Oakland Unified School District (PERB 0540E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 257, 	AFL-CIO,
Charging 	Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-472
PERB 	Decision No. 	540
December 	12, 	1985
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Appearances; 	Norback & 	DuRard by Joseph 	R. 	Colton 	for American
Federation of State, 	County and Municipal 	Employees, 	Local 	257,
AFL-CIO; 	Breon, 	Galgani, 	Godino & O'Donnell by Richard V. 	Godino
for 	Oakland 	Unified 	School 	District.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by the 	Oakland 	Unified School 	District 	(District) 	to a hearing
officer's 	proposed 	decision. 	The 	District 	excepts 	to 	the hearing
officer's 	finding that it violated section 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment 	Relations 	Act 	(EERA or A c t ) 1 by
failing 	to 	fulfill 	its 	obligation 	to negotiate 	in good 	faith
with 	the American 	Federation of 	State, 	County and Municipal
Employees, Local 257, AFL-CIO (AFSCME).
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
All 	statutory references 	are 	to 	the 	Government 	Code 	unless
otherwise 	specified.
Section 3543.5 provides, 	in pertinent part:
(
e

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.
The 	Board has 	reviewed 	the proposed 	decision 	in 	light 	of 	the
parties' 	exceptions 	and the entire record 	in this 	matter. 	For
the 	reasons 	discussed herein, 	we affirm 	in part 	and reverse 	in
part 	the hearing 	officer's 	proposed 	decision.
FACTS
Beginning in November 1979, 	W. 	B. 	Lovell, 	the District's
business 	manager, 	conducted a series 	of workshops 	with
representatives 	of 	various 	employee 	organizations 	representing
bargaining units 	in the District, 	including AFSCME, 	on the need
to make budgetary cuts. 	The 	final 	staff 	recommendation was 	that
the 	District 	reduce 	expenses 	by 10 percent 	in order 	to overcome
the anticipated deficit of $10 million. 	At 	that 	time, 	salary
and benefits 	constituted 86.1 percent 	of 	the budget.
On April 	1, 	1980, 	District representatives held a
preliminary meeting with AFSCME 	to discuss 	budgetary problems 	in
more detail 	and 	to alert 	it 	to possible cuts 	in personnel.
Then, 	on April 	9, 	1980, 	Lovell again met with representatives of
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all 	bargaining 	units 	in order 	to 	show 	them 	the 	slide 	show he
planned 	to present 	to 	the board 	of 	education 	that 	night. 	The
presentation 	included 	recommendations 	that 	(1) 	40 	custodians 	be
laid off, 	and 	(2) 	150 custodial positions 	be reduced 	from a
12-month 	to a 	10-month work 	year. 	The 	specific number 	of
employees 	targeted 	for 	the 	layoffs 	and work-year 	reductions 	was
determined by criteria used 	in Army/Navy studies, 	which
calculated 	the 	needed person-hours 	based 	on 	the 	number 	of 	square
feet 	to be 	covered.
During the course of this meeting, 	Nadra Floyd, 	AFSCME's
business 	agent, 	told Lovell 	that 	the 	work year was 	negotiable
and that, 	therefore, 	the District 	could not make the proposed
changes 	unilaterally. 	Lovell 	responded, 	"We do not 	feel 	that
way. "
That 	night, 	Lovell made his presentation 	to the board of
education. 	Floyd was 	present 	and made 	the 	same 	remarks 	to 	the
board of 	education 	that 	she had made 	to 	Lovell.
On April 14, 	Floyd wrote to Dr. 	Ruth Love, 	District
superintendent, 	voicing AFSCME's 	concerns 	and requesting 	to
meet. 	The 	letter 	also requested 	specific 	information on who
would be 	affected by the 	work-force 	reductions, 	the 	effect 	on
employee benefits, 	the cost 	to the 	District of 	the 	tax-deferred
annuity, 	and other pertinent 	information. 	Lovell, 	rather 	than
Love, 	responded on April 	29. 	He 	indicated that 	information was
being prepared 	for 	the board 	of 	education 	and 	would be 	made
available 	to AFSCME only when 	it was 	made public. 	He also
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indicated he would 	call 	Floyd 	in a 	few days 	to set 	up a 	meeting
with AFSCME.
On April 	30, 	Superintendent 	Love 	sent 	the board of 	education
a document 	reflecting 	that, 	in an 	executive 	session held 	on
April 	23, 	1980, 	the board had approved the recommended layoffs
and work-year 	reductions. 	The purpose of 	this 	document was 	(1)
to publicly announce the board's 	action, 	and 	(2) 	to request
board approval 	to 	freeze 	all hiring. 	The document 	noted 	that,
following 	the executive session on April 	23, 	managers 	and
supervisors 	were 	instructed 	to 	advise 	each person whose position
was 	affected 	by 	the 	cuts 	that 	the 	employee 	would be 	laid 	off 	or
the 	employee's 	work 	year 	would be 	reduced 	effective June 	30.
When 	the 	instant 	dispute arose, 	Ruth McClanahan had 	just
assumed 	the position as 	director 	of 	staff 	relations/chief
negotiator 	for 	the District. 	During the summer of 	1980, 	she was
responsible 	for 	representing 	the 	District 	in 	negotiations 	with
12 	units, 	all 	of 	which were 	involved 	in negotiating new or
successor 	contracts.
McClanahan 	learned of 	the 	decision 	to 	reduce 	certain
positions 	from a 	12-month work year 	to a 	10-month work 	year
early 	in May. 	She began 	to 	formulate 	the 	District's 	position 	in
discussions with several people, 	including Lovell, 	John Wimberly,
director 	of building operations, 	and Jim Rodrigues, 	assistant 	to
the director 	of building 	operations. 	McClanahan 	telephoned
Floyd 	and 	said 	they would 	need 	to sit 	down 	and 	negotiate 	the
effects 	of 	the 	layoff 	and 	the 	reduction of hours.
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The parties 	first met on May 7, 	1980. 	The District
announced 	that 	the 	work year 	for 	150 positions 	was 	being 	reduced
from 	12 	to 	10 months 	and 	that 	40 positions 	were being
eliminated. 	Its position 	is 	reflected 	in a 	letter 	dated May 	7
to AFSCME:
The 	District 	maintains 	the position 	that 	it
is 	not 	required 	to bargain 	the 	decision 	to
layoff, 	but acknowledges 	a duty to bargain a
reduction 	in 	work 	year/hours 	and 	other
"effects 	of 	layoff."
Notwithstanding 	the District's 	announced position, 	it
suggested 	four 	alternatives 	to 	the proposed 	layoffs 	and 	reduction
in work year. 	They were:
1. 	Eliminate 40 more positions 	in 	lieu of 	reduced work year.
2. 	Give no salary increases 	for 	1980-81.
3. 	Give up tax-sheltered annuities.
4. 	Take a pay cut.
In order 	to evaluate 	the 	District's 	proposed 	alternatives,
AFSCME said 	it 	needed more 	information. 	The 	union 	requested
financial 	information on 	the 	cost 	to the 	District 	of 	the
tax-sheltered 	annuity and 	figures 	on 	salary 	increases 	for 	the
unit. 	It 	also sought 	information regarding use of vacation and
sick 	leave 	during 	the 	summer. 	The 	District 	said 	it 	needed 	to
save 	funds 	to negotiate 	1980-81 	salary 	increases 	for 	employees,
and AFSCME said 	it 	needed 	to know the 	level 	of 	salary or
compensation 	increase 	the 	District had 	in mind 	for 	1980-81 	in
order 	to address 	the 	issue. 	AFSCME requested a 	list 	of
employees 	scheduled 	for 	layoff 	and 	the 	site 	where 	each worked.
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The 	District 	stated 	that 	it 	did 	not 	presently have 	that
information.
AFSCME also made proposals 	concerning ways 	to save 	funds
other 	than by reducing 	the 	work year, 	i.e., 	by selling property
or making non-personnel 	cuts. 	In addition, 	Floyd made proposals
that 	she 	felt 	addressed 	the 	impact 	of 	layoff. 	Her proposals
referred 	to 	the 	40 	abolished positions 	and 	the 	effect 	such
work-force 	reductions 	would have 	on 	those 	school 	sites 	left 	with
one custodian. 	Also, 	to limit 	the number of active employees
laid 	off, 	AFSCME proposed 	that 	the 	reduction be 	applied 	to
persons 	on disability 	leave.
On May 7, 	1980, 	the same day that 	the parties began
negotiations, 	the board of 	education took official 	action 	to 	lay
off and 	to reduce 	the work year of 	custodial 	employees, 	using
inverse seniority. 	It 	formally adopted Resolution 	#28992, 	which
stated:
NOW, 	THEREFORE, 	BE IT RESOLVED that 	the
Board 	thereby directs 	the 	Superintendent 	to
abolish or 	reduce 	the work year, 	no later
than June 30, 	1980, 	of certain classified
positions 	as 	indicated 	on Attachments 	A and
B, 	respectively, 	pursuant 	to Education Code
section 	45117.2
According 	to 	the 	District's 	witness, 	the 	District was 	ready to
give 	notice 	and 	could 	not 	delay the personnel 	reductions
2Attachment 	A eliminated 	40 	custodial 	positions.
Attachment 	B 	reduced 	the 	work year 	for 	182 	custodial positions.
Apparently, 	32 reduced-year positions 	were vacant.
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without 	jeopardizing 	compliance 	with 	the 	30-day notice requirement
in the Education Code.3 3
On May 12, 	the parties 	again met, 	and the District 	responded
to some of AFSCME's 	information requests. 	AFSCME was provided
with 	the 	list 	of 	employees 	scheduled 	for 	layoff 	and 	the 	site
where 	each 	employee 	worked. 	The 	District 	also provided 	the 	cost
of 	salary 	increases 	for all maintenance 	employees, 	but not 	for
custodians 	only. 	The 	District 	informed Floyd that, 	since 	the
possible 	savings 	from 	the 	tax-sheltered 	annuity was 	only
$391,000, 	elimination of 	that benefit was not a viable
alternative. 	Nevertheless, 	Floyd was again informed that, 	if
the 	union 	could 	come up with an 	alternative, 	McClanahan would
take 	it 	to the board of education. 	Absent 	such an alternative,
however, 	the board's 	action 	to 	lay off 	and 	reduce 	the 	work year
would 	stand.
On May 27, 	while negotiations 	were underway, 	Love sent
notices 	of 	reduced 	work 	year 	to 	the 	affected 	employees,
characterizing 	the 	action 	as 	an 	involuntary reduction 	in hours
in lieu of 	layoff.
At 	the May 30 negotiating session, 	the parties 	again
discussed 	cost-saving 	alternatives 	such as 	school 	closures, 	the
tax-sheltered annuity, 	and sale of property. 	The 	District 	said
these 	alternatives 	had 	already been 	considered 	and 	rejected 	by
the board of 	education, 	and 	the board was 	firm 	in 	its position
3Education 	Code 	section 	45117 provides 	that:
. 	. 	. 	affected employees shall be given
notice 	of 	layoff not 	less 	than 	30 days prior
to the 	effective date of 	the 	layoff.
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that 	it would not 	reconsider 	the 	alternatives. 	The 	District
stated that, 	since notices had been sent 	to the affected
employees, 	it was 	too late to implement any alternatives.
The 	District 	also announced 	that 	custodians 	working 	during
the 	summer 	would not 	get 	the 	usual 	July or August 	vacation.
Instead, 	all 	vacations 	would be delayed 	until 	after 	summer.
When the parties 	next met on June 4, 	1980, 	the District
provided AFSCME with a draft 	memorandum which, 	as 	the hearing
officer 	noted, 	conveyed a 	"this 	is 	what we are going to do"
impression and presented a 	"take 	it 	or 	leave 	it attitude." 	The
draft 	memorandum set 	forth a 	job description 	for head 	custodians
which 	included, 	among other duties, 	"perform regular duties 	as
necessary." 	Since 	there 	would be only a head 	custodian present
at 	each site 	from July 1 	to August 	27, 	the head 	custodian would
be 	required 	to perform all 	the 	regular 	custodial 	duties
previously performed 	by 	other 	custodians.
At 	the June 4 negotiating 	session, 	the District's position
was 	that 	those 	items 	discussed 	in the 	draft memorandum were
non-negotiable. 	The 	District's 	position was 	also 	that 	employees
who returned 	to work 	during 	summer 	school 	were 	outside 	the 	unit,
that 	the 	contract permitted minimal 	staffing, 	that 	the 	District
could prohibit 	vacations 	in July and August, 	and 	that 	substitutes
were 	outside 	the 	unit.
AFSCME 	raised 	concerns 	over 	nearly 	every 	item mentioned 	in
the memorandum, 	including vacations, 	sick leave, 	pay for
substitutes, 	and summer 	school 	and 	temporary employment. 	In 	the
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face of AFSCME's 	proposals 	concerning 	summer 	school 	assignments,
the 	District 	maintained 	that 	summer 	school 	was 	a 	temporary
assignment 	since 	the 	employees 	would be 	on 	layoff 	status 	when
they returned 	to work during 	the 	summer. 	The 	District 	adhered
to 	its 	position 	that 	it had 	the 	right 	to maintain staffing
levels 	in accordance with the contract and, 	therefore, 	had 	the
right 	to 	unilaterally decide 	to prohibit 	vacations 	during 	the
summer.
AFSCME voiced 	strong 	objections 	to 	the head 	custodian 	job
description and 	to 	the 	school 	principal's 	authority to 	select
custodians 	for all 	summer 	school positions.
In the 	end, 	the parties 	disagreed over 	the scope of
negotiations, 	and AFSCME walked out of 	the June 4 meeting,
stating 	that 	it 	was 	declaring 	impasse.
The 	following day, 	AFSCME wrote 	to PERB declaring 	impasse.
It 	filed 	the 	instant 	charge and a 	request 	for 	injunctive 	relief
with PERB on June 	6. 	PERB denied 	the 	request 	for 	injunctive
relief.4 As 	to AFSCME's 	impasse declaration, 	the Board
declined 	to 	appoint 	a 	mediator 	because 	the parties 	were 	not
engaged 	in contract negotiations but, 	rather, 	mid-contract
negotiations 	over 	the 	layoffs 	and 	reductions. 	The 	Board 	felt
that 	the 	matter 	was 	best 	resolved by the 	unfair practice 	charge
that had been 	filed.
4 Oakland 	Unified 	School 	District 	(1980) 	PERB Order No.
IR-16.
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In a June 	6 	memorandum 	from Lovell 	to all 	school principals,
the 	District 	reiterated 	its 	earlier position. 	Lovell 	advised
the principals 	that:
1. 	Except 	for head custodians, 	all 	custodians 	were being
changed 	to 	10-month 	employees.
2. 	Except 	for true hardship, 	no custodial vacations 	would
be granted between June 15 and August 27, 1980.53. The District planned to utilize cert
vacations, 	sick leave, 	summer school 	assignments 	and watch
duties, 	including:
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a. 	Substitutes 	for 	vacation and 	sick 	leave 	(for 	leaves 	of
five days 	or more) 	to be obtained 	from classified
personnel 	records 	on 	the basis 	of 	seniority and persons
offered 	the 	job must 	accept 	or 	deny the 	offer 	on 	the 	day
it 	is made. 	Substitutes 	to be paid at 	the 	rate of pay
received 	during 	the 	regular 	work 	year 	unless 	over 	five
days, 	then 	to be paid at 	rate of position 	filled
(Education Code section 45110).
b. 	Watch duty and civic 	center 	assignments 	not 	to 	exceed 	35
hours per 	month.
c. 	Summer 	school positions 	to be 	treated like 	all 	other
positions 	— 	post, 	principal 	selects 	— 	pay 	on 	an 	hourly
basis 	contained 	in 	the posting 	(an amount 	less 	than 	that
received by custodians 	during 	the 	regular work year).
5This 	is 	a 	longer period 	than was 	contained 	in 	the June 	4
draft 	memorandum. 	According to 	that document, 	the 	District
only prohibited 	vacations 	from July 1 	to August 	27.
10

When the parties 	again met 	on June 	11, 	Floyd gave McClanahan
a 	letter 	which 	delineated 	those 	areas 	in 	which 	the 	District
would have 	to make 	significant 	movement 	before 	AFSCME would
withdraw 	its 	petition 	from PERB:
1. 	As 	a show of good 	faith negotiations, 	the
District 	should 	rescind 	all 	10-month
layoff 	notices 	to custodians 	and halt 	all
actions 	taken 	to 	implement 	the plan.
2. 	This 	union cannot 	negotiate 	"in the
blind." 	The 	negotiations 	regarding
reduction 	in hours 	must 	be 	integrated
with 	contract 	negotiations.
3. 	The 	District 	should 	restore 	the 	40
custodians 	scheduled 	for 	layoff.
4. 	The District, 	through its 	representatives,
has 	repeatedly 	stated 	that 	the only
reasons 	for 	this 	layoff 	is 	to 	free 	up
monies 	for salary negotiations; 	yet, 	the
only salary offer has 	been 	no wage
increase. 	Before we 	can consider 	any
monetary trade-offs, 	the District must
make a 	realistic wage offer 	to this 	unit.
The 	District 	representatives 	caucused, 	returned and said
that 	they originally had a proposal 	to present 	to AFSCME but,
because of 	the 	letter, 	they would not present 	it 	and saw no need
to meet 	further. 	Neither 	would 	they respond 	to AFSCME's 	letter.
Hopeful 	that 	the 	addition 	of 	a 	third party would help
resolve 	the difficulties, 	the 	Central 	Labor 	Council 	invited
McClanahan 	to explain 	to the 	Council 	why a 	strike 	sanction
should not be 	granted. 	She was 	unable 	to attend but 	set 	a
meeting on June 	17 	as 	an alternative. 	At 	this meeting, 	the
District 	indicated 	it 	would 	take 	any plans 	or 	alternatives 	the
union 	could 	suggest 	to 	the 	board 	of 	education and 	specifically
invited proposals 	relating 	to 	the 	tax-sheltered 	annuity. 	No
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proposal was 	forthcoming 	from the union, 	however.
On June 	17, 	the parties had planned 	to meet because
McClanahan 	said 	she had a proposal 	to make. 	She did not 	make 	a
proposal, 	however, 	and thereafter, 	neither party requested
further 	meetings. 	The 	layoffs 	and 	work-year 	reductions 	were
implemented on July 1, 	1980, 	as had been announced.
During 	the 	course 	of 	the 	layoff 	and 	work-year 	reduction
talks, 	the parties' 	attention also 	focused on their 	successor
agreement. 	The 	contract 	in 	effect 	between AFSCME and 	the
District was due to expire on June 30, 	1980. 	On March 26, 	1980,
AFSCME presented 	a 	comprehensive package 	as 	a successor 	contract.
Although 	the 	District 	referred 	to wage 	increases 	in the 	layoff
talks, 	when it 	responded 	to AFSCME's 	successor 	contract proposals
on July 8, 	1980, 	it proposed no wage 	increase. 	AFSCME attempted
to persuade 	the 	District 	to combine 	talks 	regarding 	impact 	of
layoff 	and 	reduced hours 	with 	the 	negotiations 	on a 	successor
contract. 	The 	District 	refused to do so.
Similarly, 	during the successor agreement talks, 	the
District 	would not 	discuss 	the 	impact 	of 	the 	layoffs 	or 	the
work-year 	reductions 	because 	those 	issues 	were before 	PERB 	in
the 	unfair 	practice 	charge 	which had been 	filed 	on June 	6.
Due 	to 	legislation signed by Governor 	Edmund G. 	Brown, 	Jr.
on June 30, 	1980, 	the 	District received about $2.8 million it
did not anticipate. 	Then, 	on the night of September 17, 	1980,
the board of 	education 	changed 	its 	position on a 	successor
agreement 	and 	authorized 	McClanahan 	to make proposals 	that
affected 	those 	employees 	whose 	work 	year 	had 	been 	reduced.
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Relevant portions 	of 	the 	District's 	offer 	were:
1. 	The 	District proposes 	a 	9-percent 	salary
increase.
2. 	The 	custodial 	work year 	shall be 	12
months 	for 	those 	for whom 	it 	currently
is 	12 months 	as a result of 	the 	layoffs
pursuant 	to board 	action on May 	7,
effective July 1, 	1980.
a. 	The 	issue of 	restoration of 	the 	150
custodians 	whose 	work 	year 	was
reduced 	will 	become 	a 	negotiable 	item
today as 	a 	result 	of 	the board's
instructions 	to 	its 	negotiator 	in
executive 	session 	last 	night.
7. 	Those 	10-month employees 	who were 	in a
paid 	status 	the day before or 	the day
after July 4, 	1980 shall be paid 	for 	the
July 4 Holiday.
After 	give-and-take at 	the 	table, 	item 2 was 	changed by the
District as 	follows:
2. 	A side 	letter 	of 	agreement 	shall be
developed 	with 	the 	following 	stipulation:
a. 	Salary 	increase of 	9 percent,
effective January 1, 	1981, 	and
restoration of 	the 	work 	year 	from 10
months 	to 12 	months 	for 	those
custodians 	in a paid 	10-month 	status
as 	of the 	signing of 	this 	agreement.
The effective date of January 1, 	1981 was 	later 	crossed out
and September 	1, 	1980 written 	in.
The 	final 	side 	letter 	read:
The 	OUSD Board of 	Education 	agrees 	to
9-percent 	salary 	increase 	for 	fiscal 	year
1980-81, 	effective September 1, 	1980; 	and to
the 	restoration of 	the 	work 	year 	from 	10
months 	to 12 months 	for 	those 	custodians 	in
a paid 	10-month 	status 	as 	of 	the 	signing of
this 	agreement. 	Said 	restoration shall be
effective on September 1, 	1980. 	The
restoration 	is 	effective 	only with 	respect
1
• 	• 	• 	• 	• 	• 	• 	• 	• 	•
3

to the 	initial 	150 	custodians 	who had 	their
work 	year 	reduced 	from 12 	months 	to 	10
months 	pursuant 	to Board 	Resolution 	#28992,
adopted May 7, 	1980. 	It 	expressly excludes
the 	custodians 	whose 	services 	were 	completely
terminated 	pursuant 	to 	Board 	Resolution
#28992.
Additionally, 	the 	District 	agreed 	to pay employees 	on
10-month 	status 	who were 	on paid 	status 	the day before 	and 	the
day after July 4, 	1980 	for 	the July 4 holiday.
DISCUSSION
The 	District 	is 	correct 	in asserting 	that 	it 	did not 	violate
section 	3543.5(c) 	of 	EERA by 	failing 	to negotiate 	over 	the
decision 	to 	lay off 	the 	40 	custodians. 	The Board has held 	that
the decision 	to 	lay off 	is 	clearly within management's
prerogative. 	Newman-Crows 	Landing 	Unified 	School 	District 	(1982)
PERB Decision No. 	223. 	In Newman-Crows Landing, 	at p. 	13, 	the
Board held 	that:
[T]he determination 	that 	there 	is
insufficient 	work 	to 	justify 	the 	existing
number 	of 	employees 	or 	sufficient 	funds 	to
support 	the work 	force 	is 	a matter of
fundamental 	managerial 	concern 	which
requires 	that 	such decisions 	be 	left 	to 	the
employer's 	prerogative.
Nevertheless, 	the 	employer 	is 	obligated 	to provide 	the
exclusive 	representative 	with 	notice 	and 	an opportunity 	to
negotiate over 	the 	effects 	of 	its 	decision 	that have 	an 	impact
upon matters 	within scope. 	Newark 	Unified 	School 	District, 	Board
of Education 	(1982) 	PERB Decision No. 	225; 	Healdsburg Union High
School 	District 	and 	Healdsburg 	Union 	School 	District/San Mateo
City School District 	(1984) 	PERB Decision No. 	375.
As 	to 	the negotiability of 	the work-year 	reduction, 	we 	find
14

some merit 	in 	the 	District's 	argument 	that 	the 	work-year
reductions, not 	unlike layoffs, 	suspended 	the employees'
employment 	relationship 	for 	two months. 	Indeed, 	we agree 	that
an 	employer 	may unilaterally 	reduce 	the 	employees' 	work year by
means of a layoff and, 	at 	the same time, 	establish a
reinstatement date two months hence. 	Here, 	however, 	such was
not 	the case. 	In the 	instant 	case, 	the District reduced 	the
work year of 	its 	custodial 	employees 	as 	an alternative 	to the
layoff of an additional 	40 custodians, 	and not as 	a layoff
itself. 	Indeed, 	in the May 27, 	1980 notice to the affected
employees, 	the 	District 	stated 	that 	the 	reduction in work year
was 	taken 	"in lieu of 	layoff." 	Thus, 	inasmuch as 	the Board has
previously held 	that 	alternatives 	to 	layoff 	are 	negotiable 	as
"effects" 	of 	layoff 	(see 	San Mateo City School 	District 	(1984)
PERB Decision No. 	383), 	the 	instant reduction in the work year
was negotiable as an alternative to additional layoffs.666
The District, 	therefore, 	was 	required 	to negotiate over 	the
layoff 	effects 	and 	the work-year 	reduction at 	such 	time 	as 	a
"firm decision" 	on the layoffs had been reached. 	Mt. 	Diablo
Unified School 	District 	(1983) 	PERB Decision No. 	373. 	Contrary
to the hearing officer's 	conclusion, 	we 	find 	that 	the 	District
6While 	Member 	Morgenstern 	agrees 	that 	the work-year
reduction here was 	a 	negotiable decision 	inasmuch as 	it was
promoted as 	a layoff alternative, 	as 	such 	it also constituted a
reduction in the custodian's hours 	of work and was, 	therefore,
negotiable on that basis 	as 	well. 	(Azusa 	Unified School
District 	(1983) 	PERB Decision No. 	374; 	Pittsburg Unified School
District 	(1983) 	PERB Decision No. 	318; 	North Sacramento School
District 	(1981) 	PERB Decision No. 	193.)
15

had 	reached 	a 	firm decision 	to 	lay off 	custodians 	before 	the
governing board passed 	its 	resolution on May 	7, 	1980.
The April 	30, 	1980 memorandum 	from Superintendent 	Love 	to
the 	governing board 	reveals 	that 	the 	layoffs 	had been 	approved
in the April 	23, 	1980 executive session. 	More 	importantly, 	the
April 	30th memorandum 	indicates 	that 	District 	supervisors 	and
managers 	contacted 	the 	affected 	employees 	concerning 	the 	layoffs
and reduction in work year prior 	to April 	30, 	1985. 	The May 7
resolution of 	the board of 	education was 	merely a 	formal
announcement of 	its 	earlier decision. 	Thus, 	as of April 	23,
1980, 	the 	District was 	required 	to negotiate 	in good 	faith as 	to
the 	effects 	of 	its 	layoff 	decision and 	the decision 	to 	reduce
the 	work year.
In so concluding, 	we note 	our disagreement with the hearing
officer's 	reliance 	on 	the 	Board's 	reasoning 	in 	San Francisco
Community College 	District 	(1979) 	PERB Decision No. 	105 	and 	San
Mateo County Community College 	District 	(1979) 	PERB 	Decision
No. 	94, 	wherein the Board 	found that 	the districts 	committed per
se 	violations 	when 	their 	school 	boards 	adopted 	resolutions. 	We
agree with 	the 	District's 	assertion 	that 	the 	facts 	in 	the
instant 	case 	distinguish 	it 	from 	the past 	PERB decisions. 	Those
cases 	involved 	situations 	where 	the 	employer 	implemented 	the
announced 	changes 	prior 	to 	affording 	the 	unions 	an 	opportunity
to meet. 	In contrast 	to San Francisco and San Mateo, 	supra,
where 	the 	board 	resolutions 	were 	adopted 	only a 	few days 	prior
to 	implementation, 	the 	Oakland board 	resolution was 	adopted 	two
months 	before 	implementation. 	Thus, 	inasmuch as 	the timeframe
16

provided 	ample 	opportunity 	for 	good 	faith 	negotiations 	to 	take
place prior 	to 	implementation of 	the 	resolution, 	we 	find no per
se 	violation 	evidenced by passage 	of 	the 	resolution. 	As
outlined 	infra, 	however, 	since such good 	faith discussions 	did
not 	ensue, 	we nonetheless 	find the 	District 	failed 	to satisfy
its 	bargaining 	obligation.
Using 	the 	Board's 	totality of 	circumstances 	test,7 we 	find
the 	record 	supports 	the hearing 	officer's 	conclusion 	that 	the
District 	violated 	EERA in 	the 	course 	of 	the 	layoff 	and 	work-year
negotiations.
As 	noted above, 	the 	District 	was 	cognizant of 	the decision
to lay off and reduce 	the work year as 	early as April 	23, 	1980.
However, 	the District 	instructed 	the managers 	and supervisors 	to
directly give 	the 	affected 	employees 	notice 	of 	the 	layoffs 	and
reduction 	in work year rather 	than bargain with 	the 	employees'
exclusive 	representative. 	Indeed, 	it 	refused to meet with the
employees' 	exclusive 	representative 	until 	its 	intentions 	were
made public by 	the 	school 	board 	resolution. 	Such conduct
directly affronts 	the bargaining process. 	Moreover, 	not only
did 	the 	District's 	conduct 	turn 	away 	from 	the negotiating
7 PERB has 	held 	that:
[T]he 	question of 	good 	faith 	in 	negotiations
must be based on 	the 	"totality of 	the parties'
conduct." 	In weighing the 	facts, 	we must
determine 	whether 	the 	conduct 	of 	the parties
indicates 	an 	intent 	to 	subvert 	the 	negotiating
process 	or 	is 	merely a 	legitimate position
adamantly maintained. 	(Oakland 	Unified
School 	District 	(1982) 	PERB Decision No. 	275.)
17

process, 	its 	publicly 	released 	resolution 	failed 	to 	even
acknowledge a duty to negotiate. 	That announcement, 	by
"direct[ing] 	the 	Superintendent 	to abolish or reduce 	the work
year, 	no later than June 30, 	1980," 	conveyed strict 	"marching
orders" 	that worked only to vitiate 	the bilateral process.
We 	find that, 	in the 	course of 	the negotiating sessions 	that
followed, 	the 	District 	continued 	to 	evidence bad 	faith
bargaining 	by providing 	inadequate 	salary 	information 	to
AFSCME. 	In spite of AFSCME's 	entitlement, 	as the exclusive
representative, 	to 	information 	that 	is 	necessary and 	relevant 	to
represent 	unit 	employees 	(Stockton 	Unified 	School 	District
(1980) 	PERB Decision No. 	143), 	the information the District
provided covered all 	maintenance 	employees, 	not 	just 	those 	in
the bargaining 	unit. 	Inasmuch as 	the 	District 	failed 	to set
forth any 	reason why 	it was 	unable 	to provide 	the more 	limited
and more 	useful 	information 	in 	the 	form AFSCME requested, 	we
find 	additional 	evidence 	of 	the 	District's 	failure 	to bargain 	in
good 	faith.
We 	also 	find 	merit 	in AFSCME's 	contention 	that 	the 	District
improperly 	refused 	to 	combine 	the 	negotiations 	concerning 	layoff
effects 	and work-year 	reductions 	with 	the 	negotiations 	on 	the
successor agreement. 	In the 	instant case, 	the District continued
to 	interject 	future 	wage 	increases 	as 	a possible variable 	in 	the
layoff/work-year 	reduction plan. 	Having 	linked 	the 	future 	wage
issue 	to the 	"effects" bargaining, 	it so entangled the subjects
as 	to 	require 	that 	the 	District 	accede 	to AFSCME's 	demand 	to
18

combine 	negotiations.
In reaching our 	conclusion 	that 	the 	District's 	conduct, 	in
toto, 	evidenced bad 	faith bargaining, 	we note our disagreement
with 	the hearing 	officer's 	finding 	that 	there was 	no compelling
reason why 	the 	District had 	to 	implement 	the 	layoffs 	on July 	1,
1980. 	We 	find that, 	although a 	later 	implementation date 	could
have been negotiated, 	the number of 	employees 	subject 	to 	the
cuts 	and 	the 	severity of 	the 	action would necessarily have been
compounded with 	each delay 	in 	implementation. 	In terms 	of 	the
fiscal year, 	a 	layoff 	effective July 1 produces 	the greatest
amount 	of 	savings 	and 	affects 	the 	fewest 	number 	of 	employees 	and
students. 	Thus, 	inasmuch as 	the July 1 	implementation date was
not an arbitrary deadline, 	we do not 	view 	it 	as 	decisive
evidence 	of 	bad 	faith 	bargaining.
The hearing 	officer 	also 	found 	that 	the 	District 	violated
the Act by its 	failure to resolve a seniority list dispute.8
We disagree.
Seniority 	is 	a mandatory subject 	of bargaining. 	Healdsburg
Union High School District, 	supra. 	Here, 	however, 	the duty to
negotiate 	seniority 	is 	limited by Article VII of 	the parties'
8 The 	District 	and AFSCME discussed 	the 	accuracy of 	the
seniority list during negotiations 	but, 	because of 	time
constraints, 	were unable 	to 	"clean 	it up." 	The seniority list
dispute was not a question of 	inaccuracies but, 	rather, 	of whose
list 	should be 	used. 	The 	District's 	seniority list 	did not
include 	custodians 	who were 	assigned 	to the 	children's 	centers.
AFSCME maintained 	the 	appropriate 	seniority 	list 	was 	one 	which
included 	the 	entire 	class 	of 	custodians.
1
-
9

contract 	which 	includes 	provisions 	for 	establishing 	the 	seniority
list 	and 	its 	use 	in layoff 	situations. 	Thus, 	while 	the 	union
has 	the 	right 	to negotiate which employees 	will 	be 	included 	on a
particular 	seniority list, 	inclusion of a 	seniority provision 	in
the parties' 	collective bargaining agreement 	evidences 	that
AFSCME exercised 	its 	right 	to negotiate 	the 	composition 	of 	the
seniority list. 	For 	that 	reason, 	its 	right 	to negotiate the
subject 	of 	seniority 	in 	conjunction 	with 	the 	layoffs 	was
superseded by 	its 	previous 	agreement. 	Marysville Joint 	Unified
School District 	(1983) 	PERB Decision No. 	314; 	South San
Francisco Unified 	School 	District 	(1983) 	PERB Decision No. 	343.
We 	also reject 	AFSCME's 	assertion 	that 	the 	District's
insistence on 	keeping 	separate 	seniority 	lists 	is 	a 	violation of
EERA. 	In 	our 	view, 	since 	the District's 	alleged misapplication
of 	the contract 	did not 	amount 	to a 	change 	in policy but, 	rather,
appears 	to be 	a 	contract 	interpretation dispute, 	no violation of
the 	Act has 	been 	alleged. 	Grant Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196. 	To correct what 	the union believed
to be 	an 	improper 	application of 	the 	seniority article, 	the
negotiated 	grievance procedure 	was 	the 	correct 	avenue 	of
redress.9
The 	District 	takes 	exception 	to 	the hearing 	officer's
proposed 	decision by 	stating 	she 	gave 	an 	"incomplete 	explanation
9In 	fact, 	the 	union did 	file a grievance against 	the
District 	for 	"failure 	to 	follow seniority 	in 	the 	layoff of
custodians." 	However, 	it 	failed 	to proceed 	in a timely 	fashion
to 	the 	second 	step of 	the 	grievance procedure.
20

of the 	[PERB] 	decision not 	to defer" 	to arbitration. 	In the
proposed decision, 	the hearing officer 	stated:
Pursuant 	to a 	request 	for 	injunctive 	relief
and an 	interim order 	of 	the 	Public 	Employment
Relations Board 	. 	. 	. 	the issue of whether
the 	matter 	should 	be 	deferred 	to 	arbitration
was 	decided by a hearing officer 	on July 	28,
1980, 	in a proposed decision not 	to defer 	to
arbitration which became 	final 	on August 	18,
1980.
We 	do not 	find 	that prejudicial 	error 	was 	committed by 	the
hearing 	officer 	in her 	treatment 	of 	the 	decision not 	to defer 	to
arbitration. 	She merely stated 	that 	the 	issue was presented 	and
resolved 	in a prior 	decision. 	It was 	not an 	issue before her 	in
the 	instant case and there was, 	therefore, 	no need 	to provide a
detailed 	explanation of 	the 	effect 	of 	the decision not 	to defer.
Finally, 	the District asserts 	that 	the parties, 	in reaching
agreement 	on a 	successor 	agreement 	and 	side 	letter, 	intended 	to
settle 	the 	instant 	unfair practice 	charge. 	We 	join 	the hearing
officer 	in 	finding 	no 	such 	intention.
The successor agreement was 	executed on November 	12, 	1980.
Among other 	things, 	the parties 	agreed 	that 	the 	District would
provide the union with two-weeks' 	notice 	in advance of 	its
intended date 	for 	sending 	layoff 	notices 	to affected 	employees.
It 	also provided 	for a 	9-percent 	salary 	increase 	for 	fiscal 	year
1980-81, 	effective 	September 1, 	1980. 	Pertinent to the 	issue
raised here, 	however, 	there was no indication that 	this 	acted as
a 	settlement 	of 	the 	unfair practice 	charge.
In a 	Side Letter of Agreement, 	the 	District 	restated 	its
agreement 	to 	raise 	salaries 	9 percent 	and 	further 	agreed 	to
21

restore 	the work year 	from 10 months 	to 12 months. 	We 	find 	it
noteworthy that 	this 	restoration was 	effective only as 	of
September 	1, 	1980. 	While 	the side 	letter provides holiday pay
for 	those 	employees 	on paid 	status, 	neither 	document 	in 	any way
redresses 	the 	custodians 	for 	the 	two-month period 	their 	work
year 	was 	reduced. 	For 	that 	reason and because 	there 	was 	no
statement 	or 	indication 	that 	this 	side 	letter was 	intended 	to
act as 	settlement of 	the 	instant 	charge, 	we 	find 	that 	the
hearing 	officer 	correctly 	concluded 	that 	neither 	document
settled 	the 	instant 	unfair practice 	charge.
REMEDY
PERB has 	the 	statutory 	authority 	to 	fashion appropriate
remedies. 	In this regard, 	section 3541.5(c) provides as 	follows:
The board 	shall 	have 	the power 	to 	issue a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease and desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including but not 	limited 	to the
reinstatement 	of 	employees 	with 	or 	without
back pay, 	as 	will 	effectuate the policies of
this 	chapter.
As 	noted above, 	the hearing officer 	ordered 	the 	District 	to
cease 	and 	desist 	from 	taking 	unilateral 	action on matters 	within
the 	scope 	of 	representation 	without 	meeting 	and 	negotiating 	with
AFSCME, 	to reinstate 	custodians 	laid off 	out 	of 	seniority with
appropriate back pay, 	to restore 	the 	12-month work year, 	to make
employees 	whole 	for 	any 	loss 	of 	earnings 	they suffered by virtue
of 	the reduction 	in 	the work year, 	to post 	an appropriate notice,
and to negotiate, 	upon demand, 	over 	the work-year 	issue with
AFSCME.
22

We 	find 	the hearing 	officer's 	proposed 	remedy 	is
inappropriate 	in one 	regard. 	An 	employer's 	decision 	to 	lay off
is 	non-negotiable, 	and normally it 	is 	inappropriate to order 	the
reinstatement 	of 	the 	terminated 	employees.
in
v,	 10 Here, 	however,
the hearing 	officer held 	that 	a 	layoff 	was 	an unfair practice
because 	it did not strictly rely on employees' 	seniority. 	Since
we have 	found 	that 	the 	seniority dispute 	is 	a contractual 	issue
and not 	an unfair practice, 	an order 	to reinstate 	custodians
laid off 	out 	of 	seniority 	is 	inappropriate.
However, 	because 	the 	District 	unlawfully refused 	to negotiate
the 	effects 	of 	its 	decision to lay off, 	we 	find 	it 	appropriate 	to
order 	the District 	to negotiate, 	upon demand, 	those proposals
which we have 	found 	to be 	within 	the 	scope of representation.
Accordingly, 	we 	find 	it appropriate 	to order 	the 	District 	to
negotiate 	any 	implementation of 	layoff 	issue 	which 	is 	consistent
with the Decision herein.11
TT11
In order 	to recreate as 	nearly as possible 	the 	economic
situation 	that 	would have prevailed but 	for 	the 	unfair 	labor
practice, 	and in order 	to effectuate the policies 	of the Act, 	we
10Moreno 	Valley Unified School 	District 	(1982) 	PERB
Decision No. 	206, 	aff'd 	(1983) 	142 Cal.App.3d 191; 	South Bay
Union School District 	(1982) 	PERB Decision No. 	207a.
1 1 We 	note 	that 	the parties 	concluded 	negotiations 	on 	two
successor 	collective 	bargaining 	agreements 	covering 	the periods
of July 1, 	1980 to June 30, 	1981, 	and July 1, 	1981 through
June 30, 	1984. 	These agreements 	include provisions concerning
layoffs 	and 	restoration of 	the 	12-month work 	year. 	Whether back
pay 	liability 	ceased 	because 	of 	either 	agreement 	is 	a matter 	to
be 	determined 	in a 	compliance proceeding.
23

also 	direct 	the 	District 	to pay 	the 	employees 	affected by 	the
layoff 	their 	wages 	at 	the 	rate paid 	at 	the 	time 	they were 	laid
off, 	from twenty 	(20) 	days 	following the date this 	Decision is
no 	longer 	subject 	to 	reconsideration, 	until 	occurrence 	of 	the
earliest of the 	following conditions: 	(1) 	the date the parties
reach agreement; 	(2) 	the date the statutory impasse procedure 	is
exhausted; 	(3) 	the 	failure of AFSCME to request negotiations
within thirty 	(30) 	days of service of this 	Decision, 	or 	to
commence negotiations 	within 	five 	(5) 	days 	of the 	District's
notice of 	its desire 	to bargain with AFSCME; 	or 	(4) 	the
subsequent 	failure 	of AFSCME to negotiate 	in good 	faith. 	In no
event 	shall 	the 	sum paid 	to any employee 	exceed 	the 	amount he 	or
she would have earned as 	wages 	from July 1, 	1980, 	the date of
the layoff, 	to the 	time he or 	she secured equivalent 	employment
elsewhere.
To remedy 	the 	employer's 	failure 	to negotiate 	the 	decision
to reduce the custodians' 	work year, 	we affirm the order 	that
the affected employees be made whole 	for 	any loss 	of pay or
actual 	costs 	incurred 	as 	a 	result 	of 	loss 	of 	benefits 	which 	they
suffered because 	of 	the unilateral 	reduction 	in 	the work
year.12 All 	back pay will 	include 	interest 	at 	the 	rate of 	10
percent per 	annum.
1 2 As 	noted 	supra, 	the parties 	reached agreement 	to
restore 	the 12-month work year. 	Thus, 	we need not order
restoration 	of 	the 	12-month work 	year.
24

ORDER
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of law, 	and
the entire record in this 	case, 	it 	is 	found that 	the Oakland
Unified School 	District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational 	Employment 	Relations 	Act. 	Pursuant 	to
Government Code section 3541.5(c), 	it 	is hereby ORDERED that 	the
Oakland Unified 	School 	District, 	its 	governing board, 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
a. 	Taking 	unilateral 	action on matters 	within 	the 	scope 	of
representation 	without 	first 	meeting 	and 	negotiating 	with 	the
American Federation of State, 	County and Municipal 	Employees,
Local 257, AFL-CIO.
b. 	Failing or 	refusing 	to meet 	and negotiate 	in good 	faith
with 	the American 	Federation of 	State, 	County and Municipal
Employees, 	Local 257, 	AFL-CIO, 	with respect to matters within the
scope 	of 	representation as 	defined 	in 	Government 	Code 	section
3543.2 	and 	specifically with 	respect 	to 	effects 	of 	and
alternatives 	to 	layoff.
c. 	Denying 	to the American Federation of State, 	County and
Municipal Employees, 	Local 257, 	AFL-CIO, 	its statutory right to
represent 	members 	of 	the unit 	as 	exclusive 	representative.
d. 	Interfering with 	employees 	because of 	their 	exercise 	of
representational 	rights.
25

2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE 	POLICIES 	OF THE 	EDUCATIONAL EMPLOYMENT RELATIONS ACT:
a. 	Upon request, 	meet 	and negotiate with the 	exclusive
representative 	over 	the 	effects 	of 	any layoffs 	or 	work-year
reductions.
b. 	Pay 	to 	the 	employees 	laid off 	a sum equal 	to 	their 	wages
at 	the 	time 	they were 	laid 	off, 	from twenty 	(20) 	days 	following
the date 	this 	Decision 	is 	no longer 	subject 	to reconsideration,
until 	occurrence of 	the earliest 	of 	the 	following 	conditions:
(1) 	the date the parties 	reach agreement; 	(2) 	the date the
statutory impasse procedure 	is 	exhausted; 	(3) 	the 	failure of
AFSCME to request negotiations 	within thirty 	(30) 	days 	of
service of 	this 	Decision, 	or 	to commence negotiations 	within
five 	(5) 	days 	of 	the District's 	notice of 	its desire to bargain
with AFSCME; 	or 	(4) 	the subsequent 	failure of AFSCME to
negotiate 	in good 	faith. 	In 	no event 	shall 	the sum paid 	to any
employee 	exceed 	the 	amount 	the 	employee 	would have 	earned 	as
wages 	from July 1, 	1980, 	the date of the layoff, 	to the time the
employee 	secured 	equivalent 	employment 	elsewhere.
c. 	Make whole 	the affected 	employees 	for 	any loss 	of pay
and benefits 	resulting 	from the 	reduction 	in work year 	in 	1980.
d. 	All payments 	ordered 	above 	shall 	include 	interest 	at 	a
rate of 	10 percent per 	annum.
e. 	Mail 	copies 	of 	the attached 	Notice 	to the 	employees
affected by 	the 	District's 	conduct 	within 	ten 	(10) 	calendar 	days
after 	this 	Decision 	is 	no 	longer 	subject 	to reconsideration.
26

f. 	Within thirty-five 	(35) 	days 	following the date 	this
Decision 	is 	no longer 	subject 	to reconsideration, 	prepare and
post 	copies 	of 	the Notice 	attached as 	an Appendix hereto, 	signed
by an authorized 	agent 	of 	the 	employer. 	Such posting 	shall 	be
maintained 	for 	at 	least 	thirty 	(30) 	consecutive workdays 	at 	the
District's 	headquarters 	office 	and at 	all 	locations 	where 	notices
to 	classified 	employees 	are 	customarily posted. 	Reasonable 	steps
shall be 	taken to 	insure 	that 	they are not defaced, 	altered,
reduced 	in size, 	or 	covered by any other material.
g. 	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 her 	instructions.
It 	is 	further 	ORDERED that 	the allegation that 	the 	Oakland
Unified 	School 	District 	violated 	Government 	Code 	section
3543.5(c) 	by its 	refusal 	to negotiate 	the 	seniority list 	at
issue 	in the 	instant 	case 	is 	DISMISSED.
At 	the 	compliance proceeding, 	the 	compliance officer 	shall
attempt 	to accommodate 	any reasonable proposal 	regarding 	the
method of payment 	of 	the 	monetary award 	ordered by 	the 	Board.
The 	District's 	request 	for 	oral 	argument pursuant 	to PERB
Regulation 32315 	is 	DENIED.
Member 	Morgenstern 	joined 	in 	this 	Decision.
Member Porter's 	Dissent begins 	on page 	28.
27

Porter, 	Member, 	dissenting: 	I respectfully dissent. 	I am
not persuaded by 	the 	overall 	record 	in 	this 	case 	that 	the
totality of 	the 	circumstances 	in 	late 	1979 	and 	early 	1980
demonstrate bad 	faith bargaining by 	the 	District.1 But 	even
assuming 	that 	there was 	bad 	faith bargaining, 	the 	record 	shows
subsequent 	negotiations, 	bargaining 	and 	settlement between 	the
parties.
During the parties' 	negotiations 	in May and June 	1980
concerning 	the 	impending 	layoffs 	and 	the 	12-month 	to 	10-month
work-year 	reductions, 	AFSCME attempted 	to 	join 	those 	matters
with 	negotiations 	over 	the 	successor 	1980-81 	school 	year
contract. 	AFSCME was particularly concerned with 	the
percentage 	salary 	increase 	the 	custodians 	might 	obtain 	for
1980-81 	as 	a 	result 	of 	the 	savings 	the 	District 	would achieve
from the 	layoffs 	and 	the 	July/August 	work-year 	reductions. 	The
District 	refused 	to merge 	the 	negotiations 	inasmuch 	as
statutory and 	fiscal 	needs 	necessitated 	that 	the 	layoffs 	and
work-year 	reductions 	be 	effected by July 1, 	1980, 	and 	thus
could 	not 	be 	intertwined 	with 	and made 	to 	await 	the 	future
1Such 	overall circumstances 	included 	in part: 	(a) 	the
District's 	then-impending 	$9 	to $16 	million 	fiscal 	deficit 	for
the 1980-81 	(July 1, 	1980 - June 30, 	1981) 	school year, 	(b) 	the
statutory and 	fiscal 	needs 	to 	implement 	and achieve 	layoffs 	and
work-year reductions by July 1, 	and 	(c) 	the arrival 	in April
1980, 	of a new District 	negotiator who had 	to familiarize
herself 	with, 	oversee 	and negotiate 	with 12 bargaining units
concerning 	the grave 	fiscal problems, 	the 	large numbers 	of
layoffs 	and work-year 	reductions 	in 	teachers 	and 	classified
employees, 	and 	the ongoing 	1980-81 	contract negotiations 	with
the various 	units.
28

resolution of 	the negotiations 	over 	the 1980-81 	contract.2
Subsequent 	to AFSCME's 	filing of 	the 	unfair 	charge on June 	6,
1980, 	and 	the effective date of 	the 	layoffs 	and work-year
reductions on June 30, 	1980, 	the parties 	commenced negotiations
on the successor 	contract 	for 	the 	1980-81 	school year. 	These
negotiations 	began on July 8, 	1980, 	and continued 	into November
1980. 	At 	the 	commencement 	of 	the 	1980-81 	negotiations 	in July
1980, 	AFSCME attempted to 	include 	the 	layoff and work-year
reduction matters 	in 	the bargaining. 	The 	District 	refused 	to
bargain on 	such matters 	on 	the basis 	that 	the matters 	were before
PERB on 	the 	unfair 	charges 	that 	AFSCME had 	filed.
During July, 	August and early September, 	1980, 	the parties
negotiated 	on other 	matters 	relating 	to 	the 	1980-81 	school 	year.
On September 18, 	1980, 	the District's negotiator advised
AFSCME that 	the 	District's 	board had 	authorized her 	to negotiate
the 	layoff 	and 	work-year 	reduction matters 	which 	the board had
previously refused 	to bargain with AFSCME. 	Proposals 	and
counterproposals 	by the parties 	resulted 	in an agreement 	in
November 	1980 	that: 	the 	150 	10-month 	custodians 	would be
retroactively 	returned 	to 	a 	12-month 	work-year 	status 	effective
September 	1, 	1980 	(having been bargained backwards 	from an
original January 1, 	1981 date, 	first to November 1, 	1980, 	and
2Faced 	with a large 	fiscal deficit 	for 	1980-81, 	it was
the 	anticipated 	savings 	from 	the 	reduced 	work 	year 	during 	July
and August 	which 	the 	District 	felt 	might 	possibly afford 	some
basis 	for 	being 	able 	to offer 	a 	salary 	increase 	in 	the
bargaining 	on 	the 	1980-81 	school-year 	contract.
29

finally to September 1, 	1980); 	retroactive payment would be
made 	of 	the July 4, 	1980 holiday pay to 	the 	10-month 	custodians
who were 	working 	(summer 	school) 	but 	who would not 	otherwise
have 	received 	the holiday pay because 	they 	were 	not 	12-month
employees 	at 	that 	time; 	and a 	retroactive 	9-percent 	salary
increase would be effective 	September 	1, 	1980. 	The 	record
indicates 	that 	the 	9-percent 	salary 	increase 	involved 	the
salary savings 	the 	District had 	achieved 	from 	the 	work-year
reductions 	for 	the 	150 	custodians 	in July and August 	1980.
Also, 	one of 	the 	results 	of bargaining 	the effective date of
the 	restoration 	of 	the 	150 	custodians 	retroactively 	to
September 1, 	1980, 	was to entitle the 150 custodians 	to
additional 	vacation pay benefits 	for 	the 	1980-81 	school 	year.
This 	negotiated 	agreement 	arrived 	at 	in November 	1980 	and
finally ratified by AFSCME 	in January 1981, 	was 	entitled
"MEMORANDUM OF TERMS 	OF SETTLEMENT," 	and 	states 	that 	the
parties 	were 	agreeing 	to 	recommend 	to 	their 	respective
membership and Board: 	"the 	following 	terms 	of 	settlement, 	and
the 	execution 	of 	a 	new contract 	of 	agreement 	between 	. . . " 	for
the period July 1, 	1980 to July 30, 	1982. 	An agreed-to side
letter provided 	for 	the 	9 	percent 	salary 	increase 	and 	the
restoration of 	the 	12-month work 	year 	retroactively 	to
September 	1, 	1980, 	and for 	the 	retroactive payment of the
July 4, 	1980 holiday pay to 	the 	10-month work-year 	custodians.
The 	subject 	matters 	of 	this 	unfair 	practice/bad 	faith
bargaining 	charge having 	been 	subsequently negotiated, 	settled
30

and 	resolved by the bargaining between 	the parties, 	the
complaint 	should 	accordingly be 	dismissed.
31

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-472,
American Federation of 	State, 	County and Municipal 	Employees,
Local 	257, 	AFL-CIO v. 	Oakland Unified 	School 	District 	in which
all parties had 	the 	right 	to participate, 	it has been 	found by
the 	Public 	Employment 	Relations 	Board 	that 	the 	Oakland 	Unified
School District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment 	Relations 	Act.
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. 	Taking 	unilateral 	action on matters 	within the 	scope 	of
representation 	without 	first 	meeting 	and 	negotiating 	with 	the
American 	Federation of State, 	County and Municipal 	Employees,
Local 257, AFL-CIO.
b. 	Failing 	or 	refusing 	to meet 	and negotiate 	in good 	faith
with 	the American 	Federation of 	State, 	County and Municipal
Employees, 	Local 257, 	AFL-CIO, 	with respect to matters within the
scope 	of 	representation as 	defined 	in 	Government 	Code 	section
3543.2 	and 	specifically with 	respect 	to effects 	of 	and
alternatives 	to layoff.
c. 	Denying 	to 	the American Federation of State, 	County and
Municipal Employees, 	Local 257, 	AFL-CIO, 	its statutory right to
represent 	members 	of 	the 	unit 	as 	exclusive 	representative.
d. 	Interfering 	with 	employees 	because 	of 	their 	exercise 	of
representational 	rights.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT RELATIONS ACT:
a. 	Upon request, 	meet and negotiate with the exclusive
representative 	over 	the 	effects 	of 	any layoffs 	or 	work-year
reductions.
b. 	Pay to 	the 	employees 	laid off 	a 	sum equal 	to 	their 	wages
at 	the 	time 	they were laid off, 	from twenty 	(20) 	days 	following
the date 	PERB Decision No. 	540 was 	no longer 	subject 	to
•

reconsideration, 	until occurrence of 	the 	earliest of 	the
following conditions: 	(l) 	the date 	the parties 	reach agreement;
(2) 	the date 	the statutory impasse procedure 	is 	exhausted; 	(3)
the 	failure 	of AFSCME 	to 	request 	negotiations 	within 	thirty 	(30)
days 	of 	service of 	the Decision, 	or 	to commence negotiations
within 	five 	(5) 	days 	of 	the District's 	notice of 	its 	desire 	to
bargain with AFSCME; 	or 	(4) 	the subsequent 	failure of AFSCME to
negotiate 	in good 	faith. 	In no event 	shall 	the sum paid 	to any
employee 	exceed 	the 	amount he 	or 	she 	would have 	earned 	as 	wages
from July 1, 	1980, 	the date of 	the layoff, 	to the time he or 	she
secured 	equivalent 	employment 	elsewhere.
c. 	Make whole 	the affected 	employees 	for 	any loss 	of pay
and benefits 	resulting 	from the 	reduction 	in work year 	in 	1980.
d. 	All payments 	ordered above 	shall 	include 	interest 	at 	a
rate of 	10 percent per 	annum.
Dated: 	OAKLAND UNIFIED 	SCHOOL 	DISTRICT
By Authorized 	Agent
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 ANY
MATERIAL.
22