Newark Unified School District, Board of Education (PERB 0225E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
NEWARK TEACHERS 	ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
NEWARK 	UNIFIED 	SCHOOL 	DISTRICT,
BOARD 	OF 	EDUCATION,
Respondent.
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) 	Case 	No. 	SF-CE-367
PERB 	Decision 	No. 	225
June 	30, 	1982
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____________________ )
Appearances: 	Raymond 	L. 	Hansen 	and 	Kirsten 	L. 	Zerger,
Attorneys 	for 	the 	Newark 	Teachers 	Association, 	CTA/NEA;
William F. 	Kay 	and 	Susan 	I. 	Covey, 	Attorneys 	(Whitmore 	& Kay)
for 	the 	Newark 	Unified 	School 	District, 	Board 	of 	Education.
Before 	Gluck, 	Chairperson; 	Jensen 	and 	Tovar, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on 	exceptions 	filed 	by 	the 	Newark
Unified 	School 	District, 	Board 	of 	Education 	(hereafter
District) 	and 	a 	response 	to 	those 	exceptions 	filed 	by 	the
Newark 	Teachers 	Association, 	CTA/NEA 	(hereafter 	Association).
The 	decision 	of 	the 	hearing 	officer 	is 	incorporated 	by
reference 	herein.

FACTS
The 	hearing 	officer's 	findings 	of 	fact 	are 	free 	of
prejudicial 	error, 	and 	are 	hereby 	adopted 	as 	the 	findings 	of
the 	Board.l
DISCUSSION
The 	hearing 	officer 	found 	that 	the 	District 	violated
subsections 	3543.S(c) 	and, 	concurrently, 	3543.S(a) 	and 	(b) 	of
the 	Educational 	Employment 	Relations Act 	(EERA 	or 	Act) 	when 	it
refused 	to 	negotiate 	over 	the 	effects 	of 	a 	proposed 	layoff.2
lThe 	hearing 	officer 	misstated 	the 	record 	when 	he 	found
that 	"average 	class 	size 	exceeds 	the 	contractual 	limit 	••• 	in
one 	instance." 	Proposed 	Decision, 	p. 	10. 	In 	fact, 	the 	record
demonstrates 	that 	the 	size 	of 	one 	particular 	class 	exceeded 	the
contractual 	limit 	applicable 	to 	District-wide 	average 	class
size, 	but 	that 	this 	did 	not 	cause 	the 	District-wide 	average 	to
rise 	above 	the 	limit. 	However, 	this 	error 	does 	not 	affect 	the
outcome 	of 	the 	case, 	and 	thus 	is 	non-prejudicial.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code,
unless 	otherwise 	noted. 	Subsections 	3543.S(a), 	(b), 	and 	(c)
provide 	as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
{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.
2

In 	so 	ruling, 	he 	affirmed 	the 	principle 	that 	an 	employer, 	while
free 	to 	unilaterally 	determine 	that 	a 	layoff 	is 	necessary, 	has
an 	obligation 	to 	provide 	to 	the 	exclusive 	representative 	of 	its
employees 	notice 	and 	an 	opportunity 	to 	negotiate 	over 	the
effects 	of 	layoff 	which 	have 	an 	impact 	upon 	matters 	within
scope. 	In 	San 	Mateo 	County Community College 	District 	(6/8/79}
PERB 	Decision No. 	94, 	at 	p. 	13, 	the 	Board 	noted 	that
"[a]lthough 	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 	•.•• 11 3 	In 	Florida 	Steel 	Corporation 	(1978} 	235
3Insofar 	as 	implementation 	of 	a 	layoff 	will 	have 	an
impact 	upon 	negotiable 	matters 	enumerated 	in 	subsection
3543.2(a}, 	such 	an 	impact 	must 	be 	negotiated. 	Subsection
3543.2(a} 	defines 	negotiable 	matters 	as:
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. 	In 	addition, 	the 	exclusive
representative 	of 	certificated 	personnel 	has
3

NLRB 	941 	[100 	LRRM 	1187], 	[enf'd 	in 	pertinent 	part, 	{4th Cir.
1979) 	601 	F.2d 	125], 	the 	NLRB 	determined 	that 	an 	employer 	who
refused 	to 	negotiate 	over 	the 	effects 	of 	layoff 	failed 	in 	its
bargaining 	duty. 	In Anaheim Union 	High 	School 	District
{10/28/81) 	PERB 	Decision 	No. 	177, 	the 	Board 	established 	a 	test
to 	determine 	whether 	a 	subject 	which 	is 	not 	specifically
enumerated 	in 	subsection 	3543.2{a) 	is 	negotiable 	under 	the 	Act:
[A] 	subject 	is 	negotiable 	even 	though 	not
specifically 	enumerated 	if 	(1) 	it 	is
logically 	and 	reasonably 	related 	to 	hours,
wages, 	or 	an 	enumerated 	term 	and 	condition
of 	employment, 	(2) 	the 	subject 	is 	of 	such
concern 	to 	both 	management 	and 	employees
that 	conflict 	is 	likely 	to 	occur 	and 	the
mediating 	influence 	of 	collective
negotiations 	is 	the 	appropriate 	means 	of
resolving 	the 	conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not
significantly 	abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
{including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the
District's 	mission.
the 	right 	to 	consult 	on 	the 	definition 	of
educational 	objectives, 	the 	determination 	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 	school 	employer 	and
may 	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 	organization 	on 	any
matter 	outside 	the 	scope 	of 	representation.
4

In 	Newman-Crows 	Landing 	Unified 	School 	District, 	{6/30/82)
PERB 	Decision 	No. 	223, 	at 	pp. 	12-13, 	the 	Board 	noted 	that,
The 	layoff 	of 	employees 	unquestionably
impacts 	on 	their 	wages, 	hours, 	and 	other
conditions 	of 	employment. 	It 	may
concurrently 	impact 	upon 	those 	employees 	who
remain. 	Nevertheless, 	the 	determination
that 	there 	is 	insufficient 	work 	to 	justify
the 	existing 	number 	of 	employees 	or
sufficient 	funds 	to 	support 	the 	work 	force,
is 	a 	matter 	of 	fundamental 	managerial
concern 	which 	requires 	that 	such 	decisions
be 	left 	to 	the 	employer's 	discretionary
prerogative ••
Thus, 	while 	an 	employer 	is 	free 	to 	determine 	that 	a 	layoff 	is
required, 	it 	may 	not, 	in 	the 	absence 	of 	agreement 	or 	the
completion 	of 	negotiations, 	unilaterally 	implement 	in-scope
effects 	that 	are 	inconsistent 	with 	existing 	laws, 	contract
provisions, 	policies, 	or 	established 	practices.
The 	hearing 	officer 	found 	further 	that 	although 	the 	layoff
herein 	was 	merely 	proposed 	at 	the 	time 	the 	Association 	made 	its
request 	for 	negotiations, 	and 	that 	the 	impact 	upon 	matters
within 	scope 	was 	speculative 	at 	that 	point, 	the 	District 	was
nonetheless 	obligated 	to 	bargain 	over 	those 	admittedly
speculative 	effects. 	For 	the 	reasons 	set 	forth 	by 	the 	hearing
officer, 	and 	in 	reliance 	upon 	the 	cases 	and 	analysis 	set 	forth
by 	him, 	we 	affirm 	his 	conclusion 	that 	the 	District 	had 	a
negotiating 	obligation 	at 	the 	time 	it 	proposed 	the 	layoff, 	even
though 	the 	full 	extent 	to 	which 	the 	layoff 	would 	ultimately 	be
implemented 	was 	unknown 	at 	that 	time.
5

The 	District 	argues, 	in 	essence, 	that 	because 	at 	the 	time
it 	passed 	its 	resolution 	proposing 	the 	layoff 	it 	had 	no 	intent
to 	implement 	it 	in 	a 	manner 	which 	would 	affect matters 	within
scope, 	and 	because 	the 	Association 	did 	not 	prove 	that 	the
layoff 	as 	implemented 	had 	an 	effect 	on 	matters 	within 	scope,
its 	refusal 	to 	negotiate 	effects 	of 	layoff 	prospectively 	was
undertaken 	in 	good 	faith 	and 	hence 	did 	not 	violate 	the Act. 	As
the 	hearing 	officer 	noted,
••• 	it 	would 	not 	be 	consistent 	with 	PERB's
decisions 	in 	this 	area 	to 	leave 	the 	judgment
of 	whether 	or 	not 	a 	subject 	is
'substantially' 	affected 	(and 	subject 	to
negotiations) 	to 	the 	exclusive 	and
unilateral 	province 	of 	an 	employer. 	Leaving
such 	a 	decision 	in 	the 	employer's 	hands
would 	thwart 	the 	collective 	negotiations
objectives 	set 	forth 	in EERA, 	the 	salutary
purposes 	of 	which 	were 	fully 	discussed 	in
San Mateo 	County Community College 	District,
supra, 	at 	14-17.
Because 	it 	may 	reasonably 	be 	expected 	that 	a 	layoff 	of 	any
magnitude 	will 	have 	an 	effect 	upon matters 	within 	scope, 	the
proposal 	of 	layoff 	itself 	triggers 	the 	employer's 	obligation 	to
provide 	notice 	and 	an 	opportunity 	to 	negotiate 	to 	the 	exclusive
representative. 	Such 	a 	practice 	will 	give 	the 	parties 	an
opportunity 	to 	negotiate 	before 	the 	fact, 	when 	such 	dialogue
can 	potentially 	be 	of 	the 	greatest 	value.
The 	District 	argues 	that 	by 	agreeing 	to 	the 	management's
rights 	and 	zipper 	clauses 	at 	issue 	herein, 	the 	Association
6

waived 	its 	right 	to 	negotiate 	over 	the 	effects 	of 	the 	proposed
layoff 	herein. 	We 	find 	that 	the 	negotiating 	history 	and 	text
of 	the 	clauses 	at 	issue 	indicate 	that 	there 	was 	no 	such
waiver. 	We 	adopt 	the 	hearing 	officer's 	reasoning 	with 	respect
to 	these 	issues.
CONCLUSIONS 	OF 	LAW
In 	keeping 	with 	the 	above 	discussion, 	we 	affirm 	the
findings 	of 	the 	hearing 	officer, 	except 	as 	modified 	below.
Thus 	we 	affirm 	his 	finding 	that, 	by 	refusing 	to 	negotiate 	over
the 	effects 	of 	the 	proposed 	layoff 	on 	matters 	within 	scope, 	the
District 	violated 	subsection 	3543.S(c) 	of 	the EERA 	and,
concurrently, 	subsections 	3543.S(a) 	and 	(b). 	We 	further 	agree
that 	the Association 	failed 	to 	prove 	that 	the 	actual
implementation 	of 	the 	layoff 	ultimately 	affected 	matters 	within
scope, 	and 	thus 	that 	no 	affirmative 	relief 	(other 	than 	notice
posting) 	is 	mandated.4
4In 	this 	regard 	we 	disavow 	his 	statement 	that:
The 	District's 	unilateral 	action 	affecting
subjects 	within 	the 	scope 	of 	representation
justifies 	an 	order 	to 	the 	District 	that 	it
cease 	and 	desist 	from 	further 	unilateral
actions 	affecting 	subjects 	within 	the 	scope
of 	representation 	without 	first 	giving
notice 	to 	and 	negotiating 	with 	the 	exclusive
representative 	about 	the 	effects 	of 	such
actions. 	(Proposed Decision, 	p. 	22}
This 	is 	because, 	as 	noted 	above, 	we 	do 	not 	find 	that 	the
District 	unilaterally 	changed 	matters 	within 	scope. 	Rather,
the 	gravamen 	of 	the 	violation 	here 	is 	the 	District's 	flat
refusal 	to 	negotiate 	over 	effects 	of 	the 	proposed 	layoff.
7

ORDER
Upon 	consideration 	of 	the 	entire 	record 	in 	this 	case, 	and
in 	light 	of 	the 	foregoing 	decision, 	the 	Board 	affirms 	the
hearing 	officer's 	conclusion 	that 	the 	District 	violated
subsections 	3543.S{a), 	(b} 	and 	(c} 	of 	the 	EERA.5 	The 	Board
hereby ORDERS 	that 	the 	District 	shall:
(1) 	CEASE 	AND 	DESIST 	FROM:
{a) 	Failing 	or 	refusing 	to 	provide 	to 	the 	Association
notice 	and 	an 	opportunity 	to 	negotiate 	over 	the 	effects 	of 	a
proposed 	layoff 	upon 	matters 	within 	the 	scope 	of 	representation;
(b) 	Denying 	to 	the Association 	the 	right 	to 	represent
unit 	members 	by 	failing 	or 	refusing 	to 	provide 	to 	the
Association 	notice 	and 	an 	opportunity 	to 	negotiate 	over 	the
effects 	of 	a 	proposed 	layoff 	upon 	matters 	within 	the 	scope 	of
representation;
{c) 	Interfering 	with 	the 	right 	of 	employees 	to 	select
an 	exclusive 	representative 	to 	negotiate 	on 	their 	behalf 	by
failing 	and 	refusing 	to 	provide 	to 	the 	Association 	notice 	and
an 	opportunity 	to 	negotiate 	over 	the 	effects 	of 	a 	proposed
layoff 	upon 	matters 	within 	the 	scope 	of 	representation;
5The 	Association 	excepts 	to 	the 	lack 	of 	s~ecificity
expressed 	in 	the 	notice 	and 	order 	as 	to 	the 	District's
bargaining 	obligation. 	We 	have 	modified 	that 	language 	to
conform 	to 	our 	factual 	conclusion 	and 	to 	clarify 	the 	obligation
of 	the 	District.
8

(2) 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION:
Within 	ten 	(10) 	workdays 	following 	the 	date 	of 	service 	of
this 	decision, 	post 	at 	all 	work 	locations 	where 	notices 	to
employees 	customarily 	are 	placed, 	copies 	of 	the 	notice 	attached
as Appendix A hereto 	signed 	by 	an 	authorized 	agent 	of 	the
employer. 	Such 	posting 	shall 	be 	maintained 	for 	a 	period 	of
thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	ensure 	that 	such 	notices 	are 	not 	altered, 	defaced 	or
covered 	by 	any 	other 	material 	or 	reduced 	in 	size. 	Within 	ten
(10) 	workdays 	following 	service 	of 	this 	decision, 	notify 	the
San 	Francisco 	regional 	director 	of 	the 	Public Employment
Relations 	Board 	in 	writing 	of 	the 	steps 	the 	employer 	has 	taken
to 	comply 	with 	the 	terms 	of 	this 	decision. 	Continue 	to 	report
in 	writing 	to 	the 	regional 	director 	periodically 	thereafter 	as
directed. 	All 	reports 	to 	the 	regional 	director 	shall 	be 	served
concurrently on 	charging 	party 	herein.
·•
rperson
~~/~renetfovar, 	Member
9
By: Virgil Jensen, Member	By: 	Vir. 	Harry gluck, Chairperson
Trene Tovar, Member

APPENDIX A
NOT ICE 	TO EMPLOYEES
POSTED BY 	ORDER OF THE 	PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	on Unfair 	Practice Case 	No. 	SF-CE-367, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	Newark 	Unified 	School 	District Board 	of
Education 	violated 	the 	Educational Employment 	Relations 	Act 	by
failing 	or 	refusing 	to 	meet 	and 	negotiate 	with 	the Newark
Teachers 	Association, 	CTA/NEA, 	with 	respect 	to 	the 	effects 	of
Resolution No. 	499, 	providing 	for 	layoffs, 	which 	was 	approved
by 	the 	District 	on February 	27, 	1979. 	It 	has 	been 	found 	that
this 	action 	violated 	subsection 	3543.S(c) 	of 	the Educational
Employment 	Relations 	Act 	(EERA). 	The 	same 	conduct 	has 	also
been 	found 	to 	have 	violated 	subsection 	3543.S(b) 	of 	the EERA
since 	it 	interfered 	with 	the 	right 	of 	the 	Association 	to
represent 	its 	members. 	It 	has 	been 	further 	found 	that 	this
same 	conduct 	interfered 	with 	negotiating 	unit 	members' 	right 	to
be 	represented 	by 	their 	exclusive 	representative, 	thus
constituting 	a 	violation 	of 	subsection 	3543.S(a) 	of 	the EERA.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this
notice 	and 	we 	will 	abide 	by 	the 	following:
WE 	WILL 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	or 	refusing 	to 	provide 	to 	the 	exclusive
representative 	notice 	and 	an 	opportunity 	to 	meet 	and 	negotiate
regarding 	effects 	of 	proposed 	layoffs 	within 	the 	scope 	of
representation, 	as 	defined 	by 	section 	3543.2.
(2) 	Denying 	the 	exclusive 	representative 	its 	right 	to
represent 	unit 	members 	by 	failing 	or 	refusing 	to 	provide 	notice
and 	an 	opportunity 	to 	negotiate 	about 	matters 	within 	the 	scope
of 	representation.
(3) 	Interfering 	with 	employees 	because 	of 	the
exercise 	of 	their 	right 	to 	select 	an 	exclusive 	representative
to 	meet 	and 	negotiate 	with 	the 	employer 	on 	their 	behalf 	by
failing 	and 	refusing 	to 	provide 	to 	the 	exclusive 	representative
notice 	and 	an 	opportunity 	to 	meet 	and 	negotiate 	over 	effects 	of
proposed 	layoffs 	within 	the 	scope 	of 	representation.
NEWARK 	UNIFIED SCHOOL 	DISTRICT.
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR THIRTY
CALENDAR DAYS 	FROM THE 	DATE 	OF POSTING AND 	MUST 	NOT BE 	REDUCED
IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.