San Mateo County Community College District * * * CLARIFIED by County of San Diego (2026) PERB Decision No. 3006-M and County of Riverside (2013) PERB Decision No. 2307-M * * * (PERB 1030E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN MATEO FEDERATION OF TEACHERS,
AFT LOCAL 1493, 	AFL-CIO,
Charging 	Party,
v.
SAN MATEO COUNTY COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1414
PERB Decision No. 	1030
December 	23, 	1993
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Appearances: 	Robert J. 	Bezemek, 	Attorney, 	for San Mateo
Federation of Teachers, 	AFT Local 	1493, 	AFL-CIO; 	Brown & Conradi,
by William E. 	Brown, 	Attorney, 	for San Mateo County Community
College District.
Before Hesse, 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal by the 	San Mateo County
Community College District 	(District) 	to a proposed decision of 	a
PERB administrative 	law judge 	(ALJ). 	The ALJ found that 	the
District violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA
or Act) 	section 3543.5(b)1 by refusing to provide the San Mateo
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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.
* * * CLARIFIED by County of San Diego (2026) PERB Decision No. 3006-
M and County of Riverside (2013) PERB Decision No. 2307-M * * *

Federation of Teachers, 	AFT Local 1493, 	AFL-CIO 	(Federation), 	a
reasonable amount 	of 	released time 	for meeting, 	negotiating and
processing grievances. 	The ALJ also 	found that 	the District
violated EERA section 	3543.5(c) 	by 	refusing 	to negotiate 	in good
faith about 	released 	time 	and 	conditioning a 	final 	agreement 	on
the 	Federation's waving 	the 	right 	to a 	reasonable amount 	of
released time. 	Finally, 	the ALJ found that 	the District violated
EERA section 3543.5(e) 	when 	it 	failed to participate 	in the
impasse procedures 	in good 	faith.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
We have 	reviewed the 	entire 	record 	in this 	case, 	including
the proposed decision, 	the District's 	exceptions 	and the
Federation's 	response thereto. 	Based upon this 	review, 	we affirm
in part 	and 	reverse 	in part 	the proposed decision of 	the ALJ as
discussed 	below.
FACTUAL 	SUMMARY
The District 	is made up of 	three 	campuses: 	Skyline College
in San Bruno, 	Canada College in Redwood City, 	and College of
San Mateo 	in San Mateo. 	Total 	faculty 	is 	approximately 	1,103.
Approximately 543 	faculty are 	Federation members.
In 1978, 	under the California Teachers Association's
representation, 	a 	contract 	was 	negotiated which provided three
units of released time. 	In 1981, 	after a change of
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representation to 	the 	Federation, 	the parties agreed to 	three
faculty load credits 	(FLC) 	of 	released time.2
In 1983, 	negotiations between the parties provided 	for
released 	time without 	loss 	of 	compensation 	for up 	to 	four members
of 	the 	Federation's 	team when negotiation 	sessions 	conflicted
with normal 	District 	assignments.
In 1986, 	the 	Federation initially proposed 30 	FLCs 	of
released time. 	The District did not 	respond, 	and the 	status quo
remained. 	During 	1987 reopener negotiations, 	the parties 	agreed
to 	increase 	released 	time 	from three 	FLCs 	to 	six FLCs 	per
semester.
During 1987-88 	negotiations, 	the 	Federation proposed 42 	FLCs
of 	released time. 	The District proposed no 	change, 	and released
time 	remained at 	six FLCs.
The 	19 89-90 	negotiations 	took place 	from April 	1989 	to
January 1990. 	There were 32 	negotiating sessions. 	Initially,
the 	Federation proposed 	30 	FLCs 	of 	released 	time and 	the 	District
proposed no 	change. 	By the 	Fall 	of 	1989 	the District 	had not
changed 	its position on released time. 	The 	Federation reduced
its 	released time proposal 	to 24 	FLCs, 	and by December of 	1989,
the 	released time proposal 	was 	further 	reduced 	to 	18 	FLCs.
Around this 	same 	time, 	the parties agreed to 	salary 	increases 	for
full-time and part-time 	instructors. 	However, 	these 	increases
2Under the 	contract, 	a 	full-time unit member is 	expected to
provide 	services 	corresponding to 30 	FLCs per year, 	or 15 per
semester. 	One FLC is equivalent 	to one unit.
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could not 	be 	implemented until 	the 	parties 	reached agreement 	on
the 	remaining 	issues, 	including released time.
The parties were unable to reach agreement. 	In 1990, 	PERB
certified 	that 	an 	impasse 	existed. 	Outstanding 	issues 	included
seniority for part-time 	instructors, 	personnel 	necessity leave,
and 	released 	time.
After mediation, 	the parties 	agreed to a contract which
included no 	increase 	in released time. 	During negotiations, 	the
Federation on 	several 	occasions 	raised 	the 	released 	time 	issue.
However, 	the District's 	counter-proposals 	simply 	ignored released
time. 	Testimony 	indicates 	that 	the District believed that 	the
status quo was 	reasonable.
Joe Barry, 	the 	Federation's 	executive 	secretary, 	conducted a
survey 	to 	determine 	the 	amount 	of 	time 	elected and appointed
officers 	devoted to 	Federation business 	during 	the 	Fall 	of 	1990.
The 	survey 	contained 	information about 	Federation activities 	in
which released time may be granted. 	For instance, 	the 	survey
indicated 	that 	a 	Federation 	official 	spent 	an average 	of 	30 	hours
per week performing 	these 	duties. 	These 	duties 	included being a
chief 	grievance 	officer 	for bargaining 	team members.
Additionally, 	there was 	testimony that 	time 	spent 	in
grievances 	has 	increased as 	they had become more 	numerous 	and
complicated.
At 	each campus, 	the 	Federation has 	three chapters 	that are
served by 	chapter 	chairpersons. 	The 	survey 	indicated 	that 	the
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three 	chapter 	chairpersons 	spent 	an average 	of 	eleven hours 	per
week 	on 	Federation 	activities 	involving 	representational 	duties.
The 	Federation president 	historically has 	received 	three
FLCs. 	The 	chief 	grievance 	officer 	receives 	the 	remaining 	three
FLCs. 	Other stewards, 	negotiators, 	or representatives received
no 	released 	time.
In 1984-85, 	District 	representatives 	spent approximately 68
hours 	preparing 	for negotiations, 	and approximately 46.5 	hours 	at
the table. 	In addition, 	the District 	representative spent
approximately 37 	hours processing grievances. 	Total 	costs billed
by 	the District under SB 	90 	for 	1984-85 	was approximately
$9,283.00.
In 1985-86, 	District 	representatives 	spent approximately 38
hours preparing 	for negotiations, 	and approximately 73 	hours at
the 	table. 	The 	total amount 	submitted under SB 90 	for 1985-86
was $5,156.00.
In 1987-88, 	District 	representatives 	spent approximately 37
hours preparing 	for negotiations, 	and approximately 60 	hours at
the table. 	In addition, 	approximately 55.75 hours was 	spent
processing grievances. 	Total 	costs 	submitted by 	the District
under SB 	90 	was approximately $10,000.00.
In 1988-89, 	District 	representatives 	spent approximately 114
hours preparing 	for negotiations, 	and 177.5 	hours at 	the 	table.
In addition, 	District 	representatives 	spent approximately 549.5
hours 	processing grievances. 	Total 	costs billed by the District
under SB 	90 was 	approximately $71,000.00.
5
5

In 1989-90, 	District 	representatives 	spent approximately 59
hours preparing for negotiations, 	and 105 hours at 	the table. 	In
addition, 	District 	representatives 	spent 	approximately 	633.75
hours 	processing grievances. 	The 	total 	costs billed by the
District under SB 	90 	was 	approximately $91,000.00.
ALJ 	PROPOSED 	DECISION
The ALJ 	reviewed 	PERB's 	policy underlining 	the 	right 	to
reasonable released time 	found in section 3543.l(c)3 (Magnolia
School District 	(1977) 	EERB Decision No. 	19 	(Magnolia)4) 	and that
released 	time may be 	granted 	for 	time 	spent 	in 	the negotiating
process. 	(Sierra Joint 	Community College District 	(1981) 	PERB
Decision No. 	179 	(Sierra).)
The 	ALJ 	concluded 	that 	the 	same 	approach 	should be 	applied
to 	the processing of 	grievances 	and not 	to 	time 	spent 	in
grievance meetings 	or arbitration hearings. 	The ALJ determined
that 	the processing of grievances 	is 	a 	"form of 	continuing
negotiations" 	of 	the 	contract 	in which 	"adjustment 	of 	the
grievance provides 	the meaning and 	content 	to 	the 	general 	and
often deliberately ambiguous 	terms 	of 	the agreement." 	(Chaffey
Joint Union High School District 	(1982) 	PERB Decision No. 	202.)
3Section 3543.1(c) 	states:
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right
to 	receive 	reasonable periods 	of 	released
time without 	loss 	of 	compensation when
meeting 	and negotiating and 	for 	the
processing of grievances.
4Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
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The ALJ also 	stated 	that 	whether 	the 	amount 	of 	released 	time
is 	reasonable 	is 	a question of 	fact 	and must be 	determined based
on the circumstances of each case. 	(Sierra, 	p. 	7.) 	Based on the
following, 	the ALJ concluded that 	six FLCs per semester of
released time was not 	"reasonable" 	under EERA section 3543.l(c).
The ALJ 	found 	that 	the 	Federation had documented 	its 	need
for more 	released 	time 	in 	the 	areas 	of 	negotiations 	and overall
contract 	administration. 	He 	relied on the District's 	substantial
increase 	in 	the 	amount 	of 	time 	and money devoted 	to negotiations
and grievance processing 	in the past 	three years. 	Additionally,
the 	cost 	to 	the District 	for six FLCs 	of 	released time,
approximately 	$8,000 	annually, 	was 	not 	excessive when compared to
the District 	expenditures 	during 	the 	same period.
Further, 	the amount 	of 	released time awarded to the
Federation had remained 	fixed at 	the 	1987 	level. 	The ALJ
concluded that 	the 	evidence showed that 	it 	is apparent 	that
circumstances 	had 	changed and 	the 	need 	for 	released 	time 	had
greatly 	increased.
The ALJ also used comparative 	data 	of 	other 	college
districts 	in regards 	to their released time provisions. 	(Sierra,
p. 	7.) 	Although he 	ruled that 	it was not dispositive of 	the
issue presented here, 	released time granted 	in other community
college 	districts 	could be 	examined.
In conclusion, 	the ALJ 	found that 	the 	Federation received
less 	released 	time 	than any comparable Bay Area district, 	with
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few exceptions. 	Therefore, 	he 	found that 	the District violated
EERA section 3543.1(c) 	and thus section 3543.5(b).
The 	complaint 	further alleged 	that 	the:
. 	. 	. 	Respondent's 	[District's] 	only proposal
on 	the 	subject 	of 	released time was 	to
maintain 	that 	amount 	delineated 	in 	the
expired contract 	. 	. 	. 	which fell vastly
short 	of 	Charging 	Party's 	requirements 	for
released 	time.
The ALJ 	construed 	the 	regional 	attorney's 	allegations 	as
encompassing two separate 	court 	related issues: 	(1) 	whether the
District 	refused 	to 	negotiate 	about 	released 	time 	by presenting
only one proposal 	which 	fell 	"vastly short" 	of 	the 	Federation's
requirements; 	and 	(2) 	whether the 	final agreement was based on
waiver of 	the 	statutory 	right 	to 	reasonable 	released 	time.
Between April 	1989 	and January 	1990, 	the ALJ 	found that 	the
Federation 	raised 	the matter 	of 	released 	time 	on numerous
occasions. 	The 	Federation initially proposed 30 	FLCs, 	reduced it
to 24 	FLCs, 	and dropped it again to 	18 	FLCs 	in an attempt 	to
reach agreement. 	It was 	found that 	the District made no counter-
proposal, 	and did not 	respond in any meaningful way. 	Eventually,
the District 	representative 	replied 	to 	the 	Federation 	that 	the
District 	had 	rejected 	the 	Federation's 	proposals 	and 	there was 	no
room for movement. 	It appears 	that 	this 	short 	exchange between a
representative 	of 	the District 	and 	Federation was 	the 	only
discussion of 	released time 	during 	the 	entire 	round of
negotiations 	prior 	to mediation.
The 	ALJ 	determined 	that 	the 	District 	plainly had not
"exhibited an open attitude 	in 	its 	consideration of 	the amount 	of
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released time to be allowed." 	(Magnolia, 	p. 	5.) 	The ALJ further
concluded 	that 	the District violated EERA section 	3543.5(c) 	when
it 	refused 	to 	negotiate 	in good 	faith about 	released 	time 	in
excess of 	six FLCs.
Additionally, 	the ALJ determined that 	the ultimate 	effect 	of
the District's 	refusal 	to bargain 	in good 	faith on 	released 	time
was 	to 	condition 	final 	agreement 	on 	the 	Federation waiving 	its
statutory right 	to 	reasonable 	released 	time.
Finally, 	the ALJ determined that 	the District 	continued 	its
refusal 	to 	discuss 	or make 	concessions 	on 	released 	time 	during
two mediation sessions. 	By 	its unyielding 	conduct before 	the
mediator, 	the ALJ determined that 	the District 	failed to
participate 	in 	the 	impasse procedure 	in good 	faith, 	in violation
of EERA section 3543.5(e).5
DISTRICT'S 	EXCEPTIONS
On appeal, 	the District makes numerous 	factual 	and legal
exceptions 	to 	the proposed decision. 	The District 	contends 	that
the 	1989 	collective 	bargaining 	agreement 	ratified by 	the
Federation precludes 	any argument 	that 	the 	statutory 	right 	to
released time was violated. 	Further, 	the District argues 	that
although 	the ALJ was 	correct 	in allowing 	comparative 	data be
entered 	into 	the 	record concerning other districts, 	the ALJ
accorded 	too much weight 	to 	the 	data. 	The District 	also 	contends
the ALJ 	should have used 	the 	totality of 	the 	circumstance 	test
5In 	its 	amended 	complaint, 	the 	Federation also alleged that
the District 	unlawfully assisted 	the Academic Senate by awarding
it 	24 	FLCs 	of 	released time. 	The ALJ's proposed decision
determined 	that 	there was 	no basis 	to 	conclude 	that 	the 	released
time given to 	the 	Senate was unreasonable as 	alleged. 	As no
exception was 	raised regarding 	this 	issue, 	we affirm the ALJ.
99

instead of 	finding a per 	se violation 	of 	the District's
obligation to negotiate 	in good 	faith. 	Finally, 	the District
contends 	that 	the 	Federation's 	allegation 	that 	the District
bargained 	in bad 	faith 	is 	barred by 	the 	statute 	of 	limitations.
FEDERATION'S 	RESPONSE 	TO DISTRICT'S 	EXCEPTIONS
The 	Federation first argues 	that 	the District's 	statement 	of
exceptions 	should be 	rejected 	as 	not 	complying with Board
regulations 	regarding 	the 	form and 	content 	of 	the 	exceptions.
Specifically, 	the 	Federation alleges 	that 	the District 	failed to
comply with 	PERB Regulation 	323006 and 	that 	numerous 	factual
statements 	were made by 	the District 	without 	any 	citation of 	the
record.
The 	Federation also 	contends 	that 	it 	was appropriate 	for the
ALJ to 	consider released time practices 	in other districts. 	The
Federation points 	out 	that 	the District 	does not 	except 	to 	the
ALJ's 	consideration of 	"industry practice" 	regarding 	released
time, 	but urges 	the Board to reverse the decision as 	the ALJ
"accorded great 	weight" 	to 	industry practice 	evidence 	that 	was
"hopelessly 	inadequate 	to 	support 	a 	legal 	conclusion." 	The
Federation argues 	that 	in 	raising this 	argument 	the District 	does
not 	challenge 	this part of 	the Sierra precedent. 	Further, 	the
Federation 	contends 	the ALJ acknowledged 	that 	the 	released 	time
practices 	of 	other districts was but 	one 	factor 	in his
6PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
10

determination 	that 	the 	Federation was 	not 	provided 	reasonable
statutory 	required 	released 	time.
Finally, 	the 	Federation argues 	that 	the ALJ was 	correct 	in
finding 	the 	District 	negotiated 	in bad 	faith and 	that 	the
District 	did not 	bargain 	in good 	faith during 	impasse.
DISCUSSION
Conformance 	with 	PERB 	Regulation 	32300
The 	Federation urges 	the 	Board 	to dismiss 	the District's
appeal 	for 	failure 	to 	comply with PERB Regulation 32300. 	Under
Regulation 32300. a party filing 	exceptions 	to a proposed decision
must 	comply with specific 	guidelines 	that 	the 	statement 	of
exceptions 	include: 	(1) 	a statement of the specific 	issues 	of
procedure, 	fact, 	law or rationale to which each exception is
taken; 	(2) 	identification of 	the page or part of 	the decision to
which exception is 	taken; 	(3) 	designation of 	the portions of 	the
record relied upon; 	and 	(4) 	the grounds 	for each exception.
(PERB Reg. 	32300, 	subd. 	(a)(l)-(4).)
Although the Board agrees 	that 	the District's 	statement 	of
exceptions 	could have been better defined with 	clearer 	references
made 	to the 	record, 	the Board finds 	the District's brief 	to be 	in
substantial 	compliance with 	PERB 	regulations.
Per Se Violation of 	Obligation 	to Negotiate 	in Good 	Faith
The District 	asserts 	that 	only 	the bad 	faith bargaining
allegations 	during 	impasse are 	timely. 	The District 	argues 	that
the 	negotiating 	in bad 	faith 	charge 	should be 	dismissed as 	barred
by the 	statute 	of 	limitations. 	To the 	contrary, 	the Board finds
11

that 	the 	complaint 	sufficiently 	included 	refusal 	to bargain 	in
good faith allegations under paragraphs 	(4) 	and 	(5) 	of 	the
complaint which was 	issued by PERB on October 31, 	1990. 	Impasse
was declared on January 16, 	1990. 	The 	charge was 	filed on
July 16, 	1990. 	As 	the Board finds 	this allegation was 	timely
filed,7 the Board will 	consider the 	argument 	on 	its merits.
The 	District 	contends 	the ALJ erred 	in 	finding 	that 	the
District 	committed a per 	se violation of 	the District's
obligation 	to negotiate 	released 	time 	in good faith.
During 32 	negotiating sessions between the parties, 	the
Federation provided data 	to 	the District 	concerning 	its 	request
for 	increased 	released time. 	When 	the 	Federation asked 	for
information concerning the proposal, 	the District 	failed to
discuss 	in any meaningful 	way 	its 	position to keep 	the 	status
quo. 	Testimony 	indicates 	that 	the District may have 	refused to
provide reasons 	for 	its position out 	of 	fear that 	its position
and 	rationale would be 	"misquoted" 	in the 	Federation's
publication. 	However, 	this position was not 	conveyed to the
Federation nor was 	any other rationale 	given by 	the District 	for
its 	reasons 	to maintain the 	status quo.
7 In San Dieguito Union High School 	District 	(1982) 	PERB
Decision No. 	194, 	the Board held that an unfair practice 	charge
may 	still 	be 	considered 	to be 	timely 	filed 	if 	the alleged
violation 	is 	a 	continuing one. 	A continuing violation occurs 	if
the 	violation has 	been 	revised by 	subsequent 	unlawful 	conduct
within the six month statute of 	limitations. 	In this 	case, 	the
District's 	refusal 	to negotiate 	regarding 	released 	time was
consistent 	and 	continuing 	throughout 	negotiations 	and 	impasse
proceedings. 	As 	the allegations 	of bad 	faith bargaining
constitute a 	continuing violation, 	we 	reject 	the District's
exception regarding 	the 	statute of 	limitations.
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Based on the 	facts 	as presented 	in this 	case, 	the Board
finds 	that 	the District's 	flat 	refusal 	and 	failure 	to negotiate
about 	released time 	constitutes by 	itself, 	a refusal 	to bargain
in good faith. 	Accordingly, 	the Board affirms 	the ALJ's 	finding
that 	the District 	refused to bargain 	in good 	faith on the 	issue
of released time, 	in violation of EERA section 3543.5(c). 	(See
Modesto City Schools 	(1983) 	PERB Decision No. 	291, 	p. 	45; 	Davis
Joint Union High School District 	(1984) 	PERB Decision No. 	474,
pp. 	25-26.)
As 	the Board 	finds 	a per 	se violation of 	the 	duty 	to bargain
in good faith, 	and for the discussion to follow, 	the Board finds
it 	unnecessary 	to 	review the 	District's 	exceptions 	concerning 	the
ALJ's use 	of 	comparative data.
Bargaining 	in Bad 	Faith During 	Impasse
The 	ALJ 	concluded 	that 	the 	District 	bargained 	in bad 	faith
during 	impasse. 	During 	impasse, 	three 	issues were on the 	table
before the parties: 	personal necessity leave; 	issue of part-time
employment 	and an 	increase 	in 	reassigned 	time 	for 	the union.
The 	Federation argues 	that 	it 	only agreed to 	the 	contract 	as
the 	issues 	on 	the 	table 	during 	impasse 	concerned nonmonetary
issues, 	and Federation negotiators were under pressure 	from
bargaining unit members 	to 	settle 	the 	contract 	so 	certain
employees 	could 	receive 	salary 	increases 	retroactively.
The parties met 	for two mediation sessions. 	On all 	three
issues, 	the District did not 	support 	changes until 	impasse. 	The
District 	representative 	testified 	that 	in 	conversations 	with 	the
13

mediator, 	he 	offered a proposal 	to have 	the 	Federation buy
released time. 	This 	statement was not 	contradicted nor
challenged by the 	Federation. 	The question 	that 	arose 	in
testimony was 	whether 	or not 	the mediator had actually presented
the proposal 	to 	the 	Federation. 	Although 	it would seem that 	this
proposal 	would have 	shown movement 	on the District's part, 	the
ALJ nonetheless 	correctly 	ruled 	that 	it 	was 	not 	dispositive 	of
the issue.
The Board finds 	that 	the 	record of 	the 	case 	is not
sufficient 	to 	reverse 	the ALJ's 	finding 	that 	the District 	failed
to participate 	in 	the 	impasse procedure 	in good 	faith.
Therefore, 	the Board affirms 	the ALJ's 	finding that 	the District,
during mediation, 	violated EERA section 3543.5(e) 	by refusing 	to
participate 	in 	the 	impasse procedures 	in good 	faith.
Released Time 	as 	Both a Mandatory Subject 	of 	Bargaining
and 	a 	Statutory 	Right
This 	case presents 	an 	opportunity 	to 	clarify and 	thus
make more 	consistent, 	the 	concept 	of 	released time as 	it appears
and 	is 	applied under 	the 	Educational 	Employment 	Relations Act,
the Ralph C. 	Dills Act 	(Dills Act or Act) 	and the Higher
Education Employer-Employee Relations Act 	(HEERA or Act).8
Effective in 1976, 	EERA section 3543.1(c) 	created a
statutory 	right 	to 	released 	time:
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right
8The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	and HEERA is 	codified at Government 	Code 	section 3560 	et
seq.
14

to 	receive 	reasonable periods 	of 	released
time without 	loss 	of 	compensation when
meeting 	and 	negotiating 	and 	for 	the
processing of grievances.
In the 	subsequent years and cases, 	PERB has determined that
released 	time 	is 	also a mandatory subject 	of 	bargaining.
(Magnolia.)
Effective July 1, 	1979, 	the HEERA treated released time 	(or
reassigned time) 	in a similar manner, 	but with one 	significant
difference 	concerning 	the 	effect 	of 	a memorandum of
understanding.
HEERA section 3569 	states:
A reasonable number of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right
to 	receive 	reasonable periods 	of 	released or
reassigned 	time without 	loss 	of 	compensation
when 	engaged 	in meeting 	and 	conferring 	and
for 	the processing 	of 	grievances 	prior 	to 	the
adoption of 	the 	initial memorandum of
understanding.. 	When a memorandum of
understanding is 	in effect, 	released or
reassigne
- - d 	time 	shall 	be 	in accordance with
the memorandum.
(Emphasis 	added.)
A year earlier, 	the Dills Act9 was passed and a
virtually 	identical 	section 	concerning 	released 	time 	is 	found.
Dills Act 	section 3518.5 	states:
A 	reasonable 	number 	of 	employee
representatives 	of 	recognized 	employee
organizations 	shall 	be 	granted 	reasonable
time 	off without 	loss 	of 	compensation or
other benefits 	when 	formally meeting 	and
conferring with 	representatives 	of 	the 	state
on matters within the 	scope 	of
representation.
1Prior to January 1, 	1987, 	the Dills Act was known as SEERA.
15

This 	section shall 	apply 	only 	to 	state
employees, 	as defined by subdivision 	(c) 	of
Section 3513.. 	and only for periods when a
memorandum of understanding 	is 	not 	in effect.
(Emphasis 	added.)
Given 	the 	legislative 	history and progression 	of 	the 	three
Acts 	in question, 	the Board does not believe that 	it was 	intended
under 	EERA that 	employees 	would be 	accorded 	special 	privileges
relative 	to released time; 	that 	is, 	be afforded the protection
of 	bargaining 	the matter as 	a mandatory 	subject 	of 	bargaining
and, 	regardless 	of 	the degree 	of 	good 	faith bargaining which
occurs, 	be given the 	right 	to attack an agreement previously
reached with 	the 	employer 	through 	the 	unfair practice 	process
only because 	the 	quantity may not be 	equal 	to 	the average 	of
surrounding 	jurisdictions 	or 	some 	other empirical 	standard.
Here, 	the 	Federation 	complained about 	the District's bargaining
conduct and filed an unfair practice 	charge 	on July 	16, 	1990,
long after 	the per 	se bad 	faith bargaining 	conduct 	took place 	and
also after 	the parties 	reached agreement. 	The 	timing of 	the
filing of 	the 	charge belies 	the 	Federation's 	assertion that 	the
District 	failed 	to provide 	reasonable 	released 	time 	in 	such a
bilateral 	agreement.
The 	Board does 	not 	believe 	that 	such a notion 	is 	consistent
with how released 	time 	is 	treated 	in 	the 	other 	two Acts 	nor with
the 	concept 	of 	finality once 	a 	collective bargaining agreement
has 	been 	ratified by both sides.
Accordingly, 	under the 	facts of 	this 	case, 	the Board finds
that 	released time, 	as a mandatory subject of bargaining, 	is not
16

subject 	to a 	further 	level 	of 	review or 	scrutiny under EERA
section 3543.l(c) 	when the unfair practice 	charge 	is 	filed after
a memorandum of 	understanding 	is 	in 	effect 	or 	the 	terms 	of 	said
document 	are 	in effect. 	Released time 	shall 	be 	in accordance
with the memorandum of understanding. 	The Board 	finds 	that 	the
statutory provisions 	concerning 	released 	time are applicable 	at
the 	onset 	of 	first 	time 	negotiations 	in order to ensure 	the
ability 	to get 	to 	the 	negotiating 	table 	and 	in 	subsequent 	years
when 	there 	are 	no 	controlling provisions 	of 	released 	time 	from
prior agreements 	in operation. 	Therefore, 	the Board reverses 	the
ALJ's 	finding 	that 	the District violated section 3543.1(c) 	and
thus 	section 3543.5(b) 	by 	failing 	to provide 	for reasonable
released time.10
Conditioning Agreement 	on Waiver 	of 	Statutory Right 	of 	Reasonable
Released 	Time
The ALJ 	found 	that 	conditional 	bargaining 	on released 	time
was 	based 	on 	the 	Federation's 	"firm position 	concerning 	its
statutory right 	to 	released time." 	In the proposed decision, 	the
ALJ analyzed 	released 	time 	as 	a 	statutory 	right. 	The ALJ 	found
this 	to be 	a violation based on 	cases 	involving 	insistence 	to
impasse 	on nonmandatory subjects 	of bargaining. 	For instance, 	in
Lake Elsinore School District 	(1986) 	PERB Decision No. 	603 	(Lake
Elsinore), 	the Board concluded that a settlement proposal
10Member Hesse 	further 	finds 	that 	the District violated EERA
section 3543.5(b) 	as a result of 	the per se refusal 	to bargain
conduct. 	As 	the 	remedy in this 	case 	is 	essentially the 	same as
that 	of a 	section 3543.1(c) 	violation, 	she would not disturb 	the
Board 	order.
17

included nonmandatory subjects 	of bargaining, 	and that 	the
District's 	insistence 	on 	the 	nonmandatory aspects 	of 	the
settlement 	proposal 	constituted a violation 	of 	section 	3543.5(c)
of 	EERA.
Unlike Lake Elsinore, 	released time 	is 	a mandatory subject
of bargaining. 	However, 	there 	is also a statutory right 	to
reasonable 	released 	time under EERA.11 The 	Board has 	held 	that
insistence upon negotiations 	on a mandatory 	subject 	of
bargaining, 	such as 	released time, 	is not a per se violation of
the 	duty to bargain. 	(Anaheim Union High School 	District 	(1981)
PERB Decision No. 	177; 	Healdsburg Union High School District 	and
Healdsburg Union School District, 	et al. 	(1984) 	PERB Decision
No. 	375; 	State of California 	(Department of Personnel
Administration) 	(1991) 	PERB Decision No. 	900.) 	Therefore, 	there
is 	no violation based on 	the 	theory 	of 	conditional 	bargaining 	of
a mandatory 	subject 	of bargaining.
11As with a nonmandatory or 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 nonmandatory subjects, 	statutory rights 	are directly
based 	on 	rights 	protected by 	the 	Legislature.
To 	reach 	impasse 	unlawfully 	on 	a 	nonmandatory 	or permissive
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
rights, 	the employer cannot 	insist 	to 	impasse because 	to do so 	is
an 	infringement 	on a 	right 	not 	given 	the 	employer.
Further, 	while an employer can 	implement both mandatory and
nonmandatory proposals contained in its 	last, 	best, 	and final
offer, 	the 	employer cannot 	implement 	those 	items 	that 	concern
statutory rights. 	To do so would be destructive of 	those 	rights.
18

In the 	instant 	case, 	however, 	the Board has 	found released
time 	to be a mandatory subject 	of bargaining. 	Thus, 	since 	there
can be 	no violation based on 	the 	theory of 	conditional 	bargaining
on a mandatory subject 	of bargaining, 	the Board reverses 	the
ALJ's 	finding 	that 	the District 	violated 	EERA section 	3543.5(c)
by 	refusing 	to 	negotiate 	in good 	faith and by 	conditioning a
final 	agreement 	on the waiver of 	the 	right 	to reasonable amount
of 	released time.
Assuming arguendo, 	that 	released time was 	a nonmandatory
subject 	of 	bargaining 	and a 	statutory 	right 	and 	the 	Board applied
the 	test 	for 	insistence 	to 	impasse 	on a nonmandatory subject, 	the
ALJ's 	finding 	of 	a violation must 	still 	be 	reversed. 	Under Lake
Elsinore, 	the Board held that parties may engage 	in negotiations
dealing with permissive, 	nonmandatory subjects 	of bargaining, 	but
once 	a party 	subsequently decides 	to 	take a position 	that 	the
nonmandatory 	subject 	not 	be 	included 	in 	the 	collective bargaining
agreement, 	that party must 	express 	its 	opposition to 	further
negotiation on 	the proposal 	as 	a prerequisite 	to 	charging 	the
other party with bargaining 	to 	impasse 	on a 	nonmandatory 	subject
of bargaining. 	After reviewing the 	record, 	the Board finds no
evidence 	that 	the 	Federation put 	the District 	on notice 	that
released 	time 	should not 	be 	included 	in 	the 	collective 	bargaining
agreement. 	While 	the 	Federation raised the 	issue 	of 	released
time during negotiations and impasse proceedings, 	there 	is no
testimony 	that 	the 	Federation 	informed 	the District 	that 	it 	would
19

not 	bargain over 	reasonable 	released 	time because 	it 	had a
statutory 	right 	to 	reasonable 	released 	time.
ORDER
Upon the 	foregoing findings of 	fact, 	conclusions 	of 	law, 	and
the entire record in this 	case, 	it 	is 	found that 	the San Mateo
County Community College 	District 	(District) 	violated 	section
3543.5(c) 	of 	the Educational 	Employment Relations Act 	(EERA) 	by
refusing 	to negotiate 	in good 	faith with 	the 	San Mateo 	Federation
of Teachers, 	AFT Local 1493, 	AFL-CIO 	(Federation) 	on the issue of
released 	time 	for meeting 	and 	negotiating 	and processing
grievances. 	By engaging 	in the 	same 	conduct 	during mediation,
the District 	failed 	to participate 	in 	the 	impasse procedures 	in
good faith in violation of EERA section 3543.5(e).
Pursuant to EERA section 3541.5 (c), 	it 	is hereby ORDERED
that 	the District, 	its governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing 	to negotiate 	in good 	faith about 	released
time 	for meeting and negotiating and 	for 	the processing 	of
grievances.
2. 	By the 	same 	conduct during mediation, 	refusing to
participate 	in good 	faith 	in the 	impasse procedures.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request by the 	Federation, 	negotiate 	in good
faith about 	released 	time 	for meeting 	and negotiating and 	for 	the
20

processing of 	grievances 	through mediation and 	factfinding, 	if
necessary.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
work 	locations 	where 	notices 	to 	certificated 	employees
customarily are posted, 	copies 	of 	the Notice 	attached hereto as
an Appendix. 	The Notice must 	be 	signed by an authorized agent 	of
the District, 	indicating 	that 	the District will 	comply with the
terms 	of 	this 	Order. 	Such posting 	shall 	be maintained for a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to ensure 	that 	the Notice 	is 	not 	reduced 	in size,
altered, 	defaced or covered with any other material.
3. 	Written notification of 	the actions 	taken to 	comply
with this 	Order 	shall 	be made 	to 	the 	San 	Francisco Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accord with
the director's 	instructions.
Member Hesse 	joined 	in this 	Decision.
Member Caffrey's 	concurrence and dissent begins 	on p. 	22.
21

CAFFREY, 	Member, 	concurring and dissenting: 	I 	concur in the
majority's 	conclusion 	that 	the 	San Mateo 	County 	Community 	College
District 	(District) 	violated sections 3543.5(c) 	and 	(e) 	of the
Educational 	Employment Relations Act 	(EERA) 	when 	it 	failed to
engage 	in 	good 	faith negotiations 	and participate 	in 	impasse
procedures 	in good 	faith with 	regard 	to 	the 	subject 	of 	released
time.
I 	dissent 	from the majority's 	reversal 	of 	the 	administrative
law judge's 	(ALJ) 	finding 	that 	the District 	refused to grant 	a
reasonable amount 	of 	released time under EERA section 3543.l(c),
thereby 	interfering with 	the 	San Mateo 	Federation 	of 	Teachers,
AFT Local 	1493, 	AFL-CIO's 	(Federation) 	right 	to represent 	its
members 	in violation of 	section 3543.5(b). 	I affirm the ALJ's
finding and 	expressly reject 	the majority's 	analysis 	of 	this
issue.
I 	further 	concur 	in 	the dismissal 	of 	the allegation that 	the
District 	engaged 	in 	conditional 	bargaining 	in violation of 	EERA
section 3543.5(c). 	I write separately, 	however, 	to distance
myself 	from the majority's 	discussion 	on 	this 	issue.
Finally, 	I 	concur in the dismissal 	of 	the allegation that
the District violated section 	3543.5(d) 	by unlawfully assisting
the Academic 	Senate when 	it 	granted 	the Academic 	Senate more
released 	time.
Reasonable 	Released 	Time 	Amount
The ALJ determined 	that 	based on 	the 	circumstances 	in 	this
District, 	six faculty load credits 	(FLC) 	was not a 	reasonable
22

amount 	of 	released time under EERA section 3543.l(c).1 By
denying 	the 	Federation a 	reasonable 	amount 	of 	released time, 	the
ALJ 	concluded 	that 	the District 	interfered with 	the 	Federation's
right 	to represent 	its members 	in violation of 	section 3543.5(b).
In Magnolia School District 	(1977) 	EERB Decision No. 	19,
(Magnolia),2 the 	Public Employment 	Relations Board 	(PERB or
Board) 	established 	the policy underlying 	the 	right 	to 	reasonable
released time 	found in section 3543.l(c). 	The Board stated:
"Reasonable released time" means, 	at least, 	that
the District 	has 	exhibited an open attitude 	in 	its
consideration of 	the 	amount 	of 	released 	time 	to be
allowed so 	that 	the amount 	is 	appropriate 	to 	the
circumstances 	of 	the negotiations. 	The District
may have 	to 	readjust 	its 	allotment 	of 	released
time based upon the 	reasonable needs 	of 	the
District, 	the number of hours 	spent 	in
negotiations, 	the number of 	employees 	on the
employee 	organization's 	negotiating team, 	the
progress 	of 	the 	negotiations 	and other 	relevant
factors. 	A district's policy does not provide 	for
reasonable periods 	of 	released 	time 	if 	the policy
is unyielding 	to 	changing 	circumstances.
The 	Board has 	further 	concluded 	that 	the 	"Legislature
considered 	the matter 	of 	released 	time 	too 	important 	to 	the
statutory 	scheme 	to be 	left 	either 	to 	the 	employer's 	discretion
or 	entirely to 	the vagaries 	of 	negotiations." 	(Anaheim Union
High School District 	(1981) 	PERB Decision No. 	177, 	p. 	11,
1EERA section 3543.1(c) 	states, 	in pertinent part:
A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right 	to
receive 	reasonable periods 	of 	released 	time
without 	loss 	of 	compensation when meeting 	and
negotiating and 	for 	the processing 	of 	grievances.
2Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
23

(Anaheim).) 	Thus, 	there exists 	in section 3543.l(c) 	a 	"minimum
released-time standard . 	. 	. 	against which the parties' 	good
faith 	in negotiating 	on 	the 	subject 	could be measured." 	(Id.)
Whether 	the amount 	of 	released time 	is 	reasonable 	is 	a question
of 	fact 	which must 	be 	determined based on 	the 	circumstances 	of
each case. 	(Sierra Joint 	Community College District 	(1981) 	PERB
Decision No. 	179.)
In this 	case, 	the Federation first 	received six FLCs 	of
released time 	in 1987, 	at 	an annual 	cost 	to 	the District 	of
approximately $8,000. 	While 	the amount 	of 	released time 	afforded
the 	Federation over the 	last 	three years 	remained constant, 	the
amount 	of 	financial 	resources 	channeled by 	the 	District 	into
grievance 	processing 	and 	negotiations 	during 	this 	period
increased 	dramatically.
The 	Federation 	documented 	the 	time 	spent 	by 	Federation
representatives 	in processing grievances 	and negotiations. 	The
evidence 	shows 	that 	the 	number and 	complexity of 	grievances
increased 	over 	this 	period, 	requiring 	Federation 	representatives
to 	expend 	time 	in the 	resolution of 	grievances 	well 	beyond the
amount 	of 	available 	released time. 	For example, 	the 	chapter
chairpersons 	charged with 	contract 	administration at 	each of 	the
three 	campuses 	spent 	an average 	of 	11 	hours per week 	in
representational 	functions 	and grievance handling, 	yet 	they
received no 	released 	time. 	Other 	Federation 	representatives
routinely spent varying amounts 	of 	time 	in negotiations, 	without
the benefit 	of 	released 	time.
24

In contrast, 	the District's bargaining team was made up of
an in-house chief negotiator, 	outside legal 	counsel, 	and other
District 	employees. 	The 	increasing amount 	of District 	resources
directed 	into 	grievance 	processing 	and negotiations 	in 	the 	past
three 	years 	strongly 	supports 	the 	Federation's 	claim that 	the
current 	allotment 	of 	released 	time 	is 	not 	reasonable.
As 	noted by 	the ALJ, 	the 	Federation 	sufficiently documented
its 	need 	for more 	released time 	in the areas 	of 	negotiation and
processing of 	grievances. 	While 	six FLCs 	of 	released time may
have been reasonable 	in 1987, 	it 	is apparent 	that 	circumstances
in 	the District 	have 	changed and 	the need 	for 	released 	time 	has
greatly 	increased. 	Yet 	the amount 	of 	released 	time 	awarded to
the 	Federation 	remains 	fixed at 	the 	1987 	level.
These 	facts 	lead to 	the 	conclusion that 	the amount 	of
released 	time 	granted 	to 	the 	Federation does 	not 	satisfy 	the
"minimum released time standard" 	of Anaheim and, 	therefore, 	is
not 	reasonable under section 3543.l(c). 	By refusing to award
additional 	released time, 	the District has 	adopted a policy which
"is unyielding to changing circumstances" 	(Magnolia) 	and creates
- -
a 	"dominance 	over 	the process" 	which was 	rejected by 	the 	Board 	in
Anaheim.
In further support 	of 	its argument, 	the 	Federation contends
that 	the 	amount 	of 	released 	time 	in other 	community 	college
districts 	is 	relevant 	and should be 	taken 	into account. 	The
District 	argues 	that use 	of 	such evidence 	is 	extraneous 	as 	the
25

bargaining 	requirements 	of 	other districts 	are 	too varied 	to
provide 	appropriate 	comparison.
In 	determining 	reasonable 	released 	time 	under 	section
3543.l(c), 	the Board has held that 	"evidence of practices 	in
other districts 	may be 	relevant 	and probative." 	(Sierra Joint
Community College District, 	supra, 	PERB Decision No. 	179, 	p. 	7.)
The ALJ appropriately noted 	that 	while 	evidence 	of 	released 	time
granted 	in 	other 	community 	college 	districts 	was 	not 	dispositive
of 	the matter in this 	case, 	it 	lends 	support 	to the 	conclusion
that 	six FLCs 	of 	released time 	is 	not 	reasonable 	for a bargaining
unit 	consisting 	of 	approximately 	1,100 	faculty 	spread 	over 	three
campuses.
Based on the 	foregoing, 	I 	concur in the ALJ's 	determination
that 	six FLCs 	is 	not 	a reasonable amount 	of 	released time
pursuant 	to section 3543.l(c). 	By refusing to grant more
released time, 	the District 	interfered with the 	Federation's
right 	to represent 	its members 	in violation of 	section 3543.5(b).
The majority 	seeks 	to 	overrule 	the 	Board's 	longstanding
precedent 	regarding 	released time under EERA, 	as 	embodied 	in
Magnolia 	and Anaheim. 	The majority 	compares 	the 	reasonable
- -
released 	time provisions 	in EERA section 3543.1(c) 	with the
differing 	released time provisions 	of 	the Ralph C. 	Dills Act
(Dills Act)3 and the Higher Education Employer-Employee Relations
3The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	Section 3518.5 	states:
A reasonable number 	of 	employee 	representatives 	of
recognized 	employee 	organizations 	shall 	be 	granted
26

Act 	(HEERA).4 The majority concludes 	that although a 	specific
provision 	found 	in 	the Dills Act 	and HEERA is 	not 	included 	in 	the
EERA released time 	section, 	each of 	these 	statutes 	is 	to be
applied 	identically, 	with the 	effect 	of barring 	the 	Board 	from
determining 	whether an 	employee 	organization has 	been 	granted 	its
statutory right 	to a 	reasonable amount 	of 	released 	time under
EERA when a memorandum of understanding 	(MOU) 	is 	in effect.
reasonable 	time 	off without 	loss 	of 	compensation
or 	other benefits 	when 	formally meeting 	and
conferring with 	representatives 	of 	the 	state 	on
matters within the 	scope 	of 	representation.
This 	section shall 	apply only to 	state 	employees,
as defined by subdivision 	(c) 	of Section 3513. 	and
only 	for
- -
periods 	when a memorandum of
understanding 	is not 	in effect.
(Emphasis 	added.)
I 	expressly 	reject 	this 	view.
The 	general 	principles 	of 	statutory 	construction provide
that 	"where 	a 	statute 	contains 	a given provision with 	reference
to 	one 	subject, 	the 	omission of 	such provision 	from a 	similar
statute 	containing a 	related 	subject 	is 	significant 	to 	show that
a different 	intention existed." 	(Cumero v. 	PERB 	(1989) 	49 	Cal.3d
4HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3569 	states:
A reasonable number of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right 	to
receive 	reasonable periods 	of 	released or
reassigned 	time without 	loss 	of 	compensation when
engaged 	in meeting 	and 	conferring 	and 	for 	the
processing 	of 	grievances prior to 	the adoption of
the 	initial memorandum of understanding. 	When a
memorandum of understanding 	is 	in effect, 	released
or 	reassigned 	time 	shall 	be 	in accordance with 	the
memorandum.
(Emphasis 	added.)
27

575, 	596 	[262 	Cal.Rptr.46].) 	In Regents of University of
California v. 	PERB 	(1985) 	168 Cal.App.3d 937 	[214 Cal.Rptr. 	698],
the 	court 	reversed 	the Board's 	decision when 	it 	found 	the 	Board
without 	authority to 	"rewrite 	the 	statute 	to 	suit 	its 	notion of
what 	the 	Legislature must 	have 	intended" 	when the 	Board 	ignored
the 	omission of 	certain 	language 	from the 	provisions 	of 	HEERA.
The 	court 	concluded 	the 	Legislature 	would be 	rendered nearly
powerless 	to make 	changes 	in 	the 	law if 	the 	courts 	were 	to permit
the 	Board to 	interpret 	statutes 	to 	suit 	the Board's 	favored
construction.
EERA section 3543.1(c) 	does 	not 	contain a provision limiting
the 	statutory 	right 	to 	reasonable 	released time 	to periods 	when
an MOU is 	in effect 	as do 	the Dills Act 	and HEERA. 	To 	interpret
EERA section 3543.l(c) 	as 	if 	it does 	contain such a provision is
not 	only without any legal basis, 	it 	is 	to subject 	released time
under EERA 	"entirely to 	the vagaries 	of 	negotiations" 	and 	reverse
the 	Board's 	longstanding policy as 	enunciated 	in Magnolia 	and
Anaheim. 	I 	reject 	the majority's misguided analysis.
Conditional 	Bargaining
The 	Federation alleged 	that 	the 	District 	unlawfully
conditioned agreement 	to 	the 	contract 	on 	the 	Federation's 	waiver
of 	its 	statutory right 	to 	reasonable released time. 	I 	concur in
the majority's 	dismissal 	of 	the 	conditional 	bargaining allegation
to 	the 	extent 	that 	the discussion addresses 	released time as 	a
mandatory 	subject 	of 	bargaining.
28

The majority 	further analyzes 	released 	time 	as 	a 	statutory
right, 	however, 	and reaches an impractical•result. 	The majority
contends 	that 	the 	special 	statutory 	status 	accorded 	released 	time
under 	EERA5 bars 	an employer 	from reaching 	impasse 	on 	the 	subject
of 	released 	time 	or 	implementing a 	released 	time proposal 	as 	part
of 	its 	last, 	best and final 	offer. 	This 	conclusion leads 	to
results 	which are 	disruptive 	of 	the 	collective bargaining
process. 	The 	inability 	to 	implement 	a provision concerning
released time as part of a last, 	best and final 	offer, 	even when
that provision 	is not disputed by the parties, 	creates a scenario
in which no 	released 	time provision may be 	in effect. 	The
majority 	is 	silent 	as 	to 	the 	status 	of 	released time under 	these
circumstances, 	and provides no guidance as 	to how this disruptive
situation 	is 	to be 	resolved. 	This uncertainty 	is 	inherently
contradictory of 	EERA's 	goal 	of 	expeditious 	resolution of 	the
bargaining process.
As 	a mandatory 	subject 	of bargaining, 	the 	traditional
bargaining process, 	including bargaining 	through 	impasse and
implementation continues 	to attach 	to 	released time. 	An
exclusive 	representative's 	statutory 	right 	to a 	reasonable 	amount
of 	released 	time 	is 	not 	relinquished 	in the bargaining process,
however, 	since 	the Board has 	determined that 	reasonable 	released
time 	is 	not 	to be 	left 	"entirely to 	the vagaries 	of
5The majority does not 	reconcile 	its 	finding of 	the 	special
statutory 	status 	of 	released 	time under EERA with 	its 	earlier
decision 	to 	limit 	that 	right 	to periods 	when a memorandum of
understanding 	is not 	in effect, 	even though EERA contains no 	such
limitation.
29

negotiations." 	(Anaheim.) 	On the contrary, 	the Board has also
determined that 	a minimum released time 	standard exists, 	"a
standard against which the parties' 	good 	faith 	in negotiating on
the 	subject 	could be measured." 	(Id.) 	This 	approach encourages
collective negotiations 	on the 	subject 	of 	released time, 	while
maintaining 	an 	avenue 	for 	consideration by 	PERB 	of 	the 	statutory
right 	to 	reasonable 	released 	time 	when 	the 	Board determines 	that
it 	is appropriate to do so.
I 	see 	no 	legal 	or policy based 	justification 	for 	replacing
this 	longstanding 	Board approach with 	the 	uncertainty and
disruption which 	follows 	from the majority's 	analysis, 	and 	I wish
to distance myself 	from it.
30

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1414,
San Mateo Federation of Teachers. 	AFT Local 	1493, 	AFL-CIO v.
San Mateo County Community College District, 	in which all 	parties
had the 	right 	to participate, 	it has been found that 	the
San Mateo 	County Community College District 	(District) 	has
violated the Educational 	Employment Relations Act 	(EERA) ,
Government Code section 3543.5(c) 	and 	(e).
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Refusing 	to negotiate 	in good 	faith about 	released
time 	for meeting 	and negotiating 	and 	for 	the 	processing 	of
grievances.
2. 	By the 	same 	conduct during mediation, 	refusing to
participate 	in good 	faith 	in the 	impasse procedures.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request by the 	Federation, 	negotiate 	in good
faith 	about 	released 	time 	for meeting 	and negotiating 	and 	for 	the
processing of 	grievances 	through mediation and 	factfinding, 	if
necessary.
Dated: 	SAN MATEO 	COUNTY 	COMMUNITY
COLLEGE 	DISTRICT
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.