Oakland Unified School District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0326E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
Charging 	Party,
v.
OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-476
PERB Decision No. 	326
July 11, 	1983
Appearances: 	Richard V. 	Godino, 	Attorney 	(Breon, 	Galgani,
Godino 	& 	O'Donnell) 	for 	Oakland Unified 	School District;
Andrew Thomas 	Sinclair, 	Attorney 	for 	Oakland 	School Employees
Association.
Before Tovar, 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before 	the Public
Employment 	Relations Board 	(PERB or 	Board) 	on exceptions 	to 	the
hearing 	officer's 	proposed 	decision 	filed 	by 	the 	Oakland
Unified School District 	(District). 	The District contests 	the
hearing 	officer's 	finding 	that 	it 	violated 	subsections
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA or 	Act)l 	by 	failing 	to 	fulfill 	its obligation 	to
1EERA 	is 	codified 	at Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	indicated.
Subsections 3543.5(a), 	(b) 	and 	(c) provide:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
l)
)
)
)
)
)
)
_______________ )
* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision
No. 2855 * * *

bargain 	in good 	faith 	with 	the Oakland 	School Employees
Association 	(OSEA or Association).
FACTS
The 	Association 	and 	the 	District 	were 	parties 	to a
collective bargaining 	agreement 	effective April 	4, 	1979 	to
June 30, 	1981. 	During 	1980, 	the parties conducted 	two separate
sets of negotiations. 	The 	first began 	in April 1980 	and
covered 	the 	layoffs which 	the 	District 	announced 	would 	occur 	on
June 	30. 	The 	second 	set of negotiations began 	in August 	1980
and 	covered 	reopeners on wages, 	annuity contributions, 	and
health 	and 	welfare 	benefits. 	OSEA attempted 	to combine 	these
two 	sets of 	negotiations, 	but 	the District refused.
The 	thrust of 	the 	instant 	case 	involves 	the 	layoff
negotiations. 	In 	the 	fall of 	1979, 	the District 	learned 	that
it was 	facing 	a 	serious budget deficit. 	Beginning 	in
November 	1979, W. 	B. 	Lovell, 	then the District's business
manager, 	conducted 	a series of budget workshops at which 	the
(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.
N	2

deficit 	was discussed. 	As 	a means of compensating 	for 	the
deficit, 	the District began considering 	the possibility of
staff 	reductions, 	including 	layoffs of many classified
employees. 	According 	to Lovell, 	had 	the District continued at
the 	same 	staffing 	level 	for 	the 	1980-81 	school year, 	there
would 	have 	been 	a 	five million dollar 	deficit 	even without 	a
salary 	increase.
Beginning 	in January 1980, 	Ann Sprague, 	OSEA president,
made 	several presentations 	to 	the 	board 	of 	education 	regarding
the potential 	layoffs. 	The 	District did 	not officially
announce 	layoffs 	until April 	30. 	However, 	during 	the budget
workshops conducted prior 	to April, 	it became 	increasingly
obvious 	that 	layoffs were 	a certainty. 	Sprague 	repeatedly
asked 	for 	negotiations 	to begin 	as 	soon 	as possible 	and 	for
certain 	information, 	including 	a 	list of positions 	and 	the
names 	of 	employees 	targeted 	for 	layoff. 	Superintendent
Ruth 	Love 	referred 	these 	requests 	to her 	staff 	and 	told 	Sprague
that 	the 	staff would 	respond. 	The 	staff did 	not 	respond.
OSEA Attorney 	Andrew 	Thomas 	Sinclair 	followed 	up on
Sprague's requests. 	On February 20, 	1980, he wrote to
Loma 	Reno, 	then 	the 	acting director 	of 	classified personnel and
the 	District's 	chief negotiator, 	stating 	that 	OSEA wished 	to
begin 	negotiations 	on 	"all matters 	that 	are 	negotiable 	for 	the
1980-81 	school year 	contract."
W	
3

The District did 	not 	respond 	to OSEA's 	requests. 	At an
April 	1 meeting 	called 	to discuss 	the 	proposed preliminary
budget, 	the 	layoffs were 	discussed 	and 	Lovell 	announced 	that
they could 	exceed 	200. 	This 	meeting was 	attended 	by Ruth
McClanahan, 	who at 	this 	time 	had 	replaced 	Loma 	Reno as 	the
District's 	chief 	negotiator.
Immediately after 	the April 	1 meeting, 	Sinclair wrote 	to
McClanahan 	asking 	for 	negotiations 	on 	the 	following 	subjects:
1. 	Wages 	and 	health 	and welfare benefits;
OSEA proposes a 	15% 	salary 	increase; 	a
more 	detailed 	proposal 	for 	health 	and
welfare 	benefits 	will be presented
during 	the 	course 	of 	negotiations;
2. 	The effects of 	the proposed 	lay-offs;
3. 	The decision 	to 	lay off 	any bargaining
unit employees;
4. 	The 	consolidation of bargaining 	for 	the
White 	Collar 	and 	Paraprofessional
bargaining 	units.2
McClanahan 	responded 	to Sinclair's 	letter 	on April 	14. 	She
agreed 	to 	negotiate 	about 	fringe 	benefits, 	but 	stated 	that
negotiations 	could 	not 	begin until 	the proposals had 	been
received 	and 	sunshined. 	She 	also 	agreed 	to 	negotiate 	about 	the
"effects 	of 	the proposed 	layoffs," 	beginning on April 	21.
However, 	she 	refused 	to bargain about 	the 	decision 	to 	lay off
2The 	instant 	case 	involves 	negotiations 	in 	the 	unit of
white 	collar 	employees. 	The 	District 	eventually 	refused 	to
negotiate point 	four 	above 	because 	it viewed 	it 	as 	an 	improper
subject 	for 	negotiations.
4

employees because 	it was not, 	in her view, 	within scope. 	Her
letter 	makes 	that 	clear:
[bargaining 	on 	[the 	effects 	of 	layoffs]
will 	take place 	separate 	and 	apart 	from any
subsequent 	bargaining 	on 	wages 	and 	fringe
benefits 	that might occur.
The parties 	held another 	meeting on April 	21. 	The meeting
prompted 	a 	lengthy 	letter 	from Sinclair 	to McClanahan 	the
following 	day. 	Sinclair 	complained 	that 	the parties were 	"not
getting 	off 	to 	a 	very good 	start 	for 	this 	round 	of
negotiations." 	Among 	other 	things, 	Sinclair 	contended 	that 	the
time, 	place 	and 	subject matter 	of particular 	negotiations 	were
negotiable 	and 	could 	not 	be 	set 	unilaterally. 	He 	asked 	to
negotiate 	about 	these 	items. 	He 	requested 	"at 	least 	10
sessions 	of 	3 	hours 	each 	for 	each 	of 	the 	2 bargaining 	units
represented 	by OSEA." 	He 	also 	asked 	that 	at 	least 	five of 	the
ten 	sessions 	be 	scheduled 	immediately 	and 	that 	negotiations 	be
accelerated 	from May 	23, 	the 	date 	set 	by 	the District.
Sinclair 	also 	reiterated 	Sprague's 	earlier 	demands 	for 	all
information 	about 	whom 	the 	District 	was 	planning 	to 	lay off or
the positions 	involved. 	The 	District did 	not 	respond 	to 	these
requests.
By 	letter 	of April 	25, 	Sprague 	specifically 	requested 	that
Superintendent 	Love provide 	OSEA with 	the 	list 	of proposed
layoffs 	and 	recommended 	reductions 	in monthly work 	schedules 	of
classified 	employees 	in 	the white 	collar 	unit, 	the 	number of
positions 	being 	recommended 	for 	layoff or 	reduction 	in months
5

of 	employment 	by 	department 	and 	by 	specific 	classification and
the classification, 	number of positions, 	and 	the proposed
number 	of 	months 	of 	employment 	designated 	for 	reduction.
Sprague 	insured 	Love 	that 	the 	information was 	needed 	to protect
the 	employees 	OSEA represents 	but 	would 	be 	kept 	in confidence.
The 	response 	to this 	request came on April 	28 	from
Charles Mitchell, 	Deputy Superintendent of Schools. 	Mitchell
advised 	Sprague 	that 	the 	information which 	she 	requested 	was
currently 	being 	prepared 	for 	release 	by 	the 	board 	of 	education
in public 	session at 	the April 	30 meeting.
He wrote:
Until 	such 	time 	as 	the 	information 	is
released by the Board, 	it 	is 	not a public
document 	and 	cannot 	be provided 	to you or 	to
other 	units. 	The 	delay 	in making 	this
information public 	is 	to give 	each
department 	head/supervisor 	the 	opportunity
to personally 	advise 	each 	person 	whose
position 	is 	being 	eliminated 	or 	having
his/her 	work 	year 	changed.
Loma Reno 	testified 	that, 	early 	in 	the year, 	the District
had 	not 	been 	in a position 	to provide 	the 	names of 	those 	to be
laid 	off. 	According 	to Reno, 	the 	complicated bumping
procedures made 	the 	list 	uncertain. 	However, 	she did have 	a
fairly 	accurate 	list on May 9. 	She 	conceded 	that, 	though 	the
list 	changed 	weekly, 	this 	information was available 	to 	the
District 	and 	could 	have 	been 	shared 	with 	OSEA, 	but 	she 	resisted.
I question 	that 	being 	good 	personnel
practice 	to give 	out a 	name of 	a person who
6
6

might 	not be 	laid 	off 	and 	it becomes 	[sic]
out 	in 	the public as 	knowledge.
I 	did 	not 	want 	to give 	any names 	. . . 	I 	do
not 	think 	it 	is 	a good 	idea 	to give 	any name
unless 	we 	are 	absolutely certain 	it 	is 	that
person who 	is affected. 	And, 	I won't give
those 	names 	and 	that 	sort 	of 	information 	to
anyone.
On April 	30, 	the board 	of education passed 	a 	resolution
announcing 	the 	decision 	it 	made 	approximately 	one 	week 	earlier
in executive 	session. 	It directed 	the 	superintendent 	to:
. 	. 	. 	abolish or 	reduce 	the work year,
no later 	than June 	30, 	1980, 	of 	. . .
328 	classified 	positions 	. . . 	.3
A 	list 	of 	the 	number 	of 	targeted positions 	within
classifications 	of 	employees 	to be 	laid 	off was 	attached 	to 	the
resolution. 	OSEA was provided 	with 	this 	information when 	the
resolution was made public on April 	30.
By 	letter 	of May 	5, 	McClanahan 	agreed 	to 	use 	the previously
scheduled 	session 	of May 	23 	for 	negotiations 	on effects 	of
layoff. 	The May 	5 	letter 	also 	informed 	Sinclair 	that 	the
information 	requested 	by 	Sprague 	would 	be mailed 	to her.
McClanahan 	wrote:
I have discussed with Mr. 	Lovell,
Mrs. 	Sprague's 	request 	for 	the names of
3On 	May 	7, 	another 	resolution 	was passed 	reducing 	this
number 	to 	315. 	The 	number 	was 	continually 	reduced. 	Only 	17
notices were 	sent out. 	Of these 	17, 	12 were 	recalled. 	Thus,
at 	the 	time of 	the 	hearing, 	the 	actual 	number 	of 	employees
still 	laid 	off was 	5.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
7

individuals 	whom 	the 	District proposes 	to
lay off 	and 	the 	identities of 	the positions
from which employees will be 	laid off. 	I
have 	received 	assurances 	that 	the
information will 	be mailed 	to 	her on or
about Friday, May 2, 	1980.
The 	information 	was 	not 	forwarded 	as 	promised 	by McClanahan.
On May 	20, 	OSEA submitted 	a detailed written proposal 	to
the District 	covering 	the effects of 	layoffs. 	The proposal
included 	a 	cover 	letter 	stating 	that 	OSEA maintained 	its
position 	that 	"layoffs per 	se" 	were negotiable. 	The proposal
on 	effects 	stated:
EFFECTS 	OF 	LAY-OFFS
The 	following 	shall 	be 	observed 	with 	regard
to 	the 	effects 	of 	any lay-offs 	carried 	out
by 	the 	Oakland 	Unified 	School 	District:
1. 	All 	lay-offs 	shall be preceded by 	180
days written notice, 	[sic]
2. 	All 	laid off employees 	shall be entitled
to 	180 	days of 	severance pay;
3. 	All 	laid 	off 	employees 	shall be 	entitled
to 	remain on 	all 	health 	and 	welfare
programs 	for 	180 	days 	following 	the
effective date 	of 	the 	lay-off;
4. 	All 	laid 	off 	employees 	shall continue 	to
receive payments 	to 	their 	annuity
account 	for 	180 	days 	following 	the
effective date 	of 	their 	lay-off;
The 	following 	shall 	apply 	to 	employees who
continue 	to work 	for 	the 	school district:
1. 	No employee's 	work 	load 	shall be
increased 	as 	a 	result 	of 	any lay-off of
another 	employee 	in 	the 	bargaining 	unit;
2. 	No employee 	shall be 	transferred 	to
another 	site 	as 	a 	result of 	the 	lay-off
8

of 	another 	employee 	in 	the 	bargaining
unit;
3. 	No employee 	shall be 	required 	to work
mandatory overtime 	as 	a 	result of 	the
lay-off of 	another 	employee 	in 	the
bargaining 	unit;
4. 	No employee 	shall have 	their 	hours
reduced 	as 	a 	result 	of 	the 	lay-off of
another 	employee 	in 	the 	bargaining 	unit.
Also on May 	20, 	OSEA made 	the 	following 	written proposal on
the 	decision 	to 	lay off 	classified 	employees:
No employee 	in 	the White 	Collar 	Bargaining
Unit 	shall be 	laid 	off 	during 	the 	1980-81
school year, 	or 	any part of 	it, 	after
May 15, 	1980. 	The District shall not be
required 	to 	fill 	vacancies 	which 	occur
during 	the 	1980-81 	school year 	in 	the White
Collar 	Bargaining 	Unit.
The parties met on May 	23. 	The 	District 	repeated 	its
position, 	first 	stated 	in McClanahan's April 	14 	letter, 	that
negotiations 	on 	economic 	items 	could 	not 	proceed 	until 	the
board 	of 	education 	had 	an opportunity 	to 	respond 	to 	the 	OSEA
proposals. 	The 	District 	agreed 	to go ahead 	with 	negotiations
on 	the 	effects 	of 	the 	layoffs 	and 	scheduled 	another 	session 	for
June 	9.
In anticipation of 	the June 	9 	session, 	Sinclair 	again
requested 	information 	from 	the 	District. 	In 	a May 	27 	letter,
he 	asked 	McClanahan 	for 	the 	following 	data:
1. 	The names, 	classifications and locations
of 	all 	employees 	the 	District 	intends 	to
lay-off;
2. 	The 	time 	at which 	the District 	intends
to 	lay-off 	each 	individual 	identified;
9

3. 	The 	seniority of 	each 	employee 	the
District proposes 	to 	lay-off, 	and 	the
names 	and 	classifications 	and 	locations
of 	each person 	who 	could 	be 	bumped 	by
each 	individual who 	is 	to be 	laid off;
4. 	The proposed 	duration of 	the 	lay-off 	for
each 	employee.
Also on May 	27, 	the 	District 	sent out 	layoff notices 	to
employees. 	Sprague 	testified 	that 	OSEA protested 	the 	notices
being 	sent 	while 	the 	layoff 	negotiations were 	in progress.
OSEA 	requested 	the 	notices 	be 	withdrawn pending 	the 	outcome 	of
negotiations.
On June 	2, 	Sinclair 	sent 	a 	letter 	to McClanahan protesting
the amount of 	time 	(2 	hours) 	that 	the District had 	set aside
for 	negotiations 	scheduled 	for 	June 	9. 	He 	also 	stated 	that, 	by
sending 	layoff 	notices 	to 	employees 	during 	the 	course of
bargaining, 	the 	District 	acted 	unilaterally 	and 	should 	withdraw
the 	notices 	forthwith.
OSEA received 	the 	requested 	information, 	including 	the 	list
of 	employees 	to be 	laid off, 	on June 	4. 	Asked why 	it 	took 	the
District 8 days 	to provide OSEA with 	the 	list, 	Reno testified
that 	this was 	due 	to 	the 	overall volume of work 	her 	office had
at 	the 	time. 	The 	list 	included 	the 	names of 	17 employees.
This 	was 	the 	first 	time 	such 	a 	list 	had 	been provided 	to OSEA.
Substantive 	negotiations 	on 	the 	effects of 	layoffs were 	to
begin 	on June 	9. 	The 	OSEA negotiating 	team appeared 	at
9:00 	a.m. 	as 	scheduled. 	However, 	the 	District 	team was 	not
present. 	OSEA grievance 	officer 	Bill 	Freeman went 	to
10

McClanahan's 	office 	to 	find 	out 	where 	the 	District 	team was.
He was 	told by Rosalie Astrada, 	McClanahan's 	secretary, 	that
McClanahan 	cancelled 	the 	session 	because 	OSEA had 	filed 	charges
with 	PERB.4 After 	several 	telephone 	calls, 	the OSEA team
succeeded 	in 	getting 	the 	District's 	team 	to 	appear 	at 	the
table. 	By this 	time, 	it was about 	10:00 a.m.
McClanahan 	testified 	that 	she 	had 	not 	refused 	to bargain on
June 9 but, 	rather, 	she had:
. 	. 	. 	naively and 	stupidly assumed 	that the
filing 	of 	the 	unfair meant 	that 	[OSEA] 	was
not 	going 	to bargain 	any more.
She 	cancelled 	the 	session 	without 	checking 	with 	OSEA.
After 	Freeman came 	to her 	office, 	she 	attempted 	to contact
Michael Sorgen, 	attorney 	for 	the District, 	to get advice on
what 	she 	should do. 	However, 	she was 	not able 	to 	reach him and
decided 	to wait 	for 	his 	arrival 	before going 	to 	the 	bargaining
session, 	even 	though 	the 	OSEA team was present 	and prepared 	to
bargain. 	She 	testified 	that 	Sorgen 	eventually arrived 	and
advised 	her 	to go 	to 	the 	session 	and 	explain 	that 	she 	had made
a 	"genuine 	error." 	She did 	so.
The 	session was 	scheduled 	for 	9:00 	a.m. 	to 	12:00 	noon 	but
began 	at 	10:00 	a.m. 	and 	lasted 	until 	approximately 	12:00 	noon.
OSEA was 	under 	the 	impression, 	based 	on 	a discussion with 	Reno
4The 	charge 	referred 	to was 	SF-CE-469 	filed 	on
May 28, 	1980. 	It 	charged 	that 	the District had 	failed 	to
bargain 	in 	good 	faith 	on 	negotiable 	subjects 	unrelated 	to 	the
instant 	charge.
11

at 	the previous 	session, 	that 	the 	District would present a
written 	counterproposal on June 	9. 	When 	the 	District's 	team
arrived 	without 	a 	written proposal, 	OSEA demanded one.
McClanahan 	testified 	that 	Sinclair 	"badgered" 	her 	and
threatened 	to 	file 	an 	unfair 	practice 	charge 	unless 	the
counterproposal was presented. 	Shortly after 	10:00 	a.m., 	the
District 	team 	caucused 	to prepare 	its 	counterproposal.
The 	District 	returned 	at 	approximately 	12:15 p.m. 	and
presented 	the 	following 	counterproposal:
The 	following 	shall 	be 	observed 	with 	regard
to 	the 	effects 	of 	any 	lay-offs 	carried 	out
by 	the 	Oakland 	Unified 	School 	District:
1. 	All 	lay-offs 	shall be preceded 	by at
least 	thirty 	(30) 	days written notice.
The 	District 	will 	endeavor 	to give more
wherever 	business 	necessity permits.
2. 	All 	laid 	off employees 	shall be 	entitled
to 	all 	accrued 	vacation.
3. 	All 	laid 	off 	employees 	shall be 	entitled
to 	remain on 	all 	health 	and welfare
programs 	at 	their 	own 	expense 	for 	thirty
(30) 	days 	following 	the effective date
of 	the 	lay-off.
4. 	No 	laid off employee 	shall continue 	to
receive payments 	to his/her 	annuity
account 	following 	the 	effective 	date 	of
his/her 	lay-off.
The 	following 	shall 	apply 	to employees who
continue 	to work 	for 	the 	School District:
1. 	The 	District 	shall make 	every effort 	to
re-distribute 	work 	loads 	wherever 	it
determines 	that 	an 	employee's work 	load
has 	been 	substantially 	increased 	as 	a
result of 	the 	lay-off 	of 	another
employee 	in 	the 	bargaining 	unit.
12

2. 	No employee 	shall be 	transferred 	to
another 	site 	as 	a 	result of 	the 	lay-off
of 	another 	employee 	in 	the 	bargaining
unit 	except pursuant 	to application of
the 	seniority 	rules.
3. 	No employee 	shall be 	required 	to work
mandatory overtime 	in excess 	of
twenty-five 	(25) 	hours as a result of
the 	lay-off of 	another 	employee 	in 	the
bargaining 	unit.
4. 	No employee 	shall have his/her 	hours
reduced 	as 	a 	result of 	the 	lay-off of
another 	employee 	in 	the bargaining 	unit,
but 	shall have 	a 	right 	to voluntarily
accept a 	reduction 	in 	hours where
offered.
Evidence 	as 	to 	whether 	any 	substantive 	discussion 	occurred
after 	the 	counterproposal 	was presented 	is 	in 	conflict. 	OSEA
witnesses 	testified 	that, 	after 	presenting 	the counterproposal,
the 	session ended. 	McClanahan 	testified 	that, 	when the
District 	team returned, 	the parties began bargaining on 	it.
The 	next 	bargaining 	session 	took place on June 	11. 	During
this 	session, 	OSEA made 	a verbal proposal concerning 	the office
of 	community relations which, 	under 	the 	impending 	layoffs, 	was
targeted 	to 	lose 	its 	last 	three 	community 	relations
assistants. 	This 	cut would 	have 	left 	three 	clerical personnel
as 	support 	staff 	for 	the 	only other 	remaining 	employees, 	the
director 	and 	assistant 	director. 	OSEA proposed 	that 	the
District 	lay off 	the 	least 	senior 	intermediate 	typist-clerk 	and
retain 	the 	most 	senior 	community 	relations 	assistant. 	The
rationale 	offered 	for 	the 	proposal 	by OSEA 	involved 	saving 	the
position of Bill 	Freeman, 	one of 	the 	three community 	relations
13

assistants 	who 	had 	the 	right 	to 	released 	time 	in his 	role 	as
union 	grievance 	officer 	under 	the 	collective 	bargaining
agreement. 	OSEA argued 	that 	the proposal was 	reasonable 	in
that 	the 	two 	remaining 	management 	employees 	would 	not 	need 	the
full 	clerical 	staff 	which 	had 	supported 	the 	office 	when 	the
three 	community 	relations 	assistants 	were 	employed.5
OSEA viewed 	the 	proposal 	as 	involving 	the 	identity of 	the
layoff, 	a negotiable effect of 	the District's decision. 	The
District 	saw 	the proposal 	as 	nonnegotiable.
Lovell's 	testimony 	about 	the 	budget-cutting 	procedure 	bears
directly on 	the 	community 	relations 	proposal. 	Lovell 	testified
that 	the 	District 	had 	delegated 	to 	specific 	fund 	managers 	the
authority 	to 	determine 	where 	the 	layoffs 	would 	occur 	in 	their
particular 	areas of 	responsibility. 	However, 	not all
departments 	were 	cut by 	the 	same 	amount 	under 	the 	District's
approach. 	The 	community 	relations 	unit was 	at 	the 	"low end of
the 	scale" 	in 	terms of 	needed 	reductions. 	Superintendent Love
was 	the 	fund 	manager 	who had 	responsibility 	for 	the 	office 	of
community 	relations. 	Lovell 	testified 	regarding 	that 	role:
But 	it was 	up 	to 	the 	fund manager 	to come
back 	and 	say, 	identify either positions and
dollars 	or 	non-salary 	types 	of 	things which
they 	would 	meet 	their 	target 	which 	had 	been
presented 	to 	them.
5This 	office 	had 	had 	12 	community 	relations 	assistants
before 	Proposition 	13. 	The 	support 	staff 	had 	been 	reduced 	from
8 	to 3 	after 	Proposition 	13 	passed.
14

According 	to Lovell, 	the 	authority was delegated 	because:
. 	. 	. 	each 	fund manager was 	in the best
position 	to 	ascertain 	what 	they could 	afford
to give 	up 	to 	achieve 	their 	[budgetary]
target.
From a budgetary standpoint, 	Lovell 	testified, 	it did not
matter 	where 	the 	cuts 	came 	from.
Lovell 	also 	testified 	that 	there 	was 	"nothing 	magic" 	about
the 	June 	30 	layoff 	date 	and 	that 	the 	layoffs 	could 	have 	been
made 	effective 	at 	some 	later 	date 	but, 	the 	later 	the 	layoff
date, 	the 	less 	money 	saved. 	Money 	not 	saved 	by keeping
employees 	on 	the 	rolls 	after 	June 	30 would 	have 	had 	to have
been made 	up 	from 	some 	other 	source. 	For 	example, 	the money
could 	have 	come 	out of 	salary 	increases, 	an 	item the District
had 	already 	budgeted 	for. 	It made 	no difference 	to Lovell 	if
the 	budget 	was 	balanced 	in 	this way.
During 	the June 	11 	session, 	the District wrote down the
community 	relations 	office proposal and, 	after 	the 	session,
posted 	it 	in 	a 	glass-enclosed 	bulletin board 	at 	the 	entrance 	to
the 	administration 	building. 	There 	is 	a dispute 	as 	to whether
posting 	this proposal was 	appropriate. 	All of 	the OSEA
witnesses, 	including Sprague 	who had 	negotiated 	for 	OSEA since
1977, 	testified 	that 	the 	District 	had 	never posted 	a verbal
proposal. 	McClanahan 	testified 	that 	she 	had 	been 	informed 	by
her 	secretary 	that 	it 	was 	District practice 	to 	"sunshine"
counterproposals 	in 	this manner 	within 	24 	hours 	if 	they
materially 	affected 	a pending 	proposal. 	McClanahan 	also
15
.

testified 	that 	this 	posting 	requirement 	applied 	to
counterproposals only, 	not 	to 	initial proposals. 	She 	testified
that 	there 	was 	only one 	other 	counterproposal posted 	in 	this
manner 	during 	the 	spring 	of 	1980, 	when McClanahan was
participating 	in 	11 	sets of 	negotiations 	in addition 	to the
OSEA talks.
At 	the 	time 	the community 	relations 	office proposal was
posted, 	the 	District policy 	regarding 	sunshining 	new proposals
was 	contained 	in Administrative Bulletin 	8095. 	That bulletin
provides, 	in relevant part:
Within twenty-four 	(24) 	hours 	after
presentation 	of 	any 	new 	subject 	matter
proposals 	within 	the 	scope 	of 	negotiations
by 	either 	party 	during 	meeting 	and
negotiations, 	the Board 	of Education 	shall
make 	such 	proposals 	available 	in printed
form 	for 	public 	study 	and 	review.
McClanahan 	testified 	that 	the 	board 	of 	education 	has 	a 	role
in 	sunshining 	the 	proposals 	and 	counterproposals 	but 	that 	the
community 	relations 	unit proposal 	was 	never 	presented 	to 	the
board 	in an open meeting. 	She 	also 	testified 	that 	OSEA's
May 	20 	proposals 	had 	never 	been presented 	to 	the 	board of
education 	for 	public 	comment.6
6McClanahan 	testified 	that 	Sinclair 	sent 	her 	a 	letter
waiving 	the 	sunshining 	of 	the May 	20 proposals. 	No 	such 	letter
appears 	in 	the 	record. 	In his April 22 	letter 	to McClanahan,
Sinclair 	only 	requested 	that 	negotiations 	proceed 	"prior 	to
sunshining."
16

OSEA witnesses 	testified 	that, 	toward 	the 	end 	of 	the
June 	11 	session, 	McClanahan 	threatened 	to cancel 	subsequent
bargaining 	sessions 	if 	OSEA 	filed 	another 	unfair 	practice
charge. 	A 	letter 	from Sinclair 	to McClanahan 	following 	the
session 	indicates 	that 	the 	threat 	was 	made 	after 	OSEA demanded
a 	response 	to 	another 	subject of 	bargaining, 	"temporary extra
time 	assignments." 	The 	letter 	also 	informed 	McClanahan 	that
charges 	would 	be 	filed 	with 	PERB 	if 	no 	response 	was 	made.7
McClanahan 	testified 	that 	she 	had 	not 	threatened 	to 	cancel
the 	session 	because of OSEA's 	statement 	that 	charges would 	be
filed, 	but 	rather 	because 	Sinclair 	had 	called 	Loma Reno a 	liar
in 	front of classified 	employees. 	Despite 	this 	explanation,
McClanahan 	admitted 	during 	the 	second 	day of 	hearing 	that 	her
notes 	from June 	11 	contained 	the 	following:
Tom 	[Sinclair] 	threatened 	to 	file 	another
Unfair 	if 	I did 	not 	respond within 	two days
to his May 28th 	letter. 	I 	responded 	that 	I
will 	not meet 	if he continues 	to 	threaten
me. 	We are . 	. 	. 	refusing or considering
refusing 	to meet Wednesday 	in 	light of 	the
threats.
Reno 	testified 	that 	she 	couldn't 	remember 	the 	incident
where 	Sinclair 	allegedly called 	her 	a 	liar 	and 	said 	that 	she
did 	not 	pay much 	attention 	to 	that 	sort 	of 	thing.
7McClanahan 	testified 	that 	she 	could 	not 	remember 	if 	she
had 	responded 	to 	this 	letter, 	but 	there 	is no 	indication 	in the
record 	that 	she had. 	This 	charge 	(SF-CE-501) 	was 	filed on
October 	10, 	1980, 	after 	the District 	refused 	to respond to an
OSEA request 	for 	bargaining. 	A settlement was 	eventually
reached 	and 	the charge 	was withdrawn on November 	14, 	1980.
17

At 	the 	next 	session, 	the 	District 	representatives 	seemed
willing 	to 	try 	to 	reach 	a compromise 	on 	the 	severance pay 	and
notice proposals. 	With 	regard 	to 	severance pay, 	McClanahan
testified:
I 	don't 	recall 	us 	ever 	making 	a 	specific
money value. 	We 	talked 	in 	terms of where we
might be 	able 	to go 	to 	reach 	some 	type of 	an
agreement. 	District 	asked OSEA if 	it were
willing 	to negotiate 	severance pay 	in
exchange 	for 	giving 	up 	their 	rights 	to
rehire. 	We had 	that 	kind of a discussion as
we 	were 	going 	through 	item by 	item 	trying 	to
establish 	where 	we might 	be 	able 	to come
together.
She 	conceded 	that 	the June 	18 	discussion 	regarding 	notice
amounted 	to 	the District 	agreeing 	to 	"explore" 	the 	issue.
Regarding 	the 	discussion 	about 	the 	notice proposal, 	McClanahan
testified:
I 	remember 	making 	the 	statement 	that 	the
district was willing 	to consider 	60 	days of
notice with 	a proviso 	that 	30 of 	those days
represent 	the 	30-days 	notice 	that were
currently 	in 	effect 	and 	the 	employees 	who
were 	affected 	by 	it.
Freeman 	similarly 	testified 	that 	McClanahan 	said 	she 	"could
possibly adjust" 	her 	notice proposal 	to 60 days.
The 	record 	reveals 	that 	no 	firm offer 	beyond 	the 	30 	days
required 	by 	the 	Education 	Code 	was 	ever 	made.8
Also during 	the 	session on 	the 	18th, 	McClanahan 	read a
prepared 	statement 	to OSEA. 	The 	statement 	said 	that 	the
8Education 	Code section 45117, 	infra, 	at p. 	30,
18

District 	and 	OSEA had 	reached 	agreement 	on 	layoffs 	and 	effects
of 	layoffs 	in 	the current contract. 	In 	the 	statement,
McClanahan 	asserted 	that 	the 	District 	had 	complied 	with 	these
aspects of the contract. 	However, 	the statement reaffirmed 	the
District's 	agreement 	to 	negotiate 	effects of 	layoffs, 	including
"identity and 	number of 	layoffs, 	severance pay, 	location of
layoffs 	and 	other 	rights of 	the 	employees."
During 	the June 	18 	session, 	OSEA requested 	that 	the 	layoffs
be 	postponed 	pending 	further 	negotiations. 	The 	District
refused 	to do so, 	adhering 	to 	the June 	30 date. 	As 	stated
earlier, 	Business Manager 	Lovell 	testified 	that, 	while June 	30
was 	the end 	of 	the 	fiscal year, 	the 	layoffs could 	have 	been
postponed 	until a 	later 	time, 	such 	as August or 	September, 	but
this would 	have 	had 	a greater 	impact on 	the 	budget. 	According
to Lovell, 	if OSEA had 	agreed 	to 	accept 	a 	lower 	salary 	increase
in exchange 	for 	severance pay or 	additional notice, 	it would
not 	have mattered 	to 	the 	District 	from a 	financial point of
view.
In a June 	19 	letter, 	OSEA sought a response 	to 	its 	request
that 	no 	layoffs 	take place 	until 	negotiations 	were 	concluded.
The 	letter 	also asked 	for 	a 	response 	to 	the proposal about 	the
office 	of 	community 	relations. 	OSEA had 	apparently been
encouraged 	by 	the 	June 	18 	discussion 	of 	the 	notice 	and
severance pay proposals, 	as 	the 	letter 	concluded with 	the
following 	comment 	by Sinclair:
19

I 	think 	that we 	are making 	some progress
with 	regard 	to 	the 	effects 	of 	layoff 	and
negotiations 	and 	hope 	that we 	can continue
to do so.
When 	the parties met 	again on June 	26, 	the 	last 	session
before 	the 	layoffs 	became 	effective, 	the District 	took 	the
position 	that 	they were 	sticking 	to 	their 	counterproposal 	of
June 	9 	and 	that 	no 	additional 	notice 	or 	severance pay would 	be
agreed 	to.
At 	that 	time, 	OSEA modified 	its prior 	notice proposal 	and
asked 	for 	31 	days of 	notice. 	The 	District 	rejected 	this
proposal 	for 	fear 	it would 	set 	a precedent. 	According 	to
Sprague, 	the District 	took 	the position 	that 	"not one
additional minute would 	be given." 	The 	reason given, 	Sprague
said, 	was 	that 	"30 	days was 	required 	by law and 	that's 	all 	they
would 	give." 	Freeman 	and 	Patricia McMillon, 	an OSEA
negotiating 	team member, 	corroborated 	Sprague on 	this point.
McClanahan's 	testimony was 	that 	the 	31-day 	notice proposal
was 	rejected 	because 	the 	notices 	had 	been 	sent 	"under 	the 	code"
and 	she 	was 	afraid 	of 	jeopardizing 	the 	layoffs.
At 	the June 	26 	session, 	OSEA also modified 	its prior
severance 	pay proposal 	and 	sought 	$1.00 	severance pay per
employee. 	The District 	took 	the position 	that 	"not one penny
would 	be given because 	it would 	set 	a precedent."
Additionally, 	the 	District 	took 	the position 	that 	it did
not 	have 	a 	duty 	to 	bargain 	about 	the 	office of 	community
relations 	proposal. 	McMillon 	testified 	that 	the 	District 	also
20
I

refused 	to extend 	health 	and welfare 	benefits, 	and 	it was
adamant 	in 	refusing 	annuity payments 	after 	layoff.
During 	this 	session, 	OSEA again 	requested 	that 	the 	layoffs
be put 	off pending 	further 	negotiations. 	This 	request was
refused 	by 	the 	District.
McClanahan was 	asked 	if 	the 	District 	at 	any 	time during 	the
negotiations 	made 	any 	firm counteroffers 	to 	the 	OSEA proposals
other 	than 	those of June 	9. 	In response, 	she 	stated 	that 	there
had 	been various 	"exchanges 	across 	the 	table" 	and 	that 	she 	had
agreed 	to 	"seek 	the 	fullest 	extent of 	[her] 	ability to move."
She 	stated 	that 	the District 	had made 	a 	verbal proposal 	during
one 	of 	the June 	sessions 	to give 	severance pay 	in 	return 	for
giving 	up 	rehire 	rights. 	But when 	she 	was asked on
cross-examination 	to 	state 	how much 	the 	District 	had 	actually
offered 	in 	severance pay, 	she 	stated:
A. 	I don't think we made 	a dollar 	amount.
We 	offered 	to 	negotiate 	on 	severance 	pay.
Our 	first position was 	no 	severance pay; 	we
didn't want 	to 	negotiate 	over 	that. 	We
offered 	then 	to move 	the 	next 	session, 	we
said, 	'Okay, 	if you'd be willing to
•
negotiate 	away rehire 	rights, 	we'd be
willing 	to 	negotiate 	the 	severance pay.'
Another 	offer 	was made 	on 	severance pay 	in
exchange 	for 	notice. 	You decrease 	the
amount 	of 	notice 	you 	are 	asking 	for 	and we
would 	counter 	with 	seeking 	a monetary 	figure
comparable 	— 	a 	six-month 	period 	of 	notice
decrease 	six months 	severance pay. 	We 	never
came out with 	a specific 	figure, 	but we
offered 	to move 	in 	that direction.
Q. 	Ms. 	McClanahan, 	did you ever make an
offer 	that 	OSEA could 	have 	accepted 	of 	a
21

specific 	amount of 	severance 	pay 	in 	return
for 	no 	rehire 	rights? 	Yes or 	no?
A. 	To my 	recollection we 	never 	put 	a dollar
figure 	on 	severance 	pay on 	the 	table.
As 	discussed 	above, 	McClanahan's 	testimony 	regarding proposals
about 	notice were 	actually only offers 	to 	"explore" 	the 	issue.
Asked 	about 	any other 	firm offers made by 	the District, 	she
stated 	with 	regard 	to 	the 	retention 	of 	health 	and 	welfare
benefits:
I believe 	the offer 	was 	this way: 	'We will
check 	the 	cost 	figures 	to 	see what 	it 	costs
and 	see what 	the problems 	are 	in allowing
them 	to 	stay on.' 	And 	that was on 	the 	18th
and 	the 	offer 	was made 	that way.
She 	later 	stated 	that 	she 	felt 	the District would have
agreed 	to 	some 	retention of 	health 	and 	welfare 	benefits 	if 	OSEA
had 	dropped 	its 	demand 	for 	a 	31-day 	notice period. 	But 	there
is 	no evidence 	that 	this 	thought was ever 	conveyed 	to OSEA.
McClanahan's 	notes 	for 	June 	18 	indicate 	that 	the District
was 	"willing 	to 	reach 	a compromise" 	in 	the areas 	of 	"notice/for
severance 	pay" 	and 	exchanging 	benefits 	for 	a 	longer period of
time.
McClanahan 	testified 	as 	to other 	items 	she 	said 	were 	agreed
to by 	the parties. 	First 	she 	said 	that 	the parties agreed 	to
three 	or 	four 	items 	in 	the 	second group of proposals 	(those
concerning 	the 	effects 	on 	retained 	employees) 	submitted 	by OSEA
on May 	20. 	The parties, 	however, 	did not 	initial or 	sign off
on 	these proposals 	and, 	when 	further 	questioned 	about 	the
22

specifics of 	the 	agreement, 	her 	testimony was 	that 	the parties
had 	reached 	agreement 	on 	three 	or 	four 	items 	in 	the 	second
group of 	the District's June 	9 counterproposals, 	not OSEA's
May 20 proposal. 	However, 	she 	testified 	that 	the 	second group
of OSEA's proposals were 	the 	same 	as 	the 	second 	group of 	the
District's 	counterproposals.9
When McClanahan was 	asked 	for 	her 	opinion 	on what 	was
separating 	the parties on June 	26, 	she 	stated 	that 	it was
OSEA's 	"demand 	that we 	reach 	total 	agreement on 	the 	entire
package" 	and 	"[OSEA's] 	contention 	that you have more 	notice
than what 	the Education Code allowed 	. 	. 	. 	." 	According 	to
McClanahan, 	another 	obstacle 	to an 	agreement was OSEA's 	refusal
to 	accept her 	"rationale" 	that 	the 	already-announced 	layoffs
could 	not 	be 	jeopardized.
9Compare 	OSEA's proposals 	at pp. 	8-9 with 	the 	District's
proposals at pp. 	12-13. 	In the 	first 	item, 	OSEA proposed that
"[n]o 	employee's workload 	shall be 	increased" 	as 	a 	result of
the 	layoff. 	The District's proposal 	said 	that 	it would 	"make
every effort 	to 	re-distribute" 	workloads when 	"it determines"
an 	employee's 	workload 	has 	been 	"substantially 	increased" 	as 	a
result 	of 	the 	layoff. 	In 	the 	second 	item, 	OSEA proposed 	that
no employee 	be 	transferred 	as 	a 	result of 	the 	layoff. 	The
District made 	the 	same proposal, 	but added 	the proviso 	"except
pursuant 	to 	the 	application of 	the 	seniority rules." 	In 	the
third 	item, 	OSEA proposed 	that 	"no employee 	shall be 	requested
to work 	overtime" 	as a 	result of 	the 	layoffs. 	The District
proposed 	that 	"no 	employee 	shall be 	required 	to work 	mandatory
overtime 	in excess of 	twenty-five 	(25) 	hours" 	as a result of
the 	layoff. 	In 	the 	fourth 	item, 	OSEA proposed 	that 	"no
employee 	shall 	have 	their 	hours 	reduced" 	as a 	result of 	the
layoff. 	The District's proposal was 	the 	same, 	with 	the proviso
that 	an employee 	had 	the 	"right 	to voluntarily accept a
reduction 	in hours 	where 	offered."
23

On June 	27, 	McClanahan 	sent 	a memo 	to Deputy Superintendent
Mitchell 	regarding 	the 	status 	of 	the 	negotiations.10 The memo
recognized, 	among other 	things, 	that 	there had 	been no agreement
on 	economic 	items. 	McClanahan described 	OSEA's proposals 	on
economic 	items 	as 	"fairly substantial 	($90,000 worth)." 	In
connection 	with 	her 	description 	of 	OSEA's 	"fairly 	substantial"
proposals, 	she 	said OSEA was asking 	for, 	among other 	things, 	a
180-day notice period 	and 	180 days 	of 	severance pay.
McClanahan 	summed 	up 	the memo 	as 	follows:
In short, 	the District has maintained 	that:
1. 	The District 	cannot 	extend 	the 	notice 	as
the 	layoffs must go 	forth on June 	30,
1980, 	in order 	to achieve 	the maximum
savings possible;
2. 	The District 	cannot 	agree 	to 	severance
pay, 	annuity and 	health benefits 	for
laid-off 	employees;
3. 	The District will 	not 	agree 	to 	lay off
the most 	junior 	Clerk 	Typist 	in 	the
Community Relations 	Office 	in place of
the 	most 	senior 	community 	relations
assistant 	scheduled 	for 	layoff;
4. 	Continued 	bargaining 	on 	these 	economic
items 	is 	fruitless because 	the District
does 	not 	foresee 	a change 	in 	its
position.
Although 	McClanahan 	invited 	Mitchell 	to direct 	her 	to
engage 	in 	further 	negotiations, 	he did 	not do 	so and 	none
transpired.
10Pursuant 	to 	stipulation 	of 	the parties 	at 	the hearing,
this memo was 	introduced 	into 	evidence 	after 	the 	close of 	the
hearing.
24

Part of 	the 	instant 	charge 	is 	the 	allegation 	that 	the
District 	failed 	to bargain 	in good 	faith 	because McClanahan,
its chief 	negotiator, 	lacked 	sufficient authority. 	The
following 	facts 	relate 	specifically 	to 	this 	aspect of 	the
charge.
During 	one 	of 	the 	sessions 	in June, 	OSEA questioned 	the
authority of 	the District's 	representatives 	to bargain over 	the
economic 	aspects 	of 	the 	layoff proposals. 	The question was
raised 	because 	the District, 	while 	purporting 	to negotiate
about 	the 	economic 	impact of 	layoffs, 	was 	simultaneously 	taking
the 	position 	that 	it 	could 	not 	negotiate 	about 	economic
reopeners 	until 	the budget 	for 	the 	following year 	was 	known.
Immediately after 	this question was 	asked, 	according 	to 	the
testimony of Freeman and McMillon, 	the District's 	team
caucused. 	When 	it 	returned, 	according 	to McMillon, 	McClanahan
stated 	that 	she 	"had 	the 	authority 	to 	negotiate 	on 	items 	of 	an
economic 	nature 	that 	had 	been 	sunshined."
On cross-examination, 	McClanahan 	testified 	that 	she 	told
the OSEA negotiators on June 	26 	that 	she 	"had 	the 	authority 	to
bargain over 	all 	items 	that 	had 	been 	sunshined." 	Further
questioning 	established 	that, 	as of 	the 	end of June, 	the
District 	had 	not 	yet 	sunshined 	the 	OSEA 	layoff proposals 	of
May 	20 or 	the District's counterproposal of June 	9. 	In 	fact,
these 	proposals 	were 	never 	sunshined.
25

McClanahan 	changed 	her 	testimony 	to 	state 	that 	she 	"had 	the
authority 	to bargain over 	these proposals 	that were 	on 	the
table 	that 	had 	not 	been 	sunshined."
McClanahan 	later 	testified 	further 	as 	to 	her 	authority with
specific 	reference 	to economic 	items. 	In 	the context of this
testimony, 	she described 	her 	authority as 	follows:
I 	received 	no 	limitations 	on my 	authority
to bargain over 	all of 	the 	items 	that were
on 	the 	table, 	as 	long as 	they had been
sunshined 	and 	as 	long 	as 	they were
legal. . . .
Still 	later, 	she 	testified 	that 	she did 	not have 	authority
to 	reach 	agreement 	on 	economic 	issues 	until 	the 	District 	knew
what 	the budget would be. 	In fact, 	she admitted 	to being
instructed 	by Drs. 	Love 	and Mitchell between June 	18 	and
June 	26 	to 	reach 	no agreement 	on 	"large" 	and 	"major" 	economic
items 	until 	the 	budget 	was 	known.
When 	asked 	whether 	she 	had 	informed 	OSEA 	that 	these 	were
her 	instructions, 	she stated, 	"No, 	I don't recall ever 	stating
that was 	our 	position." 	However, 	she 	testified 	that OSEA
"knew" 	those 	were 	her 	instructions. 	When asked 	essentially the
same question 	in cross-examination, 	she 	stated 	that she had
informed OSEA at 	some point 	in 	the 	negotiations 	that 	she was 	so
limited 	because 	she 	did 	not 	yet 	know what 	the 	budget would 	be.
During 	her 	second 	day of 	testimony, 	McClanahan 	testified
that 	she 	had 	decided 	to declare 	impasse 	rather 	than continue
negotiations 	because:
26

I 	could 	not 	reach 	agreement 	that would
obligate 	us 	to a 	large monetary package 	and
we 	were 	still 	talking 	about 	a 	substantial
amount 	of money.
Asked 	whether 	she 	had 	the 	authority 	to 	settle 	for 	as 	little 	as
$1.00 	in 	severance pay, 	she 	stated:
I had 	the 	authority 	to 	settle 	with 	OSEA for
one 	dollar of 	severance pay 	if, 	in my
judgment, 	it were 	the 	right way to settle 	it.
She 	then 	stated 	that 	she 	did 	not 	have 	the 	authority 	to
settle 	for 	six months of 	severance pay 	(at about 	$15,000 per
month or 	$90,000), 	"because 	I did 	not have a good picture of
the 	budget." 	She 	testified 	that 	economic 	items 	became
"substantial" 	when 	they 	reached 	the 	$100,000 	level. 	She 	said
she 	did 	not 	know 	if 	she 	had 	authority 	in 	the 	$50,000 	range.
However, 	she 	then 	testified 	as 	follows:
Q. 	[By Mr. 	Sinclair]: 	Was there a figure
you 	felt 	you 	were 	free 	to 	reach 	agreement?
A. 	[By Ms. McClanahan]: 	If taken alone and
that would 	totally 	resolve 	the contract, 	I
believe 	I could have.
Q. 	What 	was 	that 	figure?
A. 	I 	don't 	know. 	Up 	to 	— 	anywhere 	up 	to
$100,000 	if 	I 	felt 	I could 	have 	reached 	it.
This 	figure was meant 	to apply only to the 	layoffs, 	not 	the
reopeners.11
11The 	parties 	began 	negotiations 	on 	the 	economic
reopeners 	in 	late 	July or 	the 	first 	week 	of August when 	the
27

DISCUSSION
In 	its 	exceptions, 	the District maintains 	that 	the notice
and 	timing 	of 	a 	layoff 	decision 	are 	nonnegotiable 	subjects.
Specifically, 	it 	refers 	to OSEA's proposal which 	sought a
180-day 	notice 	period 	and 	the 	proposal 	which 	sought 	to prohibit
layoffs of classified 	employees 	after May 15, 	1980.
The 	scope 	of 	representation 	under 	EERA 	is 	defined 	in
subsection 	3543.2(a) 	which provides:
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
the 	right 	to consult on 	the 	definition of
educational objectives, 	the determination of
the content of courses 	and 	curriculum, 	and
financial 	position 	became 	clear 	and 	the proposals 	were
sunshined.
On September 	15, 	1980, 	the parties 	reached agreement on the
reopener 	provisions of 	the 	contract. 	One provision of 	this
agreement 	concerned 	the 	withdrawal 	of 	all 	other 	proposals
previously 	submitted 	"during 	the 	course 	of 	these
negotiations." 	The 	hearing 	officer 	concluded 	that 	the parties
did 	not 	agree 	to withdraw 	the proposals 	relevant 	to 	layoff
effects 	and 	the 	District did 	not 	except 	to 	this 	finding.
28

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.
In Anaheim Union High School 	District 	(10/28/81) 	PERB
Decision No. 	177, 	the Board 	adopted 	a 	test 	for 	assessing
negotiability 	finding 	a 	nonenumerated 	subject 	to 	be 	within
scope 	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 mediatory
influence 	of 	collective 	negotiations 	is 	the 	appropriate means
of 	resolving 	the 	conflict, 	and 	(3) 	the employer's obligation 	to
negotiate 	would 	not 	significantly 	abridge 	its 	freedom 	to
exercise 	those 	managerial prerogatives 	(including 	matters 	of
fundamental policy) 	essential 	to 	the 	achievement of 	the
District's 	mission. 	A subject which 	satisfies 	the Anaheim test
may 	nonetheless 	be 	beyond 	the 	scope of 	representation 	if, 	in
accordance 	with 	section 	3540,12 provisions of 	the 	Education
12Section 	3540 	provides 	in pertinent part:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the 	Education
Code. . . .
29
V

Code 	evidence 	an 	intent 	to 	set 	an 	inflexible 	standard or 	ensure
immutable 	provisions.13
Prior 	decisions of 	this Board 	have concluded that, 	while 	the
decision 	to 	lay off employees 	is 	nonnegotiable, 	certain effects
of 	that 	decision 	are within 	the 	scope of 	representation.
Oakland 	Unified 	School 	District 	(11/2/81) 	PERB Decision
No. 	178; 	Solano County Community College District 	(6/30/82)
PERB Decision No. 	219; 	Newark 	Unified 	School District 	(6/30/82)
PERB Decision No. 	225.
Notice 	and 	timing 	of 	layoff 	are 	negotiable 	effects of 	the
decision 	to 	lay 	off 	and 	are 	not precluded 	by 	Education Code
provisions. 	Education Code 	section 	45117 	pertains 	specifically
to layoff notices. 	It provides:
(a) 	When, 	as a result of 	the expiration of
a 	specially 	funded 	program, 	classified
positions 	must 	be 	eliminated 	at 	the 	end 	of
any 	school 	year, 	and 	classified 	employees
will 	be 	subject 	to 	layoff 	for 	lack of 	funds,
the 	employees 	to be 	laid off 	at 	the 	end of
such 	school year 	shall 	be given written
notice 	on 	or 	before May 	29 	informing 	them of
their 	layoff 	effective 	at 	the 	end of 	such
school 	year 	and 	of 	their 	displacement
rights, 	if any, 	and reemployment rights.
However, 	if the 	termination date of any
specially 	funded 	program 	is 	other 	than
13See, 	for 	example, 	the majority's decision 	in
Newman-Crows 	Landing Unified 	School 	District 	(6/30/82) 	PERB
Decision No. 	223 	holding 	that 	the order 	of 	layoff 	and 	seniority
of 	classified 	employees 	are 	nonnegotiable 	because 	section 	45308
of 	the 	Education 	Code 	subjects 	classified 	employees 	to 	layoff
for 	lack 	of 	work 	or 	funds 	and 	sets 	the 	order 	of 	layoff 	by
length of 	service 	in a class.
30

June 	30, 	such notice 	shall be given 	not 	less
than 	30 	days prior 	to 	the 	effective 	date of
their 	layoff.
(b) 	When, 	as 	a result of a bona 	fide
reduction 	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.
This 	section 	shall 	apply 	to districts 	that
have 	adopted 	the 	merit 	system 	in 	the 	same
manner 	and effect 	as 	if 	it were a part of
Article 	6 	(commencing 	with 	Section 	45240) 	of
this 	chapter.
We 	find 	that 	OSEA's 	proposal 	seeking 	a 	180-day 	notice
period 	is 	not 	in 	conflict 	with 	this 	section 	because 	the 	30-day
notice 	demanded 	by 	subsections 	45117(a) 	and 	(b) 	requires 	only
that a minimum of 	30 	days 	notice 	be provided. 	Oakland, 	supra.
The provision 	in subsection 	45117(c), 	which permits 	the
employer 	to 	avoid 	notice, 	applies 	to certain circumstances
only. 	OSEA's proposal 	is 	reasonably 	read 	as 	an effort 	to gain
additional 	notice 	in circumstances 	not 	contemplated 	by
subsection 	45117(c).14
31
14	14see	see 	Oakland, 	supra, 	where 	the Board 	reviewed 	a proposal

In 	contrast, 	we 	find OSEA's proposal 	seeking 	to 	impose a
May 15 	deadline 	for 	layoffs 	to be outside 	the 	scope of
representation. 	The Education 	Code 	specifically permits 	the
employer 	to 	lay off classified 	employees 	for 	lack 	of work 	or
funds. 	OSEA's proposal prohibits 	all 	layoffs 	after 	the deadline
date 	and 	thus 	intrudes 	on 	the 	express 	statutory grant of
authority to 	the District. 	For 	that 	reason, 	it 	is
nonnegotiable.15
The 	District 	also 	disputes 	the 	negotiability of 	OSEA's
community 	relations 	unit proposal. 	We 	find 	it 	to be
nonnegotiable 	because, 	by 	seeking 	to direct 	the District 	to
target 	a 	specific position 	for 	layoff, 	OSEA's proposal 	interferes
with 	the 	decision 	to 	lay off. 	We 	are 	not 	otherwise persuaded 	by
similarly 	seeking 	notice 	beyond 	30 	days and 	found, 	as 	to
subsection 45117(c), that:
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.
15In 	its 	exceptions, 	the District 	argues 	that 	the hearing
officer's 	decision was 	at 	odds 	with 	the Board's 	decision 	in
Healdsburg Union High 	School 	District 	(6/19/80) 	PERB Decision
No. 	132, 	which held 	that a proposal 	limiting 	layoffs 	to the end
of 	the 	academic year was nonnegotiable. 	On May 19, 	1983, 	the
Supreme 	Court 	issued 	its 	decision 	in Healdsburg 	Union High
School District v. 	PERB 	(1983) 	33 Cal.3d 	850 affirming 	the
Board's 	test 	for 	negotiability as 	stated 	in Anaheim, 	supra, 	and
remanding 	the 	case 	to PERB 	for 	further 	proceedings 	consistent
with 	the Court's 	opinion. 	In 	rendering 	the 	instant decision,
we 	have 	followed 	the 	directive of 	the 	Court.
32

the 	hearing 	officer's 	conclusion 	that 	the 	purpose 	of 	the 	layoff
was 	to 	save 	money or 	that 	the 	essential managerial 	concern was
living 	within 	the 	budget. 	These 	facts do not 	suggest 	that
layoffs 	implemented 	due 	to budgetary difficulties 	are 	no
---t 	a
matter 	of 	educational 	or 	public policy consideration. 	To 	the
contrary, 	the 	District 	is 	specifically authorized 	to 	lay off
employees 	when a 	lack 	of 	funds 	so demands 	and 	it 	is 	assumed 	that
it 	will 	effectuate 	that 	decision with 	educational 	and public
policy 	considerations 	well 	in mind.
We 	are 	in 	agreement 	with 	the 	hearing 	officer's 	conclusion
that 	the District 	evidenced 	no 	real 	desire 	to 	reach 	agreement
and, 	based on 	the 	totality of circumstances, 	engaged 	in surface
bargaining.
Beginning 	in January, 	OSEA President 	Sprague made 	nearly
weekly 	requests 	to 	negotiate. 	The 	District 	delayed 	in 	scheduling
a 	negotiation 	session 	until April.
The 	record 	reveals 	that, 	after 	the meeting on April 	1, 	the
parties met on April 	21. 	Thereafter, 	the District's next
available 	date was May 	23, 	more 	than a month 	later. 	OSEA
protested 	this 	delay on April 	28, 	but 	the District did 	not
respond 	until May 	5. 	The meeting 	remained 	scheduled 	for May 	23
but 	was 	extended 	from 	three 	to 	six 	hours. 	OSEA presented 	its
written proposal 	on May 	20, 	but 	the 	District did 	not 	respond
during 	the May 	23 meeting. 	The 	District 	sent 	the 	layoff notices
on May 	27. 	In June, 	the parties met 	for 	two hours on June 9,
33

when 	the 	District 	arrived 	late 	and 	unprepared,16 on June 	11,
and 	on June 	18, 	when 	the District 	refused 	to postpone 	the 	layoffs
scheduled 	for June 	30. 	On June 	26, 	the parties met and agreed
that 	they were 	at 	impasse.
When considered 	as 	a whole, 	the 	hearing officer's conclusion
is 	supported 	by 	the 	record 	and 	is 	upheld. 	Rather 	than
demonstrating 	a good 	faith 	bargaining 	effort, 	the 	negotiating
process 	was 	manipulated 	by 	the 	District 	to delay 	and obstruct 	a
timely 	agreement.
The 	District 	contests 	certain 	factual 	findings 	regarding 	the
course 	of 	negotiations. 	It 	urges 	that we 	reject 	the 	hearing
officer's 	finding 	that 	substantive 	negotiations 	began on June 	9
and 	it 	argues 	that 	bargaining 	sessions 	were 	conducted 	on April 	8,
May 	7 	and May 	23.
The 	basis 	for 	the 	District's 	argument 	rests 	on McClanahan's
calendar 	summary. 	However, 	that 	document was prepared by
16In its 	exceptions, 	the 	District 	also 	charges 	that 	the
hearing 	officer's 	decision 	"is 	permeated 	with 	bias 	and
prejudice 	towards 	the 	District's 	chief 	negotiator." 	It 	asserts
that 	the 	hearing 	officer 	selectively 	focused 	on McClanahan's
testimony 	that her 	failure 	to appear 	at 	the June 	9 	session was
based 	on 	a 	"naive 	and 	stupid 	assumption." 	His 	conclusion 	that
the 	assumption was 	unwarranted, 	according 	to 	the District,
reveals his 	unwillingness 	to 	fairly consider 	all 	the 	evidence,
including 	McClanahan's 	inexperience.
The District's 	argument 	is without merit. 	The hearing
officer 	found 	that 	McClanahan's 	assumption 	(that 	OSEA did 	not
want 	to continue 	negotiations 	because 	it 	had 	filed 	an 	unrelated
unfair 	practice 	charge) 	was 	"completely 	unwarranted." 	This
conclusion 	and 	the 	citation 	to McClanahan's 	testimony 	fail 	to
evidence bias.
34

McClanahan's 	secretary 	and, 	according 	to her 	testimony,
contained 	two 	errors. 	The 	errors were 	not 	identified. 	More
importantly, 	however, 	there 	is 	no 	testimony with 	regard 	to what
transpired 	at 	these meetings. 	Neither 	McClanahan 	nor 	any other
witness 	testified 	that 	substantive 	negotiations 	regarding
layoffs 	in 	fact 	took place on 	these dates.
The 	District 	also disputes 	the 	hearing 	officer's 	conclusion
that 	no progress 	was made 	during 	the 	negotiating 	session of
May 	23. 	The District 	correctly 	states 	that 	no evidence 	appears
in 	the 	record 	as 	to 	the 	substantive 	aspects of 	that meeting.
We 	find, 	therefore, 	that 	the hearing officer's 	finding of 	"no
progress," 	while 	technically 	inaccurate, 	was nonetheless
nonprejudicial. 	The appropriate conclusion, 	that 	the 	record
failed 	to demonstrate what, 	if any, 	progress was made during
the May 	23 	session, 	would 	not 	aid 	the District 	in 	refuting 	the
allegation 	that 	it did 	not 	in 	fact bargain 	in good 	faith.
The District 	also 	contests 	the 	hearing 	officer's 	finding
that 	its 	counterproposal was 	not 	discussed 	at 	the 	negotiating
session on June 	9. 	McClanahan 	testified 	that 	the 	District 	team
caucused 	to prepare 	its 	counterproposal 	and 	then 	returned 	and
"began bargaining on 	it." 	Freeman's 	testimony, 	however, 	was
that 	he 	did 	not 	remember 	a 	lengthy discussion of 	the 	District's
counterproposal. 	The 	hearing 	officer 	failed 	to 	credit
McClanahan's 	testimony 	because 	there 	was 	no other 	evidence 	that
any discussion 	occurred. 	Since 	the 	record 	shows 	that 	the
35
I

session 	began 	at 	10:00 	a.m. 	and 	the 	District 	team 	returned 	with
their 	counterproposal 	at 	12:15 p.m., 	and 	since McClanahan's
records 	show a 	two-hour meeting, 	it was 	reasonable 	for 	the
hearing 	officer 	to 	conclude 	that 	the 	session 	ended 	after 	the
counterproposal was presented. 	Moreover, 	even 	if 	the hearing
officer's 	finding 	is not affirmed, 	the 	fact 	that 	the parties
may 	have 	discussed 	the 	counterproposals 	does 	not 	refute 	the
remainder 	of 	the 	record 	supporting 	bad 	faith 	bargaining.
The District 	argues 	that 	the 	list of 	laid 	off 	employees was
not 	available 	until 	after May 9. 	Prior 	to that 	time, 	the
information 	was 	preliminary 	and 	subject 	to 	verification 	and
cross-checking. 	OSEA received 	the 	list 	naming 	the 	17 	employees
to 	be 	laid 	off 	on June 	9.
Loma Reno 	testified 	about preparation of 	the 	list. 	She
stated 	that 	she worked 	on Saturday, 	May 	9, 	to prepare an
accurate 	list 	and 	that 	it was 	an 	extremely complicated
procedure 	involving 	seniority 	and 	bumping 	rights. 	The 	notices
to employees were sent on Tuesday, 	May 27, 	however, 	and OSEA
did 	not 	receive 	the 	list 	until June 	4. 	Although 	she 	testified
that 	the 	District 	never 	considered 	deliberately 	delaying 	the
release of 	information 	to OSEA, 	she 	stated 	that, 	in her
opinion, 	it would 	not 	be 	a good personnel practice 	to disclose
the 	names 	of 	individuals 	until 	absolutely certain as 	to 	the
persons 	affected.
36
.

Based 	on 	this 	testimony, 	the 	hearing 	officer 	concluded 	that
a 	fairly 	accurate 	list 	was 	available 	on May 	9, 	and 	that 	the
District 	deliberately 	delayed 	in 	releasing 	the 	list 	based 	on
its 	erroneous view 	that 	the 	names 	were 	confidential. 	The
record 	provides 	ample 	support 	for 	the 	hearing 	officer's 	finding
regarding 	the 	date 	when 	the 	information 	was 	available.17
The District 	raises 	another 	issue 	concerning 	the 	requested
information 	and 	the 	availability of 	the 	list. 	It 	asserts 	that
since OSEA was provided 	with 	a 	list of positions 	and 	sites of
the 	layoff on April 	30, 	its obligation 	to provide 	information
to 	the 	bargaining 	agent was 	satisfied. 	This 	argument 	is
rejected. 	As 	the 	exclusive 	representative, 	OSEA was 	entitled
to all 	necessary 	information. 	Stockton Unified School 	District
(11/3/80) 	PERB Decision No. 	143. 	A list 	of 	the names 	is
different 	from a 	list of positions. 	In negotiations, 	names
might 	be 	valuable 	in 	a manner 	which 	the 	information on 	targeted
positions 	would 	not 	be. 	The 	hearing 	officer 	correctly
17	17The	The 	District 	disputes 	the 	hearing 	officer's 	reference
to McClanahan's 	letter of May 	5 	in which 	she 	told OSEA that 	the
names 	of 	laid off 	employees, 	as 	requested 	by OSEA, 	would be
mailed 	"on or 	about Friday, 	May 	2, 	1980." 	The hearing officer
relied 	on 	this 	inconsistency 	as 	one 	factor 	among 	many 	to
support his 	conclusion 	that 	the District 	acted 	in 	bad 	faith 	in
refusing 	to 	supply 	this 	information. 	We 	reject 	the 	District's
argument 	that 	the 	date was 	a typographical error. 	No basis 	for
that 	conclusion exists. 	The 	fact 	that 	the 	information was 	not
available 	on May 	2 	does 	not disturb 	the 	conclusion 	drawn 	by 	the
hearing 	officer. 	The 	discrepancy 	in 	the 	date 	can 	reasonably 	be
perceived 	as 	evidence 	that McClanahan's 	representation 	was
disingenuous.
37

concluded 	that 	the manner 	in which 	the 	District 	responded 	to
OSEA's 	information 	requests 	suggested 	bad 	faith.
The 	District maintains 	that 	its 	counterproposals 	were not
predictably 	unacceptable 	in 	spite 	of 	the 	fact 	that 	they closely
followed 	Education Code 	requirements. 	Examination of 	the
counterproposals 	support 	the 	hearing 	officer's 	conclusion 	that
the 	District's 	counterproposals may be 	reviewed 	as 	evidence of
its 	bad 	faith.
As 	outlined 	in 	footnote 	9, 	supra y 	the District's
counterproposals made 	little 	concession 	to OSEA's 	demands.
Thus, 	while 	the District 	is not 	required 	to offer more 	than
demanded 	by 	the 	Education 	Code 	(see 	Oakland 	Unified 	School
District 	(12/29/82) 	PERB Decision No. 	275), 	the content of the
proposals, 	when viewed 	in 	the context of 	the 	negotiating
process, 	is one 	aspect demonstrating 	the District's bad 	faith.
The 	record 	also 	belies 	the 	District's 	assertion,
notwithstanding 	the 	testimony of McClanahan, 	that OSEA's
insistence 	on 	an 	entire 	package 	agreement prevented 	the 	parties
from reaching 	agreement. 	On June 	18, 	the District offered 	to
"explore" 	some 	severance pay 	in exchange 	for 	rehire 	rights 	and
offered 	to consider 	a 	60-day notice period 	if 	30 	days were
waived. 	While 	these 	"offers" 	did 	not amount 	to 	firm proposals,
OSEA was 	reasonably 	led 	to 	believe 	that 	some movement on 	the
part of 	the District was possible. 	When 	the parties 	next met
on June 	26, 	however, 	the District 	returned 	to 	its position per
38

its 	counterproposals. 	It 	rejected OSEA's offer 	of 	a 	31-day
notice period 	and 	one 	dollar 	in 	severance 	pay. 	This 	bargaining
scenario, 	played 	against 	the 	District's 	imposed 	deadline of
June 	30, 	smacks of bad 	faith on 	the part of 	the District. 	The
hearing 	officer's 	decision 	is 	upheld.
The 	District 	takes 	exception 	to 	the 	hearing officer's
finding 	of 	bad 	faith 	with 	regard 	to 	its posting 	of 	the
community relations unit proposal. 	It argues 	that, 	while
McClanahan 	was 	incorrectly 	advised 	as 	to 	sunshining
obligations, 	the posting was one 	isolated 	incident of 	truthful,
noncoercive 	management 	communication.
The District's argument, 	as OSEA states 	in 	its 	response,
misses 	the point. 	The 	community 	relations proposal was 	not
posted 	as 	directed 	by 	the 	District's 	administrative 	bulletin
8095. 	McClanahan's 	testimony was 	that 	new counterproposals
were posted 	in 	the glass-enclosed 	bulletin board, 	but 	the
community 	relations 	item was 	not 	a counterproposal. 	The
District's 	failure 	to 	sunshine 	any of OSEA's other 	proposals
clearly 	suggests 	that 	it posted 	this particular 	proposal
because 	it 	sought 	to embarrass 	the organization. 	The Board
upholds 	the 	hearing 	officer's 	conclusion 	that 	the 	District
posted 	this 	proposal 	to discredit OSEA by 	announcing 	that 	it
sought 	to preserve 	the 	employment of Freeman, 	a 	union grievance
officer, 	at 	the expense of a 	typist-clerk.
39

The 	hearing 	officer 	found 	that 	the 	District's 	failure 	to
sunshine 	OSEA's proposals 	evidenced 	bad 	faith. 	The 	District
argues 	that 	it did 	so 	in 	response 	to OSEA's 	request.
Evidencing 	this 	request, 	according 	to the District, 	is
Sinclair's 	letter 	of April 	22 	in which 	he 	wrote 	"bargaining on
the effects of the 	layoffs 	. 	. 	. 	could go forward prior 	to
sunshining."
This 	statement 	in 	no way 	indicates 	that 	OSEA requested 	its
proposals not be 	sunshined. 	Indeed, 	the District's obligation
to 	sunshine proposals 	cannot 	be waived 	by 	the 	employee
organization. 	Los 	Angeles 	Unified 	School 	District 	(12/30/80)
PERB Decision No. 	152. 	The hearing officer did not err 	in
concluding 	that 	the District's 	failure 	to 	satisfy 	its
obligation 	to 	sunshine 	suggests 	a 	lack 	of good 	faith.
With 	regard 	to 	two points, 	the Board 	reverses 	the hearing
officer's 	conclusions. 	The 	first concerns 	the hearing
officer's 	finding 	that, 	at 	the 	negotiating 	session conducted on
June 	11, 	McClanahan 	threatened 	to cancel 	further 	negotiations
if 	OSEA 	filed 	another 	unfair 	practice 	charge. 	While 	noting
that 	McClanahan 	testified 	that 	her 	threat 	to cancel was made
because 	the OSEA chief 	negotiator 	called 	Reno a 	liar, 	the
hearing officer 	found 	that, 	for 	several 	reasons, 	her 	testimony
was 	not 	believable. 	The 	hearing 	officer 	referred 	specifically
to McClanahan's 	notes 	which 	she 	read 	into 	the 	record:
"Tom 	threatened 	to 	file 	another 	unfair 	if 	I
did 	not 	respond 	within 	two days 	to his
40

May 	28th 	letter. 	I 	responded 	that 	I will
not meet 	if he continues 	to threaten me. 	We
are 	. . . " 	I 	don't 	know, 	I've 	written over
something 	— 	could 	be 	"refusing 	or
considering 	refusing 	to meet Wednesday 	in
light of 	the 	threats."
We 	find 	that, 	while 	it 	is 	significant 	that McClanahan's
contemporaneous 	notes 	do not 	refer 	to 	the 	alleged 	name-calling,
the 	hearing 	officer's 	conclusion 	is 	not well 	founded. 	The
record 	is 	too 	ambiguous 	to determine 	what 	actually 	transpired.
Clearly, 	McClanahan could 	not 	cancel or 	threaten 	to cancel
bargaining 	sessions 	in 	response 	to 	the 	filing 	of 	unfair
practices. 	On 	the other 	hand, 	the District's 	negotiator could
have 	simply 	refused 	to 	negotiate 	in 	the 	face 	of 	threats passed
across 	the 	bargaining 	table. 	In our 	opinion, 	McClanahan could
have 	legitimately 	told 	Sinclair 	that 	she 	was 	at 	the 	table 	to
negotiate 	and, 	while OSEA was 	entitled 	to pursue 	unfair
practice charges 	if 	it believed violations 	to have occurred,
she 	would 	conclude 	the 	session 	if 	he persisted 	in 	threatening
to 	file 	charges 	unless 	bargaining 	concessions 	from 	the 	District
were 	forthcoming. 	In sum, 	the 	line 	between unlawfully
retaliating 	against 	OSEA 	for 	engaging 	in protected 	activity 	and
lawful 	tactics 	during 	bargaining 	sessions 	is difficult 	to draw
with 	such 	scarce 	and 	ambiguous 	testimony.
We 	are 	also 	in disagreement 	with 	the 	hearing 	officer's
conclusion 	that 	McClanahan 	lacked 	sufficient 	authority 	to
engage 	in 	good 	faith 	negotiations 	on 	the District's 	behalf.
Undeniably, 	McClanahan's 	testimony was 	highly contradictory
41

and, 	as 	the 	hearing 	officer 	concluded, 	demonstrated 	that she
had 	no clear 	understanding 	of 	the 	extent of 	her 	authority.
However, 	her 	inability 	to 	articulate 	the parameters of her
authority 	is not 	significant unless 	there 	is a showing 	that her
conduct 	at 	the 	table proved 	to be 	an obstruction 	to 	the
bargaining 	process.
As 	the 	hearing 	officer 	correctly 	stated, 	a 	negotiator 	may
legitimately discuss 	issues 	and 	offer 	proposals 	that must
thereafter 	be 	ratified 	by 	the principal. 	(Fry Roofing 	Company
v. 	NLRB 	(9th Cir. 	1954) 	216 F.2d 	273 	[35 LRRM 2009].) 	It 	is
the 	absence 	of 	that 	amount 	of 	authority which 	delays 	and
thwarts 	the 	bargaining process 	that 	evidences 	bad 	faith
bargaining. 	Evidence 	that 	the 	negotiator's 	limited power 	was
intended 	to or 	was 	used 	to 	foreclose 	the 	achievement of 	any
agreement 	is lacking. 	Capital Transit Co. 	(1953) 	106 NLRB
169. 	Neither 	the 	content of 	the 	counterproposals 	nor
McClanahan's 	reluctance 	to make 	even 	small concessions
demonstrates 	that 	she 	lacked 	the 	authority 	to 	reach 	agreement
on 	the 	District's 	behalf. 	There 	is 	no evidence 	that 	the
parties' 	ability 	to 	reach 	agreement was 	thwarted by delays
caused 	by McClanahan's 	need 	to question 	the 	District's
officials 	or 	to get 	clarification on 	the District's position
regarding 	OSEA's proposals. 	McLean-Arkansas 	Lumber 	Company,
Inc. 	(1954) 	109 NLRB 1022. 	In short, 	while 	the 	record perhaps
reveals McClanahan 	to be 	an 	unsophisticated or 	incompetent
42

negotiator, 	the 	evidence 	falls 	short of 	demonstrating 	that 	the
District 	administrators 	vested 	McClanahan 	with 	insufficient
authority 	to 	act 	on 	their 	behalf.
In 	spite 	of 	these 	two points 	of divergence with 	the hearing
officer, 	we 	find 	sufficient evidence 	to affirm his conclusion
that 	the 	District 	failed 	to 	engage 	in good 	faith 	bargaining
with 	OSEA.18
As discussed 	above, 	we 	uphold 	the 	hearing 	officer's 	finding
that 	the District 	violated subsections 3543.5(a), 	(b) 	and 	(c)
by 	failing 	to 	negotiate 	in good 	faith 	with OSEA about 	the
effects 	of 	the 	decision 	to 	lay 	off 	classified 	employees.19
18TThe	he 	District 	disputes 	the 	hearing 	officer's 	conclusion
that, 	even 	if 	the 	totality of circumstances did 	not demonstrate
surface 	bargaining, 	the 	unilateral 	implementation of 	the
layoffs while 	negotiations 	were 	in progress 	constitutes a per
se violation. 	In the District's view, 	it satisfied 	its
responsibility 	by 	notifying 	OSEA of 	the 	decision 	to 	lay off 	and
by 	bargaining 	to 	a point where 	the parties agreed 	they were 	at
impasse.
18
The 	facts reveal, 	however, 	that the regional director
failed 	to 	certify 	that 	the parties 	were 	at 	impasse 	in 	spite of
their 	agreement 	to the contrary. 	More 	importantly, 	there can
be 	no genuine 	impasse where 	the parties' 	negotiations have
stalemated as 	a 	result of bad 	faith negotiations. 	Mt. 	San
Antonio Community College 	District 	(12/30/81) 	PERB Order
No. 	Ad-124; 	Schuck Component Systems 	(1977) 	230 NLRB 838 	[95
LRRM 1607]. 	Because 	the District did 	not engage 	in good 	faith
negotiations with OSEA, 	it never 	reached genuine 	impasse, 	the
point 	at which 	it 	would 	have 	been 	free 	to 	act 	unilaterally and
fully 	implement 	its 	layoff 	decision. 	See Modesto City 	Schools
(3/8/83) 	PERB Decision No. 	291. 	We 	therefore affirm the
hearing 	officer's 	conclusion 	based 	on 	a 	finding 	that 	no genuine
impasse 	existed 	at 	the 	time 	the 	employees 	were 	laid 	off.
19In 	so holding, 	we 	affirm 	the 	hearing officer's
conclusion 	that 	OSEA did 	not 	waive 	its 	right 	to 	negotiate
43

The District's 	final 	exception 	concerns 	the 	remedy of
reinstatement 	and 	back 	pay of 	the 	five 	employees 	laid 	off 	as
ordered 	by 	the 	hearing 	officer. 	The 	thrust of 	the 	District's
argument 	is 	that 	the 	remedy 	ordered 	does 	not 	comport with 	the
District's obligation. 	The 	failure 	to bargain 	the effects of
the 	layoff, 	according 	to the District, 	does not warrant
reinstatement 	of 	laid 	off 	employees 	because 	the 	District was
never 	obligated 	to negotiate 	the 	decision 	to 	lay off.
In 	considering 	the 	appropriate 	remedy, 	subsection 	3541.5(c)
permits 	the 	Board 	to direct 	an offending 	party 	to cease 	and
desist 	and 	"to 	take 	such 	affirmative 	action, 	including 	but 	not
limited 	to 	the 	reinstatement 	of 	employees with 	or 	without 	back
pay, 	as will effectuate 	the policies of 	this chapter."
layoff 	effects. 	While 	the contract does contain a detailed
layoff 	article 	and 	a broadly worded 	zipper 	clause, 	the District
agreed 	at 	the 	outset 	to negotiate 	over 	OSEA's 	layoff
proposals. 	The 	statement 	read 	by McClanahan at 	the June 	18
negotiating 	session 	referred 	to 	various 	collective 	bargaining
provisions 	and 	claimed 	the 	District 	"had 	fully 	negotiated 	and
reached 	agreement 	on 	the 	topics of 	layoffs 	and 	effects 	of
layoff. 	. . . " 	However, 	it also gave 	assurances 	that 	it would
"continue 	to 	negotiate 	in good 	faith 	. . . 	in 	such 	areas 	as
identity and 	number of 	layoffs, 	severance pay, 	location of
layoffs and other 	rights of the employees." 	Article XXVI, 	the
zipper 	clause, 	precluded 	bargaining 	over 	any provision 	"except
by mutual consent," 	and Article XXXI 	set 	forth 	the duration of
the 	agreement 	subject 	to 	the parties' 	mutual agreement to alter
or 	amend 	or 	either 	party's 	desire 	to modify 	if 	noticed 	by
April 	1. 	Based 	on 	the 	District's 	conduct 	and 	on 	the 	foregoing
contract provisions, 	we perceive 	the District 	to have 	agreed 	to
negotiate 	the 	layoff effects 	with 	OSEA and will 	not 	now be
heard 	to argue 	that 	it was 	under 	no obligation 	to negotiate
because 	of 	its 	contract 	with OSEA.
44

Thus, 	as 	a preliminary matter, 	nothing 	in the 	language of
EERA precludes 	the 	reinstatement 	remedy. 	Reinstatement 	and
back 	pay 	may 	be 	the 	appropriate 	remedy 	for 	the 	employer's
failure 	to 	negotiate 	the 	decision 	itself 	or 	the 	failure 	to
negotiate 	the 	effects 	of 	that decision provided 	that 	so
ordering 	will 	effectuate 	the 	purposes 	of EERA. 	The 	statute
poses 	no obstacle; 	the District may be ordered 	to 	reinstate 	and
provide 	back 	pay 	to 	those 	employees 	who were 	laid off 	without
first 	granting 	OSEA the 	opportunity 	to 	negotiate 	the 	effects 	of
that 	layoff 	decision.
The 	hearing 	officer 	cites 	several PERB decisions 	as
evidence 	that 	this Board 	has 	issued 	status quo 	ante 	remedies 	in
cases 	involving 	unilateral 	changes 	in negotiable matters 	other
than layoffs. 	While 	this 	assertion 	is 	correct, 	the cited 	cases
involved 	unilateral changes 	of 	negotiable 	subjects. 	San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94 and
San 	Francisco Community College District 	(10/12/79) 	PERB
Decision No. 	105 involved changes 	in employees' 	wages; 	Sutter
Union High School District 	(10/7/81) 	PERB Decision No. 	175 and
North 	Sacramento School District 	(12/31/81) 	PERB Decision
No. 	19320 involved 	unilaterally 	changed 	hours. 	Oakland
2 0 But 	see 	footnote 	5, 	page 	5 of Nor th Sacramento where
the Board 	suggests 	that 	the District 	still violated 	the Act
even 	if 	what 	it 	did was 	a layoff 	rather 	than 	a reduction 	in
hours 	because 	it had 	the obligation 	to negotiate 	the 	effects of
the 	layoff.
45

Unified School District 	(4/23/80) 	PERB Decision No. 	126
involved 	unilateral changes 	of 	health 	and 	welfare 	benefits.
See 	also Lodi 	Unified 	School 	District 	(9/29/82) 	PERB Decision
No. 	239 where 	the Board 	ordered 	the 	employer 	to grant all
affected 	employees 	the 	right 	to 	take 	vacation 	time 	off 	in order
to 	restore 	the 	status quo 	ante 	and 	to 	remedy 	the 	unilaterally
altered 	vacation 	benefits.
In certain situations, 	however, 	the Board has 	failed 	to
order 	reinstatement or 	other make 	whole 	remedies 	and 	has 	framed
a 	more 	limited 	remedy 	borrowed 	from 	the National 	Labor
Relations Board 	in Transmarine Navigation Corp. 	(1968) 	170 NLRB
389 	[67 	LRRM 	1419].
Where 	the 	employer 	is 	privileged 	to make 	a particular
unilateral 	change 	and 	is 	obligated 	to 	negotiate 	only 	as 	to 	the
effects of 	that 	decision, 	the Board 	has ordered 	remedial 	action
short 	of 	restoration of 	the 	status quo. 	Moreno Valley Unified
School District 	(4/30/82) 	PERB Decision No. 	206; 	South Bay
Union School District 	(4/30/82) 	PERB Decision No. 	207 and
(8/19/82) 	PERB Decision No. 	207a; 	Rialto Unified School
District 	(4/30/82) 	PERB Decision No. 	209; 	Holtville Unified
School District 	(9/30/82) 	PERB Decision No. 	250. 	The
reconsideration 	decision 	in 	South 	Bay 	specifically 	concludes
that 	the 	refusal 	to 	negotiate 	the 	effects of 	a 	nonnegotiable
decision 	warrants 	a 	more 	limited 	back 	pay 	award.
46

Thus, 	although we 	find 	nothing 	in relevant case 	law or 	in
statutory provisions 	which precludes 	a 	reinstatement 	or 	back
pay 	award, 	we 	are 	disinclined 	to 	order 	the 	remedy 	advanced 	by
the hearing officer 	in 	the 	instant case. 	We oppose 	ordering
the District 	to 	reinstate 	the 	five 	laid-off 	employees 	because
such 	an 	order 	would 	accomplish 	more 	than 	the District 	was 	ever
required 	to 	do. 	Since 	the District was 	never 	obligated 	to
negotiate 	with OSEA as 	to 	its 	decision 	to use 	layoffs 	to cure
the budget 	deficit, 	it 	should not now be made 	to 	rescind 	that
action 	through 	the process of 	reinstatement. 	Rather, 	we 	are
ordering 	the 	District 	to 	compensate 	those 	employees 	improperly
laid off 	by 	the District 	for 	a period of 	time 	beginning 	ten
days 	from 	service 	of 	this 	Decision 	and 	continuing 	until 	the
District 	satisfies 	its 	obligation 	to bargain 	in good 	faith with
OSEA or 	until 	the Association 	fails 	to make 	a 	timely 	request 	to
negotiate 	or 	fails 	to negotiate 	in good 	faith.
ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions of 	law and
the 	entire 	record 	in this case, 	it 	is hereby ORDERED that 	the
Oakland Unified 	School 	District 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Violating subsections 3543.5(a), 	(b) 	and 	(c) 	of
the Educational Employment Relations Act 	by 	failing 	to meet 	and
negotiate 	in good 	faith with 	the 	exclusive 	representative 	on
matters 	within 	the scope of 	representation, 	as 	defined 	by
section 3543.2;
47

2. 	Denying 	the Oakland 	School Employees Association
its 	right 	to 	represent 	its 	unit members 	by failing 	and 	refusing
to meet 	and 	negotiate 	in good 	faith 	about matters 	within 	the
scope of 	representation; 	and
3. 	Interfering with 	the 	employees' 	right 	to 	select
an exclusive 	representative 	and 	participate 	in 	its 	activities
by 	failing 	and 	refusing 	to meet 	and 	negotiate with 	the
exclusive 	representative 	on matters 	within 	the 	scope 	of
representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS:
1. 	Upon 	request, 	bargain with 	the Association over
the 	effects 	of 	the 	decision 	to 	lay off 	the 	employees 	and 	pay 	to
the 	affected 	employees 	compensation 	at 	the 	rate 	of 	pay which
reflects 	the 	pro 	rata 	share 	of 	their 	salary 	for 	the 	period
beginning 	ten days 	from 	the 	date 	of 	service 	of 	this 	Decision
until 	the 	occurrence 	of 	the 	earliest 	of 	the 	following
conditions: 	(a) 	the 	date 	the District 	negotiates 	an agreement
with 	the Association 	over 	the 	effects 	of 	the 	decision 	to 	lay
off 	these employees; 	(b) 	a bona 	fide 	impasse 	is declared;
(c) 	the 	failure 	of 	the Association 	to 	request 	negotiations
within 	ten days of 	service of 	this Decision or 	to 	commence
negotiations 	within 	four 	days of 	the 	District's notice 	of 	its
desire 	to negotiate with 	the Association; 	or 	(d) 	the subsequent
failure 	of 	the Association 	to negotiate 	in good 	faith. 	In no
event 	shall 	the 	sum paid 	to 	any 	of 	these 	employees 	exceed 	the
48

pro 	rata 	amount 	they 	would 	have 	earned 	from 	the 	date 	on 	which
the 	District 	instituted 	the 	layoff 	to 	the 	time 	they 	secured 	or
refused equivalent employment elsewhere. 	However, 	in no 	event
shall 	this 	sum be 	less 	than 	these 	employees 	would have 	earned
for 	a 	two-week 	period 	at 	the 	rate of 	pay 	in effect 	when
employed 	prior 	to 	the District's 	unilateral action.
2. 	Within 	thirty 	(30) 	workdays of 	service of 	this
Decision, 	post 	copies 	of 	the 	appended Notice 	to Employees
(Appendix) 	at 	all 	school 	sites 	and 	all work locations 	where
notices 	to 	employees 	are 	customarily placed. 	Such 	posting
shall 	be maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays and 	reasonable 	steps 	shall 	be 	taken 	to 	insure 	that
such Notices 	are 	not 	reduced 	in size, 	defaced, 	altered or
covered 	by 	any material.
3. 	Notify 	the 	San Francisco 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board 	in 	writing 	within 	forty-five
(45) 	workdays 	following 	the 	service of 	this 	Decision of 	the
steps 	taken 	to comply with 	this Order.
Members 	Burt 	and Tovar 	joined 	in 	this 	Decision.
49

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	NOTICE 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case 	No. 	SF-CE-476 	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 	subsections 	3543.5(a), 	(b) 	and
(c) 	of 	the Educational Employment Relations Act. 	Specifically,
the 	District 	was 	found 	to 	have 	unlawfully 	failed 	to 	negotiate
in 	good 	faith 	with 	the 	Oakland 	School 	Employees 	Association
about 	the 	effects 	of 	the 	decision 	to 	lay off 	certain 	classified
employees 	in June 	198 0.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been ordered 	to 	post
this Notice 	and 	will 	abide 	by 	the 	following. 	We 	will:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	Oakland 	School Employees Association, 	as
the 	exclusive 	representative 	of 	employees 	in 	a 	unit 	of
classified 	employees;
(b) 	Denying 	the 	Oakland 	School Employees Association
its 	rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations
Act, 	including 	its 	right 	to 	represent 	bargaining 	unit members
in 	negotiations 	with 	the District; 	and
(c) 	Interfering 	with 	employees 	because 	of 	the
exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF 	THE ACT:
In 	accordance 	with 	the 	Order 	of 	the 	Public 	Employment
Relations 	Board, 	compensate 	all 	laid 	off 	classified 	employees
(white collar unit).
Dated: 	OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST 	NOT 	BE REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.