itself,
	establish 	specific
	criteria
	and
	procedures
	by
	which
unit
	modification
	as
	a
	result
	of 	the
	creation
	of
	positions
shall
	be
	handled.
	CSEA
	cannot
	negotiate
	a
	proposal
	which
	has
the
	potential
	of
	circumventing 	the
	dictates
	of 	the
	EERA
	or
PERB.
	Subarticle
	20.3,
	therefore,
	is
	nonnegotiable.
Subarticle
	20.4
	refers
	to 	the
	salary
	placement
	of
reclassified
	positions
	and
	reads 	as 	follows:
20.4
	Salary
	Placement
	of 	Reclassified
Positions:
	When 	a
	position
	or
	class
	of
positions
	is 	reclassified,
	the
	position
	or
positions
	shall
	be
	placed
	on
	the
	salary
schedule 	in
	a
	range
	which
	will 	result
	in
	at
least
	one 	(1)
	range
	increase
	above
	the
salary of
	the
	existing 	position
	or
positions,
	but 	in
	no
	event
	will
	the
reclassification 	result
	in
	an
	increase 	of
less
	than
	five
	and
	one-half
	(5
	1/2) 	percent.
On
	its
	face,
	this
	proposal 	bears
	a
	direct 	relationship
	to
wages.
	It
	does
	not
	intrude
	on
	management's
	rights
	to
reclassify 	positions
	or
	classes 	of 	positions
	but 	concerns 	the
impact	
of	
that 	decision
	on
	employee's
	salaries.
	The
	subject
addressed 	in
	subarticle
	20.4
	is 	therefore 	negotiable.
Subarticle
	20.5
	provides 	as 	follows:
Incumbent
	Rights:
	When 	an
	entire 	class 	of
positions 	is 	reclassified,
	the
	incumbents 	in
the 	positions 	shall
	be
	entitled 	to 	serve 	in
the
	new
	positions.
	When 	a
	position 	or
positions 	less
	than 	the
	total 	class 	is
	or
are 	rec
	sifi
	, 	i
	sin
65

positions
	who
	have 	been
	in 	the
	positions
	for
one
	(1)
	year 	or
	more
	shall
	be
	reallocated
	to
the 	higher
	class.
	If
	an
	incumbent
	in
	such
	a
position
	has
	not 	served 	in
	that 	position
	for
one
	(1)
	year
	or
	more,
	then
	the
	new
	position
shall
	be
	considered
	a
	vacant
	positionsubject 	to
	the
	lateral
	transfer
	and
promotion
	provisions 	of
	this
	agreement.
As
	suggested
	above,
	the
	impact
	of
	reclassified
	positions
	may
directly 	affect
	an
	employees's
	wages,
	hours,
	transfer, 	health
and
	safety,
	and
	evaluation
	procedures.
	Since
	it
	is
	limited
	to
the
	impact
	on
	incumbents
	of
	the
	reclassified 	position,
	it
	is
negotiable.
Subarticle 	20.6
	concerns 	the
	downward
	adjustment 	of
	a
position
	or
	class 	of 	positions:
20.6
	Downward
	Adjustment:
	Any downward
adjustment 	of
	any
	position
	or
	class
	of
positions
	shall
	be
	considered
	a
	demotion
	and
shall
	take 	place 	only 	as
	a
	result
	offollowing 	the
	layoff
	or
	disciplinary
procedures
	of
	this
	agreement.
This 	provision
	seeks
	to
	confirm
	a
	contractual
	definition 	of
	any
downward
	adjustment.
	It
	mandates
	that
	downward
	adjustments
	be
considered 	as 	demotions
	and 	be
	effectuated
	pursuant 	to
	layoff
of 	disciplinary
	procedures
	at 	set 	forth
	in 	the
	parties'
negotiated
	agreement.
As
	set
	out
	more
	fully 	infra
	in 	connection 	with
	layoff
	and
disciplinary 	proposals,
	this
	item
	directly
	and
	logically
relates
	to 	hours
	and 	wages. 	This
	relationship 	is
	not
	offset	
by
any managerial 	prerogative 	because
	it
	does 	not
	interfere
	wi
1 s
	right 	to
	r
	ition
	or
	s
	of
66

positions
	provided
	it
	is
	a
	result
	of
	layoff
	or
	disciplinary
action.
	Thus,
	the
	limitation
	imposed
	merely
	proscribes
downgrades
	not 	administered 	pursuant
	to
	the
	negotiated
	layoff
or 	grievance 	procedures.
	This
	limitation 	is
	permissible
	and
subarticle
	20.6
	is
	therefore 	negotiable.
The
	final
	provision
	in
	Article
	XX
	concerns 	the
	abolition
	of
positions
	or
	classes
	of
	positions.
	It
	reads:
20.7
	Abolition
	of
	a
	Position
	or 	Class 	of
Positions:
	If
	the
	District
	proposes
	toabolish
	a
	position
	or
	class
	of
	positions,
	it
shall
	notify
	CSEA
	in 	writing
	and
	the
	parties
shall
	meet 	and
	negotiate.
	No
	position
	or
class
	of 	positions
	shall
	be
	abolished 	unless
agreement 	has 	been
	reached 	with
	CSEA.
The
	decision 	to 	abolish
	a
	position
	is
	similar 	to 	the
	decision
to 	create
	a
	classification
	or
	downgrade 	a
	position.
	Both
involve
	a
	matter
	related 	to
	wages 	and
	hours 	as
	well
	as
	a
determination 	involving 	managerial 	concerns.
	To
	permit
	CSEA
	to
negotiate
	as
	to 	abolition
	of 	positions 	intrudes 	heavily
	into
the 	employer's
	right 	to
	manage
	its
	workforce.
	It
	may
	also
relate
	to 	financial 	limitations
	which 	invoke
	public
	policy
concerns. 	Therefore,
	this 	subarticle 	is
	only 	negotiable
	to
	the
extent 	that
	it
	seeks
	to 	provide 	notice 	of
	management's
proposals 	to 	abolish 	positions
	and
	to 	the 	extent 	that
	CS
seeks 	to 	negotiate
	as
	to 	the
	impact
	that
	such
	decisions
	will
have 	on
	negotiating 	unit
	employees.
67

Article 	XXI. 	Layoff 	and 	Reemployment
In 	Article 	XXI, 	CSEA proffers 	various 	proposals 	which 	refer
to 	layoffs 	and 	reemployment. 	Subarticle 	21.1 	provides 	as
follows:
21.1 	Reason 	for 	Layoff: 	Layoff 	shall 	occur
only 	for 	lack 	of 	work 	or 	lack 	of 	funds.
Lack 	of 	funds 	means 	that 	the 	district 	cannot
sustain 	a 	positive 	financial 	dollar 	balance
with 	the 	payment 	of 	one 	further 	month's
anticipated 	payroll.
In 	addition 	to 	establishing 	the 	conditions 	under 	which 	a 	layoff
is 	permitted, 	this. proposal 	contains 	a 	definition 	of 	the 	term
layoff. 	CSEA asserts 	that 	subarticle 	21.1 	bears 	a 	clear
relationship 	to 	wages, 	hours, 	and 	benefits. 	The 	hearing
officer 	found 	a 	sufficient 	relationship 	and 	concluded 	that
because 	the 	term 	"lack 	of 	work" 	is 	not 	defined 	by 	this
proposal, 	the 	relationship 	to 	enumerated 	items 	is 	not 	offset 	by
managerial 	rights 	of 	the 	public 	school 	employer.
The 	Districts 	assert, 	however, 	that 	the 	layoff 	and
reemployment 	proposals 	are 	nonnegotiable 	because 	they 	are
statutorily 	provided 	for 	in 	the 	Education 	Code, 	because 	they
interfere 	with 	rights 	essential 	to 	the 	operation 	of 	the 	school
districts 	and 	because 	the 	legislature's 	amendment 	in 	1977,
which 	included 	layoff 	of 	certain 	certificated 	probationary
employees 	among 	the 	negotiable 	enumerated 	terms, 	evidences 	a
clear 	legislative 	intent 	to 	generally 	remove 	the 	subject 	of
layoffs 	the 	negotiati 	process.
68

I
	have
	no
	doubt
	that
	the
	subject
	of
	layoffs
	bears
	a
	clear
relationship
	to
	wages,
	hours,
	and
	benefits
	and
	that
	it
	is
	a
matter 	of
	critical
	employee
	concern.
	However,
	the 	employer's
ability
	and
	obligation
	to
	adjust
	and 	accommodate
	the
	classified
work
	force
	to
	budgetary
	constraints
	and
	needs
	is
	likewise 	of
critical
	concern.
Section
	45308
	of
	the 	Education
	Code
	provides 	in
	pertinent
part: 
Classified
	employees
	shall
	be
	subject 	to
layoff
	for 	lack 	of
	work
	or 	lack 	of
	funds.
This
	provision
	differs
	from 	CSEA's
	proposal 	in
	two
	respects;
subarticle
	21.2
	limits
	the
	ability
	to 	layoff 	to
	the 	lack
	of
work
	or
	funds
	and
	it
	defines
	the
	term
	"lack 	of
	funds".
In
	CSEA
	v.
	Pasadena
	Unified
	School
	District
	(1977)
	71
Cal.App.3d
	318
	(139
	Cal.Rptr.
	633],
	the
	Court
	considered
	the
employee
	organization's 	allegation
	that, 	inter
	alia,
	the 	school
employer
	unlawfully
	laid 	off
	various
	employees 	because
	the
existence 	of
	an
	undistributed
	amount
	of 	reserve
	funds
	evidenced
that
	no
	"lack 	of
	funds"
	existed
	upon 	which 	a
	layoff 	could
	be
based.
The
	court 	rejected 	this
	argument
	noting
	that
	other
provisions 	of 	the 	Education
	Code
	contemplated 	the
	need
	for
reserve 	accounts
	and
	that
	the 	determination 	of 	the
	amount
needed
	for 	reserves
	was 	a
	matter 	of
	employer
	discretion 	absent
evidence 	that 	the 	employer's 	judgment 	was
	fraudulent 	or
	so
69

palpably
	unreasonable 	or
	arbitrary
	as
	to
	indicate
	an
	abuse
	of
discretion.
In
	my
	view,
	the
	crucial
	question
	is
	whether
	CSEA's
	proposal
interferes
	with
	the 	school 	employer's
	discretion
	to
	determine
that
	funds
	are 	lacking
	which
	necessitate 	layoffs.
	While
	the
court 	in
	Pasadena
	finds
	that
	this 	is
	a
	discretionary
determination
	which
	rests
	with
	the
	employer,
	it
	also
	warns
	that
districts
	are
	not
	free 	to
	abuse
	their 	discretion
	by
	defining
the
	phrase
	"lack 	of
	funds"
	in
	a 	manner
	which
	would
	circumvent
the 	apparent
	statutory 	protection
	granted
	to
	classified
employees.
	CSEA's
	proposal
	seeks
	to
	reach
	agreement
	on
	the
definition
	of 	the
	term
	"lack 	of
	funds"
	in 	order
	to 	provide
	a
more
	objective
	standard
	by
	which
	the 	employer's
	discretion
	can
be
	examined.
In
	the
	private 	sector, 	layoff
	is 	clearly
	recognized
	as
	a
mandatory
	subject 	of 	bargaining.
	(See
	generally, 	Morris,
Developing
	Labor
	Law,
	p.404.)
	An
	employer
	demonstrates 	bad
faith
	bargaining
	when
	it
	insists 	that
	it
	retain 	unrestricted
power
	over
	and
	unilateral 	control 	of 	layoffs
	and
	the
	selection
of
	employees
	to
	be
	laid 	off.
	(U.S.
	Gypsum Co. 	(1951) 	94 	NLRB
112 	[28
	LRRM
	1015]
;
	Valley 	Iron
	&
Steel
	Co.
	(1976) 	224
	NLRB
No.
	118 	[93
	LRRM
	1379]
;
	Master 	Slack
	Coq;~.
	(1977) 	230
	NLRB
No. 	138
	[96
	LRRM
	1309].)
	An
	employer
	is
	permitted,
	however 	to
unilatera
	determine 	the 	existence 	of
	an 	economic
	necessi
ich
	wou
	its
	decision 	to 	layoff.
	(United	
Nuclear	
v.
70

NLRB
	(10th
	Cir
	1967) 	381
	F.2d
	972 	[66
	LRRM
	2101].
	But
	it
	must
provide
	notice 	of
	the
	planned
	layoff
	and
	permit
	meaningful
input
	from
	affected
	employees
	(W.R.
	Grace	
& Co. 	(1977) 	230
	NLRB
No.
	76
	[95
	LRRM
	1459)
	aff'd
	(5th
	Cir.
	1978) 	571
	F.2d
	279 	[98
LRRM
	2001]
.)
	Therefore,
	even
	where
	the
	layoff
	decision
	itself
is
	deemed
	to
	be
	strictly
	a
	managerial
	prerogative,
	a
	union
	must
be
	afforded 	the
	opportunity 	to 	discuss
	when 	a
	layoff
	will
occur,
	the
	number 	and
	identity
	of
	employees
	affected, 	the
method
	of
	recall
	and
	any
	alternatives
	to
	layoff.
	(United
Nuclear, 	supra; 	Caravelle
	Boat
	Co. 	(1977) 	227
	NLRB
	No.
	162
	[95
LRRM
	1003]
.)
In
	the 	public
	sector,
	the 	question 	of
	employee
	layoffs
	has
been
	considered.
	In
	the
	District
	of
	Columbia,
	a
	reduction 	in
force 	or
	layoff
	is
	deemed 	a
	managerial
	prerogative,
	but 	an
employer
	is
	required 	to
	provide
	notice
	of
	a
	layoff
	and
	to
negotiate
	as
	to 	the
	impact
	and
	effect
	of 	the
	layoff.
	(DC
	Bd.
of
	Ed. 	(1978)
	NPER
	9-10004.)
	The
	Wisconsin
	Supreme
	Court 	has
held,
	similarly, 	that
	the 	economically motivated
	layoff
	is
primarily 	related 	to
	managerial
	powers, 	but
	an 	employer
	must
bargain 	as 	to 	the 	impact. 	(City 	of 	Brookfield
	(WI
	02/27/79)
1
	NPER
	5
	10002.) 	In 	City 	of
	Green 	Bay
	(WI
	05/04/79)
	1 	NPER
51-10046, 	the
	state
	court 	held
	that
	the
	city
	was
	not
	required
to 	bargain 	about 	the 	decision 	to
	initiate
	a
	layoff 	plan
	based
on 	economic
	considerations.
71

In 	San 	Mateo 	County 	Community College 	District 	(6/8/79)
PERB 	Decision No. 	94, 	this 	Board 	considered 	an 	employer's
assertion 	of 	financial 	necessity 	as 	a 	justification 	for 	its
unilateral 	action 	and 	commented:
Although 	an 	employer 	may 	be 	free 	to 	exercise
its 	management 	prerogative 	to 	close 	all 	or
part 	of 	its 	business 	for 	financial 	reasons,
the 	employer 	must 	still 	give 	the 	employee
organization 	notice 	and 	opportunity 	to
negotiate 	over 	the 	effects 	of 	the 	decision;
for 	example, 	the 	order 	and 	timing 	of
employee 	layoffs, 	serverance 	payments,
relocation, 	retraining, 	re-employment
rights, 	and 	so 	on. 	(citations 	omitted) 	As
a 	basis 	for 	these 	negotiations 	the 	employer
must 	be 	willing 	to 	provide 	an 	employee
organization 	with 	information 	supporting 	the
employer's 	claim 	of 	financial 	inability.
. 	. 	. 	. 	. 	. 	. 	. . 	. 	. . . 	. 	. . 	. 	. . 	. 	. 	. 	.
In 	sum, 	under 	federal 	law, 	inability 	to 	pay
is 	a 	negotiating 	position 	rather 	than 	an
excuse 	to 	avoid 	the 	negotiating 	obligation
entirely. 	(p.13)
In 	this 	case, 	CSEA's 	proposal 	seeks 	to 	place 	limitations 	on
the 	employer's 	ability 	to 	initiate 	layoffs. 	It 	is
nonnegotiable 	to 	the 	extent 	that 	it 	interferes 	with 	and
effectively 	limits 	the 	employer's 	ability 	to 	determine 	when
layoffs 	are 	required. 	The 	Districts 	are 	permitted 	by 	the
Education 	Code 	to 	initiate 	layoffs 	for 	lack 	of 	funds 	or 	lack 	of
work. 	CSEA, 	however, 	seeks 	to 	define 	the 	lack 	of 	funds
provision 	in 	a 	manner 	which 	would 	allow 	the 	union 	to 	analyze
the 	employer's 	claim 	of 	financial 	justification 	and 	become 	a
participant 	in 	is 	to 	initiate 	f 	bilateral
72

negotiating
	process
	is
	not
	suited 	to 	resolution
	of
	disputes
concerning 	the
	need
	for
	layoffs.
	Thus,
	while
	an
	employer
	must
negotiate
	as
	to
	the
	effects
	and
	implementation
	of
	layoffs,
	the
proposal
	as
	presented
	seriously
	impinges
	on 	and
	effectively
interferes
	with
	the
	employer's
	ability
	to
	effectuate
operational 	policy.
	It
	is
	nonnegotiable.
Subarticle
	21.2 	concerns
	the
	notice
	for
	layoffs.
	It
	states:
21.2
	Notice
	of
	Layoff:
	Any
	layoffs
	under
Section
	21.1
	shall
	only 	take 	place
	effective
as
	of 	the
	end
	of
	a
	academic
	year.
	The
District 	shall
	notify
	both
	CSEA
	and
	the
affected
	employees
	in 	writing
	no
	later
	than
April
	15th
	of
	any
	planned
	layoffs.
	The
District
	and
	CSEA
	shall
	meet
	no
	later
	than
May
	1st
	following 	the
	receipt
	of
	any
	noticesof
	layoff 	to
	review
	the
	proposed
	layoffs
	and
determine 	the 	order 	of
	layoff
	within 	the
provisions 	of
	this
	agreement.
	Any
	notice 	of
layoffs
	shall
	specify
	the 	reason 	for
	layoff
and
	identify
	by 	name 	and
	classification
	the
employees
	designated 	for
	layoff. 	Failure 	to
give
	written 	notice
	under
	the
	provisions 	of
this
	section
	shall
	invalidate
	the
	layoff.
In 	general,
	CSEA
	is
	permitted 	to
	seek 	agreement 	as
	to
	a
proposal 	concerning
	layoff 	notices.
	Advanced
	notice 	of
	the
employer's 	plans 	to
	implement 	a
	layoff 	will
	permit 	the
effective
	exchange
	of 	ideas
	and
	possible 	alternatives 	to 	the
layoff.
	The
	sole 	question 	concerning 	the
	negotiability 	of 	this
subartic 	pertains 	to
	its
	potential
	for
	conflict
	with
provisions 	of 	the 	Education
	Code. 	Those
	provisions
	refer 	to
procedures 	for 	layoff 	including 	notice 	thereof
	and 	do
	not
impose
	the
	restri
	ions
	which 	CSEA's
	proposal 	seeks 	to
	attain.
73

Section 	45117(a) 	requires 	notice 	of 	layoffs 	due 	to 	lack 	of 	a
specially 	funded 	program 	"on 	or 	before 	May 	29" 	and 	as 	to
termination 	effective 	other 	than 	on 	June 	30, 	"notice 	shall 	be
given 	not 	less 	than 	30 	days 	prior 	to 	the 	effecive 	date 	of 	their
layoff."
Notices 	of 	layoffs 	as 	a 	result 	of 	reduction 	or 	elimination
of 	service 	is 	likewise 	required 	"not 	less 	than 	30 	days 	prior 	to
the 	effective 	date 	of 	layoff." 	Finally, 	section 	45117(c)
provides 	that 	when 	lack 	of 	funds 	creates 	an 	actual 	inability 	to
pay 	salaries 	or 	when 	unforeseen 	or 	unpreventable 	lack 	of 	work
requires 	layoff, 	the 	30 	day 	notice 	provisions 	are 	not 	required.
If 	CSEA's 	proposal 	regarding 	notice 	of 	layoffs 	permitted
exceptions 	under 	emergency 	circumstances 	consistent 	with
section 	457117(c), 	I 	would 	not 	view 	the 	proposal's 	specific
deadlines 	for 	those 	layoffs 	which 	do 	occur 	at 	the 	end 	of 	the
academic 	year 	as 	superseding 	the 	Education 	Code 	provisions.
However, 	as 	to 	the 	aspect 	of 	subarticle 	21.2 	which 	restricts
the 	district's 	authority 	to 	effectuate 	layoffs 	only 	at 	the 	end
of 	the 	academic 	year, 	it 	conflicts 	with 	the 	general 	mandate 	of
the 	Education 	Code 	which 	permits 	layoffs 	for 	lack 	of 	funds 	or
lack 	of 	work. 	In 	that 	respect, 	subarticle 	21.2 	is
nonnegotiable.
Subarticle 	21.3 	defines 	reduction 	in 	hours. 	It 	states:
21.3 	Reduction 	in 	Hours: 	r 	uct 	in
regularly 	assigned 	time 	shall 	be 	considered
a 	layo 	under 	the 	provisions 	this
Article.
74

This 	proposal 	obviously 	relates 	to 	hours 	and, 	because 	it 	merely
defines 	the 	term 	for 	purposes 	of 	the 	parties' 	contract, 	it 	is
negotiable. 	Unlike 	Article 	21.1, 	this 	proposal 	does 	not 	unduly
limit 	the 	employer's 	ability 	to 	manage 	the 	work 	force 	by
deciding 	to 	reduce 	employees' 	hours 	when 	warranted. 	This
proposal 	seeks 	to 	determine 	the 	method 	by 	which 	such 	reduction
is 	effectuated 	and 	to 	protect 	the 	employees' 	legitimate
concerns 	with 	lost 	work.
Subarticle 	21.4 	concerns 	the 	order 	of 	layoff 	and 	provides:
21.4 	Order 	of 	Layoff: 	Any 	layoff 	shall 	be
effected 	within 	a 	class. 	The 	order 	of
layoff 	shall 	be 	based 	on 	seniority 	within
that 	class 	and 	higher 	classes 	throughout 	the
District. 	An 	employee 	with 	the 	least
seniority 	within 	the 	class 	plus 	higher
classes 	shall 	be 	laid 	off 	first. 	Seniority
shall 	be 	based 	on 	the 	number 	of 	hours 	an
employee 	has 	been 	in 	a 	paid 	status 	in 	the
class 	plus 	higher 	classes 	or 	seniority
acquired 	under 	Section 	21.7.
This 	provision 	concerns 	the 	implementation 	of 	layoffs 	and 	is
related 	to 	employees' 	wages 	and 	hours. 	It 	is 	consistent 	with
provisions 	of 	the 	Education 	Code 	(See 	section 	45308). 	While
any 	ordering 	of 	persons 	affected 	by 	a 	layoff 	necessarily
impinges 	on 	management's 	ability 	to 	freely 	select 	particular
employees 	for 	layoff, 	the 	employees' 	concerns 	for 	use 	of
seniority 	as 	a 	procedure 	for 	selection 	clearly 	outweighs 	any
employer 	concern 	in 	not 	negotiating 	the 	subject. 	This 	pr 	al
is 	negotiable.
Bumping 	rights 	are 	covered 	in 	subartic 	21.5 	and 	states:
75

21.5 	Bumping 	Rights: 	An 	employee 	laid 	off
from 	his 	or 	her 	present 	class 	may 	bump 	into
the 	next 	lowest 	class 	in 	which 	the 	employee
has 	greatest 	seniority 	considering 	his/her
seniority 	in 	the 	lower 	class 	and 	any 	higher
classes. 	The 	employee 	may 	continue 	to 	bump
into 	lower 	classes 	to 	avoid 	layoff.
Subarticle 	21.6 	refers 	to 	layoff 	in 	lieu 	of 	bumping 	and
provides:
21.6 	Layoff 	in 	Lieu 	of 	Bumping: 	An
employee 	who 	elects 	a 	layoff 	in 	lieu 	of
bumping 	maintains 	his/her 	reemployment
rights 	under 	this 	agreement.
Both 	subarticles 	21.5 	and 	21.6 	are 	negotiable 	because 	they
concern 	the 	effects 	of 	any 	layoff 	scheme 	on 	individual
employees 	and 	neither 	proposal 	supersedes 	provisions 	of 	the
Education 	Code. 	(See 	sec. 	45298.)
Subarticle 	21.7 	concerns 	equal 	seniority. 	It 	provides:
21.7 	Equal 	Seniority: 	If 	two 	(2) 	or 	more
employees 	subject 	to 	layoff 	have 	equal 	class
seniority, 	the 	determination 	as 	to 	who 	shall
be 	laid 	off 	will 	be 	made 	on 	the 	basis 	of 	the
greater 	bargaining 	unit 	seniority 	or, 	if
that 	be 	equal, 	the 	greater 	hire 	date
seniority, 	and 	if 	that 	be 	equal, 	then 	the
determination 	shall 	be 	made 	by 	lot.
Like 	subarticles 	21.4 	through 	21.6, 	it 	is 	negotiable.
Reemployment 	rights 	are 	discussed 	in 	subarticle 	21.8 	and 	it
provides:
21.8 	Reemployment 	Rights: 	Laid 	off 	persons
are 	eligible 	for 	reemployment 	in 	the 	class
from 	which 	laid 	off 	for 	a 	thirty-nine 	(39)
month 	period 	and 	shall 	be 	reemployed 	in 	the
reverse 	order 	of 	layoff.
76

Their 	reemployment 	shall 	take 	precedence
over 	any 	other 	type 	of 	employment, 	defined
or 	undefined 	in 	this 	agreement.
In 	addition, 	they 	shall 	have 	the 	right 	to
apply 	for 	promotional 	positions 	within 	the
filing 	period 	specified 	in 	the 	Promotion
Article 	of 	this 	agreement 	and 	use 	their
bargaining 	unit 	seniority 	therein 	for 	a
period 	of 	thirty-nine 	(39) 	months 	following
layoff. 	An 	employee 	on 	a 	reemployment 	list
shall 	be 	notified 	of 	promotional
opportunities 	in 	accordance 	with 	the
provisions 	of 	19.2.1.
It 	is 	negotiable 	because 	it 	relates 	to 	the 	hours 	and 	wages 	of
employees 	and 	because 	it 	does 	not 	supersede 	applicable
Education 	Code 	provisions. 	(See 	sec. 	45298.)
Voluntary 	demotion 	or 	voluntary 	reduction 	in 	hours 	is
covered 	in 	CSEA's 	proposal 	at 	subarticle 	21.9. 	It 	states:
21.9 	Voluntary 	Demotion 	or 	Voluntary
Reduction 	in 	Hours: 	Employees 	who 	take
voluntary 	demotions 	or 	voluntary 	reductions
in 	assigned 	time 	in 	lieu 	of 	layoff 	shall 	be,
at 	the 	employee's 	option, 	returned 	to 	a
position 	with 	increased 	assigned 	time 	as
vacancies 	become 	available, 	and 	with 	no 	time
limit, 	except 	that 	they 	shall 	be 	ranked 	in
accordance 	with 	their 	seniority on 	any 	valid
reemployment 	list.
This 	proposal 	allows 	employees 	affected 	by 	a 	layoff 	decision 	to
voluntarily 	select 	a 	demotion 	or 	reduction 	in 	hours. 	It 	is
inextricably 	bound 	to 	their 	wages 	and 	hours. 	Like 	the 	decision
to 	select 	employees 	for 	layoff, 	this 	provision 	affects 	the
employer's 	determination 	regarding 	who 	will 	return 	to 	work.
However, 	because 	of 	the 	criti 	employee 	interests 	involved,
it 	is 	not 	f 	by 	ri 	is 	not 	ec
77

by
	any
	provision
	of 	the
	Education
	Code
	which
	pertains
	to
	either
option.
	(See
	sec.
	45298.)
Retirement 	in
	lieu
	of
	layoff
	is
	proposed
	in
	subarticle
21.10.
	It
	states:
21.10
	Retirement
	in
	Lieu
	of
	Layoff:
21.10.1
	Any
	employee
	in 	the 	bargaining
	unit
may
	elect
	to
	accept
	a
	service 	retirement 	in
lieu
	of
	layoff,
	voluntary
	demotion,
	or
reduction 	in 	assigned 	time.
	Such
	employee
shall
	within 	ten
	(10)
	workdays
	prior 	to 	the
effective
	date 	of 	the
	proposed
	layoff
complete
	and
	submit
	a 	form
	provided
	by
	the
District
	for
	this
	purpose.
21.10.2
	The
	employee
	shall
	then
	be
	placed
on
	a
	thirty-nine
	(39) 	month
	reemployment
list
	in
	accordance 	with
	Section
	21.8
	of
	this
Article;
	however,
	the
	employee
	shall
	not
	be
eligible
	for
	reemployment
	during
	such
	other
period 	of
	time 	as
	may 	be
	specified
	by
pertinent
	Government 	Code
	Sections.
21.10.3
	The
	District
	agrees
	that
	when 	an
offer
	of
	reemployment
	is
	made
	to
	an
	eligible
person
	retired
	under
	this 	Article,
	and
	the
District
	receives 	within 	ten
	(10) 	working
days
	a	
written
	acceptance 	of 	the
	offer,
	the
position 	shall
	not
	be
	filled	
by	
any
	other
person,
	and
	the
	retired
	person
	shall
	be
allowed
	sufficient
	time
	to 	terminate
	his/her
retired 	status.
21.10.4
	An
	employee
	subject 	to
	this
	Section
who
	retires
	and
	is 	eligible
	for
	reemploymentand 	who
	declines
	an
	offer
	of
	reemployment
equal 	to 	that
	from 	whi
	id
	off 	shall
	be
deemed
	to
	be
	permanently
	retired.
21.10.5
	Any
	election 	to
	retire 	after
	being
placed
	on 	a 	reemployment
	list
	shall
	be
retirement 	in
	lieu
	of 	layoff 	within 	the
meaning
	of
	this 	section.
78

As 	is 	the 	case 	with 	the 	proposals 	concerning 	other 	options 	in
lieu 	of 	layoff, 	these 	provisions 	are 	negotiable.
Subarticle 	21.11 	refers 	to 	a 	seniority 	roster. 	It 	states:
21.11 	Seniority 	Roster: 	The 	District 	shall
maintain 	an 	updated 	seniority 	roster
indicating 	employees' 	class 	seniority,
bargaining 	unit 	seniority, 	and 	hire 	date
seniority. 	In 	addition 	to 	the 	requirements
of 	Section 	5.1.5 	such 	rosters 	shall 	be
available 	to 	CSEA at 	any 	time 	upon 	demand.
This 	proposal 	concerns 	a 	request 	for 	information 	necessary 	to
implement 	provisions 	of 	the 	proposed 	contract 	which 	are
operative 	based 	on 	seniority. 	It 	is 	negotiable.
Subarticle 	21.12 	states:
21.12 	Notification 	of 	Reemployment
Opening: 	Any 	employee 	who 	is 	laid 	off 	and
is 	subsequently 	eligible 	for 	reemployment
shall 	be 	notified 	in 	writing 	by 	the 	District
of 	an 	opening. 	Such 	notice 	shall 	be 	sent 	by
certified 	mail 	to 	the 	last 	address 	given 	the
District 	by 	the 	employee, 	and 	a 	copy 	shall
be 	sent 	to 	CSEA by 	the 	District, 	which 	shall
acquit 	the 	District 	of 	its 	notification
responsibility.
Subarticle 	21.13 	states:
21.13 	Employ~e 	Notification 	to 	District:
An 	employee 	sliall 	notify 	the 	District 	of 	his
or 	her 	intent 	to 	accept 	or 	refuse
reemployment 	within 	ten 	(10) 	working 	days
following 	receipt 	of 	the 	reemployment
notice. 	If 	the 	employee 	accepts
reemployment, 	the 	employee 	must 	report 	to
work 	within 	thirty 	(30} 	working 	days
following 	receipt 	of 	the 	reemployment
notice. 	An 	employee 	given 	notice 	of
reemployment 	need 	not 	accept 	the
reemployment 	to 	maintain 	the 	's
79

eligibility
	on
	the
	reemployment
	list,
provided
	the
	employee
	notifies
	the
	District
of
	refusal
	of
	reemployment
	within 	ten
	(10)
working 	days
	from
	receipt
	of
	the
reemployment
	notice.
Subarticle
	21.14
	states:
21.14
	Reemployment
	in 	Highest
	Class:
Employees
	shall
	be
	reemployed
	in 	the
	highest
rated
	job
	classification
	available
	in
accordance 	with
	their 	class 	seniority.
Employees
	who
	accept
	a
	position
	lower
	than
their
	highest
	former
	class 	shall 	retain
their 	original 	thirty-nine
	(39)
	month
	rights
to
	the 	higher 	paid
	position.
Since
	I
	have
	determined
	that 	subarticle
	21.8,
	which
concerns
	reemployment
	rights, 	is
	negotiable,
	these
	subarticles
are 	also
	deemed
	negotiable.
Subarticle
	21.15
	refers
	to
	improper
	layoff
	and
	states:
21.15 	Improper
	Lay
	Off:
	Any
	employee
	who
is
	improperly
	laid 	off 	shall
	be
	reemployed
immediately
	upon
	discovery 	of 	the
	error
	and
shall
	be
	reimbursed 	for
	all
	loss 	of 	salary
and
	benefits.
This 	proposal
	merely
	asserts 	that
	the 	foregoing
	proposals
covering
	employee
	layoff 	will
	be
	enforceable 	through
	the
contract
	grievance 	procedures.
	As
	the 	Chairperson
	concludes,
it
	also 	related
	to
	wages, 	hours
	and
	benefits.
	This
	is
negotiable.
Finally, 	subarticle
	21.16
	refers 	to 	seniority 	during
involuntary
	unpa
	status
	and
	provides:
21.16
	Seniority
	During 	Involuntary
	Unpaid
Status:
	Upon
	return 	to
	work,
	all
	time
80

during 	which 	an 	individual 	is 	in 	involuntary
unpaid 	status 	shall 	be 	counted 	for 	seniority
purposes 	not 	to 	exceed 	thirty-nine 	(39)
months, 	except 	that 	during 	such 	time 	the
individual 	will 	not 	accrue 	vacation, 	sick
leave, 	holidays 	or 	other 	leave 	benefits.
This 	proposal 	is 	negotiable 	because 	it 	clearly 	relates 	to
wages. 	It 	is 	not 	in 	conflict 	with 	any 	provision 	of 	the
Education 	Code. 	While 	this 	proposal 	affects 	both 	managerial
interests 	and 	employee 	interests, 	the 	employer 	interest 	in
employees' 	accumulation 	of 	seniority 	is 	not 	so 	strong 	as 	to
preclude 	negotiation 	of 	this 	proposal. 	Rather, 	the 	mutuality
of 	the 	negotiation 	process 	is 	the 	appropriate 	forum 	for
resolving 	the 	conflicting 	interests.
Article 	XXII. 	Disciplinary Action
Article 	XXII 	of 	CSEA's 	proposals 	concerns 	disciplinary
actions. 	It 	defines 	disciplinary 	action 	and 	sets 	forth 	an
exclusive 	procedure 	for 	imposing 	any 	such 	discipline. 	Because
subarticle 	22.2.1 	defines 	disciplinary 	action 	as 	dismissal,
demotion, 	suspension, 	reduction 	in 	hours, 	class, 	or 	involuntary
transfer 	or 	reassignment, 	this 	proposal 	bears 	a 	reasonable 	and
logical 	relationship 	to 	wages 	and 	hours. 	In 	addition, 	because
is 	proposal 	contemplates 	that 	the 	grievance 	procedure 	will 	be
utilized 	as 	a 	resolution 	of 	disciplinary 	action 	disputes, 	the
artic 	is 	related 	the 	enumerated 	grievance 	procedure 	as
well.
81

Without
	doubt,
	disciplinary
	action
	is
	of
	critical
	concern
to
	employees
	since
	it
	potentially
	threatens
	their
	livelihood
and
	financial 	security.
	The
	public
	school
	employer, 	however,
likewise 	shares
	a
	legitimate
	concern 	over
	disciplinary 	actions
since
	the
	ability
	to 	insure
	competent
	and
	reliable
	job
performance
	is
	a
	fundamental
	component
	of 	the
	employment
relationship.
	In
	this
	case,
	it
	is
	necessary
	to 	consider
whether
	the
	article
	is
	rendered 	nonnegotiable
	because
	it
supersedes
	any
	applicable 	provisions 	of 	the
	Education
	Code.
Section
	45113
	directs
	the 	governing 	board
	of
	a
	school
	district
to 	prescribe 	written 	rules
	and
	regulations
	governing
	personnel
management.
	That
	section 	also
	states 	that
	permanent 	employees
who
	satisfactorily
	complete
	a
	prescribed 	probationary
	period
shall
	be
	subject 	to
	disciplinary 	action
	only
for 	cause 	as
	prescribed
	by
	rule
	or
regulation 	of 	the 	governing 	board, 	but 	thegoverning
	board's 	determination 	of
sufficiency
	of
	cause 	for
	disciplinary 	action
shall
	be
	conclusive."
To
	the 	extent 	that
	CSEA's
	proposal 	incorporates 	the
	"just
cause"
	basis
	for
	disciplinary 	action,
	it
	does
	not
	supersede
	the
Education
	Code 	nor 	does
	it
	impermissibly
	impinge 	on
	the
employer's
	right 	to 	regulate
	its
	workforce.
	A more
	difficult
question,
	however, 	concerns 	the 	propriety 	of 	that 	part
	of
CSEA's
	proposal
	which
	delegates 	the 	school 	board's 	conclusive
authority 	to 	determine 	the 	sufficiency 	of 	cause 	to 	the
negotiated 	grievance 	process 	culminating 	in 	binding
	arbitr
82

In
	the
	private 	sector,
	an
	employer's
	decision 	to
	impose
discipline 	is
	commonly 	and
	unquestionably
	subjected 	to
	review
and
	challenge
	through
	the
	arbitration
	process.
	Indeed,
	in
United
	Food 	and
	Commercial 	Workers
	International
	v.
	Gold
	Star
Sausage
	Co. 	(D.C.
	Col.
	1980)
	Fed.
	Supp. 	[88
	DLR
D-1],
	the
	Court
	upheld
	an
	arbitrator's
	decision 	overturning
	the
employer's 	discharge 	in
	which
	the
	arbitrator
	had
	ruled
	that
	a
just
	cause
	provision
	must 	be
	implied 	as
	part
	of 	the
	collective
bargaining
	agreement.
	The
	Court
	determined,
	inter
	alia,
	that
because 	the 	notion 	of
	job
	security
	is
	a
	fundamental
	aspect 	of
collective
	bargaining 	agreements,
	it
	could
	therefore
	be
considered 	in
	interpreting
	each 	agreement
	and
	the
	arbitrator
could 	reasonably
	infer 	that
	a
	just
	cause
	restriction
	was
enmeshed
	in 	the
	fabric 	of 	the
	agreement.
In
	the 	public
	sector,
	however,
	final
	review
	of
	an
employer's 	decision 	to
	discipline 	is
	viewed 	more
	critically
	and
has
	been
	addressed
	in 	public 	sector
	jurisdictions
	with 	mixed
results.
	(AFSCME,
	Local 	1226, 	Rhinelander 	City
	Employees
	v.
City of 	Rhinelander
	(1967) 	35
	Wis.2d
	209 	[151 	N.W.2d
	30,
	65
LRRM
	2793],
	where
	the 	Wisconsin
	Supreme
	Court 	held
	that
arbitration 	of
	a
	discharge 	dispute 	did 	not
	infringe
	on
	the
power
	of 	the
	city;
	Kaleva-Norman-Dickson 	School
	District
	v.
Teachers 	Association
	(1975) 	227 	N.W.2d 	500 	[89
	LRRM
	2078],
where
	the
	Michigan 	Supreme 	Court 	held 	that
	nonrenewal
	of
	a
probationary 	teacher's 	contract
	was
	subject 	to 	arbitration
83

notwithstanding
	a
	clause 	in
	the
	parties'
	negotiated
	agreement
which
	specifically
	reserved 	the 	employer's
	statutory
	power
	to
dismiss
	employees;
	Philadelphia
	Board
	of
	Education 	v. 	Teachers
Local
	3 	(1975) 	346
	A.2d
	35 	[90
	LRRM
	2879];
	Board
	of
	Education
Union
	Free 	School
	District
	v.
	Associated
	Teachers
	of
Huntington,
	Inc.
	(1972) 	282
	N.E.2d
	109 	[79
	LRRM
	2881],
	where
the
	New
	York
	Court
	of
	Appeals
	held
	that
	the 	school
	board
	was
permitted 	to 	negotiate
	binding
	arbitration
	of
	disciplinary
actions
	even 	though
	the
	state
	Education
	Code
	established
	a
specific
	procedure 	for 	reviewing 	school
	board
	disciplinary
decisions.
	Compare 	Moravek
	v.
	Davenport
	Community
	School
District	
(1978)
	262 	N.W.2d
	797 	[98
	LRRM
	2923]; 	Chassie
	v.
School
	District
	(1976) 	356 	A.2d 	708 	[92
	LRRM
	3359),
	where
	it
was
	determined
	that 	decisions 	regarding
	retention
	and
nonrenewal
	of
	nontenured
	teachers 	are 	not
	subject 	to 	grievance
arbitration
	because
	of 	the 	school
	board's 	exclusive
	competence
and
	public 	policy 	considerations;
	Wibaux
	Education
	Association
v.
	Wibaux 	High
	School
	(1978} 	573
	P.2d
	1162 	[97
	LRRM
	2592],
where
	the
	Montana 	Supreme
	Court 	held
	that
	decisions 	regarding
the 	continuation 	of 	probationary 	teachers
	was
	not
	arbitrable
but 	contractually 	specified
	procedures
	were; 	School Committee
of
	Danvers
	v.
	Tyman 	(1977) 	360 	N.E.2d 	877 	[94
	LRRM
	3182],
	where
the 	Massachusettes 	court 	held
	that
	nontenured
	teachers'
contract
	renewal
	di 	tes
	could 	not
	be
	lega 	to
	an
arbitrator
	but 	adherence 	to 	the 	negotiated 	procedures 	could 	bei
84

Newman
	v.
	Board
	of
	Education
	of 	the
	Mount
	Pleasant
	School
District
	(1975) 	350
	A.2d
	339 	[91
	LRRM
	2750],
	where
	it
	was
determined
	that,
	because
	of
	a
	provision
	of 	the
	Delaware
collective
	bargaining
	act 	that 	specifies 	that
	no
	contract
	can
be
	executed
	which
	directly
	or
	indirectly 	specifies
	binding
arbitration
	or
	decision
	making 	by 	a
	third 	party,
	no
	duty
	is
imposed 	on
	the
	employer
	to
	justify
	or
	discuss
	a
	decision 	not 	to
renew
	a
	contract
	of
	a
	nontenured
	teacher.)
The
	thrust
	of 	Article	
XXII	
is
	to
	provide
	that
	the
employer's 	determination 	of
	good
	cause 	for
	discipline
	be
reviewed
	by
	an
	independent
	individual.
	In
	this
	respect, 	the
proposal
	does
	not
	infringe
	on
	the 	employer's
	legitimate
interest
	in
	availing
	itself
	of 	appropriate
	disciplinary
proceedings
	when 	an
	employee's 	conduct 	so
	warrants.
	The
potential 	conflict 	lies
	with
	the
	fact 	that
	the 	Education
	Code
vests
	the 	school
	board 	with 	conclusive
	authority 	to 	determine
sufficiency 	of
	cause
	for
	discipline
	and
	EERA
	prohibits
supercession.
	A
related
	question
	was
	addressed 	in
	an
	opinion
of
	the 	Attorney 	General
	(60
	Ops.Atty.Gen.
	370
	11/29/77)
	in
which 	a
	negotiated
	agreement
	required 	the 	school
	district
	to
enforce 	the
	organizational 	service
	fee 	requirement.
	The
opinion 	noted
	that 	section
	4510l(h)
	of 	the 	Education
	Code
defined 	"cause"
	relating 	to 	disciplinary 	actions
	and
	restricted
such
	action 	to 	the 	enumerated 	grounds 	or 	those 	included	
by
provis
	r's
	written
	ru
	s
	attor
85

general
	reviewed
	the
	district's
	rules
	regarding
	cause
	for
discipline
	and
	noted
	that 	failure
	to
	pay
	service
	fees
	was
	not
included.
	The
	opinion 	focuses,
	however,
	on
	the
	enumeration
	of
insubordination
	as 	cause 	for
	discipline
	and
	concludes:
The
	agreement,
	which
	places
	upon
	the
district
	the 	duty
	to
	enforce
	payment
	as
	a
condition 	of
	continued
	employment,
	requires
the
	district,
	at
	minimum,
	to
	order 	the
employee
	to
	pay
	the
	fee.
	Persistent 	refusal
to
	comply
	with
	the 	order
	would
	constitute
insubordination.
	To
	whatever
	extent
	this
approach 	might 	prove
	inadequate, 	the
district's
	obligation
	to 	enforce 	the
organizational 	security
	provision
	would
further 	require
	it
	to 	define 	expressly 	in
its
	rules
	nonpayment
	as 	cause 	for
discipline.
	(p. 	373, 	emphasis
	added.)
This 	opinion,
	while 	not 	binding
	on
	PERB
	or 	determinative
	of
	the
negotiability
	question
	at
	hand,
	permits
	collective
	agreements
negotiated
	under
	EERA
	to
	compel
	a
	public
	school
	employer
	to
define
	nonpayment
	of 	service
	fees 	as
	an
	additional
	cause
	for
discipline.
	Since 	the 	Education
	Code
	permits 	the 	school
district
	to 	enact
	rules
	governing
	cause, 	the 	requirement
	to
promulgate
	a
	rule
	by
	which
	the
	employer 	can
	effectuate 	the
agreement
	is
	read 	not
	to
	supersede 	the
	code 	and
	thus
	is
consistent
	with
	EERA.
In
	the
	instant 	case,
	CSEA's
	proposal
	does 	not 	seek
	to
	add
an
	additional
	cause 	for
	discipline;
	it
	is 	consistent 	with 	the
requirements 	as
	set 	forth 	in 	the 	code.
	However,
	while
	the
employer 	may
	possibly
	be
	required 	to 	affirmatively
	add
	to 	its
disc
	inary 	causes,
	it
	none
	ss 	retains
	r
	to
86

determine 	that 	sufficiency 	of 	cause 	exists. 	Therefore, 	in
light 	of 	the 	specific 	statutory 	requirement 	which 	is 	not
present 	in 	the 	public 	sector 	cases 	cited 	above, 	the 	employer
cannot 	relinquish 	its 	conclusive 	decision 	on 	sufficiency 	of
articulated 	causes 	to 	an 	arbitrator. 	CSEA's 	proposal 	is 	not
compatible 	with 	the 	plain 	dictates 	of 	the 	Education 	Code 	even
though 	it 	does 	not 	disturb 	the 	limited 	reasons 	for 	which
discipline 	may 	be 	imposed. 	The 	Legislature 	has 	decided 	that
the 	conclusive 	determination 	of 	cause 	for 	discipline 	must
remain 	with 	the 	employer. 	Any 	review 	by 	an 	independent
arbitrator 	would 	undermine 	the 	district's 	authority 	to 	insure
compliance 	with 	the 	Education 	Code 	and 	is 	therefore
impermissible. 	Thus, 	those 	portions 	of 	Article 	22 	which 	would
cause 	the 	employer 	to 	waive 	its 	exclusive 	authority 	over
discipline 	and 	delegate 	review 	to 	an 	arbitrator 	are
nonnegotiable.
Subarticle 	22.2 	concerns 	disciplinary 	procedure.
Subarticle 	22.2.1 	provides.
Discipline 	shall 	be 	imposed 	on 	permanent
employees 	of 	the 	bargaining 	unit 	only 	for
just 	cause. 	Disciplinary 	action 	is 	deemed
to 	be 	any 	action 	which 	deprives 	any 	employee
in 	the 	bargaining 	unit 	of 	any 	classification
or 	incident 	of 	employment 	or 	classification
in 	which 	the 	employee 	has 	permanence 	and
includes 	but 	is 	not 	limited 	to 	dismissal,
demotion, 	suspension, 	reduction 	in 	hours 	or
class 	or 	transfer 	or 	reassignment 	without
the 	employee's 	voluntary 	written 	consent.
87

As 	indicated 	above, 	disciplinary 	action 	is 	a 	matter 	of
critical 	concern 	to 	employees. 	It 	results 	in 	loss 	of 	wages 	and
hours 	and 	is 	undeniably 	related 	to 	these 	enumerated 	subjects.
The 	employer's 	interest 	in 	preserving 	a 	responsible 	work 	force
is 	likewise 	at 	issue. 	This 	proposal 	limits 	disciplinary 	action
to 	situations 	where 	just 	cause 	exists 	and 	does 	not 	supersede
Education 	Code 	sections 	4510l(h)l9 	and 	45113. 	Subarticle
22.2.1 	also 	defines 	disciplinary 	action 	for 	purposes 	of 	the
negotiated 	agreement 	and 	conforms 	to 	the 	statutory 	definition
set 	forth 	in 	section 	4510l(e). 	Subarticle 	22.2.1 	is 	negotiable.
Subarticle 	22.2.3 	provides:
Discipline 	less 	than 	discharge 	will 	be
undertaken 	for 	corrective 	purposes 	only.
While 	the 	intent 	of 	this 	subarticle 	is 	unclear, 	it 	appears 	to
incorporate 	a 	requirement 	that 	the 	punishment 	for 	discipline 	be
suited 	to 	the 	improper 	behavior. 	Good 	cause 	for 	discipline, 	as
defined 	by 	the 	arbitration 	process, 	uniformly 	incorporates 	a
requirement 	that 	"the 	punishment 	fit 	the 	crime." 	This 	proposal
is 	negotiable 	because 	the 	concern 	to 	employees 	is 	not
19section 	4510l(h} 	states:
"Cause" 	relating 	to 	disciplinary 	actions
against 	classified 	employees 	means 	those
grounds 	for 	discipline, 	or 	offenses,
enumerated 	in 	the 	law 	or 	the 	written 	rules
of 	a 	public 	school 	employer. 	No
disciplinary 	action 	may 	be 	maintained 	for
any 	"cause" 	other 	than 	as 	fined 	herein.
88

outweighed
	by
	any
	managerial
	interest
	in
	disciplining
	employees
for 	other
	than
	corrective
	purposes.
	Reserving
	the
	ultimate
discipline
	of 	discharge 	for
	serious
	violations
	for
	which
corrective
	action
	would 	be
	futile
	or
	ineffective
	preserves
	the
employer's
	control
	over
	the
	work
	force
	and
	insures 	productive
operation.
Subarticle
	22.2.4
	states:
The
	District 	shall
	not
	initiate
	any
disciplinary
	action
	for
	any
	cause
	alleged 	to
have
	arisen 	prior
	to 	the
	employee 	becoming
permanent 	nor
	for
	any
	cause
	alleged 	to
	have
arisen
	more
	than
	one
	year 	preceding 	the
	date
that
	the
	District 	files
	the 	notice 	of
disciplinary 	action.
This 	proposal 	attempts
	to
	limit
	the 	period 	for
	which
	an
employee's
	past 	acts
	may
	be
	cause 	for
	disipline.
	In
	general,
this
	proposal
	rests
	on
	the 	idea
	that 	discipline 	is 	ineffective
as
	a 	means
	of
	remedying 	improper
	behavior
	when
	it
	is 	levied
	for
acts
	committed
	in 	the
	past.
	Since
	discipline 	affects
	wages
	and
other
	enumerated
	subjects, 	this
	proposal
	is
	of
	obvious
	concern
to
	employees.
	However,
	the 	employer's
	interest
	in
	commanding 	a
reliable
	workforce
	also 	requires
	that,
	within
	certain
	time
limits,
	some
	acts 	arising
	in 	the 	past
	may 	be
	the
	subject 	of
disciplinary 	action
	because
	of 	the 	severi 	of
	the
	offense 	or
the 	likelihood 	of
	repetition.
	As
	defined	
by 	Education 	Code
section
	45113,
	the 	sufficiency of 	just
	cause 	for
	disciplinary
action 	includes 	events
	which
	arose 	not
	more
	than
	two
	years
from
	te 	notice 	's
	1
	ins
	tic 	22.2.4
89

thus
	supersedes 	the
	Education
	Code 	and
	is
	nonnegotiable
	to
	the
extent 	that
	it
	specifically
	prohibits
	events
	arising
	more
	than
one
	year
	hence
	to
	form
	the
	basis
	for
	disciplinary
	action.
CSEA
	also
	proposed
	several
	other
	subarticles
	which
	relate
to 	procedural 	aspects 	of
	disciplinary 	actions, 	subarticles
22.2.2
	(written
	advance 	warning
	prior
	to
	discipline), 	22.2.5
(notice 	of
	discipline
	including
	specified 	facts
	supporting 	the
charge),
	22.2.6
	(exhaustion
	of
	grievance 	procedure
	prior 	to
implementing
	penalty),
	22.2.7
	(District's
	option 	to
	relieve
employee
	of
	duties), 	22.3.1
	and
	22.3.2
	(emergency
	suspension),
22.4.1
	and
	22.4.2
	(grievance
	procedure),
	and
	22.5
	(disciplinary
settlementsj.
	These
	provisions
	do
	not
	impinge
	on
	the
employer's 	decision 	to
	impose
	disciplinary
	action
	but
	concern
the 	procedural 	aspects 	of
	those
	decisions.
	Proposals
	dealing
with
	disciplinary
	procedure
	are
	related 	to
	wages,
	hours,
grievance
	procedure 	and,
	potentially, 	transfer
	and
	are
	clearly
negotiable.
Article
	XXIV. 	Working
	Conditions
Article
	XXIV
	of
	CSEA's
	proposals
	is 	entitled
	Working
Conditions. 	Subarticle 	24.l
	provides:
Past 	Practices:
	The
	rules, 	regulations,
pol1c1es
	and
	practices 	of 	the
	District
	which
are 	in
	effect 	at
	the
	time
	of
	this
	Agreement
and 	which
	neither 	conflict
	with 	terms
	of
this
	Agreement 	nor
	abridge 	the
	rights 	of
employees 	under
	this
	agreement
	shall
	remain
in
	full
	force
	and
	effect
	unless
	changed 	by
mutual 	agreement
	CSEA
	and
	the
	strict.
90

By 	the 	provisions 	of 	this 	item, 	CSEA 	seeks 	to 	reach 	contractual
agreement 	and 	to 	prevent 	the 	District 	from 	making 	any
unilateral 	changes 	as 	to 	the 	existing 	employment 	environment.
The 	hearing 	officer, 	relying 	on 	NLRB 	v. 	Katz, 	supra,
erroneously 	concludes 	that 	this 	proposal 	would, 	in 	effect,
create 	an 	alternative 	remedy 	to 	the 	unfair 	practice 	vehicle 	set
forth 	in 	section 	3543.S(c). 	Even 	if 	I 	were 	to 	conclude 	that
the 	availability 	of 	an 	alternative 	remedy 	through 	unfair
practice 	channels 	were 	relevant 	to 	a 	negotiability
determination, 	the 	CSEA past 	practice 	proposal 	goes 	well 	beyond
the 	doctrine 	established 	by 	Katz 	as 	to 	impermissible 	unilateral
changes.
Subarticle 	24.1, 	by 	its 	terms, 	would 	require 	bilateral
negotiations 	over 	all 	subjects 	regardless 	of 	any 	relationship
to 	the 	subjects 	defined 	as 	negotiable 	by 	section 	3543.2. 	I
cannot 	conclude 	that 	any 	rule, 	regulation, 	policy, 	or 	practice,
because 	it 	is 	in 	existence 	at 	the 	time 	of 	the 	agreement, 	is
negotiable. 	Because 	of 	the 	rule 	promulgated 	in 	Katz 	which 	has
been 	adopted 	by 	this 	Board 	in 	prior 	decisions, 	the 	school
employer 	may 	not 	unilaterally 	alter 	the 	terms 	and 	conditions 	of
employment 	about 	which 	it 	is 	required 	to 	negotiate.
(San 	Francisco Community 	College 	District 	(10/12/79) 	PERB
Decision 	No. 	105; 	San 	Mateo 	Community College 	District 	(6/8/79)
PERB 	Decision 	No. 	94.) 	CSEA 	seek 	to 	include, 	as 	a 	contract
term, 	such 	a 	prohibition 	ided 	the 	proposal 	is 	limi 	to
91

rules, 	regulations, 	policies 	and 	practices 	which 	relate 	to
wages, 	hours 	and 	the 	enumerated 	terms 	and 	condition. 	In 	its
present 	form, 	however, 	this 	proposal 	is 	overly 	broad 	and 	is
nonnegotiable.
Subarticle 	24.4 	reads:
Special 	Trip 	assignment 	shall 	be 	distributed
and 	rotated 	as 	equally 	as 	possible 	among 	bus
drivers 	in 	the 	bargaining 	unit.
It 	is 	clear 	from 	the 	record 	that 	this 	proposal 	relates 	to 	the
wages 	and 	hours 	of 	bus 	drivers. 	The 	employer 	has 	no 	legitimate
concern 	in 	maintaining 	the 	existing 	policy 	of 	using 	seniority
to 	allocate 	special 	trip 	assignments 	so 	as 	to 	render 	this
proposal 	nonnegotiable. 	While 	the 	employer 	retains 	the 	right
to 	direct 	that 	special 	trip 	assignments 	be 	made, 	the 	allocation
of 	these 	assignments 	to 	specific 	unit 	drivers 	is 	not 	a 	matter
of 	reserved 	managerial 	control 	and 	thus, 	subarticle 	24.4 	is
negotiable.
Subarticles 	24.5.l 	and 	24.5.2 	relate 	to 	standby 	time. 	They
provide:
24.5.1 	Bus 	drivers 	on 	special 	trips
including 	but 	not 	limited 	to 	athletic
events, 	field 	trips, 	and 	curricular 	trips
who 	are 	required 	to 	remain 	on 	standby 	for
the 	duration 	of 	the 	event 	for 	which 	the
special 	trip 	is 	made, 	shall 	be 	paid 	for 	all
standby 	hours 	at 	their 	regular 	rate 	of 	pay.
Whenever 	any 	combination 	of 	driving 	and
standby 	hours 	in 	a 	day 	exceeds 	the
established 	workday 	as 	defined 	in
Section 	8.1, 	excess 	hours 	shall 	be
compensated 	at 	the 	appropriate 	overtime 	rate
based 	on 	the 	employee's 	regular 	pay 	rate.
92

24.5.2
	Notwithstanding
	any
	other
	prov1s1ons
of
	this
	Agreement,
	if
	a
	special
	trip
requires
	an
	overnight
	stay,
	the
	Districtshall
	be
	relieved
	of 	the
	obligation
	of
payment
	for
	any
	hours
	between
	the
	time
	a
	bus
driver
	is
	relieved
	of
	duties
	for 	the
	evening
and
	the
	time
	duties
	resume
	the 	following
morning.
Subarticle
	24.6
	relates
	to 	vehicle
	availability
	and
	states:
Vehicle
	Unavailability:
	Whenever
	as
	the
result
	of 	the
	unavailability
	of 	appropriate
District
	vehicles
	due
	to
	mechanical
	or
	othermalfunctions
	a
	bus
	driver 	regularly
scheduled
	to
	work
	is
	unable
	to
	work,
	he/she
shall
	receive
	pay
	at
	the
	rate
	he/she
	would
have
	received 	for
	working
	that
	day.
Each
	of 	these 	proposals
	relates
	to
	wages 	and
	hours.
	The
request
	for 	standby
	time
	involves
	compensation
	for
	periods
spent
	"on
	call."
	Similarly,
	when
	an 	employee
	is
	unable
	to
carry
	out
	an
	assignment
	due
	to 	vehicle
	problems,
	the
	employee
would 	be
	entitled
	to
	her/his
	regular
	rate
	of
	pay
	for
	that
time. 	Neither 	the 	standby
	time
	proposal
	nor
	the
	vehicle
unavailability
	proposal
	is
	rendered 	nonnegotiable
	by
	any
managerial
	interest.
	Bus
	drivers'
	work
	will
	continue
	to
	be
assigned 	to 	unit
	employees
	and
	to
	be
	directed
	by
	the
	Districts;
these 	proposals 	simply
	relate
	to
	payment 	and
	thus 	are
negotiable 	since 	they
	relate 	to
	wages 	and
	hours.
Article
	XXVI.
	Training
In 	Arti
	XXVI,
	CSEA
	submitted 	proposals 	ling
	wi
employee
	training. 	Subarticle 	26.1 	provides:
In-service 	Training 	Program: 	The
	Distr
	t
shall
	provide
	a 	program
	of 	in-service
93

training 	for 	employees 	in 	the 	bargaining
unit 	designed 	to 	maintain 	a 	high 	standard 	of
performance 	and 	to 	increase 	the 	skills 	of
employees 	in 	the 	bargaining 	unit.
The 	language 	of 	this 	proposal 	seeks 	to 	require 	that 	the
Districts 	provide 	training. 	However, 	since 	the 	subject 	of
training 	itself 	is 	not 	an 	enumerated 	term 	and 	condition 	of
employment 	and 	does 	not 	relate 	to 	wages 	or 	hours, 	the 	Districts
argue 	that 	it 	is 	nonnegotiable.
In 	my 	view, 	the 	subject 	of 	employee 	training 	is 	logically
and 	reasonably 	related 	to 	certain 	specified 	subjects. 	Training
that 	is 	necessary 	to 	insure 	employee 	safety 	is 	negotiable 	since
it 	relates 	to 	safety, 	an 	enumerated 	subject. 	Also, 	to 	the
extent 	that 	evaluations 	of 	employees 	are 	affected 	by 	the
availabiiity 	or 	lack 	of 	training, 	training 	is 	negotiable.
Therefore, 	while 	the 	decision 	to 	offer 	a 	specific 	training
program 	is 	a 	managerial 	prerogative, 	the 	subject 	of 	training 	is
negotiable 	to 	the 	extent 	that 	it 	relates 	to 	safety, 	ev~luntive
procedures, 	or 	other 	enumerated 	subjects.
Subarticle 	26.2 	states:
Training 	Advisory 	Committee: 	A training
advisory 	committee 	composed 	of 	six 	(6)
employees 	in 	the 	bargaining 	unit 	to 	be
selected 	by 	CSEA 	from 	the 	following
classifications: 	Cafeteria, 	Clerical,
Custodial, 	Instructional 	Aides, 	Maintenance,
Transportation 	and 	two 	(2) 	members 	appointed
by 	the 	District 	shall 	be 	formed. 	The
purpose 	of 	the 	advisory 	committee 	wi 	be 	to
plan 	service 	training 	programs, 	to
monitor 	the 	programs, 	and 	to 	provide
recommendations 	concerning
94

programs.
	Bargaining
	unit
	employees
	shall
be
	granted 	reasonable
	release
	time
	to 	carry
out 	the
	committee
	obligations.
This
	provision,
	like 	subarticle
	26.1,
	is
	negotiable 	to 	the
extent
	that
	it
	relates
	to
	safety-related 	training
	and
evaluation-related 	training.
	The
	proposal
	establishes
	an
"advisory
	committeee"
	and,
	on
	its
	face,
	does
	not
	disturb
	the
employer's
	authority
	to
	render 	the
	final
	decision
	with
	regard
to
	training
	programs
	offered.
Subarticles
	26.3
	and
	26.4
	provide:
26.3
	In-Service 	Training
	Time:
	In-Service
training 	shall
	take 	place
	during
	regular
working
	hours
	at
	no
	loss
	of
	pay
	or
	benefitsto
	employees.
26.4
	Reimbursement
	for
	Tuition:
	The
District 	shall
	reimburse
	employees
	for
	the
tuition
	costs 	of
	any 	and
	all
	training
programs 	approved
	by
	the
	training
	advisory
committee.
These
	two
	proposals 	regarding
	training
	are 	negotiable 	because,
by
	their
	terms, 	they
	relate
	to
	wages 	and
	hours	
of	
employees.
Training 	during
	work
	hours 	without
	loss
	of
	pay
	and
reimbursement 	for
	approved 	program
	costs 	are
	focused
	on
	the
employees'
	legitimate
	concerns 	of
	wages 	and
	hours
	and
	do
	not
compel
	the
	Districts
	to 	grant
	such
	sessions.
Article
	XXVII.
	Contracting
	and
	Bargaining 	Unit
	Work
Article
	XXVII
	concerns
	contracting
	and
	bargaining
	unit
	work
Subarticle 	27.1 	provides:
Restriction
	on
	Contracting 	Out: 	During 	the
life
	of 	this
	agreement, 	the 	District 	rees
95

that 	it 	will 	not 	contract 	out 	work 	which 	has
been 	customarily 	and 	routinely 	performed 	or
is 	performable 	by 	employees 	in 	the
bargaining 	unit 	covered 	by 	this 	agreement
unless 	CSEA 	specifically 	agrees 	to 	same 	or
contracting 	is 	specifically 	required 	by 	the
Education 	Code.
The 	decision 	to 	subcontract 	work 	is 	logically 	and 	reasonably
related 	to 	wages, 	and, 	as 	stated 	in 	Township 	of 	Little 	Egg
Harbor 	(1976) 	2 NJPER 	5, 	has 	a 	"cataclysmic 	effect 	on 	wages,
hours 	and 	working 	conditions." 	An 	employee 	whose 	job 	is
terminated 	because 	the 	employer 	has 	decided 	to 	subcontract
her/his 	work 	to 	other 	employees 	is 	undeniably 	confronted 	with 	a
loss 	of 	hours 	and 	wages. 	Management 	considerations, 	however,
are 	also 	raised 	by 	subcontracting 	decisions. 	The 	public 	school
employer 	may 	determine 	that 	an 	outside 	custodial 	firm 	may 	be
able 	to 	perform a 	particular 	task 	for 	less 	cost 	than 	that
required 	by 	the 	currently 	employed 	classified 	personnel. 	While
sound 	fiscal 	management 	is 	a 	significant 	concern, 	it 	does 	not
follow 	that 	submission 	of 	a 	subcontracting 	proposal 	to 	the
bilateral 	negotiating 	process 	would 	undermine 	the 	school
employer's 	legitimate 	interests.
The 	hearing 	officer 	concluded 	that 	the 	subject 	of
subcontracting 	relates 	to 	both 	managerial 	erogatives
enumerated 	subjects. 	He 	reviewed 	the 	private 	section 	decisions
in 	(Fibreboard 	Paper 	Products 	Corp. 	v. 	NLRB 	(1964) 	379 	u.s. 	203
[57 	LRRM 	2609]; 	Westinghouse 	Electric 	Corp. 	(1965) 	150 	NLRB
1574 	[58 	LRRM 	1257]; 	District 	50, 	UMW v. 	NLRB 	(4 	Cir. 	1966)
96

358 	F.2d 	234 	[61 	LRRM 	2632]) 	and 	concluded 	that 	subcontracting
is 	a 	negotiable 	subject 	but 	only 	"under 	certain 	circumstances."
In 	the 	public 	sector, 	the 	negotiability 	of 	subcontracting
decisions 	has 	been 	repeatedly 	examined. 	In 	City 	of 	Kennewick
(WA 	10/05/79) 	1 	NPER 	49-10052, 	the 	Washington 	board, 	relying 	on
Westinghouse 	Electric, 	supra, 	held 	that 	the 	city 	was 	required
to 	bargain 	about 	the 	decision 	to 	subcontract 	its 	custodial 	work
previously 	performed 	by 	unit 	employees. 	In 	City 	of 	Waterbury
(CT 	12/07/79) 	2 NPER 	07-11010, 	the 	Connecticut 	board 	similarly
held 	that 	the 	City 	acted 	improperly 	when 	it 	unilaterally
decided 	to 	subcontract 	its 	computer 	operations. 	That 	board
noted 	that 	since 	the 	work 	contracted 	out 	had 	been 	formerly
performed 	by 	unit 	employees, 	the 	City was 	required 	to 	bargain
even 	though 	the 	function 	had 	been 	performed 	inefficiently, 	only
11 	of 	the 	50 	unit 	employees 	were 	affected 	by 	the 	subcontracting
and 	the 	employer 	had 	guaranteed 	comparable 	jobs 	to 	those
affected.
In Massachusetts, 	the 	labor 	board 	has 	held 	that 	public
employers 	must 	bargain 	about 	subcontracting 	decisions 	where 	the
decision 	affects 	duties 	traditionally 	performed 	by 	unit
members. 	(Town 	of 	Burlington 	(MA 	01/24/80) 	6 MLC 	1795 	[2 	NPER
22-11015}; 	Franklin 	School 	Committee 	(MA 	02/22/79) 	5 MLC 	1659
[1 	NPER 	22-10033) .)
New 	Jersey 	has 	likewise 	considered 	negotiability
subcontract 	decis 	and 	concluded 	that 	the 	right 	to
97

subcontract
	is
	not
	a 	management
	prerogative
	but
	is
	subject 	to
the
	salutory
	influence 	of
	collective
	negotiations.
	(Township
of
	Little
	Egg
	Harbor,
	supra;
	State
	of
	New
	Jersey
	(NJ
	01/04/80)
6 	NJPER 	11017	
[2
	NPER	
31-11017]
.)
In
	New
	York,
	a
	public
	employer
	is
	not
	permitted
	to
unilaterally
	implement
	a
	subcontracting
	decision.
	(Saratoga
Springs
	City
	School
	District
	(NY
	05/17/79)
	12
	PERB
	7008
	[l
	NPER
33-17008]
.)
	The
	obligation 	to 	negotiate 	subcontracting,
however,
	pertains
	only
	to
	those
	decisions
	where
	the
	private
employees
	would 	be
	performing 	the
	same
	services
	in 	the
	same
manner
	as
	the 	public
	employees
	were
	performing
	them 	(Town
	of
Rochester
	(NY
	01/04/79)
	12
	PERB
	4501
	[l
	NPER
	33-14501]
.)
Likewise,
	in
	Pennsylvania
	an 	employer
	is
	prohibited
	from
subcontracting 	unit
	work,
	even
	if
	based
	on
	purely
	economic
reasons,
	because
	of 	the 	inherent
	connection
	between
subcontracting
	and
	curtailment 	of
	employees'
	work.
	(Erie
Municipal
	Airport 	Authority
	(PA
	01/12/79)
	10 	PPER 	10028
	[l
	NPER
40-10028];
	Phoenixville
	Area 	School
	District
	(PA
	07/03/79)
	10
PPER
	15178	
[1 	NPER
	40-10178]
.)
Thus, 	based
	on
	the 	foregoing
	discussion,
	I
	conclude
	that
CSEA's
	subcontracting 	proposal 	in 	subarticle 	27.1 	is 	negotiable
to
	the 	extent 	that
	it
	requires 	negotiations 	for
	decisions
the 	subcontracting 	of 	unit
	work.20
20rn 	i
	to 	ari
	f
	r's
	cone 	,
argues 	that 	the 	decision 	in
	CSEA
	v.
	Willits 	Unified 	School
98

Subarticle 	27.2 	concerns 	notice 	of 	subcontracting 	decisions
and 	states:
Notice 	to 	CSEA: 	No 	contract 	for 	services
which 	might 	affect 	employees 	in 	the
bargaining 	unit 	shall 	be 	let 	until 	CSEA has
been 	provided 	10 	days 	advance 	notice 	of 	the
award.
This 	proposal 	is 	negotiable 	because 	ample 	notice 	of
subcontracting 	plans 	is 	essential 	to 	meaningful 	negoiations.
Finally, 	subarticle 	27.3 	states:
Bargaining 	Unit 	Work: 	No 	Supervisory 	or
Management 	employee 	may 	perform 	any 	work
within 	the 	job 	description 	of 	a 	bargaining
unit 	employee.
In 	analyzing 	this 	proposal, 	the 	hearing 	officer 	concludes 	that
employees 	have 	a 	legitimate 	concern 	with 	protecting 	bargaining
unit 	work 	and 	that 	protection 	of 	unit 	work 	necessarily 	relates
to 	wages, 	hours 	and 	benefits. 	He 	also 	concludes, 	however, 	that
because 	assignment 	of 	work 	is 	a 	managerial 	prerogative, 	the
instant 	proposal, 	because 	it 	is 	over 	broad, 	is 	an 	incursion
District 	(1965) 	243 	243 	Cal.App.2d 	776 	2d 	776 	[52 	Cal. 	Rptr.
765] 	substantiates 	its 	view 	that 	subarticle 	27.1 	is
negotiable. 	In 	Willits, 	the 	Court 	held 	that 	the 	District 	was
not 	permitted 	to 	subcontract 	the 	work 	of 	janitorial 	employees
and, 	generally, 	that 	school 	districts 	have 	the 	power 	only 	to
subcontract 	as 	established 	by 	statute. 	The 	Court 	did 	not
specifically 	adopt 	CSEA's 	argument 	that 	subcontracting 	is
prohibited 	if 	the 	work 	is 	customarily 	and 	routinely 	perfo
Willits 	did 	not 	interpret 	the 	scope 	of 	bargaining 	under 	EERA,
and 	it 	is 	not 	controlling 	here. 	However, 	the 	language 	of
subarticle 	27.1 	which 	incorporates 	the 	"customari 	and
routinely 	performed" 	standard 	is 	in 	accord 	with 	public
sector 	cases 	cited 	herein.
99

into
	management
	rights
	and
	thus 	nonnegotiable.
	He
	finds
	that
this
	proposal
	would
	permit
	CSEA
	to
	negotiate
	regarding
	the
duties
	of 	supervisory 	personnel
	who
	are
	not
	within 	the
classified
	unit.
The
	language
	of
	subarticle
	27.3
	is
	admittedly
	vague 	and
could
	be
	read
	to
	be
	an
	attempt
	to 	negotiate
	the
	impact
	that
nonunit
	employee
	job 	performance
	may
	have
	on
	the
	work
responsibilities
	of
	unit
	employees.
	However,
	as
	written
subarticle
	27.3
	is
	plainly 	directed
	at
	prohibiting
	the
	employer
from
	assigning
	and
	directing
	its
	nonunit
	work
	force.
	Thus,
while
	such
	decisions
	may
	well
	impact
	on
	unit
	employees,
	the
proposal
	is
	not
	so
	limited
	and
	it
	therefore
	impermissibly
intrudes 	into
	management's
	right 	to 	control
	work
	assignments.
CSEA
may
	submit
	proposals
	which
	focus
	on
	such
	assignments
and
	the
	rights
	of
	unit
	employees 	which
	it
	represents.
	However,
in
	its
	current
	form,
	while 	the 	proposal
	is
	related 	to 	the
employee's
	wages 	and
	hours,
	it
	is
	nonnegotiable 	because
	it
	is
outweighed
	by
	the 	employer's
	legitimate 	interests
	and
	primarily
concerns 	the
	work
	assignments 	of 	nonunit
	employees.
By:
~e-a-r_,b,_a_r_a_D
___
M_o_o_r_e_,
_M...._,_e_m.,...b_e_r
_____
_
Concurring 	and
	dissenting 	opinion 	of 	Chairperson
	Gluck
	begins
at
	page 	101.
The 	Remedy 	and 	Order
	in 	this 	case 	begin
	on 	page 	150.
100

Harry 	Gluck,
	Chairperson, 	concurring
	and
	dissenting:
DISCUSSION
The
	District's
	objections 	to
	the 	hearing
	officer's
	proposed
decision
	may 	be 	summarized
	as 	follows:
(a) 	The
	legislative
	intent
	was
	to
	provide
	a
	narrow
	or
limited
	scope
	of
	negotiability.
(b) 	The
	test
	of
	relationship
	to
	an
	enumerated
	item 	should
be
	that
	the
	subject
	is
	inextricably
	or
	directly 	related.
(c) 	Any
	matter
	covered
	by
	existing
	state
	law
	is
	thereby
preempted
	and
	should
	be
	excluded
	from
	mandatory
	scope.
	The
employer 	should
	not
	be
	forced
	to 	negotiate
	on
	rights 	already
guaranteed
	and 	which
	are
	remediable
	by
	other
	means.
{d) 	The
	District
	should 	not
	be
	required 	to 	consider
possible 	relationships
	between
	proposals
	and
	enumerated
	items
which
	are 	out 	of 	scope.
(e) 	The
	issues 	are
	moot
	because 	they 	arose 	out 	of
negotiations
	for
	a
	contract
	proposed
	to 	expire
	on
	June
	30,
	1977.
In
	San 	Mateo
	City
	School
	District
	(5/20/80)
	PERB
	Decision
No.
	129, 	the
	Board 	was
	concerned 	with 	the
	meaning
	of 	the
	term
"matters
	relating
	to.
	There, 	the 	question 	arose 	as
	an
aspect 	the 	general 	task 	determining
	negotiabili
	It
was
	my
	conclusion 	that 	in 	deciding 	whether
	a
	subject 	is	
one
	on
which
	the
	employer
	is 	required 	to 	negotiate, 	the 	thresho
st 	is
	whe 	r
	dispu
	ect 	logically
	and
reasonably
	relates 	to 	hours, 	wages, 	or 	an 	enumerated 	term
101

condition 	of
	employment.
	Supra,
	p.
	13.
	The 	San 	Mateo
	test
does 	not
	stop,
	however,
	with
	establishing
	this
	threshold
question.
	It
	was
	recognized
	that
	the 	determination 	of
	a
logical
	and
	reasonable
	relationship
	is
	not
	always
	facially
evident.
	To
	cope
	with
	proposals
	that
	are 	arguably 	included 	or
excluded,
	a
	further 	yardstick
	was
	developed
	against
	which
disputed 	issues
	could
	be
	measured:
(a)	
whether
	the
	subject
	is
	of
	such
	concern
to
	both
	management 	and
	employees
	that
conflict 	is 	likely
	to
	occur
	and
	whether
	themediatory
	influence 	of
	collective
	bargaining
is
	the
	appropriate
	mean
conflict;
	and,
s
	of 	resolving
	the
(b)	
whether
	the 	employer's
	obligation 	to
negotiate
	would
	significantly
	abridge
	his
freedom
	to 	exercise
	those 	managerial
prerogatives
	essential
	to
	achievement
	of 	the
District's
	mission. 	§upra,
	p. 	14.
That
	test
	is
	applied 	here.
The
	Intent 	to
	Narrow 	Scope
In
	my
	judgment,
	the
	weakness
	in 	the
	District's
	proposed
test 	is
	its
	attempt 	to 	limit
	scope,
	even
	for 	those 	items
specifically
	enumerated,
	by
	curtailing
	the
	definition 	of 	the
term 	"matters
	relating 	to."
	Granted, 	there
	seems
	to
	be 	a
conflict
	between
	the 	apparent 	expansiveness 	of
	this 	phrase
	and
limitations
	imposed	
by	
the 	Legislature
	rough
	its 	specific
enumeration 	of 	negotiable 	items 	covered
	by
	the 	phrase 	"terms
conditions 	of
	employment." 	Readi
	the
	wor
	ters
relating
	to" 	in 	connection 	with
	wages 	and
	hours,
	EERA
	seems 	to
102

make
	possible
	a
	broader
	spectrum
	of
	negotiable
	subjects
	than
does
	the 	National
	Labor
	Relations
	Act 	which
	does
	not
	use
	the
quoted
	phrase.
	It
	appears
	that
	the
	limitation
	intended
	by
	the
Legislature
	is
	accomplished
	not
	by
	giving 	to
	that
	phrase
	an
unnaturally 	limited
	meaning
	but
	by
	the
	listing
	of
	specific
subjects
	which
	are
	meant
	to
	be
	within
	scope
	and
	the
	specific
listing
	of
	subjects
	on 	which
	negotiations
	is
	precluded.
	Thus,
a
	subject
	which
	is
	excluded 	cannot
	be
	transformed
	by
	applying
to
	it
	the 	phrase
	"matters
	relating 	to."
	On
	the
	other
	hand,
	a
subject
	which
	may
	logically
	and
	reasonably
	be
	related 	to
	an
included
	subject
	should 	not
	be
	cast
	out
	by
	altering
	the
	plain
and
	common
	meaning
	of
	the
	words
	constituting 	that
	phrase.
The
	District's
	further
	argument
	that
	the
	mere
	existence
	of
any
	statutory
	provision 	precludes 	incorporating
	that 	provision
in
	the
	agreement
	was
	similarly 	rejected
	in
	Jefferson
	School
District
	(6-19-80)
	PERB
	Decision
	No.
	133, 	pp. 	7-11.
The
	Employer's
	Duty
	to
	Interpret
	the 	Proposal
As
	I
	interpret
	the 	hearing
	officer's
	admonition
	here,
	as
	I
did 	in
	Jefferson,
	he 	would
	hold
	the
	employer
	responsible 	for
evaluating
	any
	proposal 	to 	determine 	the 	extent 	of 	the
employer's 	duty
	to 	negotiate.
	I
	find 	nothing
	wrong
	in
	is
position
	as
	I 	found 	none
	in
	Jefferson,l	
(supra,
	pp. 	11-12 	for
a
	full
	discussion 	of 	the 	matter).
1Because 	the
	District
	refused 	to 	discuss 	those 	matters
which
	it
	declared 	to
	be
	outside 	the 	scope 	of 	representation,
103

The
	Issues
	are
	Moot
For
	the 	reasons
	set
	forth
	at
	length 	in
	Amador
	Valley
Unified
	School
	District
	(10-2-78)
	PERB
	Decision
	No.
	74,
	and
	in
the
	absence
	of
	clear
	evidence 	here
	that
	the
	Association
relinquished
	its
	right
	to 	negotiate
	the
	disputed 	items,
	the
District's
	argument
	is
	rejected.
With
	the 	foregoing 	in
	mind,
	it
	is
	appropriate 	to
	turn 	to
the
	specific
	proposals
	in
	dispute.
Article
	II
	No
	Discrimination
I
	am
	in
	substantial
	agreement
	with
	Member
	Moore's
conclusion
	that
	2.1
	and
	2.2
	of
	this
	proposal 	are 	within
	the
scope
	of 	representation.
These
	sections 	logically
	touch
	on
	virtually
	all
	aspects
	of
the
	employment
	relationship.
	The
	prohibition 	of 	discrimination
assures 	that
	wages
	will
	be
	paid
	on 	an
	equal
	basis; 	that
	hours
will
	be
	distributed
	without 	regard
	to 	sex, 	race,
	union
activism,
	etc.;
	that 	transfers
	and
	reassignments
	will
	be
accomplished
	in
	an
	even-handed
	fashion;
	that 	evaluations
	will
not
	reflect
	non
	job-related 	biases.
A work
	place 	free
	from
	discrimination
	1s
	of 	fundamental
interest
	to
	employees, 	as
	it
	may
	surely
	be 	assumed
	to
	be
	to
employers
	alike.
	Indeed,
	statutory 	obligations
	imposed
	on
those 	sociation 	proposals
	were
	not
	clarified; 	consequently,
it
	has 	not 	been
	possible 	to
	be 	more
	specific 	in 	determining 	the
ecise 	limits 	of 	their 	negotiability.
104

105
employers 	in 	this 	regard 	emphasized 	the 	point. 	(See 	Education
Code 	sections 	44100-44105, 	44830; 	42 	U.S. 	2000 	et 	seq., 	42 	U.S.
1981, 	1983). 	The 	negotiating 	process 	is 	well 	suited 	to 	the
airing 	and 	resolution 	of 	the 	parties' 	concerns 	on 	this
subject. 	A collective 	agreement 	may 	well 	provide, 	through 	its
administration 	processes, 	a 	convenient 	and 	inexpensive 	means 	of
resolving 	future 	related 	disputes.
Requiring 	negotiations 	on 	a 	proposal 	such 	as 	this 	is 	not
seen 	as 	abridging 	the 	District's 	"freedom 	to 	exercise 	those
managerial 	prerogatives 	essential 	to 	the 	achievement 	of 	the
District's 	mission," 	San 	Mateo, 	supra 	p. 	14. 	This 	proposal
requires 	the 	employer 	to 	do 	nothing 	it 	is 	not 	already 	obligated
to 	do 	under 	applicable 	law. 	The 	District's 	argument 	that 	the
proposal 	is 	nonnegotiable 	because 	other 	remedies 	exist 	is
rejected. 	We, 	therefore, 	find 	the 	proposal 	within 	the 	scope 	of
representation.
The 	District 	argues 	that 	2.3 	Affirmative 	Action 	is
nonnegotiable 	because 	it 	intrudes 	into managerial 	prerogatives
in 	the 	operation 	of 	the 	District. 	I 	disagree. 	Unlike 	a
decision 	which 	is 	strictly within 	the 	ambit 	of 	m~nag~rial
prerogatives 	but 	requires 	impact 	bargaini 	, 	an 	affirmative
action 	plan 	itself 	may 	establish 	policy 	on 	wages, 	hours, 	and
the 	enumerated 	conditions 	of 	employment. 	Such 	a 	plan 	cou
acce 	rate 	promot 	of 	certain 	workers, 	the 	increasing
their 	pay. 	It 	may 	equalize 	hours 	work, 	affect 	leave
105

transfer
	rights,
	or
	equalize
	rates
	among
	workers;
	the
possibilities
	touch
	on
	all
	aspects
	of 	the
	employment
relationship.
	I
	would,
	therefore,
	find
	an
	affirmative
	action
plan
	a
	negotiable
	item
	to
	the
	extent
	it
	concerns 	the
	subjects
listed
	in
	section
	3542.2.2
The
	Association
	here
	is
	seeking 	only
	to 	consult
	on
	an
affirmative 	action 	plan,
	a
	request
	which
	I
	find
	permissible.
2section
	3543.2
	states:
The
	scope
	of
	representation
	shall
	be
	limited
to 	matters
	relating
	to
	wages,
	hours
	of
employment, 	and
	other
	terms
	and
	conditionsof
	employment.
	"Terms 	and
	conditions 	of
employment" 	mean
	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 	toSection
	3546,
	procedures 	for 	processinggrievances 	pursuant
	to
	Sections 	3548.5,
3548.6, 	3548.7,
	and
	3548.8,
	and
	the
	layoffof 	probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	ofthe 	Education
	Code.
	In
	addition,
	the
exclusive 	representative 	of
	certified
personnel
	has
	the
	right
	to 	consult
	on
	the
definition
	of 	educational 	objectives, 	thedetermination 	of 	the 	content 	of 	courses
	and
curriculum,
	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 	schoolemployer 	and 	may
	not
	be 	a
	subject 	of
	meetingand
	negotiating,
	provided
	that
	nothing
herein
	may 	be
	construed 	to 	limit 	the
	rightof 	the 	publ 	school 	employer
	to 	consultwith
	any 	employees 	or
	employee
	organization
on 	any
	matter 	outside 	the 	scope 	of
representation.
106

There
	is
	nothing 	in
	EERA
	which
	prohibits
	an
	employee
organization
	from
	waiving
	its
	right
	to 	negotiate
	in
	favor
	of
	an
assurance 	of
	consultation
	rights
	on 	a
	subject
	matter
	which
	is
within
	the
	scope
	of
	representation.
Article
	V
Organizational
	Rights
The
	District
	objects 	to 	5.1.1
	and
	5.1.2
	on
	the
	grounds
	that
the
	subject
	matter
	is
	not
	closely
	enough
	related
	to 	grievance
procedures 	or
	any
	other
	enumerated
	item
	to
	warrant
	bargaining.
It
	also
	claims
	that
	these 	proposals
	need
	not
	be
	negotiated,
	as
they
	reiterate
	rights
	and
	provide 	for
	remedies
	already
	set
forth
	in
	EERA
	section 	3543.l(b).
I
	concur 	with
	Member
	Moore's
	findings
	with 	regard
	to
	both
sections.
	In
	giving 	Association
	representatives
	access
	to
	all
school
	buildings,
	this
	paragraph 	bears
	a
	logical 	relationship
to
	grievance 	procedures. 	Furthermore, 	the
	right
	of 	access
bears
	direct 	relation
	to
	the
	administration 	of 	the
	collective
bargaining
	argument
	itself,
	as 	organization
	representatives
	may
require
	access 	to 	school premises
	to
	observe 	whether
	various
terms
	of 	the
	agreement
	are
	being 	complied
	with.
	It
	is 	well
settled 	that 	administration 	of
	a
	contract
	is
	an
	essential 	part
of
	the
	collective
	bargaining 	process.3	
As
	the
	Supreme
	Court
noted 	in
	Conley 	v. 	Gibson 	(1957) 	355
	U.S.
	41,
	46 	[41
	LRRM
	2089]:
Collective 	bargaining
	is
	a
	continuing
process.
	Among
	other 	thi 	s,
	it
	involves
3Morris, 	The 	Developing 	Labor 	Law, 	Ch. 	11, 	p. 	340.
107

108
day-to-day 	adjustments 	in 	the 	contract 	and
other 	working 	rules, 	resolution 	of 	new
problems 	not 	covered 	by 	existing 	agreements,
and 	the 	protection 	of 	employee 	rights
already 	secured 	by 	contract. 	(emphasis
added) .
The 	interest 	that 	employees 	have 	in 	this 	proposal 	is
identical 	to 	their 	interest 	in 	collective 	bargaining 	itself.
Negotiating 	the 	subject 	of 	this 	paragraph 	does 	not 	interfere
with 	the 	exercise 	of 	basic 	managerial 	prerogatives. 	The
District's 	concern 	that 	"unlimited 	access" 	may 	interfere 	with
operations 	should 	be 	expressed 	through 	its 	bargaining 	positionr
the 	fact 	that 	it 	may 	find 	the 	proposal 	objectionable, 	does 	not
excuse 	it 	from 	an 	obligation 	to 	bargain 	over 	the 	subject 	matter.
For 	the 	same 	reasons, 	I 	find 	the 	proposed 	free 	access 	to
bulletin 	boards, 	mailboxes, 	and 	the 	mail 	system 	to 	be 	within
scope. 	The 	Legislature 	does 	not 	consider 	such 	access 	as
interfering 	with 	the 	District's 	mission 	as 	evidenced 	by 	the
embodiment 	of 	the 	requirement 	in 	section 	3543.l(b) .4
4section 	3543.l(b) 	states:
Employee 	organizations 	shall 	have 	the 	right
of 	access 	at 	reasonable 	times 	to 	areas 	in
which 	employees 	work, 	the 	right 	to 	use
institutional 	bulletin 	boards, 	mailboxes,
and 	other 	means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and 	the 	right 	to 	use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned 	with
the 	e~ercise 	of 	the 	rights 	guaranteed 	by
this 	r.
See 	also 	Long 	Beach 	Unified 	School 	District 	(5-28-80),
Decision 	No. 	130.
108

With 	regard 	to 	5.1.3, 	I 	substantially 	agree 	with 	Member
Moore's 	discussion.
The 	District 	contends 	that 	5.1.4 	which 	would 	grant
employees 	the 	right 	to 	review 	their 	personnel 	files 	need 	not 	be
negotiated 	since 	it 	is 	not 	inextricably 	related 	to 	a 	grievance
procedure 	or 	any 	other 	enumerated 	item. 	It 	also 	claims 	that
Education 	Code. 	section 	44031 	provides 	an 	alternative 	remedy
for 	employees 	denied 	access 	to 	their 	personnel 	files.
Like 	Member 	Moore, 	I 	find 	this 	proposal 	related 	to
grievance 	procedures; 	the 	personnel 	file 	may 	contain 	any 	manner
of 	material 	related 	to 	the 	enforcement 	of 	the 	contract. 	I 	also
find 	5.1.4 	related 	to 	evaluations. 	The 	contents 	of 	the
personnel 	file 	may 	be 	used 	to 	evaluate 	employees. 	Allowing
individuals 	to 	inspect 	the 	file 	is 	a 	way 	qf 	assuring 	that
objectionable 	material 	does 	not 	find 	its 	way 	into 	an 	evaluation
or 	otherwise 	influence 	the 	evaluator.
The 	fact 	that 	the 	Education 	Code 	section 	44031 	allows
employees 	to 	inspect 	their 	personnel 	files 	does 	not 	remove 	this
proposal 	from 	the 	ambit 	of 	negotiable 	subjects. 	As 	stated
earlier 	in 	this 	concurrence, 	the 	presence 	of 	a 	proposed 	item 	in
the 	Education 	Code 	precludes 	negotiability 	only 	if 	the 	oposal
conflicts 	with 	the 	Code. 	I 	find 	no 	such 	conflict.
In 	addition 	to 	claiming 	that 	seniority 	rosters 	have 	no
discernible 	relationship 	to 	enumerated 	items, 	the 	District
asserts 	t 	5.1.5 	is 	of 	ini 	se 	an
109

110
alternative 	remedy 	exists 	in 	some 	unspecified 	portion 	of 	EERA.
As 	there 	is 	nothing 	in 	that 	statute 	or 	any 	other 	to 	which 	the
District 	has 	directed 	our 	attention 	that 	conflicts 	with 	the
proposal, 	I 	find 	the 	employer's 	claim 	groundless.
I 	believe 	that 	the 	seniority 	roster 	i~ a 	negotiable 	subject
because 	it 	logically 	relates 	to 	the 	enforcement 	and
administration 	of 	the 	contract 	itself. 	Through 	the 	information
contained 	on 	the 	roster, 	employers 	and 	the 	Association 	will 	be
alerted 	to 	possible 	contract 	violations 	where 	seniority 	is 	a
factor 	in 	determining 	negotiated 	wages, 	hours, 	and 	terms 	and
conditions 	of 	employment.
I 	am 	in 	substantial 	agreement 	with 	Member 	Moore's 	analysis
of 	proposals 	5.1.6 	through 	5.1.9 	which 	concern 	access 	to
information.
5.10 	provides 	for 	released 	time 	to 	conduct 	"necessary 	CSEA
business." 	While 	it 	is 	unclear 	what 	is 	included 	in 	the 	term
"necessary CSEA 	business," 	I 	assume 	that 	it 	encompasses
negotiating 	on 	behalf 	of 	unit 	members, 	preparing 	and 	presenting
grievances, 	and 	otherwise 	administering 	the 	collective
bargaining 	agreement. 	To 	this 	extent, 	I 	find 	it 	negotiable. 	A
demand 	for 	released 	time 	without 	loss 	of 	pay 	more 	than
"relates" 	to 	wages 	and 	hours. 	It 	deals 	directly 	with 	those
enumerated 	matters.
I 	would 	note 	that 	the 	employer's 	concern 	with 	costs 	or
110

111
possible
	illegal
	expenditures
	could
	be
	advanced
	at
	the
negotiating
	table.
5.1.11
	demands
	released
	time
	for 	attendance
	at
	CSEA's
Annual
	Conference
	and
	requires
	the
	District
	to
	pay
	$250
	for
conference 	expenses.
	I
	agree
	with
	Member 	Moore
	that
	a 	demand
for 	released
	time
	for
	attending
	the 	conference
	is
	negotiable
because
	such
	a 	demand,
	in
	itself,
	seeks
	a
	reduction 	in
	working
hours.
	However,
	the
	demand
	for 	conference 	expenses
	bears
	no
logical
	or 	reasonable
	relationship
	to
	an
	enumerated
	item
	and
falls
	outside
	mandatory
	scope.
The
	District
	maintains
	that
	it
	need
	not 	bargain
	over
	5.1.12
because
	that
	proposal 	seeks
	to
	dictate
	the
	activities
	of 	the
workday,
	the 	sole 	prerogative 	of
	management.
	It
	is
	unclear
what
	the 	Association
	meant
	by
	"workday"--whether
	that
encompasses
	the
	regular
	hours
	during
	which 	employees
	are
	at
work,
	including
	lunch
	and
	breaks, 	or
	whether
	it
	refers 	only
	to
those 	periods
	employees
	are
	actually
	performing
	duties 	for
	the
employer. 	In
	either
	event, 	5.1.12
	is
	a 	demand
	for
	reduction
	of
work
	hours
	in
	that
	it
	calls
	for
	time
	set
	aside 	during
	the
	work
day
	for 	the 	purpose
	of 	contract 	administration.
	I 	would
	find
it
	related 	to
	hours
	and 	wages
	and,
	thus, 	negotiable.25
25Palos 	Verdes 	Peninsula 	Unified 	School
	District/Pleasant
Valley 	School
	District
	(7-16-79),
	PERB
	Decision
	No. 	96,
	fielding
tnat
	the 	length
	oftlie
	working 	day
	is
	a
	matter 	within 	scope.
See
	also
	San 	Mateo
	City 	School
	District
	(5-20-80),
	PERB
Decision
	No. 	129.
111

112
As 	with 	every 	other 	proposal, 	the 	District 	should 	not
confuse 	its 	obligation 	to 	bargain 	with 	a 	nonexistent 	duty 	to
acquiesce. 	Its 	concerns 	and 	interests 	can 	be 	adequately
expressed 	and 	protected 	at 	the 	bargaining 	table.
The 	District's 	argument 	that 	5.2 	intrudes 	impermissibly
into 	managerial 	prerogatives 	is 	well-taken. 	As 	it 	stands, 	this
proposal 	would 	prevent 	management 	from 	forming 	committees 	made
up 	of 	its 	own 	ranks 	for 	the 	purpose 	of 	giving 	administrators
and 	other 	managers 	advice 	concerning 	labor 	relations. 	The
formation 	of 	such 	a 	committee 	is 	clearly within 	the 	legitimate
purview 	of 	the 	employer's 	internal 	functioning 	and 	cannot 	be
precluded 	or 	interfered 	with 	by 	the 	demands 	of 	the 	employee
organization.
However, 	the 	ambiguity of 	this 	proposal 	raises 	the
possibility 	that 	it 	may 	include 	matters 	within 	scope. 	I 	would
find 	it 	acceptable 	to 	the 	extent 	that 	it 	would 	prohibit 	the
employer 	from 	unlawfully 	bypassing 	the 	exclusive 	representative
on 	matters 	related 	to 	wages, 	hours, 	and 	the 	enumerated 	working
conditions.
5.4 	Distribution 	of 	Contract
By 	its 	proposed 	5.4., 	CSEA 	seeks 	to 	pass 	on 	to 	the 	employer
the 	cost 	of 	informing 	the 	employees 	of 	the 	terms 	of 	the
collective 	bargaining 	agreement. 	The 	District 	claims 	that 	this
proposal 	is 	not 	related 	directly 	enough 	to 	an 	enumerated 	item
to 	warrant 	negotiation. 	I 	ee. 	s 	th
112

113
assumption
	of 	organizational
	costs,
	neither
	an
	enumerated
	item
nor
	related
	to
	an
	enumerated
	item.
5.5
	Management
	Orientation
I
	am
	in
	substantial
	agreement
	with
	Member
	Moore's
discussion 	of
	this
	proposal.
Article
	VI
	Job
	Representatives
I
	join
	in
	Member
	Moore's
	opinion 	regarding
	this
	article.
Article 	10.1
	Uniform;
	Article
	10.2.1
	and
	10.2.2
	Tools:
Article
	10.3 	Replacing 	or 	Repairing
	Employee's
	Property;
Article
	10.5
	Nonowned
	Automobile
	Insurance
I
	am
	in
	substantial
	agreement 	with
	Member
	Moore's
discussion 	of
	the
	above
	items.
10.7
	Employee
	Achievement
	Awards
The
	District
	claims
	this
	proposal
	is
	not
	related 	to
	wages.
It
	argues
	that
	because
	the 	Education
	Code
	section
	12917,
incorporated
	by
	reference 	in
	10.7, 	allegedly 	establishes
	a
system
	of
	"irregularly
	paid, 	discretionary
	bonus[es],
	[the
proposal]
	is
	not
	related 	to
	economic
	benefits
	paid 	for
	services
rendered 	during 	the
	employment
	relationship."
	[District's
Brief 	in
	Support
	of 	Exceptions, 	p. 	25].
In
	analyzing
	this
	proposal,
	I
	find 	the 	question 	of 	whether
the
	Education
	Code
	section
	12917
	establishes
	a
	system
	of
bonuses,
	gifts,
	or 	merit 	increases 	irrelevant 	to 	the
	issue 	of
negotiability.
	The
	proposal
	will
	be
	within 	the 	scope
	of
i
	as
	a
	res
	t
	of
	its
	re 	to 	s, 	if 	it, 	in 	its
113

114
totality, 	contemplates 	a 	regular 	system 	of 	bonus 	payments 	or
merit 	pay 	rather 	than 	gifts.
There 	has 	been 	much 	litigation 	over 	the 	distinction 	between
nonnegotiable 	"gifts" 	and 	merit 	increases 	or 	bonuses, 	which 	are
mandatory 	subjects 	of 	bargaining. 	Courts 	have 	generally 	agreed
that 	a 	payment 	will 	be 	considered 	a 	gift 	if 	(1) 	it 	is 	awarded
on 	an 	irregular 	and 	inconsistent 	basis, 	(2) 	it 	varies 	in
amount, 	and 	(3) 	payment 	is 	dependent 	on 	the 	financial 	condition
of 	the 	employer.26 	The 	distinction 	has 	also 	been 	articulated
in 	NLRB 	v. 	Niles-Bemont-Panel 	Co. 	{1952) 	199 	F.2d 	713, 	714 	[31
LRRM 	2065]:
..• if 	these 	gifts 	were 	so 	tied 	to 	the
renumeration 	which 	employees 	received 	for
their 	work 	that 	they 	were 	in 	fact 	a 	part 	of
it, 	they 	were 	in 	reality 	wages 	and 	so 	within
the 	statute ..• Where, ... the 	so-called 	gifts
have 	been 	made 	over 	a 	substantial 	period 	of
time 	and 	in 	amounts 	that 	have 	been 	based 	on
the 	respective 	wages 	earned 	by 	the
recipients, 	the 	Board 	was 	free 	to 	treat 	them
as 	bonuses 	not 	economically 	different 	from
other 	special 	kinds 	of 	renumeration 	like
pensions, 	retirement 	plans, 	or 	group
insurance ... which 	have 	been 	held 	with 	the
scope 	of 	statutory 	bargaining requirements.
Merit 	increases, 	which 	may 	include 	payments 	to 	individual
employees 	as 	a 	reward 	for 	loyalty 	or 	efficiency, 	have 	also 	been
26NLRB 	v. 	Wonder 	State 	Mfg. 	Co. 	(1965) 	344 	F.2d 	[54 	LRRM
2065] .
114

115
consistently
	held
	to
	be 	a
	mandatory
	subject 	of 	bargaining.27
The
	rationale
	for
	this
	conclusion
	was
	succinctly 	stated
	by
	the
court
	in
	NLRB
	v. 	Berkeley
Machine 	Works,
	supra:
Merit
	pay
	where
	there
	are
	a 	number
	of
employees
	means 	more
	than
	a
	gratuity
	or
bonus
	paid
	to
	an
	occasional
	employee
	whom
the
	company
	wishes
	to
	favor
	on
	account
	of
his 	loyalty
	or
	efficiency.
	It
	means
necessarily
	the 	formulation
	and
	application
of 	standards;
	and
	such
	standards 	are
	proper
subjects
	of
	collective
	bargaining.
Collective
	bargaining
	with
	respect 	to
	wages
might
	well
	be
	disrupted
	or
	become 	a
	mere
empty 	form
	if
	the
	control
	over
	the
	wages
	of
individual
	employees
	were
	thus
	removed 	from
the 	bargaining
	area.
I
	see
	this
	proposal 	as
	comparable
	to
	a
	merit
	pay
	concept.
The
	intention
	of
	10.7
	is
	to
	establish
	a
	"regular
	program
	of
monetary 	awards
	for 	valuable 	suggestions,
	services,
	or
accomplishments
..•
"
	(emphasis
	added).
	Thus, 	payment
	is 	for
work
	performed
	which
	is
	valuable 	to
	the
	employer. 	Whether
	in
the
	past,
	awards
	made
	pursuant 	to 	that 	section 	of 	the 	Education
Code
	could
	have 	been
	legitimately 	characterized
	as
	"gifts" 	is
unimportant 	because
	the 	Association,
	through
	this 	proposal,
seeks 	to 	negotiate
	and
	regularize
	an 	award
	system 	based
	on
standards, 	thereby 	bringing
	it
	under
	the 	umbrella 	of 	wages.
27J .H. 	Allison	
&
Co.,
	(1946) 	70
	NLRB
	377
	[18
	LRRM
	1369];
NLRB
	v. 	Berkeley
Machine 	Works, 	(1951) 	189
	F.2d
	904 	[28
	LRRM
2176 ] 1	
NLRB
	v • 	Katz 	{19.6 2) 	3 6 9 	U • S • 	7 3 6 	[ 5 0
	LRRM
	2177] •
115

10.8
	Hold
	Harmless
	Clause
I
	agree 	with
	Member
	Moore's
	discussion 	of
	this
	proposal
	but
find
	that
	the 	employer's
	financial
	interest 	is
	not
	a
	factor 	to
be
	considered 	in 	determining
	negotiability.
	Financial
concerns--ability
	to
	pay--is
	a
	bargaining
	position,
	not
	a
criterion
	of
	negotiability.
Article
	XI
	Rights
	of
	Bargaining 	Unit
I
	do
	not
	interpret 	this
	article
	as
	an
	attempt
	by
	CSEA
	to
circumscribe
	or
	prohibit
	the
	District's
	decision 	to 	deunify
	the
school
	district.
	Rather,
	it
	seeks
	to
	bind
	a
	successor
	district
to
	the
	terms
	of
	this 	collective
	bargaining
	agreement,
	if
	there
is
	a
	successor.28
I 	would
	find
	this
	proposal 	negotiable 	to
	the
	extent
	that
	it
attempts 	to 	include 	in 	the
	collective
	bargaining
	agreement
Education
	Code
	section
	45118 	(quoted
	at
	p.
	26).
	That
	statute
guarantees
	employment
	for 	not
	less
	than
	two
	years
	at
	the
	same
rate
	of
	pay 	and
	with
	retained 	leaves
	and
	other
	benefits.
	It
also
	bestows
	certain 	transfer 	rights
	on
	employees
	affected
	by
the 	reorganization.
	As
	such,
	it
	clearly 	relates
	to
	wages,
health	
and	
welfare
	benefits, 	leaves,
	and
	transfer
	policies.
28The
	implications 	of
	this
	proposal 	in 	deciding 	the
ability
	of
	one
	public
	agency
	to
	bind 	another
	(its
	successor) 	toan
	existing 	collective
	bargaining 	agreement, 	the
	obligation
	of
a
	successor
	agency
	to
	honor
	existing 	contracts
	where
	theworkforce
	is 	assimilated
	and
	the 	rights 	of
	employees 	whoseemployment
	survives	
a 	change 	in 	the 	identi 	of 	their
	employermust 	be
	ft
	to 	such 	time
	this
	Board
	considers 	the 	matter.
116

17.1 Short-Term Employees
It 	is 	possible 	that 	the 	parties, 	have 	used 	the 	term
"classified 	employee" without 	reference 	to 	the 	Education 	Code
definitions 	but 	simply 	as 	a 	general 	term 	to 	distinguish
noninstructional 	personnel 	from 	certificated 	employees. 	But
since 	the 	District 	raises 	the 	question 	of 	whether 	short-term
employees 	are 	in 	the 	unit, 	and 	in 	the 	absence 	of 	any 	evidence
in 	the 	record 	as 	to 	what 	the 	parties 	meant 	by 	the 	term
"classified 	employees," 	I 	assume 	that 	the 	Education 	Code
definition 	prevails. 	Thus, 	short-term 	personnel 	are 	not 	in 	the
unit 	as 	they 	are 	not 	"classified 	employees," 	and 	CSEA 	is
precluded 	from 	submitting 	proposals 	concerning 	this 	group.
17.2 	Restricted 	Employees
The 	District 	argues 	that 	restricted 	employees 	are 	not 	in
the 	unit 	because, 	it 	claims, 	they 	are 	not 	in 	the 	classified
service. 	As 	Member 	Moore 	points 	out, 	the 	restricted 	employees,
unlike 	the 	short 	termers, 	are 	not 	specifically 	excluded 	from
classified 	service. 	We 	cannot, 	therefore, 	declare 	them 	outside
the 	unit 	of 	all 	classified 	employees, 	absent 	evidence 	that 	the
parties 	intended 	to 	exclude 	them.
I 	do 	not 	find 	the 	instant 	to 	fatally 	confli 	with
the 	relevant 	Education Code 	sections, 	though 	certain 	portions
may 	conflict. 	For 	example, 	CSEA may 	not 	seek 	to 	require 	that 	a
restricted 	employee 	automatical 	become 	a 	regular 	after 	126
world 	, 	"fulfi 	i 	r 	irements 	on 	ot 	r
117

118
persons 	serving 	in 	the 	same 	class 	as 	regular 	employees," 	if
those 	requirements 	do 	not 	include 	the 	qualifying 	examination
prescribed 	by 	Education 	Code 	section 	45105(c). 	Neither 	does 	it
appear 	that 	the 	restricted 	employees 	can 	be 	given 	retroactive
seniority 	for 	layoff 	purposes 	or 	provisional 	employment 	(See
Education 	Code 	sections 	45287 	and 	45289), 	but 	this 	proposal
seeks 	to 	secure 	other 	benefits 	retroactively 	for 	restricted
employees 	who 	become 	regular. 	Such 	benefits 	may 	include 	wage
raises, 	health 	and 	welfare 	benefits, 	and 	other 	contracted
values 	not 	precluded 	by 	the 	Code. 	To 	this 	extent, 	I 	find 	it
within 	scope.
17.3 	Substitute 	Employees 	and 	17.4 	Student 	Employees
I 	substantially 	agree 	with 	the 	discussion 	and 	conclusion
reached 	concerning 	these 	proposals.
17.5 	Distribution 	of 	Job 	Information
I 	concur 	in 	the 	finding 	that 	this 	proposal 	is 	related 	to
wages 	and 	hours. 	I 	also 	find 	it 	negotiable 	in 	accordance 	with
my 	previous 	discussion 	on 	contract 	administration.
Article 	XIX 	Promotions
I 	concur 	with 	Member 	Moore's 	finding 	and 	conclusions.
Article 	XX 	Classification
20.1 	Placement 	in 	Class
This 	section 	is 	essentially 	prefatory 	language 	to 	the
entire 	artic 	, 	its 	ing 	to 	define 	el 	ibility 	r
118

contract 	entitlements.
	It
	is,
	therefore,
	within
	scope
	to 	the
extent
	the 	following
	related
	proposals
	are.
20.2
	Classification
	and
	Reclassification
	Requirement
The
	District
	strenuously
	objects
	to
	the
	negotiability
	of
this
	proposal,
	claiming
	that
	classification
	decisions
	go
	to
	the
very
	heart 	of
	management's
	ability
	to
	direct
	the 	workforce.
	It
also
	claims
	that
	the 	Association
	cannot
	interject
	itself
	into
the
	statutorily
	mandated
	prerogative 	of 	the
	District
	to
establish 	classifications.
	Education
	Code
	section
	45109
requires
	the
	District
	to
	establish
	job
	classifications.
	The
fact 	that
	the
	District 	is
	so
	obligated
	does
	not
	automatically
preclude
	it
	from
	bargaining 	with 	the
	employee
	organizations
prior
	to
	so
	doing.
	As
	with 	every
	other 	proposal, 	the
negotiability
	of
	20.2
	turns
	on
	its
	relation
	to
	an
	enumerated
item.
This
	proposal 	accomplishes
	two
	things
	by
	its
	terms:
	it
subjects
	the
	classification
	process
	to
	the 	requirement
	of
mutual 	agreement 	between
	CSEA
	and
	the
	District,
	and
	it
	provides
that
	"any
	dispute
	shall
	be
	subject 	to 	the 	grievance
procedure." 	Precisely
	what
	is
	intended
	by
	this 	last
	phrase 	is
unclear.
	CSEA
	might 	be
	seeking
	a
	procedure 	for
	contesting
	the
placement 	of
	an 	employee
	in
	an
	established
	classification.	
A
different
	reading 	might 	be
	that
	CSEA
	seeks
	arbitration 	of
	a
disagreement 	concerning 	establishment 	of 	the
	classification.
If
	the
	r
	is 	the 	intent 	of
	is
	propos
	, 	I
	find
	it
	in
119

scope. 	If 	the 	latter 	is 	the 	purpose 	of 	this 	portion 	of 	20.2, 	I
would 	find 	the 	provision 	outside 	the 	required 	scope 	of
bargaining. 	Interest 	arbitration, 	which 	is 	the 	essence 	of 	such
a 	proposal, 	is 	a 	method 	of 	resolving 	negotiation 	disputes 	and
is 	not, 	itself, 	a 	subject 	on 	which 	negotiation 	is 	required.
The 	question 	of 	negotiating 	classifications 	is, 	however,
more 	complex. 	In 	the 	private 	sector, 	a 	classification 	system
has 	been 	defined 	as 	"a 	series 	of 	job 	levels 	or 	grades
determined 	arbitrarily 	with 	each 	job 	classified 	into 	its 	proper
relative 	grade."29
Education 	Code 	section 	4510l(a) 	provides:
(a) 	"Classification" 	means 	that 	each
position 	in 	the 	classified 	service 	shall
have 	a 	designated 	title, 	a 	regular 	minimum
number 	of 	assigned 	hours 	per 	day, 	days 	per
week, 	and 	months 	per 	year, 	a 	specific
statement 	of 	the 	duties 	required 	to 	be
performed 	by 	the 	employees 	in 	each 	such
position, 	and 	the 	regular 	monthly 	salary
ranges 	for 	each 	such 	position 	(emphasis
added).
Implicit 	in 	a 	classification 	scheme 	is 	the 	prerogative 	of
determining 	which 	functions 	are 	necessary 	for 	the 	District 	to
accomplish 	its 	mission. 	To 	determine 	that 	the 	District
requires 	custodians, 	clericals, 	cafeteria 	workers, 	etc. 	is 	a
negotiate 	over 	such 	decisions. 	To 	the 	extent 	that 	this
29Latin 	Watch 	Case 	Co. 	Inc. 	(1965) 	156 	NLRB 	203, 	206 	[61
LRRM 	1021].
120

121
proposal 	seeks 	to 	impose 	an 	absolute 	prohibition 	on
management's 	decision 	to 	reclassify 	or 	create 	new
classifications, 	it 	is 	beyond 	the 	scope 	of 	bargaining.
However, 	the 	general 	nature 	of 	the 	proposal 	makes 	it
difficult 	to 	determine 	those 	aspects 	of 	a 	classification
decision 	CSEA 	seeks 	to 	bargain 	over. 	To 	the 	extent 	that 	it
requires 	bargaining 	over 	resulting 	changes 	in 	the 	employees'
current 	wages, 	hours, 	and 	negotiable 	conditions 	of 	employment
such 	as 	transfers 	and 	promotions 	of 	present 	employees, 	it 	is
negotiable.30 	I 	also 	find 	the 	aspect 	of 	classification 	which
concerns 	job 	descriptions 	to 	be 	negotiable.31 	The 	job
description 	may 	determine 	pay 	rates, 	promotion 	and 	transfer
opportunity, 	hours, 	and 	other 	enumerated 	items.
20.3 	New 	Positions 	or 	Classes 	of 	Positions
I 	concur 	in Member 	Moore's 	discussion 	of 	this 	proposal.
20.4 	Reclassification
This 	constitutes 	a 	wage 	demand 	and 	is 	a 	matter 	on 	which 	the
employer 	must 	negotiate.
301atin Watch 	Case 	Co., 	supra: 	Limpco 	Mfg. 	Co. 	( 	) 	225
NLRB 	921 	[93 	LRRM 	1464]; 	Sewerage 	Commission 	of 	the 	City 	of
Milwaukee, 	1 	NPER 51-10005 	(Wisconsin 	Employment 	Relations
Commission 	5/18/79); 	Contra, 	New 	York 	State 	Court 	Employees
Association 	v. 	Bartlett 	(1979) 	12 	PERB 	Decisions 	of 	New 	York
3075.
31Handen 	Community Child 	Care, 	(1979) 	1 	NPER 07-10038
Comm. 	SBLR: 	Milwaukee 	Police 	~ssoc. 	v. 	Breier 	(1979) 	WERC
Decision No. 	16602-A.
121

122
20.5 	Incumbent 	Rights
"Reclassification" 	is 	defined 	as 	"the 	upgrading 	of 	a
position 	to 	a 	higher 	classification 	as 	a 	result 	of 	the 	gradual
increase 	of 	the 	duties 	being 	performed 	by 	the 	incumbent 	in 	such
a 	position.32n 	I 	presume 	that 	any 	upgrading 	involves 	an
increase 	in 	pay 	for 	employees 	serving 	in 	those 	positions. 	The
proposal 	seeks 	to 	assure 	that 	incumbents 	will 	receive 	that
higher 	wage 	by 	guaranteeing 	their 	placement 	in 	the 	higher
classification.
This 	proposal 	also 	relates 	to 	transfers 	in 	that 	it
establishes 	a 	classification 	of 	positions 	which 	will 	be 	subject
to 	the 	negotiated 	transfer 	procedures.
Because 	the 	terms 	of 	this 	proposal 	do 	not 	seek 	to 	prevent
the 	employer 	from 	reclassifying 	any 	job, 	negotiating 	the 	rights
of 	incumbents 	or 	of 	other 	employees 	eligible 	for 	transfer 	will
not 	intrude 	on 	the 	District's 	ability 	to 	fulfill 	its 	mission.
20.6 	Downward 	Adjustment
Member 	Moore 	concludes 	that 	this 	proposal 	"does 	not
interfere 	with 	the 	employer's 	right 	to 	downgrade 	any
position ... provided 	it 	is 	a 	result 	of 	layoff 	or 	disciplinary
action." 	(Moore 	opinion, 	p. 	66, 	emphasis 	added). 	As 	I
interpret 	the 	proposal, 	it 	requires 	that 	downward 	adjustments
32Education Code 	section 	45101(f).
122

be 	considered 	demotions 	and 	accomplished 	by 	a 	negotiated
procedure 	used 	in 	layoffs 	or 	disciplinary 	actions.
To 	the 	extent 	that 	the 	layoff 	and 	disciplinary 	procedures
are 	within 	scope, 	I 	find 	this 	proposal 	is 	negotiable.
20.7 	Abolition 	of 	Position
This 	proposal 	differs 	significantly 	from 	20.6, 	a 	difference
which 	is 	fatal 	to 	20.7's 	negotiability. 	Here, 	CSEA attempts 	to
control 	the 	management 	decision 	to 	abolish 	positions 	by
requiring 	its 	approval 	before 	that 	event. 	This 	contrasts 	with
20.6, 	which 	simply 	mandates 	that 	a 	particular 	procedure 	be
followed 	before 	downward 	adjustments 	take 	place.
21.1 	Reason 	for 	Layoff
As 	Member 	Moore 	points 	out, 	the 	flaw 	in 	this 	proposal 	is
the 	attempt 	to 	define 	"lack 	of 	funds" 	and 	in 	so 	doing, 	to
restrict 	the 	reasons 	for 	which 	the 	employer 	may 	institute 	a
layoff. 	The 	effort 	to 	tie 	managerial 	decision 	making 	to 	a
specific 	definition 	interferes 	with 	the 	employer's 	ability 	to
freely 	manage 	the 	enterprise.13 	While 	the 	school 	employer 	is
obligated 	not 	to 	abuse 	its 	discretion 	in 	determining 	its
financial 	condition, 	it 	is 	also 	vested 	with 	the 	flexibility 	to
decide 	what 	circumstances 	necessitate 	a 	layoff.14 	By
13NLRB 	v. 	United 	Nuclear 	Corp. 	{1967) 	381 	F.2d 	972
(66 	LRRM2101}. 	.
14csEA v. 	Pasadena 	Unified 	School 	District 	(1977) 	71 	Cal.
App. 	3aTI8.
123

124
attempting 	to 	impose 	an 	arbitrary 	standard 	before 	the 	fact,
this 	proposal 	would 	impermissively 	interfere 	with 	lawful
management 	discretion.
21.2 	Notice 	of 	Layoff
I 	am 	in 	basic 	agreement 	with 	Member 	Moore's 	discussion 	and
conclusion 	with 	respect 	to 	this 	proposal.
21.3 	Reduction 	in 	Hours
I 	concur 	in 	Member 	Moore's 	findings 	and 	conclusion.
21.4 	Order 	of 	Layoff
This 	proposal 	is 	consistent 	with 	the 	Education 	Code. 	Its
negotiability 	is 	also 	supported 	by 	private 	sector 	law.15
Procedures 	to 	be 	utilized 	in 	effectuating 	layoffs 	bear 	an
obvious 	relation 	to 	the 	wages 	and 	hours 	of 	those 	who 	are 	laid
off 	as 	well 	as 	to 	those 	employees 	to 	be 	retained. 	The
employer's 	control over 	the 	decision 	to 	layoff 	is 	not 	removed
by 	a 	requirement 	that 	order 	of 	layoff 	and 	pertinent 	procedures
be 	mutually 	established. 	I 	find 	21.4 	within 	the 	scope 	of
representation.
21.5 	through 	21.14
I 	am 	in 	substantial 	agreement 	with 	Member 	Moore's 	findings
and 	conclusions 	on 	these 	articles.
15Firefighters' 	Union 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.
3d 	608: 	united 	States 	Gypsum Co. 	(1952) 	94 	NLRB 	114, 	enfd. 	206
F.2d 	410; 	Hilton 	Mobile 	Homes 	155 	NLRB 	873 	[60 	LRRM 	1411].
124

125
21.15
	Improper
	Layoff
I
	do
	not
	see
	the
	relationship
	between
	this
	proposal
	and
	the
contract
	grievance 	procedure.
	However,
	this
	article 	is
	an
attempt 	to
	protect
	the
	wages
	of
	employees
	who
	are
	improperly
laid 	off.
	Because
	it
	provides
	for
	immediate
	reinstatement 	of
such 	employees,
	it
	affects
	the
	hours
	worked 	by 	them
	and
	may
have 	an
	effect
	on
	their
	entitlement 	to 	health
	and
	welfare
benefits.
	I
	therefore
	find
	21.25
	related
	to
	wages,
	hours,
	and
health
	and
	welfare
	benefits.
21.16
	Seniority
	During
	Involuntary
	Unpaid
	Status
This
	proposal 	not 	only
	relates
	to
	wages
	but
	to
	all
enumerated 	items
	contained
	in
	the
	proposed
	contract
	which
	are
dependent
	on
	seniority.
	On
	its
	face,
	it
	relates
	to 	leaves
	as
well, 	since
	it
	provides 	for
	a
	nonaccrual
	of
	leave
	benefits
during 	the
	unpaid
	status.
	As
	this
	proposal,
	like
	the
	majority
of
	the 	other
	in
	Article
	XXI,
	is
	procedural,
	it
	does
	not
	impinge
on 	any
	relevant
	managerial
	interest
	in 	such
	a 	manner
	to
preclude
	negotiability.
Article
	XXII--Discipline
The
	District 	objects 	to
	this
	proposal
	on
	the 	grounds	
that
it
	interferes
	with
	management
	prerogatives
	and
	supersedes
Education
	Code. 	The
	proposal 	reads:
22.1 	Exclusive 	Procedure: 	Discipline 	shall
be 	imposed 	upon
	bar 	aining 	unit
	employees
only 	pursuant 	to
	s
	Artie
22.2
	Disc 	inary 	Procedure.
125

22.2.1
	Discipline
	shall
	be 	imposed
	on
permanent 	employees
	of 	the 	bargaining
	unit
only 	for
	just
	cause.
	Disciplinary 	action
	is
deemed
	to
	be 	any
	action
	which
	deprives
	any
employee
	in 	the 	bargaining
	unit
	of
	any
classification
	or
	incident 	of
	employment
	or
classification
	in
	which
	the
	employee
	has
permanence
	and
	includes 	but
	is
	not
	limited
to 	dismissal,
	demotion,
	suspension,
reduction
	in
	hours
	or
	class
	or
	transfer
	or
reassignment 	without 	the
	employee's
voluntary
	written
	consent.
22.2.2
	Except
	in 	those
	situations
	where
	animmediate
	suspension
	is
	justified
	under
	the
provisions 	of
	this
	Agreement,
	an 	employeewhose 	work
	or
	conduct
	is
	of
	such
	character
as
	to
	incur
	discipline 	shall
	first
	be
specifically
	warned
	in
	writing
	by
	the
Supervisor.
	Such
	warning
	shall 	state
	thereasons 	underlying
	any
	intention
	theSupervisor
	may
	have
	of
	recommending 	any
disciplinary
	action
	and 	a
	copy
	of 	the
warning
	shall
	be
	sent 	to 	the
	Job
Representative.
	The
	Supervisor
	shall
	give
	a
reasonable 	period 	of
	advanced 	warning
	topermit 	the
	employee
	to 	correct
	the
deficiency
	without
	incurring
	disciplinaryaction.
	An
	employee
	who
	has
	received
	such
	a
warning
	may
	appeal 	the
	warning
	notice
through 	the 	grievance 	procedure,
	and
	in
addition,
	shall
	have
	the 	option 	of
requesting
	a
	lateral
	transfer
	under
	the
provisions 	of
	this
	agreement.
22.2.2 	Discipline 	less
	than 	discharge
	will
be
	undertaken 	for
	corrective
	purposes 	only.
22.2.4
	The
	District 	shall
	not
	initiate
	any
disciplinary 	action 	for
	any
	cause 	alleged 	to
have
	arisen 	prior 	to
	the
	employee 	becoming
permanent 	nor 	for
	any
	cause 	alleged 	to
	have
arisen
	more
	than
	one
	year 	preceding 	the 	date
that
	the
	District 	files
	the 	notice 	of
disciplinary 	action.
22.2.5
	When
	Distr
	t
	seeks 	the
imposition 	of
	any
	disciplinary
	punishment,
notice 	of 	such
	discipline 	shall
	be 	made
	in
126

127
writing 	and 	served 	in 	person 	or 	by
registered 	or 	certified 	mail 	upon 	the
employee. 	The 	notice 	shall 	indicate 	(1) 	the
specific 	charges 	against 	the 	employee 	which
shall 	include 	times, 	dates, 	and 	location 	of
chargeable 	actions 	or 	omissions, 	(2) 	the
penalty 	proposed, 	and 	(3) 	a 	statement 	of 	the
employee's 	right 	to 	make 	use 	of 	the
grievance 	procedure 	to 	dispute 	the 	charges
or 	the 	proposed 	penalty. 	A copy 	of 	any
notice 	of 	discipline 	shall 	be 	delivered 	to
the 	Job 	Representative 	within 	twenty-four
(24) 	hours 	after 	service 	on 	the 	employee.
22.2.6 	The 	penalty 	proposed 	shall 	not 	be
implemented 	until 	the 	employee 	has 	exhausted
his/her 	rights 	under 	the 	grievance 	article.
22.2.7 	An 	employee 	may 	be 	relieved 	of
duties 	without 	loss 	of 	pay 	at 	the 	option 	of
the 	District.
2.3 	Emergency 	Suspension:
22.3.1 	CSEA and 	the 	District 	recognize 	that
emergency 	situations 	can 	occur 	involving 	the
health 	and 	welfare 	of 	students 	or 	employees.
If 	the 	employee's 	presence 	would 	lead 	to 	the
clear 	and 	present 	danger 	to 	the 	lives,
safety, 	or 	health 	of 	students 	or 	fellow
employees 	the 	District 	may 	immediately
suspend 	with 	pay 	the 	employee 	for 	three 	(3)
working 	days. 	No 	suspension 	without 	pay
after 	service 	of 	a 	notice 	of 	suspension.
22.3.2 	During 	the 	three 	(3) 	days, 	the
District 	shall 	serve 	notice 	and 	the
statement 	of 	facts 	upon 	the 	employee, 	who
shall 	be 	entitled 	to 	respond 	to 	the 	factual
contentions 	supporting 	the 	emergency 	at 	Step
4 of 	the 	grievance 	procedure.
Disciplinary 	Grievance:
22.4.1 	Any 	proposed 	discipline 	and 	any
emergency 	suspension 	shall 	be 	subject 	to 	the
grievance 	procedure 	of 	this 	Agreement 	and
the 	employee, 	at 	his/her 	option, 	may
commence 	review 	either 	at 	Step 	1, 	2 or 	3.
127

128
22.4.2
	An
	employee
	upon
	whom
	a
	notice
	of
discipline
	has
	been
	served,
	may
	grieve
	any
emergency
	suspension 	without
	pay
	at
	Step
	3
of
	the 	grievance 	procedure.
	The
	grievance
meeting
	shall
	be
	held
	and
	a
	response
	made
within 	three
	(3)
	days
	of
	the
	submission
	ofthe 	grievance.
	Notwithstanding
	any
	separate
grievance
	meeting
	held
	in
	accordance 	with
the 	preceding
	sentence, 	the
	employee
	may
also
	grieve
	the
	emergency
	suspension 	along
with 	the
	notice 	of
	discipline.
22.5
	Disciplinary 	Settlements:
	A
disciplinary
	grievance
	may
	be
	settled
	at
	any
time
	following 	the
	service 	of 	notice 	of
discipline.
	The
	terms
	of 	the
	settlement
shall
	be
	reduced
	to
	writing.
	An
	employee
offered
	such
	a
	settlement
	shall
	be
	granted
	a
reasonable 	opportunity 	to
	have
	his/her
	Job
Representative
	review
	the
	proposed
settlement
	before
	approving
	the
	settlement
in
	writing.
Initially,
	I
	find 	the
	entire
	subject 	of
	discipline
	to
	be
	a
negotiable
	item.
	It
	is
	related 	to
	wages,
	health
	and
	welfare
benefits,
	evaluations
	and
	other
	enumerated 	terms
	and
	conditions
in 	that
	employees'
	entitlement 	to
	those
	enumerated 	items 	can
	be
affected
	by
	disciplinary 	actions
	taken
	against
	them.
Additionally,
	the 	terms
	of
	this
	proposal
	do
	not 	prevent
	the
employer
	from
	taking
	disciplinary 	action
	but
	rather, 	establish
procedures
	which
	the
	District
	must
	follow
	when
	it
	decides 	to
discipline.
I
	dissent
	from
	that 	portion 	of
	Member
	Moore's
	opinion
	which
holds
	that
	Education
	Code
	section
	45113
	is
	superseded	
by	
CSEA's
attempt 	to 	submit
	to
	a
	third 	party 	the 	disputes 	over
disciplinary 	actions. 	Section
	45113
	requires 	that 	the
128

129
District's
	"determination
	of
	sufficiency
	of
	cause
	for
disciplinary
	action
	shall
	be
	conclusive."
	I
	find
	nothing
	in
the 	proposal
	which
	conflicts
	with
	this
	basic
	authority.
	The
arbitrator
	would
	not
	have
	the
	power
	to
	determine
	whether
	the
employee's
	alleged 	transgression
	is
	a
	legitimate
	cause
	for
discipline.
	His
	authority
	would 	be
	limited 	to
	deciding
	whether
the
	evidence
	was
	sufficient
	to
	support
	a
	finding
	that
	the
employee
	was
	in
	fact
	culpable.
	CSEA
	seeks
	merely
	to
	give
	a
neutral
	the
	authority 	to
	decide
	whether
	the
	employer
	followed
its
	own
	rules
	in
	effectuating
	the
	discipline.
	To
	this 	extent,
I
	find
	no
	attempted
	supersession 	of
	the
	Education
	Code.
Subarticle
	22.2.3
	requires
	that 	discipline 	less
	than
discharge
	be
	taken 	for
	corrective
	purposes
	only.
	The
	intent
	of
this
	proposal
	is
	to 	require 	that 	lesser
	forms
	of
	discipline
	be
remedial
	rather
	than
	punitive
	in
	nature.
I
	find
	this
	proposal 	within
	scope.
	By
	its
	underlying
	thrust
toward 	performance 	improvement,
	it
	inherently
	seeks
	to
	protect
the
	employees'
	current
	and
	future
	wages,
	benefits,
	and
	hours
	of
employment.
I
	am
	in
	substantial
	agreement 	with
	Member 	Moore
	concerning
the
	remaining
	subarticles 	of 	Article
	XXII.
Subarticle
	24.1 	Past 	Practice
CSEA
	merely 	wishes 	to 	incorporate
	by
	reference
	existing
r 	and
	regulations
	which
	it
	not 	seek 	to
	alter
	r
negotiations. 	Unquestionably, 	could 	propose
	individual
129

130
personnel 	policies 	or 	practices 	which, 	coincidentally, 	would
conform 	to 	those 	already 	in 	effect. 	Such 	a 	procedure 	would 	be
the 	longhand 	method 	of 	including 	in 	its 	negotiated 	agreement
those 	personnel 	rules 	and 	policies 	which 	are 	within 	scope.
Rather 	than 	going 	this 	protracted 	route, 	CSEA has 	chosen 	the
short-cut 	method 	of 	incorporating, 	by 	reference, 	those 	matters
which 	already 	exist 	and 	which 	it 	otherwise 	could 	have 	itself
proposed. 	To 	the 	extent 	the 	proposal 	covers 	rules 	and
regulations 	which 	deal 	with 	matters 	within 	the 	mandatory 	scope
of 	section 	3543.2, 	it 	is 	negotiable.16 	Beyond 	that, 	the
District 	need 	not 	submit 	to 	negotiations. 	Since 	the 	proposal
clearly 	incorporates 	legitimate 	areas 	of 	negotiability, 	the
refinement 	of 	the 	proposal 	is 	more 	properly 	accommodated
through 	the 	bargaining 	process 	by 	the 	District's 	raising
legitimate 	objections 	to 	those 	particular 	policies, 	practices,
or 	rules 	which 	it 	deems 	out 	of 	scope.
Subarticle 	24.4 	(Special 	Trip 	Assignments)
To 	the 	extent 	that 	this 	proposal 	deals 	with 	the 	wages 	and
hours 	of 	bus 	drivers, 	it 	is 	negotiable.
Subarticle 	24.5.1 	and 	24.5.2 	(Standby 	Time)
I 	concur 	in 	the 	finding 	that 	these 	proposals 	relate 	to
wages 	and 	hours 	and 	are 	within 	scope.
For 	this 	reason, 	"past 	practice" 	justification
found 	by 	the 	hearing 	officer 	is 	irrelevent.
130

131
Article
	XXVI,
	Subarticle
	26.1
	(In-service
	Training
	Program)
I
	perceive
	this
	proposal 	as
	sufficiently
	related
	to
	the
enumerated
	subjects
	of
	wages,
	evaluations,
	and
	grievance
procedures
	to
	merit
	a
	finding
	that
	it
	is
	within
	scope.
	It
	is
not
	uncommon
	to
	find
	evaluation
	procedures
	which
	require
	a
remedial
	program
	including
	training
	for
	employees
	whose
performance
	is
	rated
	below
	standard.
	An
	employee's
	successful
completion
	of
	a
	probationary 	period
	or
	his/her
	opportunity 	to
proceed 	through
	the 	promotional 	ladder
	is
	inevitably
	based
	on
that
	employee's 	job 	performance.
	Defense
	against
	disciplinary
action
	based
	on
	alleged
	unsatisfactory
	job 	performance 	which
might
	include 	termination 	or
	demotion
	may
	well
	raise
	questions
of 	prior
	availability
	and
	adequacy
	of
	job
	training.
	These
vital
	employee
	concerns,
	enumerated
	in
	section
	3543.2, 	have
	a
relationship
	to 	in-service 	training
	which,
	in
	my
	view,
	brings
the
	latter
	subject 	well 	within 	the
	scope
	of
	negotiations.
Subarticle
	26.2 	(Training 	Advisory
	Committee)
I
	find
	this
	proposal
	inextricably
	connected 	with
	subarticle
26.1 	discussed
	above
	and,
	therefore,
	within 	the
	scope
	of
negotiations.
Subarticles
	26.3
	and
	26.4
	(In-service 	Trainin
	Time;
Reimbursement
	for 	Tuition
I
	concur 	in 	the 	finding
	that
	these 	proposals
	directly
relate
	to
	wages 	and
	hours 	of 	the
	employees 	and
	are 	within
	scope
Article
	XXVII,
	Subarticle 	27.1 	(Restriction
	on
	Contracting-Out)
131

132
I
	concur
	in
	the
	reasoning
	and
	conclusions
	reached
	by 	Member
Moore,
	and
	find
	this
	proposal 	within
	scope
	of
	negotiations.
Subarticle
	27.2 	(Notice
	to
	CSEA)
I
	find
	this
	proposal
	also
	within
	scope
	as
	directly
connected 	with
	the 	previous
	proposal.
Subarticle
	27.3
	(Bargaining 	Unit
	Work)
In
	Crown 	Coach
	Corp.
	(1965) 	155
	NLRB
	625,
	[60
	LRRM
	1366],
it
	was
	stated:
"The
	obvious 	propose
	of 	the 	clause
	in
question
	is
	to
	preserve 	non-supervisory
production
	and
	maintenance
	work
	for
employees
	in 	the
	unit,
	and,
	plainly,
contrary 	to
	[employer's]
	position,
	the
	mere
fact 	that
	the
	proposed 	terms
	would
	affect
supervisors
	does
	not
	relieve
	the
	company
	of
any
	obligation
	to 	bargain
	with
	respect
thereto.
	On
	the
	contrary, 	the 	clause
	is
	a
mandatory
	subject 	of 	bargaining,
	as
	its
provisions, 	dealing 	as 	they
	do
	with
employment
	opportunities
	for
	employees
	in
the
	unit, 	pertain
	to
	their
	'wages,
	hours,
and
	other
	terms
	and
	conditions 	of
employment,'
	within 	the
	meaning
	of
	[the
	Act]
which
	defines 	the 	bargaining
	obligations 	of
employers
	and
	labor
	organizations,.
	.
	11
To
	the
	extent
	that
	CSEA's
	proposal
	relates
	to 	the
	work
	of
employees
	within 	the
	CSEA
	negotiating
	unit,
	the 	proposal
clearly 	relates
	to 	the
	wages,
	hours,
	and
	possibly 	other
enumerated 	working
	conditions 	of 	the
	employees
	the
	unit
question,
	and
	the
	principle 	set 	forth 	in
	Crown 	Coach
	Core.
	is
clearly 	applicable 	here.
	I 	do
	not
	view
	the 	phrase 	"a
bar 	ining 	unit
	employee" 	as
	suffic
	iguous 	to
	raise
the 	possibility 	that
	CSEA
	is
	seeking 	to 	negotiate 	working
132

133
conditions
	for
	employees
	outside 	of
	its
	unit.
	Nevertheless,
the 	appropriate
	forum
	for
	determining 	the
	precise
	meaning
	of
CSEA's
	proposal
	is
	the 	bargaining
	table.
	The
	mere
	possibility
that
	CSEA
	seeks
	to
	extend
	lawful
	negotiations
	into 	prohibited
areas
	should 	not
	invalidate
	a
	proposal
	which
	inherently
contains
	matters 	within
	scope.
	The
	resolution
	of 	ambiguities
should
	be 	a
	matter 	addressed
	by
	the 	employer's
	questions
	or
objections 	to
	the 	proposal
	as 	provided
	rather
	than
	by
	its
refusal
	to
	discus__§_the
	matter
	at
	all.
Ha/ry
	Gl,rlcik,
	Ehairp~
The 	Remedy
	and
	Order
	in 	this
	case 	begin
	on
	page 	150.
Raymond
	J.
	Gonzales,
	Member,
	concurring
	and
	dissenting:
Upon
	reaching 	the
	end
	of 	the
	majority's 	decisions,
	one
	is
left
	with
	a
	nagging
	question:
	Why
	did 	the 	Legislature 	bother
to 	enact 	the 	unique 	scope 	language 	in 	section
	3543.2
	if
	its
intent,
	as
	found 	by
	the 	majority,
	was
	to 	provide
	a
	scope 	of
representation 	virtually 	identical 	to 	that
	found 	in
	the 	private
sector?
	The
	Legislature
	must 	have 	had 	some
	reason 	for 	enacting
language
	that 	differs
	so 	markedly 	from
	the 	scope 	language 	of
133

134
the
	NLRAl	
and
	almost
	every
	other 	public
	employee
	collective
bargaining
	statute.2	
Yet
	the
	majority's
	analyses 	of
	that
language
	give 	those
	differences
	little
	significance, 	resulting
in
	tests
	for 	determining
	whether
	a
	proposal
	is
	negotiable
	that
sound
	remarkably
	like 	interpretations
	of 	the
	NLRA
	scope
language
	and
	similar
	language
	in
	other
	state
	collective
bargaining
	statutes.
Chairperson 	Gluck's
	test,
	as
	set
	forth
	in
	San 	Mateo
	City
School
	District
	(5/20/80)
	PERB
	Decision
	No.
	129,
	is
	based
	on
the
	United
	States
	Supreme
	Court's
	interpretation
	of
	NLRA
	scope
language
	in
	Fibreboard
	Paper
	Products
	Corp.
	v.
	NLRB
	(1964)
	379
U.S.
	203 	[57
	LRRM
	2609].
	Member
	Moore's
	test
	is 	essentially
the
	same
	with 	the
	addition 	of
	explicit
	recognition
	that 	public
policy 	considerations
	may
	limit
	management's
	obligation
	to
negotiate.
	I
	simply 	cannot
	believe
	that
	the
	legislative 	intent
in
	enacting
	unique 	scope 	language
	is
	served
	by
	adopting
	tests
commonly
	used
	to
	interpret
	the
	more
	usual
	scope
	of 	bargaining
statutory
	language.
lNLRA
	section
	8(d)
	(29 	u.s.c.
	section
	158(d))
	defines
collective
	bargaining 	as 	the 	mutual
	obligation 	of 	the
	parties
to
	meet 	and
	confer 	in
	good
	faith
	"with
	respect 	to
	wages,
	hours,
and
	other
	terms
	and
	conditions 	of
	employment
•..•
"
2see
	Najita,
	Guide
	to 	Statutory 	Provisions 	in 	PublicSector 	Collective 	Bargaining:
	Scope
	of 	Negotiations
	(2d
	issue,
1978)
134

135
I
	recognize
	that
	both
	tests
	provide
	that
	a
	negotiating
proposal
	must
	bear
	some
	relationship
	to
	an
	enumerated
	item
	in
section
	3543.2.
	But
	this
	limitation
	does
	not
	appreciably
narrow
	the
	range
	of
	subjects 	to
	which
	my
	colleagues
	can
	apply
their
	respective
	balancing
	tests;
	as
	this
	case
	demonstrates,
some
	sort
	of
	logical
	and,
	in 	the
	majority's
	opinion,
reasonable,
	connection
	can
	be 	made
	between
	almost
	any
	proposal
that
	would 	be
	considered
	an 	employment
	condition
	in 	the
	private
sector
	and
	one
	of 	the
	items 	enumerated
	in
	section
	3543.2.
It
	might
	be
	argued
	that
	the
	majority's
	requirement
	that
	a
proposal
	be
	reasonably 	as
	well
	as
	logically 	related 	to
	an
enumerated 	item
	will
	safeguard
	against
	a
	flood
	of 	minimally
related
	matters 	inundating
	collective 	negotiations, 	since
matters
	which
	are 	"unreasonably
	related" 	will
	presumably
	fail
the
	majority's
	threshhold
	test.
	However,
	under
	the
	majority's
test,
	the
	term
	"reasonable" 	reduces
	to
	whatever
	appears
reasonable 	to
	the
	individual
	making 	a
	judgment
	of
	whether
	a
particular
	item
	is
	"reasonably
	related."
	While
"reasonableness"
	is
	a
	longstanding
	and
	widely 	used
	legal
concept,
	judicial 	application 	of 	reasonableness 	normally
includes
	some
	standard
	by 	which
	it
	may 	be
	applied.
	Development
and
	articulation
	of
	such
	a
	standard 	establishes
	a
	basis 	for
objectivity,
	permits 	application
	by
	others
	and
	allows
	a
	clear
basis 	for 	jud
	ial
	review. 	such
	as
	d,
"reasonableness"
	becomes
	highly 	subjective: 	the 	person
135

136
evaluating 	a 	negotiations 	proposal 	may 	decide 	whether 	she/he
feels 	the 	matter 	should 	be 	negotiated 	and 	then 	label 	the
subject 	as 	either 	"reasonably 	related" 	or 	"not 	reasonably
related" 	depending 	on 	that 	decision. 	The 	majority's 	threshhold
test 	regretably 	provides 	no 	standard 	or 	guidance 	and 	so, 	does
nothing 	to 	substantively 	narrow 	the 	scope 	of 	representation.
Thus, 	I 	do 	not 	believe 	that 	the 	majority's 	tests 	reflect
the 	legislative 	intent 	to 	enact 	a 	narrow 	scope 	of
representation. 	My 	position 	on 	this 	issue 	is 	set 	forth 	in 	full
in 	my 	dissent 	in 	San 	Mateo, 	supra, 	PERB 	Decision 	No. 	129, 	and 	I
will 	not 	repeat 	it 	here. 	Suffice 	it 	to 	say 	that 	the 	phrase
"matters 	relating 	to" 	should 	be 	interpreted 	within 	the 	context
of 	all 	of 	the 	language 	of 	section 	3543.2. 	Read 	as 	a 	whole,
that 	language 	indicates 	an 	intent 	that 	only 	a 	limited 	number 	of
subjects 	be 	subject 	to 	negotiations. 	Therefore, 	"matters
relating 	to" 	should 	be 	construed 	narrowly, 	applying 	only 	to
subjects 	that 	are 	so 	closely 	related 	as 	to 	be 	essentially
extensions 	of 	specifically 	enumerated 	items.
This 	case 	presents 	an 	issue 	that 	was 	not 	raised 	in
San 	Mateo: 	the 	relationship 	between 	the 	scope 	of
representation 	and 	Education 	Code 	provisions 	regulating 	various
employment 	conditions. 	The 	potential 	conflict 	between
collective 	bargaining 	agreements 	and 	statutory provisions 	is
common 	in 	the 	public 	sector 	because 	public 	employment
conditions 	were 	often 	regulated 	by 	statute 	be 	e 	the 	advent 	of
136

137
collective 	negotiations 	for 	public 	employees. 	Statutorily
regulated 	employment 	conditions 	pose 	certain 	problems 	when
subject 	to 	the 	collective 	bargaining 	process. 	Negotiations
should 	be 	a 	bilateral 	process 	with 	both 	parties 	having 	the
flexibility 	to 	give 	and 	take 	on 	any 	issue 	on 	the 	bargaining
table. 	However, 	a 	regulating 	statute 	naturally 	runs 	counter 	to
such 	flexibility: 	if 	the 	statute 	sets 	a 	mandatory 	standard,
then 	no 	agreement 	between 	the 	parties 	can 	change 	that 	statute,
rendering 	negotiations 	meaningless; 	if 	the 	statute 	sets 	certain
minimum 	benefits 	which 	can 	be 	exceeded, 	then 	employees
negotiate 	upward 	from 	a 	statutorily-granted 	floor 	which
employers 	cannot 	attempt 	to 	decrease. 	Negotiations 	thus 	become
a 	one-way 	street 	to 	increased 	employee 	benefits.
The 	Legislature 	did 	not 	clearly 	resolve 	the 	relationship
between 	Education 	Code 	provisions 	covering 	employment
conditions 	and 	section 	3543.2. 	Section 	3540 	provides 	in 	part:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the 	Education
Code 	and 	the 	rules 	and 	regulations 	of 	public
school 	employers 	which 	establish 	and
regulate 	tenure 	or 	a 	merit 	or 	civil 	service
system 	or 	which 	provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations 	or
other 	methods 	of 	the 	public 	school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
Since 	several 	Education 	Code 	sections 	cover 	employment
137

138
conditions
	that
	are
	specifically
	listed
	in
	section
	3543.2,3
section
	3540
	obviously
	does
	not
	mean
	that
	any
	employment
condition
	covered
	in 	the
	Education
	Code
	is
	not
	negotiable;
given 	the
	clear
	legislative
	intent 	that
	specified 	subjects
	be
negotiable,
	such
	an
	interpretation
	would
	cause
	a
	conflict
between
	these
	two
	sections
	of 	the
	EERA.
	Instead,
	the
	more
reasonable 	explanation
	is 	that
	the
	language
	in
	section
	3540
reflects
	an
	intent 	that 	subjects
	which
	are
	neither
	specifically
enumerated
	nor
	direct
	extensions 	of
	enumerated
	items 	remain
regulated
	by
	statute
	rather
	than
	by
	agreement. 	In
	other
	words,
where
	the
	Legislature
	has
	already
	provided 	for
	an 	employment
condition
	through
	the
	legislative
	process, 	absent
	a
	clear
legislative 	direction,
	the
	EERA
	should 	not
	be
	read 	as
	a
	mandate
to
	now
	provide 	for
	such
	matters
	through
	the
	collective
negotiation 	process.
	Perhaps
	the
	clearest
	example
	is
	tenure:
the
	parties
	involved 	in
	creating
	the
	EERA
	deliberately
	chose
not 	to
	submit
	the 	issue 	of 	tenure 	to
	be
	determined 	through
collective 	negotiations,
	and
	thus 	did 	not
	list
	tenure 	as 	an
enumerated 	term
	and
	condition 	of
	employment. 	I
	think
	the
	same
is
	true
	for 	areas
	such
	as
	layoffs
	and
	discipline.
	Each
	of
these
	major
	subject 	areas
	is
	extensively 	regulated 	through 	the
Education
	Code
	and,
	despite
	its
	importance
	to
	employees, 	was
3see,
	e.g.,
	Educat 	Code
	section
	45127, 	ich
	sets
maximum 	working 	hours 	for
	classified
	employees.
138

139
not 	enumerated 	in 	section 	3543.2. 	This, 	to 	me, 	is 	a 	strong
indication 	that 	these 	subjects 	were 	intended 	to 	be 	determined
through 	the 	legislative 	process, 	as 	expressed 	in 	statute,
rather 	than 	through 	the 	bilateral 	negotiations 	process.
* 	* 	*
Based 	on 	my 	position 	that 	section 	3543.2 	should 	be
construed 	narrowly 	and 	that 	"matters 	relating 	to" 	enumerated
items 	refers 	only 	to 	matters 	which 	are 	so 	closely 	related 	as 	to
be 	essentially 	extensions 	of 	enumerated 	items, 	I 	dissent 	from
the 	majority's 	determination 	that 	the 	following 	proposals 	are
negotiable:
Articles 	2.1 	- 	2.2. 	Discrimination 	is 	only 	tangentially
related 	to 	enumerated 	terms 	and 	conditions 	of 	employment.
While 	discrimination 	may 	have 	an 	impact 	on 	enumerated 	items, 	it
is 	not 	an 	extension 	of 	any 	of 	them. 	I 	do 	not 	believe 	that
impact 	on 	a 	specifically 	listed 	subject 	alone 	is 	a 	sufficient
relationship 	to 	bring 	a 	proposal 	within 	scope.
Article 	5. 	The 	organizational 	rights 	proposed 	by CSEA do
not 	have 	any 	direct 	relationship 	to 	the 	items 	listed 	in
section 	3543.2. 	Furthermore, 	organizations 	are 	given 	rights
under 	EERA 	section 	3543.1; 	I 	believe 	this 	indicates 	a
legislative 	that 	PERB 	ter 	t 	statutory 	language
to 	determine 	employee 	organizations' 	rights 	under 	the 	statute.
139

140
The
	majority
	here
	decides
	that
	released
	time
	is
negotiable.
	I
	disagree
	for
	two
	reasons.
	First,
	"hours"
	as
used
	in
	section
	3543.2
	refers
	to
	how
	many
	hours
	employees
	work
and
	when
	those
	hours
	occur.
	It
	does
	not
	encompass 	what
	work
	is
performed
	during 	those 	hours.
	Released
	time
	is
	not
	nonworking
time;
	rather
	it
	is
	time
	that
	has
	been
	freed
	from
	other
	work
assignments
	to
	be
	utilized
	for
	some
	other
	specific
	activity.
Thus,
	it
	is
	only 	tenuously
	related
	to
	hours
	of
	work.
	Second,
the
	statutory
	provision
	for
	released
	time 	under
section
	3543.l(c)
	indicates 	to
	me
	that
	the
	Legislature
	intended
PERB
	to
	determine
	what
	is
	"reasonable"
	under
	the
	EERA.
Article
	10.
	Most
	of 	these 	proposals
	seek
	district
reimbursement
	for
	employee
	expenses.
	The
	majority 	finds
	such
proposals
	related
	to
	wages
	because 	they
	would
	release
	employees
from
	having
	to
	assume
	certain 	costs.
	This
	is
	a
	prime 	example
of
	how
	far 	the
	"relating
	to" 	language 	can
	be
	stretched.
"Wages" 	commonly
	refers
	to
	rate
	of
	pay.
	To
	relate
	expenses 	to
wages
	requires
	first
	that
	wages 	be
	related 	to 	the
	total
economic
	benefit
	an 	employee
	receives 	for
	working; 	one
	can
	then
perhaps 	see
	a
	connection
	between 	expenses
	and
	this
	expansive
notion 	of
	wages. 	Needless
	to 	say,
	I	
do 	not 	agree 	with
	this	
use
of
	the 	term
	"matters
	relating
	to"
	and
	find 	the 	expense
	items
	in
Article
	10
	to
	be
	nonnegotiable.
	If
	the 	Legislature
	had
intended 	"matters 	relating 	to
	wages"
	to
	be
	construed
	is
broadly,
	it
	would 	have 	found
	it
	unneces
	to 	specifical
140

141
enumerate 	such 	items 	as 	"health 	and 	welfare 	benefits" 	which 	are
clearly 	part 	of 	an 	employee's 	total 	economic 	benefit.
Article 	10.7 	proposes 	a 	program 	for 	employee 	achievement
awards. 	Again, 	relating 	this 	to 	wages 	involves 	first 	relating
wages 	to 	overall 	economic 	benefits. 	Unlike 	overtime
compensation 	or 	incentive 	pay, 	achievement 	awards 	do 	not
provide 	a 	standardized 	rate 	of 	compensation 	for 	a 	standardized
amount 	of 	work 	and 	are 	thus 	not 	direct 	extensions 	of 	the
concept 	of 	wages.
Article 	17.4. 	This 	proposal, 	which 	seeks 	to 	limit 	the
District's 	hiring 	of 	student 	employees 	is 	only 	tangentially
related 	to 	enumerated 	terms 	and 	conditions 	of 	employment.
Article 	19. 	I 	do 	not 	find 	promotions 	to 	be 	sufficiently
related 	to 	wages 	or 	evaluation 	procedures. 	As 	I 	stated 	in
San 	Mateo, 	supra, 	PERB 	Decision 	No. 	129,
[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.
Furthermore, 	a 	need 	for 	evaluations 	in 	making 	promotional
decisions 	does 	not, 	in 	my 	opinion, 	create 	a 	close 	relationship
between 	promotions 	and 	the 	procedures 	for 	evaluating 	employees.
Finally, 	I 	fi 	it 	diffi 	t 	to 	believe 	that 	an 	item 	of
such 	concern 	to 	employees 	would 	not 	have 	been 	specifically
141

142
enumerated
	if
	the
	Legislature
	had
	intended
	it
	to
	be
	in 	scope.
In
	fact,
	a
	bill
	which
	would
	have
	amended
	section
	3543.2
	to
include
	such
	matters
	as 	promotions,
	classifications
	and
reclassifications,
	layoff
	procedures,
	reemployment,
disciplinary
	action
	procedures,
	contracting
	for
	services,
	and
workload
	was
	defeated
	by
	the
	Legislature
	in
	1977.
	(Senate
	Bill
288,
	1977
	Sess.)
	While
	this
	may
	not
	be
	conclusive 	evidence 	of
legislative
	intent
	at
	the
	time
	the
	EERA
	was
	enacted,
	it
	seems
significant
	to
	me
	that
	one
	year
	later
	the
	Legislature
	had 	an
opportunity 	to
	add
	important
	employee
	relations
	issues
	and
refused 	to
	do
	so.
	The
	argument
	that
	the
	legislation
	may
	have
been
	defeated
	because
	the 	issues
	were 	assumed
	to
	be
	covered
	by
section
	3543.2
	is
	specious.
	Under
	the
	majority's
interpretation
	of
	that 	section, 	several 	of
	the
	enumerated 	terms
and
	conditions 	of
	employment
	are
	covered
	by 	"wages"
	or 	"hours;"
yet
	these
	were
	specifically 	listed
	despite 	potential
redundancy.
	It
	seems
	clear 	to
	me
	that
	the
	Legislature 	has
consistently
	listed
	major
	employment
	related
	items
	that
	it
intended 	to
	make
	subject 	to 	negotiations.
	This
	is
	made
	even
more
	obvious 	by 	the
	1977 	amendments
	to 	section
	3543.2 	which
added
	reassignment
	and
	layoffs
	for
	certain 	probationary
certificated
	employees
	to 	the
	list
	of
	enumerated 	terms 	and
conditions 	of
	employment.4 	The
	defeat 	of
	SB
	288
	indicates
4stats.
	1977, 	ch. 	961,
	sec.
	2
142

that
	the
	Legislature
	did 	not
	want
	those 	items
	specifically
enumerated 	as
	within
	the
	scope
	of
	representation,
	and
	therefore
did
	not
	intend
	them
	to
	be
	within
	scope.
Article
	20. 	These
	proposals
	concern
	classification.
	As
the
	Board
	has
	strenuously
	argued
	in
	defending
	the
	State
Employer-Employee
	Relations
	Act
	(Gov. 	Code
	sec.
	3512
	et
	seq.),
classification
	and
	salary
	setting
	are
	not
	intrinsically
related.5	
While
	classification
	may
	have 	an
	impact
	on
	several
enumerated
	items,
	it
	is
	not
	an
	extension 	of
	any
	of
	them
	and
thus
	is
	not
	negotiable.
	Furthermore,
	if
	the
	Legislature
	had
intended
	classification
	to
	be
	in
	scope,
	it
	would
	have
specifically 	listed
	it
	rather
	than
	depending
	on
	its
	being
	found
to
	be 	a
	matter
	relating
	to
	an
	enumerated
	item.
Article
	21.
	Layoff
	is
	not
	an
	extension 	of
	wages
	or 	hours,
despite
	the
	impact
	it
	has
	on
	employees'
	working
	conditions.
Also,
	it
	is
	extensively 	regulated 	in 	the 	Education
	Code.
	(See
Ed.
	Code
	secs.
	45308, 	45114, 	45298.)
	This,
	combined
	with 	the
fact 	that
	it
	was
	not
	specifically
	enumerated
	despite
	its
importance
	to
	employees,
	indicates 	to
	me
	that
	the
	Legislature
intended 	the 	subject 	of 	layoffs 	to
	remain
	exclusively
	subject
to 	statutory 	regulation.
	It
	should
	be
	noted
	that
	the
Legislature 	did
	amend
	section
	3543.2 	in 	1977, 	adding
	"the
layoff 	of 	probationary
	certificated
	school
	district
	employees,
Ssee
	PERB 1 s
	Petition
	for
	a 	Hearing 	by
	the
	Supreme
	courtin 	Pacific
	Legal 	Foundation 	v. 	Brown,
	S.F.
	No. 	24168.
143

144
pursuant 	to
	Section
	44959.5
	of 	the
	Education
	Code"
	to 	the
	scope
of 	representation.
	(Section
	44959.5
	applies
	only
	to
	school
districts
	with
	an
	average
	daily
	attendance 	of
	more
	than
500,000.)
	It
	indicates 	that
	layoffs
	were
	not
	considered
negotiable
	under
	section
	3543.2
	as
	originally
	enacted
	by
	either
the
	parties
	proposing 	the
	amendment
	or 	the
	Legislature;
otherwise, 	the
	legislation
	would 	have 	been
	unnecessary.
	Its
significance
	is
	emphasized
	by
	the
	fact
	that
	other
	legislation,
which
	would 	have 	added
	the
	general
	subject
	of
	layoffs
	to
	the
specifically
	enumerated 	items 	in
	section
	3543.2,
	was
	defeated
in
	1977.
	The
	Legislature
	was
	apparently
	willing 	to
	expand
	the
scope
	of 	representation
	to
	cover
	a
	particular 	situation
	in
	a
specific
	school
	district,
	but
	was
	unwilling
	to
	make
	layoffs
negotiable 	for
	all
	educational
	employees.
Article
	22.
	Disciplinary 	action
	is
	another
	subject
	that
	is
covered
	by
	the
	Education
	Code
	(see
	Educ. 	Code
	secs.
	45113,
45116) 	and
	is
	not
	directly 	related
	to
	enumerated
	items.
	I
believe 	that
	the
	Legislature
	intended
	this
	area 	to
	be
	left
	to
the
	districts'
	discretion 	subject 	to 	statutory 	regulation.
Article
	24.4. 	Assigning
	special
	trips
	to
	bus
	drivers
	may
have 	an
	impact
	on 	wages 	and
	hours, 	but
	it
	is
	not
	an
	extension
of
	those 	concepts. 	Rather,
	it
	is 	part
	of 	the 	employer's
	right
to
	make 	work
	assignments.
144

Article
	26.4.
	This
	proposal
	is
	similar 	to 	Article
	10
	in
that
	it
	seeks
	reimbursement
	for
	an 	employee
	expense.
	As
	noted
above,
	I 	do
	not
	consider
	expenses
	to
	be
	related
	to
	wages.
Article
	27.1
	-
	27.2. 	Contracting 	out
	is
	not
	an
	extension
of
	any
	enumerated
	item.
	Additionally,
	it
	is
	a
	major,
controversial
	issue
	which
	has
	been
	the
	subject
	of
	many
	cases
	in
both
	the
	private
	and
	public
	sectors.
	I
	cannot
	help 	but
	believe
that
	the
	Legislature
	would
	have
	indicated
	its
	intent 	to
	include
it
	in
	scope
	by
	specifically
	listing
	it.
	The
	failure
	to
	do 	so
is
	a
	significant
	indication 	that
	contracting
	out
	was
	not
intended
	to
	be
	negotiable.
* 	* 	*
I
	concur 	with
	Member
	Moore's
	decision
	that
	the 	following
proposed
	articles
	are 	out 	of
	scope:
Article 	2.3.
	While
	affirmative 	action 	proposals
	may
	have
some
	impact
	on 	employee 	wages,
	the 	subject
	is
	not
	an
	extension
of
	wages.
Articles 	5.1.6
	-
	5.1.8.
	These
	proposals
	have
	only
	a
tenuous 	connection 	to
	any 	enumerated 	item.
Article 	5.1.11.
	I
	agree 	with 	Chairperson
	Gluck
	that
providing
	$250
	conference 	expenses
	is
	unrelated 	to
	any
enumer 	term 	and
	it
	employment.
	Furthermore,
released 	time 	to 	attend 	conference 	should 	not
	be
	in
	s
145

As
	discussed
	more
	fully
	above,
	the
	legislative
	provision
	for
released
	time
	for
	certain
	organizational
	activities
	indicates
an
	intent 	that 	this
	issue
	not
	be
	subject 	to
	collective
negotiations.
Article
	5.2
	-
	5.5.
	These
	proposals
	are,
	at
	best,
	only
tangentially 	related
	to
	any
	enumerated
	items.
Article
	11. 	This
	proposal
	does
	not
	specifically
	relate
	to
an
	enumerated
	subject.
	Furthermore, 	the
	employment
	rights
	of
classified
	employees
	in 	the 	event
	of
	a
	change
	in
	the
configuration
	of
	a
	district
	are
	covered
	in
	Education
	Code
section
	45118.
Articles
	17.1.1
	-
	17.3.
	An
	exclusive
	representative
	may
not
	negotiate
	over
	the
	employment
	conditions 	of
	positions
outside
	the
	unit.
	The
	rights
	and
	transition
	to 	regular
statutes
	of
	restricted
	employees
	are
	covered
	in 	Education
	Code
section
	45105.
Articles
	20.2
	-
	20.3, 	20.7.
	As
	discussed
	above,
	I
	find
that
	the 	general 	subject 	of
	classification 	is
	not 	within 	the
scope
	of 	representation.
Articles 	21.1
	-
	21.2.
	I
	also 	find 	that
	the
	overall 	subject
of 	layoffs 	is
	not
	negotiable.
Article
	22. 	Since
	I
	find 	that 	discipline
	in 	general
	is
	not
subject 	to 	negotiations
	under
	section 	3543.2,
	I
	concur
	with
Member
	Moore's 	determinat 	that
	those 	portions 	of 	Artie
	22
which 	cause 	the 	employer
	to
	waive
	its
	exclusive 	authority
	over
146

147
discipline
	and
	delegate
	review
	to
	an
	arbitrator
	are
nonnegotiable.
Article
	22.2.4.
	I
	also
	concur
	in
	Member
	Moore's
	finding
that 	this
	proposal
	is
	nonnegotiable,
	on
	the
	grounds
	that
discipline 	is
	not
	within 	the
	scope
	of
	representation.
Article
	24.1.
	I
	agree
	that
	this
	proposal
	is
	overbroad
	and
therefore
	nonnegotiable.
Article
	26.1
	-
	26.2.
	I
	am
	in
	partial
	agreement
	with
	Member
Moore
	on
	these 	proposals.
	I 	do
	not
	believe
	that 	training
	is
	an
extension 	of
	an
	enumerated 	item;
	its
	relationship
	to
	safety
conditions
	or
	evaluation
	procedures
	is 	tangential
	at 	best.
	The
employer 	need
	not
	negotiate
	over 	whether
	training
	programs
	will
be
	offered,
	and
	thus
	need
	not
	negotiate
	over
	the
	decision 	to
offer
	a
	specific 	training
	program.
Article 	27.3.
	I
	concur
	in 	the 	finding
	that
	the
	work
assignments 	of 	nonunit
	employees
	are
	not
	negotiable.
I
	agree 	with 	the 	majority
	that
	the 	following
	proposals 	are
within 	the
	scope
	of 	representation
	under
	section 	3543.2:
Articles 	6.1
	-
	6.5.
	While
	I 	do
	not 	agree
	that 	these
proposals
	relate
	to
	wages 	and
	hours,
	I 	would
	find
	them
	to
	be 	in
scope 	based
	on
	their 	close 	relationship 	to 	grievance 	procedures.
Article 	17.5. 	This 	proposal
	is 	closely
	enough
	related
	to
wages 	and
	hours 	to
	be
	included 	in 	the 	scope
	of 	representation.
147

148
Article 	26.3. 	Whether 	in-service 	training 	takes 	place
during 	working 	hours 	is 	directly 	related 	to 	the 	number 	of 	hours
worked 	and 	thus 	is 	negotiable.
* 	* 	*
I 	agree 	with 	Member 	Moore 	that 	this 	case 	is 	not 	moot. 	I
also 	agree 	with 	her 	disavowal 	of 	the 	hearing 	officer's 	view
that 	if 	a 	proposal 	is 	arguably 	within 	scope, 	the 	district
commits 	an 	unfair 	practice 	by 	responding 	with 	a 	summary
rejection 	even 	if 	PERB 	later 	determines 	that 	the 	proposal 	is
nonnegotiable 	and 	with 	her 	conclusion 	that 	there 	is 	no 	duty 	to
negotiate 	a 	proposal 	that 	PERB 	finds 	to 	be 	out 	of 	scope. 	It 	is
absurd 	to 	find 	a 	party 	guilty 	of 	an 	unfair 	practice 	for 	doing
what 	it 	had 	a 	perfect 	right 	to 	do--refusing 	to 	negotiate 	a
nonnegotiable 	subject.
However, 	I 	would 	note 	that 	both 	parties, 	pursuant 	to 	their
duty 	to 	negotiate 	in 	good 	faith, 	must 	come 	to 	the 	negotiating
table 	with 	a 	sincere 	desire 	to 	reach 	agreement 	on 	matters
within 	scope. 	At 	the 	very 	least, 	this 	encompasses 	a
willingness 	to 	seek 	clarification 	if 	one 	does 	not 	at 	first
perceive 	a 	relationship 	between 	a 	proposal 	and 	an 	enumerated
employment 	condition. 	Unless 	a 	proposal 	is 	patently 	unrelated,
a 	party 	should 	be 	willing 	to 	discuss 	negotiabili 	and 	to 	offer
the 	other 	party 	an 	opportunity 	for 	explanation 	or
148

149
clarification.
	This
	does
	not
	mean
	that
	one
	questioning 	the
negotiability
	of
	a
	particular
	proposal
	must
	respond 	with
	a
substantive
	counterproposal.
	But
	a
	rigid 	refusal
	to
	respond
	at
all
	is 	certainly
	inconsistent
	with
	making 	an
	earnest
	effort
	to
reach 	agreement. 
* 	* 	*
The
	fact 	that
	the
	EERA
	includes
	a
	specific
	listing 	of
negotiable 	subjects
	has
	become
	almost
	irrelevant;
	in
	the
present 	case,
	the 	majority
	rarely
	found 	a
	proposal
nonnegotiable
	on
	the
	grounds
	that
	it
	did 	not
	relate
	to 	an
enumerated 	item.
	Clearly, 	the
	limiting
	language
	of
	section
3543.2 	has
	had
	little,
	if
	any, 	impact
	on
	this
	Board's
negotiability
	determinations. 	Despite 	the
	Legislature's
efforts,
	the 	bottom
	line 	of 	the 	majority's 	decision
	is 	that
	a
broad 	range
	of 	issues
	may 	be
	subject 	to 	the
	bilateral 	process
of 	negotiat
	While
	this
	may 	be
	desirable 	in 	the
	ivate
in
sector,
	I
	believe 	that 	there 	are 	additional 	consider
In
	conclusion,
	it
	is
	interesting
	to
	compare
	the
	proposals
that
	my
	colleagues
	have 	found
	to
	be
	negotiable
	under
	section
3543.2 	with
	what 	would
	have 	been
	negotiable
	if
	the
	Legislature
had
	merely
	provided 	for
	negotiations
	with
	respect 	to
	wages,
hours,
	and
	other
	terms
	and
	conditions 	of
	employment.
	I
	submit
that
	there
	would 	be
	very
	few
	differences.
149

150
the 	public
	sector,
	such
	as
	the
	public's 	right
	to
	be
	involved 	in
important
	policy 	determinations,
	which
	should
	act 	to
	limit
	the
number
	of
	negotiable
	issues.
	Also,
	there 	are
	differences
between
	the
	public
	and
	private 	sectors
	in
	their
	respective
missions
	and
	sources
	of
	funding:
	public
	agencies 	perform
governmental
	functions
	using 	tax 	revenues.
	I
	have
	discussed
these
	differences
	at
	greater
	length 	in 	previous
	decisions,
including
	San
	Mateo,
	supra,
	PERB
	Decision
	No.
	129,
	and
	Palos
Verdes
	Peninsula 	Unified
	School
	District/Pleasant
	Valley
	School
District
	(7/16/79)
	PERB
	Decision
	No.
	96.
	Once
	again,
	however,
I
	express
	my
	great
	concern 	over
	my
	colleagues'
	seeming
insensitivity
	to 	the
	differences
	between
	the
	public
	and
	private
sectors
	and
	their
	willingness 	to 	incorporate
	private
	sector
standards
	even
	in 	the 	face 	of
	completely
	different 	statutory
language.
/Raymond}J.
	Gonza],.A(s, 	Meiitber 
REMEDY
Based 	on
	the 	foregoing
	discussion,
	we
	conclude
	that
	the
Districts
	unlawfully 	refused 	to 	negotiate
	with
	CSEA
	in
violation 	of 	section
	3543.S(c) 	as
	to 	those 	negotiating
proposals
	which
	the 	majority 	opines 	are 	within 	the 	scope 	of
representation 	as
	set 	forth 	in 	the
	EERA.
150

151
Specifically,
	to
	the
	extent
	noted
	in
	this
	decision 	in 	the
discussion 	of
	each
	Article
	and
	the
	portions 	thereof,
	the
Districts
	are 	required 	to 	negotiate
	as
	to
	the 	following
subjects:
Article
	II.
	No
	Discrimination
Article
	v.
	Organizational
	Rights
Article	
VI. 	Job
	Representation
Article	
X. 	Employee
	Expenses 	and
	Materials
Article	
XVII.	
Hiring
Article	
XIX.	
Promotions
Article	
xx.	
Classification, 	Reclassification, 	Abolition
	of
Positions
Article	
XXI.	
Layoff
	and 	Reemployment
Ar
tic
le	
XXII.	
Disciplinary
	Action
Article	
XXIV. 	Working
	Conditions
Article	
XXVI.	
Training
Article	
XXVII.	
Contracting
	and
	Bargaining 	Unit
	Work
The
	District's
	refusal 	to 	negotiate 	violated
section
	3543.S(b)
	of 	the
	Act 	by
	interfering
	with 	the
	exclusive
representative's 	right
	to 	negotiate
	an 	agreement
	on
	behalf
	of
the 	unit
	members.
	As
	a 	remedy
	for 	these
	violations, 	the
Districts
	are
	Ordered
	to 	cease
	and
	desist
	from
	these
	unfair
practices
	and
	to 	return 	to 	the 	negotiating 	table
	and
	fully
participate 	in 	the 	process 	in
	good
	ith.
151

The
	Districts 	shall
	also
	be
	required 	to 	sign
	and
	post 	the
Notice
	to
	Employees
	as
	is
	attached
	as'an
	appendix
	to
	this
Decision
	and
	Order.
In
	conformity 	with 	the
	majority
	view,the
	unfair
	practice
allegations
	levied 	against
	the
	Districts
	with
	regard
	to
Article
	XI,
	Rights
	of
	Bargaining 	Unit
	upon 	Change
	in
	School
Districts,
	are
	hereby
	DISMISSED.
ORDER
Pursuant
	to
	section
	3541.S(c)
	and
	based
	upon
	the 	foregoing
findings 	of
	fact,
	conclusions 	of
	law,
	and
	the
	entire
	record
	in
this
	case,
	the 	Public
	Employment
	Relations
	Board
	hereby
	ORDERS
that
	the
	Healdsburg
	Union 	High
	School
	District
	and
	the
Healdsburg
	Union
	School
	District 	shall:
A. 	CEASE
	AND
	DESIST 	from
	failing
	or
	refusing 	to
	meet
	and
negotiate
	in
	good
	faith
	with 	the
	California
	School 	Employees
Association, 	the 	exclusive 	representative 	of 	the
	classified
employees, 	with 	regard
	to: 	discrimination, 	organizational
rights,
	job
	representatives,
	employee
	expenses
	and
	materials,
hiring,
	promotions,
	classification, 	reclassification, 	abolition
of 	positions, 	layoff
	and 	reemployment,
	disciplinary 	action,
working
	conditions, 	training
	and
	contracting
	and
	bargaini
unit
	work
	to 	the 	extent 	this 	decision
	has 	determined 	them
	to
	be
within 	the 	scope
	of 	representation;
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	ES 	OF 	THE
152

153
(1) 	Meet 	and
	negotiate
	upon
	request
	with
	CSEA
with
	respect
to
	those
	subjects
	enumerated
	above
	to 	the
	extent
	that
	we
	have
determined
	them
	to
	be
	within
	the
	scope
	of
	representation
	and
	as
to
	any
	other
	negotiating
	proposals
	which
	CSEA
may
	choose
	to
submit
	which
	are 	within 	the
	scope
	of
	representation;
(2)	
Immediately
	upon
	receipt
	of
	this
	decision 	post 	copies
of
	the
	attached 	notice
	marked
	"Appendix"
	in
	conspicuous
	places
where
	notices 	to
	employees
	are 	customarily
	placed 	for
	a
	period
of
	thirty
	(30)
	working
	days;
(3) 	Take
	reasonable
	steps 	to 	insure
	that
	said
	notices
	are
not
	altered,
	defaced 	or
	covered
	by 	any
	other
	material;
	and
(4)	
Notify 	the
	San
	Francisco 	regional
	director
	of
	the
Public
	Employment
	Relations
	Board
	in
	writing 	within 	twenty
	(20)
calendar
	days
	from
	the
	receipt
	of
	this
	decision, 	of
	what
	steps
the
	Districts
	have
	taken 	to
	comply
	herewith.
This
	order
	shall
	become
	effective
	immediately
	upon
	service
of
	a
	true
	copy
	thereof
	on
	the
	Districts.
Per
	Curiam
153

Appendix:
	Notice
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of'the
	State 	of 	California
After
	a
	hearing 	in
	unfair 	practice
	case
	No. 	SF-CE-68
	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	has 	been
found
	that
	the
	Healdsburg
	Union
	High
	School
	District
	and
	the
Healdsburg
	Union
	School
	District
	violated
	the 	Educational
Employment
	Relations
	Act
	by
	failing
	and
	refusing 	to
	meet 	and
negotiate
	with
	the
	California
	School
	Employees
	Association
	with
respect
	to
	negotiating
	proposals
	which
	are 	within 	the 	scope 	of
representation.
	As
	a
	result
	of
	this
	conduct,
	we
	have
	been
ordered 	to 	post
	this
	notice
	and
	we
	will
	abide
	by
	the 	following:
WE
	WILL
	NOT
	fail
	or
	refuse 	to 	negotiate
	in
	good
	faith
	with
the 	California
	School
	Employees
	Association.
This
	is
	an 	f
	ial 	notice.
	It
	must 	remain
	r
thirty
	(30) 	working 	days 	and 	must 	not
	be
	defaced,
	altered 	or
covered 	by 	any
	material.
----------------
Dated:
SuperintendentHealdsburg
	Union 	High
	School
	District
By:
By:
SuperintendentHealdsburg 	Union
	School
	District
Dated:
----------------
154