PERB Decision No. 0651E•Fremont Union High School District * * * OVERRULED IN PART BY Trustees of the California State University (2024) PERB Decision No. 2915-H, pp. 20-21 * * * (PERB 0651E)
Fremont Union High School District * * * OVERRULED IN PART BY Trustees of the California State University (2024) PERB Decision No. 2915-H, pp. 20-21 * * * (PERB 0651E)
PERB Decision No. 0651ECalperbDec 30, 1987
Full text
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FREMONT EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party,
v.
FREMONT UNION HIGH SCHOOL DISTRICT,
Respondent.
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Case No. SF-CE-779
PERB Decision No. 651
December 30, 1987 )
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Appearances: Ramon E. Romero, Attorney, for Fremont Education
Association, CTA/NEA; Littler, Mendelson, Fastiff & Tichy by
Patricia P. White for Fremont Union High School District.
Before Hesse, Chairperson; Porter and Craib, Members.
DECISION
PORTER, Member: This case is before the Public Employment
Relations Board {PERB or Board) on exceptions filed by the
Fremont Union High School District (District) to the attached
proposed decision of a PERB administrative law judge (ALJ).
The ALJ found that the District violated section 3543.S(c) and,
derivatively, section 3543.S(a) and (b) of the Educational
Employment Relations Act (EERA) 1 by failing to give
lEERA is codified at Government Code section 3540
et seq. Unless otherwise indicated, all statutory references
herein are to the Government Code. Section 3543.5 provides, in
pertinent part, 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 otherwisethe Fremont Education Association (FEA) notice and an opportunity to negotiate the effects of its nonnegotiable decision to lease facilities to the University of La Verne, a private institution, so that the latter could conduct summer school classes. For the reasons which follow, we reverse the ALJ. Procedural History On June 14, 1982, the FEA filed an unfair practice charge (SF-CE-667) alleging that the District violated EERA by entering into an agreement to lease facilities to La Verne in order to enable the latter to conduct summer school classes at the District's Cupertino High School. This charge was dismissed and deferred to arbitration. An arbitration decision subsequently issued finding that the lease agreement with La Verne did not violate the contract. FEA then filed another unfair practice charge (SF-CE-779) alleging that the arbitration decision was repugnant to EERA. FEA subsequently amended this charge to allege that one of the actual effects of the lease agreement was a layoff of certificated personnel on or about May 10, 1983. to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. (c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. 2
In his proposed decision on the repugnancy charge, the PERB ALJ ordered that a partial complaint should issue on the District's failure to negotiate the foreseeable effects of its decision to enter into the lease agreement with La Verne. A hearing thereupon followed, conducted by ALJ Allen Link. The case was subsequently transferred for decision to ALJ Manuel Melgoza. FACTS FEA is the exclusive representative of a unit of certificated employees of the District, which includes teachers employed during the regular school year and during summer school. Prior to 1978, the District operated a "comprehensive" summmer school in which teachers employed during the regular school year were able to obtain summer school teaching positions pursuant to established contractual criteria and procedures. This pre-1978 comprehensive summer school offered the same broad range of courses which were included in the regular school year curriculum. Due to budgetary cuts caused by the passage of Proposition 13 in 1978, the District ceased operating its comprehensive summer school. The District was statutorily precluded from charging students fees for summer school to make up for losses in revenue occasioned by cutbacks associated with Proposition 13. After the passage of Proposition 13, however, 3
the state continued to fund three programs which the District was statutorily mandated to provide. This limited, or "state-mandated," sun:uner school was available only for students meeting one of the following specific eligibility criteria: (1) seniors within ten credits of graduation; (2) special education students whose individual educational plans specified the need for an extended year program; or (3) students who had not yet mastered the District's minimum competencies. Inasmuch as, with the passage of Proposition 13, the state would no longer fund summer programs not specifically statutorily mandated, it was not feasible for the District to provide a comprehensive summer school curriculum. Even had the District not leased its facilities to La Verne, it still would not have operated a summer school other than that mandated and funded by the state, because the state would not reimburse the District for such a school. Indeed, absent the prospect of new state funding, money would have to be taken from the District's general fund (the same fund from which teachers' salaries were drawn) in order to provide funding for comprehensive course offerings. Both the District and FEA understood this not to be a reasonable alternative. Initial Contacts With La Verne Richard Baker, the District's curriculum coordinator, was requested in February or March 1982 (four years after the cessation of the 1978 comprehensive summer school) by his 4
superior, Kathleen Hulburd, the District's assistant superintendent of curriculum, to contact public and private institutions outside the District to explore the possibility of one of them offering a self-supported summer school which could be utilized by District students. Baker communicated with representatives of the University of La Verne to discuss their interest in leasing District facilities and providing a self-supported summer school. After an initial telephone conversation, Baker met with a representative of La Verne. According to Hulburd's testimony, Baker was not instructed by her to "negotiate" salaries for La Verne teachers, nor was he instructed to draft the lease agreement with La Verne. His general instructions were simply to meet with La Verne officials and discuss their interest in leasing facilities. Baker testified that he and the La Verne representative "costed out" La Verne's expenses to determine what tuition figure was reasonable. At their meeting, the collective bargining agreement between FEA and the District and the salary it prescribed for District teachers were not mentioned. At a subsequent meeting between a La Verne representative and Baker, in May of 1982, lease figures were firmed up. FEA's Objections to Lease The District historically met with FEA representatives at regularly scheduled "consultation" sessions. Consultation 5
sessions were monthly meetings typically attended by FEA's officers and chief negotiator, as well as the District's deputy superintendent, Tom Hodges, and other cabinet level personnel. Negotiations did not take place at these sessions. At a consultation session held in either February or March 1982, Dick Fulcher, FEA's president; Bill Mansfield, a member of FEA's bargaining team; 2 and Bill Empey, FEA's executive secretary, were informed by Hodges that the District was considering entering into an agreement to lease facilities to La Verne so that the latter could operate a summer school. Both Fulcher and Mansfield voiced general objections to the lease agreement on the basis that it would violate the collective bargaining agreement. After this consultation session, Fulcher, in an informal discussion with at least one board member, reiterated concerns that the District's proposed lease agreement would breach the contract. At a board meeting on April 20, 1982, Empey addressed the Board of Trustees and voiced FEA's objections to the proposed lease agreement. This was followed by a letter in which FEA's objections were again expressed. On June 1, 1982, the lease agreement was formally adopted by the Board of Trustees. 2aill Mansfield was a member of FEA's negotiating team for the school year 1981-82. In May 1982, he was elected FEA's president. Although his term did not officially begin until July 1982, upon his election he gradually began to assume the duties of his predecessor, Dick Fulcher. 6
La Verne's Preparation for Summer School A few weeks prior to the adoption of the lease agreement, La Verne representatives laid the necessary groundwork for the summer school. A representative of La Verne interviewed several administrators from the District for the position of La Verne's site administrator, and James Ehrenburg, an assistant principal at a District high school, was ultimately selected. During May 1982, flyers were distributed in the District announcing La Verne's new summer school and soliciting teacher applications. The newly selected La Verne site administrator, Ehrenburg, was contacted in late May or June by FEA representatives Empey and Mansfield to discuss their concerns regarding how teachers at La Verne would be hired. Although Ehrenberg was ~till employed by the District at the time of the meeting, it took place after his normal duty hours and at a time when he had already been employed by La Verne as its site administrator. Ehrenberg testified that he was not engaged in "negotiations" with FEA and, in fact, was acting at the meeting solely in his capacity as an agent of La Verne. At the meeting, which lasted approximately 35-40 minutes, the three discussed their concerns regarding preferential treatment for District teachers. 3 The parties were especially interested 3ouring one of the previous consultation sessions, Fulcher had requested assurance from Hulburd that teachers from the Fremont Union High School District would be given 7
in arriving at a means of reducing the friction between FEA and La Verne. The friction was in part caused by the fact that FEA had earlier communicated a recommendation to its constituency that they not apply to teach at the La Verne summer school. Approximately 46 teachers applied for ten positions at La Verne. 4 Although some of La Verne's support staff were not employed by the District during the regular academic year, ultimately all teachers hired by La Verne for the 1982 summer school were otherwise employed by the District. La Verne paid a flat rate of about $1,015 for teaching two periods, and about $2,050 for four periods. 5 Because the District-paid health and welfare benefits were computed on a 12-month basis preferential treatment in staffing La Verne's summer school faculty. Hulburd thereafter wrote Fulcher a short memo assuring him that the District would encourage La Verne to give preferential treatment to members of the unit. She attached a copy of a letter written to La Verne requesting such preferential hiring of members of the unit. 4According to the terms of the 1982 lease agreement, La Verne was exclusively responsible for the hiring of its teachers. The 1982 lease agreement states, in pertinent part: All persons employed by the University [La Verne] shall be selected and hired solely by the University, shall be its employees exclusively and shall be subject solely to its direction, control, compensation and discharge. 5The compensation of unit members hired to teach the state-mandated courses in the District summer school was computed on a daily rate basis determined in part by the teacher 1 s placement on the prior year's salary schedule. This resulted in higher wages as compared to those paid to La Verne teachers. 8
irrespective of summer employment, La Verne teachers were not disadvantaged in their receipt of such benefits as a result of their employment with La Verne. In May 1982, La Verne also distributed in the District and in neighboring communities a flyer written by Ehrenburg designed to apprise prospective pupils and their parents of the summer school program, tuition rates, registration dates, etc. Under the terms of the lease agreement, La Verne was solely responsible for determining and administering the educational program. The May 1982 flyer originally offered courses in art, band, business, driver education, English, history, math, physical education, psychology, reading, science, sociology, typing and writing. However, due to insufficient enrollment, courses in art, band, business, English, physical education, science and typing, were ultimately dropped from the 1982 summer school curriculum. The La Verne summer school operated simultaneously with the District's limited, state-mandated summer school. Both schools commenced on June 21, 1982, and approximately 268 students enrolled in the La Verne program. Of them, roughly 80-85 percent were from the District. The rest were from private schools as well as public schools in the surrounding areas of San Jose, Los Gatos, Saratoga, Mountain View and Los Altos. La Verne was charged $13 per classroom for each day and $13 per day for office space. There were additional rental fees 9
assessed for the use of instructional materials, including
textbooks and audio-visual equipment. The fees charged to
La Verne totaled $4,762 for the 1982 summer school. Although,
by the terms of lease, the charges to La Verne were designed
only to cover the cost to the District of the La Verne summer
school, in 1982 the District actually made a small profit on
the venture.
In 1983, the District entered into another lease with
La Verne, enabling the latter to once again conduct summer
school at District facilities. As had been the case since
1978, the District again operated its limited, state-mandated
summer school. Ehrenberg once again was selected as the site
administrator of the La Verne summer school. Fourteen
teachers, who were employed during 1982-83 as teachers by the
District, taught in the 1983 La Verne summer program. District
facilities and materials were leased by La Verne in the same
fashion as had occurred the previous year. Courses taught in
the 1983 program included driver education, history, math,
reading, writing and a combined section of psychology,
sociology and economics. As of the date of the hearing in this
matter, no official decision had been made regarding leasing
District facilities to La Verne for a 1984 summer program.
Contractual Issue, Arbitration Decision and PERB's Repugnancy
Review
Prior to its filing of the first unfair {SF-CE-667) with
10PERB, FEA filed a grievance alleging that the District's lease with La Verne violated the parties' collective bargaining agreement. The contractual provision relied upon reads as follows: If summer instruction is exclusively available to students on a fee basis from Adult Education or an outside agency, all provisions of this agreement pertaining to summer school are waived. The District will encourage said agency to give preferential consideration to members of the unit. (Art. 2, sec. 2.2.3.2.) The grievance was denied by the District and went to arbitration. The arbitrator decided only the issue of whether the District violated the contract by entering into the lease agreement with La Verne. She did not consider issues relating to "subcontracting," and FEA did not introduce evidence at the arbitration hearing relevant to this issue. Ultimately, the arbitrator rejected FEA's argument that the District's state-mandated program rendered the La Verne summer school "nonexclusive," which, in turn, would have meant that the "waiver" of section 2.2.3.2 did not apply and, thus, La Verne teachers should be paid at the rate established in the collective bargaining agreement. On the contrary, the arbitrator found section 2.2.3.2 inapplicable to the situation. With respect to FEA's argument that section 2.2.3.2 was intended to avoid differential pay between District and La Verne teachers, the arbitrator ruled that the contract could 11
not bind a third party {La Verne) in order to eliminate the
disparity in pay between District and La Verne teachers. Thus,
the arbitrator concluded that the contract had not been
violated.
FEA thereafter filed an unfair practice charge alleging
that the arbitrator's decision was repugnant to EERA in that it
failed to consider the statutory issues raised in the charge
namely, whether the District's actions constituted a
subcontracting or transfer of bargaining unit work in violation
of EERA section 3543.S{c) and, deriviatively, {a) and {b). In
his proposed decision and partial determination of repugnancy,
ALJ Barry Winograd found that the arbitrator's award concerning
the District's decision to lease facilities to La Verne was not
repugnant to EERA. However, the ALJ went on to find that the
arbitrator had failed to fully consider facts needed to resolve
the statutory issue relating to the District's failure to
bargain the "effects" of its decision and, to this extent, her
decision was repugnant to EERA. The ALJ thus ordered that a
complaint should issue on the District's failure to bargain the
negotiable effects of its nonnegotiable decision. Although
both parties have since advanced varying interpretations of the
ALJ's repugnancy decision, neither party appealed the decision.
1983 Layoff
Among the allegations of the amended charge, FEA contended
that one of the actual effects of the 1982 lease agreement with
12La Verne was a layoff of certificated personnel occurring on or about May 10, 1983. At the hearing, FEA attempted to prove that four of the District's teachers were laid off at the end of the 1982-83 school year because students took summer courses from La Verne, and thus did not take those courses or, at least, took fewer courses during the following school session. This, in turn, resulted in lower enrollment and the layoff. Contrary to FEA's theory, however, the record evidence establishes that staffing of all schools within the District is based upon a negotiated formula in the collective bargaining agreement (i.e., one teacher for every 29.8 students). Therefore, the District's required number of teachers is not determined by the number of classes a student takes, but rather by the total enrollment of students in the District. Moreover, the average number of courses taken per student for the 1982-83 actually increased slightly following the first La Verne summer school and increased again following the second La Verne summer school. This increase was attributed to the fact that the District raised the minimum number of courses it required its students to take. The record shows that on March 1, 1983, after being advised of a projected deficit of 2.7 million dollars, the District's Board of Trustees adopted a resolution to reduce certain services for the following 1983-84 school year. Among those services sought to be reduced was physical education. The 13
determination to reduce physical education services was made because the District was carrying extra staff above what was required by the staffing formula in the collective bargaining agreement, and because physical education was the furthest from the academic subjects. 6 Implementation of the layoff was pursuant to Education Code section 44955, which provides that a District may not terminate the services of a permanent employee while any employee with less seniority is retained to render a service which the senior employee is certificated and competent to render. This meant that the most junior teachers were the ones identified for the layoff. Unless they were teaching in an area that was protected by the resolution, they would receive notice of layoff regardless of what subject they taught. Senior teachers were then reassigned to fill vacancies left by junior teachers who were laid off. As a result of the reduction in physical education services, and in accordance with the above process of implementation, four of the District's teachers were laid off in 1983. Thus, the record in this case shows that the layoff was not implemented due to a decline in student attendance, but because of a reduction in certain services which were considered to be 6physical education was not included in La Verne's program. It was, at one time, offered, but then dropped from the curriculum due to insufficient enrollment. 14
overstaffed. These were services in which there were more teachers than the number mandated by state law and/or formulas established in the parties' collective bargaining agreement. DISCUSSION Transfer of Case A threshold issue is presented in this case by the District's exception to the transfer of the case for decision from ALJ Link, who presided at the hearing, to ALJ Melgoza. The District argues that the transfer was prejudicial inasmuch as: (1) Melgoza was biased against the District's law firm because, prior to his issuance of the decision, he was personally named as a defendant in a lawsuit filed by the District's law firm; 7 and (2) Melgoza made credibility determinations without the benefit of actually hearing the testimony or observing the demeanor of witnesses. Concerning the District's first argument that the transfer should not have taken place because Melgoza was biased against the District's law firm, we note that PERB Regulation 32155 8 provides, in pertinent part: (a) No Board member, and no Board agent performing an adjudicatory function, shall 7The lawsuit was filed on April 3, 1985, and the proposed decision was issued on April 30, 1985. There is no indication from the record, however, that Melgoza was personally served, or otherwise had actual notice of the lawsuit prior to the date at which his proposed decision issued. Beal. Admin. Code, title 8, section 32155. 15
decide or otherwise participate in any case
or proceeding:
. . . . . . . . . . . . . . . . . . . . . . .
(4) When it is made to appear probable
that, by reason of prejudice of such ...
Board agent, a fair and impartial
consideration of the case cannot be had
In the decision of Gonzales Union High School District
{1985) PERB Decision No. 480, the interpretation of PERB
Regulation 32155(a){4) was at issue, and this Board enunciated
the following standard as being grounds for the
disqualification of an ALJ on the basis of bias: evidence of a
"fixed anticipatory prejudgment" against a party by the judge.
{Gonzales, supra; see Evans v. Superior Court {1930)
107 Cal.App.2d 372; Adoption of Richardson {1967)
251 Cal.App.2d 222.)
We can find no persuasive authority in support of the
proposition that "bias" against a legal representative, rather
than a party, is sufficient grounds for the disqualification of
an ALJ. In short, we conclude that the mere existence of a
lawsuit in which Melgoza was named, without any proof that
Melgoza was personally served or had actual notice prior to his
issuance of the proposed decision, falls short of demonstrating
"prejudice" under PERB Regulation 32155(a)(4) or meeting the
Gonzales standard of a "fixed anticipatory prejudgment."
The District also argues that the case should not have been
16transferred because it involved important credibility determinations made by Melgoza. Although this Board has held that it may not rely on a substituted ALJ's credibility determinations based upon the demeanor of witnesses and which involve conflicting testimony of witnesses (Gonzales Union High School District (1984) PERB Decision No. 410, p. 15; Regents of the University of California (1983) PERB Decision No. 366-H), in the instant case, the ALJ made no such "credibility" determinations in the classic sense. Instead we believe that the ALJ simply weighed conflicting evidence without reference to credibility or demeanor as such. While we do not find that this record provides sufficient basis upon which to conclude that there was prejudicial error in the transfer of the case to ALJ Melgoza, we do agree with the District's assertion that it should have been provided notice and an opportunity to state its objections prior to the transfer of the case pursuant to PERB Regulation 32168(b). 9 The parties should be provided notice of an impending substitution at a meaningful time -- e.g., before it has taken place. This procedure would permit parties to file their 9Regulation 32168(b) provides, in pertinent part: A Board agent may be substituted for another Board agent at anytime during the proceeding at the discretion of the Chief Administrative Law Judge in unfair practice cases . . • . 17
objections and allow the Board and its agents to consider the transfer of a case to a particular ALJ and/or permit the ALJ sufficient opportunity to withdraw. The ALJ's Proposed Decision The ALJ found the District to have violated EERA by its failure to bargain actual and potential effects of the lease with La Verne. In reaching this conclusion, the ALJ rejected the District's two primary arguments raised in its exceptions and accompanying briefs. They are: (1) the District's duty to negotiate the effects of the lease never arose because FEA waived any right it had to bargain such effects; and, alternatively, (2) the lease agreement with La Verne resulted in the operation of a summer school that was completely separate from that operated by the District and, thus, there was no impact upon terms and conditions of employment of unit members. Because we reject the ALJ's conclusion that the District had an obligation under EERA to negotiate the actual and potential effects of the lease, we find it unnecessary to reach the issue of waiver. Effects of Lease Agreement The fundamental issue in this case is whether the District violated EERA section 3543.S(c) and, deriviatively, section 3543.S(a) and (b) by failing to negotiate the actual and "potential" effects of the lease agreement with La Verne. In finding a violation of EERA, the ALJ initially observed that 18
the lease agreement resembled either a subcontract or transfer o f . . b arga1n1ng uni't wor k . 10 In the case of either, observed the ALJ, both the decision and the effects must be bargained. The ALJ rejected the District's argument that, without the La Verne lease, there would have been no additional work to transfer or subcontract and, therefore, no effects about which to bargain. By then relying on language in PERB's layoff cases, including Mt. Diablo Unified School District, supra, PERB Decision No. 373, the ALJ concluded that the District violated EERA by failing to negotiate the "reasonably foreseeable" effects of the lease. We disagree with the ALJ's characterization of the lease agreement as being "tantamount to subcontracting." Our precedent does not articulate a clear definition of what constitutes subcontracting. However, under the private sector's definition set forth in Justice Stewart's concurring opinion in Fibreboard Paper Products Corporation v. NLRB (1964) 379 U.S. 203, an employer's subcontracting consists of the: ... substitution of one group of workers for another to perform the same task in the same [location] under the ultimate control of the same employer. (..IJ;L.. at p. 224, emphasis added.) lOAlthough in his findings of fact, the ALJ stated that the lease agreement was the "accomplishment of a subcontracting or a transfer of work," he ultimately concluded that the lease more closely resembled a subcontract than it did a transfer. While our discussion herein emphasizes that the lease agreement did not result in the contracting out of unit work, we also conclude that no transfer of unit work occurred. 19
This record does nQ.t. show that teachers, while employed at La Verne, were under the ultimate control of the District, or that the District exercised any control whatsoever over La Verne teachers. The lease agreement provides that all employees hired by La Verne are to be selected by La Verne, be its employees exclusively, and be subject solely to its direction, control, compensation and discharge. Pursuant to the lease, La Verne was also to be responsible for payment of workers' compensation insurance, unemployment insurance, social security contributions and income tax withholdings. There is no evidence in the record indicating that the District interfered with La Verne's exclusive performance of these functions. Nor does there exist any evidence suggesting that La Verne was the "alter ego" of the District or otherwise functioned in less than an exclusive capacity regarding the summer school program. The evidence is thus consistent with a provision of the lease agreement in which La Verne is declared as being "solely responsible for determining and administering the educational program." (Emphasis added.) In California Teachers Assn. v. Board of Education of the Glendale Unified School District (1980) 109 Cal.App.3d 738, a case containing underlying facts and issues strikingly similar to those of the instant case, the Glendale Unified School District also entered into a written agreement with the University of La Verne. The agreement contained terms nearly identical to those contained in the lease entered into by the 20
parties in this case. For example, the agreement entered into between La Verne and the Glendale Unified School District provided that the former was to pay the district a use charge and conduct classes on the school premises, which were to be under La Verne's exclusive jurisdiction and control. Also similar to the record in the instant case, before 1978, the practice of the Glendale District had been to offer a broad range of classes. However, due to a reduction in state funding, the district, in 1978, ceased to offer a broad summer program and offered instead only a limited range of courses that were mandated and funded by the state. In Glendale, the court rejected the California Teachers Association's (CTA) argument that the La Verne summer school breached the collective bargaining agreement between CTA and the Glendale District as evidenced by a disparity in wages received by district and La Verne teachers. Significantly, in !lQ.t finding a violation of the collective bargaining agreement, the court stated: [CTA's] position would be well taken if the La Verne operation of its own summer school were a part of the district's summer school on a subcontract basis. As already indicated, the flaw in [CTA'sl pQsition isthat in fact the summer programs of the district and the summer programs Qf La Verne were completely separate and distinct from each other. It follows that the grant ofuse agreement had no impact on the teachers' rights under the collective bargainingagreement. No teachers have been laid off, no salaries have been reduced, nor have any rights been lost to the teachers as a resultof the grant of use agreement. (Glendale. supra, p. 750, emphasis added.) 21
In reaching our conclusion that no subcontracting or transfer of unit work occurred, we also find particularly significant the fact that, on this record (and in Glendale), the budgetary cuts associated with Proposition 13 caused the District to cease operating a comprehensive summer school as of 1978. In this regard, this Board's decision in Stanislaus County Department of Education (1985) PERB Decision No. 556 is instructive. In Stanislaus. the Board affirmed the ALJ's proposed decision, finding that the County Department of Education did not violate EERA by failing to negotiate its decision to cease operating centers for migrant children, and by selecting an outside nonprofit corporation to perform the function. The Board identified, as a principle issue, the "appropriate characterization" of the county"s decision to cease direct operation of the centers. Significantly, the Board noted that the migrant education program is not one mandated by the state. It stated: Unlike a school district that abandons its in-house transportation program and hires a private bus company to carry the students to and from its schools, here, the migrant child centers are not part of a county program which survives as such after the county decided it no longer wished to be in the business of directly providing educational services. (1.d..t.. at p. 4.) Similar to the situation in Stanislaus. here, the District's former comprehensive summer school was apparently not mandated by the state. Indeed, upon the passage of 22
Proposition 13, the state stopped funding the comprehensive summer school. When its source of funding was extinguished, the District entirely ceased operating the comprehensive summer program. We find persuasive the simple logic of the District's argument that the lease was not, in reality, a subcontracting of unit work inasmuch as the record clearly shows that without the lease, there would have been .ll.Q. comprehensive summer school. Had there, instead, been evidence that the District would have provided its own comprehensive summer school if the lease agreement option was not available, a different analysis of this issue might well be warranted. However, there was no evidence in the record indicating that the District was active in providing summer instruction other than its three state-mandated courses. Thus, absent any specific evidence that the La Verne summer school program replaced unit work which had been performed by the District, there cannot exist a subcontracting of unit work. In the final analysis, the ALJ's characterization of the lease as some form of subcontracting of unit work is not dispositive of the issues herein. This is so because, irrespective of its categorization as a lease, or the subcontracting of unit work (or something else), questions concerning the negotiability of the decision have been eliminated by the arbitrator's decision, as well as PERB's repugnancy determination thereof, from which no appeal was 23
taken. What remains is the issue of whether there exists an obligation to negotiate the effects of the lease and, if so, the extent of such an obligation. In deciding this issue, the ALJ relied on the PERB layoff cases of Mt. Diablo Unified School District (1983) PERB Decision No. 373 and Newark Unified School District (1982) PERB Decision No. 225 for their alleged proposition that management has the duty to bargain both actual and •speculative" effects of nonnegotiable decisions. We agree with the ALJ's analysis to the limited extent that he found that, irrespective of how the lease agreement is characterized, the in-scope effects, if any, of such a nonnegotiable decision are subject to negotiations. However, we disagree with the manner in which the ALJ applied the standard articulated in Mt. Diablo Unified School District, supra, to the facts of this case. In the decision of Mt. Diablo Unified School District, supra, this Board concluded that, in order to find a violation of EERA section 3543.S(c) within the context of a layoff, it is not necessary to prove the occurrence of an actual change in employees' working conditions as a precondition to finding a duty on the part of management to negotiate the impact of the layoff. Instead, ... the Association need only produce sufficient evidence to establish that the decision to lay off would have a reasonably foreseeable adverse impact on employees' working conditions and that its proposal is 24
intended to address employee concerns generated by that anticipated impact. (Mt. Diablo, supra, p. 51. Emphasis added.) Although the Mt, Diablo standard was articulated within the context of a layoff, we conclude that it may appropriately be extrapolated to the nonlayoff context of the instant case. Nonetheless, we believe that the record now before the Board underscores the manner in which the language of the Mt, Diablo test invites confusion and varying interpretations. Thus, we now take the opportunity to clarify the Mt. Diablo standard. The ALJ found the District to have violated EERA by its failure to bargain both actual and speculative effects of the lease with La Verne. We disagree with the ALJ's expansive application of the Mt. Diablo standard so as to embrace even those effects which are purely speculative. On the contrary, in determining the lawfulness of management's failure to negotiate impact in advance, the Mt. Diablo standard, in our view, attaches a bargaining obligation orily to those immediate or prospective effects which are reasonably certain to occur and causally related to the nonnegotiable decision at issue. Accordingly, we reject the ALJ's conclusion that FEA had a "right" to negotiate safeguards for unit members in case of a future layoff. In his proposed decision, apart from his identification of purely conjectural effects, the ALJ identified effects which he described as "actual." Such impact was allegedly demonstrated 25
in that La Verne teachers received salaries substantially lower than they would have received under the contract between the District and FEA. Other alleged "actual effects" noted by the ALJ were that La Verne teachers did not receive the protection of contractual class size restrictions and hiring provisions. We disagree that the facts relied on by the ALJ demonstrated actual impact. His analysis was dependent upon the mistaken conclusion that unit work was contracted out or transferred. Additionally, even though La Verne teachers were employed by the District during the school year, they were not District employees while they worked as teachers for La Verne. Indeed, the ALJ noted: Although the teachers hired by La Verne were employed by the District during the regular school year, they do not fit within the EERA definition of a "public school employee" during the time they worked for La Verne inasmuch as they received compensation from, were considered for employment and selected by, and were supervised by La Verne University. According to the agreement between the District and La Verne, the summer school teachers were to be solely La Verne's employees, subject to its direction and control. Inasmuch as the teachers, while they worked at La Verne, were not District employees, the District is not obligated under the contract to pay contract wages to the employees of a third party. Nor is La Verne the alter ego of the District or otherwise bound by the contract between FEA and the District. As was declared by the arbitrator, it is "axiomatic" that the contract cannot bind third parties. 26
Concerning the 1983 layoff1 had it been causally related to the La Verne (1982) lease, it would appropriately have been described as an actual effect of the lease agreement. However, we agree with the ALJ that the record clearly demonstrates that the 1983 layoff was in no way causally related to La Verne's operation of a summer school in 1982. That being the case1 the record remains completely devoid of evidence of impact on conditions of employment of members of the bargaining unit at a time when such individuals were employees of the District. In summation1 we conclude that there was no obligation to negotiate speculative effects of the lease and, finding no actual effects, we reverse the ALJ and dismiss the complaint. ORDER The unfair practice charge in Case No. SF-CE-779 is hereby DISMISSED. Chairperson Hesse and Member Craib joined in this decision. 27
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD FREMONT EDUCATION ASSOCIATION, CTA/NEA, Charging Party, v. FREMONT UNION HIGH SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) _____________________ ) Unfair Practice Case No. SF-CE-779 PROPOSED DECISION (4/30/85) Appearances: Ramon Romero (California Teachers Association) for Charging Party, and Patricia White (Littler, Mendelson, Fastiff & Tichy), attorney for Respondent. By Manuel M. Melgoza, Administrative Law Judge. PROCEDURAL HISTORY In June 1982, the Fremont Education Association, CTA/NEA, (hereinafter FEA or Union) filed an Unfair Practice Charge (SF-CE-667) with the Public Employment Relations Board (PERB), alleging that the Fremont Union High School District (hereinafter District) had violated the Educational Employment Relations Act (EERA or Act) 1 by entering into an agreement with Laverne University to conduct a summer school traditionally taught by bargaining unit members. on or about November 8, 1982, PERB dismissed the Unfair Practice Charge because the grievance machinery of the parties• collective lThe Educational Employment Relations Act is codified beginning at section 3540, et seq. of the Government Code. Unless otherwise stated, all statutory references are to the Government Code. 1 This Board agent decision has been appealed to the Board itself and is not final. Only to the extent the Board itself adopts this decision and rationale may it be cited as precedent.
bargaining agreement (containing binding arbitration), had not been exhausted. Indeed, the FEA had filed a grievance over the District's action in May 1982, claiming that it violated the Agreement as well. At the time the PERB dismissed the Charge for deferral reasons, the grievance had been heard by an arbitrator, but no decision had been rendered by her. On January 18, 1983, the arbitrator issued her opinion and award on the grievance. On May 11, 1983, the FEA filed an Unfair Practice Charge (SF-CE-779) with PERB alleging that the arbitrator's award was repugnant to the EERA, and claiming that the District's conduct in entering into the agreement with Laverne University violated that statute. The case was subsequently assigned to an administrative law judge for the purpose of resolving arbitration deferral and repugnancy claims pursuant to PERB Rule 32661 (Cal. Admin. Code, tit. 8, pt. III, sec. 32661). A First Amended Charge was filed by FEA on about August 12, 1983, alleging, in addition to its claims that the arbitrator's decision was repugnant, that one of the effects of the Laverne University venture was a layoff of certificated personnel occurring on about May 10, 1983. After the parties submitted their positions to the administrative law judge regarding the First Amended Charge, he issued a proposed decision on September 22, 1983. He ordered that the Unfair Practice Charge be partially dismissed to the 2
extent that the FEA alleged an unlawful refusal to meet and negotiate over the District's decision to enter into a summer school lease agreement with Laverne University. He found, however, that a Complaint should issue on the District's failure to negotiate over the effects of its lease agreement decision. Inasmuch as neither party appealed the proposed decision on repugnancy, it became a final decision on October 12, 1983, (HO-U-198). On September 23, 1983, a Complaint was issued by the PERB, charging that, with the exception of the allegations dismissed by the administrative law judge, that the First Amended Charge stated a prima facie violation of the EERA. After an informal conference failed to result in a settlement of the Charge, a formal hearing was conducted by Administrative Law Judge Allen Link on April 3, 4, 5, and 6, 1984, and May 9, 1984. Post-hearing briefs were submitted by the parties in June and July 1984. The Charging Party, in July 1984, moved to reopen the record. Respondent opposed said motion. Subsequently, the case was transferred to the undersigned for proposed decision. (See Cal. Admin. Code, tit. 8, sec. 32168(b).) FACTS The FEA represents a unit of certificated employees of the District having been voluntarily recognized by the latter as the exclusive representative. The unit encompasses all full 3
and part-time certificated personnel. including classroom teachers and summer school teachers. Prior to 1978 the District operated a comprehensive summer school lasting an average of about 30 days. Teachers employed during the regular school year were able to obtain employment during the summer months pursuant to established contractual criteria and procedures. The summer session traditionally offered a wide range of classes that were often also taught during the regular school year. Both parties had treated teaching of summer school classes as work of the bargaining unit represented by the FEA. Due to budgetary cuts occasioned by the passing of Proposition 13 in 1978, the District decided to dease operating its comprehensive summer school. Since the District was statutorily precluded from charging students tuition for attending. Fremont could not run its own self-supported (fee-based) summer program, either. Thereafter, from the summer of 1978 to and including the summer of 1981, the District provided summer school only for those students who were seniors within ten credits of graduating, special education students whose individual education plan specified the need for an extended program and (tutorial sessions for) students who had not mastered the minimum competencies required by law. This limited form of summer school was referred to by the parties as the 11 state-mandated 11 summer school because state 4
statutes required these programs be provided. Bargaining unit members were eligible for summer employment in this "state-mandated" program pursuant to the same contractual provisions that governed the regular summer session, including provisions governing wages, class size, hours, selection criteria, etc. Only students meeting specific criteria could attend this limited form of summer school. Although the District was unable to fund more than this limited summer school. its decision not to provide a comprehensive session was not intended to end summer school permanently. 2 Therefore. between 1978 and 1982, it searched for alternative ways to provide summer school for the general student population in the District. For example, it explored the possibility of having summer school provided by the Cupertino Parks and Recreation Department, the Saratoga/Los Gatos School District. the Campbell School District, and its own Adult Education Department. The Contractual Issue and The financial constraints resulting from Proposition 13 the District's desire to continue to provide students with a comprehensive summer program sparked the negotiation of a 2The record indicates that, for the summer of 1984, the District planned to expand somewhat beyond its state-mandated program due to the availability of some additional state funding. 5
contractual provision appearing for the first time in the parties' collective bargaining agreement effective September 1, 1978 to August 31, 1979, and included also in the subsequent contract for the period of September 1981 to August 1984. The pertinent portion of the clause, which was a subsection of the Recognition Article, reads as follows: 2.2.3.2 Summer School - Fee Basis If summer instruction is exclusively available to students on a fee basis from Adult Education or an outside agency, all provisions of this agreement pertaining to summer school are waived. The District will encourage said agency to give preferential consideration to members of the Unit ... The provision was included in the interest of making it possible for summer school to be be offered through Adult Education or an outside agency. However, the language "exclusively available," was included for the purpose of preventing a situation where two summer programs were operated side-by-side with employees teaching essentially the same courses, working the same hours, and teaching basically the same students, yet being paid at different rates. Therefore, the intent of the language was that, if summer instruction was going to be offered by an outside agency and the District, the apparent waiver of contract terms would not apply. 3 3 The dispute concerning this contract provision and the District's interpretation will be discussed further below. 6
The Contract with Laverne University Sometime in February or March 1982. Richard Baker. District Curriculum Coordinator and the administrator responsible for searching for alternative means to run a monetarily self-sufficient summer school. engaged in communications with representatives of Laverne University (a private entity) regarding the possibility of conducting such a program for the . . D 1str1ct. 4 La Verne University (hereinafter Laverne) had experience in conducting summer schools for other high school districts and offered, in exchange for a student paid fee, classes traditionally offered by the public schools. After an initial telephone conversation, Richard Baker subsequently met with a representative of Laverne and gathered data for the purpose of submitting proposals to Assistant Superintendent Hulburd on a self-sufficient summer program. Baker described the meeting as one where tuition, teachers' salaries. and lease amounts. were negotiated. 5 4There is a dispute regarding who initiated contact with Laverne. Baker testified that he initiated the contact. District Assistant Superintendent Kathleen Hulburd testified that Laverne initiated the communication. Resolution of this inconsistency in testimony is peripheral to the issues in this case and does not affect the undersigned's conclusions. 5Respondent put on testimony to show that Baker had not been given authority to negotiate teacher salaries with Laverne and argues in its brief that such discussions regarding salaries did not take place. Respondent did not call any witnesses, including the Laverne officials, to rebut the testimony of Baker. It argues that Baker's testimony should be discredited because, when called as a rebuttal witness, he 7
Subsequent to this meeting, Baker devised three separate proposals regarding a summer school package (with Laverne) and submitted them to Hulburd. After this meeting, several phone calls transpired between Baker and Laverne representatives in attempts to "firm-up" the tuition figures. The Consultation Sessions with FEA District administrators and FEA representatives historically met at regular meetings scheduled at least on a monthly basis. These meetings were not negotiation or bargaining sessions. It was in consultation sessions held some time in February or March 1982 that FEA representatives were informed that the District was considering entering into an agreement with Laverne to provide summer school. In response, FEA representatives stated their opposition to such an idea and stated that it would be a violation of section 2.2.3.2 of the contract. During the consultation sessions and "changed his story" on direct testimony. A reading of the transcript indicates that Baker did not specifically recant his earlier testimony that salaries were discussed, but only that he did not give the Laverne representative information on what teacher salaries were in the District. Respondent did not pursue the area on cross-examination. In Martori Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d 721 [175 Cal.Rptr. 626], the Supreme Court held that an administrative board must accept as true the intended meaning of uncontradicted and unimpeached evidence. Hence, because Baker's testimony is not contradictory and was unrebutted, I must credit it. Nor does the fact that Baker had some "communication problems" with his superior detract from his credibility, and there is no probative evidence from which it can be concluded that he fabricated his testimony. 8
subsequently
at
a
school
board
meeting
on
April
20, 1982,
FEA
made known
its
demand
that
the
District
could
not
proceed
with
the
agreement
without
first
negotiating
such
a
venture.
The
Union
articulated
some
of
the
potential effects
of
the decision
and
areas
where
they
desired
protection
for
unit
members. The
demand
to
bargain
is
more
fully
discussed
below.
William Mansfield
additionally told
District
representatives, prior
to
approval of
the venture,
that
the
proposed agreement
with
Laverne
covered
areas
which were
already
dealt
with
in
the
collective
bargaining
agreement,
including
wages,
hours
and
class size.
Despite
the
Union's
concerns, the
District
presented the
Laverne
lease
agreement
for school
board
approval
at
the April
20, 1982,
meeting.
The
proposal
that
was
presented to the
board
for
approval
was
termed
a
''lease-agreement" for the
use of space
and
District's facilities.
In
actuality,
the
two and
one-half
month
agreement involved
much more
than
a
lease of
facilities,
as
will
be
explained
below.
After the
FEA
stated
its
position to the school board
on
April 20. the
latter
still
voted
to
approve
the lease
agreement, arguing
that
it
had a
right to enter into
such
agreements pursuant to the case of
CTA
v.
Board
of Education of
the Glendale
USD
{1980) 109 Cal.App.3d 738. However,
the board
chose
not to execute the agreement, but decided to forward
it
to
its legal counsel for screening prior to signing.
9On April 26, 1982, the FEA president sent the superintendent another letter "repeating [its] concerns regarding private summer school" and "reiterating" its "desire to negotiate." The District executed the lease agreement on June 1, 1982, and implemented its terms. The FEA thereafter filed a grievance on May 13, 1982. alleging that the District's action regarding summer school violated, inter alia, contract article 2.2.3.2, and requested the agreement be withdrawn and that any such program must be in conformity with the terms of the current collective bargaining agreement. Nevertheless, during May, flyers were distributed within the District announcing the new summer school, soliciting teacher applications, giving figures on terms of employment (such as salaries), and indicating that Laverne had been 11"encouraged to give unit employees preference in hiring. 6 The summer school proceeded as scheduled, with classes commencing on June 21, and ending on July 30, 1982. In exchange for use of the facilities. the lease agreement required Laverne to use them only for the purpose of conducting summer school classes of the sort that had been offered at the District prior to 1978. It was required to provide the District with a complete accounting of the enrollment of 6taVerne actually agreed to give such preference. 10
persons attending classes. Although the agreement specificed that Laverne was solely responsible for determining and administering the educational program, and hiring, directing, and compensating its employees, there were "understandings" that expand the scope of the agreement and shed light on the intent of the venture. For example, the agreement was intended to benefit the students of the District. Indeed, over 90 percent of the students ultimately enrolled in the 1982 summer session came from within the District. Additionally, the District was able to negotiate with Laverne an agreement to give hiring preference to District teachers. In fact, all of the teachers ultimately hired by Laverne were bargaining unit members. The District and the University arranged for the summer school courses to count toward graduation credit. The hours of operation of the summer school were identical to the hours of the District-operated summer school. The District's state-mandated summer school and the Laverne summer school operated, essentially, side-by-side at the District's Cupertino High School. District staff, in addition to teachers, were hired by Laverne. James Ehrenburg, assistant principal at one of the District high schools, was hired by Laverne as the summer school site administrator. Approximately 10 District teachers and 4 District administrators and staff persons were hired by Laverne to conduct the summer school. 11
The subjects of driver education. English, science. math. and social studies were taught, areas traditionally offered in the District during the regular year and during summer school. Approximately 268 students were enrolled in the 1982 summer school. Approximately 15 of those students were from outside the District. The textbooks used by Laverne were those normally used in the District and rented from the latter. Other District equipment was also used in the Laverne program. Although unit members were given hiring preference. the seniority provisions and the "rotation" clauses in the contract between the District and FEA and specified selection criteria were not applied during Laverne's hiring process. Similarly, although the contract specified that summer school teachers were to be paid at 2/3 their normal per diem rate. Laverne paid a flat rate of about $1015 for teaching two periods, and about $2030 for four periods. This resulted in a substantial difference in the rate of pay between what the teachers in the Laverne program were paid and what the unit teachers in the District-run summer school were paid. As an example, unit member Fred Keep taught social studies for four hours per day in the District summer school, worked 29 days and was paid approximately $3600-$3700, calculated by the contractual 2/3 per diem rate. Unit member Lincoln Scarper. hired by Laverne to teach social studies for four hours per day, for 29 days. 12
summerwas paid $2050. If he had been hired by the District's school program, he would have earned approximately $3800 based upon the 2/3 per diem method of calculation. size In addition to the difference in salary, the class restrictions in the District's collective bargaining agreement were not applied to the Laverne program. 7 In 1983 the District entered into another agreement Laverne and conducted, once again, a summer school, side-by-side with the District's "state-mandated" summer school at Cupertino High School. Ehrenburg again acted as the coordinator of the Laverne program. Fourteen teachers, all unit members, were hired, and taught some 19 sections in traditional District subjects (13 sections were taught the summer). District materials - textbooks, consumable previous supplies. film projectors, other machines, typewriters, and duplicating equipment -- were used in substantially similar fashion by the Laverne program as in the 1982 summer. The hiring process for teachers was similar to the one used in 1982. with upon The wages paid to the teachers again were based a flat ($1093.50 for teaching one five unit class - two and fee one-half hours per day - and $2187 for teaching four and one-half hours per day). It was acknowledged that this 7A unit member's fringe benefits, which were acquired by virtue of a 10-month assignment, traditionally covered teachers for the entire 12 months. Therefore, although Laverne did not offer fringe benefits, no unit member lost these benefits as a result of the Laverne/District arrangement.13
was substantially less than what was paid the teachers who worked in the district-operated summer school in 1983. There was one other event that impacted the wages paid by Laverne in 1983. During the regular 1982/83 school year. the District had increased its unit members' wages by approximately 8 percent. Jim Ehrenburg determined that there was a need to achieve equity to prevent further disparity in wages between District-hired summer school teachers and Laverne-hired teachers from the District. Therefore, he asked Laverne to grant teachers hired for the summer of 1983 an 8 percent raise. Therefore, the wages for Laverne's 1983 program differed from those paid during the previous summer. 8 It would be a mistake to view the District's actions during the spring and summer of 1982 merely as an exercise of management's right to lease space and facilities. For what the District accomplished by its lease agreement went beyond this simple step. Part and parcel of the District's execution of a lease agreement with Laverne was the accomplishment of a 8There was some evidence presented during the hearing that the District was thinking of continuing to have Laverne offer a summer program at the District in 1984. There was alsoevidence that the District intended to expand its own summer program beyond the state-mandated areas depending on what funds were made available from the state. However, the District had not, at that-time, made a final decision on those matters. In July 1984 Charging Party filed a motion to reopen the record to present evidence on the 1984 program. That motion isdiscussed, infra. 14
subcontracting or a transfer of work (summer school teaching) out of the bargaining unit. Without such a transfer, the lease agreement would have had no meaning or purpose. The venture between Laverne and the District served to reestablish a comprehensive summer school for the benefit of District pupils, but changed the funding mechanism as well as its a d nnn1strat1on. . . • 9 Yet the summer school teaching jobs continued to legally belong to the FEA unit within the District. The Arbitration Award Complicating this matter further was the filing of a grievance by the Union in May 1982. The grievance proceeded to arbitration, and the arbitrator's opinion was issued on January 18, 1983. The arbitrator only decided the issue of whether the District violated its contract by entering into an agreement with Laverne to lease school district resources. She specifically avoided any issues in the area of sub-contracting as not being part of the case. She did not deal with the parties' EERA obligations, such as whether the District had a duty to negotiate. 9Although the venture was intended originally to be self-sufficient and the District did not attempt to make a profit, a profit was achieved by the District. The size of the profit is not in evidence. 15
The arbitrator analyzed the parties' evidence regarding the meaning of contract section 2.2.3.2. She found that the provisions purported only to specify what would happen in certain circumstances if summer school is provided solely by an outside agency. not to prohibit it entirely. She found that the section was inapplicable to the case because it was only triggered if the summer school was operated entirely (exclusively) by another agency. 1° Finding the section inapplicable. and silent as to what would happen in the event summer school was offered by the District and also by an outside agency, she found no contract violation. The FEA subsequently filed an unfair practice charge alleging that the arbitrator's award was repugnant to the purposes of the EERA because. inter alia. it failed to consider the statutory issues raised in the charge. PERB Administrative Law Judge Barry Winograd issued a proposed decision and a partial determination of repugnancy on September 22. 1983. Although the parties have interpreted his decision in different ways, neither party filed an appeal. and the proposed decision became final on October 12, 1983 (HO-U-198) . l0she initially found that the 1982 summer instruction was not exclusively available on a fee basis from an outside agency. She also rejected the District's reliance on the Article to excuse its actions. 16
In that decision. the administrative law judge found that the statutory bargaining claims were not decided and concluded: That deferral to the arbitration award is appropriate in connection with the Association's claim that it had a right tobargain over the District's decision to enter into the lease agreement with Laverne. However. deferral is not warranted in connection with the Association's further allegation: namely. that in terms of the effects of the decision. the District violated the Act because it unilaterallyaltered established contract terms and because it failed to negotiate over the non-contractual consequences of the lease arrangement with Laverne. (Fremont Union High School District (10/12/83) HO-U-198 at 18: emphasis added.) Elaborating on his conclusion that the arbitrator's award with respect to the District's decision was not repugnant. the Administrative Law Judge reasoned that: In keeping with the Los Angeles precedent. even if the Board were to disagree with the arbitrator's assessment of the evidence supporting the District's basic right, the PERB is bound to defer where the facts necessary to the arbitrator's holding are parallel to those that would be presented to this agency. Since the arbitrator's conclusion aboutmanagement's right to enter into a lease agreement was plainly a fundamental step inher overall analysis of the contract. the Association should be barred fron arguing at this date that it did not present all of the relevant evidence and argument on the basic subcontracting issue. With regard to the effects of the District's decision. the Administrative Law Judge found that the arbitrator had, inter 17
alia.
failed
to
fully
consider
facts
needed
to resolve the
statutory
bargaining
claim:
It is
apparent
that
the lease
agreement
decision
had
both
immediate
and
potential
effects
on
bargaining
unit
employees
and on
subjects
within the
scope
of
representation
under
the
Act.
{See
sec.
3543.2.)
For
example.
summer
school
instructors
for
La
Verne
were
typically
District
teachers
at
other
times
during the
year.
While working
for
La
Verne.
they taught
classes
comparable
to those
given
by
the
same
teachers
during
the regular
school
year
{and by
District
teachers
hired for the
District's
1982
state-mandated
summer
programs).
Yet
the
La
Verne
teachers
were
paid
a
substantially
lower
wage
and
were
not uniformly
selected
in
accord with the
terms
of
the
collective
agreement.
Under
similar
circumstances. the
Board has concluded
that
the
effects
of
unilaterally altering
working
conditions for
unit
employees.
and
the
transfer
of
that
work beyond
the reach of
the contract.
may
be
negotiable.
(See.
e.g .•
Mt. San
Antonio
Community
College
District
(8/18/83)
PERB
Decision
No.
334
at
pp.
8-9,
and
cases
cited
therein.)
Moreover,
the long-range
potential effects
of
the
Laverne agreement
in
terms of teacher
layoffs
or reductions
in
hours,
were never
subject
to bargaining with the
employer
....
Despite the
unknown
or
speculative
impact of the lease
agreement
on
future
employment
security at
the
time
the
decision
was
initially
made,
the
potential
effects
would
still
be
within
scope
for
prospective bargaining.
(Newark
Unified
School
District
(6/30/81)
PERB
Decision
No.
225
at
p.
5.)
Once
the
arbitrator
found
Article 2.2.3.2
inapplicable as
a
contract waiver because of
its
text
and
bargaining history,
if
she were
applying statutoiy collective bargaining
principles
she should have concluded
that
the
employer had not sustained
its
18contractual excuse for the resulting differential treatment. The balance of the contract terms still remained in operation unless a different defense was advanced by the employer. is The issue remaining in dispute in this case, therefore. the District failed to negotiate regarding the effects whether of its decision to enter into the agreement with Laverne. and whether this failure violated the EERA. DISCUSSION It axiomatic to is that a public school employer's failure meet and negotiate in good faith with an exclusive representative about a matter within the scope of representation is unlawful. Additionally, a unilateral change in terms and conditions of employment within the scope of representation is, absent a valid defense, a per se refusal to negotiate. Pajaro Valley Unified School District (5/22/78) PERB Decision No. 51: San Mateo County Community College District (6/8/79) PERB Decision No. 94. example, An employer's duty to negotiate is violated. for when it unilaterally changes an established policy without affording the exclusive representative a reasonable opportunity to bargain. Grant Joint Union High School District (2/26/82) PERB Decision No. 196; Pajaro Valley, supra. Where a contract is silent or ambiguo~s as to a policy, its meaning may be by examining past practice or bargaining history. ascertained 19
Rio Hondo Community College District (5/22/78) PERB Decision No. 279. The subject of subcontracting unit work has been found by the PERB to be negotiable and within the scope of representation. Oakland Unified School District (12/16/83) PERB Decision No. 367; Arcohe Union School District (11/23/83) PERB Decision No. 360. Similarly, transferring work from one bargaining unit to other employees out of that particular unit is negotiable. Goleta Union School District (8/1/84) PERB Decision No. 391. Subcontracting has an inherent impact upon terms and conditions of employment and, thus, proof of actual. demonstrable effects is not required in order to establish a violation. Oakland Unified School District (12/16/83) PERB Decision No. 367; and San Mateo County CCD, supra. Under the facts of this case, the District's actions more closely resemble a subcontracting of unit work than of a transfer. In either case, however. a mandatory subject of b arga1n1ng is 1nvo ve . . . . . 1 d 11 In a transfer of work out of the llAlthough the teachers hired by Laverne were employed by the District during the regular school year, they do not fit within the EERA definition of "public school employee" during the time they were working for Laverne inasmuch as they received compensation from, were considered for employment and selected by, and were supervised by Laverne University. According to the agreement between the District and Laverne, the summer school teachers were to be solely Laverne's employees. subject to its direction and control. The University was to bear all liabilities and expenses "imposed by law or contract incident to such employment," including Worker's Compensation Insurance, Unemployment Insurance, Social Security contributions and tax withholdings. Additionally, the· 20
init situation,
and
in
a
subcontracting
situation,
both
the
decision
and
the
effects
(impact) of
the decision are within
the
scope
of
representation. Rialto
Unified
School
District
{4/30/82)
PERB
Decision
No.
209; Arcohe
Union
School
District.
supra:
and
Oakland
Unified
School
District,
supra.
Unless
a
lawfully
accepted
excuse
is
established
(e.g.,
waiver,
exigent
circumstances),
an employer
may
not
subcontract
or
transfer
unit
work
out of
the
unit
without providing the exclusive
representative
notice
and
a
reasonable opportunity to bargain
over
the
subject.
These
principles
apply
to the
facts
of
this
case.
Preliminarily.
it
must be
pointed out
that,
both
by
past
practice
and
by
contractual
agreement,
summer
school
teaching
was work
recognized
by
both
parties
as belonging
exclusively to
the
bargaining
unit.
with
one
exception
that
has been found,
and I
concur.
inapplicable to
this situation.
12 The
summer
school
work was
not taken over
by
existing District
employees
out of
the
unit.
such
as
administration personnel, or
to
newly
created District-paid positions
out of the
unit.
Although
the
District
provided the
facilities
and some
supplies,
a
fee for
such
was
charged
to
Laverne
and
the
latter
was
contractually required to
be
solely responsible for
determining
and
administering the
summer
school program. See
Goleta Union School
District
(8/1/84)
PERB
Decision
No. 391;
and
Rialto
Unified School
District
(4/30/84)
PERB
Decision
No.
209.
12 The
arbitrator
decided
that the waiver in Recognition
Article 2.2.3.2 did not apply because
sum.mer
school
was
not
offered exclusively
by an agency
outside the school
district,
after
examining bargaining history.
The PERB
administrative
law judge did not find that portion of the arbitrator's
decision repugnant to the
EERA.
21collective bargaining agreement describes the unit as "all full and part-time certificated personnel excluding management. confidential. supervisory personnel, and other positions enumerated in Section 2.2.2. 11 It also contained numerous provisions governing terms and conditions of employment of summer school employees such as employee selection criteria, hours and work-year. compensation. placement of employees. seniority. rotation. and class size. The evidence presented indicates that. prior to 1982. summer school was performed only by the bargaining unit represented by the FEA. The fact that the District. because of lack of sufficient funds. scaled down its summer school after the passage of Proposition 13, did not automatically effectuate a removal of that work from the unit. Goleta Union High School District. supra, at p. 19, fn. 12. No unit modification was accomplished, and it was never the District's intent to permanently abolish the positions and cease the summer school function. The "hiatus•• of 1978-1982 did not operate to remove work from the unit. to permanently abolish bargaining unit positions. or to excuse the district from any legal obligations to bargain. It appears that the District provided FEA with notice of its intent to enter into a summer school agreement with Laverne, although the date that the District informed the Union of a firm decision is less clear. The testimony of FEA 22
Nitnesses Dick Fulcher and William Mansfield indicates that, during February and March 1982, the District, in consultation sessions, informed the Union that it "might" enter into a lease agreement with Laverne, that it was looking into the "possibility" of having Laverne run a summer program, and that it was "seriously considering" such a venture. District testified witnesses, including Tom Hodges and Kathleen Hulburd, that they informed FEA during consultation sessions during late February and March 1982, that the District was contemplating entering into the agreement. Between late March and early April, District representatives met with Laverne and later deliberated in a District administrator's meeting whether to offer Laverne the lease. In any event, via memo dated April 8, 1982 Hulburd officially informed FEA 1 s Dick Fulcher of the following: , Kathleen After our last consultation meeting, I met with representatives from University of Laverne regarding their leasing our facilities to provide a private summer school program for students in this area . . . . It is our intention to recommend to the board that it approve the lease agreement with the University of Laverne. If the lease agreement is approved, Laverne will hire an administrator who will be responsible for selecting teachers contingent upon sufficient class enrollment. Additional questions you may have can be discussed at our next consultation meeting. 23
And, although the Union had requested to negotiate during and subsequent to the February and March consultation meetings (see discussion below), the District board voted to approve the agreement with Laverne on April 20 and executed it on June 1, 1982. all, admittedly, without actual negotiations. The District's Duty and the Demand to Bargain Respondent raises, as one of its main arguments. that its duty to negotiate never arose because the Union made no effective or timely demand to bargain. Essentially. it is arguing that the FEA waived any right it had to bargain by failing to make a proper demand. As will be indicated below, a "clear and unmistakable waiver of a right to bargain" cannot be supported by the record in this case. The minutes of the school governing board indicate that, prior to making the decision to enter into the lease agreement with Laverne, Union representatives expressed concerns over the bidding procedures for jobs, over the absence of language regarding teacher salaries, over language stating that employees would be hired solely by Laverne, that the agreement was a potential unfair practice charge if subsequent classes in September and October were reduced because of the impact of the summer school, that the agreement subverted the unit, and that the current collective bargaining agreement already contained provisions in these areas. The FEA asked the District to postpone implementation of the lease agreement. 24
Elaborating on what occurred at this board meeting, William Mansfield, President of the Fremont Education Association, testified that the issues of wages, hours, class size, and teacher selection were raised by the Union in response to the District's proposed action. Prior to the board voting on the proposal, Union representatives addressed the members. According to Bill Empey's testimony. he told the board members that the pending proposal was a violation of the contract. it was bargainable, it was a potential unfair labor practice and would potentially impact on class size, and might result in a service layoff in the future. FEA witnesses, including Dick Fulcher, testified that prior to the date the lease agreement (June l, 1982) was executed, the Union repeatedly expressed that, if the District insisted on going ahead with the agreement, it would have to be negotiated. And, although documentary evidence such as the board's minutes of April 20, and FEA's letter of a demand to negotiate dated April 26, 1982, supports FEA's position that there was a general demand to bargain the District/Laverne venture, it is also apparent that FEA did not use the terms of art "we demand to negotiate the effects of the decision" or "the impact of the decision" to have summer school taught by Laverne University. 25
Respondent's witnesses, including Deputy Superintendent Thomas Hodges, acknowledged that there was a request to bargain. but qualified that by stating that the Union expressed a desire to negotiate only the decision and not the effects of the decision. to have Laverne operate the summer school program. In response to the Union's requests and protests, the District maintained that it was not a violation of the contract to proceed with the summer school arrangement, that indeed, the contract permitted such a scheme. and that the proposed summer school was in accordance with the Education Code and with a Court of Appeal case in CTA v. Board of Education of the Glendale USD (1980) 109 Cal.App.3d 738. That case upheld a similar lease agreement between Laverne and the Glendale Unified School District, but did not address the collective bargaining obligations of the parties with respect to the issue. While the Union's demand was not as precise as it could have been, the record reflects. and I find that FEA's protests, articulation of the possible impacts, and its general requests to negotiate were sufficient, in the facts of this case, to put the District on notice that it must bargain prior to undertaking the venture. Therefore, I find that there was a timely demand to negotiate with respect to all aspects of the lease agreement. I discredit the testimony of Hodges to the extent that it implies that FEA's representatives expressed a 26
enter desire to restrict bargaining only to the decision to into the lease agreement with Laverne. Such precision in the alleged communication does not logically square with the events h occurring at t e time. . . 13 PERB case law and the cases cited by Respondent are with this conclusion. Indeed. the facts herein are consistent far more supportive of a finding of an adequate demand to bargain than even were found by this Board to be sufficient in Goleta Union School District (8/1/84) PERB Decision No. 391. In finding that the District unlawfully transferred work out of the unit. the Board in that case considered the Respondent's argument that the Union had merely demanded that the District rescind its action and "restore the status quo," but did not make a specific request to negotiate at all. The Union argued that it did not feel that a demand to negotiate was necessary. given that they already had a contractual right to the work. Although the Union turned out to be wrong that it had a contractual right to the work. the PERB found a clear demand to 1 3 The fact that the FEA had expressed its desire to negotiate with regard to all aspects (decision and effects) of issue is further supported by uncontroverted testimony that the Bill Empey and Bill Mansfield approached James Ehrenburg in late May or early June 1982, in an attempt to obtain guarantees regarding the Laverne hiring process. and also in an unsuccessful attempt to have Ehrenburg apply a 11 rotation hiring process" and to apply a seniority system of hiring. Other provisions in the FEA contract were discussed as well. Such conduct is consistent with FEA 1 s previous expressions of intent to negotiate. Ehrenburg claimed these talks were not negotiations. 27
bargain in the Union's vigorous objections and demands to have the action rescinded and restore the status quo. Here. there was an expressed demand to bargain. The Board's decision in Newman-Crow's Landing Unified School District (6/30/82) PERB Decision No. 223 does not lend support to Respondent's waiver theory. In that decision, the majority opinion held that the Union failed to demand to negotiate the effects of a layoff. The factors relied upon were expressed as follows: While it is clear that Marvel criticized the resolution during his presentation, claiming that it was an illegal action, the record isless than clear as to whether Marvel referred to EERA violations, as well as those under the Education Code, and whether he requested the District to negotiate over the decision to lay off and its impact upon bargaining unit employees ..... Here, the hearing officer found that CSEA requested to negotiate layoffs. However, he acknowledged that the record is uncontroverted and that CSEA never providedany indication that it desired to negotiate the effects of layoff. All available evidence indicates that it only requested to negotiate the decision itself, an issue which is not negotiable, infra. Even CSEA's version of Morgan's comments supports the finding that CSEA only intended to negotiate the decision itself •... By claiming that the District's adoption of the resolution made any further negotiations futile, CSEA further indicated that it only desired to negotiate the decision to lay off. The District did not intend toimplement the decision until August 29, 1978, and a request to negotiate effectscould consequently have been made during the intervening time ...• In sum, CSEA gave no 28
general notice of its interest in the effects of the layoff decision and, of course, submitted no related proposals. (Id. pp. 9-10.) its In the above-cited case, the Board reiterated long-standing rule that it is not essential that a request to negotiate be specific or made in a particular form. Unlike the layoff which was involved in Newman-Crows Landing, this case concerns what can fairly be characterized as subcontracting of unit work. Whereas, in a layoff, the PERB has held that the decision is not negotiable, both the decision are within the scope of representation in a and the effects subcontracting case or a transfer of work case. Necessarily, a bargain in the area of layoffs would have to be demand to tailored to express a desire to negotiate regarding the effects. The same cannot apply to a situation where both decision and effects are negotiable. demand Secondly, even if one were to find that the FEA's be expressed in a manner indicating a desire to negotiate must the effects of the decision, the facts support a finding that such was done here. As noted above, in connection with its requests to negotiate, FEA listed several areas of concern, including potential layoffs, impact on class size, wages, and a desire to preserve contractual guarantees for unit members potentially affected by the venture with Laverne. 29
In reaching the above conclusion. I am not unmindful of the administrative law judge's repugnancy decision with respect to the FEA's right to negotiate the decision to subcontract. In finding that the arbitrator's award was not repugnant to the EERA with respect to a failure to address the statutory question of whether the FEA had a right to negotiate the decision to contract for summer school with Laverne, the administriative law judge implicitly found a waiver based apparently upon bargaining history. He found that the arbitrator had before her the facts relevant to determining whether the District had the authority to make the basic lease agreement decision without negotiating. He reasoned, inter alia, that the arbitrator concluded that side-by-side working arrangements were permissible under the contract. thereby accepting the possibility that internal District and outside agency programs could coexist. PERB has repeatedly held that a waiver of statutory bargaining rights must be clear and unmistakable. Oakland Unified School District (4/23/80) PERB Decision No. 126: Los Angeles Community College District (10/18/82) PERB Decision No. 252: Goleta Union School District. supra; Gonzales Union High School District (9/28/84) PERB Decision No. 410. Although I would not find, based upon this precedent and upon the record before me, that FEA waived its right to negotiate the decision to subcontract work, the issue is not before me since the 30
administrative law judge's determination to the contrary was not appealed and became final and binding on the parties. See Cal. Admin. Code, tit. 8, sec. 32300 and 32305. Consistent with this analysis. however, FEA did not waive its right to bargain over the actual or potential effects of the District's decision to have Laverne operate the summer school. Therefore, notwithstanding the implied waiver found by the administrative law judge in the repugnancy case, for purposes of deciding whether there is a duty to negotiate only the effects of the venture, I find that the FEA has met its burden of proof in that regard. In a second case cited by Respondent (Delano Joint Union High School District (5/5/83) PERB Decision No. 307), the Board considered a union's argument that it did not waive its right to bargain the effects of a layoff because: (1) it delivered a letter to the district requesting that certain events take place prior to acting on the proposed layoffs (including terminating some administrative personnel): (2) that it requested to address the school board; (3) that it requested that negotiations begin immediately on March 17 (on a successor contract); and (4) that it filed an unfair practice charge on April 11, 1980. The union, in that case, argued that this was sufficient notice of its desire to negotiate. The Board recognized the principle that whether a particular communication constitutes a proper request to 31
bargain is a question of fact to be determined on a case-by-case basis. It concluded that the facts of that case amounted to a mere protest by the union and that there was never a demand to negotiate on the layoff. only on a successor agreement (which was honored). Thus. it found that the letter to the district demanding that certain events take place prior to the layoffs did not deal with effects of the layoff. and was not a demand to bargain. Further, in the union's request to address the school board, no mention was made of the intended layoffs and no one representing the union spoke at the school board meeting that night. Likewise, during the March 17 communication, there was no indication of whether the union was requesting to negotiate about the successor contract proposal or about the effects of the contemplated layoffs. Finally, the PERB held that the filing of an unfair labor practice charge alleging a refusal to negotiate is not a request to bargain and does not trigger such a duty if the employer had no preexisting obligation to bargain. The facts in the present case are clearly distinguishable from those in Delano, as already mentioned above. The record is supported with testimony and evidence indicating a desire to negotiate all aspects of the subcontracting of summer school. Although the FEA did protest, Charging Party's witnesses• testimony indicated that it was much more than simply a protest. 32
Finally, the Respondent cites Healdsburg Union High School District (1/5/84) PERB Decision No. 375 in support of its waiver argument. In that situation (p. 52) the Board was considering whether a timely demand to negotiate had been made with respect to the effects of a decision to abolish classifications. As with layoffs, the Board reasoned that the decision to abolish positions is a management prerogative, and the only the effects are negotiable. The Board found that union's proposal was nonnegotiable because, by its terms, it required prior agreement before a decision to abolish has been made. and thus interfered with the District's decision to abolish. The Board found that a fair reading of the proposal indicated that it did not contain a request to negotiate the impact of the decision to abolish classifications. The facts in Healdsburg II are inapplicable to this case. As the PERB clearly found in the prior case, the union's decision proposal was clearly intended to preclude a district's prior to reaching agreement with the union. And, the decision itself was legally within management's prerogative. No request to negotiate the impact of the decision could be reasonably inferred from that proposal, unlike the facts herein, as outlined above. Indeed, the principles outlined in Newman-Crows Landing Unified School District, supra, a case the 33
Respondent cites in support of its position, supports the undersigned's conclusion on this issue. 14 Impact of the Laverne Program The Respondent next argues that the District•s actions did not have an impact upon terms and conditions of employment of unit members, that, if the Laverne agreement had not been implemented, there would have been no additional work for teachers apart from the mandated program, that no work was therefore transferred or subcontracted, and that no layoffs of unit members occurred as a result. Therefore, it concludes, there were no effects about which to bargain, and the only possible effect of the Laverne agreement was a creation of opportunity for summer employment for teachers which otherwise would not have existed due to the District's earlier (1978) decision to cut back on summer school. To accept the District's argument wholesale would be tantamount to looking, in hindsight, to see whether any impact occurred before deciding whether there was anything to negotiate. It also overlooks the Union's right to negotiate certain guarantees (job security, etc.) to protect the unit in ~ of a future impact. Nevertheless, FEA has sufficiently 14 The fact that no actual negotiations took place prioror subsequent to the implementation of the Laverne program in 1982 is plain from the record and the parties have not argued otherwise. The consultation sessions occurring prior toJune 1, 1982, were undisputedly not negotiation sessions. 34
Jemonstrated that the agreement had an impact upon the bargaining unit and that it was denied the opportunity to negotiate job guarantees for its members. In Mt. Diablo Unified School District (12/30/83) PERB Decision No. 373, the Board, in considering an employer's duty to negotiate the effects of a decision to layoff, stated that the union need not prove that an actual unilateral change in employee's working conditions resulted from the layoff as a precondition to finding a duty on the part of the employer to negotiate the impact of the layoff. On the contrary, the Union only produce sufficient evidence to establish that the need decision to layoff would have a reasonably foreseeable adverse impact on employees' working conditions and that its proposal is intended to address that anticipated impact. Likewise, in Newark Unified School District (6/30/82) PERB Decision No. 225, the Board upheld an administrative law judge finding that, although the impact of a proposed layoff was speculative at the time the union made a request for negotiations, the district was obligated to bargain over those district's admittedly speculative effects. In response to that argument that the union did not prove that the layoff had an effect on matters within scope and hence did not violate the Act, the Board quoted, with approval, the following language from the administrative law judge: 35
[I]t would not be consistent with PERB's decisions in this area to leave the judgment of whether or not a subject is "substantially" affected (and subject to negotiations) to the exclusive and unilateral province of an employer. Leaving such a decision in the employer's hands would thwart the collective negotiations objectives set forth in EERA, the salutory purposes of which were fully discussed in San Mateo County Community College District, supra, at 14-17. The Board reasoned that bargaining before the actual impact occurs can potentially be of the greatest value. The District's argument that no impact has been shown ignores PERB precedent. In the context of a subcontracting situation. the Board, in Oakland Unified School District (12/16/83) PERB Decision No. 367, rejected inconsistent NLRB precedent requiring demonstrable adverse impact on the bargaining unit for finding that a decision to contract out is within the scope of bargaining. It held that the fact that employees. their representative, and employer-employee relations are adversely affected is inherent in a finding that a policy with regard to subcontracting was unilaterally changed. Inherent in subcontracting, therefore. were such effects as withdrawal of actual or potential work from unit employees. wages and hours associated with the contracted out work, and diminution of the unit resulting also in the weakening of the collective strength of employees in the unit 36
and their ability to deal effectively for the unit. 15 In addition, an employer's unilateral change has a destabilizing and disorienting impact on employer-employee relations, derogates the exclusive representative's negotiating power and ability to perform as an effective representative in the eyes of employees, inherently tips the delicate balance structured by the Act. and may unfairly shift community and political pressure to employees and their organizations and reduce the employer's accountability to the public. San Mateo County Community College. supra. Thus, adverse impact on employees in the unit is demonstrated here. Oakland. supra, Similarly, in Rialto Unified School District (4/30/82) PERB Decision No. 209, the Board noted that, in transferring jobs from a bargaining unit, the impact was inherent. even though no demonstrable change occurred. Commenting on private sector precedent, the Board stated: In UAW v. NLRB, supra, the United States Circuit Court found this obligation to exist even though the affected employees were assigned other unit work and there was no demonstrable change in their wages or hours. The Court reasoned that the reduction of the whole number of jobs within the unit itself triggered the bargaining obligation. This holding is appropriate to the facts here. The loss of the counseling jobs precludes negotiations over wages, hours, and negotiable terms and conditions 15 It can be asserted that, because of the District•s ability to obtain a convenient summer program that turned out not only to be self-sufficient, but, to an unknown degree, profitable to the District, that the collective ability of the unit employees to negotiate with the District with regard to summer school conditions in the future was weakened, as was their hope ever to regain the positions. 37
of employment for work assigned to the representation unit pursuant to CTA's unit petition and subsequent recognition by the District. The ultimate impact of a transfer of unit work. the PERB observed, is loss of work to the unit. See also Goleta USD, supra, PERB Decision No. 391 at 19. In the case at hand, demonstrable impact has nevertheless been shown. In exchange for having their jobs traded from the unit, outside to Laverne, the unit members received terms inferior to what they would have received under their contract. They received a substantially lower wage for performing the same work. They had no class size restrictions to protect their ability to do an effective job. The protections they enjoyed in the contract to ensure fairness in hiring (rotation system of selection and seniority) and harmony among unit members were lost. Yet, according to the contractual terms they bargained for in section 2.2.3.2, they were to waive these protections only in the event that an outside agency exclusively ran the summer school entirely on a fee basis. Not only did unit members receive terms inferior to what they enjoyed in the past for the same work, but they also received terms inferior to their own colleagues teaching next door in the District-operated summer school. The adverse impact on morale and the collective strength of the unit were 38
the very things the Union had sought to avoid when negotiating the above-noted contract provision. Aside from the impact that did occur, the District's obligation did not end there. At the very least, the FEA had a a right to negotiate safeguards for unit members in case of future layoff that may result from the substantial exchange of Whether, summer school functions from the District to Laverne. in hindsight, such a layoff ever occurred, or will occur, does not relieve the District of its duty to negotiate potential effects, even though they may be speculative at the time. See Newark USD, supra. 16 Yet, although FEA representatives voiced their desire to negotiate protections in this area, as in the area of wages, class size, and hiring, they were well as not able to develop specific proposals because the District insisted that it had the right to go forward with its venture and proceeded with it. It is not clear what proposals would have been exchanged had the bargaining process been developed. It is conceivable that, in the areas where FEA had voiced concerns it could have negotiated with the District for District-provided benefits to compensate the unit for inferior terms resulting from the Laverne venture. 16The FEA attempted to prove that the summer school venture in 1982 caused a layoff of unit members at the end of the following regular school year. FEA's failure to prove causation is discussed below. 39
Additionally. as the administrative law judge noted in his underlying decision on repugnancy. "there were ways the District could have provided for maintaining the [contractually] bargained-for standards in its lease agreement with Laverne." The fact that this was possible is evidenced in the fact, as observes Charging Party, that the District was successful in persuading Laverne to give special hiring preference to District teachers. Additionally, District administrators were likewise successful in negotiating an approximate 8 percent wage increase for 1983 summer school teachers who taught in the Laverne program. While the concept immediately above may. at first glance, appear to be the type of proposal held by PERB to be out of scope because it "seeks to regulate a District's relationship with third parties" (Davis Joint Unified School District (8/2/84) PERB Decision No. 393), a closer look reveals that it falls more analogously within the area of successorship cases, where private sector precedent establishes that a union may require an employer, who intends to go totally or partially out of business, to negotiate contractual guarantees for the unit which are binding on a successor employer. See, e.g., United Mine Workers of America (1977) 231 NLRB No. 88. 17 The 17The Agricultural Labor Relations Board and the California courts have also recognized that such successorship proposals, which seek to extend contractual protection to unit employees once a successor purchases the enterprise, are a 40
Davis, distinguishing factor is that, unlike the situation in supra, a third party concern, namely Laverne, did "vitally the terms and conditions of employment of bargaining affect unit employees." United Mine Workers, supra at p. 575; Harris Truck and Trailer Sales, Inc. (1976) 224 NLRB 100; and see NLRB of v. Band-Age, Inc. (1976) 92 LRRM 2001 (lessor of a portion plant held to be successor): NLRB v. Middleboro Fire Apparatus, Inc. (1978) 100 lRRM 2182; Nazareth Reg. High School v. NLRB (1977) 94 LRRM 2897 (one high school out of a nine school unit taken over by a local community group). mechanism In sum, although the FEA probably had no legal by which to enforce a bargaining obligation upon Laverne as a employer - Laverne is a private institution and not successor within PERB's jurisdiction, and may not be within the NLRB's jurisdiction - the Union was entitled to negotiate future guarantees for its members with the District. contractual The 1982-1983 Layoff Notwithstanding my finding that the District had a duty to negotiate regarding potential layoffs. and that in failing to bargain, violated that duty, I find that the FEA has failed to Dal mandatory subject of bargaining. See, e.g. William Porto v. Agricultural Labor Relations Board (1/14/85) 85 Daily Journal D.A.R. 272 (C.A. 3), _ Cal.App.3d Successorship principles also apply to situations where a portion. of an enterprise is leased. See NLRB v. Band-Age, infra. and NLRB v. Middleboro Fire Apparatus. Inc., infra. 41
carry its burden of proving that a layoff occurring at the end of the 1982-1983 regular school year resulted from the District's venture with Laverne. At the hearing, Charging Party attempted to prove that at least four of its unit members (Billie Spence, Richard Milam, Dale Dalton, and Ken White) were laid off at the end of the 1982-83 school year because students took summer courses from Laverne and thus did not take those courses during the following regular school session, resulting in lower enrollment and, thus. the layoff. As Respondent notes in its brief, the record reflects that the layoff was not implemented because of a decline in attendance, but was taken because of a reduction in certain services which were overstaffed and which were unrelated to the Laverne program (e.g .• special education, etc.). The four employees were laid off because they were the most junior employees not otherwise protected by the layoff resolution. The overstaffing problem was the result of a long and gradual process pre-dating by years the Laverne agreement. Indeed, the average number of courses taken per student increased in 1982-83 school year, due in part to stricter graduation standards. and again increased for the 1983-84 year. Again. as Respondent ably points out, the 1983 layoff resolution did not reduce services in business, which was taught by Billie Spence, driver education. which was taught by Rick Milam and Ken White, or English, which was taught by Dale 42
Dalton. Laverne did not even offer business courses during either its 1982 or 1983 program. In any event. Charging Party failed to carry its burden of proving this actual impact, and cannot shift the burden of proving liability. as it attempts to argue in_ its brief, to the Respondent. Therefore. although I find a violation in the District's failure to negotiate the effects of transferring or contracting part of its summer school work to Laverne, and specifically. its failure to negotiate requested guarantees to prevent future layoffs. I find that the FEA failed to prove the actual implementation of the venture caused the 1983 layoff, and thus will recommend no affirmative relief for those employees in my remedy below. see Newark Unified School District, supra. at 7. For all the foregoing reasons, I find that the Fremont Union High School District violated EERA section 3543.S(c) and concurrently. sections 3543.S(a) and (b) in failing to negotiate with FEA the actual and potential effects of its decision to enter into an agreement with Laverne University to perform summer school unit work prior to implementing that decision. Therefore. I will recommend the Order proposed further below. MOTION TO REOPEN THE RECORD On or about July 16, 1984, the Charging Party filed a motion to reopen the record in this case claiming that "new evidence came into existence after the close of the hearing on 43
May
9,
1984,"
which
concerns
the
District's
continuing
refusal
to
meet
and
negotiate
with the
FEA
regarding the
decision
and
the
impact
of the decision
on
entering into
an
agreement
with
Laverne
for the operation
of
a summer
school.
In
support of
its
motion, Charging
Party
submitted
a
declaration
and
documentary
evidence
indicating
that
FEA
had made a demand
to
bargain the
District's
proposed
decision
(and
its
effects)
to
enter into
another
agreement
with
Laverne
for
summer
school
during the
1984 summer. The
declaration indicates
that,
since
June
26,
1984,
the
District
had
not
responded
to the
Union's
demands and
that
the
District
had
again
allowed Laverne
to
operate
a summer
school
in
1984
similar to
those operated in
1982 and
1983. Charging
Party's
representative declares
further that
he
is
informed
that
the
District is
also
(summer
of
1984)
operating
the
first
fully
comprehensive
summer
school
program
it
has offered since
1977.
Essentially,
Charging
Party
seeks
to
show
that
the
District
has
continued to
do
in
1984 what
it
did
in
1982 and 1983.
However, I
have found
the
District's
conduct
to
constitute
a
violation
of
EERA
sections 3543.S{a), (b)
and
(c)
even
without
the proffered
evidence of
a
subsequent reoccurrence of the
event,
albeit
in
a
slightly different context.
The
evidence,
therefore, is
not
crucial to
my
finding of an
unfair practice
and
it
is
unnecessary to reopen the record. Rialto Unified
School
District
{4/30/82)
PERB
Decision
No. 209.
44approaches. Presumably, as the end of the next school year Charging Party will move to reopen again to offer evidence of what occurred during the summer of 1985, if a final, non-appealable decision has not yet been rendered. In such an event, this matter may never come to a conclusion. position, Should Charging Party wish to preserve its legal to bargain it may refile a charge based upon the refusal regarding the 1984 summer program. Because of its filing of a timely motion to reopen, and Respondent is aware of the allegations, the statutory filing period (section 3541.5) would be tolled until resolution of the motion to reopen. See underlying rationale in State of California (Department of Water Resources) (Matta) (12/29/81) PERB Order No. Ad-122-S. REMEDY unit A unilateral subcontracting or transfer of bargaining work without negotiating its effects is a serious infringement of employee rights, as it, inter alia, denies the exclusive representative the opportunity to present proposals to offset impact of the loss of contractual benefits and potential the loss of work for the unit. It is generally appropriate under circumstances to order a return to the status quo, order such the District to meet and negotiate, upon request, over the effects. order it to cease and desist from taking further 45
unilateral actions, and to make employees whole for any resulting losses. One of the effects resulting from the District's unilateral action and its failure to negotiate was a reduction of wages and a denial of contract terms for those bargaining unit members who worked under the Laverne summer program. Therefore, it is my recommendation that the District be ordered to make those employees whole by granting them back pay measured by the difference between what they actually earned and what they would have earned according to the collective bargaining contract rate plus interest at the rate of 10 percent per annum. In addition, the District shall grant any other benefits those employees would have earned, including seniority or pension rights, if any, if the contract terms had been applied to them. I do recognize that the PERB disfavors a remedy which may be based upon speculation. However, here. there was a collective bargaining agreement in place and a fixed rate which was unilaterally changed. Additionally. the record indicates that, historically, every time bargaining unit members worked in the District's summer program, they received that rate in 1982 and 1983, that is, all but those unit members working in the Laverne program. Under the Laverne program, the District essentially received the same work from the unit members, and, in exchange. the employees received less pay. 46
to It is also appropriate that the District, in addition being ordered to cease and desist from failing to bargain and to make the employees whole, also be ordered to rescind whatever arrangements it may currently have to operate a summer school by any entity other than the District until it has satisifed its obligation to negotiate the impact of such a venture with the FEA. sign I will also recommend that the District be required to and post the Notice to Employees attached to this Proposed Decision as Appendix A, which incorporates the terms of the Proposed Order. Posting such a notice will provide employees with notice that the employer has acted in an unlawful manner and is being required to cease and desist from this activity. It effectuates the purposes of the Act that employees be informed of the resolution of the controversy and will announce the employer's readiness to comply with the ordered remedy. See Placerville Union School District (9/18/78) PERB Decision No. 69; Pandol and Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 587; NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415]. PROPOSED ORDER law, Upon the foregoing findings of fact and conclusions of and the entire record in this case. and pursuant to EERA section 3541.S(c), it is hereby ORDERED that tbe Fremont Union 47
High School District, its governing board and its representatives shall: A. CEASE AND DESIST FROM: (1) Failing and refusing to meet and negotiate in good faith with the exclusive representative of its certified employees by taking unilateral action on matters within the scope of representation, as defined in section 3543.2 specifically with reference to the effects of its decision to enter into an agreement with another entity for the provision of a summer school program for its students. (2) Denying the Fremont Education Association, CTA/NEA, their right to represent unit members by failing and refusing to meet and negotiate about matters within the scope of representation. (3) Interfering with employees because of the exercise of their right to select an exclusive representative to meet and negotiate with the employer on their behalf by unilaterally changing matters within the scope of representation without first providing notice and the opportunity to meet and negotiate with the exclusive representative. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 48
(1) Unless the parties reach a contrary agreement. the District shall rescind any current arrangements it may have to operate a summer school program by any entity other than the Fremont Union High School District until it has satisfied its obligation to negotiate with the Fremont Education Association as ordered in Number 3, below. (2) Make those bargaining unit employees who worked under the La Verne summer program whole for any loss in pay resulting from the District's failure to negotiate, including awarding them back wages measured by the difference between what they actually earned and what they would have earned under the terms of their collective bargaining agreement plus interest at the rate of 10 percent per annum. In addition, those employees shall be granted any other benefits, including seniority or pension rights, that they would have earned if the contract terms had been applied to them. (3) Upon request of the Fremont Education Association, meet and negotiate with the Association over the effects of the District's decision to enter into an agreement with another entity for the provision of a summer school program for its students. (4) Within ten (10) workdays from service of the final decision in this matter. post at all school sites and all other work locations where notices to certificated employees are customarily placed, copies of the NOTICE TO EMPLOYEES attached as an appendix hereto. The notice must be signed by 49
an authorized agent of the District indicating that the District will comply with the terms of this order. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that the notice is not reduced in size, altered, defaced or covered by any other material. (5) Upon issuance of a final decision, make written notification of the actions taken to comply with the order to the San Francisco Regional Director of the Public Employment Relations Board in accordance with the director's instructions. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision and Order shall become final on May 21, 1985, unless a party files a timely statement of exceptions. In accordance with the rules, the statement of exceptions should identify by page citation or exhibit number the portions of the record relied upon for such exceptions. See California Administrative Code, title 8, part III, section 32300. Such statement of exceptions and supporting brief must be actually received by the Public Employment Relations Board itself at the headquarters office in Sacramento before the close of business (5:00 p.m.) so
on May 21, 1985, or sent by telegraph or certified United States mail. postmarked not later than the last day for filing in order to be timely filed. See California Administrative Code, title 8, part III, section 32135. Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall be filed with the Board itself. See California Administrative Code. title 8, part III. section 32300 and 32305. Dated: April 30, 1985 ~,~ m.~ Manuel M. Melgoza • Administrative Law Judge 51
PROOF OF SERVICE BY MAIL C.C.P. 1013a I declare that I am employed in the County of ___ S_a_cr_am_en_t_o __ , California. lam over the age of 1Syears and not a party to the within entitled cause; my business address i~ 1031 18th Street, Suite 200 Sacramento, California 95814 On December 30, 1987 , I served the enclosed __________ _ Co.tel PERB Decision No. 651 Fremont Union High School District Case No. SF-CE-779 (Describe Document! on the parties to this case by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid. in the United States Mail. ____ S __ a .... c .... r .... a __ m __ e __ n __ t"'"'o ___ _ (City or Townl California, addressed as follows: Fremont Union High School District Attn: Superintendent 589 West Fremont Ave. Sunnyvale, CA 94087 Fremont Education Association Attn: Wm. Empey, Exec. Director 20370 Town Center Lane Cupertino, CA 95014 Patricia P. White, Attorney Littler, Mendelson, Fastiff & Tichy Sixty So. Market Street, Suite 1100 San Jose, CA 95113-2303 Ramon Romero, Attorney California Teachers Association 1705 Murchison Drive Burlingame, CA 94010 I decl•r• under pen•lty of perjury th•t the fort1going is true •nd corrt1ct •nd th•t this declaration was executed on ___ D_e_c_e_m_b_e_r_3_0 ____ . 19 E_ at ___ S_a_c_r_a_m_en_t_o ___ , California. (Datel (City or Town) Teresa Stewart --- - •• r, , , n. / 0 C: \ (Type or print namel
3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD I
FREMONT EDUCATION ASSOCIATION, )
CTA/NEA, )
)
Charging Party, ) Case No. SF-CE-779
)
Vv. ) PERB Decision No. 651
)
FREMONT UNION HIGH SCHOOL DISTRICT, ) December 30, 1987
)
Respondent. )
)
Appearances: Ramon E. Romero, Attorney, for Fremont Education
Association, CTA/NEA; Littler, Mendelson, Fastiff & Tichy by
Patricia P. White for Fremont Union High School District.
Before Hesse, Chairperson; Porter and Craib, Members.
DECISION
PORTER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Fremont Union High School District (District) to the attached
proposed decision of a PERB administrative law judge (ALJ).
The ALJ found that the District violated section 3543.5(c) and,
Gerivatively, section 3543.5(a) and (b) of the Educational
Employment Relations Act (EERA) + by failing to give
lEERA is codified at Government Code section 3540
et seq. Unless otherwise indicated, all statutory references
herein are to the Government Code. Section 3543.5 provides, in
pertinent part, 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
the Fremont Education Association (FEA) notice and an
opportunity to negotiate the effects of its nonnegotiable
decision to lease facilities to the University of La Verne, a
private institution, so that the latter could conduct summer
school classes. For the reasons which follow, we reverse the
ALJ.
Procedural History
On June 14, 1982, the FEA filed an unfair practice charge
(SF-CE-667) alleging that the District violated EERA by
entering into an agreement to lease facilities to La Verne in
order to enable the latter to conduct summer school classes at
the District's Cupertino High School. This charge was
dismissed and deferred to arbitration. An arbitration decision
subsequently issued finding that the lease agreement with
La Verne did not violate the contract. FEA then filed another
unfair practice charge (SF-CE-779) alleging that the
arbitration decision was repugnant to EERA. FEA subsequently
amended this charge to allege that one of the actual effects of
the lease agreement was a layoff of certificated personnel on
or about May 10, 1983.
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2
In his proposed decision on the repugnancy charge, the PERB
ALJ ordered that a partial complaint should issue on the
District's failure to negotiate the foreseeable effects of its
decision to enter into the lease agreement with La Verne. A
hearing thereupon followed, conducted by ALJ Allen Link. The
case was subsequently transferred for decision to ALJ Manuel
Melgoza.
FACTS
FEA is the exclusive representative of a unit of
certificated employees of the District, which includes teachers
employed during the regular school year and during summer
school.
Prior to 1978, the District operated a "comprehensive"
summmer school in which teachers employed during the regular
school year were able to obtain summer school teaching
positions pursuant to established contractual criteria and
procedures. This pre-1978 comprehensive summer school offered
the same broad range of courses which were included in the
regular school year curriculum.
Due to budgetary cuts caused by the passage of
Proposition 13 in 1978, the District ceased operating its
comprehensive summer school. The District was statutorily
precluded from charging students fees for summer school to make
up for losses in revenue occasioned by cutbacks associated with
Proposition 13. After the passage of Proposition 13, however,
3
the state continued to fund three programs which the District
was statutorily mandated to provide. This limited, or
"state-mandated," sun:uner school was available only for students
meeting one of the following specific eligibility criteria:
(1) seniors within ten credits of graduation; (2) special
education students whose individual educational plans specified
the need for an extended year program; or (3) students who had
not yet mastered the District's minimum competencies. Inasmuch
as, with the passage of Proposition 13, the state would no
longer fund summer programs not specifically statutorily
mandated, it was not feasible for the District to provide a
comprehensive summer school curriculum. Even had the District
not leased its facilities to La Verne, it still would not have
operated a summer school other than that mandated and funded by
the state, because the state would not reimburse the District
for such a school. Indeed, absent the prospect of new state
funding, money would have to be taken from the District's
general fund (the same fund from which teachers' salaries were
drawn) in order to provide funding for comprehensive course
offerings. Both the District and FEA understood this not to be
a reasonable alternative.
Initial Contacts With La Verne
Richard Baker, the District's curriculum coordinator, was
requested in February or March 1982 (four years after the
cessation of the 1978 comprehensive summer school) by his
4
superior, Kathleen Hulburd, the District's assistant
superintendent of curriculum, to contact public and private
institutions outside the District to explore the possibility of
one of them offering a self-supported summer school which could
be utilized by District students. Baker communicated with
representatives of the University of La Verne to discuss their
interest in leasing District facilities and providing a
self-supported summer school.
After an initial telephone conversation, Baker met with a
representative of La Verne. According to Hulburd's testimony,
Baker was not instructed by her to "negotiate" salaries for
La Verne teachers, nor was he instructed to draft the lease
agreement with La Verne. His general instructions were simply
to meet with La Verne officials and discuss their interest in
leasing facilities. Baker testified that he and the La Verne
representative "costed out" La Verne's expenses to determine
what tuition figure was reasonable. At their meeting, the
collective bargining agreement between FEA and the District and
the salary it prescribed for District teachers were not
mentioned. At a subsequent meeting between a La Verne
representative and Baker, in May of 1982, lease figures were
firmed up.
FEA's Objections to Lease
The District historically met with FEA representatives at
regularly scheduled "consultation" sessions. Consultation
5
sessions were monthly meetings typically attended by FEA's
officers and chief negotiator, as well as the District's deputy
superintendent, Tom Hodges, and other cabinet level personnel.
Negotiations did not take place at these sessions. At a
consultation session held in either February or March 1982,
Dick Fulcher, FEA's president; Bill Mansfield, a member of
FEA's bargaining team; 2 and Bill Empey, FEA's executive
secretary, were informed by Hodges that the District was
considering entering into an agreement to lease facilities to
La Verne so that the latter could operate a summer school.
Both Fulcher and Mansfield voiced general objections to the
lease agreement on the basis that it would violate the
collective bargaining agreement. After this consultation
session, Fulcher, in an informal discussion with at least one
board member, reiterated concerns that the District's proposed
lease agreement would breach the contract.
At a board meeting on April 20, 1982, Empey addressed the
Board of Trustees and voiced FEA's objections to the proposed
lease agreement. This was followed by a letter in which FEA's
objections were again expressed. On June 1, 1982, the lease
agreement was formally adopted by the Board of Trustees.
2aill Mansfield was a member of FEA's negotiating team
for the school year 1981-82. In May 1982, he was elected FEA's
president. Although his term did not officially begin until
July 1982, upon his election he gradually began to assume the
duties of his predecessor, Dick Fulcher.
6
La Verne's Preparation for Summer School
A few weeks prior to the adoption of the lease agreement,
La Verne representatives laid the necessary groundwork for the
summer school. A representative of La Verne interviewed
several administrators from the District for the position of
La Verne's site administrator, and James Ehrenburg, an
assistant principal at a District high school, was ultimately
selected.
During May 1982, flyers were distributed in the District
announcing La Verne's new summer school and soliciting teacher
applications. The newly selected La Verne site administrator,
Ehrenburg, was contacted in late May or June by FEA
representatives Empey and Mansfield to discuss their concerns
regarding how teachers at La Verne would be hired. Although
Ehrenberg was ~till employed by the District at the time of the
meeting, it took place after his normal duty hours and at a
time when he had already been employed by La Verne as its site
administrator. Ehrenberg testified that he was not engaged in
"negotiations" with FEA and, in fact, was acting at the meeting
solely in his capacity as an agent of La Verne. At the
meeting, which lasted approximately 35-40 minutes, the three
discussed their concerns regarding preferential treatment for
District teachers. 3 The parties were especially interested
3ouring one of the previous consultation sessions,
Fulcher had requested assurance from Hulburd that teachers from
the Fremont Union High School District would be given
7
in arriving at a means of reducing the friction between FEA and
La Verne. The friction was in part caused by the fact that FEA
had earlier communicated a recommendation to its constituency
that they not apply to teach at the La Verne summer school.
Approximately 46 teachers applied for ten positions at
La Verne. 4 Although some of La Verne's support staff were
not employed by the District during the regular academic year,
ultimately all teachers hired by La Verne for the 1982 summer
school were otherwise employed by the District. La Verne paid
a flat rate of about $1,015 for teaching two periods, and about
$2,050 for four periods. 5 Because the District-paid health
and welfare benefits were computed on a 12-month basis
preferential treatment in staffing La Verne's summer school
faculty. Hulburd thereafter wrote Fulcher a short memo
assuring him that the District would encourage La Verne to give
preferential treatment to members of the unit. She attached a
copy of a letter written to La Verne requesting such
preferential hiring of members of the unit.
4According to the terms of the 1982 lease agreement,
La Verne was exclusively responsible for the hiring of its
teachers. The 1982 lease agreement states, in pertinent part:
All persons employed by the University
[La Verne] shall be selected and hired
solely by the University, shall be its
employees exclusively and shall be subject
solely to its direction, control,
compensation and discharge.
5The compensation of unit members hired to teach the
state-mandated courses in the District summer school was
computed on a daily rate basis determined in part by the
teacher 1 s placement on the prior year's salary schedule. This
resulted in higher wages as compared to those paid to La Verne
teachers.
8
irrespective of summer employment, La Verne teachers were not
disadvantaged in their receipt of such benefits as a result of
their employment with La Verne.
In May 1982, La Verne also distributed in the District and
in neighboring communities a flyer written by Ehrenburg
designed to apprise prospective pupils and their parents of the
summer school program, tuition rates, registration dates, etc.
Under the terms of the lease agreement, La Verne was solely
responsible for determining and administering the educational
program. The May 1982 flyer originally offered courses in art,
band, business, driver education, English, history, math,
physical education, psychology, reading, science, sociology,
typing and writing. However, due to insufficient enrollment,
courses in art, band, business, English, physical education,
science and typing, were ultimately dropped from the 1982
summer school curriculum.
The La Verne summer school operated simultaneously with the
District's limited, state-mandated summer school. Both schools
commenced on June 21, 1982, and approximately 268 students
enrolled in the La Verne program. Of them, roughly 80-85
percent were from the District. The rest were from private
schools as well as public schools in the surrounding areas of
San Jose, Los Gatos, Saratoga, Mountain View and Los Altos.
La Verne was charged $13 per classroom for each day and $13
per day for office space. There were additional rental fees
9
assessed for the use of instructional materials, including
textbooks and audio-visual equipment. The fees charged to
La Verne totaled $4,762 for the 1982 summer school. Although,
by the terms of lease, the charges to La Verne were designed
only to cover the cost to the District of the La Verne summer
school, in 1982 the District actually made a small profit on
the venture.
In 1983, the District entered into another lease with
La Verne, enabling the latter to once again conduct summer
school at District facilities. As had been the case since
1978, the District again operated its limited, state-mandated
summer school. Ehrenberg once again was selected as the site
administrator of the La Verne summer school. Fourteen
teachers, who were employed during 1982-83 as teachers by the
District, taught in the 1983 La Verne summer program. District
facilities and materials were leased by La Verne in the same
fashion as had occurred the previous year. Courses taught in
the 1983 program included driver education, history, math,
reading, writing and a combined section of psychology,
sociology and economics. As of the date of the hearing in this
matter, no official decision had been made regarding leasing
District facilities to La Verne for a 1984 summer program.
Contractual Issue, Arbitration Decision and PERB's Repugnancy
Review
Prior to its filing of the first unfair {SF-CE-667) with
10
PERB, FEA filed a grievance alleging that the District's lease
with La Verne violated the parties' collective bargaining
agreement. The contractual provision relied upon reads as
follows:
If summer instruction is exclusively
available to students on a fee basis from
Adult Education or an outside agency, all
provisions of this agreement pertaining to
summer school are waived. The District will
encourage said agency to give preferential
consideration to members of the unit.
(Art. 2, sec. 2.2.3.2.)
The grievance was denied by the District and went to
arbitration. The arbitrator decided only the issue of whether
the District violated the contract by entering into the lease
agreement with La Verne. She did not consider issues relating
to "subcontracting," and FEA did not introduce evidence at the
arbitration hearing relevant to this issue.
Ultimately, the arbitrator rejected FEA's argument that the
District's state-mandated program rendered the La Verne summer
school "nonexclusive," which, in turn, would have meant that
the "waiver" of section 2.2.3.2 did not apply and, thus,
La Verne teachers should be paid at the rate established in the
collective bargaining agreement. On the contrary, the
arbitrator found section 2.2.3.2 inapplicable to the
situation. With respect to FEA's argument that section 2.2.3.2
was intended to avoid differential pay between District and
La Verne teachers, the arbitrator ruled that the contract could
11
not bind a third party {La Verne) in order to eliminate the
disparity in pay between District and La Verne teachers. Thus,
the arbitrator concluded that the contract had not been
violated.
FEA thereafter filed an unfair practice charge alleging
that the arbitrator's decision was repugnant to EERA in that it
failed to consider the statutory issues raised in the charge
namely, whether the District's actions constituted a
subcontracting or transfer of bargaining unit work in violation
of EERA section 3543.S{c) and, deriviatively, {a) and {b). In
his proposed decision and partial determination of repugnancy,
ALJ Barry Winograd found that the arbitrator's award concerning
the District's decision to lease facilities to La Verne was not
repugnant to EERA. However, the ALJ went on to find that the
arbitrator had failed to fully consider facts needed to resolve
the statutory issue relating to the District's failure to
bargain the "effects" of its decision and, to this extent, her
decision was repugnant to EERA. The ALJ thus ordered that a
complaint should issue on the District's failure to bargain the
negotiable effects of its nonnegotiable decision. Although
both parties have since advanced varying interpretations of the
ALJ's repugnancy decision, neither party appealed the decision.
1983 Layoff
Among the allegations of the amended charge, FEA contended
that one of the actual effects of the 1982 lease agreement with
12
La Verne was a layoff of certificated personnel occurring on or
about May 10, 1983. At the hearing, FEA attempted to prove
that four of the District's teachers were laid off at the end
of the 1982-83 school year because students took summer courses
from La Verne, and thus did not take those courses or, at
least, took fewer courses during the following school session.
This, in turn, resulted in lower enrollment and the layoff.
Contrary to FEA's theory, however, the record evidence
establishes that staffing of all schools within the District is
based upon a negotiated formula in the collective bargaining
agreement (i.e., one teacher for every 29.8 students).
Therefore, the District's required number of teachers is not
determined by the number of classes a student takes, but rather
by the total enrollment of students in the District. Moreover,
the average number of courses taken per student for the 1982-83
actually increased slightly following the first La Verne summer
school and increased again following the second La Verne summer
school. This increase was attributed to the fact that the
District raised the minimum number of courses it required its
students to take.
The record shows that on March 1, 1983, after being advised
of a projected deficit of 2.7 million dollars, the District's
Board of Trustees adopted a resolution to reduce certain
services for the following 1983-84 school year. Among those
services sought to be reduced was physical education. The
13
determination to reduce physical education services was made
because the District was carrying extra staff above what was
required by the staffing formula in the collective bargaining
agreement, and because physical education was the furthest from
the academic subjects. 6
Implementation of the layoff was pursuant to Education Code
section 44955, which provides that a District may not terminate
the services of a permanent employee while any employee with
less seniority is retained to render a service which the senior
employee is certificated and competent to render. This meant
that the most junior teachers were the ones identified for the
layoff. Unless they were teaching in an area that was
protected by the resolution, they would receive notice of
layoff regardless of what subject they taught. Senior teachers
were then reassigned to fill vacancies left by junior teachers
who were laid off. As a result of the reduction in physical
education services, and in accordance with the above process of
implementation, four of the District's teachers were laid off
in 1983.
Thus, the record in this case shows that the layoff was not
implemented due to a decline in student attendance, but because
of a reduction in certain services which were considered to be
6physical education was not included in La Verne's
program. It was, at one time, offered, but then dropped from
the curriculum due to insufficient enrollment.
14
overstaffed. These were services in which there were more
teachers than the number mandated by state law and/or formulas
established in the parties' collective bargaining agreement.
DISCUSSION
Transfer of Case
A threshold issue is presented in this case by the
District's exception to the transfer of the case for decision
from ALJ Link, who presided at the hearing, to ALJ Melgoza.
The District argues that the transfer was prejudicial inasmuch
as: (1) Melgoza was biased against the District's law firm
because, prior to his issuance of the decision, he was
personally named as a defendant in a lawsuit filed by the
District's law firm; 7 and (2) Melgoza made credibility
determinations without the benefit of actually hearing the
testimony or observing the demeanor of witnesses.
Concerning the District's first argument that the transfer
should not have taken place because Melgoza was biased against
the District's law firm, we note that PERB Regulation 32155 8
provides, in pertinent part:
(a) No Board member, and no Board agent
performing an adjudicatory function, shall
7The lawsuit was filed on April 3, 1985, and the proposed
decision was issued on April 30, 1985. There is no indication
from the record, however, that Melgoza was personally served,
or otherwise had actual notice of the lawsuit prior to the date
at which his proposed decision issued.
Beal. Admin. Code, title 8, section 32155.
15
decide or otherwise participate in any case
or proceeding:
. . . . . . . . . . . . . . . . . . . . . . .
(4) When it is made to appear probable
that, by reason of prejudice of such ...
Board agent, a fair and impartial
consideration of the case cannot be had
In the decision of Gonzales Union High School District
{1985) PERB Decision No. 480, the interpretation of PERB
Regulation 32155(a){4) was at issue, and this Board enunciated
the following standard as being grounds for the
disqualification of an ALJ on the basis of bias: evidence of a
"fixed anticipatory prejudgment" against a party by the judge.
{Gonzales, supra; see Evans v. Superior Court {1930)
107 Cal.App.2d 372; Adoption of Richardson {1967)
251 Cal.App.2d 222.)
We can find no persuasive authority in support of the
proposition that "bias" against a legal representative, rather
than a party, is sufficient grounds for the disqualification of
an ALJ. In short, we conclude that the mere existence of a
lawsuit in which Melgoza was named, without any proof that
Melgoza was personally served or had actual notice prior to his
issuance of the proposed decision, falls short of demonstrating
"prejudice" under PERB Regulation 32155(a)(4) or meeting the
Gonzales standard of a "fixed anticipatory prejudgment."
The District also argues that the case should not have been
16
transferred because it involved important credibility
determinations made by Melgoza. Although this Board has held
that it may not rely on a substituted ALJ's credibility
determinations based upon the demeanor of witnesses and which
involve conflicting testimony of witnesses (Gonzales Union High
School District (1984) PERB Decision No. 410, p. 15; Regents of
the University of California (1983) PERB Decision No. 366-H),
in the instant case, the ALJ made no such "credibility"
determinations in the classic sense. Instead we believe that
the ALJ simply weighed conflicting evidence without reference
to credibility or demeanor as such.
While we do not find that this record provides sufficient
basis upon which to conclude that there was prejudicial error
in the transfer of the case to ALJ Melgoza, we do agree with
the District's assertion that it should have been provided
notice and an opportunity to state its objections prior to the
transfer of the case pursuant to PERB Regulation 32168(b). 9
The parties should be provided notice of an impending
substitution at a meaningful time -- e.g., before it has taken
place. This procedure would permit parties to file their
9Regulation 32168(b) provides, in pertinent part:
A Board agent may be substituted for another
Board agent at anytime during the proceeding
at the discretion of the Chief
Administrative Law Judge in unfair practice
cases . . • .
17
objections and allow the Board and its agents to consider the
transfer of a case to a particular ALJ and/or permit the ALJ
sufficient opportunity to withdraw.
The ALJ's Proposed Decision
The ALJ found the District to have violated EERA by its
failure to bargain actual and potential effects of the lease
with La Verne. In reaching this conclusion, the ALJ rejected
the District's two primary arguments raised in its exceptions
and accompanying briefs. They are: (1) the District's duty to
negotiate the effects of the lease never arose because FEA
waived any right it had to bargain such effects; and,
alternatively, (2) the lease agreement with La Verne resulted
in the operation of a summer school that was completely
separate from that operated by the District and, thus, there
was no impact upon terms and conditions of employment of unit
members. Because we reject the ALJ's conclusion that the
District had an obligation under EERA to negotiate the actual
and potential effects of the lease, we find it unnecessary to
reach the issue of waiver.
Effects of Lease Agreement
The fundamental issue in this case is whether the District
violated EERA section 3543.S(c) and, deriviatively, section
3543.S(a) and (b) by failing to negotiate the actual and
"potential" effects of the lease agreement with La Verne. In
finding a violation of EERA, the ALJ initially observed that
18
the lease agreement resembled either a subcontract or transfer
o f . . b arga1n1ng uni't wor k . 10 In the case of either, observed
the ALJ, both the decision and the effects must be bargained.
The ALJ rejected the District's argument that, without the
La Verne lease, there would have been no additional work to
transfer or subcontract and, therefore, no effects about which
to bargain. By then relying on language in PERB's layoff
cases, including Mt. Diablo Unified School District, supra,
PERB Decision No. 373, the ALJ concluded that the District
violated EERA by failing to negotiate the "reasonably
foreseeable" effects of the lease.
We disagree with the ALJ's characterization of the lease
agreement as being "tantamount to subcontracting." Our
precedent does not articulate a clear definition of what
constitutes subcontracting. However, under the private
sector's definition set forth in Justice Stewart's concurring
opinion in Fibreboard Paper Products Corporation v. NLRB (1964)
379 U.S. 203, an employer's subcontracting consists of the:
... substitution of one group of workers
for another to perform the same task in the
same [location] under the ultimate control
of the same employer.
(..IJ;L.. at p. 224, emphasis added.)
lOAlthough in his findings of fact, the ALJ stated that
the lease agreement was the "accomplishment of a subcontracting
or a transfer of work," he ultimately concluded that the lease
more closely resembled a subcontract than it did a transfer.
While our discussion herein emphasizes that the lease agreement
did not result in the contracting out of unit work, we also
conclude that no transfer of unit work occurred.
19
This record does nQ.t. show that teachers, while employed at
La Verne, were under the ultimate control of the District, or
that the District exercised any control whatsoever over
La Verne teachers. The lease agreement provides that all
employees hired by La Verne are to be selected by La Verne, be
its employees exclusively, and be subject solely to its
direction, control, compensation and discharge. Pursuant to
the lease, La Verne was also to be responsible for payment of
workers' compensation insurance, unemployment insurance, social
security contributions and income tax withholdings. There is
no evidence in the record indicating that the District
interfered with La Verne's exclusive performance of these
functions. Nor does there exist any evidence suggesting that
La Verne was the "alter ego" of the District or otherwise
functioned in less than an exclusive capacity regarding the
summer school program. The evidence is thus consistent with a
provision of the lease agreement in which La Verne is declared
as being "solely responsible for determining and administering
the educational program." (Emphasis added.)
In California Teachers Assn. v. Board of Education of the
Glendale Unified School District (1980) 109 Cal.App.3d 738, a
case containing underlying facts and issues strikingly similar
to those of the instant case, the Glendale Unified School
District also entered into a written agreement with the
University of La Verne. The agreement contained terms nearly
identical to those contained in the lease entered into by the
20
parties
in
this
case.
For example,
the
agreement
entered
into
between
La
Verne
and
the
Glendale
Unified
School
District
provided
that
the
former
was
to
pay
the
district
a
use
charge
and
conduct
classes
on
the
school premises,
which were
to
be
under
La
Verne's exclusive
jurisdiction
and
control.
Also
similar
to
the record
in the
instant
case, before
1978,
the
practice
of
the
Glendale
District
had
been
to
offer
a
broad range
of
classes.
However, due
to
a
reduction
in
state
funding,
the
district,
in
1978,
ceased
to
offer
a
broad
summer
program
and
offered instead
only
a
limited
range
of courses
that
were mandated
and
funded
by
the
state.
In Glendale,
the court
rejected
the
California
Teachers
Association's
(CTA)
argument
that
the
La
Verne
summer
school
breached
the
collective
bargaining
agreement between
CTA
and
the
Glendale
District
as evidenced
by a
disparity
in
wages
received
by
district
and La Verne
teachers. Significantly, in
!lQ.t
finding
a
violation
of the
collective
bargaining
agreement,
the court stated:
[CTA's]
position
would be
well taken
if
the
La Verne
operation of
its
own summer
school
were a
part
of the
district's
summer
school
on a
subcontract basis.
As
already
indicated, the
flaw
in
[CTA'sl
pQsition
isthat in fact the
summer programs
of the
district
and
the
summer programs
Qf La Verne
were
completely separate
and
distinct
from
each
other.
It
follows
that the grant ofuse agreement had no impact on
the teachers'
rights
under the collective
bargainingagreement.
No
teachers
have been
laid off,
no
salaries
have been reduced, nor have any
rights
been
lost to the teachers as a
resultof the grant of use agreement.
(Glendale. supra, p. 750, emphasis added.)
21
In reaching our conclusion that no subcontracting or
transfer of unit work occurred, we also find particularly
significant the fact that, on this record (and in Glendale),
the budgetary cuts associated with Proposition 13 caused the
District to cease operating a comprehensive summer school as of
1978. In this regard, this Board's decision in Stanislaus
County Department of Education (1985) PERB Decision No. 556 is
instructive. In Stanislaus. the Board affirmed the ALJ's
proposed decision, finding that the County Department of
Education did not violate EERA by failing to negotiate its
decision to cease operating centers for migrant children, and
by selecting an outside nonprofit corporation to perform the
function. The Board identified, as a principle issue, the
"appropriate characterization" of the county"s decision to
cease direct operation of the centers. Significantly, the
Board noted that the migrant education program is not one
mandated by the state. It stated:
Unlike a school district that abandons its
in-house transportation program and hires a
private bus company to carry the students to
and from its schools, here, the migrant
child centers are not part of a county
program which survives as such after the
county decided it no longer wished to be
in the business of directly providing
educational services.
(1.d..t.. at p. 4.)
Similar to the situation in Stanislaus. here, the
District's former comprehensive summer school was apparently
not mandated by the state. Indeed, upon the passage of
22
Proposition
13,
the
state
stopped
funding
the
comprehensive
summer
school.
When
its
source of
funding
was
extinguished,
the
District
entirely
ceased
operating the
comprehensive
summer
program.
We
find persuasive the
simple
logic
of
the
District's
argument
that
the
lease
was
not,
in
reality,
a
subcontracting
of
unit
work
inasmuch
as
the
record
clearly
shows
that
without
the
lease, there
would
have been
.ll.Q.
comprehensive
summer
school.
Had
there, instead,
been
evidence
that
the
District
would have
provided
its
own
comprehensive
summer
school
if
the
lease
agreement
option
was
not
available,
a
different
analysis
of
this
issue
might
well
be
warranted.
However,
there
was no
evidence
in the
record
indicating
that
the
District
was
active
in
providing
summer
instruction
other
than
its
three
state-mandated courses.
Thus,
absent
any
specific
evidence
that
the
La
Verne
summer
school
program
replaced
unit
work
which
had
been performed
by
the
District,
there
cannot
exist
a
subcontracting of
unit
work.
In the
final analysis, the
ALJ's
characterization
of
the
lease
as
some form
of subcontracting of
unit
work
is
not
dispositive
of the issues herein.
This
is
so
because,
irrespective
of
its
categorization
as
a
lease, or the
subcontracting of
unit
work
(or
something
else),
questions
concerning the negotiability
of the decision
have been
eliminated
by
the
arbitrator's
decision, as well as
PERB's
repugnancy determination thereof,
from which no
appeal
was
23
taken.
What
remains
is
the issue
of
whether
there
exists
an
obligation
to negotiate the
effects
of
the lease
and,
if
so,
the
extent
of
such
an
obligation.
In deciding
this
issue,
the
ALJ
relied
on
the
PERB
layoff
cases of
Mt.
Diablo
Unified
School
District
(1983)
PERB
Decision
No. 373 and Newark
Unified
School
District
(1982)
PERB
Decision
No. 225
for
their
alleged proposition
that
management
has
the duty to bargain
both
actual
and
•speculative"
effects
of
nonnegotiable
decisions.
We
agree with the
ALJ's
analysis
to the
limited extent
that
he found
that, irrespective
of
how
the
lease
agreement
is
characterized,
the in-scope
effects,
if
any,
of
such
a
nonnegotiable
decision are subject to
negotiations.
However, we
disagree
with the
manner
in
which
the
ALJ
applied the standard
articulated in
Mt.
Diablo
Unified
School
District,
supra,
to the
facts
of
this
case.
In
the decision of
Mt.
Diablo Unified
School
District,
supra,
this
Board
concluded
that, in
order to find
a
violation
of
EERA
section
3543.S(c)
within the context of
a
layoff,
it
is
not
necessary to
prove
the occurrence of
an
actual
change
in
employees' working
conditions
as
a
precondition to finding
a
duty
on
the part
of
management
to negotiate the
impact
of the
layoff. Instead,
...
the Association
need only produce
sufficient
evidence to establish that the
decision to lay off
would have a
reasonably
foreseeable adverse impact on employees'
working conditions
and
that
its
proposal
is
24
intended
to
address
employee
concerns
generated
by
that
anticipated
impact.
(Mt.
Diablo,
supra,
p.
51.
Emphasis
added.)
Although
the
Mt,
Diablo
standard
was
articulated
within the
context
of
a
layoff,
we
conclude
that
it
may
appropriately
be
extrapolated to the
nonlayoff
context
of
the
instant
case.
Nonetheless,
we
believe
that
the
record
now
before the
Board
underscores
the
manner
in
which
the
language
of the
Mt,
Diablo
test
invites
confusion
and
varying
interpretations.
Thus,
we
now
take the opportunity to
clarify
the
Mt.
Diablo
standard.
The
ALJ
found
the
District
to
have
violated
EERA
by
its
failure
to
bargain
both
actual
and
speculative
effects
of
the
lease
with
La
Verne.
We
disagree
with
the
ALJ's expansive
application
of
the
Mt.
Diablo
standard
so as
to
embrace
even
those
effects
which
are purely speculative.
On
the contrary,
in
determining the
lawfulness of
management's
failure
to
negotiate
impact
in
advance,
the
Mt.
Diablo
standard,
in
our
view,
attaches
a
bargaining
obligation
orily
to
those
immediate
or prospective
effects
which
are reasonably
certain
to occur
and
causally related to the nonnegotiable decision
at issue.
Accordingly,
we
reject
the
ALJ's conclusion
that
FEA
had a
"right" to negotiate safeguards for unit
members
in case of
a
future layoff.
In his
proposed
decision, apart
from
his identification
of
purely conjectural effects, the
ALJ
identified effects
which he
described as
"actual."
Such impact was
allegedly demonstrated
25
in that La Verne teachers received salaries substantially lower
than they would have received under the contract between the
District and FEA. Other alleged "actual effects" noted by the
ALJ were that La Verne teachers did not receive the protection
of contractual class size restrictions and hiring provisions.
We disagree that the facts relied on by the ALJ
demonstrated actual impact. His analysis was dependent upon
the mistaken conclusion that unit work was contracted out or
transferred. Additionally, even though La Verne teachers were
employed by the District during the school year, they were not
District employees while they worked as teachers for La Verne.
Indeed, the ALJ noted:
Although the teachers hired by La Verne were
employed by the District during the regular
school year, they do not fit within the EERA
definition of a "public school employee"
during the time they worked for La Verne
inasmuch as they received compensation from,
were considered for employment and selected
by, and were supervised by La Verne
University. According to the agreement
between the District and La Verne, the
summer school teachers were to be solely
La Verne's employees, subject to its
direction and control.
Inasmuch as the teachers, while they worked at La Verne,
were not District employees, the District is not obligated
under the contract to pay contract wages to the employees of a
third party. Nor is La Verne the alter ego of the District or
otherwise bound by the contract between FEA and the District.
As was declared by the arbitrator, it is "axiomatic" that the
contract cannot bind third parties.
26
Concerning
the
1983
layoff1
had
it
been
causally
related
to
the
La
Verne
(1982)
lease,
it
would
appropriately
have
been
described
as
an
actual
effect
of
the lease
agreement.
However,
we
agree with
the
ALJ
that
the
record
clearly
demonstrates
that
the
1983
layoff
was
in
no way
causally related
to
La
Verne's
operation
of
a summer
school
in
1982.
That being
the
case1
the
record
remains
completely
devoid
of
evidence of
impact on
conditions
of
employment
of
members
of
the bargaining
unit at
a
time
when
such
individuals
were employees
of the
District.
In
summation1
we
conclude
that
there
was no
obligation to
negotiate speculative
effects
of
the lease
and,
finding
no
actual effects,
we
reverse the
ALJ and
dismiss
the complaint.
ORDER
The
unfair practice
charge
in
Case No. SF-CE-779
is
hereby
DISMISSED.
Chairperson
Hesse
and Member
Craib joined
in this
decision.
27
1
STATE
OF
CALIFORNIA
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
FREMONT
EDUCATION
ASSOCIATION,
CTA/NEA,
Charging
Party,
v.
FREMONT
UNION HIGH
SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
_____________________
)
Unfair
Practice
Case
No.
SF-CE-779
PROPOSED
DECISION
(4/30/85)
Appearances:
Ramon Romero
(California
Teachers
Association)
for
Charging
Party,
and
Patricia
White
(Littler,
Mendelson,
Fastiff
&
Tichy),
attorney for
Respondent.
By
Manuel
M.
Melgoza,
Administrative
Law
Judge.
PROCEDURAL
HISTORY
In June
1982,
the
Fremont
Education
Association,
CTA/NEA,
(hereinafter
FEA
or
Union)
filed
an
Unfair
Practice
Charge
(SF-CE-667)
with the Public
Employment
Relations
Board (PERB),
alleging that
the
Fremont Union High School
District
(hereinafter District)
had
violated the Educational
Employment
Relations
Act
(EERA
or Act)
1 by
entering into
an agreement
with Laverne
University to
conduct
a summer
school
traditionally
taught
by
bargaining
unit
members. on
or about
November
8, 1982,
PERB
dismissed the Unfair Practice
Charge
because the grievance machinery of the parties• collective
lThe Educational
Employment
Relations
Act
is codified
beginning at section
3540,
et seq. of the
Government Code.
Unless otherwise stated, all statutory references are to the
Government Code. 1
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
bargaining
agreement
(containing
binding
arbitration),
had
not
been
exhausted.
Indeed,
the
FEA
had
filed
a
grievance
over
the
District's
action in
May
1982,
claiming
that
it
violated
the
Agreement
as well.
At
the
time
the
PERB
dismissed
the
Charge
for deferral
reasons,
the
grievance
had
been
heard
by
an
arbitrator,
but
no
decision
had been
rendered
by
her.
On
January
18,
1983,
the
arbitrator
issued
her
opinion
and award on
the grievance.
On
May
11,
1983,
the
FEA
filed
an
Unfair
Practice
Charge
(SF-CE-779)
with
PERB
alleging
that
the
arbitrator's
award was
repugnant
to
the
EERA,
and
claiming
that
the
District's
conduct
in
entering into
the
agreement
with
Laverne
University violated
that statute.
The
case
was
subsequently assigned
to
an
administrative
law judge
for the
purpose of
resolving
arbitration deferral
and
repugnancy
claims pursuant
to
PERB
Rule
32661
(Cal.
Admin. Code,
tit.
8,
pt.
III,
sec.
32661).
A
First
Amended Charge was
filed
by
FEA
on
about
August
12,
1983,
alleging, in addition
to
its
claims
that
the
arbitrator's
decision
was
repugnant,
that
one
of the
effects
of the
Laverne
University venture
was a
layoff of
certificated
personnel
occurring
on
about
May
10, 1983.
After the parties
submitted
their positions to the
administrative
law judge
regarding the
First
Amended Charge, he
issued
a proposed decision
on September 22, 1983.
He
ordered
that the Unfair Practice
Charge be
partially
dismissed to the
2
extent
that
the
FEA
alleged
an
unlawful
refusal
to
meet and
negotiate
over
the
District's
decision to enter into
a summer
school
lease
agreement
with
Laverne
University.
He
found,
however,
that
a
Complaint
should
issue
on
the
District's
failure to negotiate
over
the
effects
of
its
lease
agreement
decision.
Inasmuch
as
neither party
appealed
the
proposed
decision
on
repugnancy,
it
became a
final
decision
on
October 12,
1983,
(HO-U-198).
On
September 23, 1983,
a
Complaint
was
issued
by
the
PERB,
charging
that,
with the exception
of
the
allegations
dismissed
by
the
administrative
law
judge,
that
the
First
Amended
Charge
stated
a
prima
facie violation
of the
EERA.
After
an
informal
conference
failed
to
result
in
a
settlement
of
the
Charge,
a
formal
hearing
was
conducted
by
Administrative
Law
Judge
Allen
Link
on
April 3,
4,
5,
and
6,
1984, and
May
9,
1984.
Post-hearing
briefs
were
submitted
by
the
parties
in
June
and
July
1984.
The
Charging
Party, in July
1984,
moved
to
reopen
the
record.
Respondent opposed
said
motion.
Subsequently, the case
was
transferred to the undersigned
for proposed
decision.
(See
Cal.
Admin. Code,
tit.
8,
sec.
32168(b).)
FACTS
The FEA
represents
a
unit
of
certificated
employees of the
District
having been
voluntarily recognized by
the
latter
as
the exclusive representative.
The
unit
encompasses
all full
3
and
part-time
certificated
personnel. including
classroom
teachers
and
summer
school
teachers.
Prior
to
1978
the
District
operated
a
comprehensive
summer
school
lasting
an
average
of
about
30
days. Teachers
employed
during the
regular
school
year
were
able to obtain
employment
during the
summer
months
pursuant
to established contractual
criteria
and
procedures.
The summer
session
traditionally
offered
a
wide range
of
classes
that
were
often also
taught
during the
regular
school
year.
Both
parties
had
treated
teaching
of
summer
school
classes
as
work
of the bargaining
unit
represented
by
the
FEA.
Due
to budgetary cuts
occasioned
by
the passing of
Proposition
13
in 1978, the
District
decided
to
dease
operating
its
comprehensive
summer
school. Since
the
District
was
statutorily
precluded
from
charging
students
tuition
for
attending.
Fremont
could not run
its
own
self-supported
(fee-based)
summer
program,
either.
Thereafter,
from
the
summer
of 1978
to
and
including the
summer
of 1981, the
District
provided
summer
school only
for those students
who
were
seniors within ten credits
of graduating, special
education students
whose
individual education plan specified
the
need
for
an extended program and
(tutorial
sessions for)
students
who had
not mastered the
minimum
competencies required
by law.
This limited
form of summer
school
was
referred to
by
the
parties as the
11
state-mandated
11
summer school because state
4
statutes
required these
programs
be
provided. Bargaining
unit
members
were
eligible
for
summer employment
in
this
"state-mandated"
program
pursuant
to
the
same
contractual
provisions
that
governed
the
regular
summer
session,
including
provisions
governing
wages,
class
size,
hours,
selection
criteria,
etc.
Only
students
meeting
specific
criteria
could
attend
this
limited
form
of
summer
school.
Although
the
District
was
unable
to
fund more
than
this
limited
summer
school.
its
decision
not
to
provide
a
comprehensive
session
was
not intended
to
end summer
school
permanently.
2
Therefore.
between
1978 and
1982,
it
searched
for
alternative
ways
to
provide
summer
school
for the general
student population in the
District.
For example,
it
explored
the
possibility
of having
summer
school provided
by
the
Cupertino Parks
and
Recreation
Department,
the Saratoga/Los
Gatos School
District.
the
Campbell School
District,
and
its
own
Adult Education Department.
The
Contractual Issue
and
The
financial constraints resulting
from
Proposition
13
the
District's
desire to continue to provide students
with
a
comprehensive summer program sparked the negotiation of
a
2The
record indicates that, for the
summer
of 1984,
the
District
planned
to
expand somewhat beyond
its
state-mandated
program due
to the availability
of
some
additional state
funding.
5
contractual provision
appearing
for the
first
time
in the
parties' collective
bargaining
agreement
effective
September
1,
1978
to
August
31, 1979,
and
included
also in
the
subsequent
contract for
the period
of
September
1981
to
August 1984.
The
pertinent portion
of
the clause,
which
was
a
subsection
of
the
Recognition
Article,
reads as follows:
2.2.3.2
Summer
School
-
Fee
Basis
If
summer
instruction
is
exclusively
available
to students
on
a
fee
basis
from
Adult Education or
an
outside
agency,
all
provisions
of
this
agreement
pertaining to
summer
school
are
waived.
The
District
will
encourage
said
agency
to
give
preferential
consideration to
members
of
the
Unit
...
The
provision
was
included
in
the
interest
of
making
it
possible for
summer
school
to
be be
offered
through Adult
Education
or
an
outside
agency.
However,
the
language
"exclusively available,"
was
included for the
purpose of
preventing
a
situation
where
two
summer
programs were
operated
side-by-side
with
employees
teaching
essentially
the
same
courses,
working
the
same
hours,
and
teaching
basically
the
same
students, yet
being paid
at different rates.
Therefore,
the intent
of the
language
was
that,
if
summer
instruction
was
going
to
be
offered
by an
outside
agency
and
the
District,
the
apparent waiver of
contract
terms
would
not apply.
3
3
The
dispute concerning
this contract provision
and
the
District's interpretation will
be
discussed further
below.
6
The
Contract
with
Laverne
University
Sometime
in
February or
March
1982.
Richard Baker.
District
Curriculum Coordinator
and
the
administrator responsible for
searching for
alternative
means
to
run
a
monetarily
self-sufficient
summer
school.
engaged
in
communications
with
representatives
of
Laverne
University
(a
private
entity)
regarding the
possibility
of conducting
such
a
program
for the
. .
D
1str1ct.
4 La
Verne
University
(hereinafter
Laverne)
had
experience
in
conducting
summer
schools
for other
high school
districts
and
offered, in
exchange
for
a
student
paid
fee,
classes
traditionally
offered
by
the public schools.
After
an
initial
telephone conversation,
Richard
Baker
subsequently
met
with
a
representative
of
Laverne
and
gathered
data
for
the
purpose of
submitting proposals to Assistant
Superintendent
Hulburd on a
self-sufficient
summer
program.
Baker
described the
meeting as
one where
tuition,
teachers'
salaries.
and
lease
amounts. were
negotiated.
5
4There
is
a
dispute regarding
who
initiated
contact with
Laverne.
Baker
testified that
he
initiated
the contact.
District
Assistant Superintendent Kathleen
Hulburd
testified
that
Laverne
initiated
the
communication.
Resolution of
this
inconsistency in
testimony
is peripheral to the issues in
this
case
and does not
affect the undersigned's conclusions.
5Respondent put
on
testimony to
show
that
Baker had
not
been
given authority to negotiate teacher salaries
with Laverne
and
argues in
its brief that
such discussions regarding
salaries
did not take place.
Respondent did not
call
any
witnesses, including the Laverne
officials, to rebut the
testimony of Baker.
It
argues that Baker's testimony should be
discredited because, when
called as a
rebuttal witness,
he
7
Subsequent
to
this
meeting,
Baker
devised
three separate
proposals
regarding
a summer
school
package
(with
Laverne)
and
submitted
them
to
Hulburd.
After
this
meeting,
several
phone
calls
transpired
between Baker
and
Laverne
representatives in
attempts
to
"firm-up"
the
tuition
figures.
The
Consultation
Sessions with
FEA
District
administrators
and
FEA
representatives
historically
met
at
regular
meetings scheduled
at least
on a
monthly
basis.
These
meetings
were
not
negotiation
or
bargaining
sessions.
It
was
in consultation sessions
held
some
time
in
February or
March 1982
that
FEA
representatives
were
informed
that
the
District
was
considering entering into
an
agreement
with
Laverne
to
provide
summer
school. In response,
FEA
representatives stated their
opposition
to
such an
idea
and
stated that
it
would be a
violation
of
section 2.2.3.2
of
the
contract.
During
the
consultation sessions
and
"changed
his story"
on
direct
testimony.
A
reading of the
transcript indicates that
Baker
did not
specifically
recant his
earlier
testimony
that salaries
were
discussed, but only
that
he
did
not give the
Laverne
representative
information
on what
teacher
salaries
were
in the
District.
Respondent did not
pursue
the area
on
cross-examination. In Martori Brothers
Distributors
v. Agricultural
Labor
Relations
Board (1981) 29
Cal.3d
721 [175
Cal.Rptr. 626], the
Supreme
Court held
that
an
administrative
board must
accept as
true the intended
meaning
of uncontradicted
and unimpeached
evidence.
Hence, because
Baker's testimony
is
not
contradictory
and was
unrebutted,
I
must
credit
it.
Nor does the fact that
Baker had some
"communication problems" with his superior detract
from
his
credibility,
and
there is
no
probative evidence from which
it
can be concluded that
he
fabricated his testimony.
8
subsequently
at
a
school
board
meeting
on
April
20, 1982,
FEA
made known
its
demand
that
the
District
could
not
proceed
with
the
agreement
without
first
negotiating
such
a
venture.
The
Union
articulated
some
of
the
potential effects
of
the decision
and
areas
where
they
desired
protection
for
unit
members. The
demand
to
bargain
is
more
fully
discussed
below.
William Mansfield
additionally told
District
representatives, prior
to
approval of
the venture,
that
the
proposed agreement
with
Laverne
covered
areas
which were
already
dealt
with
in
the
collective
bargaining
agreement,
including
wages,
hours
and
class size.
Despite
the
Union's
concerns, the
District
presented the
Laverne
lease
agreement
for school
board
approval
at
the April
20, 1982,
meeting.
The
proposal
that
was
presented to the
board
for
approval
was
termed
a
''lease-agreement" for the
use of space
and
District's facilities.
In
actuality,
the
two and
one-half
month
agreement involved
much more
than
a
lease of
facilities,
as
will
be
explained
below.
After the
FEA
stated
its
position to the school board
on
April 20. the
latter
still
voted
to
approve
the lease
agreement, arguing
that
it
had a
right to enter into
such
agreements pursuant to the case of
CTA
v.
Board
of Education of
the Glendale
USD
{1980) 109 Cal.App.3d 738. However,
the board
chose
not to execute the agreement, but decided to forward
it
to
its legal counsel for screening prior to signing.
9
On April 26, 1982, the FEA president sent the
superintendent another letter "repeating [its] concerns
regarding private summer school" and "reiterating" its "desire
to negotiate." The District executed the lease agreement on
June 1, 1982, and implemented its terms.
The FEA thereafter filed a grievance on May 13, 1982.
alleging that the District's action regarding summer school
violated, inter alia, contract article 2.2.3.2, and requested
the agreement be withdrawn and that any such program must be in
conformity with the terms of the current collective bargaining
agreement.
Nevertheless, during May, flyers were distributed within
the District announcing the new summer school, soliciting
teacher applications, giving figures on terms of employment
(such as salaries), and indicating that Laverne had been
11"encouraged to give unit employees preference in hiring. 6
The summer school proceeded as scheduled, with classes
commencing on June 21, and ending on July 30, 1982. In
exchange for use of the facilities. the lease agreement
required Laverne to use them only for the purpose of conducting
summer school classes of the sort that had been offered at the
District prior to 1978. It was required to provide the
District with a complete accounting of the enrollment of
6taVerne actually agreed to give such preference.
10
persons
attending
classes.
Although
the
agreement
specificed
that
Laverne
was
solely
responsible for
determining
and
administering
the educational
program,
and
hiring, directing,
and
compensating
its
employees,
there
were
"understandings"
that
expand
the
scope
of the
agreement
and
shed
light
on
the
intent of the venture.
For example,
the
agreement
was
intended
to benefit
the
students
of the
District.
Indeed, over
90
percent
of
the
students
ultimately enrolled in the
1982 summer
session
came
from
within
the
District.
Additionally, the
District
was
able
to
negotiate
with
Laverne an
agreement
to
give
hiring
preference to
District
teachers.
In
fact,
all
of
the teachers
ultimately
hired
by
Laverne were
bargaining
unit
members. The
District
and
the University
arranged
for the
summer
school
courses
to
count toward
graduation
credit.
The
hours of
operation
of the
summer
school
were
identical
to the
hours of
the
District-operated
summer
school.
The
District's
state-mandated
summer
school
and
the
Laverne
summer
school operated,
essentially, side-by-side at
the
District's
Cupertino
High
School.
District staff,
in addition
to teachers,
were
hired
by
Laverne. James Ehrenburg,
assistant
principal at
one
of the
District
high schools,
was
hired
by
Laverne
as the
summer
school
site
administrator.
Approximately
10
District teachers
and 4
District administrators
and
staff
persons were hired
by Laverne to conduct the summer
school.
11
The subjects of driver education. English, science. math.
and social studies were taught, areas traditionally offered in
the District during the regular year and during summer school.
Approximately 268 students were enrolled in the 1982 summer
school. Approximately 15 of those students were from outside
the District.
The textbooks used by Laverne were those normally used in
the District and rented from the latter. Other District
equipment was also used in the Laverne program.
Although unit members were given hiring preference. the
seniority provisions and the "rotation" clauses in the contract
between the District and FEA and specified selection criteria
were not applied during Laverne's hiring process. Similarly,
although the contract specified that summer school teachers
were to be paid at 2/3 their normal per diem rate. Laverne paid
a flat rate of about $1015 for teaching two periods, and about
$2030 for four periods. This resulted in a substantial
difference in the rate of pay between what the teachers in the
Laverne program were paid and what the unit teachers in the
District-run summer school were paid. As an example, unit
member Fred Keep taught social studies for four hours per day
in the District summer school, worked 29 days and was paid
approximately $3600-$3700, calculated by the contractual 2/3
per diem rate. Unit member Lincoln Scarper. hired by Laverne
to teach social studies for four hours per day, for 29 days.
12
summerwas
paid
$2050.
If
he had
been
hired
by
the
District's
school
program,
he would
have
earned approximately
$3800
based
upon
the
2/3 per
diem method
of
calculation.
size
In
addition
to the difference in salary,
the
class
restrictions
in
the
District's
collective
bargaining
agreement
were
not applied to the
Laverne program.
7
In
1983
the
District
entered
into
another
agreement
Laverne and
conducted,
once
again,
a summer
school,
side-by-side
with the
District's
"state-mandated"
summer
school
at
Cupertino
High
School. Ehrenburg
again acted
as
the
coordinator
of
the
Laverne program.
Fourteen
teachers,
all
unit
members,
were
hired,
and
taught
some 19
sections in
traditional District
subjects
(13
sections
were
taught the
summer).
District
materials
-
textbooks,
consumable
previous
supplies.
film
projectors, other
machines,
typewriters,
and
duplicating
equipment
--
were used
in substantially similar
fashion
by
the
Laverne program
as
in the
1982 summer. The
hiring process for teachers
was
similar to the
one
used
in
1982.
with
upon The wages
paid to the teachers again
were based
a
flat
($1093.50
for teaching
one
five unit class
- two and
fee
one-half
hours per
day - and $2187
for teaching four
and
one-half hours per day).
It
was acknowledged
that this
7A
unit
member's
fringe benefits,
which were acquired
by
virtue of
a 10-month assignment,
traditionally
covered teachers
for the entire
12 months. Therefore, although Laverne did not
offer fringe benefits,
no
unit
member
lost these benefits as a
result of the Laverne/District arrangement.13
was
substantially
less
than
what
was
paid the
teachers
who
worked
in the
district-operated
summer
school
in
1983.
There
was one
other
event
that
impacted
the
wages
paid
by
Laverne
in
1983. During
the regular
1982/83
school
year. the
District
had
increased
its
unit
members' wages by
approximately
8
percent.
Jim
Ehrenburg
determined
that
there
was a
need
to
achieve
equity to
prevent
further
disparity
in
wages
between
District-hired
summer
school
teachers
and
Laverne-hired
teachers
from
the
District.
Therefore,
he
asked Laverne
to
grant
teachers hired for the
summer
of
1983
an
8
percent
raise.
Therefore, the
wages
for Laverne's
1983
program
differed
from
those paid during the previous
summer. 8
It
would be a
mistake
to
view
the
District's
actions
during
the spring
and
summer
of
1982
merely as
an
exercise
of
management's
right
to lease
space
and
facilities.
For
what
the
District
accomplished
by
its
lease
agreement went beyond
this
simple
step. Part
and
parcel
of the
District's
execution of
a
lease
agreement with
Laverne
was
the
accomplishment of
a
8There was some
evidence presented during the hearing
that
the
District
was
thinking of continuing to
have Laverne
offer
a summer program
at
the
District in 1984.
There
was
alsoevidence
that
the
District
intended to
expand
its
own summer
program beyond
the state-mandated areas
depending on what funds
were made
available
from
the
state.
However,
the District
had
not, at that-time,
made a
final decision
on
those matters. In
July
1984
Charging Party filed
a motion
to
reopen the record to
present evidence
on
the
1984 program. That motion
isdiscussed, infra.
14
subcontracting
or
a
transfer
of
work (summer
school
teaching)
out of
the
bargaining
unit.
Without such
a
transfer,
the
lease
agreement
would
have
had no meaning
or purpose.
The
venture
between
Laverne
and
the
District
served
to
reestablish
a
comprehensive
summer
school
for the
benefit
of
District
pupils,
but
changed
the
funding
mechanism
as well as
its
a d
nnn1strat1on.
. . • 9 Yet
the
summer
school
teaching
jobs
continued
to
legally
belong
to the
FEA
unit
within
the
District.
The
Arbitration
Award
Complicating
this
matter
further
was
the
filing
of
a
grievance
by
the
Union
in
May
1982.
The
grievance
proceeded
to
arbitration,
and
the
arbitrator's
opinion
was
issued
on
January 18,
1983.
The
arbitrator
only decided
the
issue
of whether
the
District
violated
its
contract
by
entering into
an agreement
with Laverne
to lease
school
district
resources.
She
specifically
avoided
any
issues in the area of
sub-contracting
as not being
part
of the case.
She
did not deal with the
parties'
EERA
obligations,
such as whether
the
District
had a
duty
to negotiate.
9Although the venture
was
intended
originally to
be
self-sufficient
and
the
District
did not attempt to
make a
profit,
a
profit
was
achieved by the
District.
The
size
of the
profit is
not in evidence.
15
The arbitrator analyzed the parties' evidence regarding the
meaning of contract section 2.2.3.2. She found that the
provisions purported only to specify what would happen in
certain circumstances if summer school is provided solely by an
outside agency. not to prohibit it entirely. She found that
the section was inapplicable to the case because it was only
triggered if the summer school was operated entirely
(exclusively) by another agency. 1° Finding the section
inapplicable. and silent as to what would happen in the event
summer school was offered by the District and also by an
outside agency, she found no contract violation.
The FEA subsequently filed an unfair practice charge
alleging that the arbitrator's award was repugnant to the
purposes of the EERA because. inter alia. it failed to consider
the statutory issues raised in the charge. PERB Administrative
Law Judge Barry Winograd issued a proposed decision and a
partial determination of repugnancy on September 22. 1983.
Although the parties have interpreted his decision in different
ways, neither party filed an appeal. and the proposed decision
became final on October 12, 1983 (HO-U-198) .
l0she initially found that the 1982 summer instruction
was not exclusively available on a fee basis from an outside
agency. She also rejected the District's reliance on the
Article to excuse its actions.
16
In
that
decision.
the
administrative
law
judge
found
that
the
statutory
bargaining
claims
were
not
decided
and
concluded:
That
deferral
to
the
arbitration
award
is
appropriate in
connection with the
Association's
claim
that
it
had a
right
tobargain
over
the
District's
decision to
enter into
the lease
agreement
with
Laverne.
However.
deferral
is
not warranted
in
connection with the
Association's further
allegation:
namely.
that
in
terms of
the
effects
of
the decision.
the
District
violated
the
Act
because
it
unilaterallyaltered established contract
terms
and
because
it
failed
to
negotiate
over
the
non-contractual
consequences
of
the lease
arrangement
with
Laverne.
(Fremont Union
High School
District
(10/12/83)
HO-U-198
at
18: emphasis
added.)
Elaborating
on
his
conclusion
that
the
arbitrator's
award
with
respect
to the
District's
decision
was
not repugnant.
the
Administrative
Law
Judge
reasoned
that:
In keeping
with the
Los
Angeles
precedent.
even
if
the
Board were
to disagree with the
arbitrator's
assessment of the evidence
supporting the
District's
basic
right,
the
PERB
is
bound
to defer
where
the
facts
necessary to the
arbitrator's
holding
are
parallel
to those
that
would be
presented to
this
agency.
Since the
arbitrator's
conclusion aboutmanagement's
right to enter into
a
lease
agreement was
plainly
a
fundamental
step inher
overall analysis of the contract. the
Association should
be
barred fron arguing
at
this
date
that
it
did not present
all
of the
relevant evidence
and argument on
the basic
subcontracting issue.
With regard to the effects
of the
District's
decision. the
Administrative
Law Judge found
that the arbitrator
had,
inter
17
alia.
failed
to
fully
consider
facts
needed
to resolve the
statutory
bargaining
claim:
It is
apparent
that
the lease
agreement
decision
had
both
immediate
and
potential
effects
on
bargaining
unit
employees
and on
subjects
within the
scope
of
representation
under
the
Act.
{See
sec.
3543.2.)
For
example.
summer
school
instructors
for
La
Verne
were
typically
District
teachers
at
other
times
during the
year.
While working
for
La
Verne.
they taught
classes
comparable
to those
given
by
the
same
teachers
during
the regular
school
year
{and by
District
teachers
hired for the
District's
1982
state-mandated
summer
programs).
Yet
the
La
Verne
teachers
were
paid
a
substantially
lower
wage
and
were
not uniformly
selected
in
accord with the
terms
of
the
collective
agreement.
Under
similar
circumstances. the
Board has concluded
that
the
effects
of
unilaterally altering
working
conditions for
unit
employees.
and
the
transfer
of
that
work beyond
the reach of
the contract.
may
be
negotiable.
(See.
e.g .•
Mt. San
Antonio
Community
College
District
(8/18/83)
PERB
Decision
No.
334
at
pp.
8-9,
and
cases
cited
therein.)
Moreover,
the long-range
potential effects
of
the
Laverne agreement
in
terms of teacher
layoffs
or reductions
in
hours,
were never
subject
to bargaining with the
employer
....
Despite the
unknown
or
speculative
impact of the lease
agreement
on
future
employment
security at
the
time
the
decision
was
initially
made,
the
potential
effects
would
still
be
within
scope
for
prospective bargaining.
(Newark
Unified
School
District
(6/30/81)
PERB
Decision
No.
225
at
p.
5.)
Once
the
arbitrator
found
Article 2.2.3.2
inapplicable as
a
contract waiver because of
its
text
and
bargaining history,
if
she were
applying statutoiy collective bargaining
principles
she should have concluded
that
the
employer had not sustained
its
18
contractual
excuse
for the
resulting
differential
treatment.
The
balance of
the
contract
terms
still
remained
in
operation
unless
a
different
defense
was
advanced
by
the
employer.
is
The
issue
remaining
in
dispute in
this
case,
therefore.
the
District
failed
to negotiate
regarding the
effects
whether
of
its
decision to enter into
the
agreement
with
Laverne.
and
whether
this
failure
violated
the
EERA.
DISCUSSION
It
axiomatic
to
is
that
a
public
school employer's
failure
meet and
negotiate in
good
faith
with
an
exclusive
representative
about
a
matter within the
scope
of
representation
is
unlawful.
Additionally,
a
unilateral
change
in
terms
and
conditions
of
employment
within the
scope
of
representation
is,
absent
a
valid
defense,
a
per se
refusal to
negotiate.
Pajaro Valley Unified
School
District
(5/22/78)
PERB
Decision
No.
51: San Mateo County
Community
College
District
(6/8/79)
PERB
Decision
No.
94.
example,
An
employer's duty
to negotiate
is
violated.
for
when
it
unilaterally
changes an
established policy without
affording the exclusive representative
a
reasonable opportunity
to bargain.
Grant
Joint
Union High School
District
(2/26/82)
PERB
Decision
No.
196;
Pajaro Valley, supra.
Where a
contract
is silent
or
ambiguo~s
as to
a
policy,
its
meaning
may
be
by examining
past practice or bargaining history. ascertained
19
Rio
Hondo
Community
College
District
(5/22/78)
PERB
Decision
No.
279.
The
subject
of
subcontracting
unit
work
has
been
found
by
the
PERB
to
be
negotiable
and
within the
scope
of
representation.
Oakland
Unified
School
District
(12/16/83)
PERB
Decision
No.
367; Arcohe Union
School
District
(11/23/83)
PERB
Decision
No.
360.
Similarly,
transferring
work
from one
bargaining
unit
to other
employees
out of
that particular unit
is
negotiable.
Goleta
Union
School
District
(8/1/84)
PERB
Decision
No.
391.
Subcontracting
has an
inherent
impact
upon
terms
and
conditions
of
employment
and,
thus,
proof of
actual.
demonstrable
effects is
not required
in
order
to
establish
a
violation.
Oakland
Unified
School
District
(12/16/83)
PERB
Decision
No.
367;
and San Mateo County
CCD,
supra.
Under
the facts
of
this
case, the
District's
actions
more
closely
resemble
a
subcontracting
of
unit
work
than of
a
transfer.
In
either
case,
however.
a
mandatory
subject
of
b
arga1n1ng
is
1nvo
ve
. . . . . 1 d
11
In
a
transfer
of
work
out of the
llAlthough the teachers hired
by
Laverne were employed by
the
District
during the regular
school year, they
do
not
fit
within the
EERA
definition
of "public school
employee"
during
the
time
they
were working
for
Laverne inasmuch
as they
received compensation from, were
considered for
employment and
selected
by, and were
supervised
by Laverne
University.
According
to the
agreement between
the District
and
Laverne,
the
summer
school teachers
were
to
be
solely Laverne's
employees.
subject to
its
direction
and
control.
The
University
was
to bear
all liabilities
and expenses "imposed by
law or
contract incident to such employment," including
Worker's Compensation Insurance,
Unemployment
Insurance, Social
Security contributions
and
tax withholdings. Additionally, the·
20
init situation,
and
in
a
subcontracting
situation,
both
the
decision
and
the
effects
(impact) of
the decision are within
the
scope
of
representation. Rialto
Unified
School
District
{4/30/82)
PERB
Decision
No.
209; Arcohe
Union
School
District.
supra:
and
Oakland
Unified
School
District,
supra.
Unless
a
lawfully
accepted
excuse
is
established
(e.g.,
waiver,
exigent
circumstances),
an employer
may
not
subcontract
or
transfer
unit
work
out of
the
unit
without providing the exclusive
representative
notice
and
a
reasonable opportunity to bargain
over
the
subject.
These
principles
apply
to the
facts
of
this
case.
Preliminarily.
it
must be
pointed out
that,
both
by
past
practice
and
by
contractual
agreement,
summer
school
teaching
was work
recognized
by
both
parties
as belonging
exclusively to
the
bargaining
unit.
with
one
exception
that
has been found,
and I
concur.
inapplicable to
this situation.
12 The
summer
school
work was
not taken over
by
existing District
employees
out of
the
unit.
such
as
administration personnel, or
to
newly
created District-paid positions
out of the
unit.
Although
the
District
provided the
facilities
and some
supplies,
a
fee for
such
was
charged
to
Laverne
and
the
latter
was
contractually required to
be
solely responsible for
determining
and
administering the
summer
school program. See
Goleta Union School
District
(8/1/84)
PERB
Decision
No. 391;
and
Rialto
Unified School
District
(4/30/84)
PERB
Decision
No.
209.
12 The
arbitrator
decided
that the waiver in Recognition
Article 2.2.3.2 did not apply because
sum.mer
school
was
not
offered exclusively
by an agency
outside the school
district,
after
examining bargaining history.
The PERB
administrative
law judge did not find that portion of the arbitrator's
decision repugnant to the
EERA.
21
collective
bargaining
agreement
describes the
unit
as
"all full
and
part-time
certificated
personnel excluding
management.
confidential.
supervisory personnel,
and
other
positions
enumerated
in
Section
2.2.2.
11
It
also
contained
numerous
provisions
governing terms
and
conditions
of
employment
of
summer
school
employees
such as
employee
selection
criteria,
hours
and
work-year.
compensation. placement
of
employees.
seniority. rotation.
and
class
size.
The
evidence
presented
indicates
that.
prior
to
1982.
summer
school
was
performed
only
by
the
bargaining
unit
represented
by
the
FEA.
The
fact that
the
District.
because of lack of
sufficient
funds.
scaled
down
its
summer
school
after
the passage of
Proposition
13, did not
automatically
effectuate
a
removal
of
that
work
from
the
unit.
Goleta
Union High
School
District.
supra,
at
p.
19,
fn.
12.
No
unit
modification
was
accomplished,
and
it
was
never
the
District's
intent to
permanently
abolish the positions
and
cease the
summer
school
function.
The
"hiatus•• of
1978-1982
did not operate to
remove
work from
the unit. to
permanently
abolish bargaining
unit
positions. or to
excuse
the
district
from any
legal obligations
to bargain.
It
appears that the
District
provided
FEA
with notice of
its
intent to enter into
a summer
school agreement with
Laverne, although the date that the District
informed the
Union
of
a
firm decision is less clear.
The
testimony of
FEA
22
Nitnesses
Dick
Fulcher
and
William
Mansfield
indicates
that,
during
February
and March
1982,
the
District,
in consultation
sessions,
informed
the
Union
that
it
"might"
enter into
a
lease
agreement
with
Laverne,
that
it
was
looking
into
the
"possibility"
of having
Laverne
run
a summer
program,
and
that
it
was
"seriously
considering"
such
a
venture.
District
testified
witnesses,
including
Tom
Hodges
and
Kathleen
Hulburd,
that
they
informed
FEA
during
consultation
sessions
during
late
February
and
March
1982,
that
the
District
was
contemplating
entering into
the
agreement.
Between
late
March
and
early
April,
District
representatives
met
with
Laverne
and
later
deliberated in
a
District
administrator's
meeting whether
to
offer
Laverne
the
lease.
In any
event, via
memo
dated April
8,
1982
Hulburd
officially
informed
FEA
1 s
Dick
Fulcher of the following:
,
Kathleen
After
our
last
consultation
meeting,
I met
with
representatives
from
University
of
Laverne
regarding
their
leasing
our
facilities
to
provide
a
private
summer
school
program
for students in
this
area
. . . .
It
is
our
intention to
recommend
to the
board
that
it
approve
the lease
agreement
with the University of Laverne.
If
the lease
agreement
is
approved, Laverne
will hire
an
administrator
who
will
be
responsible for selecting teachers
contingent
upon
sufficient class enrollment.
Additional questions
you may have can be
discussed
at
our next consultation meeting.
23
And, although the Union had requested to negotiate during
and subsequent to the February and March consultation meetings
(see discussion below), the District board voted to approve the
agreement with Laverne on April 20 and executed it on June 1,
1982. all, admittedly, without actual negotiations.
The District's Duty and the Demand to Bargain
Respondent raises, as one of its main arguments. that its
duty to negotiate never arose because the Union made no
effective or timely demand to bargain. Essentially. it is
arguing that the FEA waived any right it had to bargain by
failing to make a proper demand. As will be indicated below, a
"clear and unmistakable waiver of a right to bargain" cannot be
supported by the record in this case.
The minutes of the school governing board indicate that,
prior to making the decision to enter into the lease agreement
with Laverne, Union representatives expressed concerns over the
bidding procedures for jobs, over the absence of language
regarding teacher salaries, over language stating that
employees would be hired solely by Laverne, that the agreement
was a potential unfair practice charge if subsequent classes in
September and October were reduced because of the impact of the
summer school, that the agreement subverted the unit, and that
the current collective bargaining agreement already contained
provisions in these areas. The FEA asked the District to
postpone implementation of the lease agreement.
24
Elaborating
on
what
occurred
at this
board
meeting, William
Mansfield,
President
of
the
Fremont
Education
Association,
testified
that
the
issues
of
wages,
hours,
class size,
and
teacher
selection
were
raised
by
the
Union
in
response
to the
District's
proposed
action.
Prior
to the
board
voting
on
the proposal,
Union
representatives
addressed the
members.
According
to
Bill
Empey's
testimony.
he
told
the
board
members
that
the
pending
proposal
was a
violation
of the
contract.
it
was
bargainable,
it
was a
potential unfair
labor
practice
and would
potentially
impact on
class size,
and
might
result
in
a
service layoff in
the
future.
FEA
witnesses, including
Dick
Fulcher,
testified
that prior
to the
date
the lease
agreement (June
l,
1982)
was
executed,
the
Union
repeatedly
expressed
that,
if
the
District insisted
on
going
ahead
with the
agreement,
it
would have
to
be
negotiated.
And,
although
documentary evidence such as the
board's
minutes of April
20, and FEA's
letter
of
a demand
to
negotiate
dated April
26, 1982,
supports
FEA's
position that
there
was a
general
demand
to bargain the District/Laverne
venture,
it
is
also apparent
that
FEA
did not use the
terms of
art
"we demand
to negotiate the effects
of the decision" or
"the impact of the decision" to
have summer
school taught
by
Laverne
University.
25
Respondent's
witnesses, including
Deputy
Superintendent
Thomas
Hodges, acknowledged
that
there
was a
request to
bargain. but
qualified
that
by
stating that
the
Union
expressed
a
desire to
negotiate
only
the
decision
and
not
the
effects
of
the decision.
to
have Laverne
operate the
summer
school
program.
In
response to the
Union's
requests
and
protests,
the
District
maintained
that
it
was
not
a
violation
of the
contract
to
proceed
with the
summer
school arrangement,
that
indeed,
the
contract permitted
such
a scheme. and
that
the
proposed
summer
school
was
in
accordance
with the
Education
Code and
with
a
Court
of
Appeal
case
in
CTA
v.
Board
of Education of
the
Glendale
USD
(1980) 109
Cal.App.3d 738. That
case
upheld
a
similar lease
agreement between Laverne
and
the Glendale
Unified School
District,
but did not address the
collective
bargaining
obligations
of the
parties
with respect to the issue.
While
the
Union's
demand was
not as
precise
as
it
could
have
been,
the record
reflects.
and I
find
that
FEA's
protests,
articulation
of the possible
impacts,
and
its
general requests
to negotiate
were
sufficient, in the
facts
of
this
case, to
put
the
District
on
notice that
it
must
bargain prior to
undertaking the venture. Therefore,
I
find that there
was a
timely
demand
to negotiate with respect to
all
aspects of the
lease agreement. I
discredit the testimony of
Hodges
to the
extent that
it
implies that
FEA's
representatives expressed a
26
enter desire
to
restrict
bargaining
only
to
the decision
to
into the lease
agreement
with
Laverne.
Such
precision in the
alleged
communication does
not
logically
square
with the events
h
occurring
at
t e
time.
. .
13
PERB
case
law
and
the cases
cited
by
Respondent
are
with
this
conclusion.
Indeed.
the
facts
herein
are consistent
far
more
supportive
of
a
finding
of
an adequate
demand
to
bargain than
even were found
by
this
Board
to
be
sufficient in
Goleta
Union School
District
(8/1/84)
PERB
Decision
No.
391.
In
finding
that
the
District
unlawfully
transferred
work
out
of
the
unit.
the
Board
in that
case considered the Respondent's
argument
that
the
Union had
merely
demanded
that
the
District
rescind
its
action
and
"restore
the
status
quo," but did not
make a
specific
request to negotiate
at
all.
The
Union
argued
that
it
did
not
feel that
a
demand
to negotiate
was
necessary.
given
that
they already
had
a
contractual right to the
work.
Although
the
Union
turned out
to
be wrong
that
it
had
a
contractual right to the
work.
the
PERB
found
a
clear
demand
to
1 3
The
fact that
the
FEA
had
expressed
its
desire to
negotiate with regard to
all
aspects (decision
and
effects) of
issue is further
supported
by
uncontroverted testimony
that
the
Bill
Empey and
Bill
Mansfield approached
James
Ehrenburg
in
late
May
or
early
June 1982,
in
an
attempt to obtain guarantees
regarding the
Laverne
hiring process.
and
also in
an
unsuccessful attempt to
have Ehrenburg apply
a
11
rotation hiring
process"
and
to apply
a
seniority
system of hiring.
Other
provisions in the
FEA
contract
were discussed as well.
Such
conduct
is consistent with
FEA 1 s
previous expressions of intent
to negotiate. Ehrenburg claimed these talks
were not
negotiations. 27
bargain
in the
Union's vigorous
objections
and demands
to
have
the action rescinded
and
restore
the
status
quo.
Here.
there
was an
expressed
demand
to bargain.
The
Board's decision in
Newman-Crow's
Landing
Unified
School
District
(6/30/82)
PERB
Decision
No. 223
does
not
lend
support to
Respondent's waiver
theory.
In
that
decision, the
majority opinion
held
that
the
Union
failed
to
demand
to
negotiate the effects
of
a
layoff.
The
factors
relied
upon
were
expressed as
follows:
While
it
is
clear that
Marvel
criticized
the
resolution
during
his presentation,
claiming
that
it
was
an
illegal
action,
the record
isless
than
clear
as
to
whether
Marvel
referred
to
EERA
violations,
as well as
those
under
the
Education
Code, and
whether
he
requested the
District
to negotiate
over
the decision to lay
off
and
its
impact
upon
bargaining
unit
employees
.....
Here,
the hearing
officer
found
that
CSEA
requested to negotiate layoffs.
However, he
acknowledged
that
the record
is
uncontroverted
and
that
CSEA
never providedany
indication that
it
desired to negotiate
the
effects
of
layoff.
All
available
evidence
indicates that
it
only requested to
negotiate the decision
itself,
an
issue
which
is
not
negotiable,
infra.
Even CSEA's
version of Morgan's
comments
supports the finding
that
CSEA
only intended
to negotiate the decision
itself
•...
By
claiming
that
the
District's
adoption of the
resolution
made any
further negotiations
futile,
CSEA
further indicated that
it
only
desired to negotiate the decision to lay
off.
The
District
did not intend toimplement the decision until
August 29,
1978, and a
request to negotiate effectscould consequently have been made
during the
intervening time
...•
In sum, CSEA
gave no
28
general
notice
of
its
interest
in the
effects
of
the layoff decision
and,
of
course,
submitted
no
related
proposals.
(Id.
pp.
9-10.)
its
In
the
above-cited case, the
Board
reiterated
long-standing
rule
that
it
is
not
essential that
a
request
to
negotiate
be
specific
or
made
in
a
particular
form.
Unlike the
layoff
which
was
involved
in
Newman-Crows
Landing,
this
case concerns
what
can
fairly
be
characterized as
subcontracting
of
unit
work. Whereas,
in
a
layoff,
the
PERB
has
held
that
the decision
is
not
negotiable,
both
the
decision
are within the
scope of
representation in
a
and
the
effects
subcontracting
case or
a
transfer
of
work
case. Necessarily,
a
bargain
in the area of
layoffs
would have
to
be
demand
to
tailored
to
express
a
desire
to negotiate
regarding the
effects.
The same
cannot apply
to
a
situation
where
both
decision
and
effects
are negotiable.
demand
Secondly,
even
if
one were
to
find
that
the
FEA's
be
expressed
in
a
manner
indicating
a
desire to negotiate
must
the
effects
of the decision, the
facts
support
a
finding
that
such
was done
here.
As
noted above,
in
connection with
its
requests to negotiate,
FEA
listed
several areas of concern,
including potential layoffs,
impact on
class size,
wages, and
a
desire to preserve contractual guarantees for unit
members
potentially affected
by
the venture with Laverne.
29
In
reaching the
above
conclusion.
I
am
not
unmindful
of
the
administrative
law
judge's
repugnancy
decision
with
respect to
the
FEA's
right
to
negotiate
the
decision to subcontract.
In
finding
that
the
arbitrator's
award was
not
repugnant
to the
EERA
with
respect to
a
failure
to
address the
statutory
question
of
whether
the
FEA
had
a
right
to negotiate
the
decision to contract
for
summer
school with
Laverne,
the
administriative
law judge
implicitly
found
a
waiver
based
apparently
upon
bargaining
history.
He
found
that
the
arbitrator
had
before her
the
facts
relevant to
determining
whether
the
District
had
the
authority to
make
the basic lease
agreement
decision
without
negotiating.
He
reasoned,
inter
alia,
that
the
arbitrator
concluded
that
side-by-side
working
arrangements
were
permissible
under
the
contract.
thereby
accepting the
possibility that internal District
and
outside
agency programs could
coexist.
PERB
has
repeatedly
held
that
a
waiver of
statutory
bargaining
rights
must be
clear
and
unmistakable.
Oakland
Unified School
District
(4/23/80)
PERB
Decision
No. 126:
Los
Angeles
Community
College
District
(10/18/82)
PERB
Decision
No. 252:
Goleta
Union School
District.
supra;
Gonzales
Union
High School
District (9/28/84)
PERB
Decision No.
410.
Although
I would
not find,
based upon
this
precedent
and upon
the record
before
me,
that
FEA
waived
its
right to negotiate the decision
to subcontract
work, the issue is
not before
me
since the
30
administrative
law
judge's determination
to the contrary
was
not
appealed
and became
final
and
binding
on
the
parties.
See
Cal.
Admin. Code,
tit.
8,
sec.
32300
and 32305.
Consistent
with
this
analysis.
however,
FEA
did not
waive
its
right
to bargain
over
the
actual
or
potential effects
of
the
District's
decision to
have
Laverne
operate the
summer
school. Therefore, notwithstanding the
implied waiver
found by
the
administrative
law
judge
in the
repugnancy
case,
for
purposes
of deciding
whether
there
is
a
duty
to
negotiate
only
the
effects
of
the venture,
I
find
that
the
FEA
has
met
its
burden
of
proof
in
that
regard.
In
a
second
case
cited
by
Respondent (Delano
Joint
Union
High
School
District
(5/5/83)
PERB
Decision
No.
307),
the
Board
considered
a
union's
argument
that
it
did not
waive
its
right
to bargain the
effects
of
a
layoff
because: (1)
it
delivered
a
letter
to
the
district
requesting
that certain
events take
place
prior
to acting
on
the
proposed
layoffs (including
terminating
some
administrative personnel):
(2)
that
it
requested to address the school board; (3)
that
it
requested
that negotiations
begin immediately
on March 17
(on
a
successor
contract);
and
(4)
that
it
filed
an
unfair practice
charge
on
April 11, 1980. The
union,
in that
case, argued
that this
was
sufficient notice of
its
desire to negotiate.
The Board recognized the principle that
whether
a
particular
communication
constitutes
a
proper request to
31
bargain
is
a
question
of
fact
to
be
determined
on
a
case-by-case
basis.
It
concluded
that
the
facts
of
that
case
amounted
to
a
mere
protest
by
the
union
and
that
there
was
never
a
demand
to negotiate
on
the
layoff.
only
on
a
successor
agreement (which
was
honored).
Thus.
it
found
that
the
letter
to
the
district
demanding
that certain
events take place
prior
to
the
layoffs
did not deal with
effects
of
the
layoff.
and
was
not
a
demand
to bargain.
Further, in
the
union's request to
address the school board,
no
mention
was
made
of
the intended
layoffs
and no one
representing the
union
spoke
at
the
school
board meeting
that
night.
Likewise, during
the
March
17
communication,
there
was no
indication
of
whether
the
union
was
requesting
to
negotiate
about
the successor
contract
proposal
or
about
the
effects
of
the contemplated
layoffs. Finally,
the
PERB
held
that
the
filing
of an
unfair
labor
practice
charge
alleging
a
refusal
to negotiate
is
not
a
request to bargain
and
does
not
trigger
such
a
duty
if
the
employer
had no
preexisting
obligation to bargain.
The
facts
in the present case are clearly distinguishable
from
those
in
Delano, as
already
mentioned above.
The
record
is
supported with testimony
and
evidence
indicating
a
desire to
negotiate
all
aspects of the subcontracting of
summer
school.
Although
the
FEA
did
protest,
Charging
Party's witnesses•
testimony indicated that
it
was much more
than simply
a
protest.
32
Finally,
the
Respondent
cites
Healdsburg
Union High
School
District
(1/5/84)
PERB
Decision
No. 375
in
support of
its
waiver argument. In
that situation
(p.
52)
the
Board was
considering
whether
a
timely
demand
to negotiate
had
been
made
with
respect to
the
effects
of
a
decision to abolish
classifications.
As
with
layoffs,
the
Board
reasoned
that
the
decision
to
abolish positions
is
a management
prerogative,
and
the
only
the
effects
are negotiable.
The Board found
that
union's
proposal
was
nonnegotiable because,
by
its
terms,
it
required
prior
agreement
before
a
decision to abolish
has been
made.
and
thus
interfered
with the
District's
decision to
abolish.
The Board found
that
a
fair
reading of
the proposal
indicated that
it
did not
contain
a
request to negotiate the
impact
of the decision to abolish
classifications.
The
facts in
Healdsburg
II
are inapplicable to
this
case.
As
the
PERB
clearly
found
in
the
prior
case, the union's
decision
proposal
was
clearly
intended to preclude
a
district's
prior to
reaching
agreement
with the union.
And,
the decision
itself
was
legally within
management's
prerogative.
No
request
to negotiate the
impact of the decision
could
be
reasonably
inferred
from
that
proposal, unlike the facts herein, as
outlined
above. Indeed, the principles outlined in
Newman-Crows Landing Unified School
District,
supra,
a
case the
33
Respondent
cites
in
support of
its
position,
supports the
undersigned's
conclusion
on
this
issue.
14
Impact
of
the
Laverne
Program
The
Respondent
next argues
that
the
District•s
actions
did
not
have
an
impact
upon
terms
and
conditions
of
employment
of
unit
members,
that,
if
the
Laverne agreement
had
not
been
implemented,
there
would have been
no
additional
work
for
teachers
apart
from
the
mandated
program,
that
no work was
therefore transferred
or
subcontracted,
and
that
no
layoffs
of
unit
members
occurred as
a
result.
Therefore,
it
concludes,
there
were
no
effects
about
which
to bargain,
and
the
only
possible
effect
of
the
Laverne agreement
was a
creation
of
opportunity
for
summer employment
for teachers
which
otherwise
would
not
have
existed
due
to the
District's earlier
(1978)
decision to cut
back
on summer
school.
To
accept the
District's
argument
wholesale
would be
tantamount
to
looking,
in hindsight, to
see whether
any impact
occurred before deciding whether
there
was
anything to
negotiate.
It
also
overlooks the Union's
right
to negotiate
certain
guarantees (job
security,
etc.)
to protect the unit in
~
of
a
future
impact. Nevertheless,
FEA
has
sufficiently
14 The
fact that
no
actual negotiations
took place prioror subsequent to the implementation of the
Laverne program
in
1982
is plain
from
the record
and
the parties
have not argued
otherwise.
The
consultation sessions occurring prior toJune 1, 1982, were undisputedly not negotiation sessions.
34
Jemonstrated
that
the
agreement
had
an impact
upon
the
bargaining
unit
and
that
it
was
denied
the opportunity to
negotiate
job
guarantees for
its
members.
In
Mt.
Diablo
Unified
School
District
(12/30/83)
PERB
Decision
No.
373,
the
Board,
in
considering
an
employer's duty
to
negotiate
the
effects
of
a
decision to
layoff, stated that
the union
need
not
prove
that
an
actual
unilateral
change
in
employee's
working
conditions
resulted
from
the layoff
as
a
precondition to finding
a
duty
on
the
part
of
the
employer
to
negotiate
the
impact
of
the
layoff.
On
the contrary,
the
Union
only
produce
sufficient
evidence
to
establish that
the
need
decision to layoff
would have
a
reasonably foreseeable adverse
impact on employees' working
conditions
and
that
its
proposal
is
intended to address
that anticipated
impact.
Likewise,
in
Newark
Unified
School
District
(6/30/82)
PERB
Decision
No.
225,
the
Board
upheld
an
administrative
law
judge
finding
that,
although the
impact of
a
proposed
layoff
was
speculative
at
the
time
the union
made a
request for
negotiations,
the
district
was
obligated to bargain over
those
district's
admittedly speculative effects.
In response to that
argument
that
the union did not prove
that
the layoff
had an
effect
on
matters within
scope
and hence did not
violate the
Act, the
Board
quoted, with approval, the following language
from
the administrative
law judge:
35
[I]t
would
not
be
consistent
with
PERB's
decisions in
this
area
to
leave the
judgment
of
whether
or not
a
subject
is
"substantially"
affected
(and
subject to
negotiations)
to the exclusive
and
unilateral
province
of an employer. Leaving
such
a
decision in
the employer's
hands
would
thwart
the
collective
negotiations
objectives
set
forth
in
EERA,
the
salutory
purposes
of
which
were
fully
discussed
in
San
Mateo
County
Community
College
District,
supra,
at
14-17.
The Board
reasoned
that
bargaining before the
actual
impact
occurs
can
potentially
be
of
the
greatest
value.
The
District's
argument
that
no
impact has been
shown
ignores
PERB
precedent.
In
the context
of
a
subcontracting
situation.
the
Board,
in
Oakland
Unified
School
District
(12/16/83)
PERB
Decision
No.
367,
rejected inconsistent
NLRB
precedent
requiring
demonstrable adverse
impact
on
the
bargaining
unit
for finding
that
a
decision to contract
out
is
within the
scope of
bargaining.
It
held
that
the
fact that
employees.
their
representative,
and
employer-employee
relations are
adversely affected
is
inherent in
a
finding
that
a
policy with regard to subcontracting
was
unilaterally
changed.
Inherent in subcontracting, therefore.
were
such
effects
as withdrawal of
actual
or
potential
work from
unit
employees. wages and
hours
associated with the contracted out
work, and
diminution of the unit resulting also in the
weakening
of the collective strength of employees
in the unit
36
and
their ability
to deal
effectively
for
the
unit.
15
In
addition,
an
employer's
unilateral
change
has
a
destabilizing
and
disorienting
impact
on
employer-employee
relations,
derogates
the exclusive
representative's
negotiating
power and
ability
to
perform
as
an
effective
representative
in the
eyes of
employees,
inherently
tips
the
delicate
balance
structured
by
the
Act.
and
may
unfairly
shift
community and
political
pressure to
employees
and
their
organizations
and
reduce
the
employer's
accountability
to the
public.
San Mateo
County
Community
College.
supra.
Thus,
adverse
impact
on
employees
in
the
unit
is
demonstrated
here.
Oakland.
supra,
Similarly, in Rialto
Unified
School
District
(4/30/82)
PERB
Decision
No.
209,
the
Board
noted
that,
in transferring
jobs
from a
bargaining
unit,
the
impact
was
inherent.
even though
no
demonstrable
change
occurred.
Commenting on
private sector
precedent, the
Board
stated:
In
UAW
v.
NLRB,
supra, the
United
States
Circuit
Court
found
this
obligation to
exist
even though
the affected
employees were
assigned other unit
work and
there
was no
demonstrable
change
in
their
wages
or
hours.
The
Court reasoned
that the
reduction of the
whole
number
of jobs
within
the
unit
itself
triggered the bargaining
obligation.
This holding
is
appropriate to
the
facts
here.
The
loss
of the counseling
jobs precludes negotiations
over wages,
hours,
and
negotiable
terms and
conditions
15
It
can
be
asserted that,
because of the
District•s
ability to obtain
a
convenient
summer program
that
turned out
not only to
be
self-sufficient, but, to
an unknown
degree,
profitable to the
District, that the collective ability
of the
unit
employees
to negotiate with the District
with regard to
summer
school conditions in the future
was weakened, as
was
their
hope ever to regain the positions.
37
of
employment
for
work
assigned
to the
representation unit
pursuant
to
CTA's
unit
petition
and
subsequent
recognition
by
the
District.
The
ultimate
impact
of
a
transfer
of
unit
work.
the
PERB
observed,
is
loss
of
work
to the
unit.
See
also
Goleta
USD,
supra,
PERB
Decision
No. 391
at
19.
In
the case
at
hand,
demonstrable
impact has
nevertheless
been
shown.
In
exchange
for
having
their
jobs
traded
from
the
unit,
outside
to
Laverne,
the
unit
members
received
terms
inferior
to
what
they
would have
received
under
their
contract.
They
received
a
substantially
lower
wage
for
performing
the
same work. They had no
class size
restrictions
to protect
their ability
to
do an
effective
job.
The
protections they
enjoyed
in the
contract to
ensure
fairness in
hiring (rotation
system of
selection
and
seniority)
and harmony
among
unit
members were
lost.
Yet, according
to the
contractual
terms they bargained
for in section 2.2.3.2,
they
were
to
waive
these protections
only
in
the event
that
an
outside
agency
exclusively ran the
summer
school
entirely
on a
fee basis.
Not
only did
unit
members
receive
terms
inferior to
what
they enjoyed
in the past for the
same work,
but they also
received terms
inferior to their
own
colleagues teaching next
door in the District-operated
summer
school.
The
adverse
impact on morale and
the collective strength of the unit
were
38
the very
things
the
Union had
sought
to
avoid
when
negotiating
the
above-noted
contract provision.
Aside
from
the
impact
that
did occur, the
District's
obligation
did not
end
there.
At
the
very
least,
the
FEA
had a
a
right to negotiate
safeguards for
unit
members
in
case of
future
layoff that
may
result
from
the
substantial
exchange
of
Whether,
summer
school functions
from
the
District
to
Laverne.
in hindsight,
such
a
layoff
ever occurred,
or
will
occur,
does
not
relieve
the
District
of
its
duty
to negotiate
potential
effects,
even though
they
may be
speculative
at
the time.
See
Newark USD,
supra.
16 Yet,
although
FEA
representatives
voiced
their
desire
to negotiate protections in
this
area,
as
in
the area
of
wages,
class size,
and
hiring,
they
were
well as
not
able
to
develop
specific
proposals
because
the
District
insisted that
it
had
the
right
to
go
forward
with
its
venture
and
proceeded with
it.
It is
not
clear
what
proposals
would have been exchanged
had
the bargaining process
been developed.
It is
conceivable
that, in
the areas
where
FEA
had
voiced concerns
it
could have
negotiated with the
District
for District-provided benefits to
compensate
the
unit for
inferior
terms
resulting
from
the
Laverne
venture.
16The
FEA
attempted to prove
that the
summer
school
venture
in
1982 caused a
layoff of unit
members
at the
end
of
the following regular school year.
FEA's
failure to prove
causation is discussed below.
39
Additionally.
as
the
administrative
law
judge
noted
in his
underlying
decision
on
repugnancy.
"there
were
ways
the
District
could
have
provided
for
maintaining
the
[contractually]
bargained-for standards
in
its
lease
agreement
with
Laverne."
The
fact that this
was
possible
is
evidenced
in
the fact,
as
observes
Charging
Party,
that
the
District
was
successful
in
persuading
Laverne
to
give
special hiring
preference
to District
teachers. Additionally,
District
administrators
were
likewise successful in negotiating
an
approximate
8
percent
wage
increase for
1983 summer
school
teachers
who
taught in
the
Laverne program.
While
the
concept immediately
above
may.
at
first
glance,
appear
to
be
the
type of proposal held
by
PERB
to
be
out of
scope because
it
"seeks
to regulate
a
District's
relationship
with
third parties"
(Davis
Joint
Unified
School
District
(8/2/84)
PERB
Decision
No.
393),
a
closer
look
reveals
that
it
falls
more
analogously within the area of successorship cases,
where
private sector
precedent
establishes that
a
union
may
require
an employer,
who
intends to
go
totally
or
partially
out
of business, to negotiate contractual guarantees for the
unit
which
are binding
on a
successor employer. See,
e.g.,
United
Mine Workers of America (1977) 231
NLRB
No.
88.
17 The
17The
Agricultural
Labor
Relations
Board and
the
California courts
have
also recognized
that
such successorship
proposals, which seek to extend contractual protection to unit
employees once a
successor purchases the enterprise, are
a
40
Davis,
distinguishing factor
is that,
unlike
the
situation
in
supra,
a
third
party
concern,
namely
Laverne,
did
"vitally
the
terms
and
conditions
of
employment
of
bargaining
affect
unit
employees." United
Mine
Workers,
supra
at
p.
575;
Harris
Truck
and
Trailer
Sales,
Inc.
(1976)
224
NLRB
100; and
see
NLRB
of
v.
Band-Age,
Inc.
(1976)
92
LRRM
2001
(lessor
of
a
portion
plant held to
be
successor):
NLRB
v.
Middleboro
Fire Apparatus,
Inc.
(1978)
100
lRRM
2182;
Nazareth
Reg. High
School
v.
NLRB
(1977)
94
LRRM
2897
(one
high school out of
a
nine school
unit
taken over
by a
local
community
group).
mechanism
In
sum,
although the
FEA
probably
had
no
legal
by
which
to
enforce
a
bargaining
obligation
upon
Laverne
as
a
employer
-
Laverne
is
a
private
institution
and
not
successor
within
PERB's
jurisdiction,
and may
not
be
within the
NLRB's
jurisdiction
-
the
Union
was
entitled
to negotiate future
guarantees for
its
members
with the
District.
contractual
The
1982-1983 Layoff
Notwithstanding
my
finding
that
the
District
had
a
duty
to
negotiate regarding
potential layoffs.
and
that in
failing
to
bargain, violated that
duty,
I
find
that
the
FEA
has
failed to
Dal
mandatory
subject of bargaining. See,
e.g.
William Porto
v.
Agricultural
Labor
Relations
Board
(1/14/85)
85
Daily
Journal D.A.R.
272 (C.A.
3),
_
Cal.App.3d
Successorship principles also apply to situations
where a
portion. of an
enterprise is
leased.
See
NLRB
v.
Band-Age,
infra.
and
NLRB
v. Middleboro
Fire Apparatus. Inc., infra.
41
carry
its
burden of proving
that
a
layoff
occurring
at
the
end
of the
1982-1983
regular
school
year
resulted
from
the
District's
venture
with
Laverne.
At
the hearing,
Charging
Party
attempted
to
prove
that at
least
four
of
its
unit
members
(Billie
Spence,
Richard
Milam,
Dale
Dalton,
and Ken
White) were
laid off
at
the
end
of
the
1982-83
school year
because
students
took
summer
courses
from
Laverne
and
thus did not
take those courses during
the
following
regular
school
session,
resulting
in
lower
enrollment
and,
thus.
the layoff.
As
Respondent
notes in
its
brief,
the
record
reflects
that
the layoff
was
not
implemented
because of
a
decline
in
attendance,
but
was
taken
because of
a
reduction
in certain services
which were
overstaffed
and which were
unrelated to
the
Laverne program
(e.g .• special
education,
etc.).
The
four
employees were
laid off
because
they
were
the
most
junior
employees
not otherwise protected
by
the layoff
resolution.
The
overstaffing
problem
was
the
result
of
a
long
and
gradual process pre-dating
by
years the
Laverne agreement.
Indeed,
the
average
number
of courses taken per
student
increased
in
1982-83
school
year,
due
in part to
stricter
graduation standards.
and
again increased for the
1983-84
year. Again. as Respondent
ably points out, the
1983
layoff
resolution did not reduce
services in business,
which was
taught
by
Billie
Spence,
driver education.
which was
taught
by
Rick Milam and Ken White, or English, which was
taught
by Dale
42
Dalton.
Laverne
did not
even
offer
business courses during
either
its
1982
or
1983
program.
In
any
event.
Charging
Party
failed to
carry
its
burden
of proving
this
actual
impact,
and
cannot
shift
the
burden
of proving
liability.
as
it
attempts
to
argue
in_
its
brief,
to the
Respondent.
Therefore.
although
I
find
a
violation
in
the
District's
failure to
negotiate
the
effects
of
transferring
or
contracting
part
of
its
summer
school
work
to
Laverne,
and
specifically.
its
failure
to negotiate
requested guarantees
to
prevent
future
layoffs.
I
find
that
the
FEA
failed
to
prove
the
actual
implementation of
the venture
caused
the
1983
layoff,
and
thus
will
recommend no
affirmative
relief
for
those
employees
in
my
remedy
below.
see
Newark
Unified
School
District,
supra.
at
7.
For
all
the foregoing reasons,
I
find
that
the
Fremont
Union
High School
District
violated
EERA
section
3543.S(c)
and
concurrently. sections
3543.S(a)
and
(b)
in
failing
to
negotiate
with
FEA
the actual
and
potential effects
of
its
decision to enter into
an agreement
with
Laverne
University to
perform
summer
school
unit
work
prior to
implementing
that
decision. Therefore.
I
will
recommend
the
Order proposed
further
below.
MOTION
TO
REOPEN
THE RECORD
On
or about July
16, 1984,
the Charging Party filed
a
motion
to
reopen the record in this
case claiming that
"new
evidence came
into existence after the close of the hearing on
43
May
9,
1984,"
which
concerns
the
District's
continuing
refusal
to
meet
and
negotiate
with the
FEA
regarding the
decision
and
the
impact
of the decision
on
entering into
an
agreement
with
Laverne
for the operation
of
a summer
school.
In
support of
its
motion, Charging
Party
submitted
a
declaration
and
documentary
evidence
indicating
that
FEA
had made a demand
to
bargain the
District's
proposed
decision
(and
its
effects)
to
enter into
another
agreement
with
Laverne
for
summer
school
during the
1984 summer. The
declaration indicates
that,
since
June
26,
1984,
the
District
had
not
responded
to the
Union's
demands and
that
the
District
had
again
allowed Laverne
to
operate
a summer
school
in
1984
similar to
those operated in
1982 and
1983. Charging
Party's
representative declares
further that
he
is
informed
that
the
District is
also
(summer
of
1984)
operating
the
first
fully
comprehensive
summer
school
program
it
has offered since
1977.
Essentially,
Charging
Party
seeks
to
show
that
the
District
has
continued to
do
in
1984 what
it
did
in
1982 and 1983.
However, I
have found
the
District's
conduct
to
constitute
a
violation
of
EERA
sections 3543.S{a), (b)
and
(c)
even
without
the proffered
evidence of
a
subsequent reoccurrence of the
event,
albeit
in
a
slightly different context.
The
evidence,
therefore, is
not
crucial to
my
finding of an
unfair practice
and
it
is
unnecessary to reopen the record. Rialto Unified
School
District
{4/30/82)
PERB
Decision
No. 209.
44
approaches.
Presumably,
as
the
end
of
the next school year
Charging
Party
will
move
to
reopen
again
to
offer
evidence of
what
occurred during the
summer
of
1985,
if
a
final,
non-appealable
decision
has
not
yet
been
rendered. In
such
an
event,
this
matter
may
never
come
to
a
conclusion.
position,
Should Charging
Party
wish
to
preserve
its
legal
to
bargain
it
may
refile
a
charge
based
upon
the
refusal
regarding the
1984 summer
program. Because
of
its
filing
of
a
timely motion
to
reopen,
and
Respondent
is
aware
of
the
allegations,
the
statutory
filing
period
(section
3541.5)
would
be
tolled until
resolution
of
the
motion
to
reopen.
See
underlying
rationale
in State
of
California
(Department
of
Water
Resources) (Matta)
(12/29/81)
PERB
Order
No.
Ad-122-S.
REMEDY
unit
A
unilateral
subcontracting
or
transfer
of bargaining
work
without negotiating
its
effects is
a
serious infringement
of employee
rights,
as
it,
inter alia,
denies the exclusive
representative the opportunity to present proposals to
offset
impact of the loss
of
contractual benefits
and
potential
the
loss of
work
for the
unit.
It is
generally appropriate
under
circumstances to order
a
return to the
status
quo,
order
such
the
District
to
meet and
negotiate,
upon
request,
over the
effects.
order
it
to cease
and
desist
from
taking further
45
unilateral actions,
and
to
make
employees
whole
for
any
resulting losses.
One
of
the effects resulting
from
the
District's
unilateral
action
and
its
failure
to negotiate
was
a
reduction
of
wages
and
a
denial
of
contract
terms
for
those bargaining
unit
members
who
worked
under
the
Laverne
summer
program.
Therefore,
it
is
my
recommendation
that
the
District
be
ordered
to
make
those
employees whole
by
granting
them
back pay
measured
by
the difference
between what
they
actually
earned
and what
they
would
have
earned
according to the
collective
bargaining
contract rate
plus
interest at
the
rate
of
10
percent per
annum.
In
addition, the
District shall
grant
any
other
benefits
those
employees
would have
earned, including
seniority
or pension
rights,
if
any,
if
the
contract
terms
had
been
applied
to
them.
I
do
recognize
that
the
PERB
disfavors
a
remedy which
may
be
based upon
speculation.
However,
here. there
was
a
collective
bargaining
agreement
in place
and
a
fixed
rate
which
was
unilaterally
changed.
Additionally. the record
indicates
that, historically,
every time bargaining
unit
members worked
in the
District's
summer
program,
they received
that rate in
1982 and
1983,
that is, all
but those
unit
members
working
in
the
Laverne program. Under
the Laverne program,
the District
essentially received the
same work from
the unit
members, and,
in exchange. the employees received less
pay.
46
to
It is
also appropriate
that
the
District,
in addition
being
ordered to
cease
and
desist
from
failing
to
bargain
and
to
make
the
employees
whole,
also
be
ordered
to rescind
whatever arrangements
it
may
currently
have
to
operate
a summer
school
by
any
entity
other
than
the
District until
it
has
satisifed
its
obligation to negotiate
the
impact
of
such
a
venture with the
FEA.
sign
I
will
also
recommend
that
the
District
be
required to
and
post the
Notice
to
Employees
attached to
this
Proposed
Decision as
Appendix
A,
which
incorporates the
terms
of
the
Proposed
Order. Posting
such
a
notice
will
provide
employees
with
notice that
the
employer has
acted
in
an
unlawful
manner
and
is
being required to
cease
and
desist
from
this activity.
It
effectuates
the
purposes of
the
Act
that
employees
be
informed
of
the
resolution
of
the controversy
and
will
announce
the employer's readiness to
comply
with the ordered
remedy.
See
Placerville
Union School
District
(9/18/78)
PERB
Decision
No. 69;
Pandol
and Sons
v.
Agricultural
Labor
Relations
Bd.
(1979) 98
Cal.App.3d
580, 587;
NLRB
v. Express Publishing
Co.
(1941)
312
U.S. 426
[8
LRRM
415].
PROPOSED
ORDER
law,
Upon
the foregoing findings of
fact
and
conclusions of
and
the
entire
record in this case.
and
pursuant to
EERA
section 3541.S(c),
it
is
hereby
ORDERED
that tbe
Fremont Union
47
High School
District,
its
governing
board
and
its
representatives
shall:
A. CEASE
AND
DESIST
FROM:
(1)
Failing
and
refusing to
meet
and
negotiate in
good
faith
with
the
exclusive
representative
of
its
certified
employees
by
taking
unilateral
action
on
matters within the
scope
of
representation,
as
defined
in section
3543.2
specifically
with reference to the
effects
of
its
decision to
enter into
an agreement
with another
entity
for
the provision
of
a summer
school
program
for
its
students.
(2)
Denying
the
Fremont
Education
Association,
CTA/NEA,
their
right
to represent
unit
members by
failing
and
refusing to
meet and
negotiate
about
matters within the
scope
of
representation.
(3)
Interfering
with
employees
because of the
exercise
of
their right
to
select
an
exclusive representative
to
meet and
negotiate
with the
employer
on
their
behalf
by
unilaterally
changing
matters within the
scope
of
representation
without
first
providing notice
and
the
opportunity to
meet and
negotiate with the exclusive
representative.
B.
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE
POLICIES
OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
48
(1)
Unless
the
parties
reach
a
contrary
agreement.
the
District shall
rescind
any
current
arrangements
it
may
have
to
operate
a summer
school
program
by
any
entity
other
than
the
Fremont Union High
School
District until
it
has
satisfied
its
obligation
to negotiate
with
the
Fremont
Education
Association
as ordered
in
Number
3,
below.
(2)
Make
those bargaining
unit
employees
who
worked
under
the
La
Verne
summer
program whole
for
any
loss in
pay
resulting
from
the
District's
failure
to negotiate,
including
awarding
them
back
wages
measured
by
the difference
between
what
they
actually
earned
and
what
they
would
have
earned under
the terms of
their collective
bargaining
agreement
plus
interest at
the
rate
of
10
percent
per
annum.
In
addition,
those
employees
shall
be
granted
any
other
benefits,
including
seniority
or pension
rights, that
they
would have
earned
if
the
contract
terms
had
been
applied to
them.
(3)
Upon
request of
the
Fremont
Education
Association,
meet and
negotiate with the Association
over
the
effects
of the
District's
decision to enter into
an agreement
with another
entity for
the provision
of
a summer
school
program
for
its
students.
(4) Within ten
(10) workdays from
service of the
final decision in this matter. post
at all
school
sites
and
all
other work
locations
where
notices to certificated
employees
are customarily placed, copies of the
NOTICE TO EMPLOYEES
attached as an appendix hereto.
The
notice must be signed by
49
an
authorized
agent
of
the
District
indicating
that
the
District will
comply
with
the
terms
of
this
order.
Such
posting
shall
be
maintained
for
a
period
of
thirty
(30)
consecutive
workdays. Reasonable
steps
shall
be
taken
to
insure
that
the notice
is
not
reduced
in
size, altered,
defaced
or
covered by
any
other
material.
(5)
Upon
issuance
of
a
final
decision,
make
written
notification
of
the
actions
taken
to
comply
with the order to
the
San
Francisco
Regional
Director
of
the
Public
Employment
Relations
Board
in
accordance
with the
director's
instructions.
Pursuant
to California
Administrative
Code,
title
8,
part
III,
section
32305,
this
Proposed
Decision
and
Order
shall
become
final
on
May
21, 1985,
unless
a
party
files
a
timely
statement of exceptions.
In accordance
with the
rules,
the
statement of exceptions should
identify
by
page
citation
or
exhibit
number
the portions
of the record
relied
upon
for
such
exceptions.
See
California Administrative
Code,
title
8,
part
III,
section
32300. Such
statement of exceptions
and
supporting
brief
must be
actually
received
by
the Public
Employment
Relations
Board
itself at
the headquarters
office in
Sacramento
before the close of business (5:00 p.m.)
so
on
May
21,
1985,
or
sent
by
telegraph
or
certified
United
States mail.
postmarked
not
later
than
the
last
day
for
filing
in
order
to
be
timely
filed.
See
California
Administrative
Code,
title
8, part
III,
section
32135.
Any
statement of
exceptions
and
supporting
brief
must be
served
concurrently
with
its
filing
upon
each
party to
this
proceeding. Proof of
service
shall
be
filed
with the
Board
itself.
See
California
Administrative
Code.
title
8, part
III.
section
32300
and
32305.
Dated:
April
30,
1985
~,~
m.~
Manuel
M.
Melgoza •
Administrative
Law
Judge
51
PROOF OF SERVICE BY
MAIL
C.C.P.
1013a
I declare that I
am
employed in the County
of
___
S_a_cr_am_en_t_o
__
, California.
lam
over the age of 1Syears and not a party to the
within
entitled cause; my business address
i~
1031
18th
Street,
Suite
200
Sacramento,
California
95814
On December
30,
1987 , I served the enclosed
__________
_
Co.tel
PERB
Decision
No. 651
Fremont Union High
School
District
Case No. SF-CE-779 (Describe
Document!
on
the
parties to this case by placing a true copy thereof enclosed in a sealed envelope
with
postage thereon fully prepaid. in the United States Mail.
____
S
__
a
....
c
....
r
....
a
__
m
__
e
__
n
__
t"'"'o
___
_
(City or Townl
California, addressed as follows:
Fremont
Union High
School
District
Attn: Superintendent
589 West Fremont Ave.
Sunnyvale,
CA
94087
Fremont
Education
Association
Attn:
Wm.
Empey, Exec.
Director
20370 Town
Center
Lane
Cupertino,
CA
95014
Patricia
P.
White,
Attorney
Littler,
Mendelson,
Fastiff
&
Tichy
Sixty
So. Market
Street, Suite
1100
San
Jose,
CA
95113-2303
Ramon Romero,
Attorney
California
Teachers Association
1705 Murchison Drive
Burlingame,
CA
94010
I decl•r• under pen•lty of perjury th•t the fort1going is true
•nd
corrt1ct
•nd th•t
this
declaration was executed
on
___
D_e_c_e_m_b_e_r_3_0
____
. 19
E_
at
___
S_a_c_r_a_m_en_t_o
___
, California.
(Datel (City or Town)
Teresa Stewart
--- - •• r, , , n. / 0 C: \
(Type or print namel
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