Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (PERB 0375E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
HEALDSBURG 	UNION 	HIGH 	SCHOOL 	DISTRICT
and 	HEALDSBURG 	UNION 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-68
PERB Decision No. 	375
January 5, 	1984
SAN 	MATEO ELEMENTARY TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
and
SAN MATEO 	CITY SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-36
ON 	REMAND 	FROM THE
SUPREME 	COURT 	OF 	THE
STATE 	OF 	CALIFORNIA
Appearances: 	Suzanne C. 	Rawlings, Attorney 	(Sonoma County
Office 	of Education) 	for 	the Healdsburg Union High School
District 	and Healdsburg Union School 	District;
Madalyn J. 	Frazzini, 	Maureen C. 	Whelan and Peter A. 	Janiak,
Attorneys 	for 	the California School Employees Association;
William E. 	Brown, 	Attorney 	(Brown 	& Conradi) 	for 	the San Mateo
City School District; 	Kirsten L. 	Zerger, 	Attorney for San Mateo
Elementary Teachers Association, 	CTA/NEA; 	Robert A. 	Rundstrom,
Attorney 	(Walters 	& 	Shelburne) 	as Amicus Curiae 	for 	the
California School Boards Association 	and 	the Association 	of
California School Administrators; 	Robert A. 	Galgani, Attorney
(Breon, Galgani, 	Godino & O'Donnell) 	for California Association
of School Business Officials 	and 	the 	Stanislaus Employment
Relations Council.
Before Gluck, Chairperson; 	Tovar, Jaeger, Morgenstern and Burt,
Members.
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DECISION
JAEGER, 	Member: 	These cases 	are 	before 	the Public
Employment 	Relations Board 	(PERB 	or Board) 	on 	remand 	from 	the
California Supreme Court 	pursuant 	to 	its 	order 	in San Mateo
City School District et al. 	v. 	PERB 	(1983) 	33 Cal.3d 850
annulling 	our 	prior 	decisions 	in Healdsburg Union High 	School
District 	and Healdsburg Union School District 	(6/19/80) 	PERB
Decision No. 	132 	and 	San Mateo City School District 	(5/20/80)
PERB 	Decision No. 	129 	and 	remanding 	the 	cases 	for 	further
consideration 	in 	light of 	its 	decision.
DISCUSSION
Procedural 	History
The 	California 	School Employees Association 	(Association 	or
CSEA) 	is 	the exclusive 	representative of 	a 	unit of 	classified
employees 	of 	the Healdsburg Union High 	School 	District 	and 	the
Healdsburg Union School District 	(District). 	In 	the 	course of
negotiations 	during 	1976-77, 	CSEA submitted 	a comprehensive
initial 	proposal. 	The District's 	representatives 	reviewed 	the
document 	and 	refused 	to 	negotiate, 	maintaining 	that 	many 	of 	the
proposals 	were 	not 	within 	the 	scope of 	representation 	as 	set
forth 	in 	section 	3543.2 	of 	the Educational Employment 	Relations
Act 	(EERA or Act).l 	On March 	11, 	1977, 	CSEA filed 	an unfair
1Section 	3543.2 	provides, 	in relevant part:
The 	scope of 	representation 	shall be 	limited
to matters 	relating 	to wages, 	hours of
N	
2

practice 	charge 	alleging 	that 	the 	District's 	conduct 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of 	the 	Act.2 After 	a
hearing 	in 	the matter, 	the Board 	issued 	its 	decision 	in
Healdsburg Union High School District, 	supra, 	in which 	it 	found
employment, 	and other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions of
employment" 	mean 	health 	and 	welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to Section
3546, 	procedures 	for 	processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff 	of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
the 	right 	to consult on 	the definition of
educational objectives, 	the determination of
the 	content of 	courses 	and curriculum, 	and
the 	selection of 	textbooks 	to 	the 	extent
such matters 	are 	within 	the discretion 	of
the 	public 	school 	employer 	under 	the 	law.
All 	matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school employer 	and
may 	not 	be 	a 	subject 	of 	meeting 	and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right of 	the
public 	school 	employer 	to consult with 	any
employees 	or 	employee organization on 	any
matter 	outside 	the 	scope 	of 	representation.
Section 3543.5 provides, 	in relevant part:	2
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
W	
3

that 	certain 	of 	the 	proposals 	were 	within 	the 	scope of
representation 	and 	that 	the District's 	refusal 	to 	negotiate 	was
a violation of 	the Act.
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.
4
The 	San Mateo Elementary Teachers Association, 	CTA/NEA
(SMETA) 	is 	the exclusive 	representative of certificated
employees 	of 	the San Mateo City School District 	(District).
During 	the course of 	negotiations 	in 	1976-77, 	the District
unilaterally 	altered 	the 	length 	of 	the 	workday 	and 	the 	amount
of 	preparation 	time 	and 	rest 	time 	afforded 	teachers. 	On
December 	13, 	1976, 	SMETA filed an unfair 	practice charge
alleging 	that 	the 	District 	violated 	subsection 	3543.5(c) 	by
unilaterally changing 	matters 	within 	the 	scope 	of
representation. 	After 	a hearing on the matter, 	the Board
issued 	its 	decision 	in San Mateo City School District, 	supra,
in which 	it 	found 	that 	the District violated 	subsection
3543.5(c) 	by 	taking 	unlawful unilateral action.
The 	Healdsburg 	and 	San Mateo Districts 	and 	CSEA 	petitioned
for 	review 	in the Court of Appeal, 	First Appellate District,
pursuant to EERA subsection 3542(b). 	The Court of Appeal
issued 	writs 	of 	review 	in all 	three 	cases. 	While 	argument 	was

heard 	separately 	in San Mateo 	and 	in 	the 	two Healdsburg 	cases,
the 	court decided 	all 	three 	cases 	in a single opinion, 	which
partially 	reversed 	the Board's 	determinations 	in Healdsburg 	and
San Mateo.
The San Mateo District, 	the 	two Healdsburg Districts, 	and
CSEA each 	filed 	a 	petition 	for 	review of 	the Court 	of Appeals'
decision 	before 	the Supreme 	Court. 	The Court 	accepted 	the
consolidated 	cases 	for 	review 	and 	issued 	its 	decision 	and order
on May 19, 	1983.
In 	its 	decision, 	the Supreme Court 	affirmed PERB's
interpretation 	of 	the 	applicable 	standards 	for 	determining
whether 	bargaining 	subjects 	not 	specifically 	enumerated 	in
section 	3543.2 	are 	within 	the 	scope 	of 	representation 	and 	for
resolving 	conflicts 	between 	the Education Code 	and EERA. 	It
did not, 	however, 	apply 	these 	standards 	to the 	individual
bargaining 	proposals 	in 	the Healdsburg 	case 	or 	the 	alleged
unilateral 	changes 	in San Mateo, 	but 	remanded 	those 	cases 	to
the Board 	for 	reconsideration 	in 	light of 	its 	decision. 	We,
therefore, 	turn to 	the general 	standards which, 	in light of 	the
Supreme Court's decision, 	are 	applicable 	to the 	resolution of
the 	issues before us.
Scope 	of 	Representation Test
In 	its 	decision, 	the Supreme Court cited with 	approval 	the
Board's 	test 	for 	determining 	the 	negotiability of 	subjects 	not
specifically 	enumerated 	in 	section 	3543.2 	as 	established 	in
5

Anaheim Union High School District 	(10/28/81) 	PERB 	Decision
No. 177.
Under 	the Anaheim test, 	a non-enumerated subject will 	be
found 	to be within 	the 	scope of 	representation 	if: 	(1) 	it 	is
logically 	and 	reasonably 	related 	to wages, 	hours 	or 	an
enumerated 	term and condition of 	employment; 	(2) 	the 	subject 	is
of 	such 	concern 	to 	both management 	and 	employees 	that 	conflict
is 	likely 	to occur 	and 	the mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of 	resolving 	the
conflict; 	and 	(3) 	the 	employer's obligation 	to negotiate would
not 	significantly 	abridge 	its 	freedom 	to 	exercise 	those
managerial 	prerogatives 	(including matters 	of 	fundamental
policy) 	essential 	to the 	achievement of 	the district's mission.
Education 	Code 	Supersession
Section 3540 	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 	the 	underlying Healdsburg 	decision, 	the Board 	found 	that
section 	3540 	would 	prohibit 	negotiations 	only 	where 	provisions
of 	the Education Code would be 	"replaced, 	set aside, 	or
annulled 	by 	the 	language 	of 	the 	proposed 	contract 	clause." 	As
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the Board 	noted, 	"unless 	the 	statutory language 	[of 	the
Education Code] 	clearly evidences 	an 	intent 	to 	set 	an
inflexible 	standard or 	insure 	immutable 	provisions, 	the
negotiability 	of 	such 	a 	proposal 	should 	not 	be 	precluded."3
The 	Supreme 	Court 	specifically 	found 	that 	the Board's
interpretation 	of 	the 	supersession 	language 	contained 	in
section 3540 	was 	correct. 	As 	the Court noted:
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. 	This, 	rather 	than the
preemption 	theory 	offered 	by 	the 	Healdsburg
Districts, 	is 	the correct approach when
several 	provisions of 	state 	law address 	a
similar 	subject. 	(Industrial Welfare Com.
v. 	Superior Court 	(1980) 	27 Cal.3d 690, 	723
[166 Cal.Rptr. 	331, 	613 P.2d 579];
Certificated Employees 	Council 	v. 	Monterey
Peninsula Unified Sch. 	Dist. 	(1974) 	42
Cal.App.3d 328 	[116 Cal.Rptr. 	819].) 	It 	is
consistent 	with 	the 	fact 	that 	the EERA
explicitly 	includes matters 	such 	as 	leave,
transfer 	and 	reassignment 	policies 	within
the 	scope of 	representation, 	even 	though
such 	matters 	are 	also 	regulated 	by 	the
Education Code. 	(See, Ed. 	Code, 	section
44963 	et 	seq. 	[pertaining 	to certificated
employees] 	and 	section 4510 5 et seq.
[pertaining 	to 	classified 	employees].) 	33
Cal.3d 850, 865.
3The 	Board 	has 	applied 	this 	test 	in 	numerous 	cases 	since
Healdsburg. 	See, 	e.g., 	Jefferson School District 	(6/19/80)
PERB Decision No. 	133, 	rev, den. 	1 Civ. 	50241; North Sacramento
School District 	(12/31/81) 	PERB Decision No. 	193; 	Holtville
Unified School District 	(9/30/82) 	PERB Decision No. 	250;
Calexico Unified 	School District 	(12/20/82) 	PERB 	Decision
No. 	265; 	Mt. 	San Antonio Community College District 	(3/24/83)
PERB Decision No. 	297.
7

As 	a 	corollary 	to 	its 	approval 	of PERB's 	general
supersession 	standard, 	the Supreme Court 	indicated 	that
inclusion 	in 	a 	collective 	bargaining 	agreement 	of 	provisions
which 	reaffirm 	statutory 	rights 	established 	by 	the 	Education
Code would 	be 	consistent with 	section 	3540. 	As 	the Court
indicated:
In 	the Healdsburg case, 	PERB 	found 	all
proposals 	pertaining 	to 	layoffs 	and
discipline 	which 	conflicted 	with 	the
standards 	of 	the Education Code 	to be
nonnegotiable. 	PERB 	did 	allow 	negotiations
which might culminate 	in 	the 	inclusion of
the 	terms 	established 	by 	the 	Education Code
within 	a 	collectively 	negotiated 	contract.
Such 	an 	agreement 	would 	not 	supersede 	the
relevant 	part of 	the Education Code, 	but
would strengthen 	it. 	33 Cal.3d 850, 	867.
Duty 	to Seek 	Clarification 	of 	Proposals
In 	the Healdsburg case, 	the District 	flatly 	refused 	to
negotiate 	those 	portions 	of 	the Association's 	comprehensive
initial proposal which 	are 	before 	us, 	asserting 	that 	they were
outside 	the 	scope of 	representation. 	While 	it 	now concedes
that 	many 	of 	the 	specific 	proposals 	contain 	both 	negotiable 	and
nonnegotiable elements, 	it nevertheless 	asserts 	that 	it has 	no
duty 	to negotiate 	proposals 	which 	are 	vague 	or 	ambiguous.
A subject 	is 	not negotiable 	if 	it 	is 	not 	encompassed 	by 	the
language of 	section 3543.2, 	which 	sets 	forth 	the 	scope of
representation under EERA. 	It 	is 	self-evident 	that, 	in order
for 	an 	employer 	to 	reach 	the 	conclusion 	that 	a 	proposal
concerns a 	subject outside 	the 	scope of 	representation, 	it must
88

first understand 	that proposal. 	There 	is, 	therefore, 	a
cognizable 	distinction 	between 	the 	inability 	to 	conduct
meaningful 	negotiations 	concerning 	proposals 	which 	are 	not
fully 	understandable 	and 	an 	outright 	refusal 	to 	conduct 	any
negotiations 	whatsoever. 	The 	very 	essence of 	the 	duty 	to
negotiate 	in good 	faith 	imposed 	by 	section 	3543.3 	of 	the Act4
is 	the 	effort 	to 	reach 	agreement. 	A refusal 	to address 	in any
manner 	proposals 	which 	are 	unclear 	is 	inconsistent 	with 	the
statutory 	obligation.
Clearly, 	then, 	it 	is necessary to balance an employer's
duty 	to 	negotiate 	in good 	faith 	and 	its 	right 	to be 	adequately
informed 	of 	the 	exclusive 	representative's 	specific 	negotiating
interests. 	The 	resolution we 	find 	to be both 	practical 	and
consistent 	with 	the 	give-and-take of 	the 	bargaining 	process 	is
to 	utilize 	that 	process 	itself 	to 	resolve 	the 	ambiguities
present 	in bargaining 	proposals. 	This 	requires 	the 	objecting
party 	to make 	a 	good 	faith 	effort 	to 	seek 	clarification of
questionable 	proposals 	by 	voicing 	its 	specific 	reasons 	for
believing 	that 	a proposal 	is 	outside 	the 	scope of
4Section 	3543.3 	provides:
A public school employer 	. 	. 	. 	shall meet
and 	negotiate 	with 	and 	only 	with
representatives 	of 	employee 	organizations
selected 	as 	exclusive 	representatives 	of
appropriate 	units 	upon 	request 	with 	regard
to matters 	within 	the 	scope of
representation.
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representation 	and 	then 	entering 	into 	negotiations 	on 	those
aspects 	of 	proposals 	which, 	following 	clarification by 	the
other 	party, 	it 	finally views 	as 	negotiable. 	Where a proposal
is 	arguably negotiable 	in whole or 	in part, 	a 	failure 	to seek
clarification 	is, 	in 	itself, 	a violation of 	the duty to
negotiate 	in good 	faith, 	and will 	result 	in an order 	requiring
the 	objecting 	party 	to 	return 	to 	the 	negotiating 	table 	and 	seek
clarification 	of 	the 	ambiguous 	proposal.
We 	do 	not 	suggest 	that 	the 	objecting 	party must 	wrestle 	to
a 	fall 	with 	every 	ambiguity, 	or 	search 	out 	every 	negotiable or
objectionable word or 	phrase. 	But 	its 	efforts must be
consonant 	with 	the 	legislative 	intent 	that 	negotiations 	serve
as 	a method 	of 	improving 	personnel 	management 	and 	communication
between 	employees 	and 	their 	public 	school employers.
Finally, 	the District's 	contention 	that, 	by 	imposing 	this
requirement 	on 	the 	employer, 	we 	are 	expanding 	the 	scope of
representation misinterprets 	our 	action. 	The 	process 	of
clarification 	does 	not 	compel 	the 	employer 	to 	engage 	in
substantive 	negotiations 	on 	any 	subject 	not 	mandated 	by 	the
Legislature.
I.
HEALDSBURG 	UNION HIGH 	SCHOOL 	DISTRICT; 	HEALDSBURG UNION 	SCHOOL
DISTRICT, CASE NO. SF-CE-~68
The 	Districts 	concede 	that 	they 	refused 	to 	negotiate 	those
proposals which are 	before 	the Board. 	Therefore, 	the only
10

issue 	in 	the 	case 	is whether 	the 	specific 	proposals 	are within
the 	scope 	of 	representation. 	Where 	we 	find 	the Association's
proposals 	to be 	negotiable, 	the Districts' 	refusal 	to negotiate
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.
The Contract 	Proposals
Article 	II. 	No Discrimination
2.1 	Discrimination Prohibited; 	No 	employee 	in 	the 	bargaining
unit 	shall be 	appointed, 	reduced, 	removed, 	or 	in any way
favored 	or 	discriminated 	against 	because 	of 	his/her 	political
opinions or affiliations, 	or because of 	race, 	national origin,
religion or 	marital status 	and, 	to 	the 	extent 	prohibited 	by
law, 	no 	person 	shall be discriminated 	against 	because of 	age,
sex, 	or physical handicap.
2.2 	No Discrimination 	on Account 	of 	CSEA Activity; 	Neither
the District 	nor CSEA shall 	interfere with, 	intimidate,
restrain, 	coerce, 	or discriminate against employees because of
the 	exercise 	of 	rights 	to engage 	or 	not 	to engage 	in CSEA
activity.
Proposals 	relating 	to 	categorical 	forms 	of 	discrimination
(e.g., 	race, 	national origin, 	political affiliation) 	and to
discrimination 	on 	the 	basis 	of 	union 	activity have 	a direct
relationship 	to 	a whole 	range 	of 	enumerated 	subjects 	of
bargaining. 	Discriminatory 	practices 	may 	affect 	wages,
transfer, 	reassignment 	and disciplinary policies, 	and other
areas 	of 	bargaining 	enumerated 	in 	section 	3543.2 	of 	the Act.
For 	example, 	an 	employer may decide 	to 	transfer 	an employee
because 	of 	race 	or 	sex 	or 	discipline 	an 	employee 	who
legitimately 	takes 	time 	to 	participate 	in a 	union 	function.
11

Thus, 	in 	our 	view, 	proposals 	2.1 	and 	2.2 	are 	logically 	and
reasonably 	related 	to 	enumerated 	subjects 	of 	bargaining 	and,
therefore, 	meet 	the 	threshold 	requirement of 	the Anaheim 	test.
The District 	argues 	that, 	because 	certain 	state 	and 	federal
statutes 	cover 	the 	area of discrimination, 	the 	collective
bargaining 	process 	is 	not 	the 	appropriate means 	of 	resolving
disputes 	in 	this 	area.5 Hence, 	it 	asserts 	that 	proposals 	2.1
and 	2.2 	run afoul 	of 	the 	second 	prong 	of 	the Anaheim 	test. 	We
disagree.
The 	courts 	have 	consistently 	held 	that 	the 	existence 	of
comprehensive 	legislation 	prohibiting 	both 	categorical
discrimination 	and 	discrimination 	for 	union 	activity 	does 	not
preclude 	enforcement 	of 	those 	rights 	through 	the 	collective
bargaining process. 	See, 	e.g., 	Packinghouse Workers v. 	NLRB
(D.C. 	Cir. 	1969) 	416 F.2d 1126 	[70 LRRM 2489], Emporium Capwell
v. 	Western Addition Community Organization 	(1975) 	420 U.S. 	50
[88 LRRM 2660], Steel Workers v. Weber 	(1979) 	443 U.S. 	193 	[99
S.Ct. 	2721] 	(racial discrimination); U.S. 	Industries 	(1978) 	234
NLRB No. 	49 	[97 LRRM 1234] 	(discrimination for 	union
activity). 	As 	the Supreme Court 	noted 	in Alexander 	v.
Gardner-Denver Co. 	(1973) 	415 U.S. 	36, 	59-60:
5See, 	for example, 	the Equal Employment Opportunity Act,
42 	United 	States Code 	section 	2000e-2 	and 	the Fair 	Employment
Practices Act, 	California Labor 	Code 	section 	1410 	et 	seq.,
prohibiting discrimination 	in 	employment, 	and 	the EERA 	section
3543.5, 	prohibiting discrimination 	against employees 	for
participation 	in 	union 	activities.
12

We think 	. 	. 	. 	that the federal policy
favoring 	arbitration 	of 	labor 	disputes 	and
the 	federal 	policy 	against discriminatory
employment 	practices 	can 	best 	be
accommodated 	by 	permitting 	an 	employee 	to
pursue 	fully 	both 	his 	remedy 	under 	the
grievance 	arbitration 	clause 	of 	a 	collective
bargaining 	agreement 	and 	his 	cause 	of 	action
under Title VII.
In our 	view, 	there 	is at 	least 	as 	strong 	a policy favoring
private 	resolution of disputes 	in EERA as 	there 	is 	in 	the
National Labor 	Relations Act 	(NLRA). 	See Anaheim City School
District 	(12/14/83) 	PERB Decision No. 	364. 	Thus, 	incorporation
of 	protections 	against 	discrimination 	in a collective
bargaining 	agreement 	furthers 	the 	"improvement 	of 	personnel
management 	and 	employer-employee 	relations 	within 	the 	public
school 	systems." 	(Section 3540.) 	Indeed, 	dispute 	resolution
at 	the 	local 	level 	through 	mutually 	bargained 	procedures 	can
provide a 	faster, 	more efficient, 	less 	costly and 	less
disruptive means of 	settling 	disputes 	in 	this 	area. 	At 	the
same 	time, 	incorporation of 	"no discrimination" 	or 	"affirmative
action" 	language 	in an 	agreement 	does 	not 	preclude 	an employee
from 	pursuing 	other 	remedies 	before 	federal 	or 	state 	agencies
or 	through 	the courts. 	Finally, 	should 	a proposal 	seek 	to
violate or 	in effect violate 	state 	law, 	the 	proposal 	would 	be
unlawful and 	therefore 	out of 	scope. 	The Board, 	therefore,
concludes 	that 	the 	collective 	bargaining 	process 	is 	an
appropriate 	forum 	in which 	conflicts 	over 	discrimination 	in
employment 	may 	be 	addressed 	and 	resolved.
13

The Board 	finds 	that 	the 	requirement 	to 	negotiate 	the
inclusion 	of 	contractual 	provisions 	prohibiting 	discrimination
merely 	reiterates 	management's 	existing 	obligations 	under 	state
and 	federal 	law and, 	therefore, 	does 	not 	invade 	any managerial
prerogative. 	Thus, 	we 	conclude 	that 	proposals 	2.1 	and 	2.2 	are
negotiable 	under 	the Anaheim 	test.
2.3 	Affirmative Action: 	The District 	and CSEA 	agree 	that 	an
effective 	affirmative 	action 	program 	is 	beneficial 	to 	the
District, 	employees, 	and 	the community. 	The parties agree and
understand 	that 	the 	responsibility 	for 	an 	affirmative 	action
plan 	rests 	with 	the 	employer. 	The District 	shall 	consult with
CSEA 	in 	preparing 	the 	affirmative 	action 	plan 	and 	further
agrees 	that 	no 	provision 	shall 	be 	adopted 	in 	the 	affirmative
action 	plan 	that 	violates 	employee 	rights 	as 	set out 	in 	this
agreement.
This 	proposal 	seeks 	to 	permit 	the Association 	to consult
with 	the District 	concerning 	the 	preparation of 	an 	affirmative
action plan. 	In addition, 	it 	requires 	the District 	to provide
assurances 	that 	the 	plan will 	not violate 	the 	rights 	that
employees 	have 	previously 	obtained 	through 	the 	collective
bargaining 	process. 	The District 	contends 	that 	proposal 	2.3 	is
an 	illegal 	intrusion 	into 	its managerial 	prerogatives.
An 	exclusive 	representative 	has 	a 	right 	to 	negotiate 	any
aspect 	of 	an 	affirmative 	action 	plan 	which 	affects 	matters
within 	the 	scope of 	representation. 	Clearly, 	therefore, 	the
right 	to 	negotiate 	these 	matters 	necessarily 	includes 	the
lesser 	right 	to meet 	and 	consult 	over 	matters 	within 	the 	scope
of 	representation. 	Hence, 	CSEA's 	proposal that 	the District
consult 	with 	the Association 	concerning 	an affirmative 	action
14

plan 	is 	within 	the 	scope of 	representation as 	set 	forth 	in
section 3543.2.
As 	noted 	above, 	the 	federal courts 	have 	found 	that, 	under
the NLRA, 	the 	exclusive 	representative may enter 	into an
agreement 	which 	establishes 	the 	affirmative 	action 	policy 	of
the 	employer. 	Indeed, 	these cases 	indicate 	that 	there 	is 	a
strong 	federal 	policy 	favoring 	such 	agreements. 	Steel Workers
v. Weber, 	supra; W.R. Grace & Co. 	v. 	Local 759, 	Rubber Workers
(1983) 	U.S. 	, 	[76 L.Ed2d 298]. 	We have 	found 	that
policy 	equally 	applicable 	to EERA.
We note, 	however, 	that a 	requirement 	that an employer 	enter
into 	negotiations 	or 	consultations 	over 	the 	in-scope 	elements
of 	an 	affirmative 	action 	plan with 	the 	exclusive 	representative
does 	not mean 	that 	the 	parties may 	agree 	to violate 	applicable
federal and 	state 	statutes. 	The NLRB 	and 	the 	federal courts
have 	long 	held 	that 	a 	contractual 	agreement 	which 	imposes
discriminatory 	practices 	is 	unlawful 	(Hughes Tool Co. 	(1964)
147 NLRB 1573 	[56 LRRM 1289] 	(racial discrimination), 	Gay Paree
Undergarment Co. 	(1950) 	91 NLRB 1363 	[27 LRRM 1006]
(discrimination for 	union activity)), 	and 	is 	in violation of an
exclusive 	representative's 	duty 	of 	fair 	representation 	(Hughes
Tool Co., 	supra; Bell & Howell Co. 	(D.C. Cir. 	1977) 	598 F.2d
136 	[100 LRRM 2192]). 	In accord, 	Rocklin Teachers Professional
15

Association 	(Romero) 	(3/26/80) 	PERB Decision No. 	124.6
The 	final 	sentence 	of proposal 	2.3 	protects 	the Association
and 	bargaining 	unit 	members 	from 	the 	imposition 	of 	unilateral
changes 	of matters 	within 	the 	scope 	of 	representation which
might 	result 	from 	the 	implementation 	of 	an 	affirmative 	action
plan. 	This 	language merely 	reiterates 	the 	long-established
labor 	law principle 	that 	an 	employer 	may 	not 	unilaterally 	alter
negotiable 	terms 	and 	conditions 	of 	employment 	without
negotiating. 	Pajaro Valley Unified 	School 	District 	(5/22/78)
PERB Decision No. 	51; 	San Francisco Community College District,
supra; 	Grant 	Joint Union High School District 	(2/26/82) 	PERB
Decision No. 	196; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177]. 	Such 	language 	may properly be 	included 	in a collective
agreement.
We, 	therefore, 	conclude 	that 	Article II 	is negotiable 	in
its 	entirety.
Article V. 	Organizational 	Rights
5.1 	CSEA Rights; 	CSEA shall have 	the 	following 	rights 	in
addition 	to 	the 	rights 	contained 	in any 	other 	portion of 	this
Agreement:
6We 	also 	disagree 	with 	the 	position 	articulated 	in
Member 	Tovar's 	concurrence 	and dissent 	that 	the 	area 	of
affirmative 	action 	is 	covered 	by comprehensive 	legislation
which 	supersedes 	the 	right 	of 	employees 	to 	negotiate 	or 	consult
over 	such 	issues. 	While Education Code 	sections 	44100 	and
87100 	require 	each 	school 	and 	community 	college 	district 	to
establish 	an 	affirmative 	action plan, 	they do not, 	in our 	view,
create 	an 	"inflexible 	standard" 	which 	conflicts 	with 	the duty
to 	negotiate 	or 	consult 	over 	the 	in-scope contents of 	the 	plan.
16

The 	right 	of 	access 	at 	reasonable
times 	to areas 	in which employees work.
5.1.1 	Access 	to Work Areas;
5.1.2 	Use 	of Mail System, 	Bulletin Board; 	The 	right 	to use
without charge 	institutional bulletin boards, 	mailboxes, 	and
the 	use 	of 	the 	school mail 	system and 	other 	District means 	of
communication 	for 	the 	posting 	or 	transmission 	of 	information 	or
notices 	concerning 	CSEA matters.
5.1.3 	Use of Equipment, 	Facilities Without Charge; 	The 	right
to use without charge 	institutional equipment, 	facilities, 	and
buildings at 	reasonable 	times.
CSEA's 	first 	three 	organizational 	rights 	proposals 	are
intended 	to 	guarantee 	to 	the 	exclusive 	representative
reasonable access to District employees, 	facilities, 	and
equipment. 	In 	the main, 	they 	incorporate 	the 	statutory access
provisions 	set 	forth 	in 	subsection 	3543.l(b).7 As 	noted 	in
Jefferson School District, 	supra, 	"access 	is a necessary
prerequisite 	for 	adequately 	representing 	grievants" 	and,
therefore, 	bears 	a 	logical 	relationship to 	the grievance
procedure. 	Indeed, 	access 	proposals 	relate 	to, 	and 	facilitate,
the ongoing 	collective bargaining 	process. 	We, 	therefore, 	find
that 	these 	proposals 	are 	related 	to enumerated 	subjects 	in
section 	3543.2 	and 	meet 	the 	threshold 	requirement 	of 	the
Anaheim 	test.
7Subsection 	3543.l(b) 	provides:
Employee 	organizations 	shall 	have 	the 	right
of 	access 	at 	reasonable 	times 	to areas 	in
which 	employees work, 	the 	right 	to use
institutional bulletin boards, mailboxes,
and other means of 	communication, 	subject 	to
reasonable 	regulation, 	and 	the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of meetings concerned 	with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this chapter.
17

Conflict will 	surely 	arise 	between 	the 	parties 	unless 	both
sides 	have 	an 	understanding 	of 	the 	exclusive 	representative's
access 	to the District's employees, 	communication systems, 	and
facilities.
The 	District contends 	that 	subsection 	3543.l(b) 	was
intended 	by 	the Legislature 	to preempt 	the 	area 	of 	access 	and
thus makes 	the 	above 	provisions 	nonnegotiable. 	The 	District's
contention 	is 	an extension of 	the 	argument 	it made 	before 	the
Supreme 	Court 	that 	it 	is 	inappropriate 	to 	include 	rights
established 	by 	the Education Code 	in 	a 	collective 	agreement.
As 	noted 	supra, 	the 	Court 	specifically 	rejected 	this 	argument,
finding 	that 	inclusion of 	". 	. 	. 	terms established by the
Education Code within a collectively negotiated contract 	. 	. 	.
would 	not 	supersede 	the 	Education 	Code 	but 	would 	strengthen
it." 	San Mateo City School District et al. 	v. 	PERB, 	supra, 	33
Cal.3d 850, 866.
We 	similarly 	find 	that 	inclusion 	in 	a 	collective 	bargaining
agreement 	of 	statutory 	rights 	established 	by EERA—such 	as 	the
right 	to access 	or 	release 	time—does 	not 	"replace 	or 	set
aside" 	those provisions of 	the Act, 	but augments and 	reinforces
them. 	As 	the Board 	noted 	in Anaheim Union High 	School
District, 	supra, 	at p. 	11, 	the Legislature placed these 	rights
in 	separate 	sections 	of 	the Act 	because 	they concerned 	matters
"too 	important 	to 	the 	statutory 	scheme 	to 	be 	left 	either 	to 	the
employer's 	discretion or 	entirely 	to 	the 	vagaries 	of
18

negotiations." 	(Emphasis 	in the original). 	By so doing,
however, 	the Legislature did 	not 	intend 	to prohibit 	the 	parties
from 	including 	these 	statutory 	protections 	in 	a 	collective
bargaining 	agreement. 	On 	the 	contrary, 	the 	inclusion of
statutory 	rights 	in a 	collective 	bargaining 	agreement
strengthens 	the 	legislative 	purpose 	by 	providing 	a 	contractual
remedy 	for 	violation of 	those 	rights.
The District 	also 	argues 	that 	the 	use of 	the word
"equipment" 	in 	proposal 	5.1.3 	expands 	the 	right 	of 	access
beyond 	what 	the 	Legislature 	intended 	in 	enacting 	subsection
3543.l(b).
We 	disagree 	with 	the 	District's 	contention 	that 	access 	to
"equipment" 	is, 	on 	its 	face, 	beyond 	the 	rights established by
subsection 3543.l(b). 	In interpreting subsection 3543.l(b),
the Board 	has 	consistently held 	that, 	by providing 	for 	a 	right
of 	access 	to 	"other 	means 	of 	communication" 	besides 	those
explicitly 	set 	forth 	in 	the 	subsection, 	the Legislature did 	not
intend 	those 	explicitly cited 	means 	of 	access 	to 	be
exhaustive. 	See, 	e.g., 	Richmond Unified School District/Simi
Valley Unified School District 	(8/1/79) 	PERB Decision No. 	99
(finding 	internal mail 	system 	to 	be 	"other 	means 	of
communication"). 	While we do not disagree with 	the District
that 	the Association's 	proposal 	is 	ambiguous 	and may
contemplate 	an unlawful 	extension of 	the 	right 	to access, 	we
cannot 	find 	it 	facially nonnegotiable. 	The District 	is 	under
19

an obligation 	to 	seek 	clarification of 	the 	proposal 	so 	as 	to
determine 	what 	the Association means 	by 	the 	term 	"equipment"
and 	whether 	it 	falls within 	the 	lawful 	forms of 	access
established by subsection 3543.l(b).
For 	the 	foregoing 	reasons, 	we 	find proposals 	5.1.1, 	5.1.2,
and 	5.1.3 	negotiable.
5.1.4 	Right 	to Review Employee 	Records 	with 	Employees'
Permission; 	The 	right 	to review employees' 	personnel 	files 	and
any 	other 	records 	dealing 	with 	employees 	when 	accompanied 	by
the 	employee 	or 	on 	presentation 	of 	a 	written 	authorization
signed 	by 	the 	employee.
5.1.5 	Right 	to 	"Hire Date" 	Seniority Roster; 	The 	right 	to be
supplied 	with 	a 	complete 	"hire 	date" 	seniority 	roster 	of 	all
bargaining 	unit 	employees 	on 	the 	effective 	date 	of 	this
agreement and 	every 	three 	(3) 	months 	thereafter. 	The 	roster
shall 	indicate 	the 	employee's 	present 	classification 	and
primary 	job 	site.
5.1.9 	Right 	to 	Review District 	Material Necessary 	for 	CSEA 	to
Fulfill Role 	as Exclusive Rep; 	The 	right 	to 	review at 	all
reasonable 	times 	any other 	material 	in 	the 	possession of 	or
produced 	by 	the 	District 	necessary 	for 	CSEA 	to 	fulfill 	its 	role
as 	the 	exclusive 	bargaining 	representative.
Provisions 	to 	review employee 	records, 	be 	supplied 	with
seniority 	lists, 	and 	review other 	material 	necessary 	for 	the
fulfillment 	of CSEA's 	role 	as 	the 	exclusive 	bargaining
representative 	are 	related 	to 	the 	grievance 	procedure 	and,
inasmuch 	as 	the outcome of 	a grievance may 	impact wages, 	hours,
transfers, 	and discipline of employees, 	are 	related 	to those
bargaining 	subjects 	as well. 	Seniority 	lists 	similarly 	impact
a whole 	range 	of 	negotiable 	subjects, 	and 	the 	availability of
such 	lists 	is 	critical 	both 	for 	the 	individual 	employee 	and 	the
20

exclusive 	representative 	in 	determining 	the 	employer's 	good
faith 	compliance 	with 	many 	clauses 	in 	the 	negotiated 	agreement.
The 	records 	referred 	to 	in 	the 	proposals 	are 	in 	the
possession of 	the District, 	and we 	find 	that 	the most
appropriate 	way 	to 	avoid 	conflict 	over 	access 	to 	necessary
information 	is 	to 	regulate 	the Association's 	access 	to 	that
information 	through 	the 	collective 	bargaining 	process.
We 	note 	that 	proposal 	5.1.9 	is 	somewhat 	ambiguous.
However, 	as discussed, 	supra, 	the District has 	the duty to seek
clarification 	prior 	to 	a 	legitimate 	refusal 	to 	negotiate 	on 	the
subject. 	Thus, 	to the extent 	that all of 	the above-cited
provisions 	are 	necessary 	for 	CSEA 	to 	fulfill 	its 	role 	as
exclusive 	representative, 	participate 	in negotiations,
effectuate 	the 	grievance 	procedure, 	and 	administer 	the
contract, 	we 	find 	them negotiable.
5.1.6 	Right 	to 2 	Copies 	of Written Reports 	to Government: 	The
right 	to 	receive 	upon request 	two 	{2) 	copies of 	any and all
written 	reports 	submitted 	to 	any 	other 	governmental 	agency.
5.1.7 	Right 	to 2 	Copies of Grant Applications; 	The 	right 	to
receive 	two 	(2) 	copies of all applications 	to any other
governmental 	agency for 	any grant, 	funding, 	or 	approval of any
kind when 	such grant, 	funding, 	or 	approval can reasonably be
expected 	to have 	an 	impact, 	direct or 	indirect, 	on 	the
classified 	service; 	and 	said 	copies 	shall 	be 	forwarded 	to CSEA
in 	the 	same manner 	and 	at 	the 	same 	time 	as 	the 	subject matter
is 	submitted 	for 	consideration 	to 	the 	public 	school 	employer.
No 	action on 	such matters 	shall 	be 	taken by 	the 	employer 	until
CSEA has 	been 	provided 	the 	opportunity 	to 	review 	and 	comment.
5.1.8 	Right 	to 2 Copies of Budget or 	Financial Material; 	The
right 	to 	receive 	two 	(2) 	copies 	of 	any budget or 	financial
material 	submitted 	at 	any 	time 	to 	the 	governing 	board.
21

The Board 	has 	long held 	that 	an employer, 	as 	part of 	its
duty 	to 	negotiate 	in good 	faith, 	has 	an obligation 	to 	supply
information 	to 	the exclusive 	representative. 	However, 	the
information 	requested must 	be 	both 	directly 	related 	to 	the
union's 	function 	as 	bargaining 	representative 	and 	"reasonably
necessary" 	for 	the 	performance of 	that 	function. 	Stockton
Unified School District 	(11/3/80) 	PERB Decision No. 	143;
Mt. 	San Antonio Community College District 	(6/30/82) 	PERB
Decision No. 	224; 	Oakland Unified School District 	(7/11/83)
PERB Decision No. 	326; 	Otis Elevator Co. 	(1968) 	170 NLRB 395
[67 	LRRM 	1475].
While 	the 	documents 	sought 	in proposals 	5.1.6, 	5.1.7 	and
5.1.8 might, 	at 	some 	future 	point, 	be 	reasonably necessary to
the 	function of 	the 	exclusive 	representative, 	we 	cannot 	find
them 	so 	in 	the 	absence 	of 	an evidentiary 	record 	justifying
access. 	The request, 	therefore, 	constitutes a premature
invasion of 	the District's 	prerogative 	to plan, 	study 	and
consider 	grant 	proposals, 	government 	reports or 	budget
proposals 	prior 	to 	interjecting 	them 	into 	the 	bargaining
relationship between 	the 	parties. 	Since 	the 	documentation
sought 	is not, 	at this stage, 	relevant to the Association's
concerns, 	the collective 	bargaining 	arena 	is not 	the
appropriate 	forum 	in which 	to 	settle 	disputes 	concerning 	these
documents. 	For 	the 	foregoing 	reasons, 	we find 	proposals 	5.1.6,
5.1.7 	and 	5.1.8 	nonnegotiable.
22

5.1.10 	Release 	Time 	for 	CSEA 	State 	Officers 	to Conduct
Necessary Business; 	The 	right 	of 	release 	time 	for 	employees
who 	are 	CSEA 	state 	officers 	to 	conduct 	necessary CSEA business.
5.1.11 	Release 	Time 	for 	CSEA 	Delegates 	to Attend 	Conference;
The 	right of 	release 	time 	for 	CSEA chapter 	delegates 	to 	attend
the CSEA Annual Conference, 	with 	the District 	to provide 	$250
in 	conference 	expenses 	for 	each 	delegate.
5.1.12 	Right 	to Contract 	Orientation 	of 	Unit 	Employees 	During
Working Hours; 	The 	right 	to conduct 	orientation 	sessions 	on
this 	agreement 	for 	bargaining 	unit 	employees 	during 	regular
working 	hours.
In proposals 	5.1.10 	and 	5.1.11, 	CSEA seeks 	release 	time 	for
its 	state delegates 	to 	conduct 	necessary 	business 	and 	for
chapter 	delegates 	to 	attend 	CSEA's 	annual conferences. 	While
EERA 	specifically 	grants 	representatives 	of 	employee
organizations 	release 	time, 	it does 	so 	for 	the purposes 	of
meeting 	and 	negotiating 	and 	for 	processing 	grievances
(subsection 3543.1(c)). 	The negotiability of 	these proposals,
however, 	does 	not 	depend 	on 	this 	statutorily defined 	release
time 	provision. 	We 	find 	these 	proposals 	negotiable 	because
they directly concern 	hours 	of 	employment, 	which 	is
specifically enumerated 	in 	section 	3543.2. 	See Palos Verdes
Peninsula 	Unified 	School 	District/Pleasant Valley 	School
District 	(7/16/79) 	PERB Decision No. 	96 	and 	the 	cases 	cited
therein.
However, 	the Board 	finds 	that 	the 	$250 	stipend 	provision of
proposal 	5.1.11 	is 	not 	negotiable 	under 	the Anaheim 	test. 	The
payment 	is 	not 	related 	to 	wages 	or 	any 	other 	enumerated 	item
and, 	therefore, 	fails 	the 	threshold 	requirement outlined 	in
Anaheim. 	Indeed, 	such 	a payment might well 	run 	afoul of 	the
23

prohibition 	against 	"unlawful 	support 	and 	domination" 	of 	an
employee 	organization. 	(Subsection 	3543.5(d).)
For 	the 	foregoing 	reasons, 	the Board 	finds 	the 	release 	time
provisions 	of 	proposals 	5.1.10, 	5.1.11 	and 	5.1.12 	negotiable,
with 	the 	exception 	of 	the 	$250 	stipend 	request 	set 	forth 	in
proposal 	5.1.11.
5.2 	Prohibition Against Advisory Committees; 	The 	District
shall 	not 	form or 	cause 	to 	be 	formed 	any 	advisory 	committee 	on
any matter 	concerning 	bargaining 	unit 	employees 	without 	the
consent 	of 	CSEA.
This 	proposal, 	on 	its 	face, 	bears 	no logical and 	reasonable
relationship to a negotiable subject. 	Rather, 	it prohibits 	the
District 	from 	creating 	any 	advisory 	committee 	which 	might
consider 	"any 	matter 	concerning 	bargaining 	unit 	employees."
Certainly, 	it 	is 	conceivable 	that 	an advisory committee might
be 	formed which, 	in the broadest sense, 	"concerns" bargaining
unit members 	but which has 	no 	relation 	to 	the 	subjects 	of
bargaining enumerated 	in 	section 3543.2. 	In addition, 	the
language 	of 	the 	proposal 	is 	so broad 	that 	it could 	interfere
with 	the District's 	prerogative 	to 	establish 	management
committees 	on bargaining 	issues. 	We, 	therefore, 	find 	that 	this
proposal 	does 	not meet 	the 	requirements 	of 	the Anaheim 	test 	and
is nonnegotiable.
5.3 	Restriction 	on District Negotiations 	and Agreements; 	The
District 	shall 	conduct 	no negotiations 	nor 	enter 	into any
agreement 	with 	any 	other 	organization 	on matters 	concerning 	the
rights 	of 	bargaining 	unit 	employees 	and/or 	CSEA without 	prior
notice 	to 	and 	approval by CSEA of 	the 	negotiations 	and 	the
agreement.
24

Proposal 	5.3 	does 	not 	suffer 	from 	the 	same 	infirmity 	as 	the
previous proposal. 	Assuming 	that 	the 	terms 	"negotiations" 	and
"other 	organizations" 	used 	in 	the 	proposal are 	intended 	as
terms 	of 	art 	within 	the 	labor 	relations 	context, 	the proposal
merely 	reiterates 	the 	statutory 	right 	of 	CSEA to 	act 	as 	the
exclusive 	representative 	of 	bargaining 	unit 	members.
Essentially, 	therefore, 	it 	incorporates 	the 	rights established
by 	subsection 	3543.1(a) 	and 	section 	35438 	of 	the Act 	into 	the
contract. 	As 	noted 	above, 	we 	find 	that 	the 	incorporation of
the 	statutory protections 	of 	the Act 	in 	the 	collective
bargaining 	agreement 	is 	permissible. 	To 	the extent 	that 	the
language 	of 	the proposal 	is 	somewhat 	ambiguous, 	as 	the District
claims, 	it 	is 	not 	fatally so, 	and 	the District has a duty to
seek 	clarification 	before 	it may 	lawfully 	refuse 	to 	negotiate.
We, 	therefore, 	find proposal 5.3 	negotiable.
8Subsection 3543.l(a) 	provides, 	in relevant part:
(a) 	Employee organizations 	shall have 	the
right 	to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers. . . .
Section 3543 provides, 	in relevant part:
Public 	school 	employees 	shall 	have 	the 	right
. . . 	to 	represent 	themselves 	individually
in 	their 	employment 	relations 	with 	the
public 	school employer, 	except 	that once 	the
employees 	in an 	appropriate 	unit 	have
selected 	an 	exclusive 	representative 	and 	it
has 	been 	recognized 	pursuant 	to 	Section
3544.1 or 	certified pursuant 	to 	Section
3544.7, 	no employee 	in that 	unit may meet
and 	negotiate 	with 	the 	public 	school
employer.
25

5.4 	Distribution of 	the Contract: 	Within 	thirty 	(30) 	days
after 	the 	execution of 	this 	contract, 	the District 	shall print
or 	duplicate 	and 	provide 	without charge 	a copy of 	this 	contract
to 	every 	employee 	in 	the 	bargaining 	unit. 	Any 	employee 	who
becomes 	a member 	of 	the 	bargaining 	unit 	after 	the 	execution of
this 	agreement 	shall be 	provided 	with 	a 	copy of 	this 	agreement
by 	the District without charge 	at 	the 	time 	of 	employment. 	Each
employee 	in 	the 	bargaining 	unit 	shall 	be 	provided 	by 	the
District 	without 	charge 	with 	a copy 	of 	any 	written 	changes
agreed 	to by 	the 	parties 	to 	this 	agreement 	during 	the 	life 	of
this 	agreement.
This 	proposal 	seeks 	to 	place 	the 	financial burden of 	the
reproduction 	and 	distribution of 	the 	contract 	on 	the District.
We 	find 	that 	the 	proposal 	has 	far 	too 	tenuous 	a 	relationship to
the 	enumerated 	subjects 	of 	section 	3543.2 	to 	satisfy 	the
threshold 	test of 	the Anaheim decision 	and 	is, 	therefore,
nonnegotiable.
5.5 	Management 	Orientation: 	District Management 	shall 	conduct
orientation 	sessions on 	this 	agreement 	for Management,
Supervisory 	and 	Confidential 	employees.
We 	find 	this 	proposal 	to be 	nonnegotiable 	on 	its 	face. 	A
requirement 	that 	an 	employer 	provide 	orientation 	sessions 	for
employees 	excluded 	from 	the 	bargaining 	unit 	impermissibly
interferes 	with management's 	right 	to direct 	its managerial,
confidential, 	and supervisory employees.
Article VI. 	Job Representatives
6.1 	Purpose: 	The 	District 	recognizes 	the 	need 	and 	affirms 	the
right 	of 	CSEA 	to 	designate Job Representatives 	from among
employees 	in 	the 	unit. 	It 	is 	agreed 	that CSEA 	in appointing
such 	representatives 	does 	so 	for 	the 	purpose 	of 	promoting 	an
effective 	relationship between 	the 	District 	and 	employees 	by
helping 	to 	settle 	problems 	at 	the 	lowest 	level 	of 	supervision.
6.2 	Selection 	of Job 	Representatives. 	C SEA 	reserves 	the 	right
to designate 	the 	number 	and 	the method 	of 	selection of 	Job
Representatives. 	CSEA 	shall 	notify 	the 	District 	in writing 	of
----------------------·
26

the 	names 	of 	the 	Job Representatives 	and 	the 	group they
represent. 	If a change 	is made, 	the District 	shall be advised
in writing 	of 	such 	change.
6.3 	Duties 	and 	Responsibilities 	of Job Representatives; 	The
following 	shall 	be 	understood 	to 	constitute 	the 	duties 	and
responsibilities 	of Job Representatives:
6.3.1 	After 	notifying 	his/her 	immediate 	superior, 	a Job
Representative 	shall 	be 	permitted 	to 	leave 	his/her 	normal work
area 	during 	reasonable 	times 	in order 	to 	assist 	in
investigation, 	preparation, writing, 	and presentation of
grievances. 	The Job Representative 	shall 	advise 	the 	Supervisor
of 	the 	grievant of his/her 	presence. 	The Job Representative 	is
permitted 	to discuss 	any 	problem 	with 	all 	employees 	immediately
concerned, and, 	if appropriate, 	to attempt to achieve
settlement 	in 	accordance 	with 	the 	grievance 	procedure.
6.3.2 	If, 	due 	to an emergency, 	an adequate 	level of 	service
cannot 	be maintained 	in 	the 	absence 	of 	a Job Representative 	at
the 	time 	of 	the 	notification mentioned 	in 6.3.1, 	the Job
Representative 	shall 	be 	permitted 	to 	leave 	his/her 	normal 	work
area 	no 	later 	than 	two 	hours 	after 	the Job Representative
provides 	notification.
6.3.3 	A Job 	Representative 	shall 	be 	granted 	release 	time 	with
pay 	to 	accompany 	a CAL-OSHA 	representative 	conducting 	an
on-site, 	walk-around 	safety 	inspection of any 	area, 	department,
division, 	or 	other 	subdivision 	for 	which 	the Job Representative
has 	responsibilities 	as 	a Job Representative.
6.4 	Authority: 	Job Representatives 	shall 	have 	the 	authority
to 	file 	notice 	and 	take 	action 	on 	behalf 	of 	bargaining 	unit
employees 	relative 	to 	rights 	afforded 	under 	this 	agreement.
6.5 	CSEA Staff Assistance: 	Job Representatives 	shall 	at 	any
time 	be 	entitled 	to 	seek 	and 	obtain 	assistance 	from CSEA 	Staff
Personnel.
Article VI 	sets 	forth 	the 	duties 	and 	responsibilities 	of
CSEA's 	job 	representatives. 	As 	the U.S. 	Supreme Court noted 	in
Conley v. Gibson 	(1957) 	335 U.S. 	41, 	46 	[41 LRRM 2089]:
Collective 	bargaining 	is 	a 	continuing
process. 	Among other 	things, 	it 	involves
day-to-day 	adjustments 	in 	the 	contract 	and
other 	working 	rules, 	resolution of new
problems 	not 	covered 	by 	existing 	agreements,
and 	the 	protection 	of 	employee 	rights
already 	secured 	by 	contract.
27

It 	is 	the 	job 	representatives or 	union stewards who, 	through
their 	participation 	in 	the 	grievance 	process 	and 	other 	related
duties, 	have 	a central 	role 	in 	the day-to-day administration
and 	enforcement 	of 	the 	collective 	bargaining 	agreement.
Article VI, 	therefore, 	relates directly to both 	the grievance
procedure 	and 	the 	hours 	and 	wages 	of 	the 	stewards 	themselves.
Since 	job 	stewards 	often 	perform 	their 	duties 	during 	periods 	of
stress 	between management 	and 	its 	employees, 	the 	bilateral
negotiating 	process 	is 	particularly 	well 	suited 	to 	determining
their 	role. 	We 	further 	find 	that 	no managerial 	prerogative 	is
invaded 	by 	permitting 	the 	parties 	to define 	the 	role 	of 	the
union 	stewards 	through 	the 	collective 	bargaining 	process. 	For
the 	above 	stated 	reasons, 	we 	find Article VI 	negotiable 	in 	its
entirety.
Article 	X. 	Employee Expenses 	and Materials
10.1 	Uniforms; 	The District 	shall 	pay 	the 	full cost of 	the
purchase, 	lease, 	rental, 	cleaning and maintenance of uniforms,
equipment, 	identification badges, 	emblems 	and cards 	required by
the 	District 	to 	be 	worn or 	used 	by 	bargaining 	unit 	employees.
10.2 	Tools;
10.2.1 	The District 	agrees 	to provide all 	tools, 	equipment,
and 	supplies 	reasonably 	necessary 	to 	bargaining 	unit 	employees
for 	performance 	of 	employment 	duties.
10.2.2 	Safe Place 	to Store Tools; 	Notwithstanding 	Section
10.2.1, 	if an employee 	in the bargaining unit provides 	tools or
equipment belonging 	to 	the 	employee 	for 	use 	in 	the 	course of
employment, 	the District agrees 	to provide a safe place 	to
store 	the 	tools 	and equipment 	and 	agrees 	to 	pay 	for 	any 	loss 	or
damage 	or 	for 	the 	replacement 	cost 	of 	the 	tools 	resulting 	from
normal 	wear 	and 	tear.
10.3 	Replacing 	or 	Repairing Employee's 	Property; 	The 	District
shall 	fully 	compensate 	all 	bargaining 	unit 	employees 	for 	loss
or 	damage 	to 	personal property 	in 	the 	course 	of 	employment.
28

10.5 	Non-owned Automobile 	Insurance; 	The District 	agrees 	to
provide 	the 	primary 	personal 	injury 	and 	property 	damage
insurance 	to 	protect 	employees 	in 	the 	event 	that 	employees 	are
required 	to 	use 	their 	personal 	vehicles 	on employer 	business.
The 	above 	cited 	proposals 	concern 	job-related 	employee
expenses, 	including 	the 	purchase 	and maintenance 	of 	uniforms,
tools, 	employee 	property 	and 	automobile 	insurance.
The District 	contends 	that 	the 	term 	"wages" 	should 	be
construed 	to mean 	only 	hourly, 	weekly or 	piece 	work
compensation 	and 	that 	the 	forms 	of 	compensation 	set 	forth 	in
the Association's 	proposal 	are 	nonnegotiable. 	We disagree.
From 	the 	earliest 	days 	of 	the National Labor 	Relations Act,
wages 	have 	been defined 	as 	including 	other 	forms 	of
compensation 	besides 	those 	which 	are 	purely monetary 	in
nature.9 We 	have 	followed 	the 	definition 	of 	wages 	employed
by 	the NLRB 	and 	the 	federal courts 	in a number 	of 	cases 	(see,
e.g., 	Oakland Unified School District, 	PERB Decision No. 	236,
supra 	(annuity 	accounts), 	Oakland Unified 	School District
9See, 	e.g., Abbot Worsted Mills, 	Inc. 	(1st Cir. 	1942) 	127
F.2d 430 	[10 LRRM 590], 	W.T. 	Carter 	& Brother 	(1950) 	90 NLRB
2020 	[26 LRRM 1427], 	Lehigh Portland Cement Co. 	(1952) 	101
NLRB 1010 	[31 LRRM 1097] 	(employee housing); 	Weyerhouser Timber
Co. 	(1949) 	87 NLRB 672 	[25 LRRM 1163], Herman Sausage Co. 	(5th
Cir. 	1960) 	275 	F.2d 	229 	[45 LRRM 2829],Ford Motor Co. 	v. 	NLRB
(1979) 	441 U.S. 	488 	[101 LRRM 2222] 	(food); W.W. Cross & Co. v.
NLRB 	(1st Cir. 	1949) 	174 F.2d 875 	[24 LRRM 2068], 	General
Motors Co. 	(1949) 	81 NLRB 779 	[23 LRRM 1442] 	(health, 	welfare
and 	insurance plans); 	National Broadcasting Co. 	(1980) 	252 NLRB
187 	[105 LRRM 1304] 	(income savings plans); 	Lehigh Portland
Cement Co., supra 	(uniforms, laundry, 	travel, gloves,
entertainment, 	and other 	"emoluments of value" 	gained 	in 	the
course of employment).
29

(4/23/80) 	PERB Decision No. 	126, 	aff'd 120 Cal.App.3d 1007,
Pajaro Valley Unified School District, 	supra 	(insurance), 	San
Francisco Community College District, 	supra 	(leave)), 	and
reaffirm 	that 	interpretation 	of 	the 	statutory 	term 	"wages"
today. 	We find 	that work-related expenses, 	uniforms, 	tools,
and 	other 	materials 	are 	"wages" 	within 	the meaning 	of 	section
3543.2. 	Thus, 	they are negotiable.
10.7 	Employee Achievement Awards; 	The District 	agrees 	to
provide 	a 	regular 	program of monetary 	awards 	for 	valuable
suggestions, 	services, 	or 	accomplishments 	to bargaining 	unit
employees 	under 	the 	provisions 	of Education Code Sections 	[sic]
12917 	or 	its 	successor. 	The District 	agrees 	to develop the
program 	through 	consultation 	with 	CSEA.
Proposal 	10.7 	proposes 	to 	include 	in 	the contract 	a
provision 	whereby 	the Association 	will 	have 	consultation 	rights
concerning 	a 	system of 	monetary 	awards 	authorized 	by Education
Code 	section 	44015.10 	The 	District 	contends 	that 	the
monetary awards 	are 	"gifts" 	rather 	than 	"compensation" 	and, 	in
addition, 	that 	the 	right of 	employees 	to negotiate 	such 	awards
10Education 	Code 	section 	44015 	provides:
The 	governing 	board 	of 	a 	school 	district may
make 	awards 	to employees 	who:
(a) 	Propose 	procedures or 	ideas which
thereafter 	are 	adopted 	and 	effectuated, 	and
which 	result 	in eliminating 	or 	reducing
district 	expenditures 	or 	improving
operations; or
(b) 	Perform special 	acts or 	special
services 	in the public 	interest; 	or
30

is 	superseded 	by 	the Education Code's 	inflexible 	standard. 	We
find 	both 	contentions 	to 	be 	without merit.
(c) 	By their 	superior 	accomplishments, 	make
exceptional 	contributions 	to 	the 	efficiency,
economy or 	other 	improvement 	in operations
of 	the 	school district.
Before any 	such 	awards 	are made, 	the
governing 	board 	shall 	adopt 	rules 	and
regulations. 	The 	board 	may 	appoint one 	or
more 	merit 	award 	committees 	made 	up of
district officers, district employees, or
private 	citizens 	to 	consider 	employee
proposals, 	special acts, 	special services,
or 	superior 	accomplishments 	and 	to act
affirmatively or 	negatively 	thereon 	or 	to
provide 	appropriate 	recommendations 	thereon
to 	the 	board.
Any 	award 	granted 	under 	the 	provisions 	of
this 	section which may 	be made 	by 	an 	awards
committee 	under 	appropriate 	district 	rules,
shall 	not exceed 	two hundred dollars 	($200) ,
unless 	a 	larger 	award 	is 	expressly 	approved
by 	the 	governing 	board.
When 	an 	awards 	program 	is 	established 	in 	a
school 	district 	under 	the 	provisions of 	this
section, 	the governing 	board 	shall budget
funds 	for 	this 	purpose 	but may 	authorize
awards 	from 	funds 	under 	its 	control whether
or 	not 	budgeted 	funds 	have 	been 	provided 	or
the 	funds 	budgeted 	are 	exhausted.
As 	noted 	above, 	we 	follow 	the NLRB definition of wages 	as
"emoluments of value" 	gained 	in 	the course of employment. 	The
compensation 	contemplated 	in 	section 	44015 	is 	awarded 	for
"special 	services 	and 	superior 	accomplishment" 	and 	not 	subject
to 	the 	discretion 	of 	the 	employer 	but 	regulated 	by 	"rules 	and
regulations." 	We, 	therefore, 	find 	that 	the system of awards 	is
31

compensation for meritorious 	ideas, 	service, 	and
accomplishment. 	The achievement awards are, 	therefore, 	"wages"
within 	the 	meaning 	of 	the 	Act, 	and 	negotiable.11
We 	also 	find 	no merit 	in 	the District's 	supersession
argument. 	In our 	view, 	nothing 	in Education Code 	section 44015
is 	inconsistent 	with 	the 	participation of 	the 	exclusive
representative 	in 	establishing 	a 	system of 	awards 	for 	"special
service 	or 	superior 	accomplishment." 	In 	fact, 	the 	statute
permits 	the 	governing 	board 	to 	"adopt 	rules 	and 	regulations
with 	the 	aid 	and 	participation of 	employees." 	CSEA's 	proposal
merely 	indicates 	an 	interest 	in 	participating 	in 	the 	setting 	of
those 	"rules 	and 	regulations." 	We 	find 	that CSEA's 	legitimate
interest 	and 	request 	to 	participate 	is 	not 	precluded 	by 	the
requirements 	of Education Code 	section 	44015.
10.8 	Hold Harmless 	Clause; 	Whenever 	any 	civil 	or 	criminal
action 	is 	brought 	against 	an 	employee 	for 	any 	action or
omission 	arising 	out of or 	in 	the 	course 	of 	the 	duties 	of 	that
employee, 	the District 	agrees 	to 	pay 	the 	costs of defending
such action, 	including costs of counsel and of appeals, 	if any,
and 	shall 	hold 	harmless 	from 	and 	protect 	such 	employee 	from 	any
financial 	loss 	resulting 	therefrom.
Proposal 	10.8 	attempts 	to 	secure 	for 	the 	employees
protection 	from 	financial 	loss 	arising 	out of 	civil 	or 	criminal
actions 	initiated 	against 	employees 	because 	of 	actions 	or
omissions 	in 	the 	course 	of 	their 	duties.
11Because 	we 	find 	that 	the 	proposal concerns 	wages 	we
make 	no 	determination here 	as 	to 	the 	negotiability of 	the
subject of gifts.
32

This 	financial benefit 	is 	related 	to wages 	and, 	therefore,
meets 	the 	requirements 	of 	the 	first 	step of 	the Anaheim 	test.
Disputes 	as 	to economic 	benefits 	are 	best 	left 	to 	the bilateral
bargaining 	process, 	and 	no management 	prerogative 	is 	unduly
invaded 	by 	the 	bargaining 	requirement.
The District contends 	that 	the 	"Hold Harmless" 	clause 	is
superseded 	by 	the 	indemnity 	regulation 	of 	Government 	Code
section 825 	12 	and 	is 	nonnegotiable. 	While we 	agree 	with 	the
12Government 	Code 	section 	825 	provides:
If 	an employee or 	former 	employee of 	a
public 	entity 	requests 	the 	public 	entity 	to
defend 	him 	against 	any 	claims 	or 	action
against 	him 	for 	an 	injury 	arising 	out 	of 	an
act 	or 	omission occurring 	within 	the 	scope
of 	his 	employment 	as 	an employee of 	the
public 	entity 	and 	such 	request 	is made 	in
writing 	not less 	than 10 days before 	the day
of 	trial, 	and 	the 	employee or 	former
employee 	reasonably 	cooperates 	in 	good 	faith
in 	the defense of 	the claim or 	action, 	the
public 	entity 	shall 	pay 	any 	judgment 	based
thereon or 	any 	compromise 	or 	settlement 	of
the 	claim or 	action 	to which 	the 	public
entity 	has 	agreed.
If 	the 	public 	entity conducts 	the 	defense 	of
an 	employee or 	former 	employee 	against 	any
claim or 	action 	with 	his 	reasonable 	good
faith cooperation, 	the 	public 	entity 	shall
pay 	any 	judgment 	based 	thereon 	or 	any
compromise 	or 	settlement 	of 	the 	claim or
action 	to which 	the 	public 	entity has
agreed; 	but, 	where the public entity
conducted 	such 	defense 	pursuant 	to 	an
agreement 	with 	the 	employee 	or 	former
employee 	reserving 	the 	right 	of 	the 	public
entity not 	to pay 	the 	judgment, 	compromise
or 	settlement 	until 	it 	is 	established 	that
the 	injury 	arose 	out 	of 	an 	act or 	omission
33

District's 	assertion 	that 	Government 	Code 	section 	825
establishes 	an 	inflexible 	standard 	concerning 	a 	public 	entity's
obligation 	to 	indemnify employees, 	we disagree with 	its
assertion 	that 	proposal 	10.8 	is 	nonnegotiable on 	its 	face.
occurring 	within 	the 	scope 	of 	his 	employment
as 	an employee of 	the 	public entity, 	the
public 	entity 	is 	required 	to 	pay 	the
judgment, 	compromise or 	settlement only 	if
it 	is 	established 	that 	the 	injury arose 	out
of 	an 	act or 	omission occurring 	in 	the 	scope
of 	his 	employment 	as 	an employee 	of 	the
public 	entity.
Nothing 	in 	this 	section 	authorizes 	a 	public
entity 	to 	pay 	such 	part of 	a 	claim or
judgment 	as 	is 	for 	punitive or 	exemplary
damages.
If 	the 	provisions of 	this 	section are 	in
conflict 	with 	the 	provisions of 	a memorandum
of 	understanding 	reached 	pursuant 	to
Chapter 	12 	(commencing 	with 	section 	3560) 	of
Division 4 	of Title 	1, 	the memorandum of
understanding 	shall 	be 	controlling 	without
further 	legislative action, 	except that 	if
such 	provisions 	of 	a memorandum of
understanding 	require 	the 	expenditure 	of
funds, 	the provisions 	shall not become
effective 	unless 	approved 	by 	the 	Legislature
in 	the 	annual Budget Act.
Government 	Code 	section 	825 	provides 	for 	indemnification of
employees 	for 	any 	claims 	arising 	"from an 	act or 	omission
occurring 	within 	the 	scope 	of 	. . . 	employment." 	(Emphasis
added.) 	The Association's proposal, 	while largely paralleling
the 	rights 	established 	by Government Code 	section 825, 	requires
indemnification 	"for 	any action or 	omission arising 	out of, 	or
in 	the 	course of 	the duties of 	[an] 	employee." 	(Emphasis 	added.)
34

To 	the 	extent 	that 	the Association's 	proposal 	would 	extend 	the
employer's 	liability 	beyond 	that 	which 	is 	contemplated 	by
Government Code 	section 825, 	it 	is nonnegotiable. 	However, 	we
cannot 	say 	that, 	on 	its 	face, 	the Association's proposal would
enlarge 	the 	District's 	liability 	beyond 	that 	which 	the
Legislature 	intended 	in 	enacting Government Code 	section 825.
Therefore, 	we conclude 	that 	the proposal 	is ambiguous, 	and 	that
the District 	is 	obligated 	to 	seek 	clarification of 	the
Association's 	proposal with 	the 	intention of making 	it 	fully
consistent 	with 	rights 	and 	obligations 	established 	by
Government 	Code 	section 	825.13
Article XI. 	Rights of Bargaining Unit Upon Change 	in School
Districts
11.1 	Rights of Bargaining Unit: 	Any division, 	uniting,
unification, 	unionization, 	annexation, 	or merger or
deunification, 	or 	change 	of District boundaries 	or 	organization
shall 	not 	affect 	the 	rights 	of 	individual 	bargaining 	unit
employees 	under 	this Agreement, 	nor 	alter 	the 	exclusive
representation 	standing 	of 	CSEA. 	This Agreement 	shall 	be
binding 	upon 	any 	new 	governing 	board 	resulting 	therefrom, 	which
employs 	employees 	currently 	a 	part 	of 	the 	bargaining 	unit
during 	the 	term of 	this Agreement.
It 	is 	self-evident 	that 	this 	proposal 	is 	intended 	to
preserve 	the unit members' 	negotiated wages, 	hours 	and
conditions 	of 	employment 	and 	to preserve CSEA's 	status 	as
exclusive 	representative 	in 	the 	event 	one 	of 	the 	described
13 We 	note 	that 	section 	825 	specifically 	provides 	that
under 	the 	Higher 	Education Employer-Employee 	Relations Act
(HEERA) 	conflicts 	between 	the 	statute 	and memorandum of
understanding 	will 	be 	resolved 	in 	favor 	of 	the memorandum.
35

changes 	occurs 	in 	the 	employer 	entity. 	We 	find 	that 	element 	of
the Association's 	proposal, 	which requires 	a 	successor 	entity
to 	be 	bound 	by 	the 	terms 	of 	a 	pre-existing 	collective
bargaining 	agreement, 	nonnegotiable.
Whether 	or 	not 	the 	structural changes 	enumerated 	in 	the
proposal 	would 	result 	in 	the 	creation of 	a 	new and 	different
employer, 	each 	raises 	a 	strong 	possibility 	that 	the 	successor
will 	find 	it 	necessary 	to alter 	the 	structure 	of 	the
enterprise, 	reorganize 	its managerial and 	supervisory
configuration, 	and 	reorganize 	the work 	force 	and 	its 	tasks.
The 	opportunity 	to meet 	these 	requirements, 	which would 	be
essential 	to 	fulfilling 	the 	successor's mission, 	would 	be
significantly 	abridged 	by 	the 	obligation 	to 	accept 	contract
terms 	which 	were 	negotiated 	under 	substantially 	different
conditions. 	See NLRB v. 	Burns 	Int'l Detective Agency, 	Inc.
(1972) 	406 U.S. 	272. 	The District cannot be required to
negotiate 	on 	a 	proposal which 	would 	bind 	itself 	or 	its
successor 	and 	preclude 	either 	from 	exercising 	its 	essential
prerogatives. 	In 	so holding, 	we do not 	imply that 	a district,
as 	a 	consequence of 	some 	limited 	reorganization, 	may
automatically 	abort 	its 	current 	contractual 	obligations 	or
refuse 	to 	continue 	to 	recognize 	the 	existing 	exclusive
representative. 	The 	resolution of 	disputes 	arising 	out of 	such
actions must 	be 	based 	upon 	the 	particular 	factual 	circumstances
of 	the 	case.
36

However, 	Education Code 	section 4511814 	does 	require 	that
employees' wages, 	leaves 	and other 	benefits be 	preserved 	for 	a
period of 	time 	and 	in 	the manner 	prescribed 	by 	the Code. 	We,
therefore, 	conclude 	that, 	to 	the extent 	that 	the proposal 	seeks
to 	incorporate 	this section of 	the Education Code, 	it 	is 	a
proper 	subject 	for 	negotiations.
The 	proposal 	to 	require 	the 	continuation of CSEA's
exclusive 	representational 	status 	relies 	in 	part on a misplaced
concept of 	the 	current 	employer's 	authority. 	An organization's
right 	to act 	as 	exclusive 	representative 	is 	based 	on 	its
majority 	status 	among 	unit 	employees 	(see EERA section 	3544) ,
and 	CSEA's 	certification 	was 	predicated 	on 	its 	having 	achieved
majority 	status 	among 	bargaining 	unit members. 	Whether 	CSEA
could 	qualify 	to enjoy 	that 	status 	in 	the 	event 	of 	the 	creation
of 	a 	different 	employing 	entity can 	only 	be 	determined 	by 	its
status 	at 	that 	time. 	Because 	this 	proposal 	seeks 	to 	impose on
the 	present 	employer 	the 	obligation 	to 	negotiate 	concerning 	an
14Education 	Code 	section 	45118 	provides 	in part:
Any division, 	uniting, 	unionization,
annexation, merger, or change of school
district 	boundaries 	shall 	not 	affect 	the
rights 	of 	persons 	employed 	in 	positions 	not
requiring 	certification 	qualifications 	to
continue 	in employment 	for 	not 	less 	than 	two
years and 	to retain 	the 	salary, 	leaves and
other 	benefits 	which 	they 	would 	have 	had 	had
the 	reorganization not occurred, 	and 	in 	the
manner provided in this article. 	. 	. 	.
(Emphasis 	added.)
37

event whose 	nature 	is 	unpredictable, 	over which 	it has no
control, 	and 	concerning 	which 	it 	cannot 	in good 	faith 	commit
itself, 	we find 	it nonnegotiable.
In 	summary, 	we 	find 	that Article XI 	is 	negotiable only 	to
the 	extent 	that 	it 	seeks 	to 	incorporate 	in 	the 	agreement 	the
pertinent 	provisions 	of 	section 	45118 	of 	the Education Code.
Article XVII. 	Hiring
17.1 	Short-Term Employees;
17.1.1 	Persons 	hired 	for 	a 	specific 	temporary 	project 	of
limited 	duration which 	when 	completed 	shall 	no 	longer 	be
required 	shall 	be 	classed 	as 	short-term 	employees.
17.1.2 	The District 	shall 	notify CSEA 	in writing 	of 	any
proposed 	hiring 	of 	short-term employees 	and 	shall 	indicate 	the
project 	for 	which 	hired 	and 	the 	probable 	duration 	of 	employment
at 	least 	ten 	(10) 	days prior 	to 	the 	employment. 	CSEA shall be
notified 	in 	writing 	immediately 	of 	any 	change 	in 	employment
status, 	nature of project, 	or 	duration of project affecting
such 	employees.
17.1.3 	No 	employee 	shall 	fill 	a 	short-term position 	or
positions 	for 	more 	than 	126 	working 	days 	in any 	twelve 	(12)
consecutive months.
17.1.4 	No 	employee 	serving 	in 	a 	short-term position 	for 	126
days 	in any 	twelve 	(12) 	consecutive months 	shall be 	employed 	in
any 	capacity by 	the 	district 	for 	a period 	of 	six 	(6) 	months
after 	the 	completion of 	the 	126-day 	period.
17.1.5 	If 	a 	short-term 	position 	is 	utilized 	for 	more 	than 	126
days, 	the 	position 	shall become 	a bargaining 	unit 	position.
Although 	this 	proposal 	relates 	to wages and hours, 	the
employees 	for 	whom CSEA 	seeks 	to 	negotiate 	are 	outside 	the
bargaining 	unit which 	it 	represents. 	CSEA 	is 	certified 	as 	the
exclusive 	representative of 	the 	classified 	employees. 	Section
38

4510315 	of 	the 	Education 	Code 	expressly 	excludes 	"short-term"
employees 	from the classified 	service. 	Hence, 	these 	proposals
do 	not 	concern 	positions 	over 	which 	CSEA has 	authority 	to
negotiate. 	The Board, 	therefore, 	finds 	that proposals 	17.1.1
through 	17.1.5 	are 	nonnegotiable.
17.2 	Restricted Employees; 	A 	restricted 	employee 	shall 	become
a 	regular 	employee 	after 	completing 	126 	working 	days 	service
and 	fulfilling 	any 	requirements 	imposed 	on 	other 	persons
serving 	in 	the 	same 	class 	as 	regular 	employees. 	The District
shall 	provide 	restricted 	employees 	with 	an opportunity 	to meet
any 	requirements 	imposed 	on 	other 	persons 	serving 	in 	the 	same
class 	as 	regular 	employees. 	On becoming 	a 	regular 	employee 	the
restricted 	employee 	shall 	be 	considered 	a 	regular 	employee 	as
of 	the 	initial date of 	employment 	for 	the 	purpose of 	all
benefits 	of 	employment 	except 	bargaining 	unit 	seniority. 	The
bargaining 	unit 	seniority 	rights 	of 	such 	an 	employee 	shall
commence 	as 	of 	the 	127th 	work day 	in 	the 	position, 	and 	the
employee 	shall 	be 	immediately 	subject 	to 	the organizational
security 	provisions 	in 	this 	agreement.
Unlike 	the 	previous 	proposal, 	CSEA's 	proposal 	with 	respect
to 	restricted 	employees 	is 	not 	an 	attempt 	to negotiate 	on
behalf 	of 	employees 	which 	it does 	not 	represent. 	Education
Code 	section 	4510516 	explicitly 	provides 	that 	restricted
15Section 	45103 	provides, 	in part:
Substitute 	and 	short-term 	employees,
employed 	and 	paid 	for 	less 	than 	75 	percent
of 	a 	school year, 	shall 	not be 	part of 	the
classified 	services.
16Education 	Code 	section 45105 	provides, 	in 	relevant 	parti
Notwithstanding 	the 	provisions 	of
subdivision 	(a), 	if specifically funded
positions 	are 	restricted 	to employment 	of
persons 	in low-income groups, 	from
designated 	impoverished 	areas 	and 	other
criteria which 	restricts 	the 	privilege 	of
39

employees 	"shall be 	classified 	for 	all 	purposes" 	except 	in 	four
specifically enumerated 	situations. 	As 	noted 	above, 	CSEA
represents 	only 	classified 	employees.
all citizens 	to compete 	for 	employment 	in
such positions, 	all such positions shall, 	in
addition to the 	regular 	class 	title, 	be
classified 	as 	"restricted." 	Their 	selection
and 	retention 	shall 	be made 	on 	the 	same
basis 	as 	that of 	persons 	selected 	and
retained 	in positions 	that 	are 	a 	part 	of 	the
regular school program, 	. 	. 	.
(2) 	Persons 	employed 	in positions properly
classified 	as 	"restricted" 	shall 	be
classified 	employees 	for 	all 	purposes 	except:
(A) 	They 	shall 	not 	be 	accorded 	employment
permanency 	under 	Section 	45113 	or 	Section
45301 of this code, 	whichever 	is applicable.
(B) 	They 	shall 	not acquire 	seniority
credits 	for 	the 	purposes 	of Sections 	45298
and 45308 of 	this code or, 	in a district not
having 	the merit 	(civil 	service) 	system, 	for
the 	purposes 	of 	layoff 	for 	lack 	of 	work 	or
lack 	of 	funds 	as may 	be 	established 	by 	rule
of 	the 	governing 	board.
(C) 	The 	provisions of Sections 	45287 	and
45289 	shall 	not 	apply 	to 	"restricted"
employees.
(D) 	They 	shall 	not 	be eligible 	for
promotion 	into 	the 	regular 	classified
service or, 	in districts 	that have adopted
the merit 	system, 	shall 	not be 	subject 	to
the 	provisions of Section 45241, 	until 	they
have 	complied 	with 	the 	provisions of
subdivision (c).
The Association's 	proposal 	seeks 	to 	subject 	restricted
employees 	to 	both 	the 	seniority 	and 	organizational 	security
40
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

provisions 	of 	the 	agreement. 	The District does 	not deny 	that
both 	seniority 	and 	organizational 	security 	arrangements 	are
negotiable 	subjects of 	bargaining, 	but 	asserts 	that 	the
particular 	proposal 	submitted 	by CSEA conflicts 	with 	and 	is,
therefore, 	superseded 	by Education Code 	section 45105. 	We
disagree. 	In our view, 	CSEA's proposal does not, 	on its 	face,
fatally 	conflict 	with 	the Education Code. 	To 	the 	extent 	that
the 	proposal 	paraphrases 	Education Code 	subsection
45105(c),17 and 	attempts 	to 	secure 	retroactive 	seniority
accrual 	for 	purposes 	not 	precluded by 	the 	statute, 	such 	as wage
increases 	or 	health 	and welfare 	benefits, 	we 	find 	no conflict.
The Board, 	therefore, 	finds proposal 17.2 negotiable.
17.3 	Substitute Employees; 	An 	employee 	employed 	as 	a
substitute 	for 	more 	than 	100 working 	days 	in 	any 	six 	(6) 	month
period 	shall 	be 	deemed 	a 	regular 	employee 	on 	the 	first 	working
17Subsection 45105(c) 	provides:
(c) 	At any time, 	after completion of six
months of 	satisfactory service, 	a person
serving 	in a 	"restricted" 	position shall 	be
given 	the 	opportunity 	to 	take 	such
qualifying 	examinations 	as 	are 	required 	for
all other 	persons 	serving 	in 	the 	same 	class
in 	the 	regular 	classified 	service. 	If 	such
person 	satisfactorily 	completes 	the
qualifying 	examination, 	regardless of 	final
numerical 	listing on an eligibility 	list, 	he
shall be accorded 	full 	rights, 	benefits 	and
burdens 	of 	any 	other 	classified 	employee
serving 	in 	the 	regular 	classified 	service.
His 	service 	in 	the 	regular 	classified
service 	shall 	be 	counted 	from 	the 	original
date 	of 	employment 	in 	the 	"restricted"
position 	and 	shall 	continue 	even 	though 	he
continues 	to serve 	in a 	"restricted"
position.
41

day 	following 	the 	completion of 	the 	100th 	day of 	service 	and
such 	employee 	shall 	be 	immediately 	subject 	to 	the
organizational 	security provisions 	in 	this 	agreement.
This 	proposal, 	like 	the 	proposal 	regarding 	short-term
employees, 	is outside 	the scope of 	representation because 	it
seeks 	to 	negotiate 	for 	employees 	outside 	the 	classified 	unit.
Education Code 	section 45103 	provides, 	in relevant 	part:
Substitute 	and 	short-term 	employees,
employed 	and 	paid 	for 	less 	than 75 	percent
of a school year, 	shall not be part of 	the
classified 	service.
"Seventy-five 	percent 	of 	a 	school year"
means 	195 	working 	days 	. . . .
Proposal 	17.3 	seeks 	to define 	substitute 	employees working
more 	than 	100 	days 	as 	regular 	employees 	and 	subject 	to
organizational 	security provisions. 	However, 	the unit CSEA
represents 	is 	limited 	to 	the 	classified 	service. 	The 	employees
described 	by 	the Education Code 	are 	not 	a 	part of 	the
classified 	service 	and 	are 	therefore 	not 	within 	the 	bargaining
unit. 	Thus, 	this 	proposal 	is 	nonnegotiable because CSEA cannot
bargain on behalf 	of employees 	it 	does 	not 	represent.
17.4 	Student Employees; 	The District 	shall 	not 	employ any
students 	under 	any 	secondary 	school 	or 	college 	work-study
program, 	or 	in any state- or 	federally-funded work 	experience
program 	in 	any 	position 	that 	would 	directly or 	indirectly
affect 	the 	rights 	of CSEA or 	of 	any 	employee 	in 	the 	bargaining
unit.
This proposal 	is not, 	as 	the District contends, 	an attempt
to 	negotiate 	on behalf 	of 	student 	employees 	but 	seeks 	only 	to
preserve 	the work 	of existing 	bargaining 	unit members. 	It
42
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

thereby relates 	to wages, 	hours, 	and enumerated 	terms and
conditions of 	employment. 	On numerous occasions, 	the Board,
applying 	the Anaheim test, 	has 	held 	that 	the 	transfer 	of work
out of 	the 	bargaining 	unit 	is 	negotiable 	as 	a matter 	relating
to wages 	and hours 	(See, 	e.g., 	Rialto Unified School District
(4/30/82) 	PERB Decision No. 	209; 	Solano County Community
College District 	(6/30/82) 	PERB Decision No. 	219; 	Arcohe Union
Elementary School District 	(11/23/83) 	PERB Decision No. 	360;
Mt. 	San Antonio Community College District, 	PERB Decision
No. 	334, 	supra) . 	Consistent with established Board precedent,
we 	find 	proposal 	17.4 	negotiable.
17.5 	Distribution of Job 	Information; 	Upon 	initial 	employment
and 	each 	change 	in 	classification 	each 	affected 	employee 	in 	the
bargaining 	unit 	shall 	receive 	a copy of 	the 	applicable 	job
description, 	a 	specification of 	the monthly 	and 	hourly 	rates
applicable 	to his or her 	position, 	a 	statement of 	the duties of
the 	position, 	a 	statement of 	the 	employee's 	regular 	work 	site,
regularly assigned work shift, 	the hours 	per 	day, 	days 	per
week, 	and months 	per year.
Access 	to 	the 	type 	of 	information 	referred 	to 	in 	the
Association's proposal 	relates to wages, 	hours, 	and the
processing of employee 	grievances. 	Moreover, 	the 	settlement of
disputes 	with 	regard 	to 	access 	to 	this 	information 	is 	best 	left
to the 	parties 	to 	resolve. 	Finally, 	we can conceive of 	no
managerial 	prerogative 	with 	which 	employee 	access 	to 	this 	sort
of 	information would conflict. 	Indeed, 	in 	its 	brief before 	the
Board, 	the District 	does 	not 	contest 	the 	negotiability of 	this
proposal. 	Accordingly, 	we 	find 	proposal 	17.5 	negotiable.
43

Article XIX. 	Promotion
19.1 	First Consideration; 	Employees 	in 	the 	bargaining 	unit
shall 	be given 	first consideration 	in 	filling 	any 	job 	vacancy
which 	can 	be 	considered 	a 	promotion 	after 	the 	announcement 	of
the 	position 	vacancy.
19.2 	Posting 	of Notice;
19.2.1 	Notice 	of 	all 	job vacancies 	shall 	be 	posted 	on 	bulletin
boards 	in 	prominent 	locations 	at each District 	job 	site.
19.2.2 	The 	job 	vacancy 	notice 	shall 	remain posted 	for 	a period
of 	six 	(6) 	full working days, 	during which 	time employees may
file 	for 	the 	vacancy. 	Any 	employee who will 	be 	on 	leave 	or
layoff 	during 	the 	period of 	the 	posting 	shall 	be mailed 	a copy
of 	the 	notice by First Class Mail on 	the 	date 	the 	position 	is
posted.
19.3 	Notice Contents; 	The 	job vacancy 	notice 	shall 	include;
The 	job 	title, 	a brief 	description of 	the 	position and duties,
the minimum qualifications 	required 	for 	the 	position, 	the
assigned 	job 	site, 	the number of 	hours 	per day, 	regular
assigned work shift 	times, 	days per week, 	and months per 	year
assigned 	to the 	position, 	the 	salary range, 	and 	the deadline
for 	filing 	to 	fill 	the 	vacancy.
19.4 	Filing; 	Any 	employee 	in 	the 	bargaining 	unit may 	file 	for
the 	vacancy by 	submitting 	written 	notice 	to 	the 	personnel
department 	within 	the 	filing 	period. 	Any 	employee 	on 	leave 	or
vacation may 	authorize 	his/her 	Job 	Representative 	to 	file 	on
the 	employee's 	behalf.
19.5 	Certification of Applicants; 	Within 	five 	(5) 	days
following 	completion of 	the 	filing 	period, 	the 	personnel 	office
shall certify 	in writing 	the 	qualifications of 	applicants 	and
notify 	each 	applicant 	of 	his/her 	standing.
19.6 	Promotional Order; 	Any 	employee 	in 	the 	bargaining 	unit
who 	files 	for 	the 	vacancy 	during 	the 	posting 	period 	and meets
the 	minimum qualifications 	shall 	be 	promoted 	into 	the 	vacant
position. 	If 	two 	(2) 	or more 	employees who file meet 	the
minimum qualifications, 	the 	employee with 	the 	greatest
bargaining 	unit 	seniority 	shall 	be 	the 	one 	promoted. 	In 	the
event 	that 	two 	(2) 	or 	more 	employees have 	identical 	seniority,
the 	employee 	to 	fill 	the 	position 	shall 	be 	selected by 	lot.
44

Article 	XIX 	establishes 	the 	substantive 	and 	procedural 	rights
of 	bargaining 	unit members 	in 	the 	event 	that 	promotional
opportunities 	arise. 	The 	substantive 	and 	procedural 	rights 	of
employees 	to obtain 	promotions 	are 	related 	to virtually 	every
subject 	of 	bargaining 	enumerated 	in 	section 	3543.2. 	Promotional
opportunities are, 	of course, 	of extreme 	importance 	to both
employees 	and 	management, 	and 	the 	issues 	arising 	therefrom are
appropriately 	resolved 	through 	the 	collective 	bargaining 	process.
We 	also 	find 	that 	this 	proposal does 	not 	interfere 	with 	any
managerial 	prerogative.
However, 	to 	the 	extent 	that 	proposal 	19.1 would 	require 	the
employer 	to 	grant 	preference 	to 	unit members 	in 	filling 	jobs
outside of 	the unit, 	we 	find 	it overbroad. 	CSEA, 	as 	the
representative of 	a 	unit 	of classified 	employees, 	is 	precluded
from 	negotiating 	a 	preference 	for 	unit members 	as 	to vacancies
which 	occur 	outside 	of 	the 	unit which 	it 	represents.
Article XX. 	Classification, 	Reclassification, 	and Abolition of
Positions
In Alum Rock 	Union Elementary 	School 	District 	(6/27/83)
PERB Decision No. 	322, 	the Board 	found 	that 	an employer's
unilateral 	adoption 	and 	implementation 	of 	a 	new 	classification
plan 	involved 	numerous 	changes 	of matters 	within 	the 	scope 	of
representation. 	Applying 	the Anaheim test, 	the Board 	found 	the
following 	subjects 	within 	scope;
(1) 	the 	transfer 	of work from one
classification to another; 	(2) 	the retitling
45

of classifications; 	(3) 	all matters related
to 	salaries, 	including 	the 	salary 	ranges 	to
which 	newly 	created 	classifications 	are
assigned 	and 	any 	changes 	in 	salaries 	or
salary 	ranges 	of 	existing 	classifications;
(4) 	the 	reassignment of employees 	from
existing 	classifications 	to 	different 	or
newly created classifications; 	(5) 	the
allocation of 	positions 	to classifications;
(6) 	the grouping of classifications 	into
occupational groups; 	and 	(7) 	the effects, 	if
any, 	on 	terms 	and 	conditions 	of employment
of 	those 	classification 	decisions 	within 	the
District's exclusive 	prerogative, 	including
the 	creation 	of 	new classifications 	to
perform 	functions 	not 	previously 	performed,
the 	abolition of classifications 	to cease
engaging 	in 	functions 	previously 	performed,
and 	the 	revision of 	job 	specifications.
Our 	decision 	in Alum Rock 	is, 	to a 	large 	extent,
dispositive 	of 	the 	proposals 	raised 	in Article 	XX.
20.1 	Placement 	in Class; 	Every bargaining 	unit 	position 	shall
be placed 	in a class.
In Alum Rock, 	supra, 	we noted 	that Education Code
section 45103 	requires 	public 	school 	districts 	to classify 	all
employees 	and 	positions 	with 	certain designated 	exceptions, 	and
that Education Code 	subsection 45101(a) 	provides 	the 	following
definition of 	"classification" 	or 	"class":
"Classification" 	means 	that 	each 	position 	in
the 	classified 	service 	shall 	have 	a
designated 	title, 	a 	regular 	minimum of
assigned hours 	per day, 	days per week, 	and
months 	per 	year, 	a specific 	statement of 	the
duties 	required 	to 	be 	performed 	by 	the
employees 	in each 	such 	position, 	and 	the
regular 	monthly 	salary 	ranges 	for 	each 	such
position.
Thus, 	by definition, 	the classification of a position 	is
related 	to 	the 	wages 	and 	hours of 	an 	employee 	occupying 	that
position. 	In addition, 	the classification of a position 	is
46

also 	logically 	related 	to 	transfer 	and 	evaluation 	policies.
CSEA's 	attempt 	to 	require 	that 	each 	position 	be 	classified
invades 	no managerial 	prerogative 	since 	it merely 	reiterates
the 	District's 	existing 	obligation 	under 	Education Code 	section
45103. 	We, 	therefore, 	find this proposal to be negotiable.
20.2 	Classification 	and 	Reclassification 	Requirement:
Position classification 	and 	reclassification 	shall 	be 	subject
to mutual written agreement 	between 	the District 	and CSEA, 	and
any 	dispute 	shall be 	subject 	to 	the 	grievance 	procedure.
Either 	party may 	propose 	a 	reclassification at 	any 	time 	during
the 	life of 	this 	agreement 	for 	any 	position.
In Alum Rock, 	supra, 	at p. 	11, 	the Board determined 	that
the 	decision 	"to 	create 	a 	new classification 	to 	perform a
function 	not 	previously 	performed 	or 	to 	abolish 	a
classification 	and 	cease 	engaging 	in 	the 	activity 	previously
performed 	by employees 	in 	that classification" 	is 	a managerial
prerogative. 	Thus, 	to the extent that proposal 20.2 seeks 	to
require 	bilateral 	agreement 	about 	such 	clear 	managerial
decisions, 	it 	is beyond 	the scope of bargaining.
However, 	management 	remains 	obligated 	to negotiate 	both 	the
effects 	on matters 	within 	scope of 	those 	classification
decisions 	within 	its 	exclusive 	prerogative 	and 	"those 	aspects
of 	the 	creation or 	abolition of 	a 	classification which merely
transfer 	existing 	functions 	and 	duties 	from one 	classification
to another." 	Alum Rock, 	supra.
In 	addition, 	the 	reassignment of 	incumbent 	employees 	from
existing 	classifications 	to different 	or 	newly 	created
47

classifications 	is negotiable. 	Alum Rock, supra, 	p. 	18.. .
Inasmuch 	as 	"reclassification" 	is 	defined 	in Education Code
subsection 	45101(f) 	as 	"the 	upgrading of 	a position 	to 	a higher
classification 	as 	a 	result 	of 	the 	gradual 	increase 	of 	the
duties 	being 	performed by 	the 	incumbent 	in such 	position," 	it
is 	clearly 	a 	form of 	reassignment 	and 	is 	negotiable.
To 	the 	extent 	that 	proposal 	20.2 	would 	subject 	these
negotiable matters 	to written 	agreement 	and 	to 	the 	grievance
procedure, 	it 	is negotiable. 	In any event, 	as discussed,
supra, 	where 	a 	proposal 	contains 	both 	negotiable 	and
nonnegotiable elements, 	the District 	is obligated 	to meet 	for
the 	purpose 	of 	clarifying 	and 	attempting 	to narrow 	the 	proposal
to 	its 	in-scope elements.
20.3 	New Positions 	or Classes of Positions; 	All 	newly created
positions or 	classes of 	positions, 	unless 	specifically exempted
by 	law, 	shall 	be 	assigned 	to 	the 	bargaining unit 	if 	the 	job
descriptions 	describe 	duties 	performed 	by 	employees 	in 	the
bargaining 	unit 	or 	which 	by 	the 	nature 	of 	the 	duties 	should
reasonably 	be 	assigned 	to 	the 	bargaining 	unit.
Proposal 	20.3 	seeks 	to 	ensure 	that 	all 	newly 	created
positions or 	classes 	of 	positions 	shall 	be 	assigned 	to 	the
bargaining 	unit 	which 	CSEA 	currently 	represents 	if 	they
describe, 	or 	reasonably 	relate 	to duties 	performed 	by 	employees
in the bargaining unit. 	The proposal, 	thus, 	seeks to establish
a 	procedure 	for 	unit modification.
At 	the 	time 	at 	which 	this 	case 	arose, 	PERB 	regulations
established 	specific 	criteria 	and 	procedures 	for 	effecting 	unit
48

modification. 	CSEA urges 	that, 	because 	these 	regulations 	have
now 	been 	amended 	to 	permit Board 	approval 	of 	unit 	modifications
mutually 	agreed 	to by 	the 	parties 	(PERB 	regulation 32781,
effective February 14, 	1983), 	proposal 20.3 	is thereby rendered
negotiable.
Preliminarily, 	inasmuch 	as 	nothing 	in 	regulation 	32781
indicates 	that 	it 	is 	to have 	retroactive effect, 	our 	decision
in 	this 	case 	must 	be governed 	by 	the 	statute 	and 	regulations 	in
effect 	at 	the 	time 	this 	controversy 	arose. 	Simi Educators
Association 	(5/27/83) 	PERB Decision No. 	315; 	California Code of
Civil Procedure, 	section 3. 	Moreover, 	at all 	times 	from the
date 	of 	filing 	of 	this 	charge 	to 	the 	present, 	the Board 	itself
has 	been 	entrusted 	by 	the 	Legislature 	with 	exclusive 	authority
to 	approve 	appropriate 	units 	(subsection 3541.3(a)).
Contrary 	to CSEA's 	contentions, 	even 	assuming 	that
regulation 32781 was 	applicable 	to 	this case, 	the 	permissive
language 	of 	this 	section neither 	creates 	an obligation 	to
negotiate 	unit modification procedures, 	nor 	cedes 	to 	the
parties PERB's 	statutory authority 	in 	this 	area. 	Because CSEA
cannot 	negotiate 	a 	proposal which 	would 	circumvent 	the 	dictates
of EERA or PERB, 	proposal 	20.3 	is nonnegotiable. 	See,
generally, 	Allied Chemical Workers v. 	Pittsburgh Plate Glass
Co. 	(1972) 	404 U.S. 	157 	[78 LRRM 2974] 	and Douds v.
Longshoremen 	(2d Cir. 	1957) 	241 F.2d 	278 	[39 	LRRM 2388]
(holding 	that 	unit modification 	is 	not 	a mandatory 	subject of
bargaining 	under 	the National Labor Relations Act).
49

20.4 	Salary Placement of 	Reclassified Positions: 	When 	a
position or 	class of positions 	is 	reclassified, 	the 	position or
positions 	shall 	be 	placed 	on 	the 	salary 	schedule 	in a 	range
which will 	result 	in at 	least one 	(1) 	range 	increase 	above 	the
salary of 	the 	existing 	position or 	positions, 	but 	in no event
will 	the 	reclassification 	result 	in 	an 	increase 	of 	less 	than
five 	and one-half 	(5-1/2) 	percent.
This 	proposal constitutes 	a wage 	demand. 	The District does
not dispute 	that 	it 	is negotiable, 	and we 	so hold. 	Sonoma
County Board 	of Education v. 	PERB 	(1980) 	102 	Cal.App.3d 	689
[63 Cal.Rptr. 464]; Alum Rock, supra.
20.5 	Incumbent Rights; 	When 	an entire 	class 	of 	positions 	is
reclassified, 	the 	incumbents 	in 	the 	positions 	shall be entitled
to 	serve 	in 	the 	new positions. 	When a position or 	positions
less 	than the 	total class 	is or 	are 	reclassified, 	incumbents 	in
the 	positions who have been 	in the 	positions 	for 	one 	(1) 	year
or 	more 	shall 	be 	reallocated 	to 	the higher 	class. 	If 	an
incumbent 	in 	such 	a 	position has 	not 	served 	in 	that 	position
for 	one 	(1) 	year or more, 	then the 	new position shall be
considered 	a 	vacant 	position 	subject 	to 	the 	lateral 	transfer
and 	promotion 	provisions 	of 	this 	agreement.
This 	proposal 	seeks 	to 	establish 	the 	rights 	of 	incumbent
employees 	to be 	assigned 	to reclassified 	positions. 	It
directly 	relates 	to wages, 	transfer 	and 	reassignment 	policies
and, 	as we 	indicated 	in Alum Rock, 	such changes which merely
transfer 	existing 	functions 	and 	duties 	from one 	classification
to 	another 	involve 	no 	overriding 	managerial 	prerogative.
This 	proposal 	falls 	squarely 	within 	the 	holding 	of
Alum Rock 	that 	the 	employer 	has 	a duty 	to 	negotiate 	the
reassignment 	of 	incumbent 	employees 	from existing
classifications 	to 	different 	or 	newly 	created 	classifications
and 	is 	negotiable.
50

20.6 	Downward 	Adjustment; 	Any 	downward 	adjustment 	of 	any
position or 	class 	of 	positions 	shall be 	considered 	a demotion
and 	shall 	take 	place 	only 	as 	a 	result 	of 	following 	the 	layoff
or 	disciplinary 	procedures 	of 	this 	agreement.
This 	proposal 	defines 	downward 	adjustments 	as 	demotions 	and
subjects 	them 	to 	the 	same 	negotiated 	procedures 	used 	in 	layoffs
or 	disciplinary 	actions. 	The 	proposal clearly 	relates 	to wages
and 	reassignment 	procedures, 	both 	enumerated 	subjects 	within
scope. 	In 	large 	part, 	the 	proposal simply 	incorporates 	into
the 	negotiated 	agreement definitions 	set 	forth 	in 	section 	45101
of 	the Education Code. 	Thus, 	where 	a downward 	adjustment
occurs without 	the employee's voluntary consent, 	it 	is defined
by Education Code 	subsections 	45101(d) 	and 	(e) 	as 	a 	"demotion"
and 	as 	"disciplinary action," 	respectively. 	Where 	such
downward 	adjustment 	is 	voluntarily 	consented 	to 	by 	the
employee, 	in order 	to avoid 	interruption of 	employment 	by
layoff, 	it 	is defined by subsection 45101(g) 	as a 	"layoff 	for
lack 	of 	funds or 	layoff 	for 	lack 	of work."18
To 	the 	extent 	the 	proposal 	is 	consistent with 	these
Education Code 	requirements, 	it 	impinges on no managerial
prerogatives 	and 	is negotiable. 	Thus, 	the District had a duty
to meet 	with CSEA 	to clarify and 	refine 	the 	proposal 	to 	its
negotiable 	elements.
1 8 See 	discussion 	of 	this 	section of 	the Education Code,
infra, 	at p. 	56 et seq.
51

20.7 	Abolition 	of 	a Position or 	Class 	of Positions; 	If 	the
District 	proposes 	to 	abolish 	a 	position or 	class 	of 	positions,
it 	shall 	notify CSEA 	in writing 	and 	the 	parties 	shall meet 	and
negotiate. 	No 	position or 	class of 	positions 	shall 	be
abolished 	unless 	agreement 	has 	been 	reached 	with CSEA.
As 	indicated 	above, 	we 	found 	in Alum Rock, 	supra, 	that the
decision 	"to 	abolish 	a classification 	and 	cease 	engaging 	in 	the
activity 	previously 	performed 	by 	employees 	in 	that
classification" 	is a managerial prerogative. 	However, 	in this
proposal, 	the Association asks 	that 	it be 	provided 	with 	notice
of 	the decision 	to abolish 	a position 	or 	class of 	positions.
As 	with 	any 	nonnegotiable 	unilateral decision, 	the 	employer
remains 	obligated 	to 	provide 	notice 	and 	an 	opportunity 	to
negotiate 	as 	to 	the 	effects 	of 	that decision.
By 	its 	terms, 	the 	remainder 	of CSEA's 	proposal would
unlawfully 	restrict 	the District's 	exercise 	of 	its 	managerial
prerogative 	by 	requiring 	prior 	agreement 	with 	CSEA. 	That
portion of 	the proposal is, 	therefore, 	nonnegotiable.
CSEA belatedly concedes 	that 	the 	proposal 	is 	nonnegotiable,
but 	requests 	an 	opportunity 	to 	refine 	the 	proposal 	and 	limit 	it
to 	a 	request 	to 	negotiate 	the 	impact of 	the 	decision 	to abolish
a classification. 	While 	such 	proposal 	limited 	to 	the 	effects
on 	negotiable 	subjects 	would 	unquestionably 	be 	a 	proper 	subject
of 	bargaining, 	we cannot 	read 	the 	clear 	and 	unambiguous
language 	of 	proposal 	20.7 	to contain 	such 	a 	request. 	Except as
to 	that 	portion of 	the 	proposal 	which 	requires 	that CSEA be
notified of 	the District's 	intentions, 	we 	find 	the 	proposal
nonnegotiable.
52

Article 	XXI. 	Layoff 	and 	Reemployment
21.1 	Reason 	for 	Layoff; 	Layoff 	shall 	occur 	only 	for 	lack 	of
work 	or 	lack 	of 	funds. 	Lack 	of 	funds means 	that 	the 	district
cannot 	sustain 	a 	positive 	financial 	dollar 	balance 	with 	the
payment 	of 	one 	further 	month's 	anticipated 	payroll.
In Newman-Crows 	Landing 	Unified 	School 	District 	(6/30/82)
PERB Decision No. 	223, 	the Board 	held 	that 	the decision 	to 	lay
off classified 	employees 	is 	a managerial 	prerogative. 	See 	also
Kern Community College 	District 	(8/19/83) 	PERB 	Decision
No. 	337; 	Newark Unified School District 	(6/30/82) 	PERB Decision
No. 	225. 	However, management 	is obligated to negotiate 	the
effects 	of 	its 	layoff 	decision 	on matters 	within 	the 	scope 	of
representation. 	Newark Unified School District, 	supra; 	Kern
Community College District, 	supra; 	Oakland Unified School
District 	(11/2/81) 	PERB Decision No. 	178; 	Solano County
Community College District 	(6/30/82) 	PERB Decision No. 	219;
Oakland Unified School District, 	PERB Decision No. 	326, 	supra.
Proposal 	21.1 	provides 	that 	employees may 	be 	laid 	off 	only
for 	lack of 	funds or 	lack of work. 	In addition, 	it attempts 	to
establish 	a definition of 	"lack 	of 	funds." 	We 	find 	that 	this
proposal 	is 	partially 	negotiable 	and 	partially 	nonnegotiable.
Education Code 	section 45308 	provides, 	in relevant 	part,
"[c]lassified 	employees 	shall 	be 	subject 	to 	layoff 	for 	lack 	of
work or 	lack of 	funds." 	In our view, 	this provision of 	the
Education Code 	establishes 	an 	inflexible 	standard 	which
precludes 	the 	parties 	from 	negotiating 	a definition of 	the
53

statutory 	terms 	"lack 	of work" 	and 	"lack 	of 	funds." 	To 	the
extent 	the 	proposal 	attempts 	to 	establish 	such 	a definition
through 	the negotiating 	process, 	it 	is nonnegotiable.
However, 	there 	is 	no 	reason 	why 	the 	parties may not 	restate
the 	provisions 	of 	the Education 	Code 	which 	are 	otherwise
related 	to matters 	within 	the 	scope 	of 	representation. 	San
Mateo City School District et al. 	v. 	PERB, 	supra. 	Accordingly,
we 	find 	that 	portion of 	CSEA's proposal 	which 	seeks 	to provide
that 	an 	employee 	may 	be 	laid 	off 	only 	for 	the 	reasons 	set 	forth
in Education Code 	section 45308 	is 	negotiable.
21.2 	Notice 	of Layoff: 	Any 	layoffs 	under 	Section 	21.1 	shall
only 	take 	place 	effective 	as 	of 	the 	end 	of 	an 	academic 	year.
The 	District 	shall 	notify 	both 	CSEA 	and 	the 	affected 	employees
in 	writing 	no 	later 	than April 	15th of 	any planned 	layoffs.
The 	District 	and 	CSEA 	shall 	meet 	no 	later 	than May 	1st
following 	the 	receipt 	of 	any 	notices 	of 	layoff 	to 	review 	the
proposed 	layoffs 	and 	determine 	the 	order 	of 	layoff 	within 	the
provisions 	of 	this 	agreement. 	Any notice of 	layoffs 	shall
specify 	the 	reason 	for 	layoff 	and 	identify 	by 	name 	and
classification 	the 	employees 	designated 	for 	layoff. 	Failure 	to
give 	written 	notice 	under 	the 	provisions 	of 	this 	section 	shall
invalidate 	the 	lay off.
On 	its 	face, 	proposal 21.2 	seeks 	to negotiate 	the 	notice
and 	timing 	of 	layoff. 	However, 	when 	this proposal 	is carefully
examined, 	we 	find 	it 	to 	unlawfully 	intrude 	on 	the 	employer's
ability 	to 	layoff 	employees.
In Oakland Unified School District, 	PERB Decision No. 	178,
supra, 	and Oakland Unified School District, 	PERB Decision
No. 	326, 	supra, 	the Board examined 	layoff notice proposals 	in
54

light 	of 	Education 	Code 	section 	45117.19 	That 	code 	provision
establishes 	that, 	as 	a minimum, 	classified 	employees 	subject 	to
19Education 	Code 	section 	45117 	provides:
(a) 	When, 	as 	a 	result of 	the expiration of
a 	specially 	funded 	program, 	classified
positions 	must 	be 	eliminated 	at 	the 	end 	of
any 	school 	year, 	and 	classified 	employees
will 	be 	subject 	to 	layoff 	for 	lack 	of 	funds,
the 	employees 	to 	be 	laid 	off 	at 	the 	end 	of
the 	school 	year 	shall 	be 	given 	written
notice 	on 	or 	before 	May 	29 	informing 	them 	of
their 	layoff 	effective 	at 	the 	end 	of 	the
school 	year 	and 	of 	their 	displacement
rights, 	if any, 	and 	reemployment 	rights.
However, 	if 	the 	termination 	date 	of 	any
specially 	funded 	program 	is 	other 	than
June 	30, 	the 	notice 	shall 	be 	given 	not 	less
than 	30 	days 	prior 	to 	the 	effective 	date 	of
their 	layoff.
(b) 	When, 	as 	a 	result 	of 	a bona 	fide
reduction 	or 	elimination 	of 	the 	service
being 	performed 	by 	any 	department,
classified 	employees 	shall 	be 	subject 	to
layoff 	for 	lack 	of 	work, 	affected 	employees
shall 	be 	given 	notice 	of 	layoff 	not 	less
than 	30 	days 	prior 	to 	the 	effective 	date 	of
layoff, 	and 	informed 	of 	their 	displacement
rights, 	if 	any, 	and 	reemployment 	rights.
(c) 	Nothing 	herein 	provided 	shall 	preclude
a 	layoff 	for 	lack 	of 	funds 	in 	the 	event 	of
an 	actual 	and 	existing 	financial 	inability
to 	pay 	salaries 	of 	classified 	employees, 	nor
layoff 	for 	lack 	of 	work 	resulting 	from
causes 	not 	foreseeable 	or 	preventable 	by 	the
governing 	board, 	without 	the 	notice 	required
by subdivision 	(a) 	or 	(b).
This 	section 	shall 	apply 	to 	districts 	that
have 	adopted 	the 	merit 	system 	in 	the 	same
manner 	and 	effect 	as 	if 	it 	were 	a 	part 	of
Article 	6 	(commencing 	with 	Section 	45240).
55

layoff must 	be 	so advised 	not 	less 	than 	30 days 	prior 	to 	the
effective 	date of 	the 	layoff. 	In 	accordance 	with 	this
statutory 	language, 	the Board 	has 	found 	that 	the 	employee
organization may 	negotiate 	a 	notice 	period 	greater 	than 	30
days. 	However, 	the Board 	has 	also concluded 	that 	proposals
seeking 	to 	impose 	a 	deadline 	for 	layoffs 	are 	outside 	the 	scope
of 	representation 	because 	such 	proposals 	intrude 	on
management's 	right 	to effect 	layoffs 	for 	lack of 	work 	or 	funds.
In 	this case, 	by seeking 	to restrict 	layoffs 	to 	the 	end of
the 	academic 	year, 	the Association's 	proposal 	similarly
impinges 	on management's 	express 	statutory authority. 	The
April 	15 	notice 	deadline 	is 	tied 	to 	the 	impermissible 	end 	of
the 	year 	layoff 	restriction 	and 	has 	the 	same 	effect 	as 	imposing
a deadline. 	For 	this 	reason, 	the 	proposal cannot be 	read
merely 	to add 	to 	the 	30 	day 	notice 	period 	provided 	by 	the
Code. 	We conclude, 	therefore, 	that, 	while 	the Association may
negotiate 	the 	order 	of 	layoff 	and 	the 	content 	of 	the 	notices
provided, 	this 	proposal goes 	beyond 	that which may be
negotiated 	in 	accord with 	the Education Code.
21.3 	Reduction 	in Hours; 	Any 	reduction 	in 	regularly 	assigned
time 	shall 	be 	considered 	a 	layoff 	under 	the 	provisions 	of 	this
Article.
Proposal 	21.3 	provides 	that 	any 	reduction 	in hours 	will 	be
considered 	a layoff 	under 	the 	terms of 	the 	parties' 	agreement.
In North 	Sacramento School District 	(12/31/81) 	PERB
Decision No. 	193, 	the Board held 	that 	a 	reduction 	in hours may
56

be distinguished 	from 	a 	layoff 	and 	that, 	in 	the 	absence 	of a
superseding 	provision 	of 	the Education Code, 	a 	reduction 	in
hours 	is 	negotiable. 	See 	also Pittsburg Unified School
District 	(6/10/83) 	PERB Decision No. 	318, Azusa Unified School
District 	(12/30/83) 	PERB Decision No. 	374. 	Since 	the North
Sacramento School District 	was 	a 	"merit" 	school district 	within
the meaning 	of 	the Education Code 	(see Education Code 	section
45240 	et 	seq.), 	the Board 	found 	that 	it was unnecessary 	in that
case 	to 	reach 	the 	question 	of whether 	Education Code 	subsection
45101(g),2 0 which applies 	to non-merit school districts,
affects 	the 	negotiability of 	reductions 	in 	hours.
The Healdsburg 	Districts 	in 	this 	case 	are 	both 	non-merit
districts 	and 	assert 	that Education Code 	subsection 	45101(g)
preempts 	the 	right of 	employees 	to negotiate 	a 	reduction 	in
hours. 	We 	find 	that 	it does not.
Education Code subsection 45101(g) 	grants 	employees, 	who
voluntarily 	consent 	to a 	reduction 	in hours 	or 	reassignment 	in
lieu of 	layoff, 	the 	same 	procedural 	rights 	that 	they would be
afforded 	by 	the Education Code 	were 	they 	subject 	to 	a 	layoff
20Education Code 	subsection 45101(g) 	provides:
"Layoff 	for 	lack of 	funds or 	layoff 	for 	lack
of 	work" 	includes 	any 	reduction 	in hours 	of
employment or 	assignment 	to 	a class or 	grade
lower 	than 	that 	in which 	the 	employee 	has
permanence, 	voluntarily consented 	to by 	the
employee, 	in order 	to avoid 	interruption of
employment 	by 	layoff.
57

itself. 	We 	find 	that, 	because Education Code 	subsection
45101(g) 	is 	not 	cast 	in mandatory 	terms 	but makes 	reduction 	in
hours or 	reassignment 	in lieu of 	layoff 	voluntary, 	there 	is
nothing 	in 	that 	section which 	is 	inconsistent with 	the
employer's 	duty 	to 	negotiate 	those 	issues 	with 	the 	exclusive
representative. 	Under 	the 	doctrine 	of 	exclusivity, 	which 	lies
at 	the 	very heart 	of 	the 	collective 	bargaining 	process,
employees 	who 	choose 	to be 	represented 	in matters 	of 	employment
relations 	by 	an exclusive 	representative 	cede 	to 	that 	entity
the 	right 	to 	represent 	them on 	all matters 	within 	the 	scope 	of
representation. 	See Emporium Capwell Co. 	v. 	Western Addition
Community Org., 	supra, 	and cases cited therein. 	Thus, 	an
employer 	who wishes 	to 	offer 	employees 	the 	opportunity 	to 	be
reassigned 	or 	to have 	their 	hours 	reduced 	in 	lieu 	of 	layoff,
must 	seek 	consent 	from 	the 	exclusive 	representative 	through 	the
negotiation 	process.
Accordingly, 	we 	find 	that 	a reduction 	in hours 	is
negotiable, 	and 	that Education Code 	subsection 45101(g) 	does
not 	conflict 	with 	an employer's 	duty 	to 	negotiate 	that 	issue
with 	the 	exclusive 	representative. 	Since 	the Association's
proposal grants 	employees 	subject 	to a 	reduction 	in hours 	the
same 	contractual 	rights 	to which 	they 	are 	entitled 	in 	the 	event
of 	layoff, 	it 	is, 	in our view, 	negotiable to the extent the
Association's 	layoff 	proposals 	are 	negotiable.
58

21.4 	Order 	of Layoff; 	Any 	layoff 	shall 	be 	effected 	within 	a
class. 	The order 	of 	layoff 	shall be 	based 	on 	seniority within
that 	class 	and 	higher 	classes 	throughout 	the District. 	An
employee 	with 	the 	least 	seniority within 	the 	class plus 	higher
classes 	shall be 	laid 	off 	first. 	Seniority 	shall 	be 	based 	on
the 	number 	of 	hours 	an 	employee 	has 	been 	in a paid 	status 	in
the 	class 	plus 	higher 	classes 	or 	seniority acquired 	under
Section 21.7.
There 	is 	no question 	that 	the order 	in which employees 	are
laid off 	is, 	absent 	supersession considerations, 	negotiable
under 	the Anaheim 	test. 	Layoff 	of 	employees 	terminates 	the
employment relationship and, 	therefore, 	has a direct 	impact on
virtually 	every 	subject 	of 	bargaining 	enumerated 	in 	section
3543.2. 	It 	is 	self-evident 	that 	the 	termination of an
employment 	relationship 	through 	a 	layoff 	can, 	and 	very often
does, 	cause 	extreme 	conflict between 	employees 	and management.
Negotiations 	provide 	a 	forum 	in 	which management 	and 	labor 	can
mutually 	consider 	means 	of 	ameliorating 	conflict 	between 	the
parties.
We 	also 	find 	no 	support 	for 	the 	District's 	contention 	that
the Association's 	right 	to negotiate 	the order 	of 	layoffs 	is
superseded 	by Education 	Code 	section 	45308.21 	Because
2lEducation Code 	section 45308 	provides, 	in 	relevant part:
Whenever 	a 	classified 	employee 	is 	laid 	off,
the 	order 	of 	layoff within 	the 	class 	shall 	be
determined 	by length 	of 	service. 	The
employee 	who 	has 	been 	employed 	for 	the
shortest 	time 	in 	the class, 	plus higher
classes, 	shall be 	laid off 	first.
Reemployment 	shall 	be 	in 	the 	reverse order 	of
layoff.
59

proposal 	21.4 	closely 	parallels Education Code 	section 	45308,
there 	is nothing 	in 	the 	proposal which 	is 	inconsistent 	with 	the
seniority 	and 	reemployment 	rights 	established 	by 	the 	section
and we, 	therefore, 	find 	it negotiable.
21.5 	Bumping 	Rights; 	An 	employee 	laid 	off 	from his 	or 	her
present 	class may 	bump into 	the 	next 	lowest class 	in which 	the
employee 	has 	greatest 	seniority 	considering 	his/her 	seniority
in 	the 	lower 	class 	and 	any higher 	classes. 	The 	employee may
continue 	to bump into 	lower 	classes 	to 	avoid 	layoff.
21.6 	Layoff 	in Lieu of Bumping; 	An employee who elects 	a
layoff 	in 	lieu 	of 	bumping maintains 	his/her 	reemployment 	rights
under 	this 	agreement.
Proposals 	21.5 	and 	21.6 	establish 	bumping 	rights 	in 	the
event of 	layoff. 	The 	right of 	an 	employee 	to 	retain 	employment
and 	to 	bump other 	employees 	is 	directly 	related 	to 	the 	wages
and hours of employees. 	Since, 	as noted above, 	issues
surrounding 	layoffs 	are 	of 	extreme 	importance 	to both
management 	and 	labor, 	they 	are 	appropriately 	resolved 	through
the 	collective 	bargaining 	process. 	Finally, 	we 	find 	nothing 	in
this 	proposal 	which 	would 	impermissibly 	interfere 	with 	a
managerial prerogative. 	Therefore, 	we 	find 	that 	the
Association's bumping 	rights 	proposals 	are 	negotiable.
21.7 	Equal Seniority; 	If 	two 	(2) 	or more 	employees 	subject 	to
layoff 	have equal class 	seniority, 	the determination as 	to who
shall be 	laid off 	will 	be made 	on 	the 	basis 	of 	the 	greater
bargaining 	unit 	seniority or, 	if 	that be equal, 	the greater
hire date 	seniority, 	and 	if 	that be equal, 	the greater 	hire
date 	seniority, 	and 	if 	that be equal, 	then 	the determination
shall be made 	by 	lot.
Proposal 	21.7 	attempts 	to 	establish 	the order 	of 	layoffs 	of
employees 	with equal class 	seniority. 	For 	the 	same 	reasons
60

stated 	above with 	respect 	to proposal 21.4, 	this 	proposal bears
an obvious relationship to wages, 	hours, 	and other 	terms 	and
conditions 	of employment 	and, 	absent 	supersession
considerations, 	is negotiable.
Education Code 	section 45308, 	supra, 	which establishes 	that
classified 	employees must 	be 	laid 	off 	in order 	of 	class
seniority, 	is 	silent 	as 	to 	the method of determining 	the order
of 	layoff 	of 	employees 	with equal class 	seniority. 	The
Association's 	proposal 	seeks 	to establish 	such 	a method. 	Since
the 	proposal 	does 	not 	conflict 	with 	any 	provision of 	the
Education 	Code, 	we 	conclude 	that 	it 	is 	negotiable.22
21.8 	Reemployment Rights: 	Laid off 	persons 	are 	eligible 	for
reemployment 	in 	the 	class 	from which 	laid off 	for 	a 	thirty-nine
(39) 	month 	period 	and 	shall 	be 	reemployed 	in 	the 	reverse order
of 	layoff.
Their 	employment 	shall 	take 	precedence 	over 	any other 	type 	of
employment, 	defined or 	undefined 	in 	this 	agreement.
In 	addition, 	they 	shall 	have 	the 	right 	to apply 	for 	promotional
positions 	within 	the 	filing 	period 	specified 	in 	the Promotion
Article 	of 	this 	agreement 	and 	use 	their 	bargaining 	unit
seniority 	therein 	for 	a 	period of 	thirty-nine 	(39) 	months
following 	layoff. 	An employee 	on 	a 	reemployment 	list 	shall 	be
notified 	of 	promotional 	opportunities 	in 	accordance 	with 	the
provisions of 19.2.1.
2 2 We 	note 	that 	in Mt. 	Diablo Unified School District
(12/30/83) 	PERB Decision No. 	373, 	the majority of 	the Board
found 	that Education Code 	section 	44955, 	which applies 	to
certificated 	employees, 	superseded 	the 	right of 	employees 	to
negotiate 	the 	order 	of 	layoff 	of employees 	with 	the 	same 	date
of hire. 	Our 	decision 	in 	the 	present case 	is 	applicable 	to
classified 	employees 	only.
61

21.14 	Reemployment 	in Highest Class; 	Employees 	shall 	be
reemployed 	in 	the 	highest 	rated 	job classification 	available 	in
accordance 	with 	their 	class 	seniority. 	Employees 	who 	accept 	a
position 	lower 	than 	their 	highest 	former 	class 	shall 	retain
their 	original 	thirty-nine 	(39) 	month 	rights 	to 	the 	higher 	paid
position.
21.16 	Seniority During 	Involuntary Unpaid 	Status; 	Upon 	return
to work, 	all 	time during which an 	individual 	is 	in 	involuntary
unpaid 	status 	shall 	be 	counted 	for 	seniority purposes 	not 	to
exceed 	thirty-nine 	(39) 	months, 	except 	that during 	such 	time
the 	individual will not 	accrue vacation, 	sick 	leave, 	holidays
or 	other 	leave 	benefits.
Proposals 21.8, 	21.14, 	and 21.16 establish reemployment
rights of 	employees 	in 	the 	event of 	layoff. 	The 	right 	to
reemployment 	is 	related 	to 	virtually 	every 	subject 	of
bargaining 	set 	forth 	in 	section 	3543.2 	and 	is 	negotiable.
These 	proposals 	reiterate 	rights 	established 	by Education Code
section 4529823 	and are, 	therefore, 	negotiable.
23Education Code 	section 	45298 	provides:
Persons 	laid 	off 	because 	of 	lack of 	work 	or
lack 	of 	funds 	are 	eligible 	to 	reemployment
for 	a 	period 	of 	39 	months 	and 	shall 	be
reemployed 	in 	preference 	to 	new 	applicants.
In addition, 	such 	persons laid off have 	the
right 	to 	participate 	in 	promotional
examinations 	within 	the 	district 	during 	the
period of 39 months.
Employees 	who 	take 	voluntary demotions 	or
voluntary 	reductions 	in 	assigned 	time 	in
lieu of 	layoff or 	to 	remain 	in 	their 	present
positions 	rather 	than 	be 	reclassified 	or
reassigned, 	shall 	be 	granted 	the 	same 	rights
as 	persons 	laid off 	and 	shall 	retain
eligibility 	to 	be 	considered 	for
reemployment 	for 	an 	additional 	period 	of 	up
to 24 months; 	provided, 	that 	the same 	tests
of 	fitness 	under 	which 	they 	qualified 	for
62

21.9 	Voluntary Demotion or Voluntary Reduction 	in Hours;
Employees 	who 	take 	voluntary 	demotions 	or 	voluntary 	reductions
in 	assigned 	time 	in 	lieu of 	layoff 	shall be, 	at 	the employee's
option, 	returned 	to a position 	in 	their 	former 	class or 	to
positions 	with 	increased 	assigned 	time 	as 	vacancies 	become
available, 	and with 	no 	time 	limit, 	except 	that 	they shall be
ranked 	in 	accordance 	with 	their 	seniority 	on 	any 	valid
reemployment 	list.
Proposal 	21.9 	provides 	that 	employees 	who choose 	voluntary
demotion 	in 	lieu 	of 	layoff 	shall be 	reassigned 	to positions 	as
they 	become 	available 	based 	on 	existing 	reemployment 	or
seniority 	lists.
As 	noted 	above, 	Education Code 	subsection 45101(g) 	defines
"layoff" 	as 	including 	a 	voluntary demotion or 	reassignment 	in
lieu of 	layoff. 	We have 	found 	that, 	under 	the 	doctrine of
exclusivity, 	an exclusive 	representative may negotiate 	on
behalf 	of 	individual 	employees 	with 	respect 	to 	their 	rights
under 	subsection 45101(g). 	Since 	this proposal concerns
appointment 	to the 	class 	shall 	still 	apply.
The 	personnel 	commission 	shall make 	the
determination of 	the 	specific 	period
eligibility 	for 	reemployment 	on 	a
class-by-class basis.
Employees 	who 	take 	voluntary demotions 	or
voluntary 	reductions 	in 	assigned 	time 	in
lieu of 	layoff 	shall be, 	at 	the option of
the employee, 	returned 	to a position 	in
their 	former 	class or 	to positions 	with
increased 	assigned 	time 	as 	vacancies 	become
available, 	and without 	limitation of 	time,
but 	if 	there 	is 	a valid 	reemployment 	list
they 	shall 	be 	ranked on 	that 	list 	in
accordance 	with 	their 	proper 	seniority.
63

reassignments 	and 	increases 	in 	hours 	effectuated 	in 	accordance
with 	the provisions of Education Code subsection 45101(g), 	it
is negotiable.
21.10 	Retirement 	in Lieu of Layoff;
21.10.1 	Any 	employee 	in 	the 	bargaining 	unit may elect 	to
accept a 	service 	retirement 	in 	lieu of 	layoff, 	voluntary
demotion, 	or 	reduction 	in assigned 	time. 	Such 	employee 	shall
within 	ten 	(10) 	workdays prior 	to 	the 	effective date 	of 	the
proposed 	layoff 	complete 	and 	submit 	a 	form provided 	by 	the
District 	for 	this purpose.
21.10.2 	The 	employee 	shall 	then 	be 	placed 	on 	a 	thirty-nine
(39) 	month 	reemployment 	list 	in 	accordance 	with Section 	21.8 	of
this Article; 	however, 	the employee 	shall not be eligible 	for
reemployment 	during 	such 	other 	period 	of 	time 	as may 	be
specified 	by pertinent 	Government 	Code 	sections.
21.10.3 	The District 	agrees 	that 	when 	an offer 	of 	reemployment
is made 	to an eligible person 	retired 	under 	this Article, 	and
the District 	receives 	within 	ten 	(10) 	working days 	a 	written
acceptance of 	the 	offer, 	the position 	shall not 	be 	filled 	by
any other 	person, 	and 	the 	retired 	person 	shall be 	allowed
sufficient 	time 	to 	terminate 	his/her 	retired 	status.
21.10.4 	An 	employee 	subject 	to 	this 	Section 	who 	retires 	and 	is
eligible 	for 	reemployment 	and 	who 	declines 	an offer 	of
reemployment 	equal 	to 	that 	from which 	laid 	off 	shall 	be 	deemed
to 	be 	permanently 	retired.
21.10.5 	Any 	election 	to 	retire 	after 	being 	placed 	on 	a
reemployment 	list 	shall 	be 	retirement 	in 	lieu of 	layoff 	within
the meaning 	of 	this 	section.
Proposal 	21.10 	is 	an 	attempt 	to permit 	individual employees
targeted 	for 	layoff 	to elect 	retirement 	as 	an alternative 	to
layoff. 	Retirement 	is 	inextricably 	related 	to employees' wages
and 	hours. 	We 	find 	that 	the 	layoff 	alternative 	sought 	in
proposal 	21.10 	is 	a matter 	of critical concern 	to employees 	and
employers 	alike 	and 	is 	well 	suited 	to 	resolution 	through 	he
bilateral process.
64

We 	also 	find 	that 	this 	proposal 	poses 	no obstacle 	to 	the
employer's 	ability 	to exercise 	its managerial prerogatives. 	In
our view, 	proposals 	seeking alternatives to layoffs 	raised
during 	the 	course 	of 	regular 	contract 	negotiations 	do 	not
interfere with 	the 	as yet undecided 	layoff. 	Rather, 	proposals
presented 	at 	this 	juncture 	merely 	suggest 	options 	available 	to
particular 	employees 	should 	a 	future 	layoff 	decision 	be made.
This 	conclusion does 	not 	disturb 	the Board's 	prior 	rulings,
noted 	supra, 	which 	reserve 	the 	layoff 	decision 	to management
and 	which 	preclude 	the 	employee 	organization 	from 	presenting
proposals 	that 	seek 	alternatives 	to 	that 	decision after 	the
layoff decision has 	been made. 	In those 	situations, 	proposing
alternatives, 	by definition, 	encroaches on 	the layoff decision
itself. 	Here, 	however, 	CSEA's 	layoff alternative 	proposal was
not 	raised 	after 	or 	in 	response 	to 	a 	decision 	to 	lay 	off 	during
the contract term. 	It 	is, 	therefore, 	negotiable.
21.11 	Seniority Roster; 	The District 	shall maintain 	an
updated 	seniority 	roster 	indicating 	employees' 	class 	seniority,
bargaining 	unit 	seniority, 	and hire 	date 	seniority. 	In
addition 	to 	the 	requirements 	of 	Section 	5.1.5 	such 	rosters
shall 	be 	available 	to CSEA 	at 	any 	time 	upon demand.
Proposal 	21.11 	requires 	the 	District 	to maintain 	a
seniority 	roster 	which 	is 	available 	to 	the Association upon
demand. 	This 	proposal 	is 	plainly 	related 	to wages 	and 	hours
and, 	like 	the 	access 	to 	information 	proposals 	considered 	above,
is 	also 	related 	to 	the Association's 	ability to 	administer 	the
contract 	through 	the 	grievance 	procedure. 	We 	are 	aware of 	no
65

managerial 	prerogatives 	with 	which 	it 	would 	conflict.
Accordingly, 	we 	find Proposal 	21.11 	negotiable.
21.12 	Notification 	of Reemployment 	Opening; 	Any 	employee 	who
is 	laid 	off 	and 	is 	subsequently eligible 	for 	reemployment 	shall
be 	notified 	in writing 	by 	the District 	of 	an opening. 	Such
notice 	shall 	be 	sent 	by 	certified mail 	to 	the 	last 	address
given 	the District by 	the 	employee, 	and 	a 	copy 	shall be 	sent 	to
CSEA by 	the District, 	which 	shall 	acquit 	the District of 	its
notification 	responsibility.
Proposal 	21.12 	requires 	the District 	to 	notify 	laid-off
employees 	and CSEA of 	reemployment opportunities. 	We 	find 	that
this 	proposal 	is 	clearly 	related 	to wages 	and 	hours 	and 	does
not conflict with 	any managerial 	prerogatives. 	It 	is,
therefore, negotiable.
21.13 	Employee Notification 	to District; 	An employee 	shall
notify 	the District 	of his or 	her 	intent 	to accept or 	refuse
reemployment 	within 	ten 	(10) 	working 	days 	following 	receipt of
the 	reemployment 	notice. 	If 	the 	employee 	accepts 	reemployment,
the 	employee must 	report 	to work within 	thirty 	(30) 	working
days 	following 	receipt 	of 	the 	reemployment 	notice. 	An 	employee
given 	notice 	of 	reemployment 	need 	not 	accept 	the 	reemployment
to maintain 	the 	employee's 	eligibility 	on 	the 	reemployment
list, 	provided 	the 	employee 	notifies 	the District of 	refusal of
reemployment within 	ten 	(10) 	working 	days 	from 	receipt of 	the
reemployment 	notice.
Proposal 	21.13 	requires 	laid-off 	employees 	to 	notify 	the
District 	of 	their 	intent 	to 	accept 	or 	reject 	reemployment
within certain 	time 	periods. 	Again, 	we 	find 	that 	this 	proposal
relates 	directly 	to 	the 	wages 	and 	hours 	of 	employees 	and 	does
not 	interfere 	with 	any managerial 	prerogatives 	and 	is,
therefore, negotiable.
21.15 	Improper 	Layoff; 	Any 	employee who 	is 	improperly 	laid
off 	shall 	be 	reemployed 	immediately 	upon discovery of 	the 	error
and 	shall 	be 	reimbursed 	for 	all 	loss 	of 	salary 	and 	benefits.
66

Proposal 	21.15 	provides 	that 	an employee 	who 	is 	improperly
laid 	off 	shall 	be 	reemployed 	immediately 	and 	reimbursed 	for
lost 	wages 	and 	benefits. 	This 	proposal directly concerns 	wages
and 	is, 	therefore, 	within the scope of 	representation.
In 	so concluding, 	we 	distinguish our 	findings 	in Jefferson
School District 	(6/19/80) 	PERB Decision No. 	133, 	rev. 	den. 	1
Civ. 	50241, 	and 	in Mt. 	Diablo Unified School District, 	supra,
where, 	in each case, 	the union's proposals 	sought 	to secure a
fixed 	amount 	of 	compensation 	for 	withdrawn 	layoff 	notices.
Unlike 	those 	proposals 	which we 	viewed 	as 	unlawful 	penalties,
the 	instant 	proposal 	is 	directly 	tied 	to an 	employee's 	lost
salary 	and 	benefits.
Article XXII. 	Disciplinary Action
22.1 	Exclusive Procedure; 	Discipline 	shall 	be 	imposed 	upon
bargaining 	unit 	employees 	only 	pursuant 	to 	this Article.
22.2 	Disciplinary Procedure;
22.2.1 	Discipline 	shall 	be 	imposed 	on 	permanent 	employees 	of
the 	bargaining 	unit only 	for 	just 	cause. 	Disciplinary 	action
is 	deemed 	to be 	any 	action which deprives 	any 	employee 	in 	the
bargaining 	unit 	of 	any 	classification or 	incident 	of 	employment
or 	classification 	in which 	the 	employee 	has 	permanence 	and
includes but 	is 	not 	limited 	to dismissal, 	demotion, 	suspension,
reduction 	in hours 	or 	class 	or 	transfer 	or 	reassignment 	without
the 	employee's 	voluntary 	written 	consent.
22.2.2 	Except 	in 	those 	situations 	where 	an 	immediate
suspension 	is 	justified 	under 	the 	provisions of 	this Agreement,
an 	employee 	whose 	work 	or 	conduct 	is 	of 	such 	character 	as 	to
incur 	discipline 	shall 	first 	be 	specifically warned 	in 	writing
by 	the 	Supervisor. 	Such 	warning 	shall 	state 	the 	reasons
underlying 	any 	intention 	the 	Supervisor 	may 	have 	of
recommending 	any disciplinary 	action 	and 	a 	copy of 	the 	warning
shall be 	sent 	to 	the Job Representative. 	The Supervisor 	shall
give 	a 	reasonable 	period 	of 	advanced 	warning 	to 	permit 	the
67

employee 	to 	correct 	the 	deficiency 	without 	incurring
disciplinary 	action. 	An 	employee 	who 	has 	received 	such 	a
warning 	may 	appeal 	the 	warning 	notice 	through 	the 	grievance
procedure, 	and 	in addition, 	shall have 	the option of 	requesting
a 	lateral 	transfer 	under 	the 	provisions 	of 	this 	agreement.
22.2.3 	Discipline 	less 	than 	discharge 	will 	be 	undertaken 	for
corrective 	purposes 	only.
22.2.4 	The 	District 	shall 	not 	initiate 	any 	disciplinary 	action
for 	any cause 	alleged 	to 	have 	arisen 	prior 	to 	the 	employee
becoming 	permanent 	nor 	for 	any 	cause 	alleged 	to 	have 	arisen
more 	than 	one 	year 	preceding 	the 	date 	that 	the District 	files
the 	notice 	of 	disciplinary 	action.
22.2.5 	When 	the District 	seeks 	the 	imposition of 	any
disciplinary 	punishment, 	notice of 	such 	discipline 	shall 	be
made 	in 	writing 	and 	served 	in 	person or 	by 	registered 	or
certified mail 	upon 	the 	employee. 	The 	notice 	shall 	indicate
(1) 	the 	specific 	charges 	against 	the 	employee which 	shall
include 	times, 	dates, 	and location of chargeable actions or
omissions, 	(2) 	the 	penalty proposed, 	and 	(3) 	a statement of 	the
employee's 	right 	to make 	use 	of 	the 	grievance 	procedure 	to
dispute 	the 	charges 	or 	the 	proposed 	penalty. 	A copy of 	any
notice 	of 	discipline 	shall 	be 	delivered 	to 	the Job
Representative 	within 	twenty-four 	(24) 	hours 	after 	service 	on
the employee.
22.2.6 	The 	penalty 	proposed 	shall 	not 	be 	implemented 	until 	the
employee 	has 	exhausted 	his/her 	rights 	under 	the 	grievance
article.
22.2.7 	An 	employee may 	be 	relieved 	of 	duties without 	loss 	of
pay 	at 	the option of 	the District.
22.3 	Emergency 	Suspension;
22.3.1 	CSEA 	and 	the 	District 	recognize 	that 	emergency
situations 	can 	occur 	involving 	the 	health 	and 	welfare 	of
students 	or 	employees. 	If 	the 	employee's 	presence 	would 	lead
to a clear 	and 	present danger 	to the lives, 	safety, 	or health
of 	students 	or 	fellow employees 	the 	District may 	immediately
suspend with 	pay 	the employee 	for 	three 	(3) 	days. 	No
suspension without 	pay 	shall 	take 	effect 	until 	three 	(3)
working 	days 	after 	service 	of 	a 	notice 	of 	suspension.
22.3.2 	During 	the 	three 	(3) 	days, 	the District shall 	serve
notice 	and 	the 	statement 	of 	facts 	upon 	the 	employee, 	who shall
be 	entitled 	to 	respond 	to 	the 	factual 	contentions 	supporting
the 	emergency at Step 4 	of 	the 	grievance 	procedure.
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22.4 	Disciplinary Grievance;
22.4.1 	Any 	proposed 	discipline 	and 	any 	emergency 	suspension
shall 	be 	subject 	to 	the 	grievance 	procedure 	of 	this Agreement
and 	the 	employee, 	at his/her 	option, 	may commence 	review either
at 	Step l, 2, or 	3.
22.4.2 	An 	employee 	upon whom 	notice 	of 	discipline 	has 	been
served, 	may 	grieve 	any 	emergency 	suspension 	without 	pay 	at Step
3 	of 	the 	grievance 	procedure. 	The 	grievance meeting 	shall 	be
held 	and 	a response made 	within 	three 	(3) 	days of 	the
submission of 	the 	grievance. 	Notwithstanding 	any 	separate
grievance 	meeting 	held 	in 	accordance 	with 	the 	preceding
sentence, 	the 	employee may 	also grieve 	the 	emergency 	suspension
along 	with 	the 	notice 	of discipline.
22.5 	Disciplinary 	Settlements; 	A disciplinary 	grievance 	may
be 	settled 	at 	any 	time 	following 	the 	service of 	notice 	of
discipline. 	The 	terms 	of 	the 	settlement 	shall 	be 	reduced 	to
writing. 	An 	employee offered 	such 	a 	settlement 	shall 	be
granted 	a 	reasonable 	opportunity 	to 	have 	his/her 	Job
Representative 	review 	the 	proposed 	settlement 	before 	approving
the 	settlement 	in writing.
Discipline 	in General
In 	San Bernardino Unified School District 	(10/29/82) 	PERB
Decision No. 	255, 	the Board 	in applying 	the Anaheim 	test 	found
that 	both 	the 	procedures 	and 	the 	criteria 	for 	imposing
discipline 	were 	negotiable. 	This 	determination was 	reaffirmed
by 	the Board 	in Arvin Union School District 	(3/30/83) 	PERB
Decision No. 	300.
Article 	XXII 	establishes 	a 	disciplinary 	procedure 	and 	a
requirement 	that 	there 	be 	"good 	cause" 	for 	the 	imposition of
discipline. 	We 	find 	nothing 	in 	these 	proposals which would, 	as
a 	general 	proposition, 	significantly 	abridge 	the District's
69

managerial 	prerogatives.24 We, 	therefore, 	find 	them
negotiable.
Arbitration 	of 	Disciplinary Matters
Article 	XXIII 	outlines 	a 	four 	step grievance 	procedure
culminating 	in 	"final and 	binding 	arbitration."25 	Articles
XXII 	and 	XXIII, 	read 	together, 	require binding arbitration of
all 	disciplinary disputes 	arising 	from 	the 	agreement. 	Because
we 	have 	determined 	above 	that 	the 	central 	aspects 	of CSEA's
proposed 	"Disciplinary Action" 	proposal are negotiable, 	it 	is
necessary 	to 	resolve 	the 	specific 	question 	of 	whether
arbitration 	of 	disciplinary disputes 	is 	negotiable.
The District 	does 	not 	argue 	that 	common 	law 	principles,
per 	se, 	bar 	school boards 	from entering 	into agreements 	whereby
intended 	disciplinary 	actions 	would 	be 	subject 	to 	final 	and
binding 	review, 	pursuant 	to contractual grievance 	procedures,
by 	a 	neutral 	arbitrator.26 Rather, 	the 	District's only
2 4 We 	disagree 	with 	the 	conclusion 	reached 	in Chairperson
Gluck's 	dissenting 	opinion 	finding 	that 	portion 	of 	proposal
22.2.2 	permitting 	employees 	to 	request 	a 	transfer 	when
disciplinary 	action 	is 	contemplated 	to 	be 	nonnegotiable. 	In
our 	view, 	since 	transfers 	are 	expressly 	enumerated 	in 	section
3543.2, 	that 	portion of 	the Association's proposal 	is negotiable.
25This 	proposal 	is 	not 	in dispute 	except 	insofar 	as 	it
applies 	to binding 	arbitration of 	disciplinary matters.
26In 	any 	event, 	any 	such 	argument must 	be 	rejected.
Just 	as 	the 	doctrine 	of 	sovereign 	immunity
has 	been 	abandoned 	in many 	fields of 	law, 	so
the 	principle 	of 	nondelegability 	of
decision-making 	by 	public management 	in 	the
70

argument 	against 	the 	negotiability 	of 	disciplinary 	arbitration
arises 	from 	its 	interpretation 	of Education Code 	section
45113. 	Education Code 	section 45113 	provides:
case 	of 	employee 	relations 	has 	yielded 	to
the 	sounder 	and 	more 	reasonable 	proposition
that 	the 	authority 	and 	duty 	to 	bargain
collectively 	includes 	the 	power 	voluntarily
to 	agree 	to 	third-party arbitration 	in
accordance 	with 	standards mutually
acceptable 	to 	the 	bargaining 	parties.
Moreover, 	it 	is 	generally conceded 	that
civil 	service 	regulations, 	even when
conscientiously applied, 	are 	not 	an 	adequate
substitute 	for 	a 	grievance 	and 	arbitration
procedure hand tailored by 	the 	parties 	to
meet 	their 	particular 	needs. 	(Cal. 	Assem.
Advisory Council, 	Final Rep. 	(March 15,
1973) 	["Aaron Commission Report"],
pp. 	177-178, discussed infra.)
Also see, 	e.g., 	Fire Fighters Union v. 	City of Vallejo 	(1974)
12 Cal.3d 608; 	Taylor v. 	Crane 	(1979) 	24 Cal.3d 	442
[155 Cal.Rptr. 	695]-; 	Kugler v. Yocum (1968) 	69 Cal.2d 371,
381-382; Education Code section 35160; 	60 Ops.Atty.Gen. 	177,
178-180 	(1977); 	60 Ops.Atty.Gen. 	206 	(1977); 	63 Ops.Atty.Gen.
851 	(1980).
The 	governing 	board 	of 	a 	school 	district
shall 	prescribe 	written 	rules 	and
regulations, 	governing 	the 	personnel
management of 	the classified 	service, 	which
shall 	be 	printed 	and 	made 	available 	to
employees 	in the classified 	service, 	the
public, 	and 	those 	concerned with 	the
administration of 	this 	section, 	whereby 	such
employees 	are 	designated 	as 	permanent
employees 	of 	the 	district 	after 	serving 	a
prescribed 	period 	of 	probation 	which 	shall
not 	exceed 	one 	year.
Any 	employee 	designated 	as 	a 	permanent
employee 	shall 	be 	subject 	to disciplmary
action 	only 	for 	cause 	as 	prescribed 	by 	rule
or 	regulation of 	the 	governing 	board, 	but
the 	governing 	board's 	determination of 	the
71

sufficiency 	of 	cause 	for 	disciplinary 	action
shall 	be 	conclusive.27
The 	governing 	board 	shall 	adopt 	rules 	of
procedure 	for 	disciplinary 	proceedings 	which
shall 	contain 	a 	provision 	for 	informing 	the
employee 	by written 	notice 	of 	the 	specific
charges 	against him, 	a 	statement of his
right 	to a hearing on such charges, 	and 	the
time 	within 	which 	such 	hearing may 	be
requested 	which 	shall 	be 	not 	less 	than 	five
days 	after 	service of 	the 	notice 	to 	the
employee, 	and a card or 	paper, 	the signing
and 	filing 	of 	which 	shall 	constitute 	a
demand 	for 	hearing, 	and 	a denial of 	the
charges. 	The 	burden of proof 	shall 	remain
with 	the governing 	board, 	and 	any 	rule or
regulation 	to 	the 	contrary 	shall 	be 	void.
No disciplinary 	action 	shall 	be 	taken 	for
any 	cause 	which 	arose 	prior 	to 	the
employee's becoming 	permanent, 	nor 	for 	any
cause 	which 	arose more 	than 	two 	years
preceding 	the 	date 	of 	the 	filing 	of 	the
notice 	of 	cause 	unless 	such 	cause 	was
concealed 	or 	not 	disclosed 	by 	such 	employee
when 	it 	could 	reasonably 	be 	assumed 	that 	the
employee 	should 	have 	disclosed 	the 	facts 	to
the 	employing 	district.
This 	section 	shall 	apply only 	to 	districts
not 	incorporating 	the merit 	system 	as
outlined 	in Article 	6 	(commencing 	with
Section 45240) 	of 	this chapter. 	(Emphasis
added.)
The District argues 	that, 	under 	this 	statute, 	school
employers 	have 	"conclusive 	authority" 	to determine 	the
27"Cause" 	relating 	to discipline
. 	. 	. means those grounds for discipline, or
offenses, 	enumerated 	in the 	law or 	the
written 	rules 	of 	a 	public 	school 	employer.
No 	disciplinary 	action may 	be 	maintained 	for
any 	"cause" 	other 	than 	as 	defined 	herein.
(Education Code 	subsection 	45101(h).)
72

sufficiency of cause 	for 	discipline. 	In 	the District's 	view,
the 	statutory 	term 	"conclusive" 	means 	"non-delegable." 	Thus,
the District 	argues, 	a proposal calling 	for 	arbitration of
disciplinary 	disputes 	would 	conflict 	with 	Education 	Code
section 	45113 	and 	is 	nonnegotiable 	under 	supersession
principles.
In our 	view, 	the District's 	interpretation 	fails 	to
"harmonize" 	Education Code 	section 45113 	with 	the EERA.
San Mateo City School District et 	al. 	v. 	PERB, 	supra. 	As will
be 	shown 	below, 	we 	find 	that 	the Legislature 	intended EERA to
permit 	negotiation 	of 	binding 	arbitration 	procedures 	with
respect 	to all 	negotiable matters, 	and 	that 	the Legislature-
could, 	and would, 	have 	expressly 	limited 	arbitration 	under
section 	3548.5 	to nondisciplinary matters 	had 	it 	so 	intended.
Our 	evaluation 	of 	the 	development 	of 	disciplinary 	arbitration
and 	collective 	bargaining, 	the 	legal 	limitations of 	school
districts' 	general authority during 	the period 	in question, 	and
judicial 	interpretation 	of 	similar 	language 	in 	a 	parallel
Education Code 	section 	show 	that 	section 	45113 	was 	not 	intended
by 	the 	Legislature 	to 	address—much 	less 	prohibit—delegation
of governing 	board disciplinary 	authority. 	Hence, 	inasmuch 	as
disciplinary 	procedures 	are 	within 	the 	scope 	of 	representation
under 	the Board's 	Anaheim 	test 	(San Bernardino Unified 	School
District, supra; Arvin Union School District, supra), a
73

proposal 	calling 	for 	arbitration 	of 	disputes 	arising 	from 	such
procedures 	is negotiable.
The 	EERA 	itself 	explicitly 	permits 	binding 	arbitration 	of
contractual grievances. 	Section 3548.5 	provides:
A public 	school 	employer 	and 	an 	exclusive
representative 	who 	enter 	into 	a 	written
agreement 	covering 	matters 	within 	the 	scope
of 	representation may 	include 	in 	the
agreement 	procedures 	for 	final 	and 	binding
arbitration of 	such 	disputes 	as 	may 	arise
involving 	the 	interpretation, 	application or
violation 	of 	the 	agreement.
This 	section 	imposes no limitation on parties' 	ability 	to
agree 	to 	final 	and 	binding 	arbitration on matters 	specified 	in
their 	agreements, 	and 	it 	certainly does 	not 	expressly prohibit
binding 	arbitration over 	discipline. 	Instead, 	the 	section
plainly 	specifies 	that 	parties 	may 	negotiate 	arbitration
clauses 	over 	all 	the 	negotiable matters 	that 	have 	been 	covered
within 	their 	collective 	agreements.
There 	can 	be 	little 	question 	about 	the 	Legislature's
reasons 	for 	providing 	for 	binding 	arbitration 	of 	contractual
disputes. 	In 1972, 	the Legislature 	created 	the Assembly
Advisory 	Council 	on Public Employee 	Relations 	(Aaron
Commission) 	to 	formulate 	recommendations 	"for 	establishing 	an
appropriate 	framework 	within 	which 	disputes 	can 	be 	settled
between public 	jurisdictions 	and 	their 	employees." 	(Assem.
Res. 	No. 	51 	(1972 Reg. Sess).) 	In March of 1973, 	the
Legislature 	received 	the Aaron Commission Report 	which, 	inter
alia, 	summarized 	why 	binding 	arbitration of 	contractual
74

disputes 	is 	an 	imperative 	component of 	the 	collective
negotiations model. 	Initially, 	the 	report discussed 	the
necessity 	of 	contractually-prescribed 	grievance 	procedures:
Grievance 	handling 	... 	is 	an 	integral part
of 	the bilateral relationship. 	... 	[T]he
scope 	of 	the 	negotiated 	grievance 	procedure
is 	inseparable 	from 	the 	scope 	of 	the
collective 	bargaining 	agreement 	and 	of 	the
bilateral 	decision-making 	process. 	Aaron
Commission Report, p. 	103.
The 	report 	then 	dealt 	specifically 	with 	the 	question 	of 	binding
arbitration, 	noting 	that 	arbitration of contractual disputes 	is
. 	. 	. 	the established method of 	resolving
disputes 	over 	the 	meaning 	of 	collective
agreements 	in 	the private 	sector. 	This
process 	has 	commended 	itself 	to management
and 	labor 	by 	reason 	of 	its 	relative 	speed
and 	low cost, 	plus 	the 	expertise which
experienced 	arbitrators 	are 	able 	to bring 	to
bear 	on 	the 	resolution 	of 	such 	problems.
(Aaron Commission Report, ante, 	fn. 	1, 	at
pp. 	177-178.)
Moreover, 	in 	1965, 	when the Education Code was 	amended 	to
add 	the 	language 	on 	which 	the 	District's 	argument 	exclusively
relies, 	i.e., 	that governing 	board 	determinations of 	the
sufficiency 	of 	cause 	of 	discipline 	shall 	be 	"conclusive,"28
public 	school 	employees 	had 	extremely 	limited 	representational
rights, 	and 	their 	employers' 	ability 	to seek bilateral
resolution 	of 	employment 	concerns 	was 	similarly 	circumscribed.
28section 	45113 	derived 	from 	former 	Education 	Code
section 13583, 	which was enacted 	in 1959. 	In 1965
section 	13583 	was 	repealed 	and 	reenacted 	to contain 	the
disputed 	language.
75

During 	that 	year, 	public 	school 	employment 	relations 	were
removed 	from 	coverage 	under 	the George Brown Act 	(Government
Code 	section 	3500 	et 	seq.) 	and 	were 	simultaneously 	placed 	under
the 	newly-enacted 	regulatory 	scheme 	of 	the Winton Act
(Education Code 	sections 	13080-13089, 	repealed Stats. 	1975,
Ch. 961, 	section 1, operative July 1, 1976).
The Winton Act 	did 	not 	embody 	the 	concepts 	of 	collective
bargaining 	and 	exclusive 	representation. 	Significantly, 	public
school employers were precluded, 	under 	the Winton Act, 	from
entering 	into 	binding 	agreements 	with 	labor 	organizations
representing 	school employees29 	and, 	thus, 	could not enter
into 	agreements 	providing 	for 	binding 	arbitration of 	disputes
arising 	from 	collective 	agreements.30
29See 	San Mateo City School District 	et 	al v. 	PERB, 	supra
at p. 	860-861; 	City and County of San Francisco v. 	Cooper,
supra, 	at pp. 	925-930, 	932; 	San Juan Teachers Association v.
San Juan Unified School District, 	supra; 	Grasko v. 	Los Angeles
City Board of Education 	(1973) 	31 Cal.App.3d 290, 	300; 	Grodin,
Public Employee Bargaining 	in California; 	The
Meyers-Milias-Brown Act 	in the Courts, 	supra, 	23 Hastings Law
Journal 757; 	Grodin, 	California Public Employee Bargaining
Revisited; 	The MMB Act 	in 	the Appellate Courts, 	California
Public Employee Relations No. 	21 	(June 1974), p. 	13).
30In 	the 	collective 	bargaining 	setting, 	the 	legality of
delegation of 	public 	sector 	decisional 	authority 	to 	labor
arbitrators 	became 	a matter 	of 	national 	interest 	only 	in
1967—two 	years 	after 	the 	amendment 	of 	section 	45113—when 	the
Wisconsin Supreme 	Court 	decided State, 	County 	& Municipal
Employees, 	Local 	1226, 	Rhinelander City Employees v. 	City of
Rhinelander 	(1967) 	35 Wis.2d 	209 	[151 N.W.2d 30,
65 LRRM 2793]. 	In 	that case, 	the Wisconsin Court held 	that
arbitration 	of 	a discharge 	dispute 	was 	not 	an 	"unlawful
infringement upon the 	. 	. 	. 	power of 	the city. 	. . . " 	Id. 	at
76

2797. 	One year 	later, 	the California Supreme Court 	issued 	the
landmark 	case of Kugler v. 	Yocum, 	supra, 	69 	Cal.2d 	371,
381-382. 	While 	Kugler did 	not 	address 	the 	specific question of
delegability 	in 	the 	labor 	relations 	arena, 	it did 	hold 	that
delegation of municipal 	corporation power 	is proper 	so 	long 	as
the 	legislative 	body 	retains 	the 	power 	to make 	decisions on
fundamental policy, 	and 	so 	long 	as 	sufficient 	safeguards
prevent 	abuse of 	the delegated authority. 	(Cf. 	Bagley v. 	City
of Manhattan Beach 	(1976) 	18 	Cal.3d 	(general law city cannot
delegate 	the 	policy making 	power 	to 	set 	salaries 	to an
arbitrator).) 	It was more 	than 	a decade 	later 	that 	the
California Supreme Court decided Taylor v. 	Crane, 	supra, 	which
held, 	inter 	alia, 	that 	a city may 	lawfully delegate 	review of
disciplinary 	authority 	to 	an 	arbitrator.
Furthermore, 	until 	1976,31 school districts' authority
lawfully 	to 	act 	was 	already exceedingly 	limited. 	School
districts were 	permitted 	to 	act 	only 	in 	areas 	which 	were
specifically 	authorized 	by 	the Legislature. 	Grasko 	v.
Los Angeles City Board of Education, 	supra, 	at pp. 	300-301, 	and
cases cited therein; 65 Ops.Atty.Gen. 	326, 	327, 	citing Grasko,
supra. 	Accordingly, 	delegation of 	school district disciplinary
authority 	to 	a 	third 	party would 	have 	been 	unlawful 	at 	that
time, 	inasmuch 	as 	it was 	neither 	expressly nor 	by necessary
implication 	authorized 	by 	statute.
31In 	response 	to voter 	approval of Proposition 	5 	in 	1972,
the Legislature 	enacted Education Code 	section 35160, 	which
provides:
On or 	after January 1, 	1976, 	the governing
board 	of 	any 	school district 	may 	initiate
and carry on any program, 	activity, 	or may
otherwise 	act 	in any manner 	which 	is 	not 	in
conflict with or 	inconsistent with, 	or
preempted 	by, 	any law and which 	is 	not 	in
conflict with 	the 	purposes 	for 	which 	school
districts 	are 	established.
77

In 	light of 	this history, 	a 	statutory provision 	in 1965
prohibiting 	disciplinary 	arbitration 	would 	have 	been 	anomalous
and 	unnecessary. 	Further, 	had 	the Legislature—out of 	an
abundance 	of 	caution 	and 	concern over 	the 	status 	of 	the 	law 	in
this 	area—wished 	to 	proclaim 	the 	prohibition 	posited 	by 	the
District, 	it would 	have done 	so expressly and 	unequivocally
within 	the Winton Act 	itself.
Rather, 	we believe 	the Legislature's 	utilization of 	the
term 	"conclusive" 	in Education Code 	section 	45113 	was 	intended
for 	the 	sole 	purpose 	of 	limiting 	judicial 	review of governing
board 	determinations 	on 	the 	"sufficiency of 	cause 	for
discipline." 	This 	conclusion 	is 	borne 	out by a 	review of
California 	Supreme 	Court 	decisions 	interpreting 	similar
language 	in Education Code 	section 	44949.32 	Like 	section
45113, 	section 44949 	prescribes 	procedures 	to be 	followed 	by
school districts 	in establishing 	disciplinary policies, 	but
extends 	certain 	procedural guarantees 	to 	probationary
certificated 	employees. 	Education Code 	section 	44949 	provides,
in relevant part:
32Historically, 	this 	section 	derived 	from 	former 	Education
Code 	sections 	13443 	and 13444, 	which were 	enacted 	in 	1959 	and
amended 	in 1961. 	Section 	13444 was 	repealed 	in 1965 	and
incorporated 	in 	pertinent 	part 	into 	section 	13443. 	Section
13443 	was 	further 	amended 	without 	substantive 	change 	as 	to 	its
relevant language 	in 1965, 	1970, 	1971 and 1973 	prior 	to being
recodified 	as Education Code 	section 44949 	in 	1976. 	The
critical 	language 	concerning 	"conclusiveness" 	as 	to 	"sufficiency
of 	cause" 	for 	discipline has 	not been altered 	since 	the
Legislature originally enacted 	these 	provisions 	in 	1959.
78

(d) 	The 	governing board's determination not
to 	reemploy 	a 	probationary 	employee 	for 	the
ensuing 	school 	year 	shall 	be 	for 	cause
only. 	The 	determination 	of 	the 	governing
board 	as 	to 	the 	sufficiency of 	the 	cause
pursuant 	to 	this 	section 	shall 	be
conclusive, 	but 	the 	cause 	shall relate
solely 	to 	the 	welfare 	of 	the 	schools 	and
pupils 	thereof. 	(Emphasis 	added.)
In 	a 	series 	of 	decisions 	construing 	former Education Code
sections 	13443 	and 	13444, 	the California Supreme Court has
unambiguously 	resolved 	the 	question 	as 	to what 	the 	Legislature
intended 	the 	disputed 	phrase 	to mean 	(Turner 	v. 	Board 	of
Trustees 	(1976) 	16 Cal.3d 818 	[129 Cal.Rptr. 	443, 	548 P.2d
1115] ; 	Lindros v. 	Governing Bd. 	of 	the Torrance Unified School
District 	(1973) 	9 Cal.3d 524 	[108 Cal.Rptr. 	185, 	510 P.2d 361];
Griggs v. 	Board of Trustees 	(1964) 	61 Cal.2d 93 	[37 	Cal.Rptr.
194, 	389 	P.2d 722].)
In the most 	recent case Turner 	v. 	Board of Trustees, 	supra,
at 824, 	the court said:
By 	providing 	that 	the 	school 	board's
determination 	of 	the 	sufficiency of 	the
cause 	is conclusive, 	the Legislature has
foreclosed 	judicial 	evaluation 	of 	the
gravity 	of misconduct 	of 	probationary
teachers. 	Under subdivision 	. 	. 	. 	(d),
once misconduct 	relating 	to 	the 	schools 	and
their 	pupils 	is 	established, 	it 	is within
the 	school 	board's 	discretion 	to determine
whether 	the 	cause 	is 	sufficiently 	serious 	to
warrant 	a 	refusal 	to 	rehire 	and 	whether 	the
teacher's 	other 	qualities 	justify
reemployment. 	(Citations omitted.) 	(Emphasis
added.)
In 	the words 	of 	the Griggs court:
. 	. 	. 	[W]here there is evidence to support
the 	board's 	findings of 	fact 	and where 	the
79

cause 	for 	dismissal 	found 	by 	the 	board 	can
reasonably be 	said 	to 	relate 	to 	the 	"welfare
of 	the 	schools 	and 	the 	pupils 	thereof," 	the
reviewing 	court 	may 	not 	consider 	whether 	the
facts 	found 	are 	sufficiently 	serious 	to
justify dismissal. 	(Emphasis 	added.)
Griggs v. Board of Trustees, 	supra, 	at p. 	96.
This construction of 	the 	"conclusive" 	language 	in former
section 	13443 must 	be 	accorded 	central 	significance 	in 	any
interpretation of 	the same 	language 	in section 45113. 	It 	is 	a
cardinal 	principle 	of 	statutory 	construction 	that 	where
. 	. 	. 	legislation has been judicially
construed 	and 	a 	subsequent 	statute 	on 	the
same 	or 	an analogous 	subject 	is 	framed 	in
the 	identical 	language, 	it will ordinarily
be 	presumed 	that 	the 	Legislature 	intended
that 	the 	language 	as 	used 	in 	the 	later
enactment 	would 	be 	given 	a 	like
interpretation. 	Kaplan's Fruit & Produce
Co. 	v. 	Superior Court 	(1979) 	26 Cal.3d 60,
73 	[160 Cal.Rptr. 	745, 	603 P.2d 134].
Based on 	the 	foregoing 	reasons, 	the District's
interpretation of 	section 	45113 must be 	rejected. 	The 	term
"conclusive" 	in 	the 	context of Education Code disciplinary
procedures 	has 	never 	been construed 	as meaning
"non-delegable." 	Instead, 	the 	established 	judicial
construction 	has 	consistently 	held 	that 	the 	term 	refers 	only 	to
a 	limitation 	on 	judicial 	review of 	governing 	board
determinations 	of 	the 	sufficiency of 	cause 	for 	discipline.
This 	construction also gives 	significance 	to 	all 	components
of 	the 	statute 	in 	pursuance 	of 	the 	legislative 	purpose 	(Select
Base Materials v. 	Board of Equalization 	(1959) 	51 Cal.2d 640,
645). 	Because disciplinary arbitration, 	authorized by section
80

3548.5, 	can coexist 	harmoniously with our 	construction of
Education Code 	section 45113 	(San Mateo, 	supra, 	at pp.
864-865), 	we 	reject 	the District's 	supersession argument and
find 	that 	the 	subject 	of 	disciplinary 	arbitration 	is
negotiable.33
Article 	XXIV. 	Working 	Conditions
24.1 	Past Practices; 	The rules, 	regulations, 	policies and
practices of 	the 	District which are 	in effect 	at 	the 	time of
this Agreement 	and 	which 	neither 	conflict 	with 	terms 	of 	this
Agreement 	nor 	abridge 	the 	rights 	of 	employees 	under 	this
Agreement 	shall 	remain 	in 	full 	force 	and 	effect 	unless 	changed
by mutual 	agreement 	of CSEA 	and 	the 	District.
Proposal 	24.1 	seeks 	to 	incorporate 	into 	the 	agreement 	all
existing 	policies 	and 	past 	practices 	not 	specifically
negotiated. 	Since 	the 	proposal 	could 	affect 	some 	policies 	and
practices which are 	outside 	the 	scope of 	representation, 	it 	is
overbroad. 	However, 	since 	the 	proposal may 	be 	narrowed 	to
bring 	it within 	the 	scope of 	representation, 	the District 	is
obligated 	to 	seek 	clarification 	at 	the 	bargaining 	table.
24.4 	Special Trip Assignments: 	Special 	trip assignments 	shall
be 	distributed 	and 	rotated 	as 	equally 	as 	possible 	among 	bus
drivers 	in 	the 	bargaining 	unit.
3 3 Our 	ruling 	today 	does 	not 	purport 	to 	resolve 	the myriad
questions which may be 	presented, 	in future cases, 	concerning
the 	negotiability 	of 	particular 	disciplinary 	arbitration
proposals. 	For example, 	a given proposal might 	fail 	to
guarantee 	employees 	the 	option 	to 	follow 	traditional Education
Code 	disciplinary 	procedures 	in 	the 	event 	the 	exclusive
representative 	chooses 	not 	to 	arbitrate 	a given disciplinary
dispute. 	(See discussion of a related 	point 	in Grodin, 	Public
Employee Bargaining 	in California; 	The Meyers-Milias-Brown Act
in the Courts, 	23 Hastings Law Journal 719, 	757, 	fn. 	172 and
accompanying 	text.) 	Such 	a 	proposal might 	implicate
supersession 	concerns.
81

24.5 	Standby Time;
24.5.1 	Bus 	drivers 	on 	special 	trips 	including 	but 	not 	limited
to athletic 	events, 	field 	trips, 	and curricular 	trips who are
required 	to 	remain 	on 	standby 	for 	the 	duration 	of 	the 	event 	for
which 	the 	special 	trip is made, 	shall be 	paid 	for 	all 	standby
hours 	at 	their 	regular 	rate 	of 	pay. 	Whenever 	any 	combination
of 	driving 	and 	standby 	hours 	in a 	day 	exceeds 	the 	established
workday 	as 	defined 	in Section 8.1, 	all 	excess 	hours 	shall 	be
compensated 	at 	the 	appropriate 	overtime 	rate 	based 	on 	the
employee's 	regular 	pay 	rate.
24.5.2 	Notwithstanding 	any 	other 	provisions 	of 	this Agreement,
if a special 	trip requires 	an overnight 	stay, 	the District
shall 	be 	relieved 	of 	the 	obligation 	of 	payment 	for 	any 	hours
between 	the 	time 	a bus 	driver 	is 	relieved 	of duties 	for 	the
evening 	and 	the 	time 	duties 	resume 	the 	following morning.
24.6 	Vehicle Unavailability: 	Whenever 	as 	the 	result 	of 	the
unavailability of 	appropriate 	District 	vehicles 	due 	to
mechanical 	or 	other 	malfunctions 	a 	bus 	driver 	regularly
scheduled 	to work 	is 	unable 	to work, 	he/she 	shall 	receive 	pay
at 	the 	rate 	he/she 	would 	have 	received 	for 	working 	that 	day.
Proposal 	24.4 	concerns 	the 	establishment of 	a 	procedure 	for
making 	"special 	trip" 	assignments 	to bus 	drivers. 	The Board
has 	previously 	found 	that 	the 	procedure 	for 	making 	work
assignments 	to bus 	drivers 	is 	negotiable. 	Pittsburg Unified
School District 	(3/15/82) 	PERB Decision No. 	199; 	Anaheim City
School District, 	supra. 	We, 	therefore, 	find this proposal
negotiable.
Proposals 24.5.1, 	24.5.2, 	and 24.6 	all relate directly to
the 	wages 	and 	hours of work of District 	bus 	drivers. 	The
District concedes 	that 	these 	proposals 	are 	negotiable, 	and we
so hold.
Article XXVI. 	Training
26.1 	In-service 	Training 	Program 	The 	District 	shall 	provide
a 	program of 	in-service 	training 	for 	employees 	in 	the
bargaining 	unit 	designed 	to maintain 	a 	high 	standard 	of
82

performance 	and 	to 	increase 	the 	skills 	of employees 	in 	the
bargaining 	unit.
Proposal 	26.1 	requires 	the 	District 	to provide 	in-service
training 	for 	employees. 	Although 	not 	specifically enumerated,
in-service 	training 	is 	logically 	and 	reasonably 	related 	to
several 	enumerated 	subjects. 	Training 	that 	is 	necessary 	to
insure 	employees' 	safety 	is 	negotiable 	since 	it 	relates 	to
safety, 	an enumerated 	subject. 	Also, 	since 	training may have
an 	impact on 	job performance of employees, 	it 	is 	related 	both
to 	evaluation and grievance 	procedures 	and, 	therefore,
potentially to wages 	as well.
Training 	is of great 	concern 	to employees, 	since 	it may
affect promotional 	opportunities 	and 	job 	safety. 	It 	is 	also of
great 	significance 	to management, 	since 	training 	helps maintain
a 	high 	level 	of 	employee 	performance, 	thereby 	affecting 	the
quality of 	services 	which 	are 	delivered 	to the public. 	It 	is,
therefore, 	an 	appropriate 	subject 	for 	the 	negotiation process.
Finally, 	we 	can 	find 	no managerial prerogative 	which would
be 	unreasonably 	interfered 	with 	if 	the District 	were 	required
to 	negotiate 	over 	the 	subject of 	in-service 	training.
Therefore, 	we 	find proposal 26.1 negotiable.
26.2 	Training Advisory 	Committee; 	A 	training 	advisory
committee 	composed 	of 	six 	(6) 	employees 	in 	the 	bargaining 	unit
to 	be 	selected 	by CSEA 	from 	the 	following 	classifications:
Cafeteria, Clerical, Custodial, 	Instructional Aides,
Maintenance, 	Transportation and 	two 	(2) 	members 	appointed by
the District 	shall be 	formed. 	The 	purpose of 	the 	advisory
committee will 	be 	to plan 	in-service 	training programs, 	to
monitor 	the 	programs, 	and 	to provide 	recommendations 	concerning
83

improvement of 	programs. 	Bargaining 	unit employees 	shall be
granted 	reasonable 	release 	time 	to 	carry 	out 	the 	committee
obligations.
This 	proposal 	seeks 	to establish 	an 	advisory 	committee 	to
plan, 	monitor, 	and 	provide 	recommendations concerning
improvement of 	an 	in-service 	training 	program. 	In addition, 	it
requires 	the District 	to 	grant 	release 	time 	to 	employees 	who
participate 	on 	the 	committee.
We 	find 	this 	proposal 	to 	be 	inextricably bound 	up with 	the
implementation 	of 	the Association's 	proposal 	for 	an 	in-service
training program, 	and it is, 	therefore, 	negotiable. 	Since, by
its 	terms, 	the committee 	to be 	established will be 	"advisory,"
the Association's 	proposal 	does 	not 	interfere 	with 	management's
right 	to 	structure 	its 	services. 	That 	portion of 	the 	proposal
which 	requires 	the 	District 	to grant 	release 	time 	to employees
who 	serve 	on 	the 	advisory 	committee 	is 	negotiable 	for 	the
reasons 	discussed, 	supra, 	with 	respect 	to the Association's
release 	time 	proposal.
26.3 	In-Service Training Time: 	In-service 	training 	shall 	take
place 	during 	regular 	working 	hours 	at 	no 	loss 	of 	pay or
benefits 	to employees.
26.4 	Reimbursement 	for 	Tuition: 	The 	District 	shall 	reimburse
employees 	for 	the 	tuition costs 	of 	any 	and 	all 	training
programs 	approved 	by 	the 	training 	advisory 	committee.
These 	two 	proposals 	regarding 	training 	are 	negotiable
because, 	by their 	terms, 	they directly concern wages 	and hours
of 	employees. 	Training 	during 	work 	hours without 	loss 	of 	pay
and 	reimbursement 	for 	approved 	program costs 	are 	traditional
84

and 	common 	features 	of 	in-service 	training 	programs 	which 	do
not, 	in 	any way, 	conflict with managerial prerogatives.
Article 	XXVII. 	Contracting 	and Bargaining Unit Work
27.1 	Restriction on Contracting Out; 	During 	the 	life of 	this
agreement, 	the District 	agrees 	that 	it will 	not contract out
work 	which 	has 	been 	customarily 	and 	routinely 	performed 	or 	is
performable 	by 	employees 	in 	the 	bargaining 	unit 	covered 	by 	this
agreement 	unless 	CSEA specifically 	agrees 	to same 	or
contracting 	is 	specifically 	required 	by 	the Education Code.
27.2 	Notice 	to CSEA: 	No contract 	for 	services 	which might
affect 	employees 	in 	the 	bargaining 	unit 	shall 	be 	let 	until CSEA
has 	been provided 	10 	days 	advance 	notice of 	the 	award.
27.3 	Bargaining Unit Work: 	No Supervisory or Management
employee may 	perform 	any 	work 	within 	the 	job description 	of 	a
bargaining 	unit 	employee.
Proposal 	27.1 	provides 	that 	the 	District will 	not 	contract
out 	for 	services 	performable 	by 	bargaining 	unit 	employees
unless 	the Association 	specifically consents 	to 	such
subcontracting 	or 	the District 	contracts 	out 	in 	a manner
consistent 	with 	the Education Code.
In Arcohe Union School District, 	supra, 	the Board 	found
that 	the 	general 	subject 	of 	subcontracting 	was 	within 	the 	scope
of 	representation 	under EERA. 	However, 	the Board 	noted 	that 	in
California 	School Employees Association v. 	Willits 	Unified
School District of Mendocino Co. 	et al. 	(1966) 	243 Cal.App.2d
776 	[52 Cal.Rptr. 	765], 	the Court of Appeal held that under
section 	13581 	(now 	section 	45103) 	of 	the 	Education 	Code,34
34Education 	Code 	section 45103 	provides, 	in 	relevant part:
The 	governing 	board 	of 	any 	school 	district
shall 	employ 	persons 	for 	positions 	not
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janitorial 	services may not 	be 	subcontracted, 	but must be
performed 	by 	a 	district's 	classified 	employees. 	Since 	the
Board 	found 	that 	this 	section, 	as 	interpreted 	by 	the Willits
Court, 	created an 	"inflexible 	standard," 	it 	concluded 	that 	the
subject 	of 	subcontracting was, 	at 	least, 	partially preempted 	by
the Education Code. 	The Board was careful 	to note, 	however,
that 	while 	a 	proposal 	to 	subcontract would 	be 	nonnegotiable
under Willits, 	a proposal prohibiting 	subcontracting or 	which
otherwise 	restated 	the 	provisions 	of 	the 	Education 	Code 	would
be negotiable.
requiring 	certification qualifications. 	The
governing board shall 	. 	. 	. 	classify all
such 	employees 	and 	positions. 	The 	employees
and 	positions 	shall be 	known as 	the
classified 	service. 	Substitute 	and
short-term 	employees, 	employed 	and 	paid 	for
less 	than 75 percent of a school year, 	shall
not be 	a part of 	the 	classified 	service.
Part-time 	playground 	positions, 	apprentices
and 	professional 	experts 	employed 	on 	a
temporary 	basis 	for 	a 	specific project,
regardless 	of 	length of employment, 	shall
not 	be a part of 	the 	classified
service. . . .
Proposal 	27.2 	requires 	the 	District 	to provide CSEA with
notice 	prior 	to 	implementing 	any 	decision 	to 	contract 	out
work. 	Since, 	under Arcohe Union School District, 	supra, 	the
subject of 	subcontracting 	is negotiable, 	the District has 	an
affirmative 	duty 	to provide 	the Association with 	notice 	and 	a
reasonable 	opportunity 	to 	negotiate 	prior 	to 	taking 	unilateral
action on 	a matter 	within 	the 	scope 	of 	representation. 	San
-
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Mateo Community College District 	(6/8/79) 	PERB 	Decision
No. 	94. 	This proposal merely restates 	that duty and, 	as 	such,
is negotiable.
Proposal 	27.3 	prohibits 	the 	District 	from 	transferring 	out
bargaining 	unit work 	to non-unit members. 	As noted, 	supra, 	the
Board 	has 	specifically held 	that 	the 	transfer 	of 	work 	out 	of
the 	bargaining 	unit 	is 	within 	the 	scope 	of 	representation.
Rialto Unified School District, 	supra; 	Solano County Community
College District, 	supra; 	Mt. 	San Antonio Community College
District, 	PERB Decision No. 	334, 	supra. 	The Association's
proposal is, 	therefore, negotiable.
REMEDY
Based 	on 	the 	foregoing 	discussion, 	we 	conclude 	that 	the
Districts 	unlawfully 	refused 	to 	negotiate 	with 	CSEA 	those
proposals 	found 	to be within 	the 	scope of 	representation. 	Such
conduct 	constitutes 	a violation of 	subsection 3543.5(c) 	and,
concurrently, 	subsections 3543.5(a) 	and 	(b). 	San Francisco
Community College District, 	supra.
Specifically, 	to 	the 	extent 	noted 	in 	the discussion of 	each
Article 	and 	the 	portions 	thereof, 	the Districts 	are 	required 	to
negotiate 	as 	to 	the 	following 	subjects:
Article 	II. 	No Discrimination
Article V. 	Organizational 	Rights
Article VI. 	Job 	Representatives
Article 	X. 	Employee 	Expenses 	and Materials
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Article 	XI. 	Rights 	of Bargaining Unit Upon Change 	in
School 	Districts
Article 	XVII. 	Hiring
Article 	XIX. 	Promotion
Article XX. 	Classification, 	Reclassification, 	Abolition
of Positions
Article XXI. 	Layoff 	and Reemployment
Article 	XXII. 	Disciplinary Action
Article 	XXIV. 	Working 	Conditions
Article 	XXVI. 	Training
Article 	XXVII. 	Contracting 	and Bargaining Unit Work
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law, 	and 	the
entire 	record 	in 	this case, 	and 	pursuant 	to Government Code
subsection 3541.5(c), 	it 	is hereby ORDERED that the Healdsburg
Union High 	School 	District 	and 	the Healdsburg Union School
District 	shall:
A. 	CEASE AND 	DESIST PROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	California 	School Employees Association
with 	regard 	to: 	discrimination; 	organizational 	rights; 	job
representatives; 	employee expenses 	and materials; 	rights of
bargaining 	unit upon change 	in school districts; 	hiring;
promotion; 	classification, 	reclassification, 	and abolition of
positions; 	layoff 	and 	reemployment; 	disciplinary action;
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working 	conditions; 	training; 	and 	contracting 	and 	bargaining
unit 	work.
(2) 	Interfering 	with 	the 	right of 	employees 	to 	be
represented 	by 	failing 	and 	refusing 	to 	negotiate 	in 	good 	faith.
(3) 	Denying 	the California School Employees
Association 	the 	right 	to 	represent 	employees 	by 	failing 	and
refusing 	to 	negotiate 	in 	good 	faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(1) 	Upon request, 	meet 	and 	negotiate 	in good 	faith
with 	the 	California 	School Employees 	Association 	with 	respect
to 	those 	subjects 	enumerated 	above 	to 	the 	extent 	that 	we 	have
determined 	them 	to 	be 	within 	the 	scope 	of 	representation.
(2) 	Within 	thirty-five 	(35) 	days 	following 	the 	date
of 	service 	of 	this Decision, 	post 	at 	all 	work 	locations 	where
notices 	to 	employees 	customarily 	are 	placed, 	copies 	of 	the
Notice 	attached 	as 	an Appendix 	hereto, 	signed 	by 	an 	authorized
agent 	of 	the 	employer. 	Such 	posting 	shall 	be 	maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced 	in
size, 	defaced, 	altered or 	covered 	by any material.
(3) 	Written 	notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be made 	to 	the 	Regional 	Director
of 	the 	Public Employment 	Relations Board 	in 	accordance 	with 	her
instructions.
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This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	upon 	the Healdsburg Union School
District 	and 	the Healdsburg Union High 	School 	District.
Member Burt 	joined 	in 	this Decision.
Chairperson Gluck's 	concurrence 	and 	dissent 	begins 	on 	page 	91.
Member 	Tovar's 	concurrence 	and 	dissent 	begins 	on 	page 	98.
Member 	Morgenstern's 	concurrence 	and 	dissent 	begins 	on 	page 	104,
The Decision 	in San Mateo City School 	District, 	Case No.
SF-CE-36 	begins 	on 	page 	106.
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GLUCK, 	Chairperson, 	concurring and dissenting: 	I concur 	in
the 	reasoning 	and 	conclusions 	reached 	by 	the 	majority 	except 	as
to 	those 	proposals 	hereafter 	individually considered. 	As 	to
these 	latter 	matters, 	in 	some 	instances 	I am unable 	to reach
the 	same 	result 	as do my colleagues; 	in others, 	I 	reach 	the
same 	conclusion, 	albeit by 	somewhat different 	routes.
The Board 	has 	been 	urged 	to 	consider 	the 	phrase 	"matters
relating 	to" 	found 	in 	section 	3543.2 	as 	virtually without
purpose; 	it 	has 	been 	suggested 	that 	the meaning 	of 	the words
has 	been 	stretched 	to 	the 	point 	where 	the 	scope 	limitation
implicit 	in 	the 	enumeration of 	specific 	subjects 	is 	ignored. 	I
do not 	subscribe 	to 	those 	complaints 	although 	I 	acknowledge 	the
possibility 	that 	the 	phrase 	can, 	in good 	faith, 	be applied 	to
particular 	subjects 	with 	different 	results. 	Virtually 	every
aspect 	of 	employment 	is 	related 	in 	some 	way 	to 	those 	that 	are
negotiable 	as 	elements 	of 	a 	total 	configuration of 	employment
terms 	and conditions. 	For 	example, 	hours are 	"tied" 	to wages,
as are 	benefits 	as 	part of compensation; 	promotions 	and
discipline 	surely have 	wage 	implications 	as well 	as 	a
relationship to 	the 	efficiency 	of 	supervision.
When 	the 	"reasonable 	and 	logical" 	criterion was
incorporated 	into 	the Anaheim 	test, 	it 	was my 	understanding
that 	these 	ordinary words 	were meant 	to 	answer 	the 	question
whether 	this Board, 	as 	the 	expert 	body charged 	with 	that
responsibility, 	would 	recognize 	a 	relationship between 	the
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subject 	matter 	of 	a 	disputed 	proposal 	and 	an 	item 	enumerated 	in
section 	3543.2 	which 	warrants 	the 	conclusion 	that 	the
Legislature 	intended 	that 	it 	be 	subject 	to negotiations.
Further, 	it 	is my view 	that virtually any matter 	within 	the
jurisdiction of 	a 	school 	board may 	lead 	to 	some 	confrontation
with 	some 	of 	its 	employees. 	The 	question 	is 	how 	the 	second
step of 	the Anaheim test 	is 	to be 	applied 	so 	as 	not 	to 	render
it meaningless. 	I 	believe 	that 	the answer must be given on a
case 	by case 	basis, 	examining 	the 	specific proposals 	in 	terms
of 	the 	reasonable 	likelihood 	that 	failure 	to deal 	with 	the
subject matter 	involved 	will 	be 	adverse 	to 	the 	maintenance 	of
harmonious 	employer-employee 	relations.
In 	differing 	with 	the majority either 	as 	to 	its 	conclusions
or 	rationale, 	I 	am guided by 	these 	considerations.
Proposal 5.4: 	I 	find 	this proposal 	to be out of 	scope.
The 	process of collective negotiations 	consists, 	in 	its most
elemental parts, 	of 	the 	right of employees 	to organize 	for
exclusive 	representation, 	to 	participate 	in 	good 	faith
negotiations, 	and 	to assure 	the 	proper 	administration of 	the
negotiated 	agreement. 	At 	the 	very 	core 	of 	this 	sometimes
complex 	system, 	is 	the 	legislative determination 	that 	in 	the
interest 	of 	improved 	employer-employee 	relations, 	decisions on
wages, 	hours 	and 	certain conditions 	of employment 	are 	best
effected 	through 	the 	bilateral 	process. 	It 	is 	by 	the 	process
of 	contract 	administration 	that 	the 	employees 	and 	their
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representative 	can enforce 	the wage, 	hour 	and 	working 	condition
arrangements 	to which 	the 	parties 	have 	agreed. 	It 	therefore
follows, 	in my judgment, 	that contract administration
necessarily 	bears 	a 	reasonable 	and 	logical 	relationship 	to 	all
negotiated 	subjects. 	It 	is 	for 	this 	reason 	that 	I 	would 	find
that 	proposals 	which 	specifically 	attempt 	to 	provide 	reasonable
means 	and 	procedures 	by 	which 	the 	exclusive 	representative 	can
effectively 	administer 	the 	agreement 	are 	subject 	to mandatory
negotiations 	unless 	barred 	by 	some 	other 	aspect 	of 	the Anaheim
test.
Here, 	although 	the distribution of copies 	of 	the agreement
would 	enhance 	the 	employees' 	awareness 	of 	its 	provisions 	and,
thus, 	their 	rights and obligations, 	the 	requirement 	that 	the
District 	print 	and 	distribute 	those 	copies 	at 	its 	own expense
seems 	to have 	little 	relationship to CSEA's 	administrative
needs. 	Indeed, 	the 	proposal 	tends 	to 	shift 	at 	least one aspect
of 	the 	burden of 	representation 	to 	the 	employer. 	I 	find 	this
proposal 	out of 	scope.
Proposals 	5.1.4, 	5.1.5, 	5.1.9; 	I conclude 	that 	these
proposals 	are 	negotiable 	as 	reasonably 	necessary 	for 	the
administration of 	the parties' 	contract, 	and 	therefore bearing
a 	reasonable 	and 	logical 	relationship 	to 	the 	negotiable 	matters
contained 	therein.
Proposal 	17.5; 	The 	proposal 	requires 	the District 	to
provide 	the 	employees 	with 	certain 	basic 	information 	pertaining
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to 	their 	employment 	status. 	Some 	of 	the 	information would
concern 	employee 	entitlements 	and 	employer-employee 	obligations
arising 	out 	of 	negotiations; 	other 	information might 	reflect
matters 	established 	unilaterally 	by 	the 	employer. 	Providing
such 	information 	to 	the 	employees 	is 	eminently 	in 	keeping 	with
EERA's 	stated 	purpose 	of 	improving 	personnel 	administration
through 	the 	process 	of 	collective 	bargaining. 	To 	the 	extent
that 	the 	proposal 	requires 	publication 	of 	information
concerning wages, 	hours 	and 	negotiable working 	conditions, 	the
reasonable 	and 	logical 	relationship of 	the 	proposal 	to 	those
matters 	is 	self-evident.
Proposal 	21.3; 	This 	proposal 	is 	virtually meaningless
except 	in 	its 	relation 	to other 	proposals 	included 	in Article
XXI. 	To 	the 	extent other 	subdivisions 	of 	the 	article 	are
negotiable, 	21.3 must be considered within scope.
Proposals 	21.10 	and 21.10.5; 	At first blush, 	it 	is
difficult 	to 	reconcile 	the majority's 	finding 	as 	negotiable 	a
proposal giving 	the 	employee 	the 	right 	to elect 	retirement 	in
lieu 	of 	layoff 	with 	its 	holding 	elsewhere 	that 	the 	employer's
decision 	to lay off 	is 	not negotiable. 	But when 	it 	is
recognized 	that 	in either 	event 	it 	is 	the 	employer's 	not
negotiable decision 	that 	the 	employee be 	terminated, 	the
majority logic 	seems 	faultless, 	at 	least where 	there 	is 	no
evidence 	that 	the 	employer's 	obligation 	to 	a 	retired 	employee
is 	greater 	than 	that 	to one 	laid off. 	To 	the 	extent 	that 	that
94

is 	true here, 	and 	the proposal seems 	to make 	that certain, 	I
concur.
Proposal 21.11; 	I find this proposal, 	as written, 	to be
not 	negotiable. 	In 	its effort simply 	to compel 	the District 	to
maintain 	a certain 	record, 	it 	impermissibly 	interferes with 	the
employer's 	internal 	administrative operations. 	Had 	the
proposal 	required 	the District 	to 	publish 	such 	a 	list 	for 	the
benefit of 	the employees, 	as was 	the case with Proposal 	17.5,
or 	had 	it 	required 	preparation of 	such 	a 	list 	for 	the 	use 	of
the 	exclusive 	representative 	in 	connection with 	a 	grievance,
layoff, 	or 	some 	event 	to which 	the 	list would 	have 	some
relevance, 	the 	result here would 	be different. 	Although 	it
might 	be 	argued 	that 	the 	proposal 	relates 	to contract
administration, 	its 	failure 	to suggest any purpose, 	coupled
with 	the 	arbitrary 	nature 	of 	that 	portion which gives 	CSEA 	the
absolute 	right 	to demand 	an updated 	list 	at 	any 	time, 	renders
its 	relationship to 	an 	enumerated 	subject 	too 	speculative 	to be
deemed 	reasonable 	and 	logical.
Proposal 	22.2.2; 	I 	find 	that 	part of 	the 	proposal which
gives 	the 	employees 	the 	option of 	requesting 	a 	transfer 	in
addition 	to 	the 	right 	of 	appeal 	from disciplinary warning 	to 	be
not 	negotiable. 	The 	argument 	is made 	that because 	the District
is 	not obligated 	to grant 	the 	transfer, 	its 	essential
prerogatives are 	preserved, 	and 	therefore 	the 	subject 	is
negotiable. 	To 	follow 	this 	reasoning 	to 	its 	conclusion would
95

render 	Anaheim*s 	third 	criterion 	— 	which 	exempts 	the 	employer
from 	the 	obligation 	to 	negotiate 	on 	such 	privileged 	matters 	—
meaningless; 	any proposal would 	be 	in scope 	so long 	as 	it
included 	an 	escape 	hatch 	through 	which 	the 	employer 	could 	avoid
taking 	action.
The 	employer's 	unquestioned 	right 	to maintain 	discipline 	in
the work 	place 	requires 	that 	it 	be 	given 	some 	reasonable
freedom 	to 	impose 	discipline 	even 	though 	the 	precise 	nature 	of
that 	discipline 	be 	subject 	to bargaining. 	A proposal which
would 	require 	the 	employer 	to 	consider 	transferring 	an 	employee
whose 	conduct 	has 	merited 	disciplinary 	warning 	(a 	requirement
that 	it would certainly have 	to approach 	in good 	faith),
inherently 	tends 	either 	to 	place 	responsibility 	for 	the
employee's objectionable conduct 	at 	the 	feet of 	his 	or 	her
supervisor 	or 	concede 	that 	the 	employee 	is 	incapable 	of
satisfactory 	performance 	in his 	or 	her 	current 	assignment. 	The
first 	would 	interfere 	with 	the 	employer's 	freedom 	to make 	its
own 	judgments 	concerning 	its 	supervisory 	and managerial 	cadre;
the 	second 	would 	interfere 	with 	its 	freedom 	to 	assign 	its
personnel 	according 	to 	its 	own 	needs 	and 	own 	best 	judgment.
Proposal 	26.1; 	I 	find 	this proposal 	to be 	not negotiable.
Although 	it 	can 	be 	claimed 	that 	the 	training 	called 	for 	here
bears 	some relationship to one or more enumerated 	items, 	I 	find
that 	relationship too attenuated 	to be 	convincing. 	Training
may 	result 	in 	better 	evaluations, 	better 	evaluations may 	result
96

in less 	reason 	for 	discipline, 	less discipline may result 	in
less 	loss of wages, 	and 	ad 	infinitum. 	This 	is 	not 	to say 	that
a 	training 	proposal 	will 	always 	be 	not 	negotiable. 	A 	proposal
to 	require 	corrective 	training 	following 	a 	poor 	evaluation 	or
disciplinary 	action 	demonstrates 	the 	relationship Anaheim
contemplates. 	Here, 	as 	it 	is written, 	CSEA simply seeks to
compel 	negotiations 	on 	a 	proposal 	which 	would 	determine 	the
content of 	the employees' 	working-hour assignments, 	a
prerogative 	I 	view as 	the 	employer's.
Proposal 	26.2; 	Although 	the matter 	of 	released 	time,
relating 	clearly 	to both 	hours 	and 	wages, 	would 	normally 	be
negotiable, 	to the 	extent 	that 	this 	proposal depends 	upon 	the
negotiability of Proposal 	26.1, 	it must 	fall with 	it.
Proposal 	26.3; 	I 	perceive 	this proposal as 	independent of
those 	in 	the 	previous proposals 	in Article XXVI. 	As 	such, 	it
avoids 	the defect 	of Proposal 	26.1 	in 	that 	it would
specifically 	require 	that 	any 	training 	offered 	by 	the District
be 	conducted during 	regular working 	hours, 	i.e., 	that 	it 	not
require 	the 	attendees 	to work 	additional 	hours 	or 	lose 	pay or
benefits 	when 	released 	for 	that 	purpose 	from 	normal
assignments. 	These 	specific 	references bring 	the 	proposal
within 	mandatory 	scope.
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TOVAR, Member, 	concurring and dissenting: 	While I
generally 	concur 	in 	the 	majority's 	treatment of 	the 	scope 	of
representation 	issues 	presented 	in this case, 	I 	find myself 	in
disagreement with 	respect 	to 	two matters. 	Thus, 	I would 	find
the 	subject 	of 	affirmative 	action 	policy, 	addressed 	at 	proposal
2.3, 	to be 	outside 	the 	scope of 	collective 	negotiation.
Affirmative 	action 	is 	a critical matter 	of 	public 	policy which
must 	be 	reserved 	to 	the 	control 	of 	public 	representatives
rather 	than 	being 	subjected 	to 	the 	compromising 	processes 	of
collective 	bargaining.
By statute, 	California's 	public 	school districts 	have 	been
mandated 	to devise 	and 	implement 	programs 	which 	will 	give
effect 	to 	the 	principles 	of 	affirmative 	action 	as 	established
by 	the Legislature. 	At Education Code 	sections 	44100-44105
(applicable 	to 	school 	districts) 	and 	87100-87106 	(applicable 	to
the 	community college 	districts) 	the Legislature 	has 	codified
the 	duty 	of 	the 	educational 	institutions 	to carry out 	the
affirmative 	action mission 	imposed 	on 	those 	institutions 	by 	the
people of California. 	At 	section 44101, 	and 	again at 	section
87101, 	the 	following definition of 	"affirmative 	action
employment 	program" 	is given:
"Affirmative 	action 	employment 	program"
means 	planned 	activities 	designed 	to 	seek,
hire, 	and 	promote 	persons who are
under represented in 	the 	work 	force 	compared
to 	their 	number 	in 	the 	population, 	including
handicapped persons, 	women, 	and persons of
minority 	racial and 	ethnic 	backgrounds. 	It
is a conscious, 	deliberate 	step taken by a
hiring 	authority 	to 	assure 	equal 	employment
98

opportunity for 	all 	staff, 	both 	certificated
and 	classified. 	Such 	programs 	require 	the
employer 	to make 	additional 	efforts 	to
recruit, 	employ, 	and promote members of
groups 	formerly 	excluded 	at 	the 	various
levels 	of 	responsibility 	who 	are 	qualified
or 	may 	become 	qualified 	through 	appropriate
training 	or 	experience 	within 	a 	reasonable
length of 	time. 	Such 	programs 	should 	be
designed 	to remedy 	the 	exclusion, 	whatever
its 	cause. 	Affirmative 	action 	requires
imaginative, 	energetic, 	and sustained action
by 	each 	employer 	to 	devise 	recruiting,
training, 	and career 	advancement
opportunities 	which 	will 	result 	in an
equitable 	representation 	of 	women 	and
minorities 	in 	relation 	to all 	employees 	of
such 	employer. 	(Emphasis 	added.)
This Board 	has 	always 	recognized 	that 	certain operational
matters 	which 	are 	essential 	to 	the 	heart 	of 	the 	school
employer's mission must 	be 	reserved 	to 	the 	exclusive 	control of
the public's 	representative. 	It has 	been 	agreed 	that 	such
matters, 	which we have called 	"managerial prerogatives," 	are
not 	appropriately 	subjected 	to 	the 	compromising 	process 	of
collective 	bargaining, 	notwithstanding 	the 	fact 	that 	decisions
in 	these 	areas may have 	profound 	effects 	on 	the 	working
conditions of 	employees.
In my view, 	the 	public and 	legal mandate 	for 	an 	affirmative
action 	policy 	requiring 	"imaginative, 	energetic 	and 	sustained
action" 	of 	each 	school 	employer 	cannot 	be 	reconciled 	with 	the
collective 	bargaining 	process. 	The 	mission of 	affirmative
action 	imposed 	by 	the 	Legislature 	simply 	cannot 	accommodate 	the
limitations 	posed 	by 	the EERA's 	collective 	negotiating 	scheme.
99

I 	am especially concerned 	that 	the 	negotiation of
affirmative action matters - even where, 	as here, 	only
consultation 	rights 	are 	proposed 	- 	will 	unacceptably 	encumber
the 	process 	of 	setting 	goals 	and 	timetables 	for 	affirmative
action 	programs. 	At Education Code 	section 44102, 	and 	again at
section 87102, 	it 	is mandated that:
Each 	local 	public 	education 	agency 	shall
submit 	. . . 	to 	the 	Department 	of Education
an 	affirmation 	of 	compliance 	with 	the
provisions of 	this 	article. 	The 	affirmative
action 	employment 	program 	shall 	have 	goals
and 	timetables 	for 	its 	implementation.
"Goals 	and 	timetables" 	are 	defined 	at Education Code
sections 	44102 	and 87102:
"Goals 	and 	timetables" 	means 	projected 	new
levels 	of 	employment 	of 	women 	and 	minority
racial 	and 	ethnic groups 	to 	be 	attained 	on
an annual 	schedule, 	given 	the expected
turnover 	in 	the 	work 	force 	and 	the
availability of 	persons 	who 	are 	qualified 	or
may 	become 	qualified 	through 	appropriate
training 	or 	experience 	within 	a 	reasonable
length of 	time.
In my experience, 	goals 	and 	timetables 	are 	the 	key 	to 	the
implementation 	for 	an effective 	affirmative 	action 	plan. 	This
is 	the 	operational 	tool 	by which 	the 	personnel will 	ultimately
be 	shaped 	to 	reflect 	the 	representation 	of 	protected 	groups 	in
the 	labor 	force. 	I 	have 	also experienced 	the 	process of
consultation 	between 	management 	and 	employee 	organizations 	on
the 	subject 	of 	affirmative 	action goals 	and 	timetables. 	It 	is
based 	upon 	this 	experience 	that 	I 	am 	firmly 	convinced 	that
subjecting 	affirmative 	action matters 	to 	negotiation 	would
100

unacceptably 	impede 	management's 	ability 	to 	comply 	with 	the
lawfully mandated 	affirmative 	action 	programs 	set 	forth 	in 	the
Education Code.
To 	further 	illustrate my concern, 	I 	refer 	to 	the current
national 	controversy 	regarding 	the 	accommodation 	between
seniority 	principles 	and 	affirmative 	action. 	In 	the 	instant
case, 	CSEA's 	proposals 	include extensive guarantees of
preference 	based 	on 	seniority. 	As 	a general proposition, 	of
course, 	I 	support 	this principle. 	However, 	the legislative
mandate 	for 	affirmative 	action may 	at 	some 	point 	require 	that
these 	seniority 	provisions must 	be 	preempted. 	Inasmuch 	as 	the
people of California, 	through 	their Legislature, 	have decided
that 	its 	school 	districts 	shall 	observe 	affirmative 	action
principles, 	I 	cannot 	find 	that 	the 	school districts must
compromise 	this 	mandate 	by 	subjecting 	their 	authority 	to
implement 	an 	affirmative 	action 	program 	to 	negotiations.
I have 	a greater 	concern, 	however, 	than my above-explained
view 	that 	the 	majority 	has 	transgressed 	on 	a managerial
prerogative. 	The subjects 	of wages, 	hours 	and other 	basic
working 	conditions 	are matters 	in which 	it may 	fairly be 	said
that 	the 	employer 	and 	the 	employee have equal, 	if opposing,
interests. 	Collective bargaining over 	such matters, 	then, 	is
hardly a 	radical 	notion of modern 	invention; 	rather 	it 	simply
gives 	effect 	to 	the 	ancient Anglo-American 	legal 	principles
which 	recognize 	that 	a 	fair 	contract 	can only 	be made 	where
101

both 	parties 	have 	some 	say 	in deciding 	on 	the 	terms 	of 	the
agreement. 	Where one 	side 	can 	flatly dictate 	to 	the other 	the
terms by which 	they will do business, 	it 	is 	termed 	"a contract
of adhesion" 	and universally recognized as unfair. 	Indeed, 	in
some jurisdictions 	it may be unenforceable. 	Thus, 	I am a
proponent 	of 	collective 	bargaining 	with 	respect 	to 	terms 	of
employment, 	as a 	process by which 	the 	legitimate equal
interests 	of 	employer 	and 	employee 	may 	be 	accommodated 	and 	the
contract 	of 	adhesion 	averted.
However, 	the 	principle of 	affirmative 	action 	is 	not 	simply
-
another 	term of 	employment 	in 	which 	the 	employer 	and 	the
employee 	share 	equal 	interests. 	It 	is 	a matter 	of social
policy, 	and as 	such, 	is 	reserved 	to the 	province of 	the people
of 	this 	society as 	a whole.
I 	find 	it 	undemocratic 	and 	entirely 	inappropriate 	that 	the
millions 	of 	California 	citizens 	should 	be 	required 	to 	negotiate
with 	a 	few 	thousand 	individuals 	on 	an 	equal 	footing 	over 	the
social 	policy of 	the 	state. 	I 	cannot concede 	that 	the 	status
of 	the 	few as 	employees 	of 	the 	public school districts 	entitles
them 	to a disproportionate 	say 	in 	such 	public matters.
Under 	the Anaheim test, 	a 	particular matter 	will 	be 	found
within 	the 	scope 	of 	representation only 	if:
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.
102

In my view, 	the 	parties 	do not 	share 	equal degrees 	of 	interest
in 	the 	subject of 	affirmative 	action. 	The 	process 	of
collective 	negotiations 	is 	therefore 	not 	"the 	appropriate means
of resolving 	. 	. 	. 	conflict" between them. 	Finding that
affirmative 	action 	is 	not 	merely a 	term of 	employment 	but
instead 	a 	matter 	of public 	policy, 	I 	conclude 	that 	this 	subject
is 	appropriately 	reserved 	to 	the 	public's 	representative.
The other 	matter 	as 	to which 	I 	differ 	with 	the 	majority 	is
proposal 21.11. 	For 	the 	reasons 	set 	forth 	in his separate
concurrence 	and 	dissent, 	I 	join Chairperson Gluck 	in 	finding
CSEA's 	proposal 	for 	an 	unlimited 	right 	to 	seniority 	lists 	upon
demand 	to 	be 	outside 	the 	scope 	of 	representation.
103

MORGENSTERN, Member, 	concurring and dissenting: 	I am at
odds 	with 	the 	majority's 	opinion 	regarding 	the 	following 	two
proposals 	at 	issue 	in 	the Healdsburg case:
5.4 	Distribution 	of 	the 	Contract
Unlike 	the majority, 	I 	would 	conclude 	that 	this 	proposal
bears 	a 	logical 	and 	reasonable 	relationship to 	negotiable
items. 	As 	stated 	with 	regard 	to 	the 	proposals 	seeking 	use 	of
District 	equipment 	and 	facilities 	and 	review of 	District
materials, 	this 	proposal relates 	to the ongoing 	collective
bargaining 	process 	and 	the 	grievance 	procedure. 	The 	fact 	that
this 	proposal, 	if 	agreed 	to, 	would 	impose a 	financial burden on
the District does 	not disturb that 	relationship. 	Indeed, 	the
majority 	finds 	those 	proposals 	dealing 	with 	employee 	uniforms,
tools, 	storage places and, most relevantly, 	the provision of
job descriptions 	and specifications, 	to be 	negotiable 	in 	spite
of 	any 	financial obligation 	that 	would 	ensue.
21.7 	Equal 	Seniority
I 	share 	the majority's 	conclusion 	that 	proposal 	21.7 	is
negotiable. 	I do not, 	however, 	agree with 	their 	rationale
which 	is 	based 	on 	a distinction 	between 	the 	language 	of
Education Code 	section 	45308, 	relevant 	here 	as 	pertaining 	to
classified employees, 	and 	section 44955, 	which pertains 	to
certificated 	employees. 	See my 	dissenting 	opinion 	in Mt.
Diablo Unified 	School District 	(12/30/83) 	PERB 	Decision No.
373, 	in which 	I 	found 	that Education Code 	section 44955 	poses
104

no 	impediment 	to 	the 	negotiability of 	a 	proposal 	concerning
order 	of 	layoff 	among 	certificated 	employees 	with 	the 	same 	date
of hire.
With 	these 	two 	exceptions 	noted, 	I 	concur 	with 	the
majority's 	decision.
105

II.
SAN MATEO CITY SCHOOL DISTRICT, 	CASE NO. 	SF-CE-36
This 	case 	arose 	from charges 	filed 	by 	the 	San Mateo
Elementary Teachers Association, CTA/NEA 	(SMETA), 	in which 	it
alleged 	that 	the 	District 	violated 	subsection 	3543.5(c) 	of 	the
Act 	by making 	unilateral 	changes 	in 	the 	length 	of 	the
instructional 	day 	and 	the 	amount 	of 	preparation 	time 	afforded
certificated 	employees.1
FACTS
It 	is 	undisputed 	that, 	during 	the 	1976-77 	and 	1977-78
negotiations, 	the 	District 	unilaterally 	adopted 	policies 	which
increased 	the 	length of 	the 	teachers' 	instructional day 	and
decreased 	the 	amount of 	teacher 	preparation 	time. 	In 	its
answer 	to 	the charge 	and 	during 	the 	hearing 	below, 	the District
contended 	that 	these 	changes 	were 	not 	negotiable. 	In 	its
submission on 	remand 	filed 	with 	the Board on August 	24, 	1983,
however, 	the District asserts 	that 	the 	parties 	did negotiate
over 	and 	reach 	agreement 	on 	these 	issues 	after 	the 	hearing
officer's proposed decision 	issued on January 10, 	1978. 	It 	is
the District's 	position 	that, 	based on 	these 	negotiations 	and
agreements, 	the 	issues 	that were originally 	in dispute 	"have
1The 	Association's 	initial charge 	alleged 	that 	the
District 	refused 	to negotiate 	over 	changes 	in 	rest 	time. 	The
record, 	however, 	does 	not 	show that 	the District 	refused 	to
negotiate 	over 	this 	subject. 	Since 	the District did 	not 	refuse
to negotiate 	rest 	periods, 	the 	negotiability of 	that 	issue 	is
not 	addressed 	herein.
106

been 	resolved 	to 	the 	satisfaction of 	the 	parties." 	The
District 	indicates, 	however, 	that because of 	the 	pendency of
litigation over 	these 	issues, 	it did 	not comply with PERB's
previous 	order 	to 	post 	a 	notice 	indicating 	that 	its 	unilateral
changes 	violated 	the Act.
DISCUSSION
Mootness 	The District's 	submission on 	remand may 	be 	read
to 	suggest 	that 	the 	instant 	case 	is moot 	in light of 	the
parties 1 subsequent 	negotiations 	and 	agreement 	on 	the 	disputed
issues. 	Any 	such 	assertion must be 	rejected. 	The mere
execution 	of 	a 	collective 	bargaining 	agreement 	subsequent 	to 	a
hearing 	"certainly does 	not 	lead 	to 	a 	conclusion 	that 	the
parties 	intended 	in 	that 	agreement 	to 	resolve 	the 	dispute."
Oakland Unified School District v. PERB, 	supra, 	(1981) 	120
Cal.App.3d 	1007, 	1010, 	affirming Oakland Unified School
District, 	supra, 	PERB Decision No. 	126. 	To warrant a finding
of mootness, 	the 	collective 	agreement must 	show 	that 	the
charging 	party 	has 	"clearly 	and 	unmistakably" 	waived 	its 	right
to 	proceed 	on 	the 	charge. 	(Timken Roller Bearing Company v.
NLRB 	(6th Cir. 	1963) 	325 F.2d 746, 	751, 	cited 	in Oakland
Unified School District, 	supra, 	PERB Decision No. 	126, 	at
p. 	1011; 	Amador Valley Joint Union High School District
(10/2/78) 	PERB Decision No. 	74.)
Despite 	the 	District's 	assertion 	that 	the 	charges 	in 	this
case 	"have 	been 	resolved 	to 	the 	satisfaction of 	the 	parties,"
107

the 	parties' 	agreement 	does 	not 	contain any language 	evincing
an 	intent 	by 	the Association 	to waive 	its 	right 	to 	proceed 	with
the 	pending 	charges; 	nor 	has 	the Association concurred 	in 	the
District's 	claim 	that 	the 	parties 	have 	satisfactorily 	resolved
the matter. 	Thus, 	under 	the Oakland 	rule, 	any argument 	that
the 	case 	was 	rendered 	moot 	by 	later 	negotiations 	and 	agreement
must 	be 	rejected.
The District's Unilateral Changes. 	The Board 	has 	long held
that 	a 	per 	se violation of 	the duty 	to negotiate 	in good 	faith
may 	occur 	when 	an 	employer 	unilaterally 	alters 	an 	established
policy 	concerning 	a 	matter 	within 	the 	scope 	of 	representation
without 	providing 	notice 	and 	a 	reasonable 	opportunity 	to
negotiate 	to 	the 	exclusive 	representative. 	Grant Joint Union
High School District, 	supra; 	Pajaro Valley Unified School
District, 	supra; 	NLRB v. 	Katz, 	supra. 	(Also see Moreno Valley
Unified School District v. 	PERB 	(1983) 	142 Cal.App.3d 	191,
199-200, 	citing with 	approval 	the Board's 	reasoning, 	in San
Mateo Community College District, 	supra, 	for 	finding 	unilateral
changes 	to be 	per 	se 	unfair 	practices.)
In Sutter Union High School District 	(10/7/81) 	PERB
Decision No. 	175, 	the Board held 	that 	preparation 	time 	is
negotiable. 	That 	decision has 	been 	reaffirmed 	in a number 	of
subsequent 	decisions 	(Moreno Valley Unified 	School 	District,
supra; 	Modesto City Schools 	(3/8/83) 	PERB Decision No. 	291;
Grossmont Union High School District 	(5/26/83) 	PERB 	Decision
No. 	313), 	and we so hold today.
108

Similarly, 	the Board 	has 	held 	that 	the 	length 	of 	the
teachers' 	instructional day 	is within 	the 	scope of
representation 	(Sutter Union High School District, 	supra;
Moreno Valley Unified School District, 	supra; 	Jefferson School
District, 	supra) 	and we also 	reaffirm that holding.
We, 	therefore, 	find 	that 	the District violated 	subsection
3543.5(c) 	and, 	concurrently, 	subsections 3543.5(a) 	and 	(b) 	when
it 	unilaterally 	increased 	the 	length 	of 	the 	teachers'
instructional 	day 	and decreased 	preparation 	time. 	San
Francisco Community College District, 	supra.
To remedy 	the District's 	unilateral actions, 	we 	find 	it
appropriate 	to 	order 	the 	District 	to post 	a 	notice 	to 	employees
indicating 	that 	its 	unilateral 	conduct 	violated 	the EERA. 	We
also 	find 	it 	appropriate 	to order 	the District, 	upon request,
to 	reinstate 	the 	amount 	of 	preparation 	time 	granted 	to
certificated 	employees 	prior 	to January 	1, 	1977 	and 	to meet 	and
negotiate 	the 	issues 	of 	preparation 	time 	and 	the 	length 	of 	the
teachers' 	instructional day.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law, 	and 	the
entire 	record 	in 	this case, 	and 	pursuant 	to Government Code
subsection 3541.5(c), 	it 	is hereby ORDERED that 	the San Mateo
City School 	District 	and 	its 	representatives 	shall:
109

A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	San Mateo Elementary Teachers 	Association,
CTA/NEA, 	with 	respect 	to 	teacher 	preparation 	time 	and 	length 	of
the 	teachers' 	instructional day.
(2) 	Interfering 	with 	the 	rights 	of 	employees 	to be
represented 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith.
(3) 	Denying 	the 	San Mateo Elementary Teachers
Association, 	CTA/NEA, 	the 	right 	to 	represent 	employees by
failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good 	faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(1) 	Reinstate 	the 	schedule 	with 	respect 	to
preparation 	time 	and 	length 	of 	the 	teachers' 	instructional day
that 	was 	in effect 	prior 	to January 1, 	1977, 	if 	the Association
so 	requests.
(2) 	Upon 	request, 	meet 	and 	negotiate 	in good 	faith
with 	the 	San Mateo Elementary Teachers Association, 	CTA/NEA,
with 	respect 	to 	preparation 	time 	and 	length 	of 	the 	teachers'
instructional 	day.
(3) 	Within 	thirty-five 	(35) 	days 	following 	the 	date
of 	service 	of 	this Decision, 	post 	at 	all work 	locations 	where
notices 	to 	employees 	customarily 	are 	placed, 	copies 	of 	the
Notice 	attached 	as 	an Appendix 	hereto, 	signed 	by 	an 	authorized
110

agent 	of 	the 	employer. 	Such 	posting 	shall be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be 	taken 	to 	insure 	that 	this Notice 	is 	not 	reduced 	in
size, 	defaced, 	altered or 	covered by any material.
(4) 	Written notification of 	the 	actions 	taken to
comply with 	this Order 	shall be made 	to 	the 	Regional Director
of 	the Public Employment 	Relations Board 	in 	accordance 	with 	her
instructions.
This Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	upon 	the San Mateo City School 	District.
By 	the BOARD
111

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-68, 	California
School 	Employees Association v. 	Healdsburg 	Union 	School 	District 	and
Healdsburg Union High 	School 	District, 	in which all parties had 	the
right 	to participate, 	it has been 	found 	that 	the Healdsburg Union
School 	District 	violated 	the 	Educational 	Employment 	Relations 	Act,
Government Code subsections 3543.5(a), 	(b) 	and 	(c) by failing and
refusing 	to meet 	and negotiate 	in 	good 	faith with 	the California
School 	Employees 	Association.
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 	California 	School 	Employees 	Association with 	regard
to: 	discrimination; 	organizational rights; 	job representatives;
employee expenses 	and materials; 	rights of bargaining unit upon
change in school districts; hiring; promotion; 	classification,
reclassification, 	and abolition of positions; 	layoff and
reemployment; disciplinary action; 	working conditions; 	training; 	and
contracting 	and bargaining 	unit 	work.
(2) 	Interfering with 	the rights 	of 	employees 	to be
represented by 	failing 	and 	refusing 	to meet 	and negotiate 	in 	good
faith.
(3) 	Denying 	the California 	School 	Employees 	Association
the 	right 	to 	represent 	employees by 	failing 	and 	refusing 	to meet 	and
negotiate 	in good 	faith.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
(1) 	Upon request, 	meet and negotiate 	in good 	faith with
the 	California 	School 	Employees 	Association with 	respect 	to 	those
subjects 	enumerated 	above 	to 	the 	extent 	that 	we have determined 	them
to be within 	the 	scope of representation.
Dated: 	HEALDSBURG UNION SCHOOL DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE WORKDAYS 	FROM THE DATE 	OF 	THE 	POSTING AND MUST NOT BE
DEFACED, 	ALTERED, 	REDUCED IN SIZE OR COVERED BY ANY OTHER MATERIAL.

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-68, 	California
School 	Employees 	Association v. 	Healdsburg Union 	School 	District 	and
Healdsburg Union High 	School 	District, 	in which all parties had 	the
right 	to participate, 	it has been 	found 	that 	the Healdsburg Union
High 	School 	District 	violated 	the 	Educational 	Employment 	Relations
Act, 	Government Code subsections 3543.5(a), 	(b) and 	(c) by failing
and refusing 	to meet 	and negotiate 	in good 	faith with 	the 	California
School 	Employees 	Association.
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 	California 	School 	Employees 	Association with 	regard
to: 	discrimination; 	organizational rights; 	job representatives;
employee expenses 	and materials; 	rights of bargaining unit upon
change in school districts; hiring; promotion; 	classification,
reclassification, 	and abolition of positions; 	layoff and
reemployment; 	disciplinary action; 	working conditions; 	training; 	and
contracting 	and bargaining 	unit 	work.
(2) 	Interfering with 	the rights 	of 	employees 	to be
represented by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith.
(3) 	Denying 	the California 	School 	Employees Association
the 	right 	to represent 	employees by 	failing 	and 	refusing 	to meet 	and
negotiate 	in good 	faith.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(1) 	Upon request, 	meet and negotiate 	in good 	faith with
the 	California 	School 	Employees 	Association with 	respect 	to 	those
subjects 	enumerated 	above 	to 	the 	extent 	that 	we have 	determined 	them
to be within 	the 	scope of 	representation.
Dated: 	HEALDSBURG UNION HIGH 	SCHOOL
DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	THE 	POSTING AND MUST NOT BE
DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER MATERIAL.

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-36, 	San Mateo
Elementary Teachers Association, 	CTA/NEA v. 	San Mateo City School
District, 	in which all parties had the right to participate, 	it has
been 	found 	that 	the 	San Mateo 	City 	School 	District 	violated 	the
Educational 	Employment 	Relations Act, 	Government Code 	subsections
3543.5(a), 	(b) 	and 	(c) by failing and refusing to meet and negotiate
in good 	faith with 	the 	San Mateo 	Elementary Teachers 	Association,
CTA/NEA.
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 	San Mateo Elementary Teachers 	Association, 	CTA/NEA,
with respect 	to 	teacher preparation 	time 	and 	teachers' 	instructional
day.
(2) 	Interfering with 	the 	right 	of 	employees 	to be
represented by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith.
(3) 	Denying 	the 	San Mateo Elementary Teachers Association,
CTA/NEA, 	the 	right 	to 	represent 	employees by 	failing 	and 	refusing 	to
meet and negotiate 	in good 	faith.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(1) 	Reinstate 	the 	schedule 	with 	respect 	to preparation 	time
and 	length of 	the 	teachers' 	instructional day that was 	in effect
prior 	to January 1, 	1977, 	if the Association so requests.
(2) 	Upon request, 	meet and negotiate 	in good 	faith with the
San Mateo Elementary Teachers Association, 	CTA/NEA, 	with respect 	to
preparation time 	and 	length of 	the 	teachers' 	instructional day.
Dated: 	SAN MATEO CITY SCHOOL DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE WORKDAYS 	FROM THE DATE OF THE 	POSTING AND MUST NOT 	BE
DEFACED, 	ALTERED, 	REDUCED IN SIZE OR COVERED BY ANY OTHER MATERIAL.