Kern Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0337E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KERN COMMUNITY COLLEGE CTA/NEA,
C h a r g i n g P a r t y ,
v.
KERN COMMUNITY COLLEGE DISTRICT,
R e s p o n d e n t .
Ca s e N o . L A - C E- 1 3 00
PE RB De c is i o n No . 3 37
A u g u s t 1 9 , 1 9 83
A p p e a r a n c e s : A . E u g e n e H u g u e n i n , J r . , A t t o r n e y f o r t h e K e r n
C o m m u n i t y C o l l e g e C T A / N E A ; R o n a l d D . W e n k a r t , A t t o r n e y ( S c h o o l s
L e g a l S e r v i c e ) f o r t h e K e r n C o m m u n i t y C o l l e g e D i s t r i c t .
B e f o r e G l u c k , C h a i r p e r s o n ; T o v a r a n d B u r t , M e m b e r s .
d e c i s i o n
T O V A R , M e m b e r : T h i s c a s e i s b e f o r e t h e P u b l i c E m p l o y m e n t
R e l a t i o n s B o a r d ( P E R B o r B o a r d ) o n e x c e p t i o n s f i l e d b y K e r n
C o m m u n i t y C o l l e g e C T A / N E A ( A s s o c i a t i o n ) a n d b y t h e K e r n
C o m m u n i t y C o l l e g e D i s t r i c t ( D i s t r i c t ) t o t h e a t t a c h e d p r o p o s e d
d e c i s i o n o f a P E R B a d m i n i s t r a t i v e l a w j u d g e ( A L J ) .
T h e A L J f o u n d t h a t t h e D i s t r i c t h a d v i o l a t e d s u b s e c t i o n s
3 5 4 3 . 5 ( b ) a n d ( c ) o f t h e E d u c a t i o n a l E m p l o y m e n t R e l a t i o n s
A c t ( E E R A o A c t ) 1 b y r e f u s i n g t o n e g o t i a t e w i t h t h e
A s s o c i a t i o n o n t h e e f f e c t s o f t h e D i s t r i c t ' s d e c i s i o n t o l a y o f f
e i g h t c e r t i f i c a t e d e m p l o y e e s . T h e D i s t r i c t e x c e p t s t o t h i s f i n d i n g ,
r
1 T h e E E R A i s c o d i f i e d a t G o v e r n m e n t C o d e s e c t i o n 3 5 4 0
e t s e q . A l l s t a t u t o r y r e f e r e n c e s h e r e i n a r e t o t h e G o v e r n m e n t
* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB D ecision No.
2855 * * *

while the Association excepts to the ALJ's refusal to order
reinstatement and full back pay to the employees who were laid
off .
For the reasons which follow, the Board affirms the ALJ's
finding that the District violated subsections 3543.5 (b)
and (c). We also affirm the proposed remedy.
FACTS
Neither party has taken exception to the ALJ's findings of
fact. Upon our review of the record, we find the statement of
facts set forth in the proposed decision to be free of
prejudicial error. On this basis we adopt the factual findings
of the ALJ as the findings of the Board.
DISCUSSION
Initially, the District argues that, regardless of the
propriety of its actions in this matter, the Association's
charge is now moot and should thus be dismissed. Specifically,
the District asserts that negotiations between the parties have
Code unless otherwise noted. Section 3543.5 provides in
pertinent part as follows:
It shall be unlawful for a public school
employer to:
while 	the 	Association 	excepts 	to 	the 	ALJ's 	refusal 	to 	order
reinstatement 	and 	full 	back 	pay 	to 	the 	employees 	who 	were 	laid
off.
For 	the 	reasons 	which 	follow, 	the 	Board 	affirms 	the ALJ's
finding 	that 	the 	District 	violated 	subsections 	3543.5(b)
and 	(c). 	We 	also 	affirm 	the 	proposed 	remedy.
FACTS
Neither 	party 	has 	taken 	exception 	to 	the 	ALJ's 	findings 	of
fact. 	Upon 	our 	review 	of 	the 	record, 	we 	find 	the 	statement 	of
facts 	set 	forth 	in 	the 	proposed 	decision 	to 	be 	free 	of
prejudicial 	error. 	On 	this 	basis 	we 	adopt 	the 	factual 	findings
of 	the 	ALJ 	as 	the 	findings 	of 	the 	Board.
DISCUSSION
Initially, 	the 	District 	argues 	that, 	regardless 	of 	the
propriety 	of 	its 	actions 	in 	this 	matter, 	the 	Association's
charge 	is 	now 	moot 	and 	should 	thus 	be 	dismissed. 	Specifically,
the 	District 	asserts 	that 	negotiations 	between 	the 	parties 	have
Code 	unless 	otherwise 	noted. 	Section 	3543.5 	provides 	in
pertinent 	part 	as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) 	Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
N
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. . . . 	. 	.
(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

taken place since the filing of the charge pursuant to the
reopener provision of their contract, which permitted each
party to choose two subjects on which to reopen negotiations.
The District argues that the Association has by virtue of the
reopeners been afforded the opportunity to meet and negotiate
on the subject of layoff effects, and in fact did negotiate
certain provisions on transfer and reassignment which at least
arguably deal with effects of layoff.
We cannot find that the charge against the District was
rendered moot as a result of the District's participation in
the reopener negotiations. Even if we posit, arguendo, that
the Association succeeded in drawing the District into
negotiations on layoff effects via reopeners, the Association
was denied its statutory right to an opportunity to negotiate
which arose independently from its request to negotiate those
effects. If the Association was forced to sacrifice one of its
two contractual reopeners as the only means by which it could
negotiate its concerns on the effects of the layoff, it has
clearly suffered an injurious deprivation of its EERA rights.
This injury has not been mooted even if we accept the
District's contention that the parties ultimately negotiated
the matter of layoff effects via the reopeners. It is well
settled that the subsequent signing of an agreement does not
moot a subsection 3543.5 (c) charge. Amador Valley Joint Union
High School District (10/2/78) PERB Decision No. 74.
w
taken 	place 	since 	the 	filing 	of 	the 	charge 	pursuant 	to 	the
reopener 	provision 	of 	their 	contract, 	which 	permitted 	each
party 	to 	choose 	two 	subjects 	on 	which 	to 	reopen 	negotiations.
The 	District 	argues 	that 	the 	Association 	has 	by 	virtue 	of 	the
reopeners 	been 	afforded 	the 	opportunity 	to meet 	and 	negotiate
on 	the 	subject 	of 	layoff 	effects, 	and 	in 	fact 	did 	negotiate
certain 	provisions 	on 	transfer 	and 	reassignment 	which 	at 	least
arguably 	deal 	with 	effects 	of 	layoff.
We 	cannot 	find 	that 	the 	charge 	against 	the 	District was
rendered 	moot 	as 	a 	result 	of 	the 	District's 	participation 	in
the 	reopener 	negotiations. 	Even 	if 	we 	posit, 	arguendo, 	that
the 	Association 	succeeded 	in 	drawing 	the 	District 	into
negotiations 	on 	layoff 	effects 	via 	reopeners, 	the Association
was 	denied 	its 	statutory 	right 	to 	an 	opportunity 	to 	negotiate
which 	arose 	independently 	from 	its 	request 	to 	negotiate 	those
effects. 	If 	the 	Association 	was 	forced 	to 	sacrifice 	one 	of 	its
two 	contractual 	reopeners 	as 	the 	only means 	by 	which 	it 	could
negotiate 	its 	concerns 	on 	the 	effects 	of 	the 	layoff, 	it 	has
clearly 	suffered 	an 	injurious 	deprivation 	of 	its EERA 	rights.
This 	injury 	has 	not 	been 	mooted 	even 	if 	we 	accept 	the
District's 	contention 	that 	the 	parties 	ultimately 	negotiated
the 	matter 	of 	layoff 	effects 	via 	the 	reopeners. 	It 	is 	well
settled 	that 	the 	subsequent 	signing 	of 	an 	agreement 	does 	not
moot 	a 	subsection 	3543.S(c) 	charge. 	Amador 	Valley Joint 	Union
High 	School District 	(10/2/78) 	PERB 	Decision No. 	74.
3

The District next contends on exceptions that the Board
should find that the Association never communicated to it any
request to negotiate effects of the planned layoff (concededly
matter within the scope of representation) as opposed to the
nonnegotiable managerial decision to layoff. In support of
this argument it cites Newman-Crows Landing Unified School
District (6/30/82) PERB Decision No. 223. In that case, the
Board held that no duty to bargain arose where, after receiving
notice of the employer's intention to lay off, the exclusive
representative expressed only a desire to negotiate the
employer's decision to impose layoffs. The Board cautioned,
however, that its decision should not be read to impose any
strict rule of form as to a request to negotiate. 	" [A] valid
request will be found, regardless of its form or the words
used, if it adequately signifies a desire to negotiate on a
subject within the scope of bargaining" (p. 8). The
determination as to whether there has been a valid request is a
question of fact to be resolved on a case-by-case basis.
Delano Joint Union High School District (5/5/83) PERB Decision
No. 307.
In the instant case, the Association's initial response was
to press a demand to negotiate the layoff decision itself.
Thus, on November 10, 1980, the Association sent a letter to
the chancellor requesting "to negotiate the proposed layoff
of . . . unit members."
The 	District 	next 	contends 	on 	exceptions 	that 	the 	Board
should 	find 	that 	the 	Association 	never 	communicated 	to 	it 	any
request 	to 	negotiate 	effects 	of 	the 	planned 	layoff 	(concededly
a 	matter 	within 	the 	scope 	of 	representation) 	as 	opposed 	to 	the
nonnegotiable 	managerial 	decision 	to 	layoff. 	In 	support 	of
this 	argument 	it 	cites 	Newman-Crows 	Landing 	Unified 	School
District 	(6/30/82) 	PERB 	Decision No. 	223. 	In 	that 	case, 	the
Board 	held 	that 	no 	duty 	to 	bargain 	arose 	where, 	after 	receiving
notice 	of 	the 	employer's 	intention 	to 	lay 	off, 	the 	exclusive
representative 	expressed 	only 	a 	desire 	to 	negotiate 	the
employer's 	decision 	to 	impose 	layoffs. 	The 	Board 	cautioned,
however, 	that 	its 	decision 	should 	not 	be 	read 	to 	impose 	any
strict 	rule 	of 	form 	as 	to 	a 	request 	to 	negotiate. 	"[A] 	valid
request 	will 	be 	found, 	regardless 	of 	its 	form 	or 	the 	words
used, 	if 	it 	adequately 	signifies 	a 	desire 	to 	negotiate 	on 	a
subject 	within 	the 	scope 	of 	bargaining" 	(p. 	8). 	The
determination 	as 	to 	whether 	there 	has 	been 	a 	valid 	request 	is 	a
question 	of 	fact 	to 	be 	resolved 	on 	a 	case-by-case 	basis.
Delano Joint 	Union High 	School 	District 	(5/5/83) 	PERB 	Decision
No. 	307.
In 	the 	instant 	case, 	the 	Association's 	initial 	response 	was
to 	press 	a 	demand 	to 	negotiate 	the 	layoff 	decision 	itself.
Thus, 	on 	November 	10, 	1980, 	the 	Association 	sent 	a 	letter 	to
the 	chancellor 	requesting 	"to 	negotiate 	the 	proposed 	layoff
of 	••• 	unit 	members."
4

One month later, however, a new request for negotiations
was tendered. 	Thus, the Association's letter of December 10,
which again requested the opening of negotiations, stated as
follows :
Layoffs or termination of employment has
been legally held to be clearly within the
scope of bargaining. It is also established
Federal and State law that the employer must
give the employee organization notice and
the opportunity to negotiate over the
effects of the decision; for example, the
order and timing of employee layoff
severance payments, relocation, retraining,
and re-employment rights.
Further, at a meeting of the school board held the day
after layoff notices were distributed, the Association's
president gave a written presentation in which he alleged that
the chancellor refuses "to negotiate the effects of such
dismissals."
We find that the above-reviewed communications from the
Association to the District were sufficient to put the District
on notice that the Association desired to hold negotiations not
merely on the subject of the layoff decision itself, but on the
negotiable effects of that decision. 	The District nevertheless
claims that it was confused as to the object of the
Association's various requests for negotiations, and that it
should not therefore be found to have violated its duty to
bargain in good faith. However, consistent with our discussion
in Newman-Crows Landing, supra, we reject the notion that a
request for negotiations must meet a strict standard as to form
One 	month 	later, 	however, 	a 	new 	request 	for 	negotiations
was 	tendered. 	Thus, 	the 	Association's 	letter 	of 	December 	10,
which 	again 	requested 	the 	opening 	of 	negotiations, 	stated 	as
follows:
Layoffs 	or 	termination 	of 	employment 	has
been 	legally 	held 	to 	be 	clearly 	within 	the
scope 	of 	bargaining. 	It 	is 	also 	established
Federal 	and 	State 	law 	that 	the 	employer 	must
give 	the 	employee 	organization 	notice 	and
the 	opportunity 	to 	negotiate 	over 	the
effects 	of 	the 	decision: 	for 	example, 	the
order 	and 	timing 	of 	employee 	layoff
severance 	payments, 	relocation, 	retraining,
and 	re-employment 	rights.
Further, 	at 	a 	meeting 	of 	the 	school 	board 	held 	the 	day
after 	layoff 	notices 	were 	distributed, 	the Association's
president 	gave 	a 	written 	presentation 	in 	which 	he 	alleged 	that
the 	chancellor 	refuses 	"to 	negotiate 	the 	effects 	of 	such
dismissals."
We 	find 	that 	the 	above-reviewed 	communications 	from 	the
Association 	to 	the 	District 	were 	sufficient 	to 	put 	the 	District
on 	notice 	that 	the 	Association 	desired 	to 	hold 	negotiations 	not
merely 	on 	the 	subject 	of 	the 	layoff 	decision 	itself, 	but 	on 	the
negotiable 	effects 	of 	that 	decision. 	The 	District 	nevertheless
claims 	that 	it 	was 	confused 	as 	to 	the 	object 	of 	the
Association's 	various 	requests 	for 	negotiations, 	and 	that 	it
should 	not 	therefore 	be 	found 	to 	have 	violated 	its 	duty 	to
bargain 	in 	good 	faith. 	However, 	consistent 	with 	our 	discussion
in Newman-Crows 	Landing, 	supra, 	we 	reject 	the 	notion 	that 	a
request 	for 	negotiations 	must 	meet 	a 	strict 	standard 	as 	to 	form
5

or language and conclude here that, if the District was unsure
as to the object of the Association's requests, the duty to
bargain in good faith behooved it as a minimum to seek
clarification of the Association's position. There is no
evidence in the record that it did so.
The District next argues that even if the Association
tendered a sufficient request to negotiate the effects of the
planned layoff, it had no duty to negotiate at that time. It
contends that where an exclusive representative receives notice
of contemplated employer action within the scope of
representation, the EERA requires that the exclusive
representative must submit a specific negotiating proposal
pursuant to the public notice provisions at section 3547. Only
after the exclusive representative has tendered such a
proposal, argues the District, does the employer's duty to
negotiate arise. Because in the instant case the Association
never submitted a proposal, no negotiating duty ever arose and
thus there could be no failure to perform that duty.
The District's reliance on section 3547 is misplaced. 	The
duty to meet and negotiate arises under EERA section 3543.3,
not section 3547. Section 3543.3 provides in pertinent part as
follows :
A public school employer . 	shall meet
and negotiate with . . 	. exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation. [Emphasis added. ]
6
or 	language 	and 	conclude 	here 	that, 	if 	the 	District 	was 	unsure
as 	to 	the 	object 	of 	the 	Association's 	requests, 	the 	duty 	to
bargain 	in 	good 	faith 	behooved 	it 	as 	a 	minimum 	to 	seek
clarification 	of 	the 	Association's 	position. 	There 	is 	no
evidence 	in 	the 	record 	that 	it 	did 	so.
The 	District 	next 	argues 	that 	even 	if 	the 	Association
tendered 	a 	sufficient 	request 	to 	negotiate 	the 	effects 	of 	the
planned 	layoff, 	it 	had 	no 	duty 	to 	negotiate 	at 	that 	time. 	It
contends 	that 	where 	an 	exclusive 	representative 	receives 	notice
of 	contemplated 	employer 	action 	within 	the 	scope 	of
representation, 	the 	EERA 	requires 	that 	the 	exclusive
representative 	must 	submit 	a 	specific 	negotiating 	proposal
pursuant 	to 	the 	public 	notice 	provisions 	at 	section 	3547. 	Only
after 	the 	exclusive 	representative 	has 	tendered 	such 	a
proposal, 	argues 	the District, 	does 	the 	employer's 	duty 	to
negotiate 	arise. 	Because 	in 	the 	instant 	case 	the 	Association
never 	submitted 	a 	proposal, 	no 	negotiating 	duty 	ever 	arose 	and
thus 	there 	could 	be 	no 	failure 	to 	perform 	that 	duty.
The District's 	reliance 	on 	section 	3547 	is 	misplaced. 	The
duty 	to 	meet 	and 	negotiate 	arises 	under 	EERA 	section 	3543.3,
not 	section 	3547. 	Section 	3543.3 	provides 	in 	pertinent 	part 	as
follows:
A public 	school 	employer 	••• 	shall 	meet
and 	negotiate 	with 	••• 	exclusive
representatives 	of 	appropriate 	units 	upon
request 	with 	regard 	to matters 	within 	the
scope 	of 	representation. 	[Emphasis 	added.]
6

The negotiating process can, and often does, include
prefatory communications in which the parties work out a
procedural format, timetable and other preliminary matters, all
before substantive proposals are submitted. "Such preliminary
matters are just as much a part of the process of collective
bargaining as negotiations over wages, hours, et cetera."
General Electric Co. (1968) , 173 NLRB No. 46 [69 LRRM 1305] .
The holding in General Electric, supra, has been cited with
approval by PERB. See Stockton Unified School District
(11/3/80) PERB Decision No. 143.
Consistently with this rationale, the Board has several
times found a violation of the duty to meet and negotiate where
no actual proposal had been submitted. Thus, in Newark Unified
School District (6/30/82) PERB Decision No. 225, we held that
the employer had violated subsection 3543.5 (c) when it refused
the exclusive representative's request to negotiate the effects
of a proposed layoff, even though no substantive proposal had
been submitted. See also, El Monte Union High School District
(6/30/82) PERB Decision No. 220, where an employer's flat
refusal of a union's threshold request that negotiations be
held was found to be a violation of its negotiating obligation.
The District next argues that it had no duty to participate
in negotiations as requested by the Association because a
provision in the collectively negotiated agreement then in
The 	negotiating 	process 	can, 	and 	often 	does, 	include
prefatory 	communications 	in 	which 	the 	parties 	work 	out 	a
procedural 	format, 	timetable 	and 	other 	preliminary matters, 	all
before 	substantive 	proposals 	are 	submitted. 	"Such 	preliminary
matters 	are 	just 	as 	much 	a 	part 	of 	the 	process 	of 	collective
bargaining 	as 	negotiations 	over 	wages, 	hours, 	et 	cetera."
General 	Electric Co. 	(1968), 	173 	NLRB 	No. 	46 	[69 	LRRM 	1305].
The 	holding 	in 	General 	Electric, 	supra, 	has 	been 	cited 	with
approval 	by 	PERB. 	See 	Stockton Unified 	School 	District
(11/3/80) 	PERB 	Decision No. 	143.
Consistently 	with 	this 	rationale, 	the 	Board 	has 	several
times 	found 	a 	violation 	of 	the 	duty 	to 	meet 	and 	negotiate 	where
no 	actual 	proposal 	had 	been 	submitted. 	Thus, 	in Newark Unified
School 	District 	(6/30/82) 	PERB 	Decision No. 	225, 	we 	held 	that
the 	employer 	had 	violated 	subsection 	3543.5(c) 	when 	it 	refused
the 	exclusive 	representative's 	request 	to 	negotiate 	the 	effects
of 	a 	proposed 	layoff, 	even 	though 	no 	substantive 	proposal 	had
been 	submitted. 	See 	also, 	El Monte 	Union High 	School 	District
(6/30/82) 	PERB 	Decision No. 	220, 	where 	an 	employer's 	flat
refusal 	of 	a 	union's 	threshold 	request 	that 	negotiations 	be
held 	was 	found 	to 	be 	a 	violation 	of 	its 	negotiating 	obligation.
The 	District 	next 	argues 	that 	it 	had 	no 	duty 	to 	participate
in 	negotiations 	as 	requested 	by 	the 	Association 	because 	a
provision 	in 	the 	collectively 	negotiated 	agreement 	then 	in
7

effect between the parties excused them from that obligation.
The provision forming the basis of this argument is as follows:
3. Written board and college policies and
procedures in effect on the date of this
contract that are within the scope of
representation shall remain in effect until
changes have been mutually agreed to by the
board and the exclusive agent.
We find nothing in this language indicating that the
Association had contractually agreed that the District would be
excused from its statutory obligation to negotiate effects in
the event that it decided to lay off bargaining unit members.
In our view, the cited provision is straightforward and
unambiguous, providing simply that the District cannot
unilaterally make changes in matters within the scope of
representation which are controlled by written board or college
policies. 	Since the record contains no evidence indicating the
existence of any written policy or procedures governing
layoffs, this contract provision provides no legitimate basis
for the District's refusal to agree to open negotiations as it
did in the instant case.
Finally, the District argues that the ALJ erred in finding
that it took unilateral action on any matter within the scope
of representation when in January 1981 it adopted the
resolution to eliminate certain services and then sent layoff
notices to the eight certificated employees for whom there
would be no work. It contends that the decision to eliminate
services and lay off employees is nonnegotiable, and points to
mandatory provisions of the Education Code which control the
8
effect 	between 	the 	parties 	excused 	them 	from 	that 	obligation.
The 	provision 	forming 	the 	basis 	of 	this 	argument 	is 	as 	follows:
3. 	Written 	board 	and 	college 	policies 	and
procedures 	in 	effect 	on 	the 	date 	of 	this
contract 	that 	are 	within 	the 	scope 	of
representation 	shall 	remain 	in 	effect 	until
changes 	have 	been 	mutually 	agreed 	to 	by 	the
board 	and 	the 	exclusive 	agent.
We 	find 	nothing 	in 	this 	language 	indicating 	that 	the
Association 	had 	contractually 	agreed 	that 	the 	District 	would 	be
excused 	from 	its 	statutory 	obligation 	to 	negotiate 	effects 	in
the 	event 	that 	it 	decided 	to 	lay 	off 	bargaining 	unit 	members.
In 	our 	view, 	the 	cited 	provision 	is 	straightforward 	and
unambiguous, 	providing 	simply 	that 	the 	District 	cannot
unilaterally make 	changes 	in 	matters 	within 	the 	scope 	of
representation 	which 	are 	controlled 	by 	written 	board 	or 	college
policies. 	Since 	the 	record 	contains 	no 	evidence 	indicating 	the
existence 	of 	any 	written 	policy 	or 	procedures 	governing
layoffs, 	this 	contract 	provision 	provides 	no 	legitimate 	basis
for 	the 	District's 	refusal 	to 	agree 	to 	open 	negotiations 	as 	it
did 	in 	the 	instant 	case.
Finally, 	the 	District 	argues 	that 	the 	ALJ 	erred 	in 	finding
that 	it 	took 	unilateral 	action 	on 	any matter 	within 	the 	scope
of 	representation 	when 	in January 	1981 	it 	adopted 	the
resolution 	to 	eliminate 	certain 	services 	and 	then 	sent 	layoff
notices 	to 	the 	eight 	certificated 	employees 	for 	whom 	there
would 	be 	no 	work. 	It 	contends 	that 	the 	decision 	to 	eliminate
services 	and 	lay 	off 	employees 	is 	nonnegotiable, 	and 	points 	to
mandatory 	provisions 	of 	the 	Education Code 	which 	control 	the
8

order in which public school employees are to be laid off and
which specify a required notice period which must be afforded
those employees.
In Grant Joint Union High School District (2/26/82) PERB
Decision No. 196, the Board held that to establish an unlawful
unilateral change in the status quo, the charging party must
produce evidence showing: (1) that the employer breached or
otherwise altered the parties' written agreement or its own
established past practice; (2) that the breach or alteration
amounted to a change of policy (i.e., that it had a generalized
effect or continuing impact upon terms and conditions of
employment of bargaining unit members) ; and (3) that the change
in policy concerned matters within the scope of
representation. A unilateral change of this kind, the Board
has held, is, absent a valid affirmative defense, a per se
unfair practice. San Mateo County Community College District
(6/8/79) PERB Decision No. 94; Moreno Valley Unified School
District (4/30/82) PERB Decision No. 206, affirmed, Moreno
Valley Unified School District v. PERB (1983) 142
Cal .App . 3d 191.
In Alum Rock Union Elementary School District (6/27/83)
PERB Decision No. 322, the Board explained that a public school
employer's decision to eliminate services and positions is a
fundamental management prerogative and therefore not subject to
the negotiating process. Thus, in the instant case the
District's adoption of the resolution eliminating services was
order 	in 	which 	public 	school 	employees 	are 	to 	be 	laid 	off 	and
which 	specify a 	required 	notice 	period 	which 	must 	be 	afforded
those 	employees.
In Grant 	Joint 	Union High 	School 	District 	(2/26/82) 	PERB
Decision No. 	196, 	the 	Board 	held 	that 	to 	establish 	an 	unlawful
unilateral 	change 	in 	the 	status 	quo, 	the 	charging 	party must
produce 	evidence 	showing: 	(1) 	that 	the 	employer 	breached 	or
otherwise 	altered 	the 	parties' 	written 	agreement 	or 	its 	own
established 	past 	practice; 	(2) 	that 	the 	breach 	or 	alteration
amounted 	to 	a 	change 	of 	policy 	(i.e., 	that 	it 	had 	a 	generalized
effect 	or 	continuing 	impact 	upon 	terms 	and 	conditions 	of
employment 	of 	bargaining 	unit 	members); 	and 	(3) 	that 	the 	change
in 	policy 	concerned 	matters 	within 	the 	scope 	of
representation. 	A unilateral 	change 	of 	this 	kind, 	the 	Board
has 	held, 	is, 	absent 	a 	valid 	affirmative 	defense, 	a 	per 	se
unfair 	practice. 	San 	Mateo 	County Community College 	District
(6/8/79) 	PERB 	Decision No. 	94; 	Moreno Valley 	Unified 	School
District 	(4/30/82) 	PERB 	Decision No. 	206, 	affirmed, 	Moreno
Valley Unified 	School District 	v. 	PERB 	(1983) 	142
Cal.App.3d 	191.
In Alum Rock 	Union Elementary School 	District 	(6/27/83)
PERB 	Decision No. 	322, 	the 	Board 	explained 	that 	a 	public 	school
employer's 	decision 	to 	eliminate 	services 	and 	positions 	is 	a
fundamental 	management 	prerogative 	and 	therefore 	not 	subject 	to
the 	negotiating 	process. 	Thus, 	in 	the 	instant 	case 	the
District's 	adoption 	of 	the 	resolution 	eliminating 	services 	was
9

not an unlawful action per se under Grant, supra. So too, the
decision to lay off eight employees as a result of the
elimination of services and positions is a matter reserved to
the control of the public school employer and thus outside the
scope of representation. Newman-Crows Landing, supra.
Finally, the method by which the employees to be laid off are
identified and given notice is controlled by mandatory
provisions of the Education Code and is therefore to that
extent nonnegotiable.2 In p 	ticular, Education Code section
87743 makes the following pertinent provisions:
[W] henever a particular kind of
service is to be reduced or discontinued not
later than the beginning of the following
school year, and when in the opinion of the
not 	an 	unlawful 	action 	per 	se 	under 	Grant, 	supra. 	So 	too, 	the
decision 	to 	lay off 	eight 	employees 	as 	a 	result 	of 	the
elimination 	of 	services 	and 	positions 	is 	a 	matter 	reserved 	to
the 	control 	of 	the 	public 	school 	employer 	and 	thus 	outside 	the
scope 	of 	representation. 	Newman-Crows 	Landing, 	supra.
Finally, 	the 	method 	by 	which 	the 	employees 	to 	be 	laid 	off 	are
identified 	and 	given 	notice 	is 	controlled 	by mandatory
provisions 	of 	the 	Education 	Code 	and 	is 	therefore 	to 	that
extent 	nonnegotiable.2ar 	In 	particular, 	Education 	Code 	section
87743 makes 	the 	following 	pertinent 	provisions:
••• 	[W]henever,a 	particular 	kind 	of
service 	is 	to 	be 	reduced 	or 	discontinued 	not
later 	than 	the 	beginning 	of 	the 	following
school 	year, 	and 	when 	in 	the 	opinion 	of 	the
EERA section 3540 provides in part that nothing in the
ERRA :
22
shall be deemed to supersede other
provisions of the Education Code and the
rules and regulations of public school
employers which establish and regulate
tenure or a merit or civil service system or
which provide for other methods of
administering employer-employee relations,
so long as the rules and regulations or
other methods of the public school employer
do not conflict with lawful collective
agreements.
Thus, insofar as the Education Code prescribes a mandatory
act of a public school employer, that act is not subject to the
negotiating process. Certificated Employees Co
Monterey Peninsula Unified School District (1974) 42 Cal. App. 3d
328; Healdsburg Union High School District (6/19/80) PERB
Decision No. 132, affirmed, San Mateo City School District v.
PERB (1983) 33 Cal. 3d 850; Solano County Community College
District (6/30/82) PERB Decision No. 219.
10	10
EERA 	section 	3540 	provides 	in 	part 	that 	nothing 	in 	the
ERRA:
••. 	shall 	be 	deemed 	to 	supersede 	other
provisions 	of 	the 	Education Code 	and 	the
rules 	and 	regulations 	of 	public 	school
employers 	which 	establish 	and 	regulate
tenure 	or 	a 	merit 	or 	civil 	service 	system or
which 	provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations 	or
other 	methods 	of 	the 	public 	school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
uncil v.
Thus, 	insofar 	as 	the 	Education 	Code 	prescribes 	a 	mandatory
act 	of 	a 	public 	school 	employer, 	that 	act 	is 	not 	subject 	to 	the
negotiating 	process. 	Certificated 	Emtloyees 	Council 	v.
Monterey 	Peninsula Unified 	School 	Dis 	r1ct 	(1974) 	42 	Cal.App.3d
328; 	Healdsburg Union High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132, 	affirmed, 	San Mateo City School 	District 	v.
PERB 	(1983) 	33 	Cal.3d 	850; 	Solano County Community College
District 	(6/30/82) 	PERB 	Decision No. 	219.

governing board of said district it shall
have become necessary . . . [for this
reason] 	. to decrease the number of
regular employees in said district, the said
governing board may terminate the services
of not more than a corresponding percentage
of the certificated employees of said
district, regular as well as contract, a
the close of the school year; provided, that
the services of no regular employee may be
terminated under the provision of this
section while any contact employee, or any
other employee with less seniority, is
retained to render a service which said
regular employee is certificated and
competent to render.
Notice of such termination of services
either for a reduction in attendance or
reduction or discontinuance of a particular
kind of service to take effect not later
than the beginning of the following school
year, shall be given before the 15th of May
in the manner prescribed in section 87740
and services of such employees shall be
terminated in the inverse of the order in
which they were employed, as determined by
the board in accordance with the provisions
of sections 87413 and 87414. In the event
that a regular or contract employee is not
given the notices and a right to a hearing
as provided for in section 87740, he shall
be deemed reemployed for the ensuing school
year .
The board shall make assignments and
reassignments in such a manner that
employees shall be retained to render any
service which their seniority and
qualifications entitle them to render.
[Emphasis added . ]
Thus, where a district has determined that a service is to
be eliminated, and that in turn employees must therefore be
laid off, the Education Code appears to leave no room for
11
governing 	board 	of 	said 	district 	it 	shall
have 	become 	necessary 	••• 	[for 	this
reason] 	••• 	to 	decrease 	the 	number 	of
regular 	employees 	in 	said 	district, 	the 	said
governing 	board may 	terminate 	the 	services
of 	not 	more 	than 	a 	corresponding 	percentage
of 	the 	certificated 	employees 	of 	said
district, 	regular 	as 	well 	as 	contract, 	at
the 	close 	of 	the 	school 	year1 	provided, 	that
the 	services 	of 	no 	regular 	employee 	may 	be
terminated 	under 	the 	provision 	of 	this
section 	while 	any 	contact 	employee, 	or 	any
other 	employee 	with 	less 	seniority, 	is
retained 	to 	render 	a 	service 	which 	said
regular 	employee 	is 	certificated 	and
competent 	to 	render.
11
Notice 	of 	such 	termination 	of 	services
either 	for 	a 	reduction 	in 	attendance 	or
reduction 	or 	discontinuance 	of 	a 	particular
kind 	of 	service 	to 	take 	effect 	not 	later
than 	the 	beginning 	of 	the 	following 	school
year, 	shall 	be 	given 	before 	the 	15th of 	May
in 	the 	manner 	prescribed 	in 	section 	87740
and 	services 	of 	such 	employees 	shall 	be
terminated 	in 	the 	inverse 	of 	the 	order 	in
which 	they 	were 	employed, 	as 	determined 	by
the 	board 	in 	accordance 	with 	the 	provisions
of 	sections 	87413 	and 	87414. 	In 	the 	event
that 	a 	regular 	or 	contract 	employee 	is 	not
given 	the 	notices 	and 	a 	right 	to 	a 	hearing
as 	provided 	for 	in 	section 	87740, 	he 	shall
be 	deemed 	reemployed 	for 	the 	ensuing 	school
year.
The 	board 	shall 	make 	assignments 	and
reassignments 	in 	such 	a 	manner 	that
employees 	shall 	be 	retained 	to 	render 	any
service 	which 	their 	seniority 	and
qualifications 	entitle 	them 	to 	render.
[Emphasis 	added.]
Thus, 	where 	a 	district 	has 	determined 	that 	a 	service 	is 	to
be 	eliminated, 	and 	that 	in 	turn 	employees 	must 	therefore 	be
laid off, 	the 	Education 	Code 	appears 	to 	leave 	no 	room 	for

negotiation as to which employees will be terminated. Rather a
specific system of layoff-by-seniority is mandated.
Education Code section 87743 as set forth in part above,
also provides that where a district fails to adhere strictly to
the notice provisions set forth therein, the employees are
"deemed reemployed for the ensuing school year." Thus, an
employer's distribution of notices in a manner consistent with
the Education Code is necessary if the possibility of layoff,
and thus the possibility of meaningful negotiations on the
layoff plan, is to be preserved. Absent additional evidence,
therefore, the Board will not find that a public school
employer's distribution of the mandated layoff notices
constitutes a refusal to negotiate.
Insofar, then, as the District argues that neither its
January resolution to reduce services and personnel nor the
ensuing issuance of layoff notices constituted per se unfair
practices, it is correct, and the ALJ's characterization of
those actions as an unlawful unilateral change was error. It
is apparent, however, that the ALJ's determination that the
District violated the EERA turned not on this misapplied
terminology but on the evidence that it had refused the
Association's request that negotiations be opened on the impact
of those actions on matters within the scope of
representation. As we said in Newark Unified School District
(6/30/82) PERB Decision No. 225,
12
negotiation 	as 	to 	which 	employees 	will 	be 	terminated. 	Rather 	a
specific 	system of 	layoff-by-seniority 	is 	mandated.
Education Code 	section 	87743 	as 	set 	forth 	in 	part 	above,
also 	provides 	that 	where 	a 	district 	fails 	to 	adhere 	strictly 	to
the 	notice 	provisions 	set 	forth 	therein, 	the 	employees 	are
"deemed 	reemployed 	for 	the 	ensuing 	school 	year." 	Thus, 	an
employer's 	distribution 	of 	notices 	in 	a 	manner 	consistent 	with
the 	Education 	Code 	is 	necessary 	if 	the 	possibility of 	layoff,
and 	thus 	the 	possibility 	of 	meaningful 	negotiations 	on 	the
layoff 	plan, 	is 	to 	be 	preserved. 	Absent 	additional 	evidence,
therefore, 	the 	Board 	will 	not 	find 	that 	a 	public 	school
employer's 	distribution 	of 	the 	mandated 	layoff 	notices
constitutes 	a 	refusal 	to 	negotiate.
Insofar, 	then, 	as 	the 	District 	argues 	that 	neither 	its
January 	resolution 	to 	reduce 	services 	and 	personnel 	nor 	the
ensuing 	issuance 	of 	layoff 	notices 	constituted 	per 	se 	unfair
practices, 	it 	is 	correct, 	and 	the 	ALJ's 	characterization 	of
those 	actions 	as 	an 	unlawful 	unilateral 	change 	was 	error. 	It
is 	apparent, 	however, 	that 	the 	ALJ's 	determination 	that 	the
District 	violated 	the 	EERA 	turned 	not 	on 	this 	misapplied
terminology 	but 	on 	the 	evidence 	that 	it 	had 	refused 	the
Association's 	request 	that 	negotiations 	be 	opened 	on 	the 	impact
of 	those 	actions 	on 	matters 	within 	the 	scope 	of
representation. 	As 	we 	said 	in Newark 	Unified 	School 	District
(6/30/82) 	PERB 	Decision No. 	225,
12

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. 	P. 6.
The litigated facts thus support a finding that the District
violated the EERA by refusing to negotiate the effects of its
decision to lay off.
Of course, where a public school employer and an exclusive
representative have agreed in advance on a comprehensive policy
to be implemented in the event of a layoff decision, the
parties are not obligated to renegotiate those matters each
time the District announces a decision to layoff. This is so
even where such agreement is inferred from an existing,
established or past practice. See Placer Hills Union School
District (11/30/82) PERB Decision No. 262. In the instant
case, however, the record contains no evidence that an
established policy was in existence. In refusing to open
negotiations on the within-scope effects of the layoff
decision, then, the District was acting to assert unilateral
control over those upcoming matters. Such action contravenes
the fundamental purpose of the Act. Moreno Valley, supra. 	On
the foregoing facts and discussion, therefore, we hold that the
District violated EERA subsections 3543.5 (b) and (c) .
13
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. 	P. 	6.
The 	litigated 	facts 	thus 	support 	a 	finding 	that 	the 	District
violated 	the 	EERA 	by 	refusing 	to 	negotiate 	the 	effects 	of 	its
decision 	to 	lay 	off.
Of 	course, 	where 	a 	public 	school 	employer 	and 	an 	exclusive
representative 	have 	agreed 	in 	advance 	on 	a 	comprehensive 	policy
to 	be 	implemented 	in 	the 	event 	of 	a 	layoff 	decision, 	the
parties 	are 	not 	obligated 	to 	renegotiate 	those 	matters 	each
time 	the 	District 	announces 	a 	decision 	to 	layoff. 	This 	is 	so
even 	where 	such 	agreement 	is 	inferred 	from 	an 	existing,
established 	or 	past 	practice. 	See 	Placer 	Hills 	Union 	School
District 	(11/30/82) 	PERB 	Decision No. 	262. 	In 	the 	instant
case, 	however, 	the 	record 	contains 	no 	evidence 	that 	an
established 	policy 	was 	in 	existence. 	In 	refusing 	to 	open
negotiations 	on 	the 	within-scope 	effects 	of 	the 	layoff
decision, 	then, 	the 	District 	was 	acting 	to 	assert 	unilateral
control 	over 	those 	upcoming 	matters. 	Such 	action 	contravenes
the 	fundamental 	purpose 	of 	the 	Act. 	Moreno Valley, 	supra. 	On
the 	foregoing 	facts 	and 	discussion, 	therefore, 	we 	hold 	that 	the
District 	violated 	EERA 	subsections 	3543.S(b) 	and 	(c).
13

THE REMEDY
On exceptions, the Association argues that the limited
back-pay remedy proposed by the ALJ is inadequate. It urges
the Board to order a full restoration of the status quo ante.
In support of this position, the Association cites numerous
decisions of this Board in which, having found unilateral
changes of matters within the scope of representation, we have
ordered restoration of the status quo ante. These cases,
however, are inapposite to the case at hand. Here, in contrast
to the cited cases, the unilateral change - that is, the
decision to lay off - was in a matter outside the scope of
representation, and is therefore not subject to the negotiating
obligation. It was only the effects of that decision which the
District was obligated to negotiate. As the ALJ noted, a
remedy requiring the District to restore the status quo ante
would effectively negate the principle that the layoff decision
is one reserved to the employer. This position is consistent
with the past Board decisions on this question. See, South Bay
Union School District (4/30/82) PERB Decision No. 207; Moreno
Valley Unified School District, supra; Oakland Unified School
District (7/11/83) PERB Decision No. 326.
For the reasons set forth in the proposed decision, we
conclude that the remedy proposed by the ALJ is sufficient to
secure the Association's EERA rights. There being no other
exceptions to that remedy, we adopt it as the remedy of the
Board in this case.
14
THE 	REMEDY
On 	exceptions, 	the 	Association 	argues 	that 	the 	limited
back-pay 	remedy 	proposed 	by 	the 	ALJ 	is 	inadequate. 	It 	urges
the 	Board 	to 	order 	a 	full 	restoration 	of 	the 	status 	quo 	ante.
In 	support 	of 	this 	position, 	the Association 	cites 	numerous
decisions 	of 	this 	Board 	in which, 	having 	found 	unilateral
changes 	of 	matters 	within 	the 	scope 	of 	representation, 	we 	have
ordered 	restoration 	of 	the 	status 	quo 	ante. 	These 	cases,
however, 	are 	inapposite 	to 	the 	case 	at 	hand. 	Here, 	in 	contrast
to 	the 	cited 	cases, 	the 	unilateral 	change 	- 	that 	is, 	the
decision 	to 	lay 	off 	- 	was 	in 	a 	matter 	outside 	the 	scope 	of
representation, 	and 	is 	therefore 	not 	subject 	to 	the 	negotiating
obligation. 	It 	was 	only 	the 	effects 	of 	that 	decision 	which 	the
District 	was 	obligated 	to 	negotiate. 	As 	the 	ALJ 	noted, 	a
remedy 	requiring 	the 	District 	to 	restore 	the 	status 	quo 	ante
would 	effectively 	negate 	the 	principle 	that 	the 	layoff 	decision
is 	one 	reserved 	to 	the 	employer. 	This 	position 	is 	consistent
with 	the 	past 	Board 	decisions 	on 	this 	question. 	See, 	South Bay
Union 	School 	District 	(4/30/82) 	PERB 	Decision No. 	207; 	Moreno
Valley Unified 	School 	District, 	supra; 	Oakland 	Unified 	School
District 	(7/11/83) 	PERB 	Decision No. 	326.
For 	the 	reasons 	set 	forth 	in 	the 	proposed 	decision, 	we
conclude 	that 	the 	remedy 	proposed 	by 	the 	ALJ 	is 	sufficient 	to
secure 	the 	Association's EERA 	rights. 	There 	being 	no 	other
exceptions 	to 	that 	remedy, 	we 	adopt 	it 	as 	the 	remedy 	of 	the
Board 	in 	this 	case.
14

ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to Government
Code section 3541.5(c), it is hereby ORDERED that the Kern
Community College District, its governing board, and its
representatives shall:
A. 	CEASE AND DESIST FROM:
Violating subsections 3543.5 (b) and (c) of the Educational
Employment Relations Act by failing and refusing to meet and
negotiate in good faith, upon request, with the exclusive
representative on the effects of the layoff.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS :
1. Provided the Association submits its proposals
addressing the negotiable effects of the District's layoff
within twenty (20) days of service of this Decision and Order,
the District shall negotiate with the Association in good faith
and shall commence the payment of wages to the terminated
employees at the rate paid at the time of their termination.
Such payments shall continue until the occurrance of the
earliest of the following conditions: (1) the District and the
Association reach agreement on the effects of the subject
layoff on the employees in the subject bargaining unit; (2) the
15
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3541.S(c), 	it 	is 	hereby ORDERED 	that 	the 	Kern
Community College District, 	its 	governing 	board, 	and 	its
representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
Violating 	subsections 	3543.S(b) 	and 	(c) 	of 	the 	Educational
Employment 	Relations Act 	by 	failing 	and 	refusing 	to 	meet 	and
negotiate 	in 	good 	faith, 	upon 	request, 	with 	the 	exclusive
representative 	on 	the 	effects 	of 	the 	layoff.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS:
1. 	Provided 	the 	Association 	submits 	its 	proposals
addressing 	the 	negotiable 	effects 	of 	the 	District's 	layoff
within 	twenty 	(20) 	days 	of 	service 	of 	this 	Decision 	and Order,
the 	District 	shall 	negotiate 	with 	the 	Association 	in 	good 	faith
and 	shall 	commence 	the 	payment 	of 	wages 	to 	the 	terminated
employees 	at 	the 	rate 	paid 	at 	the 	time 	of 	their 	termination.
Such 	payments 	shall 	continue 	until 	the 	occurrance 	of 	the
earliest 	of 	the 	following 	conditions: 	(1) 	the 	District 	and 	the
Association 	reach 	agreement 	on 	the 	effects 	of 	the 	subject
layoff 	on 	the 	employees 	in 	the 	subject 	bargaining 	unit: 	(2) 	the
parties exhaust the negotiating and impasse procedures
prescribed by the Educational Employment Relations Act; (3) the
Association fails to bargain in good faith.
parties 	exhaust 	the 	negotiating 	and 	impasse 	procedures
prescribed 	by 	the 	Educational Employment 	Relations 	Act: 	(3) 	the
Association 	fails 	to 	bargain 	in 	good 	faith.
15

2. 	Within five workdays from the date of service of
this Decision, mail a copy of this Decision and Order to each
of the approximately eight terminated certificated employees.
3. 	Within five workdays from the date of service of
this Decision, post at all work locations where notices to
certificated employees customarily are posted, copies of the
Notice attached as an appendix 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 the copies are not altered,
reduced in size, defaced or covered with any other material.
4. 	Within thirty (30) days from the service of this
Decision, notify the Los Angeles Regional Director of the
Public Employment Relations Board in writing of what steps the
employer has taken to comply with the terms of this Order.
Continue to report in writing to the regional director
periodically thereafter as directed. All reports to the
regional director shall be served concurrently on the charging
party herein.
C. 	ALL OTHER CHARGES ARE HEREBY DISMISSED.
Chairperson Gluck and Member Burt joined in this Decision.
16
2.
16
within 	five 	workdays 	from 	the 	date 	of 	service 	of
this 	Decision, 	mail 	a 	copy 	of 	this 	Decision 	and 	Order 	to 	each
of 	the 	approximately 	eight 	terminated 	certificated 	employees.
3. 	Within 	five 	workdays 	from 	the 	date 	of 	service 	of
this 	Decision, 	post 	at 	all 	work 	locations 	where 	notices 	to
certificated 	employees 	customarily 	are 	posted, 	copies 	of 	the
Notice 	attached 	as 	an 	appendix 	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 	the 	copies 	are 	not 	altered,
reduced 	in 	size, 	defaced 	or 	covered 	with 	any 	other 	material.
4. 	Within 	thirty 	(30) 	days 	from 	the 	service 	of 	this
Decision, 	notify 	the 	Los 	Angeles 	Regional 	Director 	of 	the
Public Employment 	Relations 	Board 	in 	writing 	of 	what 	steps 	the
employer 	has 	taken 	to 	comply with 	the 	terms 	of 	this 	Order.
Continue 	to 	report 	in 	writing 	to 	the 	regional 	director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently 	on 	the 	charging
party 	herein.
C. 	ALL 	OTHER CHARGES 	ARE 	HEREBY DISMISSED.
Chairperson 	Gluck 	and Member 	Burt 	joined 	in 	this 	Decision.

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. LA-CE-1300,
Kern Community College CTA/NEA v. Kern Community College
District, in which all parties had the right to participate, it
has been found that the District violated the Educational
Employment Relations Act by refusing to negotiate over the
effects of the layoff of eight certificated employees in
June 1981.
As a result of this conduct, we have been ordered to post
this Notice and will abide by the following. We will:
A. 	CEASE AND DESIST FROM:
Failing and refusing to meet and negotiate in good
faith, upon request, with the exclusive representative on the
effects of layoff.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS :
Provided the Association submits its proposals
addressing the negotiable affects of the layoff within twenty
days of service of the Public Employment Relations Board's
Decision and Order, we will negotiate with the Association in
good faith and will commence the payment of wages to the
terminated employees at the rate paid at the time of their
termination. We will continue to make those payments until we
complete negotiations with the Association or until the
Association fails to bargain in good faith.
Dated: 	KERN COMMUNITY COLLEGE DISTRICT
By :
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
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. 	LA-CE-1300,
Kern Community College CTA/NEA 	v. 	Kern Community College
District, 	in 	which 	all 	parties 	had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	the District 	violated 	the 	Educational
Employment 	Relations 	Act 	by 	refusing 	to 	negotiate 	over 	the
effects 	of 	the 	layoff 	of 	eight 	certificated 	employees 	in
June 	1981.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice 	and 	will 	abide 	by 	the 	following. 	We 	will:
A. 	CEASE 	AND 	DESIST 	FROM:
Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith, 	upon 	request, 	with 	the 	exclusive 	representative 	on 	the
effects 	of 	layoff.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS:
Provided 	the 	Association 	submits 	its 	proposals
addressing 	the 	negotiable 	affects 	of 	the 	layoff 	within 	twenty
days 	of 	service 	of 	the 	Public Employment 	Relations 	Board's
Decision 	and 	Order, 	we 	will 	negotiate 	with 	the 	Association 	in
good 	faith 	and 	will 	commence 	the 	payment 	of 	wages 	to 	the
terminated 	employees 	at 	the 	rate 	paid 	at 	the 	time 	of 	their
termination. 	We 	will 	continue 	to make 	those 	payments 	until 	we
complete 	negotiations 	with 	the 	Association 	or 	until 	the
Association 	fails 	to 	bargain 	in 	good 	faith.
Dated: 	KERN 	COMMUNITY COLLEGE 	DISTRICT
By:
Authorized Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
THIRTY 	(30} 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
KERN COMMUNITY COLLEGE, CTA-NEA,
Charging Party,
v .
KERN COMMUNITY COLLEGE DISTRICT,
Respondent.
U n f a i r P r a c t i c e
Case No. LA-CE-1300
PROPOSED DECISION
( 4/28/82)
A p p e a r a n c e s : A . E u g e n e H u g u e n i n , J r . a n d K i r s t e n L . z e r g e r ,
A t t o r n e y s f o r t h e K e r n C o m m u n i t y C o l l e g e C T A - N E A ;
R o n a l d D . W e n k a r t , A t t o r n e y , S c h o o l s L e g a l S e r v i c e f o r t h e K e r n
C o m m u n i t y C o l l e g e D i s t r i c t .
B e f o r e A l l e n R . L i n k , A d m i n i s t r a t i v e L a w J u d g e .
PROCEDURAL HISTORY
O n J a n u a r y 2 3 , 1 9 8 1 , t h e K e r n C o m m u n i t y C o l l e g e c h a p t e r
o f t h e C T A - N E A ( h e r e a f t e r A s s o c i a t i o n o r C h a r g i n g P a r t y ) f i l e d
a n u n f a i r p r a c t i c e c h a r g e a g a i n s t t h e K e r n C o m m u n i t y
C o l l e g e D i s t r i c t ( h e r e a f t e r D i s t r i c t o r R e s p o n d e n t ) a l l e g i n g t h a t
t h e D i s t r i c t v i o l a t e d t h e E d u c a t i o n a l E m p l o y m e n t R e l a t i o n s
A c t ( h e r e a f t e r E E R A o r A c t ) b y r e f u s i n g t o b a r g a i n t h e
i m p l e m e n t a t i o n a n d i m p a c t o f l a y o f f s w h i c h t o o k p l a c e i n t h e
s p r i n g o f 1 9 8 1 .
O n F e b r u a r y 5 , 1 9 8 1 , t h e R e s p o n d e n t f i l e d a n a n s w e r . O n
F e b r u a r y 2 5 , 1 9 8 1 , a n i n f o r m a l c o n f e r e n c e w a s h e l d . N o
s e t t l e m e n t o f a n y p o r t i o n o f t h e c h a r g e w a s r e a c h e d .

On June 16, 1981, a formal hearing was held. Each party
briefed its position regarding the issues presented at the
hearing. The case was submitted on August 24, 1981.
FINDINGS OF FACT
It was stipulated that the Kern Community College chapter
of CTA-NEA is an "employee organization" and that the Kern
Community College District is an "employer" as those terms are
defined in the Act.
On September 11, 1980, James Young, Chancellor and chief
administrative officer of the District, sent a letter to all
staff members outlining the financial problems of the
District. He indicated that "a careful review indicates an
overstaffing condition" and concluded "it will be necessary to
reduce some programs and services now being offered. " He also
stated that this process is "complex and may take the entire
academic year to conclude. " This letter made no direct mention
of layoffs.
On November 6, 1980, Dr. Young formally reported to the
District's Board of Trustees that layoffs might be necessary
for the 1981-82 academic year. This was the first public
mention by the District that layoffs were being considered.
At this same November 6th meeting, Dean Close, then
President of the Association, presented a five-page written
statement to the Board of Trustees responding to Dr. Young's
comments regarding the necessity for layoffs.
2
On June 	16, 	1981, 	a 	formal 	hearing 	was 	held. 	Each 	party
briefed 	its 	position 	regarding 	the 	issues 	presented 	at 	the
hearing. 	The 	case 	was 	submitted 	on August 	24, 	1981.
FINDINGS 	OF 	FACT
It 	was 	stipulated 	that 	the 	Kern Community College 	chapter
of 	CTA-NEA 	is 	an 	"employee 	organization" 	and 	that 	the 	Kern
Community College 	District 	is 	an 	"employer" 	as 	those 	terms 	are
defined 	in 	the 	Act.
On September 	11, 	1980, 	James 	Young, 	Chancellor 	and 	chief
administrative 	officer 	of 	the 	District, 	sent 	a 	letter 	to 	all
staff 	members 	outlining 	the 	financial 	problems 	of 	the
District. 	He 	indicated 	that 	"a 	careful 	review 	indicates 	an
over staffing 	condition'' 	and 	concluded 	"it 	will 	be 	necessary 	to
reduce 	some 	programs 	and 	services 	now 	being 	offered." 	He 	also
stated 	that 	this 	process 	is 	"complex 	and 	may 	take 	the 	entire
academic 	year 	to 	conclude." 	This 	letter 	made 	no 	direct 	mention
of 	layoffs.
On November 	6, 	1980, 	Dr. 	Young 	formally 	reported 	to 	the
District's Board 	of 	Trustees 	that 	layoffs 	might 	be 	necessary
for 	the 	1981-82 	academic 	year,. 	This 	was 	the 	first 	public
mention 	by 	the 	District 	that 	layoffs 	were 	being 	considered.
At 	this 	same 	November 	6th 	meeting, 	Dean 	Close, 	then
President 	of 	the Association, 	presented 	a 	five-page 	written
statement 	to 	the 	Board 	of 	Trustees 	responding 	to 	Dr. 	Young's
comments 	regarding 	the 	necessity 	for 	layoffs.
2

In this statement, Close stated that the Association "would
like to discuss with you the long-established
college-community, faculty-administration relationship; the
Chancellor's proposal to eliminate faculty; the potential
impact of this proposal; and, finally, to present the position
of the faculty."
He concluded his remarks with: 	"The California Teachers'
Association is insistent that negotiations be opened
immediately to assure the faculty input and information with
regard to this very sensitive labor issue."
Four days later, on November 10, 1980, Dean Close sent the
following request to meet and negotiate the proposed layoff to
Chancellor Young:
Pursuant to Section 3543.2 of the Government
Code, the Association herein requests a
meeting with the district representative to
negotiate the proposed layoff of Association
Bargaining Unit members. Association
representatives are available to meet, and
anticipate an immediate response to this
request.
In a letter of November 13, 1980, Dean Close requested meetings
"on an informal basis in a non-negotiating posture" with
Dr. Young and other District representatives "for the purpose
of attempting to resolve the issues that came before the Board
at the November 6 meeting, with particular regard to the
possible reduction in the number of faculty members for the
1981-82 academic year."
W
In 	this 	statement, 	Close 	stated 	that 	the Association 	"would
like 	to 	discuss 	with 	you 	the 	long-established
college-community, 	faculty-administration 	relationship; 	the
Chancellor's 	proposal 	to 	eliminate 	faculty; 	the 	potential
impact 	of 	this 	proposal; 	and, 	finally, 	to 	present 	the 	position
of 	the 	faculty."
He 	concluded 	his 	remarks 	with: 	"The 	California Teachers'
Association 	is 	insistent 	that 	negotiations 	be 	opened
immediately 	to 	assure 	the 	faculty 	input 	and 	information with
regard 	to 	this 	very 	sensitive 	labor 	issue."
Four 	days 	later, 	on November 	10, 	1980, 	Dean 	Close 	sent 	the
following 	request 	to meet 	and 	negotiate 	the 	proposed 	layoff 	to
Chancellor 	Young:
Pursuant 	to Section 3543.2 	of 	the Government
Code, 	the 	Association 	herein 	requests 	a
meeting 	with 	the 	district 	representative 	to
negotiate 	the 	proposed 	layoff 	of 	Association
Bargaining Unit members. 	Association
representatives 	are 	available 	to meet, 	and
anticipate 	an 	immediate 	response 	to 	this
request.
In 	a 	letter 	of November 	13, 	1980, 	Dean 	Close 	requested 	meetings
"on 	an 	informal 	basis 	in 	a 	non-negotiating 	posture" 	with
Dr. 	Young 	and 	other 	District 	representatives 	"for 	the 	purpose
of 	attempting 	to 	resolve 	the 	issues 	that 	came 	before 	the 	Board
at 	the November 	6 meeting, 	with 	particular 	regard 	to 	the
possible 	reduction 	in 	the 	number 	of 	faculty 	members 	for 	the
1981-82 	academic 	year."
3

On November 20, 1980, Chancellor Young answered Close's
letters of November 10th and 13th by accepting only the request
for informal meetings:
Even though you asked for immediate
negotiations in your first letter, we are
proceeding on the basis of the second letter
and will continue the process of your
November 13 request for informal meetings.
Informal meetings between District representatives and
Association members were held on November 18 and December 2,
1980, and January 6, 1981. These meetings, characterized by
both parties as "informational, " involved discussions of the
District's financial status, current legislation regarding
California public schools, communications with the state
senator for the District, and other developments at the state
level that might affect community colleges throughout the
state . 	The chief negotiator for the Association, John Reid,
was not invited to or present at any of these meetings. No
bargaining took place at these meetings and no proposals were
exchanged. 	There was no substantive discussions regarding
either the implementation or impact of layoffs.
At the December 2 meeting, Chancellor Young told the
Association to utilize their reopener provisions of the
contract to make a proposal regarding the effects of layoffs.
In a December 10, 1980, letter to Dr. Young and the Board
of Trustees, Dean Close restated the Association's demand for
formal negotiations with regard to the proposed dismissal of
On November 	20, 	1980, 	Chancellor 	Young 	answered Close's
letters 	of 	November 	10th 	and 	13th 	by 	accepting 	only 	the 	request
for 	informal 	meetings:
Even 	though 	you 	asked 	for 	immediate
negotiations 	in 	your 	first 	letter, 	we 	are
proceeding 	on 	the 	basis 	of 	the 	second 	letter
and 	will 	continue 	the 	process 	of 	your
November 	13 	request 	for 	informal 	meetings.
Informal 	meetings 	between District 	representatives 	and
Association members 	were 	held 	on November 	18 	and 	December 	2,
1980, 	and 	January 	6, 	1981. 	These 	meetings, 	characterized 	by
both 	parties 	as 	II informational, 11 	involved 	discussions 	of 	the
District's 	financial 	status, 	current 	legislation 	regarding
California 	public 	schools, 	communications 	with 	the 	state
senator 	for 	the 	District, 	and 	other 	developments 	at 	the 	state
level 	that 	might 	affect 	community 	colleges 	throughout 	the
state. 	The 	chief 	negotiator 	for 	the'Association, 	John 	Reid,
was 	not 	invited 	to 	or 	present 	at 	any 	of 	these 	meetings. 	No
bargaining 	took 	place 	at 	these 	meetings 	and 	no 	proposals 	were
exchanged. 	There 	was 	no 	substantive 	discussions 	regarding
either 	the 	implementation 	or 	impact 	of 	layoffs.
At 	the 	December 	2 meeting, 	Chancellor 	Young 	told 	the
Association 	to 	utilize 	their 	reopener 	provisions 	of 	the
contract 	to make 	a 	proposal 	regarding 	the 	effects 	of 	layoffs.
In 	a 	December 	10, 	1980, 	letter 	to Dr. 	Young 	and 	the 	Board
of 	Trustees, 	Dean 	Close 	restated 	the 	Association's 	demand 	for
formal 	negotiations 	with 	regard 	to 	the 	proposed 	dismissal 	of
4

the District's regular contract certificated employees. 	As a
part of this demand Mr. Close included the following:
Layoffs or termination of employment has
been legally held to be clearly within the
scope of bargaining. It is also established
Federal and State law that the employer must
give the employee organization notice and
the opportunity to negotiate over the
effects of the decision; for example, the
order and timing of employee layoffs,
severance payments, relocation, retraining,
and re-employment rights. 	(Citations
omitted. )
In addition to the above described letter Mr. Close sent
two other letters to Chancellor Young on December 10, 1980.
One of these is characterized by the following exerpts:
Since we are committed to the positive
resolution of our difficulties, we are
submitting for your consideration some
cost-saving and income producing suggestions
generated from the faculty.
* 	* * *
The faculty of the Kern Community College
District has long enjoyed a positive and
productive working relationship with the
Board of Trustees and the District
administration. In the past, when the
District has faced challenges and/or crises,
whether they were financial, philosophical,
or theoretical, we have, through cooperative
effort, been able to find effective,
workable solutions. We are convinced that
there is no reason to abandon the joint
approaches which have served us well in the
past.
The third letter was actually an attachment to the second
in that, after some introductory remarks, it set forth the
the District's 	regular 	contract 	certificated 	employees. 	As 	a
part 	of 	this 	demand Mr. 	Close 	included 	the 	following:
Layoffs 	or 	termination 	of 	employment 	has
been 	legally 	held 	to 	be 	clearly 	within 	the
scope 	of 	bargaining. 	It 	is 	also 	established
Federal 	and 	State 	law 	that 	the 	employer 	must
give 	the 	employee 	organization 	notice 	and
the 	opportunity 	to 	negotiate 	over 	the
effects 	of 	the 	decision; 	for 	example, 	the
order 	and 	timing 	of 	employee 	layoffs,
severance 	payments, 	relocation, 	retraining,
and 	re-employment 	rights. 	(Citations
omitted.}
In 	addition 	to 	the 	above 	described 	letter 	Mr. 	Close 	sent
two 	other 	letters 	to Chancellor 	Young 	on December 	10, 	1980.
One 	of 	these 	is 	characterized 	by 	the 	following 	exerpts:
Since 	we 	are 	committed 	to 	the 	positive
resolution of 	our 	difficulties, 	we 	are
submitting 	for 	your 	consideration some
cost-saving 	and 	income 	producing 	suggestions
generated 	from 	the 	faculty.
* 	* 	* 	* 	*
The 	faculty 	of 	the 	Kern Community College
District 	has 	long 	enjoyed 	a 	positive 	and
productive 	working 	relationship 	with 	the
Board 	of 	Trustees 	and 	the 	District
administration. 	In 	the 	past, 	when 	the
District 	has 	faced 	challenges 	and/or 	crises,
whether 	they 	were 	financial, 	philosophical,
or 	theoretical, 	we 	have, 	through 	cooperative
effort, 	been 	able 	to 	find 	effective,
workable 	solutions. 	We 	are 	convinced 	that
there 	is 	no 	reason 	to 	abandon 	the 	joint
approaches 	which 	have 	served 	us 	well 	in 	the
past.
The 	third 	letter 	was 	actually 	an 	attachment 	to 	the 	second
in 	that, 	after 	some 	introductory 	remarks, 	it 	set 	forth 	the
5

cost-saving and income producing suggestions referenced in the
second letter.
On December 30, 1980, Chancellor Young responded to the
three December 10 letters from the Association. This response,
in pertinent part, is as follows:
I am in receipt of three letters dated
December 10, 1980, which set forth the
Association's position on reductions in
programs and services. It is my intent and
that of the Board of Trustees to continue
the discussions we have held during the
recent months.
On January 8, 1981, the District's Board of Trustees
unilaterally adopted Young's recommendations for staff
layoffs. No bargaining regarding the implementation or effects
of these layoffs had taken place at the time of this unilateral
decision. 	Pursuant to this action, approximately eight
certificated employees received notices on or about
January 21, 1981, of the District's intention to terminate
their services.
On January 13, 1981, Chancellor Young wrote to John Reid,
the Association's official negotiator, stating the Board of
Trustees was prepared to hear reopener proposals from the
Association, pursuant to the contract between the parties.
Each side was entitled to "reopen" two subjects of its choice
in addition to wages.
At a meeting of the District Board of Trustees on
January 22, 1981, John Reid, as the newly appointed Association
cost-saving 	and 	income 	producing 	suggestions 	referenced 	in 	the
second 	letter.
On December 	30, 	1980, 	Chancellor 	Young 	responded 	to 	the
three December 	10 	letters 	from 	the Association. 	This 	response,
in 	pertinent 	part, 	is 	as 	follows:
I 	am 	in 	receipt 	of 	three 	letters 	dated
December 	10, 	1980, 	which 	set 	forth 	the
Association's 	position on 	reductions 	in
programs 	and 	services. 	It 	is 	my 	intent 	and
that 	of 	the 	Board 	of 	Trustees 	to 	continue
the 	discussions 	we 	have 	held 	during 	the
recent 	months.
On January 	8, 	1981, 	the 	District's 	Board 	of 	Trustees
unilaterally adopted 	Young's 	recommendations 	for 	staff
layoffs. 	No 	bargaining 	regarding 	the 	implementation or 	effects
of 	these 	layoffs 	had 	taken 	place 	at 	the 	time 	of 	this 	unilateral
decision. 	Pursuant 	to 	this 	action, 	approximately 	eight
certificated 	employees 	received 	notices 	on 	or 	about
January 	21, 	1981, 	of 	the 	District's 	intention 	to 	terminate
their 	services.
On January 	13, 	1981, 	Chancellor 	Young 	wrote 	to John Reid,
the 	Association's 	official 	negotiator, 	stating 	the 	Board 	of
Trustees 	was 	prepared 	to 	hear 	reopener 	proposals 	fran 	the
Association, 	pursuant 	to 	the 	contract 	between 	the 	parties.
Each 	side 	was 	entitled 	to 	II reopen II 	two 	subjects 	of 	its 	choice
in 	addition 	to 	wages.
At 	a 	meeting 	of 	the 	District 	Board 	of 	Trustees 	on
January 	22, 	1981, 	John 	Reid, 	as 	the 	newly 	appointed Association
6

president, addressed the Board. He stated, among other things,
that the Association had "asked the District administration to
meet with us in formal negotiations to resolve this issue. We
have requested such negotiations, and we have demanded these
negotiations. 	The Chancellor refuses to meet with us to
negotiate the effects of such dismissals. " He concluded with
the statement:
The faculty is left with only one recourse:
An unfair labor practice charge is being
filed against the Kern Community College
District by CTA. This action is reluctantly
taken. Even at this hour we again request
to meet with the District administration in
an effort to resolve the crisis facing us
through the process of collective
bargaining. If the District will meet with
us in good faith negotiations, the unfair
labor practice charge will be withdrawn.
On January 23, 1981, the charge initiating this case was
filed.
On March 19 the Association submitted its reopener proposls
to the District for "sunshining." One of these proposals
arguably refers to an effect of layoffs. The District believes
that this proposal represents the Association's proposals
regarding the "effects of layoffs. " The District points to the
ongoing negotiations on these reopener proposals as a complete
defense to the Association's charge of previously failing to
negotiate.
Chancellor Young admitted that the District did have an
obligation to negotiate the effects of layoff, but that he did
7
president, 	addressed 	the 	Board. 	He 	stated, 	among 	other 	things,
that 	the Association 	had 	"asked 	the 	District 	administration 	to
meet 	with 	us 	in 	formal 	negotiations 	to 	resolve 	this 	issue. 	We
have 	requested 	such 	negotiations, 	and 	we 	have 	demanded 	these
negotiations. 	The Chancellor 	refuses 	to meet 	with 	us 	to
negotiate 	the 	effects 	of 	such 	dismissals." 	He 	concluded with
the 	statement:
The 	faculty 	is 	left 	with 	only 	one 	recourse:
An 	unfair 	labor 	practice 	charge 	is 	being
filed 	against 	the 	Kern Community College
District 	by CTA. 	This 	action 	is 	reluctantly
taken. 	Even 	at 	this 	hour 	we 	again 	request
to meet 	with 	the 	District 	administration 	in
an 	effort 	to 	resolve 	the 	crisis 	facing 	us
through 	the 	process 	of 	collective
bargaining. 	If 	the 	District 	will 	meet 	with
us 	in 	good 	faith 	negotiations, 	the 	unfair
labor 	practice 	charge 	will 	be 	withdrawn.
On January 	23, 	1981, 	the 	charge 	initiating 	this 	case 	was
filed.
On March 	19 	the Association submitted 	its 	reopener 	proposls
to 	the District 	for 	"sunshining." 	One 	of 	these 	proposals
arguably 	refers 	to 	an 	effect 	of 	layoffs. 	The 	District 	believes
that 	this 	proposal 	represents 	the Association's 	proposals
regarding 	the 	"effects 	of 	layoffs." 	The 	District 	points 	to 	the
ongoing 	negotiations 	on 	these 	reopener 	proposals 	as 	a 	complete
defense 	to 	the Association's 	charge 	of 	previously 	failing 	to
negotiate.
Chancellor 	Young 	admitted 	that 	the 	District 	did 	have 	an
obligation 	to negotiate 	the 	effects 	of 	layoff, 	but 	that 	he 	did
7

not communicate that admission to the Association except with
regard to the January 13th letter which refers to contractual
reopeners. The Chancellor went on to state that, in his
opinion, the only other way that the Association could have
properly brought to the bargaining table the subject of the
effect or implementation of layoffs would be for them to have
submitted a formal proposal to the District which would have
been mutually acceptable to both parties. He insists that, had
such a formal proposal been presented by the Association the
District then could have decided whether it would agree to
negotiate. He cites the contractual provisions regarding
reopeners as his authority for such a position.
In May 1981 the District completed the termination process
for approximately eight certificated employees.
ISSUES
not 	communicate 	that 	admission 	to 	the Association 	except with
regard 	to 	the 	January 	13th 	letter 	which 	refers 	to 	contractual
reopeners. 	The 	Chancellor 	went 	on 	to 	state 	that, 	in 	his
opinion, 	the 	only 	other 	way 	that 	the Association 	could 	have
properly 	brought 	to 	the 	bargaining 	table 	the 	subject 	of 	the
effect 	or 	implementation of 	layoffs 	would 	be 	for 	them 	to 	have
submitted a 	formal 	proposal 	to 	the 	District 	which would 	have
been 	mutually acceptable 	to 	both 	parties. 	He 	insists 	that, 	had
such 	a 	formal 	proposal 	been 	presented 	by 	the 	Association 	the
District 	then 	could 	have 	decided whether 	it 	would 	agree 	to
negotiate. 	He 	cites 	the 	contractual 	provisions 	regarding
reopeners 	as 	his 	authority 	for 	such 	a 	position.
In May 	1981 	the 	District 	completed 	the 	termination 	process
for 	approximately 	eight 	certificated 	employees.
ISSUES
1. Is the subject of "implementation and impact of layoff"
within the scope of negotiations under the EERA?
2. After notice from the District, did the Association
communicate a sufficiently clear demand to bargain such
"implementation and impact?"
3. Did the District refuse to bargain such "implementation
and impact?"
DISCUSSION AND CONCLUSION
A. Scope
With regard to the first issue, the Board in San Mateo City
School District (5/20/80) PERB Decision No. 129, established
1. 	Is 	the 	subject 	of 	"implementation and 	impact 	of 	layoff"
within 	the 	scope 	of 	negotiations 	under 	the EERA?
2. 	After 	notice 	fran 	the 	District, 	did 	the Association
communicate 	a 	sufficiently 	clear 	demand 	to 	bargain 	such
11 implementation and 	impact? 11
3. 	Did 	the 	District 	refuse 	to 	bargain 	such 	"implementation
and 	impact?"
DISCUSSION AND 	CONCLUSION
A. 	Scope
With 	regard 	to 	the 	first 	issue, 	the 	Board 	in 	San Mateo 	City
School 	District 	(5/20/80) 	PERB 	Decision No. 	129, 	established
8

the test for determining whether a subject is within the scope
of bargaining under the EERA. That test is:
(1) Does the subject logically and reasonably relate to
one of the subjects enumerated in section 3542. 2?
(2) If the subject arguably meets the threshold test, it
may be necessary to apply the balancing test where the issue is
neither patently within or outside scope, by considering:
(a) whether the subject is of such concern to both
management and employees that conflict is likely to occur and
whether the mediatory influence of collective bargaining is the
appropriate means of resolving the conflict, and
(b) whether the employer's obligation to negotiate
would significantly abridge his freedom to exercise those
managerial prerogatives essential to achievement of the
District's mission.
Under this test, both the implementation and impact of
layoff have been held to be within the scope of representation
by the Board. Healdsburg Union High School District (6/19/80)
PERB Decision No. 132.
There was extensive discussion in the briefs regarding
potential conflict between "implementation and impact of
layoff" and specified Educational Code sections. As there were
never negotiations of any sort prior to the date the instant
charge was filed, the question of the proper parameters of such
negotiations never came into issue. Therefore, it is
the 	test 	for 	determining 	whether 	a 	subject 	is 	within 	the 	scope
of 	bargaining 	under 	the 	EERA. 	That 	test 	is:
(l) 	Does 	the 	subject 	logically 	and 	reasonably 	relate 	to
one 	of 	the 	subjects 	enumerated 	in 	section 3542.2?
(2) 	If 	the 	subject 	arguably 	meets 	the 	threshold 	test, 	it
may 	be 	necessary 	to 	apply 	the 	balancing 	test 	where 	the 	issue 	is
neither 	patently 	within 	or 	outside 	scope, 	by 	considering:
(a) 	whether 	the 	subject 	is 	of 	such 	concern 	to 	both
management 	and 	employees 	that 	conflict 	is 	likely 	to 	occur 	and
whether 	the 	mediatory 	influence 	of 	collective 	bargaining 	is 	the
appropriate 	means 	of 	resolving 	the 	conflict, 	and
(b) 	whether 	the 	employer's 	obligation 	to 	negotiate
would 	significantly 	abridge 	his 	freedom 	to 	exercise 	those
managerial 	prerogatives 	essential 	to 	achievement 	of 	the
District's 	mission.
Under 	this 	test, 	both 	the 	implementation and 	impact 	of
layoff 	have 	been 	held 	to 	be 	within 	the 	scope 	of 	representation
by 	the 	Board. 	Healdsburg Union High 	School 	District 	(6/19/80)
PERB 	Decision No. 	132.
There 	was 	extensive 	discussion 	in 	the 	briefs 	regarding
potential 	conflict 	between 	"implementation 	and 	impact 	of
layoff" 	and 	specified Educational Code 	sections. 	As 	there 	were
never 	negotiations 	of 	any 	sort 	prior 	to 	the 	date 	the 	instant
charge 	was 	filed, 	the 	question 	of 	the 	proper 	parameters 	of 	such
negotiations 	never 	came 	into 	issue. 	Therefore, 	it 	is
9

determined that the subject of implementation and impact of
layoff is within the scope of representation.
B. Association's Demand for Negotiations
Although a unilateral change in the area of implementation
and impact of layoffs is within the scope of representation the
employer's action is not unlawful unless such change is made
without notice and an oportunidado negotiate extended to the
exclusive representative, Davis Unified School District
(2/22/80) PERB Decision No. 116, Pajaro Valley Education
Association (5/22/78) PERB Decision No. 51, NLRB v. Katz (1962)
369 US 736, [50 LRRM 2177].
On November 6, 1980, the District made the first public
reference to the necessity for layoffs. At that meeting the
Association president, Dean Close, made mention of cooperation
but concluded with an insistence "that negotiations be opened
immediately to assure the faculty input and information with
regard to this very sensitive labor issue."
In addition to reading his statement a copy was given to
the Board and made a part of the official records of that Board
meeting.
On November 10, 1980, four days after the first public
announcement of a layoff necessity, the Association sent an
unequivocal request to negotiate to the Chancellor. However,
the request was to negotiate "the proposed layoff of
Association Bargaining Unit members. "
10
determined 	that 	the 	subject 	of 	implementation and 	impact 	of
layoff 	is 	within 	the 	scope 	of 	representation.
B. 	Association's Demand 	for 	Negotiations
Although 	a 	unilateral 	change 	in 	the 	area 	of 	implementation
and 	impact 	of 	layoffs 	is 	within 	the 	scope 	of 	representation 	the
employer's 	action 	is 	not 	unlawful 	unless 	such 	change 	is 	made
without 	notice 	and 	an 	oportunity 	to 	negotiate 	extended 	to 	the
exclusive 	representative, 	Davis 	Unified 	School 	District
(2/22/80) 	PERB 	Decision No. 	116, 	Pajaro Valley Education
Association 	(5/22/78) 	PERB 	Decision No. 	51, 	NLRB 	v. 	Katz 	(1962)
369 	US 	736, 	[50 	LRRM 	2177].
On November 	6, 	1980, 	the 	District made 	the 	first 	public
reference 	to 	the 	necessity 	for 	layoffs. 	At 	that 	meeting 	the
Association president, 	Dean 	Close, 	made 	mention of 	cooperation
but 	concluded 	with 	an 	insistence 	"that 	negotiations 	be 	opened
immediately 	to 	assure 	the 	faculty 	input 	and 	information with
regard 	to 	this 	very 	sensitive 	labor 	issue."
In 	addition 	to 	reading 	his 	statement 	a copy 	was 	given 	to
the 	Board 	and 	made a 	part 	of 	the 	official 	records 	of 	that 	Board
meeting.
On November 	10, 	1980, 	four 	days 	after 	the 	first 	public
announcement 	of 	a 	layoff 	necessity, 	the 	Association sent 	an
unequivocal 	request 	to 	negotiate 	to 	the 	Chancellor. 	However,
the 	request 	was 	to negotiate 	"the 	proposed 	layoff 	of
Association Bargaining Unit members."
10

On November 13, 1980, the Association requested "informal
non-negotiating" meetings with regard to the possible reduction
in the faculty for the 1981-82 school year. Chancellor Young,
when answering the Association's letters of the 10th and 13th,
agreed only to the informal meetings.
On December 2 at one of these "informational"
non-negotiating meetings the subject of negotiations was
discussed. 	Chancellor Young told the Association to make use
of the reopener provisions of the contract to make a proposal
regarding the effects of layoffs.
On December 10 the Association again requested
negotiations. 	This time, however, they requested negotiations
not only with regard to layoffs but referenced federal and
state law that required the employer to give the employee
organization the opportunity to negotiate over the effects of
the decision to layoff. The District insists that the two
other letters sent to the Chancellor on the same date regarding
the continuation of the informal non-negotiating meetings were
contradictory and confusing. The circumstances leading up to
and surrounding these December 10, 1980 letters support a
determination that the District knew, or should have known,
that the Association was requesting, negotiations on both the
subject of the decision to layoff and the effects of the layoff
on bargaining unit employees.
11
On November 	13, 	1980, 	the Association 	requested 	"informal
non-negotiating" 	meetings 	with 	regard 	to 	the 	possible 	reduction
in 	the 	faculty 	for 	the 	1981-82 	school 	year. 	Chancellor 	Young,
when 	answering 	the 	Association's 	letters 	of 	the 	10th 	and 	13th,
agreed 	only 	to 	the 	informal 	meetings.
On December 	2 	at 	one 	of 	these 	"informational"
non-negotiating 	meetings 	the 	subject 	of 	negotiations 	was
discussed. 	Chancellor 	Young 	told 	the Association 	to make 	use
of 	the 	reopener 	provisions 	of 	the 	contract 	to make 	a 	proposal
regarding 	the 	effects 	of 	layoffs.
On December 	10 	the Association 	again 	requested
negotiations. 	This 	time, 	however, 	they 	requested 	negotiations
not 	only 	with 	regard 	to 	layoffs 	but 	referenced 	federal 	and
state 	law 	that 	required 	the 	employer 	to 	give 	the 	employee
organization 	the 	opportunity 	to negotiate 	over 	the 	effects 	of
the 	decision 	to 	layoff. 	The District 	insists 	that 	the 	two
other 	letters 	sent 	to 	the 	Chancellor on 	the 	same 	date 	regarding
the 	continuation 	of 	the 	informal 	non-negotiating 	meetings 	were
contradictory 	and 	confusing. 	The 	circumstances 	leading 	up 	to
and 	surrounding 	these 	December 	10, 	1980 	letters 	support 	a
determination 	that 	the District 	knew, 	or 	should 	have 	known,
that 	the Association was 	requesting, 	negotiations 	on both 	the
subject 	of 	the 	decision 	to 	layoff 	and 	the 	effects 	of 	the 	layoff
on 	bargaining 	unit 	employees.
11

C. District's Refusal to Negotiate
Although the District is correct when it states that it is
not required to respond to a request to negotiate a subject
that is outside the scope of representation, it cannot ignore a
proper demand to negotiate just because it is included in the
same letter as an improper one.
In Healdsburg Union High School District (6/19/80) PERB
Decision No. 132, at page 8, the majority opinion stated:
In my view, the side offering a proposal has
a responsibility to frame it in such a way
that it is susceptible to meaningful
negotiations. 	Similarly, the side receiving
a proposal has a responsibility to offer a
meaningful response and not to summarily
reject a proposal which may, in some
respects, pertain to issues which are
appropriately negotiable. However, while
some refinement and specificity in drafting
is necessary, the form in which proposals
are initially presented marks only the
beginning of the negotiating process.
Indeed, if one side can refuse to negotiate
about a proposal until the offering side has
so narrowed it that it contains only items
the former accepts as unquestionably within
scope, then the bilateral process is
thwarted rather than served.
On December 30, 1980, Chancellor Young responded to these
three letters by stating, inter alia, "It is my intent and that
of the Board of Trustees to continue the discussions we have
held during the recent months."
On January 8, 1981, the District's Board of Trustees
adopted the Chancellor's recommendations for staff layoffs.
12
C. 	District's 	Refusal 	to Negotiate
Although 	the 	District 	is 	correct 	when 	it 	states 	that 	it 	is
not 	required 	to 	respond 	to 	a 	request 	to negotiate 	a 	subject
that 	is 	outside 	the 	scope 	of 	representation, 	it 	cannot 	ignore 	a
proper 	demand 	to negotiate 	just 	because 	it 	is 	included 	in 	the
same 	letter 	as 	an 	improper 	one.
In Healdsburg Union High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132, 	at 	page 	8, 	the 	majority 	opinion stated:
In my 	view, 	the 	side 	offering a 	proposal 	has
a 	responsibility 	to 	frame 	it 	in 	such 	a way
that 	it 	is 	susceptible 	to meaningful
negotiations. 	Similarly, 	the 	side 	receiving
a 	proposal 	has 	a 	responsibility 	to 	offer 	a
meaningful 	response 	and 	not 	to 	summarily
reject 	a 	proposal 	which 	may, 	in 	some
respects, 	pertain 	to 	issues 	which 	are
appropriately 	negotiable. 	However, 	while
some 	refinement 	and 	specificity 	in 	drafting
is 	necessary, 	the 	form 	in 	which 	proposals
are 	initially presented 	marks 	only 	the
beginning 	of 	the 	negotiating 	process.
Indeed, 	if 	one side 	can 	refuse 	to 	negotiate
about 	a 	proposal 	until 	the 	offering 	side 	has
so 	narrowed 	it 	that 	it 	contains 	only 	items
the 	former 	accepts 	as 	unquestionably 	within
scope, 	then 	the 	bilateral 	process 	is
thwarted 	rather 	than 	served.
On December 	30, 	1980, 	Chancellor 	Young 	responded 	to 	these
three 	letters 	by 	stating, 	inter 	alia, 	"It 	is 	my 	intent 	and 	that
of 	the 	Board 	of 	Trustees 	to 	continue 	the 	discussions 	we 	have
held 	during 	the 	recent months."
On January 	8, 	1981, 	the 	District's 	Board 	of 	Trustees
adopted 	the 	Chancellor's 	recommendations 	for 	staff 	layoffs.
12

Based on the circumstances set forth above, it is
determined that the Association did request negotiations on the
subject of the effects of layoff even though the language used
was less than exact. In making this determination the
Chancellor's manifested position, both at the time of the
subject circumstances and at the time of the hearing is a
primary factor. This position was that the District had to
negotiate the effects of layoff, but it was required to do so
only if the Association brought the subject to the negotiating
table as one of its elective subjects pursuant to the reopener
clause of the contract. The Chancellor also insisted that had
the Association tendered an "effects of layoff" proposal prior
to the time for reopeners the District could have negotiated
such effects but was under no duty to do so.
The District insists that negotiations were proceeding at
the time of the hearing and, therefore, the Association's
charge was moot. The District is confusing the negotiations
with regard to the reopener clause of the existing contract
with the required negotiations in response to the change in the
status quo occasioned by the District's announced layoffs.
Any agreement reached as a result of the negotiations on the
contractual reopeners would have been prospective only, to take
effect on July 1, 1981, and would have had no effect on the
layoffs to be implemented at the end of 1980-81 school year.
13
Based on 	the 	circumstances 	set 	forth 	above, 	it 	is
determined 	that 	the Association did 	request 	negotiations 	on the
subject 	of 	the 	effects 	of 	layoff 	even 	though 	the 	language 	used
was 	less 	than 	exact. 	In making 	this 	determination 	the
Chancellor's 	manifested 	position, 	both 	at 	the 	time 	of 	the
subject 	circumstances 	and 	at 	the 	time 	of 	the 	hearing 	is 	a
primary 	factor. 	This 	position 	was 	that 	the District 	had 	to
negotiate 	the 	effects 	of 	layoff, 	but 	it 	was 	required 	to 	do 	so
only 	if 	the 	Association 	brought 	the 	subject 	to 	the 	negotiating
table 	as 	one 	of 	its 	elective 	subjects 	pursuant 	to 	the 	reopener
clause 	of 	the 	contract. 	The 	Chancellor 	also 	insisted 	that 	had
the Association tendered 	an 	"effects 	of 	layoff" 	proposal 	prior
to 	the 	time 	for 	reopeners 	the 	District 	could 	have 	negotiated
such 	effects 	but 	was 	under 	no 	duty 	to 	do so.
The District 	insists 	that 	negotiations 	were 	proceeding 	at
the 	time 	of 	the 	hearing 	and, 	therefore, 	the Association's
charge 	was 	moot. 	The District 	is 	confusing 	the 	negotiations
with 	regard 	to 	the 	reopener 	clause 	of 	the 	existing 	contract
with 	the 	required 	negotiations 	in 	response 	to 	the 	change 	in 	the
status 	quo 	occasioned 	by 	the 	District's 	announced 	layoffs.
Any 	agreement 	reached 	as 	a 	result 	of 	the 	negotiations 	on 	the
contractual 	reopeners 	would 	have 	been 	prospective 	only, 	to 	take
effect 	on July 	1, 	1981, 	and would 	have 	had 	no 	effect 	on 	the
layoffs 	to 	be 	implemented 	at 	the 	end 	of 	1980-81 	school 	year.
13

It is possible for an employee organization to
contractually waive its rights to negotiate future unilateral
changes. However, the burden would be on the employer to
assert this defense. Although the employer did assert this
defense, it was not persuasive. See "zipper clause" discussion
below.
The District also insists that there was no refusal to
negotiate as neither the Chancellor nor the Board of Trustees
ever told the charging party they refused to negotiate the
subject of "effects" of layoff and that silence is insufficient
to constitute such a refusal.
The refusal was manifested, not by silence, but by the
Chancellor's own December 30 letter. In that letter he
acknowledged receipt of the unequivocal demand to negotiate,
and stated that it was his intent and that of the Board of
Trustees to continue only the informal discussions. In
communicating that intent, he was also communicating a
rejection of the Association's demand to negotiate.
The District insists that the contractual "zipper clause"
precludes negotiations in the areas addressed by the contract.
Paragraphs three and four in the Memorandum of Agreement
between Charging Party and District contain the "zipper" clause
and are as follows:
3. Written Board and college policies and
procedures in effect on the date of this
contract that are within the scope of
representation shall remain in effect until
changes have been mutually agreed to by the
Board and the Exclusive Agent.
14
It 	is 	possible 	for 	an 	employee 	organization 	to
contractually 	waive 	its 	rights 	to 	negotiate 	future 	unilateral
changes. 	However, 	the 	burden 	would 	be 	on 	the 	employer 	to
assert 	this 	defense. 	Although 	the 	employer 	did 	assert 	this
defense, 	it was 	not 	persuasive. 	See 	"zipper 	clause" 	discussion
below.
The 	District 	also 	insists 	that 	there 	was 	no 	refusal 	to
negotiate 	as 	neither 	the 	Chancellor 	nor 	the 	Board 	of 	Trustees
ever 	told 	the 	charging 	party 	they 	refused 	to 	negotiate 	the
subject 	of 	"effects" 	of 	layoff 	and 	that 	silence 	is 	insufficient
to 	constitute 	such 	a 	refusal.
The 	refusal 	was 	manifested, 	not 	by 	silence, 	but 	by 	the
Chancellor's 	own December 	30 	letter. 	In 	that 	letter 	he
acknowledged 	receipt 	of 	the 	unequivocal 	demand 	to 	negotiate,
and 	stated 	that 	it 	was 	his 	intent 	and 	that 	of 	the 	Board 	of
Trustees 	to 	continue 	only 	the 	informal 	discussions. 	In
communicating 	that 	intent, 	he 	was 	also 	communicating 	a
rejection of 	the Association's 	demand 	to 	negotiate.
The District 	insists 	that 	the 	contractual 	"zipper 	clause"
precludes 	negotiations 	in 	the 	areas 	addressed 	by 	the 	contract.
Paragraphs 	three 	and 	four 	in 	the Memorandum 	of Agreement
between 	Charging 	Party and 	District 	contain 	the 	"zipper" 	clause
and 	are 	as 	follows:
3. 	Written 	Board 	and 	college 	policies 	and
procedures 	in 	effect 	on 	the 	date 	of 	this
contract 	that 	are 	within 	the 	scope 	of
representation 	shall 	remain 	in 	effect 	until
changes 	have 	been 	mutually agreed 	to 	by 	the
Board 	and 	the 	Exclusive Agent.
14

. Written policies and procedures outside
the scope of negotiations that directly
affect the faculty are continued in effect,
and proposed changes to these policies and
procedures will be made available for
consultation with the Academic Senates of
Bakersfield College, Cerro Coso College and
Porterville College.
There is nothing in either of these paragraphs which
expressly waive any Association rights to negotiate any
unilateral changes the District may effectuate during the life
of the contract. The PERB has held that in order to have a
waiver of a right to negotiate be effective it must be "clear
and unmistakeable" and that a zipper clause alone will not
constitute a clear and unmistakeable waiver of any otherwise
negotiated item. Amador Valley Joint Union High School
District (10/2/78) PERB Decision No. 74 [2 PERC 2192].
It has been found that the District violated section
3543.5 (c) by refusing to negotiate with the exclusive
representative regarding the effects of the layoff for
approximately eight certificated employees. These same
circumstances, the unilateral change in working conditions,
support a determination that the District violated section
3542.5 (b). This determination is based on the fact that the
exclusive representative, due to such unilateral change, was
denied its guaranteed right to represent the employees with
regard to any negotiations over changes in working conditions.
15
4. 	Written 	policies 	and 	procedures 	outside
the 	scope 	of 	negotiations 	that 	directly
affect 	the 	faculty 	are 	continued 	in 	effect,
and 	proposed 	changes 	to 	these 	policies 	and
procedures 	will 	be 	made 	available 	for
consultation with 	the Academic 	Senates 	of
Bakersfield 	College, 	Cerro Coso College 	and
Porterville 	College.
There 	is 	nothing 	in 	either 	of 	these 	paragraphs 	which
expressly 	waive 	any Association 	rights 	to 	negotiate 	any
unilateral 	changes 	the District may 	effectuate 	during 	the 	life
of 	the 	contract. 	The PERB 	has 	held 	that 	in 	order 	to 	have 	a
waiver 	of 	a 	right 	to negotiate 	be 	effective 	it must 	be 	"clear
and 	unmistakeable" 	and 	that 	a 	zipper 	clause 	alone will 	not
constitute 	a 	clear 	and 	unmistakeable 	waiver 	of 	any 	otherwise
negotiated 	item. 	Amador 	Valley 	Joint Union High School
District 	(10/2/78) 	PERB 	Decision No. 	74 	[2 	PERC 	2192].
It 	has 	been 	found 	that 	the 	District 	violated 	section
3543.S{c) 	by 	refusing 	to negotiate 	with 	the 	exclusive
representative 	regarding 	the 	effects 	of 	the 	layoff 	for
approximately 	eight 	certificated 	employees. 	These 	same
circumstances, 	the 	unilateral 	change 	in 	working 	conditions,
support 	a 	determination 	that 	the District 	violated 	section
3542.S{b). 	This 	determination 	is 	based 	on 	the 	fact 	that 	the
exclusive 	representative, 	due 	to 	such 	unilateral 	change, 	was
denied 	its 	guaranteed 	right 	to 	represent 	the 	employees 	with
regard 	to 	any 	negotiations 	over 	changes 	in 	working 	conditions.
15

REMEDY
Section 3541.5 (c) empowers PERB:
. . . to issue a decision and order directing
an offending party to cease and desist from
the unfair practice and to take such
affirmative action, including but not
limited to the reinstatement of employees
with or without back pay, as will effectuate
the policies of this chapter.
It has been the practice of the PERB in unilateral change
cases to order the employer to restore the status quo ante.
Therefore, it is appropriate to order the District to cease
and desist from refusing to negotiate the effects of the
layoffs and to take affirmative steps that will effectuate the
policies of the EERA.
The question of whether a remedy in a case involving
failure to negotiate the effects of layoff should include a
restoration to employment order with a retroactive back pay
award is a difficult one. The Board has issued status quo ante
remedies in other cases involving unilateral changes in working
conditions. Although it is appropriate to order the District
to negotiate the effects of the layoff it has been held by the
U. S. Supreme Court that "bargaining over the effects of a
decision must be conducted in a meaningful manner at a
meaningful time." First National Maintenance Corp. v. NLRB
(1981) 69 L. Ed. 2d 318, 	U.S. 	[107 LRRM 2705 at 2711].
In Stone and Thomas (1975) 221 NLRB 573,576 [90 LRRM 1570]
the court said: 	. meaningful bargaining over effects can
16
REMEDY
Section 	3541.5(c) 	empowers 	PERB:
••• 	to 	issue 	a 	decision and 	order 	directing
an 	offending 	party 	to 	cease 	and 	desist 	from
the 	unfair 	practice 	and 	to 	take 	such
affirmative 	action, 	including 	but 	not
limited 	to 	the 	reinstatement 	of 	employees
with 	or 	without 	back 	pay, 	as 	will 	effectuate
the 	policies 	of 	this 	chapter.
It 	has 	been 	the 	practice 	of 	the 	PERB 	in 	unilateral 	change
cases 	to 	order 	the 	employer 	to 	restore 	the 	status 	quo 	ante.
Therefore, 	it 	is 	appropriate 	to 	order 	the 	District 	to 	cease
and 	desist 	fran 	refusing 	to 	negotiate 	the 	effects 	of 	the
layoffs 	and 	to 	take 	affirmative 	steps 	that 	will 	effectuate 	the
policies 	of 	the EERA.
The 	question 	of 	whether 	a 	remedy 	in 	a 	case 	involving
failure 	to 	negotiate 	the 	effects 	of 	layoff 	should 	include 	a
restoration 	to 	employment 	order 	with 	a 	retroactive 	back 	pay
award 	is 	a 	difficult one. 	The 	Board 	has 	issued 	status quo 	ante
remedies 	in 	other 	cases 	involving 	unilateral 	changes 	in 	working
conditions. 	Although 	it 	is 	appropriate 	to 	order 	the 	District
to 	negotiate 	the 	effects 	of 	the 	layoff 	it 	has 	been 	held 	by 	the
u. 	s. 	Supreme Court 	that 	"bargaining 	over 	the 	effects 	of 	a
decision must 	be 	conducted 	in 	a 	meaningful 	manner 	at 	a
meaningful 	time. 11 	Fir st 	National Maintenance Corp. 	v. 	NLRB
(1981) 	69 	L.Ed.2d 	318, 	U.S. 	[107 	LRRM 	2705 	at 	2711].
In 	Stone 	and Thomas 	(1975) 	221 NLRB 	573,576 	[90 	LRRM 	1570]
the 	court 	said: 	II . 	. 	. 	.meaningful 	bargaining 	over 	effects 	can
16

only occur prior to the employer's making and acting on its
decision."
The Board has held that the election to lay off is not
negotiable. 	Healdsburg Union High School District (6/19/80)
PERB Decision No. 132. Therefore, a remedy that negated that
non-negotiable decision, absent extenuating circumstances,
would have questionable legal justification.
The California Supreme Court, in Highland Ranch v.
Agricultural Labor Relations Board (1981) 29 Cal. 3rd 848; 176
Cal. Rptr. 753, examined an analogous ALRB order and held as
follows :
In its order, the ALRB directed Highland to
bargain with the UFW over the effects of its
decision to sell the business. At the same
time, the board concluded that because of
Highland's changed position and the
employees' lack of any present economic
bargaining power vis-a-vis Highland, a
bargaining order, standing alone, would not
adequately remedy the unfair labor practice
in this case. Accordingly, in order to
effectuate the bargaining order and to help
ensure that Highland would not profit from
its unfair labor practice, the ALRB
accompanied its bargaining order with a
"limited back pay" requirement that the NLRB
has traditionally imposed to remedy
comparable violations under the federal
act. 	(See, e.g. , Transmarine Navigation
Corp. (1968) 170 NLRB 389 167 LRRM 1419] ;
NLRB v. W. R. Grace & Co., Const. Products,
supra, 571 F. 2d 279, 283 & fn. 6).
The NLRB fully explained the rationale for
this type of remedial order in its seminal
Transmarine decison, observing: 	"It is
apparent that, as a result of the
[ employer's] unlawful failure to bargain
17
only 	occur 	prior 	to 	the 	employer's 	making 	and 	acting 	on 	its
decision."
The 	Board 	has 	held 	that 	the 	election 	to 	lay 	off 	is 	not
negotiable. 	Healdsburg Union High 	School 	District 	{6/19/80)
PERB 	Decision No. 	132. 	Therefore, 	a 	remedy 	that 	negated 	that
non-negotiable 	decision, 	absent 	extenuating 	circumstances,
would 	have 	questionable 	legal 	justification.
The 	California 	Supreme Court, 	in Highland 	Ranch 	v.
Agricultural 	Labor 	Relations 	Board 	{1981) 	29 	Cal.3rd 	848; 	176
Cal.Rptr. 	753, 	examined 	an 	analogous ALRB 	order 	and 	held 	as
follows:
In 	its 	order, 	the ALRB 	directed Highland 	to
bargain with 	the 	UFW 	over 	the 	effects 	of 	its
decision 	to 	sell 	the 	business. 	At 	the 	same
time, 	the 	board 	concluded 	that 	because 	of
Highland's 	changed 	position and 	the
emplorees' 	lack 	of 	any 	present 	economic
bargaining 	power 	vis-a-vis 	Highland, 	a
bargaining 	order, 	standing 	alone, 	would 	not
adequately 	remedy 	the 	unfair 	labor 	practice
in 	this 	case. 	Accordingly, 	in 	order 	to
effectuate 	the 	bargaining 	order 	and 	to 	help
ensure 	that Highland would 	not 	profit 	from
its 	unfair 	labor 	practice, 	the ALRB
accompanied 	its 	bargaining 	order 	with 	a
"limited 	back 	pay" 	requirement 	that 	the NLRB
has 	traditionally 	imposed 	to 	remedy
comparable 	violations 	under 	the 	federal
act. 	{See, 	e.g., 	Transmarine Navigation
Corp. 	(1968) 	170 	NLRB 	389 	f 67 LRRM 	1419];
NLRB 	v. 	W.R. 	Grace 	& Co., 	Const. 	Products,
supra, 	571 	F.2d 	279, 	283 	& 	fn.6).
The NLRB 	fully 	explained 	the 	rationale 	for
this 	type 	of 	remedial 	order 	in 	its 	seminal
Transmarine 	decison, 	observing: 	"It 	is
apparent 	that, 	as 	a 	result 	of 	the
[employer's] 	unlawful 	failure 	to 	bargain
17

about [the] effects of its termination of
employment] , the [employees] were denied an
opportunity to bargain through their .
representative at a time prior to the
shutdown when such bargaining would have
been meaningful in easing the hardship on
employees whose jobs are being
terminated. 	[ ]Under the circumstances
of this case . 	. it is impossible to
reestablish a situation equivalent to that
which would have prevailed had the
[employer] more timely filled its statutory
bargaining obligation. In fashioning an
appropriate remedy, we must be guided by the
principle that the wrongdoer, rather than
the victims of the wrongdoing, should bear
the consequences of his unlawful conduct,
and that the remedy should 'be adapted to
the situation that calls for redress." "
(170 NLRB at p. 389 (quoting Labor Board v.
Mackay Co. (1938) 304 U.S. 333, 348 [82
L. Ed. 1381, 1391, 58 S. Ct. 904]).)
The NLRB continued: "Applying these
principles to the instant case, we deem it
necessary, in order to effectuate the
purposes of the Act, to require the
[employer] to bargain with the Union
concerning the effects of the shutdown on
its [former employees]. Under the present
circumstances, however, a bargaining order
alone cannot serve as an adequate remedy for
the unfair labor practices committed by the
[employer] . As we recently pointed out in
Royal Plating and Polishing Co. , Inc.
[ (1966) 160 NLRB 990, 997] : 	"The Act
required more than pro forma bargaining, but
pro forma bargaining is all that is likely
to result unless the Union can now bargain
under conditions essentially similar to
those that would have obtained, had [the
employer] bargained at the time the Act
required it to do so. If the Union must
bargain devoid of all economic strength, we
would perpetuate the situation created by
[ the employer's] deliberate concealment of
relevant facts from the Union which
prevented the Union from meaningful
bargaining. ' " 	(Id., at p. 390.)
18
about 	[the] 	effects 	[of 	its 	termination 	of
employment], 	the 	[employees] 	were 	denied 	an
opportunity 	to 	bargain 	through 	their 	•••
representative 	at 	a 	time 	prior 	to 	the
shutdown 	when 	such 	bargaining 	would 	have
been 	meaningful 	in 	easing 	the 	hardship 	on
employees 	whose 	jobs 	are 	being
terminated. 	• 	. 	[ 	] Under 	the 	circumstances
of 	this 	case 	••• 	it 	is 	impossible 	to
reestablish 	a 	situation equivalent 	to 	that
which would 	have 	prevailed 	had 	the
[employer] 	more 	timely 	filled 	its 	statutory
bargaining 	obligation. 	In 	fashioning 	an
appropriate 	remedy, 	we 	must 	be 	guided 	by 	the
principle 	that 	the wrongdoer, 	rather 	than
the 	victims 	of 	the 	wrongdoing, 	should 	bear
the 	consequences 	of 	his 	unlawful 	conduct,
and 	that 	the 	remedy 	should 	'be 	adapted 	to
the 	situation 	that 	calls 	for 	redress.'"
(170 	NLRB 	at 	p. 	389 	(quoting 	Labor 	Board 	v.
Mackay Co. 	(1938) 	304 	u.s. 	333, 	348 	[82
L • Ed • 	13 81 , 	13 91, 	58 	S • Ct • 	9 04 ] ) • )
The NLRB 	continued: 	"Applying 	these
principles 	to 	the 	instant 	case, 	we 	deem 	it
necessary, 	in 	order 	to 	effectuate 	the
purposes 	of 	the Act, 	to 	require 	the
[employer] 	to 	bargain 	with 	the 	Union
concerning 	the 	effects 	of 	the 	shutdown 	on
its 	[former 	employees]. 	Under 	the 	present
circumstances, 	however, 	a 	bargaining 	order
alone 	cannot 	serve 	as 	an adequate 	remedy 	for
the 	unfair 	labor 	practices 	committed 	by 	the
[employer]. 	As 	we 	recently pointed 	out 	in
Royal 	Plating 	and 	Polishing Co., 	Inc.
[(1966) 	160 	NLRB 	990, 	997]: 	'The Act
required 	more 	than 	proforma 	bargaining, 	but
proforma 	bargaining 	is 	all 	that 	is 	likely
to 	result 	unless 	the 	Union 	can 	now 	bargain
under 	conditions 	essentially 	similar 	to
those 	that 	would 	have 	obtained, 	had 	[the
employer] 	bargained 	at 	the 	time 	the Act
required 	it 	to 	do 	so. 	If 	the 	Union must
bargain 	devoid 	of 	all 	economic 	strength, 	we
would 	perpetuate 	the 	situation 	created 	by
[the 	employer's] 	deliberate 	concealment 	of
relevant 	facts 	fran 	the 	Union which
prevented 	the 	Union 	from 	meaningful
bargaining."' 	(Id., 	at 	p. 	390.)
18

Under these circumstances, the NLRB
determined in Transmarine that "[ijn order
to assure meaningful bargaining and to
effectuate the purposes of the Act, we shall
accompany our order to bargain over the
effects of the shutdown with a limited
backpay requirement designed both to make
whole the employees for losses suffered as a
result of the violation and to recreate in
some practicable manner a situation in which
the parties' bargaining position is not
totally devoid of economic consequences for
the [employer] . " 	(Ibid. )
The limited backpay remedy that the NLRB
adopted in Transmarine imposed a prospective
requirement upon the employer to pay each
terminated employee a daily sum equal to the
employee's former wages during the mandated
bargaining process. The order additionally
provided that the employer's "limited
backpay" obligation would terminate as soon
as (1) the parties reached agreement on the
issues subject to bargaining, (2) the
parties bargained to a bona fide impasse or
(3) the union failed to bargain in good
faith. Finally, the NLRB also placed an
absolute ceiling on the employer's potential
monetary obligations under the order,
specifying that in no event should any
employee receive daily payments for a period
of time exceeding the period it had taken
the employee to obtain alternative
employment after his termination.
Accordingly, it is appropriate to order the District in
this case to bargain with the Association, upon request, about
the effects of the subject layoff on the employees in the
subject bargaining unit, and to pay to the terminated employees
their normal wages at the time of the termination from five
days from the service of the final decision herein until the
occurrence of the earliest of the following conditions:
(1) the date the District reaches agreement with the
19
Under 	these 	circumstances, 	the NLRB
determined 	in Transmarine 	that 	" [ i] n 	order
to 	assure 	meaningful 	bargaining 	and 	to
effectuate 	the 	purposes 	of 	the Act, 	we 	shall
accompany 	our 	order 	to 	bargain 	over 	the
effects 	of 	the 	shutdown 	with 	a 	limited
backpay 	requirement 	designed 	both 	to make
whole 	the 	employees 	for 	losses 	suffered 	as 	a
result 	of 	the 	violation 	and 	to 	recreate 	in
some 	practicable 	manner 	a 	situation 	in 	which
the 	parties' 	bargaining 	position 	is 	not
totally devoid 	of 	economic 	consequences 	for
the 	[employer] • " 	(Ibid. )
The 	limited 	backpay 	remedy 	that 	the NLRB
adopted 	in Transmarine 	imposed 	a 	prospective
requirement 	upon 	the 	employer 	to 	pay 	each
terminated 	employee 	a 	daily 	sum equal 	to 	the
employee's 	former 	wages 	during 	the 	mandated
bargaining 	process. 	The 	order 	additionally
provided 	that 	the 	employer's 	"limited
backpay" 	obligation 	would 	terminate 	as 	soon
as 	(1) 	the 	parties 	reached 	agreement 	on the
issues 	subject 	to 	bargaining, 	(2) 	the
parties 	bargained 	to 	a 	bona 	fide 	impasse 	or
(3) 	the 	union 	failed 	to 	bargain 	in 	good
faith. 	Finally, 	the NLRB 	also 	placed 	an
absolute 	ceiling on 	the 	employer's 	potential
monetary 	obligations 	under 	the 	order,
specifying 	that 	in 	no 	event 	should 	any
employee 	receive 	daily 	payments 	for 	a 	period
of 	time 	exceeding 	the 	period 	it 	had 	taken
the 	employee 	to 	obtain 	alternative
employment 	after 	his 	termination.
Accordingly, 	it 	is 	appropriate 	to 	order 	the 	District 	in
this 	case 	to 	bargain 	with 	the 	Association, 	upon 	request, 	about
the 	effects 	of 	the 	subject 	layoff 	on the 	employees 	in 	the
subject 	bargaining 	unit, 	and 	to 	pay 	to 	the 	terminated 	employees
their 	normal 	wages 	at 	the 	time 	of 	the 	termination 	fran 	five
days 	from 	the 	service 	of 	the 	final 	decision 	herein 	until 	the
occurrence 	of 	the 	earliest 	of 	the 	following 	conditions:
(l) 	the 	date 	the District 	reaches 	agreement 	with 	the
19

Association on those subjects pertaining to the effects of the
layoff on the employees in the subject bargaining unit; (2) a
bona fide impasse in bargaining; (3) the failure of the
Association to request bargaining within five days of the
service of the final decision herein, or to commence
negotiations within five days of the Respondent's notice of its
desire to bargain with the Association; or (4) the subsequent
failure of the Association to bargain in good faith.
It also is appropriate that the District be required to
post a notice incorporating the terms of the order. The notice
should be subscribed by an authorized agent of the District
indicating that it will comply with the terms thereof. 	The
notice shall not be reduced in size. Posting such a notice
will provide employees with notice that the District has acted
in an unlawful manner and is being required to cease and desist
from this activity. It effectuates the purposes of the EERA
that employees be informed of the resolution of the controversy
and will announce the District's readiness to comply with the
ordered remedy. See Placerville Union School District
(9/18/78) PERB Decision No. 69. In Pandol and Sons v. ALRB and
UFW (1979) 98 Cal. App. 3d 580, 587, the California District
Court of Appeal approved a posting requirement. The U.S.
Supreme Court approved a similar posting requirement in NLRB v.
Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415].
20
Association 	on 	those 	subjects 	pertaining 	to 	the 	effects 	of 	the
layoff 	on the 	employees 	in 	the 	subject 	bargaining 	unit~ 	(2) 	a
bona 	fide 	impasse 	in 	bargaining; 	(3) 	the 	failure 	of 	the
Association 	to 	request 	bargaining 	within 	five 	days 	of 	the
service 	of 	the 	final 	decision 	herein, 	or 	to 	commence
negotiations 	within 	five 	days 	of 	the 	Respondent's 	notice 	of 	its
desire 	to 	bargain with 	the 	Association; 	or 	(4) 	the 	subsequent
failure 	of 	the Association 	to 	bargain 	in 	good 	faith.
It 	also 	is 	appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it 	will 	comply 	with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in size. 	Posting 	such 	a 	notice
will 	provide 	employees 	with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
fran 	this 	activity. 	It 	effectuates 	the 	purposes 	of 	the EERA
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	will 	announce 	the 	District's 	readiness 	to 	comply 	with 	the
ordered 	remedy. 	See Placerville 	Union School 	District
(9/18/78) 	PERB 	Decision No. 	69. 	In Pando! 	and 	Sons 	v. 	ALRB 	and
UFW 	(1979} 	98 	Cal.App.3d 	580, 	587, 	the 	California District
Court 	of Appeal 	approved 	a 	posting 	requirement. 	The U.S.
Supreme Court 	approved 	a 	similar 	posting 	requirement 	in NLRB 	v.
Express 	Publishing 	Co. 	(1941) 	312 	U.S. 	426 	[8 	LRRM 	415].
20

PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to Government
Code section 3541 (c), it is hereby ordered that the Kern
Community College District, its governing board, and its
representatives shall:
A. CEASE AND DESIST FROM:
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 3541(c), 	it 	is 	hereby 	ordered 	that 	the 	Kern
Community College District, 	its 	governing 	board, 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. Failing and refusing to meet and negotiate in good
faith, upon request, with the exclusive representative on the
effects of the layoff.
2. Taking unilateral action with respect to
implementing the effects of layoffs.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1. The District shall bargain with the Association,
upon request, about the effects of the subject layoff on the
employees in the subject bargaining unit, and to pay to the
terminated employees their normal wages at the time of the
termination from five days from the service of the final
decision herein until the occurrence of the earliest of the
following conditions: (1) the date the District reaches
agreement with the Association on those subjects pertaining to
the effects of the layoff on the employees in the subject
bargaining unit; (2) a bona fide impasse in bargaining; (3) the
failure of the Association to request bargaining within five
days of the service of the final decision herein, or to
21
1. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith, 	upon 	request, 	with 	the 	exclusive 	representative on 	the
effects 	of 	the 	layoff.
2. 	Taking 	unilateral 	action with 	respect 	to
implementing 	the 	effects 	of 	layoffs.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION:
1. 	The District 	shall 	bargain 	with 	the 	Association,
upon 	request, 	about 	the 	effects 	of 	the 	subject 	layoff 	on 	the
employees 	in 	the 	subject 	bargaining 	unit, 	and 	to 	pay 	to 	the
terminated 	employees 	their 	normal 	wages 	at 	the 	time 	of 	the
termination 	from 	five 	days 	from 	the 	service 	of 	the 	final
decision 	herein 	until 	the 	occurrence 	of 	the 	earliest 	of 	the
following 	conditions: 	(1) 	the 	date 	the District 	reaches
agreement 	with 	the Association 	on 	those 	subjects 	pertaining 	to
the 	effects 	of 	the 	layoff on 	the 	employees 	in 	the 	subject
bargaining 	unit; 	(2) 	a 	bona 	fide 	impasse 	in 	bargaining; 	(3) 	the
failure 	of 	the Association 	to 	request 	bargaining 	within 	five
days 	of 	the 	service 	of 	the 	final 	decision 	herein, 	or 	to
21

commence negotiations within five days of the Respondent's
notice of its desire to bargain with the Association; or
(4) the subsequent failure of the Association to bargain in
good faith.
2. Within five workdays from the service of the final
decision herein, mail a copy of this decision and order to each
of the approximately eight terminated certificated employees.
3. Within five workdays after the date of service
of a final decision in this matter, post at all work locations
where notices to certificated employees customarily are posted,
copies of the notice attached as an appendix 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 the copies are
not altered, reduced in size, defaced or covered with any other
material.
4. 	Within twenty (20) consecutive workdays from the
service of the final decision herein, notify the Los Angeles
Regional Director of the Public Employment Relations Board in
writing of what steps the employer has taken to comply with the
terms of this order. Continue to report in writing to the
regional director periodically thereafter as directed. All
reports to the regional director shall be served concurrently
on the charging party herein.
22
commence 	negotiations 	within 	five 	days 	of 	the 	Respondent's
notice 	of 	its 	desire 	to 	bargain 	with 	the Association; 	or
(4) 	the 	subsequent 	failure 	of 	the 	Association 	to 	bargain 	in
good 	faith.
2. 	Within 	five 	workdays 	from 	the 	service 	of 	the 	final
decision 	herein, 	mail 	a 	copy 	of 	this 	decision 	and 	order 	to each
of 	the 	approximately eight 	terminated 	certificated 	employees.
3. 	Within 	five 	workdays 	after 	the 	date 	of 	service
of 	a 	final 	decision 	in 	this 	matter, 	post 	at 	all 	work 	locations
where 	notices 	to 	certificated 	employees 	customarily are 	posted,
copies 	of 	the 	notice 	attached 	as 	an 	appendix 	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 	the 	copies 	are
not 	altered, 	reduced 	in 	size, 	defaced 	or 	covered with 	any 	other
material.
4. 	Within 	twenty 	(20) 	consecutive workdays 	from 	the
service 	of 	the 	final 	decision 	herein, 	notify 	the 	Los Angeles
Regional 	Director 	of 	the 	Public Employment Relations Board 	in
writing 	of 	what 	steps 	the 	employer 	has 	taken 	to 	comply 	with 	the
terms 	of 	this 	order. 	Continue 	to 	report 	in 	writing 	to 	the
regional 	director 	periodically 	thereafter 	as 	directed. 	All
reports 	to 	the 	regional 	director 	shall 	be 	served 	concurrently
on 	the 	charging 	party herein.
22

C. ALL OTHER CHARGES ARE HEREBY DISMISSED.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on May 18 , 1982, unless a party filed a timely
statement of exceptions. See California Administrative Code,
title 8, part III, section 32300. Such statement of exceptions
and supporting brief must be actually received by the executive
assistant to the Board at the headquarters office of the Public
Employment Relations Board in Sacramento before the close of
business (5:00 p.m.) on May 18, 1982, in order to be timely
filed. See California Administrative Cide, title 8, part III,
section 32135. Any statement of exceptions and supporting
brief must be served concurrently with its filing upon each
party to this proceeding. Proof of service shall be filed with
the Board itself. See California Administrative Code, title 8,
part III, sections 32300 and 32305, as amended.
Dated: April 28, 1982
Allen R. Link
Administrative Law Judge
23
C. 	ALL 	OTHER CHARGES 	ARE 	HEREBY 	DISMISSED.
Pursuant 	to 	California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed 	Decision 	and Order 	shall
become 	final 	on May 1.§_, 	1982, 	unless 	a 	party 	filed 	a 	timely
statement 	of 	exceptions. 	See 	California Administrative Code,
title 	8, 	part 	III, 	section 32300. 	Such 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office 	of 	the 	Public
Employment 	Relations Board 	in Sacramento 	before 	the 	close 	of
business 	(5:00 	p.m.) 	on May ..J,.a, 	1982, 	in 	order 	to 	be 	timely
filed. 	See 	California Administrative 	Cide, 	title 	8, 	part 	III,
section 32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently 	with 	its 	filing 	upon each
party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed with
the 	Board 	itself. 	See 	California Administrative Code, 	title 	8,
part 	III, 	sections 	32300 	and 	32305, 	as 	amended.
Dated: 	April 	28, 	1982
A 	en
Administrative 	Law Judge
23