Calexico Unified School District (PERB 0357E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ASSOCIATED CALEXICO TEACHERS,

Charging Party, Case No. LA-CE-1630
Ve PERB Decision No. 357
CALEXICO UNIFIED SCHOOL DISTRICT, November 22, 1983

Respondent.

ee ee ee ee et et et et eet ee

Appearances: James C. Romo, Attorney (Atkinson, Andelson,
Loya, Ruud and Romo) for Calexico Unified School District.

Before Tovar, Jaeger, and Burt, Members.
DECISION
JAEGER, Member: This case is before the Public Employment
Relations Board on exceptions filed by the Calexico Unified
School District (District) to the attached proposed decision
finding that the District violated subsections 3543.5(a), (b),

and (c) of the Educational Employment Relations Act (EERA) .1

1EERA is codified at Government Code section 3540 et
seq. All references are to the Government Code unless
otherwise indicated.

Section 3543.5 provides in relevant part:

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

We have reviewed the administrative law judge's proposed
decision in light of the entire record in this matter and,
finding it free from prejudicial error, adopt it as the
Decision of the Board itself.
ORDER
Upon the foregoing facts, conclusions of law and the entire
record in this case, and pursuant to Government Code subsection
3541.5 (c) of the EERA, it is hereby ORDERED that Calexico
Unified School District and its representatives shall:
A. 	CEASE AND DESIST FROM:
(1) 	Failing and refusing to meet and negotiate in
good faith with the exclusive representative of its employees
by taking unilateral action on matters within the scope of
representation, as defined by section 3543.2;
(2) Denying the Associated Calexico Teachers the
right to represent unit members by failing and refusing to meet
and negotiate about matters within the scope of representation;
(3) Interfering with employees' exercise of their
right to select an exclusive representative to meet and
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

negotiate with the employer on their behalf by unilaterally
changing matters within the scope of representation without
meeting and negotiating with the exclusive representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT :
(1) Reinstate contractual step and column increments
for certificated employees for the 1982-83 school year, with
interest at the rate of 7 percent per annum on any amounts due
from July 1, 1982, until the date of payment;
(2) Within 35 days after the date of service of this
Decision, post at all work locations where notices to employees
are customarily 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 30 consecutive
workdays. Reasonable steps shall be taken to ensure that this
notice is not altered, reduced in size, defaced, or covered
with any other material.
(3) Written notification of the actions taken to
comply with this Order shall be made to the Los Angeles
Regional Director of the Public Employment Relations Board in
accordance with his/her instructions.
Members Tovar and Burt joined in this Decision.
3

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. LA-CE-1630,
Associated Calexico Teachers v. Calexico Unified School
District in which all parties had the right to participate, it
has been found by the Public Employment Relations Board that
the Calexico Unified School District violated subsections
3543.5(a), (b) and (c) of the Educational Employment Relations
Act.
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:
(1) Failing and refusing to meet and negotiate in
good faith with Associated Calexico Teachers (ACT) by taking
unilateral action on matters within the scope of
representation, as defined by section 3543.2;
(2) Denying ACT the right to represent unit members
by failing and refusing to meet and negotiate about matters
within the scope of representation;
(3) Interfering with employees because of their
exercise of their right to select an exclusive representative
to meet and negotiate with the District on their behalf by
unilaterally changing matters within the scope of
representation without meeting and negotiating with the
exclusive representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
Reinstate contractual step and column increments for
certificated employees for the 1982-83 school year, with
interest at the rate of 7 percent per annum on any amounts due
from July 1, 1982, until the date of payment.
Dated: 	CALEXICO UNIFIED SCHOOL DISTRICT
By
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY ( 30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATED CALEXICO TEACHERS,
Charging Party,
v .
CALEXICO UNIFIED SCHOOL DISTRICT,
Respondent.
Unfair Practice
Case No. LA-CE-16301
PROPOSED DECISION
(5/12/83)
Appearances: Charles R. Gustafson, Attorney (California
Teachers Association) for Charging Party Associated Calexico
Teachers; James C. Romo, Attorney (Atkinson, Andelson, Loya,
Ruud and Romo) for Respondent Calexico Unified School District.
Before Marian Kennedy, Administrative Law Judge.
PROCEDURAL HISTORY
On September 10, 1982, the Associated Calexico Teachers
(hereafter ACT) filed a charge against the Calexico Unified
School District (hereafter District) alleging that the District
violated sections 3543.5 (a) , (b) , and (c) of the Educational
Employment Relations Act (hereafter EERA) - by unilaterally
imposing a freeze of step and column salary increases for all
teachers in the school district without first giving notice to
and bargaining with ACT over the change.
This case was consolidated for hearing with LA-CE-1608
by Order of February 1, 1982. Since the charge in LA-CE-1608
was withdrawn at hearing and the complaint was thereafter
dismissed, only LA-CE-1630 is decided herein.
2Unless otherwise indicated, all references are to the
Government Code. The Educational Employment Relations Act is

A complaint was issued on October 20, 1982, and the
District filed its answer on December 16, 1982, admitting that
the District unilaterally imposed the wage-freeze but asserting
a business necessity defense.
An informal conference was conducted by an administrative
law judge of the Public Employment Relations Board (hereafter
PERB) on November 10, 1983, in San Diego, California but the
dispute was not resolved.
Notice of Hearing was issued on December 29, 1982, and
hearing was conducted in Calexico on February 14, 1983. Each
party having filed briefs, the matter was submitted for
proposed decision on April 29, 1983.
FINDINGS OF FACT
At all times relevant herein, ACT was the exclusive
representative of certificated personnel at the District.
found at Government Code section 3540 et seq. 	In relevant
part, section 3543.5 provides 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 them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.

A contract is in existence between the parties effective for
the period July 1, 1980, through June 30, 1983. The salary and
benefits article of the contract includes a provision for "step
and column" increases, which are salary increases to be paid to
teachers for completing additional years of service (steps) and
for earning certain additional educational credentials
(columns) . Pursuant to Article I, section 2 of the contract,
ACT reopened negotiations on the salary and benefits article,
as well as on a grievance article, on March 1, 1982. From
spring 1982 through the time of the hearing in this matter, the
parties were engaged in bargaining these reopeners.
On March 9, 1982, ACT submitted its initial proposal on
reopeners which included an across-the-board salary increase
plus the addition of a new class (column) at the top of the
salary scale. The parties met to negotiate regarding ACT's
proposal on March 10, and again on March 23, when the District
presented its counterproposal. The first paragraph of the
District's counterproposal on salaries and benefits read:
"Effective July 1, 1982, the salary schedule will remain the
same as the 1981-82 salary schedule with the exception of the
increments."
James Fowler, superintendent of the school district but not
a member of the District's negotiating team, testified that
this proposal was intended to mean that all salaries as well as
step increases for employees would be frozen and only column
W

increments would be paid during the 1982-83 school year.
Winfred Wolfe, chairman of the ACT negotiating team, testified
that the District's proposal was understood in negotiations to
be a proposal for a salary freeze which left intact both the
step and column increments already contained in the existing
contract. 	The parties stipulated at hearing that the subject
of freezing step and column increases was never discussed
during the negotiations on the reopener clause.
The parties met again on April 16, 1982, and April 26,
1982, to discuss the reopener proposals but were unable to
reach an agreement on any of the items. On April 26 the
parties mutually agreed to adjourn negotiations on reopeners
until late August or early September. Wolfe testified without
contradiction that negotiations were suspended in part because
the amount of the District's budget for the 1982-83 school year
was still uncertain and the District was therefore unwilling to
discuss salaries or related items and in part because some
members of the ACT negotiating committee planned to be out of
the Calexico area during the summer of 1982. The parties did
meet regarding other items apart from the reopener negotiations
until June 9 or 10, 1982.
Fowler testified that at a school board meeting on the
fourth Tuesday of June 1982, the board discussed a step and
column freeze for certificated employees' salaries and proposed
to adopt such a freeze at its next meeting on July 13, 1982.

After that meeting, both Fowler and his secretary attempted to
contact representatives of ACT by telephone to notify them of
the Board's imminent adoption of a step and column freeze.
Fowler and his secretary testified that they tried to call
Cheryl Miller, president of ACT, but learned that she was out
of the area for the summer. They did not make any further
attempts to reach her. Fowler's secretary also attempted
several times during the course of one day to call Winfred
Wolfe but was unable to reach him. Cheryl Miller testified
that she had left her summer address and phone number with the
principal of her school, as was required by school policy, and
that she was reachable at all times at that phone number.
Winfred Wolfe testified that he was in the Calexico area during
the time in question and reachable by telephone.
Not having reached either Miller or Wolfe by telephone,
Fowler sent a letter to Wolfe on June 30, 1982, which read as
follows :
This is to inform you of our counterproposal
to the salary negotiations. When we meet in
the fall, the District's position will be to
maintain the 1981-82 salary schedule.
At this time, we see no vertical or
horizontal increase in the salary schedule
as the result of our proposal.
Wolfe testified that he received this letter within a day
or two of its June 30 date and that he understood the second
paragraph of the letter to represent a change in the District's
5

previous bargaining position: the District added a proposal to
freeze all step and column increments in addition to its
previous-proposed general salary freeze. Wolfe testified that
he did not contact other members of ACT's bargaining team or
the school district in response to the letter.
The June 30 letter states that the District's proposal
"when negotiations resume in the fall" would include a step and
column increment freeze. It does not state or imply that the
school district planned to adopt a step and column freeze at
its July 13th meeting, 	Apart from a purely hearsay assertion
by Fowler that he was told that Victor Palacio, a member of
ACT, had picked up a copy of the agenda for the school board
meeting of July 13, 1982, at the school board offices prior to
July 13, there is no evidence in the record of any
communication to ACT of the District's intention to adopt step
and column freeze on July 13, 1982. Palacio was
treasurer-elect of ACT for the 1982-83 school year, but was not
a member of ACT's bargaining team and had not assumned his new
office as of the summer of 1982.
The freeze of both across-the-board salary increases and
step and column increments was adopted by the school board at
its July 13, 1982 meeting and was implemented with respect to
certificated employees in September 1982.
The resolution adopted by the school district on July 13
included the following paragraphs:
6

Be it further resolved that classified and
certificated employees' salaries,
specifically, step and column increments
shall be frozen in their 1981-82 level
effective July 1, 1982,
Be it also resolved that any salaries
subject to negotiations under Government
Code section 3540 et seq. will be
subsequently adjusted to conform with any
agreements reached pursuant to negotiations
with the exclusive bargaining
representatives,
And be it also resolved that this action be
in no way interpreted to preclude the
negotiating process from continuing pursuant
to Government Code section 3540 et seq.
The Business Necessity Defense
Superintendent Fowler testified that the District had to
freeze teachers' step and column increments in July of 1982
because it had to prepare and present a balanced budget for the
1982-83 school year to the county prior to the reopening of
school in September. 3In his view, the financial condition
of the District was such that the budget could not be balanced
without the District implementing the step and column freeze.
Although the wage-freeze for certificated employees did not
actually go into effect until the teachers resumed working in
September, a corresponding freeze of classified employees'
3There was testimony that a tentative budget had to be
submitted prior to July 1. Since the disputed board action
occurred after that date, it was apparently not taken as a step
in preparing the tentative budget.

salaries became effective retroactive to July 1 upon its
adoption by the school board. 4
Fowler testified further that although the parties had
agreed to suspend negotiations on contract reopeners until
September 1982, the District was willing to negotiate with ACT
regarding the step and column increments freeze proposal prior
to taking action on that proposal on July 13. Negotiations did
not take place, according to Fowler, because ACT did not
respond to the District's June 30 letter announcing the freeze
on step and class increments.
Assistant Superintendent of Business Services Gil Perez is
director of finance for Respondent and has responsibility for
preparation of the annual school district budget. Perez
testified that in excess of 80 percent of the school district's
financing comes from the State of California and the local
county. The great majority of these funds are funneled to the
school district through the county superintendent's office.
The school district is obligated to present a tentative budget
to the County authorities by the first of July preceding the
4Fowler testified that the school board decision
regarding freezing step and column increments for teachers had
to be taken on July 13 because the corresponding freeze of
classified employees' salaries had to be effective on July 1.
Fowler did not explain why the time constraints regarding a
decision on classified employees' salaries necessarily required
a decision on certificated employees' salaries at the same time.

academic year to which the budget relates. A final budget must
be in place by early September.
Perez testified that although the District technically
could have balanced the budget which it had to submit to the
county without imposing a freeze on teachers' step and column
increments, such a budget would not have been financially
responsible or practically feasible since it would have
eliminated substantially all reserve funds necessary for the
payment of day-to-day expenses. The school district receives
uneven monthly installments of revenues over the school and
calendar year making it difficult to estimate with accuracy
what the actual cash on hand will be at any particular point.
A reserve of 3 to 5 percent of the school year budget is
therefore necessary to avoid periodic temporary cash-flow
deficits. 	Perez testified that failure to impose the step and
column increments freeze would have resulted in a cash flow
deficit occurring by April or May, or perhaps as early as
February of 1983. Furthermore, the only way the District could
afford to reinstate the 1982-83 step and column increases would
be if payment of those increases could be postponed at least in
part until after the end of the fiscal year.
Perez testified that additional steps were taken to deal
with anticipated budget deficits in the 1982-83 school year
apart from freezing of teachers' salaries. 	Those steps
consisted of limiting travel and maintenance costs and
9

postponing payment certain accounts payable beyond their due
dates.
Finally, Perez testified that at the time the parties
suspended their negotiations in the spring of 1982, the
District did not know with any degree of certainty what its
financial condition would be in the 1982-83 school year. As
late as April 1982, it appeared that school districts would
receive guaranteed increases over their previous year's
operating budgets pursuant to Assembly Bill 777. In May and
June the financial situation became less optimistic. In June
it became clear that those moneys would not become available
and the school district was forced to focus on how much its
budget would be reduced rather than increased in the 1982-83
school year. The District did not learn what its actual
revenues would be until sometime in August of 1982.
ISSUES PRESENTED
1 . 	Was the District obligated to notify ACT and provide
it with an opportunity to negotiate prior to the District
adopting a freeze of step and column increments?
2. 	Did ACT waive its right to negotiate over the decision
to freeze step and column increments by failing to demand
bargaining over District's proposed action?
3. 	Was the District's unilateral imposition of a freeze
of teachers' step and column increments justified by business
necessity?
10

DISCUSSION AND CONCLUSIONS OF LAW
The District's Obligation to Bargain before making a Unilateral
Change in Step and Column Increments
A school district's unilateral change in wages, hours or
terms and conditions of employment within the scope of
representation is unlawful if such changes are made without
notice and an opportunity to negotiate being afforded to the
exclusive representative. Such a unilateral change is
inherently destructive of employee rights and is a per se
violation of the duty to meet and negotiate in in good faith. 5
In this case the District unilaterally imposed a salary
freeze of contractually mandated step and column salary
5Davis Unified School District (2/22/80) PERB Decision
No. 116; San Francisco Community College District (10/12/79)
PERB Decision No. 105.
An employer may not implement changes in wages, hours or
terms and conditions of employment which are contained in a
collective bargain contract at any time during the term of the
contract without first obtaining the consent of the union.
Offering to bargaining is not sufficient since the matter had
already been bargained and agreed upon at the time that the
contract was entered into. C & S Industries Inc. (1966) 158
NLRB 454 [62 LRRM 1043]; Oak Cliff-Golman Baking Co. (1974) 207
NLRB 1063 [85 LRRM 1035] , enf'd mem. , (5th Cir. 1974) 505 F. 2d
1302 [90 LRRM 2615]; Gorman, Basic Text on Labor Law (1976) at
pp. 463-464.
In this case, however, ACT does not allege that the
District was obligated to obtain the Union's consent before
withholding contractually-required step and column salary
increments. 	It alleges that the District was obligated to
bargain with ACT before making such changes. 	The nature of the
District's obligation turns upon whether the contractually-
mandated salaries and benefits, including the step and column
increments, remained in effect and remained binding upon the
11

increments for bargaining unit employees. Step and column
salary increases are obviously included within wages, a matter
District throughout the period during which the reopener in the
salaries and benefits clause was being negotiated. 	The
Reopener clause appearing in Article I, section 2, of the
contract provides:
A. 	Not later than March 1, 1982, either
party shall have the option of reopening
this Agreement on two (2) articles each, to
take effect upon ratification. The parties
agree to meet and negotiate in good faith.
Clearly that clause contemplates that any modification to the
contractual terms will not become effective until it is
ratified. The clause does not, however, specifically indicate
what the parties intended the status of the existing contract
clauses to be during the period when changes in those clauses
were being negotiated. Absent clear agreement that any clauses
which are reopened shall be thereupon deemed terminated and of
no further force or effect, those clauses remain binding until
they are replaced by agreement of the parties or until the
contract as a whole expires. Cf. KCW Furniture, Inc. (9th Cir.
1980) 634 F. 2d 436 [106 LRRM 2112] and cases on the necessity
for clear and unmistakable waiver of collective bargaining
rights, e.g. , Los Angeles Community College District (10/18/82)
PERB Decision No. 252.
In this case, therefore, the District was obligated not
only to meet and negotiate in good faith with ACT regarding
step and column increments which were the subject of the
reopener but also to maintain current contractual provisions on
step and column increments in effect until such time as both
parties agree to their modification. The District's unilateral
freezing of step and column increments constituted a partial
repudiation of the contract having a generalized effect and a
continuing impact on wages of bargaining unit members. 	Such
repudiation is a per se violation of section 3543.5 (c) . 	Grant
Joint Union High School District (2/26/82) PERB Decision
No. 196.
However, since ACT did not allege a violation based upon
the District's repudiation of the contract and that issue was
neither tried nor briefed by the parties and, further, since
the remedy for a violation is unchanged whether the violation
12

specifically included with the scope of representation.7 I
therefore find that the District was obligated to give ACT
notice of its intention to freeze step and column increments
and an opportunity to bargain over that proposed change before
it was implemented.
The District argues that its decision to freeze step and
column increases, taken in July, was explicitly subject to
modification after subsequent good faith negotiations with ACT
and that the decision was taken in July only because the
District labored under the obligation to present a balanced
budget proposal to county authorities at that time. 	The
District draws an analogy to PERB cases regarding unilateral
adoption of a school calendar by a District. 	The PERB held in
San Jose Community College District (9/30/82) PERB Decision
No. 240 that a District may adopt a "tentative" calendar for
student attendance "solely for operational purposes" without
first negotiating with the exclusive representative of
certificated employees where the District thereafter fulfills
its obligation to negotiate in good faith over the actual dates
is based upon repudiation of a term of the contract or upon
unilateral changes in wages without first meeting and
negotiating in good faith (see footnote 14) , the finding of a
violation herein (infra) is explicitly based independently upon
the District's imposition of unilateral changes without first
meeting and negotiating in good faith with ACT.
Davis Unified School District, supra; San Mateo
Community College District (6/8/79) PERB Decision No. 94.
13

of certificated service for the same school year. The ground
for the Board decision was that student calendar was a matter
outside the scope of negotiation because the District adopted
the calendar "for the purposes of establishing dates of student
attendance or other District operations unrelated to dates of
certificated service." Thus this decision offers no support
for the conclusion that a District may make unilateral changes
in matters within the scope of negotiation so long as those
unilateral changes are tentative and are the subject of
subsequent good faith negotiations. 8
8 In support of its argued analogy to school calendar
cases for the proposition that tentative unilateral acts
subject to subsequent negotiation do not constitute an unfair
practice, the District cites the Administrative Law Judge's
decision in Palos Verdes Peninsula Unified School District,
LA-CE-122 (1978) which was subsequently appealed on a different
point and decided by the PERB on 7/16/79, PERB Decision
No. 96. The reasoning of the Administrative Law Judge in that
case does not support the broad conclusion which the District
would draw. 	The ALJ found that the District's "qualified
[tentative] unilateral action combined with the defense of
necessity, is sufficient to negate the unfair practice
charge. " (Emphasis in original. ) The Administrative Law Judge
reasoned further:
Certainly the wording of the resolution
cannot be used to excuse past unilateral
action in every case . 	Each "unilateral
action" case must be decided on its own
facts. In the instant case 	[t ] he
District waited as long as it reasonably
could before it acted unilaterally, and even
then, the School Board's resolution plainly
demonstrates that the District is willing to
continue to meet and negotiate over matters
within the scope of representation.
The Palos Verdes case should therefore be distinguished
from the instant one on two separate grounds. First, the
14

A similar argument was made in San Francisco Community
College District (10/12/79) PERB Decision No. 105 in which the
District's resolution unilaterally imposing a freeze on
teachers' salaries and step and column increases "reaffirmed"
the District's,
. willingness to negotiate and consult
in good faith with recognized employee
representatives to reach equitable
adjustment of the emergency resolutions
hereby adopted, consistent with the
District's ability to pay .
There PERB did not find that the District's expressed
willingness to continue negotiations after taking unilateral
action was grounds for excusing the unfair practice. 	The
obligation to meet and negotiate in good faith is one which
must be fulfilled before changes are instituted regarding
matters within the scope of negotiation.
Administrative Law Judge in Palos Verdes found that the
District had a valid necessity defense and concluded only that
the tentative nature of the District's unilateral action when
combined with a valid necessity defense together overcame the
unfair practice charge. As discussed below, in this case the
District's necessity argument is properly rejected. 	Secondly ,
in the Palos Verdes case, the District did engage in
negotiations with the exclusive representative on several
occasions before taking unilateral action and postponed taking
any tentative unilateral action on the school calendar as long
as reasonably possible. In this case, by contrast, the
District never raised the possibility of a freeze of step and
column increments in negotiations and, as discussed below, did
not convincingly show that it could not have postponed
instituting the freeze until negotiations with ACT could have
been held.
15

I therefore conclude that the District's asserted defense
that it was willing to negotiate and modify the step and column
freeze after it was imposed should be rejected.
ACT's Alleged Waiver of Bargaining
At the time that the parties adjourned negotiations over
their contract reopeners in April of 1982, the District had
already proposed an across-the-board freeze on teachers'
salaries. A fair reading of the District's proposal as well as
the clear weight of the testimony indicates that that freeze
proposal encompassed only across-the-board increases and did
not reach contractually required step and column increases. 	In
late June of 1982, the District first considered expanding the
salary freeze in its orginal proposal to include a freeze on
step and column increases. A step and column freeze was
discussed at a school board meeting occurring in late June and
was scheduled to be adopted at the board's July 13 meeting.
The letter sent by Fowler to Wolfe regarding the District's
intention to expand its wage freeze proposal to encompass a
freeze of step and column increases made no reference to the
impending school board action on this modified proposal and did
not effectively notify ACT that the freeze would be adopted by
the Board at its July 13 meeting. The letter merely informed
ACT that there would be a change in the District's position on
salary negotiations "when we meet in the fall. " Fowler
testified that he worded the letter as he did because, having
16

failed to reach the ACT president by telephone, he presumed
there would be no further negotiations until fall, as had been
previously agreed.
ACT Negotiating Chairman Wolfe noted the change in the
District's position on step and column increases in the June 30
letter and understood it to mean that the District's expanded
freeze proposal would be discussed by the parties when they
resumed negotiations in September. Wolfe did not consider it
necessary to contact other members of the ACT bargaining team
which had "disbanded for the summer" nor to demand immediate
negotiations with the school district on the expanded freeze
proposal.
The District did not make any other efforts to notify ACT
before implementing the freeze proposal on July 13 and there is
no credible evidence in the record that ACT received effective
notice that the District would adopt the freeze proposal on
July 13.9
9Superintendent Fowler testified that he had been told by
an unnamed person that an ACT member had picked up a copy of
the school board agenda prior to the July 13 meeting. 	The
individual was not an officer of ACT at that time nor a member
of ACT's bargaining team.
According to PERB Regulation 32176 (California
Administrative Code, title 8, part III, section 32176) hearsay
evidence is not in itself sufficient to support a finding
unless it would be admissible over objection in civil actions.
I find no basis upon which this hearsay evidence would be
admissible in a civil action. Since the matter asserted in the
hearsay statement is not supported by other evidence, I
17

The District asserts that ACT waived bargaining on the step
and column freeze because of its failure to demand bargaining
in response to Fowler's June 30 letter to Wolfe. Certainly an
employer does not commit an unfair practice when it implements
a change in wages, hours or terms and conditions of employment
after it has given adequate advance notice to an employee
organization of the proposed change and the employee
organization has not requested negotiations within a reasonable
time. 	Where as in this case, however, the employee
organization has not been given advance notice of a proposed
change, it cannot be found to have waived its right to
conclude that the record does not support a finding that the
Association had notice of the District's intention to adopt a
step and column increments freeze prior to the July 13, 1982,
meeting .
Even if the evidence offered were sufficent to support a
finding that an ACT member and officer-elect picked up a copy
of the board agenda a few days prior to the board meeting of
July 13, that finding would not properly lead to the conclusion
that ACT had waived its right to bargain over the proposed step
and column freeze by not immediately demanding bargaining. 	The
PERB held in Arvin Union School District (3/30/83) PERB
Decision No. 300 that "general publication of the board agenda
[by posting at all school locations] does not constitute
effective notice to the exclusive representative of proposed
changes in scope matters." Certainly the accident that a
member and officer-elect of ACT, who had no role in
negotiations on behalf of ACT, may have picked up a copy of the
board agenda "a few days" before the board meeting at which
unilateral changes were adopted is no more effective notice to
the exclusive representative of the proposed changes than the
posting found insufficient in Arvin. See also, Los Angeles
Community College District (10/18/82) PERB Decision No. 252
(employee member of employee organization not deemed agents of
organization such that their knowledge of unilateral changes
should be imputed to organization) .
18

negotiate on the subject of the change by failing to make a
bargaining demand. Los Angeles Community College District
(10/18/83) PERB Decision No. 252; Arvin Union School District
(3/30/83) PERB Decision No. 300.
A fair reading of the letter sent by Fowler to Wolfe shows
that it informed ACT that the District had expanded its wage
freeze proposal to include step and column increments but it
gave no indication that the District intended to implement this
expanded freeze proposal prior to the resumption of
negotiations. In fact, the letter identified the step and
column freeze as a modified bargaining proposal to be discussed
when the parties resumed negotiations. Given these facts, ACT
cannot be found to have received adequate notice of the
proposed change or to have waived its right to demand
negotiations on the freeze of step and increment increases by
failing to demand negotiations prior to July 13. 10
The District's Business Necessity Defense
The District contends that its unilateral imposition of the
step and column freeze was justified on the ground of business
10Although Wolfe testified that he did not contact other
members of the bargaining team after receiving the June 30
letter because "they had disbanded for the summer, " the record
reflects that several members of the team were available in the
Calexico area or at least reachable. It cannot be presumed
that ACT would have failed to respond and demand immediate
negotiations had it been given advance notice of the District's
intention to freeze salaries and step and column increases on
July 13. Bargaining on the step and column freeze, as well as
other items covered by the reopeners, did resume in September
as planned.
19

necessity. The District did present convincing evidence of the
difficult financial circumstances which it faced in 1982-83.
What it must show in order to establish a business necessity
defense to unilateral action on salaries, however, is an actual
financial emergency which leaves no real alternative to the
action taken and allows no time for meaningful negotiations
before taking action. ll
Gil Perez testified that reponsible budget management
required that the proposed school district budget for the
1982-83 school year include a freeze on all step and column
increments for certificated employees. 	Perez acknowledged,
however, that the District could have presented a balanced
budget proposal to the county in the summer of 1982 without
freezing those step and column increments. Furthermore,
although Perez viewed the freeze on step and column increases
as necessary to assure a 3 percent reserve in the budget and
avoid cash-flow deficits during the school year , 12 he
testified that had the step and column increments been included
in the budget and had they been paid to the teachers regularly,
the District would not have been confronted with a cash-flow
llsan Francisco Community College District (10/12/79)
PERB Decision No. 105.
12Neither county authorities who must review and approve
the District's budget nor any law or regulation require that
the budget contain any reserve over projected expenses.
20

shortfall until April or May of 1983 or perhaps as early as
February of 1983.
Thus while the District faced very difficult financial
circumstances in the 1982-83 school year, it is clear from
Perez's testimony that it would have been possible to present a
balanced budget to the county authorities In September 1983
(and a balanced tentative budget in July) without first
unilaterally freezing step and column increments in the summer
of 1982. According to Perez' estimates, there remained
sufficient time, at least until February of 1983, for the
District to negotiate any necessary freezes of employee
salaries for the balance of the year before the District would
be confronted with any actual cash-flow deficit. Moreover,
alternatives to the imposition of a freeze on step and column
increments were possible in the form of, for example, agreement
by the teachers to accept a deferral of payments until later in
the fiscal year. 13
Those alternatives could have been
explored and perhaps agreed upon, had the issue been presented
to ACT for bargaining before implementation of the freeze.
13The District presented evidence that classified
employees eventually agreed to such a deferral of payment of
wage increases but that ACT refused a similar proposal. 	That
refusal is of no significance to the resolution of this matter
and certainly does not demonstrate that negotiations with ACT
regarding alternatives to freezing step and column increases
would have been fruitless, particularly if those negotiations
had been undertaken before unilateral action by the District
and before the consequent filing of this unfair practice charge.
21

Moreover, the District's unilateral action was not the
unavoidable result of some sudden change of circumstances, the
timing of which precluded the opportunity for negotiations.
Certainly the financial pressure which caused the District to
decide to freeze step and column increases in July was no
surprise to the District, given its already serious financial
condition in the spring of 1982. Moreover, the District was
aware before the parties agreed to suspend negotiations in the
spring that it would have to present a proposed balanced budget
to the county during the summer. The District was also in a
position to know before negotiations were suspended that a
freeze of step and column increases might be one of the steps
which the District would have to take to balance its 1982-83
budget. The District could therefore have raised the freeze
issue and could have negotiated in good faith regarding a
possible freeze well in advance of the time it had to submit a
proposed budget. Instead the record reflects that the District
refused to discuss salaries in the spring because of
uncertainty about its financial position and this refusal was
at least in part the cause of the suspension of negotiations.
Finally, the District failed effectively to notify ACT of
the imminent step and column freeze even after the school board
had explicitly considered a proposal to institute the freeze at
its last meeting in June. As discussed above, it cannot be
presumed that ACT would have been unable or unwilling to resume
22

negotiations at once when faced with a matter as serious as an
imminent freeze on step and column increases. Nor was the time
too short before a completed budget had to be in place for
meaningful negotiations to take place.
I conclude that the District has shown neither the
immediate fiscal necessity for instituting the step and column
freeze in July nor the absence of reasonable opportunity to
negotiate the possibility of a step and column freeze either
before negotiations were suspended or after the District
determined that such a freeze should be instituted.
PERB precedent in San Francisco Community College District
(10/12/79) PERB Decision No. 105 directly supports this
conclusion. In that case, the District unilaterally changed
certain terms and conditions of employment including freezing
teachers' salaries and step and column increases.
PERB held that the District's unilateral step and column
freeze violated the EERA because the financial emergency
alleged as a defense to the unilateral action was not so
pressing, either in its fiscal or timing aspects, as to
preclude negotiations with employee representatives regarding
the cost-cutting measures necessary to deal with
Proposition 13. The Board held, further, that to the extent
the District's economic position was uncertain,
. . it may not take unilateral action on
matters within the scope of representation,
but must bring its concerns about these
23

matters to the negotiating table. Inability
to pay is a negotiating position rather than
an excuse to avoid the negotiating process
entirely. (San Mateo County Community
College District (6/8/79) PERB Decision
No. 94.)
CONCLUSION
Based upon the foregoing findings of fact and the entire
record in this case, I conclude that the District violated EERA
sections 3543.5(a) , (b) and (c) by unilaterally imposing a
freeze on teachers' step and column salary increments prior to
bargaining with ACT regarding that freeze. A unilateral change
in violation of section 3543.5 (c) necessarily constitutes a
concurrent interference with employees' representational rights
in violation of section 3543.5 (a) and denies the exclusive
representative its right to represent unit members in their
employment relationship with the public school employer in
violation of section 3543.5(b) . San Francisco Community
College District, supra, at p. 19.
The Remedy
Section 3541.5 (c) gives PERB broad powers to remedy unfair
practices. In this case, the District violated sections
3543.5 (a), (b) and (c) by unilaterally withholding step and
column increases for certificated employees for the 1982-83
school year. It is therefore appropriate to order restoration
of those increments retroactive to July 1, 1982, 14 with
14Restoration of the status quo prior to the District's
unilateral change consists of restoration of the step and
24

interest paid at the rate of 7 percent. San Francisco
Community College District (10/12/79) PERB Decision No. 105, at
p. 20, San Mateo County Community College District, supra, PERB
Decision No. 94 at p. 27; Cal. Civ. Code sec. 3287; Cal. Const.
art. XXII, sec. 22.
PROPOSED ORDER
Upon the foregoing facts, conclusions of law and the entire
record in this case, and pursuant to Government Code section
3541.5(c) of the EERA, it is hereby ORDERED that Calexico
Unified School District and its representatives shall:
A. 	CEASE AND DESIST FROM:
(1) Failing and refusing to meet and negotiate in
good faith with the exclusive representative of its employees
by taking unilateral action on matters within the scope of
representation, as defined by section 3543.2;
(2) Denying ACT its right to represent unit members
by failing and refusing to meet and negotiate about matters
within the scope of representation;
(3) Interfering with employees' exercise of their
right to select an exclusive representative to meet and
negotiate with the employer on their behalf by unilaterally
column increments which should have been paid during the
1982-83 academic year according to the provisions of the
parties' contract. This remedy is appropriate as restoration
of the status quo measured by the parties past practice as
embodied in their contract and is not dependent upon a finding
of partial contract repudiation. 	See fn. 6 supra.
25

changing matters within the scope of representation without
meeting and negotiating with the exclusive representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
(1) Reinstate contractual step and column increments
for certificated employees, for the 1982-83 school year, with
interest at the rate of 7 percent on any amounts due from
July 1, 1982, until the date of payment;
(2) Within seven (7) workdays following the date of
service of the final decision, post at all school sites, and
all other 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 District. Such posting
shall be maintained for a period of 30 workdays. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced or covered by any other material;
(3) Notify the Los Angeles Regional Director of the
Public Employment Relations Board, in writing, within 20
calendar days from the date of the final decision, of what
steps the District has taken to comply with the terms of the
decision. All reports to the regional director shall be served
concurrently on charging party herein.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on 	June 1 	1983, unless a party files a
26

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 Public
Employment Relations Board itself at the headquarters office in
Sacramento before the close of business (5:00 p.m.)
on 	June 1 	1983, or sent by telegraph or certified United
States mail, postmarked not later than the last day for filing
in order to be timely filed. See California Administrative
Code, title 8, part III, section 32135. Any statement of
exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. Proof of
service shall be filed with the Board itself. See California
Administrative Code, title 8, part III, section 32300 and 32305.
Dated: May 12, 1983 Marian Kennedy
Administrative Law Judge
27