Antioch Unified School District (PERB 0515E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	ANTIOCH
CHAPTER NO. 	85,
Charging 	Party,
v.
ANTIOCH 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	Nos. 	SF-CE-641
SF-CE-644
PERB 	Decision No. 	515
August 2, 	1985
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Appearances: 	Michael 	Aidan 	for 	California 	School 	Employees
Association and its Antioch Chapter No. 	85; 	Atkinson, 	Andelson,
Loya, 	Ruud & Romo by Janae H. 	Novotny for 	Antioch Unified
School 	District.
Before Hesse, 	Chairperson; 	Jaeger, 	Morgenstern and Burt,
Members.
DECISION
JAEGER, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB) 	on exceptions 	filed by the 	Antioch
Unified 	School 	District 	(District) 	to 	the proposed decision of
an 	administrative 	law 	judge which 	found 	that 	the 	District 	had
violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA or
Act)1 by, 	inter 	alia, 	unilaterally 	reducing salaries paid 	to
certain 	of 	its 	classified 	employees. 	For 	the 	reasons which
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	section 	references 	herein 	are 	to 	the 	Government
Code.
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follow, 	we 	affirm the 	finding 	that 	the 	District 	violated 	the
EERA; 	however, 	we modify the proposed remedy.
FACTS
The parties 	to 	this 	case were, 	during 	the time of 	the
dispute here 	at 	issue, 	signatories 	to a 	collectively negotiated
agreement, 	effective by 	its 	terms 	from November 	1980 	through
December 	31, 	1982. 	This 	contract 	included a salary 	schedule
which 	set 	forth 	the wages 	for 	each 	job 	classification 	in 	the
bargaining unit. 	For 	the 	first 	year 	of 	the 	agreement,
positions 	in 	the 	classification of 	Staff 	Secretary 	I 	were 	to be
paid at 	range 	26 	of 	the 	schedule. 	Staff 	Secretary 	II 	was 	to be
paid at 	range 	28. 	Compensation 	for 	Instructional 	Aide
positions 	was 	set 	forth 	in 	a 	separate 	schedule 	in 	the 	contract
without 	reference 	to 	numbered pay 	ranges.
The 	District 	operates 	as 	a 	merit 	system school 	district.
Thus, 	pursuant 	to 	Education Code sections 	45240 	et 	seq.,
certain 	classified 	employee 	personnel 	functions 	are 	performed
by a personnel 	commission, 	a 	separate 	legal 	entity from the
District 	and 	its 	governing 	board.
Staff 	Secretary 	I
During 	the 	1980-81 	school 	year, 	the 	District 	undertook 	a
reorganization 	of 	its 	managerial 	and 	supervisory 	functions
which 	apparently 	involved 	some 	modification 	of 	responsibilities
and 	job 	titles 	for 	some 	of 	the 	administrators 	and 	certificated
employees 	working 	in 	the 	District's 	central 	administrative
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offices. 	Among the 	clerical 	staff employed at 	the
administrative 	offices 	at 	that 	time 	were 	several 	secretaries
working 	in positions 	classified 	as 	either 	Staff 	Secretary 	I 	or
Staff 	Secretary 	II. 	California 	School 	Employees 	Association
and 	its Antioch Chapter No. 	85 	(CSEA) 	is 	the exclusive
representative of 	those 	secretaries.
The 	reorganization of 	the 	administrators 	led 	the 	District
to consider 	a 	change among the 	secretarial 	ranks. 	In
particular, 	the 	District 	focused 	on 	one 	secretarial 	position
whose 	occupant 	furnished 	clerical 	services 	to 	an 	administrator
whose 	responsibilities 	had 	recently been 	modified. 	The
secretary 	occupying 	this 	position 	resigned 	during 	the 	time 	of
the 	administrative 	reorganization. 	The 	District 	thereafter
determined 	that 	the position, 	which 	was 	classified 	at 	the 	Staff
Secretary 	I 	level, 	should be 	downgraded while 	it was 	vacant.
On June 	9, 	1981, 	therefore, 	the personnel commission approved a
reduction 	in 	salary 	for 	the 	Staff 	Secretary 	I 	classification
from pay range 	26 	to range 	24.
Upon 	discovery 	of 	this 	action, 	CSEA 	field 	representative
Michael 	Aidan protested, 	pointing 	out 	that 	the 	salary schedule
in 	the 	collective bargaining 	agreement 	between 	CSEA and 	the
District 	specified 	that 	employees 	working 	in 	the 	Staff
Secretary 	I 	classification are 	to be paid at 	range 	26. 	In 	the
face 	of 	this 	objection, 	the personnel 	commission 	rescinded 	the
pay reduction. 	The 	District 	then 	tried 	a 	different 	tack. 	It
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decided 	to 	create 	a 	new 	secretarial 	classification 	to 	which 	the
vacant position would be assigned. 	On July 22, 	1981,
therefore, 	the District announced plans 	for 	the 	creation of 	a
new 	classification 	to be 	called 	"Senior 	Secretary" 	and 	to 	be
paid at 	range 	24.
CSEA 	did 	not 	express 	opposition 	to 	the 	decision 	to 	create 	a
new 	classification 	to which 	the 	vacant 	position 	would 	be
assigned. 	It 	did, 	however, 	demand 	to negotiate the salary to
be 	paid 	for 	the 	new position. 	The 	District 	agreed 	to 	negotiate
the matter.
On July 27, 	1981, 	CSEA submitted to 	the District a
comprehensive 	proposal 	on 	the 	new 	secretarial 	classification.
It 	proposed 	to 	retitle 	the 	previously 	existing 	secretarial
classifications 	(Staff 	Secretaries 	I 	and 	II) 	as 	Staff
Secretary 	II 	and 	Staff 	Secretary 	III, 	thereby making 	it
possible 	to 	title 	the 	newly-proposed 	classification 	as 	Staff
Secretary I 	rather 	than 	Senior 	Secretary, 	It 	also agreed 	to a
salary at 	range 	24 	on 	the 	condition 	that 	the District 	require 	a
typing speed 	of 	only 45 	words per 	minute 	for 	employees 	in
positions 	so 	classified 	rather 	than 	the 	50 	words 	per 	minute
which 	the 	District 	had 	always 	required 	for 	the 	old 	Staff
Secretary 	I 	classification.
The 	District 	had begun 	advertising 	to 	fill 	the 	vacant
secretarial position on June 	10, 	1981, 	initially under 	the 	job
description 	for 	the 	old 	Staff 	Secretary 	I 	classification. 	The
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job 	announcements 	stated 	that 	the 	position 	would 	be 	filled 	on
August 17. 	On August 11, 	the personnel commission, 	"pending
negotiations 	between 	the 	District 	and 	CSEA," 	approved 	the
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placement 	of 	the 	new 	Staff 	Secretary 	I 	classification2 at 	pay
range 	24 	and 	also 	approved 	an 	eligibility 	list 	for 	the 	class.
On 	or 	shortly after 	August 	17, 	the District hired 	two persons
to 	fill 	positions 	classified as 	Staff 	Secretary 	I 	at 	range 	24.
On 	August 	24, 	the parties 	met 	and negotiated 	regarding 	the
salary 	for 	the 	Staff 	Secretary 	I 	classification. 	CSEA stood 	by
its proposal 	that, 	if 	the 	salary for 	the vacant position was 	to
be 	lowered 	to 	range 	24, 	then 	the 	typing 	requirement 	should be
reduced 	to 45 words per minute. 	The District, 	however, 	refused
to agree to CSEA's proposal, 	maintaining that, 	notwithstanding
the 	change 	in 	classification, 	it 	required 	the higher 	typing
speed.
The 	parties 	were 	unable 	to 	schedule 	another 	negotiating
session 	until 	November 	23. 	At 	this 	meeting 	the parties were
again 	unable 	to 	reach agreement 	on 	the 	wage 	for 	the 	new
secretarial 	classification. 	Agreeing 	that 	they were 	at
impasse, 	they 	decided to 	seek 	the 	assistance of 	a mediator
pursuant 	to 	the 	EERA's 	impasse procedures. 	CSEA filed 	the
declaration 	of 	impasse 	with 	PERB's 	San 	Francisco 	regional
2The 	District 	by 	this 	point 	had 	agreed 	with 	and 	adopted
CSEA's 	proposal 	for 	retitling 	the 	secretarial 	classifications.
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office on November 	30. 	On December 	8, 	the 	request was 	denied
on 	the 	grounds 	that 	the parties 	were 	not 	involved 	in 	actual
contract 	negotiations 	and 	the 	public 	notice 	requirements 	of 	the
EERA had not 	been 	met.
Instructional Aide, 	Non-Typing
In 	May of 	1981, 	the District 	concluded that 	the 	layoff of 	a
number 	of 	instructional 	aides 	would be 	necessary. 	District
administrators 	met 	with 	CSEA 	representatives 	on 	May 	21 	to
discuss 	the 	impending reduction 	in 	staff. 	At 	the meeting, 	the
District 	advised 	CSEA that 	there 	were 	four 	aides 	working 	in
• restricted"3 positions 	and 	that, 	under 	the 	Education Code,
employees 	in 	such 	positions 	could 	not 	acquire 	seniority.
Therefore, 	despite their years of 	service, 	these employees
would be 	the 	first 	to be 	released.
CSEA contested 	the 	District's 	plans, 	urging 	the 	District 	to
grant 	seniority 	to 	the 	four 	aides. 	In order 	to 	resolve 	the
matter, 	the 	District 	offered 	to promote 	the 	four 	aides 	into
regular 	aide positions provided 	that 	they were 	able 	to pass 	the
qualifications 	examination 	which 	the 	District 	required 	as
standard 	procedure 	of 	all 	applicants 	for 	regular 	instructional
3Education 	Code 	section 	45108 	provides 	that 	employees
hired 	into 	the 	classified 	service 	under 	low-income 	programs
(such 	as 	the 	former 	CETA program) 	shall 	serve 	in positions
designated 	as 	"restricted" 	and 	shall 	not 	be 	eligible 	to 	acquire
seniority 	credit.
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aide positions. 	CSEA disagreed with 	the 	procedure 	proposed by
the District, 	particularly objecting to the typing 	component 	of
the 	examination. 	CSEA maintained 	that 	it 	was 	unnecessary to
test 	the 	four 	individuals' 	typing 	skills 	since 	they had 	never
been 	called upon 	to 	type 	in 	the 	course 	of 	their 	work. 	The
District, 	however, 	cited the official 	job description which
indicated 	that 	some 	typing was 	required, 	and 	insisted 	upon
administering 	the 	usual 	test 	of 	typing 	skills.
All 	four 	restricted aides 	took 	the 	test. 	Three passed 	the
test 	in 	its 	entirety 	and were 	thereupon 	appointed 	as 	regular
instructional 	aides, 	with 	credit 	for 	seniority based 	on 	all
years 	of 	service with 	the District. 	The 	fourth 	aide,
Russell 	Stahlheber, 	passed all 	but 	the 	typing 	component 	of 	the
test. 	Accordingly, 	Mr. 	Stahlheber was given a layoff notice
effective July 1, 	1981.
On July 22, 	1981, 	in an effort to accommodate
Mr. 	Stahlheber, 	the District proposed the creation 	of a new
classification 	which 	would 	not 	include 	typing 	among 	its
duties. 	The 	new 	classification would be 	titled 	"Instructional
Aide, 	Non-Typing." 	Other 	than the 	removal 	of 	the 	typing
requirement, 	the duties 	listed 	in 	the 	job 	description 	for 	the
newly-classified 	position 	would 	be 	identical 	to 	those 	listed
for 	the 	regular 	instructional 	aide 	classification. 	Under 	the
proposal, 	Mr. 	Stahlheber 	would be assigned 	to an unrestricted
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position 	in 	this 	proposed 	classification 	and 	would 	thereby
acquire 	seniority 	based 	on his 	original 	date of 	employment 	with
the District. 	While 	Mr. 	Stahlheber would thus 	take a position
in a 	new classification, 	there was 	no 	expectation 	that 	the work
he 	would perform 	in 	his 	job 	would 	change 	in 	any way 	from
previous years.
The 	problem with 	the 	proposal 	from CSEA's 	point 	of 	view was
that 	the 	District 	proposed 	to 	set 	pay 	for 	the 	new
classification 	at 	a 	salary 	range 	five percent below that 	of 	the
regular 	instructional 	aides. 	To 	ease 	the 	impact 	of 	the 	salary
reduction, 	the District offered to 	"Y-rate" 	Mr. 	Stahlheber,
that 	is, 	to maintain his previous salary level, 	rather 	than
reducing 	it 	five percent, 	but 	to 	deny him any salary 	increases
which other 	aides 	might 	receive 	in 	the 	future 	until 	the 	salary
of 	the 	other 	aides was 	five percent 	above his.
In 	its July 27, 	1981 proposal, 	CSEA acceded to the
reclassification of 	Mr. 	Stahlheber's 	job 	to 	the new
Instructional 	Aide, 	Non-Typing classification, 	but proposed
that 	the 	salary be 	the 	same as 	that 	for 	other 	aides.
At 	the 	August 	24 	negotiating 	session, 	CSEA pushed 	for 	its
salary proposal, 	but 	the 	District 	refused 	on 	the 	grounds 	that
the 	position 	required 	a 	lower 	level 	of 	skill 	than 	the 	regular
aide positions. 	The November 	23 	negotiating session also
failed 	to produce 	agreement, 	and 	the matter 	was 	then 	included
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in 	the 	parties' 	declaration 	of 	impasse 	submitted 	to 	PERB 	on
November 	30.
Mr. 	Stahlheber 	reported 	to work 	at 	the 	start 	of 	the 	school
year 	in September 	1981. 	He served 	in his old 	job, 	now
classified as 	Instructional 	Aide, 	Non-Typing, 	and received a
salary which was 	five percent 	lower 	than 	that 	paid 	to 	regular
instructional 	aides.
DISCUSSION
The 	charges 	filed by 	CSEA in 	this 	case 	allege 	that 	the
District violated EERA sections 3543.5(a), 	(b) 	and 	(c) 	by
fixing 	the 	salaries 	for 	certain 	employees 	represented 	by 	CSEA
without 	first 	completing 	its 	duty 	under 	the 	EERA 	to 	negotiate
on 	that 	subject.4 In 	his proposed 	decision, 	the
administrative 	law 	judge 	(ALJ) 	found 	that 	the District had
violated sections 3543.5(a), 	(b) 	and 	(c) 	by unilaterally
4EERA 	sections 3543.5(a), 	(b) 	and 	(c) 	provide as follows;
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	their 	exercise of
rights 	guaranteed by this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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transferring 	duties 	among 	job 	classifications, 	by unilaterally
changing 	a 	job 	title 	and 	by 	unilaterally 	changing wages.
On 	exceptions, 	the District argues 	initially that 	the
questions 	of 	unilateral 	change 	in 	job 	duties and 	titles 	were
never 	at 	issue, 	either 	in negotiations 	or 	at 	the hearing
underlying 	this appeal. 	Upon our 	review of the record, 	we
agree 	that 	the 	ALJ 	improperly broadened 	the 	scope 	of 	his
proposed 	decision 	on 	his 	own 	initiative.
CSEA 	Field 	Representative 	Michael 	Aidan 	represented 	CSEA
throughout 	all 	the 	events 	connected with 	the 	instant 	case. 	He
served 	as 	CSEA's 	chief 	negotiator 	during 	the 	events 	here 	at
issue 	and prosecuted 	CSEA's 	charge 	at 	the 	underlying hearing.
Aidan also 	testified as 	a witness 	in 	that proceeding. 	His
testimony makes quite 	clear 	that 	CSEA's 	interest 	in 	negotiating
the District's 	1981 	proposals 	for 	new 	classifications was
limited to the subject of wages, 	without more. 	Indeed, 	he
acknowledged 	that 	CSEA did 	not 	even 	take 	the 	position 	that 	the
decisions 	to 	establish 	the new 	classifications 	were matters
within 	the 	scope 	of 	representation. 	Consistent 	with 	these
facts, 	CSEA's statement of the charge, 	filed with PERB's
San Francisco 	regional 	office to 	commence 	this action, 	includes
only 	the 	carefully 	and 	narrowly-drawn 	allegation 	that 	wages
were 	set 	unilaterally; 	it 	makes 	no 	claim that 	the 	District
engaged 	in 	unlawful 	conduct by 	transferring 	job 	duties 	or 	by
changing 	job 	titles. 	In 	issuing 	rulings 	that 	the 	District
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violated 	the 	EERA by 	transferring 	job 	duties 	and 	changing 	a 	job
title, 	therefore, 	the ALJ exceeded the scope of the 	charge.
Our 	own 	inquiry 	then, 	will 	address 	only 	the matter 	of 	the
salary 	dispute.
The 	record 	suggests 	that, 	in proposing 	to 	reclassify the
old 	Staff 	Secretary 	I position, 	the District may have merely
been 	engaging 	in a 	pretextual 	effort 	aimed 	in 	truth 	at
circumventing 	the 	contractual 	salary 	schedule 	and 	achieving 	a
reduction 	in 	salary for 	an 	existing 	job. 	The 	evidence 	is 	clear
that 	initially 	the District 	attempted 	to 	reduce 	the 	salary 	of
the 	vacant 	position 	directly, 	and 	only proposed 	the 	creation 	of
the 	Senior 	Secretary 	classification when CSEA, 	in 	reliance on
the contract, 	objected to 	its 	direct attempt 	to 	reduce wages.
The District's business manager, 	Ralph Burris, 	candidly
testified 	that 	when 	the 	District 	was 	unable 	to 	lower 	the 	salary
of 	the Staff 	Secretary 	I 	classification directly, 	it 	took 	the
position that, 	"well, we won't use that approach, 	. 	. 	. we'll
leave 	Staff 	Secretary 	I 	alone 	and not 	assign 	it 	a 	lower 	pay
range, 	but we'll 	get a new job and call 	it 	something
different." 	CSEA's 	field 	director 	testified 	without
contradiction 	that 	the 	new 	classification 	represented 	simply 	a
new 	title 	for 	an 	existing 	job.
55
5Business 	Manager 	Burris 	also 	testified 	that 	since 	the
creation 	of 	the 	"new" 	secretarial 	classification 	at 	pay
range 	24, 	the District has 	not 	employed anyone at 	the 	range 	26
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Staff Secretary II 	level; 	however, 	two positions 	formerly so
compensated 	are 	now 	classified 	at 	Staff 	Secretary 	I 	and paid 	at
range 24.
In 	light 	of 	these circumstances, 	CSEA might well have been
justified 	had 	it 	continued 	to 	insist 	that 	the 	salary 	for 	the
vacant 	position had 	already been 	negotiated, 	since 	the
District 	had 	agreed 	to 	a 	contract which 	fixed 	the 	wages 	for
existing bargaining unit 	jobs 	for 	the 	term of 	the 	contract, 	any
departure 	from that 	schedule, 	absent prior 	agreement by CSEA,
would be 	an 	unlawful 	unilateral 	change.
We need not, 	however, 	ultimately decide whether 	the
District's 	proposal 	to 	create 	a 	newly-titled position was
merely 	a 	pretext 	for 	reducing 	salaries 	or 	genuinely 	reflected 	a
real 	modification 	in 	the 	duties 	of 	the position. 	In 	either
case, 	an 	employer 	violates 	the 	EERA when 	it 	unilaterally 	fixes
the wages 	to be 	paid 	to 	represented 	employees. 	Sonoma County
Office of 	Education 	(1977) 	EERB Decision No. 	40; 	San Mateo
County Community College District 	(1979) 	PERB Decision No. 	94;
NLRB v. 	Katz 	(1962) 	319 U.S. 	736 	[59 LRRM 2177].
On exceptions, 	the District argues that, 	because it 	is a
merit system school 	district, 	salaries 	it 	implemented 	for 	the
Staff 	Secretary 	I 	and 	instructional 	Aide, 	Non-Typing
classifications were 	set by the 	Personnel 	Commission, 	not by
the 	District. 	It 	relies on 	Sonoma County Board of 	Education 	v.
PERB 	(1980) 	102 	Cal.App.3d 	689 	and 	San 	Lorenzo 	Unified 	School
District 	(1982) 	PERB Decision No. 	274.
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In 	Sonoma, 	the court of appeal 	considered the authority of
a 	merit 	system school 	district 	to negotiate wage matters 	in
light of 	Education Code 	section 	45268. 	That 	section 	sets 	forth
a 	personnel 	commission's 	authority with 	respect 	to 	salary 	rates
as follows:
The 	commission 	shall 	recommend 	to 	the
governing 	board 	salary 	schedules 	for 	the
classified 	service. 	The 	governing board may
approve, 	amend, 	or reject these
recommendations. 	No amendment 	shall be
adopted 	until 	the 	commission 	is 	first 	given
a 	reasonable 	opportunity 	to 	make 	a written
statement 	of 	the 	effect 	the 	amendments 	will
have 	upon 	the principle 	of 	like 	pay 	for 	like
service. 	No changes 	shall 	operate to
disturb 	the 	relationship 	which 	compensation
schedules bear 	to one another, 	as 	the
relationship has 	been 	established 	in 	the
classification 	made 	by 	the 	commission.
The 	court's 	conclusion was 	that, 	subject 	to one 	limitation,
the 	merit 	system 	of 	personnel 	administration 	codified 	in 	the
Education 	Code 	does 	not 	exempt 	a merit 	system school 	district
from the 	obligation 	imposed 	on 	school 	employers 	under 	the 	EERA
to 	negotiate matters 	related to 	the 	subject of wages. 	The one
limitation was 	that 	the District 	may not 	negotiate 	wage 	rates
which 	would 	negate 	the 	system of 	job 	classification 	structured
by the personnel 	commission. 	Thus, 	where occupationally
related 	classifications 	have 	been 	hierarchically 	arranged 	to
form an occupational 	group 	(e.g., 	a clerical group or 	a
custodial 	series), 	the wage 	relationships within that group
must 	reflect 	the 	hierarchical 	relationships 	of 	the
classifications 	as 	established by 	the 	personnel 	commission.
13

This means that, 	with regard 	to the 	instant case 	for 	example,
the 	District 	may not 	negotiate 	a 	salary 	for 	the 	staff
Secretary 	I 	classification which 	is 	higher 	than 	the 	salary paid
to 	employees 	in 	the 	Staff Secretary 	II 	classification. 	Beyond
this proviso, 	held 	the court, 	a merit 	school 	district 	itself
has 	the power, 	and thus 	the obligation, 	to determine salary
matters 	via 	the 	EERA-mandated 	negotiating 	procedure. 	It 	stated
its 	conclusion as 	follows:
We 	construe 	the 	statutory 	intendment 	as
manifesting 	a 	legislative policy 	that 	in 	the
areas 	of 	collective 	bargaining 	authorized
under the provisions of the 	[EERA], 	those
provisions 	prevail 	over 	conflicting
enactments 	and 	rules 	and 	regulations 	of 	the
public 	school 	merit 	or 	civil 	service 	system
relating 	to 	the matter 	of wages 	or
compensation of 	its 	classified 	service.
Accordingly, 	we hold that 	the 	[school
district] 	is under a duty to bargain 	in good
faith 	with 	[the 	exclusive 	representative]
concerning 	proposals 	related 	to 	the 	salaries
or 	wages 	of 	the 	represented 	unit within 	the
classified 	service. 	We 	further 	hold 	that 	no
restriction 	is 	imposed upon 	the 	Board 	under
the provisions 	of 	section 	45268 	in
negotiating 	salary 	adjustments 	for
individual 	job 	classifications 	within 	the
same 	occupational 	group provided 	that 	the
relationship between 	such 	individual
positions 	as 	established 	by 	the 	Commission
remains 	intact.
In 	San Lorenzo, 	this 	Board addressed 	the narrow issue of
whether 	the 	exclusive 	representative 	in 	a merit 	school 	district
has 	a 	right 	to 	negotiate 	regarding 	a 	salary 	recommendation
which 	a 	personnel 	commission 	intends 	to 	make 	to 	the 	school
district. 	We 	concluded 	that 	the 	EERA affords 	no 	right 	to
14

exclusive 	representatives 	to 	participate 	in 	the 	commission's
formulation 	of 	its 	recommendation. 	The 	significance of 	the
personnel 	commission's 	recommendation 	once 	it 	has 	been
communicated to the school 	district, 	however, 	relative to the
EERA's 	negotiating 	scheme, 	has 	not been 	addressed by 	this
Board. 	Sonoma makes 	it clear, 	however, 	that the recommendation
process 	set 	forth 	at 	Education 	Code 	section 	45268 	provides no
basis 	for 	finding 	an 	exception 	to 	the 	principle 	that wage
rates 	for 	represented 	employees 	are 	to 	be 	determined via
negotiations. 	Moreno Valley 	Unified 	School 	District 	(1982)
PERB Decision No. 	206, 	affirmed in relevant part, 	Moreno Valley
Unified 	School 	District v. 	PERB 	(1983) 	142 	Cal.App.3d 191;
San Mateo County Community College 	District, 	supra, 	In 	effect,
then, 	a personnel 	commission's 	salary recommendation may serve
only as 	the 	employing district's 	initial 	proposal. 	It 	does 	not
serve as 	a 	basis 	for 	implementing a 	salary 	rate 	first 	and
negotiating 	that 	issue 	later.
In 	the 	instant 	case, 	the evidence shows that 	the District
unilaterally 	implemented 	a 	new 	salary 	level 	for 	the 	vacant
secretarial 	position when 	it 	filled 	the position 	in
August 	1981. 	At that time, 	the parties were 	in an early stage
of negotiations 	on 	the matter. 	Not 	until 	four 	months later, 	on
November 	23, 	did they reach 	impasse.
The 	situation with 	regard 	to 	the 	Instructional 	Aide,
Non-Typing position 	is much 	the same. 	In that 	case, 	a change
15

in 	job 	classification 	occurred 	from 	restricted 	aide 	to
Instructional Aide, 	Non-Typing. 	As we have said, 	however, 	the
District 	is 	not 	privileged by 	this 	fact 	to 	exert 	unilateral
control 	over 	the 	subject 	of wages 	for 	its 	represented
employees. 	Thus, 	when, 	in September 	1981 the District employed
Mr. 	Stahlheber 	at a wage set unilaterally, 	it violated the EERA.
On 	exceptions, 	the District 	raises 	the question of what a
public 	school 	employer 	must 	do when 	pressing 	operational 	needs
require 	it 	to hire 	an employee 	into 	a 	new classification
without 	sufficient 	time 	available 	in which 	to 	first 	negotiate.
The issue, 	however, 	is not one raised by the facts. 	Here, 	the
District 	had 	announced 	its 	proposal 	to 	reclassify 	the 	vacant
secretarial 	position 	and 	to 	establish 	a 	new aide 	classification
on 	July 	22, 	and CSEA had submitted 	its 	initial 	negotiating
position on 	these matters by July 	27. 	This 	left approximately
a month's 	time prior 	to 	the opening of 	school 	in which 	to
negotiate the single matter 	of 	the wages. 	In 	our 	view, 	this
was 	adequate 	time 	in which 	to conclude 	negotiations.
REMEDY
In his proposed decision, 	the ALJ found 	that 	the
appropriate 	remedy was 	to 	order 	the 	District 	back 	to 	the
bargaining 	table 	and 	to 	require 	back 	pay 	(absent 	a 	negotiated
agreement by 	the 	parties 	providing 	otherwise) 	beginning 	from
the 	date 	of 	hire 	of employees 	in 	the 	Staff 	Secretary 	I 	and
16

Instructional 	Aide, 	Non-Typing 	classifications 	and 	continuing
until 	the earliest 	of four 	events: 	the 	date the parties 	reach
a 	negotiated agreement; 	completion of 	the 	EERA's 	statutory
impasse procedures; 	failure 	of 	CSEA to 	request bargaining
within 10 	days of 	service of PERB's 	decision in 	the case; 	or
the 	subsequent 	failure 	of 	CSEA to bargain 	in 	good 	faith.
On 	exceptions, 	the District argues 	that 	its 	liability for
back 	pay should cease as 	of November 	23, 	1981, 	when 	the parties
mutually declared 	impasse. 	It 	argues 	that 	it 	discharged 	its
obligation 	to 	negotiate 	the 	disputed 	salaries 	as 	required by
the EERA; 	it was PERB, 	not the District, 	which denied the
parties 	access 	to 	the 	statutory 	impasse procedures
thereafter.6
1Member 	Jaeger 	wishes 	to 	add 	a 	note 	clarifying his 	view
regarding 	the 	District's 	claim 	that 	it 	completed 	its
negotiating 	obligation 	when 	the 	parties 	mutually 	agreed 	that
they were 	at 	impasse. 	Member 	Jaeger 	would 	find 	that where, 	as
here, 	a 	need 	for 	negotiations 	arises 	during 	the 	lifetime of 	a
collective 	bargaining agreement 	on 	an 	issue 	not 	already 	settled
by the agreement, 	the 	EERA does not 	require 	application of 	the
mediation 	and 	factfinding procedures 	set 	forth 	at 	section 	3548
of 	the EERA. 	In his view, 	the 	impasse procedures were made a
part 	of 	the Act with 	the 	aim of 	avoiding disruption 	of 	the
public 	schools 	caused by 	labor 	disputes. 	San 	Diego 	Teachers
Assn. 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1. 	Where negotiations
occur 	in 	circumstances which make 	such 	disruption 	unlikely, 	the
costs, 	to both 	the state and the local entities, 	of those
lengthy procedures 	are 	simply not 	justified 	under 	the 	Act.
Thus, 	in enacting the impasse procedures, 	the Legislature
had 	in 	mind 	the 	negotiation 	of 	entire 	contracts 	covering 	the
broad 	spectrum 	of 	matters 	within 	the 	EERA's 	scope 	of
representation 	and 	formal 	reopener 	negotiations 	commenced
pursuant 	to a 	contractual 	agreement. 	Such 	negotiations,
6
17
6

The 	District's 	argument 	that, 	notwithstanding 	its
unilateral 	salary reduction, 	it 	continued 	to 	negotiate 	those
salaries 	to 	impasse, 	is 	at odds with 	the well-settled labor
relations 	law of 	both 	this 	agency and 	the 	National 	Labor
Relations Board. 	Decisions 	following NLRB v. 	Katz 	(1962) 	369
U.S. 	736 	[59 	LRRM 2177] 	make 	clear 	that where an employer
unilaterally 	changes a working 	condition which 	is 	at 	the 	time a
subject 	of 	negotiations, 	the 	required 	element 	of 	good 	faith 	on
the part of the employer 	is destroyed. 	See, 	e.g., 	Amador
involving by 	their 	nature 	the 	issues 	which 	are 	of 	greatest
importance 	to 	the parties, 	may quite 	clearly benefit 	from the
ameliorative 	effects 	of 	mediation 	and 	factfinding. 	In 	those
circumstances, 	the possibility that 	the 	impasse 	procedures 	may
achieve 	a 	resolution 	of 	differences 	and 	thereby 	avoid 	a
disruption 	of 	the 	educational 	process 	is 	sufficiently
substantial 	to mandate 	their 	use.
By contrast, 	where a need 	for 	negotiations 	arises 	during
the 	lifetime 	of 	a 	contract 	on 	an 	issue 	not 	already 	settled by
the agreement, 	the 	likelihood that 	a 	dispute on 	the matter 	will
grow to 	such 	proportions 	as 	to 	threaten 	disruption 	of 	the
educational process 	is 	remote. 	Further, 	the impasse procedures
are less 	likely to be productive, 	since 	there 	is 	less
opportunity 	in 	such 	narrow negotiations 	for 	a mediator 	to
identify acceptable 	compromises, 	which 	is 	an 	important 	tactic
in the mediation process. 	Typically, 	an employer's 	effort 	to
modify a 	single 	condition 	of 	employment 	not 	already 	fixed by
contract will be of an emergent nature, 	prompted by changes 	in
day-to-day 	operations 	which 	inevitably. 	where 	a 	single
condition of 	employment 	is at 	issue, 	the parties 	should have
little 	trouble 	identifying 	the 	relevant 	considerations 	and
fully communicating their 	concerns 	and 	the bases 	for 	them. 	It
is 	thus not 	apparent what 	real 	contribution 	the 	section 	3548
procedures 	can 	make 	toward 	resolving 	the 	impasse.
In the 	instant 	case, 	although 	the 	District 	did negotiate 	to
impasse, 	it 	did not negotiate with 	the 	requisite 	good 	faith
because of 	its 	unilateral 	change 	in wages. 	Thus 	its
negotiating 	obligation 	was 	not 	discharged.
18

Valley Joint 	Union High School 	District 	(1978) 	PERB Decision
No. 	74. 	As a practical matter/ 	it 	is clear that such
unilateral 	action alters 	the balance 	of bargaining power held
by the parties. 	Where, 	as here, 	an employer desires 	to change
the status quo, 	it cannot, 	under the EERA, 	achieve that end
until 	such 	later 	time as 	it has 	completed 	its 	negotiating
obligation. 	That 	the negotiating obligation will delay
implementation, 	then, 	acts 	as 	an incentive 	for 	the employer 	to
expeditiously pursue negotiations 	and, 	perhaps, 	even to make
concessions 	sought 	by the 	union 	in 	order 	to bring 	negotiations
to a conclusion. 	Where, 	however, 	the employer 	first
unilaterally 	implements 	the change 	it 	desires 	in 	the 	status
quo, 	its motivation in negotiations 	is 	obviously changed. 	The
incentive 	to reach agreement 	is 	undermined because 	it has
already achieved what 	it desires. 	The 	instant dispute 	is 	a
case 	in point. 	Thus, 	we note that during the 	four-month period
from July through November 23, 	1981, 	the District participated
in 	just 	two negotiating sessions.
For the 	foregoing reasons, 	then, 	we affirm the remedial
principle to which the ALJ subscribed, 	that 	is, 	to order 	the
undoing 	of 	the 	unilateral 	acts 	complained 	of 	and 	the 	resumption
of bargaining 	under 	circumstances 	permitting good 	faith. 	We
have 	found 	that 	CSEA charged 	and proved 	that 	the 	District
unilaterally reduced 	the 	salaries 	of 	employees 	working 	in
positions 	classified 	as 	Staff 	Secretary 	I 	and 	unilaterally
adopted 	and 	implemented 	a 	wage 	rate 	for 	Instructional
19

Aide, 	Non-Typing. 	Thus, 	the 	District 	should be ordered to make
the 	affected 	employees whole 	for 	economic 	losses 	suffered 	as 	a
result of 	its 	unlawful 	actions, 	with 	interest at 	the
appropriate 	rate, 	until 	the occurrence of 	the earliest 	of 	the
following 	conditions:
(1) 	The 	failure of 	CSEA to 	request
bargaining within 	10 	days 	of 	the 	date 	this
Decision becomes 	final;
(2) 	The 	subsequent 	failure of 	CSEA to
bargain 	in good faith, 	or
(3) 	The 	completion of the parties'
negotiating 	obligations.7
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in this case, 	it 	is 	found 	that 	the
Antioch Unified School District violated section 3543.5(a), 	(b)
and 	(c) 	of 	the 	EERA. 	It 	is hereby ORDERED that 	the District,
its 	governing board 	and 	its 	representatives 	shall:
7We 	note 	in 	this 	connection 	that 	the 	collective
bargaining 	agreement 	between 	the 	parties 	which 	was 	in 	effect
during 	the 	time of 	the 	events 	here 	at 	issue was 	to 	expire 	in
December 	1982. 	Decisions 	of 	this 	Board have 	established 	that,
where 	a 	working 	condition which 	has 	been 	unilaterally 	changed
subsequently 	is 	successfully negotiated 	in 	good 	faith 	in 	the
context 	of 	overall 	contract negotiations, 	that agreement
discharges 	the 	employer's 	obligation 	under 	a 	bargaining 	order
such as 	the 	instant one. 	See, 	e.g., 	Pittsburg Unified School
District 	(1984) 	PERB Decision No. 	318a.
Whether 	the 	parties 	have 	negotiated 	a 	successor 	agreement
to 	their 	1980-82 	contract which 	fixes 	the 	salaries 	for 	the
positions here disputed is a matter, 	if contested, 	to be
resolved 	in a 	compliance hearing.
20

1. 	CEASE AND 	DESIST FROM:
Determining 	the 	wages 	for 	represented 	employees 	prior 	to
completing 	its 	obligation under 	the 	EERA 	to negotiate 	that
subject 	with 	the 	exclusive 	representative 	of 	those 	employees.
2. 	TAKE 	THE 	FOLLOWING ACTIONS DESIGNED TO EFFECTUATE 	THE
POLICIES OF THE ACT:
(a) 	Upon 	request, 	immediately meet and negotiate with
the 	California 	School 	Employees 	Association and 	its 	Antioch
Chapter 	No. 	85 	regarding wages 	to be paid to employees 	serving
in 	positions 	classified as 	staff 	Secretary 	I 	or 	Instructional
Aide, Non-Typing;
(b) 	Unless 	a 	contrary agreement 	is 	reached with 	the
California 	School 	Employees 	Association 	and 	its 	Antioch 	Chapter
No. 	85, 	make employees 	in the Staff Secretary I and
Instructional 	Aide, 	Non-Typing classes whole 	for 	economic
losses 	suffered as 	a 	result 	of 	the 	District's 	unilateral
action, 	including 	interest at the rate of 	ten 	(10) 	percent per
annum, 	for 	the period beginning on 	the 	date 	of 	the 	unilateral
change 	until 	the 	occurrence 	of 	the earliest 	of 	the 	following
conditions:
(1) 	The failure of 	CSEA to 	request
bargaining within 	10 	days 	of 	the 	date
this Decision becomes 	final;
(2) 	The subsequent failure of 	CSEA to
bargain in good faith, 	or
(3) 	The completion of 	the parties'
negotiating 	obligations.
21

(c) 	Within thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no longer 	subject 	to reconsideration, 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 defaced, 	altered, 	reduced 	in size or covered by
any other 	material.
(d) 	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.
Chairperson Hesse and Members 	Morgenstern and Burt 	joined 	in
this 	Decision.
22

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 Nos. 	SF-CE-641 	and
SF-CE-644, 	California 	School 	Employees 	Association 	and 	its 	Antioch
Chapter 	No. 	85 v. 	Antioch Unified School District, 	it has been
found 	that 	the 	Antioch 	Unified 	School 	District 	violated 	Government
Code 	section 	3543.5(c) 	of 	the 	Educational 	Employment Relations 	Act
by 	failing 	and 	refusing 	to meet 	and 	negotiate 	with 	the 	California
School 	Employees 	Association 	and 	its 	chapter 	No. 	85 	with 	respect
to wages, 	a matter within the scope of representation. 	It was
further 	found 	that 	this 	same 	conduct 	violated 	section 	3543.5(b)
since 	it 	denied CSEA the right 	to represent 	its members, 	and
interfered with 	employees' 	rights 	to 	be 	represented 	by 	their
chosen representative 	in violation of section 3543.5(a).
As 	a 	result of 	this 	conduct, 	we have been ordered 	to post 	this
notice and we will:
1. 	CEASE 	AND 	DESIST 	FROM:
Determining 	the wages 	for 	represented 	employees 	prior 	to
completing 	our 	obligation 	under 	the 	Educational 	Employment
Relations 	Act 	to 	negotiate 	that 	subject 	with 	the 	exclusive
representative of 	those 	employees.
2. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED 	TO 	EFFECTUATE 	THE
POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS ACT:
(a) 	Upon 	request, 	immediately meet and negotiate with
the 	California 	School 	Employees 	Association and 	its 	Antioch
Chapter 	No. 	85 	regarding wages 	to be paid 	to employees 	serving 	in
positions 	classified as 	Staff 	Secretary 	I 	or 	Instructional 	Aide,
Non-Typing;
(b) 	Unless 	a 	contrary agreement 	is 	reached with 	the
California 	School 	Employees 	Association 	and 	its 	Antioch 	Chapter
No. 	85, 	make employees 	in 	the Staff 	Secretary 	I and 	instructional
Aide, 	Non-Typing 	classes whole 	for 	economic 	losses 	suffered 	as 	a
result of 	the 	District's 	unilateral 	action, 	including 	interest 	at
the rate of 	ten 	(10) 	percent per 	annum, 	for 	the period beginning
on 	the 	date of 	the 	unilateral 	change 	until 	the 	occurrence 	of 	the
earliest 	of 	the 	following conditions:
(1) 	The 	failure of CSEA to 	request
bargaining within 	10 	days 	of 	the 	date 	this
Decision becomes 	final;

(2) 	The 	subsequent 	failure of 	CSEA to
bargain in good faith, 	or
(3) 	The 	completion of 	the parties'
negotiating 	obligations.
Dated: 	ANTIOCH 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Representative
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST
NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.