San Francisco Unified School District (PERB 0075E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
UNITED ADMINISTRATORS 	OF 	SAN FRANCISCO,
Charging 	Party,
v.
SAN 	FRANCISCO UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
) Case No. 	SF-CE-87
PERB Decision No. 	75
October 3, 	1978
Appearances: 	Reynold H. 	Colvin and Robert D. 	Links, 	Attorneys
(Jacobs, 	Blackenburg, 	May and Colvin) 	for United Administrators
of San Francisco; 	Corrine Lee, 	Assistant Legal Advisor 	for
San 	Francisco 	Unified 	School 	District.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members,
DECISION
The 	United 	Administrators 	of 	San 	Francisco 	(hereafter 	UASF)
is 	appealing 	a hearing 	officer's 	dismissal of 	its 	unfair
practice 	charge 	against 	the 	San 	Francisco 	Unified 	School
District 	(hereafter District).
On May 	2, 	1977, 	the United Administrators of
San 	Francisco 	filed 	an 	unfair 	practice 	against 	the
San Francisco Unified 	School 	District, 	alleging 	that 	the
District violated sections 3543.5 (a), 	(b) 	and 	(c) 	of the

Educational 	Employment 	Relations 	Act 	(hereafter 	EERA)1
' 	by
preparing 	individual 	employment 	contracts 	for 	employees 	in 	a
proposed 	supervisory 	negotiating 	unit 	for 	which 	UASF 	had
requested 	recognition.2 UASF 	alleged 	that 	the 	District's
preparation of 	those 	contracts 	was 	a 	coercive 	tactic 	designed
to 	fragment 	the 	employees 	in 	the 	unit, 	and 	that 	the 	contracts
would 	resolve major 	issues 	relating 	to 	the 	terms 	and 	conditions
of employment of 	such 	employees. 	On May 17, 	1977, 	UASF amended
the 	charge 	to 	allege 	that 	the 	District 	had 	designated 	certain
UASF members 	as 	representatives 	on 	the 	District's 	negotiating
team 	for 	nonsupervisory 	certificated 	employees. 	UASF alleged
that 	the 	employees 	could 	not 	decline 	to 	serve 	on 	the
negotiating 	team without prejudice 	to 	their 	employment, 	and
that 	the 	District's 	act was 	intended 	to 	undermine 	the
Educational Employment 	Relations 	Act 	is 	codified 	at
Government Code, 	sec. 	3540 et seq. 	Hereafter, 	all statutory
references 	are 	to 	the 	Government 	Code 	unless 	otherwise
indicated.
Section 3543.5 	states, 	in pertinent part:
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....
proposed 	unit 	included 	principals, 	assistant
principals, 	supervisors, 	assistant supervisors, 	directors and
administrative 	assistants. 2

3
position 	of 	UASF. 	The 	District 	admitted 	certain 	of 	the 	factual
allegations, 	but 	denied 	that 	it 	had 	committed 	an unfair
practice. 	The 	District claimed 	that 	the parties 	were 	engaged
in 	the preparation of 	individual 	contracts 	pursuant 	to 	the
requirements 	of 	a provision 	in 	the 	San Francisco City Charter.
A 	formal 	hearing 	was 	held 	before 	a 	hearing 	officer 	of 	the
Educational Employment 	Relations 	Board3 on July 	1, 	1977. 	The
hearing 	officer 	dismissed 	the 	alleged 	violation 	of 	section
3543.5 (c) 	at 	the 	time 	of 	the 	hearing on 	the 	ground 	that 	since
no 	exclusive 	representative 	yet 	had 	been 	certified 	to 	represent
the 	proposed 	employee 	unit, 	the 	District was 	under 	no
obligation 	to meet and negotiate. 	On August 	29, 	1977, 	the
hearing 	officer 	issued 	the 	attached 	recommended 	decision
dismissing 	the 	remaining portion 	of UASF's 	charge.
FACTS
On April 	1, 	1976, 	UASF 	filed 	with 	the 	District 	a request
for 	recognition 	as 	the 	exclusive 	representative 	of 	a 	unit 	of
supervisory employees. 	The 	International 	Brotherhood 	of
Teamsters, 	Local 960 	(hereafter Teamsters), 	filed a timely
intervention.4 	The 	District 	doubted 	the 	appropriateness 	of
Educational Employment 	Relations 	Board 	was 	renamed
the 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB)
effective January 1, 	1978.
4 Section 3544.l(b) 	states:
The 	public 	school 	employer 	shall 	grant 	a
request 	for 	recognition 	filed 	pursuant 	to

.........................................
4
Section 	3544 	unless:
(b) 	Another 	employee 	organization either
files 	with 	the 	public 	school employer 	a
challenge 	to 	the 	appropriateness of 	the 	unit
or 	submits 	a 	competing 	claim 	of
representation 	within 	15 	workdays of 	the
posting 	of 	notice 	of 	the 	written 	request.
The 	claim 	shall 	be 	evidenced 	by 	current 	dues
deductions 	authorizations 	or 	other 	evidence
such 	as 	notarized membership lists, 	or
membership cards, 	or petitions 	signed 	by
employees 	in 	the 	unit 	indicating 	their
desire 	to 	be 	represented 	by 	the
organization. 	Such 	evidence 	shall be
submitted 	to 	the 	board, 	and 	shall remain
confidential 	and 	not 	be 	disclosed 	by 	the
board. 	The 	board 	shall 	obtain 	from 	the
employer 	the 	information 	necessary 	for 	it 	to
carry 	out 	its 	responsibilities 	pursuant 	to
this 	section 	and 	shall 	report 	to 	the
employee 	organizations 	seeking 	recognition
and 	to 	the 	public 	school employer 	as 	to 	the
adequacy of 	the 	evidence. 	If 	the claim 	is
evidenced 	by 	the 	support 	of 	at 	least 	30
percent 	of 	the 	members 	of 	an 	appropriate
unit, 	a question of 	representation 	shall be
deemed 	to 	exist 	and 	the 	board 	shall 	conduct
a 	representation 	election 	pursuant 	to
Section 3544.7, 	unless subdivision 	(c) 	or
(d) 	of 	this section apply;...
the 	proposed 	unit, 	claiming 	that 	all of 	the 	employees 	for 	whom
UASF 	had 	petitioned 	were 	managerial 	and 	therefore 	should 	not
have 	negotiating 	rights 	under 	the 	EERA. 5 The 	case 	was 	set
for 	a 	unit 	determination 	hearing 	by 	the 	San 	Francisco 	Regional
Office 	of 	the 	Educational 	Employment 	Relations 	Board.
In 	late March 	1977, 	the 	District 	initiated a 	series of
meetings 	with 	representatives 	of 	both 	UASF 	and 	the 	Teamsters
(Continued 	footnote 	4)
5 Section 	3543.4 	states:
No person 	serving 	in 	a management position
or 	a 	confidential position shall be
represented 	by 	an 	exclusive 	representative.
Any 	person 	serving 	in 	such 	a position 	shall

5
have 	the 	right 	to 	represent 	himself
individually 	or 	by 	an 	employee 	organization
whose 	membership 	is 	composed 	entirely of
employees 	designated 	as 	holding 	such
positions, 	in his employment 	relationship
with 	the public school employer, 	but, 	in no
case, 	shall 	such 	an organization meet 	and
negotiate 	with 	the 	public 	school 	employer.
No 	representative 	shall 	be 	permitted 	by 	a
public 	school 	employer 	to meet 	and 	negotiate
on 	any 	benefit 	or 	compensation 	paid 	to
persons 	serving 	in 	a management position or
a 	confidential position.
for 	the 	purpose 	of discussing 	terms 	of 	individual 	contracts 	of
employment 	for 	employees 	within 	the 	proposed 	supervisory 	unit.
According 	to 	the District, 	it 	had been 	advised 	by 	the 	"Riles
Commission"6 in 	the 	fall 	of 	1976 	to prepare 	such 	contracts 	in
accordance 	with 	a 	1971 	amendment 	to 	the 	city 	charter.7 Three
(Continued 	footnote 	5)
Riles 	Commission was 	an ad 	hoc 	group of citizens 	in
San 	Francisco 	concerned 	with 	reform of 	District 	policies.
Contrary 	to 	the 	findings 	of 	the 	hearing 	officer 	in 	this 	case,
it 	had 	no 	formal 	relation 	either 	with 	California 	Superintendent
of 	Public 	Instruction Wilson 	Riles 	or 	with 	the 	State 	Department
of 	Education.
San 	Francisco 	City Charter 	was 	amended 	in 	1971 	to
provide:
All 	... 	vice principals, 	principals,
supervisors 	and 	directors 	who 	are 	appointed
on or 	after July 1, 	1971, 	or who are
otherwise 	determined 	not 	to be 	permanent
employees 	shall 	be 	employed 	pursuant 	to 	four
year 	contracts 	with 	the 	Board 	of 	Education,
which 	contracts 	shall be 	subject 	to 	renewal
based 	upon 	achieving 	and 	maintaining
standards of performance, 	which 	standards of
performance 	shall 	be 	governed 	by 	rules 	and
regulations 	as 	promulgated 	by 	the Board 	of
Education.

6
new members 	had 	been elected 	to 	the 	school board 	to 	take 	office
in 	January 	1977, 	and 	the 	new 	school 	board 	had 	directed 	the
administration 	to prepare 	the 	contracts.
Six 	such meetings 	took 	place, 	and 	the 	Teamsters 	and 	UASF
attended 	all of 	them. 	However, 	UASF continually maintained
that 	it 	was 	attending 	the meetings 	under 	protest 	and 	that
negotiation 	over 	employment 	terms 	should 	be 	postponed 	until 	an
exclusive 	representative 	had 	been 	selected. 	UASF wrote 	to 	the
District on April 	13, 	1977, 	objecting 	to the specific
provisions 	of 	the 	draft 	contracts 	and 	stating 	further:
The 	reason 	that 	we 	are 	specifically 	raising
this 	question 	at 	this 	time 	is 	because 	your
draft must 	be 	read 	against 	the 	background 	of
the 	present 	proceeding 	before 	the
Educational 	Employment 	Relations 	Board
(EERB). 	You will 	recall 	that UASF applied
for 	representation prior 	to April 	1, 	1976;
that 	a 	hearing 	on 	unit 	determination 	was
held 	and 	was 	concluded 	on December 	15, 	1976;
that 	a 	transcript was prepared, 	the matter
briefed, 	and 	that 	it 	is presently under
submission 	before 	EERB 	for 	a 	decision 	on
unit 	determination. 	We 	are 	inclined 	to view
that 	the 	presentation of 	a 	draft 	of 	the
particular 	type 	of Agreement 	which 	I 	have
outlined 	above 	constitutes 	an 	unfair 	labor
practice 	within 	the meaning 	of 	the 	Rodda
Bill and 	it 	is our 	present 	intent 	to make
such 	a 	representation 	to 	EERB.
At 	the 	first meeting, 	the 	District presented 	a draft 	of 	its
proposed 	contract. 	Provisions 	covered 	pay grades, 	pay
adjustments, 	work calendar, 	fringe benefits, 	evaluation
procedures, 	and 	termination of 	the 	contract 	by 	the
superintendent 	for non-performance of duties. 	The 	contract 	term
was 	to 	be 	four 	years. 	UASF had objections 	to many of 	these

7
provisions, 	and 	specifically objected 	to 	those 	relating 	to work
calendar, 	fringe 	benefits, 	evaluations 	and 	termination of 	the
contract. 	UASF 	contended 	that 	the 	latter 	provision 	conflicted
with 	the 	city 	charter 	requirement 	of 	a 	four-year 	contract.
At 	a 	school board meeting 	in April, 	a board member 	stated
that 	implementation 	of 	the 	contracts 	was 	important 	because 	the
mandate 	of 	the 	city 	charter 	had 	not 	been 	complied 	with. 	One 	of
the 	District's 	negotiators 	responded 	to 	the 	effect 	that, 	"You
give me 	permission 	and 	I'll 	have 	a 	contract 	on 	the 	desk 	in 	the
morning. 	Either 	you 	sign 	it 	or 	else."
During 	the 	course of 	the meetings, 	the contract went
through 	six drafts. 	There 	were 	changes 	in 	the 	areas 	of work
calendar 	and 	evaluations, 	and 	a 	general 	guarantee 	of 	due
process 	in 	conformity with 	the 	Education Code 	was 	added 	to 	the
provision 	governing 	termination. 	There 	also 	was 	a 	new
provision 	concerning 	contract 	renewal, 	a guarantee 	that 	nothing
in 	the 	contract 	would 	abridge 	rights 	granted 	by 	the 	city
charter 	or 	the 	Education 	Code, 	and 	a 	reservation 	for 	future
discussion of 	additional provisions. 	This provision 	stated:
It 	is 	anticipated 	by 	the 	parties 	that
additional 	provisions 	governing 	the 	public
school 	employer/employee 	relationship,
including 	the 	establishment 	of 	an
administrator's 	grievance 	procedure,
specific 	notice 	and 	hearing procedures, 	and
other 	relevant matters 	shall 	be 	the 	subject
of 	future 	discussions 	between 	the parties.
In 	the 	event 	the 	herein Administrator
becomes 	a 	part of 	the 	bargaining 	unit 	as 	a
result 	of 	the 	EERB decision, 	the word
"discussion" 	in 	this 	section 	shall be
construed 	to mean 	"negotiation."

8
District 	representatives 	prepared 	a 	memorandum 	to 	other
management 	personnel 	that 	recorded 	certain matters 	discussed 	at
the 	final meeting 	of June 8, 1977. 	The memorandum
characterized 	certain 	objections 	raised 	by UASF 	as 	being 	that
"...this 	contract 	is premature 	insomuch 	as District 	and
employees 	are 	awaiting 	decision of 	the 	EERB."
The 	final 	draft 	of 	the 	proposed 	contract 	was 	placed 	on 	the
agenda of 	the 	school board 	for 	adoption on June 	14, 	1977. 	The
contract was 	removed 	from 	the 	board's 	agenda, 	however, 	and 	the
District 	took 	no 	action with 	respect 	to 	it. 	There 	is 	no
evidence 	explaining 	why 	the 	item was 	removed 	from 	the 	agenda.
At 	no 	later 	time 	was 	the 	contract 	discussed 	or 	approved 	by 	the
District.
During May 	1977, 	the District asked 	six principals, 	who
were 	included 	in UASF's petition, 	to 	join 	the District's
negotiating 	team 	for 	the 	nonsupervisory 	certificated 	unit.
These 	employees 	apparently 	consented 	to 	taking 	part 	in
negotiations.
The 	hearing 	officer 	in 	the 	representation case 	rendered 	his
proposed 	decision on June 	10, 	1977, 	holding 	that 	the
supervisory 	unit 	for 	which 	UASF 	petitioned 	was 	appropriate.
The 	principals 	on 	the 	District's 	negotiating 	team 	resigned
after 	that 	decision 	was 	issued.
The 	Teamsters 	appealed 	the 	hearing 	officer's 	proposed
decision, 	which 	the Board 	itself affirmed 	in

9
San 	Francisco Unified 	School 	District 	(9/8/77) 	EERB Decision
No. 	23. 	An election was held on November 	15, 	1977. 	A majority
of 	votes 	was 	cast 	for 	UASF. 	The 	parties 	subsequently
negotiated 	a 	collective 	agreement 	for 	employees 	within 	the 	unit.
DISCUSSION
A 	fundamental 	right 	guaranteed 	to 	public 	school 	employees
by EERA 	is 	the 	freedom 	to 	join 	an 	employee 	organization 	of
their 	choice 	and 	to 	select 	an exclusive 	representative 	in 	their
employment 	relationships 	with 	the 	school 	employer. 	The 	scope
of 	such 	representation 	includes 	matters 	relating 	to 	wages,
hours 	and 	terms 	and 	conditions 	of 	employment 	as 	defined 	by 	the
EERA.8
Patently, 	these 	rights might well be meaningless 	if 	some
protection 	were 	not 	afforded 	against 	an 	employer's 	interference
with 	their 	exercise. 	Thus, 	section 3543.5 (a) 	prohibits
reprisals, 	discrimination, 	interference or coercion, or
threats, 	by 	employers 	against 	employees 	because 	of 	the 	exercise
of 	these 	rights.
8 Section 3543.2, 	as amended September 7, 	1977, 	which
states:
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 	the present case, 	the 	totality of 	the District's 	conduct
shows 	a violation of section 3543.5(a). 	First, 	the District
had 	not 	followed 	the 	mandate 	of 	the 	six-year-old 	charter
provision 	until 	1977, 	after 	employees 	signed 	authorization
cards 	expressing 	their 	interest 	in 	being 	represented 	by 	an
employee 	organization 	pursuant 	to 	the 	newly 	enacted 	EERA. 	A
reasonable 	inference may 	be 	drawn 	from 	this 	timing 	that 	the
proposed 	contracts, 	as 	well 	as 	the District's holding 	of
meetings 	to 	address 	them, 	were 	intended 	as a 	threat of 	reprisal
against 	the 	employees 	because 	they 	sought 	to 	exercise 	their
rights 	under 	EERA.
Second, 	the 	wording 	of 	the 	proposed 	contracts 	permits 	a
similar 	inference 	to be 	drawn. 	The 	scope of 	the 	coverage
(Continued 	footnote 	8)
10

of 	the 	individual 	contracts 	was 	in excess of 	that 	required 	by
the 	city 	charter.9 In 	addition, 	the 	contracts 	only 	permitted
renegotiations 	over 	"additional 	provisions 	governing 	the 	public
school employer/employee 	relationship, 	including 	the
establishment 	of 	an 	administrator's 	grievance 	procedure,
specific 	notice 	and 	hearing 	procedures, 	and 	other 	relevant
matters." 	(Emphasis 	added.) 	Through 	this clause, 	the District
acknowledged 	that 	in 	the 	event 	an 	employee 	organization 	were 	to
be 	certified 	or 	recognized 	as 	the 	exclusive 	representative 	of
employees 	of 	the 	negotiating 	unit, 	the 	District would 	be
required 	to 	negotiate 	with 	it 	on matters 	within 	the 	scope 	of
,n
representation.10 However, 	by 	this 	clause 	future
11
provision of 	the 	city 	charter 	is 	set 	forth 	at
footnote 7, 	supra.
10Section 	3543.2, 	as amended September 	7, 	1977, 	is 	set
forth 	at 	footnote 8, 	supra.
Section 	3543.3 	states:
A public 	school 	employer 	or 	such
representatives 	as 	it may 	designate 	who may,
but need 	not 	be, 	subject 	to either
certification 	requirements 	or 	requirements
for 	classified 	employees 	set 	forth 	in 	the
Education Code, 	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.

negotiations 	under 	the 	EERA were 	limited 	to 	subjects 	not
addressed 	by 	the 	contracts, 	and 	were precluded 	with 	respect 	to
items 	which 	were 	addressed. 	The 	contracts, 	therefore, 	did not
allow 	negotiations 	on 	all matters 	within 	the 	scope 	of
representation 	which 	is 	the 	right 	of 	employees 	through 	their
exclusive 	representative. 	This 	is 	further 	evidence of a
violation of section 3543.5(a) 	of the EERA.11 11
This 	infringement of the employees' 	rights 	is not
redeemed 	by 	the 	fact 	that 	the 	individual contracts 	of
employment 	were 	not 	adopted 	by 	the 	governing 	board 	of 	the
11Chairman 	Gluck 	notes 	that 	our 	dissenting 	colleague
argues 	that 	UASF 	itself proposed 	the 	clause 	in question, 	and
that 	this 	clause 	therefore 	is 	not 	evidence 	of 	a District 	intent
to 	interfere 	with 	the 	rights of 	employees. 	This 	argument
relies 	on 	the 	testimony of 	the 	District's 	sole 	witness 	that 	the
clause 	in dispute 	was proposed, 	prepared 	and 	submitted 	by
UASF. 	This 	argument, 	however, 	disregards the 	facts 	as 	they
exist 	and were 	found 	by 	the 	hearing officer. 	First, 	the
hearing 	officer 	held, 	and 	the 	record 	shows, 	that 	UASF objected
consistently 	to 	the 	District's 	decision 	to 	draft 	individual
employment 	contracts, 	to 	the 	holding 	of meetings with 	respect
to 	them, 	and 	to 	the contents of 	the 	contracts 	at 	each 	stage.
Second, 	the 	initial 	appearance 	in 	the 	record 	of 	the 	disputed
clause 	is 	in Draft Agreement #6, 	which, 	according 	to the
District's 	witness, 	was 	prepared 	and 	proposed 	by 	the 	District
itself. 	No exhibit 	on 	file 	in 	this 	case 	supports 	the dissent's
factual 	contention. 	Since 	the 	testimony of 	even 	the 	District's
witness 	is 	in part 	inconsistent 	with 	the 	dissent's
interpretation 	of 	the 	facts, 	the 	opening 	statement 	of 	the
District's 	counsel 	aids 	in 	clarifying 	them. 	The 	District's
counsel 	stated:
We 	included 	and 	incorporated 	in 	a 	number 	of
our 	drafts 	... 	a provision 	in our 	contract
that 	we 	would 	renegotiate 	the 	terms 	and
conditions 	of 	employment 	as 	required 	by 	the
Rodda Act.
And 	our 	position 	is 	the 	the 	fact 	that we
incorporated 	that 	provision 	within 	our
draft, 	that 	we 	had 	not 	in 	fact 	interfered
with 	employee 	rights. 	(Emphasis 	added.)
12

District. 	The 	EERA prohibits 	threatened 	acts 	of 	reprisal 	and
discrimination 	as 	well 	as 	acts 	that 	achieve 	those objectives.
Section 3543.5 (a).
The 	District's 	attempt 	to 	include 	on 	its 	management
negotiating 	team members 	of 	the 	petitioned-for 	negotiating 	unit
is 	further 	evidence 	of an 	intent 	to 	interfere 	with 	the
employees' 	free choice of a 	representative. 	A request 	by 	an
employer 	to 	an 	employee 	to 	take part 	on 	its 	negotiations 	team
is 	not one 	that an employee can 	refuse 	lightly. 	Further, 	in
view 	of 	the 	fact 	that 	the 	alleged 	managerial 	status 	of
employees 	was 	the 	very 	issue 	in 	the 	representation proceeding,
the 	District's 	act 	of 	appointing 	them 	to 	the 	negotiating
committee 	was 	a direct 	attack 	on 	their 	right 	to 	organize 	and
seek 	representation.
We 	disagree 	with 	two 	specific 	aspects 	of 	the 	hearing
officer's 	analysis. 	First, 	we 	reject his 	conclusion 	that 	the record
supplies 	"no 	evidence 	that 	the 	District 	communicated 	directly
with members of 	the 	unit with 	regard 	to 	the 	possibility of
requiring 	individual 	contracts." 	UASF 	and 	the 	Teamsters 	were
involved directly 	in meetings 	with 	the 	District, 	and 	their
knowledge 	of 	the 	District's 	design may 	be 	attributed 	to 	their
members. 	Second, 	the 	hearing officer's 	finding 	that NLRB v.
J.I. 	Case Co. 	(1944) 	321 U.S. 	332 	[14 LRRM 501] 	is 	inapplicable
to 	this 	charge 	is 	inaccurate.12 J.I. 	Case 	upheld 	the 	finding
EERB 	takes 	cognizance 	of 	cases 	decided 	under
the National Labor 	Relations Act 	(hereafter 	NLRA), 29 U.S.C.
sec. 	151 et 	seq., 	when 	the 	language of the 	EERA and NLRA is
identical 	or 	similar. 	Fire Fighters Union v. 	City of Vallejo
(1974) 	12 Cal.3d 	608; 	Sweetwater 	Union High 	School District
(11/23/76) 	EERB Decision No. 	4.
13

of 	the 	National 	Labor 	Relations 	Board 	(hereafter 	NLRB) 	that 	the
employer's 	outright 	refusal 	to 	bargain 	with 	the 	exclusive
representative 	of 	the 	employees 	involved, 	based 	on 	previously
executed 	individual 	contracts 	of 	employment, 	constituted 	an
unlawful 	refusal 	to 	bargain, 	and 	that 	the 	employer's 	urging
employees 	to bargain 	individually 	on 	the 	basis 	of 	such
contracts 	rather 	than 	through 	a collective 	agent 	interfered
with 	and 	impeded 	the 	employees' 	rights 	under 	the National 	Labor
Relations Act. 	In the underlying 	case, 	the NLRB had held
that 	an employer 	cannot 	offer 	contracts 	of 	employment 	to
employees 	"for 	the 	purpose 	of 	infringing 	rights 	under 	the
[National Labor Relations] 	Act." 	J.I. 	Case Co. 	(1942) 	42 NLRB
85, 96 	[10 LRRM 172] .
The 	District's 	contention 	that 	its meeting 	and
conferring 	with 	respect 	to 	the 	individual 	contracts
of 	employment was 	excusable because 	the District was 	under 	a
charter 	obligation 	to make 	such 	contracts 	is 	rejected. 	The
evidence 	supports 	the 	conclusion 	that 	the District 	was
otherwise 	motivated. 	At 	the 	very 	least, 	the 	District 	has
failed 	to prove 	that 	business 	reasons 	prompted 	its
conduct.13 Moreover, 	at 	the 	time 	the 	District 	claimed 	that
it was 	under 	an obligation 	to follow the 	charter's mandate, 	it
13 See, 	e.g., 	NLRB v. 	Great Dane Trailers, 	Inc.
(1967) 	388 U.S. 	26 	[65 LRRM 2465].
*****
14

was 	under 	a 	further 	legal 	obligation 	to 	comply with 	the 	mandate
of 	the 	EERA. 	Given 	the 	timing of 	the 	District's conduct, 	the
District's 	justification 	is 	not 	convincing.
In 	summary, 	considering 	the 	totality of 	the 	District's
conduct, 	the 	Board 	finds 	that 	conduct 	violated 	section
3543.5(a) 	of EERA.
We 	uphold 	the 	hearing 	officer's 	dismissal 	of 	the
alleged 	violation of 	section 	3543.5(b) 	of 	the 	EERA. 	While 	the
record 	establishes 	that 	the 	District 	interfered 	with 	the 	rights
of 	the 	employees 	to 	join 	the 	employee 	organization 	of 	their
choice 	and 	to 	select an 	exclusive 	representative, 	it 	does 	not
show 	that 	the 	District 	interfered 	with 	any 	right 	guaranteed 	to
UASF 	by 	the 	EERA.
We 	also 	uphold 	the 	hearing 	officer's 	dismissal 	of 	the
alleged 	violation of 	section 	3543.5(c) 	of 	the 	EERA. 	Only 	an
,
exclusive 	representative 	has 	a 	right 	to meet 	and 	negotiate 	with
the 	public 	school 	employer.
15

REMEDY
The 	District 	tabled 	the 	individual 	contracts 	and
UASF-now 	the 	exclusive 	representative-has 	entered 	into 	a
collective 	negotiations 	agree ment 	with 	the 	District 	covering
the 	subject 	e mployees 	in question . 	Consequently, 	it 	is
unnecessary 	to 	order 	the 	District 	not 	to 	implement 	the
individual 	contracts.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in
this 	case, 	IT 	IS 	ORDERED 	that 	the 	San 	Francisco Unified 	School
District 	shall :
1 . 	Cease 	and 	desist 	from 	in 	any manner 	restraining,
discriminating 	against, 	or 	otherwise 	interfering 	with 	the
rights 	of 	employees 	under 	the 	Educational 	Employment 	Relations
Act; 	and 	specifically section 	3543 . S{a).
IT 	IS 	FURTHER ORDERED 	that 	the 	alleged 	violations 	of
sections 	3543 . S(b) 	and 	(c) 	of 	the 	Educational 	Employment
Relations 	Act 	are 	hereby DISMISSED.
-
By: 	Harry Gluck, 	Chairperson 	Raymond 	J . 	Gonzales 	Member
,
I
Jerilou Cossack Twohey, 	Member, 	dissenting :
I 	disagree 	with 	the majority ' s 	determination 	that 	the 	District
violated 	section 	3543.S(a) 	of 	the 	EERA by 	drafting 	individual
16

•
employment 	contracts 	for 	some 	supervisory 	employees 	and by request-
ing certain 	supervisory employees 	to 	serve on 	its 	negotiating
team for nonsupervisory certificated 	employees. 	I 	agree with 	the
majority that 	the District 	did not violate 	sections 	3543.5(b) 	and 	(c)
The majority relies 	on the 	"totality" 	of 	the District's 	con-
duct 	to 	conclude 	that 	it violated 	section 3543.5(a). 	This
"totality" 	is 	comprised of three events: 	(1) 	the 	timing of the
District's 	attempt 	to 	comply with the charter requirements; 	(2)
the wording of the proposed contracts; 	and 	(3) 	the District's
attempt 	to 	include 	some of 	the petitioned 	for 	employees 	on 	its
negotiating 	team 	for 	nonsupervisory 	certificated 	employees.
I
In 	order 	to 	establish 	that 	an 	employer has 	threatened an
employee with reprisal, 	it must 	first be established 	that 	the
employee has 	been 	threatened with 	something adverse. 	However,
in the 	instant 	case 	the majority does not 	contend, 	nor does
the 	evidence 	establish, 	that 	the proposed contracts would have
imposed more onerous 	terms 	and conditions 	of 	employment on 	the
affected employees. 	In fact, 	it would appear 	that 	the proposed
contracts 	merely 	incorporated 	existing 	terms 	and 	conditions 	of
employment. 	There 	is no 	dispute 	that 	the 	charter does mandate
that 	these 	employees have 	employment 	contracts with 	the 	District.
It 	is 	difficult 	to 	see how contracts which do not adversely
change 	the employees' 	existing 	terms 	and conditions' 	of employ-
ment 	could be 	construed as 	reprisals.
17

1
However, 	assuming for 	the purposes of argument, 	that 	such
contracts 	could be 	coercive, 	nothing 	in 	the 	timing of 	the pro-
posed 	contracts 	warrants 	the 	inference 	that 	they were 	intended
as reprisals 	against employees. 	If employees 	are 	to understand
that 	the 	employer 	is 	taking an action 	in retaliation 	for 	their
exercise 	of protected rights, 	the 	employer's 	action must be
related 	to 	the protected activity 	either by words 	or 	time. 	In
this 	case, 	neither occurred. 	UASF filed its request 	for recogni-
tion 	in April 	1976. 	The 	Riles 	Commission report 	and recommendations
issued 	subsequently, 	in August or 	September 	1976. 	The Riles
Commission recommended 	that 	the District meet 	its 	legal 	obliga-
tions 	by 	complying with 	the 	charter provision. 	In January 	1977,
coincidental 	with 	the 	arrival 	of 	three newly 	elected governing
board members, 	the 	governing board determined 	to 	implement 	the
recommendation of the Riles 	Commission. 	Thus, 	the decision to
draft 	individual 	contracts 	is more 	closely related 	in 	time 	to
the 	issuance 	of 	the Riles 	Commission report 	and 	the 	election of
three new governing board members. 	Moreover, 	the District hardly
attempted to 	implement 	this policy unilaterally. 	In fact, 	far
from ignoring UASF or 	the 	Teamsters, 	the District 	solicited 	their
participation 	in 	its 	efforts 	to 	comply with 	the 	charter requirements.
Section 	3543.1(a) 	of 	the 	EERA itself 	expressly contemplates
a hiatus 	between 	the raising 	and resolution of 	a 	question of
representation.1 The District 	attempted 	to 	comply with 	the 	city
1Sec. 3543.1(a) 	providing 	in pertinent part:
Employee 	organizations 	shall 	have 	the
right 	to represent 	their members 	in 	their
(cont.)
18

charter 	requirements 	and 	the 	EERA by 	inviting 	all 	interested
employee 	organizations 	to participate 	in 	the 	development 	of
individual 	contracts. 	The United States 	Supreme Court, 	in
interpreting 	the National Labor Relations Act, 	has 	specifically
held:
employment 	relations 	with public 	school
employers, 	except 	that once an employee
organization 	is 	recognized or 	certified
as 	the 	exclusive representative of an
appropriate 	unit...only 	that 	employee
organization may represent 	that 	unit....
Care has been 	taken 	in 	the opinions 	of
the Court 	to 	reserve a 	field 	for 	the 	individual
contract, 	even 	in industries 	covered by 	the
National Labor Relations Act, 	not merely as 	an
act or 	evidence of hiring, 	but 	also 	in 	the 	sense
of 	a 	completely 	individually 	bargained 	contract
setting out 	terms 	of employment, 	because 	there
are 	circumstances 	in which 	it may 	legally be used,
in fact, 	in which there is no alternative. 	With-
out 	limiting 	the possibilities, 	instances 	such
as 	the 	following will 	occur:.... 	The 	conditions
for 	collective bargaining may not 	exist; 	thus 	a
majority of 	the 	employees may refuse 	to 	join 	a
union or 	to 	agree upon or 	designate bargaining
representatives, 	or 	the majority may not be
demonstrable 	by 	the means 	prescribed by 	the
statute.... 	As 	the 	employer 	in these circum-
stances may be under no 	legal 	obligation 	to
bargain collectively, 	he may be 	free 	to 	enter
into 	individual 	contracts.2
This 	is 	a 	classic 	case 	in which there are 	two 	explanations
for an 	employer's 	conduct, 	one of which 	is 	lawful 	and the other
unlawful. 	The majority has 	chosen to 	"infer" 	the unlawful
explanation. 	I 	am unable to 	do 	so. 	The majority's 	decision
•J. I. 	Case v. NLRB 	(1944) 	321 U.S. 	332, 	336-7, 	[14 LRRM
501].
19

virtually requires 	a public 	school 	employer 	to 	suspend 	all matters
affecting 	the 	terms 	and 	conditions 	of 	employment 	of 	its 	employees
during 	the pendency of a 	question of representation. 	Such a
result was 	not 	contemplated by 	the 	EERA and defies 	common 	sense
and public 	responsibility. 	This 	is 	particularly true 	in a 	case
such as 	this 	where 	approximately 20 months 	elapsed between 	the
time UASF 	filed 	its 	request 	for 	recognition—thus 	raising 	a
question 	of 	representation—and 	a 	PERB 	conducted 	election was
held--thus 	resolving 	the 	question 	of representation.
II
The majority concludes 	the wording 	of 	the proposed 	contracts
was 	also 	intended as 	a 	threat 	of reprisal 	because 	the 	scope
of the 	contracts was 	in 	excess 	of 	that 	required by 	the 	city
charter 	and 	the 	contracts 	would 	have 	precluded negotiation 	about
some matters within 	the 	scope 	of representation 	if 	and when an
exclusive 	representative was 	selected. 	Assuming without 	deciding
that 	the 	terms 	of 	the 	proposed 	contracts were broader 	than required
by the 	city charter, 	there 	is no 	evidence 	that 	the 	terms were
more 	onerous 	than 	those under which 	the 	affected 	employees 	were
working. 	Furthermore, 	the majority's reading of the clause 	is
misplaced. 	This 	clause was 	proposed, 	prepared and 	submitted
by UASF, 	not the District. 	Further, 	it 	is 	susceptible to more
than one 	interpretation, 	including 	one which would require
negotiation of 	all matters within 	the 	scope of representation.
Even assuming, 	however, 	that 	the majority's restrictive interpre-
tation 	is 	accurate, 	this 	is not 	evidence 	that 	the District would
20

refuse 	to negotiate 	about 	all matters within 	the 	scope of
representation when negotiations 	were 	requested by 	a 	duly
selected exclusive representative. 	Nor 	is 	it 	even a threat 	to
refuse to negotiate. 	To hold, 	as 	the majority does, 	that 	this
ambiguous 	language portends 	future violations 	is 	to 	attempt 	a
prospective 	remedy 	of 	an uncommitted wrong 	and wholly 	outside
the Board's 	authority. 	More 	importantly, 	since the clause 	in
question was 	proposed by UASF, 	the majority has 	ingenuously
concluded 	that 	the rights 	of the 	employees 	UASF purported 	to
represent have 	been abridged by a 	clause 	UASF proposed. 	This
permits 	a 	charging party 	to manufacture 	and 	then 	complain 	of
an unfair practice charge 	of 	its 	own making 	and to 	receive redress
for 	its 	own transgressions.
III
Finally, 	the majority finds 	the District's 	request 	that 	some
of 	the 	employees 	petitioned 	for 	as 	supervisors 	by UASF 	serve on
its negotiating 	team for negotiations with nonsupervisory 	certifi-
cated employees 	as 	further 	evidence of the District's 	intent 	to
interfere with the 	employees' 	free choice of a representative.
While 	their argument is unclear, 	there 	are 	two 	assumptions
indispensable to 	the majority's 	conclusion: 	first, 	that 	service
on the negotiating team, 	by itself, 	confers managerial 	status 	on
an employee; 	and second, 	that an employer 	is prohibited from
enlisting 	the 	aid of 	its 	supervisor when 	it negotiates 	with rank
and 	file 	employees.
21

The majority has not 	expressly articulated 	its 	basis 	for
either 	assumption. 	This 	Board has never held 	that management
status 	is 	conferred upon an 	employee 	solely by 	that 	employee's
participation on 	a 	District's 	negotiating 	team for negotiations
with rank and 	file 	employees. 	There 	are 	sound reasons 	for
protecting a 	district's 	access 	to 	its 	supervisors 	in negotiating
with rank and file employees. 	Supervisors 	are, 	by definition,
those 	"...having authority 	in 	the 	interest of 	the 	employer 	to
hire, 	transfer, 	suspend, 	lay off, recall, promote, 	discharge,
assign, 	reward, 	or 	discipline other 	employees...."3 (Emphasis
added.) 	They are 	the persons with the 	first hand knowledge of
the actual 	conditions 	of the 	employment relationship. 	Moreover,
they are the very persons who must, 	daily and directly, 	imple-
ment 	the 	terms 	of any agreement negotiated. 	To 	deprive 	the employer
of 	their 	first hand knowledge 	is 	tantamount 	to 	requiring 	the
employer 	to negotiate 	in 	the 	dark. 	There 	is no 	evidence 	in this
case 	concerning what 	the District 	requested 	these 	employees 	to
do when 	it 	sought 	their participation on 	the negotiating 	team.
Needless 	to 	say, 	they could serve 	in a variety of ways which
would not 	result 	in 	sufficient 	alignment with management 	so 	as
to 	create 	a conflict of 	interest 	in 	their own negotiating
concerns. 	Absent 	any 	indication of 	the 	function 	they were
requested 	to perform in negotiations, 	the majority's 	conclusion
here 	is pure 	speculation.
3 See Gov. Code sec. 3540.l(m).
22

In 	conclusion, 	the majority has 	sought 	to 	cloak 	individual
events, 	each of which 	is 	in and of 	itself 	innocuous, 	with 	the
mantle 	of 	"totality of 	conduct" 	and 	thus 	to 	create 	a 	violation
out 	of 	whole 	cloth . 	This 	is 	not 	one 	of 	those 	cases 	in which
the 	whole 	is 	greater 	than 	the 	sum of 	its 	parts. 	Accordingly,
I 	dissent.
{ 	Je~ilou 	Cossack Twohey, 	Member 	V
/
23

EDUCATIONAL 	EMPLOYMENT RELATIONS 	BOARD
OF THE 	STATE 	OF CALIFORNIA
In the Matter of
UNITED ADMINISTRATORS OF SAN FRANCISCO,
Charging Party,
vs.
SAN FRANCISCO UNIFIED 	SCHOOL DISTRICT,
Respondent.
)
)
) 	Case No. 	SF-CE-87
)
)
)
)
)
)
)
)
Appearances; 	Reynold H. 	Colvin and Robert D. 	Links, 	Attorneys
(Jacobs, 	Blackenburg, 	May and Colvin), 	for United Administrators
of San Francisco; 	Corrine Lee, 	Assistant Legal Advisor, 	for
San Francisco 	Unified 	School 	District.
Before Franklin 	Silver, 	Hearing Officer.
STATEMENT OF THE 	CASE
On May 2, 	1977, 	the United Administrators of
San 	Francisco 	("UASF") 	filed 	an 	unfair practice 	charge
against 	the 	San Francisco 	Unified 	School 	District 	alleging
violations of Government Code Sections 3543.5(a), 	(b), 	and
(c)1 	based on the preparation of a draft 	of individual
employment 	contracts 	for employees within a 	proposed 	super-
visory unit 	for which 	UASF had requested recognition. 	It
was 	alleged that 	the proposed 	contracts 	would resolve
1 Hereafter, 	all 	statutory references 	are to 	the 	Government
Code unless 	otherwise noted.
Section 3543.5 provides 	as 	follows:
It 	shall be unlawful 	for a public 	school 	employer 	to:
(a) 	Impose or 	threaten to 	impose reprisals 	on
employees, 	to discriminate or 	threaten to 	discrim-
inate 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.
-1-

major 	issues 	relating 	to 	the 	terms 	and conditions 	of
employment 	and 	that 	the preparation 	of 	the 	contracts was
a 	coercive 	tactic 	designed to 	fragment 	the 	employees 	in
the unit.
On May 17, 	1977, 	UASF amended the charge, 	adding
an 	allegation 	that 	the 	District had 	designated 	certain
UASF members 	to 	serve 	as 	representatives 	on 	the District's
negotiating 	team. 	It was 	alleged 	that 	this 	action 	created
the 	possibility 	that 	those 	employees 	would then be 	desig--
nated as 	confidential 	employees, 	removing 	them from the
unit 	requested by 	UASF, 	and 	that 	this 	action was 	intended
to weaken 	and undermine 	the position of UASF 	as 	potential
exclusive representative.
While 	admitting certain of the 	facts 	alleged, 	the
District 	denied 	that 	it had 	committed 	any unfair practices.
The District 	specifically 	alleged 	that 	the 	individual
employment 	contracts 	were being prepared pursuant 	to 	the
requirements 	of 	Section 	5.101 	of 	the 	San 	Francisco 	City
Charter.
This matter was 	heard on July 	1, 	1977 	in 	San
Francisco. 	At 	the time of hearing, 	the 	allegation that
the District had violated 	Section 	3543.5(c) 	was 	dismissed
on 	the 	ground 	that no 	exclusive 	representative had yet been
certified 	to 	represent 	the proposed 	supervisory unit, 	and
that 	therefore 	the District was not 	under 	an obligation 	to
meet 	and negotiate within 	the meaning 	of 	that 	section.
Motions by 	the 	District 	to 	dismiss 	the 	charges based on
Sections 	3543.5(a) 	and 	(b) 	were 	taken under 	submission and
are 	decided 	in 	accordance with 	this 	recommended 	decision.
-2-

FINDINGS 	OF FACT
I. 	The 	Proposed Individual 	Contracts 	Of Employment.
In 1971, 	the 	San Francisco City Charter was 	amended
to provide 	(in Section 5.101):
All....vice principals, 	principals,
supervisors, 	and directors who are
appointed on or after July 	1, 	1971
or who 	are 	otherwise 	determined not
to be permanent 	employees 	shall be
employed pursuant 	to 	four 	year
contracts with 	the 	Board 	of Education,
which 	contracts 	shall be 	subject 	to
renewal 	based upon 	achieving 	and
maintaining 	standards 	of performance,
which 	standards 	of performance 	shall
be 	governed by rules 	and 	regulations
as 	promulgated by 	the 	Board of
Education.
Although 	40 	percent 	of 	the 	employees 	occupying 	the
positions 	enumerated above 	(or 	114 	employees) 	were hired
after July 1, 	1971, 	these employees have not 	at 	any time
been required to 	sign 	the 	contracts 	provided 	for 	in 	the
charter section. 	In the 	fall of 1976, 	the Riles 	Commission,
which 	had been 	formed by 	the 	State 	Superintendent 	of
Instruction 	to 	review the 	operation 	and management 	of 	the
District, 	recommended among other 	things 	that 	the 	District
prepare 	contracts 	in 	accordance with the charter 	section.
Three new members 	of 	the District 	Board 	of Education were
elected to take office 	in January, 	1977, 	and the new school
board 	thereafter 	directed 	the 	administration 	to prepare 	the
contracts.
At 	the 	time 	the Riles 	Commission report was 	issued
and 	the 	school board 	directed 	that 	the 	contracts 	be 	prepared,
and continuing to 	the present 	time, 	a 	question of represen-
tation has 	existed with regard 	to 	a 	supervisory unit 	in 	the
District.2 On April 	1, 	1976, 	the UASF filed a request
2At the hearing, 	notice of 	the official 	documents 	on 	file
in 	the related representation 	case 	(file number 	SF-R-419)
was 	taken without 	objection.
-3-

for 	recognition for a unit 	comprised of principals, 	assistant
principals, 	supervisors, 	assistant supervisors, 	directors, and
administrative 	assistants. 	The 	International 	Brotherhood 	of
Teamsters, 	Local 960, 	filed an intervention, 	and an extended
unit 	determination hearing was 	conducted 	from October 	through
December 	of 	1976. 	A proposed 	decision by a hearing officer
was 	issued on June 10, 	1977, 	and that decision is presently
on appeal to 	the EERB.
In late March, 	1977, 	the District initiated a
series 	of meetings with representatives 	of both 	the 	UASF
and the Teamsters. 	The purpose of these meetings was 	to
discuss 	the 	terms 	of the 	contracts 	to be 	signed by 	individual
employees within 	the 	proposed 	supervisory unit. 	Representa-
tives 	of both organizations 	participated in 	these 	discussions,
but 	the UASF at 	all 	times 	stated that it was 	participating
under protest. 	The objections 	of the UASF were 	directed both
at 	the terms 	of the 	proposed contract 	drafted by 	the District
and at 	the 	timing of the discussions. 	It was 	the position
of the UASF 	that negotiations 	over 	the 	individual 	contracts
should be 	postponed until 	an 	exclusive 	representative had
been certified. 	On April 13, 	1977, 	the attorney for UASF
wrote 	to 	the District 	objecting 	to 	specific provisions 	of
the 	draft 	contract 	and stating 	further:
The 	reason 	that we 	are 	specifically
raising this 	question at 	this 	time 	is
because 	your 	draft must be 	read against
the background of 	the present 	proceeding
before 	the 	Educational 	Employment 	Rela-
tions Board 	(EERB). 	You will recall
that 	UASF 	applied 	for 	representation
prior to April 1, 	1976; 	that a hearing
on unit 	determination was 	held 	and was
concluded on December 15, 	1976; 	that a
transcript was prepared, 	the matter
briefed, 	and that 	it 	is presently under
submission before 	EERB 	for 	a decision
on unit 	determination. 	We 	are 	inclined
to view that 	the presentation of a draft
of 	the particular 	type 	of Agreement which
-4-

I have 	outlined above 	constitutes 	an
unfair 	labor practice within 	the
meaning of 	the 	Rodda 	Bill 	and 	it 	is
our present 	intent 	to make 	such a
representation to EERB.
The 	testimony of Saul Madfes, 	the executive 	director
of 	the UASF, 	was 	that he participated in 	these 	discussions
because 	it was 	apparent 	to him that 	a 	contract would be
prepared and presented 	to 	the 	school 	board 	in 	spite 	of his
protests, 	and he 	therefore felt 	it necessary to provide
input 	on behalf of his 	organization.
At 	the 	first meeting, 	the District presented a
draft 	of 	the proposed contract. 	In accordance with 	the
city 	charter, 	this 	draft 	stated 	that 	the 	term of the 	contract
was 	to be 	four years. 	In addition, 	the draft contained
provisions relating to pay grade, 	pay adjustment, 	work
calendar and fringe benefits, 	evaluation procedures, 	and
termination of 	the 	contract 	by 	the 	superintendent 	for non-
performance 	of 	duties. 	The UASF had substantive 	objections
to many of 	these provisions, 	and 	specifically objected 	to
the provisions 	relating to work calendar, 	fringe benefits,
evaluations, 	and termination of the 	contract. 	Apparently
the major 	objection of 	the UASF was 	to 	the provision allowing
the 	superintendent 	to 	terminate 	the 	contract. 	It was 	the
position of 	the UASF 	that 	this 	provision was 	in conflict with
the 	charter requirement 	of a 	four-year 	contract.
During 	the 	course of 	the meetings 	the 	contract went
through 	six drafts. 	The 	final 	draft reflected changes 	in
many of the 	areas where 	the UASF had expressed concern. 	There
were 	changes 	in 	the provisions 	relating 	to work 	calendar 	and
evaluations. 	A general 	guarantee 	of 	due process 	in 	conformity
with the Education 	Code was 	added to the provision on
termination of the 	contract. 	In addition, 	there was 	a new
provision on contract renewal, 	a guarantee 	that nothing in
-5-

the 	contract 	would 	abridge rights 	granted by 	the 	Education
Code or 	city charter, 	and a reservation 	for 	future 	discussion
of additional 	provisions.3 UASF, 	however, 	remained opposed
both to 	the 	substance 	of 	the 	contract 	and 	to 	its 	being
prepared prior 	to 	the 	certification of an 	exclusive 	repre-
sentative.
A memorandum prepared by 	representatives 	of 	the
District 	records 	certain matters 	discussed at 	the 	final
meeting on June 	8, 	1977. 	The memorandum characterizes 	the
objections 	raised by the UASF as being 	that 	"... 	.this 	contract
is 	premature 	insomuch 	as 	District 	and employees 	are 	awaiting
decision of EERB." 	This memorandum was 	directed only 	to
other management 	personnel 	of 	the District 	and UASF 	first
became 	aware of 	it 	at 	the hearing during cross-examination
of Mr. 	Jungherr. 	There is no 	indication that 	it was 	ever
distributed or 	intended 	to 	be 	distributed 	to 	non-management
employees 	of 	the District.
3This provision was 	added 	specifically 	in response 	to 	the
objection 	of 	the 	UASF 	that 	there 	should be no negotiations
prior 	to 	the 	certification 	of 	an 	exclusive 	representative
which would 	foreclose 	the 	ability to negotiate 	a 	collective
agreement 	establishing 	terms 	and 	conditions 	of 	employment
for the entire unit. 	The provision 	stated:
It 	is 	anticipated by 	the parties 	that 	additional
provisions 	governing 	the public 	school 	employer/
employee relationship, 	including 	the 	establishment
of an administrator's 	grievance procedure, 	specific
notice 	and hearing procedures, 	and other relevant
matters 	shall be 	the 	subject 	of further 	discussions
between 	the parties. 	In the event 	the herein
Administrator becomes 	a part 	of a bargaining unit
as a result of the EERB 	decision, 	the word "discus-
sion" 	in 	this 	section 	shall be 	construed 	to mean
"negotiation."
-6-

The 	final 	draft was 	placed on 	the 	school board
agenda 	for adoption on June 14, 	1977. 	During the meeting,
however, 	the contract was 	taken off the agenda, 	and the
school board did not 	take 	any action on 	it. 	No 	evidence
was 	presented on 	the. reason for 	the removal 	of the contract
from the 	school board agenda. 	At 	the 	time of 	the hearing
in 	the present proceeding, 	the 	contract had not been adopted
and 	the 	school board had not 	indicated whether 	it would move
to adopt it.
The District's business manager, 	Anton Jungherr,
participated 	in most 	of 	the 	discussions 	of 	the 	contract 	on
behalf of 	the 	District. 	He 	testified 	that 	the purpose 	of
the 	discussions was 	to meet 	the requirements 	of the 	city
charter and not 	to preclude negotiations 	under 	the 	EERA.
Although there was 	some evidence 	that Mr. 	Jungherr was
impatient with 	the 	objections 	to 	the 	contract 	raised by
the 	UASF,4 the 	record 	does 	not 	indicate 	that 	the management
employees 	of 	the 	District were motivated by a 	desire 	to
discourage 	organizational 	activity. 	The 	facts 	that 	the
District 	notified 	the 	competing 	employee 	organizations 	of
the proposed 	contract 	and 	consulted with them over 	a 	two-
month 	period 	support 	an 	inference 	that 	the preparation 	of
the 	contract was 	not 	undertaken 	to 	discourage 	organizational
activity. 	There 	is no 	evidence 	that 	the District 	communicated
directly with members 	of 	the 	proposed unit with regard 	to 	the
possibility 	of requiring 	individual 	contracts.
4 Mr. 	Madfes 	testified that 	at a 	school board meeting 	in
April, 	". . .one of the board members pressed the issue
that we 	should have 	a 	contract 	on 	the basis 	that we haven't
had one 	for 	six years, 	and that was 	the meeting that
Mr. 	Jungherr stated, 	you know, 	'You give me permission
and 	I'll have 	a 	contract 	on 	the 	desk 	in 	the morning.
Either you sign it or else,' 	or words 	to that effect."
-7-

II. 	Use Of UASF Members 	In Negotiations 	With Teacher Unit.
The 	evidence related to 	this 	charge 	is 	extremely-
limited. 	Mr. 	Madfes 	testified that 	following 	the 	certifi-
cation 	of 	an 	exclusive 	representative 	for 	the 	classroom
teachers 	unit 	in the 	District, 	six employees who were members
of 	the 	proposed 	supervisory unit 	participated 	in 	the 	teachers'
negotiations 	on behalf of 	the District.5 Five 	of the 	six
employees were members 	of UASF, 	although 	one 	of those 	five
was 	also 	a member of the Teamsters.
ISSUES
1. 	Was 	the preparation of a 	draft 	of individual
four-year 	employment 	contracts 	under 	the 	general 	authority
of 	the San Francisco City Charter, 	at 	a 	time when a question
of representation 	existed with 	regard 	to 	employees 	to be
affected by 	the 	contract, 	an unfair practice?
2. 	Was 	the 	designation 	of employees within 	the
proposed 	supervisory unit 	as 	members 	of 	the 	District's
negotiating 	team for 	the 	classroom teachers 	unit 	an unfair
practice?
5 Mr. 	Madfes 	also 	testified over 	a hearsay objection 	that
those 	six employees were 	"called to 	serve" 	as 	opposed to
their volunteering. 	Under EERB regulations, 	hearsay
evidence may be 	used 	for 	the 	purpose 	of 	supplementing 	or
explaining 	other 	evidence but 	shall not be 	sufficient 	in
itself to 	support 	a 	finding unless 	it would be 	admissible
over objection in civil actions. 	(Tit. 	8, 	Cal. 	Admin.
Code sec 	35026(a)). 	This 	is 	the normal rule in administra-
tive hearings. 	(See Gov. 	Code sec. 	11513) 	Since the
testimony 	is 	hearsay which would be 	inadmissible 	in 	a 	civil
action and is 	not 	supported by 	direct 	evidence, 	no 	finding
can be made 	on whether 	or not 	the 	employees 	were 	required
to 	serve on 	the negotiating 	team.
-8-

CONCLUSIONS 	OF LAW
The 	final 	draft 	of 	the 	individual 	employment
contract, 	which was 	taken off the 	agenda during 	the June 	14
school board meeting, 	includes 	subject matter which 	is
within 	the 	scope of representation. 	The 	draft 	contains
provisions relating to wages 	and fringe benefits, 	and
detailed provisions 	on evaluation procedures, 	all 	of which
without 	question are within 	the 	scope 	of representation.
Section 	5.101 	of 	the 	city charter 	does 	not 	require 	such 	a
detailed contract. 	It merely requires 	four 	year 	employment
contracts 	". . .subject to renewal based upon achieving and
maintaining 	standards 	of performance, 	which 	standards 	of
performance 	shall be 	governed by rules 	and regulations 	as
promulgated by 	the Board of Education." 	(Emphasis 	added.)
The 	charter section does 	not 	contemplate, 	for instance,
that 	evaluation procedures will be 	contained 	in 	the contracts,
and to 	the 	extent 	that 	evaluation procedures 	are related to
maintaining 	standards 	of performance, 	the 	school board
could properly 	adopt 	regulations 	in 	this 	area rather 	than
write the procedures 	into 	individual contracts. 	Thus, 	the
-9-
Section 3543.2 provides 	in part:
The 	scope or 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 and transfer policies, 	safety
conditions of employment, 	class 	size, 	procedures to be
used for 	the 	evaluation of employees, 	organizational
security pursuant 	to 	Section 	3546, 	and procedures 	for
processing grievances 	pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7, and 3548.8
Rules 	and regulations may be 	changed at 	any 	time by 	the
school board, 	and Section 	3540 	of the EERA provides 	that
rules 	and regulations may be 	superseded by 	lawful 	collec-
tive 	agreements. 	It would be much more 	difficult 	to 	change
the 	provisions 	of individual 	contracts based upon negotia-
tions with an exclusive representative, 	especially since
the 	individual 	contracts 	would 	have 	four year 	terms 	and
in 	all 	likelihood would not 	run 	concurrently.

final 	draft 	of the 	individual 	employment 	contracts 	substan-
tially 	overlaps with 	subject matter within 	the 	scope 	of
representation 	although not 	required 	to 	do 	so by 	the
charter. 	In addition, 	EERA Section 3540.l(h) 	provides
that 	the maximum term of a 	collective 	agreement 	shall 	be
three years, 	and the 	four 	year 	term of the 	individual 	con-
tracts 	could 	conceivably 	create 	a real 	impediment 	to
negotiating with 	an 	exclusive 	representative 	over matters
within 	the 	scope 	of representation.
The 	relationship between 	individual 	and 	collective
agreements 	under 	the National 	Labor Relations Act has 	been
authoritatively analyzed in J.I. 	Case Co., 	v. 	NLRB, 	321
U.S. 	332, 	14 LRRM 501 	(1944). 	There it was 	stated that while
individual 	contracts 	of hire 	are 	proper 	and even necessary
in 	the context of collective bargaining, 	the general -terms
and 	conditions 	of 	employment will be 	contained 	in 	the
collective 	agreement, 	and the benefits 	contained in a
collective 	agreement may not be waived by 	the 	terms 	of
individual 	contracts.
Individual 	contracts, 	no matter what
the 	circumstances 	that 	justify 	their
execution or what their terms, 	may
not be availed of 	to 	defeat 	or 	delay
the 	procedures 	prescribed by 	the
National 	Labor Relations 	Act 	looking
to collective bargaining, 	nor to
exclude 	the 	contracting 	employee 	from
a 	duly 	ascertained bargaining 	unit;
nor may 	they be 	used 	to 	forestall
bargaining or 	to 	limit 	or 	condition
the 	terms 	of the 	collective 	agreement.
(Emphasis 	added.) 	14 LRRM at 504.
The circumstances 	in J.I. 	Case Co. 	v. 	NLRB were,
however, 	significantly 	different 	than 	the present 	circum-
stances. 	There 	the 	employer had refused to bargain with 	a
newly 	certified 	exclusive 	representative 	on 	the 	grounds 	that
the 	terms 	and 	conditions 	of employment were 	controlled by
existing 	individual 	contracts. 	It was 	explicitly 	found that
-10-

the 	individual 	contracts were not 	coerced or 	obtained by
unfair labor practices. 	Nevertheless, 	the 	Supreme Court
ordered the employer 	to 	cease 	giving effect 	to 	the 	individual
contracts 	to 	forestall 	collective bargaining.
In the present 	case, 	the problems 	caused by 	individual
contracts 	in J.I. 	Case have not yet occurred. 	First of all,
there 	is not 	yet 	an exclusive representative with 	the authority
to meet 	and negotiate with the District. 	Secondly, 	and more
fundamentally, 	the contracts 	have not 	yet been adopted by 	the
school board. 	If the 	contract which has been prepared were
placed before 	the 	school board, 	the board might 	change 	the
terms 	of the 	contract 	or reject 	it altogether. 	Apparently,
the District management 	has not 	itself 	settled on 	the 	contract
since 	the 	draft was removed 	from consideration by 	the 	school
board. 	Although the 	consistent 	objection of the 	UASF has
been 	that 	the 	contract would 	impair 	the 	ability of 	the
exclusive representative 	to meet 	and negotiate under 	the
EERA, 	it is 	speculative at 	this juncture 	to 	assume that 	the
contract 	which may be 	ultimately 	adopted will 	infringe 	upon
matters within 	the 	scope 	of representation 	or will be 	used
to 	forestall meeting and negotiating.
Therefore, 	the question is whether 	the District has
committed an 	unfair practice merely by proposing 	an 	individual
contract 	and asking the UASF 	(and the Teamsters) 	to 	discuss
the 	contract 	prior to 	its 	being presented 	to 	the 	school board.
It has been found that 	there was no 	intent on the part of
District management 	to 	discourage 	organizational 	activity
among its 	employees, 	and there 	is no 	evidence 	that 	there was
any 	direct 	communication with 	individual 	employees 	with
respect 	to 	the 	individual 	contracts 	or 	that 	employees 	felt
coerced in any way. 	UASF contends, 	however, 	that the 	timing
of the District's 	proposal 	-- 	six years 	after 	the city 	charter
was 	amended to provide 	for 	individual 	contracts 	and at 	a 	time
when 	a unit 	determination 	for affected 	employees 	was 	pending
before the EERB 	-- 	constitutes 	coercive 	conduct by 	the
District. 	It must be 	concluded from the record, 	however,
-11-

V
that 	the contract was 	proposed 	in response 	to 	the recommenda-
tion by the Riles 	Commission rather 	than 	the 	fact 	that 	a
request 	for recognition 	for a 	supervisory unit had been made.8 V
The mere proposal 	of a 	contract 	under 	these 	circumstances
with 	full notice 	and 	opportunity 	to 	consult 	provided 	to 	the
competing 	employee 	organizations 	cannot 	be 	construed 	as 	a
coercive 	tactic by 	the 	District.
The 	question remains 	whether 	the UASF has 	been
denied any right 	guaranteed 	to 	employee 	organizations 	by
the EERA.9 The UASF makes 	various 	contentions 	in 	this 	regard.
It 	is 	contended 	that 	the District has 	created an 	atmosphere
of 	intimidation which will 	interfere with the 	conduct 	of a
representation 	election 	and 	that 	the 	District has 	violated
its 	bbligation 	to 	remain neutral between 	competing 	employee
organizations. 	These 	contentions 	are wholly unsupported by
the record. 	There 	is no 	evidence 	of an atmosphere 	of intimi-
dation 	and 	the 	District 	has 	remained 	scrupulously neutral
with respect 	to 	the 	competing organizations. 10 It might be
argued that 	the 	UASF, 	as 	an organization competing to become
an exclusive representative, 	has 	a prospective 	and contingent
8It might 	be 	argued 	that 	the 	inclusion 	in 	the 	proposed
contract 	of 	subject 	matter within 	the 	scope 	of representa-
tion 	is 	itself evidence 	of the District's 	intent 	to 	inter-
fere with organizational activity. 	It 	does not 	appear 	from
the 	record, 	however, 	that 	the UASF ever objected specifically
on this basis. 	Rather, 	the objections were based on the
alleged unfairness 	of certain provisions 	and on 	the 	District's
preparation 	of any 	contract while 	the 	unit 	determination
was 	pending.
9 Section 3543.5(b). 	See n. 	3, 	supra.
10 In its brief, 	the UASF mentions 	the June 8 management memo-
randum as 	indicating a 	lack 	of neutrality. 	Assuming 	that
the 	obligation 	of neutrality might 	in 	some 	circumstances
apply to 	speech, 	the memorandum on 	its 	face 	is 	totally
neutral, 	and the memorandum was never made available 	to
employees.
-12-

right 	that 	the District will 	take no 	action 	to preclude 	full
'	negotiations 	once 	the 	exclusive 	representative 	is 	certified.
The District at this point, 	however, 	has 	taken no action
which would preclude 	full negotiations, 	and therefore no
right 	of the 	UASF has been denied.
The one 	final 	issue 	involves 	the use 	of employees
within 	the proposed 	supervisory unit 	as 	District 	negotiators
in dealing with the teachers 	unit. 	Again, 	the UASF argues
that 	this 	is 	a 	coercive 	tactic 	designed to undermine 	the
UASF. 	It 	is 	argued further that 	the possibility exists 	that
the 	support 	for 	the 	UASF 	in 	the 	representation 	election will
be 	diminished because 	the 	employees 	involved 	in negotiations
might be 	considered confidential 	employees, 	ineligible 	to
vote. 	These 	contentions 	are not 	supported by 	the record.
There 	is 	no 	evidence 	that 	the District put any pressure 	on
these 	employees 	to become members 	of 	the negotiating 	team,
and 	it 	may well be 	that 	their participation was 	entirely
voluntary. 	In addition, 	there is no factual basis 	to 	demon-
strate 	that 	the employees 	functioned during negotiations 	in
a way to make them confidential 	employees. 	Finally, 	of the
six employees, 	one was not 	a member 	of the UASF and one held
dual membership 	in the 	UASF and the Teamsters. 	There has
been no 	discrimination 	against 	the 	UASF.
-13-

RECOMMENDED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions
of 	law, 	and the 	entire 	record of 	this 	case, 	it 	is 	hereby
ordered 	that 	the 	unfair 	practice 	charge 	filed by 	the 	United
Administrators 	of 	San 	Francisco 	against 	the 	San 	Francisco
Unified 	School 	District 	be 	dismissed.
Pursuant 	to 	Title 	8, 	California Administrative
Code 	Section 	35029, 	this 	recommended 	decision 	and 	order
shall become 	final 	on September 16, 	1977, 	unless 	a 	party files
a 	timely 	statement 	of 	exceptions . 	See 	8 	Cal . 	Admin . 	Code
sec. 	35030.
Dated: 	August 	29, 	1977
Franklin 	Silver
Hearing 	Officer
l 	, 	..
-14-