Lake Elsinore School District (PERB 0696E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELSINORE 	VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA
Charging 	Party,
v.
LAKE 	ELSINORE 	SCHOOL DISTRICT
Respondent.
Case No. 	LA-CE-1968
PERB Decision No. 	696
September 7, 	1988
Appearances; 	A. 	Eugene Huguenin Jr., 	Attorney, 	for Elsinore
Valley Education Association, 	CTA/NEA; 	Parham & Associates, 	Inc.
by 	James 	C. 	Whitlock 	for 	the 	Lake 	Elsinore 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on appeals by the 	Charging
Party, 	Elsinore Valley Education Association, 	CTA/NEA 	(EVEA)
and Respondent, 	Lake Elsinore School 	District 	(District). 	The
administrative law 	judge 	(ALJ) 	found 	that 	the 	District 	violated
sections 3543.5(c) 	and, 	derivatively, 	(a) 	and 	(b) of the
Educational 	Employment 	Relations 	Act 	(EERA)1 by unilaterally
1 The 	Educational 	Employment 	Relations Act 	(EERA) 	is
codified at Government 	Code 	sections 	3540, 	et 	seq. 	Unless
otherwise 	indicated, 	all 	statutory 	references herein are 	to 	the
Government Code. 	Sections 3543.5(a), 	(b), 	and (c) state:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
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adopting 	and 	implementing 	the 	California 	Mentor 	Teacher 	Program
prior 	to 	completion 	of bargaining 	with 	Charging 	Party 	over 	the
subject. 	We affirm 	in part 	and 	reverse 	in part 	the 	decision of
the ALJ 	for 	the 	reasons 	set 	forth herein.
FACTUAL AND 	PROCEDURAL 	SUMMARY
The 	Hughes-Hart 	Educational 	Reform Act 	of 	1983
(SB 	8 1 3 ) 2 established 	a California Mentor 	Teacher 	Program
which 	authorized 	school 	districts 	to 	designate 	up 	to 	five
percent 	of 	their 	certificated 	classroom 	teachers 	as 	mentors.
The 	amount of 	the annual 	stipend 	is 	no less 	than 	$4,000 	salary
in addition 	to 	the 	regular 	salary 	for 	a 	full 	school year 	of
service 	as 	a mentor 	teacher 	. 	(Education 	Code 	section
44494(a)) 	The duties 	and 	responsibilities 	of mentors 	are 	set
forth 	generally 	in 	Education 	Code 	section 	44496 	and 	Title 	5,
California Administrative 	Code, 	section 	11256.
District 	participation 	in 	the 	Mentor 	Teacher 	Program
is optional. 	Education Code section 44494(d) 	makes 	a
district's 	decision 	to participate 	nonbargainable.
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.
2Article 4, 	sections 	44490-44497 	of 	the Education Code,
N	2

. 	. 	. 	The subject of participation by a
school 	district 	or 	an 	individual
certificated 	classroom 	teacher 	in 	a Mentor
Teacher 	Program 	shall 	not 	be 	included 	within
the 	scope 	of 	representation 	in 	collective
bargaining 	among 	a public 	school 	employer
and 	eligible 	employee 	organizations.
State 	Superintendent 	of 	Public 	Instruction Bill Honig, 	issued
an 	advisory memo dated November 	11, 	1983 	that provided 	school
district 	superintendents 	with 	information 	about 	State 	financing
of 	the 	Mentor 	Teacher 	Program 	and 	recommendations 	for
programmatic 	designs 	of 	individual 	district 	mentor 	teacher
programs. 	Districts 	who wished 	to participate 	during 	the 	1983-84
school 	year 	were 	required 	to 	file 	a 	noncommital 	letter 	of 	intent
by December 	15, 	1983. 	The advisory memo 	further 	indicated 	that
those 	districts 	who 	elected 	not 	to participate 	during 	the 	1983-84
school 	year 	would be 	able 	to participate 	in 	subsequent years 	only
if 	additional 	funds 	were 	appropriated by 	the 	Legislature.
On December 	7, 	1983, 	an 	Instructional 	Council meeting was
held 	where 	it 	was 	announced 	that 	the Mentor 	Teacher 	Program would
be 	discussed 	at 	the 	next 	meeting. 	Members 	were 	invited 	to 	read
Honig"s 	advisory memo 	and be 	prepared 	to 	"brainstorm" 	ideas
regarding 	program 	implementation. 	The 	minutes 	from 	the meeting
quoted 	District 	Superintendent 	Ronald 	Flora 	as 	saying 	that 	the
negotiable 	areas 	of 	the Mentor 	Teacher 	Program 	would be
negotiated 	with 	EVEA.
On January 30, 	1984 	the 	State 	Department 	of 	Education 	issued
a 	memo 	to 	county 	and 	district 	superintendents 	which 	established
w	3

March 	15, 	1984 	as 	the 	deadline 	to 	submit 	applications 	for
participation 	in 	the 	California Mentor 	Teacher 	Program 	during 	the
1983-84 	school 	year. 	The memo 	required 	that 	the 	application
contain 	the 	following 	information:
A 	resolution 	of 	participation 	from 	the
district 	governing board 	including 	evidence
of 	the board's 	having 	considered parents,
pupils, 	or other representatives 	in the
selection process 	and 	a brief 	outline 	of 	the
goals, 	purposes, 	and planned operation of
the 	district's 	mentor 	program 	(see 	attached
proposed 	Administrative 	Code 	regulation,
Section 	11250(a)). 	This 	should be 	a very
brief 	description of 	district plans 	for
implementing 	the program, 	and 	should 	include
potential 	duties 	and 	responsibilities 	of
mentor 	teachers. 	(See 	enclosed 	suggested
form.)
An assurance page, 	attesting 	to district
apportionment 	of 	mentor 	stipends 	and
administrative 	costs 	as provided 	in 	SB
813/1983. 	(Form enclosed.)
The 	memo 	further 	urged 	the 	District 	to 	use 	the 	then-proposed
Title 	5 	regulations 	in the adoption of 	local practices 	for 	the
program 	implementation.
Some 	time prior 	to January 17, 	1984, 	Flora advised Denise
Thomas, 	EVEA President, 	of 	the 	District's 	desire 	to meet 	and 	"set
parameters" 	for 	the program. 	Thomas 	replied 	that 	discussions
regarding 	the 	program were 	negotiable 	items 	and 	should be 	referred
to 	the bargaining 	team.
On January 	18, 	1984 Flora addressed 	a memo 	to Judy
Stewart-Monceaux, 	Chairperson of 	the 	EVEA negotiating 	team,
requesting 	a meeting 	to discuss 	the 	"parameters" 	of 	the program.
Monceaux 	responded by memo dated 	January 	24, 	1984, 	and 	stated 	that
44

since most 	aspects 	of 	the program were negotiable, 	the 	District
should 	formulate 	and 	submit 	specific 	proposals 	through 	the 	statutory
public 	notice process 	prior 	to 	the 	commencement of 	negotiations.
Flora 	replied by letter 	dated January 	25, 	1984, 	that 	the 	District's
obligation 	to bargain with 	respect 	to 	the 	implementation of 	the
program was 	unclear 	and 	that his 	request 	to meet 	was 	an 	attempt 	to
involve 	EVEA 	in 	the 	formulation of 	the program.
The Mentor 	Teacher 	Program was 	raised 	at 	the 	February 	1, 	1984
Instructional 	Council 	meeting. 	An 	unknown 	individual 	objected 	to
the 	propriety 	of 	discussing 	the 	program 	and 	there 	was 	no 	further
discussion on 	the matter.
On February 	2, 	1984 Flora 	announced by a memo 	to principals,
learning 	specialists 	and 	Thomas 	that a 	February 	8, 	1984 meeting was
scheduled 	to 	formulate procedures 	for 	the 	development 	of 	a 	spring
1984 Mentor 	Teacher 	Program. 	Thomas 	telephoned 	Flora 	and 	indicated
that 	any discussion 	regarding 	implementation 	should be 	held 	at 	the
bargaining 	table. 	On 	February 	7, 	1984 	Flora 	issued a memo 	to
principals 	which 	specified 	that 	the 	purpose 	of 	the 	February 	8, 	1984
meeting was 	to discuss 	a 	spring pilot 	utilization of 	mentor 	teachers
and 	reminded 	them of 	the March 	15, 	1984 application deadline. 	The
memo 	stated 	that 	teachers 	were 	invited 	to 	attend and 	give 	input 	in
"formulating what 	our 	program 	might 	be."
Flora 	advised 	Thomas by letter dated 	February 	8, 	1984 of 	the
receipt 	of 	additional 	regulations 	from 	the 	state. 	Flora proposed 	to
negotiate 	issues 	regarding 	the 	Mentor 	Teacher 	Program with 	EVEA
between February 22 	- 	24.
UnT
	5

On 	February 8, 	1984 	the 	EVEA grievance 	team members 	circulated a
letter 	to 	all 	teachers 	advising 	them not 	to 	attend 	the 	February 	8
meeting.
Flora mailed 	Thomas 	a letter 	dated 	February 	14, 	1984 	along with
a draft 	copy of 	ideas 	(resolution) 	that were developed at 	the
February 8 meeting. 	In 	the 	letter, 	Flora 	advised 	that 	the
resolution would be 	presented 	to 	the board 	of 	trustees 	as
information 	only.
The 	regular 	District board 	of 	trustees 	meeting 	was 	held 	on
February 	16, 	1984 	and 	the proposed 	resolution 	concerning 	the 	Mentor
Teacher 	Program was 	presented. 	The public 	presentation 	of 	the
proposed 	resolution was held February 17, 	1984. 	On March 	1, 	1984
the 	District board 	adopted 	Resolution 	1983-84-09, 	but postponed
action 	on 	the 	plan 	to 	consider 	comments 	from 	the public.3
The parties met on March 1, 	5, 	and 	15. 	There was disagreement
regarding 	the 	negotiability of 	various 	aspects 	of 	the Mentor 	Teacher
Program. 	The parties met 	informally on March 16, 	1984. 	The
District 	proposed 	to bargain 	only over 	the 	stipend paid 	to mentor
teachers. 	EVEA sought additional bargaining 	regarding: 	the
procedure 	for 	selecting members 	of 	the 	mentor 	selection 	committee;
3Member 	Craib, 	in his 	concurrence 	and 	dissent 	asserts 	that 	the
District 	implemented 	the 	Mentor 	Teacher 	Program 	and 	partially 	quotes
the March 	1 	resolution. 	We believe 	that 	implementation 	is
conditional 	upon 	"appropriate 	funding" 	and 	note 	that had 	the
paragraph been quoted completely, 	it would state: 	"NOW, 	THEREFORE,
BE 	IT RESOLVED that 	the Superintendent 	is 	directed 	to 	implement 	the
mentor 	teacher 	program pursuant 	to 	Education 	Code 	Section 	44491 	and
appropriate 	funding, 	beginning 	the 	second 	semester 	of 	1983-84."
(Emphasis added. ) 	(Resp. Exh. 9.)
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66

release 	time 	for 	committee members; 	mentor 	committee procedures 	for
operations, 	classroom assignments, 	and length of appointment; 	and
the 	scope 	of 	the duties 	and 	responsibilities 	of mentor 	teachers. 	No
overall 	agreement 	was 	reached 	on any of 	these 	topics 	and 	there 	was
no declaration 	of 	impasse.
On March 	8, 	1984 	the 	District board met 	and 	approved 	the 	amended
resolution 	for 	implementing 	the Mentor 	Teacher 	Program. 	Both 	the
original 	resolution 	and 	amended 	resolution 	referenced 	aspects 	of 	the
program which 	were 	subject 	to 	negotiations 	with 	EVEA.
On March 	15, 	1984, 	Flora 	sent 	a memo to all 	staff 	informing them
that 	the 	Board 	of 	Trustees 	adopted 	a 	resolution 	to participate 	in
the Mentor 	Teacher 	Program 	for 	Spring 	1984. 	The memo outlined plans
for 	nominating 	and 	electing 	the 	mentor 	teacher 	selection 	committee.
On March 	30, 	1984 an election was held 	for 	the mentor 	teacher
selection 	committee. 	The 	District 	required 	a 	60-percent 	teacher
vote; 	however, 	since only 57 percent voted, 	no committee was 	formed.
The 	District 	received 	state 	funding 	for 	the 	Mentor 	Teacher
Program 	in April 	1984. 	Upon 	receipt 	Flora 	contacted EVEA to 	see 	if
an 	agreement 	could be 	reached 	regarding 	implementation. 	There 	is 	no
evidence 	that 	the 	parties 	met 	or 	reached 	an 	agreement 	or 	that 	the
program 	was 	ever 	implemented.
On April 	23, 	1984, 	Charging Party filed an unfair practice
charge against the District. 	The charge, 	as amended June 29, 	1984,
alleged that Respondent violated sections 3543.5(a), 	(b), 	and 	(c) 	of
the 	EERA.
V
7

On August 	2, 	1984 	the PERB general 	counsel 	issued a complaint
which 	alleged 	that 	Respondent 	violated 	subsection 	3543.5(c) 	by
attempting 	the bypass 	EVEA and 	deal 	directly with 	employees 	and by
unilaterally 	adopting 	and 	commencing 	implementation of 	a 	Mentor
Teacher 	Program prior 	to 	the 	completion 	of 	negotiations 	or
exhaustion of 	the 	impasse procedure. 	The 	complaint 	further 	alleged
that 	the 	District's 	conduct 	in both 	instances 	constituted 	derivative
violations of sections 3543.5(a) 	and 	(b).
PROPOSED 	DECISION
In 	determining 	the 	negotiability of 	the 	Mentor 	Teacher 	Program
pursuant 	to section 	3543.2(a), 	the ALJ 	relied on San Mateo City
School 	District 	(1980) 	PERB Decision No. 	129 	and 	the 	relevant
statutory 	sections 	set 	forth 	in Education Code 	sections 	44490 	-
44497. 	The ALJ 	concluded 	that 	Education 	Code 	section 	44494(d)
precluded 	negotiations 	on 	the 	subject 	of participation. 	However,
the ALJ pointed 	out 	that 	since 	the 	relevant 	Education 	Code 	sections
contain both 	enumerated 	and 	nonenumerated 	subjects, 	certain 	aspects
of 	the 	program 	that 	were 	discussed 	during 	the March 	1984
negotiations 	are within 	the 	scope of bargaining. 	(San Mateo City
School District 	(1983) 	33 	Cal.3d 850, 	864; 	Mt. 	Diablo Unified School
District 	(1983) 	PERB Decision No. 	373.)
The ALJ granted 	the 	District's 	motion 	to dismiss 	insofar 	as 	it
addressed 	the bypass 	allegation. 	The ALJ 	concluded 	that 	EVEA
offered 	no 	evidence 	that 	the 	teacher 	input 	received was 	actually
used by 	the 	District 	in 	the 	adoption of 	the Mentor 	Teacher 	Program,
or 	that 	the 	District 	intended by 	its 	action 	to 	avoid 	negotiations 	or
undermine 	the 	Union.
8

The ALJ 	concluded 	that 	the 	District 	violated 	its 	duty 	to bargain
in 	good 	faith with 	EVEA by adopting Resolution 	1983-84-09, 	which
outlined 	the 	implementation plan 	for 	the 	Mentor 	Teacher 	Program,
prior 	to 	the 	conclusion of 	negotiations.
The 	District's 	affirmative 	defense 	of 	operational 	necessity was
rejected by 	the 	ALJ based 	upon 	the 	finding 	that 	there 	was 	no 	showing
of 	an actual 	emergency, 	which 	leaves 	no 	real 	alternative 	to the
action 	taken 	and 	allows 	no 	time 	for 	meaningful 	negotiations 	before
the 	action 	is 	taken. 	(San 	Francisco Community College 	District
(1979) 	PERB Decision No. 	105; 	Calexico Unified School 	District
(1983) 	PERB Decision No. 	57.)
The District 	filed exceptions 	to: 	the 	date upon which 	the
bargaining obligation arose; 	the 	negotiability of 	certain areas 	of
the Mentor Teacher 	Program; 	the ALJ's 	rejection of 	its 	operational
necessity defense; 	and 	the ALJ's 	conclusion 	that 	the 	District 	did
not 	negotiate 	in good 	faith.
Charging 	Party excepted 	to 	the ALJ's 	conclusion 	that 	EVEA 	failed
to prove 	that 	the 	District 	attempted 	to bypass 	the 	EVEA by
bargaining 	directly with 	unit 	employees.
DISCUSSION
In 	light 	of 	the 	entire 	record, 	the only 	issue before 	the 	Board
is 	when did 	the 	obligation 	to bargain 	attach?
We hold 	that 	the 	ALJ 	incorrectly 	concluded 	that 	the 	District's
obligation 	to bargain 	arose when 	it 	adopted 	the 	resolution 	outlining
the Mentor Teacher Program on March 	1, 	1984 	. 	The adoption of
to9

Resolution 	1983-84-09 by 	the 	District 	was 	nothing more 	than 	an
exercise 	of 	its 	statutory 	right 	to decide 	to participate 	in 	the
program, 	pursuant 	to Education Code section 44494(d).
We believe 	that 	given 	the 	fact 	that 	the 	California Mentor
Teacher 	Program was 	a 	new 	concept,4 the 	series 	of 	discussions 	the
District 	held 	or 	attempted 	to hold with 	the 	Instructional 	Council,
EVEA, 	and 	individual 	unit members were 	intended 	to assist 	the
District 	in determining whether 	or 	not participation 	in 	the program
was 	feasible. 	Indeed 	the 	District 	attempted 	to 	"brainstorm" 	and
"set parameters" 	as early as 	December, 	1983 	in response 	to Honig's
November, 	1983 	advisory memo.
We 	reject 	the ALJ's 	conclusion 	that 	the 	District's plan 	for
implementation 	of 	the 	Mentor 	Teacher 	Program was 	not 	required by 	the
state 	as part 	of 	the 	formal 	application process. 	The January 30,
1984 	correspondence 	from 	the 	State 	Department 	of 	Education 	to
district 	superintendents 	specifically 	required 	the 	March 	15
application 	to 	include 	a 	resolution 	from 	the 	governing board
including evidence 	of consideration of 	the views 	of parents, 	pupils,
and 	other 	representatives, 	and a 	statement 	of program goals 	and
purposes 	(including planned 	operation 	for 	implementation 	of 	the
program which 	should 	outline 	the potential 	duties 	and
responsibilities 	for 	mentor 	teachers 	as 	stated 	in 	Education 	Code
4 The 	California Mentor 	Teacher 	Program, 	codified 	in 	Education
Code 	sections 	44490-44497 became 	effective 	July 28, 	1983.
Regulations 	were 	filed with 	the 	Secretary 	of 	State 	on March 	26, 	1984,
10

section 44496). 	The memo 	further 	indicated 	that 	a 	technical
assistance 	guide 	outlining 	suggested 	approaches 	and procedures 	for
planning, 	implementing, 	supporting, 	and 	institutionalizing district
mentor 	programs 	would be 	distributed 	to all 	districts 	in March 	1984.
We 	find 	that 	there 	was 	no 	action 	taken by 	the 	District 	which
affected matters 	within 	the 	scope of 	representation 	in 	that, 	once
the 	funds 	for program 	implementation were 	received, 	the 	District
contacted 	EVEA to determine 	if 	an 	agreement 	could be 	reached. 	There
is 	no evidence 	that 	the parties met 	or 	reached 	an agreement. 	The
state's 	approval 	of 	the 	District 	application and 	subsequent 	grant 	of
funds 	for 	the program 	implementation 	in April, 	1984 	triggered 	the
bargaining 	obligation.6
5 The 	January 	30, 	1984 memo 	from 	the 	State Department of
Education 	specifically contemplates 	detail 	in 	the 	formal 	application
for participation 	in the Mentor Teacher Program. 	The dissent, 	in
footnote 	1 	on page 	15 	quotes 	the 	above-referenced memo and places
emphasis 	on 	the 	requirement 	of 	a 	"very brief 	description" 	of
district 	plans 	for 	implementing the 	program. 	However, 	we 	note 	that
the 	remainder 	of 	the 	sentence 	requiring 	a 	"description of potential
duties 	and 	responsibilities" 	of mentor 	teachers 	is 	omitted.
6Member 	Craib 	cites 	Mt. 	Diablo 	Unified 	School 	District 	(1983)
PERB 	Decision No. 	373 	and 	Oakland 	Unified 	School 	District 	(1985)
PERB Decision No. 	540 	in support 	of his 	assertion that 	an employer
may 	implement 	a non-negotiable 	decision 	if 	it has 	provided
sufficient 	time 	to bargain prior 	to 	the 	implementation 	and 	continues
to bargain 	in good 	faith 	thereafter. 	We 	note 	that 	the 	above 	cases
are 	distinguishable 	in that 	the district 	could 	implement 	its
(layoff) 	decision on 	its 	own 	initiative once 	the bargaining
obligation had been 	satisfied. 	Here, 	the District could not
implement 	the 	Mentor 	Teacher 	Program without 	state 	approval 	and
funding.
11
5

Education 	Code 	section 	44494(d) 	would be 	effectively nullified,
despite 	clear 	language 	that 	the 	subject 	of 	participation by 	the
district 	is 	nonnegotiable, 	if we 	concluded the 	obligation to bargain
negotiable 	aspects 	of 	the 	Mentor 	Teacher 	Program 	attached 	prior 	to
state 	approval 	and 	funding. 	Districts 	would 	then be bound 	to
negotiate 	the 	subject 	of 	participation 	to 	impasse 	or 	reach 	an
agreement 	at 	the 	risk 	of being held 	in 	violation 	of 	EERA section
3543.5(c).
Therefore, 	we 	would 	reverse 	the ALJ's 	proposed decision 	insofar
as 	it 	relates 	to 	the ALJ's 	conclusion 	that 	the 	District 	violated 	its
duty 	to bargain 	in 	good 	faith by adopting 	Resolution 	1983-84-09. 	We
affirm 	the ALJ's 	analysis 	and 	conclusions 	regarding 	the
negotiability of 	the Mentor 	Teacher 	Program, 	the 	operational
necessity defense, 	and the 	alleged bypass 	of 	the exclusive
representative 	and 	dismiss 	the 	complaint 	on 	the 	specific basis 	that
the 	District's 	conduct 	amounted 	to deliberating whether 	or 	not 	to
participate 	in 	the Mentor 	Teacher 	Program.
ORDER
For 	the 	foregoing 	reasons 	the 	unfair 	practice 	charge 	in Case 	No.
LA-CE-1968 	is 	DISMISSED.
Chairperson Hesse 	joined 	in 	this 	Decision.
Member 	Craib's 	concurrence 	and 	dissent begins 	on page 	13.
12

Member 	Craib, 	concurring and dissenting: 	I 	concur 	in the
affirmance 	of 	the ALJ's 	dismissal 	of 	the 	allegation 	that 	the
District 	unlawfully bypassed 	EVEA by 	negotiating 	directly 	with
unit members. 	I 	also concur with 	the dismissal of 	the
allegation 	that 	the 	District 	violated 	its 	duty 	to bargain 	the
implementation of 	the Mentor 	Teacher 	Program 	(Program).
However, 	I must 	dissent 	from 	the 	analysis 	used by the majority
in 	dismissing 	that 	allegation.
The 	linchpin of 	the majority's 	analysis 	is 	its 	conclusion
that 	the bargaining obligation did 	not 	arise 	until 	the 	District
received 	state 	approval 	and 	funding 	in April 	of 	1984. 	The
majority 	reasons 	that 	the 	District's 	actions 	prior 	to 	that 	time
amounted 	to no more 	than 	deliberations 	on whether 	or 	not 	to
participate 	in the 	Program. 	As 	I will 	explain below, 	the
majority's holding 	is 	not 	only 	incorrect, 	it 	is patently absurd.
As 	noted by 	the 	majority, 	Education 	Code 	section 	44494(d)
exempts 	a 	school 	district's 	decision 	to participate 	in 	the
Program 	from 	the 	scope of 	representation. 	The ALJ, 	in her
proposed 	decision, 	correctly analogized 	this 	situation 	to 	those
where 	the 	Board has 	held 	that, 	while managerial 	prerogatives
dictate 	that 	a decision 	is 	non-negotiable, 	the 	effects 	of 	that
decision are negotiable. 	See, 	e.g., 	Mt. 	Diablo Unified School
District 	(1983) 	PERB Decision No. 	373 	(layoffs); 	Alum Rock
Union 	Elementary 	School 	District 	(1983) 	PERB 	Decision No. 	322
(establishment or abolition of classifications). 	Thus, 	the
effects 	of 	the decision to participate 	in 	the 	Program 	(i.e.,
13

its 	implementation) 	are 	negotiable 	to 	the 	extent 	they touch
upon otherwise negotiable matters. 	Further, 	it 	is
well-established 	that 	the 	duty 	to bargain 	effects 	arises 	when
the 	employer 	reaches 	a 	firm 	(non-negotiable) 	decision.
Mt. Diablo, supra.
While 	my 	colleagues 	appear 	to accept 	the 	above 	analytical
framework, 	they 	inexplicably conclude 	that 	the 	District 	did 	not
decide 	to participate 	in 	the 	Program 	until 	its 	application was
approved 	and 	funding was disbursed. 	In 	reality, 	the 	record
conclusively 	reveals 	that 	the 	District made 	its 	decision much
earlier 	and 	that 	the 	District board 	of 	trustees 	formally
approved 	the 	decision 	to participate 	in 	the 	Program on March 	1,
1984, 	when 	it passed 	a resolution to send 	its application 	to
the 	State 	Department 	of 	Education. 	The majority 	ignores 	the
facts 	that 	the 	District 	has 	asserted 	throughout 	these
proceedings 	that 	it 	actually made 	the 	decision 	to participate
well before March 	1, 	and unsuccessfully 	tried 	to 	reach
agreement 	with 	EVEA on 	the 	implementation of 	the 	Program. 	The
majority 	also 	ignores 	the 	evidence 	that 	the 	District 	actually
began 	to 	implement 	the 	Program 	in March 	of 	1984 without having
reached 	agreement 	with 	EVEA.
The 	District 	first 	sought 	discussions 	with 	EVEA 	in January
1984 	(to 	"set the parameters" of the Program). 	The parties did
not 	actually meet 	until March 	2. 	That meeting, 	as well 	as
further 	sessions on March 	5, 	15, 	and 16, 	failed to resolve 	the
14

parties' 	differences. 	There was disagreement as 	to both 	the
appropriate 	terms 	and 	the 	overall 	purpose 	of 	the 	Program.
On March 	1, 	the board of 	trustees 	adopted a 	resolution
setting 	forth 	a plan 	for 	operation of 	the 	Program. 	That
resolution, 	which was quite general 	in nature, 	stated that 	the
amount 	of 	time 	a mentor 	teacher 	would 	spend 	on 	regular 	teaching
assignments 	would be 	subject 	to negotiations 	with 	EVEA.1 On
March 	8, 	the board of 	trustees 	adopted an amended
implementation 	plan 	which 	was 	more 	detailed 	than 	the 	March 	1
resolution. 	Shortly 	thereafter, 	the 	application was 	submitted
to 	the 	State 	Department 	of 	Education. 	The March 	8 	amended
resolution 	stated 	that 	the 	stipend 	for 	mentor 	teachers 	and 	the
procedure 	for 	mentors 	to 	return 	to 	their 	former 	assignments 	was
to be 	subject 	to negotiations 	with EVEA. 	The March 	8
resolution 	included 	procedures 	for 	electing 	a 	selection
committee 	and 	for 	selecting 	the mentor 	teachers. 	The board 	of
trustees 	also 	conditioned 	further 	implementation 	upon 	a 	60
percent 	turnout 	in 	the election of 	the 	selection committee.
On March 	15, 	District 	Superintendent 	Ronald 	Flora
distributed 	a 	memo 	to 	teachers 	announcing 	a pilot 	program 	and
1A 	January 	30, 	1984 memo 	from 	the 	State 	Department 	of
Education established March 	15, 	1984 as 	the deadline 	for
submitting 	applications 	for 	participation 	in 	the 	Program 	(the
deadline was 	later 	extended 	to April 	2 ) . 	The application was
to 	contain 	a 	resolution 	of 	the 	governing board with 	a 	"brief
outline of 	the goals, 	purposes, 	and planned operation of 	the
mentor 	program 	. . . . 	This 	should be 	a 	very brief
description 	of 	district plans 	for 	implementing 	the
program . . ." (emphasis added).
15

describing 	the 	selection and 	application process. 	On 	the 	same
date, 	the 	District 	distributed 	a 	flyer 	which described 	its
Program 	and 	specified 	the 	terms 	and 	conditions 	of 	the 	positions
in great detail, 	including duties, 	qualifications, 	length of
service 	(4/6/84 - 6/30/84), 	and stipend amount. 	The election
for 	the 	selection 	committee 	was 	held 	on March 	30 	as 	scheduled
but, 	given the turnout of less 	than 60 percent, 	the selection
committee 	was 	never 	established. 	Similarly, 	the 	District
aborted 	the 	application process; 	though a number of 	teachers
applied, 	no one 	was 	interviewed. 	When 	funding was 	received
from 	the 	State 	some 	time 	in April, 	the 	District again contacted
EVEA to 	see 	if 	an agreement 	could be 	reached, 	but 	the 	record 	is
silent 	as 	to what 	transpired 	thereafter.
As 	is 	indicated 	from 	the brief 	synopsis 	of 	events 	provided
above, 	the 	record 	is 	replete with evidence 	that 	the 	District
made 	a 	firm 	decision 	to participate 	in 	the 	Program by March 	1,
if 	not 	earlier. 	The 	District's 	actions 	through 	the 	first 	three
months 	of 	1984 	simply 	cannot be 	reconciled 	with 	the 	majority's
view 	that 	no decision was made until 	some 	time 	in April.
Beginning 	in January, 	the 	District 	acknowledged 	an 	obligation
to bargain 	(at 	least 	as 	to some 	subjects) 	and actually
negotiated 	with 	EVEA on 	four 	separate 	occasions 	in March. 	On
February 	17, 	the 	District posted a public 	notice 	concerning 	the
Program. 	The notice 	stated, 	in pertinent part:
16
,

Be 	it hereby noted 	that 	the 	Lake 	Elsinore
School 	District 	has 	proposed 	the 	following
subject 	for 	negotiations:
The 	Lake 	Elsinore 	School 	District 	proposes
to 	implement 	a Mentor 	Teacher 	Program 	for
the 	spring semester, 	1984. 	The District
proposes 	that 	employees 	selected 	to 	the
Mentor 	Teachers 	be paid a 	stipend 	of 	$2,000.
The March 	1 	resolution of 	the board 	of 	trustees begins by
stating:
WHEREAS, 	the 	Governing Board of 	the 	Lake
Elsinore 	School 	District has 	elected 	to
participate 	in 	the 	California Mentor 	Teacher
Program . 	. 	. 	(emphasis added).
It 	ends by stating:
NOW, 	THEREFORE, 	BE 	IT RESOLVED that 	the
Superintendent 	is 	directed 	to 	implement 	the
mentor teacher program 	. 	. 	., beginning the
school 	semester of 	1983-84 	(emphasis added).
The 	superintendent did, 	in 	fact, 	begin to 	implement 	the Program
formally 	adopted 	on March 	1 	and March 	8, 	as 	evidenced by 	the
March 	15 	memo 	and 	flyer 	and 	the 	selection 	committee 	election
held on March 	30. 	While 	it 	stretches 	the 	imagination 	to assert
that 	a 	formal 	resolution 	to participate 	is 	not 	a 	firm decision,
it 	is 	wholly nonsensical 	to claim 	that 	the 	District had not
made 	a 	firm 	decision 	when 	it 	had 	already begun 	implementation!
The majority argues, 	without explication, 	that 	Education
Code 	section 44494(d) 	would be 	effectively nullified if 	the
bargaining 	obligation 	arose 	prior 	to 	state 	approval 	and
funding. 	The only clue 	to the majority's 	analysis 	is 	its
conclusion 	that 	school 	districts 	would 	then be bound 	"to
17

negotiate 	the 	subject 	of participation 	to 	impasse 	or 	reach 	an
agreement 	at 	the 	risk 	of being held 	in 	violation of 	EERA
section 3543.5(c)." 	This, 	of course, 	is a non sequiter. 	A
school 	district 	would 	not be 	obligated 	to bargain 	the 	decision
to participate 	regardless 	of whether 	or 	not 	the 	obligation 	to
bargain 	arises 	before 	state 	approval 	and 	funding. 	Nor would
effects 	bargaining 	prior 	to 	funding be 	deleterious 	to 	any
party's 	interests. 	Just 	the opposite 	is 	true.
The holding 	that 	actual 	funding of 	the proposal 	triggers
the 	bargaining 	obligation 	would 	undermine 	the 	entire bargaining
process 	and 	adversely affect 	the 	interests 	of 	all 	concerned.
The 	majority's 	rule 	would 	logically 	apply 	to a wide 	array of
projects 	or 	programs 	undertaken with categorical 	funds which
must be 	approved by outside 	governmental 	entities. 	Normally, 	a
school 	district 	desires 	to and 	is 	prepared 	to expend 	those
funds 	as 	soon as 	they are 	received. 	The majority's 	rule 	would
delay 	such 	implementation until 	the 	bargaining 	obligation 	is
satisfied. 	This, 	of course, 	would 	frustrate the school
district's 	desire 	to 	implement 	a particular program and, 	in so
doing, 	interfere 	with 	its 	right 	to make 	non-negotiable
decisions 	(such 	as 	the 	one 	involved herein pursuant 	to
Education Code section 44494(d)). 	Moreover, 	such a rule, 	by
postponing bargaining, 	would have 	the 	effect 	of 	shortening 	the
time 	available 	for bargaining 	(i.e., 	that 	time period preceding
when 	the 	employer 	can 	lawfully 	implement 	even 	absent 	agreement
18

— 	see 	discussion 	infra), 	thus 	making 	such bargaining 	less
meaningful. 	In 	sum, 	the majority's holding is not only-
contrary 	to 	the 	evidence 	in 	the 	record 	(not 	to mention 	contrary
to 	the 	District's 	own assertions 	as 	to when 	it made a 	firm
decision), 	but 	it will have 	just 	the opposite effect 	from that
purported 	in 	the majority opinion.
I now turn to the 	real 	issues 	in this 	case, 	which are 	as
follows:
1) 	Did 	the 	District's 	actions 	in March 	1984 	constitute
implementation 	of 	negotiable 	matters 	prior 	to agreement 	with
EVEA?
2) 	Did 	the 	District 	nonetheless 	satisfy 	its 	bargaining
obligation by providing 	sufficient 	time 	to 	negotiate prior 	to
implementation 	and by otherwise bargaining 	in 	good 	faith?
The 	record 	is 	clear 	that 	the 	four 	negotiating 	sessions
between 	the parties 	did not 	result 	in an agreement. 	The
District 	claims 	that 	a 	State 	Department 	of 	Education directive
required 	the 	March 	1 	and 	8 	resolutions 	and 	thus 	those 	actions
should be 	excused. 	As noted above, 	at 	footnote 1, 	a 	resolution
was 	required, 	but 	it 	need only contain 	"a brief 	outline of 	the
goals, 	purposes 	and planned operation of 	the 	district's mentor
program 	. . . " 	Thus, 	the 	March 	15 	deadline 	for 	filing 	the
application 	with 	the 	State 	did 	not 	require 	that 	a 	detailed 	plan
be 	formally 	adopted by that 	date. 	The March 	1 	resolution was
general 	in 	nature 	and 	clearly was 	consistent 	with 	the 	above
requirement. 	The March 8 amended resolution, 	however, 	was 	a
19

very 	detailed 	description 	of 	the planned 	Program, 	which 	clearly
exceeded 	the 	specificity 	required by 	the 	State 	directive.2
Consequently, 	The 	State directive 	itself 	did not 	justify 	the
action.
EERA section 	3543.2(a), 	which 	sets 	forth the scope of
representation, 	states, 	in pertinent part:
The 	scope 	of 	representation 	shall be 	limited
to matters 	relating to wages, 	hours 	of
employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean health 	and 	welfare benefits
as defined by Section 53200, 	leave, 	transfer
and 	reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the 	evaluation 	of 	employees 	. . . .
The 	resolution, 	as 	amended on March 	8, 	expressly made
subject 	to 	negotiations 	only 	the 	stipend 	amount 	and 	the
procedure 	for 	return 	to 	regular 	teaching assignments. 	It 	set
out 	with 	specificity 	the 	procedures 	for 	electing members 	of 	the
selection 	committee 	and 	for 	selecting mentor 	teachers, 	the
procedures 	for 	applying 	to become 	a mentor 	teacher, 	the 	term of
the 	appointment 	(one year), 	release 	time 	for members of 	the
selection 	committee. 	It 	also states 	that 	the 	"duties 	and
responsibilities 	of 	mentor 	teachers 	shall 	be 	approved by 	the
board 	of 	trustees 	and 	shall 	be 	consistent 	with 	Education 	Code
Section 44496."
2The 	two 	resolutions 	are 	appended hereto 	as 	attachment A.
The 	first 	two pages 	represent 	the March 	1 	resolution 	and 	the
last 	three pages 	represent 	the March 	8 	additions.
20

Clearly, 	several matters 	expressly addressed 	in 	the March 	8
amended 	resolution 	touched 	upon 	negotiable 	matters 	(in
affirming 	the ALJ's 	conclusion 	with 	regard 	to 	the 	negotiability
of the Program, 	the majority apparently agrees). 	For example,
release 	time 	for 	selection 	committee 	members 	obviously has 	an
impact on hours, 	an enumerated subject. 	Likewise, 	procedures
for 	selection of 	mentor 	teachers, 	including 	those 	for 	election
of 	the 	selection 	committee 	are 	negotiable 	due 	to 	their 	direct
relation 	to 	transfers 	and 	reassignments. 	Healdsburg 	Union
School 	District 	(1984) 	PERB Decision No. 	375 	(procedures 	for
granting promotions). 	Finally, 	duties and responsibilities 	are
negotiable 	to 	the 	extent 	they affect 	hours 	or 	workload. 	Davis
Joint Unified 	School 	District 	(1984) 	PERB Decision No. 	393.
See, 	also, 	Anaheim Union High School 	District 	(1981) 	PERB
Decision No. 17 7.
It 	must 	also be pointed out 	that 	the March 	8 	resolution, 	by
its 	terms, 	represented a veritable 	fait accompli. 	It 	is 	clear
that 	the 	District, 	through 	this 	resolution 	adopted 	a
comprehensive 	implementation plan 	whose 	only 	concessions 	to
negotiability were 	as 	to stipends 	and 	reassignment. 	The
District's 	actions 	thereafter 	(the March 	15 	memo and 	flyer 	and
the March 	30 	election) 	reflect merely 	the 	actual 	execution of
the 	plan 	adopted March 	8. 	The March 	15 	flyer 	soliciting
applications 	went 	even 	further 	than 	the March 8 	resolution, 	in
that 	it 	specified 	unequivocally 	the 	stipend amount, 	the amount
21

of 	release 	time 	for mentors, 	and 	the duties 	and
responsibilities 	of 	the mentors. 	In 	sum, 	the 	record 	is clear
that, 	as of March 	8, 	the District embarked upon the
implementation 	of 	a mentor 	program 	(though 	the 	implementation
was 	later 	aborted 	due 	to 	the 	low 	turnout 	in 	the 	selection
committee 	election). 	Therefore, 	the District violated 	its duty
to bargain the 	implementation of the Program, 	unless 	it had, 	by
March 	8, 	already 	satisfied 	its 	duty 	to bargain 	to 	the 	extent
necessary 	to 	allow 	lawful 	implementation 	to begin.
Though 	the 	District began 	implementation 	of 	its 	Mentor
Program prior 	to completion of negotiations, 	Board precedent
indicates 	that, 	at 	least 	in some circumstances, 	an employer may
go ahead and 	implement a non-negotiable decision, 	as 	long as 	it
provided 	sufficient 	time 	to bargain prior 	to 	the 	implementation
and 	continues 	to bargain 	in good 	faith 	thereafter. 	In Mt.
-
Diablo Unified School 	District 	(1983) 	PERB Decision No. 	373,
the 	Board held 	that, 	given 	the notice 	requirements 	of 	Education
Code 	sections 	44949 	and 	44955 	(final 	notice 	of 	layoff must be
given by May 15 	or 	employees automatically reemployed), 	the
district 	would 	have been 	justified 	in 	implementing 	layoffs 	by
May 	15 	had 	it bargained 	in 	good 	faith 	during 	the period between
the date of 	its 	decision 	to lay off 	and May 15 	(four months).
The 	Board 	noted 	that 	the 	district would have been 	obligated 	to
continue 	to negotiate 	those 	in-scope 	effects 	not 	necessarily
determined by 	the 	implementation.
22

In 	Oakland 	Unified School 	District 	(1985) 	PERB Decision No.
540, 	the 	Board held 	that 	the passage 	of 	a 	resolution 	setting a
date 	for 	the 	implementation of 	layoffs 	two months hence 	was 	not
a per 	se 	violation 	of 	the 	duty to bargain, 	because 	it provided
ample 	opportunity 	for 	good 	faith 	negotiations 	to 	take place
prior 	to 	implementation 	and 	the 	date 	set 	was 	not 	arbitrary.
However, 	in that case, 	as 	in Mt Diablo, 	the Board found that
the 	District 	did 	not 	negotiate 	in good 	faith prior 	to
implementation.
While 	neither 	Mt. 	Diablo nor 	Oakland 	involved 	a 	situation
where 	the 	employer 	did bargain 	in 	good 	faith 	for 	a 	reasonable
period 	and 	then went 	ahead with 	implementation, 	I would 	find 	no
violation 	under 	such 	facts 	and would 	set 	out 	the 	following
test. 	An 	employer 	may 	lawfully 	implement 	a 	non-negotiable
decision 	prior 	to 	the 	completion of 	negotiations 	on 	the 	effects
of 	that 	decision 	if:
1. 	the 	implementation date 	chosen 	is 	not an arbitrary one,
but 	is based 	upon either 	an 	immutable deadline 	(such 	as
one 	set by 	the 	Education 	Code 	or 	other 	laws 	not
superseded by 	the 	EERA) 	or 	an 	important 	managerial
interest, 	such 	that 	a delay 	in 	implementation beyond
the 	date 	chosen would 	effectively undermine 	the
employer's 	right 	to make 	the 	non-negotiable 	decision;
and
2. 	notice 	of 	the 	decision and 	implementation date 	is 	given
sufficiently 	in 	advance of 	the 	implementation date 	to
23

allow 	for 	meaningful 	negotiations 	prior 	to
implementation; 	and
3. 	the employer 	negotiates 	in good 	faith prior 	to
implementation and 	continues 	to negotiate 	in 	good 	faith
after 	implementation 	as 	to 	those 	subjects 	not
necessarily 	resolved by virtue 	of 	the 	implementation.
The above 	test, 	I believe, 	recognizes 	the employer's 	right
to make 	a non-negotiable 	decision, 	while 	also ensuring 	that
meaningful 	effects 	bargaining 	takes 	place. 	The 	indefinite
postponement 	of 	implementation 	would 	effectively 	undermine 	the
employer's 	right 	to make 	the decision 	and 	would blur 	the
distinction between 	decision and 	effects bargaining. 	On 	the
other hand, 	certain 	restraints 	must be put 	on 	the 	time of
implementation 	for 	the 	simple 	reason 	that 	effects bargaining 	is
much more meaningful if it takes place prior to implementation.
Turning to the 	instant 	case, 	I 	find 	that 	the 	District's
implementation 	date 	was 	properly based 	upon 	an 	important
managerial 	interest.3w The March 	1 	and March 	8 	resolutions
reflect 	the 	District's 	earlier 	decision 	to begin a mentor
program as 	soon as 	funding became 	available 	(April). 	The
initial 	Program was 	to begin 	in April 	and 	run 	through 	June 	and
then begin 	on 	a yearly basis 	the 	subsequent 	fall 	(while 	the
3 As 	stated 	earlier, 	I 	reject 	the 	District's 	argument 	that
the March 	15 	application 	deadline 	required 	a 	complete
implementation plan by 	that 	date.
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actions 	after March 	8 were 	specific 	to 	the 	spring 	1984 	Program,
the 	resolutions 	on 	their 	face 	apply to an ongoing Program).
I would 	conclude 	that, 	since 	the 	District had 	clearly been
given 	the 	unilateral 	right 	to decide 	to participate 	in 	the
Program, 	it had 	the 	concurrent 	right 	to begin participation as
soon 	as 	the Program became available. 	Moreover, 	a November 	1,
1983 	directive 	from 	the 	State 	warned 	that 	a 	failure 	to
participate 	in 	the 	second half 	of 	the 	1983-84 year 	would make
participation 	thereafter 	dependent 	upon 	the 	provision 	of
additional 	funding.
As 	found by 	the 	ALJ, 	the 	District 	first 	communicated 	its
desire 	to negotiate 	with 	EVEA some 	time prior 	to January 	17,
1984. 	Consequently, 	there was 	a period 	of 	at least 	seven weeks
in which 	to 	conduct 	negotiations 	prior 	to 	implementation. 	If,
as 	found by the Board 	in Oakland, 	supra, 	eight weeks 	is 	ample
time 	to conduct meaningful negotiations, 	it 	follows 	that 	seven
weeks 	is 	also sufficient.4 	In addition, 	it 	is 	instructive 	to
note 	that 	the 	Mentor 	Program was 	a new 	one 	and 	the 	State
Department 	of 	Education had 	to 	complete 	promulgation 	of
regulations 	and 	provide 	the 	appropriate 	directives 	before 	the
Program 	could become 	a reality. 	This had 	the effect 	of
4Implicit 	in 	this 	finding 	is 	that 	the bargaining
obligation had arisen by that 	time, 	as 	a 	firm decision 	to
participate 	was 	evidenced by 	the 	District's 	willingness 	to
negotiate. 	The decision, 	of course, 	was 	to be 	formally adopted
later 	by 	the board 	of 	trustees 	as 	required by 	the 	application
process.
4
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compressing 	the 	time 	available 	for 	negotiations 	prior 	to
implementation 	of 	spring 	1984 Programs.
Lastly, 	the 	District's 	conduct during 	the 	seven plus 	weeks
prior 	to 	implementation must be 	examined 	to determine 	if 	it
reflects 	the 	requisite 	good 	faith. 	The most 	troubling piece 	of
evidence 	is 	that 	only 	two negotiating 	sessions 	took place
(March 	2 	and 5) 	prior 	to implementation. 	However, 	the record
does 	not 	reflect 	that 	the 	delay was 	the 	fault of 	the 	District.
The 	District 	sent 	letters 	to EVEA on January 18, 	January 25,
and 	February 	8 	suggesting 	that 	the parties 	discuss 	the
Program. 	Though 	the 	February 8 	letter 	suggested dates 	of
February 	22-24, 	it 	is 	unclear why the parties did not meet
until March 	2. 	While 	it appears 	that 	neither party 	insisted
upon 	immediate 	negotiations 	(though 	the 	impetus 	for
negotiations 	did come 	from the 	District), 	the 	District was 	at
all 	times 	willing 	to meet 	and 	cannot 	be held 	accountable
because 	EVEA did 	not 	demand more 	immediate 	negotiations.
There 	is 	one other 	aspect 	of 	the 	District's 	conduct 	that 	is
somewhat troubling but, 	upon closer examination, 	it 	is
inconsequential. 	In his 	letter of January 	25, 	Superintendent
Flora backed 	away 	from his 	earlier 	admission 	that 	most 	aspects
of 	the 	Program were 	negotiable. 	Instead, 	he 	claimed 	that 	"it
is 	unclear exactly what, 	if any, 	bargaining obligation school
districts 	have 	with 	respect 	to 	. . . 	the 	Program."
Additionally, 	the 	District's 	February 	17 public 	notice
referenced 	only 	the 	stipend 	amount, 	and 	testimony 	established
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that 	the 	District 	continued 	to 	raise 	questions 	at 	the 	table
about 	the 	negotiability of 	the 	Program. 	While 	the 	District may
have 	taken 	a 	very narrow position as 	to 	the 	scope 	of 	negotiable
subjects, 	the 	testimony made 	it 	clear 	that 	the 	District
nonetheless 	was 	willing 	to negotiate 	over 	a broad 	range 	of
subjects. 	It 	is not uncommon 	for employers' 	representatives 	to
deny 	negotiability but 	nonetheless 	be 	willing 	to 	negotiate
those 	subjects 	when actually at 	the 	table. 	The 	important
inquiry 	is not as 	to the 	District's words, 	but 	its actions.
The 	record 	reflects 	that 	those 	actions 	were 	not 	inconsistent
with 	good 	faith bargaining.
In 	conclusion, 	I 	find the majority's 	analysis 	to be
basically nonsensical, 	as 	this 	case 	is much more complex 	than
my 	colleagues 	are 	apparently willing 	to 	recognize.
Nonetheless, 	after applying what 	I believe 	to be 	the better
analysis, 	I, 	too, 	conclude that the charge must be dismissed.
'
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