Gilroy Unified School District (PERB 0471E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
GILROY 	FEDERATION OF 	TEACHERS, 	AFT,
LOCAL 	19 21, 	AFL-CIO,
Charging 	Party,
v.
GILROY 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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____________________ )
Case 	No. 	SF-CE-608
PERB 	Decision No. 	471
December 	28, 	1984
Appearances: 	Garry, 	Dreyfus 	& McTernan, 	Inc. 	by 	Janet 	K. 	King,
Attorney, 	for 	Gilroy 	Federation 	of 	Teachers, 	AFT, 	Local 	1921,
AFL-CIO~ 	Littler, 	Mendelson, 	Fastiff 	& Tichy 	by 	Patricia 	P.
White, 	Attorney, 	for 	Gilroy 	Unified 	School 	District.
Before 	Hesse, 	Chairperson; 	Tovar, 	Jaeger, 	Morgenstern 	and 	Burt,
Members.
DECISION
BURT, 	Member: 	The 	Gilroy 	Unified 	School District
(District) 	excepts 	to 	the 	finding 	by 	an 	administrative 	law
judge 	(ALJ) 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	that 	it 	violated 	section 	3543.S(a), 	(b} 	and 	(c) 	of 	the
Rnuroationr.il 	Employment 	Relations Act 	(EERA) 1 by 	refusing 	to
negotiate 	paid 	release 	time 	for 	all 	employee 	members 	of 	the
bargaining 	commitee 	of 	the 	Gilroy 	Federation 	of 	Teachers, 	AFT,
Local 	1921, 	AFL/CIO 	(AFT).
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	hereafter 	are 	to 	the
Government 	Code 	unless 	otherwise 	indicated.

FACTS
The 	original 	charge 	alleged 	that 	the 	District 	interfered
with 	employee 	and 	organizational 	rights 	by 	refusing 	to 	provide
AFT's 	bargaining 	committee 	with 	reasonable 	paid 	release 	time 	as
required 	by 	the 	EERA 	section 	3543.l(c) • 2 The 	charge 	was
later 	amended 	to 	include 	an 	allegation 	that 	the 	District 	had
refused 	to 	negotiate 	on 	release 	time 	in 	violation 	of 	section
3543.S(c). 	Neither 	the 	original 	nor 	amended 	charge 	detailed
the 	District's 	allegedly 	unlawful 	conduct. 3 However, 	during
the 	unfair 	practice 	hearing, 	evidence 	was 	presented 	as 	to 	the
following:
AFT 	was 	the 	exclusive 	representative 	for 	both 	the
classified 	and 	the 	certificated 	units. 	It 	used 	a 	single
bargaining 	committee 	composed 	of 	both 	certificated 	and
classified 	employees 	to 	negotiate 	contracts 	for 	both 	units.
Several 	times 	in 	the 	past, 	AFT 	had 	used 	mixed 	teams 	to
negotiate 	classified 	contracts 	and 	once 	to 	negotiate 	a
supplemental 	contract 	for 	certificated 	employees.
2section 	3543.l(c) 	reads:
(c) 	A 	reasonable 	number 	of 	representatives
of 	an 	exclusive 	representative 	shall 	have
the 	right 	to 	receive 	reasonable 	periods 	of
release 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
3The 	District 	filed 	no 	exception 	to 	the ALJ 1 s 	failure 	to
consider 	the 	objection 	raised 	in 	its 	answer 	that 	the 	charge
failed 	to 	state 	a 	prima 	facie 	case. 	Board 	regulation 	32300(c)
provides 	that 	a 	matter 	not 	excepted 	to 	is 	deemed 	waived.
2

From 	the 	start 	of 	negotiations 	in 	the 	summer 	of 	1981, 	the
District 	and AFT 	bargained 	for 	both 	units 	at 	the 	same
sessions. 	Agendas 	included 	items 	concerning 	teachers 	and 	aides
and 	the 	District 	made 	counterproposals 	to 	both 	units. 	When
school 	resumed 	in 	September, 	AFT 	proposed 	that 	negotiations
take 	place 	during 	the 	workday 	and 	that 	the 	District 	provide
paid 	release 	time 	to 	all 	of 	its 	committee 	members. 	The
District 	proposed 	that 	negotiations 	for 	the 	two 	units 	take
place 	separately 	during 	school 	hours.
Although 	there 	is 	no 	record 	of 	any 	reference 	to 	the
composition 	of 	the AFT 	committee 	or 	to 	release 	time 	in 	the
District 	proposal, 	it 	is 	clear 	that 	the 	District's 	position 	was
to 	refuse 	to 	pay 	certificated 	or 	classified 	employees 	while
engaged 	in 	negotiations 	on 	behalf 	of 	a 	unit 	other 	than 	that 	in
which 	they 	were 	employed. 	Larry 	Gable, 	AFT's 	negotiator 	for
both 	units 	on 	economic 	issues, 	testified 	that 	when 	they
requested 	release 	time 	for 	all 	members 	of 	the 	negotiating 	team:
The 	District's 	response 	was 	that 	it 	did 	not
want 	to 	give 	release 	time 	to 	certificated
members 	to 	bargain 	aide 	issues 	and 	vice
versa. 	They 	[sic] 	were 	to 	be 	two 	separate
teams, 	certificated 	bargaining, 	certificated
issues 	and 	aides 	bargaining, 	aide 	issues.
He 	later 	testified 	that 	there,
••• was 	no 	problem with 	agendas 	that
included 	both 	aide 	and 	certificated 	issues.
The 	problem was 	getting 	reasonable 	release
time 	to 	negotiate 	those 	agendas.
3

District 	negotiator 	Dave 	Downey 	testified:
No, 	we 	wouldn't 	mind 	if 	certificated 	wanted
to 	take 	time 	off 	without 	pay. 	we 	would 	be
concerned 	that 	they 	would 	be 	out 	of 	the
classroom, 	but 	we've 	never 	objected 	to 	who
represents 	them.
And 	later 	in 	the 	same 	testimony:
Our 	offer 	was 	to 	negotiate 	during 	the 	day
and 	provide 	released 	time 	for 	those
bargaining 	unit 	members 	whose 	issues 	we 	were
bargaining.
And 	finally, 	he 	stated:
I 	can 	assure 	you, 	we 	were 	not 	willing 	to
provide 	released 	time 	to 	certificated
bargaining 	unit 	members 	to 	negotiate 	on
classified 	issues.
In 	view 	of 	the 	stalemate, 	AFT 	rejected 	the 	District's
proposal 	and 	suggested 	that 	the 	parties 	return 	to 	negotiations
after 	school 	hours. 	The 	parties 	did 	so, 	negotiating 	for 	both
units 	at 	the 	same 	sessions.
AFT 	then 	filed 	the 	instant 	charge. 	Shortly 	thereafter, 	the
District 	filed 	an 	unfair 	practice 	charge 	alleging 	that AFT
unlawfully 	insisted 	upon 	negotiating 	for 	both 	units 	at 	the 	same
time.
Prior 	to 	the 	commencement 	of 	the 	PERB 	hearing, 	the 	parties
entered 	into 	a 	stipulation 	pursuant 	to 	which 	the 	District
withdrew 	its 	charge 	and AFT 	agreed 	to 	negotiate 	for 	each 	unit
in 	separate 	sessions 	in 	the 	future. 	The 	stipulation 	was 	silent
on 	the 	question 	of 	release 	time 	but 	explicitly 	acknowledged 	the
parties' 	right 	to 	use 	bargaining 	committee 	members 	of 	their 	own
choosing.
4

DISCUSSION
An 	employee 	organization 	has 	the 	right 	to 	choose 	its 	own
bargaining 	representative. 	General 	Electric 	Co. 	v. 	NLRB 	(2d
Cir. 	1969) 	412 F.2d 	512 	[71 	LRRM 	2418]; 	San 	Ramon 	Valley
Unified 	School 	District 	(8/9/82) 	PERB 	Decision No. 	230, 	p. 	16.
The 	EERA 	places 	no 	limitations 	on 	this 	right. 	Moreover, 	EERA
section 	3543.l(c) 	provides 	that:
A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	••••
A 	refusal 	to 	grant 	released 	time 	is 	a 	violation 	of 	3543.S(b).
Muroc 	Unified 	School 	District 	(12/15/78) 	PERB 	Decision No. 	80;
Magnolia 	School District 	(6/27/77) 	EERB 	Decision No. 	19. 4
Release 	time 	proposals 	are 	within 	the 	scope 	of 	representation
and 	the 	parties 	may 	negotiate 	what 	constitutes 	a 	"reasonable"
number 	of 	representatives 	and 	a 	"reasonable" 	amount 	of 	release
time.
In 	the 	instant 	case, 	AFT 	at 	all 	times 	wished 	to 	employ 	a
single 	bargaining 	committee 	composed 	of 	both 	classified 	and
certificated 	employees. 	Although 	the 	subject 	of 	release 	time
arose 	in 	negotiations 	and 	the 	District made 	several 	offers, 	it
is 	clear 	that, 	at 	all 	times, 	the 	District 	denied 	any 	obligation
to 	grant 	or 	negotiate 	even 	a 	minimal 	amount 	of 	release 	time
4prior 	to 	January 	1, 	1978, 	PERB 	was 	known 	as 	the
Educational Employment 	Relations 	Board.
5

for 	employee-members 	of AFT's 	mixed 	bargaining 	team 	while
negotiating 	on 	behalf 	of 	the 	unit 	in 	which 	they 	were 	not
employed. 	Thus, 	the 	central 	issue 	raised 	by 	these 	facts 	is
whether 	the 	District 	violated 	section 	3543.S(a), 	(b) 	and 	(c) 	by
refusing 	to 	negotiate 	release 	time 	for 	employee-members 	of 	the
union 	bargaining 	team, 	irrespective 	of 	which 	unit 	they 	were
bargaining 	for. 	We 	conclude 	that 	the 	answer 	depends 	on 	the
particular 	course 	the 	negotiations 	take.
The 	record 	supports 	a 	finding 	that 	the 	parties
contemplated 	three 	distinct 	negotiating 	procedures 	during 	the
course 	of 	their 	discussions: 	1) 	negotiation, 	during 	separate
sessions, 	of 	separate 	and 	independent 	contracts 	for 	the
classified 	and 	certificated 	units; 	2) 	negotiation, 	during 	the
same 	sessions, 	of 	separate 	and 	independent 	contracts 	for 	the
classified 	and 	certificated 	units; 5 and 	3) 	merger 	of 	both
unit 	negotiations. 6
Coordinated 	bargaining: 	This 	practice, 	usually 	involving
bargaining 	teams 	with 	members 	from 	different 	unions
representing 	other 	groups 	of 	the 	employer's 	workers, 	is 	common
in 	the 	private 	sector 	and 	has 	found 	administrative 	and 	judicial
approval. 7 In 	General 	Electric 	Co. 	v. 	NLRB 	(2and 	Cir. 	1969)
5This 	is 	referred 	to 	as 	"coordinated" 	bargaining.
6This 	is 	referred 	to 	as 	"coalition," 	or 	"merged"
bargaining.
7see 	Gorman, 	Labor 	Law Basic 	Text 	(1976) 	pp. 	404-405.
6

412 F. 2d 	512 	[ 71 	LRRM 	2418], 	the 	court 	noted 	that 	section 	7 	of
the 	National 	Labor 	Relations Act 	(NLRA) 	guarantees 	the 	right 	of
employees 	to 	bargain 	through 	representatives 	of 	their 	own
choosing 	and 	that 	an 	employer 	cannot 	object 	to 	the 	selection 	of
representatives 	unless 	there 	is 	a 	"clear 	and 	present 	danger" 	to
the 	collective 	bargaining 	process. 	The 	court 	explained 	why
coordinated 	bargaining 	receives 	section 	7 	protection, 	pointing
out 	that 	through 	this 	practice 	the 	union 	can 	enhance 	its
bargaining 	expertise 	and 	counterbalance 	the 	employer's
centralized 	formulation 	of 	labor 	relations 	policy. 	See 	also,
Standard 	Oil 	Co. 	v. 	NLRB 	(6th 	Cir. 	1963) 	332 F.2d 	40 	[50 	LRRM
1238]; 	Minnesota 	Mining 	& Mfg. 	Co. 	(1968) 	173 	NLRB 	275 	[69 	LRRM
1313]; 	NLRB 	v. 	Indiana 	& Michigan 	Electric 	Co. 	(7th 	Cir. 	1979)
599 	F.2d 	185 	[101 	LRRM 	24701. 	In American 	Radiator 	and
Standard 	Sanitary Corp. 	(1965) 	155 	NLRB 	736 	[60 	LRRM 	1385], 	the
NLRB 	concluded 	that 	the 	composition 	of 	the 	employees'
bargaining 	committee 	is 	the 	internal 	bu~iness 	of 	the 	union 	over
which 	the 	employer 	has 	no 	control 	and 	that 	the 	employer 	was 	not
relieved 	of 	its 	duty 	to 	bargain 	by 	the 	presence 	of 	"outsiders"
on 	the 	employees' 	negotiating 	team.
Merged/Coalition 	bargaining: 	It 	is 	necessary 	at 	the 	outset
to 	distinguish 	between 	the 	negotiations 	of 	separate 	unit
agreements 	during 	common 	sessions 	("coordinated" 	bargaining)
and 	the 	merger 	of 	negotiations 	for 	two 	or 	more 	units
("coalition" 	bargaining). 	In 	the 	first 	case, 	the 	respective
unit 	proposals 	are 	considered 	independently 	of 	each 	other 	and
7

the 	settlement 	of 	one 	contract 	is 	not 	dependent 	upon 	the
settlement 	of 	the 	other. 	The 	only 	significant 	area 	of
commonality 	is 	the 	use 	of 	the 	same 	bargaining 	sessions 	to
address 	the 	separate 	issues. 	In 	coalition 	bargaining, 	however,
negotiations 	are 	directed 	toward 	similar 	contracts, 	containing
the 	same 	or 	similar 	provisions. 	Further, 	the 	settlement 	of
each 	contract 	is 	usually 	dependent 	upon 	the 	settlement 	of 	the
others. 	The 	fundamental 	legal 	distinction 	that 	we 	perceive
between 	coordinated 	and 	coalition 	bargaining 	is 	that 	the 	first
is 	a 	mandatory 	subject 	of 	bargaining 	requiring 	good 	faith
response, 	and 	the 	other 	is 	not. 	See, 	I. 	Morris, 	The 	Developing
Labor 	Law 	(2d 	Ed. 	1983) 	pp. 	666-667.
The 	use 	of 	common 	bargaining 	sessions 	to 	negotiate 	separate
agreements 	merely 	goes 	to 	the 	time 	and 	place 	of 	negotiations
and 	does 	not 	impinge 	on 	the 	integrity 	of 	the 	individual 	units
or 	the 	employer's 	right 	to 	consider 	unit 	proposals 	on 	their 	own
merits. 	For 	example, 	there 	is 	no 	significant 	difference
between 	a 	negotiating 	session 	during 	which 	the 	parties 	spend
the 	first 	hour 	on 	teachers' 	issues 	and 	then 	proceed 	to
classified 	issues 	for 	the 	remaining 	hour 	and 	two 	separate
sessions 	of 	one 	hour 	each, 	separated 	by 	just 	enough 	time 	to
close 	one 	session 	and 	open 	the 	other. 	It 	follows 	that 	a
proposal 	to 	negotiate 	two 	separate 	contracts 	during 	the 	same
bargaining 	sessions 	falls 	within 	the 	right 	of 	a 	party 	to
suggest 	reasonable 	times 	and 	intervals 	for 	bargaining
8

sessions. 	See Anaheim Union 	School 	District 	(11/28/81) 	PERB
Decision No. 	177.
On 	the 	other 	hand, 	the 	merger 	of 	two 	or 	more 	unit
negotiations 	inherently 	alters 	the 	finding 	of 	unit
appropriateness 	established 	by 	the 	recognition 	or 	certification
process 	and 	affects 	the 	employer's 	resulting 	bargaining
obligation. 	The 	duty 	imposed 	on 	employers 	and 	labor
organizations 	to 	bargain 	collectively:
is 	predicated 	on 	the 	cardinal 	principle 	that
the 	existing 	unit, 	whether 	established 	by
certification 	or 	voluntary 	recognition,
fixes 	the 	periphery 	of 	the 	bargaining
obligation.
Utility workers 	Union 	of
America AFL-CIO 	(1973) 	203
NLRB 	55.
In 	Operating 	Engineers 	Local 	428 	(1970) 	184 	NLRB 	112, 	the 	NLRB,
citing 	Douds 	v. 	International 	Longshoremen 1 s 	Association 	241
F.2d 	278, 	NLRB 	v. 	Wooster 	Division 	of 	Borg-Warner 	Corp. 	356
u.s. 	342, 	and 	others, 	stated:
••• 	it 	is 	well 	established 	that 	the
integrity 	of 	a 	bargaining 	unit, 	whether
established 	by 	certification 	or 	voluntary
agreement 	of 	the 	parties, 	cannot 	as 	here 	be
unilaterally 	attacked. 	The 	conduct 	of
negotiations 	on 	a 	basis 	broader 	than 	the
established 	bargaining 	unit 	is
non-mandatory, 	and 	the 	Respondent's
insistence 	that 	the 	Charging 	Party 	engage 	in
such 	bargaining 	was 	violative 	of 	the Act.
It 	follows 	that 	a 	proposal 	for 	merger 	of 	unit 	negotiations
cannot 	be 	deemed 	a 	mandatory 	subject 	for 	bargaining. 	To
justify 	a 	refusal 	to 	bargain 	on 	these 	grounds, 	however, 	a
9

considerable 	burden 	lies 	with 	the 	employer 	to 	establish 	that 	it
had 	adequate 	basis 	for 	concluding 	that 	the 	union's 	intent 	was
to 	force 	the 	employer 	to 	engage 	in 	such 	nonmandatory 	coalition
bargaining. 	Harley 	Davidson 	Motor 	Co., 	Inc. 	(1974) 	214 	NLRB
433 	[87 	LRRM 	1571]; 	NLRB 	v. 	Indiana 	& Michigan 	Electric 	Co.
(7th Cir. 	1979) 	599 	F.2d 	185 	[101 	LRRM 	2470]; 	Morris,
The 	Developing 	Labor 	Law, 	supra, 	at 	p. 	670.
In 	the 	instant 	case, 	it 	is 	difficult 	to 	be 	certain 	whether
AFT 	intended 	the 	negotiations 	in 	the 	fall 	to 	be 	coordinated 	or
merged. 	The 	evidence 	on 	this 	point 	is 	lean 	and 	what 	exists 	is
ambiguous. 	AFT 	contends, 	however, 	that 	it 	intended 	to
negotiate 	each 	contract 	separately 	and 	that 	a 	mixed 	team was
chosen 	in 	order 	to 	enhance 	the 	union's 	negotiating 	expertise
and, 	hopefully, 	to 	streamline 	the 	process. 	The 	burden 	is 	on
the 	employer 	to 	show 	that 	they 	had 	adequate 	basis 	for
concluding 	this 	was 	not 	the 	case, 	however, 	and 	we 	find 	the
District 	did 	not 	satisfy 	this 	requirement. 	The 	issue, 	thus, 	is
whether 	the 	EERA, 	like 	the 	NLRA, 	protects 	coordinated
bargaining.
The 	EERA 	adopts 	the 	NLRA 	section 	7 	principle 	of 	protecting
the 	employees' 	free 	choice 	of 	representatives. 	Section 	3543
provides, 	in 	part, 	that 	employees 	shall 	have 	the 	right 	to:
form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations.
10

Section 	3540.l(d) 	includes 	in 	the 	definition 	of 	employee
organization, 	"any 	person 	such 	an 	organization 	authorizes 	to
act 	on 	its 	behalf."
We 	do 	not 	read 	the 	provisions 	relied 	on 	by 	the 	District 	as
proscribing 	coordinated 	bargaining. 	Nothing 	in
section 	3543.l(c) 	specifies 	who 	may 	or 	may 	not 	serve 	as
"representatives 	of 	an 	exclusive 	representative" 	or 	otherwise
negates 	the 	contrary 	indication 	of 	section 	3540.l(d). 	Nor 	do
we 	construe 	the 	use 	of 	the 	disjunctive 	"or" 	in 	section
3540.l(e) , 8 read 	alone 	or 	together 	with 	section
3 54 5 ( b) ( 3) , 9 to 	have 	such 	an 	effect. 	The 	fir st 	of 	these
sections 	merely 	defines 	an 	exclusive 	representative. 	The
second 	precludes 	the 	placement 	of 	classified 	and 	certificated
employees 	in 	the 	same 	bargaining 	unit.
8section 	3540.l(e) 	reads:
(e) 	"Exclusive 	representative" 	means 	the
employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	negotiating
representative 	of 	certificated 	or 	classified
employees 	in 	an 	appropriate 	unit 	of 	a 	public
school 	employer.
9section 	3545(b) (3) 	reads:
(3) 	Classified 	employees 	and
certificated 	employees 	shall 	not 	be
included 	in 	the 	same 	negotiating 	unit.
11

In 	its 	exceptions, 	the 	District 	contends 	that 	the
difference 	in 	community 	of 	interest 	between 	the 	two 	groups
underlying 	the 	prohibition 	against 	combined 	units 	is 	germane 	to
the 	issue 	of 	paid 	released 	time. 	We 	disagree. 	Granted, 	for
the 	sake 	of 	argument, 	that 	the 	Legislature 	perceived 	the
differences 	between 	the 	interests 	of 	classified 	and
certificated 	employees 	as 	being 	sufficiently 	substantial 	to
preclude 	a 	combined 	unit, 	section 	3543(b) (3) 	should 	not 	be
stretched 	to 	include 	an 	intention 	to 	bar 	the 	use 	by 	classified
employees 	of 	teacher-negotiators 	possessing 	special 	negotiating
skills 	or 	particular 	knowledge 	pertinent 	to 	classified 	employee
concerns. 	Both 	qualifications 	are 	irrelevant 	to 	the
differences 	in 	community 	of 	interest 	and 	both 	enhance 	the
employee 	organization's 	ability 	to 	deal 	with 	the 	employer's
centrally-formulated 	labor 	relations 	policy.
Had 	the 	Legislature 	intended 	to 	prohibit 	the 	use 	of 	mixed
committees, 	it 	could 	have 	done 	so 	by 	specific 	interdiction 	as
it 	did 	elsewhere 	in 	EERA 	and 	as 	it 	did 	in 	the 	State
Employer-Employee 	Relations Act 	(SEERA) .i
1 11
v 	EERA 	section
3543.4 	limits 	the 	right 	of 	managerial 	and 	confidential
employees 	to 	representation 	by 	organizations 	composed
exclusively 	of 	such 	employees. 	SEERA 	section 	3522.2 	is 	an 	even
clearer
lOsEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq.
12

demonstration 	of 	the 	legislative 	ability 	to 	put 	its 	objections
into 	language 	which 	leaves 	no 	doubt 	as 	to 	its 	intentions. 	It
reads:
(a) 	Supervisory 	employees 	shall 	not
participate 	in 	the 	handling 	of 	grievances 	on
behalf 	of 	nonsupervisory 	employees.
Nonsupervisory 	employees 	shall 	not
participate 	in 	the 	handling 	of 	grievances 	on
behalf 	of 	supervisory 	employees.
(b) 	Supervisory 	employees 	shall 	not
participate 	in 	meet 	and 	confer 	sessions 	on
behalf 	of 	nonsupervisory 	employees.
Nonsupervisory 	employees 	shall 	not
participate 	in meet 	and 	confer 	sessions 	on
behalf 	of 	supervisory 	employees.
(c) 	The 	prohibition 	in 	subdivisions 	(a) 	and
(b) 	shall 	not 	be 	construed 	to 	apply 	to 	the
paid 	staff 	of 	an 	employee 	organization.
(d) 	Supervisory 	employees 	shall 	not 	vote 	on
questions 	of 	ratification 	or 	rejection 	of
memorandums 	of 	understanding 	reached 	on
behalf 	of 	nonsupervisory 	employees.
Presumably, 	the 	Legislature 	was 	mindful 	of 	and 	approved 	the
well-established 	principle 	that 	an 	employer 	is 	entitled 	to 	the
undivided 	loyalty 	of 	its 	supervisory 	cadre, 	and 	that 	such
loyalty 	would 	be 	compromised 	if 	supervisors 	were 	permitted 	to
join 	with 	their 	subordinates 	in 	bargaining 	with 	the
employer. , ,
LL 	However, 	the 	Legislature 	is 	also 	presumed 	to
have 	been 	aware 	of 	the 	practice 	of 	coordinated 	bargaining, 	yet
11see 	Sacramento 	City 	unified 	School 	District 	(3/25/80)
PERB 	Decision No. 	122.
13

EERA 	contains 	no 	prohibition 	against 	the 	practice. 	We 	conclude
that 	it 	has 	legislative 	approval.
The 	District 	insists 	that 	the 	Legislature 	nevertheless
disapproved 	paid 	release 	time 	for 	such 	lawful 	committees. 	When
the 	purposes 	of 	coordinated 	bargaining 	committees 	is 	considered
together 	with 	the 	rationale 	underlying 	section 	3543.l(c), 	we
are 	led 	to 	the 	conclusion 	that 	employee 	members 	of 	a 	bargaining
committee 	are 	entitled 	to 	the 	benefits 	of 	the 	EERA 	provision
irrespective 	of 	their 	unit 	membership.
In Anaheim Union 	School 	District, 	supra, 	this 	Board 	found
that 	a 	legislative 	purpose 	in 	enacting 	section 	3543.l(c) 	was 	to
further 	its 	interest 	in 	expedited 	negotiations. 	Toward 	that
end, 	it 	made 	it 	possible 	for 	employees 	to 	conduct 	negotiations
during 	school 	hours 	without 	loss 	of 	pay. 	Employee 	negotiators
would 	not 	be 	forced 	either 	to 	bargain 	during 	personal 	time 	or
forfeit 	pay 	for 	sessions 	during 	school 	time, 	either 	of 	which
would 	likely 	result 	in 	shorter 	bargaining 	meetings 	over 	a
longer 	period 	of 	time. 	To 	adopt 	the 	District's 	reasoning 	here
would 	be 	counterproductive 	to 	the 	legislative 	objective.
These 	considerations 	aside, 	we 	find 	the 	District's 	refusal
to 	negotiate 	paid 	release 	time 	under 	any 	circumstances 	for 	all
employee-members 	of 	the 	committee 	violates 	section 	3543.S(a)
because 	it 	inherently 	interferes 	with 	the 	employees 1 	exercise
of 	their 	statutory 	right 	to 	choose 	their 	own 	representatives.
The 	District 1 s 	refusal, 	if 	upheld, 	would 	have 	the 	tendency 	to
14

discourage 	those 	employees 	who 	would 	not 	be 	provided 	with 	the
benefits 	of 	section 	3543.l(c) 	from 	serving 	on 	bargaining
committees. 	In 	so 	deciding, 	we 	consider 	the 	District's 	attempt
to 	justify 	its 	position 	by 	expressing 	concern 	that 	teachers,
who 	participate 	in 	bargaining 	on 	behalf 	of 	classified 	employees
as 	well 	as 	on 	their 	own 	behalf, 	would 	be 	away 	from 	their
classrooms 	twice 	as 	often 	as 	would 	otherwise 	be 	necessary.
We 	find 	in 	the 	record 	no 	evidence 	that 	the 	District
entertained 	the 	thought 	of 	meeting 	its 	concerns 	by 	proposing
that 	negotiations 	be 	divided 	between 	school 	and 	after-school
hours 	with 	paid 	release 	time 	limited 	to 	the 	daytime 	sessions.
In 	response 	to 	the ALJ's 	questions 	concerning 	this 	possibility,
the 	District 	was 	only 	unable 	to 	recall AFT 	ever 	making 	such 	a
proposal. 	The 	District 	clearly 	made 	none 	of 	its 	own, 	remaining
immovable 	in 	its 	rejection 	of 	paid 	released 	time 	for 	some
members 	of 	the 	committee.
In 	view 	of 	the 	fact 	that 	the 	District 	did 	not 	refuse 	to
negotiate 	with 	a 	mixed 	committee 	for 	both 	units 	and, 	indeed,
acknowledged AFT's 	right 	to 	use 	such 	a 	committee, 	it 	is
possible 	that 	it 	hoped 	to 	discourage 	that 	practice 	by 	its
refusal 	to 	provide 	paid 	time 	off. 	If 	so, 	such 	a 	strategy 	must
fail. 	At 	any 	rate, 	it 	is 	our 	view 	that 	the 	right 	to 	choose
one's 	own 	representatives 	is 	the 	sine 	qua~ 	of 	the 	collective
bargaining 	scheme. 	The 	employees' 	opportunity 	to 	exercise 	that
15

right 	has 	not 	been 	outweighed 	by 	the 	justification 	the 	District
offers • 12
Further, 	the 	District's 	refusal 	to 	consider 	paid 	release
time 	violated 	section 	3543.S(b). 	By 	its 	tendency 	to 	discourage
participation 	on 	the AFT 	committee, 	the 	proposal 	would 	give 	the
District 	the opportunity 	to 	assert 	prohibited 	control 	over 	the
committee's 	composition 	and 	interfere 	with AFT's 	right, 	as
exclusive 	representative, 	to 	authorize 	any 	person 	to 	act 	on 	its
behalf.
In Anaheim, 	the 	Board 	indicated 	that 	the 	area 	of
negotiability 	open 	to 	the 	employer 	included 	the 	total 	number 	of:
negotiators 	to 	be 	provided 	with 	paid 	release 	time 	and 	the
amount 	of 	time 	during 	which 	such 	payment 	would 	be 	made. 	The
Board 	intended 	then, 	and 	now 	makes 	clear, 	that 	an 	employer 	may
not 	insist, 	as 	the 	District 	attempted 	to 	do 	here, 	on 	which
particular 	employee 	members 	of 	the 	committee 	shall 	be 	granted
release 	time.
CONCLUSION
The 	District's 	refusal 	to 	grant 	or 	negotiate 	any 	release
time 	for 	the 	negotiation 	of 	separate 	agreements 	for 	the 	two
units 	violated 	EERA 	section 	3543.S(c) 	and, 	concurrently,
sections 	3543.S(a) 	and 	(b).
12carlsbad 	Unified 	School 	District 	(l/30/79) 	PERB
Decision No. 	89.
16

ORD.ER
Based 	on 	the 	record 	before 	it, 	the 	Public 	Employment
Relations 	Board 	ORDERS 	that 	the 	Gilroy 	Unified 	School 	District
shall 	cease 	and 	desist 	from 	refusing 	to 	negotiate 	the 	matter 	of
paid 	release 	time 	for 	any 	employee-members 	of 	the 	exclusive
representative's 	bargaining 	committee 	while 	engaged 	in
negotiations 	conducted 	in 	a 	manner 	protected 	by 	EERA, 	as 	herein
described. 13
Members 	Tovar 	and 	Jaeger 	joined 	in 	this 	Decision.
Member 	Morgenstern's 	dissent 	begins 	on 	page 	18. 	Chairperson
Hesse 	joined 	in 	this 	dissent.
13Because AFT 	is 	no 	longer 	the 	exclusive 	representative
of 	both 	the 	certificated 	and 	classified 	units, 	we 	do 	not 	order
the 	posting 	of 	a 	remedial 	notice.
17

Morgenstern, 	Member, 	dissenting: 	Stripping 	away 	an
abundance 	of 	verbiage 	on 	issues 	only 	peripherally, 	if 	at 	all,
related 	to 	this 	case, 	the 	gist 	of 	the 	majority's 	Decision 	is
that 	the 	District 	violated 	its 	obligation 	to 	negotiate 	in 	good
faith 	by 	adopting 	and 	maintaining 	the 	position 	that 	it 	would
not 	agree 	to 	an 	Association 	proposal 	that 	it 	provide 	released
time 	for 	employee 	members 	of 	one 	unit 	to 	bargain 	on 	behalf 	of 	a
different 	unit. 	The 	majority 	does 	not 	otherwise 	fault 	the
District's 	bargaining 	conduct 	and 	concedes 	that 	the 	District
negotiated 	regarding 	released 	time 	on 	at 	least 	six 	occasions
and 	advanced 	several 	proposals 	on 	the 	subject. 1
In 	our 	view, 	no 	violation 	can 	be 	found 	on 	these 	facts.
We 	have 	long 	held, 	consistent 	with 	federal 	precedent, 	that
EERA 	does 	not 	require 	the 	parties 	to 	negotiations 	to 	reach
agreement 	or 	make 	concessions 	on 	every 	proposal. 	Thus, 	adamant
insistence 	on 	a 	bargaining 	position 	is 	not 	necessarily 	a
refusal 	to 	bargain 	in 	good 	faith. 	Rather, 	it 	is 	necessary 	to
consider 	the 	totality 	of 	the 	circumstances. 	Oakland 	Unified
School 	District 	(11/2/81) 	PERB 	Decision 	No. 	178.
Here, 	the 	District 	demonstrated 	a 	good 	faith 	effort 	to
reach 	agreement 	on 	the 	released 	time 	issue 	by 	making 	two
lThe 	District 	offered 	to 	provide 	released 	time 	for
bargaining 	unit 	members 	while 	negotiating 	for 	their 	unit. 	It
later 	offered 	to 	provide 	released 	time 	for 	each 	bargaining
unit, 	with 	back-to-back 	negotiating 	sessions 	and 	a 	break
between 	the 	two 	sessions 	for 	the 	teams 	to 	caucus 	and 	compare
notes.
18

significantly 	different 	counterproposals 	of 	its 	own, 	and 	by
willingly 	discussing 	the 	subject 	on 	six 	separate 	occasions. 	In
addition, 	there 	is 	testimony 	that 	the 	District 	was 	particularly
eager 	to 	reach 	agreement 	on 	released 	time 	because 	its
negotiating 	committee 	also 	preferred 	to 	meet 	during 	school
hours. 	Given 	these 	facts, 	we 	cannot 	conclude 	that 	the 	District
lacked 	the 	requisite 	good 	faith 	or 	subjective 	intent 	to 	reach
agreement 	as 	to 	constitute 	bad 	faith 	bargaining. 	Pajaro 	Valley
Unified 	School 	District 	(5/22/78) 	PERB 	Decision 	No. 	51; 	Muroc
Unified 	School 	District 	{12/15/78) 	PERB 	Decision 	No. 	80.
Moreover, 	we 	would 	find 	that 	the 	specific 	proposal 	to 	which
the 	District 	refused 	to 	accede 	was 	beyond 	the 	scope 	of
representation 	under 	EERA. 2 The 	District, 	therefore, 	had 	no
obligation 	to 	negotiate 	the 	proposal.
In 	Anaheim Union 	High 	School 	District 	(10/28/81) 	PERB
Decision 	No. 	177, 	we 	held 	that, 	although 	released 	time 	is 	not 	a
specifically 	enumerated 	subject 	in 	scope, 	it 	is 	logically 	and
2section 	3543.2 	provides, 	in 	pertinent 	part, 	as 	follows:
(a) 	The 	scope 	of 	representation 	shall 	be
limited 	to 	matters 	relating 	to 	wages, 	hours
of 	employment, 	and 	other 	terms 	and
conditions 	of 	employment. 	"Terms 	and
conditions 	of 	employment" 	mean 	health 	and
welfare 	benefits 	••• 	leave, 	transfer 	and
reassignment 	policies, 	safety 	conditions 	of
employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	••• 	procedures 	for
processing 	grievances 	••• 	and 	the 	layoff
of 	probationary 	certificated 	school 	district
employees 	••••
19

reasonably 	related 	to 	both 	the 	wages 	and 	hours 	of 	employment 	of
unit 	members 	and, 	therefore, 	is 	negotiable. 	As 	the 	majority
itself 	notes, 	the 	Board 	indicated 	that 	the 	area 	of
negotiability 	includes 	the 	number 	of 	representatives 	released
for 	negotiations 	and 	the 	amount 	of 	time 	to 	be 	compensated: 	that
is, 	what 	constitutes 	a 	"reasonable" 	number 	of 	representatives
and 	a 	"reasonable" 	amount 	of 	released 	time 	as 	required 	by
section 	3543 .1 (c) • 3
The 	Board 	did 	not 	suggest 	that 	the 	identity 	of 	the
Association's 	team 	is 	negotiable 	nor 	that 	released 	time, 	or 	any
other 	matter 	pertaining 	to 	persons 	who 	are 	not 	members 	of 	the
bargaining 	unit, 	are 	negotiable. 	See, 	e.g., 	Healdsburg 	Union
High 	School 	District 	and 	Healdsburg 	Union 	School 	District/San
Mateo 	Unified 	School 	District 	(1/5/84) 	PERB 	Decision 	No. 	375
(proposals 	affecting 	short-term 	employees 	who 	are 	not 	unit
members 	are 	out 	of 	scope); 	Allied 	Chemical 	& 	Alkali 	Workers 	v.
Pi t ts burgh 	Plate 	G1 ass 	Co • 	( 19 71 ) 	4 0 4 	U • S • 	15 7 	[ 7 8 	L RRM 	2 9 7 4 ]
(benefits 	of 	retired 	employees 	who 	are 	not 	members 	of 	the 	unit
are 	not 	mandatory 	subjects 	of 	bargaining).
Similarly, 	here, 	the 	Association's 	proposal 	to 	provide
released 	time 	for 	non-unit 	members 	is 	simply 	not 	logically 	or
3section 	3543.l(c) 	provides:
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
20

reasonably 	related 	to 	the 	wages, 	hours, 	or 	any 	condition 	of
employment 	of 	members 	of 	the 	bargaining 	unit 	and 	is, 	therefore,
out 	of 	scope. 	Anaheim, 	supra.
As 	the 	majority 	correctly 	notes, 	the 	Association 	has 	a
broad 	right 	to 	freely 	select 	its 	bargaining 	committee. 	That
right 	is 	not 	at 	issue 	in 	this 	case, 	the 	majority's 	arguments
notwithstanding. 4 Thus, 	a 	union 	may 	include 	on 	its
bargaining 	committee, 	for 	example, 	local 	and 	international
union 	staff, 	lawyers, 	experts, 	and 	members 	of 	sister 	locals 	as
well 	as, 	in 	this 	case, 	members 	of 	other 	bargaining 	units
represented 	by 	the 	same 	employee 	organization. 	While 	the
employer 	is 	obligated 	to 	negotiate 	in 	good 	faith 	with 	the
committee 	regardless 	of 	its 	composition, 	nothing 	in 	the 	Act 	or
in 	any 	reasonable 	approach 	to 	the 	collective 	bargaining 	process
requires 	an 	employer 	to 	provide, 	or 	indeed, 	to 	negotiate
regarding 	the 	provision 	of, 	released 	time 	or 	any 	other 	form 	of
compensation 	for 	members 	of 	the 	employees' 	bargaining 	committee
not 	in 	the 	bargaining 	unit.
While 	the 	majority 	requires 	management 	to 	negotiate 	and
grant 	released 	time 	to 	any 	employee, 	we 	find, 	to 	the 	contrary,
that 	the 	released 	time 	mandated 	by 	section 	3543.l(c) 	is
necessarily 	limited 	to 	representatives 	in 	the 	bargaining 	unit.
4The 	District 	never 	attempted 	to 	determine 	the
composition 	of 	the 	union's 	team. 	As 	the 	majority 	itself
concedes, 	"the 	District 	did 	not 	refuse 	to 	negotiate 	with 	a
mixed 	committee 	for 	both 	units, 	and, 	indeed, 	acknowledged 	AFT 1 s
right 	to 	use 	such 	a 	committee." 	(Decision, 	p. 	15.)
21

In 	this 	way, 	employee 	organizations 	are 	guaranteed 	an
opportunity 	to 	be 	represented 	(at 	least 	in 	part} 	by 	people 	who
work 	at 	the 	jobs 	that 	the 	negotiations 	concern. 	This 	is 	a
logical 	approach 	to 	collective 	bargaining 	consistent 	with 	the
history 	of 	public 	sector 	labor 	relations 	and 	with 	EERA's
statutory 	scheme 	which 	is 	based, 	fundamentally, 	on 	the
representation 	of 	employees 	in 	an 	appropriate 	unit. 5
The 	majority's 	elaborate 	exercise 	in 	statutory 	construction
does 	not 	compel 	a 	different 	conclusion 	and 	is 	simply
misleading. 	Its 	extensive 	discussion 	of 	legislative 	intent
serves 	only 	to 	establish 	that 	coordinated 	bargaining 	is
permitted 	under 	the 	EERA, 	a 	conclusion 	with 	which 	neither 	we
nor 	the 	District 	disagree. 	Rather, 	our 	disagreement 	centers 	on
the 	majority's 	giant 	leap 	to 	conclude 	that 	because 	coordinated
bargaining 	is 	permitted, 	the 	employer 	is, 	therefore, 	obligated
to 	provide 	released 	time 	for 	all 	employees 	on 	the 	union
bargaining 	committee. 	This 	reasoning 	is 	a 	logical 	non 	sequitur
which 	is 	without 	support 	in 	either 	the 	language 	of 	the 	Act 	or
sound 	policy 	considerations.
Chairperson 	Hesse 	joined 	in 	this 	Dissent.
5 see, 	e.g., 	sections 	3540 	(purpose 	of 	the 	Act), 	3540.l(e)
(definition 	of 	exclusive 	representative), 	3543 	(rights 	of
employees), 	3543.l 	(rights 	of 	employee 	organizations) 	and
3543.3 	(duty 	to 	negotiate).
22