South San Francisco Unified School District (PERB 0343E)

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

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

‘CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS SOUTH
SAN FRANCISCO CHAPTER #197,

Charging Party, Case No. SF-CE-593

Vv. PERB Decision No. 343

SOUTH SAN FRANCISCO UNIFIED

September 2, 1983
SCHOOL DISTRICT,

Respondent.

Appearances: James E. Hall, Attorney (Richards, Watson,
Dreyfuss and Gershon) for South San Francisco Unified School
District.

Before Gluck, Chairperson; Tovar and Morgenstern, Members.
DECISION

TOVAR, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
South San Francisco Unified School District (District) to the
attached proposed decision of a PERB administrative law judge
(ALJ). The exceptions are directed at the ALJ's findings that
the District violated subsections 3543.5(a), (b) and (c) of the
Educational Employment Relations Act (EERA or Act)! by:
1) unilaterally reducing the hours of employment of two

part-time classified positions from six hours a day to five

ithe EERA is codified at Government Code section 3540
et seq. All statutory references herein are to the Government

and; 2) refusing to negotiate the effects of its decision to
lay off teachers' aides.
For the reasons which follow, we affirm The ALJ's
conclusion that the District violated the EERA by unilaterally
reducing the hours of two classified positions. However, we
reverse his finding that the District violated the Act by
refusing to negotiate the effects of its layoff decision.
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. For convenience, a
summary of those facts is provided below.
Code unless otherwise noted. 	Section 3543.5 provides in
pertinent part as follows:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2

In 1980, the District and the exclusive representative of
its classified employees, California School Employees
Association and its South San Francisco Chapter #197 (CSEA) ,
negotiated a contract which, by its terms, was effective for
the 1980-81 and 1981-82 school years. The contract included
the following provisions on the subject of hours for part-time
employees :
Part-Time Assignments.
The minimum length of the workday and work
year for part-time employees shall be
designated by the District. At the
beginning of the school year, part-time
assignments shall be assigned a fixed,
regular and ascertainable minimum number of
hours. This shall not restrict modification
of the work day or work year when such is
necessary to carry on the business of the
District subject to other paragraphs of this
article. 	[Emphasis added . ]
Reduction in Assigned Time.
Any reduction in regularly assigned time
shall be considered a layoff and must be
adhered to under Education Code procedures.
In negotiating these provisions, the parties exchanged
several counterproposals which contained different language in
place of the sentence which is underlined in the
above-set-forth "Part-Time Assignments" provision. 	The
District proposed the above-underlined language minus the
phrase "subject to other paragraphs of this article, " citing
its need to increase or decrease assignments from time to
3

time. CSEA countered by proposing the following in place of
the disputed sentence:
This article shall not restrict the
extension of the regular workday or work
week on an overtime basis when such is
necessary to carry on the business of the
District.
Clearly, the language proposed by CSEA gave the District
leeway only to increase, but not decrease, assigned work hours.
After a number of mediation sessions, CSEA abandoned its
effort to secure a contract provision which would absolutely
prohibit the District from decreasing the hours of bargaining
unit members. It agreed instead to a provision which would
permit such reductions in cases of operational necessity. 	In
addition, the phrase "subject to other paragraphs of this
article" was agreed to. The unrefuted testimony at the PERB
hearing indicates that this was added to assure that if the
District reduced hours, it would do so pursuant to the
above-set-forth "Reduction in Assigned Time" provision
requiring that procedural protections provided in the Education
Code be observed.
During negotiations for this contract, PERB issued its
decision in Healdsburg Union High School District, et al.
(6/19/80) PERB Decision No. 132, in which the Board held,
inter alia, that the effects of an employer's layoff decision
are negotiable. 	CSEA thereupon prepared a proposal relating to
layoffs and presented it to the District. The District

negotiated the proposal, but its position was one of firm
resistance to the provisions sought by CSEA on the grounds that
the layoff procedures already promulgated by its personnel
commission were preferable. Ultimately, CSEA yielded on this
subject and the agreed-upon contract contained no provisions
expressly controlling layoff procedures.
The contract did, however, contain the following "Effect of
Agreement" clause:
It is understood that the specific provision
(sic) contained in this Agreement shall
prevail over District practices, procedures,
Personnel Commission rules and over State
laws to the extent permitted by law, and
that in the absence of specific provisions
in this Agreement, such practices and
procedures are discretionary with the Board
of Trustees and the Personnel Commission.
Finally, the contract contained a zipper clause which
provides as follows:
During the term of this Agreement, the
Association and the District expressly waive
and relinquish the right to meet and
negotiate and agree that neither party shall
be obligated to meet and negotiate with
respect to any subject or matter whether or
not referred to or covered in this
Agreement, even though such subject or
matter may not have been within the
knowledge or contemplation of either or both
the District or the Association at the time
they met and negotiated on and executed this
Agreement, and even though such subject or
matter was proposed and later
withdrawn
On May 29, 1981, the District gave notice of its intent to
lay off 20 percent of its teachers' aides effective at the end
5

of the school year. The reasons for the layoff were that the
District had suffered a reduction in compensating education
funds used to pay teachers' aides and that it had closed one of
its schools.
Upon learning of the District's layoff decision, CSEA
prepared a negotiating proposal and presented it to the
District on June 26. The proposal contained the following
provisions: definition of the terms "layoff" and "class;"
method of determining seniority and procedures for making this
information available to employees; timing of layoffs (at end
of school year only) ; alternatives to layoff (transfers,
retirement, retraining) ; layoff notification procedures;
reemployment rights and procedures; prohibition against
contracting out or use of volunteers for performance of work
previously done by laid-off workers; and right to elect
retirement in lieu of layoff. The District superintendent's
response, however, was that the District did not wish to
negotiate CSEA's proposal because the existing contract
included an agreement that neither party had the right to
request any further negotiations for the life of the contract
(zipper clause).
In November 1981, two six-hour aide positions were
vacated. The District then advertised these positions as
five-hour positions and, despite CSEA's request to negotiate
6

this reduction, filled the positions at five hours without
negotiating . 	There is no evidence that, other than the change
in hours, any other aspects of the positions were changed.
DISCUSSION
The Layoff
On exceptions, the District argues, inter alia, that it had
no duty under the EERA to negotiate CSEA's June 26 proposal on
layoff procedures because the parties had previously agreed by
contract that the set of layoff procedures provided in the
District personnel commission regulations would be the
controlling procedures in the event of layoff. In particular,
the District argues that the "Effect of Agreement" clause of
the contract expressly provides that personnel commission rules
will control where, as with layoff procedures, the contract
makes no specific provision on that subject. Moreover, asserts
the District, the contract's zipper clause expressly provides
that the parties will not be obligated to negotiate on any
subject for the term of the contract, "even though such subject
or matter was proposed and later withdrawn [at the time of
contract negotiations]."
In Kern Community College District (8/19/83) PERB Decision
No. 337, we found that, where there was no evidence of an
established policy on layoff procedures, the employer violated
its duty to bargain when, following its decision to lay off
employees, it refused the exclusive representative's request to
7

convene negotiations on the effects of the decision. 	In
attempting to reserve to itself unilateral control over the
creation of a policy on layoff procedures, we held, the
employer violated the fundamental purpose of the Act (citing
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).
While so deciding, we were careful to point out that
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 proviso simply reiterates our holding in Newark
Unified School District (6/30/82) PERB Decision No. 225, where
we found that an employer violates the EERA when it
"unilaterally implement [s] in-scope effects that are
inconsistent with existing laws, contract provisions, policies
or established practices." See also Placer Hills Union School
District (11/30/82) PERB Decision No. 262, where we dismissed
charges of unlawful unilateral action upon evidence that the
employer was proceeding according to its established past
practice in laying off an employee.
In the instant case, the evidence shows that at the time of
the layoff at issue the District personnel commission rules
contained a set of regulations controlling layoff procedures,
Co

identified as "Rule XVI" and dating at least as far back as
1972. These regulations were made a subject of negotiation at
the 1980 contract talks. CSEA proposed its own code of layoff
procedures, but the District opposed that plan, asserting
instead that Rule XVI should continue to be the controlling
policy in the event of layoff. Ultimately, CSEA abandoned its
efforts to negotiate a change in that policy. Instead, it
agreed to a contract which made no express mention of layoff
procedures, but included the above-noted "Effect of Agreement"
clause providing that personnel commission rules would control
as to subjects for which the contract makes no specific
provision.
Upon these facts we find that CSEA contractually agreed
that the provisions of Rule XVI would continue to constitute
the controlling policy on layoff procedures for the term of the
contract. Having so agreed, CSEA was not entitled to a second
opportunity to negotiate that subject when, during the contract
term, the District decided to lay off teachers' aides. The
EERA's purpose of fostering stable labor relationships surely
requires that both exclusive representatives and employers be
held to the agreements they have negotiated. 2
Moreover, the parties' collectively negotiated contract
also included a zipper clause providing that both parties waive
2The EERA's purpose is set forth at section 3540.
9

their right to negotiate during the contract term as to,
inter alia, subjects which were proposed at the time of
contract negotiations but later withdrawn. As we noted in
Los Angeles Community College District (10/18/82) PERB Decision
No. 252 ,
The purpose of a zipper clause is to
foreclose further requests to negotiate
regarding negotiable matters, even if not
previously considered, during the life of a
contract . 3
Thus, while the District did not by virtue of the zipper clause
acquire a right to unilaterally change its layoff procedures,
it was privileged to maintain its existing policy for the
contract term, and thus acted lawfully in rejecting CSEA's
request to negotiate a change in that policy. For these
reasons, we dismiss this portion of the charge.
The Reduction in Hours
As set forth in our factual summary above, the contract
provision regulating hours of part-time employees provides that
the District has the authority to set the hours for part-time
positions at the start of each school year. As to mid-year
changes in those established hours, however, the contract
3See Gorman, Labor Law (1976) p. 472. 	"Such a provision
may fairly be read to deprive the union of the privilege during
the contract term to propose additions to the written contract
and to require the employer to bargain about the union's
proposals."
10

limits the District to cases where such is "necessary to carry
on the business of the District . . . ." 	The contract goes on
to require that in the event of such mid-year changes, the
Education Code provisions regulating layoffs are to be
applied . 4
The ALJ found that the District had failed to prove that
the instant reduction in hours of two positions was necessary
to carry on the business of the District. He thus concluded
that this breach of contract evidenced a change in the
District's policy on hours for part-time employees. Grant
Joint Union High School District (2/26/82) PERB Decision
No. 196. Additionally, he ruled that the District had failed
to apply the Education Code procedures as required.
On exceptions, the District argues that it did not breach
its obligation to apply Education Code procedures. 	It points
out that at the time of the reductions the positions had been
voluntarily vacated, and thus that there was no occasion to
apply Education Code procedures requiring, for example, notice
to incumbents and the application of seniority rules.
While these observations of the District are true, they are
entirely nonresponsive to the ALJ's determination that the
District had breached its contractually established policy by
implementing a mid-year reduction in hours without a showing of
4See Education Code sections 45117, 45298 and 45308.
11

operational necessity . 	Finding no reason to disturb that
finding, therefore, we affirm the ALJ's conclusion that the
District thereby violated subsections (a) , (b) and (c) of the
EERA .
The Remedy
We have concluded that, by reducing the hours of two
bargaining unit positions in the midst of the 1981-82 school
year, the District unilaterally changed the policy on hours to
which it had contractually agreed. The employees who
ultimately filled those positions, therefore, are entitled to
be made whole for the resulting loss in wages. We note,
however, that the existing contractual agreement between the
parties authorized the District to set the hours for part-time
bargaining unit employees at the start of each year. 	Thus, the
District could, consistently with that policy, lawfully
establish the two positions at issue at five hours per day (or
any other figure) at the start of the succeeding school year.
Therefore, because the 1981-82 school year has already
concluded, the District's obligation will be to pay to the
affected employees the wages they would have received during
that school year but for the unlawful unilateral change
identified herein, minus any offset or mitigation. For these
reasons also, we decline to order the restoration of the status
quo prior to the violation.
12

ORDER
upon the foregoing findings of fact, conclusions of law and
the entire record in this case, it is hereby ORDERED that the
South San Francisco Unified School District shall:
A. 	CEASE AND DESIST FROM:
Violating subsections 3543.5 (a) , (b) and (c) of the
Educational Employment Relations Act by unilaterally changing
the hours of employment of its employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
Make whole the affected employees by paying to
them the wages they would have received but for the unilateral
reduction in hours of the two bargaining unit positions, plus
interest at the rate of 7 percent per annum. 	This amount is to
be offset by any income earned by the affected employees which
they would not have been able to earn but for the unilateral
reduction in the hours of the two aide positions.
2. Within five workdays following the date of service
of this Decision, post at all work locations where notices to
employees customarily are placed, copies of the Notice
attached as an appendix hereto signed by an authorized agent
of the employer. Such posting shall be maintained for a period
of thirty consecutive workdays. Reasonable steps shall be
taken to insure that such notices are not altered, defaced or
covered by any other material or reduced in size.
13

3. Within twenty workdays following service of this
Decision, notify the San Francisco regional director of the
Public Employment Relations Board in writing of what steps the
employer has taken to comply with the terms of this Decision.
Continue to report in writing to the regional director
periodically thereafter as directed. All reports to the
regional director shall be served concurrently on charging
party herein.
All other unfair practice allegations in Case No. SF-CE-593
are hereby DISMISSED.
Chairperson Gluck and Member Morgenstern joined in this
Decision.
14

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-593 in which
all parties had the right to participate, it has been found by the
Public Employment Relations Board that we, the South San Francisco
Unified School District, violated subsections 3543.5(a) , (b) and (c)
of the Educational Employment Relations Act. Specifically, we were
found to have unlawfully reduced the hours of two part-time
classified positions during the 1981-82 school year in violation of
the policy contained in the agreement we negotiated with the
California School Employees Association.
As a result of this conduct, we have been ordered to post this
Notice and will abide by the following. 	We will:
1. CEASE AND DESIST FROM:
Violating the rights of our classified employees and their
exclusive representative by unilaterally changing the hours of
employment of bargaining unit employees.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
Make whole the affected employees by paying to them the
wages they would have received but for the unilateral reduction in
the hours of the two bargaining unit positions, plus interest at the
rate of 7 percent per annum. This amount may be offset by any
earnings of affected employees which they would not have been able
to earn but for the unilateral reduction in the hours of the two
aide positions.
Dated : 	SOUTH SAN FRANCISCO UNIFIED
SCHOOL DISTRICT
By
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, REDUCED IN SIZE, DEFACED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS SOUTH SAN
FRANCISCO CHAPTER #197,
Charging Party,
V .
SOUTH SAN FRANCISCO UNIFIED
SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-593
PROPOSED DECISION
(6/30/82)
Appearances: Dave Low, field representative, for California
School Employees Association and its South San Francisco
Chapter #197; Leland D. Stephenson, attorney (Paterson and
Taggart) and James E. Hall, attorney (Richards, Watson,
Dreyfuss and Gershon) for South San Francisco Unified School
District.
Before: Gerald A. Becker, Administrative Law Judge.
PROCEDURAL HISTORY
This unfair practice charge was filed on September 10, 1981
by the California School Employees Association and its South
San Francisco Chapter #197 (hereafter Association) against the
South San Francisco Unified School District (hereafter
District). After various amendments, the Association alleges
the District violated Government Code subsections 3543.5(a) ,
(b) and (c) of the Educational Employment Relations

Act (hereafter EERA or Act) 1 by taking four unilateral
actions without negotiating:
1. Announcing and implementing a 20 percent layoff of
instructional aides in May and June of 1981;
2. At the same time reducing the hours of cafeteria
employees effective at the beginning of the 1981-82 school year;
3. Reducing the work year for instructional aides at the
beginning of the 1981-82 school year; and
4. 	Reducing two six-hour instructional aide positions to
five hours in November 1981.
An informal conference held on November 13, 1981 failed to
resolve the charge and a formal hearing was held before the
undersigned administrative law judge on January 28, 1982.
Briefing was due to be completed on April 12, 1982, but the
District failed to file a simultaneous post-hearing brief, due
on March 24, 1982. On May 12, 1982 a motion was filed by the
District's new attorney to allow a late filing. No
"extraordinary circumstances" having been shown as required by
PERB Regulation 32133, the motion was denied by order dated
May 20, 1982.
ISSUES
1. 	Did the District violate subsections 3543.5(a) , (b)
LEERA is codified at Government Code section 3540 et seq.
All statutory references are to the Government Code unless
otherwise specified.
2

and (c) by taking the following unilateral actions without
negotiating :
(a) Laying off instructional aides;
Reducing cafeteria employees' hours;
(c) 	Reducing instructional aides' work year; and
) Reducing two six-hour instructional aide
positions to five hours in mid-year?
2. 	Did the Association waive its right to negotiate in
its contract with the District?
3. 	Did the District in turn waive its right to assert
this contract defense by agreeing to reopen negotiations on the
layoffs and reductions in hours?
FINDINGS OF FACT
A. 	The unilateral actions.
The Association is the exclusive representative of a unit
of classified employees in the District.
In late May and early June of 1981, the District initiated
a 20 percent layoff of instructional aides and also a reduction
in hours for certain cafeteria employees. All the affected
individuals were part-time employees.
The reasons for the instructional aide layoffs were a
decline in compensatory education funds used to pay
instructional aides, as well as the closure of a school.
Cafeteria workers' hours were reduced because the cafeteria
program had been operating at a substantial loss.
w

Dave Low, Association field representative, and Ann Skaggs,
Association president, met with Bob Dominge, director of
classified personnel, on June 5, 1981 to discuss the layoffs
and reductions in hours. Low told Dominge the layoffs and
reductions in hours were negotiable, but received no response.
A second meeting was set up for June 26, 1981.
The Association perceived the June 26 meeting to be a
negotiating session and brought along its negotiating team and
a comprehensive layoff proposal including reasons for layoff,
layoff procedures, notices, seniority lists, reemployment
rights, election of voluntary retirement and continuation of
benefits. 	On the contrary, Dominge and the other two District
administrators who attended the meeting thought it would be an
informal discussion and did not anticipate the Association
proposal or the number of people in attendance.
At the meeting the Association "walked through" its
proposal with the District. Dominge suggested a few changes to
the proposal concerning seniority lists and also expressed a
reservation about the Association's proposal that layoffs take
place only at the end of the school year. Dominge then stated
he would not be able to respond to the entire proposal at that
time and another meeting was set up for July 14.
On July 7 Dominge met with other District administrators
and it was determined that the Association's layoff proposal
would have to be sunshined. Accordingly, Dominge cancelled the

July 14 meeting to allow time to sunshine the proposal and also
because he was going on vacation. The meeting was rescheduled
for August.
In the meantime, the superintendent, Thomas Gaffney,
himself returned from vacation. At a staff meeting held on
July 14, 1981, Gaffney was informed of the developments with
the Association. Gaffney stated his view that the District had
negotiated a contract with the Association which contained a
zipper clause, and he would not reopen the contract to discuss
the Association's layoff proposal.
Accordingly, at a meeting held on August 17, 1981, Dominge
informed the Association the District would not negotiate the
layoff proposal. As the reason for this apparent turnabout, he
cited Gaffney's direction that the District refused to reopen
negotiations on any matter until expiration of the current
agreement between the parties. Dominge did say, however, that
if the Association would drop its demand to negotiate, he would
use its layoff proposal as a "guideline" for future layoffs.
In September 1981, at the beginning of the next school
year, the District sent notices to cafeteria workers indicating
their reduced hours.2 Around the same time, instructional
2Although the record is not clear on this point, it seems
the reduction of cafeteria employees' hours which took place in
the beginning of the 1981-82 school year was not a second
reduction in hours for cafeteria workers, but rather the
implementation of the cutback announced in May. This
assumption seems reasonable in light of the fact the cafeterias
are closed during the summer months.
5

aides also received notices advising them of "minimum" work
year assignments for the 1981-82 year approximately 10 days
shorter than the previous year's assignments. According to
Dominge, the work year assignments for instructional aides were
merely a guaranteed minimum as required by the parties'
agreement, and additional work days could be added during the
year .
The fourth unilateral change charged by the Association
took place in November 1981 when two six-hour instructional
aide positions were vacated. Despite the Association's request
to negotiate, the District advertised and filled the two
positions at five hours rather than six as previously. There
is no evidence any other elements of the positions were
changed. The District stated it did not have to negotiate,
analogizing the situation to one in which an old position is
abolished and a new one is created in its place.
B. 	Past practice, negotiations history and the parties
1980-82 agreement.
The evidence shows that before the parties negotiated
agreements under EERA, the past practice in the District was
that the work hours and work year of instructional aides and
cafeteria workers varied from year to year. According to Judy
Rogers, director of elementary education with responsibility
for instructional aides since 1974, there have been different
work hours and work years for instructional aides since 1974,
depending upon school site needs and funding.
6

Winifred Anderson, an instructional aide on the Association
negotiating team, corroborated Rogers' testimony. Since 1972
her work year has changed from year to year. According to
Anderson, the school principal determines the hours and work
year of instructional aides, who then receive a letter from the
District just prior to the start of school giving them their
work hours and work year assignment.
The situation with respect to cafeteria workers is
similar. Judy Milner, a cafeteria worker also on the
Association negotiating team, in the past had her work hours
reduced when programs were cut back. For example, in 1979 her
hours were reduced when the District stopped its breakfast
program, and in 1980 her work hours were further reduced when
the snack bar was closed after school. As with instructional
aides, she was given notice of her work year assignment just
prior to the beginning of school each year.
Before the 1979-80 school year, the District and the
Association had only a "short form" contract covering only
wages and benefits. In the 1979-80 school year the first
full-length agreement was negotiated. The Association was
concerned about the fluctuating hours and work years of
part-time employees such as cafeteria workers and instructional
aides. 	In response to this concern, the following provisions
were negotiated:
Part-time Assignment.
The length of the work day for part-time

employees shall be designated by the
District. At the beginning of the school
year, part-time assignments shall be
assigned a fixed, regular, and ascertainable
minimum number of hours.
Reduction in Assigned Time.
Any reduction in regularly assigned time
shall be considered a layoff and must be
adhered to under Education Code procedures.
In the negotiations for the 1980-82 agreement, the
part-time assignment provision was modified as follows (the
additions are underlined) :
Part-Time Assignments.
The minimum length of the work day and work
year for part-time employees shall be
designated by the District. At the
beginning of the school year, part-time
assignments shall be assigned a fixed,
regular and ascertainable minimum number of
hours. This shall not restrict modification
of the work day or work year when such is
necessary to carry on the business of the
District subject to other paragraphs of this
article.
The provision requiring a reduction in time to be treated as an
Education Code layoff remained the same. The "subject to"
proviso in the part-time assignment provision was intended to
refer to this layoff requirement.
The parties also negotiated a "zipper" clause which
provides in pertinent part as follows:
During the term of this Agreement, the
Association and the District expressly waive
and relinquish the right to meet and
negotiate and agree that neither party shall
be obligated to meet and negotiate with
respect to any subject or matter whether or
CO

not referred to or covered in this
Agreement, even though such subject or
matter may not have been within the
knowledge or contemplation of either or both
the District or the Association at the time
they met and negotiated on and executed this
Agreement, and even though such subject or
matter was proposed and later
withdrawn.
An "Effect of Agreement" clause further provides:
It is understood that the specific provision
(sic) contained in this Agreement shall
prevail over District practices, procedures,
Personnel Commission rules and over State
laws to the extent permitted by law, and
that in the absence of specific provisions
in this Agreement, such practices and
procedures are discretionary with the Board
of Trustees and the Personnel Commission.
During the negotiations for the 1980-82 agreement, the
Association also presented a comprehensive layoff proposal. 	The
District resisted this proposal on the ground that the personnel
commission already had a layoff procedure. The Association
eventually dropped the proposal and no layoff provision was
included in the parties' final agreement.
Dominge never has negotiated for the District, but has
served only as a resource person in negotiations.
negotiation sessions, the District has always been represented
by an attorney from the law firm of Paterson & Taggart.
DISCUSSION AND CONCLUSIONS OF LAW
A. 	The parties' positions.
The Association complains about four, separate unilateral
changes made by the District:
9

(1) The 20 percent layoff of instructional aides announced
May 29, 1981 and effective 30 days thereafter;
(2) The reduction of cafeteria employees' hours announced
the same date and apparently effective the beginning of the
next school year;
(3) The reduction in instructional aides' work year
effective September 1981;
(4) The November 1981 change in two instructional aide
positions from six hours to five.
Although no District brief was timely filed, from the
evidence presented it seems the District's defenses are that
the contract language on hours and part-time assignments gives
the District the authority to make these changes and, together
with the history of the negotiations and the zipper clause in
the contract, constitute a waiver by the Association of its
right to negotiate these matters.
In response to the District's position, the Association
argues that even if negotiations were foreclosed by the contract
language, the meeting with Dominge on June 26, 1981 and his
apparent intent to negotiate the layoff proposal waived the
District's right to assert the contract as a defense to
negotiations.
B. The May 29, 1981 20 percent layoff of instructional aides.
The evidence with respect to this instructional aide layoff
is scanty. On May 29, 1981 layoff notices went out to
10

instructional aides, the actual layoffs to take effect 30 days
thereafter . 3
The Association requested to negotiate these layoffs,
presented a proposal to the District concerning them, but the
District's eventual response in the August 17, 1981 meeting
was, contrary to earlier indications, that it would not
negotiate the layoff proposal.
Under PERB precedent, a district's decision to initiate
layoffs, and the reasons therefor, are non-negotiable.
Healdsburg Union High School District (6/19/80) PERB Decision
No. 132, at pp. 72-73.4 Nevertheless, an employer is
required to negotiate the implementation of a layoff and the
effects or impact on the employees' wages and working
conditions so long as there is no conflict with Education Code
provisions. Healdsburg, supra, at pp. 73-81; see also,
Oakland Unified School District (11/2/81) PERB Decision
No. 178, at pp. 4-6.5
3Unlike the reduction of cafeteria employees' hours which
took place at the same time, it is assumed the reduction in the
instructional aides' work year which was implemented in
September 1981 is a separate action and accordingly will be
dealt with as such herein.
4The Healdsburg decision has not been finalized in the
courts. A hearing before the California Supreme Court
presently is pending.
11
But compare the treatment of the negotiability of the
timing of layoffs in Healdsburg and Oakland. 	Healdsburg seems
to indicate timing is non-negotiable (p. 72), while Oakland

Therefore, although portions CSEA's layoff proposal may
have been non-negotiable, other portions relating to the
implementation and effects of the layoff certainly were
negotiable under the Healdsburg rationale. Since the District
refused to negotiate at all on the layoffs, unless its contract
waiver defense is found valid its failure to negotiate the
implementation and effects of the layoff is a prima facie
unfair practice.
It is first noted there is no layoff provision in the
parties' negotiated agreement. The fact a layoff provision was
proposed by CSEA but ultimately dropped does not constitute a
waiver of its right to negotiate the effects of a layoff.
Waiver of a union's right to negotiate must be "clear and
unmistakable." San Francisco Community College District
(10/12/79) PERB Decision No. 105 at p. 17; see also, Amador
Valley Joint Union High School District (10/2/78) PERB Decision
No. 74 at p. 8. Abandonment by a union of a bargaining demand
in return for other concessions does not meet the "clear and
unmistakable" test for waiver. Timken Roller Bearing Co. v.
NLRB (6th Cir. 1963) 325 F. 2d 746 [54 LRRM 2785, 2789]; Beacon
Piece Dying (1958) 121 NLRB 953, 957 [42 LRRM 1489]. If the
rule were otherwise, employers would be encouraged to resist
seems to indicate the opposite (pp. 4-6). As to other
"effects" of layoff, the PERB has yet to rule which are
negotiable.
12

contractual demands so that at a later time they could take
unilateral actions without input from the union. Beacon Piece
Dying, supra, at p. 960. Thus, the Association's failure to
have a layoff provision included in the parties' agreement does
not constitute a waiver of its right to negotiate.
Furthermore, inclusion in the parties' agreement of a
zipper clause which relieves the District from negotiating on a
subject proposed in negotiations but later withdrawn, also does
not establish a waiver of the Association's right to negotiate
the implementation and effects of the instructional aide
layoff. Absent a specific waiver of a specific negotiations
subject, such a generalized zipper clause serves only to
insulate a party from further requests to negotiate, it does
not sanction an employer's unilateral change in a negotiable
matter without first affording the union an opportunity to
negotiate. Equitable Life Insurance Co. (1961) 133 NLRB 1675
[49 LRRM 1070]; Goodyear Aerospace Corp. (1973) 204 NLRB 831
[83 LRRM 1461], modified on other grounds (6th Cir. 1974)
497 F. 2d 747 [86 LRRM 2763] .
In other words, such a generalized zipper clause shields an
employer from further requests to negotiate, thereby favoring
stability of bargaining relationships and agreements. However,
such a zipper clause cannot be used by an employer as a sword
empowering it to disturb the equilibrium of a bargaining
relationship by making unilateral changes in negotiable
13

matters. 	NLRB v. Auto Crane Co. (10th Cir. 1976) 536 F. 2d 310
[92 LRRM 2364] .
The fact there was a personnel commission layoff rule
which, according to the parties' agreement, prevails in the
absence of a contractual provision, does not negate the
District's obligation to negotiate. Although the Association's
layoff proposal conflicts in some respects with the personnel
commission rule (most notably, when layoffs may occur ) , most of
the Association's proposal concerns subjects not covered by the
personnel commission rule, such as reemployment rights.
Therefore, since the implementation and effects of layoff
are negotiable, and there is nothing in the parties' agreement
which waives the Association's right to negotiate the subject,
the District's unilateral implementation of the instructional
aide layoffs without affording the Association an opportunity
to negotiate constitutes a refusal to negotiate in good faith
in violation of section 3543.5 (c). Derivative violations of
the Association's section 3543.5 (b) right to represent
bargaining unit members, and employees' section 3543.5(a) right
to be represented by an exclusive representative of their own
choosing, also are found. San Francisco Community College
District (10/12/79) PERB Decision No. 105, pp. 18-20.
C. 	Reduction in cafeteria employees' hours and
instructional aides' work year in September 1981.
Reduction in cafeteria employees' hours and the reduction
in the instructional aides' work year both took place at the
14

beginning of school in September 1981. 	"Hours of employment"
is a specifically enumerated subject within the scope of
representation set forth in section 3543.2. Employees' work
year similarly is within the scope of representation. Palos
Verdes Peninsula Unified School District (7/16/79) PERB
Decision No. 96. Absent a valid defense, the District is not
permitted to take unilateral action on employees' work hours or
work year without regard to its negotiating obligation.
The parties' 1980-82 agreement, however, while giving the
District somewhat less discretion than it had under past
practice, specifically and unequivocally gives the District the
authority to designate the minimum work day and work year for
part-time employees at the beginning of the school year. This
is exactly what the District did at the beginning of the
1981-82 school year respecting cafeteria employees' work hours
and instructional aides' work years. Further, as required by
the agreement, the reduction in cafeteria employees' assigned
time was effectuated under Education Code layoff procedures.
With respect to the decrease in the work year for
instructional aides, Dominge testified this was not necessarily
a reduction but rather a guaranteed minimum work year as
specified in the parties' agreement. 	Additional work days
during the year still could be assigned.
Accordingly, since the Association specifically negotiated
for, and granted the District the authority to designate the
15

minimum length of the work day and the work year for part-time
employees at the beginning of each school year, the District
merely was following the agreement in these two areas and no
unlawful unilateral changes were made.
The Association's claim the District waived its right to
assert this contract defense with respect to the cafeteria
workers' cutback is without merit. Although the Association
apparently intended the June 26, 1981 meeting with Dominge to
be a full-fledged negotiations session, there is no evidence
that Dominge and the other administrators considered it
anything more than an informal discussion. Furthermore,
Dominge's cancellation of the next meeting, in part to allow
time to sunshine the Association's proposal, when coupled with
the District's later refusal to negotiate, does not constitute
a "clear and unmistakable" relinquishment of the District's
right to rely on the terms of the negotiated agreement. Amador
Valley Joint Union High School District (10/2/78) PERB Decision
No. 74.
D. 	Reduction of two instructional aide positions from six
hours to five.
In November 1981, after two six-hour instructional aide
positions were vacated by the incumbents, the District
advertised and filled the two positions for five hours only.
The Association objected and requested to negotiate over the
reduction in hours. The District refused, claiming it has the
16

unilateral right to set the hours for vacated positions,
analogizing the situation to one in which a position has been
abolished and a new one created.
Reduction in employees' hours clearly is negotiable and
unilateral action thereon is impermissible. North Sacramento
School District (12/31/81) PERB Decision No. 193. There is no
evidence here, as the District appears to contend, that the two
six-hour positions were abolished, and two new five-hour
positions were created. There is no evidence the governing
board or personnel commission took any such action, and from
the job announcement it seems the positions are exactly the
same as the previous ones, except for the reduction to five
hours.
It might be contended the District had the authority to
make this unilateral reduction in hours under the part-time
assignment provision of the agreement which provides, in
pertinent part, that the District may modify the work day of
part-time employees,
. when such is necessary to carry on the
business of the District subject to other
paragraphs of this article.
However, the District presented no evidence of any business
justification for this reduction in hours. Furthermore, as
required by the agreement, the reduction in hours was not
implemented as a layoff under Education Code procedures.
17

It also might be argued the District's reduction of the
hours of only two positions merely is a violation of this
part-time assignment provision which provides in pertinent part:
At the beginning of the school year, part-
time assignments shall be assigned a fixed,
regular, and ascertainable minimum number of
hours. (Emphases added. )
The PERB does not have the authority to enforce contract
violations which do not also constitute unfair practices
(section 3541.5 (b) ) .
In Grant Joint Union High School District (2/26/82) PERB
Decision No. 196, the Board itself dealt with this issue of
which contract violations also constitute unfair practices.
The Board stated:
Such a breach [of contract] must amount to a
change of policy, not merely a default in a
contractual obligation, before it
constitutes a violation of the duty to
bargain. (Emphasis added. )
In this case, even though there is only one isolated
instance of the District unilaterally changing the hours of
part-time positions in mid-year contrary to the parties'
agreement, the District indicated its position is it has the
absolute right to do so. Under the circumstances, it is
appropriate to conclude if similar situations were to arise in
the future, the District would not hesitate to take unilateral
action again. 	The District's posture deviates from the
contractual language agreed to by the parties in the 1980-82
18

agreement. 	Thus, this is not merely an isolated instance, but
rather an indication of a continuing pattern of behavior on the
part of the District.
Such a change in policy is a repudiation of the parties'
agreement and of the District's bargaining obligation, and
constitutes an unfair practice under subsection 3543.5 (c). It
also constitutes derivative violations of sections 3543.5(a)
and (b) . San Francisco Community College District, supra.
REMEDY
Under section 3541.5 (c) of EERA, the Public Employment
Relations Board has:
. the power 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 the employees
with or without back pay, as will effectuate
the policies of this chapter.
Since it has been found the District committed unfair
practices by unilaterally laying off instructional aides
without affording the Association an opportunity to negotiate
the implementation or the effects, and also by unilaterally
reducing two six-hour aide positions to five hours also without
affording an opportunity to negotiate, it is appropriate to
order the District to cease and desist from taking unilateral
actions on matters within the scope of representation without
first affording the Association an opportunity to negotiate
thereon.
19

Affirmative relief also is necessary to restore the status
quo and give the Association the negotiating opportunities it
would have had but for the District's unilateral actions and
refusals to negotiate.
With respect to the two instructional aide positions
reduced from six hours to five, the District is ordered to
restore the two positions to six hours. In addition, since the
District violated its negotiated agreement with the Association
by reducing the hours of these part-time positions in mid-year,
back pay for the extra hour per day, plus interest at the legal
rate, is awarded to the incumbents of the positions from the
time they began working the reduced five hour day.
The affirmative remedy for the District's failure to
negotiate the implementation and effects of the instructional
aide layoff presents more difficulty. Since the layoffs
themselves are within management's prerogative and therefore
non-negotiable, it is not appropriate to order the District to
restore the laid-off instructional aides to employment. Moreno
Valley Unified School District (4/30/82) PERB Decision No. 206,
at p. 13.
On the other hand, the Association is entitled to have the
District fulfill its statutory negotiating obligation in a
meaningful fashion. This only can be accomplished if the
Association is given some measure of economic bargaining power
with respect to the laid-off instructional aides. In such
20

cases the NLRB traditionally imposes a "limited" back pay order
which runs prospectively from the date of the NLRB's decision.
See, e.g. , Transmarine Navigation Corp. (1968) 170 NLRB 389
[67 LRRM 1419]; Royal Plating and Polishing Co. (1966) 160 NLRB
990, 996-997 [63 LRRM 1045]. In a similar Agricultural Labor
Relations Board case, the California Supreme Court has approved
such a remedy. 	Highland Ranch v. Agricultural Labor Relations
Board (1981) 29 Cal. 3d 848 [176 Cal. Rptr. 753]. The Supreme
Court stated:
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.
It is concluded in the present case that such a limited
back pay award, with certain modifications, is appropriate in
that it will to some measure make whole the laid-off employees
for the District's failure to negotiate the implementation and
effects of their layoffs and, as nearly as possible, it will
21

recreate the economic climate which existed before the
District's unlawful, unilateral actions.
Accordingly, the District is ordered, upon the
Association's request, to negotiate in good faith concerning
implementation and effects of the subject instructional aide
layoff, and to pay the laid-off employees the normal wages they
were receiving at the time of the layoffs, beginning the date
the Association requests to negotiate until the earliest of the
following :
(1) The date the District and the Association
reach agreement on the implementation and effects
of the layoff;
(2) Upon completion of the statutory impasse
procedure if the parties fail to reach agreement;
(3) A subsequent failure by the Association to
negotiate in good faith.
The usual rules concerning mitigation of damages also will
apply. Amounts earned by laid-off instructional aides during
the limited back pay period will be deducted from the
District's back pay obligation. Los Gatos Joint Union High
School District (3/21/80) PERB Decision No. 120, at pp. 2-6.
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
22

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 and to restore the status quo. 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] .
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, and pursuant to section
3541.5 (c), it is hereby ordered that the SOUTH SAN FRANCISCO
UNIFIED SCHOOL DISTRICT, its governing board and its
representatives shall:
1. 	CEASE AND DESIST FROM:
(a) Refusing to negotiate in good faith with the
Association on the implementation and effects of layoff;
(b) Making unilateral changes in work hours and other
conditions of employment in violation of its negotiations
agreement with the Association and without affording the
Association an opportunity to negotiate.
23

2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(a) Restore the two instructional aide positions reduced
to five hours back to six hours and, in addition, give back pay
to the incumbents for the additional hour, with interest at the
legal rate, from the date the incumbents began working in the
positions;
(b) Negotiate upon request with the Association on the
implementation and effects of the instructional aides' layoff,
and pay the laid-off employees their normal wages at the time
of the layoff, beginning from the date of a request to
negotiate until the earliest of the following:
(1) 	The date the District and the Association
reach agreement on the implementation and effects
of the layoff;
(2) Upon completion of the statutory impasse
procedure if the parties fail to reach agreement;
or
(3) A subsequent failure by the Association to
negotiate in good faith.
Amounts earned by laid-off instructional aides during the
negotiations period will be deducted from the District's
backpay obligation.
(c) Within five (5) workdays after this decision becomes
final, prepare and post copies of the NOTICE TO EMPLOYEES
attached as an appendix hereto, for at least thirty (30)
workdays at its headquarters offices and in conspicuous places
24

at the location where notices to classified employees are
customarily posted. It must not be reduced in size and
reasonable steps should be taken to see that it is not defaced,
altered or covered by any material.
(d) Within twenty (20) workdays from service of the final
decision herein, give written notification to the San Francisco
Regional Director of the Public Employment Relations Board, of
the actions taken to comply with this Order. 	Continue to
report in writing to the Regional Director thereafter as
directed. 	All reports to the Regional Director shall be
concurrently served on the charging party herein.
All other unfair practice allegations are DISMISSED.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on July 21, 1982 	unless a party files a
timely statement of exceptions. In accordance with the rules,
the statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
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 	July 21, 1982 	in order to
25

be timely filed. See California Administrative Code, title 8,
part III, section 32135. Any statement of exceptions and
supporting brief must be served concurrently with its filing
upon each party to this 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: 	June 30, 1982
GERALD A. BECKER
Administrative Law Judge
26