South Bay Union School District (PERB 0791E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOUTHWEST TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
SOUTH BAY UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2750
PERB 	Decision No. 	791
February 8, 	1990
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Appearances: 	Reich, 	Adell & Crost by Marianne Reinhold,
Attorney, 	for Southwest Teachers Association, 	CTA/NEA; 	Brown and
Conradi by Clifford D. 	Weiler, 	Attorney, 	for South Bay Union
School District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by both 	the
South Bay Union School District 	(District) 	and the 	Southwest
Teachers Association 	(Association) 	to 	a proposed decision 	issued
by a 	PERB administrative 	law judge 	(ALJ). 	The ALJ held that the
District 	violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA
or Act),1 section 3543.5, 	subdivisions 	(a) 	and 	(b)2 when it
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
2Section 3543.5, 	subdivisions 	(a) 	and 	(b) 	provide:
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
)

refused to permit 	the Association to 	file grievances 	on 	its 	own
behalf. 	The ALJ declined 	to 	rule 	on whether the 	District
violated section 3543.5, 	subdivision 	(c)3 by its conduct; 	he
found that 	it was 	unnecessary, 	given his 	ruling on the
subdivision 	(a) 	and 	(b) 	violations.
The 	District 	excepts 	to 	that portion of 	the proposed
decision which 	found 	that 	it had violated 	subdivisions 	(a) 	and
(b) 	because neither the 	charge nor the complaint pled those
subdivisions 	as 	independent violations of the Act. 	It also
excepts 	to the ALJ's 	refusal 	to 	rule 	on the 	subdivision 	(c)
violation, 	as well 	as to one 	factual 	finding and to 	the remedy,
which 	included 	a 	cease 	and desist 	order 	and a posting
requirement.
The Association 	excepts 	to 	the ALJ's 	failure 	to 	find a
subdivision 	(c) 	violation.
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.
3Section 3543.5, 	subdivision 	(c) 	provides:
It 	shall be unlawful 	for a public 	school
employer to:
(c) 	Refuse or fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
22

FACTUAL 	BACKGROUND
The Association 	is 	the 	exclusive representative 	for 	the
certificated 	employees 	of 	the District. 	The District 	and the
Association have 	entered 	into 	a 	series 	of 	collective 	bargaining
agreements, 	commencing in 	1977. 	The current agreement is
effective from November 	10, 	1988 through June 30, 	1990.
The 	events 	leading to 	this 	appeal 	arose during 	a 	hiatus
between the 	immediately preceding agreement, 	which was 	effective
from May 8, 	1984 through June 30, 	1986 	(hereafter Agreement), 	and
the 	current 	agreement. 	The Agreement 	and 	its 	predecessors
limited the Association's 	right to 	file 	grievances 	in 	its 	own
name 	(i.e., 	without a member as grievant). 	Pursuant to 	section
13.415 	of 	the Agreement, 	the Association could only 	file 	a
grievance
regarding 	an 	alleged 	violation,
misapplication or misinterpretation of 	a
provision of 	the Agreement 	in the 	following
Articles: 	Recognition and Negotiation
Procedures, 	Organizational Security,
Management Rights, 	Association Rights, 	Class
Size, 	and Effect of Agreement.
During 	contract negotiations, 	after the expiration of 	the
Agreement, 	the Association proposed changes 	in the grievance
article. 	Inter alia, 	it 	sought to change 	section 	13.415 	to
permit 	the Association to 	file 	and prosecute 	any 	contractually-
based grievance in its own name. 	To persuade the District, 	the
Association relied on the 	ruling of 	a 	PERB ALJ 	in 	San 	Diego
Unified School District 	(1987) 	PERB Decision No. 	HO-U-314
w	3

[11 	PERC 	18035]. 	In San Diego, 	the ALJ held that bargaining to
impasse 	in order 	to 	limit 	an association's 	right 	to 	file
grievances 	in 	its 	own name was 	an unfair practice.
The 	District 	refused 	to 	change 	its 	position and 	sought 	to
retain the Agreement's 	section 	13.425 	language. 	According 	to 	an
Association witness, 	a District negotiator 	indicated that 	the
District wanted 	individual 	employees 	"on the 	line" 	for
grievances.4 During the course of 	continued negotiations, 	the
Association 	repeatedly 	asserted 	its 	right 	to 	file 	and prosecute
grievances 	in its 	own behalf. 	The District refused to 	change 	its
position. 	After approximately three months 	of negotiations, 	the
District 	declared 	impasse. 	A request 	for 	impasse 	determination
was 	sent 	to 	PERB 	listing 	20 	items 	in dispute. 	The Association
agreed that 	the parties 	had many disputed 	issues; 	however, 	it
objected 	to 	the declaration of 	impasse. 	PERB declared the
parties 	at 	impasse.
During 	the mediation process, 	the parties 	maintained their
pre-impasse positions. 	Ultimately, 	in order to 	secure an
agreement, 	the Association agreed to accept the District's
4The 	District 	excepts 	to the ALJ's 	finding that District
negotiator Gerald Conradi 	used that phrase. 	Our 	reading 	of 	the
transcript 	indicates 	that 	the phrase was 	not attributed to 	any
specific 	individual. 	The District also 	excepts 	to the ALJ's 	use
of 	this phrase 	in formulating his 	conclusion, 	contending that 	the
testimony was 	hearsay. 	Although the use 	of 	the phrase 	"on the
line" 	may, 	indeed, 	be hearsay, 	it is clear that the District
maintains 	that 	it 	is 	entitled to know the name 	of 	employees
asserting 	that 	the 	District 	violated 	a 	contractual 	provision.
Since we 	do 	not adopt 	the 	analysis 	of 	the ALJ 	and 	since the
District 	does 	maintain 	its position that 	the name of 	the
aggrieved 	is 	critical, 	any perceived reliance on Conradi's
alleged use 	of 	the phrase 	"on the 	line" 	was 	harmless 	error.
A
	4

grievance article. 	The current 	1988-90 	agreement 	continues 	to
contain 	a 	grievance 	article which 	restricts 	the Association's
ability to grieve portions of the parties' 	contract.
PROCEDURAL 	BACKGROUND
In May 	1988, 	the Association filed an unfair practice 	charge
against 	the 	District, 	which alleged that 	the District violated
section 3543.5, subdivisions (a), 	(b), 	(c), 	(d), and (e). 	PERB
issued a 	complaint 	in June 	1988, 	alleging violation of
subdivisions 	(a), 	(b), 	and (c). 	The District denied any
violations 	of 	the Act. 	The parties were unable to resolve their
differences 	at 	informal 	conferences. 	At 	the hearing and after,
certain 	charges were withdrawn as 	a 	result 	of 	settlement
agreements. 	At the 	time the ALJ wrote his proposed decision, 	the
remaining 	allegation 	asserted 	that 	the 	District 	violated 	section
3543.5, 	subdivision 	(c) 	and, 	derivatively, 	subdivisions 	(a) 	and
(b)5 by 	insisting that the Association agree to a 	contractual
provision which waived 	its 	right 	to 	initiate 	and process
grievances 	in its 	own name.
THE 	PROPOSED 	DECISION
The 	ALJ 	separately 	analyzed 	the 	District's 	conduct 	under
section 3543.5, 	subdivisions 	(a), 	(b), and (c). 	He concluded
that the District violated subdivisions 	(a) 	and 	(b), 	but made no
determination as to 	(c).
5The ALJ 	did 	not 	distinguish 	between 	the 	alleged 	independent
(c) 	violation and the derivative 	(a) 	and 	(b) 	violations.
Instead, 	he analyzed the facts as though independent 	(a), 	(b),
and 	(c) 	violations had been alleged. 	This 	issue will be dealt
with in the discussion, 	infra.
55

Subdivision 	(a)
Utilizing the Board's 	test 	for 	interference 	set 	out 	in
Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89, 	the
ALJ 	found 	that 	the 	District 	unlawfully 	interfered with 	the 	right
of 	an employee 	to have 	an employee organization 	file 	grievances
on the 	employee's 	behalf 	in the organization's 	name. 	He 	found
that right to be part of the employee's 	right to form, 	join, 	and
participate 	in organizational 	activities 	under 	section 	3543.6
Critical 	to his 	analysis was 	a determination that 	"[t]he right to
anonymity 	is 	a keystone 	in the 	exercise of 	employee rights."
He 	relied 	on a 	number of 	National 	Labor 	Relations 	Board 	(NLRB)
cases 	which 	held 	that 	employees 	are 	guaranteed 	confidentiality
under the National Labor Relations Act 	(NLRA). 	He 	further
reasoned 	that 	since 	this 	Board has 	held 	that 	grievance 	activities
constitute 	"participation" 	in an employee 	organization 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264) 	and,
therefore, 	an employee right, 	any adverse 	impact on that right 	is
a violation of 	subdivision 	(a) 	under Carlsbad. 	He 	concluded that
since 	the 	District's 	policy demanded 	that 	the 	employees 	reveal
their 	identity to 	the 	District 	if 	they wished to present
grievances, 	or forego raising contract violations, 	the District
6Section 3543 provides:
Public 	school 	employees 	shall 	have the 	right
to form, 	join, 	and participate in the
activities 	of 	employee organizations 	of 	their
own choosing 	for the purpose of
representation on all 	matters 	of 	employer-
employee 	r e l a t i o n s . . . .
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caused 	substantial 	harm to 	the 	employees 	in their 	exercise 	of
statutory rights.
Subdivision 	(b)
The ALJ 	also 	concluded 	that 	the 	District 	denied 	the
Association rights 	guaranteed 	it under 	section 3543.17 of 	the Act
and, 	thus, 	violated section 3543.5, 	subdivision (b). 	His
analysis 	relied upon this 	Board's 	decision 	in Modesto City
Schools 	(1983) 	PERB Decision No. 	291 	and the NLRB's decision in
Latrobe Steel Company 	(1979) 	244 NLRB 528 	[102 	LRRM 	1175]. 	In
Modesto, 	the Board held that the district 	committed an unfair
practice 	by demanding to 	impasse 	that 	the 	association give 	up 	the
right 	to 	represent 	employees 	at 	informal 	grievance proceedings.
In Latrobe. 	the NLRB held that 	the 	employer violated the NLRA by
insisting to 	impasse 	that 	the union agree 	to a proposal 	that
prohibited 	the 	union 	from 	submitting 	grievances 	in 	its 	own name.
The NLRB 	held that 	the 	employer 	could not 	insist 	that 	a union
give up rights 	guaranteed to 	it by the NLRA, 	doing 	so 	constituted
77Section 3543.1 provides, 	in pertinent part:
(a) 	Employee organizations 	shall have the
right 	to represent 	their members 	in their
employment 	relations 	with public 	school
employers, 	except that once an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit pursuant 	to 	Section 	3544.1
or 3 544.7, 	respectively, 	only that employee
organization may represent 	that 	unit 	in 	their
employment 	relations 	with the public 	school
employer. 	Employee organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join and may 	make 	reasonable
provisions 	for the dismissal 	of 	individuals
from membership.
77

demanding to 	impasse on a matter outside 	the 	scope 	of
representation.
Subdivision 	(c)
Although 	the ALJ recognized 	that 	insistence 	to 	impasse 	on 	a
nonmandatory 	subject 	of bargaining constitutes 	a per 	se violation
of 	subdivision 	(c), 	Lake Elsinore School District 	(1986) 	PERB
Decision No. 	603, 	he declined to make a 	finding on a 	subdivision
(c) 	violation. 	He relied on the United States Court of Appeals
decision in Latrobe Steele Company v. 	NLRB 	(3d Cir. 	1980) 	630
F.2d 	171 	[105 	LRRM 2393], 	in which the court refused to enforce
the NLRB's order in Latrobe Steele Company, 	supra, 	244 NLRB 	528.
The 	court 	concluded 	that 	the 	employer did 	not unlawfully 	insist
on 	the proposal 	in question because 	"[t]he 	record demonstrates
that 	even had the Company dropped 	its 	nonmandatory proposals, 	the
parties would have been at 	impasse." 	(Latrobe 	Steele 	Company.
supra. 	630 F.2d 	171 	[105 	LRRM at p. 	2399.)
The ALJ 	found 	that 	the 	evidence 	demonstrated 	that 	the
impasse 	between the parties 	would 	have 	occurred 	absent 	the
dispute over the grievance procedure. 	However, 	instead of, 	then,
applying the Latrobe analysis, 	he 	concluded:
[i]nasmuch as 	it is 	questionable whether the
District 	independently 	violated 	section
3543.5(c), 	and since section 3543.5(a) 	and
(b) 	violations have been found which will
result 	in 	substantially the 	same remedy, 	no
section 3543.5(c) 	finding will be made.
(Proposed Decision at p. 	26, 	fn. 	omitted.)
88Modesto City Schools, 	supra. 	PERB Decision No. 	291 and
Latrobe Steele Company, 	supra. 	244 NLRB 	528, 	will be discussed in
further detail, 	infra, 	in the Discussion section.
8
8

THE 	EXCEPTIONS
The 	District's 	Exceptions
The 	District primarily 	contends 	that 	the ALJ 	exceeded 	the
scope of 	the pleading by 	finding 	subdivision 	(a) 	and 	(b)
violations 	where 	they had been pled 	solely as 	derivative
violations. 	Specifically, 	it excepts to 	six portions of the
proposed decision: 	1) 	the expansion of the 	scope of the charge
and 	complaint 	by 	analyzing 	and 	considering whether 	or 	not
respondent violated section 3543.5(a) 	and 	(b); 	2) 	the analysis
and determination that a violation of 	section 	3543.5(a) 	occurred;
3) 	the 	factual 	finding, 	"Conradi 	further 	stated that the
governing board members 	wanted 	individual 	employees 	to 	be 	'on the
line' 	for grievances, 	and apparently felt that if the Association
could 	file any grievances 	in its 	own name, 	more grievances would
result," 	and this 	factual 	finding's 	application to the analysis;
4) 	the analysis 	and determination that a violation of 	section
3543.5(b) 	occurred; 	5) 	the failure to render a decision
concerning violation of section 3543. 5(c); 	and 6) 	the remedy,
order or posting.
The 	District relies 	on the 	Board's 	decision 	in Tahoe-Truckee
Unified School District 	(1988) 	PERB Decision No. 	668, 	to 	support
its 	argument 	that 	the ALJ 	improperly 	expanded the 	scope 	of 	the
pleadings. 	As 	for the independent 	(a) 	violation, 	it contends
that 	since the 	issue was 	not 	fully litigated it 	is 	impossible to
ascertain whether evidence 	exists 	to 	support the 	findings 	of
interference. 	The District 	also disagrees with the ALJ's
analysis 	of 	the 	(b) 	violation because there was 	no 	finding that
99

the 	District 	ever 	rejected 	a 	grievance 	filed by 	the Association
in its 	own name.
The Association's 	Exception
The Association excepts 	only to 	the ALJ's 	failure 	to 	find 	a
section 3543.5, 	subdivision 	(c) 	violation. 	It relies primarily
on the ALJ's 	underlying 	analysis 	that 	the Association had 	a
statutory right 	to 	file 	grievances 	in 	its 	own name 	to 	support 	its
contention that 	such a 	subject was 	nonmandatory. 	It 	concludes
that 	the 	District 	violated 	its 	duty 	to 	bargain by 	impermissibly
insisting to 	impasse on a nonmandatory 	subject, 	citing
Lake Elsinore School District, 	supra, 	PERB Decision No. 	603.
The Association also disputes 	the 	District's 	contention 	that
the ALJ 	impermissibly 	expanded the 	scope 	of 	the pleadings. 	It
asserts 	that the 	District was 	on notice 	of 	the 	alleged
subdivision 	(a) 	and 	(b) 	violations 	and 	fully litigated those
issues.
DISCUSSION
This 	case 	should be 	analyzed 	solely as 	a 	section 	3543.5,
subdivision 	(c) 	violation, 	both because of the 	scope of the
pleadings 	and because 	of 	the 	factual 	basis 	underlying the 	charge.
(Tahoe-Truckee Unified School 	District 	(1988) 	PERB Decision No.
668, 	at pp. 	5-10.) 	Furthermore, 	as more fully explained below,
the ALJ 	erred by not 	applying the 	Board's 	per 	se 	analysis 	as 	set
forth 	in
Lake 	Elsinore 	and also misapplied 	Latrobe 	Steele Company, 	supra.
102 LRRM 2393, 	thus, 	needlessly, 	expanding the scope of the
pleadings 	to find independent 	subdivision 	(a) 	and 	(b) 	violations.
10

EERA requires 	a public 	school 	employer to 	"meet 	and
negotiate" 	with its 	employees' 	exclusive representative over
matters within the 	scope of representation. 	Failure to meet 	and
negotiate 	in good 	faith on a matter within 	scope 	is 	a 	violation
of section 3543.5, 	subdivision 	(c). 	Conversely, 	insistence to
impasse 	on a 	nonmandatory 	subject 	is 	a per 	se violation.
(Lake Elsinore School District, 	supra. 	PERB Decision No. 	603;
accord NLRB v. 	Wooster Div, 	of Borg-Warner Corp. 	(1958) 	356 U.S.
342 	[42 	LRRM 2034]; 	Industrial Union of Marine & Shipbuilding
Workers v. 	NLRB 	(3d Cir. 	1963) 	320 F.2d 615 	[53 LRRM 2878].
The 	threshold issue which we 	must decide 	is 	whether the
Association's 	right 	to 	file 	and process 	grievances 	in 	its 	own
name 	is within the 	scope of representation under EERA and, 	thus,
a mandatory 	subject of bargaining; 	or if 	it 	is 	outside 	the 	scope
of representation and, 	thus, 	a nonmandatory subject of
bargaining. 	Although the propriety of negotiating a 	limitation
on an association's 	right 	to 	file 	grievances 	in 	its 	own name 	has
been 	litigated previously, 	San Diego Unified School 	District.
supra, 	PERB Decision No. 	HO-U-314, 	Lancaster School District
- -
(1989) 	PERB Decision No. 	HO-U-406, 	Chula Vista City School
District. 	Case No. 	LA-CE-2038 	(currently on appeal to the Board),
the 	Board has 	not yet 	ruled on this 	issue.9
9In a recent case, 	Temple City Unified School 	District.
(1989) 	PERB Order No. 	Ad-190, 	the right of an association to file
grievances 	in its own name was raised peripherally. 	There, 	the
district 	sought to defer to arbitration the 	issue of 	its
unilateral 	change 	in benefit plan contributions. 	The 	Board,
relying on the parties' 	collective bargaining agreement, 	held
that 	the matter was 	not deferrable because the 	association,
itself, 	did not have a right to grieve the benefit plan
reduction. 	Neither party raised the 	question of whether EERA
11

The 	scope of 	representation provision of 	EERA 	is 	found 	in
section 	3543.2.10 Matters 	not 	specifically 	enumerated 	in
section 	3543.2 	are analyzed under a three-part test 	set out 	in
Anaheim Union High School 	District 	(1981) 	PERB Decision No. 	177
(approved of 	in San Mateo City School District v. 	PERB 	(1983) 	33
Cal.3d 850, 	858-60). 	The Association's right to grieve in its
own name 	does 	not 	fall within the 	subjects 	enumerated 	in 	section
3543.2.11 A subject, 	which 	is 	not 	expressly enumerated, 	will be
found to be a mandatory subject of bargaining if: 	1) 	it 	is
provided 	the 	association the 	right 	to 	grieve 	any portion of 	the
collective bargaining agreement. 	Thus, 	our holding in that 	case,
in no way, 	reflects 	a determination that a 	limitation on
association rights 	is within the 	scope 	of 	representation.
10Section 3543.2 provides, 	in pertinent part:
(a) 	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,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3 548.8, 	and the layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 44959.5 	of 	the Education
Code.
1 Although the Board has 	held that grievance procedures 	in
general 	are 	a 	mandatory 	subject 	of 	bargaining 	(Anaheim City
School District 	(1983) 	PERB Decision No. 	364, 	at p. 	15; 	see also
section 3543.2 	(quoted at fn. 	10.), 	the issue of whether the
Association has 	a 	right to 	file and process 	grievances 	in 	its 	own
name 	is 	not 	necessarily encompassed by 	section 	3543.2. 	The 	right
of 	the Association to 	file 	and process 	grievances 	in 	its 	own name
is, 	however, 	reasonably related to the procedures 	for processing
grievances and, 	thus, 	it is appropriate for the Board to utilize
the Anaheim test 	to determine whether the 	issue 	is within the
scope 	of 	representation.
12

logically 	and reasonably related to hours, 	wages 	or an 	enumerated
term and condition of employment; 	2) 	the 	subject 	is 	of 	such
concern to both management 	and 	employees 	that 	conflict 	is 	likely
to 	occur 	and 	the mediatory 	influence 	of 	collective 	negotiations
is 	the appropriate means of resolving the conflict; 	and 	3) 	the
employer's 	obligation to 	negotiate would 	not 	specifically 	abridge
the 	employer's 	freedom 	to 	exercise 	those managerial 	prerogatives
(including matters 	of 	fundamental policy) 	essential 	to the
achievement 	of 	the 	employer's 	mission. 	(Anaheim Union High
School District, 	supra. 	PERB Decision No. 	177, 	at pp. 	4-5)
In the 	case 	currently before the Board, 	the 	issue of 	the
Association's ability to file and process grievances 	in its own ..
name 	satisfies 	the 	first two prongs 	of the Anaheim test: 	the
subject 	is 	reasonably related 	to procedures 	for grievance
processing and, 	as 	is obvious 	from this 	litigation, 	the 	subject
is 	of 	such concern to both management 	and employees 	that 	conflict
is 	likely 	to 	occur 	and collective 	negotiations would be 	an
appropriate method of resolving the 	conflict. 	However, 	the 	third
prong 	of 	the Anaheim test 	cannot be met. 	The 	third prong was
designed 	to 	address 	a 	situation where 	the 	employer 	refused 	to
bargain over 	an 	issue presented by 	the 	exclusive 	representative.
In the present 	case, 	the third prong of the test must be modified
to 	provide protection 	for 	the Association's 	inherent 	concerns
with 	its 	role 	as 	exclusive 	representative. 	When addressing 	the
concerns 	of 	an 	exclusive 	representative we 	must 	ask whether
compelling 	the 	exclusive 	representative 	to 	negotiate 	its 	right 	to
present and process 	grievances 	in its 	own name would
13

"significantly 	abridge 	the 	organization's 	freedom 	to 	exercise
those 	representational 	prerogatives 	essential 	to 	the 	achievement
of 	the 	organization's 	mission as 	exclusive 	representative 	of 	the
negotiating unit."12
The 	District's 	attempt 	to 	limit 	the Association's 	right 	to
file 	and process 	grievances 	in 	its 	own name would 	seriously
inhibit 	the Association's 	ability 	to 	effectively 	operate 	as 	an
exclusive representative 	for the unit. 	Section 3543.1,
subdivision 	(a) 	grants 	employee organizations 	"the right 	to
represent 	their members 	in their 	employment 	relations 	with public
school employers 	. 	. 	. 	." 	The employee organization's right to
file grievances 	arises 	out of 	this 	right to represent.
Protecting the 	integrity 	of 	a 	collective 	bargaining agreement 	is
of 	concern to all members 	of 	the bargaining unit, 	not 	just the
employee 	or 	employees 	immediately 	affected by a 	particular 	breach
of 	the contract. 	Consequently, 	limits 	on the ability to grieve
contract violations 	fundamentally alter the 	concept 	of 	collective
action. 	(Industrial 	Union of Marine & Shipbuilding Workers 	v.
NLRB. 	supra. 	53 LRRM 2878; 	see also Education Association v. 	Red
Bank Board of 	Education 	(1978) 	A.2d 	[99 LRRM 2447, 	2452-
53].)
In Marine 	& 	Shipbuilding Workers. 	the Third Circuit rejected
the 	employer's 	attempt 	to 	require 	all 	grievances 	to be 	signed by
12
This 	language 	is 	found 	in the ALJ's 	decision in San Diego
Unified School District, 	supra. 	PERB Decision No. 	HO-U-314 	[11
PERC 	18035, 	at p. 	181], 	Similar language is proposed by a
different ALJ in Chula Vista City School District, - -	supra, 	LA-CE-
2038, 	Proposed Decision at pages 	126-33. 	This 	language is not
being quoted because 	it 	is 	binding on the 	Board 	(PERB 	Regulation
32215), 	but rather because the Board finds 	it persuasive.
. . .
14

the 	employee 	affected. 	The 	court 	rejected the 	employer's
argument 	that 	such 	a 	requirement was 	a mandatory 	subject 	of
bargaining.
Although at 	first glance 	it might 	appear to
be a 	"condition of 	employment," 	actually the
effect of 	the proposal 	is 	to 	limit the
union's representation of the employees 	. 	. 	.
(53 	LRRM at p. 	2881.) 	The 	court relied on both 	section 8,
subdivision 	(d)13 and section 9, 	subdivision 	(a)14 in reaching its
conclusion. 	The 	court 	concluded that 	such a provision would
"substantially modif[y] 	the collective-
bargaining 	system provided 	for 	in the 	statute
by weakening the 	independence 	of 	the
'representative' 	chosen by the employees. 	It
[would] 	enable[] 	the employer, 	in effect, 	to
deal with 	its 	employees 	rather 	than with
their statutory representatives. 	[Citation.]"
(Ibid.) 	The 	court 	reasoned that 	such 	a 	requirement would
preclude 	the 	union 	from prosecuting 	flagrant
violations 	of 	the 	contract merely because 	the
employee 	involved, 	due to 	fear of 	employer
13Section 8, 	subdivision 	(d) 	of the NRLA provides, 	in
pertinent part:
For the purposes 	of 	this 	section 	[unfair
labor practices], 	to bargain collectively is
the performance 	of 	the mutual 	obligation of
the 	employer and 	the 	representative of 	the
employees 	to meet 	at 	reasonable 	times 	and
confer 	in good 	faith with respect 	to wages,
hours, 	and other terms and conditions of
employment 	. . . .
14Section 9, 	subdivision 	(a) 	of the NLRA provides 	in
pertinent part:
Representatives 	designated 	or 	selected 	for
the purposes 	of 	collective bargaining by 	the
majority of employees 	. 	. 	. 	shall be the
exclusive representatives 	. 	. 	. 	for the
purposes 	of 	collective 	bargaining 	in respect
to rates of pay, 	wages, 	hours of employment,
or 	other 	conditions 	of 	employment 	. . . .
15

reprisals, 	or for similar reasons, 	chose not
to 	sign a grievance.
.(Ibid.)
The NLRB relied 	on Marine 	& 	Shipbuilding Workers 	when 	it
decided Latrobe Steele Company, 	supra, 	244 NLRB at p. 	533.15 As
discussed 	supra. 	in Latrobef 	the NLRB held that the 	employer
- -.
violated 	the 	NLRA by 	insisting 	to 	impasse 	that 	the 	union agree 	to
a proposal 	that prohibited 	the 	union 	from 	submitting 	grievances
in its own name. 	(Id. 	at p. 	533.) 	The employer in Latrobe
proposed 	that 	the union give up 	its 	existing 	contractual 	right 	to
file 	and process 	grievances 	in its 	own name. 	The parties went 	to
impasse 	on this 	and other 	issues. 	The NLRB 	rejected the
employer's 	right to 	insist to 	impasse on this 	issue. 	Relying on
Marine & 	Shipbuilding Workers, 	the NLRB 	stated:
The right of the Union, 	however, 	to represent
the employees 	in the unit, 	both individually
and collectively, 	at all 	stages 	of the
grievance procedure, 	including the right to
file grievances 	and process 	them, 	and to
administer 	the 	collective-bargaining
agreement, 	is a 	statutory right which
Respondent may not 	insist 	to the point 	of
impasse that the Union waive.
(Ibid.)
The 	Supreme 	Court 	of 	New Jersey has 	also had 	an opportunity
15The 	District argues 	that we 	should not rely on the NLRB
analysis 	because 	the definition of 	employee 	organization 	in 	the
NLRA differs, 	in its view, 	significantly from the definition
found in EERA. 	Although the definitions do differ, 	the NLRB
cases 	remain persuasive 	because 	neither 	the 	NLRB 	nor 	the
reviewing 	courts 	rely on 	the 	definition of 	employee 	organization
to 	reach 	the 	conclusion that unions 	have 	a 	right 	to 	grieve 	in
their own name. 	While we are not bound by NLRB analysis, 	we will
take 	cognizance of NLRB precedent when appropriate. 	(Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; 	Los Angeles
Unified School 	District 	(1976) 	EERB 	Decision No. 	5.)
16

. ." 	to 	consider whether 	the 	New Jersey 	Public 	Employment 	Relations
Act permits 	an 	exclusive 	representative 	to 	file 	and process
grievances 	in its 	own name. 	(Education Association v. 	Red Bank
Board of Education, 	supra. 	99 LRRM 2447.) 	In that case, 	the
association attempted to 	file 	a grievance 	in 	its 	own name 	and the
employer rejected 	it as 	outside 	the 	scope 	of 	the 	collective
bargaining agreement. 	Although the New Jersey court 	relied
primarily on its 	interpretation of 	a 	section of 	the New Jersey
Public Employment Relations Act, 	a portion of 	its 	analysis 	is
instructive.
Permitting a public 	employer 	to 	require
individual 	action at 	the 	critical 	moment when
vindication of 	employee 	rights 	is 	at 	stake
would 	surely 	"short 	circuit" 	the 	system of
collectivity 	the 	Legislature 	sought 	to
promote in the Act and weaken its benefits. 	.
. 	. 	Requiring an individual to put himself
on the 	line as 	the 	sole means 	of 	initiating a
grievance 	is 	inherently 	contrary to 	the very
concept of 	collectivity and would, 	if
sanctioned, 	bring about a 	"prejudicial
dilution" 	of the basic 	right to organize
secured by the 	[New Jersey] 	Constitution.
(Id. 	at p. 	2453.) 	The New Jersey court has allowed an employee
organization to 	file a grievance over the 	objection of 	the
affected 	member.
As 	indicated 	earlier, 	PERB has 	not yet had an opportunity to
address 	the 	issue of 	an association's 	right to 	file a grievance
in its own name. 	However, 	in Modesto City Schools. 	supra. 	PERB
Decision No. 	291, 	the Board addressed a 	slightly different, 	but
related issue: 	whether an association had the 	right 	to appear
with an employee 	at 	the 	first 	and most 	informal 	grievance
proceeding. 	The 	Board held 	that 	EERA afforded 	the 	association
17

that right.
The grievance procedure 	is perhaps 	the most
important point 	at which 	employee
organizations 	represent 	their members 	in
their day-to-day 	employment 	relations. 	EERA
also provides 	that 	a 	grievance may be 	settled
between 	the 	employer 	and 	an 	individual
employee, 	but is 	carefully drawn so as not to
diminish 	an employee 	organization's 	right 	to
fulfill 	its 	representational duties 	under the
Act. 	. 	. 	. 	[T]he grievance process is an
"employment relation" 	within the meaning of
subsection 3543.1(a) 	and, 	therefore, 	employee
organizations 	have 	a 	statutory right 	to
represent 	employees 	in the presentation of
their grievances. 	Indeed, 	the statutory
right of unions 	to represent 	employees 	in
grievances 	is 	of 	such 	significance that 	it
includes 	not 	only 	negotiated 	grievance
procedures 	but non-negotiated ones 	as well.
(Id. 	at pp. 	28-29, 	fn. 	omitted.) 	The Board concluded that the
district 	violated 	its 	duty to 	bargain 	in good 	faith by 	insisting
to 	impasse on this 	issue. 	The Board 	stated:
[W]hile 	the District may 	negotiate 	over 	every
aspect of the grievance procedure, 	it may not
demand 	to 	impasse 	that 	the Association
abandon rights 	guaranteed under 	section 	3543.
(Id. 	at pp. 	29-30. )
Since 	EERA has 	created 	a 	system of 	labor relations 	which
rests 	upon the notion of 	collective 	action and 	since 	the
grievance procedure 	is merely 	a 	tool 	to 	enforce 	the 	collective
action accomplished 	in negotiations, 	we 	find that 	the Association
has 	a right to 	file grievances 	in 	its 	own name. 	We agree with
the ALJ 	in San Diego 	Unified 	School 	District:
For 	contract violations 	to be 	grievable 	and
arbitrable 	only at 	the 	instigation of 	an
individual 	employee, 	runs 	counter to the very
idea of 	collective action. 	Any employer
violation of a contract, 	even if 	it directly
affects only one employee, 	has 	the potential
of 	initiating a practice detrimental 	to the
18

entire bargaining unit. 	In a 	system of
collective bargaining, 	the ability to
challenge 	contractual 	violations 	must 	lie
with 	the party that 	negotiated 	the 	contract,
i.e., 	the union. 	Any other 	system makes 	the
viability of 	the 	contract 	dependent 	upon 	the
willingness 	of 	each unit member to 	stand
individually.
(PERB Decision No. 	HO-U-314 	[11 PERC 18035, 	at p. 	181].)15
There 	remains 	one 	issue unaddressed. 	The ALJ declined to
address 	the 	subdivision 	(c) 	violation because of what he
perceived 	as 	a 	conflict 	between the 	NLRB 	and PERB 	over 	insisting
to 	impasse on a nonmandatory 	subject, 	when there remain disputes
over other mandatory 	subjects. 	To 	support his 	analysis 	of 	the
NLRB position, 	he relied on Latrobe 	Steele Company v. 	NLRB,
supra, 	105 LRRM 2393. 	The NLRB decision in Latrobe Steele
Company. 	supra. 	244 NLRB 	528, 	was 	reviewed by the Third Circuit
Court of Appeals. 	The court reversed the portion of 	the decision
which held that, 	by 	insisting to 	impasse 	on the 	grievance
procedure, 	the 	employer violated 	its 	duty to bargain in good
faith. 	It held that, 	because the parties were not 	in agreement
on a number of 	significant 	issues, 	insisting on the grievance
proposal was 	not the cause of the parties' 	impasse. 	The court
discussed the 	seminal 	United States 	Supreme Court 	case, 	NLRB v.
Wooster Div, 	of Borg-Warner Corp.. 	supra, 	42 LRRM 2034, 	which
held 	that 	a party 	is 	not permitted 	to 	insist 	to 	impasse 	on a
nonmandatory 	subject 	of 	bargaining 	and 	discussed 	subsequent 	cases
which held 	that 	the 	insistence 	on 	the 	nonmandatory 	subject 	need
16Again, 	we note that we are not quoting the 	PERB ALJ's
proposed decision because we 	are bound to do 	so, 	rather we 	find
his 	comments persuasive. 	(See fn. 	12.)
19

. . . : . 	not be the 	sole cause of the parties' 	failure to reach agreement.
Nevertheless, 	the Third Circuit Court of Appeals held,
[u]nder the facts of this 	case, 	it cannot be
said 	that 	the 	insistence 	on the 	non-mandatory
proposal 	prevented 	agreement 	on 	any 	mandatory
subjects.
(Latrobe Steele Company v. 	NLRB, 	supra. 	105 LRRM at p. 	2400.) 	In
a 	footnote, 	the 	court 	indicated that 	it was 	not bound by 	language
it 	considered dicta 	in 	Industrial 	Union of 	Marine 	& 	Shipbuilding
Workers v. 	NLRB, 	supra, 	53 LRRM 2878. 	The Marine & 	Shipbuilding
Workers 	court 	stated:
It was 	not necessary 	for the Board to 	find
that 	the 	company's 	insistence 	on this
proposal was 	the 	sole 	cause of 	the 	failure 	to
reach agreement. 	If the proposal 	is not a
mandatory bargaining 	subject, 	insistence upon
it was 	a per se violation of 	the duty to
bargain. 	[Citations.] 	Any other rule would
permit 	insistence 	upon a 	non-mandatory 	item
so 	long as 	there were any disputes 	as 	to
mandatory topics.
(Id. 	at p. 	2880, 	emphasis added.) 	The Latrobe court took
exception to the emphasized portion, 	claiming it to be dicta.17
(Latrobe Steele Company v. 	NLRB, 	supra. 	105 LRRM at p. 	2400,
fn. 	9.)
We disagree with 	the 	court's 	rejection of 	the Marine 	&
Shipbuilding Workers 	language, 	emphasized above. 	Even if that
17The court, 	however, 	clarified its position by stating:
Any dispute 	on a mandatory 	subject 	is 	not
sufficient 	to protect 	a party's 	insistence 	to
the point of 	impasse 	on a 	non-mandatory
subject. 	The dispute over the non-mandatory
subject must 	itself 	rise to the 	level 	of
impasse.
(Latrobe Steele Company v. 	NLRB, 	supra. 	105 LRRM at 2400, 	fn. 	9,
emphasis 	added.)
20

language 	itself were dicta, 	the 	rule 	stated 	immediately prior 	to
that 	"dicta" was, 	and remains, 	the law, 	as established by the
United States 	Supreme Court 	in NLRB v. 	Wooster Div, 	of Borg-
Warner Corp., 	supra. 	42 LRRM 2034. 	Thus, 	even if the parties had
gone to 	impasse over other 	issues, 	the 	employer's 	insistence 	on
an 	inclusion of 	a nonmandatory 	subject violates 	its 	duty to
negotiate 	in good 	faith.
Furthermore, 	this 	Board has 	held that 	insistence to 	impasse
on a nonmandatory 	subject is 	a per 	se violation of 	the Act.
(Lake Elsinore School District, 	supra, 	PERB Decision No. 	603.)
There appears 	to be no 	reason to adopt a different 	rule 	in this
instance.
CONCLUSION
We, 	therefore, 	find that the District violated 	section
3543.5, 	subdivision 	(c) 	by insisting to impasse on the
Association's 	right to file grievances 	in its own name. 	We
decline 	to 	follow the Third Circuit's 	Latrobe 	analysis. 	We 	also
reject the ALJ's 	subdivisions 	(a) 	and 	(b) 	analysis as unnecessary
in these 	circumstances.
REMEDY
The Association 	seeks 	an order requiring the 	District 	to
cease 	and desist 	its 	unlawful 	conduct 	and delete 	from the 	current
collective bargaining agreement the 	offending provisions. 	A
cease 	and desist 	order directing the 	District 	to 	stop 	its
unlawful 	conduct is appropriate in this case. 	We, 	therefore,
order 	the 	District 	to 	accept 	grievances 	filed by 	the Association
21

on behalf 	of 	individuals 	as well 	as 	grievances 	filed 	to protect
Association rights. 	Because we 	have 	specifically 	ordered 	the
District to process the Association's grievances, 	it is
unnecessary to 	strike the offending 	clauses 	of 	the parties'
collective bargaining agreement. 	The purpose of 	this 	order 	is 	to
assure that those 	clauses will 	not be 	enforced 	for the duration
of 	the agreement.
It 	is 	also 	appropriate 	that 	the 	District be 	required 	to post
a 	notice which 	incorporates 	the terms 	of this 	order. 	The 	notice
should be 	subscribed by an authorized 	agent 	of 	the 	District
indicating that 	it will 	comply with the terms 	of 	the order. 	The
notice 	shall 	not be reduced 	in 	size. 	Posting 	such a 	notice will
provide 	employees with notice 	that 	the District has 	acted 	in an
unlawful 	manner and 	is 	being required to 	cease 	and desist 	from
that 	activity.
ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusion of
law and the 	entire record 	in this 	case, 	it 	is 	found that 	the
South 	Bay Union School 	District has 	violated 	section 	3543.5,
subdivision 	(c) 	of the Educational Employment Relations Act.
Pursuant to 	section 3541.5, 	subdivision 	(c) 	of the Government
Code, 	it 	is 	hereby ORDERED that the 	South Bay Union School
District, 	its officers and representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Insisting to 	impasse on contractual 	language
outside the 	scope of 	representation which has 	the 	effect
22

restricting the union's 	right 	to 	file 	grievances 	on 	its 	own
behalf.
2. 	Enforcing and. giving effect to those portions of
the 	1988-90 	collective 	bargaining 	agreement which restrict 	the
Association's 	right 	to 	file 	and process 	grievances 	in 	its 	own
name.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	THE
EDUCATIONAL 	EMPLOYMENT RELATIONS ACT:
1. 	Accept and process 	all 	contractual 	grievances
filed by the Association in its 	own name, 	irrespective of 	any
contractual 	terms 	or other policies 	in 	effect which deny 	the
Association that right, 	for the term of 	the 	current contract
which expires June 30, 	1990.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post 	at
all work 	locations where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to insure that this
Notice 	is 	not reduced 	in 	size, 	defaced, 	altered or covered by any
material.
3. 	Upon issuance of a 	final decision, 	make written.
notification of 	the 	actions 	taken to 	comply with 	this 	order to
the 	Los Angeles 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	his/her 	instructions.
Member Camilli's 	concurrence begins 	on page 	24.
Chairperson Hesse's 	dissent begins 	on page 	26.
23

Camilli, 	Member, 	concurring: 	While I 	concur in the lead
opinion's 	conclusion that 	the 	right 	of 	an association to 	file
a grievance 	in its 	own name 	is 	not 	a mandatory 	subject 	of
bargaining, 	I 	write 	separately to present my analysis 	on this
issue.
Mandatory 	subjects 	of 	bargaining 	are 	specifically 	enumerated
under the Educational Employment Relations Act 	(EERA) 	section
3543.2. 	I 	agree that this 	issue is 	not among those mandatory
subjects. 	Ordinarily, 	the Public 	Employment Relations 	Board has
found that 	subjects 	not 	listed 	in 	section 	3543.2 	are mandatory
subjects 	of bargaining only 	if 	all 	three prongs 	of 	the test 	set
forth 	in Anaheim Union High 	School 	District 	(1981) 	PERB 	Decision
No. 	177 	are met. 	The lead opinion modified the third prong of
the Anaheim test to 	fit 	the 	instant 	facts 	and 	concluded 	that 	the
right of 	an association to 	file a 	grievance 	in its 	own name was 	a
nonmandatory 	subject 	of 	bargaining. 	I would reach the 	conclusion
that 	this 	item 	is 	not 	a mandatory 	subject 	of bargaining without
applying 	the Anaheim test.
EERA 	section 3543.l(a) 	gives 	the 	Southwest Teachers
Association 	(Association) 	a 	statutory right 	to 	represent
its members. 	This 	section provides 	in pertinent part:
Employee 	organizations 	shall 	have 	the
right to 	represent 	their members 	in their
employment 	relations 	with public 	school
employers, 	. . . .
Therefore, 	I would analyze this 	issue as 	a 	statutory right which
is 	not among the enumerated mandatory 	subjects 	of bargaining. 	I
would 	further address 	the 	issue 	of whether 	the Association 	can
24

bargain away 	its 	statutory right 	to 	file 	a 	grievance 	in 	its 	own
name. 	It 	is difficult to conclude that this particular 	"right"
is 	a part of the 	statutory grievance right, 	under section
3543.1(3), 	and then find that 	it can be 	"bargained away."
The 	concept 	of 	collective action 	found 	in EERA 	(and probably
any 	statute pertinent to collective bargaining) 	is 	one of
employees 	acting 	collectively 	through 	a 	chosen representative.
For contract 	violations 	to be 	grievable only at 	the 	instigation
of 	an 	individual 	employee 	seems 	to be 	contrary to 	the basic
concept of 	collective action.
I 	conclude 	that 	the right of 	an exclusive 	representative
to 	file 	a 	grievance 	in its 	own name 	is 	a 	statutory right pursuant
to 	section 3543.1(a). 	Therefore, 	the exclusive representative
cannot bargain away or waive this 	right and 	still meet 	its
responsibilities 	to 	its members. 	EERA makes 	no provision for
"bargaining away" 	or 	"waiving" 	statutory rights. 	Until 	such time
as 	the Legislature 	specifically makes 	such a provision, 	I 	find
that 	the Association's 	right to 	file a 	grievance 	in 	its 	own name
is 	a nonmandatory, 	nonwaivable right.
25

Hesse, 	Chairperson, 	dissenting: 	I disagree with the
majority 	opinion that the 	South 	Bay Union 	School 	District
(District) 	violated Educational 	Employment Relations Act 	(EERA)
section 	3543.5(c)1 by insisting to 	impasse on a non-mandatory
bargaining proposal, 	that is, 	the maintenance of a contract
clause 	that 	specifies 	that 	the 	Southwest 	Teachers 	Association
(Association) 	may 	initiate and process 	grievances 	in 	its 	own name
on the 	following six contract articles: 	(1) 	recognition and
negotiation procedures; 	(2) 	organizational security; 	(3)
management rights; 	(4) association rights; 	(5) 	class size; 	and
(6) 	effect of agreement.
Exceptions 	to 	the proposed decision were 	filed by 	both
parties. 	The District excepted to 	a 	Public 	Employment Relations
Board 	(PERB or Board) 	administrative law judge's 	(ALJ) 	holding
that 	the Association has 	a 	statutory right 	to grieve 	in 	its 	own
name, 	and to the conclusion that the District did not violate 	. . . .
EERA 	section 	3543.5(c), 	but did violate EERA 	section 	3543.5(a)
and 	(b). 	The Association appealed 	the ALJ's 	refusal 	to 	find that
the District violated EERA section 3543.5(c). 	The parties'
pleadings, 	arguments, 	and briefs address the statutory right
issue 	and 	the 	claim that 	the 	District 	violated 	EERA 	section
3543.5(c).
The 	crux of 	this 	case 	turns 	on the determination of whether
the 	District 	failed to negotiate 	in good 	faith by 	engaging 	in
1Refer to majority's opinion, 	footnote 	1, 	page 	1 	for text of
EERA section 3543.5(a), 	(b), and (c).
26

conditional 	bargaining. 	The 	Board must 	first determine whether
the 	subject 	of 	bargaining was 	non-mandatory or a 	statutory right,
and then whether impasse was 	reached. 	First, 	I will 	address 	a
preliminary matter, 	the majority's 	reliance 	on non-binding
proposed 	decisions.
Reliance 	on 	Non-Binding 	Proposed 	Decisions
In determining the nature, 	operation, 	and effect of
administrative determinations, 	one must examine the governing
statute 	and the purposes 	of the particular agency. 	(2 	Cal.Jur.3d,
Administrative Law, 	sec. 	233, p. 	All.)
As 	authorized by 	section 3541.3(g) 	of EERA, 	the Board
adopted PERB 	Regulation 	32215, 	which 	specifically 	states 	that
"[u]nless 	expressly 	adopted by the 	Board 	itself, 	a proposed 	or
final 	Board agent decision, 	including 	supporting rationale, 	shall
be without precedent 	for 	future 	cases."
As 	Board 	agent 	decisions 	not 	expressly 	adopted 	by 	the 	Board
have 	no precedential value, 	the majority's 	reference and reliance
on San Diego 	Unified School 	District 	(1987) 	PERB 	Hearing Officer
Decision No. 	HO-U-314, 	Lancaster School District 	(1989) 	PERB
Hearing Officer Decision No. 	HO-U-406, 	and Chula Vista City
School District, 	Case No. 	LA-CE-2038 	is 	inapposite and 	should be
disregarded.
ALJ 	Pleading 	Error
The 	regional 	attorney 	issued 	a 	complaint 	in this 	case 	on an
alleged 	failure to meet 	and negotiate 	in good 	faith, 	in violation
of 	EERA 	section 3543.5(c), 	with conduct alleged to constitute
27

"derivative violations 	of Government Code 	section 	3543.5(a) 	and
(b)." 	The case was 	litigated as a 	section 	(c) 	case and no
amendment was 	made 	to the 	complaint 	either prior to or during the
hearing to assert independent 	(a) 	and 	(b) 	allegations. 	Nor did
charging party present 	facts 	or 	arguments 	regarding 	independent
(a) 	and 	(b) 	violations. 	(Tahoe-Truckee Unified School District
(1988) 	PERB Decision No. 	668.) 	The charge, 	complaint, 	hearing,
and briefs 	that were 	filed by both parties 	only 	address 	the 	claim
that 	the 	District 	had 	failed 	to 	meet 	and 	negotiate 	in good 	faith,
in violation of EERA section 3543.5(c). 	However, 	in the proposed
decision, 	the ALJ did not find a 	(c) 	violation, 	finding instead,
independent 	interference, 	restraint or coercion of 	employees
because 	of 	their exercise of 	rights 	guaranteed by EERA, 	and
denial 	to 	the 	exclusive 	representative 	rights 	guaranteed by 	EERA.
The ALJ 	erred 	in analyzing 	the 	case 	as 	though 	independent
violations 	of 	EERA 	section 	3543.5(a) 	and 	(b) 	had been alleged.
A finding of 	independent 	(a) 	and 	(b) 	violations 	cannot be
made unless 	the case was 	litigated that way. 	This 	Board
previously held 	in 	Los Angeles 	Unified 	School 	District 	(1982)
PERB 	Decision No. 	218 	that dismissal 	of an EERA section 	3543.5(c)
charge also requires the dismissal of the 	(a) 	and 	(b) 	charges
where 	(a) 	and 	(b) 	are derivatives of the 	(c) 	charge. 	A finding
of 	independent 	(a) 	and 	(b) 	violations 	results 	in prejudice to the
District 	because 	the 	case was 	never 	charged 	or 	litigated 	in that
28

manner. 	On review of the proposed decision alone, 	I would
reverse 	the ALJ 	and dismiss 	the 	complaint.N
The 	majority's 	treatment 	of 	the ALJ's 	pleading 	error 	and 	the
(c) 	violation is confusing, 	if not misleading. 	The majority
opinion 	is 	confusing 	in that 	it recognizes 	the ALJ pleading
error, 	but nonetheless 	finds a 	(c) 	violation, 	citing no facts,
and providing no 	analysis 	to 	support 	such a 	finding. 	The
National 	Labor Relations 	Board 	(NLRB) 	and New Jersey public
sector cases, 	relied upon by the majority, 	are distinguishable in
that 	they more 	accurately address 	the denial 	of 	the 	employee
organizational rights, 	or a 	(b) 	violation, 	and not the 	(c)
violation case that 	is presently before this 	Board. 	In their
eagerness 	to reach the merits 	of this 	case, 	despite its
procedural 	infirmities, 	the majority has 	cited 	inappropriate
cases. 	But even if the case law had been on point, 	the 	(c)
violation found by the majority 	(but not the ALJ) 	does 	not 	exist.
Furthermore, 	the Association did not meet 	its burden of
proof of the 	(c) 	violation. 	I 	find that, 	on the facts of this
case, 	the Association 	failed to 	show that 	the District refused to
bargain 	in good 	faith 	or 	insisted 	to 	impasse 	on the Association's
agreement 	to 	a proposal 	on a 	non-mandatory 	subject.3
22Based on the 	case 	law relied upon by the majority, 	this
case 	should have been tried as 	a 	(b) 	violation because the
subject matter 	involves 	a union's 	ability to represent 	its
members. 	That it was 	tried as 	a 	(c) 	violation is 	unfortunate 	and
has 	resulted 	in the 	convoluted analysis 	in the majority opinion.
3Assuming arguendo that the Association's 	right 	to 	grieve 	is
a 	non-mandatory 	subject of bargaining, 	there 	is 	no 	evidence the
District 	refused 	to 	bargain 	in 	good 	faith.
29
2

When the 	issue under discussion 	is 	concededly
permissive rather than mandatory, 	it makes
the 	existence 	of 	an unfair 	labor practice
turn upon the 	very 	nice 	distinction between
proposing and 	insisting, 	a distinction that
is 	foreign to the practicalities 	of
collective bargaining. 	. 	. 	.
(See Gorman, 	Developing Labor Law, 	p. 	497-98.)
- -.
The 	facts 	of 	this 	case 	show that both parties 	engaged 	in hard
bargaining. 	The Association held to 	its 	initial proposal, 	while
the 	District made 	some bargaining movement, 	but declined to 	agree
to the proposal.
During contract negotiations, 	the Association initially
proposed 	a 	provision 	that provided 	the Association's 	right 	to
grieve and to be a party of 	interest 	in the 	grievance procedure.
In 	support of 	its proposal, 	the Association asserted that a
proposed PERB 	(ALJ) 	decision was 	controlling case 	law on the
subject. 	The District's 	initial proposal, 	presented
approximately two weeks 	later, 	called 	for the 	continuance 	of 	the
expired 	grievance 	provision 	relating 	to Association 	rights 	or
maintenance of 	the 	status 	quo. 	Testimony of Association
Executive 	Director Frank Buress 	shows 	that 	the 	grievance
procedure proposals were 	not 	the only 	issues 	in dispute 	at 	the
time 	the 	District 	filed a 	request 	for declaration of 	impasse.
Q 	-- 	my 	question relates 	only 	to 	third-party
beneficiaries. 	The discussions 	relating to
third-party beneficiaries 	I 	think.
At 	any time 	during 	the 	round 	of 	negotiations
that you've been testifying to, 	did the
District 	ever propose 	less 	than was 	the
status 	quo within the 	grievance procedure?
REINHOLD: 	I'm a 	little unclear 	as 	to what
the word 	less 	means?
30

ALJ: 	Well, 	I 	think — 	I 	think what 	is 	more
important 	is whether or not the witness
understands the question, 	so 	-- 	go ahead and
try to 	fathom an answer 	if 	you 	can.
THE WITNESS: 	The District's 	initial position
was 	status quo, 	so 	it would be the same. 	The
only change that 	-- 	and 	I 	testified 	-- was
that 	the only 	change made 	there was 	to
include 	the Association consent before 	-- 	an
individual 	teacher 	could 	file 	a 	grievance 	to
arbitration.
I 	do 	not believe 	the 	District 	ever proposed
to 	take 	away anything 	that was 	in the
collective 	agreement 	in the 	grievance
article.
Q 	(By Mr. 	Weiler) 	Did the Association
possess 	-- 	already possess 	a right to 	file
grievances 	as 	to 	some articles 	of 	the
negotiated 	agreement?
A 	I 	would have 	to 	review the 	agreement 	to
see that.
Q 	Could 	you please 	look 	at 	Charging 	Party
Exhibit 	1, 	page 	81, 	section 	13.415 	—
A 	Let me 	find the 	exhibit 	first, 	please.
Charging Party 	1, 	what page?
Q 	Page 81, 	section 	13.415, 	and my question
is 	specifically, 	did the District ever
propose or request that that article 	-- 	that
that 	section be 	deleted?
A 	No, 	we did.
Q 	No, 	SWTA did?
A 	Correct.
Q 	Did 	the 	District 	ever propose 	or request
within this 	round of 	negotiations 	that 	SWTA
or a 	SWTA representative 	not be permitted to
participate 	or 	assist 	the 	individual 	employee
in processing 	a 	grievance?
A 	No.
31

Q 	Looking at Charging Party's No. 	9, 	a
Request 	for Declaration of 	Impasse.
A 	Yes.
Q 	The 	second 	long page, 	top 	right-hand
portion, 	section 	10, 	on the right-hand side,
it says, 	issues which remain in dispute. 	Is
that 	an accurate 	reflection of what 	issues
remained 	in dispute 	at 	that 	time?
A 	Absolutely 	not.
Q 	What 	issues were 	not 	in dispute at 	that
time?
A 	Oh, 	I 	don't know that these were not 	in
dispute, 	but it 	is not an accurate portrayal
of the issues 	that were 	in dispute. 	There
were 	additional 	issues 	other than these 	that
had 	not 	been 	resolved 	during 	the 	negotiations
that were not 	listed on this.
Q 	So 	everything that's 	contained 	is 	an 	issue
which remained in dispute 	-- was 	in dispute.
Your 	contention 	is 	that 	there were 	additional
issues 	that were 	in dispute 	that were 	not
listed?
A 	These are not 	issues, 	but 	I point out they
are the title of the articles 	only. 	And 	it
was prepared by Mr. 	Conradi, 	he apparently
typed 	in the title 	of 	the 	article rather than
the issues.
Q 	Were 	all 	those 	articles 	in dispute 	at 	the
time 	of 	— 	February 	26th, 	1988?
A 	To 	the best 	of my reluctance 	--
recollection, 	yes, 	but I would have to look
at 	the party's 	two positions 	on that date to
determine whether 	recognition 	or 	management
rights 	and 	a 	few of 	those 	other ones were
still 	in dispute.
To the best of my recollection, 	at least
these articles were 	in dispute.
Q 	At 	least 	these, 	being which articles?
A 	The 	ones 	you're 	asking me 	about.
32

Q 	So at 	least all 	those were 	in dispute?
A 	To 	the best 	of my recollection.
Q 	So 	it's 	safe 	to 	say that 	the 	grievance
procedure was 	not 	the 	only 	issue 	in dispute?
A 	Oh, 	heavens, 	no. 	There were other issues
in dispute.
Q 	And the parties 	have not, 	as yet resolved
those other issues as well; 	correct?
A 	I'm not 	sure 	I 	understand your question.
Q 	There were a 	lot of 	issues, 	separating the
parties 	at the time of 	impasse?
A 	Yes.
(RT, Vol. I, 62:1-65:1.)
By the testimony of an Association witness, 	Tim O'Neill, 	who was
a member of 	the negotiating team, 	the 	record 	shows 	that 	the
Association 	insisted on 	its proposal 	and that 	there was 	no 	room
for 	compromise.
Q 	Did 	the 	District 	at 	any 	time 	during
negotiations 	relating to 	the previous
procedure 	at 	issue 	in this proceeding did the
District had 	ever 	-- 	at 	any time 	ever request
or demand that 	SWTA not represent 	a
bargaining unit 	member 	in 	the 	grievance
procedure?
REINHOLD: 	I'm unclear as 	to what you mean by
not represent; 	you mean not be present during
a 	grievance 	meeting?
WEILER: 	Not be present, 	not assist, 	not
advise, 	anything of that nature.
THE WITNESS: 	During the bargaining 	session?
Q 	(By Mr. 	Weiler) 	Any time. 	Did anyone 	say
no, 	we don't want the union participating at
all?
A 	No.
33

Q 	We don't want 	the 	union helping the
employees 	at all?
A 	Well, 	in discussions with board members,
it was clarified to us, 	as 	I 	said before,
that 	they did not want 	the Association 	to
initiate 	the grievances. 	They wanted the
individuals 	to do 	it. 	They did not 	clarify
that 	they didn't want 	the Associations 	to
assist the 	individuals.
Merely, 	that they thought the 	individuals
could do 	it or 	initiate 	it 	rather than the
Association.
Q 	But 	they 	-- 	no 	one 	ever 	indicated 	that
they did 	not want 	SWTA representatives 	to
help the 	individual write up 	the 	grievance
document?
A 	Correct.
Q 	So 	the 	key 	issue 	in the 	grievance
procedure 	-- 	unfair practice 	complaint
aspects 	is 	that whether or not 	the District
was 	obligated 	to 	agree 	to 	the 	contract
provision allowing 	SWTA to 	be 	able 	to
independently file a grievance; 	is that
correct?
A 	Could 	you repeat 	that.
Q 	Never mind. 	It's 	objectionable 	anyway,
because 	I'm requesting 	a 	legal 	conclusion.
ALJ: 	You know he wants 	a 	clean record when
he 	starts 	-- when he 	starts 	objecting to and
standing objections 	to his 	own questions.
REINHOLD: 	I was 	confident Tim could answer
the question.
Q 	(By Mr. 	Weiler) 	I've got a meeting at
three o'clock. 	I 	don't want to 	engage 	in
long objections, 	so I 	just make them to my
own questions.
SWTA's 	position during negotiations 	on the
grievance procedure was 	that 	it wanted 	to
negotiate 	and 	include 	in the 	contract the
right to be 	able 	to 	independently 	file 	a
grievance; 	correct?
34

A 	Correct.
Q 	The 	District 	did not want 	to 	agree 	to 	that
right being 	included 	in the 	contract;
correct?
A 	Correct.
Q 	Did 	you propose 	any 	compromise position
between the yes 	and the 	no?
A 	That's 	hard 	for me 	to 	imagine what 	a
compromise position 	could have 	been on that.
Whether we had 	the 	right to do 	it 	or we
didn't have the right to do it. 	It's 	-- 	it's
one of those things 	that 	in my mind 	is 	not
really 	lend 	itself 	to 	a 	compromise position.
ALJ: 	Let me 	jump in here for a 	second. 	Mr.
O'Neill, 	had the Association in fact
compromised that position 	in the past 	by
agreeing 	that 	it 	could 	file 	its 	own
grievances 	on certain 	issues 	and 	could 	not
file 	its 	own grievances 	on other 	issues?
THE WITNESS: 	It appears 	it to be that way.
I was 	not part of those negotiations 	so 	I
don't know if 	it was part of 	a 	compromise
position or not.
ALJ: 	Okay. 	So 	I 	suppose that there could
have been 	further compromise 	in that 	the
Association could have 	sought 	to 	-- 	to
include 	additional 	items 	that 	it 	could 	find
and 	file 	some 	grievances 	on while 	not 	filing
-- while not reserving the right on -- 	on
every 	subject?
THE 	WITNESS: 	That 	— 	that 	appears 	to 	be
true, yes.
ALJ: 	Okay. 	Mr. 	Weiler.
Q 	(By Mr. 	Weiler) 	But you did not offer any
such 	compromise?
A 	That's 	correct.
Q 	But 	the 	question as 	to whether or not 	a
union 	should have a 	contractual 	right to 	file
a 	grievance 	on articles 	which benefit 	the
35

employees 	as 	opposed 	to 	directly benefiting
the union, 	that's 	really a yes 	or no
question, 	isn't it?
A 	Yes y 	I believe 	it 	is.
(RT, Vol. II, 78:3-81:1.)
Although 	the 	Association 	initiated 	the 	presentation 	and
discussion of 	the 	non-mandatory proposal 	and the 	District
responded with a 	non-mandatory 	counterproposal, 	the 	District was
lawfully under no 	obligation to discuss 	or agree 	to 	the
Association's 	proposal. 	There was 	no 	evidence presented that 	the
District 	insisted 	to 	impasse 	on the Association's 	agreement 	to
the counterproposal. 	Rather, 	the record shows that the
Association, 	and not the District, 	insisted to 	impasse on the
inclusion of 	the 	initial 	grievance 	rights 	proposal.
The Board's desire to reach an issue, 	like the potential 	for
employer intimidation of the grievance process, 	is 	not 	enough to
bring the 	issue under its 	jurisdiction. 	The 	facts 	and 	law do 	not
support 	a 	finding that the 	District refused 	to bargain 	in good
faith in violation of EERA section 3543.5(c). 	Accordingly, 	I
would dismiss 	the 	complaint based on the 	facts 	of 	the 	case.
Requirements 	for 	the 	Finding 	of 	a (c) Violation
The 	protection of public 	employees 	from being 	intimidated by
either 	employers 	or employee 	associations 	is 	one 	of 	the
legislative 	goals 	that was 	accorded 	in EERA 	sections 	3543,
3543.5(a), 	and 3543.6(b). 	In the context of this case, 	a refusal
to bargain in good faith, 	or a 	(c) 	violation, 	can be 	found under
the 	following circumstances: 	(1) 	the 	subject of bargaining 	is 	a
statutory right 	and 	a 	non-mandatory 	subject, 	outside 	the 	scope 	of
36

bargaining; 	(2) 	impasse was reached by the parties; 	and 	(3) 	the
employer's 	last, 	best and final 	offer was 	implemented.
Could this 	case have 	fit those 	conditions? 	No. 	Even had
the parties 	reached 	impasse 	only on the Association's 	right 	to
grieve, 	the remaining operative 	facts 	and 	law do not 	support 	a
finding of 	a 	(c) 	violation for the reasons 	listed below. 	Under
EERA, 	the Association does 	not have a 	statutory right to 	initiate
and prosecute grievances 	in its 	own name. 	Moreover, 	the 	subject
of 	the Association's 	grievance rights 	is 	a mandatory 	subject 	of
bargaining. 	Lastly, 	there 	is 	no evidence that the employer did
not bargain 	in good 	faith and 	implemented 	it's 	last, 	best 	and
final offer.
Statutory 	Rights
In NLRB v. 	Wooster Division of Borg-Warner Corp. 	(1958)
356 	U.S. 	342, 	the United States 	Supreme Court divided 	subjects 	of
collective bargaining 	into 	categories 	of mandatory, 	permissive
(non-mandatory), 	and illegal. 	As articulated by the court, 	the
basis 	for the division of 	the 	three 	categories was 	rooted 	in
section 8(d) 	of the National Labor Relations Act 	(NLRA) 	and 	its
description of 	the 	conduct 	that 	composes 	good 	faith bargaining.
Specifically, 	its definition of 	subjects 	of bargaining, 	including
wages, 	hours 	and other terms 	and conditions 	of employment.
However, 	there 	is 	another category of bargaining 	subjects
called 	statutory rights. 	The 	employees' 	right to the 	free
selection 	of 	an 	exclusive 	representative 	and 	the 	right 	to 	assist
labor 	organizations 	are 	two 	examples 	of 	statutory rights.
37

Statutory rights 	bargaining 	subjects 	have 	the 	qualities 	in the
context 	of 	bargaining that 	are 	similar 	to 	non-mandatory 	subjects
of bargaining. 	As 	a result of 	the origin of the 	statutory rights
subjects 	and the 	subsequent 	treatment of 	those 	subjects 	by 	the
NLRB and the 	courts, 	a 	separate and distinct analysis 	is 	required
where there 	is 	a 	claim that bargaining 	conduct 	relating to 	a
proposal 	concerning 	a 	statutory 	right has 	breached 	the 	statutory
right.
In contrast to the three 	categories 	of bargaining 	subjects,
statutory rights 	bargaining 	subjects 	arise 	not 	from NLRA 	section
8(d). 	but from section 7 of the NLRA. 	Section 7 	sets 	forth the
rights 	of 	employees 	protected by the NLRA. 	These 	rights 	include
"the right to 	self-organization, 	to 	form, 	join or assist 	labor
organizations 	to 	bargain 	collectively 	through 	representatives 	of
their 	choosing and 	to 	engage 	in other 	concerted 	activities 	for
the 	purpose 	of 	collective bargaining 	or 	other mutual 	aid 	or
protection."
The 	NLRB 	and the 	courts 	have held that, 	while 	there 	could be
a waiver of 	some 	statutory rights, 	there 	could be no waiver of
certain fundamental 	rights. 	Consistently, 	the NLRB and the
courts 	have 	held 	that 	unions 	cannot waive 	statutory 	rights 	that
threaten employees' 	rights 	of 	association and the 	corresponding
right 	to 	engage 	in the 	free 	selection of 	the bargaining
representative. 	(See Metropolitan Edison Co. 	v. 	NLRB 	(1983)
460 U.S. 	693; 	NLRB v. 	Magnavox Co. 	(1974) 	415 U.S. 	322.)
38

As with a non-mandatory 	(permissive) 	subject, 	the 	employer
cannot 	insist 	to 	impasse on a proposal 	concerning a 	statutory
right. 	The distinction is 	that, 	while 	statutory rights 	are not
directly rooted 	in terms 	and conditions 	of 	employment, 	as 	is 	the
case with non-mandatory 	subjects, 	statutory 	subjects 	are directly
based on 	rights 	protected by Congress.
To 	reach 	impasse on a 	non-mandatory 	subject 	is 	to 	engage 	in
bad 	faith bargaining by 	injecting 	extraneous 	subjects 	in
preference to subjects on wages, 	hours, 	and other terms and
conditions of employment. 	With 	statutory subjects, 	the 	employer
cannot 	insist to 	impasse because to do 	so 	is 	an infringement on a
right 	not 	given the 	employer.
While 	an employer 	can 	implement 	both mandatory and 	non-
mandatory proposals 	contained in its 	last, 	best, 	and final 	offer,
an 	employer 	cannot 	implement 	those 	items 	that 	concern 	statutory
rights. 	To do 	so would be destructive of those rights. 	Contract
proposals 	that 	embody 	statutory 	subjects 	of 	bargaining must 	be
affirmatively waived by 	the 	union 	in order 	to 	be 	included 	in a
contract.
EERA 	Statutory 	Rights
In this 	case, 	the ALJ relies on Latrobe Steel Co. 	(1979)
244 	NLRB 	528 	[102 	LRRM 	1175] 	and Marine & 	Shipbuilding Workers 	v.
NLRB 	(3d Cir. 	1963) 	320 F.2d 615 	[53 LRRM 2878] 	for the
proposition 	that 	an 	employer 	violated 	the 	NLRA by 	demanding 	to
impasse 	that 	the union agree 	to 	its 	proposal 	that 	the union 	could
not 	file grievances 	in its own name. 	More 	importantly, 	the ALJ
39

cited these 	cases 	for the proposition that 	the 	filing of
grievances 	in the name of 	the 	exclusive representative 	is 	a
statutory right. 	According to the ALJ, 	the union's 	statutory-
right arises 	from the exegesis 	of 	EERA 	section 3543, 	"Rights 	of
Employees."
On this point, 	I disagree and would overrule the ALJ.
First, 	I would note that the Latrobe Steele Co., 	supra, 	244 NLRB
528 	status 	quo was different. 	As 	the majority accedes, 	the
Latrobe 	employer proposed 	that 	the 	union give 	up 	its 	existing
contractual right to grieve in its own name. 	Here, 	however, 	the
District 	counterproposed 	that 	the Association keep 	its 	existing
contractual 	right to 	grieve 	in 	its 	own name 	on the 	six 	contract
articles. 	Secondly, 	although the NLRB found, 	in the underlying
Latrobe decision, 	that the 	employer 	could not demand 	that 	the
union waive 	its 	statutory right to represent employees, 	the 	Third
Circuit 	Court 	of Appeals 	reviewed 	and 	reversed 	that portion 	of
the 	decision where 	the NLRB held that 	the 	employer unlawfully
insisted 	to 	impasse 	on a 	grievance procedure 	that 	precluded 	the
union 	from bringing 	general 	grievances 	on behalf 	of 	unidentified
employees. 	(Latrobe Steele Co. 	v. 	NLRB 	(3d Cir. 	1980) 	630 F.2d
171 	[105 	LRRM 2393].) 	Thirdly, 	it must be recognized that the
Latrobe 	and Marine 	& 	Shipbuilding Workers 	courts 	derive 	the
union's 	statutory right 	to 	file 	and prosecute 	grievances 	not 	from
the exegesis of 	section 7 of the NLRA, 	"Rights of Employees," 	but
section 	9(a) 	of the NLRA, 	"Representatives 	and Elections." 	The
courts 	rely upon both 	9(a) 	and 8(d) 	for 	its 	holding on the 	right
40

of 	the union to grieve 	in its 	own name.4 In pertinent part, 	the
court held:
Under section 9(a) 	the union is 	the exclusive
representative of 	the 	employees 	"in respect
to rates of pay, wages, 	hours of employment,
or other conditions 	of 	employment." 	28
U.S.C.A. 	section 	159(a). 	Bethlehem's
proposal 	which would 	restrict 	the 	union's
role 	in the prosecution of 	grievances 	to
those 	complaints 	signed 	by 	individual
employees 	clearly 	limits 	this 	representation.
(Marine & Shipbuilding Workers, 	supra, 	53 LRRM 2878,
2881.)
The 	EERA 	section that 	covers 	employee 	organization rights 	is
section 	3543.1. 	EERA section 	3543.1 	is 	not parallel 	to NLRA
section 	9(a). 	EERA sections 	3543.1 	and 3543.2 	are not equal 	to
NLRA sections 	9(a) 	and 8(d). 	In fact, 	there is an absence of an
EERA provision 	that 	specifically makes 	the 	filing 	and 	prosecution
of 	grievances 	in its 	own name a union's 	independent 	statutory
right.
4The NLRB also recognizes that, 	under NLRA section 8(d), 	the
collective 	bargaining 	obligation 	of 	employers 	and 	bargaining
representatives 	include 	the duty 	"to meet 	at reasonable 	times 	and
confer in good faith with respect to wages, 	hours, 	and other
terms 	and 	conditions 	of 	employment 	. . . 	or 	any 	question 	arising
thereunder 	. . . " 	The 	NLRB 	and 	the 	courts 	have 	read 	this
obligation to 	cover the 	application of 	the 	terms 	of 	an agreement,
which usually arise 	in connection with grievances. 	Under EERA
section 	3543.3, 	the duty to negotiate does 	not 	include an
explicit 	requirement 	to 	meet 	and 	confer on any 	question arising
under a 	collective bargaining agreement. 	Instead, 	EERA
contemplates 	the union's 	involvement 	in various 	phases 	of 	the
grievance process, 	particularly the union's 	resolution of
contract 	disputes 	through 	grievance procedures 	that 	end 	in 	final
and binding arbitration. 	(See EERA sections 	3543.2, 	3548.5,
3548.6, 	3548.7, 	and 3548.8.) 	However, 	EERA does not accord the
union the 	same 	statutory rights 	given to 	individual 	employees 	in
regards 	to grievances.
41

The 	only EERA reference 	to 	the 	union's 	role 	regarding
grievances 	is 	contained at 	section 3543, 	"Rights of Employees."
Section 	3543 	refers 	only to 	the union's 	role 	in the 	settlement of
a 	grievance 	or arbitration of 	a 	grievance 	(where 	there 	is 	final
and binding arbitration).
The ALJ 	and my 	colleagues 	would derive 	and 	condition the
union's 	alleged 	statutory 	right 	to 	grieve 	from 	the 	employees'
statutory rights, 	generally. 	(See EERA section 3543.) 	EERA
employees' 	statutory rights 	include 	a provision which 	limits 	the
ability 	of 	the 	employee 	and 	employer 	in 	settling 	grievances 	prior
to 	a response 	from the union, 	and contrary to 	the 	collective
bargaining agreement. 	This provision qualifies 	the 	right 	of 	an
individual 	employee 	in the presentation and 	settlement 	of
grievances. 	The NLRA union's 	statutory rights 	includes 	a
provision 	that 	limits 	the 	union's 	representational 	rights 	where
an 	individual 	employee wishes 	to 	file 	and 	settle grievances
without 	the 	intervention of 	the bargaining representative. 	Under
the NLRA, 	the union's 	right to grieve 	is 	specifically related to
its 	broad representational duties 	and 	is 	independent 	of 	the
rights 	of 	employees. 	The Marine & 	Shipbuilding Workers 	court
underscored the union's 	rights when 	it 	reasoned:
. 	. 	. 	In short, 	the fact that individual
employees 	have the 	right 	to 	adjust their own
grievances 	does 	not mean that 	an employer 	can
restrict 	the union's 	statutory rights 	by
requiring 	that 	each 	grievance be 	signed by
the employee involved. 	. 	. 	.
(Marine & Shipbuilding Workers, 	supra. 	53 LRRM 2878,
2881; 	emphasis added.)
42

The 	Board 	is 	not bound to 	follow NLRB precedent where 	the
statutes 	are dissimilar and are not parallel.
The ALJ 	decision and 	majority 	opinion 	also 	rely 	on 	Modesto
City Schools 	(1983) 	PERB Decision No. 	291. 	Modesto is
distinguishable. 	The Modesto decision 	involved the 	right 	of 	an
exclusive 	representative 	to 	represent 	employees 	during 	the
employees' 	grievances. 	The Board did not rule that the exclusive
representative 	had 	the 	right 	to 	initiate 	and process 	grievances
in the union's 	own name or on behalf 	of the union.
The 	majority 	finds 	the 	New Jersey 	Supreme 	Court 	decision 	in
Education Association v. 	Red Bank Board of 	Education 	(1978)
99 	LRRM 2447 	to be 	instructive. 	I 	disagree. 	The New Jersey 	law
and 	facts 	are dissimilar to EERA and this 	case.
Unlike 	EERA, 	the New Jersey Public 	Employment 	Relations 	Act
provides, 	in pertinent part:
Public 	employers 	shall 	negotiate written
policies setting forth grievance 	. 	. 	.
procedures 	by means 	of which their employees
or representatives 	of 	employees may appeal 	.
. 	. policies, 	agreements and administrative
decisions 	. 	. 	. 	affecting them, that such
grievance 	. 	. 	. procedures shall be included
in any agreement 	entered 	into 	between the
public 	employer 	and 	the 	representative
organization. . . .
(New Jersey 	Employer-Employee 	Relations 	Act
34:13A-5.3; 	emphasis added.)
The 	explicit 	statutory authority 	for New Jersey union rights 	is
reinforced by the New Jersey Constitution 	in which Article 	I,
paragraph 	19 	accords public 	employees 	the right to present 	their
grievances 	and proposals 	through representatives 	of 	their 	own
choosing. 	The New Jersey 	Employer-Employee 	Relations 	Act 	also
43

explicitly makes 	it 	an unfair practice 	for 	employees 	to 	refuse 	to
.process 	grievances 	presented by 	the 	exclusive 	representative.
(See 	New Jersey Employer-Employee 	Relations Act 	34:13A-
5.4(a)(5).) 	Unlike New Jersey, 	the California Constitution and
EERA 	contain no 	relevant parallel 	statutory 	authority.
Further, 	the majority misstates 	the 	issue before the New
Jersey court. 	The 	issue before the 	court was 	not whether the
exclusive 	representative had 	the 	right 	to 	file 	and prosecute
grievances 	in its 	own name. 	The 	issue was whether any existing
statutory 	right 	of 	a 	majority 	representative 	to 	file 	organization
grievances 	could be the 	subject of 	a 	contractual waiver. 	The
case before 	the Board does 	not present the 	issue of 	contractual
waiver of 	a 	statutory right.
Lastly, 	the Red Bank facts 	differ 	from the 	facts 	in the 	case
before 	the 	Board. 	The Red Bank union 	sought a 	judicial
declaration that 	it had a 	statutory right to grieve 	in 	its 	own
name 	only after the 	employer 	sought 	(by 	injunctive 	relief) 	to
restrain 	the 	union 	from pressing a 	grievance 	that 	it 	had 	filed 	in
its 	own name. 	Here, 	the case concerns 	conditional bargaining
where 	there were 	no 	claims 	made by the Association that 	it 	filed
a 	grievance 	in 	its 	own name 	and that the 	District did 	not process
such a grievance.
Based 	on 	statutory 	language 	of 	EERA 	and the 	foregoing
argument, 	I 	conclude there 	is 	no 	statutory right under EERA of a
union to 	file and prosecute 	grievances 	in its 	own name.
44

Assuming arguendo, 	that, 	under EERA, 	the Association has a
statutory right to grieve 	in its 	own name, 	then the 	complaint
must be dismissed, 	because 	the Association 	failed to 	show that
the 	District did not bargain 	in good 	faith. 	EERA does 	not
require the parties 	to reach agreement, 	generally, 	and EERA
certainly does 	not require the parties 	to agree to 	include 	a
statutory right 	in a 	collective bargaining agreement. 	Much 	like
a 	non-mandatory 	subject of bargaining, 	the party who 	seeks 	a
change 	cannot 	insist 	to 	impasse upon its 	statutory rights
proposal.
In the 	case at bar, 	the Association 	initially proposed a
change 	to 	the 	successor 	contract which would allow the
Association to grieve 	in its 	own name. 	The Association did not
seek 	to 	exclude 	or delete 	the 	expired 	contract provision that
permitted the Association to 	grieve 	on the 	six 	contract 	articles.
The District counterproposed maintenance of the 	status 	quo, 	the
expired 	contract provision. 	Clearly, 	the Association was 	the
moving party who 	sought a 	change. 	Moreover, 	the record 	shows
that, 	at the point of 	impasse, 	the Association saw no room for
compromise 	on 	its 	proposal. 	The Association was 	the party who
sought a change. 	More importantly, 	there is no evidence that the
District 	conditioned 	agreement 	upon 	its 	grievance
counterproposal.
The 	nature 	of 	statutory rights 	is 	such that 	the 	right does
not have 	to be 	embodied 	in a 	collective bargaining agreement; 	the
right 	is 	provided by the 	Legislature 	and 	enforced by PERB.
45
'

Mandatory 	Subject 	of 	Bargaining
Grievance procedures 	are 	expressly 	included within 	the 	scope
of 	representation 	(see EERA section 3543.2(a)), 	and this 	Board
has previously held that, 	generally, 	grievance procedures 	are a
mandatory 	subject 	of 	bargaining. 	(Anaheim City 	School 	District
(1983) 	PERB Decision No. 	364.) 	While I 	concur with the majority
that 	matters 	not 	specifically 	enumerated 	in EERA 	section 	3543.2
are 	subject 	to 	the 	three-prong test 	in Anaheim Union High 	School
District 	(1981) 	PERB Decision No. 	177, 	I 	strongly reject the
majority's 	modification 	of 	the 	test 	and remain unpersuaded 	that
the 	test needs 	modification to 	reach the desired result.
Under Anaheim, 	a 	subject will be 	found to be a mandatory
subject of bargaining if: 	(1) 	it 	is 	logically and reasonably
related to hours, 	wages, 	or an enumerated term and condition of
employment; 	(2) 	the 	subject 	is of 	such concern to both management
and 	employees 	that 	conflict 	is 	likely to 	occur and the mediatory
influence 	of 	collective 	negotiations 	is 	the 	appropriate 	means 	of
resolving the conflict; 	and 	(3) 	the employer's obligation to
negotiate would 	not 	specifically 	abridge 	the 	employer's 	freedom
to 	exercise the managerial 	prerogatives 	essential 	to 	the
achievement 	of 	the 	employer's 	mission.
As 	the union's 	right to grieve 	is 	related to terms 	and
conditions 	of 	employment, 	the 	first prong of the test 	is
satisfied. 	A union grievance 	is 	a way 	in which 	employees 	can
collectively 	challenge the propriety 	of 	an employer 	action which
has 	an 	impact on employment 	terms 	and 	conditions.
46

A union's 	right to 	grieve 	is 	such a 	concern to management
and employees 	that 	conflict 	is 	likely to occur as 	it has 	in this
case, 	and the negotiating process 	is 	a means by which the
conflict 	can be resolved. 	Therefore, 	the 	second prong of 	the
test 	is 	met because 	the potential 	for 	employer conflict 	and
absolute 	control 	over the 	subject matter has 	the 	impact 	of
effectively deterring the 	employees' 	collective 	ability to
enforce 	the 	administration of 	the 	contract 	terms.
With respect to the third prong, 	the 	employer's 	obligation
to 	negotiate this 	subject does 	not 	abridge 	the 	employer's 	freedom
to 	exercise managerial prerogatives. 	Nor does 	the union's
obligation to 	negotiate 	this 	subject 	abridge the union's 	freedom
to 	enforce 	the 	contract. 	A number of 	collective bargaining
agreements 	prohibit management's 	right 	to 	grieve. 	At 	the 	same
time, 	a 	contract clause that limits 	the union's 	right to grieve
in 	its 	own name does 	not 	intrude on a union's 	right to manage the
contract. 	In a 	contract that does 	not permit management to
grieve, 	management has no recourse. 	However, 	where a contact
does 	not permit the union to grieve 	in its 	own name, 	as 	here 	in
certain circumstances, 	the union can still 	redress 	contractual
wrongs through its members' 	grievances. 	Accordingly, 	I 	conclude
that the union's 	right to grieve meets 	all prongs 	of 	the Anaheim
test and 	is, 	therefore, 	a mandatory subject of bargaining. 	Under
EERA, 	the parties 	may 	lawfully maintain their positions 	on
mandatory 	subjects 	of 	bargaining to 	impasse.
47

Implementation of 	Last. 	Best and Final Offer
An 	employer 	fails 	to 	bargain 	in good 	faith over mandatory
subjects 	of bargaining if the 	employer implements 	his 	last, 	best
and 	final 	offer prior to 	the 	completion of 	the 	EERA 	statutory
impasse proceedings. 	In this 	case, 	the record 	shows 	that the
employer reached 	impasse, 	but did not 	implement 	its 	final 	offer.
Rather, 	the District counterproposal was 	included 	in a 	lawful
collective bargaining agreement with the Association. 	Therefore,
I 	conclude 	that 	the 	District 	did 	not 	violate 	EERA by 	failing 	to
bargain 	in good 	faith over 	a 	mandatory 	subject 	of 	bargaining.
48

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. 	LA-CE-2750,
Southwest Teachers Association, 	CTA/NEA v. 	South Bay Union School
District, 	in which all parties 	had the right to participate, 	it
has 	been 	found 	that 	the 	South 	Bay 	Union 	School 	District
(District) 	violated section 3543.5, subdivision (c) 	of the
Educational 	Employment Relations Act 	(Act) 	by insisting to
impasse on contractual 	language outside the 	scope of
representation which has 	the 	effect 	restricting 	the 	union's 	right
to 	file grievances 	on its 	own behalf.
As 	a result of this 	conduct, 	we have been ordered to post
this 	Notice we will:
A. 	CEASE AND DESIST FROM:
1. 	Insisting to 	impasse on contractual 	language
outside 	the 	scope 	of 	representation which has 	the 	effect
restricting the union's 	right 	to 	file 	grievances 	on 	its 	own
behalf.
2. 	Enforcing and giving 	effect 	to those portions 	of
the 	1988-90 	collective bargaining 	agreement which 	restrict 	the
Association's 	right 	to 	file 	and process 	grievances 	in 	its 	own
name.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	THE
EDUCATIONAL 	EMPLOYMENT 	RELATIONS ACT:
1. 	Accept and process 	all 	contractual 	grievances
filed by the Association in its 	own name, 	irrespective of 	any
contractual 	terms 	or other policies 	in effect which deny the
Association that right, 	for the term of 	the 	current 	contract
which expires June 30, 	1990.
DATED: 	SOUTH 	BAY 	UNION 	SCHOOL 	DISTRICT
By_
Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.