Alhambra City and High School District (PERB 0560E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ALHAMBRA TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
ALHAMBRA CITY AND HIGH SCHOOL
DISTRICTS,
Respondent.
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) 	Case No. 	LA-CE-1801
PERB 	Decision No. 	560
January 	8, 	1986
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Appearances: 	Michael R. 	White, 	Attorney for Alhambra Teachers
Association, 	CTA/NEA; 	O'Melveny & Myers 	by Paul M. 	Lusky for
Alhambra 	City and 	High 	School 	Districts.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is before the the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by the Alhambra 	City and High 	School 	Districts 	(District) 	to a
proposed decision of an administrative 	law 	judge 	(ALJ) 	which
found that the District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational 	Employment 	Relations 	Act 	(EERA)1 by
offering 	to give 	employees, 	represented by the Alhambra
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the 	Government 	Code.
Section 3543.5 provides, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer 	to:

Teachers Association, 	CTA/NEA (Association), 	an early
retirement 	benefit 	conditioned 	upon 	the 	Association's 	agreement
not 	to request 	negotiations 	on 	the 	subject 	and by sending 	a
letter 	to 	all 	certificated 	employees 	represented by 	the
Association 	explaining why they were 	not 	eligible 	for 	this
early 	retirement 	benefit.
The 	ALJ 	found 	that 	when 	the 	District 	conditioned 	the
retirement 	benefit 	upon 	the 	Association's 	waiver 	of 	its
bargaining rights, 	the District 	failed 	to bargain 	in good
faith. 	The ALJ held 	that 	this 	action constituted a per 	se
refusal 	to bargain and was 	similar 	to a 	unilateral 	change 	of 	a
matter 	within 	the 	scope of bargaining. 	The ALJ also 	found 	that
this 	conduct 	was 	both 	derivatively 	and 	independently violative
of 	EERA because 	a 	refusal 	to bargain has 	the 	effect 	of
interfering with 	the 	employees' 	EERA right 	to representation
and 	the 	employee 	organization's 	EERA right 	to represent 	and
bargain 	for bargaining unit members. 	The ALJ 	found 	the May 9,
1983 	communication 	from the 	District 	to 	the 	bargaining 	unit
members 	to be 	a 	violation of 	the 	EERA.
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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For 	the 	reasons 	which 	follow, 	we reverse 	the underlying
proposed 	decision and dismiss 	the 	charge.
FACTUAL 	SUMMARY
At all 	times 	relevant 	to the 	issues 	in this 	case, 	the
certificated 	bargaining 	unit 	was 	represented 	by 	the
Association, 	and 	the 	classified bargaining unit 	was 	represented
by the California School 	Employees 	Association 	(CSEA). 	The
classified 	unit 	employees 	were 	covered by a 	collective
bargaining agreement 	effective 	September 	1, 	1982 	to October 	31,
1983. 	The 	certificated 	employees 	were 	covered by a 	collective
bargaining agreement 	that expired on August 	31, 	1982.
Negotiations 	for 	a 	successor 	agreement 	to 	the 	certificated 	unit
agreement 	began 	in March 	1982. 	A tentative 	agreement 	was
reached on January 27, 	1983, 	after almost 	eleven months 	of
negotiations. 	This 	tentative 	agreement 	was 	then submitted 	to
the Association 	for 	ratification and 	to 	the 	school 	district
governing board 	for 	approval.
In January 1983, 	the 	District perceived a possible
financial 	crisis 	in 	the 	coming year. 	A determination was 	made
by 	the 	District 	that 	if 	classified 	employees 	were 	encouraged 	to
retire one or 	two years 	earlier 	than 	their 	anticipated
retirement date, 	a substantial 	savings 	could be attained
without layoffs.
To accomplish this 	objective, 	Superintendent 	Bruce Peppin
and 	Deputy 	Superintendent 	William 	Pickford 	developed 	an 	early
w	3

retirement 	incentive plan 	(RIP).2 As 	envisioned 	by Peppin
and Pickford, 	the 	RIP was 	to be 	offered only to the 	classified
employees. 	Pickford 	and Peppin presented 	the 	RIP 	to the 	school
district 	governing board 	on 	February 	1. 	Following 	a 	review of
the proposal, 	the board 	instructed 	Peppin and 	Pickford 	to
revise 	the proposal 	so as 	to 	include all 	District 	employees.
On February 2, 	1983, 	Pickford met with CSEA and requested
that 	CSEA accept 	the 	RIP 	as 	school 	board policy and 	agree 	not
to negotiate 	the 	RIP. 	CSEA, 	on behalf of 	the classified
employees, agreed.
During 	the 	first 	week 	in February, 	Peppin met 	with 	the
Association president, 	Jane Christeson, 	and made an offer
identical 	to 	the 	offer 	accepted by 	CSEA. 	Christeson 	indicated
that 	she 	would have 	to take 	it 	to 	the Association
representative 	council 	for 	study. 	Peppin 	testified 	that his
understanding 	was 	that 	Christeson 	would 	get 	back 	to him after
showing 	the plan 	to 	the 	council.
On February 15, 	at a meeting of 	the Alhambra Board of
Education, 	the board unanimously adopted 	the 	first 	reading of
the RIP as 	a board policy covering all employees.3
2Under 	this 	RIP, 	an employee who gave notice of
retirement prior 	to June 	1, 	1983, 	and whose retirement became
effective before 	September 	1, 	1983, 	would receive 	15 percent
above 	the 	initial 	verified monthly 	retirement 	compensation 	for
a period of 	36 months 	thereafter. 	In addition, 	an employee who
retired 	from 	other 	locally 	administered 	retirement 	systems 	in
California, 	the State Teachers' 	Retirement System, 	or the
Public Employees' 	Retirement System, 	would also receive 	15
percent 	above 	their 	total 	retirement 	allowance 	from all 	systems,
3Standard 	practice by the board 	in 	adopting policies 	was
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On or about 	February 28, 	Christeson told Peppin that 	the
Association would not 	agree 	to 	the 	RIP without 	negotiations.
In 	response 	to a 	question 	from 	Peppin, 	Christeson said 	that 	the
Association did not 	want 	its 	members 	to be 	included 	in 	the
second board 	reading of 	the 	RIP policy. 	She 	indicated 	that 	the
Association wanted 	to negotiate 	the proposal 	and 	that 	if 	the
District 	was 	concerned 	about 	the 	Association's 	internal
contract 	ratification timelines, 	which 	required a 	three-week
process, 	those matters 	could be worked out. 	Peppin 	indicated
that 	the 	District 	was 	unwilling 	to negotiate over 	the 	RIP.
On March 1, 	1983, 	the Association voted to ratify the
1982-84 collective bargaining contract. 	Also on the 	same date,
the 	school 	board 	unanimously adopted 	the 	revised 	RIP policy
which 	deleted 	all 	certificated bargaining 	unit 	employees'
eligibility 	from the provisions.
On March 	15, 	the 	District 	also signed 	the 	1982-84
collective bargaining 	contract 	for 	the 	certificated 	employees.
The 	1982-84 	contract 	included 	a 	retirement 	incentive plan,4
to have 	two 	readings 	of proposed policies 	at board meetings
before 	their 	formal 	adoption.
4Article 	XX 	- Early 	Retirement 	Incentive 	Plan
1. 	Eligibility 	- Has 	served 	the 	District
for 	20 years 	or more; 	be between the ages of
55 	and 	58; 	apply not 	less 	than ninety 	(90)
days prior 	to last day of 	service; 	resign
from the 	District 	after 	acceptance of 	option.
2. 	Program 	- Work 	on District-assigned
projects 	for 	twenty-five 	(25) 	days per year
at 	the rate of 	$200.00 per 	day not 	to exceed
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unchanged 	from the 	1980-82 	contract provision, 	and 	a
"Conclusiveness of Agreement" 	(zipper) 	clause.5UT
On March 	18, 	Association bargaining chairperson Victor
Sandoval 	made 	a 	written 	request 	to Peppin 	to open negotiations
on the RIP. 	The 	District did not 	respond. 	Sandoval 	again
wrote 	to Peppin 	and 	reiterated 	the 	request 	to negotiate 	the
RIP. 	On March 30, 	in reply to Sandoval's 	letter, 	Peppin
indicated 	that 	the 	request 	to open negotiations 	on 	the 	RIP had
$5,000.00 per year; 	may do this 	for 	five 	(5)
consecutive years; 	may terminate at any
time, 	but 	once 	terminated cannot be placed
back 	on the program; 	days 	to work will be by
mutual 	agreement 	and agreed 	to prior 	to 	each
fiscal year; 	no travel 	expenses 	or other
expenses 	will be 	covered 	unless 	actually
required of assignment; 	District may
terminate 	if participant 	fails 	to carry out
obligations.
5Article 	XXVII 	- 	Conclusiveness 	of 	Agreement
1. 	During 	the 	term of 	this 	Agreement,
except 	for 	the 	exceptions 	noted within
Articles 	of 	this Agreement, 	the Association
and 	the 	District 	expressly waive 	and
relinquish 	the 	right 	to meet 	and negotiate
and 	agree 	that 	neither 	party shall 	be
obligated 	to 	meet 	and 	negotiate 	with 	respect
to any subject 	or 	matter 	whether 	referred 	to
or covered 	in this Agreement or not, 	even
though 	each 	subject 	or 	matter 	may not have
been within 	the 	knowledge 	or 	contemplation
of 	either 	or both 	the 	District 	or 	the
Association 	at 	the 	time 	they met 	and
negotiated 	on and 	executed 	this 	Agreement,
even 	though such subjects 	or 	matters 	were
proposed 	and 	later 	withdrawn.
2. 	Salary, 	fringe benefits, 	plus one 	(1)
additional 	individual 	contract 	Article 	may
be 	reopened by either 	party 	for 	the 	1983-84
contract year. 	Other 	items 	may be 	reopened
by mutual 	agreement 	of both parties.
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6
been discussed 	with 	the 	board 	of 	education and 	the board
declined 	to open negotiations 	on 	that 	item.
On May 1, 	the Association exercised a 	1982-84 collective
bargaining agreement 	option 	to reopen 	two contract 	items. 	The
items 	proposed by 	the Association did not 	include 	the 	RIP.
After 	District 	administrators 	received 	inquiries 	from 	the
certificated 	employees 	asking 	why 	they had 	not 	been 	offered 	the
early retirement 	benefit 	as 	the 	classified 	employees 	had been/
the 	District 	sent 	each 	certificated 	employee 	a written
explanation.6
6 The 	letter 	read as 	follows:
ALHAMBRA 	SCHOOL 	DISTRICT
May 9, 	1983
TO ALL BARGAINING UNIT MEMBERS
What 	is 	the Story about 	the
Retirement 	Incentive 	Program 	(RIP)?
I. 	The district developed 	the 	RIP as
part of 	the 	effort 	to reduce 	the
budget. 	In addition to saving money,
retirements 	reduce 	the need 	for
layoff 	of 	existing 	staff.
II. 	In early February 1983, 	the district
offered 	the 	RIP 	to ATA and 	CSEA,
asking 	that 	it be 	accepted 	without
negotiation. 	A written draft of 	the
proposal 	was 	presented 	and 	an early
reply requested. 	The proposal 	was
scheduled 	for 	the 	February 	15 	Board
agenda.
III. 	Prior 	to February 15, 	CSEA agreed to
waive 	its 	right 	to negotiate 	this
item and 	to accept 	the 	offer.
7
6
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Three 	issues 	are presented 	in this 	case. 	The 	first 	is
whether 	it 	is 	an unlawful 	refusal 	to bargain where: 	following
a 	tentative 	agreement, 	an 	employer 	makes 	a proposal 	conditioned
upon 	the 	exclusive 	representative's 	agreement 	to waive
bargaining on 	that proposal. 	The 	second 	issue 	is 	whether 	it 	is
unlawful 	to withdraw 	such 	a proposal 	when 	the 	exclusive
IV. 	On February 15, 	1983, 	the Board
approved 	first 	reading of 	the 	RIP
covering 	"Any 	employee 	of 	the
district. 	. 	., " although no response
had been 	received 	from ATA. 	Second
reading 	was 	scheduled 	for March 	1,
1983.
V. 	On February 28, 	1983, 	ATA notified
the 	district 	that 	it 	would not 	accept
the 	offer 	without 	negotiation.
VI. 	On March 1, 	1983, 	the Board approved
second reading 	of 	the 	RIP 	with
language 	amended 	to 	include 	only
"classified, Management, 	confidential
employees. . . ."
VII. 	On March 18, 	1983, 	ATA asked to
negotiate 	the RIP.
VIII. 	On March 30, 	1983, 	the request to
negotiate 	the 	RIP 	with ATA was
declined 	by 	the 	Board 	of 	Education:
A. 	The 	district had 	stated 	initially
that 	it 	did not 	wish 	to negotiate
this 	item.
B. 	The 	RIP was 	offered 	to all
employees 	under 	the 	same 	conditions.
C. 	CSEA had 	exercised 	the 	collective
bargaining procedure 	of 	choosing 	not
to negotiate 	the matter.
Bruce H. 	Peppin
Superintendent
8

representative 	refuses 	to waive bargaining over 	the proposal.
The 	third 	issue 	is 	whether 	the May 9th 	letter 	constituted a
violation of 	the 	EERA. 	For 	the reasons 	discussed below, 	we
reverse 	the ALJ on all 	three 	issues.
DISCUSSION
Per 	Se 	Refusal 	to Bargain
The ALJ determined that 	the District's 	offer, 	conditioned
on 	the Association's 	waiver 	of bargaining over 	the proposal,
constituted a per 	se 	violation of 	the 	EERA. 	In 	finding a per
se violation, 	the ALJ relied on NLRB v. 	General 	Electric 	Co.
(2nd Cir. 	1969) 	418 F.2d 	736 	[72 LRRM 2530] 	and NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	We 	find that the ALJ was
incorrect 	in 	reaching 	this 	conclusion.
In Katz, 	supra, 	the employer made unilateral changes 	in
wages 	and 	conditions 	of 	employment 	without 	negotiating with 	the
exclusive representative. 	It was 	this 	unilateral 	change 	that
was 	a per 	se 	violation of 	the National 	Labor 	Relations 	Act
(NLRA). 	The adoption of 	the RIP for all employees 	except
certificated 	employees 	was 	not 	a change 	in 	the 	terms 	and
conditions 	of 	employment 	for 	the 	certificated employees. 	Past
and 	current 	collective bargaining 	agreements 	already 	contained
a RIP provision 	for 	certificated employees. 	Thus, 	the ALJ's
reliance on Katz 	is 	incorrect.
In General 	Electric, 	supra, 	there had been a long history
of 	employer 	animus 	directed 	toward 	the union. 	The employer
told 	the 	union of plans 	to unilaterally 	institute 	an 	insurance
99

plan 	for 	the employees. 	But, 	if the union objected, 	the
employer 	would not 	offer 	the 	insurance 	to 	the union members,
although 	it 	would make 	the plan available 	to all 	other
employees. 	The employer conduct, 	however, 	was not limited to
this 	"take-it-or-leave-it" 	offer. 	Instead, 	the employer
bypassed 	the 	exclusive 	representative 	by polling 	the 	employees
as 	to 	their wishes 	and 	formulated a plan which 	it 	then
attempted 	to 	force 	onto 	the exclusive 	representative. 	The
employer 	began 	an 	extensive publicity 	campaign designed 	to 	show
employees 	that 	the 	union could not 	win more benefits 	for 	them
than 	the 	employer was 	willing 	to offer. 	Despite 	the 	extent of
the employer's 	actions, 	neither 	the National 	Labor 	Relations
Board 	(NLRB) 	nor 	the circuit 	court 	found per se violations.
Instead, 	the 	employer's 	conduct 	was 	viewed under 	the 	"totality
of 	the 	circumstances" 	standard. 	By that 	standard, 	the NLRB and
circuit 	court 	found an overall 	failure 	to bargain 	in good 	faith.
Since 	the 	instant 	case does 	not 	involve a unilateral
change, 	but only an allegation of a 	failure to bargain 	in good
faith, 	we 	find 	that 	the 	District's 	conduct must be viewed under
the 	"totality" 	test, 	and not as 	a possible per se violation.
Looking at 	the 	events 	surrounding 	the 	District's 	offer 	in 	this
case, 	we 	conclude 	there was 	no bad 	faith by the District 	in
making its proposal.
First, 	the parties had 	just 	completed nearly 11 months 	of
negotiations, 	culminating 	in a tentative agreement. 	The
Association has 	not 	alleged 	that 	the 	employer's 	offer 	was 	part
10

of 	any continuing bad 	faith.
Second, 	the 	tentative 	agreement 	contained an early
retirement provision. 	Thus 	the 	employer previously recognized
its 	obligation to negotiate 	this 	subject.7	7
Third, 	there 	are no 	facts 	in the 	record 	that 	indicate 	the
employer 	"held back" 	this 	offer 	until 	a 	tentative agreement 	was
reached. 	Rather, 	the administrators 	made a determination that
the 	District 	could meet 	its 	financial 	need by offering 	the plan
to the classified 	employees. 	It was 	only after 	the plan was
presented 	to 	the board 	that 	the board 	decided 	the plan 	should
be offered 	to all 	employees.
Fourth, 	the 	District 	went 	directly to the exclusive
representative with 	its proposal. 	When 	the Association's 	agent
expressed 	some 	interest, 	the 	District 	included 	certificated
employees 	in the 	first reading of 	the policy. 	Later, 	when the
Association 	conveyed 	its 	rejection of 	the 	employer's
conditional 	offer, 	the 	District 	removed 	the 	certificated
employees 	from the 	second 	reading 	and adoption 	of 	the policy.
Thus, 	the 	District 	recognized 	the 	exclusive 	representative's
role 	in 	representing 	the 	certificated 	employees.
Fifth, 	the 	District 	justified 	the 	reason 	for not wanting 	to
negotiate 	the proposal: 	to be effective 	in meeting 	the
7 It 	is 	undisputed 	that 	retirement 	is 	a mandatory subject
of bargaining, 	including 	early retirement 	incentives. 	Indeed,
the 	parties 	had 	negotiated 	an 	early 	retirement 	incentive
provision 	in 	their previous 	collective bargaining agreements,
including 	the 	tentative agreement 	reached on January 27, 	1983.
11

District's 	financial needs, 	the policy had 	to be 	in place early
in the year 	in order 	to entice 	employees 	who otherwise might
not retire 	to retire at 	the end of 	that 	school year. 	In view
of 	the amount 	of 	time 	it had 	taken the parties 	to reach
tentative 	agreement 	on the 	contract, 	the 	required 	three-week
process 	under Association bylaws 	for 	ratification, 	and 	the
board's practice 	of 	requiring 	two readings 	of policies 	prior 	to
adoption, 	it 	is 	apparent 	this 	concern about 	the length of 	time
to negotiate 	the proposal 	was 	not 	unreasonable.
Given 	the 	totality of 	the 	circumstances 	in 	this 	case, 	we
conclude 	the 	District's 	offer 	did 	not 	evidence 	bad 	faith.
Withdrawal 	of 	Proposal
The second issue we address 	is 	whether 	the District, 	having
made 	its 	offer, 	can withdraw 	it 	and 	refuse 	to negotiate 	its
proposal. 	This 	case 	involves 	a question of 	first 	impression
for the Board. 	However, 	NLRB cases are instructive.8
According 	to NLRB decisions, 	the 	timing of 	an employer's
proposal 	is 	critical 	in determining whether 	a duty to bargain
exists. 	As 	discussed below, 	we 	also 	find 	timing to be a
critical 	factor 	in deciding 	if 	an unfair 	labor practice has
been 	committed.
The ALJ relied on a NLRB case, 	Equitable 	Life 	Insurance
Company and 	Insurance Agent's 	International 	Union 	(1961) 	133
BCases
12
Bcases 	involving 	the 	federal 	labor 	laws 	are persuasive
precedent 	in 	the 	interpretation 	of 	similarly worded 	California
labor relations 	statutes. 	(Fire 	Fighters 	Union v. 	City of
Vallejo 	(1974) 	12 Cal.3d 608 [116 Cal.Rptr. 	507]; 	Pajaro Valley
Unified School 	District 	(1978) 	PERB Decision No. 	51.)

NLRB 1675 	[49 LRRM 1070], 	for 	the proposition that an employer
who proposes 	a change 	in a 	contract 	term during 	the pendancy of
a 	collective 	bargaining 	agreement 	must 	negotiate 	over 	the
proposal 	upon 	the demand 	of 	the 	union. 	Subsequent 	to his
decision, 	however, 	the NLRB expressly overturned Equitable Life
in Connecticut Light and Power Co. 	(1984) 	271 NLRB No. 	124 	[116
LRRM 	1475].
In Connecticut Light and Power Co., 	supra, 	the NLRB held
that 	an employer had no duty to bargain over 	a proposal 	it 	made
during 	the 	term of 	the 	collective 	bargaining 	agreement,
regardless 	of 	whether 	the proposal 	was 	conditioned 	on 	the
union's 	accepting 	it 	without bargaining. 	The NLRB rationale 	is
that 	both parties 	had 	the 	same 	right 	to refuse 	to negotiate
over proposals 	to modify an existing contract. 	Because 	the
union was 	not 	required 	to negotiate 	over 	an 	employer's 	proposal
to modify an existing contract, 	the 	employer 	likewise 	did not
incur 	a bargaining 	obligation by merely making a proposal 	and,
therefore, 	the employer was 	free 	to have 	a change of mind and
withdraw 	the proposal.
While 	the 	instant 	case 	does 	not 	involve 	a mid-term contract
proposal, 	we 	find 	the policy considerations 	underlying 	the
NLRB's 	decision 	in Connecticut 	Light 	and 	Power 	to be
instructive. 	In the 	instant 	case, 	the District's proposal 	to
provide 	an early retirement 	incentive 	to 	the 	certificated
employees9 came 	after 	a 	tentative 	agreement 	on 	a 	successor
9 We note 	that 	initially 	the 	RIP 	was 	to be 	offered 	only to
13

contract had been 	reached, 	but prior 	to 	contract 	ratification.
The 	timing 	in this 	case 	is 	more analogous 	to a proposed change
mid-term 	rather 	than a proposal 	made prior 	to negotiations 	or
during 	the 	contract 	bargaining process.
Absent good 	cause, 	once a 	tentative agreement 	is 	reached,
there 	is 	an 	implication 	that both parties' 	negotiators 	will
take 	the 	agreement 	to 	their 	respective principals 	in a good
faith effort 	to secure ratification. 	(NLRB v. 	Electra-Food
Machinery 	(9th Cir. 	1980) 	621 F.2d 956 	[104 LRRM 2806]; 	H. 	J.
Heinz Company v. 	NLRB 	(1941) 	311 U.S. 	514 [7 LRRM 291].) 	While
a 	tentative agreement 	does 	not bind either 	side, 	it does 	imply
that 	the negotiators 	will 	not 	"torpedo" 	the proposed collective
bargaining 	agreement 	or 	undermine 	the process 	that has
occurred. 	Absent some extenuating circumstance, 	such as 	a
discovered 	illegality of a 	contract 	term, 	either 	side 	can
lawfully 	refuse 	to 	reopen negotiations 	pending
ratification.10	in (See, 	e.g., 	Wichita 	Eagle and Beacon
Publishing Company, 	Inc. 	(1976) 	222 NLRB 742 	[91 LRRM 1227].)
the 	classified 	employees. 	No 	evidence was 	presented 	to
indicate 	an unlawful 	motive 	caused 	this 	limitation. 	Rather,
the 	District 	stated 	that 	substantial 	savings 	would 	occur 	if
enough classified employees 	retired early. 	Also, 	the
certificated 	employees 	already had 	an 	early 	retirement
incentive provision 	in 	their 	collective 	bargaining 	agreement,
albeit 	that 	its 	terms 	were different 	than 	those of 	the proposed
RIP. 	The 	school board's 	desire 	to 	include all 	District
employees 	does 	not 	show an 	intent 	to violate 	the Association's
rights.
10we 	note, 	however, 	that where there has been a good
faith 	rejection of 	the 	tentative 	agreement by the principals,
the duty to bargain 	is 	also revived.
14
,n

We 	find 	that 	an 	employer's 	proposal 	made 	after 	a 	tentative
agreement has 	been 	reached 	does 	not 	by 	itself 	reopen
negotiations 	on 	that 	agreement. 	Here, 	the Association could
properly refuse 	to negotiate 	the 	District's 	proposal 	made
during the ratification process. 	Likewise, 	once 	the offer 	was
made, 	the 	District 	could withdraw 	it prior 	to the Association's
acceptance, 	or 	following 	its 	rejection, 	without violating the
duty to bargain 	in good 	faith. 	We 	do acknowledge 	the
Association members' 	right to reject, 	in good faith, 	the
tentative 	agreement 	and 	reopen 	the whole agreement, 	including
early retirement 	incentives. 	This, 	however, 	did not occur.
In 	finding 	that 	the 	District 	did not 	violate 	the 	EERA by
making and withdrawing 	the proposal 	to 	the Association, 	we need
not 	decide 	whether 	the Association 	waived 	a bargaining 	right 	by
submitting 	the 	tentative 	agreement 	to 	its 	membership 	for
ratification. 	We 	reject 	the ALJ's 	finding 	of a per 	se 	refusal
to bargain.
District's 	Communication 	to 	the 	Employees
With 	respect 	to 	the May 	9th 	District 	communication 	to 	the
certificated 	employees, 	we 	reject 	the ALJ's 	conclusions 	that
the 	letter was 	a 	violation of 	the 	EERA.
PERB has 	adopted 	the 	NLRA 	8(c)11 free 	speech 	standard.
(Rio Hondo Community College 	District 	(1980) 	PERB Decision No.
11NLRA 	is 	codified at 	29 U.S.C, 	sections 	151-168,
Section 8(c) 	states:
15

128.) 	In this 	decision, 	PERB held an employer has 	a protected
right 	to 	communicate 	with 	employees 	on 	employment-related
matters, 	so long as 	that 	communication does not run afoul of
the NLRA 8(c) 	standard or 	constitute 	an 	intent 	or 	attempt 	to
bypass 	the exclusive representative. 	In Rio Hondo, 	supra, 	the
Board 	found no 	violation where 	the 	employer 	wrote 	to 	all
faculty members 	urging 	them to 	reconsider 	their 	efforts 	in a
lawsuit 	which 	sought 	reclassification 	and 	compensation 	changes
to put 	the part-time 	faculty members 	on an equal but pro 	rata
footing with 	full-time 	faculty members. 	In 	another
communication examined by 	the 	Board, 	the 	employer 	urged 	the
Association membership 	to get 	their 	leaders 	turned 	around 	and
away 	from the 	course of an aggressive, 	antagonistic 	approach 	to
labor 	relations.
Where 	an employer 	made an accurate 	communication 	(a
discussion of 	what had occurred 	in 	the 	collective bargaining)
to employees 	during negotiations, 	the Board 	found no violation
of 	EERA. 	(Muroc 	Unified 	School 	District 	(1978) 	PERB Decision
No. 	80.) 	In similar cases, 	the Board has held that to show a
violation of section 	(a) 	based on employer speech, 	it must
first be shown the 	conduct 	contains 	reprisals, 	discrimination,
The expressing of any views, 	argument, 	or
opinion, 	or 	the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual 	form, 	shall not 	constitute or be
evidence 	of 	an 	unfair 	labor 	practice 	under
any of 	the provisions 	of 	this Act, 	if such
expression 	contains 	no 	threat 	of 	reprisal 	or
force or promise of benefit.
16

threats, 	interference or coercion. 	(San Francisco Unified
School District 	(1983) 	PERB Decision No. 	317; 	Clovis Unified
School District 	(1978) 	PERB Decision No. 	61; 	and Regents of
University of 	California 	(1983) 	PERB Decision No. 	366-H.)
In the present 	case, 	stimulated by questions 	from
certificated 	employees, 	the 	employer 	responded by setting 	forth
the 	factual 	chronology of 	events 	which 	led 	to the 	exclusion of
certificated 	employees 	from the 	RIP. 	There were no allegations
that 	the communication contained, 	on its 	face, 	any threat of
reprisal or force, 	or promise of benefit. 	In fact, 	there is no
allegation 	the 	employer 	misrepresented 	the 	facts 	through 	the
communication. 	Thus, 	the only other way this 	communication
would not be protected 	is 	if 	it 	is 	found 	that 	it was 	intended
to bypass 	the 	exclusive 	representative 	and 	undermine 	the
exclusive 	representative's 	position with 	the 	unit 	members.
There 	are 	no 	facts 	showing 	that 	the 	employer 	intended 	to
undermine 	the union. 	Rather, 	the employer had 	engaged 	in good
faith 	negotiations 	for 	approximately 	11 	months 	and 	reached a
tentative 	agreement 	which 	the board 	subsequently adopted. 	The
board 	desired 	to offer 	a benefit 	to 	certificated 	employees 	and
communicated that offer to the union, 	not 	the employees. 	There
was 	no 	intent by 	the 	employer 	to bypass 	the 	union nor 	efforts
to publicize 	the 	employer's 	intended 	action.
Contrary to the ALJ's 	assertion, 	the communication to the
employees 	was 	not 	"gratuitous," 	since 	the 	uncontradicted
testimony of 	the 	District 	witnesses 	was 	that 	it was 	in response
17

to numerous 	questions 	raised by 	the 	certificated 	employees.
The 	employer 	did not 	communicate 	to all 	employees 	regarding 	the
RIP as soon as 	the school board action was 	final. 	Rather, 	a
period of 	more 	than 	two months 	had passed between 	the board's
final 	adoption of 	the 	retirement 	incentive 	for 	the 	remainder 	of
the employees 	and 	the 	employer's 	communication 	to 	the
certificated bargaining 	unit 	employees. 	The 	Association had
sufficient 	time 	to 	inform members 	of 	the 	facts 	concerning 	the
RIP. 	The Association's 	failure 	to do so does not prevent 	the
District 	from communicating 	to 	the 	employees 	in a 	factual 	and
non-coercive 	manner. 	We do not 	find 	that 	the 	employer 	intended
to bypass 	the 	exclusive 	representative 	nor 	to undermine 	its
position by 	the May 9 	communication 	to 	the 	certificated
employees.
ORDER
Based on 	the 	entire 	record, 	the 	Board 	ORDERS 	that 	the
unfair 	practice 	charge 	and 	accompanying 	complaint 	filed by 	the
Alhambra 	Teachers 	Association, 	CTA/NEA against 	the Alhambra
City and High 	School 	Districts 	is 	DISMISSED.
Member 	Porter 	joined 	in 	this 	Decision.
Member Burt's 	dissenting opinion begins 	on page 	19.
18

Member Burt, 	dissenting: 	Unlike 	the majority, 	I 	find 	that
the District violated EERA section 3543.5(a). 	(b) 	and 	(c) 	by
conditioning 	its 	offer 	of 	an 	early 	retirement 	benefit 	for
certificated 	employees 	upon 	the 	exclusive 	representative's
waiving 	its 	bargaining rights 	over 	the 	proposal. 	The District
had 	a 	duty to 	bargain 	in 	these 	circumstances 	and 	it violated
the EERA by refusing 	to do 	so.
The 	majority's 	reliance 	on 	the National 	Labor 	Relations
Board decision 	in Connecticut Light and Power Co. 	(1984) 	271
NLRB 	124 	[116 	LRRM 1475] 	is misplaced. 	That decision was 	based
on 	statutory 	language 	contained 	in 	section 8(d) 	of 	the National
Labor Relations Act 	(NLRA).1l 	No 	similar 	language 	is 	present
in the EERA. 	Connecticut Light and Power, 	supra, 	overturned
the NLRB's 	long-standing doctrine 	set 	forth 	in Equitable 	Life
Insurance 	Company 	and 	Insurance 	Agent's 	International 	Union
(1961) 	133 NLRB 	1675 	[49 	LRRM 1070] 	that an employer who
1Section 	8(d) 	of 	the NLRA sets 	forth 	the 	duty of 	the
employer 	and 	employee 	representative 	to 	meet 	and 	confer 	in 	good
faith, 	with the 	proviso 	that 	neither 	party shall 	terminate 	or
modify 	a 	contract 	without 	meeting 	notification 	and 	negotiating
requirements, with 	the 	further 	proviso 	(relied 	on 	in
Connecticut Light and Power) 	that:
. 	. 	. 	the duties so 	imposed shall not be
construed 	as 	requiring 	either 	party 	to
discuss 	or 	agree 	to 	any modifications 	of 	the
terms 	and 	conditions 	contained 	in a 	contract
for 	a 	fixed 	period, 	if 	such modification 	is
to 	become 	effective 	before 	such 	terms 	and
conditions 	can be 	reopened 	under 	the
provisions 	of 	the contract.
19

proposes 	a 	change 	in a 	contract 	term during 	the 	pendancy of 	a
collective 	bargaining 	agreement 	has 	a 	duty 	to 	bargain 	over 	that
proposal 	upon the 	demand 	of 	the union. 	The 	employer 	in
Equitable, 	supra, 	offered 	to 	increase 	the commission rates 	for
a 	unit 	of 	debit 	agents 	during 	the 	pendancy of 	a 	collective
bargaining agreement. 	The union wanted 	to 	negotiate 	over 	the
increase, 	but 	the 	employer 	refused. 	The NLRB adopted 	the 	trial
examiner's decision, 	saying that:
. 	. 	. 	The record establishes the fact that
the 	respondent 	refused 	to 	meet 	to 	discuss
its 	own 	proposal 	and 	thereby 	created 	a 	"take
it or 	leave" 	(sic) 	situation. 	This we find
is a refusal to bargain. 	. 	. 	. Equitable.
supra, 	at 1676.
The NLRB 	based 	its 	decision 	in Equitable 	on 	the 	rationale
that 	the 	language 	in 	section 8(d) 	of 	the NLRA was 	intended 	to
preserve 	the 	status 	quo and 	thus 	could 	be used 	as 	a 	shield 	but
not as 	a 	sword; 	if 	one party proposed a mid-term change, 	the
other 	party 	could 	decline 	to 	bargain over 	it 	but 	the 	party
making 	the 	proposal 	could 	not.
I 	find 	the 	rationale 	in Equitable 	considerably more
persuasive 	than 	that 	in Connecticut 	Light 	and Power, 	supra.
Even 	if 	I 	were 	to 	agree with the 	rationale 	in Connecticut Light
and Power, 	however, 	I 	do not find 	it applicable 	in the 	instant
case 	because 	it 	involved 	a 	contract 	proposal 	made 	during 	the
life 	of 	an existing collective 	bargaining agreement. 	Here, 	the
District 	made 	its 	proposal 	before 	the 	contract was 	ratified.
20

The majority writes 	that, 	once 	a 	tentative 	agreement 	on a
contract 	is 	reached, 	there 	is 	an implication that 	both parties'
negotiators will 	take 	the 	agreement 	to 	their 	principals 	in a
good-faith effort 	to 	secure 	ratification, 	and 	that a 	tentative
agreement 	also 	implies 	that 	the 	negotiators will 	not 	"torpedo"
the proposed collective bargaining agreement. 	However, 	by-
holding 	that 	an 	employer 	can make 	a 	proposal 	prior 	to
ratification of 	a 	contract 	and 	then decline 	to 	bargain over 	it,
the 	majority 	actually makes 	the 	collective 	bargaining 	process
more 	vulnerable 	to 	such pre-ratification 	torpedos.
EERA 	section 	3543.32 imposes 	a 	duty 	on 	public 	school
employers 	to 	meet 	and 	negotiate 	with 	employee 	organizations
over 	matters within 	the 	scope 	of 	representation. 	The 	duty to
bargain 	should 	not 	be 	extinguished 	prior 	to 	ratification when
the 	party refusing 	to 	bargain made 	the 	proposal. 	The
majority's 	holding will 	enable 	a 	party 	to withhold 	contract
proposals 	it 	does 	not wish 	to 	bargain over 	until 	tentative
agreement 	is 	reached 	on the 	rest 	of 	the 	contract. 	It 	can then
2Section 	3543.3 	states:
A public 	school 	employer 	or 	such
representatives 	as 	it may designate who may,
but need not be, 	subject 	to either
certification 	requirements 	or requirements
for 	classified 	employees 	set 	forth 	in the
Education Code, 	shall 	meet 	and 	negotiate
with and 	only with 	representatives 	of
appropriate 	units 	upon 	request with 	regard
to matters within the 	scope 	of
representation.
21

make 	such proposals with a 	"take-it 	or 	leave-it" 	posture,
secure 	in 	the 	knowledge 	that 	if 	the 	other 	party demands
bargaining, 	it may refuse.
It 	is 	just 	such unilateral, 	take-it or 	leave-it contract
proposals 	that 	the decisions 	in Equitable, 	supra, 	and NLRB v.
General Electric 	Company 	(2nd 	Cir. 	1969) 	418 F.2d 	736 	[72 	LRRM
2530] 	were meant 	to 	prevent. 	The Board majority correctly
cites General Electric, 	supra, 	as 	holding that 	the employer 	had
refused 	to 	bargain under 	a 	totality of 	the 	circumstances 	test
based 	on 	the 	company's 	use 	of 	the 	"Boulwarism" 	approach as 	a
bargaining 	tactic. 	However, 	the 	court 	also 	addressed 	the
employer's 	offer 	to 	unilaterally 	institute 	an 	insurance 	plan
for 	its 	employees provided 	that, 	if 	the union objected, 	it
would 	not 	institute 	the 	plan for 	union members 	although 	it
would 	for 	the 	other 	employees. 	The 	union demanded 	negotiations
over 	the 	plan and 	the 	employer 	refused. 	The 	court 	found 	that
this was 	a 	refusal 	to 	bargain 	in violation of 	section
8(a)(5)3 of the NLRA, 	stating:
In the 	context of 	this 	case, 	where 	the
Company's 	tactics 	seemed 	so 	clearly designed
3NLRA section 8(a) 	reads, 	in pertinent part:
Section 8(a) 	It 	shall 	be an unfair 	labor
practice 	for 	an employer--
(5) 	to 	refuse 	to 	bargain collectively with
the 	representatives 	of 	his 	employees,
subject to the provisions of 	section 9(a).
22

to 	show the 	employees 	that 	the Union could
win 	them 	nothing 	more 	than 	the 	Company was
prepared 	to offer, 	it 	is 	even more apparent
that 	a 	unilateral 	offer 	-- 	over which 	the
Union may not 	bargain 	-- 	diminishes 	the
rewards 	and 	the 	importance 	of 	the 	bargaining
at 	the end of 	the contract period. 	Thus,
the Union's 	ability to 	function as 	a
bargaining 	representative 	is 	seriously
impaired. 	Indeed, 	such conduct amounts 	to a
declaration 	on 	the 	part 	of 	the 	Company 	that
not 	only the Union, 	but 	the process 	of
collective 	bargaining 	itself 	may 	be
dispensed with. 	. 	. 	. 	General Electric.
supra. 	(Emphasis 	added.)
As in General Electric, 	supra, 	and Equitable, 	supra, 	the
effect 	of 	the District's 	take-it 	or 	leave-it 	offer 	in the
instant 	case 	hampers 	the Association's 	ability 	to 	represent 	and
bargain for 	its 	members, 	regardless 	of whether 	the 	offer was
made 	in good 	faith or 	not. 	The Association was 	placed 	in a
no-win situation: 	if 	it agrees 	to waive 	its 	bargaining rights
and 	accept 	the 	offer, 	its 	position as 	employee 	representative
is undermined; 	if, 	however, 	it demands to bargain over the
offer, 	then 	the 	employer 	can withdraw the 	offer 	and 	blame 	the
Association for 	the 	employees 	not 	getting 	the 	benefit, 	despite
the Association's 	statutory 	right 	to 	bargain 	over 	terms 	and
conditions 	of 	employment.
In the 	context 	of 	the 	instant 	case, 	where 	the parties 	had
negotiated 	for 	11 	months 	and 	reached 	a 	tentative 	agreement 	on a
contract, 	the 	employer's 	take-it 	or 	leave-it offer made 	less
than a 	month 	before 	the 	ratification vote 	on 	the 	agreement was
especially oppressive 	for 	the Association. 	The District 	had 	a
23

duty 	to 	bargain 	over 	its 	proposal 	under 	the EERA and 	it
absolutely 	refused 	to 	bargain upon 	the 	demand 	of 	the
Association. 	I 	therefore 	dissent 	from the majority's 	opinion
that 	the District 	did 	not 	violate 	the EERA 	by 	refusing 	to
bargain 	over 	its 	early retirement 	proposal.
24