Gonzales Union High School District (PERB 0480E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GONZALES UNION HIGH SCHOOL DISTRICT,

Charging Party, Case No. SF-CO-195

Ve PERB Decision No. 480

GONZALES UNION HIGH SCHOOL DISTRICT January 10, 1985

TEACHERS ASSOCIATION, CTA/NEA,

Respondent.

Appearances: Littler, Mendelson, Fastiff & Tichy by Larry P.
Shapiro and Jennifer J. Walt, Attorneys for the Gonzales Union
High School District; Ramon E. Romero, Attorney for the
Gonzales Union High School Teachers Association, CTA/NEA.

Before Hesse, Chairperson; Jaeger and Burt, Members.
DECISION

JAEGER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by both the
Gonzales Union High School District (District) and the Gonzales
Union High School District Teachers Association, CTA/NEA
(Association), to an Administrative Law Judge's (ALJ) proposed
decision, attached hereto, finding that the Association
violated section 3543.6(b) of the Educational Employment
Relations Act (Act), Government Code section 3540 et seq.

We have reviewed the proposed decision in light of the
parties' appeals and, finding it free from prejudicial error,

adopt it as the Decision of the Board itself.

There 	is 	one 	issue, 	however, 	which 	we 	feel 	is 	necessary 	to
address 	in 	this 	Decision. 	At 	the 	outset 	of 	the 	hearing 	in 	this
matter, 	pursuant 	to 	PERB 	Regulation 	32155(a) (4) , 1 the
District 	filed 	a 	motion 	to 	disqualify 	the ALJ 	on 	the 	ground 	of
bias. 	Essentially, 	the 	District 	asserted 	that 	the ALJ 	had
shown 	bias 	by 	ruling 	against 	it 	in 	a 	previous 	case. 2 The ALJ
denied 	the 	motion. 	Thereafter, 	the 	District, 	pursuant 	to 	PERB
Regulation 	32115(d) , 3 filed 	a 	request 	with 	the 	Board 	itself
to 	appeal 	the ALJ's 	refusal 	to 	disqualify 	himself.
lPERB 	Regulation 	32155(a) (4) 	provides:
••• 	no 	Board 	agent 	performing 	an
adjudicatory 	function, 	shall 	decide 	or
otherwise 	participate 	in 	any 	case 	or
proceeding:
. 	. 	. 	. 	. 	. 	. . 	. 	. . . . . . 	. . 	. 	. . 	.
When 	it 	is made 	to 	appear 	probable 	that,
by 	reason 	of 	prejudice 	of 	such 	••• 	Board
agent, 	a 	fair 	and 	impartial 	consideration
of 	the 	case 	cannot 	be 	had 	before 	him or
her.
2ultimately, 	the ALJ's 	determination 	in 	that 	earlier
case 	was 	affirmed 	in 	part 	and 	reversed 	in 	part 	by 	the 	Board 	in
Gonzales 	Union 	High 	School 	District 	(9/28/84) 	PERB 	Decision 	No.
410.
3PERB Regulation 	32155(d) 	provides:
If 	the 	Board 	agent does 	not 	disqualify
himself 	or 	herself 	and 	withdraw 	from 	the
proceeding, 	he 	or 	she 	shall 	so 	rule 	on 	the
record, 	state 	the 	grounds 	for 	the 	ruling,
and 	proceed 	with 	the 	hearing 	and 	the
issuance 	of 	the 	decision. 	The 	party
requesting 	the 	disqualification may,
within 	ten 	days, 	file 	with 	the 	Board
2

In 	Gonzales 	Union High 	School 	District 	(2/27/84) 	PERB 	Decision
No. 	379, 	the 	Board 	denied 	the 	District's 	request 	to 	appeal 	the
ALJ's 	refusal 	to 	disqualify 	himself. 	In 	so 	doing, 	the 	Board
did 	not 	consider 	the 	merits 	of 	the 	request 	and 	stated 	that 	the
District could 	reassert 	its 	disqualification 	argument 	on 	appeal
of 	the 	proposed 	decision, 	should 	it 	so 	desire. 	The 	District
has 	excercised 	this 	option 	and 	urges 	the 	Board 	to 	disqualify
the ALJ.
The 	District 	urges 	as 	grounds 	for 	disqualification 	that 	the
ALJ 	"demonstrated 	••• 	a 	propensity 	to 	distort 	the 	evidence"
in 	this 	case 	and 	in 	an 	earlier 	case. 	It 	asserts 	that 	it 	is
irrelevant 	that, 	in 	this 	case, 	the ALJ 	found 	for 	the 	District
or 	that 	in 	the 	earlier 	case, 	Gonzales 	Union High 	School
District, 	supra, 	the 	Board 	upheld, 	in 	part, 	the ALJ's 	finding
that 	the 	District 	violated 	the Act. 	In 	the 	District's 	view,
the 	evidence 	was 	so 	overwhelming 	in 	these 	cases 	in 	favor 	of 	its
position, 	that 	any 	findings 	made 	by 	the ALJ 	to 	the 	contrary
necessarily 	evidence 	bias.
For 	the 	reasons 	set 	forth 	below, 	we 	find 	that 	the
District's 	ground 	for 	urging 	disqualification 	is 	inadequate 	as
a 	matter 	of 	law.
itself 	a 	request 	for 	special 	permission 	to
appeal 	the 	ruling 	of 	the 	Board 	agent. 	If
permission 	is 	not 	granted, 	the 	party
requesting 	disqualification may 	file
exceptions, 	after 	hearing 	and 	issuance 	of
the 	decision, 	setting 	forth 	the 	grounds 	of
the 	alleged 	disqualification 	along 	with
any 	other 	exceptions 	to 	the 	decision 	on
its 	merits.
3

PERB 	Regulation 	32155(a) (4) 	is 	modeled 	after 	section 	170
of 	the Code 	of 	Civil 	Procedure. 	That 	section 	provides, 	in
relevant 	part:
(a) 	No 	justice 	or 	judge 	shall 	sit 	or 	act
as 	such 	in 	any 	action 	or 	proceeding:
. 	. . . . . . 	. 	. . . 	. 	. . . 	. 	. . 	. 	. 	.
(5) 	When 	it 	is 	made 	to 	appear 	probable
that, 	by 	reason 	of 	bias 	or 	prejudice 	of
such 	justice 	or 	judge 	a 	fair 	or 	impartial
trial 	cannot 	be 	had 	before 	him.
There 	is 	a 	large 	body 	of 	case 	law construing 	this
section, 	all 	of 	which 	goes 	against 	the 	District's 	contention 	in
this 	case. 	First 	of 	all, 	it 	has 	long 	been 	held 	that 	a 	judge's
opinion 	concerning 	a 	question 	of 	law or 	any 	error 	of 	law, 	no
matter 	how gross, 	does 	not 	constitute 	bias 	or 	prejudice.
Andrews 	v. 	ALRB 	(1981) 	28 	Cal.3d 	781; 	Dietrich 	v. 	Litton
Industries 	(1979) 	12 Cal.App.3d 	704; 	Ryan 	v. 	Welte 	(1948)
87 	Cal.App.2d 	888; 	People 	v. 	Rojas 	(1963) 	216 	Cal.App.2d 	819;
In 	re 	Bruchman's 	Estate 	(1955) 	132 Cal.App.2d 	81; 	Mackie 	v.
Dyer 	154 	Cal.App.2d 	395; 	Calhoun v. 	Superior 	Court 	(1947) 	30
Cal.App.2d 	312; 	U.S. 	v. 	Morgan 	(1941) 	313 	U.S. 	409. 	Similarly,
erroneous 	factual 	rulings 	against 	a 	litigant, 	even 	when
numerous 	and 	continuous, 	form 	no 	grounds 	for 	a 	charge 	of 	bias
or 	prejudice, 	especially 	when 	they 	are 	subject, 	as 	here, 	to
appellate 	review. 	McEwen 	v. 	Occidental 	Life 	Insurance 	Co.
(1916) 	172 Cal. 	6; 	Kreling 	v. 	Superior 	Court 	(1944) 	63
4

Cal.App.2d 	353, 	overruled 	on 	other 	grounds, 	(1944) 	25 	Cal. 	305;
Sacramento 	Suburban 	Fruit 	Co. 	v. 	Tatham 	(1930) 	40 	F.2d 	893.
Rather, 	for 	bias 	or 	prejudice 	to 	be 	found, 	there 	must 	be
evidence 	of 	a 	"fixed 	anticipatory 	prejudgment" 	against 	a 	party
by 	the 	judge. 	In 	re 	Marriage 	of 	Fenton 	(1982) 	134 	Cal.App.3d
451; 	Ensher, 	Alexander 	& 	Barsoom, 	Inc. 	v. 	Ensher 	(1964) 	225
Cal.App.2d 	318. 	Thus, 	for 	example, 	when 	a 	judge 	hearing 	one 	of
several 	actions 	involving 	the 	same 	defendant 	stated 	that 	the
defendant 	had 	committed 	perjury, 	he 	was 	disqualified. 	Evans 	v.
Superior 	Court 	(1930) 	107 	Cal.App. 	372; 	Chastain 	v. 	Superior
Court 	(1936) 	14 	Cal.App.2d 	97. 	Similarly, 	a 	judge 	was
disqualified 	on 	the 	basis 	of 	prejudice 	in 	a 	child 	adoption
proceeding 	where, 	earlier 	in 	the 	year, 	he 	had 	written 	to 	the
director 	of 	the 	county 	bureau 	of 	adoptions 	that 	"this 	adoption
should 	be 	nipped 	in 	the 	bud." 	Adoption 	of 	Richardson 	(1967)
251 	Cal.App.2d 	222. 	In 	other 	words, 	unless 	the 	judge 	makes
statements 	indicating 	a 	clear 	predisposition 	against 	a 	party,
no 	bias 	or 	prejudice 	is 	established. 	See 	also Andrews 	v. 	ALRB,
supra; 	Ensher, 	Alexander 	& Barsoom, 	Inc. 	v. 	Ensher, 	supra.
Similarly, 	under 	the 	National 	Labor 	Relations Act 	(19
u.s.c. 	151 	et 	seq.), 	the 	National 	Labor 	Relations 	Board 	and 	the
federal 	courts 	have 	held 	on 	numerous 	occasions 	that 	factual 	or
legal 	determinations 	adverse 	to 	a 	party 	do 	not 	establish
prejudice 	or 	bias. 	NLRB 	v. 	Pittsburg 	Steamship Co. 	(1949) 	337
U.S. 	656; 	NLRB 	v. 	Air 	Flow Sheet Metal, 	Inc. 	(7th Cir. 	1968)
396 	F.2d 	506 	[68 	LRRM 	2329]; 	NLRB 	v. 	Central 	Press 	(9th 	Cir.
5

1975) 	527 	F.2d 	1156 	[91 	LRRM 	2236]. 	As 	the 	U.S. 	Supreme 	Court
stated 	in NLRB 	v. 	Pittsburg 	Steamship Co., 	supra, 	24 	LRRM 	at
2178, 	"total 	rejection 	of 	an 	opposed 	view cannot 	itself 	impugn
the 	integrity 	or 	competence 	of 	a 	trier 	of 	fact."
In 	this 	case, 	the 	District 	has 	alleged 	no 	evidence 	of
bias 	other 	than 	the 	fact 	that 	the ALJ 	has 	resolved 	factual
questions 	contrary 	to 	its 	position. 5 we 	find, 	consistent
with 	established 	precedent 	in 	this 	area, 	that 	making 	factual
findings 	with 	which 	a 	party 	to 	a 	proceeding 	disagrees 	is
insufficient, 	as 	a 	matter 	of 	law, 	to 	establish 	bias 	or
prejudice. 6 Accordingly, 	the 	District's 	motion 	to 	disqualify
the ALJ 	on 	the 	grounds 	of 	bias 	is 	denied.
ORDER
Upon 	the 	foreging 	findings 	of 	fact 	and 	conclusions 	of
law, 	and 	the 	entire 	record 	in 	this 	matter, 	and 	pursuant 	to
Government 	Code 	section 	3541.5(c), 	it 	is 	hereby ORDERED 	that
51n 	its 	exceptions, 	the 	District 	asserts 	that 	the ALJ,
at 	footnote 	8 	of 	the 	proposed 	decision, 	referred 	to 	the
substance 	of 	a 	previous 	charge, 	Case 	No. 	SF-CE-633, 	in
violation 	of 	a 	stipulation 	of 	the 	parties. 	This 	reference,
inasmuch 	as 	it 	did 	not 	affect 	the 	outcome 	of 	this 	case, 	was, 	at
most, 	nonprejudicial 	error.
61ndeed, 	inasmuch 	as 	the 	Board 	has 	affirmed 	the ALJ's
decision 	both 	in 	this 	case 	and, 	in 	part, 	in 	the 	earlier
Gonzales 	case, 	the 	District's 	contention 	that 	the ALJ 	has
"distorted" 	evidence 	is 	groundless. 	However, 	even 	if 	the ALJ
were 	to 	have 	reached 	a 	decision 	replete 	with 	factual 	or 	legal
errors, 	such 	conduct 	would 	be 	insufficient, 	as 	a 	matter 	of 	law,
to 	justify 	disqualification.
6

the 	Gonzales 	Union 	High 	School 	District 	Teachers Association,
CTA/NEA 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Refusing 	to 	meet 	and 	negotiate 	with 	the 	Gonzales
Union High 	School 	District during 	the 	summer 	recess; 	and
2. 	Refusing 	to 	negotiate 	with 	the 	Gonzales 	Union
High 	School 	District 	about 	employee 	discipline 	and 	employee
layoffs.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO 	EFFECTUATE 	THE
POLICIES OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS ACT:
1. 	Within 	35 	days 	following 	the 	date 	the 	Decision
is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all 	work
locations 	where 	notices 	to 	employees 	customarily 	are 	placed 	and
at 	its 	headquarters 	office, 	copies 	of 	the 	Notice 	attached 	as 	an
Appendix 	hereto, 	signed 	by 	an 	authorized 	agent 	of 	the 	Gonzales
Union 	High 	School 	District 	Teachers Association, 	CTA/NEA. 	Such
posting 	shall 	be 	maintained 	for 	a 	period 	of 	30 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the
Notice 	is 	not 	reduced 	in 	size, 	defaced, 	altered, 	or 	covered 	by
any 	material.
2. 	Written 	notification 	of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be 	made 	to 	the 	regional 	director
of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance 	with
his/her 	instructions.
Chairperson 	Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
7

APPENDIX
NOTICE TO 	EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC 	EMPLOYMENT 	RELAIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice Case 	No. 	SF-C0-195,
Gonzales 	Union 	High 	School 	District 	v. 	Gonzales 	Union 	High
School 	District 	Teachers Association, 	CTA/NEA, 	in 	which 	all
parties 	had 	the 	right 	to 	participate, 	it 	is 	found 	that 	the
Gonzales 	Union 	School 	District 	Teachers Association, 	CTA/NEA
violated 	the 	Educational 	Employment 	Relations Act, 	Government
Code 	section 	3543.G(b) 	by 	refusing 	to 	negotiate 	in 	good 	faith
with 	the 	Gonzales 	Union 	High 	School 	District.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice 	and 	we 	will:
CEASE AND 	DESIST 	FROM:
1. 	Refusing 	to 	meet 	and 	negotiate 	with 	the 	Gonzales
Union 	High 	School 	District during 	the 	summer 	recess; 	and
2. 	Refusing 	to 	negotiate 	with 	the 	Gonzales 	Union 	High
School 	District 	about 	employee 	discipline 	and 	employee 	layoffs.
Dated: 	GONZALES 	UNION 	HIGH 	SCHOOL
DISTRICT TEACHERS ASSOCIATION,
CTA/NEA
By: Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	DEFACED, 	ALTERED, 	REDUCED 	IN 	SIZE OR COVERED BY ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GONZALES 	UNION 	HIGH 	SCHOOL
DISTRICT,
Charging 	Party,
v.
GONZALES 	UNION 	HIGH 	SCHOOL
TEACHERS 	ASSOCIATION,
_________________
Respondent.
)
)
)
)
)
)
)
)
)
)
)
_ )
Unfair 	Practice
Case No. 	SF-CO-195
PROPOSED 	DECISION
(6/1/84)
Appearances: 	Larry 	P. 	Schapiro 	(Littler, 	Mendelson, 	Fastiff 	&
Tichy) 	for 	the 	charging 	party 	Gonzales 	Union High 	School
District: 	Ramon 	E. 	Romero, 	attorney 	(California 	Teachers
Association), 	for 	the 	respondent 	Gonzales 	Union 	High 	School
Teachers 	Association.
Before: 	Martin 	Fassler, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
In 	a 	charge 	filed 	on July 	11, 	1983, 	the 	Gonzales 	Union High
School 	District 	(hereafter 	District) 	accused 	the 	Gonzales 	Union
High 	School Teachers 	Association 	(hereafter 	Association) 	of
refusing 	to 	meet 	and 	confer 	in 	good 	faith 	with 	the 	District
during 	contract 	negotiations. 	The 	District 	accused 	the
Association 	of 	violating 	section 	3543.G(c) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA or 	Act)l 	by: 	refusing 	to
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	EERA 	section 	3543.G(c) 	provides:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:

schedule 	negotiating 	meetings 	during 	the 	summer 	of 	1983;
refusing 	to 	negotiate 	about 	certain 	mandatory 	subjects 	of
bargaining; 	refusing 	to 	meet 	with 	the 	District's
representatives 	outside 	the 	normal 	hours 	of 	the 	teachers'
workday; 	insisting 	on 	discussions 	of 	ground 	rules 	for 	the
negotiations, 	and 	thus 	preventing 	discussion 	of 	the 	substantive
issues 	concerning 	wages, 	hours, 	and 	terms 	and 	conditions 	of
employment; 	and 	several 	related 	acts 	of 	misconduct.2
On September 	30, 	1983, 	a 	complaint 	was 	issued 	incorporating
the 	District's 	allegations 	of 	misconduct. 	In 	its 	answer 	to 	the
complaint, 	the 	respondent 	denied 	all 	wrongdoing 	and 	asserted,
by 	way 	of 	an 	affirmative 	defense, 	that 	the 	charge 	was 	frivolous
and 	included 	intentional 	misrepresentations 	of 	fact. 	An
informal 	settlement 	conference 	was 	held 	October 	24, 	1983, 	but
the 	dispute 	was 	not 	resolved.
On November 	16, 	the 	charging 	party 	filed 	an 	amendment 	to
its 	original 	charge, 	alleging 	that 	at 	negotiating 	meetings 	held
in 	September 	and 	October 	the 	respondent 	failed 	to 	negotiate
(c) 	refuse 	or 	fail 	to 	meet 	in 	good 	faith
with 	a 	public 	school 	employer 	of 	any 	of 	the
employees 	of 	which 	it 	is 	the 	exclusive
representative.
All 	future 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	specified.
2The 	charging 	party's 	allegations 	and 	the 	respondent's
defenses 	are 	considered 	in 	more 	detail 	in 	the 	Discussion 	and
Analysis 	section.
2

in 	good 	faith, 	as 	evidenced 	by 	its 	refusal 	to 	make
counterproposals 	to 	the 	District's 	proposals 	on 	various
subjects.
A hearing 	on 	the 	matter 	was 	held 	on November 	28 	and 	29, 	and
December 	7, 	1983, 	and 	January 	30 	and 	31, 	1984. 	At 	the 	outset
of 	the 	hearing, 	the 	undersigned 	administrative 	law 	judge
ordered 	that 	the 	complaint 	be 	amended 	to 	incorporate 	the
allegations 	of 	the 	amendment.
Each 	party 	submitted 	a 	post-hearing 	brief 	on April 	20,
1984, 	and 	the 	matter 	was 	submitted 	for 	decision 	at 	that 	time.
FINDINGS 	OF 	FACT
A. 	Background 	and 	an 	Overview of 	Negotiations.
The 	District 	and 	the 	Association 	were 	signatories 	to 	a
collective 	bargaining 	agreement 	in 	effect 	from 	September 	8,
1981 	until 	June 	30, 	1982. 	Because 	neither 	party 	sought
renegotiation 	of 	the 	contract 	in 	early 	1982, 	the 	contract, 	by
operation 	of 	its 	own 	terms, 	was 	extended 	until 	(at 	least)
June 	30, 	1983.
In 	mid-January 	1983, 	the 	Association 	gave 	notice 	to 	the
District 	that 	it 	wished 	to 	terminate 	the 	old 	agreement, 	and 	to
begin 	negotiations 	for 	a 	new 	agreement. 	On February 28, 	1983,
the 	Association 	presented 	to 	the 	District, 	at 	the 	District's
regular 	board 	meeting, 	its 	initial 	proposals 	for 	a 	new
collective 	bargaining 	agreement. 	Details 	of 	this 	proposal 	are
set 	out 	below.
3

The 	first 	negotiation 	meeting 	took 	place 	on April 	21.3
Other 	meetings 	took 	place 	May 	13, 	June 	2, 	September 	20 	and
October 	18. 	There 	were 	further 	negotiations 	beyond 	that 	date,
but 	no 	details 	were 	disclosed 	during 	the 	hearing; 	the 	charging
party 	and 	the 	respondent 	stipulated 	that 	neither 	would
introduce 	evidence 	of 	any 	events 	beyond 	October 	18.
The 	District 	was 	represented 	throughout 	negotiations 	by
Richard 	Currier, 	an 	attorney 	with 	the 	firm 	of 	Littler,
Mendelson, 	Fastiff 	& Tichy. 	District 	Superintendent
Randall 	Olson 	was 	also 	present 	for 	almost 	all 	of 	the
negotiations, 	and 	provided 	specific 	information 	about 	District
practices 	on 	a 	few 	occasions. 	The 	Association 	was 	represented
throughout 	negotiations 	by 	three 	District 	teachers:
Jack 	Steadman, 	Eric 	Holcomb, 	and 	Dave 	Swenson. 	Steadman 	was
the 	chair 	of 	the 	committee 	and 	the 	spokesperson 	for 	the
negotiating 	team 	close 	to 	100 	percent 	of 	the 	time.
C. 	Commencement 	of 	Negotiations
The 	Association's 	opening 	proposals 	sought 	changes 	in 	12 	of
the 	13 	articles 	in 	the 	existing 	contract. 	The 	only 	article
which 	the 	teachers 	wanted 	to 	leave 	unchanged 	was 	article 	XI,
Grievance 	Procedures. 	The 	proposals 	included 	extensive 	changes
in 	the 	articles 	concerning 	wages, 	health 	insurance 	benefits,
3All 	references 	hereafter 	are 	to 	events 	in 	1983, 	unless
stated 	otherwise.
4

elimination 	of 	the 	no-strike 	provision, 	and 	in 	article 	XIII,
Effect 	of Agreement, 	which 	included 	various 	waiver 	clauses.
The 	teachers 	sought 	relatively 	minor 	changes 	in 	article 	I,
Definition 	of 	Terms, 	II, 	Recognition 	and 	Negotiation
Procedures, 	VII, 	Leave 	and 	Transfer 	Policies, 	and 	VIII, 	Safety
Conditions 	of Employment. 	The 	changes 	sought 	by 	the
Association 	in 	other 	areas 	(Organizational 	Security, 	Hours 	of
Employment, 	and 	Evaluation Procedures), 	fell 	in-between
"extensive" 	and 	"minor."
In 	its 	written 	proposal 	to 	the 	District 	board, 	the
Association 	asked 	to 	have 	the 	first 	negotiation 	session 	at 	"a
mutually 	convenient 	date 	during 	the 	first 	or 	second 	week 	of
April."
On March 	28, 	the 	District 	board 	adopted 	a 	resolution
designating 	Currier 	as 	its 	chief 	negotiator 	for 	the
negotiations 	with 	the 	Association. 	Apart 	from 	that, 	there 	is
no 	evidence 	of 	any 	action 	taken 	by 	either 	party 	with 	respect 	to
the 	negotiations 	during March.
The 	contract 	in 	existence 	called 	for 	the 	commencement 	of
negotiations 	for 	a 	new 	contract 	to 	begin 	no 	later 	than
April 	21. 	On April 	5, 	Superintendent 	Olson 	sent 	a 	note 	to
Association 	President 	John Mahoney, 	asking 	to 	delay 	the
beginning 	of 	negotiations 	until 	after 	April 	25,
.•• 	as 	the 	District 	will 	not 	present 	its
first 	proposals 	until 	the 	Board 	meeting 	of
April 	25.
5

Olson 	was 	apparently 	referring 	to 	the 	first 	step 	of 	the 	public
presentation 	or 	"sunshining 	process" 	required 	by EERA
section 	3547.4
On April 	12, 	Steadman 	responded 	to 	Olson's 	note, 	rejecting
a 	delay 	of 	the 	first 	meeting 	until 	after 	April 	25. 	Steadman's
note 	referred 	to 	the 	contractual 	provision 	requiring 	the 	first
meeting 	for 	a 	new 	contract 	no 	later 	than April 	21, 	and 	renewed
the 	request 	for 	a 	meeting, 	noting 	"any 	day 	from 	now 	through
April 	21 	will 	be 	convenient 	for 	our 	negotiating 	team."
The 	same 	day, 	Currier 	sent 	a 	note 	to 	Steadman, 	noting 	the
April 	21 	date 	in 	the 	contract 	for 	beginning 	of 	negotiations,
and 	asking 	Steadman 	to 	"contact" 	Currier 	so 	that 	a 	negotiating
session 	could 	be 	scheduled.
On April 	14, 	Steadman 	sent 	a 	letter 	to 	Currier, 	stating 	the
Association's 	willingness 	to 	meet 	with 	the 	District 	any 	day
between April 	14 	and 	April 	21. 	Steadman 	suggested 	a 	meeting
from 	1:00 	p.m. 	to 	3:00 	p.m. 	On April 	19, 	Currier 	sent 	a 	letter
to 	Steadman 	which 	did 	not 	suggest 	or 	set 	a 	date 	for 	a 	meeting.
The 	letter 	said 	that 	all 	communications 	concerning 	negotiations
should 	be 	sent 	to 	Currier.
4That 	section 	requires 	a 	public 	school 	district, 	before
it 	begins 	negotiations 	with 	an 	employee 	organization, 	to
present 	an 	initial 	proposal 	at 	a 	public 	meeting~ 	to 	allow 	the
public 	an 	opportunity 	to 	"express 	itself" 	regarding 	the
proposal 	at 	a 	public 	meeting~ 	and 	to 	then 	adopt 	its 	initial
proposals 	for 	presentation 	to 	the 	employee 	organization.
6

The 	same 	day, 	April 	19, 	Olson 	sent 	Steadman 	a 	note 	saying:
The 	District 	wishes 	to 	schedule 	a 	negotiating
meeting 	with 	the 	CTA 	representatives 	on
4/21/83 •••• 	Please 	let 	me 	know 	if 	this 	is
acceptable.
Steadman 	agreed 	to 	this 	date.
As 	negotiations 	began 	on April 	21, 	the 	Association 	had 	not
yet 	received 	the 	District's 	initial 	proposals.5
The 	record 	includes 	four 	sources 	of 	information 	about 	each
of 	the 	five 	negotiating 	sessions. 	Currier 	and 	Steadman 	each
testified 	at 	length. 	In 	addition, 	the 	record 	includes 	typed
minutes 	of 	each 	meeting, 	prepared 	by 	Currier 	shortly 	after 	each
meeting; 	and 	typed 	minutes 	of 	each 	meeting 	prepared 	by Steadman
shortly 	after 	each 	meeting. 	Steadman's 	minutes 	incorporate
handwritten 	notes 	taken 	by 	all 	three 	teachers 	on 	the
Association 	negotiating 	committee, 	Steadman, 	Holcomb 	and
Swenson.6
5currier 	testified 	he 	had 	instructed 	Olson 	to 	provide 	the
Association 	with 	the 	District's 	opening 	proposals, 	but 	he 	did
not 	know 	when 	Olson 	had 	delivered 	them 	{TR:130, 	178). 	Olson
testified 	that 	the 	Association 	probably 	received 	the 	District's
opening 	proposals 	a 	few 	days 	before 	the 	April 	25 	board 	meeting,
but 	he 	was 	not 	certain 	of 	the 	date 	{TR:541). 	Steadman
testified 	that 	the 	Association 	president 	received 	a 	copy 	of 	the
District's 	initial 	proposals 	at 	the 	board 	meeting 	on 	the 	night
of April 	25, 	and 	Steadman 	himself 	received 	the 	proposals 	the
next 	day 	(TR:274-275). 	Steadman's 	testimony 	is 	credited;
Currier 	and 	Olson 	were 	both 	uncertain 	of 	the 	date, 	and 	neither,
apparently, 	had 	first-hand 	knowledge.
6The 	record 	also 	includes 	"Negotiation 	Updates," 	brief
written 	reports 	prepared 	by 	Steadman 	for 	the 	other 	teachers 	in
7

The 	findings 	set 	out 	here 	are 	based 	on 	consideration 	of 	all
the 	evidence 	introduced. 	On 	most 	points, 	the 	four 	sources 	of
evidence 	provide 	similar 	versions 	of 	events 	at 	the 	meetings.
Significant 	conflicts 	among 	them will 	be 	noted 	and, 	where 	one
version 	is 	credited 	over 	another, 	the 	reason 	will 	be 	stated.
D. 	The 	Meeting 	of April 	21.
There 	was 	no 	discussion 	at 	the 	April 	21 	meeting 	of 	any
contract 	proposals. 	Currier 	testified 	that 	he 	suggested 	on
April 	21 	that 	the 	parties 	"review" 	the 	Association's 	initial
proposals 	at 	that 	meeting, 	but 	that 	the 	Association 	"refused 	to
do 	so" 	(TR:35). 	Neither 	Currier's 	minutes 	nor 	Steadman's
minutes 	refer 	to 	Currier's 	request 	or 	the 	Association's
refusal. 	However, 	Steadman 	did 	not 	deny 	that 	the 	exchange 	took
place. 	Currier's 	testimony 	is 	credited.
Almost 	all 	of 	the 	meeting 	was 	taken 	up 	with 	discussion 	of
ground 	rules 	for 	the 	ensuing 	negotiations. 	The 	parties
exchanged 	their 	written 	ground 	rule 	proposals. 	There 	were 	four
rules 	on 	which 	the 	parties 	were 	in 	agreement 	on 	a 	general
concept, 	although 	they 	were 	not 	in 	word-for-word 	agreement 	on
any 	rule. 	Otherwise, 	the 	two 	sets 	of 	proposals 	touched 	on
different 	points 	or, 	if 	they 	touched 	on 	the 	same 	point, 	adopted
different 	positions.
the 	bargaining 	unit. 	However, 	these 	are 	quite 	sketchy, 	and
much 	less 	reliable 	than 	the 	other 	sources 	described 	here.
8

The 	Association's 	ground 	rules 	would 	have 	required 	the
following: 	the 	beginning 	and 	ending 	time 	of 	each 	meeting 	would
be 	agreed 	upon 	in 	advance; 	Olson 	would 	forward 	and 	receive
messages 	between 	Steadman 	and 	Currier 	{whose 	office 	was 	in
San 	Diego), 	to 	arrange 	or 	rearrange 	meetings; 	Olson 	would
arrange 	substitutes 	for 	the 	teachers 	on 	the 	negotiating
committee 	for 	those 	times 	when 	negotiations 	took 	place, 	and
would 	do 	so 	48 	hours 	in 	advance, 	with 	written 	notice 	to 	each
teacher 	of 	the 	arrangement; 	each 	party 	would 	provide 	enough
written 	copies 	of 	each 	proposal 	for 	each 	member 	of 	the 	other
party's 	negotiating 	team.
The 	Association 	also 	proposed 	that 	the 	parties 	keep 	joint
minutes 	as 	each 	meeting 	progressed, 	and 	that 	these 	be 	signed 	by
each 	party 	at 	the 	close 	of 	each 	meeting. 	This 	proposal 	proved
to 	be 	a 	major 	sticking 	point.
The 	District 	proposed 	that 	either 	party 	could 	terminate 	a
meeting 	at 	any 	time; 	that 	there 	would 	be 	no 	disclosure 	to 	news
media 	of 	the 	substance 	of 	proposals 	until 	they 	were
"tentatively 	approved;" 	and 	described 	a 	procedure 	for 	seeking
final 	ratification, 	by 	the 	District 	and 	the 	Association, 	after
the 	negotiators 	had 	reached 	tentative 	agreement. 	The
District's 	proposed 	rules 	also 	touched 	on 	the 	location 	of 	the
meetings, 	and 	the 	need 	for 	brevity 	in 	statements 	made 	by
negotiators 	during 	the 	meetings. 	Finally, 	the 	District
presented 	a 	pre-typed 	form 	which 	the 	parties 	might 	use 	to 	set
9

out 	the 	final, 	agreed-upon 	language 	of 	each 	article, 	as
agreement 	was 	reached.
The 	ground 	rules 	proposed 	by 	the 	District 	were 	almost
identical 	with 	the 	ground 	rules 	which 	had 	been 	agreed 	to 	by 	the
Association 	and 	the 	District 	in 	their 	negotiations 	in
1980-81. 7
Steadman 	testified 	about 	the 	Association's 	reason 	for
proposing 	ground 	rules 	that 	were 	different 	than 	the 	rules 	used
in 	the 	previous 	round 	of 	negotiations. 	Steadman, 	who 	had 	not
participated 	in 	those 	negotiations, 	had 	been 	told 	by 	the
1980-81 Association 	negotiators 	that 	at 	times 	the 	District 	had
not 	provided 	substitutes 	for 	teachers 	on 	the 	negotiating 	team.
Those 	teachers 	then 	faced 	a 	conflict 	between 	continuing 	to
teach 	classes 	or 	taking 	part 	in 	negotiations. 	The 	Association
therefore 	proposed 	a 	rule 	to 	prevent 	recurrence 	of 	that 	event
(TR: 290) •
As 	for 	joint 	written 	minutes, 	Steadman 	said 	in 	the 	last
negotiations 	in 	which 	he 	participated 	(in 	which 	the 	District
had 	been 	represented 	by 	a 	different 	attorney}, 	the 	District 	and
the 	Association 	kept 	joint minutes 	(TR:291}. 	The 	1980
7The 	only 	difference 	was 	that 	the 	1980 	ground 	rules
allowed 	the 	Association 	to 	bring 	to 	the 	meeting, 	without 	prior
notice 	to 	the 	District, 	the 	CTA 	"Service 	Center 	Council
Representative," 	or 	the 	Association 	president. 	The 	1983
proposal 	referred 	only 	to 	the 	Association 	president 	in 	this
context.
10

Association 	negotiating 	team 	had 	told 	Steadman 	that 	they
regretted 	the 	absence 	of 	"mutual 	notes" 	because 	lack 	of 	clarity
in 	the 	contractual 	language, 	and 	conflicting 	understandings
about 	the 	meaning 	of 	that 	language, 	had 	led 	to 	litigation
between 	the 	Association 	and 	the 	District 	(TR:306, 	317).
William Wollman, 	the 	head 	of 	the 	Association 	negotiating
team 	during 	the 	previous 	round 	of 	negotiations, 	testified 	that
he 	had 	urged 	Steadman 	to 	seek 	a 	ground 	rule 	providing 	for
mutual 	minutes. 	Wollman 	testified 	there 	had 	been
misunderstandings 	between 	the 	District 	and 	the 	Association
about 	the 	meaning 	of 	certain 	provisions 	on 	the 	contract,
leading 	to 	unfair 	practice 	charges. 	He 	believed 	the
Association 	negotiators 	had 	been 	"misled 	in 	many 	respects"
(TR:581-582) .8
At 	the 	April 	21 	meeting, 	Steadman 	and 	Currier 	explained
their 	reasons 	for 	preferring 	various 	ground 	rules, 	and
objecting 	to 	others. 	The 	Association 	proposal 	of 	joint 	minutes
was 	a 	particular 	subject 	of 	discussion. 	At 	one 	point, 	Currier
suggested 	that 	since 	there 	was 	some 	disagreement 	about 	the
8rn PERB 	Case 	No. 	SF-CE-633, 	the 	Gonzales 	Association
accused 	the 	District 	of 	unilaterally 	changing 	provisions 	of 	the
collective 	bargaining 	agreement 	which 	had 	to 	do 	with 	the 	school
calendar 	and 	with 	the 	hours 	of 	work 	for 	District 	teachers.
There 	was 	extensive 	testimony 	during 	that 	hearing 	about 	the
negotiations 	which 	preceded 	agreement 	on 	certain 	provisions 	of
the 	contract.
11

ground 	rules, 	the 	parties 	set 	these 	aside 	at 	the 	next 	meeting,
and 	begin 	discussing 	their 	initial 	proposals. 	Steadman
objected 	to 	this 	procedure, 	preferring 	to 	complete 	the
discussion 	of 	ground 	rules 	before 	discussing 	any 	matters 	of
substance.
Eventually, 	the 	parties 	agreed 	to 	the 	following. 	After 	the
end 	of 	the 	meeting, 	Currier 	would 	prepare 	a 	counter-proposal 	on
ground 	rules, 	and 	place 	it 	that 	day 	in Steadman's 	mailbox 	at
the 	high 	school. 	Steadman 	would 	then 	prepare 	a 	written
response, 	which 	he 	would 	mail 	to 	Currier. 	If 	it 	appeared 	the
parties 	were 	then 	close 	to 	agreement 	on 	the 	ground 	rules, 	they
would 	meet 	on May 	13, 	from 	10:00 	a.m. 	until 	3:30 	p.m. 	If 	it
appeared 	that 	the 	parties 	would 	not 	be 	able 	to 	agree 	on 	ground
rules 	at 	the 	next 	session, 	the 	session 	would 	be 	held 	on May 	11,
from 	1:00 	p.m. 	to 	3:00 	p.m.
Currier 	testified 	that 	it 	was 	at 	this 	meeting 	that 	he 	first
suggested 	having 	negotiating 	meetings 	during 	the 	summer 	months
when 	school 	was 	not 	in 	session. 	The 	testimony 	is 	not
credited. 	Steadman 	denied 	that 	Currier 	raised 	the 	question 	at
the 	April 	meeting, 	and 	neither 	Currier's 	minutes 	nor 	Steadman's
minutes 	indicate 	Currier 	made 	a 	suggestion 	or 	request 	of 	that
kind. 	In 	this 	regard, 	since 	the 	parties 	did 	no 	specific
scheduling 	beyond 	May 	11/13, 	it 	is 	unlikely 	that 	Currier 	would,
in 	April, 	begin 	discussions 	of 	whether 	or 	when 	to 	meet 	beyond
the 	end 	of 	the 	school 	year, 	approximately June 	10. 	Further,
12

Steadman's 	notes 	of 	the 	next 	meeting, 	on 	May 	13, 	indicate 	that
Currier 	at 	that 	time 	proposed 	meeting 	during 	the 	summer 	recess.
Shortly 	after 	the 	meeting 	ended, 	Currier 	placed 	in
Steadman's 	mailbox 	a 	revised 	set 	of 	ground 	rule 	proposals.
These 	included 	several 	modifications 	of 	the 	District's 	initial
proposals, 	moving 	the 	District 	closer 	to 	the 	Association 	on
several 	items.
On April 	25, 	at 	its 	regular 	board 	meeting, 	the 	District
made 	its 	required 	public 	disclosure 	of 	its 	initial 	negotiating
proposals. 	There 	is 	no 	evidence 	to 	indicate 	whether 	the
District 	later 	modified 	these, 	in 	light 	of 	comments 	by members
of 	the 	public. 	Currier 	presented 	the 	District's 	post-
"sunshining" 	initial 	proposals 	to 	the 	Association 	negotiating
team on 	May 	13. 	A description 	of 	the 	District's 	proposals 	is
provided 	on 	page 	15 	below.
On May 	3, 	Currier 	wrote 	to Steadman, 	inquiring 	about 	the
status 	of 	ground 	rules 	negotiations. 	He 	had 	not 	received 	from
Steadman 	a 	response 	to 	the 	District's 	second 	set 	of 	proposed
ground 	rules, 	nor 	had 	he 	heard 	from 	Steadman 	about 	the
Association's 	preference 	for 	a 	meeting 	date. 	On May 	5,
Steadman mailed 	to 	Currier 	a 	second 	set 	of 	proposed 	ground
rules 	with 	a 	cover 	letter 	in 	which 	he 	wrote 	that 	the
Association,
••• 	still 	feels 	very 	strongly 	that 	some
form 	of 	mutual 	notes 	must 	be 	kept.
13

Steadman's 	letter 	left 	the 	choice 	of 	May 	11 	or 	May 	13 	to
Currier.
The 	Association's 	second 	proposed 	set 	of 	ground 	rules 	kept
four 	of 	its 	proposed 	rules 	essentially 	unchanged, 	including 	the
rule 	requiring 	joint 	written 	minutes, 	and 	the 	rule 	having 	to do
with 	Olson's 	obligation 	to 	provide 	substitutes 	for 	teachers 	on
the 	negotiating 	team. 	As 	a 	result 	of 	changes 	in 	the
Association 	position, 	the 	Association 	and 	the 	District 	were 	in
word-for-word 	agreement 	on 	two 	rules. 	They 	were 	also 	in
agreement 	on 	substance, 	with 	only 	minor 	wording 	differences, 	on
seven 	other 	ground 	rules, 	leaving 	only 	two 	subjects 	on 	which
there 	were 	any 	real 	differences: 	the 	Association's 	desire 	to
have 	joint 	minutes 	of 	each 	session, 	and 	the 	Association's
proposal 	regarding 	Olson's 	obligations 	with 	respect 	to 	the
provision 	of 	substitute 	teachers.
On May 	9, 	Currier 	wrote 	to 	Steadman. 	He 	noted 	that 	the
parties 	remained 	"substantially 	apart" 	on 	the 	two 	points
noted--the 	joint 	minutes 	and 	the 	role 	of 	Olson 	in 	assigning
substitutes--and 	suggested 	that 	the 	parties,
••• 	temporarily 	set 	aside 	our 	discussions
on 	ground 	rules 	and 	meet 	to 	review 	generally
the 	initial 	proposals 	of 	both 	parties.
He 	suggested 	meeting 	on May 	13 	from 	10:00 	a.m. 	to 	3:30 	p.m.
E. 	The 	Meeting 	of 	May 	13.
At 	the 	beginning 	of 	the 	meeting, 	Currier 	gave 	Steadman
copies 	of 	the 	District's 	first 	contract 	proposal. 	The 	District
14

proposed 	retaining, 	without 	change 	from 	the 	prior 	contract,
five 	articles: 	Articles VII 	(leave 	and 	transfer 	policies), 	VIII
(safety 	conditions 	of 	employment), 	XI 	(grievance 	procedures),
XII 	(the 	no-strike 	provision), 	and 	XIII 	(the 	Association's
waiver 	of 	further 	negotiating 	rights). 	The 	District 	proposed
minor 	changes 	in 	three 	articles, 	and 	changes 	of 	more
significance 	in 	five 	articles 	(management 	rights, 	agency 	fee
provisions, 	wages, 	hours 	of 	employment, 	and 	health 	insurance
contributions). 	The 	District 	proposed 	to 	eliminate 	the 	school
year 	calendar, 	and 	the 	teacher 	evaluation 	forms, 	each 	of 	which
was 	included 	as 	an 	appendix.
The 	District 	also 	proposed 	two 	articles 	on 	subjects 	not
covered 	in 	the 	predecessor 	contract: 	discipline 	of 	employees,
and 	layoff 	for 	lack 	of 	funds.
Currier 	noted 	that 	neither 	party was 	proposing 	to 	change
the 	grievance 	procedure 	article. 	He 	suggested 	that 	he 	and
Steadman 	sign 	off 	on 	that 	article, 	using 	the 	form 	he 	had
proposed 	the 	previous 	meeting. 	Steadman 	agreed 	that 	neither
party 	was 	seeking 	a 	change 	in 	that 	article, 	but 	he 	declined 	to
sign 	off 	on 	the 	grievance 	article, 	or 	to 	discuss 	the 	substance
of 	any 	proposal 	at 	all. 	He 	wanted 	to 	complete 	the 	discussion
on 	ground 	rules 	before 	discussing 	any 	contract 	proposals.
Steadman 	did, 	however, 	comment 	that 	he 	believed 	both 	discipline
and 	layoff 	were 	outside 	the 	scope 	of 	representation. 	Currier
15

said 	he 	believed 	they 	were 	within 	scope, 	and 	asked 	Steadman 	to
"check" 	on 	this, 	which 	Steadman 	said 	he 	would 	do.
For 	the 	remainder 	of 	the 	morning, 	the 	parties 	discussed
proposed 	ground 	rules. 	Currier 	explained 	his 	reasons 	for
opposing 	various 	aspects 	of 	the 	joint 	minutes 	proposal 	of 	the
Association. 	These 	would 	actually 	discourage 	attempts 	to 	find
agreement, 	and 	would 	represent 	a 	waste 	of 	time, 	he 	said.
After 	the 	lunch 	break, 	the 	Association 	gave 	the 	District
revised 	ground 	rules 	proposals. 	Included 	were 	changes 	in 	seven
of 	the 	eleven 	rules 	on 	the 	table, 	including 	the 	rule 	concerning
joint 	minutes, 	and 	the 	rule 	giving 	Olson 	specific
responsibilities 	for 	assignment 	of 	substitutes 	on 	negotiating
days. 	Despite 	the 	changes, 	however, 	there 	remained 	only 	two
rules 	on 	which 	the 	parties 	were 	in 	word-for-word 	agreement.
The 	District 	then 	presented 	a 	new 	proposal 	on 	ground 	rules,
modifying 	its 	position 	on 	virtually 	every 	rule 	on 	which 	there
was 	not 	yet 	agreement. 	As 	a 	result, 	there 	were 	five 	rules 	on
which 	the 	District 	and 	the 	Association 	were 	in 	precise
agreement, 	and 	a 	sixth 	rule 	in 	which 	the 	only 	difference 	was
the 	Association's 	use 	of 	the 	word 	"teachers," 	while 	the
District's 	version 	used 	the 	abbreviation 	"GUHSTA."
Steadman 	also 	told 	Currier 	that 	the 	Association 	negotiators
were 	uncertain 	about 	the 	possible 	legal 	implications 	of 	the
"tentative 	conclusion" 	sign-off 	form 	which 	Currier 	had 	proposed
using 	(TR:318, 	324). 	Currier 	had 	given 	this 	to 	Steadman 	at 	the
16

end 	of 	the 	April 	21 	meeting, 	but 	there 	had 	been 	no 	discussion
of 	it 	at 	the 	time 	(TR:300).
The 	parties 	then 	discussed 	the 	schedule 	for 	additional
meetings. 	There 	is 	a 	conflict 	between 	the 	testimony 	of
Steadman 	and 	Currier 	about 	statements 	made 	during 	that
discussion. 	Currier 	testified 	that 	the 	District 	wanted 	to
schedule 	meetings 	during 	the 	summer, 	and 	he 	said 	as 	much 	during
the 	meeting. 	He 	said 	when 	the 	District 	learned 	(sometime 	in
July) 	how 	much 	money 	it 	would 	receive 	from 	the 	state, 	the
parties 	would 	be 	able 	to 	meet 	in August, 	and 	complete 	contract
negotiations 	before 	the 	start 	of 	the 	school 	year 	in September.
Currier 	acknowledged 	he 	did 	not 	suggest 	any 	specific 	dates
during 	the 	summer 	on 	which 	to 	meet. 	Currier 	also 	testified
that 	Steadman 	said 	the 	Association 	did 	not 	want 	to 	meet 	during
the 	summer. 	Rather, 	they 	wished 	to 	meet 	in September.
Steadman, 	on 	the 	other 	hand, 	testified 	that 	Currier
suggested 	August 	meetings, 	but 	did 	not 	suggest 	meeting 	at 	any
other 	time 	in 	the 	summer. 	Steadman 	rejected 	August 	meetings,
he 	said, 	because 	he, 	his 	wife, 	his 	daughter, 	and 	a 	niece 	had
made 	plans 	to 	travel 	in 	Spain 	from 	July 	23 	until August 	31.
Currier's 	testimony 	is 	credited, 	Steadman's 	is 	not.9
9steadman's 	testimony 	that 	his 	family 	had 	~reviously
planned 	a 	trip 	to 	Spain 	during 	August 	is 	not 	disputed, 	and 	is
·credited.
17

Steadman's 	minutes 	of 	the 	meeting 	support 	the 	inference 	that
Steadman 	understood 	that 	the 	District's 	proposal 	to meet 	over
the 	summer 	was 	not 	limited 	to August, 	and 	that 	Steadman
rejected 	it. 	Steadman's 	minutes 	include 	the 	following:
He 	[Currier] 	wants 	to 	meet 	during 	the 	summer.
He 	thinks 	we 	could 	meet 	in August 	and 	wrap
things 	up 	before 	the 	start 	of 	school. 	The
teachers 	did 	not 	agree 	to 	meet 	during 	the
summer.
Other 	evidence 	supporting 	the 	inference 	that 	Steadman 	rejected
Currier's 	proposal 	to 	meet 	over 	the 	summer 	was 	Steadman's
testimony 	that 	he 	did 	not 	want 	to 	meet 	at 	any 	time 	during 	the
summer, 	aside 	from 	the 	time 	he 	was 	to 	spend 	traveling
{TR:505-506), 	and 	Steadman.'s 	actions 	at 	the 	next 	meeting
(described 	on 	p. 	25 	below).
There 	was 	also 	a 	conflict 	between 	the 	testimony of Steadman
and 	Currier 	about 	whether 	Steadman 	told 	Currier 	why 	the
Association 	did 	not 	want 	to 	meet 	during August. 	Steadman
testified 	that 	he 	told 	Currier 	of 	his 	planned 	trip 	to 	Spain
with 	his 	family 	members. 	Currier 	testified 	that 	Steadman 	did
not 	offer 	this 	explanation; 	that 	the 	only 	explanation 	offered
was 	that 	the 	Association 	negotiators 	wanted 	to 	meet 	only 	when
school 	was 	in 	session, 	and 	when 	they 	could 	receive 	released
time.10 	In 	view 	of 	the 	legal 	analysis 	of 	the 	Association's
10EERA 	section 	3543.l(c) 	provides 	that:
18

refusal 	to 	meet 	over 	the 	summer 	(see 	pp. 	38-40), 	it 	is 	not
necessary 	to 	resolve 	this 	conflict.
While 	discussing 	scheduling, 	Steadman 	and 	Currier 	also
talked 	about 	the 	appropriate 	times 	for 	negotiating 	sessions.
This 	subject 	came 	up 	at 	other 	meetings 	as 	well. 	Steadman,
speaking 	for 	the 	teachers, 	consistently 	sought 	to 	begin
meetings 	at 	the 	start 	of 	the 	school 	day 	(approximately
8:00 	a.m.), 	and 	end 	them 	near 	the 	end 	of 	the 	school 	day
(between 	3:00 	and 	3:30). 	Currier 	preferred 	to 	begin 	at
10:00 	a.m., 	and 	continue 	until 	somewhat 	later 	(he 	suggested
5:30 	at 	one 	point). 	Each 	party 	had 	its 	reasons.
Currier 	explained 	his 	preference 	for 	a 	10:00 	a.m. 	start 	by
noting 	that 	whether 	he 	was 	flying 	to 	the 	Gonzales 	area 	from 	his
home 	in San 	Diego, 	or 	driving 	to 	Gonzales 	from 	other 	business
appointments 	in 	Northern 	California, 	he 	was 	not 	able 	to 	arrive
until 	9:30 	or 	9:45 	a.m. 	He 	needed 	time, 	before 	the
commencement 	of 	negotiations, 	to 	consult 	with 	Superintendent
Olson. 	Olson 	also 	needed 	some 	time 	at 	the 	beginning 	of 	the
school 	day 	to 	see 	to 	District 	business.
Steadman 	testified 	that 	the 	teachers 	on 	the 	negotiating
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right
to 	receive 	reasonable 	periods 	of 	released
time 	without 	loss 	of 	compensation 	when
meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
19

team preferred 	an 	8:00 	a.m. 	start 	because 	they 	wanted 	to 	be
free 	of 	all 	teaching 	responsibilities 	on 	negotiating 	days.
They 	did 	not 	want 	the 	distractions 	that 	came 	with 	teaching 	for
a 	short 	period 	of 	time, 	getting 	a 	substitute 	started, 	and
similar 	activities. 	In 	a 	letter 	sent 	to 	Currier 	on
September 	2, 	1983, 	Steadman 	wrote:
We 	prefer 	to 	begin 	the 	sessions 	as 	early 	as
possible 	so 	that 	we 	aren't 	already 	tired 	out
from 	having 	to 	teach 	our 	classes.
As 	for 	the 	Association's 	preference 	for 	ending 	negotiating
sessions 	by 	3:30, 	Currier 	testified 	that 	the 	only 	reason 	ever
stated 	by Steadman 	was 	the 	teachers' 	desire 	to 	negotiate 	only
during 	time 	for 	which 	they 	were 	getting 	released 	time.11
Steadman 	acknowledged 	that 	the 	teachers' 	negotiating 	team 	did
not 	want 	to 	negotiate 	beyond 	the 	end 	of 	the 	normal 	working 	day,
and 	that 	he, 	speaking 	for 	the 	team, 	said 	as 	much 	during
negotiations. 	He 	also 	acknowledged 	that 	on 	several 	occasions
the 	Association 	negotiator 	refused 	to 	negotiate 	beyond
3:30 	p.m. 	(TR:467-68).
Steadman 	never 	denied 	Currier's 	testimony, 	that 	the 	stated
reason 	for 	the 	Association's 	3:30 	cut-off 	had 	to 	do 	with 	the
unavailability of 	released 	time 	after 	3:30. 	Steadman
testified, 	when 	questioned 	by 	his 	own 	counsel, 	that 	he 	never
llsee 	footnote 	10 	above, 	for 	the 	language 	of 	the
statutory 	provision 	regarding 	released 	time.
20

"refused" 	to 	schedule 	any 	additional 	negotiating 	sessions
unless 	released 	time 	were 	granted'(TR: 	421-422). 	But 	that
general 	assertion 	is 	meaningless 	in 	the 	face 	of 	his 	specific
acknowledgments, 	and 	is 	not 	credited.
It 	is 	found 	that 	the 	Association's 	negotiating 	team 	was
unwilling 	to 	meet 	beyond 	3:30 	p.m. 	As 	a 	result 	of 	this
preference, 	and 	because 	of 	Currier's 	unwillingness 	to 	begin
meeting 	before 	10:00 	a.m., 	the 	parties' 	negotiating 	sessions
were 	limited 	to 	the 	period 	between 	10:00 	a.m. 	and 	3:30 	p.m.
At 	the 	end 	of 	the 	May 	13 	meeting, 	Steadman 	and 	Currier
,
scheduled 	the 	next 	meeting 	for 	June 	2, 	to 	begin 	at 	10:00 	a.m.
Sometime 	between 	May 	13 	and 	June 	2, 	Steadman 	spoke 	to
Ramon 	Romero, 	staff 	counsel 	for 	the 	California Teachers
Association, 	with 	which 	the 	Gonzales 	Association 	is 	affiliated,
about 	the 	negotiability 	of 	the 	District's 	proposals 	on
discipline 	of 	employees 	and 	layoff 	for 	lack 	of 	funds. 	Romero
told 	him 	teacher 	discipline 	was 	a 	mandatory 	subject 	of
bargaining. 	Steadman's 	testimony 	about 	the 	advice 	he 	received
about 	layoff 	proposals 	was 	unclear:
The 	teacher 	layoff 	because 	of 	lack 	of 	funds,
you 	[Romero] 	thought 	that 	it 	said 	that 	there
was 	a 	"may" 	used 	in 	the 	terminology, 	but 	you
also 	told 	me 	not 	to 	refuse 	to 	negotiate 	•••
and 	I 	asked 	for 	your 	help 	in 	drafting 	some
kind 	of model 	proposals. 	(TR: 	354.)12
12EERA 	section 	3543.2(c) 	provides:
21

On June 	1, 	Steadman 	sent 	to 	Romero 	the 	District's 	proposals
on 	layoffs 	and 	teacher 	discipline, 	and 	asked 	for 	help 	in
preparing 	counter-proposals.
F. 	The 	Meeting 	of June 	2.
At 	the 	beginning 	of 	the 	meeting, 	the 	Association 	offered 	a
new 	set 	of 	ground 	rules. 	This 	proposal 	eliminated 	the
Association's 	previous 	demands 	that 	there 	be 	joint 	written
minutes, 	and 	eliminated 	the 	specific 	reference 	to Olson 	with
respect 	to 	the 	arranging 	of 	substitutes 	to 	cover 	classes 	of
teachers 	on 	the 	negotiating 	team.
There 	is 	a 	conflict 	between 	the 	testimony 	of 	Currier 	and
that 	of 	Steadman 	about 	events 	during 	the 	remainder 	of 	the
morning. 	Steadman's 	testimony 	is 	credited 	because 	it 	is 	far
more 	specific, 	and 	because 	Currier 	acknowledged 	on
cross-examination 	uncertainty 	about 	the 	course 	of 	events. 	In
addition, 	Steadman's 	minutes 	of 	the 	meeting, 	which 	are
consistent 	with 	his 	testimony, 	are 	far 	more 	detailed 	and
precise 	than 	are 	Currier's.
Notwithstanding 	Section 	44955 	of 	the
Education Code, 	the 	public 	school 	employer
and 	the 	exclusive 	representative 	shall 	upon
request 	of 	either 	party, 	meet 	and 	negotiate
regarding 	procedures 	and 	criteria 	for 	the
layoff 	of 	certificated 	employees 	for 	lack 	of
funds. 	If 	the 	public 	school 	employer 	and
the 	exclusive 	representative 	do 	not 	reach
mutual 	agreement, 	then 	the 	provisions 	of
Section 	44955 	of 	the 	Education Code 	shall
apply.
22

Steadman's 	testimony 	was 	the 	following. 	Currier 	read 	the
Association's 	new 	proposals, 	and 	said 	he 	would 	agree 	to 	them,
providing 	a 	phrase 	was 	added 	to 	one 	rule. 	Steadman 	agreed 	to
the 	phrase 	suggested 	by Currier, 	and 	then 	offered 	to 	retype 	the
rules, 	including 	the 	additional 	phrase, 	during 	the 	lunch 	break,
and 	bring 	it 	to 	the 	meeting 	for 	initialing. 	Currier 	agreed 	to
this. 	Steadman 	at 	first 	testified 	this 	sequence 	took 	20 	to 	30
minutes, 	and 	later 	testified 	it 	took 	10-15 	minutes 	(TR:251,
364-365}. 	The 	difference 	is 	inconsequential.
Currier 	at 	first 	testified 	that 	discussion 	of 	the 	ground
rules 	continued 	from 	the 	beginning 	of 	the 	meeting 	(around 	10:30
a.m. 	until 	"into 	the 	afternoon"} 	(TR:77}. 	At 	another 	point, 	he
testified 	that 	the 	ground 	rules 	discussion 	continued 	until
12:05 	p.m. 	When 	asked 	about 	the 	subject 	again 	on
cross-examination, 	he 	was 	evasive 	and 	uncertain. 	He 	denied
that 	agreement 	on 	the 	ground 	rules 	was 	reached 	immediately
after 	the 	session 	began, 	but 	said 	he 	did 	not 	remember
specifically when 	the 	agreement 	came 	about, 	or 	the 	length 	of
the 	discussion 	(TR:191}.
Steadman's 	testimony 	is 	credited 	despite 	his 	minor
inconsistency, 	for 	the 	reasons 	stated 	above.
During 	the 	remainder 	of 	the 	morning 	session, 	Steadman 	made
a 	presentation 	about 	the 	Association's 	initial 	proposals.
Steadman 	touched 	on 	many, 	or 	all, 	of 	the 	contract 	changes 	which
the 	Association 	was 	proposing.
23

After 	lunch, 	Steadman 	presented 	to 	Currier 	a 	retyped
version 	of 	the 	ground 	rules, 	incorporating 	the 	change 	Currier
had 	suggested 	that 	morning. 	Currier 	and 	Steadman 	signed 	off 	on
the 	ground 	rules 	at 	1:30 	p.m. 	Following 	that, 	Currier
discussed 	the 	District's 	contract 	proposals, 	article 	by 	article.
Steadman 	commented 	specifically 	about 	the 	two 	articles
sought 	by 	the 	District 	covering 	subjects 	which 	were 	not 	in 	the
predecessor 	agreement: 	discipline 	short 	of 	dismissal; 	and
layoff 	of 	employees 	for 	lack 	of 	funds.
Steadman 	and 	Currier 	offered 	different 	versions 	of
Steadman's 	comments 	about 	the 	two 	subjects. 	According 	to
Currier, 	Steadman 	said 	both 	subjects 	were 	outside 	the 	scope 	of
representation 	(TR:78, 	202-203}. 	Steadman 	testified 	that 	he
acknowledged 	that 	discipline 	proposals 	were 	within 	the 	scope 	of
representation, 	but 	layoff 	proposals 	were 	not, 	and 	that 	the
Association 	had 	no 	obligation 	to 	negotiate 	about 	the 	latter
(TR:347, 	354, 	370}. 	Currier's 	minutes 	are 	consistent 	with
Currier's 	testimony, 	Steadman's 	minutes 	are 	consistent 	with
Steadman's 	testimony.
Neither 	party 	questioned 	any 	other 	person 	about 	statements
made 	at 	the 	meeting 	that 	day, 	although 	three 	other 	persons 	were
present: 	Swenson 	and 	Holcomb 	on 	the 	Association's 	negotiating
team, 	Olson 	as 	part 	of 	the 	District 	team.13 	In 	view 	of 	the
13Association 	counsel 	Romero 	called 	Olson 	as 	a 	witness,
24

legal 	analysis 	set 	out 	on 	pages 	43-44, 	it 	is 	not 	necessary 	to
resolve 	this 	conflict.
During 	the 	course 	of 	his 	discussion 	of 	the 	District's
position 	on 	salary 	levels, 	Currier 	said 	the 	District 	was 	"open
to 	restructuring" 	the 	salary 	schedule. 	He 	referred 	to 	the
possibility 	of 	the 	Legislature 	adopting 	new 	school 	finance 	laws
providing 	for 	an 	$18,000 	starting 	salary 	for 	teachers.
At 	the 	close 	of 	the 	meeting, 	Currier 	and 	Steadman 	discussed
a 	date 	for 	the 	next 	meeting. 	Steadman 	suggested 	a 	meeting 	in
September, 	although 	he 	mentioned 	no 	date. 	Currier 	said 	the
District 	wanted 	to 	meet 	during 	the 	summer 	(although 	he
mentioned 	no 	date), 	and 	asked 	Steadman 	to 	"rethink" 	his
opposition 	to 	meeting 	during 	the 	summer. 	There 	was 	no
agreement 	on 	another 	meeting 	date. 	Currier 	and 	Steadman 	agreed
they 	would 	set 	a 	date 	through 	correspondence. 	Currier
testified 	he 	left 	with 	the 	impression 	that 	Steadman 	would 	write
to 	him 	about 	a 	meeting 	date. 	However, 	there 	is 	no 	evidence 	of
a 	clear 	statement 	by Steadman 	that 	he 	would 	do 	so, 	or 	that 	he
would 	communicate 	with 	Currier 	by 	any 	definite 	date.
Currier 	and 	Steadman 	agreed 	on 	the 	agenda 	for 	the 	next
after 	Steadman 	and 	Currier 	had 	both 	testified, 	and 	after 	both
sets 	of 	minutes 	had 	been 	admitted 	as 	evidence. 	Romero 	was
denied 	the 	opportunity 	to 	question 	Olson 	about 	each 	meeting,
start 	to 	finish, 	but 	was 	given 	the 	opportunity 	to 	question
Olson 	about 	specific 	events 	about 	which 	there 	might 	be
credibility 	conflicts. 	Romero 	declined 	the 	opportunity.
25

meeting. 	They 	included 	Steadman's 	agreement 	to 	provide 	at 	the
next 	meeting 	a 	form, 	satisfactory 	to 	the 	Association, 	on 	which
the 	parties 	could 	sign 	off 	on 	contract 	articles 	on 	which 	they
had 	reached 	agreement. 	Currier 	asked 	Steadman 	to 	provide 	such
a 	form on 	June 	2, 	but 	Steadman 	declined.
F. 	Communications 	between 	the 	District 	and 	the 	Association 	in
the 	Summer 	of 	1983.
During 	the 	week 	of 	June 	17, 	Currier 	and 	Romero 	spoke 	about
another 	matter. 	During 	the 	course 	of 	the 	conversation, 	Currier
told 	Romero 	he 	was 	having 	trouble 	scheduling 	negotiating 	dates
with 	the 	Association 	negotiating 	team. 	Romero 	told 	Currier 	to
deal 	with 	the 	Association 	negotiating 	team 	directly, 	and 	to
call 	Romero 	again 	if 	he 	continueed 	to 	encounter 	scheduling
difficulties. 	Romero 	told 	Currier 	that 	he 	would 	then 	look 	into
the 	matter, 	and 	advise 	the 	Association 	about 	its 	obligation
with 	respect 	to 	agreeing 	to 	meetings.
At 	some 	point 	during 	the 	summer, 	Steadman 	testified, 	he
learned 	that 	both 	employee 	discipline 	and 	layoff 	for 	lack 	of
funds 	were 	mandatory 	subjects 	of 	bargaining.
On July 	19 	Steadman 	wrote 	to 	Currier 	suggesting 	a 	meeting
during 	the 	week 	of 	September 	19, 	and 	"perhaps" 	another 	meeting
the 	following 	week. 	Steadman 	also 	suggested 	meeting 	from
8:00 	a.m. 	to 	3:30 	p.m., 	with 	a 	30-minute 	lunch 	break, 	providing
a 	seven-hour 	meeting. 	Steadman 	told 	Currier 	in 	the 	same 	letter
that 	he 	would 	be 	leaving 	on 	vacation 	four 	days 	later, 	and 	would
return 	to 	school September 	1. 	On August 	22, 	Currier 	wrote 	to
26

Steadman, 	suggesting 	a 	meeting 	on September 	19, 	and 	another 	on
September 	26, 	each 	meeting 	to 	begin 	at 	10:30 	a.m. 	and 	to
continue 	until 	5:30 	p.m. 	He 	suggested 	six 	non-monetary
subjects 	for 	discussion: 	hours 	of 	work, 	evaluation 	procedures,
grievance 	procedures, 	no-strike 	provision, 	discipline 	of
employees, 	and 	layoff 	for 	lack 	of 	funds.
Steadman 	replied 	in 	a 	letter 	dated 	September 	2. 	He
suggested 	a 	meeting 	on September 	20, 	21, 	or 	22, 	and 	suggested
meeting 	at 	8:00 	a.m. 	rather 	than 	at 	10:30,
••• 	so 	that 	we 	aren't 	already 	tired 	out
from 	having 	to 	teach 	our 	classes.
The 	Association 	would 	be 	willing 	to 	begin 	the 	meeting 	later,
but 	wanted 	to 	end 	the 	session 	by 	3:00 	p.m.
Steadman 	said 	the 	Association 	could 	not 	meet 	the 	week 	of
September 	26 	because 	he 	had 	been 	called 	for 	jury duty 	that
week; 	as 	an 	alternative, 	Steadman 	suggested 	a 	second 	meeting
the 	week 	of 	September 	19, 	or 	a 	meeting 	the 	first 	week 	of
October. 	As 	for 	Currier's 	suggestion 	of 	topics, 	Steadman 	wrote:
Rather 	than 	agree 	to 	the 	specific 	topics 	for
discussion 	that 	you 	suggest, 	why 	don't 	we
split 	the 	available 	negotiating 	time. 	You
can 	present 	the 	"non-monetary" 	topics 	that
are 	of 	particular 	interest 	to 	the 	District,
and 	we 	will 	do 	the 	same 	for 	those 	which 	are
of 	particular 	interest 	to 	the 	teachers.
Currier 	replied 	on September 	7, 	suggesting 	a 	meeting 	on
September 	20, 	from 	10:30 	a.m. 	to 	4:00 	p.m. 	As 	to 	the 	agenda,
he 	wrote:
27

I 	agree 	reluctantly 	to 	discuss 	"non-monetary"
topics 	rather 	than 	a 	list 	of 	specific
subjects.
He 	also 	suggested 	that 	the 	parties 	discuss 	the 	scheduling 	of
future 	meetings 	at 	the 	September 	20 	session.
G. 	The 	Meeting 	of September 	20.
The 	meeting 	began 	at 	10:30 	a.m. 	Steadman 	gave 	Currier 	the
form 	which 	the 	Association 	proposed 	as 	the 	method 	of 	recording
tentative 	agreements. 	Currier 	agreed 	to 	it, 	and 	the 	parties
then 	used 	the 	form 	to 	record 	their 	agreement 	on 	maintaining
intact 	the 	grievance 	procedure 	which 	was 	included 	in 	the
predecessor 	agreement.
Currier 	then 	discussed 	some 	of 	the 	non-monetary 	issues
which 	the 	District 	wanted 	to 	place 	on 	the 	table, 	including
organizational 	security, 	employee 	discipline, 	and 	layoff.
Steadman 	acknowledged 	that 	both 	employee 	discipline 	and 	layoff
are 	within 	the 	scope 	of 	representation, 	but 	took 	no 	position
with 	respect 	to 	either. 	Currier 	said 	the 	District 	would 	make
additional 	proposals 	on 	subjects 	covered 	in 	the 	recently 	passed
Senate Bill 	813 	(a 	major 	school 	curriculum 	and 	finance 	law)
which 	had 	provisions 	about 	the 	number 	of 	instructional 	days 	and
hours 	per 	year, 	and 	provision 	for 	higher 	pay 	for 	"mentor
teachers."
Currier 	and 	Steadman 	renewed 	their 	dispute 	about 	the 	hours
of 	future 	negotiating 	sessions, 	but 	nothing 	changed--Currier
28

wanted 	to 	meet 	from 	10:00 	a.m. 	until 	late 	afternoon, 	Steadman
wanted 	to 	meet 	from 	8:00 	a.m. 	to 	no 	later 	than 	3:30 	p.m.
After 	meeting 	for 	an 	hour, 	the 	parties 	took 	a 	lunch 	break.
When 	they 	returned, 	Steadman 	reviewed 	briefly 	the 	Association's
non-monetary 	proposals. 	There 	was 	no 	extensive 	discussion 	of
any 	issue, 	as 	the 	meeting 	ended 	at 	1:35 	p.m.
Currier 	testified:
I 	suggested 	preparing 	some 	counterproposals,
but 	they 	didn't 	want 	to 	do 	it. 	They 	just
wanted 	to 	briefly 	review 	the 	initial
proposals.
The 	testimony 	was 	not 	denied, 	and 	is 	credited.
At 	some 	point 	during 	the 	meeting, 	Steadman 	told 	Currier
that 	the 	Association 	had 	no 	objection 	to 	negotiating 	about
either 	discipline 	of 	employees 	or 	layoff 	of 	employees, 	and
recognized 	that 	both 	subjects 	were 	within 	the 	scope 	of
representation 	(TR:401-404). 	Neither 	Steadman's 	notes 	nor
Currier's 	notes 	refer 	specifically 	to 	this 	acknowledgement, 	but
there 	is 	no 	testimony 	contrary 	to 	Steadman's 	testimony 	on 	this
point, 	and 	it 	is 	credited.14
14steadman's 	minutes 	of 	the 	meeting, 	and 	another 	aspect
of 	Steadman's 	testimony 	provide 	inferential 	support 	for 	the
accuracy 	of 	this 	testimony. 	The 	minutes 	and 	Steadman's
testimony 	both 	indicate 	there 	was 	some 	explanation, 	on
September 	20, 	of 	the 	District's 	discipline 	and 	layoff
proposals, 	with 	Steadman 	asking 	some 	questions 	about 	the
substance 	and 	implications 	of 	the 	District's 	proposals.
Currier 	was 	not 	asked 	about 	this 	aspect 	of 	the 	September 	20
meeting, 	and 	his 	notes 	on 	the 	point 	are 	minimal, 	indicating
29

The 	parties 	agreed 	the 	next 	meeting 	would 	take 	place
October 	18, 	and 	that 	they 	would 	discuss 	monetary 	aspects 	of 	the
contract.
H. 	The 	Meeting 	of 	October 	18.
At 	the 	beginning 	of 	the 	meeting, 	Currier 	gave 	the
Association 	new 	District 	proposals 	in 	three 	areas: 	employee
discipline, 	teacher 	evaluation, 	and 	hours 	of 	employment. 	The
District 	had 	given 	the 	Association 	proposals 	in 	each 	of 	these
areas 	in 	May; 	the 	October 	proposals 	on 	evaluation 	and 	hours 	of
work 	included 	new 	provisions 	and 	related 	to 	requirements
incorporated 	in SB 	813, 	which 	had 	been 	enacted 	since 	May. 	The
discipline 	proposal 	differed 	from 	the 	District's 	earlier
proposal 	in 	its 	elimination 	of 	a 	long 	list 	of 	specific 	acts
which 	could 	be 	the 	basis 	for 	imposition 	of 	discipline 	on 	an
employee.
Steadman 	asked 	for 	a 	District 	proposal 	on 	salaries. 	Much
of 	the 	morning 	session 	was 	taken 	up 	with 	discussion 	of 	monetary
items: 	the 	District 	salary proposal 	(which 	was 	presented 	that
morning), 	the 	cost 	of 	District-paid 	health 	insurance of 	various
kinds, 	extra 	duty 	assignments, 	and 	the 	meaning 	of 	the
resolution 	passed 	by 	the 	District 	board 	in 	May 	1983 	which
only 	that 	a 	number 	of 	the 	District's 	non-economic 	proposals
were 	discussed 	during 	the 	meeting, 	and 	that 	the 	organizational
security 	issue 	received 	the 	most 	attention.
30

mentioned 	the 	goal 	of,
••• 	fair 	wages 	and 	benefits 	for 	the
District 	employees 	and 	comparability 	with
surrounding 	school 	districts.ls
The 	District's 	salary 	proposal 	consisted 	of 	three 	elements:
1. 	"Step 	and 	Class 	Increases 	on 	Salary Schedule," 	which
the 	District 	estimated 	would 	amount 	to 	a 	3 percent 	increase 	in
its 	salary 	costs;
2. 	A 4 	percent 	increase 	on 	the 	salary 	schedule, 	to 	be
effective 	as 	of 	the 	date 	of 	ratification 	of 	the 	agreement;
3. 	An 	increase 	in 	the 	District 	contribution 	for 	health 	and
welfare 	benefits, 	which 	the 	District 	estimated 	would 	cost
something 	more 	than 	1 	percent 	of 	its 	current 	budget 	costs.
The 	District 	also 	gave 	to 	the 	Association 	during 	the
morning 	a 	revised 	"Organizational Security" 	proposal, 	different
from 	its 	May 	proposal 	by 	the 	addition 	of 	a 	reference 	to
payments 	to 	the 	District 	scholarship 	fund 	as 	an 	alternative 	to
payment 	of Association 	dues.
After 	a 	one-hour 	lunch 	break, 	there 	was 	some 	additional
15Most 	of 	the 	three-paragraph 	resolution 	had 	to 	do 	with
the 	quality 	of 	the 	education 	provided 	for 	the 	students 	of 	the
District. 	The 	paragraph 	which 	included 	the 	reference 	to
"comparability" 	began 	with 	the 	sentence:
The 	negotiated 	contract 	with 	the 	CTA, 	while
it 	may 	be 	viewed 	only 	as 	a 	business 	item,
contains 	many 	elements 	which 	impact 	directly
on 	the 	quality 	of 	instruction 	and 	learning 	in
the 	Gonzales 	Union High 	School 	District.
31

discussion 	of 	the 	District's 	salary proposal, 	with 	reference 	to
the 	possible 	financial 	implications 	for 	the 	District 	of
SB 	813. 	The 	Association 	then 	asked 	for 	a 	caucus, 	and 	after 	45
minutes 	returned 	with 	a 	four-part 	proposal:
1. 	The 	percentage 	increase 	on 	the 	salary 	scale 	would 	be
determined 	in 	view 	of 	the 	board 	resolution 	of 	May 	23, 	referred
to 	above. 	The 	Association 	proposed 	a 	joint
District-Association 	study 	to 	determine 	what 	salary 	level 	would
result 	in 	"comparability" 	to 	the 	pay 	scales 	in 	surrounding
school 	districts.16
2. 	Vision 	care, 	orthodontic 	care 	and 	life 	insurance 	would
be 	added 	to 	the 	District-paid 	benefits 	(no 	details 	were
provided). 	This 	had 	been 	proposed 	by 	the 	Association,
similarly 	bereft 	of 	details, 	on 	February 	28.
3. 	District-paid 	health 	and 	other 	insurance 	benefits 	for
teachers 	would 	be 	improved, 	if 	the 	comparable 	benefits 	for 	any
other 	District 	employees 	were 	improved.
4. 	Extra-duty 	pay 	and 	non-salary 	stipends 	would 	be 	set
16The Association 	had 	begun 	gathering 	"comparability"
salary 	data 	in 	February 	1983. 	By March, 	the 	chairman 	of 	the
salary committee 	had 	given 	to Steadman 	salary 	schedules 	from
approximately 	12 	districts 	in 	Monterey 	County. 	Steadman 	did
not 	give 	this 	information 	to 	the 	District, 	nor 	did 	he 	inform
the 	District 	specifically of 	the 	information 	which 	the
Association 	had 	gathered. 	Sometime 	after 	March, 	the
Association 	made 	some 	effort 	to 	gather 	current 	salary 	data 	from
nearby 	school 	districts 	(TR:498-499).
32

forth 	in 	the 	contract 	as 	percentages 	of 	the 	base 	salary
schedule, 	rather 	than 	as 	specific 	dollar 	amounts. 	This 	had
also 	been 	proposed 	in February.
After 	making 	the 	proposal, 	the 	Association 	asked 	for
information 	on 	placement 	of 	employees 	on 	the 	salary 	schedule
during 	the 	current 	year 	and 	the 	preceding 	year; 	and 	the 	cost 	of
extra 	compensation 	for 	the 	same 	two 	years. 	Shortly 	after 	that
request 	the 	meeting 	ended 	and 	the 	parties 	agreed 	to 	schedule
the 	next 	meeting 	for 	November 	2.
During 	the 	discussion 	of 	the 	Association's 	desire 	to 	attain
"comparability" 	of 	salaries, 	Currier 	suggested 	that 	the
"comparability concept 	should 	include 	considerations 	of
District-provided 	health 	insurance, 	and 	the 	placement 	of
teachers 	on 	the 	salary 	scale, 	which 	provided 	higher 	rates 	of
pay 	for 	teachers 	of 	longer 	tenure. 	He 	suggested 	comparing 	the
distribution 	of 	Gonzales 	teachers 	across 	the 	pay 	scale 	with 	the
distribution 	of 	teachers 	across 	the 	pay 	scale 	in 	other
districts.
There 	was 	no 	discussion 	on October 	18 	of 	employee 	layoffs.
The 	Association 	did 	not 	take 	a 	position 	on 	either 	employee
discipline 	or 	layoffs ••
I. 	The 	Meeting 	Agendas.
The 	nature 	of 	the 	agenda 	for 	each 	negotiating 	session 	was
itself 	the 	subject 	of 	negotiations 	between 	the 	parties 	in
April, 	May 	and 	June.
33

The 	District 	proposed, 	as 	part 	of 	its 	initial 	ground 	rule
proposal,
An 	agenda 	for 	each 	negotiating 	session 	shall
be 	planned 	in 	advance. 	Each 	agenda 	should
be 	specific.
Later 	that 	day, 	Currier 	modified 	his 	proposal 	to 	propose 	that
at 	each 	meeting 	he 	and 	Steadman 	agree 	on 	an 	agenda 	for 	the 	next
meeting, 	and 	initial 	this 	agreement. 	Currier 	also 	proposed
that,
Promises 	to 	make 	counter-proposals 	and
produce 	documents 	should 	be 	noted 	and 	stated
in 	writing.
Steadman, 	in 	his 	May 	5 	proposal, 	incorporated 	that
requirement, 	and 	took 	it 	one 	step 	farther, 	proposing 	that
"promises 	to 	take 	other 	action" 	also 	be 	included 	on 	the
agenda .. 	However, 	during 	the 	May 	13 	meeting, 	Steadman 	dropped
this 	provision, 	and 	the 	parties 	eventually 	agreed 	on what
Currier 	had 	suggested 	in 	his 	second April 	21 	proposal: 	the
written 	agenda 	for 	the 	following 	meeting, 	to 	be 	initialed 	at
each 	meeting 	by 	the 	two 	negotiators, 	would 	refer 	to 	promises 	to
provide 	proposals 	or 	documents.
At 	the 	meetings 	of June 	2, 	September 	20 	and 	October 	18, 	the
parties 	adopted 	agendas 	for 	the 	following 	meeting. 	Currier 	and
Steadman 	apparently 	bad 	very 	little, 	if 	any, 	difficulty 	in
reaching 	agreement 	on 	each 	meeting 	agenda 	(TR:116, 	376,
407-408, 	419-420). 	The 	agendas 	ultimately 	proved 	to 	be 	quite
skimpy 	and 	uninformative. 	The 	agenda 	agreed 	to 	on June 	2, 	for
34

the 	next 	meeting 	(the 	date 	for 	which 	had 	not 	been 	determined)
was 	the 	following, 	in 	its 	entirety:
Agenda 	Items
1. 	Discuss 	non-monetary 	items 	in 	entire
contract.
2. 	Teachers 	agree 	to 	present 	a 	proposed 	form
for 	signing 	off 	on 	tentative 	agreements.
3. 	Teachers 	will 	report 	back 	on 	District's
proposed 	tentative 	agreement 	on 	Grievance
Procedure.
In August, 	as 	noted 	above, 	Currier 	wrote 	to Steadman
suggesting 	six 	specific 	topics 	for 	discussion 	at 	the 	September
meeting. 	Steadman 	wrote 	back, 	suggesting 	instead, 	that 	each
party 	choose 	three 	non-economic 	issues 	to 	discuss. 	Steadman
did 	not 	indicate 	which 	three 	he 	would 	like 	to 	discuss. 	Currier
wrote 	again 	to 	Steadman, 	saying 	he 	"reluctantly" 	agreed 	to 	this
procedure. 	He, 	too, 	declined 	to 	identify 	the 	three 	issues
which 	he 	intended 	to 	discuss 	at 	the 	September 	meeting. 	In
fact, 	it 	appears 	that 	the 	September 	meeting 	did 	not 	follow 	even
the 	minimal 	plan 	that 	the 	negotiators 	had 	apparently 	agreed
on. 	Currier 	reviewed 	each 	of 	the 	District's 	non-economic
proposals 	in 	the 	morning, 	while 	Steadman 	reviewed 	a 	number 	of
the 	Association's 	non-monetary 	items 	in 	the 	afternoon. 	There
is 	no 	evidence 	that 	either 	party 	identified 	three 	of 	its
proposals 	for 	special 	attention, 	and 	there 	was 	no 	detailed
discussion 	of 	any 	article.
At 	the 	end 	of 	the 	September 	meeting, 	Currier 	and 	Steadman
35

agreed 	to 	an 	October 	agenda. 	It 	consisted 	of 	the 	following:
Agenda 	Items
1. 	Discuss 	monetary 	items.
2. 	Make 	counter 	proposals 	over 	what 	has 	been
discussed, 	if 	either 	side 	wants 	to.
The 	agenda 	initialed 	on October 	18 	for 	the 	November 	2
meeting 	was 	even 	more 	wide-open, 	and 	in 	that 	way 	less
informative 	than 	the 	agenda 	for 	the 	October 	meeting. 	It 	reads
in 	its 	entirety:
Agenda 	Items
1. 	Discuss 	any 	contract 	items.
2. 	Make 	counter 	proposals 	over 	what 	has 	been
discussed, 	if 	either 	side 	wants 	to.
DISCUSSION AND ANALYSIS
In Pajaro Valley 	Unified 	School 	District 	(5/22/78) 	PERB
Decision No. 	51, 	PERB 	recognized 	that 	certain 	acts 	by 	either 	a
school 	district 	or 	an 	employee 	organization 	represent 	per 	se
violations 	of 	that 	party's 	obligation 	to 	negotiate 	in 	good
faith 	with 	the 	other 	party 	to 	negotiations:
Certain 	acts 	••• 	have 	such 	a 	potential 	to
frustrate 	negotiations 	that 	they 	are 	held
unlawful 	without 	any 	determination 	of
subjective 	bad 	faith 	on 	the 	part 	of 	the
actor.
This 	analysis, 	which 	follows 	the 	analysis 	of 	the National 	Labor
Relations 	Board, 	and 	which 	was 	approved 	by 	the 	Supreme 	Court 	in
NLRB 	v. 	Katz 	(1962) 	369 	U.S. 	736 	[50 	LRRM 	2177], 	is 	most 	often
applied 	to 	outright 	refusals 	to 	negotiate, 	and 	to 	an 	employer's
36

unilateral 	changes 	of 	conditions 	of 	employment.
In Muroc 	Unified 	School 	District 	(12/15/78) 	PERB 	Decision
No. 	80, 	PERB 	adopted 	the 	NLRB's 	analysis 	of 	"surface 	bargaining
by 	a 	party 	to 	negotiations, 	and 	described 	it 	in 	these 	words:
It 	is 	the 	essence 	of 	surface 	bargaining 	that
a 	party 	goes 	through 	the 	motions 	of
negotiations, 	but 	in 	fact 	is 	weaving
otherwise 	unobjectionable 	conduct 	into 	an
entangling 	fabric 	to 	delay 	or 	prevent
agreement. 	Specific 	conduct 	of 	the 	charged
party, 	which 	when 	viewed 	in 	isolation may 	be
wholly 	proper, 	may, 	when 	placed 	in 	the
narrative 	history 	of 	the 	negotiations,
support 	a 	conclusion 	that 	the 	charged 	party
was 	not 	negotiating 	with 	the 	requisite
subjective 	intent 	to 	reach 	agreement. 	Such
behavior 	is 	the 	antithesis 	of 	negotiating 	in
good 	faith.
The 	District 	argues 	that 	three 	aspects 	of 	the 	Association's
conduct 	represent~ 	se 	violations 	of 	the 	Association's 	duty
to 	bargain: 	the 	Association's 	refusal 	to 	bargain 	about 	certain
mandatory 	subjects 	of 	bargaining 	(employee 	discipline, 	layoff
of 	employees, 	and 	hours 	of 	work); 	the 	Association's 	refusal 	to
meet 	with 	the 	District 	at 	all 	during 	the 	summer 	of 	1983; 	and
the 	Association's 	refusal 	to 	meet 	with 	the 	District 	at 	any 	time
other 	than 	the 	teachers' 	regular 	working 	day, 	when 	they 	could
receive 	release 	time 	from 	the 	District. 	At 	the 	same 	time, 	the
District 	argues 	that 	these 	aspects 	of 	the 	Association's
conduct, 	plus 	other 	aspects, 	lead 	to 	the 	conclusion 	that 	the
Association 	was 	participating 	in 	surface 	bargaining: 	that 	the
Association 	lacked 	the 	subjective 	intent 	to 	negotiate 	with 	the
37

District 	toward 	the 	end 	of 	reaching 	agreement 	on 	a 	full
contract.
A. 	The 	Association's 	Refusal 	to Meet 	During 	the 	Summer.
At 	the 	May 	13 	meeting, 	Currier 	informed 	Steadman 	that 	the
District 	wanted 	to 	conduct 	negotiating 	meetings 	during 	the
summer 	recess 	between 	school 	sessions 	(approximately June 	10
through 	Labor 	Day). 	Steadman, 	speaking 	for 	the 	Association,
said 	the 	Association 	was 	unwilling 	to 	meet 	during 	the 	summer.
Currier 	again 	asked 	for 	the 	scheduling 	of 	summer 	meetings 	at
the 	June 	2 meeting, 	and 	Steadman 	again 	conveyed 	the
Association's 	unwillingness 	to 	meet 	until 	school 	resumed 	in
September.
Currier 	never 	suggested 	specific 	summer 	meeting 	dates, 	but
this 	lack 	of 	specificity 	is 	of 	no 	significance. 	Currier 	made
his 	desire 	for 	summer 	meetings 	clear 	enough, 	a~d 	Steadman
rejected 	the 	idea 	entirely. 	Given 	this 	all-encompassing
refusal, 	it 	would 	have 	been 	futile 	for 	Currier 	to 	suggest
specific 	dates.
Steadman's 	long-planned 	vacation 	trip 	to Spain 	is 	of 	no
legal 	significance 	as 	a 	defense. 	The 	Association 	had 	an
obligation 	to 	make 	available, 	at 	all 	reasonable 	times, 	a
person, 	or 	persons 	with 	authority 	to 	negotiate. 	If 	Steadman
was 	to 	be 	unavailable 	for 	six 	weeks 	during 	the 	summer, 	it 	was
incumbent 	upon 	the 	Association 	to 	designate 	a 	different
individual 	or 	individuals 	to 	act 	for 	the 	Association 	during
38

that 	period.17 	There 	was 	no 	evidence 	that 	Steadman was
indispensable 	for 	the 	negotiations 	process, 	or 	that 	his 	absence
would 	disadvantage 	the 	Association 	in 	some 	way.
Similarly, 	the 	unavailability 	of 	one 	of 	the 	other 	two
members 	of 	the 	negotiating 	team 	for 	a 	period 	in July 	is
insufficient 	to 	excuse 	the 	Association 	from 	its 	duty 	of 	being
ready, 	willing 	and 	able 	to 	negotiate 	at 	all 	reasonable 	times.
The NLRB 	has 	rejected 	the 	asserted 	defense 	to 	a 	refusal 	to
bargain 	charge 	based 	on 	the 	busy 	schedule 	of 	the 	designated
negotiator:
The 	obligation 	to 	bargain 	in 	good 	faith 	••
is 	not 	met 	by 	appointing 	negotiators 	who 	are
too 	busy 	or 	are 	otherwise 	prevented 	from
meeting 	promptly 	and 	at 	timely 	intervals.
Coronet 	Casuals 	(1973) 	207 	NLRB 	304, 	316
[184 	LRRM 	1441].
In 	accord, 	Franklin Equipment, 	Inc. 	(1971) 	194 	NLRB 	643
[79 	LRRM 1112].
A party's 	insistence 	on 	delaying 	meetings, 	or 	scheduling
meetings 	with 	long 	periods 	in-between, 	is 	usually 	taken 	as
evidence 	of 	underlying 	bad 	faith, 	rather 	than 	as 	a~ 	se
violation.18 	However, 	in 	a 	number 	of 	cases 	the 	NLRB 	has
17The 	dispute 	about 	whether 	Steadman 	told 	Currier 	of 	his
travel 	plans 	is 	irrelevant, 	for 	the 	same 	reasons.
18see, 	for 	example, 	Southwestern Porcelain Steel Corp.
(10th 	Cir. 	1963) 	317 	F.2d 	527 	[53 	LRRM 	2307]; 	solo 	Cup Co.
(1963) 	142 	NLRB 	1290 	[53 	LRRM 	1253], 	enforced 	(4th 	Cir. 	1964)
332 	F.2d 	447 	[56 	LRRM 	2383].
39

found 	that 	a 	refusal 	to 	meet 	for 	an 	extended 	period 	of 	time 	is
itself 	an 	unlawful 	act. 	Southwest 	Chevrolet 	(1972) 	194 	NLRB
No. 	157 	[79 	LRRM 	1156]; 	Valley 	Imported 	Cars 	(1973)
203 	NLRB 	873 	[83 	LRRM 	1477].
It 	is 	concluded 	here 	that 	the 	Association's 	refusal 	to 	meet
with 	the 	District 	for 	the 	purpose 	of 	contract 	negotiations 	from
June 	2 	until 	September 	20 	constituted 	a 	violation 	of 	the
Association's 	duty 	to 	meet 	and 	negotiate 	with 	the 	District,
within 	the 	meaning 	of 	section 	3543.G(b). 	There 	were 	numerous
subjects 	on 	the 	table 	by June 	2. 	Each 	party 	had 	reviewed 	its
initial 	proposal 	for 	the 	other; 	there 	had 	been 	a 	minimal
exchange 	of 	ideas 	and 	positions 	(and 	on 	only 	a 	few 	subjects 	at
that), 	and 	no 	exchanges 	on 	at 	least 	a 	dozen 	proposed 	changes 	in
the 	predecessor 	contract. 	Even 	in 	light 	of 	the 	financial
uncertainty 	surrounding 	the 	passage 	of 	the 	annual 	state 	budget,
and 	the 	uncertain 	financial 	consequences 	for 	the 	Gonzales
District, 	there 	were 	many 	non-economic 	subjects 	which 	could
have 	been 	subject 	to 	negotiations. 	By 	its 	refusal 	to 	meet 	at
all 	during 	the 	summer, 	the 	Association 	prevented 	the 	parties
from making 	progress 	on 	any 	of 	the 	outstanding 	non-economic
proposals.
B. 	Association's 	Failure 	to Make 	Written Proposals 	About
Discipline, 	Hours 	of 	Work, 	and 	Layoff.
The 	District 	argues 	that 	the 	Association 	refused 	to 	make
written 	proposals 	concerning 	hours 	of 	work, 	employee
discipline, 	and 	layoff 	for 	lack 	of 	funds, 	and 	by 	these
40

refusals, 	the 	Association 	committed~ 	se 	violations 	of 	its
duty 	to 	negotiate 	with 	the 	District.
First, 	as 	to 	hours 	of 	employment: 	in 	its 	initial 	proposal
to 	the 	District 	on February 	28, 	the 	Association 	proposed 	three
modifications 	in Article V, 	which 	covered 	hours 	of 	employment.
The 	Association 	proposed 	changes 	in 	sections 	E, 	F 	and 	G. 	The
District's 	proposal, 	delivered 	to 	the 	Association 	in 	May 	1983,
proposed 	changes 	in 	sections 	F, 	G, 	and 	H-7.
In 	October, 	the 	District 	made 	two 	proposals 	regarding 	hours
of 	employment, 	both 	of 	which 	e 	to 	the 	Legislature's
passage, 	a 	few 	months 	earlier, 	of 	the 	major 	educational 	reform
bill, 	SB 	813. 	The 	Association 	did 	not 	respond 	to 	that 	proposal
at 	the 	October 	meeting.
As 	for 	the 	discipline 	and 	layoff 	proposals, 	the 	District
presented 	its 	proposals 	on 	these 	subjects 	on May 	13. 	The
Association 	at 	that 	meeting 	denied 	that 	either 	was 	within 	the
scope 	of 	representation.19 	At 	the 	June 	meeting, 	the
Association 	remained 	without 	a 	position 	on 	either 	issue,
although 	(according 	to Steadman's 	testimony) 	he 	acknowledged 	to
w re 	linked
19EERA section 	3543.2(b) 	places 	"causes 	and 	procedures
for 	discipline, 	disciplinary 	action, 	short 	of 	dismissal" 	within
the 	scope 	of 	representation. 	Section 	3543.2(c) 	places
"procedures 	and 	criteria 	for 	the 	layoff 	of 	certificated
employees 	for 	lack 	of 	funds" 	within 	the 	scope 	of
representation. 	Neither 	section 	uses 	the 	word 	"may," 	or
suggests 	these 	are 	permissive, 	rather 	than 	mandatory 	subjects
of 	bargaining.
41

Currier 	that 	discipline 	was 	within 	the 	scope 	of
representation. 	By 	mid-summer, 	at 	the 	latest, 	Steadman 	had
learned 	that 	both 	subjects 	were 	mandatory 	subjects 	of
bargaining. 	At 	the 	September 	meeting, 	at 	which 	the 	parties
reviewed 	their 	initial 	positions 	on 	non-economic 	subjects, 	the
Association 	was 	still 	unable 	to 	articulate 	a 	position 	on 	either
subject, 	although 	Steadman 	acknowledged 	both 	were 	within
scope. 	The 	Association 	had 	not, 	through 	October 	18, 	presented
any 	position 	on 	either 	issue.
The 	District 	argues 	that 	the 	Association's 	failure 	to
present 	positions 	on 	these 	three 	issues--employee 	discipline,
layoff 	for 	lack 	of 	funds, 	and 	hours 	of 	work--are ~ 	se
violations 	of 	the 	Association's 	duty 	to 	negotiate 	in 	good
faith. 	The 	matter 	is 	more 	complicated.
In Oakland 	Unified 	School 	District 	(11/2/81} 	PERB 	Decision
No. 	178, 	PERB 	adopted 	NLRB 	precedent 	which 	holds 	that 	a 	failure
to 	make 	a 	counter-proposal 	is 	not, 	by 	itself, 	a 	violation 	of 	a
party's 	negotiating 	obligation. 	Rather, 	the 	school 	district's
reason 	for 	its 	refusal 	to 	make 	a 	counter-proposal 	was 	examined,
to 	determine 	whether 	the 	District 	was 	acting 	in 	good 	or 	bad
faith. 	In 	the 	Oakland 	case, 	the 	Board 	concluded 	that 	the
district's 	reason 	for 	refusing 	to 	make 	a 	counter-offer 	was
"legitimate, 	and 	in 	the 	main, 	reasonable." 	(Oakland 	Unified
School District, 	ibid., 	at 	pp. 	7-9.}
The 	Association's 	refusal 	to 	make 	counter-proposals 	here
will 	be 	viewed 	in 	the 	same 	light.
42

It 	cannot 	be 	concluded 	that 	the 	Association's 	failure 	to
submit 	a 	written 	counter-proposal 	to 	the 	District's 	October 	18
proposal 	on 	hours 	of 	employment 	was 	in 	bad 	faith.
In February 	the 	Association 	had 	made 	written 	proposals
concerning 	hours 	of 	employment, 	including 	proposals 	about 	two
of 	the 	same 	sections 	which 	the 	District 	sought 	to 	modify. 	On
October 	18 	the 	District 	made 	a 	new 	proposal, 	touching 	on 	new
aspects 	of 	the 	general 	issue. 	Although 	the 	Association 	made 	no
proposals 	in 	October 	in 	response 	to 	these 	new 	proposals, 	the
Association 	can 	hardly 	be 	faulted 	for 	this 	failure. 	The
Association 	cannot 	be 	expected, 	or 	required, 	to 	submit 	a
counter-proposal 	on 	a 	subject 	on 	the 	same 	day 	on 	which 	it
receives 	an 	initial 	proposal 	from 	the 	District.
However, 	the 	Association 	has 	not 	presented 	a 	reasonable
explanation 	for 	its 	failure 	to 	present 	any 	position 	on 	the
layoff 	and 	discipline 	subjects 	from 	the 	months 	of 	June 	through
October. 	The 	Association 	knew 	by May 	13 	that 	the 	District 	was
seeking 	to 	negotiate 	about 	those 	two 	subjects. 	Even 	if
Steadman's 	testimony 	is 	accepted, 	he 	was 	advised 	by CTA 	counsel
in 	mid-May 	that 	he 	had 	an 	obligation 	to 	negotiate 	about
discipline 	issues, 	and 	possibly 	about 	layoff 	issues. 	By
mid-July 	he 	learned 	the 	Association 	also 	had 	an 	obligation 	to
negotiate 	about 	layoff 	issues. 	Nevertheless, 	the 	Assocation
negotiating 	team did 	next 	to 	nothing 	to 	prepare 	itself 	to
negotiate 	about 	these 	issues 	which 	were, 	for 	the 	first 	time,
43

mandatory 	subjects 	of 	bargaining. 	The 	Association's 	only
effort 	in 	this 	regard 	from 	late 	May 	through 	mid-October, 	was
Steadman's 	telephone 	call 	to Romero 	in 	mid- 	or 	late 	May.20
Because 	the 	Association 	negotiating 	team 	was, 	apparently,
unwilling 	to 	take 	any 	position 	in 	either 	issue 	until 	receiving
advice 	from 	the 	statewide 	organization 	with 	which 	it 	was
affiliated, 	and 	because 	it 	received 	no 	assistance 	for 	a
five-month 	period, 	the 	Association 	refused 	to 	take 	any 	position
on 	any 	apsect 	of 	either 	the 	discipline 	issue 	or 	the 	layoff
issue. 	It 	is 	concluded 	that 	these 	reasons 	do 	not 	justify 	the
Association's 	failure 	to 	take 	positions 	on 	these 	issues, 	and
that 	the 	Association's 	conduct 	therefore 	violated 	its
obligation 	to 	negotiate 	in 	good 	faith.21
20steadman 	testified 	that 	approximately 	one 	week 	before
the 	hearing 	began 	on November 	29, 	he 	got 	some 	written 	material
from 	another 	CTA 	staff 	member 	on 	the 	issue 	of 	employee
discipline. 	There 	was 	no 	testimony 	about 	the 	timing 	of 	the
Association's 	request 	for 	assistance 	from 	this 	second 	CTA 	staff
person.
21EERA 	section 	3543.2(b) 	provides 	that 	if 	a 	school
district 	and 	an 	employee 	organization 	fail 	to 	reach 	agreement
on 	"causes 	and 	procedures 	for 	disciplinary 	action," 	the
provisions 	of 	Education 	Code 	section 	44944 	continue 	to 	apply.
Section 	3543.2(c) 	provides 	that 	if 	there 	is 	a 	failure 	of
agreement 	on 	procedures 	and 	criteria 	for 	layoff 	for 	lack 	of
funds, 	the 	provisions 	of 	Education 	Code 	section 	44955 	apply.
The 	Asso~iation 	might 	have 	taken 	the 	position 	in 	negotiations
that 	it 	preferred 	to 	exclude 	both 	subjects 	from 	the 	contract,
and 	to 	rely 	instead 	on 	the 	two 	specified 	sections 	of 	the
Education 	Code. 	This 	might 	well 	have 	satisfied 	its 	negotiating
obligation, 	providing 	the 	positions 	were 	taken 	in 	good 	faith.
But 	the 	Association 	did 	not 	articulate 	even 	those 	simple
positions.
44

The 	District 	also 	argues 	that 	the 	Association's 	refusal 	to
meet 	with 	the 	District 	outside 	of 	normal 	working 	hours 	for 	the
District's 	teachers, 	under 	released 	time, 	was 	a ,Eg 	se
violation 	of 	the 	Association's 	obligation. 	That 	conclusion 	is
rejected 	for 	a 	number 	of 	reasons.
The 	District 	cites 	no 	precedent 	in 	support 	of 	its 	position,
and 	there 	appears 	to 	be 	no 	such 	precedent, 	although 	PERB 	has
made 	a 	number 	of 	decisions 	in 	disputes 	between 	school 	districts
and 	employee 	organizations 	concerning 	release 	time. 	PERB 	has
held, 	in 	decisions 	cited 	in 	footnote 	22, 	that 	the 	extent 	of
release 	time 	to 	be 	allowed 	to 	employee 	negotiators, 	the 	hours
of 	release 	time, 	and 	the 	number 	of 	negotiators 	for 	whom 	release
time 	is 	to 	be 	arranged, 	are 	all 	mandatory 	subjects 	of
negotiations, 	and 	it 	has 	found 	school 	districts 	which 	adopt
inflexible 	positions 	to 	have 	violated 	their 	duty 	to 	negotiate
in 	good 	faith.22
However, 	the 	dispute 	here 	is 	not 	about 	the 	extent 	of
release 	time 	to 	be 	arranged, 	but 	about 	the 	times 	at 	which
negotiating 	sessions 	are 	to 	take 	place. 	Viewed 	in 	this 	light,
the 	evidence 	cannot 	support 	a 	conclusion 	that 	the 	Association
was 	negotiating 	in 	bad 	faith. 	The 	Association 	offered 	to 	meet
22Among 	those 	decisions 	are 	Magnolia 	School 	District
(7/27/77) 	PERB 	Decision No. 	19; 	Anaheim Union 	High 	School
District 	(10/28/81) 	PERB 	Decision No. 	177; 	Sierra Joint
Communit~ 	College 	District 	(11/5/81) 	PERB 	Decision No. 	179; 	and
Nevada 	City School 	District 	(12/4/81) 	PERB 	Decision No. 	185.
45

with 	the 	District 	for 	approximately 	seven 	hours 	a 	day
(including 	some 	time 	for 	a 	lunch 	break). 	The 	District,
similarly, 	offered 	to 	meet 	with 	the 	Association 	for 	six 	to
seven 	and 	one-half 	hours 	per 	day: 	from 	10:00 	a.m. 	to 	4:00 	p.m.
or, 	in 	one 	instance, 	to 	5:30 	p.m. 	Neither 	proposal 	was
inherently 	unreasonable 	for 	these 	early 	stages 	of
negotiations. 	The 	Assocation's 	inflexibility 	on 	its 	position
on 	the 	hours 	of 	meeting 	might 	be 	one 	indication 	of 	underlying
bad 	faith, 	but 	by 	itself, 	cannot 	be 	taken 	to 	be 	a~ 	se
violation 	of 	the 	obligation 	to 	meet 	and 	confer.23
C. 	The 	Allegation 	of 	the 	Association's 	Underlying Bad 	faith
During 	Negotiations.
The 	District 	argues 	that 	the 	Association,
••• 	was 	not 	interested 	in 	reaching
agreement 	and 	was 	bargaining 	in 	bad 	faith.
In 	support 	of 	its 	contention, 	the 	District 	points 	to 	a 	long
list 	of 	specific 	acts 	by 	the 	Association 	which 	can 	be 	organized
under 	six 	general 	headings:
23Neither 	party 	suggested 	any 	compromise. 	The 	parties
could 	have 	met 	from 	10:00 	a.m. 	until 	5:00 	p.m. 	(say), 	with 	the
teachers 	receiving 	release 	time, 	to 	be 	applied 	to 	the 	first 	two
hours 	of 	their 	school 	day, 	or 	to 	another 	designated 	day. 	PERB
has 	found 	that 	the 	release 	time 	provision 	of EERA 	(sec. 	3543.1)
includes,
••• 	no 	requirement 	that 	the 	time 	employees
are 	excused 	from 	duty 	without 	loss 	of
compensation 	must 	precisely 	coincide 	with
time 	actually 	spent 	negotiating. 	(Sierra
Joint 	Community College 	District, 	supra,
note 	22.)
46

1. 	The 	Association's 	attitude 	about 	meeting 	dates, 	and 	the
times 	of 	meetings.
2. 	The 	Association's 	actions 	with 	respect 	to 	ground 	rules.
3. 	The 	Association's 	failure 	to 	present 	counter-proposals
to 	District 	proposals.
4. 	The 	Association's 	conduct 	relating 	to 	its 	salary
proposal.
5. 	The 	Association's 	refusal 	or 	failure 	to 	seek 	clarifying
information 	about 	District 	proposals.
6. 	The 	Association's 	failure 	to 	agree 	to 	specific 	meeting
agendas.
(1) 	The 	Association 	Conduct 	with 	Respect 	to 	Ground 	Rules.
The 	Association 	and 	the 	District 	each 	proposed 	a 	set 	of
ground 	rules. 	As 	noted, 	there 	were 	a 	few 	significant
differences 	between 	them, 	and 	a 	larger 	number 	of 	minor
differences. 	The 	District's 	proposed 	rules 	were 	almost
identical 	to 	those 	used 	by 	the 	parties 	in 	the 	previous
negotiations 	in 	1980-81. 	While 	the 	Association's 	proposed
ground 	rules 	were 	significantly 	different 	than 	those 	used
previously 	on 	two 	points, 	no 	conclusions 	adverse 	to 	the
Association 	can 	be 	drawn 	from 	this 	difference. 	The PERB 	has
held 	that 	negotiating 	"ground 	rules" 	are 	equivalent 	to 	a
mandatory 	subject 	of 	bargaining. 	Stockton 	Unified 	School
District 	(11/3/80) 	PERB 	Decision No. 	143. 	Thus, 	an 	employee
organization 	(or 	an 	employer) 	is 	free 	to 	propose 	any ground
47

rules 	for 	negotiations 	which 	it 	believes 	to 	be 	appropriate 	or
helpful, 	and 	is 	not 	required 	to 	agree 	to 	the 	other 	party's
position 	on 	any 	specific 	issue, 	or 	to 	agree 	to 	any 	specific
compromise.
In 	this 	case, 	the 	Association 	believed 	that 	the 	ground
rules 	which 	were 	used 	in 	the 	previous 	round 	of 	negotiations 	did
not 	serve 	the 	Association 	well. 	The 	Association 	negotiators 	in
1983, 	therefore, 	sought 	to 	conduct 	negotiations 	under 	ground
rules 	which 	were 	more 	suited 	to 	their 	needs. 	Currier, 	the
District's 	negotiator, 	did 	not 	agree 	with 	the 	need 	perceived 	by
the 	Association 	for 	the 	rules 	they 	proposed 	on 	these 	points,
and 	saw 	specific 	disadvantages 	to 	them, 	for 	the 	District 	and
for 	the 	negotiating 	process. 	Eventually, 	compromises 	were
worked 	out 	on 	both 	rules 	(mutual 	minutes 	and 	arrangement 	of
substitute 	teachers), 	which 	both 	parties 	found 	acceptable.
Contrary 	to 	the 	argument 	of 	the 	District, 	it 	cannot 	be
concluded 	that 	the 	Association 	forced 	the 	parties 	to 	spend 	an
excessive 	amount 	of 	time 	on 	the 	ground 	rules. 	The 	parties
spent 	approximately 	two 	hours 	discussing 	them on April 	21, 	and
less 	than 	four 	hours 	on 	May 	13. 	On June 	2 	the 	ground 	rules
were 	the 	first 	order 	of 	business. 	The 	parties 	reached
agreement 	promptly, 	based 	on 	a 	compromise 	prepared 	by 	the
Association 	following 	the 	May 	13 	meeting. 	Certainly,
negotiations 	on 	specific 	contract 	proposals 	could 	have 	begun
earlier, 	if 	the 	ground 	rules 	negotiations 	had 	been 	completed
48

more 	quickly. 	But 	that 	is 	not 	to 	say 	that 	the 	negotiations
over 	ground 	rules 	required 	an 	excessive 	amount 	of 	time. 	The
two 	rules 	which 	were 	the 	center 	of 	the 	dispute 	were 	both 	of
some 	importance 	to 	each 	party, 	and 	neither 	party 	was 	willing 	to
compromise 	its 	position 	after 	a 	brief 	discussion.
The 	Association 	refused 	to 	discuss 	issues 	of 	substance
until 	after 	completion 	of 	the 	ground 	rules 	discussion. 	Again,
it 	cannot 	be 	concluded 	this 	conduct 	was 	unreasonable, 	since 	the
rule 	which 	was 	the 	subject 	of 	the 	most 	disagreement--regarding
the 	keeping 	of 	mutual 	minutes--had 	to 	do 	with 	an 	important
aspect of 	the 	way 	in 	which 	the 	remainder 	of 	the 	meetings 	would
be 	conducted.
In Stockton Unified 	School 	District, 	supra, 	PERB 	found 	that
one 	indication 	of 	the 	respondent's 	failure 	to 	negotiate 	in 	good
faith 	was 	its 	insistence 	that 	the 	parties 	negotiate, 	or
renegotiate, 	the 	ground 	rules 	before 	any 	substantive
negotiations 	could 	take 	place. 	However, 	the 	facts 	in 	that 	case
were 	significantly 	different 	than 	those 	presented 	here. 	There,
the 	employee 	organizaion 	and 	the 	district's 	first 	negotiator
had 	agreed 	on 	ground 	rules 	at 	their 	first 	meeting. 	The
district 	then 	hired 	a 	new 	negotiator, 	who 	insisted 	on
renegotiating 	ground 	rules 	before 	there 	could 	be 	any 	discussion
of 	contract 	provisions. 	The 	negotiator 	persisted 	in 	that
position 	for 	eight 	meetings. 	The 	difference 	between 	that 	case
and 	this 	is 	obvious.
49

(2) 	The 	Association's 	Conduct 	with 	Respect 	to Meeting 	Times.
The 	five 	negotiating 	meetings 	about 	which 	evidence 	was
introduced 	all 	took 	place 	between 	the 	hours 	of 	10:00 	a.m. 	and
3:30 	p.m. 	The 	first 	meeting 	began 	at 	1:00 	p.m. 	and 	took 	only
two 	hours 	and 	ten 	minutes. 	The 	others 	were 	between 	two 	hours,
15 	minutes, 	and 	four 	hours.
The 	relative 	brevity 	of 	the 	meetings 	was 	a 	result 	of 	two
factors: 	the 	Association's 	inflexible 	insistence 	on 	ending 	the
meetings 	no 	later 	than 	3:30 	p.m., 	and 	the 	District's 	inflexible
insistence 	on 	beginning 	the 	meetings 	no 	earlier 	than 	10:00 	a.m.
The 	Association 	was 	willing 	to 	begin 	considerably 	earlier 	than
10:00--Steadman 	suggested 	meetings 	beginning 	at 	8:00 	a.m. 	on 	a
number 	of 	occasions. 	The 	District 	was 	willing 	to 	meet
later--Currier 	suggested 	at 	least 	once 	continuing 	until
5:30 	p.m •• 	However, 	neither 	party 	was 	willing 	to 	inconvenience
itself 	by 	agreeing 	to 	meet 	during 	the 	hours 	preferred 	by 	the
other.
A number 	of 	possible 	compromises 	on 	this 	point 	are 	obvious.
As 	one 	example: 	the 	parties 	could 	have 	begun 	their 	meeting 	early
one 	day, 	thus 	inconveniencing 	Currier, 	and 	could 	have 	continued
later 	for 	the 	next 	meeting, 	thus 	inconveniencing 	the 	Association
negotiators. 	But 	neither 	party 	suggested 	this 	compromise, 	or
any 	other. 	The 	relatively 	limited 	time 	thus 	set 	aside 	for
meetings 	was 	a 	negotiated 	result, 	albeit 	the 	result
50

of 	rather 	clumsy 	negotiations.24
Significant 	in 	this 	respect, 	too, 	is 	the 	District's 	initial
proposal 	for 	ground 	rules, 	including 	the 	proposal 	that:
Either 	side 	may 	caucus 	or 	terminate 	the
negotiating 	session 	at 	any 	time. 	(Emphasis
added.}
This 	provision 	was 	included 	in 	the 	ground 	rules 	eventually
agreed 	upon. 	In 	view 	of 	this 	provision, 	the 	District 	is 	hardly
in 	a 	position 	to 	complain 	about 	the 	Association's 	wish 	to
terminate 	meetings 	at 	3:30 	p.m.
D. 	The 	Association's 	Overall 	Conduct.
The 	strongest 	impression 	that 	emerges 	from 	the 	evidence
presented 	in 	this 	case 	is 	that 	neither 	the 	District 	nor 	the
Association 	took 	as 	seriously 	as 	it 	could, 	at 	least 	during 	the
February-October 	period, 	its 	obligation 	to 	negotiate 	in 	good
faith 	with 	the 	other. 	Both 	the 	District 	and 	the 	Association
approached 	the 	negotiations 	in 	a 	lackadaisical 	fashion.
Neither 	party 	treated 	the 	negotiations 	as 	they 	would 	have
treated 	negotiations 	on 	other 	important, 	multi-faceted 	business
dealings. 	In 	some 	ways, 	the 	District 	and 	the 	Association
collaborated 	in 	conduct 	which 	was 	certain 	to 	lead 	to 	a 	lack 	of
progress. 	In 	other 	ways, 	they 	went 	their 	separate 	ways, 	with
the 	same 	predictable 	results. 	In 	retrospect, 	foolish, 	personal
24Another 	possible 	compromise 	is 	suggested 	in 	footnote 	23.
51

bickering 	was 	allowed 	to 	stand 	in 	the 	way 	of 	each 	party's
overall 	desire 	to 	reach 	agreement.
The 	casual, 	even 	lethargic, 	attitude 	of 	the 	parties 	was
apparent 	from 	the 	beginning.
The 	Association 	first 	advised 	the 	District 	of 	its 	desire 	to
negotiate 	a 	new 	contract 	in 	mid-January, 	and 	delivered 	its
intial 	proposal 	at 	the 	end 	of February. 	It 	was 	not 	until 	the
last 	week 	of 	April, 	that 	the 	District 	made 	its 	public
disclosure 	of 	its 	initial 	negotiating 	positions, 	and 	it 	was 	not
until 	mid-May 	that 	the 	District 	delivered 	to 	the 	Association
its 	specific 	proposals. 	No 	testimony 	was 	offered 	by 	the
District 	to 	explain 	the 	long 	preparation 	period.25 	Nothing
in EERA 	section 	3547 	(regarding 	"sunshining" 	of 	negotiations
proposals) 	or 	in 	the 	PERB 	regulations 	on 	the 	same 	subject
requires 	a 	"gestation" 	period 	of 	that 	length.26 	Indeed, 	EERA
section 	3543.7 	requires 	the 	parties 	to 	begin 	negotiations 	early
enough 	to 	allow 	for 	agreement 	to 	be 	reached, 	or 	for 	impasse 	to
be 	resolved, 	prior 	to 	adoption 	of 	the 	final 	budget 	for 	the
25currier 	testified 	the 	District 	had 	followed 	a 	similar
schedule 	with 	respect 	to 	the 	timing 	of 	the 	"sunshining" 	of
proposals 	in 	1980.
26PERB 	regulation 	32900 	reguires 	every 	district 	board 	to
adopt 	a 	local 	policy 	implementing 	the 	statutory 	"sunshining"
requirement. 	It 	is 	possible 	the 	District 	policy 	required 	the
slow 	process 	used 	here, 	but 	that 	policy 	was 	not 	placed 	in
evidence, 	nor 	did 	the 	District 	offer 	any 	evidence 	about 	its
contents.
52

school 	year 	in August.27 	By 	delaying 	until 	late-April 	the
public 	presentation 	of 	its 	proposal, 	and 	thus 	automatically
delaying 	until 	mid-May 	its 	delivery 	to 	the 	Association 	of
official 	initial 	proposals, 	the 	District 	made 	certain 	that 	no
significant 	negotiations 	could 	take 	place 	during 	the 	spring
school 	term.
After 	the 	District's 	action 	adversely 	affected 	the
likelihood 	of 	negotiations 	taking 	place 	during 	the 	spring
semester, 	the 	Association 	prevented 	any 	negotiations 	at 	all
from 	taking 	place 	during 	the 	summer. 	The 	Association's 	refusal
to 	meet 	during 	the 	summer 	was 	analyzed 	on 	pages 	38-39 	above,
and 	need 	not 	be 	reconsidered 	here.
There 	are 	two 	good 	examples 	of 	the 	way 	in 	which 	the 	parties
collaborated 	to 	guarantee 	a 	lack 	of 	serious 	negotiations 	during
this 	period 	at 	issue 	in 	this 	case. 	First, 	they 	tied 	themselves
into 	a 	short 	meeting 	schedule 	by 	refusing 	to 	compromise 	on 	the
starting 	and 	ending 	times 	of 	meetings. 	They 	agreed 	to 	begin
late 	and 	end 	early.
Second, 	after 	agreeing 	that 	there 	would 	be 	an 	agreed-upon
27EERA 	section 	3543.7 	reads, 	in 	its 	entirety:
The 	duty 	to 	meet 	and 	negotiate 	in 	good 	faith
requires 	the 	parties 	to 	begin 	negotiations
prior 	to 	the 	adoption 	of 	the 	final 	budget
for 	the 	ensuing 	year 	sufficiently 	in 	advance
of 	such 	adoption 	date 	so 	that 	there 	is
adequate 	time 	for 	agreement 	to 	be 	reached,
or 	for 	the 	resolution 	of 	an 	impasse.
53

agenda 	for 	each 	meeting, 	the 	parties 	signed 	off 	on 	a 	series 	of
skeletal, 	uninformative 	agendas, 	which 	left 	both 	parties 	in 	the
dark 	about 	which 	specific 	subjects 	were 	likely 	to 	be 	the
subject 	of 	negotiations. 	Inevitably 	this 	caused 	a 	lack 	of
preparation 	for 	the 	negotiators, 	and 	a 	predictable 	lack 	of
progress.
The 	agreed-upon 	agendas 	{see 	pages 	35-36), 	were 	so 	general
in 	their 	descriptions 	of 	issues 	to 	be 	discussed 	as 	to 	be
meaningless. 	There 	is 	no 	evidence 	that 	either 	Currier 	or
Steadman 	offered 	the 	other 	any 	clarifying 	information 	about 	his
plans 	for 	the 	next 	meeting.
Currier 	made 	one 	half-hearted 	try 	to 	be 	more 	specific, 	but
abandoned 	it 	without 	hesitation. 	In 	August, 	Currier 	wrote 	to
Steadman, 	suggesting 	six 	specific 	subjects 	for 	the 	next
meeting. 	Steadman 	rejected 	this 	suggestion, 	and 	proposed
instead 	that 	each 	party 	choose 	three 	non-economic 	subjects 	to
discuss. 	Currier 	agreed 	to 	the 	suggestion. 	But 	Currier 	and
Steadman 	then 	joined 	in 	sabotaging 	the 	plan 	by 	failing 	to
disclose 	to 	each 	other 	which 	three 	subjects 	each 	had 	in 	mind.
Thus, 	Steadman 	knew 	Currier 	would 	choose 	three 	non-economic
subjects, 	and 	Currier 	knew Steadman 	would 	choose 	three
non-economic 	subjects, 	but 	neither 	knew 	which 	subjects 	the
other 	negotiator 	would 	choose. 	Thus, 	neither 	negotiator 	was
able 	to 	prepare 	specific 	questions, 	explanations, 	or 	written
proposals 	for 	the 	upcoming 	meeting.
54

Then, 	when 	the 	meeting 	took 	place, 	neither 	Currier 	nor
Steadman 	carried 	out 	the 	plan 	by 	focusing 	on 	three 	specific
subjects, 	or 	by 	asking 	the 	other 	to 	do 	so.
In 	the 	August-September 	correspondence, 	Currier 	brushed
aside 	an 	opportunity 	to 	get 	negotiations 	moving 	again 	in 	a
timely 	fashion 	after 	a 	recess 	of 	more 	than 	three 	months.
Currier 	had 	first 	suggested 	a 	meeting 	in 	the 	third 	week 	of
September 	and 	another 	the 	next 	week. 	Steadman 	suggested, 	in
his 	September 	7 	letter, 	that 	the 	parties 	schedule 	two 	meetings
for 	the 	week 	of September 	19, 	or 	one 	that 	week, 	and 	one 	the
first 	week 	of 	October. 	Currier 	agreed 	to 	one 	meeting 	on
September 	20 	but, 	contrary 	to 	his 	earlier 	stated 	preference 	for
scheduling 	several 	meetings 	at 	once, 	declined 	to 	schedule 	a
second 	meeting 	in 	either 	late 	September 	or 	early 	October. 	The
parties 	eventually 	agreed 	to 	the 	October 	18 	date.
One 	other 	aspect 	of 	the 	Association's 	conduct 	has 	no 	exact
parallel 	in 	District 	conduct. 	The 	Association's 	conduct 	is 	not
a~ 	se 	violation 	of 	the 	Association's 	obligation 	to 	negotiate
with 	the 	District 	in 	good 	faith, 	but 	it 	is 	an 	indication 	of 	the
Association's 	lack 	of 	seriousness 	in 	approaching 	the
negotiations.
In February, 	the 	Association's 	initial 	proposal 	to 	the
District 	included 	a 	request 	for 	employer-paid 	vision 	plan,
orthodontic 	plan, 	and 	life 	insurance. 	The 	proposal 	included 	no
details 	of 	the 	extent 	of 	coverage 	to 	be 	provided, 	the 	name 	of
55

the 	carrier, 	or 	the 	approximate 	cost 	of 	the 	coverage 	proposed.
On October 	18, 	the 	Association 	made 	these 	same 	proposals 	to
the 	District, 	and 	again 	provided 	no 	information 	about 	the
extent 	of 	coverage 	sought, 	the 	names 	of 	carriers 	who 	might
provide 	it, 	or 	the 	level 	of 	contribution 	which 	the 	Association
was 	seeking.
Steadman 	testified 	several 	times 	that 	he 	believed 	the
economic 	apsect 	of 	the 	contract 	was 	crucial, 	and 	once 	agreement
on 	economics 	was 	reached, 	the 	remaining 	aspects 	of 	the 	contract
would 	fall 	into 	place 	fairly 	rapidly. 	That 	plausible 	analysis
places 	a 	great 	emphasis 	on 	the 	need 	to 	take 	seriously 	the
elements 	of 	the 	economic 	package. 	By 	failing 	to 	come 	forward
with 	any 	details 	about 	a 	potentially 	expensive 	element 	of 	the
economic 	package, 	the 	Association 	was 	doing 	nothing 	but 	sow
confusion 	about 	its 	economic 	proposals.
The 	District 	points 	to 	a 	number 	of 	other 	aspects 	of 	the
Association's 	conduct 	in 	support 	of 	its 	argument 	that 	the
Association 	participation 	in 	negotiations 	was 	not 	in 	good
faith. 	However, 	it 	is 	concluded 	here 	that 	the 	Association's
conduct 	does 	not 	carry 	the 	significance 	which 	the 	District
attributes 	to 	it.
The 	District 	argues 	that 	the 	Associaton's 	conduct 	with
respect 	to 	the 	sign-off 	form 	for 	agreed-upon 	articles 	evidences
its 	bad 	faith. 	I 	do 	not 	agree. 	The 	Association 	declined 	to
agree 	to 	the 	format 	offered 	by 	Currier 	because 	of 	uncertainty
56

about 	its 	legal 	significance. 	At 	the 	September 	meeting, 	the
Association 	offered 	its 	own 	sign-off 	form, 	not 	very 	different
from 	that 	offered 	by 	Currier 	earlier, 	and 	the 	parties 	initialed
their 	agreement 	on 	the 	grievance 	procedure 	article.
I 	cannot 	conclude 	the 	Association's 	conduct 	was
unreasonable. 	The 	Association 	readily 	agreed 	with 	Currier 	in
May 	that 	since 	neither 	party 	had 	sought 	modification 	of 	the
grievance 	procedure, 	the 	parties 	were 	in 	agreement 	on 	retaining
that 	article 	intact 	to 	the 	next 	contract. 	The 	Association
never 	backed 	away 	from 	that 	agreement. 	The 	delay 	until
September, 	of 	the 	formal 	initialing, 	had 	no 	impact 	on
negotiations. 	The 	Association's 	uncertainty 	about 	the 	legal
consequences 	of 	signing 	off 	on 	a 	form 	proposed 	by Currier 	was
reasonable, 	in 	view 	of 	the 	circumstances: 	they 	were 	three
non-lawyers 	negotiating 	with 	a 	lawyer 	who 	had, 	the 	teachers
believed, 	in 	the 	most 	recent 	round 	of 	negotiations, 	taken
advantage 	of 	the 	lack 	of 	legal 	sophistication of 	the
Association 	bargaining 	team.
The 	District 	points 	to 	the 	Association's 	failure 	to 	present
counter-proposals 	to 	the 	District 	initial 	proposals. 	The
Association's 	conduct 	with 	respect 	to 	the 	discipline, 	layoff,
and 	hours 	of 	work 	proposals 	has 	been 	considered 	above. 	As 	for
the 	absence 	of 	specific 	counter-proposals 	by 	the 	Association 	to
other 	proposals 	by 	the 	District, 	very 	little 	significance 	can
be 	attached 	to 	that. 	The 	Association's 	initial 	proposals
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(given 	to 	the 	board 	in February) 	covered 	virtually 	all 	the
areas 	covered 	by 	the 	District's 	proposals, 	other 	than 	layoff
and 	discipline. 	In 	that 	sense, 	the 	District 	knew 	what 	the
Association's 	positions 	were 	on 	the 	articles 	which 	the 	District
hoped 	to 	modify 	in 	the 	successor 	contract. 	In 	addition, 	in
this 	respect 	the 	Association's 	conduct 	and 	the 	District's
conduct 	were 	parallel: 	neither 	had 	modified 	its 	initial
proposals 	to 	move 	toward 	compromise 	with 	the 	other. 	The
negotiations 	were, 	presumably, 	to 	enter 	that 	stage 	after 	the
October 	18 	meeting.
Next, 	the 	District 	argues 	that 	the 	Association's 	failure 	to
provide 	"comparability 	data" 	that 	it 	had 	in 	connection 	with 	its
salary proposal, 	when 	Currier 	asked 	for 	it 	in 	October, 	is
evidence 	of 	bad 	faith. 	The 	argument 	is 	rejected. 	It 	is
unclear 	what 	data 	Currier 	asked 	for. 	From Currier's 	testimony
it 	appears 	that 	Currier 	defined 	"comparability" 	in much 	broader
terms 	than 	did 	the 	Association. 	Currier, 	with 	good 	reason,
suggested 	that 	comparability 	should 	include 	the 	cost 	of 	other
districts' 	fringe 	benefits, 	and 	analysis 	of 	the 	distribution 	of
teachers 	across 	the 	seniority 	range 	(i.e., 	analysis 	of 	what
percentage 	of 	the 	Gonzales 	teachers 	were 	10-year 	teachers, 	and
earning 	appropriate 	salaries, 	and 	percentage 	of 	the 	teachers
who 	had 	12 	years 	of 	seniority, 	and 	what 	percentage 	had 	2 	years
seniority). 	A comparability 	study, 	Currier 	said, 	would 	include
analogous 	information 	about 	the 	teachers 	employed 	by 	other
districts.
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It 	is 	not 	at 	all 	clear 	that 	the 	Association 	had 	this
information. 	Testimony 	by Steadman 	suggested 	the 	teachers 	had
gathered 	salary 	scale 	data 	only. 	Thus, 	there 	is 	no 	evidence
that 	the 	Association 	had 	the 	information 	which 	Currier
apparently 	asked 	for.
The 	District 	also 	argued 	that 	the 	Association's 	bad 	faith
was 	illustrated 	by 	its 	proposal, 	in 	October, 	that 	the 	parties
conduct 	a 	joint 	study 	of 	compensation 	levels 	in 	other 	(nearby)
school 	districts. 	That 	is 	not 	the 	conclusion 	drawn 	here. 	The
October 	meeting, 	by 	agreement 	of 	the 	parties, 	was 	the 	first 	at
which 	there 	was 	any 	detailed 	discussion 	of 	economic 	proposals
by 	the 	parties. 	Currier 	suggested, 	both 	in 	testimony 	and
during 	the 	negotiations, 	that 	significant 	economic 	negotiations
could 	not 	begin 	until 	August, 	after 	the 	Legislature 	had 	passed
a 	school 	finance 	bill, 	and 	after 	the 	District 	had 	learned, 	from
state 	administrators, 	how 	much 	state 	money 	would 	be 	transferred
to 	the 	District. 	Thus, 	neither 	party 	was 	in 	a 	posi~ion 	to
discuss 	or 	analyze 	economics 	until 	August 	at 	the 	earliest; 	and
since 	the 	parties 	had 	agreed 	to 	discuss 	non-economic 	issues 	at
their 	September 	meeting, 	the 	District 	cannnot 	complain 	of 	the
October 	timing 	of 	the 	Association's 	proposal.
In 	addition, 	in 	view 	of 	the 	definition 	of 	comparability
that 	Currier 	had 	suggested, 	a 	joint 	study 	was 	not 	a 	foolish
idea. 	It 	might 	well 	be 	that 	the 	District, 	rather 	than 	the
Association, 	would 	have 	the 	best 	access 	to 	information 	from
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other 	districts 	about 	the 	costs, 	to 	the 	employer, 	of 	various
forms 	of 	health 	insurance 	and 	other 	fringe 	benefits 	provided 	by
other 	districts.
CONCLUSIONS
It 	is 	concluded 	that 	the 	Association 	violated EERA
section 	3543.6(b) 	by 	its 	refusal 	to 	meet 	with 	the 	District 	from
June 	2 	until 	September 	20, 	and 	by 	its 	failure 	to 	adopt 	any
position 	with 	respect 	to 	two 	mandatory 	subjects 	of 	bargaining
(employee 	discipline 	and 	layoff 	for 	lack 	of 	funds) 	through 	and
until 	October 	18, 	1983. 	The 	allegation 	that 	the 	Association
violated 	its 	legal 	obligation 	by 	its 	position 	regarding 	hours
of 	meeting 	will 	be 	dismissed.
The 	broader 	charge 	that 	the 	Association 	negotiated
throughout 	the 	period 	without 	the 	requisite 	good 	faith 	will 	not
be 	sustained. 	It 	is 	clear 	from 	the 	evidence 	presented 	that
neither 	the 	District 	nor 	the 	Association 	approached 	the 	initial
stages 	of 	negotiations 	with 	a 	great 	deal 	of 	seriousness. 	But
that 	is 	not 	sufficient 	to 	conclude 	that 	either 	party, 	or 	both,
lacked 	the 	subjective 	intent 	to 	reach 	agreement 	with 	the 	other
on 	the 	terms 	of 	a 	memorandum of 	agreement.
The 	evidence 	presented 	concerned 	only 	five 	meetings, 	and
only 	three 	of 	those 	had 	to 	do 	with 	issues 	of 	substance. 	By
stipulation, 	the 	parties 	agreed 	to 	present 	no 	evidence 	of
events 	taking 	place 	after 	that 	point. 	That 	is 	unfortunate,
because 	it 	was 	only 	at 	the 	end 	of 	the 	fifth 	meeting 	that 	the
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stage 	was 	set 	for 	serious 	negotiations: 	the 	extent 	of 	financial
aid 	to 	the 	District 	from 	the 	state 	was 	known, 	the 	parties 	had
both 	economic 	proposals 	and 	non-economic 	proposals 	on 	the 	table
and 	explained 	by 	their 	respective 	proponents, 	and 	the 	parties
had 	begun 	talking 	about 	money.
If 	there 	had 	been 	evidence 	that 	either 	party 	had 	continued
to 	treat 	negotiations 	in 	a 	lethargic 	or 	casual 	manner 	for 	one
or 	two 	meetings 	beyond 	October 	18, 	it 	would 	not 	be 	difficult 	to
conclude 	that 	party 	lacked 	a 	subjective 	intent 	to 	reach
agreement 	with 	the 	other. 	However, 	we 	do 	not 	have 	evidence 	of
that 	kind. 	In 	the 	absence 	of 	that 	evidence, 	in 	these
circumstances, 	it 	is 	not 	possible 	to 	conclude 	that 	the
Association's 	conduct 	violated EERA 	section 	3543.6(b).
In 	a 	number 	of NLRB 	decisions, 	it 	has 	been 	held 	that 	it 	is
not 	possible 	to 	draw 	a 	conclusion 	about 	the 	good 	faith 	in 	which
a 	respondent 	has 	negotiated 	with 	the 	charging 	party 	in 	certain
circumstances. 	In Times 	Publishing 	Company 	(1947) 	72 	NLRB 	676,
682-893 	[19 	LRRM 	1199] 	(in 	which 	the 	charging 	party 	was 	a
union), 	the 	Board 	held:
A union's 	refusal 	to 	bargain 	in 	good 	faith
may 	remove 	the 	possibility 	of 	negotiation 	and
thus 	preclude 	the 	existence 	of 	a 	situation 	in
which 	the 	employer's 	own 	good 	faith 	can 	be
tested. 	If 	it 	cannot 	be 	tested, 	its 	absence
can 	hardly 	be 	found.
See 	also 	Patient 	Trader, 	Inc. 	(1967) 	167 	NLRB 	842, 	854.
It 	is 	not 	concluded 	here 	that 	the 	charging 	party 	was
bargaining 	in 	bad 	faith: 	there 	is 	not 	enough 	evidence 	to 	reach
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that 	conclusion. 	However, 	it 	is 	concluded 	that 	the 	charging
party's 	conduct, 	from 	February 	to October, 	contributed, 	to 	a
large 	extent, 	to 	the 	slow 	pace 	of 	negotiations, 	and 	to 	the
circumstances 	in 	which 	the 	parties 	found 	themselves 	seven 	and
one-half 	months 	after 	the 	Association's 	submission 	to 	the
District 	of 	its 	first 	proposals: 	no 	further 	than 	the 	threshold
of 	the 	exchange 	of 	modified 	proposals, 	positions, 	and
compromises 	which 	is 	the 	reality 	of 	serious 	contract
negotiations.
Thus, 	to 	paraphrase 	the 	Times 	Publishing 	decision, 	the
District's 	actions 	during 	the 	period 	preceding 	October 	18
precludes 	the 	existence 	of 	a 	situation 	in 	which 	the
Association's 	good 	faith 	could 	be 	tested. 	Therefore, 	the
allegation 	that 	the 	Association's 	conduct 	in 	negotiations 	from
February 	to 	October 	was 	undertaken 	without 	the 	required 	good
faith 	will 	be 	dismissed.
REMEDY
It 	is 	appropriate 	in 	this 	case 	to 	order 	the 	Association 	to
cease 	and 	desist 	from 	refusing 	to 	negotiate 	in 	good 	faith. 	It
is 	necessary 	that 	all 	unit 	employees 	be 	fully 	informed 	of 	this
Decision. 	Gonzales 	Union 	High 	School 	District Teachers
Association 	will 	be 	required 	to 	post 	the 	attached 	Notice 	at 	all
places 	throughout 	the 	District 	where 	notices 	are 	customarily
placed 	and, 	additionally, 	to 	distribute 	copies 	of 	the 	Notice 	to
all 	employees 	in 	the 	unit 	through 	the 	District's 	internal
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distribution 	system 	if 	that 	is 	the 	customary 	method 	of
distributing 	Association 	literature.
It 	effectuates 	the 	purposes 	of 	the EERA 	that 	employees 	be
informed 	of 	the 	resolution 	of 	the 	controversy 	and 	will 	announce
the 	parties' 	readiness 	to 	comply 	with 	the 	ordered 	remedy. 	See
Placerville 	Union 	School 	District 	(9/18/78) 	PERB 	Decision
No. 	69; 	Pandol 	and 	Sons 	v. 	Agricultural 	Labor 	Relations Bd.
(1979) 	98 	Cal.App.3d 	580, 	587; 	NLRB 	v. 	Express 	Publishing 	Co.
(1941) 	312 	U.S. 	426 	[8 	LRRM 415].
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3541.5(c), 	it 	is 	hereby 	ordered 	that 	the 	Gonzales 	Union High
School 	District Teachers 	Association 	and 	its 	representatives
shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Refusing 	to 	meet 	and 	negotiate 	with 	the 	District
during 	the 	summer 	recess;
(b) 	Refusing 	to 	negotiate 	about 	employee 	discipline
and 	employee 	layoffs.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS 	ACT:
(a) 	Within 	five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
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EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
{30) 	consecutive 	workdays 	at 	its 	headquarters 	offices 	and 	in
conspicuous 	places 	at 	the 	location 	where 	notices 	to
certificated 	employees 	are 	customarily 	posted. 	It 	must 	not 	be
reduced 	in 	size 	and 	reasonable 	steps 	should 	be 	taken 	to 	see
that 	it 	is 	not 	defaced, 	altered 	or 	covered 	by 	any 	material.
Additionally, 	copies 	of 	the 	notice 	must 	be 	distributed 	to 	all
employees 	in 	the 	unit 	through 	the 	District's 	internal
distribution 	system 	if 	that 	is 	the 	customary 	method 	of
distributing 	Association 	literature.
{b) 	Unless 	otherwise 	directed 	by 	the 	San Francisco
Regional 	Director, 	written 	notification 	of 	the 	actions 	taken 	to
comply 	with 	this 	order 	shall 	be 	made 	to 	the 	regional 	director
within 	twenty 	{20) 	workdays 	from 	the 	date 	of 	service 	of 	the
final 	decision 	herein. 	All 	reports 	to 	the 	regional 	director
shall 	be 	concurrently 	served 	on 	the 	charging 	party 	herein.
IT 	IS 	FURTHER ORDERED 	all 	other 	allegations 	of 	the 	charge
and 	complaint 	are 	DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	June 	21, 	1984, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative 	Code 	title 	8,
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part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on June 	21,
1984, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States 	mail,
postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in 	order 	to
be 	timely 	filed. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently 	with 	its 	filing
upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be
filed 	with 	the 	Board 	itself. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	sections 	32300 	and 	32305.
Dated: 	June 	1, 	1984
MARTIN 	FASSLER
Administrative 	Law 	Judge
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