PERB Decision No. 0373E

Full text

* * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB
Decision No. 373b and OVERRULED IN PART by The Accelerated Schools
(2023) PERB Decision No. 2855 * * *
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MT. 	DIABLO EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
and
JOHN MILLS, 	PETER MOLINO, 	CAROL YOUNG,
CATHERINE AVINGTON, 	LAURIE PETERSON
AND 	LES 	GROOBIN,
Intervenors,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-452
PERB Decision No. 	373
December 30, 	1983
MT. 	DIABLO FEDERATION OF TEACHERS,
LOCAL 1902, CFT/AFT, AFL-CIO,
JOHN MILLS, 	PETER MOLINO, 	CAROL YOUNG,
CATHERINE AVINGTON, 	LAURIE PETERSON
AND 	LES 	GROOBIN,
Charging 	Parties,
v.
MT. 	DIABLO UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-455
Appearances; 	Kirsten L. 	Zerger, Attorney for Mt. 	Diablo
Education Association CTA/NEA; 	Margaret E. 	O'Donnell 	and
Gregory J. 	Dannis, Attorneys 	(Breon, 	Galgani 	& Godino) 	for Mt.
Diablo Unified School District; 	W. 	Daniel Boone, 	Attorney 	(Van
Bourg, Allen, Weinberg & Roger) 	for 	individual charging parties.
Before Jaeger, Morgenstern and Burt, 	Members.
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DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or 	Board) 	on 	exceptions 	filed 	by 	the
Mt. 	Diablo Education Association, CTA/NEA 	(Association), 	the
individual 	charging parties, 	and 	the Mt. 	Diablo Unified School
District 	(District) 	to 	a 	hearing 	officer's proposed 	decision
finding 	that the District violated subsections 3543.5(a), 	(b),
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA or
Act)1 by 	refusing 	to 	negotiate 	the 	implementation 	and 	effects
of 	its 	decision 	to 	layoff 	certificated 	employees.2
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise 	specified.
Section 3543.5 provides, 	in pertinent 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
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 The 	hearing 	officer 	dismissed 	the 	charge 	filed 	by 	the
Mt. 	Diablo Federation of Teachers, 	Local 1902, CFT/AFT,AFL-CIO
in Case No. 	SF-CE-455 	based 	on 	the Board's determination 	in
Hanford Joint Union High 	School District 	(6/27/78) 	PERB
N	2

Decision No. 	58 	that 	a nonexclusive 	representative 	is without
standing 	to file 	a 	subsection 3543.5(c) 	charge. 	No exceptions
were 	taken 	to 	this 	determination, 	and we 	adopt 	it 	as 	the
determination of 	the Board 	itself.
The Board 	has 	reviewed 	the 	hearing 	officer's 	proposed
decision 	in light of 	the parties' 	exceptions, 	and 	the entire
record 	in 	this 	matter. 	We 	affirm 	the 	hearing 	officer's
proposed 	decision 	in part 	and 	reverse 	it 	in part 	consistent
with 	the 	discussion 	below.
FACTS
This dispute 	arose 	as 	a 	result of 	the District's 	decision
to 	close 	schools, 	reduce 	programs 	and 	lay off 	certificated
personnel effective June 	30, 	1980. 	Four 	hundred 	and 	fifty-five
notices 	of 	layoff 	were 	served 	on 	certificated 	employees 	in
March 	1980. 	Ultimately, 	130 	certificated 	employees were 	laid
off 	and 	approximately 	296 	were 	transferred.
At 	all 	times 	relevant herein, 	the Association was 	the
exclusive 	representative 	of 	all 	certificated 	personnel 	in 	the
District.
The 	Contract
From January 	through November 	1979, 	the 	District 	and 	the
Association met 	and 	negotiated 	a 	successor 	collective
bargaining 	agreement 	to 	an 	agreement 	which 	expired 	on
July 1, 	1979.
After 	some 	20 mediation 	sessions 	that 	began 	in September, 	a
tentative 	agreement was 	reached on November 	1, 	1979. 	During
w	
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negotiations, 	the Association 	attempted 	to 	include 	provisions
in 	the 	agreement concerning 	layoffs, 	staffing 	ratios, 	and
caseloads 	for 	counselors 	and 	librarians. 	However, 	the District
refused 	to 	negotiate 	because 	it 	contended 	either 	that 	it 	wanted
"complete 	flexibility" 	to 	act 	unilaterally 	in 	these 	areas or
that 	these matters 	were 	not 	within 	the 	scope 	of
representation.3 On November 	1, 	1979, 	the 	executive 	board 	of
the Association directed 	its 	negotiators 	to make 	sure 	that 	the
District 	understood 	that 	the 	tentative 	agreement 	did 	not
constitute 	an 	abandonment or 	waiver 	of 	the 	issues 	raised 	by 	the
Association during 	the 	course 	of 	the 	negotiations. 	Pursuant 	to
this 	instruction on November 	1, 	Sondra Williams, 	executive
director 	of 	the Association, 	and Aleita Hildebrand, 	president
of 	the Association, 	met with Robert Galgani, 	the District's
chief 	negotiator. 	Williams 	told Galgani 	that 	the Association
was 	not 	waiving 	the 	issues 	encompassed 	in 	the 	then-pending 	PERB
charge. 	Galgani 	replied with 	words 	to 	the 	effect 	that 	he
understood. 	The 	representatives 	of 	the Association 	then 	signed
3AS 	a 	result 	of 	this 	conduct, 	the Association 	filed 	an
unfair 	practice 	charge on September 	19, 	1979, 	alleging 	that 	the
District 	refused 	to 	negotiate 	in good 	faith 	during 	the 	1979
contract 	negotiations. 	The Association withdrew 	that 	charge 	on
January 21, 	1980. 	The District's conduct with 	respect 	to 	the
matters alleged 	in 	the September 	19, 	1979 	charge 	is 	not at
issue 	in this case. 	However, 	the parties' 	actions during 	the
1979 	negotiations 	are 	relevant 	to 	a 	determination of 	the
District's 	assertions, 	infra, 	that 	the Association waived 	its
right 	to 	negotiate 	certain 	subjects 	by 	abandoning 	proposals 	at
that 	time.
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the 	agreement. 	The 	term of 	the 	agreement 	was 	to be July 1,
1979 through June 30, 	1982.
The 	Decision 	to Lay Off 	Certificated 	Personnel
During 	the 	summer 	and 	throughout 	the 	fall of 	1979, 	there
were 	rumors 	throughout 	the 	District of 	impending 	layoffs,
school closures, 	and program cuts. 	Some members of 	the 	school
board 	commented publicly 	that, 	because 	of 	the District's
financial 	situation, 	program cuts 	and 	layoffs 	were 	required.
Reports 	of 	possible 	layoffs 	also 	appeared 	in 	local 	newspapers
during December 	1979. 	However, 	at 	no 	time prior 	to the 	board's
passage 	of 	the 	implementing 	resolutions 	in February 	1980 	did
the District 	take 	any 	action 	to 	notify 	the Association 	of 	any
intention 	or 	decision 	to 	lay 	off 	certificated 	personnel.
The 	record 	demonstrates 	that 	the 	District 	began 	preparatory
actions 	to 	reduce 	its 	budget 	in November 	1979, 	and 	that 	it
contemplated 	layoffs 	as 	a means 	of 	accomplishing 	such
reductions 	at 	that 	time. 	In November 	or 	December of 	1979,
Albert 	Zamola, 	the 	District's director 	of certificated
personnel, 	was 	instructed by Galgani 	to 	update 	and 	rank 	the
certificated 	employee 	seniority 	list 	in preparation 	for
layoffs. 	Zamola 	testified 	that 	he 	employed 	the 	same 	criteria
in 	December 	1979 	that 	the 	board 	eventually 	adopted 	on
February 28, 	1980 	to determine 	the 	order 	of 	layoff 	of 	employees
who 	had 	been 	hired 	on 	the 	same date.
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In December 	1979, 	the District 	established 	several 	special
committees 	to 	study 	its 	financial 	situation. 	On
December 	19, 	1979, 	the Select Advisory Committee on 	the 	1980-81
budget 	issued 	a 	report 	containing 	50 	prioritized 	cuts 	and
specified 	the dollar 	savings 	for 	each. 	The 	report 	(Jt. 	Ex. 	12)
detailed 	50 	general 	recommendations 	for 	program cuts, 	with 	an
estimated 	savings 	of 	$12,313,970. 	It 	specifically 	recommended
elimination 	of positions 	in order 	to accomplish 	this 	result.
On December 	19, 	1979, 	the Committee 	to Evaluate High School
Vice Principals 	and Counselor 	Allocations 	submitted 	a 	report
(Jt.Ex. 	35) 	recommending, 	among other 	things, 	termination of
the 	"global counseling" 	model4 and 	standardization of 	the
counselor 	caseload 	at 	350 	students 	per 	counselor. 	The
Committee's 	report 	called 	for 	a 	net 	reduction 	of 	4.67
counselors 	and 	an 	increase of 	2 	vice-principal positions. 	The
report 	noted, 	however, 	that 	the 	negotiated 	agreement 	limited
the duties 	which 	could 	be 	assigned 	to counselors. 	It 	also
noted 	that 	any 	reduction 	in personnel must 	be 	accompanied 	by 	a
corresponding 	reduction 	in 	services 	performed.
In a separate report 	(Jt. 	Ex. 	36), 	also issued on
December 	19, 	1979, 	the 	superintendent's cabinet 	submitted 	to
the 	board 	of 	education 	a 	list 	of 	146 	possible 	budget 	cuts 	to
meet 	the 	estimated $4.6 million deficit. 	In 	an addendum, 	the
4The 	global 	counseling 	model 	required 	counselors 	to
assume 	responsibility 	for 	major 	discipline 	problems 	as 	well 	as
educational, 	career 	and personal counseling.
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report 	listed 	22 	additional 	budget 	cuts 	which 	were 	suggested 	by
various 	community 	groups 	but 	which 	were 	eliminated 	from
consideration 	because 	they 	conflicted 	with 	contractual 	or
statutory 	requirements.
The 	final 	report 	of 	the 	District 	Reorganization Committee
was presented 	to 	the 	board of 	education 	at 	its January 14, 	1980
meeting. 	The 	Committee 	recommended 	the 	conversion, 	or 	closing
and 	sale, 	of 	10 	schools at a gross 	savings of $2 million. 	The
Committee 	also 	recommended 	elimination 	of 	a 	number 	of
certificated 	positions 	and 	the 	elimination or 	reduction 	of
extra-duty 	stipends 	for 	drama 	and 	band 	instructors, 	department
chairpersons, 	and coaches.
Throughout January, 	the 	board 	of 	education 	held 	numerous
public 	hearings 	to discuss 	the District's 	budgetary 	crisis.
On February 5 	and 	6, 	1980, 	the 	school board 	adopted 	a
series 	of 	formal 	resolutions 	closing 	seven 	schools 	as 	of
June 	30, 	1980 	and 	reducing 	the 	number 	of 	certificated
employees.5
5These 	resolutions 	specified 	the 	following 	reductions:
1. 	Instructional 	aides 	would 	be provided 	for 	special
education 	day 	classes 	only 	where 	enrollment 	would
exceed 	2/3 	of 	the maximum allowable 	under 	state 	law.
2. 	The 	use 	of 	instructional 	aides 	in the 	science 	center
program 	and Mt. 	Diablo High math 	laboratory 	would 	be
discontinued.
3. 	Certain course 	offerings 	at 	the 	high 	school 	level
would be discontinued, 	eliminating 	29 	positions.
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4. 	Certain course 	offerings 	at 	the 	intermediate 	level
would be discontinued, 	eliminating 	7 	positions.
5. 	The 	student/counselor 	ratio would 	be 	increased 	to 	1
counselor 	for 	every 	425 	students, 	eliminating 	13.7
counselor 	positions.
6. 	Nurses' 	services 	would 	be 	reduced 	by 9.6 	positions.
7. 	Library 	services 	would 	be 	reduced by 	11.2 	positions.
8. 	The 	number 	of 	outside 	work 	experience 	instructors
would 	be 	reduced 	by 	3 	positions.
9. 	The 	released 	periods 	in 	intermediate 	schools 	for
administrative 	services 	would 	be 	eliminated.
10. 	The 	supplementary 	released 	periods 	for 	high 	school
department chairs would 	be eliminated, 	with 	the
exception 	of 	1 	period 	in 	the English 	and 	social
studies 	department.
11. 	The 	number of guidance 	consultants 	would be 	reduced 	by
2.7 	positions.
12. 	The 	number 	of 	elementary 	instrumental music
instructors would 	be 	reduced 	by 	3 	positions.
13. 	The 	position 	of 	teacher 	media 	specialist 	would 	be
eliminated.
14. 	Child welfare 	and 	attendance 	consultant 	services 	would
be 	reduced by 	1 position.
15. 	The 	position of 	elementary school 	resource 	teacher
would 	be 	eliminated.
16. 	The 	curriculum development 	budget 	would 	be 	reduced 	by
$25,000.
17. 	Audio-visual support, 	curriculum development, 	student
government, 	and 	yearbook 	offerings 	at 	the 	intermediate
On February 	11, 	the 	school board 	formally 	resolved 	to close
an 	additional 	school.
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school 	level would 	be 	reduced, 	eliminating 	38
positions.
18. 	Program administrator 	positions 	would 	be 	reduced 	by 	5
positions.
19. 	Five 	positions 	used 	for 	coordination of 	the different
departments' 	work 	would 	be 	eliminated.
20. 	Instrumental music, 	teacher-media, 	child welfare,
attendance 	consultant, 	counselor 	and 	guidance programs
would be 	reduced, 	eliminating 	11 positions.
The 	implementation 	of 	these 	reductions 	would 	result 	in 	the
elimination of 	130.2 	positions.
On February 13, 	1980, 	the Association wrote 	the District
demanding 	to 	bargain on 	the 	impact 	of 	the 	school 	board's 	recent
decision. 	The letter 	(Jt. 	Ex. 	6) 	stated in pertinent part:
Please 	consider 	this 	demand 	to 	bargain on 	any
and 	all 	impacts 	upon members of 	our
bargaining 	unit 	in 	any 	and 	all mandatory
subjects 	for 	negotiation 	resulting 	from your
decisions of 	recent weeks. 	School closures
and program reductions will, 	by 	necessity,
impinge 	on 	the 	working 	conditions 	of
certificated 	staff 	and 	we 	wish 	to 	bargain 	on
all 	appropriate 	subjects 	including, 	but
certainly not 	limited 	to, 	workloads, 	class
size 	and 	assignments.
Assistant 	Superintendent 	Howard 	Moorman 	testified 	that,
pursuant 	to Robert Galgani's 	advice, 	he 	attempted 	to schedule 	a
meeting 	with 	the Association 	so 	as 	to clarify 	the 	issues 	about
which 	the Association wanted 	to 	negotiate. 	At 	the meeting,
which occurred 	on February 29, 	1980, 	Moorman explained 	that 	the
District 	was 	there 	to 	clarify 	issues 	and 	was 	not 	prepared 	to
negotiate 	because 	a 	negotiator 	for 	the District 	had 	not 	been
selected.
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Despite 	the 	outstanding 	demand 	to 	negotiate, 	on February 	27
the 	District 	board 	of 	trustees 	unilaterally 	adopted 	a
resolution 	establishing 	the 	criteria 	for 	determining 	the 	order
of 	layoff 	of 	employees 	hired 	on 	the 	same 	date.6
Utilizing 	the 	criteria 	established 	by 	the 	February 	27
resolution, 	on March 6, 	1980, 	the District mailed 455 	layoff
notices 	to 	certificated 	personnel.
6The 	resolution 	states:
NOW, 	THEREFORE, BE 	IT RESOLVED by the
Governing Board 	of 	the Mt. 	Diablo Unified
School District 	that 	it 	hereby 	adopts 	the
following 	criteria used, 	in 	the order
listed, 	in determining 	relative 	seniority of
those 	certificated 	employees 	rendering 	paid
probationary 	service 	on 	the 	same 	day:
(a) 	Specific program needs
(b) 	Broadest 	teaching 	qualifications
(c) 	Most years 	teaching, 	whether or 	not
with 	the 	district
(d) 	Most post-graduate 	units 	related 	to 	the
profession
(e) 	Long 	term 	substitutes 	who have 	taught
over 	75 	percent 	of 	the 	days of 	the 	school
year 	and 	home 	and 	hospital 	teachers 	who 	have
not 	been 	selected 	in 	the more 	stringent
processes 	applicable 	to permanent,
probationary, 	and 	temporary teachers, 	shall
be 	ranked 	after 	such 	teachers 	using 	the 	same
criteria.
BE 	IT 	FURTHER RESOLVED 	that 	the Board 	hereby
approves 	the 	exercise 	of 	judgment of 	the
administrative 	staff 	in 	applying 	these
criteria 	in the 	following 	[sic] 	manner.
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The 	following 	day, 	March 	7, 	the District 	responded 	in
writing 	to 	the Association's 	February 	13 	request 	to negotiate.
It 	indicated 	that 	it did 	not 	believe 	the 	effects 	of 	layoff 	were
negotiable but 	that, 	because 	of 	the 	"unsettled 	state 	of 	the
decisions," 	it 	would meet 	to 	negotiate 	" . . . 	any 	negotiable
subject, 	affected 	by layoff 	or 	school closure 	in respect 	to
which 	negotiations 	were 	not 	concluded 	with 	the 	agreement
reached November 	1." 	The 	District 	also 	requested 	that 	the
Association 	submit 	specific 	negotiating 	proposals 	by 	the
scheduled meeting date, March 20, 	1980.
The Association 	responded on March 	18. 	It 	accused 	the
District 	of 	refusing 	to 	bargain 	and 	asserted 	its 	right 	to
negotiate 	the 	impact 	and 	implementation of 	the 	layoff. 	The
Association 	asked 	the 	District 	to 	return 	to 	the 	status 	quo 	ante
by 	rescinding 	all 	of 	its 	layoff-related 	actions 	until
negotiations 	could 	occur.
The parties met on March 	20 	and 	27, 	April 9 	and 	28 	and
May 13, 	1980. 	At 	the March 20 meeting, 	the Association
presented 	an 	initial 	list 	of 	subjects 	for 	negotiation7 and 	a
7The 	proposal 	(Jt. 	Ex. 	11) 	stated:
The Mt. 	Diablo Education Association
proposes 	that 	status quo 	in current
contract, 	policies 	and practice be presented
to MDEA and 	bargained 	upon. 	When we 	have
additional 	information 	from 	the 	District 	on
proposed 	changes 	and 	their 	impact 	on 	unit
members, 	we will present more 	specific
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detailed 	proposal 	on 	counselor 	caseload. 	Sondra Williams
testified 	that 	the Association 	could 	not 	present 	more 	detailed
proposals, 	including 	but not 	necessarily
limited 	to, 	the 	following 	subjects:
1. 	Counselors 	- workload 	and 	other 	working
conditions
2. 	Librarians
3. 	Nurses
4. 	Resource Teachers
5. 	Music Teachers
6. 	O.W.E. 	Coordinators
7. 	Preparation Time
Department 	Heads 	- 	workload 	and 	other
working 	conditions
8. 	Administrative 	assistants 	- workload
and 	other 	working 	conditions
9. 	Special 	education 	teachers 	- workload
and 	other 	working 	conditions
10. 	Teachers 	of alternatives programs -
workload 	and 	other 	working 	conditions
11. 	School closure 	and 	school openings
12. 	Early 	retirement 	incentives
13. 	Layoff procedures 	including 	criteria
for 	same 	date 	hires
14. 	Transfer procedure
15. 	Rehiring procedure
16. 	Coaches 	- working 	conditions
17. 	Additional 	revenue
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proposals 	because 	it 	lacked 	information. 	No 	negotiations
occurred 	on 	that 	date.
At 	the March 	27 meeting, 	the Association 	submitted 	detailed
written proposals 	concerning 	nine 	areas 	impacted 	by 	the
District's 	decision 	to 	lay 	off.8 The 	District maintained
that 	it 	was 	not obligated 	to 	negotiate 	over 	any of 	the
proposals offered 	by the Association, 	asserting 	that: 	it was
"too early" 	to 	negotiate 	the 	effects 	of 	its 	decision 	to lay off
employees 	and 	"too 	late" 	to 	negotiate 	issues 	related 	to 	the
implementation of 	layoff; 	some of 	the Association's proposals
were 	outside 	the 	scope of 	representation; 	and 	the Association
had 	waived 	its 	right 	to 	negotiate 	over 	other proposals. 	With
respect 	to these 	issues, 	the District offered 	to 	"discuss" 	or
"dialogue" 	with 	the Association, 	but 	asserted 	that 	it 	had 	no
obligation 	to 	"negotiate." 	In addition, 	at 	the March 	27
meeting, 	the Association made 	a 	request 	for 	all 	available
information 	regarding 	the 	implementation 	and 	impact 	of 	the
layoff.
At 	the April 9 	meeting, 	the District 	responded 	to 	the
request 	for 	information 	by 	presenting 	to 	the Association 	copies
of 	the 	relevant 	minutes 	of 	the 	school 	board 	meetings 	and 	the
8These 	included: 	early 	retirement 	incentives;
student/counselor 	ratio; 	librarian staffing; 	transfers;
alternative 	program teachers; 	elementary 	resource 	teachers;
preparation time; 	nurse 	staffing; 	and 	impact of 	layoffs 	(Joint
Exhibits 	15-22). 	The 	full 	text of these proposals 	appear,
infra, p. 	38 et seq.
13

task 	force 	reports. 	The Association 	complained 	that 	the
information 	provided 	was 	insufficient 	because 	it 	failed 	to
detail 	specific 	recommendations.
At 	the April 	28 meeting, 	the District 	reiterated 	its
justifications 	for 	not 	negotiating 	with 	the Association.
On May 	13, 	1980, 	the District cut off 	further 	negotiations
when 	it 	announced 	it 	would 	no 	longer 	continue 	meeting.
On June 	20 	the Association made 	a 	renewed 	demand 	to
negotiate. 	Although 	the 	District 	failed 	to 	respond 	prior 	to
the 	commencement of 	the hearing 	in this matter, 	there 	is 	some
indication 	that 	the 	parties 	conducted 	negotiations 	just 	before
and 	during 	the 	hearing.
Impact 	of 	Layoffs 	on Bargaining Unit
As 	noted 	above, 	of 	the 	455 	employees 	who 	received 	layoff
notices 	in March, 	1980, 	130 	employees were ultimately laid off
and 	approximately 	296 	were 	transferred. 	Moreover, 	the
implementation 	of 	the District's 	decision 	to 	lay 	off 	had 	an
effect 	on 	the 	working 	conditions 	of 	certain groups 	of District
employees 	not 	subject 	to 	the 	layoff 	during 	the 	following
academic 	year.
Counselors
As 	a 	result 	in 	the 	reduction 	in 	the 	number 	of counselors,
the District 	increased 	the 	number 	of 	students 	assigned 	to 	the
remaining 	counselors. 	For 	example, 	at 	the District's Clayton
Valley 	School, 	the 	authorized 	counselor 	caseload 	in 	1979-80 	was
14

355 	students 	for 	each counselor; 	in 1980-81, 	that caseload was
increased 	to 444 	students. 	At College Park School, 	the
caseload 	was 	increased 	from 294 	to 426 	students. 	At 	Concord
High School, 	the 	counselor 	caseload 	was 	increased 	from 263 	to
430 	students. 	At Mt. 	Diablo High School, 	the caseload was
increased 	from 270 	to 440 	students.
In order 	to 	accommodate 	this 	increased caseload, 	the
District 	required 	counselors 	to 	engage 	in group 	counseling 	and
restrict 	the 	amount 	of 	individual 	counseling 	they performed.
There 	was 	some 	evidence 	that 	this 	change 	in 	the method 	of
counseling 	affected 	the 	number 	of 	hours 	that 	counselors
worked. 	The 	past 	practice 	in 	the District had 	been 	for
counselors 	to work 	the 	same 	hours 	as 	teachers, 	from 7:15 	a.m 	to
2:45 	p.m. 	each 	day. 	In 	addition, 	they worked 	several 	hours per
week 	beyond 	their 	normal 	workday 	to 	complete 	their 	regular 	work
assignments. 	There 	was 	conflicting 	testimony 	as 	to whether
these 	extra 	hours 	were 	voluntary or 	mandatory. 	Several
counselors 	testified, 	however, 	that 	as a result of 	the
District's 	increase 	in 	caseload 	and 	elimination of
individualized 	counseling, 	counselors 	were 	required 	to work
more 	hours 	in order 	to complete 	their 	assigned 	duties.
Librarians
In 1979-80, 	the District employed 	19 	librarians. 	As a
result of 	the District's 	layoff 	in 1980-81, 	there were only 15
librarians 	in the District. 	Prior 	to the 	layoff, 	two
15

librarians 	were 	assigned 	to work 	at 	one 	school 	each 	and 	the
remaining 	librarians 	were 	assigned 	to 	work 	at 	two 	schools
each. 	As 	a 	result of 	the 	reduction 	in 	the 	number 	of
librarians, 	seven 	librarians 	who 	formerly 	serviced 	two 	schools
were 	required 	to 	service 	three 	schools.
Librarian Virginia Jouris 	testified 	at 	length 	concerning
the duties of 	librarians. 	She 	testified 	that 	librarians 	are
responsible 	for 	providing 	individual 	assistance 	to 	teachers 	in
the 	development of 	class projects, 	developing 	library 	skills
programs 	for 	students, 	and 	training volunteers. 	In the course
of 	their 	duties, 	they 	regularly provide 	bibliographies 	for
teachers, 	students, 	and parents. 	In addition to their 	resource
function, 	librarians 	have 	overall 	responsibility 	for
maintaining 	the 	libraries 	they 	are 	assigned 	to 	service.
Jouris 	testified 	that 	for 	the previous 	10 	years, 	she had
serviced 	2 	elementary school 	libraries, 	each 	with 	approximately
8000 	books 	and 	other materials. 	As 	a 	result of 	the 	reduction
in 	the 	number 	of 	librarians, 	she was 	assigned 	the
responsibility 	for 	an additional 	school. 	As a 	result, 	the
number 	of 	teachers 	she 	was 	required 	to work with 	increased 	from
36 or 	37 	in 1979-80, 	to 58 	in 1980-81. 	She testified that 	these
added 	responsibilities 	significantly 	increased 	her 	overall
hours 	of 	employment and 	that, 	as 	a 	result of 	the 	increase 	in
her 	assigned 	duties, 	she 	couldn't 	complete 	her 	assigned 	work
within 	the 	normal 	7:15 	to 	2:45 	workday.
16

Unlike 	the evidence 	with 	respect 	to counselors, 	there 	is 	no
indication 	that 	the 	District 	altered 	the 	responsibilities 	of
librarians 	in 	order 	to make 	it 	possible 	for 	them 	to complete
their 	assigned 	duties 	within 	the 	established 	workday.
Nurses
The 	only 	evidence 	introduced 	concerning 	nurses 	was 	their
assignment 	sheets 	for 	the 	1979-80 	and 	the 	1980-81 	school
years. 	This 	evidence 	establishes 	that 	nurses 	were 	assigned 	to
various district 	schools 	or 	other 	facilities 	each day. 	It 	also
indicates 	that 	in 1979-80, 	the District employed 	29 	nurses
servicing 	various 	district 	facilities 	or 	programs 	and 	that 	in
1980-81, 	it 	employed 24 	nurses 	servicing 	somewhat 	fewer
facilities 	and programs. 	In addition, 	these 	assignment 	sheets
indicate 	that 	a 	number 	of 	nurses 	were 	transferred 	to different
work 	sites 	in 	the 	year 	following 	the 	layoffs. 	There 	was 	no
evidence 	introduced 	concerning 	what 	criteria 	the 	District 	used
in 	assigning 	nurses 	nor 	whether 	nurse 	assignments 	were 	tied 	to
a 	certain 	caseload.
Resource 	Teachers
The 	District's 	decision 	to 	close 	certain 	schools 	had 	the
effect 	of 	reducing 	the 	total 	number 	of 	resource 	teachers.
Thus, 	during 	the 	1979-80 	school year, 	28 	schools 	in the
District had 	resource 	teachers; 	in 1980-81, 	only 10 	schools had
resource 	teachers. 	As 	a result of 	the District's actions, 	40
resource 	teachers 	were 	reassigned 	to other 	positions.
17

Coaches
As 	a 	result of 	the District's actions, 	three 	teachers 	who
were 	transferred 	were 	not 	reappointed 	as 	coaches 	and,
therefore, 	suffered a loss 	in coaching 	stipends. 	There was no
evidence, 	however, 	that 	the District's 	actions 	impacted 	the
working 	conditions 	of 	the 	remaining 	coaches.
DISCUSSION
The 	hearing 	officer 	found 	that 	the 	District's 	decision 	to
lay off 	certificated 	employees 	was 	nonnegotiable 	but 	that 	it
had 	a duty 	to 	negotiate 	the 	effects 	of 	that 	decision. 	He 	then
analyzed 	the Association's 	various 	proposals 	and 	determined
that 	some 	were 	outside 	the 	scope 	of 	representation.9 He
found 	other 	proposals 	to 	be 	within 	the 	scope 	of 	representation,
9The 	scope 	of 	representation 	under 	EERA 	is 	set 	forth 	in
section 3543.2. 	That 	section provides, 	in relevant part:
(a) 	The 	scope of 	representation shall be
limited 	to matters 	relating 	to wages, 	hours
of employment, 	and other 	terms 	and
conditions of 	employment. 	"Terms and
conditions 	of 	employment" 	mean health 	and
welfare 	benefits 	as 	defined 	by Section
53200, 	leave, 	transfer and 	reassignment
policies, 	safety conditions of employment,
class 	size, 	procedures 	to be 	used 	for 	the
evaluation of employees, 	organizational
security pursuant 	to Section 	3546,
procedures 	for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the layoff 	of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code. . . .
18

and 	the District's 	failure 	to 	negotiate 	those 	proposals 	to be 	a
violation of subsections 3543.5(a), 	(b), 	and 	(c) 	of the Act.
The District 	does 	not 	except 	to 	the 	hearing 	officer's 	basic
determination 	that 	it 	failed 	to 	negotiate 	the 	effects 	of 	its
decision 	to 	lay off, 	but 	asserts 	that provisions of 	the
Education Code 	preclude 	all 	negotiations 	related 	to 	the
implementation 	and 	effects 	of 	certificated 	layoffs. 	In
addition, 	it 	asserts 	a 	separate Education Code 	supersession
argument 	with 	respect 	to 	the Association's 	proposal 	concerning
the 	criteria 	for 	determining 	the 	order 	of 	layoff 	of 	employees
hired 	on 	the 	same 	date.
The Association excepts 	to 	the 	hearing 	officer's 	failure 	to
find 	that 	the District was 	required, 	as a matter 	of 	law, 	to
notify 	the Association 	of 	its 	intention 	to 	lay off 	prior 	to 	its
promulgation 	of 	a 	formal 	governing 	board 	resolution 	reducing
services. 	In addition, 	the Association excepts 	to the hearing
officer's 	finding 	that 	certain of 	its 	proposals 	were 	outside
the 	scope 	of 	representation. 	Finally, 	the Association 	excepts
to 	the 	hearing 	officer's 	finding 	that 	it 	only 	requested 	to
negotiate 	one 	issue 	related 	to 	the 	implementation of 	layoffs.
The 	individual 	charging 	parties 	except 	to 	the 	hearing
officer's 	dismissal of 	their 	allegations 	that 	the 	District
violated 	the Act 	by refusing 	to 	negotiate 	the 	number, 	timing,
and 	identity of 	the 	employees 	who would 	be 	laid 	off.
All 	of 	the 	parties 	except 	to 	the 	hearing 	officer's proposed
remedy.
19

Duty 	to Negotiate 	the 	Impact 	of 	Layoffs
In Newark Unified School District 	(6/30/82) 	PERB 	Decision
No. 	225, 	the Board held 	that 	the decision to lay off
certificated 	employees 	is 	a managerial prerogative. 	See 	also
Kern Community College District 	(8/19/83) 	PERB 	Decision
No. 	337; 	Newman-Crows Landing Unified School District 	(6/30/82)
PERB Decision No. 	223. 	However, management 	is obligated to
negotiate 	the 	effects 	of 	its 	layoff decision. 	Newark Unified
School District, 	supra; 	Kern Community College District, 	supra;
Oakland Unified School District 	(11/2/81) 	PERB Decision No. 	178
(Oakland 	I ) ; 	Solano County Community College District 	(6/30/82)
PERB 	Decision No. 	219; 	Oakland Unified School District
(7/11/83) 	PERB Decision No. 	326 	(Oakland II). 	Although the
Board 	has 	not 	fully determined 	the 	extent 	to 	which 	an 	employer
is obligated 	to negotiate 	the effects of 	layoffs, 	it has
specifically 	held 	that 	issues 	related 	to 	the 	implementation of
layoffs, 	including notice 	and 	timing of 	layoffs, 	are
negotiable. 	Oakland Unified School District 	(Oakland 	I ) ,
supra; 	Oakland Unified School District 	(Oakland I I ) , 	supra;
Solano County Community College District, 	supra.
An 	employer 	must 	provide 	an 	exclusive 	representative 	with
notice 	and 	a 	reasonable 	opportunity 	to 	negotiate 	prior 	to
taking 	action which 	affects matters 	within 	the 	scope 	of
representation. 	Newark Unified School District, 	supra;
San Mateo County Community College 	District 	(6/8/79) 	PERB
20

Decision No. 	94; 	Florida Steel Corp. 	(1978) 	235 NLRB 941 	[100
LRRM 1187] 	enf'd, 	in part, 	(4th Cir. 	1979) 	601 F.2d 125.10
Where 	an 	employer 	flatly 	refuses 	to 	negotiate 	a matter 	within
the 	scope of 	representation, 	its 	conduct 	is 	a per 	se violation
of 	its 	duty 	to 	negotiate 	in good 	faith. 	Sierra Joint Community
College District 	(11/5/81) 	PERB Decision No. 	179; 	John S. 	Swift
& Co. 	(1959) 	124 NLRB 394 	[44 LRRM 1388]. 	However, 	where the
parties 	engage 	in some 	negotiating, 	the determination of
whether 	an 	employer 	has 	violated 	its 	duty 	to 	negotiate 	in good
faith 	turns 	on whether 	there 	is 	sufficient 	evidence 	to
establish, 	based on the 	totality of 	the circumstances, 	that 	it
lacked 	subjective 	intent 	to 	reach 	agreement 	with 	the 	exclusive
representative. 	Stockton Unified 	School 	District 	(11/3/80)
PERB Decision No. 	143; Atlas Mills, 	Inc. 	(1937) 	3 NLRB 10
[1 LRRM 60]; 	NLRB v. 	Stevenson Brick and Block Co. 	(4th Cir.
1968) 	393 	F.2d 	234 	[68 	LRRM 	2086].
The 	record 	supports 	the 	hearing 	officer's 	determination
that 	the 	District 	failed 	to 	negotiate 	in good 	faith 	with 	the
Association over 	the effects 	of 	its 	decision 	to lay off. 	On
February 13, 	1980, 	the Association 	formally demanded 	to
negotiate 	"any 	and 	all 	impacts 	upon members 	of 	our 	bargaining
unit 	in 	any 	and 	all 	mandatory 	subjects 	for 	negotiation
10The 	Board 	may 	rely 	on 	federal 	labor 	law 	precedent 	where
applicable 	to 	the 	resolution 	of 	public 	sector 	labor 	relations
issues. 	Firefighters v. 	City of Vallejo 	(1974) 	23 Cal.3d 608
[116 Cal.Rptr. 507].
21

resulting 	from your 	decisions 	of 	recent 	weeks." 	Such 	a 	request
was 	certainly 	sufficient 	to place 	the 	District 	on 	notice 	that
the Association 	wished 	to negotiate 	the 	effects, 	including 	any
negotiable 	issues 	related 	to 	the 	implementation of 	layoff,
arising 	from 	its 	decision 	to 	reduce 	certificated 	services.11
Despite 	this 	outstanding 	request 	to negotiate, 	on March 	6,
1980, 	the District 	sent 	out layoff 	notices 	to targeted
employees. 	Indeed, 	the District did 	not 	formally 	respond 	to
the Association's 	request 	to negotiate 	until March 	7, 	at which
point 	the District's 	unilateral 	action 	had 	rendered 	any
negotiations 	over 	issues 	related 	to 	the 	implementation of 	the
layoff 	futile.12 This 	unilateral conduct 	in 	the 	face 	of 	an
11see 	Newman-Crows 	Landing Unified 	School 	District,
supra, 	where 	the Board 	held 	that 	"although 	it 	is 	not 	essential
that 	a 	request 	to negotiate 	be 	specific or made 	in a particular
form 	. . . 	it 	is 	important 	for 	the 	charging 	party 	to 	have
signified 	some 	desire 	to 	negotiate. 	. . . " 	See 	also Delano
Joint Union High 	School 	District 	(5/5/83) 	PERB 	Decision No.
307; 	Colombian Enameling and Shaping Co. 	(1939) 	206 U.S. 	292 	[4
LRRM 524]; 	Al Landers Dump Truck, 	Inc. 	(1971) 	192 NLRB 207 	[77
LRRM 1729];Schreiber Freight Lines 	(1973) 	204 NLRB 	1162 	[83
LRRM 	1612]. 	The Association's 	letter 	was, 	in our 	view, 	a
legally 	sufficient 	initial 	request 	to 	negotiate.
12The 	hearing 	officer 	found 	that 	the Association
requested 	to 	negotiate 	only 	one 	issue 	related 	to 	the
implementation of 	layoff, 	that 	is, 	its proposal concerning 	the
criteria 	for 	determining 	order 	of 	seniority of 	employees 	hired
on 	the 	same 	date. 	The 	hearing 	officer's 	finding 	was 	apparently
based 	on 	the 	fact 	that, 	once 	the Association 	and 	the District
did meet, 	the Association 	only 	submitted 	one 	detailed 	proposal
related 	to 	an 	implementation of 	layoff 	issue. 	Implicit 	in 	the
hearing 	officer's 	finding 	is 	a determination 	that 	because 	the
Association 	never 	developed 	detailed 	proposals 	as 	to 	other
implementation of 	layoff 	issues, 	it 	essentially 	"waived" 	its
right 	to negotiate 	those 	issues.
22
llsee _________

outstanding 	demand 	to 	negotiate 	was 	tantamount 	to 	an 	outright
refusal 	to bargain and, 	absent 	a valid defense, 	constitutes 	a
per 	se 	refusal 	to 	negotiate 	in good 	faith. 	Sierra Joint
Community College District, 	supra.
In 	addition, 	the 	record 	reveals 	that 	when 	the Association
and 	the 	District 	finally 	did 	sit 	down 	at 	the 	negotiating 	table
in 	late March, 	the District 	used 	the meetings 	as 	little more
than 	a 	forum for 	communicating 	its 	outright 	refusal 	to
negotiate. 	Thus, 	the verbatim 	transcripts of 	those meetings
indicate 	that 	the 	District 	asserted 	that, 	with 	respect 	to 	some
of 	the Association's proposals, 	it was either 	"too early" 	or
"too late" 	to negotiate, 	that other 	proposals 	were outside 	the
There 	is 	no question 	that, 	after 	an employee organization
has made 	an 	initial 	request 	to negotiate, 	an employer 	has 	a
right 	to 	request 	that 	the 	employee 	organization 	develop and
submit 	proposals 	that 	are 	sufficiently 	detailed 	so 	as 	to 	enable
the parties 	to engage 	in effective 	negotiations, 	and 	that 	a
failure 	to 	submit 	reasonably 	detailed proposals 	could 	result 	in
a 	finding 	that 	the 	employee 	organization 	had 	waived 	its 	right
to negotiate. 	Jefferson School District 	(6/19/80) 	PERB
Decision No. 	133. 	However, 	in 	this case, 	the District did not
make 	such 	a 	request 	until 	after 	it 	had 	taken 	unilateral 	action
to 	implement 	the 	layoff, 	thus effectively 	foreclosing
bargaining 	on 	implementation 	issues. 	The Association 	cannot 	be
held 	responsible 	for 	failing 	to 	submit 	detailed 	proposals 	when,
by 	its 	own unlawful 	conduct, 	the District 	has 	acted 	in such a
manner 	as 	to 	render 	further 	attempts 	to 	negotiate 	futile. 	NLRB
v. 	Burton-Dixie Corp. 	(10th Cir., 	1954) 	210 F.2d 199 	[33 LRRM
2483]; 	Solon Mfg. 	Co. 	(1976) 	222 NLRB 542 	[91 LRRM 1256] 	e n f d
(1st Cir., 	1976) 	544 F.2d 1375 	[99 LRRM 2633]; 	Richardson
Chemical Co. 	(1976) 	222 NLRB 5 	[91 LRRM 1235]. 	Therefore, 	we
find 	that 	the 	hearing 	officer 	erred 	in 	concluding 	that 	the
Association 	sought 	to 	negotiate 	only one 	issue 	related 	to 	the
implementation of 	layoff.
23

scope 	of 	representation, 	or 	that 	the Association had 	waived 	its
right 	to 	negotiate 	a particular 	subject matter. 	The 	District's
representative 	repeatedly 	indicated 	that 	he 	was 	willing 	to
"discuss" 	issues 	with 	the Association but would 	not 	"negotiate"
with 	it. 	Ultimately, 	the parties 	never 	engaged 	in a
give-and-take discussion 	as 	to 	any 	issue. 	Based on 	the
totality of 	the circumstances, 	therefore, 	we conclude 	that 	the
District did not, 	by meeting with 	the Association, 	discharge
its 	duty 	to 	negotiate 	in 	good 	faith 	with 	the Association
concerning 	the 	effects 	of 	its 	decision 	to lay off. 	Stockton
Unified School District, 	supra.
In 	addition 	to our 	finding 	that 	the 	District 	engaged 	in
conduct which, 	absent a valid 	defense, 	would violate 	its duty
to 	negotiate 	in good 	faith, 	the Association 	urges 	the Board 	to
conclude 	that 	the 	District 	violated 	the Act 	by 	failing 	to
provide 	the Association with 	notice 	of 	its 	decision 	to 	lay off
and 	an opportunity 	to 	negotiate 	the 	effects 	of 	that 	decision
prior 	to 	the 	formal 	adoption 	of 	a 	resolution 	reducing 	services
in February 	1980. 	The Association 	argues 	that 	since 	the
District was 	aware, 	as 	early as 	the 	fall of 	1979, 	that 	layoffs
were a distinct possibility, 	it was obligated 	at 	that 	time 	to
provide 	notice 	of 	impending 	layoffs 	and 	to 	begin 	negotiating
with the Association. 	Failure to do so, 	it argues, 	constitutes
an 	independent 	violation 	of 	the Act.
24

As 	noted 	above, 	the Board 	has 	long 	held 	that 	an employer
must 	provide 	an 	exclusive 	representative 	with 	notice 	and 	a
reasonable 	opportunity 	to 	negotiate 	prior 	to 	taking 	action
which 	affects matters 	within 	the 	scope 	of 	representation.
Newark Unified School District, 	supra; 	San Mateo County
Community College District, 	supra. 	However, 	the Board 	has not
determined 	exactly 	when 	the 	duty 	to provide 	notice 	and 	an
opportunity to negotiate 	arises 	in circumstances where, 	as
here, 	the 	employer's decision 	is 	nonnegotiable, 	but the effects
of 	that 	decision must 	be 	negotiated.
Under 	the National Labor 	Relations Act, 	where management
must 	negotiate 	only 	the 	effects 	of 	an 	otherwise 	nonnegotiable
decision, 	it 	is 	obligated 	to provide 	notice 	and 	an opportunity
to 	negotiate 	only 	after 	it 	actually makes 	the 	decision 	to 	act
on 	a matter 	within 	its managerial prerogative. 	Interstate Tool
Co. 	(1969) 	177 NLRB 686 	[71 LRRM 1487]; 	NLRB v. 	Royal Plating
and Polishing Co. 	(3d Cir. 	1965) 	350 F.2d 191 	[60 LRRM 2033];
NLRB v. 	Transmarine Navigation Corp. 	(9th Cir. 	1967) 	380 F.2d
933 	[65 LRRM 2861]. 	As 	the Court 	stated 	in Transmarine
Navigation Corp., 	supra, 	65 LRRM at 2866:
This 	is 	not 	to hold 	that 	the 	employer 	is
absolved 	of 	all 	duty 	to 	bargain with 	a 	union
when he makes 	a managerial 	decision. 	Once
such 	a decision 	is made 	the 	employer 	is
still 	under 	an obligation 	to 	notify 	the
union of 	its 	decision 	so 	that 	the 	union may
be given 	the 	opportunity 	to negotiate 	the
[effects of 	its] 	managerial decision.
[Emphasis 	added.]
25

We 	agree 	with 	the National Labor 	Relations Board 	and 	the
federal 	courts 	that 	it 	would 	be 	incongruous 	for 	an 	employer 	to
be 	required 	to provide 	notice of 	its 	intention 	to make 	a
nonnegotiable 	decision 	and 	negotiate 	the 	effects 	of 	that
decision prior 	to 	the 	time 	at 	which 	the 	decision 	is 	firmly
made. 	Accordingly, 	we 	find 	that 	an employer's 	duty to provide
notice 	and 	an opportunity 	to 	negotiate 	the 	effects 	of 	its
decision 	to 	lay 	off 	arises 	when 	the 	employer 	reaches 	a 	firm
decision 	to 	lay off.
Turning 	to 	the 	facts of 	this case, 	we 	find 	that 	there 	is
insufficient 	evidence 	to 	demonstrate 	that 	the 	District 	reached
a 	firm decision 	to 	lay off prior 	to 	the 	time 	that 	it
promulgated 	formal 	resolutions 	closing 	schools 	and 	reducing
certificated 	services 	on February 5 	and 6, 	1980. 	Rather, 	the
evidence 	indicates 	that, 	until 	just prior 	to 	the promulgation
of 	the 	implementing 	resolutions, 	the District was 	still
considering 	layoffs 	as 	one 	possibility 	among 	several
alternative means of reducing costs. 	Thus, 	as 	late as
December 	1979, 	the 	various 	investigatory 	committees 	appointed
by 	the 	District were meeting 	to discuss 	possible means 	of
reducing 	the 	budget. 	Their 	reports 	were 	not 	issued 	until 	late
December. 	In January 	and 	early February 1980, 	numerous
meetings 	were 	held 	throughout 	the District 	to 	solicit 	input
from members 	of 	the 	public 	concerning 	the 	District's 	budgetary
26

crisis 	and possible 	solutions 	to 	it. 	Elbert Zoriolo, 	director
of 	certificated personnel, 	testified 	that 	at 	the 	time of 	these
meetings, 	no definite 	decision had 	been made either 	to 	lay off
employees 	or 	close 	schools, 	but 	that 	such 	actions were 	"under
serious 	consideration." 	His 	testimony 	is 	corroborated 	by
Association witness Sondra Williams. 	In 	response 	to questions
concerning 	why 	the Association 	waited 	until 	February 	13 	to make
a 	request 	to 	negotiate, 	Williams 	testified 	that 	as 	late 	as
February, 	the Association 	still 	considered 	the District's
actions 	"tentative" 	and 	that 	the Association 	hoped 	that 	by
"intense 	lobbying" 	it 	could persuade 	the 	school 	board 	not 	to
resort 	to layoffs. 	Indeed, 	she 	explained 	that 	the Association
still 	hoped 	at 	that point 	that 	layoffs 	could 	be 	avoided 	without
the Association 	having 	to 	"resort 	to 	an 	adversarial
relationship" 	with 	the District.
In 	sum, 	we 	conclude 	that 	the District did 	not 	fail 	to
provide prompt 	notice 	and 	an opportunity 	to 	negotiate 	at 	the
point 	at 	which 	it 	reached 	a 	firm decision 	to 	reduce
certificated 	services. 	Rather, 	the 	record demonstrates 	that
the Association 	demanded 	to 	negotiate 	almost 	immediately 	after
that decision was made. 	Therefore, 	no 	independent violation of
the Act 	is 	established.
District's 	Defenses
A. 	Supersession;
The 	District 	asserts 	that 	the 	comprehensive 	layoff
27

provisions 	of Education Code 	sections 	44949 	and 	4495513
preclude 	all 	negotiations 	concerning 	the 	effects 	of 	layoffs,
1 3 At 	the 	time 	of 	the 	hearing 	in 	this matter, 	Education
Code 	section 44949 	provided, 	in relevant part:
Cause, 	notice, 	and 	right 	to hearing 	required
for 	dismissal 	of 	probationary 	employee.
(a) 	No 	later 	than March 	15 	and 	before 	an
employee 	is given 	notice 	by 	the 	governing
board 	that 	his 	services 	will 	not 	be 	required
for 	the 	ensuing 	year, 	the 	governing 	board
and 	the 	employee 	shall 	be 	given 	written
notice 	by 	the 	superintendent 	of 	the 	district
or 	his designee, 	or 	in the case of a
district which 	has 	no superintendent 	by 	the
clerk 	or 	secretary 	of 	the 	governing 	board,
that 	it 	has 	been 	recommended 	that 	such
notice be given 	to the 	employee, 	and 	stating
the 	reasons 	therefor.
(e) 	Notice 	to 	the 	probationary 	employee by
the 	governing 	board 	that 	his 	service 	will
not be 	required 	for 	the 	ensuing 	year, 	shall
be 	given no later 	than May 	15.
(h) 	In 	the event 	that 	the 	governing 	board
does 	not 	give 	notice 	provided 	for 	in
subdivision 	(e) 	of 	this 	section on or 	before
May 	15, 	the employee 	shall be deemed
reemployed 	for 	the 	ensuing 	school year.
At 	the 	time of 	the 	hearing 	in this matter, 	Education Code
section 	44955 	provided:
No 	permanent 	employee 	shall 	be 	deprived 	of
his 	or 	her 	position 	for 	causes 	other 	than
those 	specified 	in Sections 	44907 	and 	44923,
and Section 44932 to 44947, 	inclusive, 	and
no 	probationary 	employee 	shall 	be 	deprived
of 	his 	or 	her 	position for 	cause 	other 	than
as 	specified 	in Sections 	44948 	to 44949,
inclusive.
28
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Whenever 	in 	any 	school year 	the 	average
daily 	attendance 	in all of 	the 	schools of 	a
district 	for 	the 	first 	six months 	in which
school 	is 	in 	session 	shall 	have declined
below 	the 	corresponding 	period 	of 	either 	of
the previous 	two school years, 	or whenever 	a
particular 	kind of 	service 	is 	to be 	reduced
or 	discontinued 	not 	later 	than 	the 	beginning
of 	the 	following 	school year, 	and when 	in
the 	opinion of 	the governing 	board of 	said
district 	it 	shall 	have 	become 	necessary by
reason of 	either 	of 	such 	conditions 	to
decrease 	the 	number 	of 	permanent 	employees
in 	said district, 	the 	said governing 	board
may 	terminate 	the 	services 	of 	not more 	than
a 	corresponding 	percentage 	of 	the
certificated 	employees 	of 	said 	district,
permanent as well as probationary, 	at 	the
close of 	the 	school year; 	provided, 	that 	the
services 	of 	no permanent 	employee may be
terminated 	under 	the 	provisions 	of 	this
section while 	any probationary employee, 	or
any other 	employee with 	less 	seniority, 	is
retained 	to 	render 	a 	service 	which 	said
permanent 	employee 	is 	certificated 	and
competent 	to 	render. 	As 	between employees
who 	first 	rendered 	paid 	service 	to 	the
district on 	the 	same date, 	the 	governing
board 	shall determine 	the 	order 	of
termination 	solely on 	the 	basis 	of 	needs 	of
the 	district 	and 	the 	students 	thereof.
Notice 	of 	such 	termination of 	services
either 	for 	a 	reduction 	in attendance 	or
reduction or 	discontinuance 	of 	a particular
kind 	of 	service 	to 	take 	effect 	not 	later
than 	the 	beginning 	of 	the 	following 	school
year, 	shall be given before 	the 	15th of May
in 	the manner 	prescribed 	in Section 	44949,
and 	services 	of 	such 	employees 	shall 	be
terminated 	in 	the 	inverse of 	the 	order 	in
which 	they were 	employed, 	as 	determined 	by
Although, 	as 	noted 	above, 	the Board 	has 	found 	that 	an
employer 	is 	obligated 	to negotiate 	the 	effects 	of 	layoffs 	on
29

the 	board 	in 	accordance 	with 	the 	provisions
of Sections 	44844 	and 44845 of 	this code.
In 	the 	event 	that 	a permanent 	or
probationary 	employee 	is 	not 	given 	the
notices 	and 	a 	right 	to 	a hearing 	as provided
for 	in Section 44949, 	he 	shall be deemed
reemployed 	for 	the 	ensuing 	school year.
The 	board 	shall make 	assignments 	and
reassignments 	in 	such 	a manner 	that
employees 	shall 	be 	retained 	to 	render 	any
service 	which 	their 	seniority 	and
qualifications 	entitle 	them 	to 	render.
certificated 	employees 	(Newark Unified 	School 	District, 	supra;
Kern Community College 	District, 	supra; 	Solano County Community
College District, 	supra), 	it has not specifically responded to
the 	argument, 	urged here, 	that 	negotiations concerning 	the
effects 	of 	layoffs 	are 	precluded 	by 	the 	comprehensive 	layoff
scheme 	set 	forth 	in Education Code 	sections 	44949 	and 	44955.
The District's 	argument 	is 	based 	on 	the 	supersession
language contained 	in section 3540. 	That 	section provides, 	in
relevant 	part:
Nothing 	contained 	herein 	shall 	be deemed 	to
supersede 	other 	provisions 	of 	the Education
Code 	and 	the 	rules 	and 	regulations 	of public
school 	employers 	which 	establish 	and
regulate 	tenure 	or 	a merit 	or 	civil 	service
system or 	which provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations or
other 	methods 	of 	the 	public 	school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
In 	interpreting 	the 	supersession 	language 	of 	section 	3540,
the Board 	has 	previously 	held 	that 	an Education Code 	provision
30

will 	not 	limit 	the 	scope 	of 	representation 	so 	long 	as 	it merely
"authorizes 	a certain policy 	but 	falls 	short 	of 	[creating 	an]
absolute 	obligation." 	Jefferson School 	District, 	supra. 	See
also Holtville Unified School District 	(9/30/82) 	PERB 	Decision
No. 	250; 	Solano County Community College District, 	supra;
Mt. 	San Antonio Community College District 	(3/24/83) 	PERB
Decision No. 	297 	(Mt. 	San Antonio I ) ; 	Calexico Unified School
District 	(12/20/82) 	PERB Decision No. 	265. 	In San Mateo City
School District et al. 	v. PERB 	(1983) 	33 Cal.3d 850, 	864, 	the
California Supreme 	Court 	specifically 	upheld PERB's 	test 	for
determining 	Education 	Code 	supersession:
In 	the Healdsburg 	case PERB 	interpreted 	this
language 	to prohibit 	negotiations 	only 	where
provisions 	of 	the Education Code 	would 	be
replaced, 	set 	aside 	or 	annulled by language
of 	the proposed 	contract clause. 	In 	the
words of 	board member Moore, 	"Unless 	the
statutory 	language 	[of 	the Education 	Code]
clearly 	evidences 	an 	intent 	to 	set 	an
inflexible 	standard 	or 	insure 	immutable
provisions, 	the 	negotiability of 	the proposal
should 	not 	be 	precluded. 	. . . " 	PERB's
interpretation 	reasonably 	construes 	the
particular 	language 	of 	section 	3540 	in
harmony 	with 	the 	evident 	legislative 	intent
of 	the EERA and 	with 	existing 	sections 	of 	the
Education Code.
Education Code 	section 	44949 	establishes 	the 	rights 	of
probationary 	certificated 	employees 	in 	the 	event of 	layoff. 	It
provides 	that 	probationary 	employees 	must 	receive 	preliminary
notice 	of 	layoff 	on March 	15 	and 	final 	notice 	of 	layoff 	by
May 	15, 	or 	they are deemed 	automatically 	reemployed. 	In
31

addition, 	it establishes 	that employees must be 	afforded
administrative 	hearings. 	Education Code 	section 44955 	is
similar 	to 	section 44949, 	but 	applies 	to permanent as well 	as
probationary certificated 	employees. 	It 	specifies 	the
circumstances 	in which 	an 	employer 	is 	legally 	justified 	in
laying 	off 	certificated 	employees, 	and 	provides 	that 	employees
must 	be 	afforded 	administrative 	hearings 	in 	accordance 	with 	the
procedures 	established 	by Education Code 	section 	44949. 	It
provides 	that 	employees must 	be 	provided 	preliminary 	notice 	of
layoff 	in 	accordance 	with 	the 	procedures 	established 	by
Education Code 	section 	44949 	and 	final 	notice 	of 	layoff 	by
May 	15, 	or 	they 	are 	deemed 	automatically 	reemployed.
The 	record 	indicates 	that 	the 	general practice 	in 	school
districts 	is 	to provide preliminary notice on March 	15 	to more
employees 	than 	the district 	intends 	to lay off. 	Thus, 	for
example, 	in 	this 	case 	the District 	sent out 455 	layoff 	notices
on March 	15 	but 	ultimately 	laid 	off 	only 	130 	employees.
Between March 	15 	and May 	15, 	employees 	targeted 	for 	layoff 	are
entitled 	to 	an administrative hearing 	to 	be 	completed prior 	to
May 	15. 	The 	scope of 	that 	hearing 	is 	limited 	to the
determination of 	whether 	the 	district 	has 	good 	cause 	to 	lay off
as 	established 	by Education Code 	sections 	44949 	and 	44955. 	At
the 	completion of 	the 	hearing, 	the 	administrative 	law judge's
decision 	is 	sent 	to 	the 	governing 	board, 	which determines
32

whether 	it wishes 	to accept, 	reject, 	or 	reject 	in part 	the
ALJ's 	determination. 	Thereafter, 	the 	district 	sends out 	final
layoff 	notices 	to employees, 	which must 	be 	received 	by 	those
employees 	no 	later 	than May 15. 	Employees who 	receive 	notice
on May 	15 	are 	terminated 	upon 	the 	completion of 	the 	school
year, June 30.
We 	find 	that 	there 	is 	nothing 	in Education Code 	sections
44949 	and 	44955 	which 	create 	an 	inflexible 	standard 	precluding
all 	negotiations concerning 	the 	effects 	of layoffs. 	Rather, 	as
a general matter, 	these 	provisions 	of 	the Education Code 	create
minimal 	statutory 	guarantees 	which 	do 	not 	conflict 	with
attempts 	by 	an 	employee 	organization 	to 	gain 	additional
rights 	through 	the 	collective 	negotiations 	process.14
However, 	there 	is 	one 	area 	in which we do 	find 	that 	the
right 	to negotiate 	the 	effects of 	layoffs 	is, 	at 	least 	in part,
superseded 	by 	the 	comprehensive 	layoff 	notice 	and 	timing
provisions 	of 	the Education Code.
In 	assessing 	the District's 	supersession argument, 	the
hearing 	officer 	drew 	a 	distinction 	between 	the negotiability of
14For 	example, 	although Education Code 	section 	44955
requires 	an 	employer 	to provide 	notice 	of 	layoffs 	"no 	later 	than"
March 	15, 	the Board has 	found 	there 	is 	nothing 	in such 	a
provision 	which 	would 	preclude 	the 	parties 	from 	negotiating
additional 	notice. 	See 	Oakland Unified School District
(Oakland I ) , 	supra; 	Oakland Unified School District 	(Oakland II),
supra.
33

issues 	related 	to 	the 	"implementation" 	of 	layoffs 	and 	those
related 	to other 	"effects" 	of 	the decision 	to layoff.
Generally, 	he 	defined 	"implementation" 	issues 	as 	those 	which
concern 	the 	"manner 	in which 	layoffs 	occur." 	He 	found 	that,
because Education Code 	sections 	44949 	and 	44955 	impose 	upon a
public 	school 	employer 	a March 	15 	deadline 	to provide 	notice 	of
layoff 	to employees, 	the District 	was 	excused by 	"operational
necessity" 	from having 	to 	negotiate 	any 	implementation 	of
layoff 	issues. 	Accordingly, 	he 	concluded 	that 	the District 	was
excused 	from 	negotiating 	the 	Association's 	same-date-of-hire
proposal, 	the 	only proposal 	related 	to 	the 	implementation of
layoff 	which 	he 	found 	that 	the Association demanded 	to
negotiate.
Although 	the Board 	has 	broadly 	stated 	that 	the
"implementation 	and 	effects" 	of 	the 	decision 	to 	lay 	off 	are
negotiable 	(Solano County Community College District, 	supra),
we 	have 	yet 	to 	define 	the 	distinction between 	"implementation"
issues 	and 	other 	"effects" 	of 	the 	decision 	to 	lay 	off.15
While 	we 	agree 	with 	the 	hearing 	officer 	that 	such 	a distinction
is 	useful 	in 	assessing 	the 	duty of 	an employer 	to negotiate 	in
the 	layoff 	context 	and 	that 	the Education Code 	does 	place 	time
1 5 We 	do 	not 	wish 	to 	imply 	that 	"implementation 	of 	layoff"
is 	a 	separate 	subject of 	bargaining 	from 	"effects 	of 	layoff";
rather, 	the 	former 	is, 	broadly speaking, 	sub-category 	of the
latter.
34

limits 	on 	the 	negotiability 	of 	certain 	implementation of 	layoff
issues, 	we 	disagree with 	his 	conclusion 	that 	the District 	was
excused 	by 	operational 	necessity16 from 	negotiating
implementation of 	layoff 	issues.
As 	noted 	above, 	Education Code 	sections 	44949 	and 	44955
provide 	that 	an 	employer 	must 	provide 	preliminary 	notice 	to
employees 	that 	they 	are 	targeted 	for 	layoff 	no 	later 	than
March 	15 	and 	final 	notice 	no 	later 	than May 	15 	or 	they 	are
deemed 	automatically reemployed. 	Clearly, 	therefore, 	these
provisions 	create 	an 	inflexible 	deadline 	limiting 	the 	duty 	of
an 	employer 	to negotiate 	in at 	least 	two areas 	related 	to 	the
implementation 	of 	layoffs.17 First, 	any 	negotiations
concerning 	additional 	preliminary or 	final 	notice 	which
employees 	may 	receive must 	be 	completed 	prior 	to March 	15 	and
May 	15 	respectively. 	Similarly, 	any negotiations 	concerning
the 	method 	of 	determining 	the 	identity of 	those 	employees 	to be
laid 	off must 	be 	completed 	prior 	to 	the May 	15 	deadline 	for
16We have found, supra, that the Association, by its
general 	request 	to negotiat	- - 	e of February 13, 	1980, 	aid demand
to 	negotiate more 	than one 	implementation of 	layoff 	issue 	and
that 	its 	failure 	to develop more 	than 	one 	detailed proposal did
not 	constitute 	a waiver 	of 	its 	right 	to 	negotiate 	such 	issues
because 	the District's 	unilateral 	conduct 	rendered 	any further
attempt 	to 	negotiate 	futile.
17Our 	discussion 	is 	not meant 	to establish 	a conclusive
list 	of 	negotiating 	subjects 	which 	would 	fall 	under 	the
definition 	of 	"implementation 	of 	layoff." 	A 	determination 	of
the 	extent 	to which Education Code 	sections 	44949 	and 	44955
supersede 	the 	right of 	employees 	to 	negotiate must 	be 	based 	on
an 	analysis 	of 	specific 	negotiating 	proposals.
16w
35
16w

receipt of 	final 	layoff 	notices 	by employees. 	Thereafter,
management 	may 	unilaterally 	implement 	the 	layoff 	in 	accordance
with 	the 	provisions 	of 	the 	Education 	Code.18
Thus, 	we 	agree with 	the hearing officer 	that 	the Education
Code 	creates 	certain deadlines 	for 	the 	completion of
negotiations 	concerning 	the 	notice 	to 	be 	provided 	employees
targeted 	for 	layoff 	and 	the 	method 	of 	determining 	the 	identity
of 	those 	employees who will be laid off. 	However, 	we disagree
with 	his 	conclusion 	that 	the 	District 	was 	excused 	by 	these
fixed 	dates 	from negotiating 	these 	issues. 	In our 	view, 	a
period 	of 	four months, 	from 	the 	date 	of 	the Association's
demand 	to 	negotiate 	until May 	15, 	was 	sufficient 	for 	the
parties 	to 	negotiate 	through 	impasse 	concerning 	the 	method 	of
determining 	the 	identity of 	those 	to be 	laid 	off. 	Rather 	than
negotiating, 	however, 	the 	record 	indicates 	that 	the District
took 	unilateral 	action 	to 	implement 	the 	layoff. 	Therefore, 	we
reverse 	the 	hearing 	officer's 	finding 	that 	the 	District's
failure 	to 	negotiate 	those 	issues 	related 	to 	the 	implementation
of 	the 	lay off, 	including 	the Association's 	same-date-of-hire
proposal, 	was 	excused 	by 	operational 	necessity.19
18The 	District would, 	of course, 	still be obligated to
continue 	to 	negotiate 	other 	in-scope 	effects 	of 	its 	decision 	to
lay 	off.
19Nevertheless, 	as discussed 	infra at p. 	45, 	we 	find 	the
Association's 	same-date-of-hire 	proposal 	is 	superceded 	by 	the
Education Code 	for 	other 	reasons.
36

B. 	Scope 	of 	Representation Defense;
Having 	resolved 	the 	District's 	general 	supersession
defense, 	we 	turn 	to the 	individual 	negotiating proposals 	to
assess 	the 	District's 	contention 	that 	several of 	the 	proposals
are 	outside 	the 	scope 	of 	representation.20
1. 	Impact of Layoff Proposal
The Association 	sought 	to 	negotiate 	a proposal 	related 	to
the 	impact 	of 	layoff. 	That proposal provided:
1. 	In 	the 	event 	that 	the District determines
that 	some members 	of 	the 	bargaining 	unit
shall 	be 	laid 	off 	pursuant 	to 	appropriate
provisions 	of 	law 	and 	those 	affected
members 	of 	the 	bargaining 	unit 	thereafter
20The 	Association 	argues 	that 	the Board 	should 	not
consider 	the District's 	defense 	that 	its 	proposals 	were 	outside
the 	scope 	of 	representation 	and 	that 	we 	should 	reverse 	the
hearing 	officer's 	determination 	that 	some 	proposals 	were
nonnegotiable. 	Essentially, 	the Association asserts 	that 	the
District's 	scope 	of 	representation 	argument 	is 	an 	"affirmative
defense," 	which must 	be 	raised 	in 	answer 	to 	the 	unfair 	practice
charge or 	it 	is waived.
The Association's 	argument 	is misplaced. 	While 	employers
often 	raise 	the 	argument 	that 	a 	bargaining proposal 	is 	outside
the 	scope 	of 	representation 	by way 	of 	an 	affirmative 	defense,
it 	is 	the 	overall burden of 	the 	party alleging 	that 	an employer
violated 	its 	duty 	to 	negotiate 	in good 	faith 	to prove 	that 	the
respondent 	refused 	to 	negotiate 	concerning 	a matter 	within 	the
scope 	of 	representation. 	Grant Joint Union High 	School
District 	(2/26/82) 	PERB Decision No. 	196. 	Thus, 	it was not
only proper 	for 	the 	hearing 	officer 	to consider 	this 	issue, 	but
it was 	required 	as 	a matter of law. 	Were we 	to 	rule 	to 	the
contrary, 	the Board could 	find 	itself 	in 	the 	position of
ordering 	an 	employer 	to 	negotiate 	over 	a 	subject of 	bargaining
which 	it 	has 	no 	legal duty 	to negotiate. 	Such 	an order 	would
exceed 	the Board's 	jurisdiction.
37

are 	laid off, 	then by 	the 	fifth working
day 	of 	the 	immediately 	succeeding
academic 	year 	those 	affected members 	of
the 	bargaining 	unit 	shall 	be granted
severance 	pay 	in 	the 	valued 	amount 	of
their 	accumulated 	and 	unused 	sick 	leave.
The 	valued 	amount 	shall mean 	the 	per 	diem
rate 	(computed 	as 	1/177 	of 	the 	annual
salary 	for 	the 	fiscal 	year 	in 	which 	the
layoff 	takes 	effect) 	multiplied 	by 	the
total 	number 	of 	accumulated 	and 	unused
sick 	leave 	days.
2. 	The District 	shall 	reimburse 	a
certificated 	employee 	in 	the 	amount 	of
three 	hundred 	($300) 	dollars 	whenever 	and
at 	the 	same 	time 	that 	it 	rescinds 	a
written notice of 	intent 	to dismiss, 	or
notice to dismiss. 	Moreover, 	the
District 	shall 	also 	reimburse 	any
certificated 	employee 	who 	has 	received
either 	of 	the 	above 	written 	notices 	for
any 	expenses 	incurred 	in 	connection with
such 	certificated 	employee's 	search 	for
other 	employment.
3. 	Provisions 	set 	forth 	in #1 	and #2 	above
shall 	not 	be 	construed 	to waive 	any 	right
deriving 	from 	any 	provision 	of 	law which
might 	otherwise 	have 	been 	enjoyed 	by
members of 	the 	bargaining 	unit.
4. 	In 	the 	event 	that members of 	the
bargaining 	unit 	receive 	notices 	of
dismissal 	pursuant 	to 	appropriate
provisions of 	law, 	then 	the Association
may 	reopen 	this 	arrangement 	at 	any 	time
after 	receipt 	of 	such 	notices 	by members
of 	the 	bargaining 	unit 	in order 	to
negotiate 	the 	impact 	of 	any proposed 	or
effected 	reduction 	in 	force.
5. 	The 	criterion 	used 	to 	establish 	relative
seniority of 	teachers 	with 	the 	same date
of hire 	shall 	be 	a lottery drawing. 	If
seniority 	has 	previously 	been 	determined
by 	lottery, 	that 	determination shall
38

stand. 	Subsequently, 	for 	employees 	first
rendering 	such 	services 	on 	the 	same 	day,
seniority 	shall 	be 	determined 	by
lottery. 	If 	seniority has 	previously
been 	determined 	by 	lottery 	that
determination 	shall 	stand. 	Subsequent
lotteries 	shall 	be 	held 	as 	needed prior
to March 	1, 	in 	the presence of an
Association 	representative. 	Once
decided, 	that 	determination 	shall 	stand.
The 	hearing 	officer 	found 	that 	paragraphs 	1-4 	of 	the
Association's 	proposal were 	negotiable, 	but 	that 	the District
was 	excused 	by 	operational 	necessity 	from 	negotiating 	the
same-date-of-hire 	proposal 	set 	forth 	in paragraph 	5. 	For 	the
reasons 	set 	forth, 	supra, 	we have 	reversed 	this determination.
In addition, 	however, 	the 	hearing 	officer 	rejected 	a separate
District 	argument 	that 	paragraph 	5 	was 	superseded 	by 	a 	specific
portion of Education Code 	section 	44955, 	permitting 	the
District 	to 	establish 	unilaterally 	the 	order 	of 	layoff 	of
employees hired 	on the 	same date. 	In 	its 	exceptions, 	the
District 	reasserts 	this 	contention. 	The District 	does 	not,
however, 	except 	to 	the 	hearing 	officer's 	finding 	that
paragraphs 	1-4 	of 	the Association's 	proposal 	were 	negotiable.
Although 	the Board 	will 	ordinarily 	not 	review portions 	of 	a
proposed 	decision 	that 	are 	not 	specifically 	excepted 	to,21
21PERB 	rules 	are 	codified 	at 	title 	8, 	California
Administrative Code, 	section 31000 	et 	seq. 	PERB 	rule 	32300(c)
provides: 	"An exception 	not 	specifically 	urged 	shall 	be
waived."
39

where 	the 	issues 	raised 	are of 	important 	legal 	significance 	and
the 	record 	is 	complete, 	the Board may 	review 	them sua 	sponte 	in
order 	to 	avoid 	serious 	errors 	of 	law. 	Fresno Unified School
District 	(4/30/82) 	PERB Decision No. 	208.
In Anaheim Union High School District 	(10/28/81) 	PERB
Decision No. 	177,22 issued 	subsequent 	to 	the 	hearing
officer's 	proposed 	decision 	in 	this 	case, 	the Board 	established
a 	test 	for 	determining 	the 	negotiability of 	subjects 	not
specifically 	enumerated 	in 	section 	3543.2. 	Although 	the
hearing 	officer 	found 	paragraphs 	1-4 	of 	the 	Association's
Impact of 	Layoff proposal 	negotiable, 	he did 	so without 	benefit
of 	the Anaheim test. 	Therefore, 	we 	find 	it 	necessary 	to 	review
the 	proposals 	contained 	in 	paragraphs 	1-4 	sua 	sponte 	in 	light
of 	the Anaheim test. 	Fresno Unified School District, 	supra.
Under 	the Anaheim 	test, 	a 	nonenumerated 	subject will be
found 	to be within 	the 	scope of 	representation 	if: 	(1) 	it 	is
logically 	and 	reasonably 	related 	to hours, 	wages 	or 	an
enumerated 	term and condition of employment; 	(2) 	the 	subject 	is
of 	such 	concern 	to 	both 	management 	and 	employees 	that 	conflict
is 	likely 	to 	occur 	and 	the 	mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of 	resolving 	the
conflict; 	and 	(3) 	the 	employer's obligation 	to negotiate would
22cited, 	with 	approval, 	by the California Supreme Court
in San Mateo City School District et al. 	v. 	PERB, 	supra.
40

not 	significantly 	abridge 	its 	freedom 	to 	exercise 	those
managerial 	prerogatives 	(including 	matters 	of 	fundamental
policy) 	essential 	to 	the 	achievement of 	the District's mission.
Paragraph 	1 of 	the Association's 	proposal 	seeks 	to
establish 	a 	system of 	severance 	pay 	for 	laid-off 	employees.
Applying 	the Anaheim test, 	we 	find 	this proposal 	to be
negotiable.
There 	is 	no question 	that 	severance pay 	is 	logically 	and
reasonably 	related 	to wages 	and 	hours, 	both of which 	are
enumerated 	subjects.
Severance 	pay 	for 	laid-off 	workers 	is 	a matter 	of 	extreme
importance 	to employees, 	who desire a certain level of
financial 	security 	during 	the 	transition 	from 	employed 	to
unemployed 	status. 	Management, 	for 	its part, 	desires 	an
orderly 	layoff 	procedure 	which 	minimizes 	the 	negative 	impact 	of
such 	an 	event 	on 	its 	relationship with 	its 	employees. 	In both
instances, 	collective 	negotiations 	are 	a beneficial means 	of
structuring 	the 	layoff 	process 	and 	ameliorating 	conflict
between management 	and 	labor.
Finally, 	we 	can 	find 	no management 	prerogative which would
be 	invaded 	by 	requiring 	the 	District 	to 	negotiate 	concerning
severance 	pay 	for 	laid-off 	employees.
Accordingly, 	we 	find 	the 	severance 	pay proposal 	in
paragraph 	1 	to be a negotiable effect of 	the 	decision 	to 	lay
off.
41

Paragraph 	2 	is 	a proposal 	requiring 	the District 	to pay 	a
fine 	and 	the 	costs 	incurred 	for 	issuing 	and 	then 	rescinding 	a
notice of 	intention 	to lay off. 	In Jefferson School District,
supra, 	the Board 	explicitly held 	that 	an 	identical 	contract
proposal was 	nonnegotiable, 	since 	it was punitive 	and
impermissibly 	interfered 	with 	an 	employer's 	statutory
obligation 	under 	the Education Code 	to provide 	notice 	to
employees 	potentially 	targeted 	for 	layoff. 	We 	reaffirm 	that
holding, 	and 	therefore 	find 	the Association's 	proposal 	outside
of 	the 	scope 	of 	representation.
Paragraph 	3 	contains 	language 	reserving 	to employees 	all
rights 	provided 	by 	state 	law. 	Paragraph 	4 	similarly 	attempts
to 	set 	out 	the Association's 	established 	right 	to 	negotiate 	the
implementation 	and 	effects 	of 	a 	layoff. 	Both 	paragraphs 	are
recitations 	of 	statutory 	rights 	already 	guaranteed 	to 	the
Association 	and 	these 	proposals 	merely 	indicate 	that 	no waiver
of 	those 	rights 	is 	intended. 	There 	is 	nothing, 	therefore,
which 	precludes 	their 	negotiability.
Paragraph 	5 	seeks 	to 	negotiate 	a 	lottery 	system 	for
establishing 	the 	order 	of 	seniority of 	employees 	who 	share 	the
same 	date of 	hire. 	With 	respect 	to 	this 	particular 	proposal,
the 	District 	asserts 	that 	a portion 	of Education Code 	section
44955 	precludes 	negotiations.23
23Education 	Code 	section 	44955 	provides 	in 	relevant 	part:
42

As 	between 	employees 	who 	first 	rendered 	paid
service 	to 	the district 	on 	the 	same 	date,
the 	governing 	board 	shall 	determine 	the
order 	of 	termination 	solely 	on 	the 	basis 	of
needs 	of 	the 	district 	and 	the 	students
thereof.
Education Code 	section 	44955 	was 	enacted 	to 	replace 	a
previous 	Code 	provision 	which 	required 	that 	a 	lottery 	be 	used
to 	determine 	the 	order 	of 	layoff 	for 	employees 	with 	the
same-date-of-hire. 	Section 	44955 	requires 	that 	the District
establish 	criteria 	for 	determining 	the 	order 	of 	layoff 	of
employees hired on the 	same date 	based 	"solely on the 	. 	. 	.
needs 	of 	the 	district 	and 	the 	students 	thereof." 	The 	primary
intention of 	the Legislature, 	therefore, 	in enacting Education
Code 	section 	44955 	was 	to eliminate 	a 	selection process 	based
on 	chance 	and 	to permit 	an 	employer 	to determine 	the 	order 	of
layoff 	based 	on 	educational 	policy 	concerns.
This 	conclusion 	is 	reinforced 	by 	the 	legislative 	committee
reports 	analyzing 	the 	amendments 	to 	section 	44955 	contained 	in
SB 	274 	(Behr).24 Thus, 	the July 29, 	1977 report of the
Senate Education Committee 	(Dist. Ex. 	D ) , 	in describing SB 274,
stated:
This measure 	would 	eliminate 	the 	lot
determination 	procedure 	for 	"same 	day"
teachers, 	and 	leave 	the 	order 	of 	layoff 	to
the 	governing 	board 	of 	the 	district 	based 	on
the 	needs 	of 	the 	district 	and 	the 	students
thereof.
24 Enacted Stats. 	1977 ch. 	433, 	section 4.
43

Similarly, 	the 	"Legislative Counsel's Digest" 	which
accompanied SB 274 	(Dist. 	Ex. 	C ) , 	and which was voted on by the
Legislature, provided:
Existing 	law 	generally 	requires 	that
certificated 	employees 	of 	a 	school 	district
be 	laid off 	in 	the 	reverse 	order 	of 	their
employment 	by 	the 	district 	and 	be 	reemployed
in the order 	of 	initial employment, 	and 	that
if 	two or 	more 	employees 	were 	first 	employed
on 	the 	same 	date 	their 	order 	of 	employment,
for 	layoff purposes, 	be 	determined by 	the
drawing 	of 	lots.
This 	bill 	would 	delete 	provisions 	for 	the
drawing of 	lots 	and, 	instead, 	would 	require
that 	the 	order 	of 	layoff 	and 	reemployment
between 	employees 	having 	the 	same 	employment
date 	be determined 	by 	the 	school 	district
governing 	board 	solely 	on 	the 	basis 	of 	the
needs of 	the 	district 	and 	its 	students.
Based 	on 	this 	legislative 	history 	and 	the 	clear affirmative
language of 	the 	statute, 	we conclude 	that 	the Legislature, 	in
amending 	section 	44955, 	created 	an 	inflexible 	standard which
supersedes 	the 	right 	of 	employees 	to 	negotiate 	the 	criteria 	for
determining 	the 	order 	of 	layoff 	of 	employees 	with 	the 	same 	date
of hire. 	San Mateo City School District et 	al v. 	PERB, 	supra.
In our 	view, 	once management 	exercises 	its 	right 	to determine
the 	order 	of 	layoff 	based 	"solely on 	the 	needs 	of 	the 	district
and 	the students", 	there 	is no 	issue left 	to negotiate. 	Thus, 	we
find 	that 	the District 	acted 	within 	its 	exclusive 	prerogative
when 	it 	unilaterally 	adopted 	the 	criteria 	for 	determining 	the
order 	of 	layoff 	of 	employees 	with 	the 	same 	date 	of 	hire.25
25we 	note 	that 	this 	case 	arose 	before 	the 	scope of
representation 	section of EERA 	(section 	3543.2) 	was 	amended 	to
add 	subsection 3543.2(c). 	That 	subsection provides:
44
25we

(c) 	Notwithstanding Section 	44955 	of 	the
Education Code, 	the public 	school employer
and 	the 	exclusive 	representative 	shall, 	upon
request 	of 	either 	party, 	meet 	and negotiate
regarding 	procedures 	and 	criteria 	for 	the
layoff 	of 	certificated 	employees 	for 	lack 	of
funds. 	If 	the public school employer 	and
the 	exclusive 	representative 	do 	not 	reach
mutual agreement, 	then 	the provisions of
Section 	44955 	of 	the Education Code 	shall
apply. 	(Added Stats. 	1981, ch. 	100,
sec. 	34, 	effective January 1, 	1982.)
The Board 	has 	yet 	to 	interpret 	the 	effect of 	the 	addition
of 	subsection 	(c) 	to 	section 	3543.2 	on 	an employer's 	duty 	to
negotiate 	in 	the 	layoff 	context, 	and 	it 	is 	not before 	us 	in
this case.
Since 	we 	have 	found 	the Association's 	proposal 	concerning
same-date-of-hire 	criteria 	to 	be outside 	the 	scope 	of
representation, 	the District's 	refusal 	to 	negotiate 	that portion
of 	the Association's 	impact 	of 	layoff proposal was 	not 	a
violation of 	the Act. 	However, 	the District's 	refusal 	to
negotiate paragraphs 	1, 	3, 	and 4 of 	the Association's proposal
constitutes 	a violation of 	subsection 3543.5(c) 	and,
concurrently, 	subsections 3543.5(a) 	and 	(b). 	San Francisco
Community College District 	(10/12/79) 	PERB Decision No. 	105.
2. 	Transfer 	Proposal
The Association 	sought 	to 	negotiate 	a proposal 	relating 	to
transfer 	as 	a 	result of 	layoffs. 	That proposal provided:
If 	teachers 	are 	transferred 	into 	a 	school
due 	to 	an 	influx 	of 	students 	caused 	by
exceptions made 	in 	the Board 	established
attendance boundaries, 	then no 	teachers will
be 	transferred 	from 	that 	school 	the
following 	year 	because of 	decline 	in
enrollment.
45

The Association 	sought 	to 	negotiate 	this proposal 	as 	an
addendum to 	the 	transfer 	provision of 	the 	parties' 	collective
agreement. 	Article X, 	subsection 54(b)(5) 	of 	the collective
agreement provides, 	in relevant part:
Any teacher[s] 	. 	. 	. who are transferred
involuntarily . 	. 	. 	shall not be subject to
involuntary 	transfer 	for 	the 	year 	in which
such 	removal 	from 	the 	site 	is 	effective 	and
the 	two 	(2) 	following 	school years.
The 	proposal 	attempts 	to 	establish 	certain 	transfer 	rights
which 	would 	be 	triggered 	by 	the 	District's 	decision 	to 	close
certain 	schools. 	The District 	refused 	to negotiate, 	arguing
that 	the 	issue 	was 	covered 	by 	the 	contract's 	transfer 	provision
and 	that 	further 	negotiation was, 	therefore, 	waived. 	The
hearing 	officer 	agreed 	and 	found 	the 	proposal 	nonnegotiable.
The Association excepts 	to 	this 	determination. 	Although 	it
concedes 	that 	the 	existing 	agreement 	contains 	provisions
related 	to 	involuntary 	transfer, 	it 	nevertheless 	asserts 	that
because 	"the 	parties 	did 	not 	envision 	a 	layoff 	of 	this
magnitude when they negotiated 	. 	. 	. 	the Association must be
allowed 	to open 	up 	that 	item 	in 	the 	face 	of 	massive 	layoffs 	and
transfers."
We 	agree 	with 	the 	hearing 	officer 	that 	the 	provisions 	of
the 	1979-82 	agreement 	covered 	the 	issue 	of 	involuntary 	transfer
and 	therefore 	foreclose 	reopening 	negotiations 	on 	that 	issue.
Although 	the Board 	will 	not 	readily 	infer 	a waiver 	of 	the 	right
to 	negotiate 	(Amador Valley Joint 	Union High 	School 	District
46

(10/2/78) 	PERB Decision No. 	74; 	Sutter Union High School
District 	(10/7/81) 	PERB Decision No. 	175; 	Los Angeles Community
College District 	(10/18/82) 	PERB Decision No. 	252; 	Palo Verde
Unified School District 	(6/20/83) 	PERB Decision No. 	321),
neither 	do we 	find 	that, 	merely because 	events 	arise 	which 	were
not 	in 	the 	contemplation of 	the 	parties 	during 	prior
negotiations, 	every contract 	term can be 	renegotiated. 	Kern
Community College District, 	supra; 	Placer Hills Union School
District 	(11/30/82) 	PERB Decision No. 	262. 	Accordingly, 	we
find 	that 	the 	provisions 	of 	the 	1979-82 	agreement 	concerning
involuntary 	transfer 	constitute 	a 	waiver 	for 	the 	term of 	the
agreement 	of 	the 	right 	to 	bargain over 	issues 	expressly 	covered
therein.
Based 	upon 	the 	above 	analysis, 	we 	dismiss 	that 	portion of
the Association's 	charge 	alleging 	that 	the District 	unlawfully
refused 	to 	negotiate 	over 	its 	proposal 	concerning 	involuntary
transfer.
3. 	Counselor 	Workload 	and Other 	Working 	Conditions
The Association 	sought 	to 	negotiate 	a proposal 	concerning
the 	impact 	of 	layoffs 	on counselor 	working 	conditions. 	That
proposal 	provided:
There 	shall be 	a District-wide 	ratio of one
counselor 	per 	300 	secondary 	students.
In 	assigning 	counselors 	to 	intermediate 	and
high 	schools 	the 	following 	guidelines 	shall
be 	observed:
47

(1) 	The 	critical 	caseload 	shall 	be 	300
students 	and 	the 	maximum 	caseload 	shall
be 	338 	students.
(2) 	Counselors 	who 	handle 	discipline 	will
have 	their 	caseloads 	reduced 	according
to 	the 	following 	formula:
0% 	of 	disciplined 	handled 	- 	0%
caseload 	reduction
1-50% 	of 	discipline 	handled 	- 	18%
caseload 	reduction
51-100% 	of 	discipline 	handled 	-
36% 	caseload 	reduction
(3) 	All 	students 	for 	whom 	I.E.P.'s
(Individual Educational Programs) 	are
required 	will 	be 	counted 	as 	two 	regular
students 	in 	computing 	counselor
workload.
(4) 	Counselors 	in schools with 	a 35% 	or
more 	student 	body 	turnover 	annually
will 	have 	their 	counselors 	reduced 	by
10%.
(5) 	Counselors 	in 	schools 	in which 20% or
more 	of 	the 	students 	fail 	one 	or 	more
of 	the 	competency 	examinations 	will
have 	their 	caseload 	reduced 	by 	10%.
The 	hearing 	officer 	found 	this 	proposal 	to 	be 	negotiable,
relying 	on 	the Board's 	determination 	in Fullerton Union High
School District 	(5/30/78) 	PERB Decision No. 	53 	that 	counselor
caseload 	is 	within 	the 	scope 	of 	representation. 	See 	also
Rio Hondo 	Community College 	District 	(12/31/82) 	PERB 	Decision
No. 	279. 	He 	then 	concluded 	that 	the District's 	refusal 	to
negotiate 	the 	proposal 	constituted 	a violation 	of 	its 	duty 	to
negotiate 	in 	good 	faith.
48

Since 	the District 	failed 	to except 	to 	this 	finding, 	we
adopt 	the 	hearing 	officer's 	determination 	as 	that 	of 	the Board
itself. 	Accordingly, 	we 	find 	that 	the District, 	by refusing 	to
negotiate 	the 	counselor 	workload 	proposal, 	violated 	subsections
3543.5(a), 	(b), 	and 	(c) 	of 	the Act.
4. 	Elementary Resource Teachers
The Association 	sought 	to 	negotiate 	a proposal 	concerning
the 	impact of 	the 	reduction 	in 	the 	number 	of 	elementary 	school
resource 	teachers 	on 	remaining 	employees. 	That proposal
provided:
The 	teachers 	at 	each 	elementary 	school 	shall
be 	entitled 	to 	the 	services 	of 	one Resource
Teacher 	whose 	duties 	shall 	be 	as 	outlined 	in
current 	District 	policy.
The 	hearing 	officer 	concluded 	that 	the 	proposal 	was 	not
negotiable 	because 	it 	attempted 	"to 	set 	. . . 	a minimum 	number
of employees 	to be hired at each 	job site" 	and, 	therefore,
impinged on a managerial prerogative. 	We 	agree.
The proposal, 	as 	written,26 merely 	attempts 	to negotiate
the District's 	decision 	to 	reduce 	the 	number 	of 	resource
teachers 	in 	its 	employ. 	The Board 	has 	previously held 	that 	the
decision 	to eliminate 	a position 	is 	a managerial prerogative.
Newark Unified School District, 	supra; 	Mt. 	San Antonio
26Had 	the 	proposal 	been more 	narrowly 	drawn 	so as 	to 	seek
negotiations 	over 	the 	impact 	on 	the 	workload 	of 	teachers 	who 	no
longer 	had 	the 	services 	of 	resource 	teachers, 	it would 	have
been 	negotiable.
49
26naa

Community College District 	(8/18/83) 	PERB Decision No. 	334 	(Mt.
San Antonio II); 	South Bay Union School District 	(4/30/82) 	PERB
Decision No. 	207. 	Thus, 	the Association's proposal 	is outside
the 	scope of 	representation.
Accordingly, 	that portion of 	the Association's charge,
alleging 	that 	the 	District 	violated 	the Act 	by 	refusing 	to
negotiate 	the Association's 	proposal 	concerning 	resource
teachers, 	is dismissed.
5. 	School Nurses
The Association 	sought 	to 	negotiate 	a proposal 	related 	to
the 	impact of 	layoffs 	on 	school 	nurses. 	That proposal provided:
1. 	Staffing 	for 	school 	nurses 	shall 	be 	done
according 	to 	the 	following:
1. 	One 	nurse 	per 	high 	school
2. 	One 	nurse 	per 	1500 	intermediate
students
3. 	One 	nurse per 	2000 	elementary
students
2. 	Additional 	nurse 	time 	shall 	be provided
in 	schools 	where 	one 	or 	more of 	the
following 	conditions 	exist:
1. 	Lower 	socio-economic 	level
2. 	Cultural differences within student
population
3. 	Community 	and/or 	family health
services 	not 	readily 	available
4. 	Special Education Satellite 	program
5. 	Large 	numbers of 	special 	education
students main-streamed into 	regular
classrooms.
The 	hearing 	officer 	did 	not 	reach 	the 	question 	of 	whether
the Association's 	proposal 	was 	within 	the 	scope of
50

representation, 	dismissing 	the 	charge 	based 	on 	a 	finding 	that
there 	was 	no 	evidence 	that 	the District's 	layoff 	affected
nurses. 	The Association excepts 	to 	this determination.
We 	disagree 	with 	the 	hearing 	officer's 	apparent
determination 	that 	the Association must 	prove 	that 	an 	actual
unilateral change 	in employees' 	working 	conditions 	resulted
from 	the 	layoff 	as 	a precondition 	to 	finding 	a duty on 	the 	part
of 	the 	employer 	to negotiate 	the 	impact of 	the 	layoff. 	In our
view, 	the Association 	need 	only produce 	sufficient 	evidence 	to
establish 	that 	the 	decision 	to 	lay off 	would 	have 	a 	reasonably
foreseeable 	adverse 	impact on employees' 	working 	conditions 	and
that 	its proposal 	is 	intended 	to address 	employee 	concerns
generated 	by 	that 	anticipated 	impact.
Paragraph 	1 of 	the 	proposal 	seeks 	to establish 	a nurse
caseload 	in 	an 	apparent 	attempt 	to 	ameliorate 	an 	anticipated
increase 	in workload 	resulting 	from 	the 	layoff 	of 	nurses.
In Fullerton Union High School District, 	supra, 	the Board
held 	that 	the 	caseload 	of 	counselors 	and 	school 	psychologists
is 	within 	the 	scope of 	representation. 	See 	also, 	Moreno Valley
Unified School District 	(4/30/82) 	PERB Decision No. 	206; 	Rio
Hondo Community College District, 	supra. 	The Board's 	rationale
for 	finding 	the 	caseload 	of 	counselors 	and 	psychologists
negotiable 	in Fullerton was 	two-fold: 	First, 	the 	evidence
established 	that 	the 	number 	of 	students 	assigned 	to 	these
employees 	was 	based 	on 	the 	student 	average 	daily 	attendance 	and
51

that 	an 	increase 	in 	student 	attendance 	necessarily 	affected
hours 	of 	employment. 	Second, 	the Board 	found 	that 	the 	caseload
of 	these 	two groups of 	employees 	was 	related 	to 	the
specifically 	enumerated 	item of 	"class 	size" 	in 	section
3543.2. 	In both 	instances, 	the Board 	tied 	the concept of
caseload 	to 	evidence 	of 	a 	numerical 	ratio 	between 	the 	work
assignment 	of 	employees 	and 	the 	students 	whom 	they 	serviced.
The Board 	has 	yet 	to 	determine 	whether 	the 	caseload 	of
nurses 	is 	negotiable. 	While we do not preclude a 	situation 	in
which 	nurses may 	be 	shown 	to 	have 	a caseload 	similar 	to
counselors 	and psychologists, 	we 	find 	that 	there 	is
insufficient 	evidence 	in 	the 	record 	to 	establish 	that 	nurses
had 	previously 	been 	assigned 	work 	on 	a 	caseload 	basis. 	Absent
such 	evidence, 	we 	are 	unable 	to conclude 	that 	a decrease 	in
nursing 	staff 	would 	cause 	a 	foreseeable 	increase 	in 	caseload.
The 	only 	evidence 	which 	the Association 	presented 	concerning
nursing 	work 	assignments 	were 	assignment 	rosters 	for 	the
1979-80 	and 	1980-81 work years. 	These 	documents merely
indicate 	which District 	facilities 	nurses 	were 	assigned 	to 	and
how many hours 	they spent 	at 	those 	facilities. 	Unlike 	the
record 	in 	the Fullerton 	case 	or 	the Association's 	own 	evidence
with 	regard 	to counselors 	in 	this 	case, 	the Association
introduced 	no 	evidence 	concerning 	whether 	nurse 	assignments
were 	any way 	related 	to 	a caseload 	system. 	We 	are 	simply
unwilling 	to 	infer 	from 	the 	face 	of 	a 	document 	that 	such 	a
52

system existed. 	Therefore, 	we 	conclude 	that 	the Association
failed 	to meet 	its 	burden 	of proving 	that 	the 	reduction 	in
nursing 	staff 	would 	have 	a 	reasonably 	foreseeable 	impact 	on
nurse 	caseload.
We 	also 	find 	paragraph 	2 	of 	the Association's proposal 	to
be 	outside 	the 	scope of 	representation, 	since 	it 	seeks to
establish 	the 	criteria 	by 	which management 	will 	determine 	its
staffing 	needs.
6. 	Teachers 	in Alternative Programs
The Association 	sought 	to 	negotiate 	a 	proposal 	related 	to
the 	impact of 	layoffs 	on 	teachers 	in alternative programs.
That 	proposal 	provided:
1. 	Any 	alternative 	program currently
existing 	in 	the District 	shall be
maintained 	at 	no 	less 	than 	its 	present
level 	for 	the 	duration of 	the 	contract
unless 	fewer 	students 	volunteer 	to
participate.
2. 	Teachers 	in alternative programs must
be 	volunteers 	and 	selection of 	teachers 	for
vacancies 	in 	alternative programs 	shall 	be
made 	on 	the 	basis 	of 	credentials 	and
competence 	by 	training 	or 	experience 	and
the 	selection 	criteria 	currently used 	by
each 	alternative 	program.
3. 	Notices 	regarding 	alternative 	schools
shall 	be 	done 	as 	specified 	in Section
5811.5 	of 	the Education Code.
4. 	In the event 	that 	an alternative
program 	is 	housed 	in a 	school 	which 	the
District decides 	to close, 	another
appropriate 	site 	shall 	be mutually 	selected
by 	the 	teaching 	staff 	of 	the 	program and
the Superintendent.
53

5. 	Transfers 	of 	teachers 	in alternative
programs 	shall 	be done 	in accordance 	with
Article 	X.
The 	hearing 	officer 	found 	this 	proposal 	nonnegotiable 	since 	he
found 	no 	evidence 	that 	the 	layoff 	had 	any 	impact 	on 	employees
in 	the 	alternative program. 	Accordingly, 	he dismissed 	the
Association's 	charge 	with 	respect 	to 	this 	proposal.
The Association did 	not 	except 	to 	this 	finding, 	and 	we
therefore, 	affirm his 	dismissal 	of 	that portion of 	the 	charge
alleging that the District violated subsections 3543.5(a), 	(b),
and 	(c) 	by 	refusing 	to 	negotiate 	the Association's proposal
concerning 	the 	alternative 	program.
7. 	Librarians/Staffing
The Association 	sought 	to negotiate 	a proposal 	related 	to
the 	impact 	of 	layoffs 	on 	the 	staffing 	of 	District 	libraries.
That 	proposal provided:
1. 	The 	library 	staff 	at 	each 	elementary 	and
intermediate 	school 	facility 	shall 	include 	at
least 	one 	full-time 	librarian.
The 	library 	staff 	at 	each 	high 	school 	facility
shall 	include 	at 	least 	two 	full-time 	librarians.
A 	librarian 	shall be 	defined 	as 	a person who
holds 	an 	appropriate 	California School Library
Credential.
2. 	The 	library 	staff 	at 	each 	school 	facility 	shall
include 	one 	full-time 	Instructional Media
Assistant.
The 	library 	staff 	at 	each 	high 	school 	facility
shall 	include 	three 	full-time 	Instructional 	Media
Assistants.
54

In 	the event 	that a librarian 	is absent, 	that
librarian 	shall 	be 	entitled 	to 	substitute
coverage 	by 	a 	holder 	of 	a California School
Library Credential.
3. 	A librarian 	at 	each 	intermediate 	and 	high 	school
facility 	shall 	be 	designated 	as 	department
chairperson, 	and 	be 	entitled 	to all of 	the
attendant 	benefits, 	including 	the 	established
salary 	increment.
4. 	When any 	school 	librarian 	is 	responsible 	for 	the
supervision 	of 	textbooks 	and/or 	audio 	visual
equipment 	located 	outside 	the 	school's 	library
facility, 	the District 	shall provide 	at 	least one
additional 	Instructional Media Assistant 	at 	that
school.
5. 	In 	the 	event 	that 	a 	school 	library 	is 	used 	as
part of 	a 	summer 	session program, 	a 	credentialed
librarian 	shall 	be 	hired 	to 	staff 	that 	school
library 	for 	the 	duration of 	the 	summer 	session.
The hearing officer 	found 	that, 	with 	the 	exception of
paragraph 3, 	the entire 	"staffing" 	portion of 	the Librarians'
proposal was 	outside 	of 	the 	scope 	of 	representation 	since 	it
attempted 	to 	set 	the 	staffing 	needs 	at 	each 	school. 	The
Association 	excepts 	to 	this 	determination.
We 	find 	this 	proposal 	to be 	outside 	the 	scope of
representation 	in 	its 	entirety.
Paragraphs 1, 	2, 	4, 	and 5 of the Association's proposal, 	as
written, 	require 	the District 	to maintain 	a certain staffing
level 	at 	the District's 	school 	libraries 	as well 	as 	specify 	the
types 	of 	substitutes 	to be 	used 	in 	the 	event of 	absences. 	The
determination of 	what 	services 	will 	be 	offered 	is 	a matter 	of
managerial prerogative and, 	therefore, 	these portions of 	the
55

Association's 	proposal 	are 	outside 	the 	scope 	of 	representation.
Alum Rock 	Union Elementary School District 	(6/27/83) 	PERB
Decision No. 	322; 	Newark Unified School District, 	supra.
The 	hearing 	officer 	found 	that 	paragraph 	3 	of 	the 	proposal,
which 	requires 	the 	designation of 	a 	librarian 	at each
intermediate 	and 	high 	school 	to 	be 	a department 	chairperson with
appropriate 	benefits, 	was negotiable. 	The District 	failed 	to
except 	to 	this determination. 	However, 	because we 	find 	that 	the
hearing 	officer's 	conclusion would 	result 	in 	a 	serious 	error 	of
law, 	we will 	review 	it 	sua sponte. 	Fresno Unified School
District, supra.
- -
In our 	view, 	a proposal which 	requires 	the District 	to
designate 	one 	librarian 	at 	each 	library 	to be 	a 	"department
chairperson" 	impinges 	on management's 	right 	to determine 	how 	it
will 	structure 	its workforce. 	Whether 	or 	not management wishes
to have 	a departmental chairperson 	system 	in 	its 	libraries 	or
some other 	system of 	authority 	is 	a managerial prerogative. 	Mt.
San Antonio Community College District 	(Mt. 	San Antonio II),
supra.
Based 	on 	the 	above 	analysis, 	we 	find 	that 	the Association's
entire 	proposal 	concerning 	library 	staffing 	is 	nonnegotiable, 	and
dismiss 	that 	portion of 	the Association's 	charge 	alleging 	that
the District's 	failure 	to 	negotiate 	the 	proposal 	was 	a violation
of 	the Act.
56

8. 	Librarians' 	Working Conditions
The Association 	sought 	to 	negotiate 	a proposal 	related 	to 	the
impact of 	layoffs 	on 	the working 	conditions 	of 	librarians. 	This
proposal 	provided:
1. 	The 	librarian's 	work 	day 	and 	work 	year
shall be 	the 	same 	as 	that 	established
for 	the 	classroom 	teacher 	as 	shown 	in
Article VI. 	Any 	additional work 	time
required 	of 	the 	librarian 	shall 	be
compensated 	at 	an 	amount 	which 	shall 	be
daily pro-rated 	on 	the 	salary of 	the
individual 	involved.
2. 	The 	library shall 	be 	closed 	at 	least
five 	working 	days 	during 	the 	school 	year
for 	inventory 	and 	clearance 	procedures.
The 	specific 	date(s) 	of 	closing 	shall 	be
mutually 	agreed 	upon 	by 	the 	principal
and 	school 	librarian.
3. 	The 	librarian 	shall 	be 	reimbursed 	at 	the
established 	pay 	scale 	for 	work 	performed
either 	prior 	to 	the 	beginning 	or 	after
the 	end 	of 	the 	established 	school year.
4. 	The 	school 	librarian shall be entitled
to 	a 	"prep period" 	whenever 	classroom
teachers 	at 	the 	same 	school are 	given 	a
"prep 	period."
5. 	Each 	school librarian shall be given a
duty-free 	lunch 	period. 	During 	that
period, 	the 	school 	library 	shall be
closed, 	or 	it 	shall be 	supervised by
other 	certificated 	personnel.
6. 	In 	the event 	that 	the 	school 	library 	is
open 	to 	students 	before 	and/or 	after
regular school hours, 	during recess, 	or
during brunch or 	lunch periods, 	the
school 	librarian 	shall 	not 	be 	required
to 	perform 	the 	additional 	supervisory
duties 	including, 	but 	not 	limited 	to
yard duty, 	bus duty, 	lunch area duty,
etc.
57

7. 	The school librarian, 	by mutual
agreement 	with 	the 	school 	library
program 	administrator 	and 	principal,
shall 	be 	responsible 	for 	establishing
the 	policies 	and 	procedures 	for 	the
operation of 	the 	library. 	These
policies 	and 	procedures 	shall 	include,
but are not limited to, selection of
library materials, 	determination of 	the
hours 	of 	operation of 	the 	library,
scheduling of 	classes, 	determination of
circulation 	procedures 	and 	policies 	for
the use of materials, 	and 	the
establishment 	of procedures 	for 	the 	use
of 	the 	school 	library.
8. 	Students 	shall 	not 	be 	assigned 	to 	the
library 	in 	lieu 	of 	a 	regular 	class
period, 	or 	as 	a 	substitute 	for 	a study
hall.
9. 	School 	librarians 	shall 	receive
Professional 	Growth Credit 	for 	active
participation 	in monthly 	professional
meetings.
10. 	For 	increased 	and 	increasing
responsibilities 	in 	fulfilling 	required
job activities, 	the Technical Librarian
shall be 	given 	one 	salary 	increment 	in
addition 	to 	salary 	for 	the 	regular
school year. 	Additionally, 	the extra
twenty days 	of 	work 	performed 	before 	and
after 	the 	regular 	school year 	shall 	be
compensated 	for 	on 	a pro 	rata 	basis 	of
the 	annual 	regularly 	scheduled 	salary.
11. 	In order 	to provide 	required 	services 	as
stated 	in 	the 	librarian's 	job
descriptions, 	the district budget 	shall
reflect: 	at 	the 	intermediate 	and high
school levels, 	$10.00 	per ADA for
library books, 	$5.00 	per ADA for
audio-visual materials; 	at the
elementary level, 	$6.00 	per ADA for
library books, 	$3.00 	per ADA 	for
audio-visual materials. 	A 	separate
amount 	shall 	be 	budgeted 	for 	supplies 	in
the 	amount 	of 	$.50 	per ADA 	at 	every
level for 	supplies, 	e.g. 	charge cards,
date due slips, 	forms, 	office supplies,
etc.
58

12. 	The 	library 	staff 	at 	any 	and all 	site
level 	libraries 	in 	the 	district 	shall be
entitled 	to 	district 	level 	central
library 	processing 	services 	(to 	include
but 	not 	be 	limited 	to: 	ordering,
receiving, cataloging, physical
processing, 	bibliographic 	information,
book repair, 	etc.) 	at no cost to the
individual 	site.
The hearing officer 	found that paragraphs 2, 	11, 	12, 	and
part of paragraph 	8 of 	this 	proposal 	were 	outside of 	the 	scope
of 	representation. 	He 	found 	paragraph 	2 	nonnegotiable 	because
it would 	impinge 	on management's 	right 	to direct 	its 	employees
during 	work 	hours. 	He 	found 	paragraphs 	11 	and 	12 	nonnegotiable
because 	they 	seek 	to 	negotiate 	budgetary 	allocations 	and 	the
type 	of 	services 	offered. 	He 	found 	paragraph 	8 	nonnegotiable
to 	the 	extent 	to which 	it 	seeks 	to negotiate 	the 	assignment 	of
students 	but 	that, 	insofar 	as 	the proposal might 	relate 	to the
impact 	of 	layoffs 	on 	the 	number 	of 	hours 	librarians 	are
required 	to work, 	it was 	within 	the 	scope of 	representation.
The 	hearing 	officer 	found 	all 	other 	portions 	of 	the
proposal 	to 	be within 	the 	scope 	of 	representation 	and 	the
District's 	failure 	to 	negotiate 	them 	to be 	a 	violation of 	the
Act.
The Association 	excepts 	to 	the 	hearing 	officer's 	finding
that 	certain of 	the proposals 	were 	outside 	the 	scope 	of
representation.
Although 	the 	District 	does 	not 	except 	to 	the 	hearing
officer's 	determination 	that 	the 	other 	parts 	of 	the proposal
59

were 	negotiable, 	we 	find 	it 	necessary 	to 	review 	them sua sponte
in order 	to 	avoid 	a serious mistake 	of 	law. 	Fresno Unified
School District, 	supra.
We 	affirm 	the 	hearing 	officer's 	determination 	that 	the
proposals contained in paragraphs 2, 	8, 	11, 	and 12 	are outside
of 	the 	scope 	of 	representation.27 All 	of 	these proposals, 	as
the 	hearing 	officer 	noted, 	seek 	to 	negotiate matters 	we 	have
previously 	found 	to be 	fundamental 	to managerial 	control 	and,
as 	such, 	are outside of 	the 	scope of 	representation.
Management 	has 	no obligation 	to negotiate 	over 	its 	budgetary
process 	(Anaheim Union High 	School 	District 	(3/26/82) 	PERB
Decision No. 	201), 	its staffing needs 	(Alum Rock, 	supra), or
the 	assignment 	of 	students 	to District programs 	(Palos Verdes
Peninsula 	Unified 	School 	District/Pleasant Valley 	School
District 	(7/16/79) 	PERB Decision No. 	9 6 ) .
Similarly, 	we 	find 	paragraph 	7 	nonnegotiable 	in 	its
entirety, 	since 	it 	clearly 	impinges 	on management's 	right 	to
determine 	how 	it will 	structure 	its 	library operation, 	what
library 	services 	it will offer, 	and who shall be 	in charge of
the 	library 	system.
The 	remaining portions 	of 	the proposal 	(paragraphs 	1, 	3, 	4,
5, 	6,9 	and 	10) 	raise 	the question of 	whether 	employees may, 	in
27we 	disagree, 	however, 	with 	the hearing officer's
determination 	that 	paragraph 	8 	is 	partially negotiable. 	We
find 	the 	entire 	paragraph 	nonnegotiable.
60
27we

the course of 	negotiations 	over 	the 	effects of 	layoffs, 	demand
to 	negotiate 	additional 	compensation or 	other 	benefits 	as 	a
quid 	pro quo 	for 	increased 	workload 	or 	other 	effects 	of
layoffs. 	We find 	that, 	as a general 	rule, 	such 	subjects 	are
negotiable 	only 	to 	the 	extent 	that 	they 	are 	consistent 	with
existing 	contractual benefits, 	do not 	represent 	an attempt 	to
renegotiate 	terms 	and 	conditions 	of 	employment 	established 	by 	a
collective 	agreement, 	and 	do 	not 	impermissibly 	interfere 	with
managerial 	prerogatives.
Paragraph 	1, 	in part, 	requires 	that 	librarians1 hours 	and
work 	year 	shall be 	the 	same 	as 	that 	established 	for 	teachers.
Since 	the 	parties' 	collective 	agreement 	covers 	librarians 	and
establishes 	the 	hours 	of 	employment 	and 	workyear 	of 	those
employees, 	we 	can 	find 	no basis 	upon which 	the 	employer 	would
be 	obligated 	to 	renegotiate 	this 	issue 	during 	negotiations
concerning 	the 	impact 	of 	layoffs.
Paragraph 	1, 	in part, 	also requires 	that librarians who
perform overtime 	work 	be 	compensated 	on 	a pro 	rata 	basis 	for
that work. 	Similarly, 	paragraph 3 	requires 	that the District 	'
pay 	librarians 	for 	extra 	work 	performed 	prior 	to or 	after 	the
end of 	the 	regular 	school year. 	Although, 	as 	a general matter,
extra 	pay 	for 	overtime 	work 	resulting 	from 	a 	layoff 	would 	be
negotiable, 	we 	find 	that 	the parties' collective 	agreement
already covers 	this 	issue. 	Article XVIII, 	Subsection 106 	of
the 	collective 	agreement provides, 	in relevant part:
61

Teachers28 who 	are 	authorized 	to 	receive
extra 	compensation 	on 	an 	hourly 	basis 	for
work 	in 	addition 	to 	their 	regular 	assignment
(i.e., summers, weekends, non-work days and
evenings) 	shall 	receive $11.75 	per 	hour 	for
each 	additional 	hour 	computed 	to 	the 	nearest
quarter 	hour. 	Assignments 	for 	which 	hourly
compensation may 	be 	paid 	shall 	include 	but
not 	be 	limited 	to:
Drivers 	Education
Summer 	School
Curriculum 	Development
Staff 	Development
Absent 	some 	evidence 	that 	the 	extra-compensation 	provisions
of Article 	XVIII 	do not 	cover 	extra work 	performed 	by
librarians, 	we must conclude 	that 	this 	issue 	has 	been
negotiated 	by 	the 	parties 	and may 	not 	be 	required 	to 	be
renegotiated 	in this context.
Paragraph 	4 	entitles 	librarians 	to 	the 	same 	amount 	of
preparation 	time 	as 	classroom 	teachers. 	We 	find 	this 	proposal
negotiable. 	Since 	the parties' 	agreement 	is 	silent as 	to
preparation 	time, 	and 	there 	is 	sufficient evidence 	to 	indicate
that 	layoffs 	could 	foreseeably 	result 	in 	increased 	workload 	for
librarians, 	we 	find this proposal negotiable.
Paragraph 	5 	requires 	the District 	to give 	teachers 	a
duty-free 	lunch 	period 	and 	close 	District 	libraries 	during
those 	periods. 	We 	find 	this proposal 	nonnegotiable. 	Article
V I , 	subsection 26 	of 	the 	collective 	agreement 	already provides
28 Article III, 	subsection 3 	of 	the 	agreement makes 	all 	of
its 	provisions 	applicable 	to 	all members 	of 	the 	certificated
unit, 	including librarians.
62

that 	librarians 	"shall be 	entitled 	to 	a 	duty 	free,
uninterrupted 	lunch 	period." 	The 	requirement 	that 	the 	District
close 	its 	libraries during 	lunch 	periods 	is 	also 	nonnegotiable
as 	it 	interferes 	with management's 	right 	to determine 	how 	to
structure 	its 	operations 	and 	at 	what 	time 	of 	the 	day 	to offer
its 	services 	to the public.
Paragraph 	6 	seeks 	to 	limit 	the 	type of 	extra duties 	which
librarians 	may 	be 	required 	to perform before 	or 	after 	regular
school 	hours. 	We 	find 	this 	proposal 	to be nonnegotiable.
Article VI, 	subsection 22 of 	the parties' 	collective 	agreement
provides:
Each 	teacher 	may 	be 	assigned 	duties 	which
are 	related 	to 	their 	responsibilities 	as 	a
teacher. 	Such 	duties may 	include, 	but are
not 	limited 	to:
Staff 	meetings 	of 	reasonable 	length
Parent 	Student 	Conferences
IEP
EAS/SAT.
Thus, 	the parties' 	collective agreement covers 	the extra
duties 	that 	librarians may 	be 	required 	to perform. 	We
conclude, 	therefore, 	that 	the Association waived 	its 	right 	to
negotiate 	the 	extra duties 	of 	librarians 	for 	the 	term of 	the
agreement.
We 	find 	that 	paragraphs 	9 	and 	10 	bear 	no discernible
relationship 	to 	the District's 	decision 	to 	lay 	off 	and 	are,
63

therefore, 	nonnegotiable 	in 	the course of 	negotiations 	limited
to 	the 	impact of 	layoffs.
Based 	on 	the 	above 	analysis, 	we 	find 	that 	only pararagraph
4 	of 	the Association's 	proposal 	concerning 	librarians' 	working
conditions 	is 	negotiable. 	The District's 	refusal 	to negotiate
that 	portion of 	the 	proposal 	was 	a 	violation 	of 	subsections
3543.5(a), 	(b) 	and 	(c) 	of the Act. 	With respect to the other
portions of 	the proposal, 	the Association's 	allegation 	that 	the
District 	refused 	to 	negotiate 	in 	good 	faith 	is 	dismissed.
9. 	Transfers
The Association 	sought 	to 	negotiate 	a proposal 	related 	to
the 	transfer 	of 	librarians 	as 	an 	impact of 	layoffs. 	That
proposal 	provided:
1. 	Transfers 	of 	school 	librarians 	shall 	be
done 	according 	to 	the 	procedures 	set
forth 	in Article 	X.
2. 	Seniority 	in 	the District's 	library
program 	shall 	be 	initiated 	from 	the 	date
of 	employment 	as 	a 	credentialed 	librarian
with 	the District.
3. 	A 	librarian 	shall 	not 	be 	reassigned 	to
duties 	as 	a classroom teacher, 	on 	either
a 	part-time 	or 	full-time 	basis 	except
under 	the 	following 	circumstances:
(a) 	Pursuant 	to 	the 	request of 	the
librarian;
(b) 	Pursuant 	to a drop 	in enrollment
which 	forces 	the 	closing 	of 	the
school 	at 	which 	the 	library 	is
located, 	in which circumstances 	the
policies 	regarding 	transfers 	and
seniority 	shall 	apply.
64

The 	hearing 	officer 	found 	that 	this 	proposal 	was 	negotiable
in 	its 	entirety, 	and 	that 	the District's 	refusal 	to bargain was
a violation of 	its 	duty 	to 	negotiate 	in good 	faith. 	The
District did 	not 	except 	to 	this 	determination. 	However, 	to
avoid 	a 	serious mistake of 	law, 	we 	find 	it 	necessary 	to 	review
the 	negotiability of 	the 	proposal. 	Fresno Unified School
District, supra.
Parargraph 	1 	and part 	of paragraph 	3 	of 	the 	proposal 	seek
to 	insure 	that 	librarians 	are 	transferred 	in 	accordance 	with
the 	transfer provisions of 	the parties' 	collective agreement.
Since 	the 	contract 	covers 	the 	issue 	at 	hand, 	the Association's
proposal 	is 	superfluous, 	and 	need 	not 	be 	negotiated.29
Paragraph 	2 of 	the proposal 	attempts 	to 	negotiate 	the
method 	of 	determining 	the 	seniority of 	District 	librarians 	in
the 	event of 	transfer. 	Article X, 	subsection 54(c) 	of 	the
parties' 	collective 	agreement 	establishes 	the method 	of
While 	we 	find 	that 	an 	employer 	has 	no 	obligation 	to
negotiate 	the 	inclusion of preexisting 	contract 	rights 	in 	a
mid-term addendum to a collective 	agreement, 	it 	is 	not
similarly 	shielded 	from 	an 	obligation 	to 	negotiate 	the
recitation of 	statutory rights 	in 	such 	an agreement. 	By
including 	statutory 	rights 	in 	an 	agreement, 	the 	parties 	create
a 	contractual 	remedy 	for 	violation of 	those 	statutory 	rights 	in
addition 	to 	any 	remedies 	established by 	the 	statute 	itself. 	In
contrast, 	the mere 	recitation of preexisting 	contract 	rights 	in
a mid-term 	addendum to 	the 	parties' 	agreement 	has 	no legal
significance. 	We 	can 	find 	no violation of 	the Act 	in 	an
employer's 	refusal 	to 	include 	superfluous 	contract 	language 	in
an 	addendum to 	the 	original contract 	where 	the 	inclusion of
such 	language would have 	no effect on 	the 	rights 	of 	the parties.
65

determining 	seniority 	in 	the 	event 	of 	transfer. 	Since 	this
issue 	is covered 	by the 	existing 	collective 	agreement, 	it 	need
not 	be 	renegotiated.
Paragraph 	3, 	in part, 	seeks 	to restrict 	the 	right of
management 	to 	reassign 	librarians 	to 	teaching 	duties. 	In 	the
absence 	of 	some 	evidence 	that 	reassignment 	of 	librarians 	to
teaching 	duties 	was 	a 	foreseeable 	result 	of 	the District's
decision 	to 	lay off, 	we 	cannot 	find 	this portion of 	the
proposal 	negotiable.
Based on 	the 	above 	analysis, 	we dismiss 	that portion of 	the
Association's 	charge 	alleging 	that 	the 	District 	violated 	the
Act 	by 	refusing 	to 	negotiate 	the 	proposal 	related 	to 	transfer
of 	librarians.
10. 	Early Retirement 	Incentives 	and Preparation Time
The Association 	sought 	to 	negotiate 	proposals 	related 	to
early 	retirement 	and preparation 	time 	as 	an 	impact 	of 	the
District's 	layoff 	decision. 	The 	hearing 	officer 	failed 	to make
findings concerning 	these 	proposals. 	Neither 	the District 	nor
the Association 	excepted 	to 	the 	hearing 	officer's 	failure 	to
rule on 	the 	negotiability of 	these proposals. 	Since 	the 	scope
of 	representation 	issues 	raised 	by 	these 	proposals 	were 	not
briefed or 	litigated, 	we 	have 	no basis 	upon which 	to 	render 	a
decision. 	Accordingly, 	the portion of 	the Association's 	charge
alleging 	that 	the 	District 	refused 	to 	negotiate 	concerning
these proposals 	is dismissed.
66

Request For 	Oral Argument
Pursuant 	to PERB 	rule 	32315,30 the District 	requests 	that
the parties 	be 	permitted 	to present 	oral 	argument 	before 	the
Board. 	Given 	the 	voluminous 	record 	in 	this 	case 	and 	the 	ample
briefs of 	the 	parties, 	we 	see 	no purpose which would 	be 	served
by granting 	such 	a 	request. 	Accordingly, 	its 	request 	is denied,
REMEDY
The 	hearing 	officer 	ordered 	the 	District 	to 	negotiate 	with
the Association 	concerning 	those 	proposals 	found 	to be 	within
the 	scope of 	representation. 	In addition, 	in order 	to
facilitate 	effective 	negotiations, 	he 	ordered 	the District 	to
pay 	a 	limited 	monetary 	award 	patterned 	after 	that 	long 	in 	use
by 	the NLRB 	and 	federal 	courts. 	See Transmarine Navigation
Corp., 	supra; 	NLRB v. 	Royal Plating and Polishing Co., 	supra;
First National Maintenance Corp. 	v. NLRB 	(1981) 	452 U.S. 	666
[107 LRRM 2705]. 	Under 	such a remedy, 	the employer must pay
wages 	lost 	by 	employees 	as 	the 	result of 	an 	employer's 	unlawful
conduct 	until 	the 	parties 	complete 	negotiations 	or 	certain
30 PERB 	rule 	32315 	provides:
A party 	desiring 	to 	argue 	orally 	before 	the
Board 	itself 	regarding 	the 	exceptions 	to 	the
proposed decision 	shall 	file, 	with 	the
statement 	of 	exceptions 	or 	the 	response 	to
the 	statement of exceptions, 	a written
request 	stating 	the 	reasons 	for 	the
request. 	Upon such 	request or 	its 	own
motion 	the Board 	itself 	may 	direct 	oral
argument.
67

other 	conditions 	are met. 	Rather 	than 	ordering 	the 	District 	to
pay lost wages 	to 	those 	employees who were 	laid off, 	as 	is 	the
more 	usual 	remedy, 	the 	hearing 	officer 	ordered 	the District 	to
pay 	employees 	not 	subject 	to 	the 	layoff 	verifiable 	losses 	in
-
extra-duty 	stipends 	or 	compensation 	for 	additional 	hours 	they
worked 	as 	a 	result of 	the 	layoffs.
The 	hearing 	officer's 	back 	pay 	award was 	based, 	at 	least
impliedly, 	on a finding 	that, 	in addition 	to refusing 	to
negotiate 	the effects 	of 	its 	decision 	to 	lay off, 	the District
unilaterally 	increased 	the 	caseload 	of 	counselors 	and
librarians 	and 	eliminated 	the 	stipends 	of 	several 	employees 	who
were 	not 	reappointed 	as 	coaches 	in 	the 	1980-81 	school year.
Although 	he 	did 	not 	analyze 	these 	alleged 	unilateral 	changes 	as
a distinct 	violation of 	the Act, 	he 	nevertheless 	ordered 	the
District 	to pay compensation 	to 	the 	affected 	employees.
The Board 	has 	long 	held 	that 	an 	employer 	violates 	its 	duty
to 	negotiate 	in 	good 	faith 	by 	unilaterally 	changing 	an
established 	policy 	concerning matters 	within 	the 	scope 	of
representation 	without 	negotiating 	with 	the 	exclusive
representative. 	Such conduct, 	absent a valid defense, 	is 	a
per 	se 	violation of 	an 	employer's 	duty 	to 	negotiate 	in good
faith. 	Grant Joint Union High School District, 	supra; 	Pajaro
Valley Unified School District 	(5/22/78) 	PERB Decision No. 	51;
NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	While we
agree 	that 	a 	unilateral 	change 	in wages 	and 	working 	conditions
68

of 	employees might 	constitute 	a discrete 	violation of 	the Act
independent 	of 	the 	District's 	refusal 	to 	negotiate 	the 	effects
of 	the decision to lay off, 	we cannot, 	in 	the posture of 	this
case, 	find 	such a violation.
Whether 	or 	not 	the 	hearing 	officer 	correctly 	found, 	as 	he
apparently did, 	that, 	as 	a 	result of 	the District's decision 	to
reduce 	certificated 	services, 	it 	unilaterally 	increased 	the
workload 	of 	District 	counselors 	and 	librarians 	and 	altered 	the
stipends 	of 	coaches 	during 	the 	ensuing 	school year, 	we 	cannot
find 	an 	independent 	violation of 	the Act 	since 	the Association
never 	filed 	an 	independent 	unfair 	practice 	charge. 	The
Association's 	unfair 	practice 	charge 	in 	this 	case 	was 	filed 	on
March 	25, 	1980, 	and alleges 	that 	the District 	refused 	to
negotiate 	in 	good 	faith 	concerning 	the 	effects 	of 	its 	decision
to 	lay 	off 	certificated 	employees. 	Although 	evidence
concerning 	unilateral 	changes 	that 	occurred 	in 	the 	fall 	of 	1980
was 	introduced 	at 	the 	hearing, 	the Association neither 	amended
its 	unfair 	practice 	charge 	nor 	filed 	a 	new charge 	independently
alleging 	a violation of 	the 	District's 	duty 	to 	negotiate 	in
good 	faith. 	As 	such, 	this 	later 	conduct 	can only be 	used 	as
background 	evidence 	for 	adjudicating 	the 	earlier 	unfair
practice 	charge 	and may 	not 	form 	the 	basis 	of 	a 	finding 	that
the District 	independently violated 	the Act. 	Therefore, 	we
conclude 	that 	the 	hearing 	officer's 	award 	of 	back 	pay 	based 	on
69

that 	conduct 	exceeded 	his 	jurisdiction 	within 	the 	confines 	of
this 	case.31
We, 	therefore, 	turn 	to 	fashioning 	a remedy 	appropriate 	to
the circumstances of 	this 	case.
Subsection 	3541.5(c) 	empowers 	the Board 	to 	fashion 	a remedy
which 	will best 	effectuate 	the purposes of 	the Act. 	We 	have
found 	that 	the District 	violated 	its 	duty 	to 	negotiate 	in good
faith 	by 	refusing 	to 	negotiate 	the 	implementation 	and 	effects
of 	its 	decision 	to 	lay off 	certificated 	employees.
Since 	the District's 	decision 	to 	lay off 	was 	nonnegotiable,
we 	find 	it 	inappropriate 	to order 	the 	reinstatement 	of 	the
employees 	laid 	off. 	However, 	because 	the District 	unlawfully
refused 	to negotiate 	the 	implementation 	and 	effects 	of 	its
decision 	to 	lay off, 	we 	find 	it 	appropriate 	to order 	the
District 	to negotiate, 	upon demand, 	those proposals which we
have 	found 	to be within 	the 	scope of 	representation. 	However,
with 	respect 	to 	implementation of 	layoff 	issues, 	we 	have 	found
that, 	due 	to the District's 	unlawful unilateral conduct, 	the
Association 	developed 	only 	one 	detailed 	bargaining 	proposal 	on
such 	an 	issue. 	Accordingly, 	we 	find 	it 	appropriate 	to order
the 	District 	to 	negotiate 	any 	implementation 	of 	layoff 	issue
which 	is 	consistent 	with 	the 	decision herein.
33Although 	the Board has, 	on several occasions, 	found
Unalleged violations, 	it 	has 	never 	extended 	this principal 	to
conduct 	occurring 	after 	the 	filing 	of 	the 	unfair 	practice
charge. 	See Santa Clara Unified School District 	(9/26/77) 	PERB
Decision No. 	104.
70

In 	addition, 	in order 	to assure 	that meaningful
negotiations 	occur, 	we 	find 	that 	a 	limited 	back 	pay order 	is
appropriate. 	Solano County Community College District, 	supra.;
NLRB v. 	Transmarine Navigation Corp., 	supra; 	NLRB v. 	Royal
Plating 	and Polishing Co., 	supra. 	Accordingly, 	we order 	the
District 	to pay 	to 	the 	employees 	laid 	off 	a 	sum equal 	to 	their
wages 	at 	the 	time 	they were 	laid 	off 	from 	the 	first 	day 	the
Association 	requests 	to 	bargain 	following 	issuance 	of 	this
Decision, 	until 	occurrence 	of 	the 	earliest of 	the 	following
conditions: 	(1) 	the date 	the parties reach agreement; 	(2) 	the
date 	the 	statutory 	impasse procedure 	is exhausted; 	(3) 	the
failure 	of 	the Association 	to 	request 	negotiations 	within
thirty 	(30) 	days of service of this Decision; 	or 	(4) 	the
subsequent 	failure 	of 	the Association 	to negotiate 	in good
faith.
ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions of 	law,
and 	the 	entire 	record 	in this case, 	it 	is 	found 	that 	the
Mt. 	Diablo Unified School 	District 	violated 	subsections
3543.5(a), 	(b), 	and 	(c) 	of the Educational Employment Relations
Act. 	Pursuant to Government Code subsection 3541.5(c), 	it 	is
hereby ORDERED that 	the District, 	its governing board, 	and 	its
representatives 	shall:
71

A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith with 	the Mt. 	Diablo Teachers Association, 	CTA/NEA,
concerning 	the 	effects 	of 	its 	decision 	to 	lay off 	certificated
employees.
2. 	Denying 	the Mt. 	Diablo Teachers Association,
CTA/NEA, 	the 	right 	to 	represent 	its members 	by 	failing 	and
refusing 	to meet 	and 	negotiate 	in good 	faith 	over 	the 	effects
of 	its 	decision 	to 	lay off 	certificated 	employees.
3. 	Interfering 	with 	employees 	in the 	exercise 	of
rights 	guaranteed 	to 	them by 	the Educational Employment
Relations Act 	by 	failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	over 	the 	effects 	of 	its 	decision 	to 	lay off
certificated 	employees.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF 	THE EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
1. 	Upon 	request, 	meet 	and 	negotiate 	with 	the
Mt. 	Diablo Teachers Association, 	CTA/NEA, 	within thirty-five
(35) 	days 	after 	issuance 	of 	this Decision 	regarding 	the
implementation 	of 	layoff 	and 	the 	following 	specific 	negotiating
proposals 	related 	to 	the 	effects 	of 	layoffs 	which 	the Board 	has
found 	to be 	within 	the 	scope 	of 	representation: 	paragraphs 	1,
3, 	and 	4 	of 	the 	"Impact of Layoff" 	proposal; 	the 	"Counselor
Workload" 	proposal 	in 	its entirety; 	paragraph 4 of 	the
"Librarian Working Conditions" 	proposal.
72

2. 	Pay 	to 	the 	employees 	laid 	off 	a 	sum equal 	to
their 	wages 	at 	the 	time 	they 	were 	laid 	off 	from 	the 	first 	day
the Association 	requests 	to 	bargain 	following 	issuance 	of 	the
PERB Decision, 	until 	occurrence 	of 	the 	earliest of 	the
following 	conditions: 	(1) 	the date 	the parties 	reach
agreement; 	(2) 	the date 	the 	statutory 	impasse procedure 	is
exhausted; 	(3) 	the 	failure of 	the Association to request
negotiations 	within 	thirty 	(30) 	days of 	service 	of 	this
Decision; 	or 	(4) 	the 	subsequent 	failure of 	the Association 	to
negotiate 	in good 	faith.
3. 	Within 35 	days of 	service of 	this 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. 	Such posting 	shall be
maintained 	for 	a period 	of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that 	said Notices 	are
not 	reduced 	in size, 	altered, 	defaced or 	covered by any other
material.
4. 	Notify 	the San Francisco 	regional director 	of 	the
Public Employment Relations Board, 	in writing, 	of 	the 	steps 	the
District 	has 	taken 	to comply 	herewith 	in 	accordance 	with 	her
instructions.
5. 	The 	unfair 	practice charge 	filed 	by 	the
Mt. 	Diablo Federation of Teachers, 	Local 1902, 	CFT/AFT,AFL-CIO
in Case No. 	SF-CE-455 	is DISMISSED.
73

6. 	The District's 	request 	for 	oral 	argument pursuant
to PERB 	rule 	32315 	is DENIED.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the Mt. 	Diablo Unified School
District.
Member Burt 	joined 	in 	this 	Decision.
Member 	Morgenstern's 	concurrence 	and 	dissent 	begins on p. 	75
74

MORGENSTERN, 	Member, 	concurring 	in part and dissenting 	in
part: 	I 	am in agreement with 	the majority's decision with 	the
following 	exceptions.
I 	do not 	agree with 	the majority's 	conclusion 	that 	the
Education 	Code 	renders 	the 	Association's 	same-date-of-hire
proposal 	nonnegotiable. 	The 	statutory 	language directs 	that
the governing 	board 	shall 	determine 	the 	order 	of 	termination
solely on 	the 	basis 	of needs of 	the district and 	the 	students.
Unlike 	the majority, 	I do not find 	this 	to establish an
inflexible 	or 	immutable 	standard 	which 	is 	inconsistent 	with 	the
duty 	to 	negotiate 	in good 	faith. 	San 	Mateo City 	School
District v. 	PERB 	(1983) 	33 Cal.3d 850. 	Specifically, 	while the
current 	Code 	section 	replaced 	the 	previous 	provision which
required 	the 	use 	of 	a 	lottery 	for 	selection among
same-date-of-hire 	employees, 	the extant 	statutory 	language does
not now decree 	that a 	lottery 	system, 	or 	any system, 	is
necessarily 	and 	under 	all 	circumstances 	incompatible with 	the
needs 	of 	the District and 	students. 	The current Education Code
section 	simply 	eliminates 	the 	requirement 	that 	the 	lottery be
universally used and, 	instead 	allows 	each 	local entity 	the
discretion 	to decide upon any system 	it desires 	as 	long 	as 	the
system selected 	is 	based 	on 	the 	statutory 	criteria.
The 	District 	is 	not 	prevented 	or 	excused 	from negotiating
on a 	system that meets 	the statutory criteria, 	though 	it may
not 	agree 	to 	any 	system which 	is 	not 	based 	solely 	on 	the 	needs
75

of the District and 	the students. 	The needs of 	the District
and 	the 	students, 	whether 	or 	not 	specifically mandated by
statute, 	are presumably the goal of 	every district decision.
However, 	as meeting 	the employees' needs 	is 	a need of any
employer, 	and as 	the collective bargaining process 	is 	the
preferred way of meeting 	those 	needs 	under 	EERA, 	negotiations
can and 	should 	occur 	within 	the constraints 	set 	forth 	by 	the
Legislature.
I 	again diverge 	from the majority over 	a matter 	related 	to
management's 	obligation 	to negotiate 	the 	impact 	or 	effects 	of
layoff. 	The majority 	finds 	sufficient 	evidence 	to 	link 	the
layoff 	to 	"a 	reasonably 	foreseeable 	adverse 	impact" 	even where
management denied 	that 	such 	impact was 	foreseeable 	and 	no
evidence was ever 	introduced 	to prove 	that any 	impact, 	in 	fact,
materialized.
The Board's 	decision 	to require 	negotiating 	on 	the 	effect
or 	impact of 	layoffs 	(or 	any other 	managerial decision 	or 	act)
on matters within 	scope means 	that management 	cannot
successfully defend 	against 	a 	charge 	that 	it 	unilaterally
changed 	a matter 	within 	scope 	by arguing 	that 	the 	change was
peripherally or 	essentially related 	to 	the decision 	to 	lay
off. 	However 	closely related 	to a 	decision within management's
exclusive 	purview, 	any decision 	that causes 	an 	impact on 	a
matter within scope 	is negotiable. 	But 	there must be an 	effect
or 	an 	impact, 	a unilateral change of a matter within 	scope,
76

before 	there can be 	a violation. 	Because 	the majority decision
can result 	(and does here) 	in a 	violation being 	found where no
actual change 	in a matter within scope occurs, 	I must dissent
from that aspect of 	the decision.
It cannot 	possibly be denied 	that 	layoff will 	affect 	the
wages or 	hours of 	the laid-off employee. 	The decision 	that an
employee 	is 	to be 	laid off 	is also 	a decision 	that 	the
employee's wages and hours will be changed and, 	thus, 	the
latter 	aspect 	of 	that decision 	is 	always 	immediately negotiable.
Other 	impacts 	or 	effects 	of layoff, 	typically those 	that
relate 	to retained employees, 	may be 	less certain. 	It may
appear 	reasonably 	foreseeable 	that 	when 	a 	counselor 	(for
example) 	is 	laid off, 	the remaining counselors will have 	their
hours and/or caseload 	increased. 	However, 	in such
circumstances, 	management may assert 	a good 	faith belief 	that
an 	impact will not occur. 	Indeed, 	management may exercise 	its
prerogative 	by 	unilaterally 	changing methods 	or 	operations 	not
in scope 	in such a way as 	to avoid any actual change 	in
negotiable matters. 	This course of action 	is pursued by
management at 	its peril and, 	therefore, 	a refusal to bargain
over 	a 	"reasonably 	foreseeable" 	impact may well 	evidence 	bad
faith where and when such 	impact does occur. 	However, 	my
dispute with 	the majority is 	that 	there 	is 	no violation 	in
management's 	refusal 	to 	further 	negotiate 	over 	demands 	relative
to 	a 	reasonably 	foreseeable 	impact 	if 	in good 	faith 	it 	foresees
no such 	impact and, 	in fact, 	no such 	impact occurs.
77

Based on 	this conclusion, 	I 	would 	find 	that 	the District
did not 	unlawfully fail 	to negotiate as 	to nurses, 	no evidence
of 	actual 	impact having been presented.
As 	to 	the 	proposal seeking 	preparation periods 	for
librarians, 	I 	find no evidence 	that preparation periods were
eliminated or 	reduced. 	Thus, 	there 	is no impact. 	In my view,
the 	likelihood 	of an 	impact on preparation periods 	is 	similar
to 	the 	likelihood 	of 	librarians 	being 	reassigned 	to 	teaching
duties as a 	result of 	the 	layoff, 	an eventuality 	the majority
finds 	not 	foreseeable.
Finally, 	I 	must also disassociate myself 	from the
majority's 	conclusion 	that 	a 	unilateral 	change 	in negotiable
matters might constitute a discrete violation, 	independent 	of
the duty to negotiate 	the effects of 	the 	layoff decision. 	To
the contrary, 	the negotiable component of 	the layoff decision
is, by definition, 	that which affects the wages, hours, and
enumerated 	terms 	and conditions 	of employment. 	What 	the
majority might envision as 	a 	separate 	unilateral 	change 	is 	none
other 	than 	the 	demonstrable 	effect 	of management's 	decision 	to
lay off 	some of 	its workers.
78

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-452, 	in
which all parties had 	the 	right to participate, 	it has been
found 	that 	the Mt. 	Diablo Unified 	School District 	has 	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 	we 	will:
A. 	CEASE AND 	DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with 	the Mt. 	Diablo Teachers' 	Association, 	CTA/NEA,
concerning 	the 	effects 	of 	its 	decision 	to lay off 	certificated
employees.
2. 	Denying 	the Mt. 	Diablo Teachers Association,
CTA/NEA 	the 	right 	to 	represent 	its members by 	failing 	and
refusing 	to meet 	and 	negotiate 	in good 	faith 	over 	the 	effects
of 	its 	decision 	to 	lay 	off 	certificated 	employees.
3. 	Interfering 	with 	employees 	in 	the 	exercise 	of
rights 	guaranteed 	to 	them by 	the Educational 	Employment
Relations Act 	by 	failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	over 	the 	effects 	of 	its 	decision 	to 	lay 	off
certificated 	employees.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
1. 	Upon 	request, 	meet 	and 	negotiate with 	the
Mt. 	Diablo Teachers Association, 	CTA/NEA regarding 	the
implementation 	of 	layoff 	and 	the 	following 	specific 	negotiating
proposals 	related 	to 	the 	effects 	of 	layoffs 	which 	the Board has
found 	to be within 	the 	scope of 	representation: 	paragraphs 	1,
3, 	and 	4 	of 	the 	"Impact of Layoff" 	proposal; 	the 	"Counselor
Workload" 	proposal 	in 	its entirety; 	paragraph 	4 of 	the
"Librarian Working Conditions" 	proposal.
2. 	Pay 	to the 	employees 	laid off 	a 	sum equal 	to
their 	wages 	at 	the 	time 	they were 	laid 	off 	from 	the 	first day
the Association 	requests 	to 	bargain 	following 	issuance 	of 	the
PERB Decision, 	until occurrence of 	the 	earliest of 	the
following 	conditions: 	(1) 	the date 	the parties 	reach
agreement; 	(2) 	the date 	the 	statutory impasse procedure 	is
1

exhausted; 	(3) 	the 	failure 	of 	the Association to request
negotiations 	within 	thirty 	(30) 	days of 	service of 	the
Decision; 	or 	(4) 	the 	subsequent 	failure of 	the Association to
negotiate 	in good 	faith.
Dated: 	MT. 	DIABLO 	UNIFIED SCHOOL 	DISTRICT
By Superintendent
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 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
N	2

Mt. Diablo Unified School District * * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0373E)

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