Mt. San Antonio Community College District (PERB 0691E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MOUNT 	SAN ANTONIO 	COLLEGE
FACULTY ASSOCIATION,
CTA/NEA,
Charging 	Party,
V.	v.
MOUNT 	SAN ANTONIO 	COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
) 	Case No. 	LA-C-77
PERB Decision No. 	691
June 30, 	1988
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Appearances; 	Reich, 	Adell 	& 	Crost by John Rubin 	for Mount
San Antonio College Faculty Association, 	CTA/NEA; 	Wagner,
Sisneros 	& 	Wagner by 	Patrick 	D. 	Sisneros 	for Mount 	San Antonio
Community 	College 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed by
Respondent 	Mount 	San Antonio 	Community 	College 	District
(hereafter 	District) 	and 	cross-exceptions 	filed by 	the 	Mount
San Antonio 	College 	Faculty Association, 	CTA/NEA 	(hereafter
Association) 	to 	the proposed decision 	arising out 	of 	a
compliance 	hearing 	wherein 	a 	PERB 	administrative 	law 	judge
(ALJ) 	found 	that 	the 	District 	failed 	to comply with Mount
San Antonio 	Community 	College 	District 	(1983) 	PERB Decision 	No.
334, 	which ordered the District 	to, 	among other 	things,
negotiate: 	1) 	the transfer of unit work; 	2) 	the modification
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of 	chairperson stipends; 	and 3) 	the 	change of hours of
department 	chairpersons. 	In addition, 	the Board ordered 	the
District 	to pay back-pay.
For 	the 	reasons 	set 	forth below, 	the 	Board 	reverses 	in part
and 	affirms 	in part 	the proposed decision 	in which 	the ALJ
determined 	that 	the 	District 	is 	not 	in 	compliance 	with 	PERB
Decision No. 	334.
FACTUAL 	SUMMARY
Prior 	to 	the 	advent 	of 	collective bargaining 	under 	the
Educational 	Employment 	Relations Act 	(hereafter 	EERA)1 ,
department 	chairs 	(hereafter 	chairs) 	were 	largely 	responsible
for 	the 	administration of 	their 	respective 	departments. 	The
chair's 	responsibility 	varied 	from 	department 	to 	department 	but
generally 	involved 	class 	scheduling, 	ordering/selecting
textbooks, 	promoting 	the department within 	the 	community,
preliminary hiring 	duties 	(creating 	job 	announcements,
interviews, 	etc.) 	and whatever else was 	necessary to 	"do the
job." 	The chair 	was 	elected by 	fellow 	instructors 	and 	served 	a
four-year 	term with 	the 	approval 	of 	the 	District.
Each 	chair 	received 	a 	monthly 	stipend based 	on 	the
application of 	a 	standard 	formula. 	The 	amount 	of 	the 	stipend
was 	influenced by the 	size 	(i.e., 	number 	of 	full/part-time
instructors) 	and 	the 	amount 	of 	administrative work 	to be done
1The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 3540, 	et 	seq. 	Unless 	otherwise
indicated, 	all 	statutory 	references herein 	are 	to the
Government 	Code.
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in 	each 	department. 	Each 	chair 	also received 	a one-time
payment 	equivalent 	to 	two weeks 	salary, 	at 	the beginning of
each year, 	which was 	characterized 	as 	pay 	for preparation
time. 	This 	payment 	was 	for 	any pre-school 	administrative work
that 	was 	necessary 	to have 	the 	department 	ready 	for 	the
academic 	year. 	Finally, 	each 	chair 	received 	"release 	time."
The minimum amount 	of 	release 	time 	given was 	20 percent. 	Some
chairs 	received 	100 percent 	release 	time. 	Again, 	this was
determined by 	size 	of 	the 	department 	and 	the 	scope 	of 	the
chair's 	responsibility.
With 	the 	advent 	of collective bargaining, 	the 	District
elected 	to 	reorganize 	its 	organizational 	structure. 	Pursuant
to 	its 	reorganization plan, 	the 	District 	created 	the position
of 	division dean. 	This 	position was 	classified as 	supervisory
and 	was 	intended 	to 	supplant 	at 	least 	the
managerial/supervisory duties 	which 	were 	theretofore 	performed
by department 	chairs.
On 	June 	6, 	1977 	the Association 	first 	filed 	its 	charge 	of
an 	alleged 	unfair 	practice 	concerning 	the 	District's 	unilateral
implementation 	of 	its 	reorganization plan. 	It 	charged 	that 	the
District: 	1) 	created 	the new classification of division dean,
which 	is 	a 	supervisory 	classification 	excluded 	from 	the
bargaining unit; 	2) 	required department 	chairs 	to teach 	a
full-time 	class 	load 	without 	granting 	release 	time 	to 	fulfill
administrative obligations; 	3) 	eliminated two weeks of
compensated preparation 	time; 	and 4) 	created 	a monthly 	stipend,
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the 	amount 	of which 	was 	fixed, 	irrespective 	of 	the 	department
in which 	the 	chair 	worked.
The June 	6 	charge 	was 	precipitated by 	negotiations
beginning February 23, 	1977, 	at which 	time both parties 	first
submitted proposals. 	On 	that 	same day, 	the 	District 	indicated
its 	intent 	to 	the Association 	to 	reorganize 	the departments 	as
described above. 	On March 	23, 	and April 	14, 	1977 	the District
rejected 	specific 	requests by 	the Association 	to negotiate 	the
reorganization. 	The 	Board 	of 	Trustees 	approved 	the
reorganization on May 18, 	1977.
PERB 	issued 	a complaint 	pursuant 	to the June 	6, 	1977 	charge
and a hearing was held on September 	20, 	22 and 23, 	197 7. 	A
proposed 	decision 	issued 	on 	October 	26, 	1978 	which 	dismissed
the 	Association's 	complaint 	except 	for 	the 	District's
unilateral 	decision 	as 	it 	effected 	a change 	(i.e., 	eliminated
the 	formula) 	in 	the 	stipend. 	With 	regard 	to the monthly
stipend, 	the ALJ found a 3543.5(c)2 violation. 	The
Association 	filed 	exceptions 	on 	the 	grounds 	that 	the 	decision
to 	reorganize had 	to be bargained 	in all 	respects.
2Section 3543.5(c) 	states:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
• 	• 	• 	• 	• 	•
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Prior 	to 	the 	issuance 	of 	the proposed 	decision on
October 26, 	1978, 	the parties had entered 	into a collective
bargaining agreement 	(CBA) 	which was 	ratified on March 15,
1978. 	The CBA, 	which was 	for a two-year period, 	was made
retroactive 	to July 1, 	1977, 	save 	the provision relating to
department 	chair 	stipends 	which was 	effective 	Spring 	1978.
Just before 	the parties 	reached agreement 	on 	the CBA, 	on
March 	3, 	1978, 	the parties executed a separate document 	they
described as 	a memorandum of 	understanding 	(MOU). 	The MOU
reads:
Both parties 	agree, 	understand 	and 	recognize
that 	the 	ratification 	of 	the 	collective
bargaining 	agreement between 	them 	on 	or
about March 15, 	1978, 	does 	in no way
abrogate 	or 	in 	any way 	limit 	or 	restrict 	the
reservation of 	the Association's 	legal
rights 	to pursue 	the 	unfair 	practice 	charges
contained 	in Case No. 	LA-CE-133 	[now final
and designated as 	PERB Decision No. 	334] 	now
pending before 	PERB.
The parties 	further 	agree 	that 	upon 	the
ratification of 	the 	collective bargaining
agreement between 	them, 	the 	Faculty
Association will 	request 	PERB 	to 	dismiss
pending unfair practice 	charges 	contained 	in
PERB 	Case Nos. 	LA-CE-139 and LA-CE-159.
The 	record 	is 	unclear 	as 	to how much negotiation was 	going
on during 	the 	13-month period between February 23, 	1977 	and
March 	15, 	1978 but 	there 	is 	consensus between the parties 	that
there was 	"a 	lot 	of 	negotiation." 	Both parties 	testified 	that
each of 	the 	topics 	of 	the 	reorganization at 	issue here 	(i.e.,
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monthly stipend, 	preparation 	time 	and 	release 	time) 	was
discussed 	in negotiations. 	In 	the 	1977-79 	CBA, 	the parties
negotiated provisions 	covering unit 	work, 	hours 	and 	stipends.
Each of 	these provisions, 	inter alia, 	covered department
chairs. 	The parties have 	continuously 	reached 	agreement on
subsequent 	CBA's—each 	containing provisions 	covering 	unit 	work,
hours 	and 	stipends 	similar 	to provisions 	in 	the 	first 	CBA.
Beyond 	the 	first 	CBA, 	the parties 	did not 	execute a MOU akin
to 	the one 	set 	out 	above.
On August 	18, 	1983, 	the Board 	issued 	its 	decision 	affirming
the ALJ's 	decision with 	regard 	to 	the 	monthly stipend 	and 	the
District's 	right 	to unilaterally decide 	to create 	the position
of division dean, 	but 	reversed 	the ALJ 	in all other 	respects,
finding a 3543.5(c) 	violation and, 	concurrently, 	a violation of
3543.5(a) 	and 	(b)3 when 	the 	District 	failed 	to negotiate 	the
change 	in 	the 	chairs' 	hours 	of 	employment 	and the 	transfer of
unit 	work 	to nonunit 	employees.
3section 3543.5(a) 	and 	(b) 	state:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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That 	part 	of 	the 	Board's 	order which 	is 	now 	in dispute 	is
as follows:
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	THE
ACT:
1. 	Upon request of 	the Association, 	meet
and 	negotiate 	with 	the Association
concerning 	the 	transferring 	of 	unit 	work,
the 	modification 	of 	department 	chairperson
stipends, 	and the change 	of hours 	of
department 	chairpersons.
2. 	Pay to 	the 	affected employees 	the
difference 	in wages between 	that 	which 	they
earned 	and 	that 	which 	they 	should 	have
earned 	in 	the 	absence 	of 	the 	employer's
unilateral 	action, 	minus 	any mitigation,
from May 18, 	1977 until 	the 	occurrence of
the 	earliest 	of 	the 	following 	conditions:
(a) 	the 	date 	the 	District negotiates an
agreement 	with 	the 	Association 	concerning
the 	issues 	raised by this Decision; 	(b) 	a
bona 	fide 	impasse 	in bargaining occurs; 	or
(c) 	failure of 	the Association to request
bargaining within 	5 	days 	of 	this 	Decision.
Service of PERB Decision No. 	334 was 	attempted at 	the
addresses 	of 	record 	on the 	attorneys 	for both parties. 	Both
attorneys 	moved 	prior 	to 	the 	issuance 	of 	the 	decision 	and
service was 	frustrated. 	With 	regard 	to 	the parties 	themselves,
the 	District 	received 	its 	copy of 	the decision, 	while 	the
Association 	claimed 	its 	copy was 	not 	received because 	it 	was
mailed 	to a 	former 	officer. 	There was 	no 	evidence 	in 	the
record 	as 	to whether 	the 	former 	officer 	received 	the 	decision.
On September 	12, 	1983 	the 	District wrote 	the PERB
Los Angeles 	Regional 	Director 	informing 	PERB 	of 	its 	compliance
with 	the 	Board's 	posting 	requirement. 	Since 	the 	District had
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failed 	to 	serve 	the Association with a 	copy of 	the 	letter, 	PERB
advised 	the 	District 	to 	resubmit 	its 	letter 	with proof 	of
service. 	The 	District did so on September 	20, 	1983.
September 	20, 	1983 was 	the date 	upon which 	the Association
first 	learned of 	the decision. 	Thereafter, 	on 	September 	21,
the Association President, 	Marilyn Kaecke, 	wrote 	the District
asking 	to 	negotiate pursuant 	to PERB's 	order.
On October 31, 	1983 	the District, 	through 	its Personnel
Officer, 	Walter 	Collins, 	sent 	PERB another 	compliance 	letter
which 	stated 	in pertinent part:
On September 	21, 	1983 	[the Association]
submitted 	a 	request 	to meet 	and 	negotiate
the matters 	set 	forth 	in 	the PERB Order.
The Association has 	indicated 	that, 	when
documentation has 	been 	compiled 	regarding
the 	issues 	to be 	negotiated, 	a meeting date
and 	time may be 	established. 	At 	such 	time,
the 	District 	will 	comply with 	the 	PERB 	Order
to meet 	and negotiate 	the matters 	specified.
Thus 	the 	District 	acknowledged 	that 	the 	Association made 	a
request 	to 	negotiate 	and 	agreed 	that 	once 	the Association
compiled 	the documentation 	it 	needed, 	the 	District 	would
"comply with 	the 	PERB 	order 	to meet 	and negotiate 	the matters
specified."
On November 	10, 	1983 	PERB 	issued 	the parties 	a 	letter of
compliance 	which 	said 	in pertinent part:
This 	office 	is 	in 	receipt of 	a Statement of
Compliance 	filed by Mt. 	San Antonio
Community 	College 	District 	in 	[PERB 	Decision
No. 334].
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The 	statement 	indicates 	that 	compliance 	with
the 	Board 	order 	in question has 	been
achieved. 	If 	any party believes 	further
action 	in this matter 	is 	required, 	please
file 	a written 	statement 	with 	this 	office,
no 	later 	than 	10 	days 	from 	the 	date 	of
service of 	this 	letter. 	If no such
statement 	is 	received 	within 	the 	10-day
period, 	the 	regional 	office will 	not 	require
further 	reporting 	from 	the 	respondent 	in
this matter.
Thus 	PERB 	indicated 	that 	compliance had been 	achieved 	to 	the
extent 	that 	no 	further 	reporting would be 	required, 	and 	that 	if
either 	party 	disagreed 	they 	should 	file 	a 	statement 	to 	that
effect. 	Neither did.4
Between October 	31, 	1983 	and July 10, 	1984, 	the parties
engaged 	in 	casual 	conversation 	(i.e., 	exchanging pleasantries
in the hallways), 	but 	there were no negotiations pursuant 	to
PERB Decision No. 	334. 	During this 	time 	the Association was
still 	"gathering 	information" 	with 	regard 	to 	the 	reorganization,
On July 13, 	1984 	the Association through 	its 	newly elected
President 	Don Greeley, 	verbally 	told 	Collins 	it had 	enough
information 	to 	negotiate. 	Collins 	told him 	to make 	the 	request
in writing, 	which he did on October 	2, 	1984. 	On October 10,
1984 	the District 	indicated, 	in writing, 	it would not
4The 	only 	fair 	meaning 	that 	can be 	attributed 	to 	the
District's 	October 	31 	letter 	is 	that 	the 	District 	and 	the
Association 	agreed 	to meet 	and 	negotiate 	at 	some 	unspecified
date 	in 	the 	future. 	Because of 	the parties 	open-ended
agreement, 	compliance proceedings may be brought 	at 	this 	time.
We 	note 	that 	this 	decision's 	order 	is 	limited 	to 	compliance
with 	the original back-pay award 	set 	forth 	in PERB Decision No.
334.
A
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negotiate. 	By letter dated November 	11, 	1984, 	the Association
advised 	the 	District 	that 	it 	represented 	to PERB, 	on
November 10, 	1983, 	that 	it would negotiate on demand.
By February 	25, 	1985 	the parties 	conducted a meeting. 	The
District's purpose 	for 	the meeting, 	acknowledged by all, 	was 	to
"pin down" 	the Association as 	to what 	it 	was 	seeking 	through
negotiations. 	At 	the meeting, 	the 	following four questions
were 	asked 	of 	the Association: 	1) 	Do you 	intend 	to negotiate
stipends?; 	2) 	Do you 	intend to negotiate 	the 	reorganization or
structure 	of 	the 	instructional 	division?; 	3) 	Do you 	intend 	to
negotiate 	the 	work hours 	of 	department 	chairs 	for 	the 	work
year?; 	and 4) 	Do you 	intend 	to negotiate 	release 	time? 	The
Association's 	response 	to each of 	the 	four 	questions 	was 	"no."
The 	Association 	represented 	at 	the 	February 	25 	meeting 	that 	it
wanted 	to 	recover 	the 	losses 	suffered by 	department 	chairs 	but
they purposefully did 	not 	express 	the 	nature 	of 	those 	losses
because 	they wanted 	to 	"keep 	it broad."
The next 	event 	occurred on April 	16, 	1985, 	when the
Association wrote 	a 	letter 	to 	the 	Board 	of 	Trustees 	requesting
negotiations. 	On May 	28, 	1985 	the 	Trustees 	refused 	the
Association's 	request.
On June 	6, 	1985 	the Association 	filed 	its 	unfair practice
charge alleging 	that on October 	10, 	1984 	the 	District
repudiated 	its 	agreement 	to negotiate.
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On August 	2, 	1985, 	the PERB General 	Counsel's office
advised 	the Association 	that 	its 	charge 	was 	untimely but 	that 	a
compliance 	proceeding would be 	the proper 	recourse. 	On
August 	7, 	1985, 	a petition seeking compliance with PERB
Decision No. 	334 was 	filed by the Association.
The 	compliance hearing was 	conducted 	on 	January 	28,
March 12, 	March 24-27, 	April 	29-30, 	May 1, 	and May 7-9, 	1986.
PROPOSED DECISION IN CASE NO. 	LA-C-77
The 	ALJ 	concluded 	that 	the 	District 	did 	not 	comply with 	the
Board's 	order 	to negotiate 	on demand, 	nor 	did 	it 	comply with
the 	order 	to pay back-pay 	to 	the 	affected 	employees.
Nevertheless, 	the ALJ found that, 	with respect 	to the
District's negotiating obligation, 	the obligation was, 	at 	the
time 	of her proposed 	decision, 	excused. 	The Association's
protracted 	delay between 	its 	initial 	request 	to negotiate
(i.e., 	September 20, 	1983) 	and its follow up 	(i.e., 	July 10,
1984) 	constituted 	an 	effective 	abandonment 	of 	its 	demand 	to
negotiate. 	L.A. 	Community College 	District 	(1982) 	PERB
Decision No. 	252.
With 	regard 	to the back-pay order, 	the ALJ 	set 	forth 	some
limitations. 	As 	to stipends, 	the ALJ held 	that department
chairs 	are 	entitled 	to 	the 	difference between what 	was
bargained 	under 	the 	1977-79 	CBA and 	the 	previously 	applied
formula 	for 	that 	period 	of 	time between 	February 	1977 	and
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June 30, 	1979, 	which 	is 	the date of expiration of 	the 	first
collective bargaining 	agreement. 	Similarly, 	the ALJ held 	that
department 	chairs 	are 	entitled 	to 	the 	two-week 	preparation
period which was 	unilaterally eliminated but, 	again, 	only 	for
the 	same period as 	the stipends 	(i.e., 	during the 	term of 	the
1977-79 CBA).
The ALJ 	reasoned 	that 	liability 	for 	stipends 	and
preparation 	time 	is 	limited based 	on 	this 	Board's 	decisions 	in
Rio Hondo Community College 	District 	(1986) 	PERB 	Decision No.
279(b) 	and 	Pittsburgh Unified School 	District 	(1984) 	PERB
Decision No. 	318(a) 	because 	the 	"basic 	subjects" 	of 	stipends
and 	preparation 	time 	were bargained 	for 	and 	agreed 	to by 	the
parties 	in 	its 	initial 	(i.e., 	1977-79) 	CBA and 	subsequent
CBA's. 	Further, 	the 	reason liability extends to the period
covering 	the 	1977-79 	CBA 	is 	due 	to 	the parties having executed
the 	MOU which 	was 	incorporated 	into 	the 	1977-79 	CBA. 	By
entering 	into 	the MOU, 	the ALJ 	concludes, 	the 	first CBA cannot
be 	considered 	an 	agreement 	"concerning 	the 	issues 	raised by"
PERB Decision No. 	334.
With 	regard 	to 	release 	time, 	the ALJ 	concluded 	that 	the
affected 	employees 	are 	entitled 	to 	compensation 	for 	the
"additional 	hours 	worked 	as 	a 	consequence 	of 	their 	reassignment
to 	full-time 	teaching 	responsibilities 	without 	a 	concomitant
elimination 	of 	the 	duties 	and 	responsibilities" 	which 	were
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previously accomplished 	during 	that 	release 	time. 	To 	that
extent, 	the ALJ concludes back-pay 	is 	owing 	from February 1977
through 	the 	1982-83 	school year 	(i.e., 	June 1983).
The ALJ's 	reasoning 	in 	support 	of 	the 	release 	time back-pay
entitlement 	(i.e., 	her 	reason as 	to why 	the 	CBA does 	not 	cutoff
back-pay liability) 	is that:
Although 	the 	contracts 	cover 	the basic
subject 	of hours, 	they cannot be 	viewed as
covering 	the basic 	subject 	matter 	found 	in
the 	unfair practice proceeding 	in 	light 	of
the 	evidence 	that 	the 	District 	refused 	to
negotiate 	release 	time 	or 	the 	reassignment
of 	department 	chairpersons 	to 	full-time
teaching duties.
As 	set 	out 	above, 	the ALJ cut 	off back-pay liability 	for
release 	time 	as 	of 	June 	1983, 	due 	to the Association's 	failure
to pursue 	negotiations with 	due 	diligence which, 	she 	concluded,
was 	tantamount 	to 	failing 	to 	request 	negotiations.
In 	addition 	to back-pay, 	the ALJ ordered 	interest 	at 	the
rate 	of 	10 percent per annum, 	accumulated on 	the unpaid balance
at 	the 	end 	of 	each 	semester. 	She 	further 	ordered 	that 	interest
payments 	will 	not be 	required 	for 	the period between 	September
20, 	1983 	(the date 	the Association 	learned of 	the Board's
decision) 	and August 	7, 	1985 	(date 	compliance proceedings 	were
initiated), 	since 	the delay is attributed 	to the Association's
failure 	to pursue 	this matter.
In 	addition 	to 	finding a 	failure 	to 	satisfy 	the bargaining
obligation 	against 	the 	District, 	the ALJ 	concluded 	that 	the
District 	is 	estopped 	from 	using 	the 	five-day 	limitation period
13

set out 	in the Board's order. 	She reasoned that, 	in 	the past,
the 	Board has 	recognized 	the doctrine 	of 	equitable 	estoppel.
Eastern 	Sierra 	Unified 	School 	District 	(1983) 	PERB Decision 	No.
312. 	Here, 	the ALJ concluded, 	the District's letters of
compliance to 	PERB 	constituted 	representations 	which 	led 	the
Association 	to believe 	that 	the 	failure 	to make 	a demand 	to
bargain 	would 	not 	impact 	upon 	the 	matters 	covered by PERB
Decision No. 	334. 	Thus, 	having failed to assert 	the 	five-day
limitation period when PERB Decision No. 	334 was 	issued, 	and
having 	affirmatively 	indicated 	it 	would 	negotiate with 	the
Association, 	the 	District 	cannot 	now assert 	the 	five-day
limitation.
Further, 	the 	ALJ 	rejected 	the 	District's 	argument 	that,
while 	there 	is 	no express 	statute of 	limitations 	on enforcement
proceedings, 	analogy rests 	in section 	3541.5(a)(l)5 and, 	as
such, 	PERB 	should adopt 	an equitable 	statute of 	limitations.
Conti 	v. 	Board of Civil 	Service Commissioners 	(1969) 	Cal.3d
351. 	The ALJ concluded that, 	as established 	in Conti,
5Government 	Code 	section 	3541.5(a)(l) 	states:
(a) 	Any employee, 	employee organization, 	or
employer 	shall have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	the 	following:
(1) 	issue 	a complaint 	in respect of any
charge based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of the charge; 	. 	. 	.
14
'

prejudice 	to 	a public 	sector 	defendant 	will 	not be 	presumed
when 	there 	is an unreasonable delay. 	Here, 	while there 	is 	a
showing of prejudice, 	to wit: 	running of 	interest during 	the
Association's delay 	(September 20, 	1983 	- August 7, 	1985), 	the
remedy 	is 	not 	dismissal 	of 	the 	compliance proceeding but
tolling 	of 	interest.
Finally, 	the ALJ 	rejected 	the 	District's 	argument 	that 	it
should 	not be 	liable 	for 	an 	award 	of back-pay 	for 	the 	five-year
period 	in which 	it 	took 	PERB 	to 	issue PERB Decision No. 	334.
Pittsburgh 	Unified 	School 	District 	(1984) 	PERB 	Decision 	No.
318(a); 	Mt. 	San Antonio Community College District 	(1983) 	PERB
Decision No. 	297; 	and, 	NLRB v. J.H. 	Rutter-Rex Mfg. 	Co. 	(1969)
396 U.S. 	258 	[72 LRRM 2881, 	2883] 	(NLRB 	is not 	required to
place 	the 	consequences of 	its 	own delay, 	even if 	inordinate,
upon 	wronged 	employees 	to 	the benefit 	of 	wrongdoing 	employers'.
DISTRICT'S 	EXCEPTIONS
The 	District 	excepts 	to the 	ALJ's 	proposed 	decision on
three principal bases. 	First 	the District 	argues 	that,
contrary 	to 	the 	ALJ's 	conclusion, 	no 	liability 	should 	attach 	to
its 	unilateral 	change 	since 	the basic 	subject matter 	of 	the
reorganization 	was 	negotiated 	in 	the 	initial 	CBA and 	all
subsequent 	CBA's between 	it 	and 	the Association.
The 	District 	argues 	that 	evidence 	of 	the parties
negotiation on 	the basic 	subject 	of 	reorganization 	is 	contained
in 	three provisions 	of 	the 	CBA. 	The unit work provision
15

expresses 	the 	recognition 	and 	agreement between 	the parties 	of
the 	existence 	of 	the 	then 	newly created position 	of 	division
dean 	which 	would be 	excluded 	from 	the bargaining unit. 	This
provision 	is 	relevant 	to the 	extent 	that 	it 	establishes 	that
the Association knew 	that 	it was bargaining 	the 	subject of
reorganization, 	since 	the 	creation of 	the 	division dean was 	the
quintessential 	first 	step. 	The second provision, 	work hours,
clearly 	includes 	department 	chairs, 	and 	expressly 	requires 	them
to work 	30 	hours,6 which 	includes 	teaching, 	holding office
hours 	and 	other 	appropriate 	nonclassroom 	responsibilities.
Subsumed 	within 	"nonclassroom 	responsibilities" 	are 	the
remaining 	duties 	associated 	with 	carrying 	out 	the
administrative 	functions 	of 	the chairs. 	The 	final provision,
that 	for 	department 	chair 	stipends, 	is 	specifically included 	in
the 	appendix 	to 	each 	CBA.
The District 	further 	argues 	that 	the MOU, 	which was
incorporated by 	reference 	into 	the 	1977-79 	CBA, 	does 	not hold
the 	issue 	of 	the 	unfair 	practice 	decided 	in 	PERB 	Decision
No. 334 	(i.e., 	the reorganization) 	in abeyance. 	Rather, what
the 	MOU does 	is 	dismiss 	two unrelated 	unfairs 	while preserving
the 	right 	of 	the Association 	to pursue 	the 	underlying unfair
6we	we 	note 	that 	the 	parties 	negotiated 	increased 	chair
hours 	in subsequent 	CBA's, 	but 	this 	fact 	is of no consequence
to this decision.
16
6

herein. 	That 	is, 	it gave 	the Association 	"hope" 	that PERB
would 	abrogate 	the 	reorganization. 	If 	the MOU had 	the 	effect
of holding the 	issues of 	the unfair 	in abeyance, 	the District
argues, 	then 	the provisions 	concerning unit work, 	stipends 	and
work year/hours 	would be 	"tentative"; 	to view the provisions 	as
"tentative" 	is 	incongruous 	with 	the parties having 	reached
"agreement" 	in 	the 	CBA. 	Since 	the provisions 	to the CBA
discussed 	supra 	do 	include 	the basic 	subject 	of 	the
reorganization here 	in dispute, 	no 	liability attaches—even as
to conduct during 1977-79 	(Rio Hondo, 	supra, 	PERB Decision No.
279(b); Pittsburgh, supra, PERB Decision No. 318(a)).
The District's 	final 	argument 	in 	support 	of 	its 	first
exception 	is 	that 	the ALJ 	erred by labeling 	the 	release 	time
provision as 	"extra hours" 	in an attempt 	to 	"create" 	an 	issue.
That 	is, 	the ALJ concluded that, 	the 	subject of 	"excess hours"
(i.e., 	hours over 	and above 	the basic 	teaching week) 	was not
passed on in Rio Hondo or 	Pittsburg and, 	as 	such, 	it 	is an
issue 	of 	first 	impression.
The District 	concedes 	that 	release 	time 	is 	not mentioned 	in
the 	1977-79 	CBA. 	However, 	there was 	testimony that 	it was
bargained 	(i.e., 	the Association proposed 	it but 	the 	District
rejected 	the proposal). 	Furthermore, 	the 	"basic 	issues" of the
unfair, 	including hours, 	were negotiated. 	The hours provision
contemplates 	the 	release 	time 	(or 	"extra hours") 	in that part
of 	the 	provision 	covering 	"other 	appropriate 	non-classroom
responsibilities."
17

The 	second 	exception 	is 	taken on 	the 	grounds 	that 	the 	ALJ
erred 	in 	awarding back-pay 	to 	unit 	members 	who were 	not
incumbent 	chairs 	at 	the 	time of 	the decision, 	but 	rather,
assumed 	the 	position 	after 	the 	decision 	to 	reorganize had
already been 	implemented. 	The 	District 	argues 	that 	the 	Board's
order 	called 	for back-pay 	to 	"affected 	employees", 	thereby
limiting 	recovery 	to 	those who were 	in 	the 	chair positions 	at
the 	time 	of 	the 	decision 	to 	reorganize because 	they are 	the
only 	ones 	whose hours 	and 	stipends 	"changed." 	The 	record 	is
devoid 	of 	any 	reliance by 	subsequent 	chairs 	on pre-negotiation
hours/stipends; 	hence, 	they had no expectation and their
recovery would 	create 	a windfall 	for 	them. 	Even 	if 	there were
some 	expectation, 	their 	act 	of 	accepting 	the 	chair
responsibilities 	in 	light 	of 	the 	reorganization, 	which had been
effected, 	constituted a waiver.
The third 	and 	final 	exception 	simply 	restates 	the 	first, 	to
wit: 	the 	Board's 	delay is 	unreasonable and 	is 	grounds 	for PERB
to exercise 	its 	discretion 	to mitigate 	the 	chairpersons'
back-pay 	award 	(citing 	Justice 	Douglas' 	dissent 	in NLRB 	v. 	J.
H. 	Rutter-Rex Manufacturing Co., 	supra.)
ASSOCIATION'S 	RESPONSE
The Association 	argues 	that 	the 	ALJ properly 	found 	that 	the
MOU preserved 	the 	Association's 	remedial 	rights 	during 	the 	term
of 	the 	first 	CBA. 	The MOU was 	broadly drafted 	and 	expressly
reserved 	all 	of 	the Association's 	rights 	to pursue 	the unfair.
18

The 	District's 	argument 	that 	the Association preserved 	only 	the
right 	to 	contest 	the 	reorganization plan—and 	not 	its
constituent parts 	is 	illusory. 	To 	argue 	that 	the Association
intended 	to preserve 	its 	right 	to 	contest 	the 	reorganization,
without 	contesting 	the 	substance 	of 	the 	reorganization, 	would
render 	the 	MOU meaningless.
Second, 	the 	District's 	exception 	to 	the ALJ's 	finding 	that
release 	time was 	not bargained 	is wrong. 	While 	the 	CBA's
contain 	a general 	reference 	to hours, 	they do not 	include 	a
provision 	for 	the 	additional 	hours 	required 	of 	department
chairs 	in the performance of 	their duties. 	In 	that vein,
noticeably, 	the 	District 	does 	not except 	to 	the ALJ's 	finding
that 	the 	chairs' 	hours dramatically 	increased with 	the
elimination of 	release 	time.
Finally, 	with 	regard 	to 	the 	remedial 	relief 	ordered 	for
"affected 	employees," 	the ALJ's 	conclusion, 	affording an award
of back-pay 	to post-decision chairs, 	is 	supported by case 	law.
In Schnadig Corp. 	(1982) 	265 NLRB 147 	[112 LRRM 13 31] 	the board
modified 	the 	administrative 	law 	judge's 	decision 	to 	include
compensation 	for 	employees 	hired 	after 	the 	unilateral 	change
had occurred. 	Second, 	the 	District's 	"volunteer" 	theory is
meritless 	because 	the 	obligation 	to bargain 	is 	with 	the
Association. 	To 	argue 	that 	only 	incumbents 	are 	entitled 	to
back-pay 	would 	cause 	employees 	to be 	faced 	with 	the 	"draconian
choice" 	of 	quitting or 	continuing 	to work 	under 	the
19

unilaterally changed conditions which would, 	in effect, 	create
a waiver 	of 	the 	union's 	right 	to a remedy. 	Furthermore, 	there
is 	no 	evidence 	of a waiver by any employees.
ASSOCIATION'S 	EXCEPTIONS
The Association has 	filed 	four 	exceptions. 	It 	first
excepts 	to 	the ALJ's 	finding 	that 	the MOU expired 	at 	the 	end 	of
the 	1977-79 	CBA's 	term. 	The Association argues 	that 	if 	the MOU
had 	not 	referred 	to the 	1977-79 CBA, 	it would still be a 	full
reservation of 	rights 	and, 	since 	the 	language does 	not
explicitly 	limit 	it 	to the 	1977-79 	CBA, 	the MOU has 	no
termination date. 	While 	the ALJ 	credited 	the Association's
chief negotiator, 	Greeley's, 	testimony that the District
represented 	that 	it 	was 	unnecessary 	to 	negotiate 	the 	issues
raised 	in the 	unfair because 	the MOU was 	still 	in effect, 	she
nevertheless 	concluded 	that, 	absent 	express 	written agreement
extending the MOU, 	it 	expired. 	The ALJ's 	conclusion places
form over 	substance. 	In 	light of 	the 	intent of 	the parties 	to
allow 	the Association 	to pursue 	the 	case 	to 	its 	conclusion,
there 	was 	no 	need 	to 	reduce 	the MOU 	to writing with 	each 	new
CBA.
Secondly, 	the ALJ 	erred when 	she 	concluded 	that 	liability
under 	subsequent 	CBA's was 	cutoff, 	because 	the MOU continued 	to
survive 	as 	discussed 	above.
The 	third 	exception 	is 	to 	the ALJ's 	conclusion 	that 	the
Association 	unreasonably 	delayed 	negotiating 	following 	the 	that
a 	collective 	bargaining 	agreement 	entered 	into 	after 	the
20

District's 	October 	31, 	1983 	letter. 	The Association argues
that 	its 	attempt 	to gather 	the necessary 	information, 	in an
effort 	to 	reach 	voluntary 	resolution with 	the 	District, 	was
entirely 	reasonable. 	Given 	the 	voluminous 	documents
necessitated 	in 	this 	proceeding, 	the Association's 	difficulties
are 	understandable 	and not 	sufficient 	to 	constitute 	a waiver 	of
any of 	its 	remedial 	rights. 	Once 	the 	Board of 	Trustees 	finally
refused 	to negotiate, 	the 	Association promptly 	contacted 	PERB.
Finally, 	the Association excepts 	to 	the ALJ's 	calculation
of back-pay with 	regard 	to 	release 	time. 	The Association
argues 	that 	the 	Board 	should adopt 	its 	formula because 	it
compensates 	for 	the actual 	increase 	in the chairs' 	hours of
employment. 	Corning Union High 	School 	District 	(1984) 	PERB
Decision No. 	399.
DISCUSSION
We hold 	that 	the ALJ's 	conclusion 	that 	the 	District's
liability 	regarding 	release 	time7 continues 	to 	run until
June 30, 	1983 	is 	incorrect. 	For the reasons 	set 	forth below,
we 	conclude 	that 	the 	District's 	back-pay 	liability with 	regard
to 	stipends, 	the 	two-week preparation period, 	and release 	time
is 	limited 	to 	the 	duration of 	the 	first 	CBA negotiated between
the parties; 	that 	is, 	July 1, 	1977 through June 30, 	1979.
As 	the 	ALJ 	correctly pointed 	out, 	this 	Board has 	determined
7While 	the 	District 	excepts 	on 	the 	ground 	that 	the ALJ's
use of 	the 	term 	"excess hours" 	in lieu of 	release 	time,
constitutes 	error, 	we 	do not 	find 	the ALJ's 	use of 	the 	term of
any 	consequence.
21

commission 	of 	an 	unfair 	practice may 	cut 	off back-pay 	liability
if 	the 	CBA addresses 	the basic 	subject matter 	raised 	in 	the
unfair 	practice 	proceeding. 	Rio Hondo 	Community 	College
District 	(1986) 	PERB Decision No. 	279(b); 	Pittsburg Unified
School District 	(1984) 	PERB Decision No. 	318(a).
From 	our 	review 	of 	the 	record 	and based 	on 	the 	testimony 	of
both parties, we 	conclude 	that 	the 	District 	first 	refused 	to
discuss 	the 	subject 	of 	the 	reorganization with 	the Association
between February 23, 	1977 and May 18, 	1977, 	thus precipitating
the 	June 	6, 	1977 	filing 	of 	the 	unfair 	practice 	charge.8
Negotiations continued, 	however, 	through March 15, 	1978, 	at
which 	time 	the parties 	reached 	agreement. 	While 	the 	record 	is
unclear 	as 	to precise dates, 	it 	is 	undisputed that sometime
between 	the 	June 	6, 	1977 	filing of 	the 	unfair practice charge
and 	the March 	15, 	1978 agreement, 	the District relented and
bargained 	about 	stipends, 	preparation 	time 	and 	release 	time
(the 	result 	of 	those 	negotiations 	has 	no provision 	for 	release
time), 	each of the topics at 	issue here, 	with the Association.
Since 	each of 	the 	three 	topics 	was 	fully bargained, 	the basic
subject 	matter 	of 	the 	reorganization 	was 	fully bargained 	prior
to 	the 	issuance 	of 	the proposed decision on 	the 	underlying
unfair practice 	charges dated October 	26, 	1978.
8We 	note 	that 	our 	conclusions 	reached 	in 	PERB 	Decision
No. 	334 were based on 	the 	conduct of 	the parties 	up to 	the date
of the 	filing of the charge 	(i.e., 	June 6, 	1977).
22

While 	we 	agree 	with 	the ALJ's 	conclusion 	that back-pay
liability 	regarding 	the 	topics 	of 	stipends 	and preparation 	time
is 	limited to 	the 	term of 	the 	1977-79 	CBA, 	we disagree with her
rationale 	in 	support 	thereof. 	The ALJ 	reasons 	that 	liability
attaches 	for 	the 	1977-79 period because 	the parties' 	execution
of 	the MOU prevents 	one 	from being able 	to 	conclude 	that 	the
1977-79 	CBA 	is 	an 	agreement 	which 	covers 	the basic 	subject
matter 	raised 	in 	the 	unfair proceeding. 	The ALJ concludes,
however, 	that 	CBA's 	subsequent 	to the 	1977-79 	CBA did cover
each 	of 	those 	subjects 	and 	limited 	liability on 	that basis. 	In
our 	view, 	the 	genesis 	for 	our 	conclusion 	that 	the basic 	subject
matter, 	inclusive 	of 	stipends, 	preparation time and 	release
time, 	was bargained 	stems 	from 	the 	first 	series 	of 	negotiations
which 	led 	to the 	1977-79 	CBA. 	Rather 	than say that, 	based on
the 	MOU, 	the 	1977-79 	CBA does 	not 	cover 	the basic 	subject
matter 	raised 	in 	the 	unfair proceeding, 	we 	think 	it more
accurate 	to 	say 	that 	the 	District waived 	the 	tolling of
liability 	for 	the 	duration of 	the 	1977-79 	CBA. 	Had the
District 	not 	executed 	the MOU, 	its 	liability would have been
tolled as of July 1, 	1977 	(the 	retroactive date of 	the
agreement).9
9
Just 	as 	we 	conclude 	that 	stipends 	and preparation 	time were
bargained under 	the 	terms 	of 	the 	1977-79 	CBA and, 	solely as 	a
9 We 	recognize 	that 	the 	record 	conclusively 	establishes
that had 	the 	District 	not 	entered 	into 	the MOU, 	the parties
would 	not 	have 	reached 	agreement 	when 	they did.
23
9

result 	the MOU's 	waiving 	the 	tolling of 	liability, 	liability
attaches, 	we 	so conclude with 	regard 	to 	release 	time.
We 	also 	find 	that 	the 	ALJ 	correctly 	concludes 	that 	the
terms 	of 	the MOU expired 	consonant with 	the 	1977-79 	CBA. 	Just
as 	the 	ALJ 	correctly 	found 	that 	the 	expiration of 	the MOU
precludes 	extending 	the 	District's 	liability with 	regard 	to
stipends 	and preparation 	time, 	we 	so conclude with 	regard 	to
release 	time.
Since 	our 	determination 	of back-pay 	liability 	is 	limited 	to
the 	time 	of 	the 	1977-79 	CBA and our 	review of 	the 	appendix
attached 	to 	the ALJ's 	proposed decision 	establishes 	that 	all
the 	unit 	members 	entitled 	to compensation were 	incumbents 	at
the 	time 	of 	the 	reorganization, 	we do not 	reach 	the 	issue of
whether our 	earlier 	order 	in PERB Decision No. 	334 	includes
unit 	members 	who became 	chairpersons 	thereafter.
Based on 	the 	facts before 	us, 	we 	also affirm the ALJ's
conclusion 	that 	the 	District has 	not 	made 	an 	adequate 	showing
of 	prejudice 	to 	require 	adoption of 	an equitable 	statute of
limitations 	precluding 	these 	enforcement 	proceedings 	because
the 	only prejudice 	shown 	is 	the 	running of 	interest. 	Conti 	v.
Board of Civil 	Service Commissioners 	(1969) 	1 Cal.3d 	351. 	As
the ALJ correctly points 	out, 	we 	can 	toll 	the 	running of
interest 	and we do so here 	as 	of 	September 	20, 	1983.1 0 We
reverse 	the ALJ's 	conclusion 	that 	interest 	should 	resume 	as 	of
10Section 	3541.5(c) 	vests 	this 	Board with power 	to order
such 	relief 	as 	will 	effectuate 	the policies 	of 	the 	EERA.
24

the 	date 	of 	the 	institution of 	the 	enforcement proceedings
(i.e., 	August 7, 	1985), 	in part based on our view that the
Association's 	failure 	to exercise 	due 	diligence 	is 	not 	absolved
and 	cannot be 	rewarded 	with 	the 	payment 	of 	additional 	interest
and due, 	in part, 	to the reasons enunciated by Chairperson
Hesse 	in her 	concurrence 	and dissent 	in Modesto City and High
School Districts 	(1987) 	PERB Decision No. 	566(a), 	where she
states:
This 	justification 	for 	imposition 	of
interest 	in 	the private 	sector does 	not 	fit
the 	public 	sector 	situation. 	A school
district does not have 	the 	"use" 	of
wrongfully 	unpaid 	monies 	during 	the 	time
this 	agency 	takes 	to decide cases. 	Nor can
it 	increase 	"sales" 	in order 	to discharge
interest penalties. 	Public 	school 	districts
receive 	a 	certain 	amount 	of 	money 	each year
to perform 	their 	duties. 	They adjust 	their
expenses 	within 	that 	framework. 	They 	cannot
do 	the 	things private 	employers 	do 	to 	raise
additional monies, 	nor 	can 	they 	invest 	their
funds 	in 	anticipation of 	large 	interest
awards. 	Thus, 	a hefty interest 	charge on
top 	of 	a 	substantial 	back-pay 	award 	could
devastate 	a school 	district. 	In 	such a
circumstance, 	no one would win. 	(Id., 	p. 	11)
-
Finally, 	we 	reject 	each 	exception 	filed with 	this 	Board by
the Association 	for 	the 	reasons 	set 	forth 	in our discussion,
supra. 	As 	to 	the ALJ's 	calculation of back-pay with 	regard 	to
release 	time, 	we 	adopt her 	conclusion and 	rationale 	in support
thereof 	to 	the 	extent 	that 	it 	is 	not 	inconsistent with our
decision 	limiting 	the 	award 	to 	the 	term of 	the 	1977-79 	CBA.
As 	to the 	rate 	of 	interest 	to be paid on 	the principal, 	we
reverse 	the ALJ's 	order 	of 	10 percent per 	annum on 	the 	unpaid
25

balance 	at 	the 	end 	of 	each 	school 	semester 	and 	instead 	conclude
that 	the 	proper 	rate 	should be 	7 	percent 	per 	annum 	from 	the 	date
ordered 	in PERB Decision No. 	334, 	May 18, 	1977 	through June 30,
1983, 	and 	10 percent per annum 	from 	July 1, 	1983 	through
September 	20, 	1983. 	This 	rate of 	interest 	is 	consistent with
California 	Code 	of 	Civil 	Procedure 	Section 	685.010. 	and 	its
amendment 	effective July 	1, 	1983 	increasing 	the 	rate 	of 	interest,
REMEDY
Consistent with 	our 	remedial 	authority, 	we 	find 	that 	the
employees 	set 	forth 	in 	the 	attached 	appendix 	to 	the proposed
decision who were 	chairpersons between May 18, 	1977 	and June 	30,
1979 	shall be 	compensated 	in 	the 	amount 	set 	forth 	in 	the
appendix, 	plus 	interest 	accrued at 	the 	rates 	consistent 	with
this 	decision.
ORDER
Upon 	the 	foregoing findings of 	fact, 	conclusions of 	law, 	and
the 	entire 	record 	in 	this 	case, 	and pursuant 	to section
3541.5(c) 	of 	the 	Educational Employment Relations Act, 	it 	is
hereby 	ordered 	that 	the 	Mount 	San Antonio 	Community College
District 	shall:
1. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
A. 	Pay to 	the 	employees 	or 	former 	employees 	listed
in 	the Appendix 	to 	the ALJ's 	Proposed 	Decision, 	attached
hereto, 	each 	of whom was 	employed 	in 	the position of 	department
chairperson 	and 	affected by 	the 	District's 	unlawful 	action
26

between May 18, 	1977 and June 30, 	1979, 	the amount of principal
set 	out 	next 	to each person's 	name, 	plus 	7 percent 	interest per
annum 	on 	the 	unpaid balance 	at 	the 	end 	of 	each 	school 	semester
from May 18, 	1977 	through June 30, 	1983 	and 10 percent 	interest
per 	annum 	on 	the 	unpaid balance 	from 	July 	1, 	1983 	through
September 	20, 	1983. 	In addition to the payment of principal
and 	interest 	to 	the 	employee 	or his/her beneficiaries, 	the
employer 	must 	make 	those payments 	for pensions 	or 	other
benefits 	which 	would have been made 	if 	the 	employees had been
paid 	the 	money 	during 	the 	years 	covered.
B. 	Written 	notification of 	the 	actions 	taken 	to 	comply
with 	this 	Order 	shall be made 	to the 	Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with 	the 	Director's 	instructions.
It 	is 	further 	ORDERED 	that 	all 	other 	allegations 	in Case
No. 	LA-C-77 	are hereby DISMISSED.
Member 	Craib's 	concurrence 	and 	dissent begins 	on page 	28.
Chairperson Hesse's 	dissent begins 	on page 	30.
2
'
7

Craib, 	Member, 	concurring and dissenting: 	I concur with
the 	conclusions 	reached 	in Member 	Shank's 	lead opinion, 	with
the 	exception of 	the 	tolling of 	interest 	from August 	7, 	1985
forward. 	While 	the 	tolling of 	interest 	accrual 	is 	appropriate,
due 	to 	the Association's 	lack 	of 	diligence, 	for 	the period of
September 20, 	1983 	to August 	7, 	1985, 	any delay thereafter has
not been the 	fault of 	the Association and, 	therefore, 	it should
not be 	penalized 	for 	that 	delay.
Any unreasonable 	delay after August 	7, 	1985 	is 	the 	fault 	of
this 	agency. 	While 	I 	consider 	unreasonable 	delay by 	this
agency 	in 	the 	issuance 	of 	its 	decisions 	to be 	inexcusable 	and
while, 	in 	theory, 	no party should shoulder 	the burden of 	such
delay, 	simply 	shifting 	the 	entire burden 	onto 	the 	innocent
employees 	is 	no 	solution. 	They have been denied 	the 	use of
money 	rightfully owed 	to 	them, 	which 	the 	awarding 	of 	interest
is 	designed to account 	for. 	In sum, 	we are 	faced with 	the
rather 	unpalatable 	choice 	of placing 	the burden 	on one party or
the 	other. 	Given 	that choice, 	I would agree with the
overwhelming 	weight 	of 	authority which 	holds 	that 	the burden
should be 	placed 	on 	the 	wrongdoing party.1
1lsee	see , 	e.g., 	NLRB v. 	J.H. 	Rutter - Rex Mfg. 	Co. 	(1969) 	396
U.S. 	258 	[72 LRRM 2881]; 	Bagel Bakers 	Council v. 	NLRB 	(1977)
555 F.2d 304 [95 LRRM 2444]; M.B. 	Zaninovich, 	Inc. 	v. 	ALRB
(1981) 	114 	Cal.App.3d 665. 	Moreover, 	PERB precedent 	clearly
supports 	this 	approach. 	Modesto 	City 	and High 	School 	Districts
(1987) 	PERB Decision No. 	566(a); 	Pittsburg Unified School
District 	(1984) 	PERB Decision No. 	318(a); 	Mt. 	San Antonio
Community College 	District 	(1983) 	PERB Decision No. 	297.
28

Nor 	is 	there 	a distinction 	in 	the public 	sector 	that
warrants 	a different 	approach. 	Public 	employees 	suffer 	from
the 	loss 	of monies 	owed 	in 	the 	same 	way as private 	sector
employees. 	While public 	sector 	employers 	are unable 	to 	raise
additional 	revenues 	in order 	to completely 	cover 	the 	cost 	of
interest 	awards 	on monies 	wrongfully withheld, 	they do 	in 	the
interim have 	the 	"use" 	of 	the principal owed. 	In 	sum, 	the
choice 	remains 	that 	of placing 	the burden on 	either 	the
wrongdoing party or 	on 	the 	innocent 	party. 	I 	would 	also note
that 	this 	case does 	not present a 	situation 	in which 	the 	school
employer 	would be 	"devastated" 	by 	the 	amount 	of 	the back-pay 	or
interest 	award.
29

Hesse, 	Chairperson, 	dissenting: 	I 	respectfully dissent. 	I
would 	dismiss 	this 	case 	on 	the 	grounds 	that 	the 	charging party
failed 	to 	reactivate 	compliance proceedings 	in 	a 	timely manner.
On November 	10, 	1983, 	the parties were put on notice 	that,
absent 	a 	request 	from 	the parties 	not 	to do 	so, 	the 	compliance
proceedings 	were 	at 	an end 	and 	the 	case 	would be 	closed. 	The
parties 	were 	given 	10 	days 	in which 	to 	lodge 	a 	request 	that 	the
case 	remain open, 	but neither did. 	At 	that point, 	all
monitoring by 	PERB 	ceased.
Nearly a year later, 	on October 	2, 	1984, 	the Association
made 	a 	request 	to bargain pursuant 	to 	the 	Board's 	1983 	decision
and order. 	On October 10, 	1984, 	the District, 	in writing,
refused 	to negotiate. 	Several 	other demands 	to negotiate were
made, 	all of 	them refused by the 	District. 	On June 6, 	1985,
the Association 	filed 	an 	unfair practice 	charge, 	alleging 	that
the 	District 	refused 	to bargain. 	The charge 	was 	dismissed 	as
untimely because 	it 	was 	filed more 	than 	six months 	after 	the
District 	first 	refused 	to bargain 	the 	issues 	set 	forth 	in 	the
Board's 	1983 	decision. 	No one 	connected 	with 	this 	case has
suggested 	that 	the 	regional 	attorney was 	incorrect 	in his
calculation of 	the 	six-month period, 	and 	its 	effect 	of barring
the 	unfair 	practice 	charge.
For reasons 	that escape me, 	however, 	the majority decision
does 	not 	apply 	a 	similar 	six-month 	limitation on 	compliance
claims. 	While 	the 	six-month 	statute 	of 	limitations 	on unfair
practice 	charges 	is 	statutory 	in 	fact, 	the 	reasons behind 	the
30

limitation period 	are 	equitable 	in 	nature. 	A 	respondent 	has
the 	right 	to protect 	itself 	from 	stale 	claims. 	The defense
against 	an 	unfair 	practice 	charge 	may be 	frustrated 	if 	records
are 	lost 	or destroyed, 	or 	if witnesses 	are no longer
available. 	Thus 	fairness, 	as well as 	the statute, 	dictate a
six-month 	limitations 	period 	on 	unfair 	practice 	charges.
This 	same 	reasoning has 	equal 	force when applied 	to 	a
compliance matter.1 Here, 	the 	District was 	under 	the
reasonable 	impression 	that 	the 	original 	case 	was 	closed 	in
November 	1983. 	A year later, 	it 	refused 	to bargain. 	Six
months 	following 	the 	refusal 	to bargain, 	neither 	an unfair
practice 	nor 	a 	request 	to 	reactivate 	compliance proceedings 	was
filed. 	Only 	some 	eight 	months 	after 	that 	refusal 	to bargain
was 	the 	unfair practice 	charge 	filed, 	and 	ten months 	after 	the
refusal 	to bargain was 	the 	request 	for 	compliance proceedings
made. 	The 	District 	would 	now be 	faced with 	a 	compliance
proceeding not 	only based 	on 	a 	refusal 	to bargain 	10 months
previously, 	but 	also 	concerning an order 	that was 	issued 	in
1983 	over 	activities 	that 	actually occurred 	in 	1977.
The Association 	was 	under 	an obligation 	to pursue
compliance within 	six months 	of 	the 	closure 	letter 	in 	1983. 	It
did 	not do so 	for 	nearly 19 	months. 	Even 	if 	the 	charging party
was 	unaware of 	the 	import of 	the 	letter 	closing 	the case, 	it
1lrn	In 	addition 	to a 	timely claim, 	in 	an unfair practice
charge 	a 	charging party must 	state 	a prima 	facie 	case 	in 	order
to get 	a hearing. 	In 	a compliance 	case, 	charging party has
merely 	to 	request 	a hearing with 	no 	further 	showing 	required.
31

was 	under 	a 	reasonable 	and 	good 	faith 	obligation 	to 	seek
compliance when 	it became 	aware of 	the 	District's 	actions 	in
October 	1984. 	Instead, 	10 months 	elapsed before a hearing was
sought. 	Certainly, 	the 	District 	could not help but be
prejudiced by 	the 	proceedings.
I 	do not 	mean by this 	opinion 	that 	compliance must 	always
be 	requested 	within 	six months 	of 	a 	Board 	decision. 	Certainly,
the parties may, 	by request, 	seek 	PERB's 	continuing
jurisdiction 	over 	a 	Board 	order. 	But 	when 	the 	case has been
closed, 	and both parties 	were 	on notice but 	did not 	oppose 	that
closure, 	a 	six-month 	limitations 	period 	on 	subsequent 	activity
related 	to the 	compliance 	case 	is 	reasonable 	and 	fair.
Furthermore, 	I 	can see no 	threat posed by this 	case 	to
PERB's 	ability 	to enforce 	compliance 	with 	our 	orders.
Compliance 	jurisdiction 	will 	always 	remain 	with 	the 	Board 	while
the parties, 	or PERB, 	wish 	it to. 	The greater harm of this
decision 	is 	in 	the 	destablizing effect 	it 	will have on 	labor
relations. 	This 	effect will 	occur because 	the majority has, 	in
effect, 	told 	advocates 	under our 	jurisdiction 	that 	a 	case
before 	PER
-B 	is 	never 	ended. 	Parties 	may now be put 	on notice
that 	at 	any point 	in 	the 	future 	after 	an 	order 	is 	issued by 	the
Board, 	a 	dissatisfied party may 	reopen 	the 	case 	to 	litigate
more. 	That 	the opposition, 	in mistaken reliance on PERB's
closure of 	the 	case, 	may have destroyed 	all 	documents 	related
to defending 	itself 	is 	simply too bad. 	In other words, 	the
majority will, 	in the name 	of protecting one party, 	deny any
32

due 	process 	to 	another. 	With 	the possibility 	that 	jeopardy
before 	PERB 	on any given 	issue 	may 	last 	indefinitely, 	parties
may 	certainly 	resist 	settlement 	or 	compliance 	in 	favor 	of
recalcitrance.
33

APPENDIX
Angle. 	Stewart
Stipend 	Spring 	1978 	$ 	1140.00*
1/2 	month 	prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	2509.50
Boyd, 	Richard
3 	units 	of 	overload 	1979-80 	$ 	1871.23
3 	units 	of 	overload 	1981-82 	2269.05
3 	units 	of 	overload 	1982-83 	2282.02
Clarke. T. 	Bruce
Stipend 	Spring 	1978 	$ 	35.00
3 	units 	of 	overload 	Spring 	1978 	832.66
1/2 	month 	prep 	time 	Fall 	1978 	1109.50
Stipend 	1978-79 	459.00
3 	units 	of 	overload 	1978-79 	1748.74
3 	units 	of 	overload 	1979-80 	1871.23
3 	units 	of 	overload 	1980-81 	2058.14
Dillon. 	Clifford F.
Stipend 	Spring 	1978 	$ 	240.00
3 	units 	of 	overload 	Spring 	1978 	832.66
1/2 	month 	prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	139.50
3 	units 	of 	overload 	1978-79 	1748.74
3 	units 	of 	overload 	1979-80 	1871.23
3 	units 	of 	overload 	1980-81 	2058.14
3 	units 	of 	overload 	1981-82 	2269.05
Elliott. 	Robert T.
Stipend 	Spring 	1978 	$ 	15.00
4.75 	units 	of 	overload 	Spring 	1978 	1318.37
1/2 	month prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	139.50
4.75 	units 	of 	overload 	1978-79 	2768.83
4.75 	units 	of 	overload 	1979-80 	2962.78
4.75 	units 	of 	overload 	1980-81 	3258.73
*A11 	figures 	have been 	rounded 	to 	the nearest 	cent.
I .

Forney, 	Lewis
Stipend 	Spring 	1978 	$ 	1025.00
Stipend 	1978 	Summer 	Session 	125.00
Hawkins. 	William Richard
3 	units 	of 	overload 	1981-82 	$ 	2269.05
3 	units 	of 	overload 	1982-83 	2282.02
Hendricks, 	Homer 	Lloyd
Stipend 	Spring 	1978 	$ 	495.00
3 	units 	of 	overload 	Spring 	1978 	832.66
1/2 	month 	prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	213.00
3 	units 	of 	overload 	1978-79 	1748.74
Hoyt, 	Franklyn
Stipend 	Spring 	1978 	$ 	480.00
4 	units 	of overload 	Spring 	78 	1110.21
1/2 	month prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	664.50
4 	units 	of overload 	1978-79 	2331.65
4 	units 	of overload 	1979-80 	2494.98
4 	units 	of overload 	1980-1981 	2744.19
4 	units 	of overload 	1981-1982 	3025.40
4 	units 	of overload 	1/2 	1982-83 	1521.35
Moolick, 	Charles
Stipend 	Spring 	1978 	$ 	240.00
3 	units 	of 	overload 	Spring 	1978 	832.66
1/2 	month prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	139.50
3 	units 	of 	overload 	1978-79 	1748.74
3 	units 	of 	overload 	1979-80 	1871.24
3 	units 	of 	overload 	1980-81 	2058.14
Munday, 	George
Stipend 	Spring 	1978 	$ 	230.00
3 	units 	of overload 	Spring 	1978 	832.66
1/2 	month prep 	time 	Fall 	1978 	1327.50
Stipend 	1978-79 	244.50
3 units 	of overload 	1978-79 	1748.74
3 units 	of overload 	1979-80 	1871.23
3 	units 	of overload 	1980-81 	2058.14
3 	units 	of overload 	1981-82 	2269.05
3 units 	of overload 	1982-83 	2282.02
ii.

O'Sullivan, 	John 	G.
Stipend 	Spring 	1978 	$ 	240.00
7.5 	units 	of 	overload 	Spring 	1978** 	2081.64
1/2 	month 	prep 	time 	Fall 	1978 	1349.00
Stipend 	1978-79 	139.50
7.5 	units 	of 	overload 	1978-79 	4371.84
7.5 	units 	of 	overload 	1979-80 	4678.08
7.5 	units 	of 	overload 	1980-81 	5145.36
7.5 	units 	of 	overload 	1981-82 	5672.63
Ownbey, 	Ronald
Stipend 	Spring 	1978 	$ 	270.00
5 	units 	of overload 	Spring 	1978 	1387.76
1/2 	month prep 	time Fall 	1978 	1392.50
Stipend 	1978-79 	213.00
5 	units 	of overload 	1978-79 	2914.56
5 	units 	of overload 	1979-80 	3118.72
5 units 	of overload 	1980-81 	3430.24
5 units 	of overload 	1981-82 	3781.75
5 units 	of overload 	1982-83 	3803.360
Peth. Howard
3 	units 	of 	overload 	1981-82 	$ 	2269.05
3 	units 	of 	overload 	1982-83 	2282.02
Ruh. 	Donald L.
Stipend 	Spring 	1978 	$ 	1250.00
Tan. 	Colleen W.
Stipend 	Spring 	1978 	110.00
3 	units 	of 	overload 	Spring 	1978 	832.66
1/2 	month 	prep 	time 	Fall 	1978 	1436.00
Stipend 	1978-79 	13.50
3 	units 	of 	overload 	1978-79 	1748.74
3 	units 	of 	overload 	1979-80 	1871.23
3 	units 	of 	overload 	1980-81 	2058.14
Thomas. 	James Robert
Stipend 	Spring 	1978 	1235.00
1/2 	month prep 	time 	Fall 	1978 	1392.50
Stipend 	1978-79 	2719.50
**The Association 	calculated 	O'Sullivan worked 	an 	extra 	10 	hours
per week. 	Based upon the 	record, 	it 	is 	found he worked 	an 	add-
itional 	15 	hours, 	translated to half 	a 	full 	load or 	7.5 units.
iii.

T O O P S . 	Gary
Stipend 	Spring 	1978 	$ 	350.00
3 	units 	of 	overload 	Spring 1978 	832.66
1/2 	month 	prep 	time 	Fall 	1978 	1207.50
Stipend 	1978-79 	102.00
3 	units 	of 	overload 1978-79 	1748.74
3 	units 	of 	overload 1979-80 	1871.23
3 	units 	of 	overload 1980-81 	2058.14
3 	units 	of 	overload 1981-82 	2269.05
3 	units 	of 	overload 	1982-83 	2282.02
Warren. 	Kenneth W.
3 	units 	of 	overload 1982-83 	$ 	2282.02
IV.