San Mateo County Community College District (PERB 0486E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN MATEO COMMUNITY COLLEGE
FEDERATION OF TEACHERS, AFT
LOCAL 1493, AFL-CIO,

Charging Party, Case No. SF-CE-804

Ve PERB Decision No. 486

SAN MATEO COUNTY COMMUNITY
COLLEGE DISTRICT,

February 13, 1985

Respondent.

Appearances: Van Bourg, Allen, Weinberg & Roger by Blythe
Mickelson for San Mateo Community College Federation of
Teachers, AFT Local 1493, AFL-CIO; Brown and Conradi by
Penn Foote for San Mateo County Community College District.

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

JAEGER, Member: The San Mateo County Community College
District (District) excepts to the finding of an administrative
law judge (ALJ), attached hereto, that it violated section
3543.5(a), (b) and (c) of the Educational Employment Relations
Act (EERA) + by unilaterally rescinding a paid sick leave
policy for summer school teachers.

The San Mateo Community College Federation of Teachers, AFT
Local 1493, AFL~CIO (AFT) is the exclusive representative of a

certificated unit which includes summer school employees.

1EERA is codified at Government Code section 3540 et seq.

These 	employees 	were 	added 	to 	the 	original 	unit 	by 	agreement 	of
the 	District 	and 	the 	previous 	exclusive 	representative. 	Prior
to 	this 	negotiated 	unit 	modification, 	the 	District 	had
promulgated 	a 	regulation 	providing 	paid 	sick 	leave 	for 	summer
school 	employees. 	During 	the 	parties' 	first 	negotiations
subsequent 	to 	the 	unit 	modification, 	AFT 	proposed 	that 	District
regulations 	applying 	to 	summer 	school 	employees 	be 	incorporated
into 	the 	contract. 	The 	District 	agreed 	to 	include 	certain
provisions 	other 	than 	the 	sick-leave 	regulation.
A three-year 	contract 	was 	executed 	in March 	1982. 	In 	April
1983, 	the 	District 	placed 	on 	its 	public 	meeting 	agenda, 	a
resolution 	to 	rescind 	the 	sick-leave 	regulation. 	However, 	it
withdrew 	the 	item when AFT 	informed 	the 	District 	that 	it 	wished
to 	negotiate 	the 	matter. 	Meetings 	between 	the 	District 	and 	AFT
then 	took 	place 	at 	which 	the 	District 	maintained 	that 	it 	had
the 	legal 	right 	to 	unilaterally 	rescind 	the 	provision. 	It
acted 	to 	do 	so 	in 	June. 	AFT 	filed 	this 	unfair 	charge 	in 	August.
In 	concluding 	that 	the 	District 	violated 	EERA, 	the
administrative 	law 	judge 	relied 	largely 	on 	the 	following
language 	in 	Los 	Angeles 	Community 	College 	District 	(10/18/82)
PERB 	Decision No. 	252 	at 	pg. 	13-14:
••• 	union 	conduct 	in 	negotiations 	will
make 	out 	a 	waiver 	only 	if 	a 	subject 	was
"fully discussed" 	or 	"consciously 	explored"
•••• 	The 	fact 	that 	a 	union drops 	a
contract 	proposal 	during 	the 	course 	of
negotiations 	does 	not 	mean 	it 	has 	waived 	its
bargaining 	rights 	and 	ceded 	the 	matter 	to
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management 	prerogative 	•••• 	Where,
••• 	a 	union 	attempts 	••• 	to 	codify 	the
status 	quo 	in 	the 	contract 	and 	fails 	to 	do
so, 	the 	status 	quo 	remains 	as 	it 	was 	before
the 	proposal 	was 	offered •••• 	the 	union
has 	not 	relinquished 	its 	statutory 	right 	to
reject 	a 	management 	attempt 	to 	unilaterally
change 	the 	status 	quo 	••••
The 	ALJ 	further 	found 	that,
[C]ontract 	terms 	will 	not 	justify 	a
unilateral 	management 	act 	on 	a 	mandatory
subject 	••• 	unless 	the 	contract 	expressly
or 	by 	necessary 	implication 	confers 	such
right 	•••• 	(Los 	Angeles 	Community
College 	District, 	supra) 	at 	p. 	10.)
Therefore, 	the 	ALJ concluded, 	Article 	18.2 	of 	the 	parties
agreement, 	which 	reads:
This 	agreement 	shall 	supersede 	any 	rules,
regulations 	or 	practices 	of 	the 	[District]
which 	shall 	be 	contrary 	to 	or 	inconsistent
with 	its 	terms[.]
does 	not 	constitute 	a 	waiver 	of 	AFT's 	negotiating 	rights. 	He
reasoned 	that 	since 	the 	contract 	contains 	no 	provision 	for 	sick
leave 	for 	summer 	school 	employees, 	there 	is 	no 	agreement 	on. the
matter 	which 	supersedes 	existing 	regulations. 	Absent 	a
superseding 	provision, 	a 	waiver, 	or 	a 	cession 	of 	unilateral
power 	to 	the 	District, 	the 	principle 	to 	be 	applied 	is 	that
expressed 	in 	Pajaro 	Valley 	Unified 	School 	District 	(5/22/78)
PERB 	Decision 	No. 	51, 	San Mateo 	County 	Community 	College
District 	(6/8/79) 	PERB Decision No. 	94, 	and 	NLRB 	v. 	Katz 	369
U.S. 	736 	[50 	LRRM 	2177]:
An 	employer's 	unilateral 	change 	in 	a
negotiable 	subject 	without 	first 	notifying
the 	exclusive 	representative 	and 	affording
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it 	the 	opportunity 	to 	negotiate, 	constitutes
a 	per 	se 	violation 	of 	the 	employer's 	duty 	to
bargain 	in 	good 	faith.
The 	ALJ 	also 	considered 	the 	District's 	argument 	that 	by
dropping 	its 	demand 	to 	include 	the 	sick 	leave 	regulation 	in 	the
contract, 	AFT 	yielded 	its 	right 	to 	bargain on 	the 	subject. 	He
pointed 	out 	that, 	by 	its 	action, 	AFT did 	not 	cede 	to 	the
District 	the 	right 	to 	later 	make 	changes 	in 	negotiable
matters. 	The 	ALJ's 	remedy 	included 	restoration 	of 	the
sick-leave 	policy, 	crediting 	affected 	employees 	with 	sick-leave
accrual 	lost 	as 	a 	result 	of 	the 	rescission, 	and 	make-whole 	pay
for 	employees 	whose 	salary 	was 	docked 	as 	a 	result 	of 	the 	loss
of 	sick 	leave 	benefits.
DISCUSSION
The 	District contends 	that 	the 	ALJ 	erred 	by 	looking 	to 	the
bargaining 	history 	first 	to 	determine 	what 	the 	parties 	intended
with 	respect 	to 	AFT's 	bargaining 	rights. 	It 	argues 	that 	he
should 	have 	looked 	to 	the 	contract 	which, 	it 	asserts, 	is 	clear
and 	unambiguous 	in 	its 	denial 	of AFT's 	right 	to 	negotiate 	the
matter 	of 	sick 	leave 	for 	summer 	school 	workers. 	In 	its 	second
exception, 	the 	District 	also 	asserts 	that 	Article 	16.1 	of 	the
contract 	specifically 	states 	that 	summer 	school 	employees 	shall
not 	have 	sick 	leave 	benefits.
Although 	it 	would 	be 	inappropriate 	to 	inquire 	into 	the
bargaining 	history 	where 	the 	contract 	language 	is 	clear 	and
unambiguous, 	the 	Board 	does 	not 	find 	that 	the 	ALJ 	erred 	here.
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The 	District's 	claim 	that 	the 	contract 	is 	of 	such 	unequivocal
character 	does 	not 	make 	it 	so. 	The 	contract 	articles 	relied 	on
by 	the 	District 	clearly 	demonstrate 	that 	there 	is 	no 	provision
covering 	sick 	leave 	for 	summer 	session 	employees 	and, 	further,
make 	it 	clear 	that 	existing 	rules 	and 	regulations 	are
superseded 	only 	by 	conflicting 	provisions 	of 	the 	contract.
Article 	16.1 	reads:
The 	only 	articles 	of 	this 	Agreement 	which
apply 	to 	summer 	session 	employees 	are 	the
following:
Article 	1: 	Recognition
Article 	2: 	Organizational 	Rights
Article 	4: 	Management 	Rights
Article 	5: 	Peaceful 	Settlement 	of
Differences
Article 	14: 	Safety 	Conditions 	of 	Employment
Article 	15: 	Grievance 	Procedure
The 	ALJ 	correctly 	concluded 	that 	this 	article 	means 	only
that 	there 	is 	no 	contract 	provision 	for 	summer 	session 	sick
leave, 	and 	does 	not 	mean 	that 	there 	is 	no 	District 	policy 	on
summer 	session 	sick 	leave, 	or 	that 	the 	existing 	sick 	leave
regulation 	was 	rescinded. 	Absent 	conflicting 	contractual
language, 	supersession 	of 	existing 	rules 	and 	regulations 	does
not 	occur. 	It 	was 	this 	analysis 	of 	the 	contract 	provisions
cited 	by 	the 	District 	that 	led 	the 	ALJ 	to 	look 	to 	collateral
evidence 	of 	the 	parties 	intentions, 	including 	testimony
provided 	by 	the 	District.
Finally, 	the 	District 	argues 	that 	even 	if 	the 	contract 	is
ambiguous, 	the 	bargaining 	history 	establishes 	that 	AFT 	yielded
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its 	right 	to 	bargain. 	It 	tried 	to 	get 	the 	sick 	leave 	policy 	in
the 	contract 	and 	failed, 	accepting 	instead 	Article 	16.1. 	The
ALJ 	correctly 	disposed 	of 	this 	argument, 	relying 	quite 	properly
on 	Los 	Angeles 	Community 	College 	District, 	supra.
Absent 	a 	finding 	that 	the 	contract 	wiped 	out 	all 	existing
policy 	or 	practice 	on 	sick 	leave 	for 	summmer 	session 	teachers,
or, 	expressly 	or 	by 	necessary 	implication, 	gave 	the 	District
the 	untrammeled 	right 	to 	act 	on 	the 	matter, 	the 	District 	was
foreclosed 	from 	taking 	unilateral 	action 	without 	first
notifying 	AFT 	and 	providing 	it 	with 	the 	opportunity 	to
negotiate. 2
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	subsection
3541.5(c) 	of 	the 	Government 	Code, 	it 	is 	hereby 	ORDERED 	that 	the
San Mateo 	County 	Community 	College 	District 	shall:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	the 	San 	Mateo 	Community 	College 	Federation 	of
Teachers, 	AFT 	Local 	1493, 	AFL-CIO 	as 	the 	exclusive
representative 	of 	its 	em~loyees 	by 	making 	unilateral 	reductions
in 	the 	sick 	leave 	policy 	for 	summer 	session 	employees.
2pajaro 	Valley 	Unified 	School 	District 	(5/22/78) 	PERB
Decision 	No. 	51~ 	San 	Francisco 	Community 	College 	District
(10/12/79) 	PERB 	Decision 	No. 	105~ 	NLRB 	v. 	Katz 	(1962) 	369 	U.S.
739 	[50 	LRRM 	2177].
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{b) 	By 	the 	same 	conduct, 	denying 	to 	the 	San Mateo
Community 	College 	Federation 	of 	Teachers, 	AFT 	Local 	1493,
AFL-CIO 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	represent 	its 	members.
{c) 	By 	the 	same 	conduct 	interfering 	with 	employees 	in
the 	exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT.
{a) 	Reinstate 	section 	3.80 	D of 	the 	District's 	rules
and 	regulations.
{b) 	Credit 	each 	bargaining 	unit 	summer 	session
employee 	with 	the 	sick 	leave 	they 	would 	have 	accumulated 	had 	it
not 	been 	for 	the 	District's 	unilateral 	actions.
{c) 	Make 	whole 	any 	employee 	for 	any 	loss 	of 	pay due
to 	the 	deletion 	of 	rule 	3.80 	D, 	including 	interest 	at 	the 	rate
of 	ten 	{10) 	percent 	per 	annum.
{d) 	Within 	thirty-five 	days 	following 	the 	date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	prepare 	and
post 	copies 	of 	the 	Notice 	to 	Employees 	attached 	as 	an 	appendix
hereto 	for 	at 	least 	thirty 	{30) 	consecutive 	workdays 	at 	its
headquarters 	offices 	and 	in 	conspicuous 	places 	at 	those
locations 	where 	notices 	to 	certificated 	employees 	are
customarily 	posted. 	It 	must 	not 	be 	reduced 	in 	size 	and
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reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any 	material.
(e) 	Written 	notification 	of 	the 	actions 	taken 	to
comply 	with 	this 	Order 	shall 	be 	made 	to 	the 	San 	Francisco
regional 	director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance 	with 	his/her 	instructions.
Chairperson 	Hesse 	and 	Member 	Morgenstern 	joined 	in 	this
Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
P
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	SF-CE-804,
San Mateo 	Community 	College 	Federation 	of 	Teachers, 	AFT
Local 	1493, 	AFL-CIO 	v. 	San Mateo 	Community 	College 	District, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	District 	violated 	Government 	Code 	section
3543. 5 (a), 	(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct 	we 	have 	been 	ordered 	to 	post
this 	Notice 	and 	will 	abide 	by 	the 	following. 	We 	will:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	the 	San 	Mateo 	Community 	College 	Federation 	of
Teachers, 	AFT 	Local 	1493, 	AFL-CIO 	as 	the 	exclusive
representative 	of 	its 	employees 	by 	making 	unilateral 	reductions
in 	the 	sick 	leave 	policy 	for 	summer 	session 	employees.
(b) 	By 	the 	same 	conduct, 	denying 	to 	the 	San 	Mateo
Community 	College 	Federation 	of 	Teachers, 	AFT 	Local 	1493,
AFL-CIO 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	represent 	its 	members.
(c) 	By 	the 	same 	conduct 	interfering 	with 	employees 	in
the 	exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT.
(a) 	Reinstate 	section 	3.80 D of 	the 	District's 	rules
and 	regulations.
(b) 	Credit 	each 	bargaining 	unit 	summer 	session
employee 	with 	the 	sick 	leave 	they 	would 	have 	accumulated 	had 	it
not 	been 	for 	the 	District's 	unilateral 	actions.
(c) 	Make 	whole 	any 	employee 	for 	any 	loss 	of 	pay 	due
to 	the 	deletion 	of 	rule 	3.80 	D, 	including 	interest 	at 	the 	rate
of 	ten 	(10) 	percent 	per 	annum.
Dated: 	SAN MATEO COMMUNITY COLLEGE 	DISTRICT
By:
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED 	BY
OTHER MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD a
SAN MATEO 	COMMUNITY COLLEGE
FEDERATION OF 	TEACHERS, 	AFT
LOCAL 	1493, 	AFL-CIO,
Charging 	Party,
v.
SAN MATEO 	COUNTY 	COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
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__________________ )
Unfair 	Practice
Case 	No. 	SF-CE-804
PROPOSED 	DECISION
(5/25/84)
Apperances: 	Blythe 	Mickelson, 	(Van Bourg, 	Allen, 	Weinberg 	&
Roger) 	attorney 	for 	Charging Party~ 	Penn Foote 	(Brown 	and
Conradi), 	attorney 	for 	Respondent.
Before: 	James w. 	Tamm, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On 	August 	1, 	1983, 	the 	San 	Mateo 	Community College
Federation 	of 	Teachers, 	AFT 	Local 	1493, 	AFL-CIO 	(hereafter 	AFT
or 	Charging 	Party) 	filed 	this 	charge 	against 	the 	San Mateo
County 	Community 	College 	District 	(hereafter 	District 	or
Respondent). 	The 	charge, 	as 	amended, 	alleges 	that 	the 	District
took 	unilateral 	action 	by 	deleting 	from 	its 	rules 	and
regulations 	a 	section 	providing 	one 	day 	of 	sick 	leave 	for
summer 	session 	instructors 	in 	violation 	of 	sections 	3543.5(a),
(b) 	and 	(c) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA) .1
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540

An 	informal 	settlement 	conference 	was 	held 	on September 	13,
1983, 	however, 	the 	matter 	remained 	unresolved. 	A formal
hearing 	was 	held 	November 	17, 	1983. 	A transcript 	was 	prepared,
briefs 	were 	filed, 	and 	the 	case 	was 	submitted 	for 	decision
February 	2, 	1984.
FINDINGS 	OF FACT
From December 	1977 	through 	May 	1982 	the 	certificated
employees 	of 	the 	District 	were 	represented 	by 	an 	affiliate 	of
the 	California Teachers 	Association 	(CTA).2 	Summer 	session
employees 	were 	not 	included 	within 	that 	bargaining 	unit. 	In
May 	1982 	the 	Charging Party 	decertified 	the 	incumbent 	as
exclusive 	representative.3 	On 	May 	3, 	1983, 	just 	prior 	to 	the
et 	seq. 	All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	specified. 	Sections 	3543.5 	states 	in 	pertinent 	part
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2pERB 	Case 	No. 	SF-R-517.
3pERB 	Case 	No. 	SF-D-89 	(R-517).
2

decertification 	election, 	the 	parties 	agreed 	to 	modify 	the
existing 	bargaining 	unit 	to 	include 	summer 	session 	certificated
employees.4
When 	the 	AFT 	and 	the 	District 	began 	contract 	negotiations,
the 	AFT 	used 	the 	contract 	previously 	negotiated 	between 	the
District 	and 	CTA 	for 	1979 	through 	1982 	as 	its 	starting 	point.
The 	CTA-District 	contract 	did 	not 	include 	summer 	session
employees 	because 	they 	had 	not 	been 	in 	the 	unit 	at 	the 	time 	the
contract 	had 	been 	negotiated. 	AFT 	sought 	in 	its 	initial
proposal 	to 	apply 	all 	sections 	of 	the 	old 	contract 	to 	summer
session 	employees.
The 	District 	initially 	proposed 	that 	summer 	session
compensation 	remain 	the 	same 	as 	the 	previous 	spring 	semester
and 	it 	sought, 	among 	other 	things, 	to 	limit 	summer 	session
inclusion 	in 	the 	contract.5 	One 	of 	the 	articles 	that 	the
District 	did 	not 	want 	to 	apply 	to 	summer 	session 	was 	Article 	2:
4PERB 	Case 	No. 	SF-UM-247.
5The 	District's 	proposal 	was 	written 	in 	the 	negative. 	It
proposed 	that 	the 	following 	articles 	would 	not 	apply 	to 	summer
session 	employees. 	Article 	6: 	Workload; 	7: 	Hours 	of
Employment; 	11: 	Leaves; 	12: 	Transfers 	and 	Reassignments;
13: 	Performance 	Evaluation Procedures; 	and 	15: 	Grievance
Procedures. 	The 	District 	also 	proposed 	that 	Article
2: 	Organizational 	Rights, 	be 	deleted 	from 	the 	contract
entirely. 	By 	implication, 	the 	following 	articles 	would 	apply:
1: 	Recognition; 	3: 	Payroll 	Deduction; 	4: 	Management 	Rights;
5: 	Peaceful 	Settlement 	of 	Differences; 	8: 	Pay 	and 	Allowances;
9: 	Health 	and 	Welfare 	Benefits; 	10: 	Retirement; 	14: 	Safety
Conditions 	of 	Employment; 	16: 	Miscellaneous; 	and 	17: 	Duration.
3

Leaves. 	That 	article 	included 	the 	following 	sections:
11.1-sick 	leave;
11.2-industrial 	accident 	or 	illness 	leave;
11.3-immediate 	family 	illness 	leave;
11.4-bereavement 	leave;
11.5-personal 	necessity 	leave;
11.6-exchange 	teaching 	leave;
11.7-military 	leave; 	11.8-jury 	duty;
11.9-maternity 	leave.
The 	sick 	leave 	section 	included 	11 	subsections. 	The
pertinent 	subsections 	are 	as 	follows:
11.1 	Leave 	of 	absence 	for 	illness 	or 	injury 	will
be 	provided 	by 	the 	Board.
11.1.1 An 	employee 	who 	is 	employed 	five 	(5) 	days 	per
week 	for 	the 	full 	academic 	year 	shall 	be
entitled 	to 	ten 	(10) 	days 	leave 	of 	absence 	for
illness 	or 	injury 	per 	year. 	An 	employee 	who 	is
employed 	for 	fewer 	than 	five(5) 	days 	per 	week,
or 	for 	less 	than 	a 	full 	academic 	year, 	will
receive 	the 	proportional 	number 	of 	days 	of
leave.
Prior 	to 	the 	new 	negotiations, 	sick 	leave 	for 	summer
session 	was 	provided 	in 	section 	3.80 	D of 	the 	rules 	and
regulations 	of 	the 	District. 	That 	section 	read 	as 	follows:
Certificated 	employees 	shall 	be 	granted 	one
day 	of 	sick 	leave 	if 	employed 	for 	the 	full
summer 	session. 	This 	sick 	leave 	may 	be
accumulated 	along 	with 	other 	District 	sick
leave. 	Any 	sick 	leave 	granted 	or
accumulated 	through 	continued 	employment 	in
this 	District 	may 	be 	used 	for 	illness 	or
accident 	during 	Summer 	Session.
During 	a 	mediation 	session 	on 	February 	2, 	1983, 	the
District modified 	its 	summer 	session 	proposal 	by 	offering 	to
make 	article 	15: 	grievance 	procedure, 	applicable 	to 	summer
session 	employees. 	During 	that 	same 	mediation 	session, 	the
4

Charging Party 	dropped 	its 	demand 	that 	all 	articles 	be
applicable 	and 	agreed 	that 	only 	a 	limited 	number 	would 	be
applicable. 	One 	of 	those 	articles 	that AFT 	agreed 	would 	not
apply 	to 	summer 	session 	employees 	was 	article 	11: 	leaves.
Both 	the 	Charging 	Party's 	executive 	secretary 	and 	its 	chief
negotiator 	testified 	that 	they 	agreed 	to 	the 	District's
proposal 	that 	article 	11 	would 	not 	apply 	to 	summer 	session
employees, 	at 	least 	in 	part, 	because 	sick 	leave 	for 	those
employees 	was 	already 	provided 	in 	the 	board's 	rules 	and
regulations. 	According 	to 	the 	District, 	it 	was 	under 	the
impression 	that 	when 	the 	Charging Party 	agreed 	that 	article 	11
would 	not 	apply 	to 	summer 	session 	employees, 	it 	was 	in 	fact
agreeing 	that 	summer 	session 	employees 	were 	giving 	up 	all
rights 	to 	sick 	leave. 	Unfortunately, 	neither 	the 	Charging
Party's 	reasons 	for 	dropping 	its 	proposal 	that 	article 	11 	apply
to 	summer 	session 	employees, 	nor 	the 	District's 	understanding
of 	what 	that 	meant, 	was 	ever 	discussed 	among 	the 	two 	parties.
The 	parties 	eventually 	reached 	agreement 	on 	a 	contract 	on
March 	9, 	1982. 	The 	contract 	contained 	the 	following 	article
regarding 	summer 	session 	employees.
ARTICLE 	16: 	SUMMER SESSION EMPLOYMENT
16.1 The 	only 	articles 	of 	this 	Agreement 	which 	apply
to 	summer 	session 	employees 	are 	the 	following:
Article 	1: 	Recognition
Article 	2: 	Organizational 	Rights
Article 	4: 	Management 	Rights
Article 	5: 	Peaceful 	Settlement 	of 	Differences
5

Article 	14: 	Safety Conditions 	of 	Employment
Article 	15: 	Grievance 	Procedure
16.2 	Compensation 	for 	summer 	session 	is 	provided 	for
in 	Section 	8.9.
In 	reaching 	this 	agreement, 	there 	was 	never 	any 	discussion
regarding 	sick 	leave 	for 	summer 	session 	employees.
Furthermore, 	the 	parties 	stipulated 	that 	during 	the
negotiations 	no 	specific 	rules 	or 	regulations 	of 	the 	District,
including 	rule 	3.80 	D 	(providing 	sick 	leave 	for 	summer 	session
employees) 	was 	ever 	discussed.
The 	final 	contract 	also 	contained 	the 	following 	section
under 	the 	Miscellaneous 	article:
18.2 This Agreement 	shall 	supersede 	any 	rules,
regulations 	or 	practices 	of 	the 	Board 	which
shall 	be 	contrary 	to 	or 	inconsistent 	with
its 	terms. 	The 	provisions 	of 	the 	Agreement
shall 	be 	incorporated 	into 	and 	be 	considered
part 	of 	the 	established 	policies 	of 	the
Board.
This 	section 	was 	carried 	forward 	from 	the 	previous 	CTA-District
contract. 	There 	was 	testimony 	from 	members 	of 	both 	bargaining
teams 	that 	there 	was 	never 	any 	discussion 	in 	negotiations 	about
the 	effect 	this 	section 	would 	have 	on 	preexisting 	rules 	of 	the
District.
Back 	in 	early 	1980, 	after 	concluding 	negotiations 	with 	CTA
on 	the 	79-82 	CTA-District 	contract, 	the 	District 	purged 	its
rules 	of 	all 	items 	which 	were 	covered 	in 	the 	contract. 	The
District 	then 	inserted 	the 	reference 	section 	into 	its 	rules
which 	indicated 	that 	policy 	regarding 	such 	matters 	could 	be
6

found 	in 	the 	agreement 	between 	the 	District 	and 	the 	exclusive
representative. 	That 	reference 	section 	in 	the 	rules 	was 	never
discussed 	during 	the AFT-District 	negotiations.
On 	April 	11, 	1983, 	the 	Charging 	Party 	received 	the 	agenda
for 	the 	board 	meeting 	scheduled 	for 	April 	13. 	Included 	on 	the
agenda 	was 	the 	deletion 	of 	section 	3.80 	D of 	the 	rules 	and
regulations. 	On April 	12, 	1983, 	the AFT 	executive 	secretary
requested 	that 	the 	District 	delete 	the 	item 	from 	the 	agenda
because 	it 	was 	a 	negotiable 	item. 	The 	Charging 	Party 	followed
that 	request 	with 	a 	letter 	from AFT's 	chief 	negotiator, 	which
was 	hand-delivered 	to 	the 	District 	that 	same 	day. 	After
additional 	phone 	calls 	from AFT 	representatives 	to 	the
chancellor 	on 	April 	13, 	the 	chancellor 	agreed 	to 	remove 	the
item 	from 	the 	agenda 	of 	the 	board 	meeting 	that 	night.
On 	May 	26, 	1983, 	the 	parties 	met 	to 	discuss 	whether 	the
summer 	session 	sick 	leave 	issue 	had, 	in 	fact, 	been 	negotiated
and 	agreed 	upon. 	At 	the 	meeting, 	the 	District 	argued 	that 	the
issue 	had 	already 	been 	negotiated 	and 	that 	further 	negotiations
were 	unnecessary. 	The 	Charging 	Party 	took 	the 	position 	that
the 	issue 	had 	never 	even 	been 	mentioned, 	much 	less 	negotiated.
No 	substantive 	negotiations 	regarding 	the 	sick 	leave 	issue
itself 	took 	place 	at 	that 	meeting, 	and 	the 	parties 	were 	unable
to 	agree 	on 	whether 	sick 	leave 	for 	summer 	session 	employees
had 	been 	covered 	during 	negotiations.
The 	Charging Party 	heard 	nothing 	more 	about 	the 	issue 	until
7

it 	received 	the 	agenda 	for 	the 	June 	15, 	1983, 	board 	meeting.
Deletion 	of 	section 	3.80 	D of 	the 	rules 	and 	regulations 	was
once 	again 	on 	the 	agenda. 	The 	board 	acted 	to 	delete 	the
section 	despite 	a 	request 	from 	the AFT 	that 	it 	not 	do 	so.
The 	parties 	stipulated 	that 	no 	certificated 	employees
employed 	for 	the 	summer 	session 	1983 	received 	a 	day 	of 	sick
leave. 	Additionally, 	there 	was 	testimony 	that 	at 	least 	one
summer 	session 	instructor, 	and 	possibly 	more, 	had 	pay 	reduced
because 	of 	the 	absence 	of 	any 	sick 	leave 	allowance.
ARGUMENTS 	OF THE 	PARTIES
The 	District 	argues 	that 	by 	specifically 	excluding 	the
leaves 	article 	from 	its 	initial 	proposal, 	it 	was 	stating 	that
it 	did 	not 	want 	summer 	session 	employees 	to 	receive 	sick
leave. 	Additionally, 	by 	agreeing 	that 	the 	leave 	article 	would
not 	apply, 	the 	Charging 	Party 	agreed 	that 	summer 	session
employees 	would 	not 	receive 	sick 	leave 	and 	thereby 	waived 	its
right 	to 	bargain 	a 	different 	provision.
The 	District 	also 	argues 	that 	once 	the 	parties 	agreed 	that
article 	11 	would 	not 	apply 	to 	summer 	session 	employees, 	it 	was
inconsistent 	with 	the 	board's 	rules 	and 	regulations 	providing
for 	sick 	leave 	for 	those 	employees. 	Thus, 	according 	to
article 	18.2 	of 	the 	contract, 	the 	rules 	and 	regulations 	would
be 	superseded 	by 	the 	contract 	provision 	and 	summer 	session
employees 	could 	properly 	be 	denied 	sick 	leave.
The 	Charging Party 	argues 	that 	it 	did 	not 	waive 	its 	right
8

regarding 	sick 	leave 	because 	there 	was 	never 	any 	intentional
relinquishment 	of 	those 	rights 	expressed 	in 	clear 	and
unmistakable 	terms. 	Further, 	that 	article 	18.2 	of 	the 	contract
does 	not 	require 	that 	the 	rules 	and 	regulations 	be 	superseded
by 	the 	contract, 	because 	there 	is 	no 	conflict 	or 	inconsistency
between 	the 	contract 	and 	the 	rules 	and 	regulations.
ISSUES
1. 	By 	dropping 	its 	proposal 	that 	article 	11 	apply 	to
summer 	session 	employees, 	did 	the 	Charging Party 	agree 	that
those 	employees 	lost 	sick 	leave 	rights, 	thereby 	waiving 	its
right 	to 	bargain 	over 	the 	issue?
2. 	Was 	rule 	3.80 	D inconsistent 	or 	contrary 	to 	article 	11
and 	therefore 	properly 	deleted 	by 	the 	District?
DISCUSSION AND 	CONCLUSIONS 	OF 	LAW
As 	to 	the 	first 	issue, 	the 	law 	is 	clear 	and 	well-settled.
The 	Charging Party made 	a 	proposal 	to 	codify 	existing 	sick
leave 	rights 	of 	summer 	school 	employees 	into 	the 	contract.
When 	it 	dropped 	its 	proposal 	it 	cannot 	be 	seen 	as 	an 	agreement
that 	sick 	leave 	rights 	were 	given 	up. 	PERB 	has 	dealt 	with 	that
precise 	issue 	in Los 	Angeles 	Community 	College 	District
(10/18/82) 	PERB 	Decision No. 	252.
[U]nion 	conduct 	in 	negotiations 	will 	make
out 	a 	waiver 	only 	if 	a 	subject 	was 	"fully
discussed" 	or 	"consciously 	yielded" 	its
interest 	in 	the 	matter. 	Press 	Co. 	(1958)
121 NLRB 	976 •••• 	The 	fact 	that 	a 	union
drops 	a 	contract 	proposal 	during 	the 	course
of 	negotiations 	does 	not 	mean 	it 	has 	waived
9

its 	bargaining 	rights 	and 	ceded 	the 	matter
to 	management 	prerogative. 	Beacon Piece
Dyeing 	and 	Finishin~ 	Co. 	(1958) 	121 NLRB 	953.
Where, 	during 	negotiations, 	a 	union 	attempts
to 	improve 	upon 	or 	••• 	to 	codify 	the 	status
quo 	into 	the 	contract 	and 	fails 	to 	do 	so, 	the
status 	quo 	remains 	as 	it 	was 	before 	the
proposal 	was 	offered. 	The 	union 	has 	lost
its 	opportunity 	to 	codify 	the 	matter, 	it 	has
failed 	to 	make 	the 	matter 	subject 	to 	the
contract's 	enforcement 	procedures 	or 	to 	gain
any 	other 	benefit 	that 	might 	have 	accrued 	to
it 	if 	its 	effort 	had 	succeeded •••• 	But 	the
union 	has 	not 	relinquished 	its 	statutory
rights 	to 	reject 	a 	management 	attempt 	to 	uni-
laterally 	change 	the 	status 	quo 	without 	first
negotiating 	with 	the 	union. 	In 	a 	sentence,
by 	dropping 	its 	demand, 	the 	union 	loses 	what
it 	sought 	to 	gain, 	but 	it 	does 	not 	thereby
grant 	management 	the 	right 	to 	subsequently
institute 	any 	unilateral 	change 	it 	chooses.
A contrary 	rule 	would 	both 	discourage 	a
union 	from 	making 	proposals 	and 	management
from 	agreeing 	to 	any 	proposals 	made,
seriously 	impeding 	the 	collective 	bargaining
process. 	(Beacon 	Piece, 	supra.) 	(Los 	Angeles
Community 	College 	District, 	supra, 	at
pp. 	13-14.)
In 	this 	case 	there 	was 	no 	full 	discussion 	or 	intentional
relinquishment 	of 	the 	sick 	leave 	rights. 	Quite 	the 	contrary 	is
true. 	Loss 	of 	sick 	leave 	rights 	was 	never 	raised 	by 	either
party, 	nor 	was 	the 	effect 	articles 	11 	or 	16 	would 	have 	on
rule 	3.80 	Dor 	the 	impact 	that 	article 	18.2 	would 	have 	on 	the
issue. 	Thus, 	it 	cannot 	be 	found 	that 	the 	District 	acquired 	the
right 	to 	delete 	rule 	3.80 	D through 	the 	Charging Party's 	waiver
of 	the 	issue 	at 	the 	bargaining 	table.
As 	to 	the 	District's 	second 	argument 	that 	articles 	16 	and
18.2 	of 	the 	contract 	constitute 	a 	contractual 	waiver 	of 	the
10

Charging 	Party's 	right 	to 	negotiate 	about 	changes 	in 	the 	sick
leave 	policy, 	the 	Charging Party 	must 	again 	prevail.
Contract 	terms 	will 	not 	justify 	a 	unilateral
management 	act 	on 	a 	mandatory 	subject 	of
bargaining 	unless 	the 	contract 	expressly 	or
by 	necessary 	implication 	confers 	such 	right.
(New York 	Mirror 	(1965) 	151 NLRB 	834
[58 	LRRM 	1465, 	1467].) 	(Los 	Angeles
Community 	College 	District, 	supra, 	at 	p. 	10.)
In 	this 	case 	the 	District 	argues 	that 	because 	article 	16
did 	not 	make 	the 	leaves 	article 	applicable 	to 	summer 	session
employees, 	the 	leaves 	article 	is 	contrary 	to 	rule 	3.80 	D.
Therefore, 	according 	to 	the 	District, 	it 	was 	proper 	for 	it 	to
delete 	rule 	3.80 	D.
However, 	merely 	because 	the 	leaves 	article 	does 	not 	apply
to 	summer 	school 	employees 	does 	not 	make 	it 	inconsistent 	with
rule 	3.80 	D. 	The 	District 	confuses 	silence 	on 	the 	issue 	with
capitulation. 	The 	District's 	position 	is 	that 	article 	16
specifically 	excludes 	sick 	leave 	for 	summer 	session 	employees,
when, 	in 	fact, 	all 	it 	says 	is 	that 	the 	leaves 	article 	will 	not
apply 	to 	summer 	session 	employees. 	By 	its 	very 	nature, 	if 	the
leaves 	article 	is 	not 	even 	applicable 	to 	summer 	session
employees, 	it 	can 	hardly 	be 	considered 	inconsistent 	with
rule 	3.80 	D.
Thus, 	it 	cannot 	be 	said 	that 	articles 	16 	and 	18.2
constitute 	clear 	and 	unmistakable 	contract 	language
demonstrating 	an 	intentional 	relinquishment 	of 	the 	right 	to
negotiate 	over 	the 	changes 	to 	the 	sick 	leave 	policy 	for 	summer
11

session 	employees. 	San 	Francisco 	Community 	College 	District
(10/12/78) 	PERB 	Decision No. 	105; 	Oakland 	Unified 	School
District 	(8/31/82) 	PERB 	Decision No. 	236.
The 	District's 	reliance 	on 	Grossmont 	Union High 	School
District 	(5/26/83) 	PERB 	Decision No. 	313 	is 	misplaced. 	In
Grossmont, 	the 	PERB 	held 	that 	since 	a 	contract 	specifically
identified 	certain 	teaching 	positions 	that 	were 	excluded 	from
the 	"normal" 	work 	schedule, 	the 	contract 	was 	clear 	and
unambiguous 	that 	all 	other 	employees 	were 	subject 	to 	the
schedule, 	regardless 	of 	past 	practice. 	In 	that 	case, 	the 	issue
being 	litigated 	was 	whether 	the 	union 	waived 	its 	right 	to
negotiate 	over 	changes 	in 	the 	work 	schedule 	of 	a 	class 	of
employees 	specifically 	covered 	by 	the 	contract 	language, 	not
the 	work 	schedule 	of 	employees 	excluded 	from 	coverage.
Grossmont 	does 	not 	offer 	justification 	for 	a 	district 	to
unilaterally 	change 	past 	practice 	for 	those 	employees 	excluded
from 	coverage 	by 	the 	contract, 	as 	is 	the 	issue 	in 	this 	case.
The 	District 	also 	argues 	that 	it 	acted 	consistently 	with 	a
past 	practice 	of 	deleting 	provisions 	from 	the 	board's 	rules 	and
regulations 	once 	they 	were 	included 	in 	the 	collective
bargaining 	agreement. 	This 	argument 	is 	not 	persuasive. 	The
most 	obvious 	reason 	is 	that 	sick 	leave 	for 	summer 	session
employees 	was 	not, 	in 	fact, 	included 	in 	the 	contract. 	The
section 	dealing 	with 	sick 	leave 	did 	not 	even 	apply 	to 	summer
session 	employees. 	Although 	the 	District 	assumed 	that 	the
12

Charging Party 	was 	by 	its 	action 	agreeing 	to 	give 	up 	sick 	leave
coverage 	for 	summer 	session 	employees, 	that 	assumption 	was
never 	discussed 	and 	was 	not, 	in 	fact, 	accurate.
An 	employer's 	unilateral 	change 	of 	a 	matter 	within 	the
scope 	of 	representation,6 	without 	affording 	the 	exclusive
representative 	notice 	of 	and 	an 	opportunity 	to 	negotiate 	over
the 	matter, 	constitutes 	a~ 	se 	refusal 	to 	negotiate 	in 	good
faith 	in 	violation 	of 	section 	3543.5(c). 	Pajaro Valley 	Unified
School 	District 	(5/22/78) 	PERB 	Decision No. 	51; 	San Mateo
County 	Community College 	District 	(6/8/79) 	PERB 	Decision
No. 	94; 	NLRB 	v. 	Katz 	(1962) 	369 	u.s. 	736 	[59 	LRRM 	2177].
In 	San 	Francisco 	Community 	College 	District, 	supra, 	the
Board 	determined 	the 	employer's 	violation 	of 	section 	3543.5(c)
was 	also 	a 	violation 	of 	section 	3543.5(b) 	because 	such 	conduct
denied 	to 	the 	exclusive 	representative 	its 	right 	to 	represent
unit 	members 	in 	their 	employment 	relations 	with 	the 	employer.
PERB 	further 	found 	that 	section 	3543.5(a) 	rights 	were 	violated
by 	section 	3543.5(c) 	violations, 	because 	the 	failure 	to
negotiate 	with 	the 	exclusive 	representative 	necessarily
interfered 	with 	the 	employees 	in 	the 	exercise 	of 	protected
rights 	to 	representation.
6section 	3543.2 	specifically 	enumerates 	leave 	policy 	as 	a
matter 	within 	the 	scope 	of 	representation.
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REMEDY
Section 	3541.S(c) 	empowers 	PERB,
••• 	to 	issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	to 	cease 	and
desist 	from 	the 	unfair 	practice 	and 	to 	take
such 	affirmative 	action, 	including 	but 	not
limited 	to 	the 	reinstatement 	of 	employees
with 	or 	without 	back 	pay, 	as 	will 	effectuate
the 	policies 	of 	this 	chapter.
The 	remedy 	for 	violations 	such 	as 	those 	found 	in 	this 	case
should 	be 	designed 	to 	restore 	so 	far 	as 	possible 	the 	status 	quo
ante. 	Santa Clara 	Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104. 	It 	is 	therefore 	appropriate 	that 	the
District 	be 	ordered 	to 	reinstate 	section 	3.80 	D of 	the
District's 	rules 	and 	regulations. 	The 	District 	should 	also
make 	whole 	those 	employees 	detrimentally 	affected 	by 	the
deletion 	of 	rule 	3.80 D. 	Thus, 	all 	bargaining 	unit 	summer
session 	employees 	who 	were 	denied 	sick 	leave 	should 	be 	credited
for 	that 	loss. 	Additionally, 	any 	bargaining 	unit 	summer
session 	employees 	whose 	pay 	was 	reduced 	due 	to 	a 	lack 	of 	sick
leave 	availability 	should 	be 	reimbursed 	to 	the 	extent
applicable, 	had 	rule 	3.80Dnot 	been 	deleted.
The 	exact 	amount 	of 	back 	pay 	for 	each 	affected 	faculty
member 	need 	not 	be 	determined 	at 	this 	stage 	of 	the 	proceeding,
but may 	be 	left 	to 	the 	compliance 	procedure 	if 	the 	parties 	are
unable 	to 	come 	to 	an 	agreement 	based 	on 	a 	general 	back-pay
14

order. 	Santa Monica 	Community 	College 	District 	(9/21/79) 	PERB
Decision No. 	103; 	Alum Rock 	Union 	School 	District 	(9/22/81)
PERB 	Decision No. 	Ad-115.
When 	the 	restoration 	of 	the 	status 	quo 	requires 	a 	payment
of 	money, 	the PERB 	has 	included 	interest 	at 	the 	rate 	of 	seven
(7) 	percent. 	San 	Mateo 	Community 	College 	District, 	supra.
It 	also 	is 	appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it 	will 	comply 	with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a 	notice
will 	provide 	employees 	with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	this 	activity 	and 	to 	restore 	the 	status 	quo 	ante. 	It
effectuates 	the 	purposes 	of 	the EERA 	that 	employees 	be 	informed
of 	the 	resolution 	of 	the 	controversy 	and 	will 	announce 	the
District's 	's 	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].
Attorneys 	fees 	requested 	by 	the 	Charging 	Party 	are 	denied.
The 	District 	has 	not 	engaged 	in 	repeated 	and 	flagrant
violations 	of 	the 	law. 	The 	District's 	defenses 	against 	the
charges 	were 	not 	frivolous 	and 	unwarranted, 	but 	were 	rather 	at
15

least 	debatable. 	King 	City 	Union 	High 	School 	District 	(3/3/82)
PERB 	Decision No. 	197. 	See 	also 	D & H Manufacturing 	Co. 	(1978)
239 	NLRB 	51 	[99 	LRRM 	1624] 	and 	Tydee 	Products 	(1972)
194 	NLRB 	1234 	[79 	LRRM 	1175].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	found 	that 	the
San 	Mateo 	County Community 	College 	District 	violated
subsections 	3543.S(a), 	(b) 	and 	(c) 	of 	the 	Educational
Employment 	Relations Act. 	Pursuant 	to 	subsection 	3541.S(c) 	of
the 	Government 	Code, 	it 	is 	hereby 	ordered 	that 	the 	District 	and
its 	representatives 	shall:
1. 	CEASE 	AND DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	the 	San 	Mateo 	Community 	College 	Federation 	of
Teachers, 	AFT 	Local 	1493, 	AFL-CIO 	as 	the 	exclusive
representative 	of 	its 	employees 	by 	making 	unilateral 	reductions
in 	the 	sick 	leave 	policy 	for 	summer 	session 	employees.
(b) 	By 	the 	same 	conduct, 	denying 	to 	the 	San Mateo
Community College Federation 	of Teachers, 	AFT 	Local 	1493,
AFL-CIO 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	represent 	its 	members.
(c) 	By 	the 	same 	conduct 	interfering 	with 	employees 	in
the 	exercise 	of 	rights 	guaranteed 	by 	the 	Educational Employment
16

Relations 	Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Reinstate 	section 	3.80 	D of 	the 	District's 	rules
and 	regulations.
(b) 	Credit 	each 	bargaining 	unit 	summer 	session
employee 	with 	the 	sick 	leave 	they 	would 	have 	accumulated 	had 	it
not 	been 	for 	the 	District's 	unilateral 	actions.
(c) 	Make 	whole 	any 	employee 	for 	any 	loss 	of 	pay 	due
to 	the 	deletion 	of 	rule 	3.80 	D, 	including 	interest 	at 	the 	rate
of 	seven 	(7) 	percent 	per 	annum.
(d) 	Within 	ten 	(10) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
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.
(e) 	Within 	twenty 	(20) 	workdays 	from 	service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
San 	Francisco Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	of 	the 	actions 	taken 	to 	comply 	with 	this
order. 	Continue 	to 	report 	in 	writing 	to 	the 	regional 	director
17

thereafter 	as 	directed. 	All 	reports 	to 	the 	regional 	director
shall 	be 	concurrently 	served 	on 	the 	Charging Party 	herein.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on ____J_u_n_e_1_4~,..._1_9_8_4____ , 	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, 	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 ___J_u_n_e_1_4~,._1_9_8_4_____ , 	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: 	May 	25, 	1984 	~~1,vJ~	P
j'AMES 	W. 	TAMM
Administrative 	Law Judge
18