Riverside Unified School District (PERB 0750E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER #506,
Charging 	Party,
v.
RIVERSIDE 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-2609
PERB Decision No. 	750
June 29, 	1989	ASSOCIATED 	TEACHERS 	OF
METROPOLITAN 	RIVERSIDE,
Charging 	Party,
v.
RIVERSIDE 	UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-2664
Appearances: 	Best, 	Best & Krieger by Charles D. 	Field and
Bradley E. 	Neufeld, 	Attorneys, 	for Riverside Unified School
District; 	Reich, 	Adell & Crost by Marianne Reinhold for
Associated 	Teachers 	of Metropolitan Riverside.
Before Craib, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	The above cases 	are before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the 	Riverside 	Unified School 	District 	(District) 	to 	the proposed
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decision of 	the administrative 	law judge 	(ALJ).1 The California
School 	Employees Association 	(CSEA) 	alleged that on April 	20,
1987,2 the 	District unilaterally changed 	its policy regarding
smoking and the use 	of 	other tobacco products 	by 	its 	employees,
and 	refused 	to bargain the decision and 	effects 	of 	the policy.
After 	issuance of 	a complaint by PERB, 	the District 	filed 	its
answer and the parties 	submitted the matter to 	the ALJ 	on a
Stipulation of Facts 	(Stipulation) 	and written briefs. 	The
proposed decision issued on July 	21, 	1988. 	The ALJ 	found that
the District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).3
1Since both cases 	contain the 	same 	issue, 	the Board has
consolidated Case No. 	LA-CE-2609, 	Californi	----------	a School Employee	- 	- 	s
Association and 	its Chapter #506 	v. 	Riverside School 	District,
and Case No. 	LA-CE-2664, 	Associated Teachers of Metropolitan
Riverside v. 	Riverside School District, 	for the purposes of this
decision.
2A11 	dates 	hereinafter refer to 	1987 	unless 	otherwise
indicated.
3EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5(a), 	(b) 	and 	(c) 	states:
It 	shall be unlawful 	for a public 	school employer to:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of their exercise of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an exclusive 	representative.
N
	2

On October 27, 	the Associated Teachers 	of Metropolitan
Riverside 	(Association) 	filed a 	similar unfair practice 	charge
against the 	District, 	which 	filed 	an answer and Motion to
Dismiss. 	The motion was 	submitted on briefs 	and denied by the
ALJ on May 27, 	1988. 	The Association and the District then
submitted the 	case to the ALJ 	on 	stipulated 	facts 	which were
essentially the 	same as 	in the CSEA case. 	The ALJ 	issued a
proposed decision issued on August 	30, 	1988, 	in which he came to
the 	same 	conclusion he reached 	in the CSEA case. 	We reverse 	the
ALJ 	for the 	reasons 	set 	forth below.
THE 	FACTS AS 	STIPULATED
There 	is 	a 	collective bargaining agreement between CSEA and
the District 	in effect 	for the period September 	18, 	1987 	to
November 21, 	1989. 	The instant complaint arose during an
agreement dated November 22, 	1985 to November 21, 	1988, 	which
contained 	the 	following provisions:
DISTRICT 	RIGHTS
2.0 	It 	is 	agreed that the District 	retains
all of 	its power of direction, 	management and
control to the 	full 	extent of 	the 	law.
Included 	in these powers 	are the 	exclusive
rights to 	(a) 	determine its organization; 	(b)
direct the work of 	its 	employees; 	(c)
determine the hours 	of District operations;
(d) 	determine the kinds 	and levels of 	service
to be provided, 	as well as the methods and
means of providing them; 	(e) 	establish its
educational policies, 	goals and objectives;
(f) 	determine staffing patterns; 	(g)
determine 	the 	number 	and kinds 	of personnel
required; 	(h) 	maintain the efficiency of
District operations; 	(i) 	determine District
curriculum; 	(j) 	design, 	build, 	move or modify
facilities; 	(k) 	establish budget procedures
and determine budgetary allocation; 	(1)
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determine the methods of raising revenue; 	(m)
contract out work within the 	limits 	of 	law,
or 	(n) 	take action on any matter in the 	event
of an emergency. 	In addition, 	the District
Board retains the right to hire, 	classify,
assign, evaluate, promote, demote, terminate,
and discipline 	employees. 	The recital 	in no
way 	limits 	other district powers 	as 	granted
by 	law.
2.1 	The 	exercise of 	the 	foregoing powers 	of
direction, 	management, 	and control by the
District, 	the adoption of policies, 	rules,
regulations, 	and practices 	in furtherance
thereof, 	and the use of 	judgment and
discretion in connection therewith, 	shall be
limited 	only by 	specific 	and 	express 	terms 	of
this Agreement, 	and then only to the extent
such 	specific 	and 	express 	terms 	are not
contrary to 	law.
2.2 	The district retains 	its 	right 	to amend,
modify, 	or 	suspend any provision of this
Agreement 	in 	cases 	of 	emergency 	for the
reasonable period 	of 	time 	required by 	the
emergency. 	An emergency is 	a 	serious 	event,
or 	combination of 	circumstances 	beyond the
control 	of the District which requires
immediate 	action or remedy.
In event of any amendment, 	modification, 	or
suspension the District 	agrees 	to meet and
negotiate as 	soon as 	is practicable upon
demand by 	the CSEA with 	regard to 	such
action, 	the duration thereof, 	and an interim
or permanent 	successor provision.
Emergencies 	shall 	not be declared
capriciously 	or 	arbitrarily.
There was 	a 	collective bargaining agreement 	in effect
between the Association and 	the 	District 	for the period July 	1,
1985 to June 30, 	1988, 	which contained the following provisions:
DISTRICT 	RIGHTS
Section 1 	- District Powers, 	Rights and
Authority. 	It 	is 	understood and agreed that,
except as 	limited by the terms 	of this
agreement, 	the District retains all of 	its
powers and authority to direct, 	manage, 	and
,.

control 	to the 	extent 	allowed by the 	law.
Included in, 	but not limited to, 	those duties
and powers 	are the right to: 	Determine 	its
organization; 	direct the work of 	its
employees; 	determine the times 	and hours 	of
operation; 	determine the kinds and levels 	of
services 	to be provided and the methods 	and
means 	of providing them; 	establish its
educational policies, 	goals, 	and objectives;
insure 	the 	rights 	and 	educational
opportunities 	of 	students; 	determine 	staffing
patterns; 	determine the number and kinds 	of
personnel 	required; 	maintain the 	efficiency
of District operations; 	determine District
curriculum; design, build, move, or modify
facilities; 	establish budget procedures and
determine budgetary allocations; 	determine
the methods 	of raising revenue; 	contract out
work when present 	employees 	are 	not 	available
to perform 	such work; 	and take 	any action on
any matter 	in the 	event 	of 	an emergency as
provided in Section 3 	therein. 	In addition,
the District retains 	the right to hire,
classify, assign, evaluate, promote, demote,
terminate, 	and discipline employees. 	This
recital 	in no way 	limits 	other district
powers 	as 	granted by 	law.
Section 2 	- Limitation. 	The exercise of the
foregoing powers, rights, authority, duties,
and responsibilities by the District, 	the
adoption of policies, rules, regulations, 	and
practices 	in furtherance thereof, 	and the use
of 	judgment 	and discretion 	in 	connection
therewith, 	shall be 	limited only by the
specific 	and express 	terms 	of 	this Agreement,
and then only to 	the 	extent 	such 	specific 	and
express 	terms 	are 	in conformance with 	law.
Section 3 	- Emergencies. 	The District
retains 	its 	right to 	suspend this Agreement
in cases 	of 	emergency 	for the 	reasonable
period 	of 	time 	required by 	the 	emergency.
Emergencies 	shall 	include, 	but not be limited
to, 	national, 	state, 	or county declared
emergencies 	and natural disasters.
Emergencies 	shall 	not be declared
capriciously, 	arbitrarily, 	or in retaliation
for the 	exercise of 	employee rights.
5 5

The 	conduct 	complained of 	on the part 	of 	the 	District
occurred during the 	existence 	of 	these 	agreements.
The 	subject 	of 	smoking policies 	for all 	employees 	of 	the
District 	had never been 	expressly 	agreed 	to by 	the parties 	and,
before April 	20, 	had not been promulgated 	in any formal written
policies or rules. 	Prior to April 20, 	however, 	the District had
maintained 	designated 	smoking 	areas 	for 	employees 	within 	District
facilities. 	Thus, 	employees were permitted to 	smoke in most
employee 	lounges, 	certain employer restrooms 	and custodial
offices, 	teacher workrooms 	and other areas where 	staff 	gathered.
Custodial, 	maintenance and groundskeeping employees were 	also
permitted to 	smoke 	outside of 	District buildings. 	All 	District
facility 	sites 	maintained 	at 	least 	one 	area where 	employees 	were
allowed 	to 	smoke. 	Although there was 	no 	formal 	District-wide
rule prohibiting 	employees 	from 	smoking 	in the 	general 	vicinity
of 	students, 	some employees 	refrained from doing 	so as 	a matter
of 	courtesy.
In a 	report to 	the 	District's 	governing board dated
March 	11, 	District Superintendent George C. 	Lantz 	stated:
In December 	1986, 	the Board of Education
acted 	to 	rescind 	its 	policy on 	smoking 	areas
for 	students 	in keeping with changes 	in the
Education Code. 	At that time, 	you asked me
to review the 	current district practices 	that
pertain to 	the 	restriction of 	smoking by
staff members 	and the public. 	Further, 	you
directed me 	to 	explore 	the 	alternatives 	that
might be 	feasible 	in 	increasing 	the
stringency of 	those 	regulations 	in keeping
with the 	increasing 	evidence 	about 	the
detrimental 	effects 	of 	smoking and 	smoke
inhalation.
6
6

Thereafter, 	the report 	summarized the then-current District
policy permitting 	District 	employees 	to 	smoke 	in designated
areas, 	noting that, 	"Very few of our facilities are posted as 	'no
smoking areas'." 	The report 	contended that 	the Education Code 	is
silent 	as 	to whether or not a 	school board may prohibit 	smoking
in any of 	its 	facilities 	and, 	although it 	cited Education Code
section 	35176.5,4 it did not discuss 	any possible 	conflict that a
4Section 35176.5 	states:
The 	governing 	board 	of 	every 	school 	district
shall 	adopt policies 	regarding 	the
designation of 	employee 	smoking 	areas 	or
lounges 	at 	each 	school 	site. 	these policies
may include, 	but not be limited to, 	the
establishment 	of procedures 	for the
determination of 	employee 	smoking areas 	by a
majority vote 	of 	the teachers 	and other
school 	employees 	at 	each 	school.
This 	section shall 	remain 	in effect only
until January 	1. 	1989 	and on that date is
repealed, 	unless 	a 	later enacted statute,
which 	is 	chaptered 	before 	January 	1, 	1989,
deletes 	or extends 	such date.
(Emphasis 	added.)
Section 	35176.6 	states:
A teacher or other 	school 	employee 	shall 	not
smoke 	on the grounds 	of 	any public 	school
except 	in the 	areas 	designated 	for employee
smoking by 	the 	governing board 	of 	the
district.
This 	section shall 	remain 	in effect only
until January 	1. 	1989. 	and on that date 	is
repealed, unless a. later enacted statutes,
which is 	chaptered before January 	1. 	1989.
deletes 	or extends 	such date.
(Emphasis 	added.)
7

total 	ban on 	smoking within the 	District's 	facilities 	might 	have
with 	that 	section.
The 	report 	suggested two alternative policies. 	The 	first
policy would 	incorporate 	Education Code 	section 	35176.5 	and
additionally would prohibit 	smoking 	at 	all 	scheduled 	and
mandatory meetings 	held 	in District 	facilities. 	The 	second
alternative would prohibit 	smoking, 	by 	statement 	of policy,
within all 	District 	facilities 	and on the grounds 	of 	District
facilities when 	students were present. 	The report 	recommended
that 	if 	the 	second alternative were 	adopted by 	the 	governing
board, 	it 	should be 	implemented 	in two 	stages. 	The District
would at 	first 	implement 	a ban on 	smoking at mandatory 	and public
meetings, 	and then implement the ban in all 	District 	facilities
and on the grounds 	thereof when 	students 	are present. 	The 	report
concluded 	that 	information 	concerning 	stop-smoking 	clinics 	should
be 	distributed 	to 	District 	employees 	along with 	the 	text 	of 	any
written 	anti-smoking policies.
In early April, 	CSEA discovered that the District 	intended
to 	establish a 	smoking policy 	affecting 	all 	District 	employees.
By 	letter dated April 	14, 	CSEA requested that the 	District meet
and 	negotiate 	regarding 	the 	adoption of 	the 	smoking 	rules 	and
regulations, 	as 	they would apply to classified employees. 	On
April 	20, 	the 	District's 	governing board adopted policy 	#3513.3
which provides 	as 	follows:
8

BUSINESS/OPERATION 	AND 	MAINTENANCE
1.0 	SMOKING AT 	DISTRICT 	FACILITIES
The 	Board 	recognizes 	the 	evident 	health
hazards 	in the use of 	tobacco products 	and
the 	rising trend 	in 	society to 	control 	or
eliminate the practice of 	the use of 	these
products 	in public buildings 	and areas. 	The
Board therefore, 	in the best interests 	of the
district 	and 	its 	employees 	and pupils,
directs 	the Superintendent 	to develop rules
and regulations 	regarding this policy, 	which
will become effective July 	1, 	1987.
Also on April 	20, 	the District presented proposed rules 	and
regulations 	regarding the 	smoking policy 	to 	the 	governing board,
which 	approved the rules 	and regulations 	the 	same day. 	The 	text
of 	these proposed rules 	and regulations 	reads 	as 	follows:5
RIVERSIDE 	UNIFIED 	SCHOOL 	DISTRICT 	Rules 	and 	Regulations
#3513.3
(Ref. 	Policy #3513.3)
BUSINESS/OPERATIONS 	AND 	MAINTENANCE
1.0 	SMOKING AT 	DISTRICT 	FACILITIES
Effective July 	1, 	1987, 	smoking and the use
of 	tobacco products 	is prohibited within any
District building or 	facility. 	In addition,
smoking or the use of 	tobacco products 	by
District 	employees 	is prohibited on 	school
grounds when pupils 	are 	in the general
vicinity.
1.1 	A 	transition period will 	exist
between April 21, 	1987 and July 	1,
1987 	during which 	smoking and the
use of 	tobacco products will be
prohibited 	in all 	meetings 	held 	in
5The 	above-referenced 	smoking 	policy 	and 	derivative 	rules
and 	regulations 	shall 	be 	collectively 	referred to 	as 	"smoking
policy" 	for the purpose of 	this 	decision.
99

district 	facilities 	at which
employees 	are 	in attendance.
2.0 	EMPLOYEE 	ASSISTANCE
The 	district will prepare 	and 	make 	available
to 	employees 	a 	list of 	clinics 	and other
agencies 	that provide programs 	which assist
individuals who wish 	to 	stop 	smoking or using
other tobacco products.
CSEA again requested, 	by letter dated April 	21, 	that the
District meet and negotiate 	concerning the 	smoking policy. 	At 	a
meeting 	conducted on May 	6, 	CSEA reiterated this 	request. 	The
District refused to negotiate at the May 	6 	meeting, 	stating that
its 	restrictions 	on 	smoking and the use 	of 	other tobacco products
were not negotiable. 	By letter dated May 	7, 	CSEA 	set 	forth the
parties' 	positions, 	and stated its 	intent to file unfair practice
charges with PERB.
By 	letter dated May 	5, 	the Association requested that 	the
District 	meet 	and 	negotiate 	concerning the 	smoking policy. 	The
District 	informed the Association, 	by letter dated May 	6, 	that 	it
did 	not 	believe 	the 	smoking 	restrictions 	were matters 	within 	the
scope of representation. 	On June 	5, 	the District formally
refused to 	negotiate with 	the Association.
In both cases, 	the parties 	stipulated that the new smoking
policy 	impacted 	on all 	employees 	of 	the 	District 	and 	that 	the
rules were implemented in two 	stages, 	as proposed. 	Employees 	are
currently permitted 	to 	smoke 	and 	to 	use 	other tobacco products
only 	outside 	District 	facilities 	and 	at 	times when 	students 	are
not 	in the general 	vicinity.
10

THE 	ALJ 	DECISIONS
The ALJ 	concluded 	in both 	cases 	that 	the 	District 	had
established 	a past practice 	regarding 	smoking and 	the 	use 	of
other tobacco products 	by 	employees 	and that the April 	20 	smoking
policy represented, 	in part, 	an unlawful unilateral 	change which
the 	District was 	required 	to 	negotiate pursuant 	to 	EERA 	section
3543.2(a).6 Citing Anaheim Union High 	School District 	(1981)
PERB Decision No. 	177, 	the ALJ 	found the portion of the new
6Section 3543.2(a) 	states:
(a) 	The 	scope of representation 	shall be
limited to matters 	relating to wages, 	hours
of employment, 	and other terms 	and conditions
of employment. 	"Terms 	and conditions 	of
employment" 	mean health 	and welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class 	size, 	procedures to be
used for the evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	and the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant to Section 	44959.5 	of 	the Education
Code. 	In addition, 	the exclusive
representative 	of 	certificated personnel 	has
the right 	to consult 	on the definition of
educational objectives, 	the determination of
the content of 	courses 	and curriculum, 	and
the 	selection of textbooks 	to the 	extent 	such
matters 	are within the discretion of 	the
public 	school 	employer under the 	law. 	All
matters 	not 	specifically 	enumerated 	are
reserved to 	the public 	school 	employer 	and
may not be 	a 	subject of meeting and
negotiating, 	provided that nothing herein may
be 	construed to 	limit 	the 	right of 	the public
school 	employer 	to 	consult with any 	employees
or 	employee 	organization on any matter
outside 	the 	scope of 	representation.
11

policy, 	that prohibited 	smoking 	inside 	District 	facilities
outside 	the view of 	students, 	to be a working condition
reasonably 	related to the 	health 	and 	safety of 	all 	employees 	and,
therefore, 	negotiable. 	He concluded that those portions 	of the
rules prohibiting 	smoking 	in the view and presence 	of 	students,
and 	during meetings 	in District 	facilities 	where 	students 	were
present, 	were within the District's managerial prerogatives 	as
relating 	to 	student's 	health and 	safety 	and to 	having 	employees
set a positive role model 	for 	students. 	The ALJ 	found that 	the
portion 	of 	the 	smoking policy he 	approved was 	related 	to
Education Code 	section 48901.7
THE 	DISTRICT'S 	EXCEPTIONS
The 	District 	excepts 	generally 	to 	the ALJ's 	conclusion that
its 	smoking policy 	is 	negotiable on the 	ground 	that 	it 	is
carrying 	out 	a 	state 	mandated mission 	to 	discourage 	students 	from
smoking. 	It 	excepts 	specifically to the ALJ's 	findings 	that the
policy was 	directed primarily at 	the 	health and 	safety 	of
7Education Code 	section 48901 	states:
(a) 	No 	school 	shall permit the 	smoking or use
of 	tobacco, 	or any product 	containing tobacco
or nicotine products, 	by pupils of the 	school
while the pupils are on 	* 	* 	* 	campus, 	or
while 	attending 	school-sponsored 	activities
or while under the 	supervision and control 	of
school district employees.
(b) 	The governing board of 	any 	school
district maintaining 	a high 	school 	shall 	take
all 	steps 	it deems practical to discourage
high 	school 	students 	from 	smoking.
12

- -
employees 	on the ground 	that 	the policy was 	intended to protect
the health of 	students, 	employees 	and the public.8
DISCUSSION
The 	issue 	raised in this 	case 	is whether the prohibition of
smoking and use 	of 	other tobacco products 	in District buildings
and 	facilities 	is 	a nonnegotiable 	fundamental 	educational 	policy
or 	a working 	condition negotiable 	under 	section 	3543.2 	of 	EERA.
Whether a matter is 	negotiable under EERA 	is 	determined by
the provisions of section 3543.2(a).9 Section 3543.2(a) 	provides
that matters 	not 	specifically 	enumerated 	in the 	statute 	are
reserved to the 	employer. 	More 	specifically, 	the District's
contracts 	with CSEA 	and with 	the Association contain management
rights 	clauses 	under which 	the 	District 	expressly 	retains 	the
authority to 	establish educational policies, 	goals 	and
objectives, 	and to determine 	the kinds and 	levels 	of 	services 	to
be provided and the means 	and methods 	of providing them. 	The
contract with the Association also provides 	the 	District with 	the
power to 	insure the rights 	of 	students. 	Both contracts 	give 	the
District the right to adopt powers, 	rules 	and regulations 	to
implement its authority. 	Pursuant to these retained powers, 	the
District has 	implemented a 	smoking policy designed 	to 	further 	a
8The 	District 	also 	challenges 	the ALJ's 	interpretation of
the parties' 	stipulation of 	facts 	regarding the 	scope of 	the
restriction on 	smoking outdoors. 	We do not 	find this 	factual
dispute to be determinative of 	the 	issue 	raised 	in this 	case.
The 	District has 	also requested 	oral 	argument. 	Said 	request 	is
denied.
9See fn. 	6, 	supra.
13

legislatively 	mandated 	goal 	of 	discouraging 	students 	from 	smoking
and to provide 	a 	smoke-free 	environment 	for the 	students 	and the
general public. 	As discussed 	in more detail below, 	California
legislation 	certainly 	lends 	strong 	support 	to 	the 	District's
exercise 	of 	its 	retained powers. 	The District 	could reasonably
conclude 	that 	if 	it 	allowed teachers 	to 	smoke 	in building
facilities, 	it would not be doing everything it 	could do to
safeguard the 	students' 	right to a 	smoke-free 	environment and to
provide positive role models 	for its 	students.
This 	is 	a 	case of 	first 	impression before PERB. 	Although
decisions 	of 	other 	state boards 	and 	courts 	are 	not 	controlling on
this 	Board, 	we 	find the 	case 	of 	Chambersburg Area 	School 	District
v. 	Pennsylvania Labor Relations Board, 	et al. 	(1981) 	430 A.2d 740
[110 LRRM 2251], 	instructive. 	In that case, 	a Pennsylvania court
reversed 	a decision of 	the 	Pennsylvania 	Labor 	Relations 	Board
which had overturned 	a ban on 	smoking 	in 	all public 	school
buildings 	imposed by the Chambersburg Area 	School 	District. 	The
Pennsylvania 	Supreme 	Court 	requires 	a balancing 	test10 based 	on
Pennsylvania 	statutes 	which provide 	for 	collective 	bargaining
over 	"wages, 	hours and other terms and conditions 	of
1111
10Pennsylvania Labor Relations 	Board v. 	State College Area
School District, 	and the Board of School Directors 	(1975) 	461 	Pa,
494, 	337 A.2d 	262 	[90 	LRRM 2081].
11The Public Employee Relations Act of July 23, 	1970 	(Act
195), 	is codified at 43 P.S. 	section 1101 et. 	seq.
14

employment"12 but preserve managerial prerogatives 	in the
following way:
Public 	employers 	shall 	not be 	required to
bargain over matters 	of 	inherent 	managerial
policy, 	which 	shall 	include but 	shall 	not be
limited to 	such areas 	of discretion or policy
as 	the 	functions 	and programs 	of 	the public
employer, 	standards of services, 	its overall
budget, 	utilization of technology, 	the
organizational 	structure 	and 	selection 	and
direction of personnel. 	Public 	employers,
however, 	shall be required to meet and
discuss 	on policy matters 	affecting wages,
hours 	and terms 	and 	conditions 	of 	employment
as well 	as 	the 	impact 	thereon upon request by
public 	employee 	representatives.
(43 P.S. 	section 1101.702)
The 	statutes 	essentially 	require 	that 	a balance 	be
maintained between mandatory 	subjects 	of 	bargaining 	and
managerial policy guided by 	"the public 	interest 	in providing 	for
the 	effective 	and 	efficient performance 	or 	the public 	service 	in
question."13
The court 	in Chambersburg, 	supra. 	applied the 	statutory test
and upheld the District's 	smoking policy, 	stating:
We 	conclude 	that 	the 	School 	District 	acted 	in
furtherance 	of 	its 	duty to promote education
when it adopted the smoking policy. 	. 	. 	.
This conclusion, 	however, 	does not
necessarily remove the policy as 	a 	subject of
mandatory bargaining. 	We must 	also determine
under the 	State College 	test whether the
policy 	is 	a matter of 	fundamental 	concern to
the interests of the employees 	in wages,
hours 	and other terms 	and 	conditions 	of
employment. 	We note that, 	based on
1243 P.S. 	section 1101.701.
13Pennsylvania Labor Relations 	Board, 	supra. 	461 	Pa. 	506,
337 A.2d 268.
15

substantial 	evidence, 	the Board found as 	fact
that 	teachers 	and 	custodians 	had 	smoked 	in
School 	District buildings 	since 	at 	least
1959. 	The Board, 	therefore, 	concluded that
smoking had been a working condition. 	In
State College 	the 	Supreme Court 	seemingly
endorsed 	the view that 	"terms 	and 	conditions"
are 	"something more 	than minimal 	economic
terms of wages 	and hours, 	but something less
than the basic 	educational policies 	of 	the
board of education." 	State College, 	461 	Pa.
at 	506, 	337 A.2d at 	268 	. . . . 	Using 	this
definition we 	might 	conclude 	that 	smoking 	is
not 	a working condition in the 	instant case
and thus 	not a matter of 	fundamental 	concern
to the employees' 	interests. 	Even if it is a
working condition, 	we are convinced that 	in
striking 	a balance 	the 	educational 	motive
behind the policy outweighs 	any 	impact 	on the
employees' 	interests. 	We repeat that the
paramount 	consideration 	in reaching 	this
balance 	is 	the public 	interest 	in providing
effective 	and 	efficient 	education 	for the
School District's students. 	We, 	therefore,
conclude 	that the 	smoking ban 	is 	an 	inherent
managerial policy 	and 	not 	a mandatory 	subject
of bargaining.
It was 	apparently 	stipulated 	in the 	Chambersburg 	case 	that
the ban was 	imposed 	for the 	following reasons:
1) 	The ban would further the goal of
consistency 	among 	ongoing 	school 	programs
directed against 	smoking; 	2) 	the ban would be
part 	of 	a 	necessary 	regulatory 	scheme 	for
students in the public 	schools; 	3) 	the ban
would 	supplement 	the 	role 	modeling efforts 	of
parents who do 	not direct 	their children
against smoking; 	4) 	the total ban on smoking,
by virtue 	of 	its 	application to 	School
District employees and students 	alike, 	would
generate 	respect 	among 	students 	for 	school
authority, 	thereby improving discipline; 	5)
the 	ban would 	lend recognition 	to 	the plight
of the non-smoker; 	and 6) 	the ban would
reflect and 	emphasize the hazards 	of 	smoking.
In the 	case under consideration, 	the District did not
articulate 	its 	reasons 	for 	implementing 	its 	smoking policy 	in as
16

much detail 	as 	did the district 	in Chambersburg.14 Yet 	the
reasons 	articulated by the district 	in Chambersburg 	for 	imposing
a 	smoking ban are 	equally valid 	and persuasive 	in the 	instant
case. 	Furthermore, 	information accumulated since 	1981, 	when
Chambersburg was decided, 	on the hazards 	of 	smoking to 	smokers
and nonsmokers 	alike has 	rendered the detrimental 	impact 	of
smoking 	in an educational 	environment no 	longer open to 	question.
We 	therefore adopt 	the analysis 	of 	the Chambersburg 	court 	in
finding that 	the 	smoking policy 	in question here 	is 	not 	a
mandatory 	subject 	of 	bargaining.
Based upon the 	foregoing, 	we are not certain it 	is 	even
necessary 	to 	apply 	the 	analysis 	set 	forth 	in Anaheim Union 	High
School District, 	supra. 	PERB Decision No. 	177. 	Applying the
Anaheim test, 	however, 	we come to the same result.
In Anaheim, 	this 	Board 	established a 	three-pronged 	test 	for
determining whether matters 	not 	specifically 	enumerated 	are 	in
fact negotiable under section 3543.2. 	In that decision, 	the
Board 	stated:
. 	. 	. 	a subject is negotiable even though not
specifically enumerated if 	(1) 	it 	is
logically and 	reasonably 	related 	to hours,
wages 	or 	an 	enumerated term and 	condition of
employment, 	(2) 	the subject is of such
concern to both management 	and 	employees 	that
14The dissent 	apparently 	concedes 	that had 	it 	more 	clearly
incorporated 	into 	its 	policy 	statement 	the 	obvious 	benefits 	to
students 	of 	its 	non-smoking policy, 	the District 	could have
legally 	implemented 	its 	smoking restrictions. 	Such an argument
begs 	the 	question 	since 	the 	District's 	expressed motivation 	is
not 	determinative 	of whether 	its 	policy 	actually 	furthers 	the
District's 	educational 	mission and 	comports 	with 	legislative
direction.
-
17

conflict 	is 	likely to 	occur and the mediatory
influence of 	collective negotiations 	is 	the
appropriate means 	of 	resolving 	the 	conflict
and 	(3) 	the employer's obligation to
negotiate would 	not 	significantly 	abridge 	his
freedom to 	exercise 	those managerial
prerogatives 	(including matters 	of
fundamental policy) 	essential to the
achievement of 	the 	District's 	mission.
This 	test was 	approved by the California 	Supreme Court 	in
San Mateo City 	School District v. 	Public 	Employment 	Relations
Board 	(1983) 	33 Cal.3d 850, 	191 Cal.Rptr 800, 	663 P.2d 523.
Applying Anaheim, 	the ALJ 	found 	that 	the 	smoking policy was
intended by 	the 	District 	to 	relate primarily to 	the health 	and
safety of District 	employees, 	rather than to 	students 	and the
general public. 	As 	such, 	the ALJ 	concluded that 	the policy was
reasonably 	related 	to 	"safety 	conditions 	of 	employment," 	an
enumerated term in section 3 542.2, 	and was 	therefore negotiable.
The ALJ's position 	is 	not 	supported by the record. 	The District
superintendent was 	specifically requested to adopt 	rules 	and
regulations 	to 	implement 	the District board's 	smoking
policy 	". 	. 	. i n the best 	interests 	of the district and its
employees 	and pupils."15
It was 	in response to this directive that the 	superintendent
rendered his report dated March 	11, 	1987, 	which resulted in the
April 	20 	policy prohibiting 	smoking within the 	District
facilities. 	Clearly, 	in formulating its policy, 	the District
board had 	in mind not 	only the health 	interests 	of 	the 	employees,
15The 	full 	text of the policy is 	set 	forth on page 	7 	of 	this
decision.
18

but also those of the 	students and public. 	Thus, 	based on our
finding 	that 	the policy was 	implemented to 	alleviate 	a potential
health hazard 	to 	all persons who 	may 	enter public 	school
facilities, 	as 	opposed to assuring the 	safety of 	employees 	only,
we 	conclude 	the Association and CSEA 	failed 	to 	meet 	the 	first
prong of 	the Anaheim test.
Neither 	is 	the 	second prong of Anaheim 	satisfied. 	The
subject 	of 	smoking 	is 	not one that divides people along
management-union lines, 	but rather tends 	to 	split 	smokers 	and
nonsmokers 	in both camps. 	Additionally, 	as more fully explained
below, 	the Legislature has 	spoken on the matter of 	regulation of
smoking, 	and the District has 	taken action consistent with the
legislative mandate. 	Collective 	negotiations 	between the
District 	and 	employee organizations 	is 	not 	an appropriate means
of 	dealing with this 	public 	health hazard.
Finally, 	and most significantly, 	the District's obligation
to 	bargain would 	significantly 	abridge 	its 	freedom to 	exercise
managerial prerogatives 	essential 	to the 	achievement of 	its
mission. 	We 	conclude 	that the prohibition against 	smoking 	in
District 	buildings 	and 	facilities 	and on 	school 	grounds 	when
pupils 	are 	in the general vicinity 	is 	not a working condition or
matter of fundamental concern to the employees, 	but is 	a matter
of 	basic 	educational policy within the 	managerial prerogative 	of
the 	District. 	Our conclusion 	is 	further 	supported by the 	clear
mandate 	now 	found within 	California 	legislation 	aimed 	at
alleviating 	the hazards 	of the presence 	and use of 	tobacco 	in the
19 	.

educational 	environment, 	public 	buildings 	and on public 	carriers
of 	transportation.
As 	a part 	of 	the California 	Indoor Clean Air Act of 	1976
(Health and Safety Code, 	section 25940, 	et seq.), 	the Legislature
adopted 	Health 	and 	Safety Code 	section 	25940.5 	which 	states:
The Legislature 	finds 	and declares 	that
tobacco 	smoke 	is 	a hazard to the health of
the general public.
In 	1987, 	as a part of the same Act, 	the Legislature enacted
Article 	2 	relating to 	smoking on private 	and public
transportation. 	Health and Safety Code 	section 25948 	states:
(a) 	The Legislature hereby finds 	and
declares 	that 	the United 	States 	Surgeon
General's 	1986 	Report on the Health
Consequences 	of 	Involuntary 	Smoking 	concludes
all 	of the 	following:
(1) 	Involuntary smoking is 	a cause of
disease, 	including lung cancer, 	in healthy
nonsmokers.
(2) 	The children of parents who 	smoke
compared with the 	children of 	nonsmoking
parents 	have an 	increased 	frequency of
respiratory infections, 	increased respiratory
symptoms, 	and slightly smaller rates of
increase 	in lung 	function as 	the 	lungs
mature.
(3) 	The 	simple 	separation of 	smokers 	and
nonsmokers within the 	same air 	space may
reduce, 	but does not eliminate, 	the exposure
of 	nonsmokers 	to 	environmental 	tobacco 	smoke.
(b) 	The Legislature 	further finds 	and
declares 	the 	following:
(1) 	Nonsmokers have no adequate means to
protect 	themselves 	from the damage 	inflicted
upon 	them when 	they 	involuntarily 	inhale
tobacco 	smoke.
20

(2) 	Regulation of 	smoking in public places
is necessary to protect the health, 	safety,
welfare, 	comfort, 	and environment of
nonsmokers.
(c) 	It is, therefore, 	the intent of the
Legislature, 	in enacting this article, 	to
eliminate 	smoking 	on public 	transportation
vehicles.
Additionally, 	section 25949 provides:
It 	is unlawful 	for any person to 	smoke
tobacco or any other plant product 	in any
vehicle of a passenger 	stage corporation, 	the
National 	Railroad 	Passenger 	Corporation
(Amtrak) 	except to the extent permitted by
federal 	law, 	in any aircraft except to the
extent permitted by federal 	law, 	on a vehicle
of 	an 	entity 	receiving 	any 	transit 	assistance
from the 	state.
With respect to our California 	schools, 	the Legislature, 	by
a 	1986 	amendment to 	Education Code 	section 	48901 	directed that:
(a) 	No 	school 	shall permit the 	smoking or
use of tobacco, 	or any product 	containing
tobacco or nicotine products, 	by pupils 	of
the school while the pupils 	are on campus, 	or
while 	attending 	school-sponsored 	activities
or while 	under the 	supervision and 	control 	of
school district employees.
(b) 	The governing board of any 	school
district maintaining a high 	school 	shall 	take
all 	steps 	it deems practical 	to discourage
high 	school 	students 	from 	smoking.
(Emphasis 	added. ) 1 6
16Prior to the 	1986 amendment, 	subdivision 	(a) 	of 	section
48901 	read:
The 	governing board 	of 	any 	school 	district
maintaining a high 	school may adopt rules 	and
regulations 	permitting 	the 	smoking 	and
possession of 	tobacco on the 	campus of 	a high
school 	or while under the 	authority of 	school
personnel by pupils 	of the high 	school.
However, 	those rules and regulations 	shall
not permit pupils 	to 	smoke 	in any 	classroom
21

Prior authority, 	Education Code 	sections 	35176.5 	and
35176.6, 	which delegated to 	school boards 	the task of
establishing 	smoking policies 	and 	areas 	by a majority vote 	of 	the
teachers and employees, 	was repealed as of January 	1, 	1989.17
The 	implementation of 	the District's 	smoking policy was 	a
direct 	response 	to 	the 	Legislature's 	clear message 	regarding 	the
health 	hazards 	of 	smoking 	and 	specific 	direction to 	school
districts 	"to take all 	steps 	[they] 	deem practical 	to discourage
high 	school 	students 	from 	smoking." 	We believe 	that 	negotiations
regarding 	implementation of 	the 	policy would 	abridge 	the
District's 	rights 	to 	accomplish 	this 	legislatively mandated
mission and 	its 	rights 	to determine 	general 	educational policy.
Thus, 	we 	find the third prong of the Anaheim test 	is 	not
satisfied 	and 	that 	the 	smoking policy 	is 	not 	negotiable 	under
section 3543.2.
In reaching his 	conclusion to the 	contrary, 	the ALJ relied
upon 	three 	cases 	decided by the 	New York Public 	Employment
or 	other 	enclosed 	facility which 	any 	student
is 	required to 	occupy or which 	is 	customarily
occupied by 	nonsmoking 	students.
Consistent with the amendment to 	section 48901, 	section
48900 was 	also 	amended in 	1986 	to 	clarify that possession of
specified 	tobacco 	or 	nicotine products 	by 	students 	would be
grounds 	for 	suspension or 	expulsion.
17See footnote 4, 	supra.
-
22

Relations 	Board.18 Two of 	the 	cases 	resulted 	in the 	overturning
of a 	smoking ban in school districts. 	The other case 	involved a
partial 	reversal 	of 	a 	smoking ban 	in an elderly health 	care
facility. 	These 	cases 	are distinguishable 	from the 	instant 	case
because 	the 	New York Legislature has 	failed 	to 	enact 	any general
policy relating to 	smoking 	except 	to 	impose 	a ban 	in certain
specifically 	listed public 	areas.19 In each 	of 	the New York PERB
cases, 	which overturns a 	smoking ban, 	the decision relies upon
the New York Legislature's 	failure 	to 	adopt 	a 	general 	non-smoking
policy. 	In balancing the competing rights, 	the New York PERB, 	in
the 	absence of 	legislative mandate, 	can afford to give 	less
weight 	to 	the managerial 	goal 	of providing a 	smoke 	free
environment. 	As noted above, 	such is not the case in California.
Equally unpersuasive 	are 	cases 	emanating 	from the private
sector decided by the National 	Labor Relations 	Board 	(NLRB).
(Chemtronics. 	Inc. 	and Industrial Production Employees. 	Local 42
(1978) 	236 NLRB 	178 	[98 LRRM 	1559]; 	see also Commonwealth of
Pennsylvania v. 	Pennsylvania. 	Pennsylvania Labor Relations 	Board
(1983) 	74 Pa, 	Commw. 	1, 	459 A.2d 452 	[113 LRRM 3052],
emphasizing 	the difference between the 	school 	environment 	and 	the
private work place.) 	Considering the 	importance of 	education 	in
our 	society, 	the 	imposition of 	the 	smoking policy to 	further 	the
18Steuben-Allecrany Boces 	(1980) 	13 NY - PERB 4511; 	County of
Niagara 	(Mount View Health Facility) 	(1988) 	21 NY - PERB 	3014;
and Rush-Henrietta Employees' 	Association. 	Buildings and Grounds,
Bus Mechanics Chapter. 	NYSUT/AFT. 	AFL-CIO 	(1988) 	21 NY - PERB
3023.
19New York Public Health Law No. 	1399.
23

goal 	of providing a 	smoke 	free 	educational 	environment 	is well
justified. 	Even more 	significantly, 	the unique relationship
between teacher and pupil, 	in which the teacher is 	the role model
and 	exerts 	a 	significant 	influence 	on 	student behavior, 	supports
the 	District's 	adoption of 	a 	strict 	standard of 	conduct 	regarding
smoking.
CONCLUSION
The public 	endorsement 	of 	the 	United 	States 	Surgeon
General's 	1986 	Report on the Health Consequences 	of 	Involuntary
Smoking 	and the 	very broad 	and general 	grant 	of 	authority 	to
school districts 	in Education Code, 	section 48901, 	eliminates any
doubt 	that 	outright prohibition of 	smoking 	in public 	school
buildings 	and 	facilities 	is 	a 	reasonable means 	and a proper 	step
for the 	District to 	take 	to 	fulfill 	its 	legislatively mandated
mission of discouraging high 	school 	students 	from 	smoking. 	By
enacting the 	smoking policy, 	the District 	is 	exercising 	its
retained rights 	to decide the 	type 	and 	level 	of 	services 	to be
provided 	and 	to 	determine 	and 	implement 	educational policies,
goals 	and objectives. 	The April 	20 	smoking policy 	still permits
smoking outside 	the buildings 	when not 	in the vicinity of
students. 	While 	the policy may 	incidentally create an
inconvenience to employees who do 	smoke, 	the inconvenience 	is
clearly 	outweighed 	by 	the 	legislatively 	sanctioned 	goals 	of 	the
District.
24

ORDER
For the 	foregoing reason, 	the unfair practice charges 	in
Case Nos. 	LA-CE-2609 	and LA-CE-2644 	are DISMISSED.
Member Camilli 	joined in this 	Decision.
Member Craib's dissent begins 	on page 	26.
25

Member Craib, 	dissenting: 	I 	cannot agree with the analysis
in the majority decision. 	While 	I 	am not unsympathetic 	to the
desires 	of 	the Riverside Unified School 	District 	(District) 	to
provide all of 	its 	employees with a 	smoke-free work place, 	I 	do
not 	believe 	that 	such a 	result 	can be 	accomplished by 	District
fiat.
As 	the majority points 	out, 	the administrative 	law judge
(ALJ) 	found that the portion of 	the District's policy which
prohibited 	smoking 	in the presence 	of 	students was 	within the
District's 	managerial prerogative 	to 	maintain an orderly 	campus
and to have 	its 	employees 	set positive 	role models 	for 	students
and, 	thus, 	did not violate the Educational Employment Relations
Act (EERA or Act), 	section 3543.5, 	subdivisions (a), 	(b) or (c).1
To 	reach this 	conclusion, 	the ALJ 	relied on the 	legislative
mandate 	found 	in Education Code 	section 48901,2 which directs
school 	districts 	to 	take measures 	necessary to discourage
students 	from 	smoking. 	The ALJ 	reasoned that 	to permit 	employees
to 	smoke 	in the view of 	students, 	who are prohibited pursuant to
Education Code 	section 	48901 	from 	smoking 	on 	school 	property,
could 	lead to 	student unrest. 	Additionally, 	he 	found that the
District was 	entitled to have 	its 	employees 	serve 	as 	role models
EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code. 	For the complete text of 	section 3543.5,
subdivisions 	(a), 	(b) and (c), 	see fn. 	3 of the majority
decision.
2For the 	complete text of Education Code 	section 48901, 	see
fn. 	7 	in majority decision.
26

to discourage 	students 	from 	smoking. 	The 	"mission" 	of the
District would, 	thus, 	be 	served by prohibiting 	smoking where 	and
when 	students were present. 	Therefore, 	the ALJ 	concluded that
the 	imposition of 	a 	no-smoking policy where 	and when 	students
were 	present 	had 	only a 	minimal 	impact 	on 	employee health 	and
safety. 	I 	agree with this 	analysis 	and would affirm the ALJ's
proposed 	decision on this 	issue.
The 	issue 	that then remains 	to be decided 	is 	whether the
prohibition of 	smoking 	in areas which are 	off 	limits 	to 	students,
such as 	employee 	lounges, 	is 	a term and condition of 	employment
as defined by the Act and, 	therefore, 	negotiable under 	section
3543.2.3
The parties 	are 	obligated by 	EERA to 	negotiate with 	each
other over 	subjects within the 	scope 	of 	representation. 	(See
3Section 	3543.2 	provides 	in pertinent part:
(a) 	The 	scope of representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and conditions 	of
employment" 	mean health 	and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class 	size, 	procedures to be
used 	for the evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the Education
Code. . . .
27

28
section 	3543.3.4 ) 	A failure to negotiate 	in good faith a
mandatory subject of bargaining is 	a violation of 	the Act.
(Pajaro Valley Unified 	School 	District 	(1978) 	PERB 	Decision
No. 	51, 	at pp. 	4-7.) 	The Board has determined that 	some acts
have 	such a potential 	to 	frustrate
negotiations 	and to 	undermine 	the 	exclusivity
of 	the bargaining agent 	that 	they are held
unlawful without 	any determination of
subjective bad 	faith on the part of 	the
employer.
(Ibid. 	at p. 	5.) 	It 	is 	a general precept that 	"[u]nilateral
changes 	by an employer during the 	course 	of 	a 	collective
bargaining 	relationship 	concerning 	matters 	which 	are 	mandatory
subjects 	of 	bargaining are 	normally 	regarded as 	per 	se 	refusals
- -
to bargain." 	(See generally 	1 Morris, 	The Developing Labor Law
(2d ed. 	1983) p. 	563. )
The critical question, 	then, 	is whether a smoking policy is
a mandatory 	subject 	of bargaining under EERA. 	The 	Board 	is
specifically 	empowered to 	"determine 	in disputed 	cases 	whether 	a
particular 	item 	is within or without 	the 	scope of
representation." 	(See section 3541, 	subd, 	(b).5) 	Where an item
4Section 3543.3 	provides 	in pertinent part:
A public school employer 	. 	. 	. 	shall meet and
negotiate with 	and 	only with 	representatives
of 	employee 	organizations 	selected as
exclusive 	representatives 	of 	appropriate
units 	upon request with 	regard 	to 	matters
within the 	scope of 	representation.
5Section 3541.3, 	subdivision 	(b) 	provides:
The board 	shall 	have 	all 	of 	the 	following
powers 	and duties:

is 	not 	specifically enumerated in the Act 	itself, 	the Board must
interpret 	the 	statutory provision defining 	scope 	of
representation to determine whether a particular 	subject 	falls
within one 	of 	the 	enumerated areas. 	(San Mateo City 	School
District v. 	Public 	Employment Relations 	Board 	(1983) 	33 	Cal.3d
850, 	856.) 	The California Supreme Court in San Mateo
specifically 	approved of 	the 	Board's 	three-prong 	test 	to
determine whether a matter 	is within the 	scope of 	representation.
(Ibid. at pp. 	858-860.)
That test provides:
[A] 	subject is 	negotiable even though not
specifically enumerated if 	(1) 	it is
logically and reasonably 	related 	to 	hours,
wages 	or 	an enumerated 	term and 	condition of
employment, 	(2) 	the subject is of such
concern to both management 	and 	employees 	that
conflict 	is 	likely to 	occur and the mediatory
influence 	of 	collective bargaining is 	the
appropriate means 	of 	resolving the 	conflict,
and 	(3) 	the employer's 	obligation to
negotiate would not 	significantly 	abridge 	his
freedom to 	exercise 	those 	managerial
prerogatives 	(including matters 	of
fundamental policy) 	essential 	to the
achievement of 	the 	District's 	mission.
(Anaheim Union High School District 	(1981) 	PERB Decision No. 	177,
at pp. 	4-5.) 	Although the majority does 	not 	find application of
the Anaheim test determinative, 	they nevertheless 	apply the 	test
and 	find 	that 	the 	no-smoking policy does 	not 	satisfy 	any 	of 	the
three prongs. 	I 	believe that the Anaheim test 	is 	critical 	to the
(b) 	To determine 	in disputed cases whether a
particular 	item 	is within or without 	the
scope of representation.
29

determination of whether the matter 	falls 	within 	scope 	and
disagree with the majority's 	analysis 	on this 	issue.
First of all, 	I disagree with the majority's 	factual
determination that 	the policy was 	implemented 	to protect 	the
health and safety of not only employees, 	but also 	students 	and
the 	general public. 	The District's policy nowhere 	states 	that 	it
is 	designed to protect the general public. 	The District 	stated
its policy as 	follows:
The 	Board 	recognizes 	the 	evident 	health
hazards 	in the use of 	tobacco products 	and
the 	rising trend 	in 	society to 	control 	or
eliminate the practice 	of 	the use of 	these
products 	in public 	buildings 	and areas. 	The
Board therefore, 	in the best interests 	of the
district 	and 	its 	employees 	and pupils,
directs 	the Superintendent 	to develop 	rules
and regulations 	regarding this policy, 	which
will become effective July 	1, 	1987.
(Emphasis 	added.) 	Furthermore, 	the District admittedly adopted
its 	policy to 	contain the 	health hazards 	which 	arise 	from the 	use
of 	tobacco products, 	and also adopted an employee 	assistance
program aimed 	at providing 	aid to 	those who wish 	to 	quit 	smoking.
My reading of 	the record 	in this 	case 	suggests 	that the primary
motivation of 	the 	District 	in 	instituting 	the 	no-smoking policy
was not to 	shield 	students 	from smoking but, 	rather, 	to prevent
the health hazards 	associated with 	smoking. 	I 	would 	find that
such 	a policy directed at 	reducing 	the health hazards 	of 	smoking
directly relates 	to 	the 	"safety 	conditions 	of 	employment."
30

(See section 3543.2, 	subd, 	(a).6)
The parties' 	Stipulated Facts 	reiterate that the 	"recognized
health hazards" 	were the basis 	for the new policy. 	Furthermore,
the superintendent, 	in his March 	16, 	1987 	letter to the Board of
Education, 	recommending the new no-smoking policy, 	indicated that
the 	board had directed him to 	explore 	the 	alternatives 	to 	current
district policy on 	smoking 	"in keeping with the 	increasing
evidence 	about 	the detrimental 	effects 	of 	smoking 	and 	smoke
inhalation." 	He also 	stated 	in the 	letter that:
Our 	counsel 	advises 	us 	that the prohibition
of 	smoking 	in 	schools 	is 	a reasonable work
rule and 	in the best 	interests 	of 	the
wellbeing 	[sic] 	of the employees. 	Therefore,
he advises 	that 	it 	is 	not 	subject to
negotiations.
(Emphasis 	added.)
Although the best 	interest 	of pupils 	is 	mentioned 	in the
policy declaration, 	the 	clear thrust of the District's
correspondence 	is 	to prevent 	the health hazards 	of 	smoking and
smoke 	inhalation. 	In none of the documents 	is 	there any
indication that 	the 	new no-smoking policy 	for 	employees 	was
adopted 	to 	implement 	the 	Education Code prohibition on 	student
smoking.
Despite this 	evidence, 	the majority concludes 	that the
District's policy was 	implemented 	for the benefit 	of 	employees,
students 	and the general public. 	Even if the 	students were
peripherally benefitted by the 	no-smoking policy, 	the 	District's
6See fn. 	3 	for the complete text of 	section 3543.2,
subdivision (a).
31

clear motivation was 	to 	address 	the health hazards 	of 	smoking on
employees. 	As 	such, 	the matter is 	"logically and reasonably
related to 	. 	. 	. a n enumerated term and condition of employment,"
safety.7 (Anaheim Union High School 	District, 	supra. 	PERB
Decision No. 	177, 	at pp. 	4-5.) 	The first prong of the Anaheim
test is, 	thus, 	satisfied.
The 	no-smoking policy 	also 	meets 	the 	second prong 	of 	the
Anaheim 	test:
[T]he 	subject 	is 	of 	such concern to both
management and employees 	that 	conflict 	is
likely to 	occur 	and 	the 	mediatory 	influence
of 	collective 	negotiations 	is 	the 	appropriate
means 	of resolving the 	conflict.
Obviously, 	smokers 	and nonsmokers 	often disagree on the 	issue.
But 	that 	simplistic 	analysis 	does 	not 	address whether the 	issue
is 	of 	such concern to both parties 	that 	the dispute would most
appropriately be dealt with 	through 	collective 	bargaining. 	Work
rule 	changes 	which 	affect 	a 	mandatory 	subject 	of 	bargaining 	are
most 	appropriately dealt with 	collectively. 	Whether the 	District
believes, 	albeit benevolently, 	that a no-smoking policy is 	in the
best 	interests 	of 	its 	employees, 	that belief does not give the
77As 	the ALJ observed, 	the term 	"safety" 	has 	often been used
to 	encompass 	both health and 	safety concerns. 	Indeed, 	this
Board, 	in Jefferson School District, 	(1980) 	PERB Decision
No. 	133, 	at p. 	53, held that
safety and health 	stand with wages 	as 	one 	of
the more 	fundamental 	areas 	of 	concern in a
collective 	bargaining 	relationship.
The 	National 	Labor Relations 	Board has 	also 	freely 	interchanged
the terms 	"health" 	and 	"safety." 	(See, 	e.g., 	Colgate-Palmolive
Company 	(1982) 	261 	NLRB 	90 	[109 LRRM 	1352].)
32

District 	the 	right to unilaterally 	change 	a 	term and 	condition 	of
employment. 	Such a ruling effectively erodes 	the 	exclusive
representives' 	statutory rights 	to negotiate mandatory matters
within 	scope.
The majority's 	argument 	that the Legislature has 	spoken on
the matter of regulation of 	smoking, 	does 	not remove the 	issue
from collective bargaining. 	Nothing 	in any of 	the 	statutes 	cited
by 	the majority gives 	the 	District 	the right 	to 	ignore 	its
bargaining obligation under EERA. 	Prohibiting 	smoking 	in
District facilities, 	outside the view of 	students, 	is not
addressed. 	Indeed, 	the Legislature directed school districts 	to
"adopt policies 	regarding the designation of 	employee 	smoking
areas 	or 	lounges 	at 	each 	school 	site." 	(Education Code 	section
35176.5; 	see also Education Code 	section 35176.6.8) 	That
legislative mandate was 	in effect until January 	1, 	1989, 	and
therefore, 	encompassed the period during which this 	dispute
arose. 	The mere 	fact that the Legislature has 	spoken on this
issue, 	does 	not remove it 	from the realm of 	collective
bargaining. 	Only when there 	is 	direct 	conflict with a 	section of
the Education Code would the 	issue 	of 	supersession arise. 	The
Board 	has 	stated 	that
incorporating 	a 	statutory mandate 	in the
agreement, 	assuming the 	subject matter is 	or
relates 	to a 	subject 	specified 	in 	section
3543.2, 	certainly does not constitute
supersession of 	that 	statute whether 	it 	is
the Education Code or any other 	statute. 	On
8
'The 	complete text of both 	sections 	can be 	found at 	fn. 	4 	in
the 	majority opinion.
33

the other hand, 	there is a clearly
recognizable value to 	the 	"improvement 	of
personnel 	management 	and 	employer-employee
relations" 	in permitting 	inclusion of 	such
matters within the 	negotiated 	contract.
(Emphasis 	in original, 	footnote omitted.) 	The fact that the
Legislature has 	mandated 	smoking policies 	in no way precludes
negotiations; 	therefore, 	the 	second prong of Anaheim is met.
Finally, 	to be negotiable, 	the District's obligation to
negotiate 	the 	no-smoking policy 	cannot
significantly abridge 	[its] 	freedom to
exercise 	those 	managerial 	prerogatives
(including matters 	of 	fundamental 	policy)
essential 	to the achievement of 	the
District's mission.
(Anaheim Union High School District, 	supra. 	PERB Decision
No. 	177, 	at p. 	5.) 	Without any analysis, 	the majority concludes
that 	the 	no-smoking policy would 	significantly 	abridge 	the
District's 	freedom to 	exercise 	managerial 	prerogatives 	essential
to 	its 	mission and that 	it 	is 	a matter of basic 	educational
policy. 	As 	I 	indicated earlier, 	I 	agree that, 	to the extent the
no-smoking policy prohibits 	smoking 	in the presence 	of 	students,
the 	District's 	actions were within 	its 	managerial prerogative.
However, 	the District's mission to prevent 	students 	from 	smoking,
as 	mandated by Education Code 	section 48901, 	is 	not 	significantly
furthered 	by 	the 	blanket policy prohibiting 	smoking 	in 	all
District 	facilities. 	I would agree with and adopt the ALJ's
conclusion:
To 	the 	extent that 	smoking and the use of
other tobacco products 	by 	employees 	not 	in
the direct presence 	of 	students 	could be
found 	to 	tangentially relate 	to 	the
34

District's management prerogatives, 	it is
concluded that 	negotiations 	on the 	subject
would 	not 	significantly 	abridge 	the
employer's 	exercise thereof. 	In this 	regard,
the 	District has 	failed 	to demonstrate how
negotiations 	on the 	subject would have 	such
an effect.
(Proposed Decision at p. 	18.)
My 	analysis 	might be different had 	the 	District 	adopted 	a
policy 	statement 	similar to 	that 	stipulated 	to 	in Chambersburg
Area 	School 	District v. 	Commonwealth of Pennsylvania,
Pennsylvania Labor Relations Board, 	et al. 	(1981) 	430 A.2d 740
[110 LRRM 2251, 	2253]. 	There, 	the reasons for imposition of a no-
smoking policy predominately addressed pupil 	issues, 	not 	the
health hazards 	to employees. 	While these reasons 	migh
- - t be
applicable 	to 	the 	District 	in the 	case 	currently before 	the
Board, 	they were not the 	articulated reasons 	for the 	imposition
of 	the policy. 	We 	cannot 	change 	the motivation of 	the 	District
by 	adopting the 	Chambersburg policy 	statement. 	Nor 	should we
adopt 	it as the rationale 	for our decision. 	Furthermore, 	the
District has 	not 	shown that 	its 	educational 	mission would be
furthered by prohibiting 	employees 	from 	smoking out 	of 	the 	view
of 	students. 	Such a showing is critical, 	for, 	unlike the obvious
benefit 	derived 	from prohibiting 	smoking 	in the view of 	students,
smoking outside 	the 	view of 	students 	does 	not obviously promote
the 	District's 	educational 	mission.
The 	majority rejects 	the ALJ's 	reliance 	on three 	decisions
from the New York Public 	Employment Relations 	Board 	(PERB). 	They
reject the New York PERB's 	analysis because, 	they contend, 	the
35

New York Legislature 	failed 	to 	adopt 	a 	general 	no-smoking policy.
The majority, 	thus, 	concludes that the New York PERB could, 	in
the absence of 	legislative mandate, 	afford to give 	less weight 	to
the managerial 	goal 	of providing a 	smoke-free 	environment.
(Majority Decision at p. 	22.) 	That 	conclusion does 	not
accurately reflect the New York PERB's 	analysis 	in any of 	the
three 	cases 	cited.
In Steuben-Allecrany Boces 	(1980) 	13 NY-PERB 	3096, 	the New
York PERB 	affirmed the reasoning of 	the hearing officer, 	who 	held
that 	the policy 	restricting 	smoking to 	specified 	locations 	was 	a
work rule dealing with a 	term and condition of 	employment. 	In
making 	this 	determination, 	the hearing officer 	specifically
relied on the 	fact that the 	area 	in question was 	not 	normally
used by 	students 	and, 	therefore, 	the 	employer could not argue
persuasively 	that 	the 	limitation was 	designed 	to 	influence
student 	conduct.
In County of Niagara 	(Mount View Health Facility 	(1988) 	21
NY-PERB 	3014, 	the New York PERB 	rejected the employer's 	argument
that public 	policy permitted 	it 	to 	restrict 	smoking 	in 	its
facility. 	The board held that
[s]ince there is no public policy, 	as yet,
which requires 	or permits 	a public 	employer
to ban 	smoking 	in the work place 	or in 	its
facilities, 	we continue to believe that
employee 	smoking 	regulations 	are work rules
subject 	to 	the 	balancing 	test which we 	have
previously 	employed 	to 	determine whether
unilaterally promulgated work 	rules 	violate
the Act.
-
36

I 	do 	not 	read the 	language 	regarding public policy to mean a
general 	statement condemning 	smoking; 	rather, 	the New York PERB
addresses 	the 	lack of 	legislation which would 	specifically permit
or require 	a public 	employer to 	restrict 	smoking. 	Like New York,
the 	California 	Legislature has 	not 	enacted 	legislation which
would permit 	a public 	school 	employer to 	unilaterally 	implement 	a
no-smoking policy 	in areas 	not 	frequented by 	students.
Finally, 	in Rush-Henrietta Employees' 	Association. 	Buildings
and Grounds. 	Bus Mechanics Chanter. 	NYSUT/AFT. 	AFL-CIO 	(1988) 	21
NY-PERB 	3023, 	the New York PERB 	addressed precisely the 	issue
currently before 	us: 	whether employees 	should be prohibited 	from
smoking 	in district 	facilities 	outside 	the presence 	of 	students.
The board held that 	in order to prevail, 	the district would have
to demonstrate 	that 	there was 	a 	need related to 	its 	mission and
that 	the 	restrictions 	did not 	go beyond what 	is 	needed to 	further
its 	mission. 	The board 	concluded that the district 	failed
because 	its 	decision arose out of 	a 	financial determination that
it was 	too expensive to properly ventilate 	the 	facility. 	The
board 	found 	that 	the 	employer 	failed to 	introduce 	evidence 	that
its 	prohibition was 	necessitated by a health hazard to 	students.
The District has failed to meet its obligation to bargain.
Its 	blanket no-smoking policy, 	to the extent that 	it relates 	to
smoking by employees 	out of the view of 	students, 	does 	not
significantly relate to 	its 	educational mission. 	I would adopt
the ALJ's proposed decision, 	which correctly found that 	the
District violated section 3543.5, 	subdivision 	(c) 	and
37

derivatively, 	subdivisions 	(a) 	and 	(b). 	The District should be
required to 	revoke 	its 	policy and bargain with the 	exclusive
representatives.
38