Oakland Unified School District (PERB 0178E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OAKLAND 	SCHOOL
	EMPLOYEES
ASSOCIATION,
Charging
	Party,
v.
OAKLAND
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
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___________________
)
Case
	No.
	SF-CE-321
PERB
	Decision
	No.178
November
	2,
	1981
Appearances:	
Andrew 	Thomas
	Sinclair,
	Attorney 	for
	Oakland
School
	Employees
	Association;
	Michaels.
	sorgen, 	Attorney
	for
Oakland
	Unified
	School
	District.
Before 	Gluck,
	Chairperson;
	Moore
	and
	Tovar,
	Members.
DECISION
The
	Oakland
	Unified
	School
	District
	(hereafter
	District)
excepts 	to
	a
	proposed
	hearing
	officer's
	decision 	finding 	the
District
	in
	violation
	of 	the 	Educational
	Employment
	Relations
Act
	(hereafter
	EERA}
	section
	3543.S(c)
	and
	(e)l	
by
	refusing
lThe
	EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et
seq. 	All
	statutory 	references 	are 	to 	the
	Government
	Code
unless 	otherwise
	specified.
Section
	3543.S(c} 	and 	(e)
	reads:
It
	shall
	be
	unlawful 	for
	a
	public 	schoolemployer
	to:
(c)
	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with 	an
	exclusive 	representative.
(e) 	Refuse 	to 	participate 	in
	good
	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article
	9
(commencing 	with 	Section 	3548).

to 	negotiate 	over 	the 	Oakland 	School 	Employees 	Association's
(hereafter 	OSEA or 	Association) 	proposal 	that 	classified
employees 	be 	notified 	of 	layoffs 	by March 	15 	of 	each 	year 	in
which 	layoffs 	are 	to 	occur.2
FACTS
This 	dispute 	arose 	during 	the 	negotiations 	for 	the
1978-1979 	contract 	for 	classified 	employees 	of 	the 	District.
The 	parties 	met 	throughout 	the 	summer 	and, 	by mid-September,
had 	reached 	agreement 	on 	75 	percent 	of 	the 	provisions 	for 	a 	new
contract. 	On 	September 	18, 	1978, 	the 	Association 	submitted 	a
new 	proposal 	which 	would 	have 	required 	that 	the 	District 	notify
by March 	15 	all 	classified 	employees 	who 	were 	to 	be 	laid 	off 	at
the 	end 	of 	the 	school 	year. 	Layoffs 	could 	occur 	only 	at 	the
end 	of 	a 	school 	year 	and, 	if 	the 	employees 	were 	not 	so
notified, 	they 	would 	be 	considered 	rehired 	for 	the 	following
year.
After 	consulting 	with 	the 	superintendent, 	the 	District's
negotiators 	rejected 	the 	proposal 	and 	asserted 	that 	they 	would
make 	no 	counterproposal. 	However, 	according 	to 	the 	testimony,
2ouring 	the 	course 	of 	the 	dispute 	over 	the 	layoff
proposal, 	the 	Association 	filed 	four 	unfair 	practice 	charges,
three 	of 	which 	were 	withdrawn. 	The 	hearing 	officer 	partially
based 	his 	finding 	of 	bad 	faith 	on 	an 	allegation 	which 	is 	the
subject 	of 	one 	of 	the 	withdrawn 	charges, 	viz., 	that 	the
employer 	conditioned 	its 	participation 	in 	mediation 	on 	the
withdrawal 	of 	one 	of 	the 	charges. 	Because 	this 	charge 	was
withdrawn, 	we 	make 	no 	determination 	concerning 	that 	issue.
2

at 	subsequent 	meetings 	they 	offered 	the 	following 	explanation
for 	the 	rejection 	of 	the 	layoff 	proposal:
A. 	And 	I 	believe 	I 	stated 	some 	reasons 	why
the 	board 	... 	did 	not 	want 	to 	submit 	a
counterproposal. 	(R. T. 	p. 	14: 2 3)
One 	has 	to 	do 	with 	the 	[Education] 	Code 	[it]
calls 	for 	a 	30-day 	notice 	for 	lack 	of 	funds
and 	lack 	of 	work.
Q. 	(By Mr. 	Sinclair) 	And 	you're 	speaking
about 	the 	Education Code 	requiring 	only 	30
days 	notice 	of 	layoff 	for 	permanent
classified 	employees, 	is 	that 	correct?
A. 	That 	is 	correct.
A. 	. 	I 	believe 	I 	further 	said 	that 	in
the 	light 	of 	the 	uncertainty 	of 	state
funding 	... 	the 	board 	needed 	as 	much
flexibility 	as 	they 	possibly 	could 	have 	to
run 	the 	District, 	and 	that 	because 	the
teachers 	had 	this 	type 	of 	provision 	did 	not
necessarily 	follow 	that 	we 	needed 	to 	do 	it
for 	the 	classified 	employees 	••• 	the
District 	... 	was 	a 	service 	to 	the 	children
for 	their 	education 	••. 	which 	was 	relative
to 	the 	fact 	that 	the 	teachers 	would 	have 	the
priority. 	(R.T. 	p. 	15:2)
A ...• 	I 	said 	that 	if 	such 	a 	proposal 	was
agreed 	to 	and 	was 	a 	part 	of 	the 	contract,
and 	even 	though 	we 	had 	advisory 	arbitration,
we 	were 	interjecting 	a 	third 	party 	into 	the
decision 	of 	the 	board 	as 	it 	relates 	to 	the
matter 	of 	layoff. 	(R.T. 	p. 	16:4)
The 	Association 	requested, 	to 	no 	avail, 	that 	the 	District
substantiate 	with 	facts 	and 	figures 	how 	its 	proposal 	would
interfere 	with 	the 	District's 	flexibility.
3

By 	September 	21, 	the 	parties 	were 	at 	impasse 	on 	this 	issue,
and 	a 	mediator 	was 	called 	in. 	The 	District 	maintained 	its
position, 	reiterating 	its 	reasons 	for 	refusing 	to 	make 	a
counterproposal. 	As 	a 	result, 	no 	progress 	was 	made 	in 	the
first 	two 	mediation 	sessions 	and 	the 	mediator 	withdrew.
Subsequently, 	the 	Association 	modified 	its 	proposal 	to 	provide
for 	notice 	by March 	15, 	or 	alternatively, 	within 	120 	days 	of
the 	layoff 	date. 	The 	District 	rejected 	this 	proposal 	and
stated 	that 	it 	would 	not 	submit 	a 	counterproposal. 	At 	no 	time
did 	the 	District 	contend 	that 	the 	proposal was 	out 	of 	the 	scope
of 	negotiations 	nor 	did 	it 	ever 	refuse 	to 	discuss 	the 	proposal.
DISCUSSION
A. 	Negotiability 	of 	the 	Association 1 s 	Proposal
The 	District 	claims 	for 	the 	first 	time 	in 	its 	exceptions 	to
the 	proposed 	decision 	that 	the 	notice 	and 	timing 	of 	layoffs 	are
not 	within 	the 	scope 	of 	representation,3 	arguing 	that 	the
3section 	3543.2 	provides 	in 	pertinent 	part:
The 	scope 	of 	representation 	shall 	be 	limited
to 	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 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to
Section 	3546, 	procedures 	for 	processing
4

Education
	Code
	preempts
	negotiating
	on
	that 	subject.
	In
addition,
	the
	employer
	claims
	that
	negotiating
	over
	notice
	and
timing
	of
	layoffs
	would
	interfere
	with
	management
	prerogatives.
As
	we
	determined 	in
	Healdsburg
	Union 	High
	School
	District
(6/19/80)
	PERB
	Decision
	No.
	132,
	the
	parties
	are 	permitted 	to
seek 	agreement
	as
	to
	a
	proposal
	concerning
	layoff 	notices
	to
the
	extent
	that
	such
	a
	proposal
	does
	not
	conflict
	with
	mandates
of
	the 	Education
	Code,4	
since
[A]dvanced
	notice
	of 	the 	employer's
	plans 	to
implement
	a
	layoff 	will
	permit 	the
	effective
grievances 	pursuant
	to 	Sections
	3548.5,3548.6, 	3548.7,
	and
	3548.8,
	and
	the
	layoff
of 	probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	of
the 	Education
	Code.
4Education
	Code
	section
	45117(b) 	and
	(c)
	reads:
(b) 	When,
	as
	a
	result
	of
	a
	bona
	fidereduction
	or
	elimination 	of 	the
	service
being 	performed
	by
	any
	department,
classified
	employees
	shall
	be
	subject 	to
layoff 	for 	lack 	of	
work,
	affected
	employees
shall	
be	
given
	notice 	of 	layoff
	not
	less
than
	30
	days
	prior 	to 	the
	effective
	date 	of
layoff,
	and
	informed
	of
	their
	displacement
rights,
	if
	any,
	and 	reemployment
	rights.
(c) 	Nothing
	herein 	provided
	shall
	preclude
	a
layoff 	for 	lack 	of
	funds 	in 	the 	event 	of
	an
actual
	and
	existing 	financial 	inability
	to
pay
	salaries
	of
	classified
	employees, 	nor
layoff 	for 	lack 	of
	work
	resulting
	from
causes 	not 	foreseeable 	or 	preventable	
by	
the
governing 	board, 	without 	the 	notice 	required
by	
subsection
	(a)
	or
	(b)
	hereof.
5

exchange 	of 	ideas 	and 	possible 	alternatives
to 	the 	layoff. 	{p. 	73.)
The 	District 	is 	therefore 	obligated 	to 	negotiate 	the 	general
subject 	of 	the 	notice 	and 	timing 	of 	layoffs.
Since 	the 	Education Code 	requires 	only 	that 	a 	minimum 	of
30 	days' 	notice 	be 	given, 	the 	Association's 	proposal 	for 	a
longer 	period 	is 	not 	in 	conflict 	with 	the 	Code. 	The 	exception
to 	the 	notice 	referred 	to 	in 	section 	45117(c) 	permits 	the
employer 	to 	avoid 	notice 	under 	certain 	circumstances. 	The
District 	could 	not 	rely 	on 	this 	provision 	to 	find 	the
Association's 	proposal 	totally 	out 	of 	scope; 	rather 	it 	could
legitimately 	object 	to 	the 	absence 	of 	an 	emergency 	provision 	in
the 	proposal.
B. 	The 	Alleged 	Section 	3543.S(c) 	Violation
The 	Association 	avers 	that, 	by 	refusing 	to 	offer 	any
counterproposals 	to 	the 	Association's 	layoff 	proposal, 	the
District 	failed 	to 	negotiate 	in 	good 	faith. 	While
acknowledging 	that 	the 	District 1 s 	desire 	to 	retain 	full
authority 	and 	flexibility 	with 	regard 	to 	classified 	employees
was 	"understandable," 	the 	hearing 	officer 	seemed 	to 	sustain 	the
charge 	based 	on 	the 	fact 	that 	the 	District's 	outright 	rejection
of 	the 	proposal 	and 	its 	refusal 	to 	offer 	counterproposals
effectively 	thwarted 	further 	negotiations. 	We 	disagree 	with
his 	conclusion 	that 	such 	conduct 	rose 	to 	the 	level 	of 	bad 	faith.
6

Both 	the 	National 	Labor 	Relations 	Board 	(hereafter 	NLRB)
and 	this 	agency 	have 	held 	that 	the 	question 	of 	good 	faith 	must
be 	based 	on 	the 	totality 	of 	the 	parties' 	conduct.5 	In
weighing 	the 	facts, 	we 	must 	determine 	whether 	the 	conduct 	of
the 	parties 	indicates 	an 	intent 	to 	subvert 	the 	negotiating
process 	or 	is 	merely 	a 	legitimate 	position, 	adamantly
ma in ta ined.
Nothing 	in 	EERA 	requires 	parties 	to 	reach 	agreement 	or 	make
concessions 	on 	every 	proposal. 	The 	NLRB 	and 	the 	courts 	have
consistently 	ruled 	that 	adamant 	insistence 	on 	a 	bargaining
position 	is 	not 	necessarily 	a 	refusal 	to 	bargain 	in 	good
faith. 	NLRB 	v. 	American 	National 	Insurance 	Co. 	(1955) 	343 	U.S.
392 	[30 	LRRM 	2147]. 	See 	also NLRB 	v. 	Wooster 	Division,
Borg-Warner 	Corporation 	(1958) 	356 	U.S. 	342 	[42 	LRRM 	2034].
They 	have 	also 	ruled 	that 	the 	failure 	to 	make 	a 	counterproposal
is 	not, 	by 	itself, 	a 	violation 	of 	the 	National 	Labor 	Relations
Act. 	In 	NLRB 	v. 	Arkansas 	Rice 	Growers 	Assn. 	(8th 	Cir. 	1968)
400 	F.2d 	569 	[69 	LRRM 	2119, 	p. 	2123], 	the 	Court 	said:
Although 	as 	the 	company 	suggests, 	it 	may 	not
be 	bound 	to 	make 	counterproposals,
nevertheless, 	evidence 	of 	its 	failure 	to 	do
so 	may 	be 	weighed 	with 	all 	other
circumstances 	in 	considering 	good 	faith.
5NLRB 	v. 	Truitt 	Mfg. 	Co. 	(1956) 	351 	U.S. 	149 	[38 	LRRM
2042]~1H-:.RB 	v-=----xivaEUleniridustries, 	Inc. 	(8th 	Cir. 	1966) 	369
F.2d 	310763 LRRM 	2515]; 	Muroc 	Unified 	School 	District
(12/15/78) 	PERB 	Decision 	No. 	80; 	Fremont 	Un1f1ed 	School
District 	(6/19/80) 	PERB 	Decision 	No. 	136.
7

See
	also
	West
	Hartford
	Education
	Assn.
	v.
	DeCourci
	(1972) 	80
LRRM
	2422.
	And
	in
	NLRB
	v.
	Herman
	Sausage 	(5th
	Cir.
	1958)
	275
F.2d
	229
	[45
	LRRM
	2829],
	the
	Court
	said:
The
	obligation
	of
	the
	employer
	to
	bargain 	in
good
	faith
	does
	not
	require
	the
	yielding
	of
positions
	fairly
	maintained.
A
flat
	refusal
	to 	reconcile 	differences
	by
	failing
	to
	offer
counterproposals
	could
	be
	construed
	to
	be
	in
	bad
	faith
	if
	no
explanation 	or
	rationale
	supports 	the 	employer's
	position.
	As
we
	stated
	in
	Jefferson
	school
	District
	(6/19/80)
	PERB
	Decision
No.
	133
	at
	p.
	11:
[the)
	obligation 	to 	negotiate 	includes
expression 	of
	one's
	opposition 	in
	sufficient
detail
	to
	permit 	the
	negotiating
	process 	to
proceed
	on
	the
	basis
	of
	mutual
	understanding.
In
	this
	case,
	the
	employer
	steadfastly
	refused
	to
	make
	any
concessions
	on
	the
	notice-of-layoff
	proposal, 	but 	explained
that
	it
	was
	unwilling
	to
	hamper
	its
	flexibility
	in
	light
	of
	the
fiscal 	uncertainties
	caused
	by
	Proposition
	13 	and
	unwilling 	to
interject
	the 	decisions 	of
	a
	third 	party 	into
	the
	layoff
process.
	We
	cannot 	conclude
	that 	this
	"hard 	bargaining"
posture 	evidences	
bad	
faith, 	especially
	in
	light
	of 	the
	fact
the
	parties	
had	
reached 	agreement 	on	
most
	of 	the
	contract
proposals
	at
	the
	time
	this
	controversy 	arose.6	
Without
6see
	NLRB
	v. 	General 	Tire
	and 	Rubber 	Co.
	(1st 	Cir.
	1964)326
	F.2d
	832 	[55
	LRRM
	2150];
	D1erKS
	Forests; 	Inc.
	(1964) 	148
NLRB
	923 	[57
	LRRM
	1087]. 	In 	both 	cases 	the 	employer's
	refusal
8

passing 	on 	the 	merits 	of 	the 	District 1 s 	position, 	we 	find 	that
it 	was 	supported 	by 	"legitimate 	and, 	in 	the 	main, 	reasonable
arguments." 	Kohler 	Co. 	(1960) 	128 	NLRB 	1062 	[46 	LRRM 	1389].
Understandably, 	the 	Association 	was 	frustrated 	at 	not 	being
able 	to 	extract 	a 	concession 	from 	the 	District 	on 	the 	notice
issue, 	but 	it 	does 	not 	follow 	that 	the 	District's 	refusal 	to
compromise 	was 	undertaken 	for 	the 	purpose 	of 	frustrating 	or
subverting 	the 	negotiating 	process 	as 	a 	whole. 	The 	District's
response 	was 	not, 	on 	its 	face, 	spurious 	or 	superficial, 	but
calculated 	to 	inform 	the 	Association 	of 	the 	problems 	posed 	by
the 	proposal.
Nor 	does 	the 	District's 	failure 	to 	provide 	precise
information 	on 	how 	the 	proposal 	would 	interfere 	with
flexibility 	amount 	to 	wrongdoing.7 	It 	was 	the 	very
uncertainty 	of 	the 	long-range 	fiscal 	effects 	of 	Proposition 	13
that 	led, 	in 	part, 	to 	the 	District's 	position. 	It 	is 	unclear
what 	more 	information 	the 	District could 	have 	provided.
Neither 	does 	the 	District's 	failure 	to 	respond 	differently
to 	the 	Association's 	counterproposal 	demonstrate 	that 	it
to 	agree 	to 	a 	few 	of 	the 	union 1 s 	proposals 	was 	vindicated 	where
agreement 	had 	been 	reached 	on 	the 	majority 	of 	other 	articles
and 	the 	employer 	gave 	cogent 	reasons 	for 	its 	position.
7aut 	see 	Stockton 	Unified 	School 	District 	(11/3/80) 	PERB
Decision 	No. 	TI3, 	tor 	example 	of 	employer·s---a-uty 	to 	furnish
information.
9

refused 	to 	bargain 	in 	good 	faith. 	By 	thus 	altering 	the
original 	proposal, 	the 	District's 	asserted 	need 	for 	flexibility
was 	met 	by 	a 	proposal 	that 	left 	the 	District 	with 	the 	option 	of
abiding 	by 	the 	March 	15 	notice 	date 	or 	giving 	four 	months
advance 	notice 	of 	impending 	layoffs. 	In 	view 	of 	the 	District's
stated 	objection 	to 	the 	original proposal, 	the 	Association's
counterproposal 	was 	predictably 	unacceptable 	and 	the 	District
was 	not 	obligated 	to 	respond 	in 	any 	manner 	other 	than 	it 	did.
The 	charge 	alleging 	the 	District 	violated 	section 	3543.S(c)
is 	dismissed.
c. 	The 	Alleged 	Section 	3543.S(e) 	Violation
The 	District 	continued 	to 	stand 	firm 	in 	mediation 	on 	its
refusal 	to 	alter 	the 	layoff 	notice 	requirements 	prescribed 	by
the 	Education Code, 	offering 	the 	same 	explanation 	it 	had 	set
forth 	in 	negotiations. 	OSEA's 	charge 	implies 	that 	a
negotiating 	position 	which 	was 	lawful 	during 	negotiations
becomes 	unlawful 	if 	maintained 	in 	mediation. 	Reaching 	impasse
does 	not 	convert 	good 	faith 	negotiations 	into 	unlawful
conduct. 	The 	Association 	has 	failed 	to 	provide 	additional
evidence 	of 	circumstances 	which 	would 	tend 	to 	establish 	that
the 	District 	refused 	to 	utilize 	mediation 	in 	good 	faith.
For 	the 	reasons 	we 	dismiss 	the 	section 	3543.5(c) 	charge, 	we
hereby 	dismiss 	the 	section 	3543.5(e) 	charge.
10

ORDER
It 	is 	hereby 	ORDERED 	that 	the 	Oakland 	School 	Employees
Association's 	charges 	against 	the 	Oakland 	Unified 	School
District 	are 	hereby 	DISMISSED.
~bara 	D. 	Moore, 	Member
Irene 	Tovar, 	Member
11

STATE OF CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OAKLAND
	SCHOOL
	EMPLOYEES
ASSOCIATION,
Charging
	Party,
v.
OAKLAND
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)	
Unfair
	Practice
Case
	No.
	SF-CE-321
	78/79
PROPOSED 	DECISION
(6/8/79)
)
)
}
)
)
)
~
-------------------'-
Appearances:	
Andrew
	Thomas
	Sinclair,
	Attorney 	for
	Oakland
School
	Employees
	Association;
	Michael
	S.
	Sorgen,
	Attorney 	for
Oakland
	Unified
	School
	District.
Before 	Gerald
	A.
	Becker, 	Hearing
	Officer
PROCEDURAL
	HISTORY
On
	October 	12,
	1978,
	the
	Oakland 	School
	Employees
Association
	(hereafter
	Association)
	filed
	an
	unfair
	practice
	charge
(SF-CE-321
	78/79)
	against
	the
	Oakland
	Unified
	School
	District
(hereafter
	District)
	alleging 	that
	the
	District 	failed 	to 	negotiate
in
	good
	faith
	with 	the 	Association
	on 	two
	contract 	proposals.
	The
first
	proposal
	dealt
	with 	the 	dismissal 	of 	probationary
	employees.
The
	second
	dealt
	with
	a
	March 	15
	layoff 	notice 	for
	classified
employees.
	The
	Association 	alleged 	that
	the
	District's 	failure
	to
negotiate 	violated
	Government	
Code	
section
	3543.5(c)	
and	
(e)l.
At
	the
	same
	time, 	the 	Association
	filed
	a
	second
	unfair
practice
	charge
	(SF-CE-322
	78/79)
	against 	the
	District 	alleging
that,
	in 	violation 	of 	section 	3543.S(e), 	the
	District
	refused 	to
lAll 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified.

participate 	in 	good 	faith 	in 	the 	mediation 	process 	by 	conditioning
its 	participation 	upon 	withdrawal 	of 	an 	earlier 	unfair 	practice
charge. 	The 	hearing 	in 	this 	matter 	was 	held 	before 	the 	undersigned
hearing 	officer 	on 	December 	11, 	1978. 	At 	the 	hearing, 	the
Association 	orally 	amended 	the 	first 	charge 	(SF-CE-321) 	to 	delete
the 	allegation 	concerning 	the 	negotiations 	proposal 	respecting
dismissal 	of 	probationary 	employees.
On 	the 	day 	of 	the 	above 	hearing, 	the 	Association 	filed 	a
third 	unfair 	practice 	charge 	(SF-CE-331 	78/79) 	alleging 	that 	in
reprisal 	for 	filing 	the 	first 	two 	unfair 	practice 	charges 	the
District 	unilaterally 	rescinded 	an 	agreed-upon 	extension 	of 	the
previous 	negotiations 	agreement 	in 	violation 	of 	section 	3543.S(a),
(b), 	(c) 	and 	(e). 	This 	third 	charge 	was 	submitted 	on 	briefs 	and
stipulated 	facts 	and 	by 	agreement 	of 	the 	parties 	was 	consolidated
for 	decision 	with 	the 	two 	prior 	charges.
In 	its 	brief, 	the 	District 	for 	the 	first 	time 	raised 	the
issue 	that 	the 	Association's 	negotiation 	proposal 	concerning 	layoffs
was 	non-negotiable. 	On 	March 	7, 	1979 	the 	hearing 	officer 	granted
the 	Association 	10 	days 	within 	which 	to 	file 	an 	additional 	brief 	on
the 	issue 	of 	negotiability 	of 	the 	proposal.
On May 	1, 	1979, 	prior 	to 	issuance 	of 	this 	proposed
decision, 	the 	parties 	withdrew 	unfair 	practice 	charge 	numbers
SF-CE-322 	78/79 	and 	SF-CE-331 	78/79 	by 	written 	stipulation, 	leaving
only 	charge 	number 	SF-CE-321 	78/79 	remaining 	for 	decision. 	The
parties 	further 	stipulated 	that 	evidence 	introduced 	with 	regard 	to
2

all 	three 	charges 	could 	be 	considered 	by 	the 	hearing 	officer 	in
determining 	whether 	the 	Association's 	layoff 	proposal 	is 	within 	the
scope 	of 	negotiations, 	and 	if 	so, 	whether 	the 	District 	negotiated
in 	good 	faith.
FINDINGS 	OF 	FACT
The 	Association 	represents 	a 	negotiating 	unit 	of
approximately 	1100 	classified 	employees 	in 	the 	District. 	On
June 	30, 	1978, 	the 	one-year, 	1977-78 	collective 	negotiations
agreement 	between 	the 	Association 	and 	the 	District 	expired.
Negotiations 	for 	a 	new 	agreement 	continued 	after 	expiration 	of 	the
old 	agreement. 	On August 	16, 	1978, 	the 	1977-78 	agreement 	was
extended 	for 	one 	week, 	again 	on 	September 	20 	for 	another 	week, 	and
finally 	on 	September 	27 	for 	the 	period 	of 	mediation.
The 	Association 	and 	the 	District 	had 	reached 	agreement 	on
approximately 	three-fourths 	of 	the 	provisions 	for 	a 	new 	contract 	by
mid-September 	1978. 	On 	September 	18, 	the 	Association 	submitted 	to
the 	District 	two 	new 	negotiations 	proposals. 	One 	proposal 	dealt
with 	the 	procedure 	for 	dismissal 	of 	probationary 	employees. 	The
second 	proposal 	provided 	for 	a 	March 	15 	notice 	of 	layoff 	and 	hearing
for 	classified 	employees 	similar 	to 	that 	statutorily 	provided 	to
certificated 	employees 	in 	the 	Education Code. 	The 	stated 	purpose 	of
the 	proposal 	was 	to 	force 	the 	District 	to 	consider 	all 	of 	its
employees, 	certificated 	and 	classified, 	in 	future 	budgetary 	planning.
3

After 	passage 	of 	the 	Proposition 	13 	ballot 	initiative 	in
June 	1978, 	the 	District 	laid 	off 	or 	demoted 	classified 	employees 	in
an 	effort 	to 	balance 	its 	reduced 	budget. 	However, 	no 	certificated
employees 	could 	be 	laid 	off 	because 	no 	March 	15 	layoff 	notices 	were
given 	to 	certificated 	employees 	and 	under 	Education 	Code 	sections
44949 	and 	44955, 	they 	all 	were 	deemed 	rehired 	for 	the 	ensuing 	school
year.
The 	proposals 	were 	rejected 	by 	James 	R. 	Wilson, 	chief
negotiator 	for 	the 	District, 	at 	the 	September 	19 	negotiation
session. 	Wilson 	at 	first 	testified 	that 	he 	rejected 	the 	proposals
prior 	to 	presenting 	them 	to 	the 	District 	Board 	of 	Education. 	He
then 	stated 	he 	could 	not 	remember 	whether 	the 	proposals 	were
presented 	to 	the 	school 	board. 	After 	checking 	his 	notes, 	Wilson
indicated 	that 	he 	was 	unsure, 	but 	would 	not 	normally 	reject
proposals 	without 	prior 	review 	by 	the 	school 	board.
Anne 	Sprague, 	a 	member 	of 	the 	Association 	negotiating 	team,
testified 	that 	Wilson 	flatly 	rejected 	the 	two 	proposals, 	telling 	the
Association 	that 	Dr. 	Ruth 	Love, 	the 	superintendent, 	had 	made 	the
decision 	to 	reject 	the 	proposals, 	and 	that 	the 	District 	had 	no 	room
to 	bargain 	on 	these 	proposals. 	Sprague 	further 	testified 	that
Wilson 	said 	he 	"assumed" 	Love 	had 	"polled" 	the 	members 	of 	the 	school
board.
Sprague's 	testimony 	as 	to 	the 	District's 	response 	was
corroborated 	by William 	Freeman, 	the 	Association 	president. 	The
parties 	stipulated 	that 	the 	testimony 	of 	two 	other 	members 	of 	the
Association 	negotiating 	team, 	Alamares 	Walker 	and 	Sam Mason, 	also
would 	corroborate 	this 	testimony.
4

In 	light 	of 	Wilson's 	equivocal 	testimony, 	it 	is 	found 	that
before 	rejecting 	the 	two 	proposals, 	he 	presented 	them 	only 	to 	Love,
and 	not 	to 	the 	school 	board.
On 	September 	21, 	1978 	the 	parties 	agreed 	that 	they 	were 	at
impasse 	on 	the 	two 	proposals. 	The 	PERB 	confirmed 	the 	existence 	of
an 	impasse 	and 	appointed 	a 	mediator. 	Prior 	to mediation, 	a
negotiating 	session 	was 	held 	on 	September 	26. 	At 	that 	time, 	Wilson
stated 	the 	basis 	for 	the 	District's 	rejection 	of 	the 	proposals: 	(1)
Education 	Code 	section 	45117(b) 	requires 	only 	30 	days 	notice 	of
layoff 	for 	classified 	employees; 	(2) 	agreeing 	to 	the 	proposal 	would
interfere 	with 	the 	District's 	flexibility 	to 	lay 	off 	classified
employees; 	(3) 	certificated 	employees 	had 	priority 	over 	classified
employees 	when 	layoffs 	or 	cut-backs 	were 	necessary; 	(4) 	the 	layoff
proposal 	would 	interject 	a 	third 	party 	into 	the 	layoff 	procedure,
since 	the 	proposal 	called 	for 	advisory 	arbitration. 	At 	no 	time
during 	the 	negotiation 	process 	did 	the 	District 	allege 	that 	the
proposal 	was 	not 	within 	the 	scope 	of 	representation 	under 	section
3543.2.
At 	the 	September 	26 	meeting, 	and 	at 	all 	subsequent
meetings, 	the 	Association 	requested 	substantiation 	of 	the 	District's
contention 	that 	the 	layoff 	notice 	proposal 	would 	interfere 	with 	or
restrain 	the 	flexibility 	of 	the 	District 	regarding 	layoff 	of
classified 	employees. 	Wilson 	testified 	that 	no 	response 	to 	these
requests 	ever 	was 	made 	by 	the 	District.
Throughout 	negotiations, 	the 	Association 	stressed 	that 	the
5

layoff 	notice 	proposal 	was 	a 	non-monetary 	item 	which 	would 	not
affect 	the 	ability 	of 	the 	District 	to 	lay 	off 	classified 	employees.
The 	Association 	indicated 	that 	it 	would 	be 	flexible 	in 	negotiating
the 	proposal.
On 	September 	27, 	1978, 	the 	Association 	filed 	an 	unfair
practice 	charge 	(SF-CE-315 	78/79) 	alleging 	the 	District 	failed 	to
bargain 	in 	good 	faith 	on 	the 	proposals.
The 	initial 	mediation 	session 	with 	the 	mediator 	was
scheduled 	on 	October 	5, 	1978. 	Prior 	to 	that 	session, 	Wilson
informed 	the 	Association 	in 	writing 	that 	the 	District 	would 	refuse
to 	participate 	in 	mediation 	unless 	the 	unfair 	practice 	charge 	was
withdrawn. 	The 	District 	additionally 	threatened 	to 	revoke 	the
extension 	of 	the 	expired 	contract 	if 	the 	charge 	was 	not 	withdrawn.
The 	Association 	agreed 	to 	withdraw 	the 	unfair 	practice 	charge 	in
return 	for 	good 	faith 	participation 	by 	the 	District 	in 	mediation.
The 	unfair 	practice 	charge 	(SF-CE-315 	78/79) 	was 	withdrawn 	by 	the
Association 	without 	prejudice 	to 	refiling 	and, 	except 	as 	background,
it 	is 	not 	relevant 	herein.
A second 	mediation 	session 	was 	held 	on October 	10, 	1978.
The 	District 	was 	unwilling 	to make 	any 	change 	in 	its 	position 	on
both 	proposa 	At 	the 	beginning 	of 	the 	afternoon 	session, 	the
Association 	e 	es 	its 	intention 	to 	refi 	wi 	rawn 	refusal
to 	gain 	charge. 	District's 	r 	was 	t 	if 	a 	ge 	was
6

filed, 	the 	District 	would 	withdraw 	from 	mediation. 	The 	Association
requested 	orally 	and 	in 	writing 	that 	mediation 	continue 	despite 	the
anticipated 	filing, 	but 	no 	response 	was 	made 	to 	these 	requests 	by
the 	District. 	The 	District 	then 	refused 	to 	participate 	further 	in
mediation 	and 	the 	mediator 	withdrew, 	but 	held 	the 	case 	open.
The 	District's 	response 	to 	the 	charges, 	at 	the 	school
board 	meeting 	of 	October 	11, 	was 	to 	revoke 	the 	previous 	extension 	of
the 	expired 	contract. 	The 	minutes 	of 	the 	board 	meeting 	indicate
that 	this 	was 	in 	reprisal 	for 	the 	filing 	of 	the 	unfair 	practice
charges:
[Superintendent] 	Love: 	In 	view 	of 	the 	fact 	that 	OSEA
has 	filed 	another 	unfair 	labor
practice 	and 	in 	view 	of 	the
fact 	that 	the 	Board 	voted 	to
revoke 	the 	contract 	and
discontinue 	negotiations 	last
week 	if 	indeed 	we 	were 	not
able ... if 	they 	did 	not
withdraw ... it 	would 	seem
appropriate 	for 	the 	Board 	to
follow 	its 	policy.
[Board 	Member] 	Rose: 	What 	you're 	saying 	is ... well,
the 	Board 	policy 	was 	that 	if
they 	did 	in 	fact 	maintain 	the
status 	of 	having 	an 	unfair
labor 	practice, 	they 	took 	it
away 	and 	reinstated 	it ... that
we 	would 	withdraw 	recognition
of 	the 	contract.
Love: 	We 	can't 	negotiate 	and 	have
an 	unfair 	labor 	practice.
Rose: 	I 	so move.
The 	motion 	was 	moved, 	seconded 	and 	unanimously 	carried.
After 	recission 	of 	the 	contract, 	the 	District 	refused 	to 	process
7

employee 	grievances 	on 	the 	ground 	that 	the 	contractual 	grievance
procedure 	no 	longer 	existed.
On 	October 	12, 	1978, 	the 	Association 	filed 	the 	first 	two 	of
its 	three 	unfair 	practice 	charges, 	alleging 	the 	District 	refused 	to
bargain 	on 	the 	proposals 	and 	to 	participate 	in 	mediation.
On 	November 	9, 	1978, 	the 	Association 	offered 	a 	modified
proposal 	in 	an 	effort 	to 	rekindle 	negotiations. 	The 	modified
proposal 	asked 	for 	the 	same 	March 	15 	notice 	of 	layoff, 	or 	in 	the
alternative, 	120 	days. 	The 	testimony 	conflicts 	on 	the 	question 	of
whether 	Wilson 	promised 	on 	November 	9 	to 	recommend 	the 	reopening 	of
negotiations 	based 	on 	the 	modified 	proposal. 	Wilson 	testified 	that
he 	agreed 	only 	to 	take 	the 	proposal 	to 	the 	school 	board. 	Loma 	Reno,
classified 	personnel 	assistant, 	testified 	that 	Wilson 	gave 	no
assurances 	at 	the 	November 	9 	meeting 	that 	he 	would 	support 	the
modified 	proposal. 	Freeman, 	the 	Association 	president, 	testified 	to
the 	contrary 	that 	Wilson 	gave 	assurances 	it 	would 	be 	recommended
that 	negotiations 	be 	reopened.
According 	to 	Freeman, 	the 	modified 	proposal 	was 	flatly
rejected 	by Wilson 	at 	a 	November 	10 	negotiating 	session. 	Freeman
testified 	that 	Wilson 	stated 	that 	the 	modified 	proposal 	had 	been
discussed 	with 	Love, 	and 	again 	he 	"assumed" 	she 	had 	"polled" 	the
members 	of 	the 	school 	board.
On 	November 	29, 	the 	modified 	proposal 	was 	submitted 	by
Wilson 	to 	the 	school 	board 	without 	any 	recommendation. 	A
November 	30, 	1978 	letter 	from Wilson 	to 	the 	Association 	stated 	that
the 	District 	would 	not 	submit 	a 	counterproposal 	on 	the 	layoff 	notice
issue. 	No 	reason 	was 	given.
8

At 	no 	time 	did 	the 	District 	tell 	the 	Association 	why 	the
proposal 	would 	be 	incompatible 	with 	the 	efficient 	operation 	of 	the
school 	district. 	Wilson 	testified 	that 	the 	District 	understands
that 	the 	proposal 	has 	no 	effect, 	on 	its 	face, 	on 	the 	basic 	right 	of
the 	District 	to 	lay 	off 	classified 	employees.
ISSUES
1. 	Is 	notice 	and 	timing 	of 	classified 	employee 	layoffs
within 	the 	scope 	of 	representation 	under 	section 	3543.2?
2. 	Did 	the 	District 	violate 	section 	3543.S(c) 	and 	(e) 	by
failing 	to 	negotiate 	in 	good 	faith 	on 	the 	layoff 	proposal?
DISCUSSION AND 	CONCLUSIONS 	OF 	LAW
A. 	Negotiability 	of 	notice 	and 	timing 	of 	classified 	employee
layoffs.
Throughout 	negotiations 	and 	this 	hearing, 	the 	District 	did
not 	claim 	that 	the 	proposal 	concerning 	layoff 	of 	classified
employees 	was 	non-negotiable. 	The 	scope 	of 	representation 	issue 	was
first 	raised 	by 	the 	District 	in 	their 	post-hearing 	brief.
Even 	though 	belatedly 	raised, 	the 	hearing 	officer 	finds 	it
necessary 	to make 	a 	determination 	on 	this 	issue. 	Section 	3543.2
prohibits 	negotiations 	on 	any 	subject 	not 	specifically 	enumerated 	as
within 	the 	scope 	of 	representation. 	Section 	3543.2 	provides 	in
pertinent 	part 	that:
9

All 	matters 	not 	specifically 	enumerated 	are 	reserved
to 	the 	public 	school 	employer 	and 	may 	not 	be 	a
subject 	of 	meeting 	and 	negotiating, .•• (Emphasis 	added.)
It 	would 	be 	inconsistent 	with 	this 	clear 	statutory 	mandate,
and 	would 	not 	"effectuate 	the 	policies 	of 	[the 	EERA]" 	(section
3541.5(c)), 	for 	PERB 	to 	order 	a 	party 	to 	negotiate 	in 	good 	faith
over 	a 	non-negotiable 	item. 	Section 	3541.3(b) 	authorizes 	PERB
" ••. to 	determine 	in 	disputed 	cases 	whether 	a 	particular 	item 	is
within 	or 	without 	the 	scope 	of 	representation."
Furthermore, 	in 	their 	stipulation 	withdrawing 	the 	last 	two
charges, 	the 	parties 	specifically 	authorized 	the 	hearing 	officer 	to
make 	a 	finding 	on 	the 	negotiability 	of 	the 	Association's 	layoff
proposal.
The 	scope 	of 	representation 	under 	EERA 	is 	defined 	under
section 	3543.2:
The 	scope 	of 	representation 	shall 	be 	limited 	to
matters 	relating 	to 	wages, 	hours 	of 	employment,
and 	other 	terms 	and 	conditions 	of 	employment.
'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 	to 	Section 	3546,
procedures 	for 	processing 	grievances 	pursuant 	to
Sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8, 	and
the 	layoff 	of 	probationary 	certificated 	school
district 	employees, 	pursuant 	to 	Section 	44959.5
of 	the 	Education 	Code ....
For 	a 	subject 	to 	be 	negotiable, 	the 	EERA 	requires 	a
relationship 	to 	wages, 	hours 	or 	to 	items 	specifically 	enumerated 	in
the 	definition 	of 	"terms 	and 	conditions 	of 	employment."
10

The
	Public
	Employment
	Relations
	Board
	(hereafter
	PERB),
	in
	Fullerton
Union 	High
	School
	District
	(7/27/77)
	EERB
	Decision
	No.
	20,
	at
	p.
	3,
stated 	that
	the
	EERA
	has
	a
	restricted
	scope
	of
	negotiations.
In
	the
	present
	case
	it
	is
	unnecessary
	to
	decide
	whether
classified
	employee
	layoffs 	in 	general 	are
	negotiable.
	The
Association
	only
	has
	requested 	to
	negotiate 	notice
	and
	timing
	of
	the
layoffs.
To
	the
	extent
	that
	notice
	and
	timing
	of
	layoffs
	have
	an
effect
	on
	negotiable
	subjects,
	the
	effects
	are
	negotiable.
	See
Garment Workers
	v.
	NLRB
	(D.C.
	Cir.
	1972)
	463
	F.2d
	907 	[80
	LRRM
	2716,
2723] 	and
	cases
	cited 	therein.
The
	Association
	argues
	that
	notice
	and
	timing
	of
	employee
layoffs
	is 	related 	generally 	to
	wages,
	hours
	and
	health
	and
	welfare
benefits.
	The
	logic 	of
	this
	argument
	seems
	to
	be
	that
	a
	laid 	off
employee
	has
	no 	more
	wages,
	hours
	or
	benefits.
	Thus,
	layoff
	is
directly 	related 	to 	these 	negotiable 	items.
Stated 	in
	such
	general 	terms, 	the 	hearing
	officer 	declines
to 	accept
	this
	reasoning. 	Carried 	to
	the 	extreme,
	it
	would
	make
almost
	any
	subject 	negotiable.
	As
	stated
	by
	the
	PERB
	in 	Fullerton,
supra, 	the
	EERA
	has
	a
	restricted
	scope
	of 	negotiations.
	Also
	cf.,
Los 	Ange 	s
	County
	Civil
	Service
	Com.
	v. 	Superior 	Court
	(1978) 	23
Cal. 	55,
	at
	63 	[100
	LRRM
	2854]
	in
	which
	it
	is 	stated 	that
	r
the 	Meyers-Milias-Brown Act,2	
layoffs 	are
	encompassed 	under
	the
open-ended
	clause 	"conditions 	of
	employment"
	in 	that 	act, 	rather
an
	11
wages
11
	11
hours
11
	as 	Associat 	s.
2Government 	Code
	section
	3500
	et
	seq.
11

Nevertheless, 	the 	Association's 	proposal 	does 	present 	some
negotiations 	possibilities. 	It 	is 	possible 	that 	a 	reassignment
policy 	applicable 	to 	a 	post-layoff 	situation 	could 	include 	when
during 	the 	year 	employees 	will 	be 	reassigned, 	which 	of 	course 	would
depend 	upon 	the 	timing 	of 	the 	layoffs. 	Reassignment 	policies 	are
negotiable 	under 	section 	3543.2.
Alternatively, 	if 	given 	the 	chance 	to 	develop 	or 	further
modify 	its 	proposal, 	the 	Association might 	have 	proposed 	severance
pay 	to 	compensate 	for 	less 	than 	120 	days 	notice 	of 	layoff. 	Such 	pay
clearly 	is 	related 	to 	wages 	and 	is 	negotiable. 	Similarly, 	the
Association 	might 	have 	proposed 	that 	the 	health 	and welfare
benefits 	of 	laid 	off 	employees 	continue 	for 	a 	specified 	duration
after 	layoff. 	This 	too 	would 	be 	a 	negotiable 	effect 	of 	a 	layoff.
Thus, 	to 	the 	extent 	that 	the 	Association's 	layoff 	proposal 	affects
reassignment 	policies 	or 	some 	other 	negotiable 	item, 	it 	would 	be
negotiable.
B. 	Bad 	faith 	negotiations 	by 	the 	District.
As 	set 	forth 	above, 	the 	Association's 	negotiations 	proposal
possibly 	could 	relate 	to 	certain 	negotiable 	side-effects 	of 	employee
layoffs. 	In 	the 	course 	of 	negotiations 	it 	did 	not 	attempt 	to 	relate
it 	to 	reassignment 	policies 	or 	some 	other 	relevant 	negotiable 	item.
Indeed, 	since 	the 	District 	did 	not 	take 	the 	position 	that 	the
proposal 	was 	nonnegotiable, 	the 	Association 	was 	under 	no 	compulsion
to 	modify 	it 	to make 	it 	clearer 	how 	it 	relates 	to 	negotiable 	items.
Nevertheless, 	since 	the 	proposal 	does 	present 	some 	negotiations
possibilities, 	the 	District's 	behavior 	must 	be 	examined 	to 	determine
whether 	the 	District 	negotiated 	in 	good 	faith.
12

The
	determination 	of
	whether
	a
	party
	has
	negotiated
	in
	good
faith
	must
	be
	made
	in
	the
	context
	of 	the
	"totality
	of
	the 	conduct"
of
	the
	negotiations.
	Pajaro
	Valley 	Unified
	School
	District
(5/22/78)
	PERB
	Decision
	No. 	51
	at
	pp.
	4-5;
	NLRB
	v.
	Stevenson
	Brick	
&
Block
	Co.
	(4th
	Cir.
	1968)
	393
	F.2d
	234 	[68
	LRRM
	2086].
The
	Association 	presented
	no
	evidence
	that
	the
	District
negotiated 	in
	bad
	faith
	on
	other 	negotiations
	topics.
	To
	the
contrary,
	the 	testimony
	indicated
	that
	the
	two
	sides
	had
	reached
agreement
	on
	about
	three-fourths 	of
	the
	negotiations 	topics.
	Also
in 	the
	District's
	favor
	is
	the
	fact 	that
	in 	the
	context 	in
	which
	the
proposal
	was 	made,
	the
	District's
	motives
	for 	refusing 	to
	negotiate
the 	proposal
	were
	not 	unreasonable.
	In
	view
	of
	the
	uncertainties
	of
post-Proposition
	13
	school
	financing,
	its
	desire 	to
	retain
	the
	right
to 	lay
	off 	classified
	employees 	anytime
	during 	the 	year
	is
understandable.
On
	the 	other
	hand,
	the
	District
	rejected
	the 	proposal
	out-
right.
	Not
	only 	did
	it
	not
	offer
	a
	counterproposal,
	but
	its
complete
	inflexibility 	effectively
	thwarted
	modification 	of 	the
proposal
	by
	the 	Association 	or
	any
	further 	bargaining
	on
	the
subject.
	For 	example,
	in
	its
	brief
	the 	Association 	suggests
	that
its
	proposal
	would 	have
	permitted 	the
	District
	to 	provide
	pay
	in
lieu
	of
	120
	days
	notice 	of	
layoff.
	As
	stated	
above, 	severance	
pay
certainly 	is 	negotiable.
	There
	is
	no
	evidence
	that 	this 	possible
interpretation
	was
	mentioned
	in 	negotiations.
	Had	
the	
District
	not
immediately 	closed 	off 	discussion
	on 	the 	subject 	there	
would 	have
been 	opportunity 	to 	explore 	such
	possibilities 	in
	a 	good	
faith
effort 	to 	reach 	common 	ground, 	which
	effort 	lies 	at 	the 	heart 	of 	the
collective 	negotiations 	process.13

While
	the
	employer 	need
	not
	necessarily
	make
	concessions
	to
comply
	with
	its
	obligation
	to
	negotiate
	in
	good
	faith:
•..
the
	employer
	is
	obliged
	to
	make 	some
	reasonable
	effort
in
	some
	direction
	to
	compose
	his 	differences
	with
	the
union,
...
[Emphasis
	in
	original.]
(NLRB
	v.
	Reed 	&
Prince
	Mfg. 	Co.
	(1st
	Cir.
	1953)
	205
	F.2d
131,
	134-5
	[32
	LRRM
	2225);
	see
	also,
	Los
	Angeles 	County
Civil
	Service
	Comm.
	v. 	Superior 	Court, 	supra,
	23
	Cal.3d
	55,
at
	pp. 	61-62.)
In
	the
	present 	case, 	the
	District
	made 	no
	effort
	to
reconcile
	its
	differences
	with
	the 	Association
	on
	the 	notice 	of
layoff 	proposal.
Furthermore,
	in 	considering 	the
	totality
	of
	the
	District's
conduct
	in 	the
	negotiations,
	it
	is
	appropriate 	to 	assess
	its
	other
actions
	during
	negotiations
	which 	were
	the
	subject 	of
	the
	two
withdrawn
	unfair
	practice
	charges.
	If
	the 	charges
	were
	not
withdrawn,
	the
	District's
	uni.lateral 	rescission 	of 	the
	contract
extension
	and
	its
	refusal
	to 	enter
	mediation
	until
	withdrawal
	of
	an
Association 	unfair 	practice
	charge, 	probably
	would 	have
	constituted
separate 	unfair 	practice 	violations	
during	
the 	course 	of 	these
negotiations.
Federal 	precedent
	clearly 	prohibits
	an 	employer 	from
conditioning 	participation 	in 	negotiations
	on 	the 	withdrawal	
of	
an
unfair 	practice	
charge. 	See,
	e.g., 	Griffin
	Inns 	(1977) 	229
	NLRB
	199
[95
	LRRM
	1072].
	The 	employer
	similarly 	is 	prohibited
	from
interfering 	with 	the 	right 	to 	file 	unfair 	practice 	charges.
	NLRB
	v.
Scrivener 	(1972) 	405 	U.S. 	117 	[79 	LRRM
	2587). 	These 	actions 	by 	the
District 	thus 	are 	further 	evidence 	of 	lack 	of 	good 	faith.
14

On
	balance,
	therefore,
	it
	is
	concluded
	that
	the
	District's
summary
	rejection
	of
	the
	Association's 	layoff
	proposal,
	viewed
	in
the 	context 	of 	the
	entire
	negotiations, 	constituted
	a
	failure
	to
negotiate
	in
	good
	faith
	in
	violation
	of
	section
	3543.5(c).
	In
addition,
	since
	the
	District
	assumed
	the
	same
	posture
	on
	the
proposal 	in 	mediation,
	it
	also
	refused 	to
	participate
	in
	good
	faith
in 	the
	impasse
	procedure
	in
	violation
	of
	section
	3543.5(e).
REMEDY
When
	it
	is
	found
	that
	a
	party
	has 	not
	negotiated 	in
	good
faith,
	it
	is
	appropriate 	to 	order 	the
	party
	to
	cease
	and
	desist
	from
failing
	or
	refusing 	to
	do
	so.
	See,
	e.g.,
	Fullerton
	Union 	High
School
	District
	(5/30/78)
	PERB
	Decision
	No.
	53,
	at
	p.
	11. 	In
	the
present 	case, 	the
	District
	will
	be
	ordered
	to
	cease
	and
	desist
	from
failing
	or
	refusing
	to
	negotiate 	in
	good
	faith
	and 	from
	failing
	to
participate
	in
	good
	faith
	in
	the
	impasse
	procedure
	with 	the
Association 	regarding
	notice
	and
	timing
	of
	classified
	employee
layoffs
	to 	the 	extent 	there
	is
	an
	effect
	on
	matters 	within 	the
scope
	of 	representationo
The
	District
	also 	will
	be
	ordered 	to 	post 	copies 	of 	the
Notice
	set 	forth 	in 	the
	Appendix.
	Posting 	serves 	to 	notify
employees
	of 	the
	disposition 	of
	this
	charge
	and
	how
	their 	rights
	are
affected 	thereby.
	Placerville
	Union 	School
	District
	(9/18/78)
	PERB
Decision
	No.
	69.
15

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the 	Oakland
Unified 	School 	District 	violated 	Government 	Code 	section 	3543.S(c)
and 	(e). 	Pursuant 	to 	Government 	Code 	section 	3541.S(c), 	it 	is
hereby 	ordered 	that 	the 	District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Failing 	or 	refusing 	to 	negotiate 	in 	good 	faith
with 	the 	Oakland 	School 	Employees 	Association 	in 	violation 	of
Government 	Code 	section 	3543.S(c) 	on 	the 	subject 	of 	notice 	and
timing 	of 	classified 	employee 	layoffs 	to 	the 	extent 	that 	there 	is 	an
effect 	on 	matters 	within 	the 	scope 	of 	representation.
(b) 	In 	like 	manner, 	failing 	to 	participate 	in 	good
faith 	in 	statutory 	impasse 	procedures 	in 	violation 	of 	Government
Code 	section 	3543.S(e).
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EERA:
(a) 	Post 	copies 	of 	the 	Notice 	set 	forth 	in 	the
Appendix, 	for 	30 	working 	days 	after 	this 	Proposed 	Order 	becomes
16

final, 	at
	its
	headquarters
	office
	and
	in
	all
	locations
	where
	notices
to
	classified
	employees
	are 	customarily 	posted;
(b)
	Notify 	the
	San
	Francisco
	Regional
	Director
	of
	the
Public
	Employment
	Relations
	Board
	of
	the
	actions
	it
	has
	taken
	to
comply
	with
	this
	Order.
Pursuant 	to
	California
	Administrative
	Code,
	title
	8,
	part
III,
	secton
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
	become
final
	on
June
	28,
	1979
	unless
	a
	party
	files
	a
	timely
	statement 	of
exceptions
	and
	supporting
	brief
	within
	twenty
	(20)
	calendar 	days
following 	the 	date 	of
	service 	of
	this
	decision.
	Such
	statement 	of
exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
	by
	the
Executive
	Assistant 	to
	the
	Board
	at
	the 	headquarters
	office 	in
Sacramento
	before
	the
	close 	of 	business
	(5:00
	p.m.)
on
	June
	28,
	1979
	in 	order 	to
	be
	timely
	filed.
	See
	California
Administrative
	Code,
	title
	8,
	part
	III,
	section
	32135.
	Any
statement 	of 	exceptions
	and
	supporting
	brief
	must 	be
	served
concurrently
	with
	its
	filing
	upon
	each
	party 	to
	this
	proceedng.
Proof
	of 	service
	shall
	be
	filed
	with 	the
	Board
	itself.
	See
California
	Administrative
	Code,
	title
	8,
	part
	III,
	sections
	32300
and 	32305, 	as
	amended.
Dated: 	June
	8,
	1979
17
Gera
	A.
	Becker
Heari 	Officer

APPENDIX
NOTICE
	TO	
EMPLOYEES
POSTED
	BY
	ORDER
	OF	
THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After 	hearings 	in
	which
	all
	parties
	had
	the
	right
	to
participate,
	it
	has 	been 	found
	by
	the 	Public
	Employment
	Relations
Board
	that
	the
	Oakland
	Unified
	School
	District
	violated
	the
Educational
	Employment
	Relations
	Act
	(EERA)
	by:
1.) 	Failing
	or
	refusing 	to 	negotiate 	in
	good
	faith
	with
the
	Oakland 	School
	Employees
	Association, 	in
	violation
	of
	Government
Code
	section
	3543.S(c)
	on
	the
	subject 	of 	notice
	and
	timing
	of
classified
	employee
	layoffs,
	to 	the
	extent 	there
	is
	an
	effect
	on
matters 	within 	the
	scope
	of 	representation.
2.) 	Failing 	to
	participate
	in
	good
	faith
	in
	statutory
impasse
	procedures 	in 	violation
	of
	Government 	Code
	section 	3543.S(e).
WE
WILL
	NOT:
1.) 	in	
any 	manner
	fail
	or 	refuse 	to 	negotiate 	in
	good
faith
	with 	the
	Oakland
	School
	Employees	
Association
	on	
the	
subject
of 	notice
	and
	timing 	of
	classified
	employee	
layoff 	to 	the 	extent
that 	there 	is
	an
	effect
	on
	matters 	within 	the 	scope 	of
representation.
18

2.) 	in 	any 	manner 	fail 	to 	participate 	in 	good 	faith 	in
statutory 	impasse 	procedures.
Oakland 	Unified 	School 	District
By 	Superintendent
Dated:
This 	is 	an 	official 	notice. 	It 	must 	remain 	posted 	for 	30
consecutive 	days 	from 	the 	date 	of 	posting 	and 	must 	not 	be 	defaced,
alter 	or 	covered 	by 	any 	material.
19