Colusa Unified School District (PERB 0296E)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL EMPLOYEES
AND 	ITS 	COLUSA CHAPTER NO. 	574,
Charging 	Party,
v.
COLUSA 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-400
PERB Decision No. 	296
March 21, 	1983
Appearances; 	Robert A. 	Galgani 	and John I. Meeker, Attorneys
(Breon, 	Galgani, 	Godino & O'Donnell) 	for Colusa Unified School
District; 	Siona D. 	Windsor, Attorney for California School
Employees Association and 	its 	Colusa Chapter No. 	574.
Before Gluck, Chairperson; 	Tovar and Burt, Members.
DECISION
TOVAR, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
Colusa Unified School District 	(District) 	to 	the 	attached
proposed 	decision of 	a hearing 	officer 	which 	finds, 	inter 	alia,
that 	the 	District 	unilaterally 	changed 	its 	policy on 	paid
holiday 	leave 	and 	thereby violated 	subsection 	3543.5(b) 	and 	(c)
of 	the Educational Employment Relations Act 	(EERA).1
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	All 	statutory references 	are 	to 	the Government Code
unless otherwise 	indicated. 	Subsections 	3543.5(b) 	and 	(c)
provide as follows:
It 	shall 	be 	unlawful 	for 	a public 	school
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For 	the 	reasons 	discussed 	below, 	the Board 	affirms 	the
hearing 	officer's 	findings of 	fact 	and 	conclusions 	of 	law,
adopting 	his 	proposed decision 	and 	order 	as 	the 	Decision 	and
Order 	of 	the Board.
employer 	to:
(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.
DISCUSSION
The 	hearing 	officer's 	factual 	basis 	for 	concluding 	that 	the
District 	violated 	the EERA was 	his 	determination 	that 	the
collective 	bargaining 	agreement 	between 	the 	parties 	had, 	since
1977, 	made provision 	for 	paid 	holiday 	leave 	for 	classified
employees 	whenever 	the District's 	governing 	board 	should
declare 	a District 	holiday, 	and 	that 	the 	District declared 	such
holidays 	for November 18, 	1980 and February 13, 	1981 but
refused 	to grant 	its 	classified 	employees 	paid 	leave. 	On
exceptions, 	the District 	initially 	asserts 	that 	the 	hearing
officer's 	finding 	that 	the 	collective 	bargaining 	agreement
mandated 	paid 	leave on 	those 	two days was 	in error. 	The
District 	relies 	on 	the 	dictionary 	and 	the Education Code 	in
advocating 	a 	different 	interpretation 	of 	the 	pertinent 	contract
provision.
The 	hearing 	officer's 	determination 	as 	to 	the 	meaning 	of
the 	contractual 	provision on 	holiday 	leave 	was 	based 	upon 	the
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testimony 	of 	persons 	who 	actually 	participated 	in 	the
negotiation of 	the 	contract. 	He 	credited 	the 	report 	of 	those
witnesses 	that, 	at 	the 	time 	the holiday leave provision was
negotiated, 	it was 	understood 	on 	both 	sides of 	the 	table 	that
the 	agreed-upon 	provision would 	mandate 	paid 	leave 	for
classified 	employees 	whenever 	the 	District declared 	a 	local
holiday 	as 	it did on 	the 	two days 	here 	at 	issue. 	Upon a 	review
of 	the 	record, 	we 	find 	nothing which would give 	us 	reason 	to
reverse 	the 	hearing officer's 	factual 	findings. 	Santa Clara
Unified School District 	(9/26/79) 	PERB Decision No. 	104. 	In
light 	of 	the 	credited 	testimony of 	first-hand 	witnesses 	as 	to
the 	intent 	of 	the parties 	upon entering 	the 	contract, 	the
District's 	argument 	in 	support 	of 	a different construction,
relying 	as 	it does 	solely on a 	facial 	interpretation of 	the
contractual language, 	is unpersuasive.
The 	District's 	second 	ground 	for 	excepting 	to 	the 	hearing
officer's proposed 	decision 	is 	that 	his 	findings 	of 	fact 	rely
upon 	evidence 	of 	negotiating 	history which 	the 	union 	failed 	to
offer 	when 	the 	holiday leave 	dispute 	came 	before 	the 	school
board on 	a grievance 	hearing. 	To permit 	the 	union 	to present
before PERB 	evidence which 	it 	chose 	to 	withhold 	at 	the 	prior
grievance hearing, 	argues 	the District, 	would encourage
litigants 	to engage 	in 	this 	undesirable practice 	in 	the 	future;
the Board, 	therefore, 	should 	strike 	this 	evidence 	from the
record.
W3

This 	exception 	raises 	an 	issue 	which 	the District 	never
raised 	before 	the 	hearing officer 	in 	any manner. 	It 	is 	a
well-established 	rule 	of 	administrative 	appellate 	procedure
that 	a matter 	never 	raised 	before 	the 	trial 	judge 	is 	not
properly 	reviewed 	by 	the 	appellate 	tribunal on 	appeal. 	See
Fresno Unified School District 	(4/30/82) 	PERB Decision No. 	208,
at p. 	23; 	and 	see Butte View Farms v. Agricultural Labor
Relations Board 	(1979) 	95 C A . 3 d 961, 	971 	[157 Cal.Rptr. 	476].
We 	therefore 	dismiss 	the District's 	second 	ground 	for 	exception
to 	the proposed 	decision.
The 	District's 	final ground 	for 	excepting 	to 	the 	proposed
decision 	is 	that 	the 	hearing 	officer 	erred 	in 	exercising
jurisdiction over 	this matter 	because 	the 	substance 	of 	the
charge 	is 	nothing 	more 	than a 	contract 	dispute 	and 	"PERB 	is
without 	authority 	to enforce 	a contract 	solely on 	the 	basis 	of
a 	charge 	of 	unilateral 	action."2
In Grant Joint Union High School District 	(2/26/82) 	PERB
Decision No. 	196, 	the Board 	held 	that a contractual breach
which 	amounts 	to only an 	isolated default 	in 	the 	performance 	of
a 	contractual obligation 	is 	beyond 	the 	express 	legislative
grant of jurisdiction vested 	in PERB. 	Where, 	however, 	an
2EERA subsection 3541.5(b) 	provides 	as 	follows:
(b) 	The 	board 	shall 	not 	have 	authority to
enforce 	agreements 	between the parties, 	and
shall 	not 	issue 	a 	complaint on 	any 	charge
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employer 	has 	unilaterally 	deviated 	from contractual 	terms 	in 	a
way 	that 	has 	a 	"generalized 	effect 	or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	bargaining 	unit 	employees," 	such
action may 	amount 	to a 	failure 	to negotiate 	in violation of
EERA subsection 3543.5(c), 	and 	is 	thus not 	beyond 	the
limitation placed 	on 	PERB's 	jurisdiction 	by EERA 	subsection
3541.5(b).
based 	of 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
In 	the 	instant 	case, 	the 	hearing officer's decision 	to
exercise 	jurisdiction 	is 	entirely 	consistent 	with 	the 	rule 	of
law articulated 	in Grant, 	supra. 	We 	therefore 	affirm 	the
hearing officer's 	conclusions 	of 	law, 	and 	adopt 	the order 	he
proposes, 	together 	with 	the 	notice 	attached 	thereto 	as 	an
appendix, 	as 	the Order 	and Notice of 	the Board.
ORDER
Upon 	the 	foregoing Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that:
The 	findings of 	fact, 	conclusions 	of law and order 	set
forth 	in 	the 	attached 	proposed 	decision 	are 	adopted 	in 	their
entirety 	and 	herein 	incorporated 	as 	the 	findings, 	conclusions
and Order 	of 	the Board 	itself.
Chairperson Gluck 	and Member 	Burt 	joined 	in 	this Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	COLUSA
CHAPTER NO. 	574,
Charging 	Party,
v.
COLUSA 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
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Unfair 	Practice
Case No. 	S-CE-400
PROPOSED DECISION
(12/7/81)
Appearances; 	Siona Windsor, 	Attorney, 	for 	the California School
Employees Association and 	its Colusa Chapter No. 	574;
John I. Meeker, Attorney 	(Breon, Galgani 	& Godino) 	for 	the
Colusa 	Unified 	School 	District.
Before Ronald E. 	Blubaugh, 	Hearing Officer.
PROCEDURAL 	HISTORY
This 	case 	raises 	basic 	questions 	about 	the 	ability 	of 	the
Public Employment 	Relations 	Board 	(hereafter 	PERB or 	Board) 	to
interpret 	contracts 	between 	school 	employers 	and 	exclusive
representatives. 	In essence, 	the case 	involves 	an exclusive
representative's 	claim 	that 	the 	employer 	denied 	employees
certain holidays, 	thereby 	breaking 	the 	contract 	between 	the
parties 	while 	simultaneously 	committing 	an 	unfair 	practice.
Also presented 	is 	the 	question of 	whether 	the 	employer
improperly 	interfered 	with 	employee 	rights 	to 	participate 	in
the 	activities 	of 	an employee organization. 	The 	employer
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contends 	that 	the 	holiday 	dispute 	is 	a 	contractual 	matter
outside 	the 	PERB's 	jurisdiction. 	The 	employer 	also 	denies 	that
it 	interfered 	with 	protected 	employee 	rights.
The 	California 	School 	Employees 	Association 	and 	its 	Colusa
Chapter 	N o . 	574 	(hereafter 	CSEA) 	filed 	the present 	charge 	on
February 	2 5 , 	1981, 	alleging 	that 	the Colusa Unified 	School
District 	(hereafter 	District) 	had 	violated 	Government 	Code
section 3 5 4 3 . 5 ( a ) , 	(b) 	and 	(c).l 	The 	District 	answered 	the
charge 	on March 	1 7 , 	1981 	and 	raised 	the 	affirmative 	defense
that 	the 	principal 	issue 	presented 	involved 	contract
interpretation 	and 	was 	therefore 	outside 	the 	jurisdiction 	of
the 	PERB. 	An 	informal 	settlement 	conference 	proved
unsuccessful 	and 	a 	complaint 	and 	notice 	of 	hearing 	were 	issued
by 	the 	PERB on April 	3 0 , 	1981.
On May 	2 7 , 	1981, 	a pre-hearing motion 	to dismiss 	the 	charge
was 	denied. 	A 	formal 	hearing 	was 	conducted 	in Colusa 	on
1In 	relevant 	part, 	Government 	Code 	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
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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June 16, 	and 17, 	1981. 	The final 	brief was filed on
November 	9, 	1981 	and 	the matter 	was 	submitted 	for 	decision.
FINDINGS 	OF FACT
The 	Colusa Unified 	School 	District 	is 	located 	within 	the
Sacramento Valley 	county of Colusa. 	The District 	has 	an
enrollment 	of 	approximately 	1,136 	students. 	At 	all 	times
relevant, 	CSEA has 	been 	the exclusive representative of 	a
comprehensive 	unit of 	classified 	employees, 	totaling about 	35.
It was 	stipulated 	that 	the District 	is 	a public 	school 	employer
and 	that 	CSEA 	is 	an 	employee 	organization.2
In 	the 	years 	prior 	to 	the 	recognition of CSEA 	as 	exclusive
representative, 	classified 	employees 	were 	required 	to work on
certain days 	which were 	holidays 	for 	certificated 	employees.
These 	tended 	to 	be 	days 	which 	preceded 	or 	followed 	state 	and
national 	holidays. 	Typically, 	the day after 	Thanksgiving was
one 	such 	day. 	The 	District 	also would 	declare 	a local 	holiday
for 	students 	and 	certificated 	employees 	whenever Veteran's 	Day,
Lincoln's Birthday 	or 	Washington's Birthday occurred 	on 	a
Thursday or 	a Tuesday. 	It was 	the District's 	experience 	that
large 	numbers 	of 	students 	would miss 	school on 	the Friday
following 	a 	Thursday 	holiday 	and 	the Monday 	preceding 	a Tuesday
holiday. 	Because 	such 	a drop 	in 	enrollment 	adversely affects
2The 	term 	"public 	school 	employer" 	is 	defined 	at
Government Code 	section 	3540.1(k). 	The 	term "employee
organization" 	is defined at section 3540.1(d). 	Unless
otherwise 	indicated, 	all 	references 	are 	to the Government Code •
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the 	amount 	of money 	the 	District 	receives 	from 	the 	state, 	the
District 	chose 	to 	avoid 	the 	problem by declaring 	local 	holidays
in such situations.
In the 	1975-76 	school year, 	there were 	local holidays 	for
certificated 	employees 	and 	students 	on November 	21 	(the 	day
after 	Thanksgiving) 	and on February 	13 	(the 	day 	after 	Lincoln's
Birthday). 	Neither 	day was 	a holiday 	for 	classified
employees. 	In 1976-77, 	there was a local holiday for
certificated 	employees 	on November 	26 	(the 	day after
Thanksgiving). 	Classified 	employees were 	required 	to work 	the
day after 	Thanksgiving 	in 	1976.
The 	parties 	commenced 	negotiations 	in 	1977 	for 	their 	first
contract. 	In 	its 	opening proposal, 	CSEA requested an 	extensive
provision on holidays. 	The 	proposed 	article 	specifically
listed 	the 	day 	after 	Thanksgiving 	as 	a 	holiday 	for 	classified.
It 	also 	contained 	the 	following provision:
Additional 	Holidays: 	Every day declared 	by
the 	President 	or 	Governor 	of 	this 	state 	as 	a
public fast, mourning, thanksgiving, or
holiday, or 	any 	day 	declared 	a 	holiday 	by
the Governing 	Board 	under 	Education Code
section 5202, 	5202.1, or 377 or their
successors 	shall 	be 	a 	paid holiday 	for 	all
employees 	in 	the 	bargaining unit.
Neil McAfee, 	the CSEA field 	representative 	who negotiated
the 	1977 	contract with 	the District, 	testified 	that 	the
proposal 	was 	specifically 	designed 	to 	halt 	the 	District
practice of denying 	local holidays 	to classified employees. 	He
said 	he 	had 	discovered 	this 	practice 	during 	preparations 	for
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the 	1977 negotiations 	and 	wanted 	to 	change 	the 	practice.
Mr. 	McAfee's 	testimony 	is credited. 	Initially, 	the District
rejected 	the CSEA proposal 	on 	"additional 	holidays."
George 	Egling, 	the 	then 	superintendent 	who 	represented 	the
District during 	the 1977 negotiations, 	took 	the 	position 	that
classified 	employees 	were 	not 	entitled 	to 	local 	holidays 	under
the Education Code. 	In negotiations Supt. 	Egling stated 	that
he 	would put 	into 	the 	contract 	any 	benefit which was 	required
by the Education Code. 	He would not, 	however, 	agree to
benefits 	not 	already required 	by law. 	Mr. 	McAfee 	argued 	that
the District was 	required 	to 	grant 	local 	holidays 	to 	classified
employees 	and was 	in violation of 	the 	law 	by not giving
classified 	employees 	local 	holidays 	during 	previous 	years.
At 	the bargaining session of November 	17, 	1977, 	after 	the
parties 	had 	annunciated 	their 	respective 	positions 	on 	local
holidays, Mr. 	McAfee promised 	to obtain and give 	to the
District legal 	authority 	for 	his 	position. 	The 	negotiating
minutes 	kept 	by CSEA for 	the November 	17 meeting 	contain 	the
statement 	that 	"Neil 	[is] 	to get law cases on Thanksgiving
Holiday." 	At 	the 	negotiating 	session of 	December 	1, 	1977,
Mr. 	McAfee 	provided 	the District with 	copies 	of 	a 1973 	Butte
County 	Superior 	Court 	decision 	and 	a 1975 	Los 	Angeles 	County
counsel's 	opinion. 	The 	negotiating minutes 	kept 	by 	the CSEA
team describe 	the 	presentation of 	the 	legal 	authority with
these words:
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Neil 	presented District 	copies 	of 	court
cases 	regarding 	holiday 	(day 	after
Thanksgiving).
The Superior 	Court 	decision presented 	by Mr. 	McAfee
concerned 	the 	day after 	Thanksgiving 	in 1970 	and 	1971. 	It
directed 	the 	Oroville Union High 	School 	District 	to make 	a
retroactive 	payment 	to 	classified 	employees 	for 	the 	day 	after
Thanksgiving 	in 	those 	two years. 	The 	Los 	Angeles 	County
counsel's 	opinion 	involved 	a 	school 	district 	inquiry 	about
whether 	the 	district 	would 	have 	to 	give 	classified 	employees
holidays on September 	15, 	1975 and February 13, 	1976 	if 	those
days were 	holidays 	for 	certificated 	employees. 	The 	county
counsel 	concluded 	that classified, 	too, 	would 	have 	to 	be 	given
holidays 	under 	the 	provisions 	of 	the Education Code.
Following Mr. 	McAfee's 	presentation on December 	1,
Supt. 	Egling 	said he would 	have 	to 	take 	the 	information 	back 	to
the 	school 	board 	for 	review 	and 	decision. 	The 	superintendent
did 	take 	the matter 	back 	to 	the 	school 	board 	and 	conducted
lengthy discussions 	with 	board members 	about 	the 	holiday 	pay
issue. 	The 	next 	negotiating 	session 	took place 	on
December 	8, 	1977. 	The minutes 	kept 	by 	the 	two sides 	show that
on December 	8, 	1977, 	the 	two sides 	agreed 	that 	classified
employees 	thereafter 	should 	receive 	a 	paid 	holiday 	for 	the 	day
after 	Thanksgiving. 	The 	District 	minutes 	for 	that 	negotiating
session 	contain 	the 	following 	summary of 	the 	agreement:
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The 	District 	spokesperson 	stated 	that 	we
have 	reviewed 	the 	legal 	cases 	and 	the
opinions 	related 	to 	the 	day after
Thanksgiving 	and 	recognize 	that 	this 	should
be 	declared 	a 	local holiday 	for 	classified
personnel 	as 	well 	as 	certificated.3
3In relevant 	part, 	the minutes 	kept 	by 	the 	District 	for
the December 	8, 	1977 negotiating meeting 	read 	as 	follows:
The 	District 	spokesperson 	stated 	that 	we
have 	reviewed 	the 	legal cases 	and 	the
opinions 	related 	to 	the 	day 	after
Thanksgiving 	and 	recognize 	that 	this 	should
be 	declared 	a 	local 	holiday 	for 	classified
personnel 	as well 	as certificated. 	With
this 	admission 	the 	classified 	personnel 	now
have one 	other 	holiday 	this year 	in 	lieu of
Admission Day, 	a day 	that 	school was 	held.
The 	classified 	employees 	stated 	that 	they
wished 	December 	31 	to be 	this 	in 	lieu 	[of]
holiday.
It 	is 	still 	the 	board's position 	that 	only
one-half 	day 	be 	granted 	for 	Christmas Eve
and 	one-half 	day 	be 	granted 	for 	spring
vacation 	day.
CSEA 	returned 	and 	they 	said 	that 	they 	would
reluctantly 	accept 	the 	board's 	proposal 	in
that 	they 	feel 	a 	full 	day 	before Christmas
is 	appropriate. 	They wish 	the holiday
schedule 	to 	be 	in 	effect 	for 	this current
year.
The 	district 	spokesperson 	stated 	that 	we
would 	accept 	this 	in 	that 	the 	legal 	cases
make 	December 	31st 	a 	legal 	holiday 	for
classified 	employees 	anyway 	and 	we 	would
grant 	the 	one-half 	day 	spring 	vacation 	day
for 	most of 	the 	employees 	anyway. 	The
meaning 	for 	the district 	is 	that we will
have 	to pay cooks 	and 	aides 	for 	these 	days
in 	that 	they 	are on paid 	status per 	the
preceding 	day
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The CSEA minutes 	for 	the December 	8, 	1977 	session contain
this 	summary: 	Day 	after 	Thanksgiving 	OK.4
The 	contract 	ultimately 	signed 	by 	the 	parties 	lists
10 holidays, 	two half days 	and 	states 	that 	the Friday after
Thanksgiving 	is 	a holiday 	"if 	school 	is 	not 	in session."5
13.2 	is 	accepted 	as 	written with 	the 	correct
Ed. 	Code 	section 	inserted
4In relevant 	part, 	the 	minutes 	kept 	by 	CSEA 	for 	the
December 	8 meeting 	read 	as 	follows:
2:10 p.m. 	HOLIDAYS-board 	response 	is 	no 	to
additional 	1/2 day 	at Christmas Eve. 	Day
after 	Thanksgiving OK; 	New Year's Eve 	in
place 	of Admission Day. 	Dropped 13.1 	as 	it
is 	related 	to 13.1.7 	as 	stated 	in contract.
Caucus 	held 	2:30-2:40 	p.m. 	CSEA
reluctantly accepted 	District's 	proposal 	on
holidays-section 13.1.
5With 	respect 	to scheduled 	holidays, 	the 	contract 	which
resulted 	from 	the 	1977 negotiations 	provides 	as 	follows:
11.1 	Scheduled Holidays:
The District 	agrees 	to provide 	all 	employees 	in 	the 	bargaining
unit 	with 	the 	following 	paid 	holidays:
11.1.1 	New Year's Day - January 1
11.1.2 	Lincoln Day - February 	12
11.1.3 	Presidents 	Day 	- Third Monday 	in February
11.1.4 	Spring Vacation Day - 	(1/2 day) 	Friday of 	the week 	of
spring 	recess.
11.1.5 	Memorial 	Day - 	last Monday 	in May
11.1.6 	Independence Day - July 	4
11.1.7 	Labor 	Day - 	the 	first Monday 	in September
11.1.8 Admission Day - September 	9 or December 	31 	if 	school 	in
session September 	9
11.1.9 Veteran's Day - November 	11
11.1.10 	Thanksgiving Day 	- 	the Thursday proclaimed 	by 	the
President 	and 	the 	following Friday 	if 	school 	is 	not 	in session.
11.1.11 Christmas Eve 	- December 	14 	(1/2 day)
11.1.12 Christmas Day - December 	25
8

The 	contract 	also 	contains 	a 	clause on 	additional 	holidays
which parallels 	the 	language 	in 	the 	original CSEA proposal.
That section 	reads 	as 	follows:
11.2. 	Additional Holidays; 	Every day
declared 	by the 	President or Governor 	of
this State as 	a public fast, mourning,
thanksgiving, or 	holiday, 	or 	any day
declared 	a 	holiday 	by 	the 	Governing 	Board
under 	Education Code 	section 	37222 or 	their
successors 	shall 	be 	a paid 	holiday 	for 	all
employees 	in 	the 	bargaining 	unit.6
It 	is 	apparent 	from 	the negotiations minutes 	that most 	of
the 	discussions 	about 	holidays 	involved 	the 	day 	after
Thanksgiving. 	Nonetheless, 	the evidence 	also supports 	the
conclusion 	that 	while 	they 	did 	not 	talk much 	about 	other
holidays, 	it was 	understood 	that 	bargaining 	unit members would
be 	entitled 	to 	all 	additional 	holidays 	declared 	by 	the Colusa
School Board. 	This 	is 	the 	explicit meaning 	of 	contract 	article
11.2 and 	there 	is 	no evidence 	to 	suggest 	that 	the 	parties
intended 	any other meaning. 	Moreover, 	the 	rationale which CSEA
used 	to obtain 	a 	paid 	holiday 	on 	the 	day 	after 	Thanksgiving
pertained 	not 	just 	to 	that 	day 	but 	to 	all 	days 	on which
6Education 	Code 	section 	37222 provides 	as 	follows:
Declaration 	of 	holiday 	by 	governing 	board.
Notwithstanding 	any 	other 	provision 	of
sections 37220 to 37231, 	inclusive, 	and
section 	52370, 	the 	governing 	board of 	any
school 	district may declare 	a 	holiday 	in 	the
public 	schools 	under 	its 	jurisdiction when
good 	reason 	exists.
99

certificated 	employees 	received 	a 	holiday. 	CSEA's 	theory was
that 	the 	Education Code 	required 	equal 	treatment 	between
certificated 	and 	classified 	employees 	and, 	during 	the 	1977
negotiations, 	the District 	became 	convinced 	that CSEA was
correct. 	The District 	accepted 	the CSEA 	rationale 	when 	it
granted 	classified 	employees 	the 	day 	after 	Thanksgiving 	"if
school 	is not 	in session."
Furthermore, 	Supt. 	Egling made 	a comment during
negotiations 	which 	shows 	that 	the District 	knew 	it was 	agreeing
to 	grant 	classified 	employees 	other 	local 	holidays 	in 	addition
to 	the 	day after 	Thanksgiving. 	It was 	the 	uncontradicted 	and
credited 	testimony 	of 	CSEA witnesses 	Sharon 	Robinson 	and
Neil McAfee 	that 	after 	the 	parties 	agreed 	to 	the 	holiday
article 	the 	District's 	negotiator 	said 	that 	if 	the District
"had 	to 	pay local 	holidays 	. . . 	he 	foresaw 	in 	the 	future 	that
there 	would 	be 	no local 	holidays 	in 	the 	school 	calendar."
Thus, 	while 	the District was 	agreeing 	to 	grant 	classified
employees 	local 	holidays 	whenever 	certificated 	employees
received local 	holidays, 	it planned 	to avoid 	additional 	costs
by not 	granting 	local 	holidays 	to 	anyone.
In early 1978, Mr. 	Egling was 	replaced as 	superintendent 	by
James 	Mark who 	took over 	immediately as 	one of 	the District's
representatives 	during negotiations. 	By 	that 	time 	the 	parties
already 	had 	reached 	a 	tentative 	agreement 	on 	the 	contract
language 	about 	holiday 	pay 	and 	they 	did 	not 	return 	to 	the
10

subject 	at 	any 	time 	after Mr. 	Mark 	entered 	the 	negotiations.
On the 	basis of 	this 	evidence, 	it 	is concluded 	that 	the
District 	agreed 	in 1977 	to 	grant classified 	employees 	any
holiday which 	the 	school 	board might 	give 	to 	certificated
employees. 	The 	contract 	clause which made 	this 	change 	in 	the
conditions 	of 	employment 	was 	carried 	forward without 	change 	in
the 1979-1982 	contract 	between 	the 	parties.
Other 	than 	the 	day after 	Thanksgiving, 	there were 	no local
holidays 	in 	the 1978-79 or 	the 1979-80 	school 	years. 	In 1980,
Lincoln's Birthday 	(February 12) 	occurred on a Tuesday. 	This
is 	the 	type 	of 	situation where 	the District 	in previous 	years
would have 	declared a local holiday on Monday, 	February 11, 	in
order 	to avoid 	the 	loss 	of 	state funds 	due 	to a 	high 	student
absentee 	rate. 	However, 	no local holiday was 	granted on
February 11, 1980.
In 	the 	1980-81 	school 	year, 	the District 	declared 	two 	local
holidays 	in addition to 	the day after Thanksgiving. 	The 	two
local holidays were November 	10, 	a Monday which preceded 	the
Veteran's Day holiday, 	and February 13, 	a Friday which 	followed
the 	day 	after 	Lincoln's Birthday.
On November 	3, 	1980, 	CSEA field 	representative
Suzanne 	Cassell wrote 	the Colusa, 	Williams and Marysville CSEA
chapters 	and 	advised 	their 	officers 	that 	classified 	employees
in 	those 	districts 	should 	get 	paid 	local 	holidays 	on
November 10, 	1980 and February 13, 	1981. 	Ms. Cassell, who had
11

replaced Mr. 	McAfee 	as CSEA field 	representative 	in 	the mid
Sacramento Valley, 	directed 	the 	chapter 	officers 	to 	immediately
inform 	their 	local 	superintendents 	that 	under 	Education Code
section 452037, classified 	employees 	were 	entitled 	to 	be 	paid
7 At 	the 	time 	the parties 	entered 	the 	agreement, 	Education
Code 	section 	45203 	provided 	as 	follows:
Paid holidays. 	All 	probationary or
permanent 	employees 	a 	part 	of 	the 	classified
service 	shall 	be 	entitled 	to 	the 	following
paid 	holidays 	provided 	they 	are 	in 	a 	paid
status 	during 	any portion 	of 	the 	working 	day
immediately 	preceding 	or 	succeeding 	the
holiday: 	January 1, 	February 12 	known 	as
"Lincoln Day", 	the 	third Monday 	in February
known as 	"Washington Day", 	the 	last Monday
in May 	known as 	"Memorial Day", 	July 	4, 	the
first Monday 	in September 	known 	as 	"Labor
Day", 	November 	11 	known 	as 	"Veterans Day",
that 	Thursday 	in November 	proclaimed 	by 	the
President 	as 	"Thanksgiving Day," 	December
25, 	every day appointed 	by the President, 	or
the Governor 	of 	this 	state, 	as provided 	for
in subdivisions 	(b) 	and 	(c) 	of 	section 37220
for 	a public feast, 	thanksgiving or 	holiday,
or 	any 	day 	declared 	a 	holiday 	under 	section
1318 or 	37222 	for 	classified or 	certificated
employees. 	School 	recesses 	during 	the
Christmas 	and Easter 	periods 	shall 	not 	be
considered 	holidays 	for 	classified 	employees
who 	are 	normally 	required 	to work 	during
that period; 	provided, however, 	that this
shall 	not 	be 	construed 	as 	affecting 	vacation
rights 	specified 	in 	section 	45203.
Regular 	employees 	of 	the 	district who 	are
not 	normally assigned 	to 	duty during 	the
school 	holidays 	of December 	25 	and January 	1
shall 	be 	paid 	for 	those 	two 	holidays
provided 	that 	they were 	in a 	paid 	status
during 	any 	portion 	of 	the 	working 	day of
their 	normal 	assignment 	immediately
preceding 	or 	succeeding 	the 	holiday 	period.
12

for 	any local 	holidays 	given 	to certificated 	employees.
Ms. 	Cassell 	enclosed copies 	of 	decisions 	and opinions
supporting 	her 	position. 	Copies 	of 	the letter 	were 	sent 	to
When 	a 	holiday 	herein 	listed 	falls 	on a
Sunday, 	the following Monday 	shall 	be 	deemed
to 	be 	the 	holiday 	in lieu of 	the 	day
observed. 	When a 	holiday 	herein 	listed
falls 	on a Saturday, 	the 	preceding Friday
shall 	be 	deemed 	to 	be 	the 	holiday 	in lieu of
the 	day observed. 	When 	a classified
employee 	is 	required 	to work on 	any 	of 	said
holidays, he shall be paid compensation, or
given 	compensating 	time 	off, 	for 	such work,
in 	addition 	to 	the 	regular 	pay 	received 	for
the holiday, 	at 	the rate of 	time and
one-half 	his 	regular 	rate 	of 	pay.
The 	provisions 	of Article 	3 	(commencing with
section 37220) 	of Chapter 	2 of Part 	22 of
this 	division 	shall 	not 	be 	construed 	to 	in
any way 	limit 	the 	provisions 	of 	this
section, 	nor 	shall 	anything 	in 	this 	section
be 	construed 	to prohibit 	the 	governing 	board
from 	adopting 	separate 	work 	schedules 	for
the 	certificated 	and 	the 	classified
services, 	or 	from providing 	holiday pay for
employees 	who 	have 	not 	been 	in paid 	status
on 	the 	days 	specified 	herein.
Notwithstanding 	the 	adoption of 	separate
work 	schedules 	for 	the 	certificated 	and 	the
classified 	services, 	on 	any school day
during 	which 	pupils 	would 	otherwise 	have
been 	in 	attendance 	but 	are 	not 	and 	for 	which
certificated 	personnel 	receive 	regular 	pay,
classified 	personnel 	shall 	also 	receive
regular 	pay whether 	or 	not 	they 	are 	required
to 	report 	for 	duty 	that 	day.
This 	section 	shall 	apply 	to districts 	that
have 	adopted 	the merit 	system 	in 	the 	same
manner 	and effect 	as 	if 	it were a part of
article 	6 	(commencing with 	section 45240) 	of
this chapter.
13

various 	local 	school officials, 	including Colusa Unified Supt.
Jim Mark. 	No mention was 	made 	in Ms. 	Cassell's letter 	of 	the
local 	holiday 	contract 	provision 	in 	the Colusa 	agreement.
At the 	time 	she wrote 	the 	letter, Ms. 	Cassell was 	unaware
of 	the 	article 	in 	the Colusa CSEA contract which 	pertained 	to
local 	holidays. 	The 	letter 	dealt 	solely with 	her 	contention
that 	the Education Code 	required 	the District 	to 	give
classified 	employees 	the 	same 	local 	holidays 	as 	are 	given 	to
certificated 	employees. 	When Supt. 	Mark 	received 	the letter,
he 	interpreted 	it 	to 	be 	nothing other 	than 	a claim 	that 	the
District was 	obligated 	under 	the Education Code 	to 	give
classified 	employees 	holidays 	on November 	10 	and February 	13.
He 	notified 	the 	school 	board 	of 	this 	contention 	and 	sent a 	copy
of 	the 	letter 	to Robert Galgani, 	an 	attorney retained 	by the
District 	for 	advice on 	employee 	relations matters.
On November 14, 	1980, Ms. Cassell wrote to members of 	the
District 	school 	board, 	again 	asserting 	her 	contention 	that
classified 	employees 	were 	entitled 	to 	a 	paid 	holiday on
November 10, 	1980 and February 13, 	1981. 	Once more, 	her
assertion was 	based on 	the Education Code. 	The 	question of
whether 	classified 	employees 	were 	entitled 	to 	the 	two 	local
holidays 	next 	arose 	at 	a 	negotiating 	session on
November 	20, 	1980. 	Supt. Mark stated 	that the District was not
obligated 	under 	the Education Code 	to 	give 	classified 	employees
paid 	holidays 	on November 	10 	and February 	13. 	He 	distributed
14

copies of an opinion, 	dated November 19, 	1980, which had 	been
supplied to the District 	by Mr. 	Galgani. 	The opinion, 	which 	is
an analysis 	of 	relevant Education Code 	sections, 	contradicts
the 	legal 	authority earlier 	supplied 	by CSEA 	and 	concludes 	that
courts 	would 	not 	follow 	the 	various 	county 	counsel 	and 	attorney
general opinions 	which CSEA had 	given 	to 	the 	District.
Ms. 	Cassell 	responded 	that 	if 	the District 	refused 	to pay
employees 	for 	the November 	10 	holiday, 	she would 	file a
grievance 	against 	the District. 	The 	participants 	at 	the
November 	20 	negotiating 	session 	have 	slightly 	differing
versions 	of what occurred next. 	Ms. 	Cassell 	testified 	that
Mr. 	Mark 	stated 	that CSEA as 	a 	state 	organization 	should 	stay
out 	of 	the 	dispute over 	the 	holiday pay at 	the Colusa Unified
School 	District 	and 	allow 	the 	local 	employees 	to decide whether
to fight 	the District's 	position. 	Ms. 	Cassell 	testified 	that
she 	advised Mr. 	Mark that 	state 	and 	local CSEA are 	the 	same
organization 	and 	that CSEA would 	pursue 	the 	issue. 	She
testified 	that Mr. 	Mark next 	said 	that 	if CSEA pursues 	the
issue 	it would 	cost 	the District*money 	and 	that 	"win or 	lose,
CSEA loses." 	She 	testified 	that Mr. 	Mark 	stated 	that 	the 	costs
of 	the 	litigation over 	holidays would 	have 	to 	come 	out 	of 	money
available 	for 	negotiations.
Mr. 	Mark 	testified 	that 	at 	the 	time of 	the November 	20
negotiation 	session CSEA 	had 	yet 	to 	raise 	the 	contention 	that
the 	holiday 	pay 	dispute 	involved 	the 	interpretation 	of 	the
15

contract 	between the parties. 	Thus, Mr. Mark testified, 	he
believed 	that 	CSEA was 	preparing 	to 	litigate 	the 	question 	under
the Education Code. 	From that frame of 	reference, 	he
testified, 	he 	could 	not 	see why 	the 	question had 	to be 	raised
in Colusa 	when 	it 	could 	be 	litigated 	in 	some larger 	school
district 	that 	could 	better 	afford 	the 	legal 	costs.
Accordingly, Mr. 	Mark 	urged Ms. 	Cassell 	and 	the 	local 	committee
to 	consider 	letting 	the 	holiday 	pay 	issue 	be 	resolved 	elsewhere
because Colusa would 	be 	bound 	to 	the 	result, 	anyway. 	He 	said
he 	advised 	the 	negotiating 	team 	that 	the District 	was 	under
financial 	stress 	and 	that 	the 	cost 	of 	litigating 	the 	holiday
issue 	had 	not 	been 	budgeted, 	meaning 	that 	the 	money would 	have
to 	come 	from 	the 	reserve. 	He testified that he 	told 	the
committee 	that 	the 	litigation 	"would 	be 	using 	up dollars 	to
resolve 	an Education Code 	issue 	that 	other 	districts 	were
better 	equipped 	to handle."
Mr. 	Mark was 	under 	some 	tension 	at 	the meeting 	because of
the 	recent 	death 	of 	his mother. 	He 	arrived 	about 	40 minutes
late 	for 	the 	session 	because 	of 	funeral 	arrangements 	he 	had 	to
make 	as a 	result 	of 	the 	death. 	Members 	of 	the CSEA committee
knew of 	the 	death 	and 	knew 	that Mr. 	Mark was 	under 	some
pressure 	in 	his 	personal 	life. 	Both District 	and CSEA
witnesses 	testified 	that 	the 	negotiating 	atmosphere 	became
strained after Mr. 	Mark's 	arrival.
16
,

The 	testimony of both Ms. 	Cassell 	and Mr. 	Mark 	is
credited. 	Their 	respective 	versions 	of 	what 	was 	said on
November 	20 	are 	not 	inconsistent 	and 	the 	differences 	can 	be
explained 	by 	their 	differing perspectives 	on 	the 	issue 	of
holiday 	pay.
Formal 	grievances 	about 	the 	holiday 	pay 	issue 	were 	filed 	on
November 	21, 	1980, 	the day following 	the animated negotiating
session 	the parties 	held on 	the 	issue. 	The grievances
specifically 	listed 	contract 	section 	11.2, 	"additional
holidays" 	as 	the 	applicable 	section which 	had 	been violated
when 	the District 	failed 	to 	give 	classified 	employees 	a 	holiday
on November 	10, 	1980. 	Despite 	this 	statement on the 	face of
the 	grievance 	that 	the 	dispute 	concerned 	an 	alleged 	violation
of 	contract 	section 11.2, 	the District 	continued 	to focus on
the 	earlier 	CSEA 	contention 	that 	the Education Code 	required
the holiday pay. 	On November 	25, 	1980, 	the District 	received a
lengthy legal 	opinion from its 	counsel, 	Robert Galgani, 	to 	the
effect 	that 	classified 	employees 	were 	not 	entitled 	to paid
holidays 	on 	all 	non-work 	days 	for 	teachers.
After 	the grievances 	were 	filed, 	Supt. 	Mark again raised
the 	issue 	of 	why CSEA was 	pursuing 	the 	holiday 	question 	in
Colusa. 	This 	time he 	put 	the 	question directly to CSEA chapter
President Jerry Steele. 	Mr. 	Mark 	urged Mr. 	Steele 	to take 	the
matter 	up elsewhere 	unless 	it 	was 	a priority 	issue 	with members
of 	the Colusa CSEA chapter. 	Mr. 	Steele 	told 	the 	superintendent
17

he would discuss 	the 	issue 	with members 	of 	the 	local 	chapter.
After 	considering 	the 	issue 	at 	a 	special 	membership meeting
called 	by Mr. 	Steele, 	CSEA elected 	to 	go forward 	with 	the
grievance. 	A hearing 	before 	the District 	school 	board 	was 	held
on January 12, 	1981. 	When the hearing commenced, 	the
superintendent, Mr. Galgani and several, 	if not all, of 	the
members 	of 	the 	school 	board 	still 	believed 	the 	grievance
concerned 	an 	alleged 	violation of 	the Education Code. 	It was
not 	until 	after Ms. 	Cassell 	began 	her 	presentation 	that 	the
superintendent 	and 	then Mr. 	Galgani 	and members 	of 	the 	school
board 	realized 	that CSEA was 	asserting 	a 	violation 	of 	article
11.2 of 	the 	contract 	between 	the 	parties. 	Ultimately 	the
hearing was 	recessed 	to 	permit 	the District 	to 	gather 	all
available materials 	on 	the 	history of 	the 	1977 	negotiations
which led 	to 	the 	inclusion of Article 	11.2 	in 	the 	contract.
Ms. 	Cassell was 	invited 	by 	the District 	to present 	any
materials 	she 	might 	have 	on 	the 	negotiating 	history 	and 	told
that 	the 	hearing could 	be 	continued 	for 	several days 	if 	she
desired 	to 	research 	the 	issue. 	Ms. 	Cassell 	responded 	that CSEA
had 	no need 	for 	further 	research 	because 	the members 	of 	the
1977 	negotiating 	committee 	already 	had 	assured 	her 	that 	article
11.2 was 	intended 	to guarantee 	that 	classified 	employees 	would
receive 	all 	local 	holidays 	given 	to 	certificated 	employees.
On January 19, 	1981, 	members of 	the Colusa school board met
in executive 	session and 	voted 	to reject 	the 	grievance. 	The
18

written 	decision, 	which 	board members 	signed 	that 	evening,
denies 	the 	grievance 	on 	the 	ground 	that 	the Education Code 	does
not 	require 	classified 	employees 	be 	paid on a 	holiday 	basis 	for
either November 	10, 	1980 or February 13, 	1981. 	The decision
also 	states 	that 	"in view of 	the 	intent 	of 	the 	parties 	in
adopting 	the 	agreement, 	characterizing 	a day on 	the 	school
calendar 	as 	a 	'local holiday1 does 	not mean 	that 	this 	is 	to 	be
a 	'holiday' 	for 	pay purposes."
During 	the 	executive 	session, 	board member 	Jim Erdman 	told
his 	fellow 	board members 	that 	he 	had 	prepared 	a 	statement which
he 	intended 	to 	read 	when 	the 	board 	went 	back 	into public
session. 	The 	statement expressed 	his 	disappointment 	that CSEA
had 	elected 	to pursue 	the 	grievance 	and 	stated 	that 	the 	good
will 	and 	trust 	between 	the District 	and CSEA 	had 	been 	eroded
because 	of 	the 	grievance.8 After 	he 	had 	read 	the 	statement
8The 	text of Mr. 	Erdman's statement was 	as 	follows:
Since 	I 	have 	been on the school board, 	it
has 	always 	been my desire 	for 	all of 	us 	to
feel we 	have 	been working 	for 	the 	benefit 	of
the 	students 	in 	the Colusa Unified School
District. 	We 	should 	be working with one
another, 	not 	for 	some 	bureaucratic entity.
Only a few short years ago, 	the school, 	the
administration, 	the 	board 	and 	the 	community
were 	widely divided. 	Until 	recently 	I 	had
felt 	we were 	united 	once 	again, 	striving 	for
the 	same goals.
It only 	takes 	one 	small 	step 	backward 	to
undo 	all 	the 	good 	that 	has 	been achieved
19

in executive 	session, 	board 	president Gar 	Rourke 	stated 	that he
did 	not 	know whether 	reading 	the 	statement 	in 	the 	public
meeting would 	be worthwhile or 	not 	because 	it might 	be
misconstrued. 	Another 	board member, 	Dave Forry, 	responded 	that
the 	statement was 	to 	be member Erdman's personal 	statement 	and
as 	a personal 	statement Mr. 	Erdman 	should 	be 	able 	to say what
he 	wished. 	There was 	no 	other 	discussion on 	the 	issue 	and 	the
board did 	not 	vote 	on whether 	or 	not 	to 	take 	a position on 	the
Erdman 	statement.
After 	the 	executive 	session, 	the 	school 	board 	returned 	to
public 	session. 	The 	board 	voted 	to 	reject 	the CSEA 	grievance
and 	then Mr. 	Erdman 	read 	his 	statement 	which 	he 	characterized
over 	the 	past 	years. 	In a community such 	as
ours, we not only work together, 	but we also
live 	together. 	When 	this 	issue 	is 	finally
resolved, 	your 	CSEA 	representative 	will
return 	to her 	home 	and we will 	be 	left 	here
working 	and living 	together 	again. 	I 	hope
you 	realize 	the 	good will 	and 	trust 	between
us 	has 	been eroded 	because 	of 	this 	grievance.
We 	have 	always 	tried 	to 	be 	open 	and 	honest
with 	you. 	We planned 	salary 	increases 	in
our 	budget 	and 	have 	always 	said 	that 	if
there were more 	than a 	5% 	reserve we would
give 	it to our 	employees. 	Last year, due 	to
prudent spending 	by all 	the 	staff, we were
able 	to grant 	a 	3% off 	the 	schedule 	salary
increase 	for 	this 	year. 	We 	hoped 	this would
be 	a 	strong 	expression 	of 	our 	desire 	to 	be
fair 	with 	you. 	This 	apparently 	is 	not 	the
case 	and 	I 	am 	saddened 	that 	you no longer
have 	the 	confidence 	in your 	school 	board
that we once 	had 	in you.
S/Jim 	Erdman
20

as 	a 	"personal" 	statement. 	There was 	no discussion of 	the
statement 	and 	the 	other 	board members 	offered 	no 	comment 	about
it. 	Following 	the 	board action, 	the superintendent personally
notified 	the 	employees 	in whose 	names 	the 	grievances 	had 	been
filed 	that 	the 	grievances 	were 	denied. 	One 	of 	those 	grievants
was 	Sharon 	Robinson, 	a CSEA negotiator. 	During 	their 	brief
conversation, 	the 	superintendent 	told 	her 	that 	the District 	had
spent 	$1,000 on 	the 	issue 	as 	of 	that 	date 	and 	that 	sometimes
local 	chapters 	could 	possibly 	resolve 	their 	own 	problems 	rather
than 	looking 	toward 	organized 	representation. 	He 	did 	not 	make
similar 	remark 	to 	the 	other 	grievants 	when he 	personally
notified 	them 	of 	the 	school 	board's 	decision.
Classified 	employees 	were 	required 	to work on 	both
November 	10, 	1980 and February 13, 	1981. 	Those employees who
took 	one or 	both 	days 	off 	were 	required 	to 	use 	vacation or
leave 	time. 	Those who worked were 	paid 	at 	their 	regular 	rate.
Certificated 	employees 	and 	students 	were 	not 	required 	to 	be
present 	on either 	day. 	The 	agreement 	between 	the 	parties 	does
not 	provide 	for 	binding 	arbitration of 	rights 	disputes. 	Review
by 	the District 	governing 	board 	is 	the 	final 	step 	in 	the
grievance 	process. 	After 	the 	school 	board 	rejected 	the 	claim
for 	holiday pay, 	the grievants 	had 	no other 	contractual 	remedy
to pursue.
LEGAL 	ISSUES
1) 	Does 	the 	PERB have jurisdiction 	to consider 	whether
21

conduct 	arguably 	in 	violation 	of 	a 	negotiated 	agreement 	is 	an
unfair 	practice?
2) 	If 	s o , 	did 	the 	District 	violate 	section 	3543.5(c) 	and/or
(b) 	by 	denying 	holidays 	to 	classified 	employees 	on
November 	1 0 , 	1980 	and February 	1 3 , 	1981?
3) 	Did 	the District, 	through 	the 	comments 	of 	the
superintendent 	and 	a member 	of 	the 	school 	board, 	threaten 	or
otherwise 	interfere 	with 	the 	protected 	rights 	of 	employees 	in
violation 	of 	section 	3543.5 (a)?
CONCLUSIONS 	OF 	LAW
Jurisdiction 	of 	the 	PERB
Under 	the 	Educational 	Employment 	Relations 	Act 	(section
3540 	et 	seq., 	hereafter 	E E R A ) , 	the 	PERB 	has 	the 	authority 	to
investigate 	unfair 	practice 	charges 	and 	to 	take 	action 	and 	make
determinations 	about 	them.9 However, 	in 	cases 	where 	the
disputed 	conduct 	arguably 	is 	a 	violation 	of 	a 	negotiated
agreement, 	the 	PERB's 	jurisdiction 	is 	subject 	to 	a 	statutory
prohibition. 	Specifically, 	the EERA 	precludes 	the 	PERB 	from
enforcing 	agreements 	between 	the 	parties 	and 	provides 	that 	the
9 S e c t i o n 	3541.3(i) 	grants 	the 	PERB 	the 	power:
(i) 	to 	investigate 	unfair 	practice 	charges
or 	alleged 	violations 	of 	this 	chapter, 	and
take 	such 	action 	and 	make 	such
determinations 	in 	respect 	of 	such 	charges 	or
alleged 	violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this
chapter.
22

agency may 	not 	issue 	"a 	complaint 	on 	any 	charge 	based on 	an
alleged 	violation 	of 	such 	an 	agreement 	that 	would 	not 	also
constitute 	an 	unfair 	practice 	under 	this 	chapter."10
10	l sect	sect ion 	3541.5 provides 	as 	follows:
The 	initial 	determination 	as 	to whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if so, what remedy is necessary to
effectuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a matter 	within 	the exclusive
jurisdiction of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by
the 	board 	and 	shall 	include 	all 	of 	the
following:
(a) 	Any employee, employee organization, or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge 	except 	that 	the 	board
shall 	not do either 	of 	the 	following: 	(1)
issue 	a complaint 	in 	respect 	of 	any charge
based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the charge; 	(2) 	issue a complaint
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance machinery of 	the
agreement, 	if 	it exists 	and covers the
matter 	at 	issue, had been exhausted, 	either
by 	settlement 	or 	binding 	arbitration.
However, 	when 	the 	charging party
demonstrates 	that 	resort 	to 	contract
grievance 	procedure would 	be 	futile,
exhaustion shall 	not 	be 	necessary. 	The
board 	shall 	have 	discretionary 	jurisdiction
to 	review 	such 	settlement 	or 	arbitration
award 	reached 	pursuant 	to 	the 	grievance
machinery solely 	for 	the 	purpose 	of
determining whether 	it 	is 	repugnant 	to 	the
purposes 	of 	this 	chapter. 	If 	the 	board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to 	the 	purposes 	of 	this
chapter, 	it shall 	issue 	a complaint on the
basis 	of 	a 	timely filed 	charge, 	and hear 	and
decide the case on the merits; 	otherwise, 	it
23
O

shall 	dismiss 	the 	charge. 	The 	board
shall, 	in 	determining whether 	the 	charge 	was
timely 	filed, 	consider 	the 	six-month
limitation 	set 	forth 	in 	this 	subdivision 	to
have 	been 	tolled 	during 	the 	time 	it 	took 	the
charging 	party 	to 	exhaust 	the 	grievance
machinery.
(b) 	The 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the 	parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
(c) 	The 	board 	shall 	have 	the 	power 	to 	issue
a 	decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies 	of
this 	chapter.
The 	present 	case, 	the 	respondent 	contends, 	is 	the 	kind 	from
which 	the 	EERA 	has 	divested 	the 	PERB 	of 	jurisdiction.
Specifically, 	the District 	argues, 	the matter 	at 	issue 	can 	be
resolved 	only 	through 	an 	interpretation 	of 	the 	negotiated
agreement. 	The 	PERB would 	be 	entitled 	to 	construe 	the
contract, 	the District 	argues, 	if 	the District 	were defending
its 	action on 	a 	theory 	of 	waiver. 	In 	that 	circumstance, 	the
District 	continues, 	the 	PERB 	could 	examine 	the 	contract 	to
determine 	whether 	or 	not 	the 	exclusive 	representative 	actually
had 	waived 	its 	right 	to 	negotiate 	over 	the 	matter 	at 	issue.
Absent 	a 	claim of 	waiver, 	the District 	argues, 	the PERB 	is
prohibited 	from 	interpreting 	the 	contract.
24

As 	authority for 	this 	proposition, 	the District cites 	the
federal 	labor 	relations 	cases 	of NLRB v. 	C 	& C Plywood Corp.
(1967) 	385 U.S. 	421 	[64 LRRM 2065] 	and Mastro Plastics Corp. 	v.
NLRB 	(1956) 	350 U.S. 	270 	[37 LRRM 2587]. 	Both cases 	involved
contract 	interpretation 	by 	the National 	Labor 	Relations Board
in order 	to determine whether 	or 	not 	an exclusive
representative 	had waived 	its 	right 	to 	negotiate 	about 	certain
matters. 	In addition, 	the District 	cites 	several public sector
decisions 	from other 	states, 	New York 	in 	particular.
The 	charging 	party likewise 	relies 	on C 	& C 	Plywood Corp.
and 	its 	progeny. 	However, 	the 	charging 	party does 	not 	read 	the
federal cases 	as 	narrowly as 	does 	the 	respondent 	and 	contends
that 	under 	them 	the 	PERB 	does 	have 	authority 	to 	interpret 	the
negotiated 	agreement 	to determine 	whether 	the District 	has 	made
an 	unlawful 	unilateral 	change. 	The 	charging 	party 	argues 	that
it 	is not 	asking 	the PERB 	to enforce 	the 	collective 	agreement
but 	is 	asking 	the 	PERB 	to direct 	the 	respondent 	to 	stop making
mid-term 	unilateral changes 	about matters 	within scope. 	In
order 	to make 	this determination, 	CSEA continues, 	the PERB must
be 	able 	to look at 	the contract language, 	the 	intent of 	the
parties 	and 	the 	past practice.
In Baldwin Park Unified School District 	(4/4/79) 	PERB
Decision No. 	92, 	the Board upheld 	the dismissal of an unfair
practice 	charge 	because 	the 	charge 	as 	stated 	constituted 	only
an 	accusation 	of 	a 	contract 	violation. 	The Board 	observed 	that
25

unless 	the 	allegations 	at 	issue 	would 	constitute 	a 	violation 	of
the EERA, 	independent 	from any contractual violation, 	the PERB
is 	without 	authority to act.
The present case, 	however, 	involves more 	than an alleged
contractual 	violation. 	It 	is 	contended 	here 	that 	the District
made 	a 	unilateral change 	in 	a 	term 	and 	condition 	of 	employment,
i.e., 	the 	holiday schedule 	of 	classified 	employees. 	A
unilateral change 	in a 	term 	and 	condition of 	employment would
be 	a failure 	to negotiate 	in 	good 	faith 	in violation 	of 	section
3543.5(c) .
Still, 	in order 	to determine whether 	or 	not 	there was 	a
unilateral 	change, 	it 	is 	necessary to examine 	and 	interpret 	the
negotiated 	agreement 	between 	the 	parties, 	something which 	the
District 	contends 	the 	PERB may not 	do 	unless 	the District
claims waiver. 	It 	is 	concluded 	that 	in 	asserting 	this
proposition 	the District 	reads 	the 	federal 	cases 	far 	too
narrowly. 	In Sea Bay Manor Home 	(1980) 	253 NLRB No. 	68 	[106
LRRM 1010] , 	a case cited by CSEA, 	the National Labor Relations
Board 	observed 	that 	while 	a 	breach 	of 	contract 	is 	not
necessarily an 	unfair 	labor 	practice, 	it 	does 	not 	follow 	that
"conduct 	. . . 	of 	a kind condemned 	by the act 	. 	. 	. must be
ruled 	out 	as 	an 	unfair 	labor 	practice 	simply 	because 	it 	happens
also to be 	a 	breach of 	contract." 	106 	LRRM 1010 at 	1012. 	No
defense 	of 	waiver 	was 	asserted 	in Sea 	Bay Manor 	Home 	and 	the
National Labor 	Relations 	Board 	interpreted 	the 	contract 	in
26

order 	to 	find 	if 	an 	unfair 	labor 	practice 	had 	been 	committed.
Similarly, 	in Anaconda Aluminum Co. 	(1966) 	160 NLRB 	35 	[62
LRRM 1370] 	the 	National Labor 	Relations Board 	interpreted 	the
terms 	of a collective 	bargaining 	agreement 	in order 	to
ascertain whether 	the 	employer 	had made 	a 	unilateral change.
In 	finding 	a violation, 	the administrative law judge 	and
ultimately 	the 	NLRB considered 	both 	the 	literal 	terms 	of 	the
agreement 	and 	custom and 	usage 	in 	the 	plant.
These 	federal decisions 	are 	consistent with 	the 	very
wording of 	the 	applicable 	section of 	the EERA. 	The 	statute
does 	not 	divest 	PERB of 	authority whenever 	a contract 	exists.
Rather, 	it 	states 	simply 	that 	the PERB 	shall not enforce
agreements 	and 	shall 	not 	issue 	a complaint on conduct 	in
alleged 	violation 	of 	an 	agreement 	unless 	that 	conduct 	also
would constitute 	an unfair 	practice. 	Plainly, 	the 	PERB has
authority 	to 	consider 	any 	act 	which might 	be 	a 	violation 	of 	the
EERA, 	regardless 	of whether 	it 	independently violates 	a
negotiated 	agreement. 	The 	only 	restriction 	is 	that 	cases
involving 	both 	contractual 	and 	statutory 	violations 	ordinarily
must 	be 	deferred 	to 	the 	grievance machinery of 	the 	contract 	if,
unlike 	the present case, 	it provides 	for 	binding arbitration.
(See 	section 3541.5.) 	Because 	the 	allegations 	in 	the present
case 	involved 	conduct 	that 	independently 	would 	violate 	the
EERA, 	regardless 	of whether 	it also might violate 	the contract,
the 	PERB 	has 	jurisdiction 	to consider 	the 	issues presented.
27

The 	Alleged 	Unilateral Change
CSEA contends 	that 	in 	refusing 	to grant 	holidays 	to
classified employees on November 	10, 	1980 	and on February 	13,
1981 	the District made 	a 	unilateral change 	in 	a matter 	within
the 	scope of 	representation.!1 This 	change was made, 	CSEA
continues, 	without prior 	notice 	to CSEA and without prior
opportunity 	to negotiate. 	Citing 	PERB decisions 	as precedent,
CSEA argues 	that 	such 	a change was per 	se 	a 	failure 	to
negotiate 	in 	good 	faith 	and 	thus 	a 	violation of 	Section
3543.5(c).
In disputing 	this 	claim, 	the District contends 	that 	the
record 	simply 	fails 	to 	establish 	that 	the 	parties 	intended 	to
give 	local 	holidays 	to classified 	employees 	when 	they wrote 	the
11The 	scope 	of 	representation 	under 	the EERA 	is 	set forth
in Section 3543.2. 	In relevant part, 	that section provides:
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, 	procedure 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
28

contract. 	Furthermore, 	the District continues, 	the past
practice 	shows 	that 	classified 	employees 	worked 	five 	local
holidays 	in 	1975 	and 1976. 	Nothing 	in 	the 1977 negotiations
constituted 	an 	abandonment 	of 	this past practice, 	the District
concludes.
It 	is 	well-established 	that 	an 	employer 	which makes 	a
pre-impasse 	unilateral 	change 	about 	a matter 	within 	the 	scope
of 	representation 	violates 	the EERA. 	Such 	unilateral 	changes
are 	inherently destructive 	of 	employee 	rights 	and 	are 	a 	failure
per 	se of 	the 	duty to negotiate 	in good 	faith. 	For 	this
reason, 	the 	PERB 	frequently has 	found 	such 	changes 	to 	be 	in
violation of 	section 3543.5(c). 	See generally, 	Davis Unified
School District 	(2/22/80) 	PERB Decision No. 	116, 	San Francisco
Community College District 	(10/12/79) 	PERB Decision No. 	105 and
San Mateo Community College District 	(6/8/79) 	PERB Decision
No. 94.
The 	subject matter 	of 	the 	present 	dispute 	is paid
holidays. 	Although 	paid 	holidays 	is 	not 	a subject specifically
listed within the EERA's scope of 	representation, 	it 	is a
matter 	logically 	and 	reasonably 	related 	to 	both 	wages 	and
hours. 	It 	is 	a matter 	of 	concern 	to both management 	and
employees 	and 	could 	be a 	cause 	of 	conflict without 	the
mediatory 	influence 	of 	collective 	negotiations. 	Requiring
negotiations 	about 	holidays 	will 	not 	significantly 	abridge 	the
29

employer's 	freedom 	to 	exercise 	the managerial 	prerogatives
essential 	to 	achievement 	of 	the 	District's 	mission.12 It 	is
not difficult, 	therefore, 	to conclude 	that paid holidays 	is a
mandatory subject 	of 	negotiations. 	In 	seeking 	to obtain a paid
holiday 	an 	employee organization 	negotiates 	about wages 	and
hours. 	It is a fundamental 	subject.
The District contends, 	however, 	that 	it made no change
because 	classified 	employees 	in Colusa 	never 	have 	been 	entitled
to local holidays.
This 	argument 	ignores 	the 	1977 	negotiations. 	The 	evidence
establishes 	that 	it was CSEA's 	intent 	in 1977 	to 	stop what 	it
perceived 	as 	an 	inequality of 	treatment 	between 	classified 	and
certificated 	employees. 	CSEA 	sought 	and won 	the 	right 	to
1 2 The PERB 	test 	for 	determining whether 	a matter 	is
within 	the 	scope 	of 	representation 	is 	concisely 	set 	forth 	in
Anaheim Union High School District 	(10/28/81) 	PERB 	Decision No.
177. 	The 	test provides 	that:
. . . 	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
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.
30

receive 	local 	holidays. 	This was CSEA's specific 	intention 	and
the 	record 	establishes 	that 	the 	then 	superintendent 	understood
the 	implications 	of 	contract 	section 11.2, 	"Additional
Holidays." 	That 	classified 	employees 	did 	not 	receive 	local
holidays 	prior 	to 1977 	is 	irrelevant. 	The 	practice 	changed
when 	the 	agreement 	was 	negotiated 	and 	beginning with 	the
signing of 	the 	contract, 	the 	condition of 	employment was 	that
classified 	unit members 	would 	receive 	all 	local 	holidays.
When 	the District 	refused 	to 	give 	classified 	employees 	the
day off on November 	10, 	1980 and February 13, 	1981, 	it
unilaterally changed a 	term 	and 	condition 	of 	employment. 	It
made 	this 	change 	without 	notice 	to 	the 	exclusive 	representative
and 	without 	an opportunity 	to negotiate. 	Davis Unified School
District, 	supra, 	PERB Decision No. 	116. 	This action per 	se was
a 	failure 	to 	negotiate 	in 	good 	faith 	and 	a 	violation 	of 	section
3543.5 (c). 	Because 	the action was 	taken without giving 	the
exclusive 	representative 	the opportunity to negotiate, 	it 	also
deprived 	the 	organization 	of 	its 	right 	to 	represent 	its
members13 and was 	a concurrent 	violation of 	section 	3543.5(b).
1 3 I n relevant 	part, 	section 	3543.1 	provides 	that;
(a) 	Employee organizations shall have 	the
right 	to represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to Section 	3544.1
31

or 	3544.7, 	respectively, only that employee
organization may represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join 	and 	may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership.
Alleged 	Interference 	With 	Protected 	Rights
CSEA's other 	contention 	is 	that 	the District, 	through 	the
statements 	of 	the 	superintendent 	and 	a 	school 	board member,
interfered 	with 	the 	protected 	rights 	of 	employees 	to 	be
represented by CSEA. 	This conduct, 	it is contended, was 	in
violation of 	section 3543.5 (a). 	The comments, CSEA argues,
effectively 	disparaged 	the 	grievance 	procedure 	as 	"disruptive,
divisive, 	time 	consuming 	and personally 	injurious 	to 	those 	who
chose 	to participate in 	it." 	The 	comments, 	CSEA contends, 	fall
outside 	any rights 	of 	speech 	which 	employers might 	possess 	in
order 	to express 	their 	views 	to 	employees.
The District 	responds 	that 	nothing 	in 	the 	comments 	of
either 	Supt. 	Mark or 	board member Erdman 	rise 	to 	the 	level 	of 	a
statutory violation. 	There was 	no 	threat 	of 	reprisal 	nor 	any
comments 	from which a 	threat 	could 	be 	inferred, 	the District
asserts. 	Citing 	both PERB and 	federal precedent, 	the District
argues 	that 	an 	employer 	is 	allowed 	to 	discuss 	economic
consequences 	outside of 	its 	control 	and 	the 	comments 	made 	by
the 	superintendent 	and 	board member 	went 	no further.
32

Public 	school 	employees 	are 	assured 	by 	the EERA 	of 	the
right 	to form, 	join and participate 	in 	the 	activities 	of
employee 	organizations.14 If 	a 	public 	school 	employer
interferes 	with 	protected 	rights or makes 	threats, 	imposes
reprisals 	or 	discriminates 	against 	employees 	because 	of 	their
exercise of 	these 	rights, 	the 	employer 	will 	have violated
section 	3543.5(a). 	The 	conduct 	in which employees 	engaged 	at
Colusa 	was 	the 	filing 	of 	grievances 	over 	the 	holiday pay
issue. 	The 	filing of 	grievances 	is protected 	conduct 	under 	the
EERA. 	See 	generally, 	South San Francisco Unified School
District 	(1/15/80) 	PERB Decision No. 	112; 	Baldwin Park Unified
School District 	(4/4/79) 	PERB Decision No. 	92; Mount Diablo
Unified School District 	(12/30/77) 	EERB Decision No. 	44. 	CSEA
14In 	relevant 	part 	section 	3543 	provides:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee organizations 	of
their 	own 	choosing 	for 	the 	purpose of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also have 	the 	right 	to
refuse 	to join or 	participate 	in 	the
activities 	of 	employee organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 3544.1 	or 	certified 	pursuant 	to
Section 	3544.7, 	no 	employee 	in 	that 	unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer 	. . . .
33

contends 	that 	the 	District 	interfered 	with 	the 	right 	of
employees 	to engage 	in 	this 	conduct 	and 	made 	threats 	of
reprisal. 	Both 	contentions are 	based 	upon statements 	made 	by
the 	superintendent 	and 	board 	member 	Erdman.
Employers 	are 	not 	precluded 	by 	the 	EERA 	from 	expressing
their 	views on 	employment-related matters. 	This 	right of
employer 	speech 	necessarily 	includes 	the 	ability 	to make
critical 	as 	well 	as 	favorable comments 	about 	a union's
position, 	so long as 	the 	communication 	is not 	used as 	a means
of 	violating 	the 	statute. 	A violation occurs 	only when 	an
employer's 	speech 	contains 	a 	"threat of 	reprisal or 	force or
promise 	of 	benefit." 	Rio Hondo Community College District
(5/15/80) 	PERB Decision No. 	128. 	In making a determination
about 	whether 	certain 	speech 	by an 	employer 	was 	a 	violation,
the 	PERB will 	consider 	the 	speech 	in 	light of 	its 	actual or
probable 	impact 	on 	the 	person 	receiving 	the 	communication.15
In 	this 	case, 	the contested 	employer 	speech amounted 	to a
criticism of CSEA 	for 	pursuing 	the 	holiday pay 	issue 	in
Colusa. 	Supt. 	Mark criticized 	the organization's 	decision at
the 	November 	20 	negotiating 	session where 	he 	questioned 	whether
15Other 	relevant 	PERB 	cases 	analyzing 	the 	legality of
employment 	or 	organization 	related 	speech 	by 	an 	employer
include: 	San Diego Unified 	School District 	(6/19/80) 	PERB
Decision No. 	137; 	Antelope Valley Community College District
(7/18/79) 	PERB Decision No. 	97; 	Clovis Unified School District
(8/7/78) 	PERB Decision No. 	61.
34

local 	CSEA people 	actually 	agreed 	with 	the 	decision 	to 	raise
the 	issue 	in Colusa. 	The 	superintendent 	raised 	the 	issue 	again
on 	at least one occasion 	after November 	21, 	that 	time 	to CSEA
chapter 	President Steele. 	Board member 	Erdman's 	comments 	at
the January 	19, 	1981 	school 	board meeting 	involved 	the 	same
theme. 	Mr. 	Erdman 	stated 	that 	pursuing 	the 	grievance 	had 	been
a 	"step 	backward" 	and 	that 	it 	had 	adversely 	affected 	the
improving 	relationship 	between 	the 	school 	board 	and 	the 	members
of 	the 	negotiating 	unit.
These 	comments 	are 	not 	unlike 	the 	employer 	speech 	which 	the
PERB 	found lawful 	in Rio Hondo, 	supra. 	In Rio Hondo, 	the
employer 	was 	critical 	of 	an 	employee organization's 	decision 	to
file 	a lawsuit 	against 	the 	employer. 	One 	communication 	at
issue 	in Rio Hondo was 	a memo 	from 	an 	assistant 	superintendent
in 	which 	he 	criticized 	the 	lawsuit 	and 	sought 	to persuade
employees 	to convince 	the 	employee 	organization 	to withdraw 	the
civil 	action. 	The other 	document, 	which was written by the Rio
Hondo 	superintendent, 	expressed 	the 	employer's 	dissatisfaction
with 	the 	employee 	organization 	response 	to 	an 	employer
proposal. 	In that 	communication, 	the 	superintendent 	also
expressed 	dissatisfaction 	with 	the 	conduct 	of 	the 	president 	of
the 	employee 	organization. 	The 	superintendent 	stated 	that 	the
organization 	officer's 	conduct 	had 	adversely 	affected 	the
cooperative 	relationship which 	the 	parties 	previously had
35

enjoyed. 	In 	its 	analysis, 	the PERB concludes 	that neither 	of
these 	comments 	amounted 	to a 	threat 	of 	reprisal 	or 	force 	or 	a
promise 	of 	benefit.
The 	similarity of 	the 	speech 	in Rio Hondo 	to 	that 	in Colusa
is obvious. 	There was only one 	comment made 	in Colusa which
might 	rise 	to the 	level of 	a 	threat 	of 	reprisal. 	That 	comment
was Supt. 	Mark's 	statement at 	the November 	20, 	1980 negotiating
session 	that 	if CSEA were 	to 	further 	pursue 	the 	grievance 	it
would 	cost 	the District money 	and 	that 	"win or 	lose, 	CSEA
loses." 	The 	superintendent 	stated 	that 	the 	costs 	of 	litigation
over 	holidays 	had 	not 	previously 	been 	provided 	for 	in 	the
District 	budget. 	The money 	thus would 	have 	to 	be 	drawn 	from
the District's 	undistributed 	reserve, 	the 	same 	source 	of 	funds
from which 	negotiated 	benefits 	would 	be 	drawn, 	thus 	leaving
less money 	for 	contractual 	improvements.
In context, however, not even Supt. Mark's "win or lose"
comment 	can 	be 	considered a 	threat of 	reprisal. 	In 	essence,
the 	remark was 	a 	statement 	that 	the 	District 	had 	limited 	funds
and 	any 	expenditure 	of 	money 	for 	litigation would 	bring 	a
corresponding 	reduction 	in money 	available 	for 	other 	purposes,
including 	negotiated 	benefits. 	This 	statement was made 	only
once, 	during 	a 	negotiating 	session which 	both 	sides 	have
described 	as 	strained. 	The 	superintendent made 	the 	remark 	at 	a
time he was 	under 	personal 	stress 	due 	to 	the 	recent 	death 	of
36

his mother. 	He 	arrived 	at 	the negotiating 	session 	just 	after
he 	had made 	funeral 	arrangements. 	This 	fact was 	known 	to 	the
CSEA negotiating 	team at 	the 	time. 	The 	superintendent's 	remark
was 	made 	to an 	experienced CSEA 	field 	representative. 	The
remark 	was 	not 	repeated 	in 	subsequent meetings 	and 	no other
comments 	which might 	be 	interpreted 	as 	threats 	were made 	by 	the
superintendent.
Under 	these 	circumstances, 	the 	superintendent's remark
should 	not 	reasonably 	have 	been 	interpreted 	as 	a 	threat. 	It
was 	an 	angered 	expression 	in 	a 	tense 	negotiation 	session 	by 	a
man 	known to 	be 	under 	personal, 	emotional 	stress. 	The remark
was 	made 	to a professional 	employee 	organization 	representative
who 	possessed 	the 	experience 	to evaluate 	the 	circumstances 	in
which 	it was 	made.
For 	these 	reasons, 	it 	is concluded 	that 	the 	remarks 	of
Supt. 	Mark 	and 	board member Erdman 	did 	not 	constitute
interference 	with 	protected 	rights 	nor 	threat 	of 	retaliation
for 	participation 	in protected 	rights. 	CSEA, 	therefore, 	has
failed 	to prove 	its 	allegation 	that 	the District 	violated
section 3543.5 (a).
REMEDY
The 	charging 	party 	seeks 	an order 	that 	the District 	be
directed 	to 	reinstate 	the 	terms 	and 	conditions 	of 	employment
which 	the District 	unilaterally 	abandoned. 	The 	charging 	party
also asks 	that 	employees 	be made whole 	for 	any losses 	they
37

incurred 	because 	of 	the District's 	unilateral 	change.
Specifically, 	the 	charging 	party asks 	that 	employees 	be
retroactively given the 	holidays 	of November 	10, 	1980 	and
February 13, 	1981. 	As 	to employees 	who worked on 	those days,
the 	charging 	party 	asks 	that 	they 	be 	paid 	in 	accord 	with 	the
contractual 	provision 	for 	work on 	holidays. 	As 	to employees
who did 	not work, 	the 	charging 	party 	asks 	that 	those who 	took
the 	day or 	days 	off 	as 	vacation or 	compensating 	time or 	leave
time 	have 	restored 	to 	them 	the 	amount 	of 	vacation or
compensating 	time or 	leave 	time 	they 	used on 	the 	holidays. 	As
to 	employees 	who 	did 	not work 	and 	who were 	not 	paid 	because
they used no vacation, 	leave 	or 	compensating 	time, 	the 	charging
party 	asks 	that 	they 	be 	paid 	for 	the 	holiday 	at 	the 	regular
rate of 	pay.
Under Government Code section 3541.5(c), 	the PERB 	is given:
. 	. 	. 	the power 	to issue a decision and
order 	directing 	an 	offending 	party 	to cease
and 	desist 	from 	the 	unfair 	practice 	and 	to
take 	such 	affirmative 	action, 	including 	but
not 	limited 	to 	the 	reinstatement 	of
employees 	with or without 	back pay, 	as 	will
effectuate 	the 	policies 	of 	this 	chapter.
In 	cases 	involving 	unilateral 	changes 	in matters 	within 	the
scope 	of 	representation, 	the PERB has ordered 	the 	restoration
of 	the 	status quo 	ante, 	including 	interest at 	the 	rate 	of 	seven
percent. 	San Mateo Community College District, 	supra, 	PERB
Decision No. 	94. 	Here, 	the remedies 	sought by the charging
38

party 	are 	appropriate 	to 	restore 	the 	status 	quo 	ante 	and 	to
make 	unit members 	whole 	for 	the 	loss 	of 	the 	two 	vacation days
in 	the 	1980-81 	school year.
It 	also 	is 	appropriate 	that 	the District 	be 	directed 	to
cease 	and 	desist 	from 	its 	unfair 	practices. 	It 	is 	appropriate
that 	the 	District 	be 	required 	to post 	a notice 	incorporating
the 	terms 	of 	the order. 	The 	notice 	should 	be 	subscribed 	by 	an
authorized 	agent 	of 	the 	District 	indicating 	that 	it will 	comply
with 	the 	terms 	thereof. 	The 	notice 	shall 	not 	be 	reduced 	in
size. 	Posting will 	provide 	employees 	with 	notice 	that 	the
District 	has 	acted 	in 	an 	unlawful 	manner 	and 	is 	being 	required
to cease 	and 	desist 	from 	this 	activity. 	It effectuates 	the
purposes 	of 	the EERA that 	employees 	be 	informed 	of 	the
resolution 	of 	the 	controversy and 	announces 	the 	District's
readiness 	to 	comply with the 	order 	remedy. 	See Placerville
Union School District 	(9/18/78) 	PERB Decision No. 	69. 	In
Pandol 	and Sons v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d 	580, 	587,
the 	California District 	Court 	of Appeal 	approved 	a posting
requirement. 	The U.S. 	Supreme Court 	approved 	a 	similar 	posting
requirement 	in NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S.
426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions of law,
and 	the 	entire 	record of 	this case, 	and pursuant 	to Government
Code 	section 	3541.5 (c) 	of 	the Educational Employment Relations
39
I

Act, 	it 	hereby 	is 	ordered 	that 	the Colusa Unified School
District, 	Board of Trustees, 	superintendent and 	their
respective 	agents 	shall:
A. 	CEASE AND DESIST FROM:
Making 	unilateral 	changes 	in matters 	within 	the 	scope 	of
representation, 	specifically, 	by refusing to grant members of
the 	classified 	negotiating 	unit 	as 	paid 	additional 	holidays
those 	days 	"declared 	a 	holiday 	by 	the 	governing 	board 	under
Education Code 	section 	37222."
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE EERA:
1. 	In accord 	with 	the 	existing practices 	within 	the
District 	for 	setting 	the 	rate 	of 	pay for 	work on holidays, 	make
retroactive 	payment 	plus 	interest 	at 	the 	rate 	of 	seven 	percent
to 	those members 	of 	the 	classified 	negotiating 	unit who worked
on November 	10, 	1980 and/or February 13, 	1981.
2. 	Make whole 	those 	employees 	who 	did 	not work on
November 	10, 	1980 and/or February 13, 	1981 	and as 	a result were
either 	docked 	pay or 	expended 	vacation, 	leave or 	compensating
time. 	Pay 	to employees 	who 	did 	not 	work and were 	not 	paid, 	all
lost wages plus 	interest at 	the rate of 	seven percent, 	in
accord 	with 	existing practices 	within 	the 	District 	for 	setting
the 	rate 	of 	pay 	for 	persons who do not work on 	holidays.
Restore 	to 	employees 	who 	did 	not 	work 	but 	were 	paid 	because
they used 	either 	vacation, 	leave or 	compensating 	time, 	the
40

amount 	of 	vacation, 	leave or 	compensating 	time 	they 	used on 	the
holiday(s) .
3. 	Within five 	(5) 	workdays after 	the date of
service 	of 	a 	final decision 	in this matter, 	post 	at 	all work
locations 	where 	notices 	to employees 	customarily are 	posted,
copies 	of 	the 	notice 	attached 	as 	an appendix 	hereto signed 	by
an authorized 	agent 	of 	the 	employer. 	Such posting 	shall 	be
maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the 	notices 	are
not 	altered, 	reduced 	in 	size, 	defaced or 	covered with any other
material.
4. 	Within 	twenty 	(20) 	consecutive 	workdays 	from 	the
service 	of 	the 	final 	decision 	herein 	notify 	the Sacramento
Regional Director 	of 	the Public Employment Relations Board 	in
writing 	of 	what 	steps 	the 	employer 	has 	taken 	to 	comply with 	the
terms of 	this order. 	Continue 	to report 	in writing 	to 	the
regional 	director 	periodically 	thereafter 	as 	directed. 	All
reports 	to 	the 	regional 	director 	shall 	be 	served 	concurrently
on 	the 	charging 	party 	herein.
It 	further 	is 	ordered 	that 	the 	present 	charge 	be 	DISMISSED
in all 	other 	respects.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on December 	28, 	1981 	unless 	a party files 	a 	timely
statement 	of 	exceptions. 	See California Administrative
41

Code, 	title 	8, 	part III, 	section 32300. 	Such statement of
exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the executive 	assistant 	to 	the Board 	itself 	at 	the 	headquarters
office 	in Sacramento 	before 	the 	close of 	business 	(5:00 p.m.)
on December 	28, 	1981 	in order 	to be 	timely filed. 	See
California Administrative Code, 	title 8, 	part III,
section 	32135. 	Any statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently with 	its 	filing 	upon 	each
party to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed with
the PERB 	itself. 	See California Administrative Code, 	title 	8,
part III, 	sections 	32300 and 	32305, 	as amended.
Dated: 	December 	7, 	1981
Ronald E. 	Blubaugh
Hearing 	Officer
42

APPENDIX A
NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the State 	of California
After 	a hearing 	in Unfair 	Practice Case No. 	S-CE-400,
California School Employees Association, 	Chapter No. 	574 v.
Colusa Unified School 	District, 	in which 	all 	parties 	had 	the
right 	to participate, 	it has 	been found 	that 	the Colusa Unified
School 	District 	violated 	the 	Educational Employment 	Relations
Act, Government Code section 3543.5(b) 	and 	(c).
As 	a result of 	this conduct, 	we 	have 	been ordered 	to post 	this
notice 	and we 	will 	abide 	by 	the 	following:
A. 	CEASE AND DESIST FROM:
Making 	unilateral 	changes 	in matters 	within 	the 	scope 	of
representation, 	specifically, 	by refusing to grant members
of 	the 	classified 	negotiating 	unit 	as 	paid 	additional
holidays 	those 	days 	"declared 	a 	holiday 	by 	the 	governing
board 	under 	Education Code 	section 	37222."
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ERRA:
1. 	In 	accord 	with 	the 	existing 	practices 	within 	the
District 	of 	setting 	the 	rate 	of 	pay 	for 	work on
holidays, 	make 	retroactive 	payment plus 	interest 	at 	the
rate of 	seven percent 	to 	those members of 	the
classified 	negotiating 	unit who worked 	on November 	10,
1980 and/or February 13, 	1981.
2. 	Make 	whole 	those 	employees who 	did 	not work on
November 	10, 	1980 and/or February 13, 	1981 and as a
result 	were 	either 	docked 	pay or 	expended 	vacation,
leave 	or 	compensating 	time. 	Pay 	to employees 	who did
not work 	and were 	not 	paid, 	all 	lost wages plus
interest 	at 	the 	rate of 	seven percent, 	in 	accord with
existing 	practices 	within 	the District 	for 	setting 	the
rate 	of 	pay for 	persons 	who 	do not work on 	holidays.
Restore 	to 	employees 	who 	did 	not work 	but 	were 	paid
because 	they used either 	vacation, 	leave 	or
compensating time, 	the amount of vacation, 	leave or
compensating 	time they used on 	the holiday(s).

3. 	Within five 	(5) 	workdays after 	the date of 	service of 	a
final decision 	in 	this matter, 	post at 	all work
locations 	where 	notices 	to 	employees 	customarily 	are
posted, copies 	of 	this notice 	signed 	by an authorized
agent 	of 	the 	employer. 	Such posting 	shall 	be
maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure
that 	the notices 	are 	not 	altered, 	reduced 	in size,
defaced 	or 	covered 	with 	any 	other 	material.
4. 	Within twenty 	(20) 	consecutive workdays 	from the
service 	of 	the 	final 	decision 	herein 	notify 	the
Sacramento Regional 	Director 	of 	the 	Public Employment
Relations Board 	in writing 	of 	what 	steps 	the 	employer
has 	taken 	to comply with 	the 	terms 	of 	this order.
Continue 	to report 	in writing 	to 	the 	regional 	director
periodically thereafter 	as 	directed. 	All 	reports 	to
the 	regional 	director 	shall 	be 	served 	concurrently on
the 	charging 	party herein.
COLUSA 	UNIFIED SCHOOL 	DISTRICT
Dated: 	By
Authorized 	Representative
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR 30
WORKING DAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT 	BE ALTERED,
REDUCED 	IN SIZE, 	DEFACED OR COVERED WITH ANY OTHER MATERIAL.