Marin Community College District (PERB 1092E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED PROFESSORS 	OF MARIN, 	LOCAL
1610, CFT/AFT, AFL-CIO,
Charging 	Party,
v.
MARIN COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1524
PERB Decision No. 	1092
March 21 	1995
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Appearances: 	Robert J. 	Bezemek, 	Attorney, 	for United Professors
of Marin, 	Local 1610, 	CFT/AFT, 	AFL-CIO; 	Liebert, 	Cassidy &
Frierson by Larry J. 	Frierson and Jeffrey Sloan, 	Attorneys, 	for
Marin 	Community 	College 	District.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the Marin
Community College District 	(District)1 to 	the proposed decision
(attached) 	of an administrative 	law judge 	(ALJ). 	The ALJ found
that 	the 	District 	unilaterally 	implemented 	a policy 	of 	placing
former managers 	on 	the 	certificated salary schedule, 	a negotiable
topic under the Educational 	Employment Relations Act 	(EERA)2 and
later refused the United Professors 	of Marin, 	Local 	1610,
CFT/AFT, 	AFL-CIO's 	(UPM) 	request to negotiate the issue. 	This
1A request 	for oral 	argument 	by 	the District 	was 	denied by
the Board on March 11, 	1994.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government 	Code.

conduct was 	found to violate EERA section 3543.5(b) 	and 	(c).3
The ALJ also 	concluded that 	as 	no 	individual 	rights 	were
violated, 	a violation of 	section 3543.5(a) 	could not be
sustained.
The Board, 	after review of 	the entire record, 	finds 	the
ALJ's 	findings 	of 	fact 	to be 	free 	from prejudicial 	error and
adopts 	them as 	it's 	own. 	We are also 	in agreement with, 	and
hereby adopt, 	the 	conclusions 	of 	law set 	forth in the ALJ's
decision. 	In the 	following discussion, 	we will 	address 	the
exceptions 	by 	the 	District 	and UPM which we 	believe 	warrant
comment.4
3Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
4Several 	non-party petitions 	to 	file 	informational 	briefs
were submitted in this case. 	In the petitions 	submitted, 	no
newly 	discovered 	law or 	other matter 	that 	would 	affect 	the
outcome of 	this 	decision was 	raised. 	Therefore, 	pursuant 	to PERB
Regulation 32210, 	the petitions are denied and the briefs 	are not
being 	considered 	in 	reaching 	the Board's 	decision.
22

DISTRICT'S 	EXCEPTIONS
The District 	alleges 	three 	fundamental 	flaws 	in the ALJ's
decision. 	The 	first 	concerns 	the ALJ's 	error 	in not 	deferring
the underlying matter to arbitration and 	in 	failing 	to 	dismiss
the charge 	for Untimeliness. 	Secondly, 	it argues 	that 	the ALJ's
finding 	that 	the District 	was 	obligated 	to 	negotiate 	with UPM
over 	the 	credit managers 	received while 	working as
administrators, 	is at odds with the EERA. 	Finally, 	the District
contends 	UPM was 	on notice 	for years 	about 	the District's
practices 	relating 	to 	conferring 	credit 	to managers 	for 	their
management 	experience 	for purposes 	of 	salary schedule placement.
UPM'S 	EXCEPTIONS
The 	focus 	of UPM's 	exceptions 	is 	the ALJ's 	remedy which
allows 	former managers 	to keep, 	and continue 	receiving 	salary
based upon 	the 	illegally-found 	conduct 	of 	the District. 	Although
UPM urges 	the 	Board 	to 	issue 	a 	rescission 	of 	the 	illegal
placements, 	it 	supports 	the temporary authorization of 	the
payment 	of 	the 	current 	salary 	to 	the 	affected 	former managers
pending 	completion 	of 	future 	negotiations.
DISCUSSION
Deferral 	Argument
. As part 	of 	its 	case both before 	the ALJ and the Board, 	the
District 	alleges 	that 	UPM's 	allegations 	must be 	deferred 	to
binding arbitration. 	In Lake Elsinore School District 	(19 87)
PERB Decision No. 	646 	(Lake Elsinore), 	the Board held that 	it has
no 	jurisdiction 	over matters 	involving 	conduct 	arguably
w
	3

prohibited by 	a provision 	of 	the 	collective 	bargaining 	agreement
until 	the grievance machinery of 	the agreement, 	if 	it 	exists and
covers 	the matter at 	issue, 	has been exhausted either by
settlement 	or by binding 	arbitration.
The key portion of 	the Board's 	Lake Elsinore holding, 	as
pertaining to 	this 	case, 	is 	that 	the 	conduct at 	issue must be
arguably prohibited by the 	language 	of 	the 	agreement. 	UPM argues
that 	the 	District 	adopted a new policy 	exempting managers 	(who
were 	transferring 	to 	the bargaining unit) 	from the 	contractual
"Step 	7" 	limit 	of 	the salary schedule 	for teachers new to the
District. 	To 	the 	extent 	that 	the alleged change 	allowed managers
to 	receive higher than the 	step 	7 	limit when returning 	to 	the
bargaining unit, 	the District 	argues 	that 	the alleged new policy
was 	covered by 	the 	contract 	and 	is 	subject 	to binding
arbitration.
The 	ALJ heard extensive 	testimony on whether 	the 	step 	7
limit 	applied 	to District managers 	transferring 	into 	the 	faculty.
Beginning 	in 	1981 	and 	continuing 	through a 	series 	of 	negotiations
for new agreements between the parties, 	no evidence was
introduced 	supporting 	the 	District's 	position 	that 	the 	parties
had 	contemplated 	the application of 	the 	step 	7 	limit 	to District
managers. 	Testimony was 	even offered that 	in prior years 	the
parties 	had 	conducted negotiations 	that 	resulted 	in 	step 	limits
for 	specifically 	identified groups 	of 	employees 	for 	salary
44

placement purposes, 	however, 	none of 	these step limits 	could be
interpreted 	to be 	applied 	to managers.5
Additionally, 	the ALJ 	found that 	the 	contract 	language
regarding 	"permanent 	teachers 	new 	to 	the 	district" 	had never been
interpreted by the parties. 	Applying contractual 	principles, 	the
ALJ determined 	that 	for a person 	to 	fall 	within 	the meaning 	of
the 	contract, 	the person must be a permanent 	teacher and new to
the District. 	Although the 	former managers 	have 	joined 	the
certificated salary schedule and thus, 	are permanent, 	it 	can not
be 	said 	that 	they are new to 	the District 	as 	they had previously
worked 	for the District 	in the management 	ranks.
Accordingly, 	the Board agrees with 	the 	finding of 	the ALJ
that 	the 	conduct 	complained of 	by UPM was 	not 	arguably prohibited
by 	the 	language 	of 	the agreement 	and 	thus 	the ALJ properly denied
the District's 	request 	to defer UPM's 	allegations 	to binding
arbitration.
Negotiability
Next, 	EERA section 3543.5(c) 	requires an employer to meet
and negotiate 	in good 	faith with 	the 	exclusive 	representative. 	A
unilateral 	change 	in 	terms 	and 	conditions 	of 	employment 	within
the 	scope of 	representation is a per se 	refusal 	to negotiate.
(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177]; 	Pajaro Valley
5 Additionally, as 	the ALJ correctly points 	out, 	a 	1981 memo
by a District 	representative 	outlined 	the 	rationale 	for 	the
placement 	of 	an administrator at 	a 	level 	higher than Step 	7 	as
"there 	is 	no precedent 	in the District 	either 	in policy or past
practice 	for placement 	of 	a management 	team member 	on 	the 	salary
schedule."
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Unified School District 	(1978) 	PERB Decision No. 	51; 	San Mateo
County Community College District 	(1979) 	PERB Decision No. 	94.)
To 	establish a unilateral 	change, 	the 	charging party must
show that: 	(1) 	the employer breached or altered the parties'
written agreement 	or own established past practice; 	(2) 	such
action was 	taken without 	giving 	the 	exclusive 	representative
notice 	or an opportunity to bargain over the 	change; 	(3) 	the
change 	is not merely an isolated breach of 	the 	contract, 	but
amounts 	to a 	change 	of policy 	(i.e., 	has a generalized effect 	or
continuing 	impact upon bargaining unit members' 	terms 	and
conditions of employment); 	and 	(4) 	the change 	in policy concerns
a matter within the 	scope 	of 	representation. 	(Glendora Unified
School District 	(1991) 	PERB Decision No. 	876.)
The 	question that arises 	here 	is 	whether or not 	the
placement 	of managers 	on the 	salary schedule at 	a 	level 	higher
than step 	7 	is a subject 	that 	is within the 	scope 	of
representation as 	established by EERA section 	3543.2. 	In Anaheim
Union High School District 	(1981) 	PERB Decision No. 	177
(Anaheim), 	the Board established a 	three-prong test 	to determine
whether matters 	not 	specifically enumerated are 	in 	fact
negotiable under EERA section 	3543.2. 	In the Anaheim decision,
the 	Board 	stated:
. 	. 	. 	a subject is negotiable even though not
specifically enumerated 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
. .
66

appropriate means 	of 	resolving 	the 	conflict,
and 	(3) 	the employer's 	obligation to
negotiate 	would 	not 	significantly 	abridge 	his
freedom 	to 	exercise 	those managerial
prerogatives 	(including matters 	of
fundamental policy) 	essential 	to the
achievement of 	the District's mission. 	[Fn.
omitted.]
The 	California 	Supreme 	Court 	approved 	this 	test 	in San Mateo
City School Dist, 	v. 	Public Employment Relations Bd. 	(1983) 	33
Cal.3d 850 	[191 Cal.Rptr. 	800].
As 	to 	the 	first prong of 	the 	test, 	the question is whether
or not 	the placement 	of managers 	on the 	salary 	schedule 	is
related 	to wages. 	The Board concurs 	with 	the ALJ that 	placement
of 	former managers 	on the 	negotiated 	salary 	schedule 	relates 	to
wages 	and satisfies 	the 	first prong of 	the Anaheim test.
(Remington Arms 	Co. 	(1990) 	298 NLRB 266 	[134 	LRRM 1024].)
As 	to 	the 	second prong of Anaheim, 	the ALJ was 	correct 	in
determining 	that 	the parties 	have 	had a 	long 	stable 	relationship
and that 	the 	topic 	is 	one 	of 	concern 	to both management 	and
employees. 	Further, 	the ALJ properly found no evidence that 	the
mediatory 	influence 	of 	collective negotiations 	is 	not 	the
appropriate method 	to resolve 	this 	conflict.
However, 	the most 	complex part 	of 	this 	case 	is whether or
not 	the 	third prong of 	the Anaheim test 	is met. 	As 	the ALJ
properly 	stated:
The 	question 	remains 	whether negotiating
about 	the 	salary 	to be paid 	former managers
here 	would 	significantly abridge 	the
District's 	managerial 	prerogatives 	essential
to achievement 	of 	its mission.
77

The ALJ determined 	that 	the answer to 	this 	question was 	no.
The 	Board 	agrees 	with 	the 	ALJ and UPM that 	negotiating 	about
salary step placement 	of 	former managers 	does 	not 	run afoul 	of
the Anaheim test. 	The ALJ was 	correct 	in determining 	that
negotiating about 	the placement 	of 	former managers 	would not
impact 	the District's ability to run its 	schools. 	Also, 	the
Board 	supports 	the ALJ's 	conclusion 	in that 	if 	this 	action was
deemed to be a management 	prerogative, 	it 	could lead 	to
undermining 	and 	destablizing 	the bargaining 	relationship 	as 	the
District 	could 	continue 	to hire administrators 	at 	a much higher
salary 	than 	other 	teachers 	who may have much more 	experience.
Therefore, 	the 	Board concludes 	that 	the ALJ properly determined
that 	this 	is 	a negotiable 	subject within the 	scope 	of
representation.
Notice
The 	last major area of 	contention for 	the District 	is 	that
UPM had been put 	on notice 	of 	the District's 	conduct 	establishing
the practice 	of 	assigning managers 	to 	the 	salary schedule. 	The
principal 	focus 	of 	the District's 	timeliness 	argument 	is 	that UPM
received actual 	notice 	of 	the District's 	practices 	through
Kathryn Freschi 	(Freschi), 	a 	former manager who had been
reassigned 	to 	the 	faculty and 	from 	1990-1992 	was 	a member 	of
UPM's 	Executive Council.
However, 	the ALJ determined that 	Freschi's 	testimony was
sufficiently 	inconsistent 	so 	as 	to 	cast 	doubt 	on 	Freschi's
ability to recall 	events with accuracy. 	Moreover, 	the ALJ
8

concluded 	that 	it 	appeared 	that 	Freschi 	did not 	have 	an
understanding 	of 	the 	criteria used 	for her 	own 	step placement 	in
1987 	nor step placements 	for 	former managers. 	The ALJ 	therefore
concluded that 	even if 	the 	information was 	imputed to UPM, 	it was
insufficient 	to put UPM on notice 	that 	the District 	had
implemented a 	policy 	for placing 	former managers 	on 	the
certificated 	salary 	schedule.
In Los Angeles Unified School District 	(1988) 	PERB Decision
No. 	659, 	the Board commenting on credibility determinations
stated:
[W]e must 	emphasize 	that 	credibility
determinations play a vital 	role 	in 	the
consideration of 	this 	allegation. 	While we
are 	free 	to 	consider 	the 	entire 	record and
draw our 	own 	conclusions 	from the 	evidence
presented, 	we will 	afford deference 	to an
ALJ's 	findings 	of 	fact which 	incorporate
credibility determinations. 	Santa Clara
Unified School District 	(1979) 	PERB Decision
No. 104.
The 	Board 	finds 	this 	to be 	the proper 	instance where
deference 	is 	appropriate. 	The ALJ, 	after hearing live 	testimony
in this 	case and, 	in such a role, 	determining the 	credibility of
the witnesses based upon first hand observation, 	is 	in a much
better position 	to accurately make 	such determinations 	of
Freschi's 	testimony than is 	the Board, 	which is only in the
position 	to 	review the written transcripts 	of 	the hearing.
(Santa Clara Unified School 	District 	(1979) 	PERB Decision
No. 	104, 	pp. 	12-13; 	Beverly Hills Unified School District 	(199 0)
PERB Decision No. 	789, 	pp. 	8-9.)
99

Remedy
As 	outlined earlier, 	UPM argues 	that 	the 	administrators 	who
have been placed at 	a higher 	step 	level 	should be 	returned 	to 	the
proper 	step 	level 	pending 	the 	outcome 	of 	negotiations 	between 	the
District 	and UPM. 	The Board rejects 	this 	exception. 	The Board
has 	the 	authority to 	fashion 	such remedies 	to unfair practices 	as
its 	determines will 	effectuate 	the purposes 	of 	the 	laws 	it
enforces under EERA section 3541.3(i). 	The Board must 	look to
see 	if 	the remedy effectuates 	the purposes 	of 	the EERA 	(e.g.,
Nevada Joint High School District 	(1985) 	PERB Decision No. 	557;
Cajon Valley Union School District 	(1989) 	PERB Decision No. 	766).
In this 	case, 	the ALJ correctly pointed out 	that 	rescission of
the 	step placements 	would 	result 	in 	substantial 	loss 	of 	income by
the named employees. 	The Board 	finds 	the 	rescission of 	step
placement 	of 	the 	former managers 	and 	requiring 	them to 	repay any
money 	received would not 	effectuate 	the 	purposes 	of 	the 	EERA.
Further, 	in 	taking their new positions 	it must be assumed that
the managers 	would not 	have 	accepted a position 	in which 	they
would be 	required 	to accept 	a 	substantial 	salary 	reduction.
ORDER
Based upon the 	findings 	of 	fact, 	conclusions 	of 	law and the
entire record in this 	case, 	the Board finds 	that 	the Marin
Community College 	District 	(District) 	violated 	section 	3543.5(b)
and 	(c) 	of 	the Educational 	Employment Relations Act 	(EERA) 	by
unilaterally 	implementing 	a policy 	of 	placing 	former managers 	on
the 	certificated 	salary 	schedule 	and 	later 	refusing 	the 	United
10

Professors of Marin, 	Local 1610, 	CFT/AFT, 	AFL-CIO's 	(UPM) 	request
to negotiate 	the 	issue. 	It 	is hereby ordered that 	the District
and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Taking unilateral 	action and 	failing and 	refusing
to negotiate 	in good 	faith with UPM, 	exclusive 	representative 	of
the District's 	certificated employees, 	about 	the 	step placement
of 	former managers 	on 	the 	negotiated 	certificated 	salary
schedule.
2. 	By the same conduct, 	denying to UPM, 	rights
guaranteed by 	the 	EERA, 	including 	the 	right 	to 	represent 	its
members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request, 	meet and negotiate with UPM about any
future 	decision 	to place 	former managers 	on 	the 	negotiated
certificated 	salary 	schedule.
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 	are 	customarily
placed, 	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.
11

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 accordance
with her 	instructions.
Chair Blair 	joined 	in this Decision.
Member Garcia's 	dissent begins 	on page 	13.
12

GARCIA, 	Member, 	dissenting: 	The Educational Employment
Relations Act 	(EERA), 	Public Employment Relations Board 	(PERB or
Board) 	precedent, 	and California policy expressed 	through Supreme
Court 	decisions 	clearly mandate 	that 	a 	case 	go 	to arbitration
when 	the 	collective 	bargaining 	agreement 	(CBA or agreement)
between 	the parties 	contains 	a broad arbitration 	clause which
permits 	the 	arbitrator to apply and 	interpret 	the provisions 	of
the grievance 	agreement. 	Only specific 	clauses 	can exclude 	a
dispute 	from a 	broad 	arbitration 	clause.
In 1978, 	the 	California legislature adopted the EERA
statute, 	which mandates 	deferral 	of arbitrable 	cases 	and directs
parties 	to 	the arbitration statutes under the 	Code 	of 	Civil 	Procedure.1
1EERA section 3541.5(a)(2), provides, 	in part, 	that:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall not . 	. 	.
(2) 	Issue a complaint against 	conduct also
prohibited by 	the provisions 	of 	the 	agreement
between 	the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it 	exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
EERA section 	3548.5 	provides 	that:
A public 	school 	employer 	and an 	exclusive
representative who 	enter 	into a written
agreement 	covering matters 	within 	the 	scope
of 	representation may 	include 	in 	the
agreement 	procedures 	for 	final 	and binding
arbitration of 	such disputes 	as may arise
involving the interpretation, 	application, 	or
violation of 	the agreement.
EERA section 	3548.6 	provides 	that:
13

Although none 	of 	California's 	public 	sector 	labor 	relations
statutes 	are 	copies 	of the National 	Labor Relations Act 	(NLRA),
our 	statutes 	select 	and 	combine 	principles 	established by 	the
National 	Labor Relations Board 	(NLRB), 	with provisions designed
to 	accommodate 	public 	employment 	in 	California.2 PERB and
California 	courts 	turn 	for 	instruction 	to precedent 	established
under NLRB 	decisions.3 A brief 	overview of 	the 	federal 	precedent
on pre-arbitration deferral 	is 	helpful.
If 	the written agreement 	does 	not 	include
procedures 	authorized by Section 3548.5, 	both
parties 	to 	the agreement may agree 	to 	submit
any 	disputes 	involving 	the 	interpretation,
application, 	or violation of 	the agreement 	to
final 	and binding 	arbitration pursuant 	to 	the
rules 	of 	the board.
EERA section 3548.7 	provides 	that:
Where 	a party 	to a written agreement 	is
aggrieved by the 	failure, 	neglect, 	or refusal
of 	the 	other party 	to proceed 	to arbitration
pursuant 	to 	the procedures 	provided therefor
in 	the 	agreement 	or pursuant 	to an agreement
made pursuant 	to Section 3548.6, 	the
aggrieved 	party may 	bring 	proceedings
pursuant 	to Title 	9 	(commencing with Section
12 80) 	of Part 3 	of the Code of Civil
Procedure 	for a 	court 	order directing 	that
the 	arbitration proceed pursuant 	to 	the
procedures 	provided 	therefor 	in 	such
agreement 	or pursuant 	to Section 3548.6.
Under 	the NLRA, 	the 	NLRB was 	granted broad quasi-legislative
and quasi-judicial powers. 	Employing that authority, 	the NLRB
2See 	Zerger, 	Cal. 	Public Sector Labor Relations 	(1989)
Chapter 2, 	section 2.01, 	page 3, 	footnote 4, 	citing Pacific Legal
Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	173, 	176-177,
[172 Cal.Rptr. 487].
3Id.. 	section 2.02, 	page 4, 	footnote 1, 	citing cases
involving use 	of 	NLRA precedent.
14

voluntarily 	adopted a policy 	that 	favored arbitration 	of
disputes. 	The United States 	Supreme 	Court 	reviewed 	that
voluntary policy 	in a series 	of 	cases 	that 	have become known as
the Steelworkers Trilogy.4 In one of 	those cases, 	Warrior, 	the
Court 	adopted 	a 	strong policy 	favoring 	arbitration 	of 	labor
disputes 	whenever 	arbitrability was 	in question by 	stating:
An 	order 	to arbitrate 	the 	particular
grievance 	should not 	be 	denied unless 	it 	may
be 	said with positive 	assurance 	that 	the
arbitration clause 	is 	not 	susceptible 	to an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should be 	resolved 	in 	favor
of coverage. 	[Warrior, 	supra. 	at 582 and
583.] 	-
Under federal 	law, 	including NLRB decisions, 	regardless of
whether 	it 	is 	clear or uncertain that 	an agreement provides 	for
arbitration of 	the disputed subject, 	the 	case 	is 	given to the
arbitrator 	for 	further 	decision 	regarding matters 	of 	contract
interpretation.5 The 	arbitrator 	then decides 	whether 	the
agreement 	covers 	the 	subject 	matter and who has 	standing 	to
participate 	in arbitration. 	In other words, 	except 	in rare or
unusual 	cases, 	the 	courts and quasi-judicial agencies 	such as 	the
NLRB 	and 	PERB 	should 	first 	determine 	whether 	the 	contract
provides 	for arbitration, 	and if so, 	they turn the matter over to
the arbitrator to 	interpret 	the 	scop
- - e of 	the arbitration, 	unless
4 Steelworkers v. 	American Mfg. 	Co. 	(1960) 	363 U.S. 	564
[46 LRRM 2414]; 	Steelworkers v. 	Warrior & Gulf Navigation Co.
(1960) 	363 U.S. 	574 	[46 LRRM 2416] 	(Warrior): 	and Steelworkers v.
Enterprise Wheel & Car Corp. 	(1960) 	363 U.S. 	593 	[46 LRRM 2423].
5See Roy Robinson Chevrolet 	(1977) 	228 NLRB 	828
[94 	LRRM 1474].
15

there 	is 	clear evidence 	that 	this 	was 	not 	the 	result 	the parties
intended.
The 	California 	Supreme 	Court 	shortly 	thereafter adopted 	the
same policy 	in enforcement 	cases 	brought 	under California
arbitration statutes. 	For example, 	in Posner v. 	Grunwald-Marx.
Inc. 	(1961) 	56 Cal.2d 169 	[14 Cal.Rptr. 	297], 	a case brought
under Code 	of 	Civil 	Procedure 	section 	1282 	to 	compel 	arbitration
of a labor dispute, 	the 	California Supreme Court 	stated that
California 	state policy 	is 	not 	substantially different 	from
federal 	policy to promote 	labor peace 	through arbitration. 	The
court 	held that, 	where the grievance procedure 	is not 	limited to
specific 	complaints, 	then all 	disputes which arise are 	covered if
a broad arbitration clause 	is 	in the agreement. 	Furthermore, 	it
was 	noted 	that proceeding 	to arbitrate 	is 	evidence 	that 	the
dispute 	is 	arbitrable. 	The 	court 	stated:
This being so, 	the 	federal 	rule 	to the effect
that 	in such cases 	all 	disputes 	as 	to the
meaning, 	interpretation and application of
any clause 	of 	the 	collective bargaining
agreement, 	even those 	that prima 	facie appear
to be without merit, 	[fn. 	omitted] 	are the
subject of arbitration, 	is adopted by this
court. 	[Id, 	at 	184.]
In another California Supreme 	Court 	case, 	O'Malley v.
Wilshire Oil Co. 	(1963) 	59 Cal.2d 482 	[30 Cal.Rptr. 	452]
(O'Malley). 	the court 	confirmed California's adoption of 	the
federal rules:
Although 	the 	issue 	in 	Posner did not 	involve
interstate 	commerce 	and 	therefore 	did 	not
necessarily 	invoke 	the 	federal 	rule as
described by the 	United States 	Supreme 	Court,
we 	nevertheless 	as 	a matter of policy
16

followed the 	federal 	approach. 	We held that
the 	trial 	court, 	instead of 	confining 	itself
to 	the 	issue of whether the 	dispute was
subject 	to arbitration, 	improperly passed
upon the merits 	of 	the 	issue. 	[Id. 	at 	487.]
The 	court went on to state, 	citing the U.S. 	Supreme Court
case of Warrior that:
In 	the absence 	of 	any express provision
excluding 	a particular grievance 	from
arbitration, 	we 	think only 	the most 	forceful
evidence 	of 	a purpose 	to 	exclude 	the 	claim
from arbitration 	can prevail, 	particularly
where, 	as here, 	the exclusion clause is vague
and 	the 	arbitration 	clause 	quite broad.
[O'Malley. supra. 	at 491, 	citing Warrior.]
Those 	cases make 	it 	clear that 	federal 	policy and 	the 	law of
California 	are 	consistent 	and California 	has 	gone 	further by
adopting 	statutes 	that mandate 	deferral 	to an arbitrator 	in 	labor
relations 	cases 	where 	the parties 	to 	the 	dispute 	agreed on
arbitration. 	The majority opinion escapes 	the 	statutory mandate
to 	defer 	this 	case 	to arbitration by misconstruing 	the 	PERB-
created phrase 	"arguably prohibited" 	to mean that 	conduct must 	be
forbidden by 	the 	contract before 	it 	is 	subject 	to deferral. 	To
the 	contrary, 	a 	review of 	the 	creation of 	the phrase 	"arguably
prohibited" 	shows 	that 	it means 	deferral 	occurs whenever the
dispute might be 	covered by the 	contract. 	This 	conclusion 	is
confirmed by a 	close 	examination of 	PERB precedent 	on 	resolving
questions 	of 	arbitrability; 	they reveal 	that 	PERB 	confirmed and
adopted 	the 	test 	of 	arbitrability 	identified 	in 	the 	California
and 	federal 	cases 	reviewed above.
For example, 	in 	Inglewood Unified School 	District 	(1990)
PERB Decision No. 	821 	(Inglewood), 	PERB expressly adopted the
17

federal 	"not 	susceptible" 	language, 	making PERB policy synonymous
with 	the 	standard 	in Warrior 	and adopted by 	the 	California
Supreme 	Court. 	After referring 	to 	the 	language 	employed 	in
Warrior. 	PERB stated:
We 	cannot 	conclude 	that Article 	XX section
20.1 	is 	not 	susceptible 	to an 	interpretation
that 	would allow an arbitrator 	to 	resolve
this 	dispute. 	We 	find that 	the District's
contracting 	out 	during 	the 	3-week 	layoff
period 	is 	arguably prohibited by 	the 	language
in Article XX section 20.1 	of 	the parties[']
collective 	bargaining 	agreement.
(Inglewood at p. 	7.)
-
It 	is 	obvious 	that 	PERB 	condensed the 	standard 	into 	the
paraphrase 	"arguably prohibited." 	This 	is 	confirmed 	in
Riverside 	Community College District 	(1992) 	PERB Order No. 	Ad-229
(Riverside), 	where PERB stated that:
Further, 	the Board has previously noted
California's 	strong policy 	in 	favor of
arbitration. 	[Citation.] 	In 	[Inglewood].
the 	Board 	found 	that 	arbitratio- -	n 	should not
be 	denied 	'unless 	it may be 	said with
positive 	assurance 	that 	the 	arbitration
clause 	is 	not 	susceptible 	of an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should be 	resolved in 	favor
of coverage. 	(Citations.)' 	The Board
therefore 	affirms 	the ALJ's 	finding 	that 	the
CBA's 	grievance machinery 	covers 	the matter
at 	issue. 	[Riverside at p. 	4.]
The 	majority 	opinion misconstrues 	the 	paraphrase 	"arguably
prohibited" 	by 	subjectively employing 	it 	to 	escape 	California 	law
which mandates 	deferral 	to arbitration.6 Contrary 	to 	the
6This 	case 	illustrates 	the 	"subjectivity" 	problem I 	warned
against 	in my 	dissent 	in State 	Center Community 	College District
(1994) 	PERB Order No. Ad-255.
18

majority view, 	Lake 	Elsinore School 	District 	(1987) 	PERB Decision
No. 	646 	did not 	employ the paraphrase 	to reach its 	result.
District's 	Duty 	to Negotiate
The majority here 	ignores 	the development 	of 	the 	step
assignment 	policy 	in 	the District 	which misleads 	the 	reader 	to
conclude 	that 	the 	District 	unilaterally 	changed a practice 	and
the United Professors of Marin, 	Local 	1610, 	CFT/AFT, 	AFL-CIO
(UPM) 	had no notice 	of 	the policy and therefore no obligation to
demand negotiations. 	The 	following 	chronology 	is 	extracted 	from
the 	record to 	establish that UPM was 	put 	on notice 	of 	the 	"past
practice" 	and discussed 	step assignment 	policy 	on 	several
occasions.
In 19 74 UPM, 	as part of a certificated employees 	council
(CEC), 	met with the District to discuss wages. 	At that time the
District 	provided a 	guide 	which 	stated:
(1) 	Placement: 	A new member of 	the faculty
shall 	not 	be 	recommended 	for placement 	higher
than Step 	7 	on the 	Certificated Salary
Schedule, 	regardless of experiences
(including teaching experience, 	military
experience, 	and/or work experience)..
The 	CEC accepted the 	step 	7 	limit.
In 	1978 	UPM became 	the 	exclusive 	representative 	of 	the
faculty. 	The District publicly adopted changes 	to 	salary
schedule placement 	which 	continued the 	limit 	on placement 	and 	.
clarified several 	issues. 	First, 	the Board would retain
authority 	to 	determine 	the 	credit 	to be 	awarded 	for placement 	on
the 	salary schedule. 	Second, 	the director of personnel 	would be
authorized 	to 	credit 	past 	service 	of 	an applicant 	for 	employment
19

in the District 	in teaching and military service. 	Third, 	the
personnel 	director was authorized to award, 	at 	his/her
discretion, 	either full 	or partial 	credit 	(year for year, 	up to
six years) 	for 	full 	time work experience 	directly 	related 	to 	the
college 	subject 	to be 	taught 	or the professional 	area of
assignment. 	Fourth, 	these 	regulations were to be uniformly
applied 	to all 	applicants.
For the years 	1977 	through 1981, 	the District personnel
office used 	the 	1973 	minutes 	of 	the 	Faculty and Administrative
Personnel 	Committee 	to 	extend 	credit 	for noncredit 	teaching
experience 	when 	initially placing 	faculty 	on 	the 	salary 	schedule.
In 	1979 	during negotiations 	for the 	first 	CBA, 	UPM proposed
changes 	to placement 	of 	new faculty members 	on a 	salary 	schedule.
No agreement 	on this 	subject 	emerged. 	Instead, 	a step 	7 	limit
for 	"teachers new to the 	system" 	was put 	in the CBA. 	No other
changes 	to 	the 	step 	7 	limit were proposed 	in contract
negotiations 	that 	occurred 	from 1979 	through 	1986.
In 	1981 	an administrator exercised retreat 	rights7 and
joined the 	faculty 	for the 	first 	time. 	The personnel 	director
unilaterally determined placement 	on 	the 	schedule 	by giving 	the
administrator 	credit 	for 	seven years 	of 	related experience prior
to 	service 	in the District. 	The personnel 	director believed he
had 	the 	authority 	to make 	interpretations 	of 	"related 	service"
and 	to 	conclude 	that 	the 	step 	7 	limit 	only applied 	to applicants
7Under 	the 	Education Code 	administrators 	have 	a 	right 	to
retreat 	into 	faculty.
20

for 	initial 	employment 	in the District. 	The 	administrator was
placed on 	step 	7 	for 	service 	outside 	the District 	and 	then
immediately advanced to 	step 	13 	by credit 	for six years 	of
administrative 	service 	to 	the District. 	At 	a public board
meeting the 	action was affirmed. 	The 	facts were put 	into a memo
(the 	Padover memo) 	and thereafter used by the personnel 	office 	as
guidance. 	UPM had no notice 	of 	existence 	of 	the memo. 	Personnel
office policy was 	to grant 	full 	credit 	for any administrative
experience 	in 	the District 	when managers 	retreated and 	credit 	for
outside 	service 	so 	that 	the 	combined 	credits 	often placed
entrants 	to 	faculty above 	step 	7.
In 1983, 	in reliance on the Padover memo, 	the personnel
office put 	two 	administrators 	who 	retreated 	into 	faculty
positions 	above 	step 	7 	since 	they were not 	new to 	the District.
Both actions 	were board approved at 	a public meeting.
In 	1985 	a group of 	non-credit 	instructors who were not
managers 	went 	into 	the 	faculty under 	the 	same 	interpretation 	of
the 	Padover memo as 	applied 	to 	the 	retreating administrators.
Three were placed above 	step 	7 	based on outside 	and 	in District
service 	credits. 	Since 	they were not 	"new to the 	system" 	they
were not 	held to 	step 	7.
In 	1987 	new language was 	inserted 	into 	the 	CBA to 	clarify
that 	the 	step 	7 	limit 	applied to 	"permanent 	teachers 	new to 	the
District." 	A step 	3 	limit was 	imposed on 	temporary 	instructors
new to the 	"District" 	and they 	could advance on the 	schedule
through 	re-hiring.
21

The 	proposed decision 	identifies 	seven more 	cases 	of 	faculty
placement 	consistent 	with 	interpretation 	of 	the 	Padover memo
during the 	1987-1991 period. 	In addition, 	the cases 	show
personnel 	director 	discretion was 	applied when decision makers
judged what 	kind or quality of 	service 	is 	eligible 	for 	credit.
In general, 	it 	had become easier to achieve qualified credit 	for
"related" 	outside 	service and in-district 	service. 	The mix of
cases 	involve people who started in management, 	non-management
and 	rotating 	transfers 	into 	and 	out 	of 	faculty and management
positions. 	Some 	of 	the 	transfers were publicly approved by 	the
board and there 	is 	no 	showing of 	a 	secret policy. 	There 	is 	a
showing 	that 	creditable 	service 	sometimes 	came about 	because 	of
requests 	from the person going 	into a 	faculty position.
During 	contract negotiations 	for 199 0-93, 	placement 	of
English as 	a 	second language 	(ESL) 	instructors 	on 	the 	schedule
was 	discussed. 	It 	was agreed that 	ESL 	instructors 	would get
credit 	for prior non-credit 	teaching 	service, 	be 	limited 	to 	step
7 	for 	initial 	placement 	and step 	10 	for advancement.
In 	1990, 	the personnel 	director began work on a 	series 	of
drafts 	to memorialize 	department 	practices 	covering placement 	or
movement 	on the 	salary schedule. 	It 	included department
interpretations made 	in 	individual 	cases. 	The proposed
guidelines 	were 	never 	completed or used 	for decision making. 	The
draft 	guidelines 	were 	forwarded 	to UPM at 	their 	request 	in
October 	1991. 	UPM asserted the 	draft 	guidelines were a
modification 	of 	existing practices 	and 	requested negotiations.
22

The District 	responded that 	the 	zipper 	clause precluded
negotiations 	and there was 	no 	change 	in past practice.8
Discussions 	without 	negotiations 	continued 	and 	UPM proposed 	a
change 	that would make 	step 	7 	the 	top 	step administrators 	could
achieve 	on retreating 	to 	faculty. 	The 	focus 	of 	talks became
whether or not 	to 	limit managers who 	retreat 	to 	faculty to 	step 	7
on the 	salary schedule. 	Discussions 	did not 	resolve 	the 	issue
and a 	complaint 	was 	issued. 	After 	the 	complaint 	issued more
managers 	retreated 	to 	faculty and were placed above 	step 	7.
It 	is 	readily apparent 	that District policy on step
assignments 	was 	established by 	1987 	and evidence 	of 	agreed-to
changes 	shows 	that UPM had notice 	of 	the District practice 	or
method of making assignment 	decisions. 	While 	there 	is 	evidence
that 	the policy was 	dynamic, 	that 	does not amount 	to a unilateral
change 	in a past practice 	or 	contractual 	commitment.9
8The 	zipper clause reads:
This 	document 	comprises 	the 	entire Agreement
between the District and UPM/AFT, 	1610, 	on
the matters within the 	lawful 	scope of
negotiations. 	Subject 	to the decision of
PERB, 	UPM and the District 	shall 	have no
further 	obligation 	to meet 	and negotiate,
during the 	term of 	this Agreement, 	except as
otherwise provided 	for herein, 	on any subject
whether or not 	said subject 	is 	covered by
this Agreement, 	even though such subject was
not 	known nor 	considered at 	the 	time 	of 	the
negotiations 	leading 	to the 	execution of 	this
Agreement. 	(CBA pg. 	43.) 	(In addition, 	the
CBA contains 	a 	grievance 	and arbitration
procedure.)
9 See, 	e.g., 	Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51 	(Pajaro), 	where PERB recognized the 	"dynamic
status quo" 	concept 	in federal 	labor law. 	That 	concept
23

recognizes 	that 	change 	can be a normal part 	of 	the pattern of
conduct between an employer and a union. 	As 	PERB noted 	in
Pajaro;
While 	[federal precedent] 	prohibits
disturbance 	of 	the 	status 	quo during
negotiations, 	the NLRB has held that the
"status 	quo" 	against which an employer's
conduct 	is 	evaluated must 	take 	into account
the 	regular and 	consistent past 	patterns 	of
changes 	in the 	conditions 	of employment. 	The
NLRB 	has 	held 	that 	changes 	consistent 	with
such a pattern are not violations 	of 	the
"status quo." 	[Id. 	at p. 	6; 	citations
omitted.]
CONCLUSION
There 	is 	strong evidence 	that 	an arbitrator, 	experienced 	in
labor relations disputes, 	could come 	to a different 	conclusion
than the ALJ based on the contract, 	contractual 	defenses, 	and
precedents 	appropriate when 	considering 	the 	unilateral 	change
issue. 	The District 	has been denied 	its 	contractual 	right 	to
submit 	this 	case 	to arbitration by 	the Board's 	decision which 	is
contrary 	to 	California 	law.
24

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-1524,
United Professors of Marin. 	Local 	1610, CFT/AFT, AFL-CIO v. 	Marin
Community College District, 	in which all 	parties 	had 	the 	right 	to
participate, 	it has been found that 	the Marin Community College
District 	(District) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Taking unilateral 	action and 	failing and 	refusing
to negotiate 	in good 	faith with 	the 	United 	Professors 	of Marin,
Local 1610, 	CFT/AFT, 	AFL-CIO 	(UPM), 	exclusive representative of
the District's 	certificated employees, 	about 	the 	step placement
of 	former managers 	on 	the 	negotiated 	certificated 	salary
schedule.
2.. 	By the same conduct, 	denying to UPM, 	rights
guaranteed by 	the 	EERA, 	including 	the 	right 	to 	represent 	its
members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request, 	meet 	and negotiate with UPM about 	any
future 	decision 	to place 	former managers 	on 	the 	negotiated
certificated 	salary 	schedule.
Dated: 	MARIN COMMUNITY 	COLLEGE
DISTRICT
By:. Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNITED PROFESSORS OF MARIN, 	LOCAL
1610, CFT/AFT, AFL-CIO,
Charging 	Party,
v.
MARIN COMMUNITY COLLEGE DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1524
PROPOSED 	DECISION
(7/19/93)
)
)
)
)
Appearances: 	Robert J. 	Bezemek, 	Attorney, 	for the United
Professors of Marin, 	Local 1610, 	CFT/AFT, 	AFL-CIO; 	Littler,
Mendelson, 	Fastiff & Tichy, 	by Nancy L. 	Ober, 	Attorney, 	for
Marin 	Community 	College 	District.
Before 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
This 	unfair practice 	charge was 	filed by 	the United
Professors of Marin, 	Local 1610, 	CFT/AFT, 	AFL-CIO 	(UPM or
Charging Party), 	against 	the Marin Community College District
(District or Respondent) 	on December 24, 	1991, 	and amended on
May 5, 	1992.
The 	general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	issued an initial 	complaint on February 28, 	1992,
alleging 	the 	District 	bypassed 	the 	Charging 	Party and
unilaterally 	implemented policies 	covering placement 	of 	former
managers 	on the negotiated salary 	schedule. 	The District
answered the 	complaint on March 24, 	1992.
Th\s proposed decision has been appealed to the
This proposed decision has been appealed to the
eoard itself and may not be cited as precedent
Board itself and may not be cited as precedent
unless the decision and its rationale have been
unless the decision and its rationale have been
adopted by the B®.rd,adopted by the Board.

A 	settlement 	conference 	was 	conducted 	by 	a 	PERB
administrative 	law judge 	(ALJ) 	on March 26, 	1992, 	but 	the 	dispute
was 	not 	resolved.
On April 	30, 	1992, 	prior 	to 	the 	start 	of 	the 	formal 	hearing,
the 	Charging 	Party moved 	to 	amend 	the 	complaint. 	The 	motion
contained 	multiple 	additional 	allegations 	that 	the 	District
bypassed 	UPM 	and 	unilaterally 	implemented 	a 	variety 	of 	policies
covering 	placement 	of 	former managers 	on 	the 	negotiated 	salary
schedule. 	UPM alleges 	that 	the 	District, 	by 	this 	conduct
violated section 3543.5(a), 	(b), 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA or Act).1
The District's 	amended answer, 	filed on May 29, 	1992, 	denied
all 	allegations 	and 	set 	forth 	several 	affirmative 	defenses.
Denials 	and 	affirmative 	defenses 	will 	be 	addressed below, 	as
necessary.
1 EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	in 	this
decision are 	to 	the Government 	Code. 	Section 3543.5(a), 	(b) 	and
(c) 	make 	it 	unlawful 	for 	a public 	school 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(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.
22

In a series 	of motions, 	the District 	sought dismissal 	of 	the
complaint based on deferral 	and statute 	of 	limitation 	claims, 	as
well 	as 	the assertion 	that 	the 	alleged unlawful 	changes 	do not
constitute a generalized effect 	on the bargaining unit. 	The
District 	also 	opposed UPM's motion to amend the 	complaint. 	On
June 	12, 	1992, 	the undersigned ALJ granted UPM's motion to amend
the 	complaint 	and denied 	the District's motion to dismiss.
On July 17, 	1992, 	at the close of 	the sixth day of hearing,
the 	undersigned ALJ granted 	the 	Charging 	Party's 	motion 	to
conform to proof 	in 	order 	to add 	the 	allegation 	that 	the 	District
unilaterally 	instituted 	a 	practice 	of 	paying managers 	for
performing bargaining unit 	work. 	(See 	Riverside Unified School
District 	(19 85) 	PERB Decision No. 	553.) 	Thus, 	the complaint, 	as
amended, 	alleges 	that 	the District 	(l) 	bypassed the exclusive
representative 	and 	dealt 	directly with 	former managers 	in placing
them on the 	certificated salary schedule; 	(2) 	unilaterally
implemented 	(for 	salary 	schedule placement) 	and later 	refused 	to
negotiate about a policy which, 	among other things, 	(a) 	grants
one year credit 	for less 	than thirty units 	of 	instruction, 	(b)
grants 	credit 	for classified service, 	(c) 	grants 	credit 	for
instruction in non-credit areas, 	(d) 	grants 	credit 	for management
service, 	(e) 	grants 	"double step credit" 	for management and other
service, 	(f) 	grants 	credit 	for management 	service unrelated to
the 	teaching assignment, 	and 	(g) 	places 	former managers above the
contractual 	Step 	7 	limit 	on 	the 	certificated 	salary 	schedule 	when
entering the 	faculty; 	and 	(3) 	unilaterally implemented a policy
33

under which managers 	were 	paid 	for performing bargaining 	unit
work 	(teaching).
Eighteen days 	of 	formal 	hearing were 	conducted between June
16 and November 4, 	1992, 	in Marin, 	California. 	With receipt of
the 	final brief on March 30, 	1993, 	the case was 	submitted.2
FINDINGS 	OF 	FACT
Jurisdiction
The District 	is 	a public 	school 	employer within 	the meaning
of 	section 3540.i(k). 	UPM is 	an employee 	organization within the
meaning of 3540.i(d), 	and the exclusive representative of a unit
of 	the District's 	certificated employees 	within 	the meaning 	of
section 3540.i (e) .
I. 	Past 	Practices
A. 	District 	Policies
Prior 	to becoming 	exclusive 	representative 	of 	the District's
certificated employees, 	UPM was part 	of 	a 	"certificated employees
council" 	(CEC), 	which met with the District to discuss wages,
hours 	and working conditions. 	Paul 	Christensen 	(Christensen) 	was
the UPM representative 	to 	the 	CEC. 	The District 	was 	represented
by, 	among others, 	Berkeley Johnson 	(Johnson) 	and Don Green
(Green).
2Pursuant 	to 	PERB Regulation 32210, 	three 	former managers
(Ronald Gaiz, 	Kent 	Lowney and Kathyrn Freschi) 	filed
informational 	briefs. 	The 	Charging Party's motion 	to 	strike
those parts 	of 	the 	informational briefs 	filed by Freschi 	and
Gaiz, 	based on the ground that 	they referred 	to 	evidence 	not
included 	in the 	formal 	record, 	is granted. 	Those portions 	of 	the
informational 	briefs 	which 	refer 	to 	evidence 	not 	included 	in 	the
administrative 	record are hereby rejected, 	and will 	not 	be
considered 	in preparation 	of 	this 	proposed decision.
4

In October 	1974, 	then District 	Superintendent 	John Gresham
(Gresham) 	provided Christensen with a 	copy of 	the District
handbook 	for 	faculty, 	and the District's 	"General 	Staff Guide"
regarding personnel 	policies 	and practices. 	Section 4100 	was
part 	of 	the 	"General 	Staff Guide." 	Section 4100(i) 	governs
"Placement 	on Salary Schedule." 	It provides:
"(1) 	Placement: 	A new member of 	the 	faculty
shall 	not 	be 	recommended 	for placement 	higher
than Step 	7 	on 	the 	Certificated Salary
Schedule, 	regardless of 	the candidate's
combination 	of 	experiences 	(including
teaching experience, 	military experience,
and/or work experience)."
The express 	language of 	this policy, 	read in its 	entirety,
appears 	to 	cover 	selection 	of 	applicants 	from outside 	the
District 	for 	initial 	placement 	on 	the 	faculty salary 	schedule.
The policy does 	not 	indicate 	that 	it was 	intended to 	cover
administrators 	who 	entered 	the 	faculty 	ranks.
Responding 	to 	Christensen's 	inquiry about 	the basis 	of 	the
Step 	7 	limit, 	Johnson explained that 	the 	limit was 	necessary 	for
the 	fiscal 	security and 	stability of 	the District. 	According 	to
Christensen, 	Johnson explained that 	the Step 	7 	limit 	restricted
"placement 	on 	the 	salary schedule 	to no higher 	than Step 	7, 	when
you were 	initially placed 	in 	the District." 	The 	CEC accepted 	the
Step 7 limit.
Another District policy, 	section 309, 	specifically addresses
initial placement 	on 	the 	salary 	schedule, 	superseding 	in part 	the
earlier policy 	found 	in 	section 4100. 	Section 	309 	was 	adopted by
the District 	in November 	1978 	in a public meeting. 	Like 	section
s

4100(i) 	before it, 	section 309 	describes 	experience 	that 	can be
credited 	for 	initial 	placement 	on the 	salary schedule, 	and limits
step placement 	to Step 	7:
INITIAL 	PLACEMENT ON 	SALARY 	SCHEDULE
The 	Board 	retains 	the 	authority 	to 	specify 	the 	salary
of 	new positions 	and to determine 	the 	credit 	to be
awarded 	for placement 	on 	an 	existing 	salary 	schedule.
The Director of 	Personnel 	is 	authorized 	to 	credit 	for
placement 	on 	the 	salary schedule past 	service 	of 	an
applicant 	for 	employment 	in 	this 	District 	on 	the
following basis:
1. 	Placement 	- 	A new member of 	the 	faculty shall
not 	be 	recommended 	for placement 	higher 	than
Step 	7 	on 	the 	Certificated Salary Schedule,
regardless 	of 	the 	candidate's 	combination of
experiences 	(including 	teaching 	experience,
military experience, 	and/or work experience).
2. 	Teaching Experience 	- 	Full 	credit 	(year for
year, 	up to six years) 	shall be given for
full-time 	teaching 	experience 	(subject 	to
limitations in paragraph 	[1], 	above). 	Credit
shall 	also be 	given 	for part-time 	college
teaching 	experience based 	on 	the 	formula 	that
30 	part-time teaching units 	shall 	count as 	a
full 	year's 	teaching experience. 	Experience
as 	a 	teaching assistant 	shall 	be 	applicable
only 	if 	the 	candidate has 	had 	full
responsibility 	for 	teaching 	the 	class 	to
which he was assigned. 	(Part-time 	teaching
experience 	is 	also 	subject 	to 	the 	limitation
in paragraph 	[1].)
3. 	Military Experience 	- 	Full 	credit 	(year for
year, 	up to six years) 	shall be given for
full-time military experience 	(subject 	to
limitations in paragraph 	[1], above), 	if and
only if, 	military experience has been
acquired while 	the 	candidate was 	on 	leave
from teaching 	in an 	education 	institution.
4. 	Work Experience 	- 	The 	Personnel Director
shall, 	at 	his/her discretion award either
full 	or partial 	credit 	(year for year, 	up 	to
six years) 	for 	full-time work experience
(including military 	except 	that 	work
6

experience 	obtained 	in 	the military service
shall 	not 	also 	count 	as military experience,
under paragraph 3 	above) 	directly related to
the 	college 	subject 	to be 	taught 	or the
professional area of assignment, 	(subject 	to
limitations 	in paragraph 1 above). 	Work
experience used 	in 	satisfaction of 	step
credit 	(on 	the 	Certificated 	Salary 	Schedule)
shall not be applied, 	also, 	in satisfaction
of 	column 	credit 	(on 	the 	Certificated Salary
Schedule).
These 	regulations 	shall 	be uniformly applied 	to 	all
applicants.
The express 	language of 	section 309, 	like 	its predecessor,
appears 	to 	cover 	selection 	of 	applicants 	from outside 	the
District 	for placement 	on the 	certificated salary scale. 	It 	does
not 	expressly 	cover 	administrators 	when 	entering 	the 	faculty.
Another District policy, 	section 309.5, 	entitled 	"Movement
on Salary Schedule," 	was 	also adopted by 	the District 	in November
1978 	at 	a public meeting and covered, 	among other things,
vertical 	movement 	on 	the 	salary 	schedule 	for 	full-time 	and part-
time 	faculty. 	Section 3 09.5 provides as 	follows 	regarding
vertical 	movement 	on 	the 	salary 	schedule:
B. 	VERTICAL MOVEMENT
Full-Time 	and 	Part-Time 	Faculty
Vertical 	movement 	for 	full-time 	faculty members 	is
effected once 	each year on July 1, 	at 	the 	rate of 	one
step 	for 	every 	thirty 	teaching units. 	Faculty members
who 	are 	on a 	Board-approved 	reduced 	teaching 	loan 	of 	18
units 	per academic 	year; 	Board-approved participation
in a phased-in early 	retirement program of 	at 	least
one-half 	of 	the number of 	days 	of 	service 	required 	for
a 	regular 	full-time assignment; 	a medical 	leave 	of
absence; 	and a 	sabbatical 	leave are also eligible 	to
move vertically 	on 	the 	salary 	schedule 	on July 	1.
Mid-year 	certificated 	appointees 	are 	required 	to
complete 	three 	semesters 	before being 	eligible 	for
77

salary advancement, 	it being observed that 	it 	is a
common practice 	for District 	to 	require 	a 	certificated
employee 	to work at 	least 	75% 	of 	the days 	in a given
school 	year before he/she 	is 	eligible 	for step
advancement 	on 	the 	salary 	schedule.
Vertical 	advancement 	for part-time 	faculty members 	to
the 	seventh step on the 	schedule 	shall 	be at 	the 	rate
of 	one 	step 	for every thirty 	teaching units 	in 	the
District, 	either during regular or summer sessions, 	its
equivalent 	elsewhere when 	satisfactorily documented, 	or
a 	combination 	of 	District 	and 	out-of-District
experience. 	No more 	than 	thirty teaching units 	in a
given year may be 	applied 	toward a 	step 	increase, 	which
may be 	effected at 	the beginning 	of 	any 	semester 	or
summer session only. 	Past 	the 	seventh step, 	vertical
advancement 	for part-time 	faculty members 	shall 	be
possible 	only by experience 	in 	the District. 	Part-time
counselors, 	librarians, 	or other non-administrative
certificated personnel 	shall, 	in a 	similar 	fashion,
advance 	by 	the 	accumulation 	of 	full-time 	equivalent
experience.
Another District policy, 	reflected 	in a document 	entitled
"Minutes 	of 	Faculty and Administrative 	Personnel 	Committee 	of
February 16, 	1973" 	(Minutes), 	was passed on by Berkeley Johnson
to personnel 	specialist Jan Moffett 	(Moffett). 	The Minutes
provide 	in pertinent 	part:
There 	was 	discussion 	concerning 	allowing
salary 	schedule 	advancement 	for 	educational
experiences 	other than formal 	classroom. 	It
was MSC unanimously to equate 	45 	hours 	of
non-classroom activity as 	equivalent 	to 	1
unit 	of 	credit.
Christensen testified that 	he was 	aware 	that 	the 	"45 	to 	1"
rule was 	adopted prior to 	collective bargaining. 	According 	to
David Pia 	(Pia), 	the District's personnel director from 1977 	to
1981, 	the District has used the Minutes 	to extend credit 	for
noncredit 	teaching 	experience 	when 	initially placing 	faculty 	on
the 	salary schedule.
8
. . .

B. 	Collective 	Bargaining Agreements
UPM became 	the 	exclusive 	representative 	for 	the 	District's
faculty in 1978. 	In 1979, 	during negotiations 	for the 	first
contract, 	UPM proposed that 	the parties 	establish a Degree and
Certificate 	Committee
. 	. 	. 	for the purpose of allocating salary
differentials 	to all 	faculty, 	counselors 	and
librarians. 	Membership on this 	Committee
shall be one 	(1) 	representative of 	the
District 	and two 	(2) 	faculty members 	chosen
by the Union.
UPM 	further proposed 	that
31.11. 	All 	new faculty members 	shall be
placed on Step 	1 	of 	the 	salary schedule 	(with
column placement 	according 	to 	education)
until 	evidence 	of 	experience 	is 	submitted and
evaluated. 	Within two months 	of hiring, 	new
faculty members 	shall 	be 	placed 	on 	the 	step
appropriate 	to 	their 	evaluated 	experience 	and
shall 	be paid retroactively 	to 	the 	date 	of
their assignment 	for 	loss 	in 	salary 	caused by
the 	experience 	evaluation process. 	All
evaluation of 	experience 	shall 	be 	done 	by 	the
Degree 	and Certificate 	Committee.
Ultimately, 	there was 	no agreement 	to establish a committee 	to
determine 	step placements 	of 	new faculty beyond Step 	1 	or 	to
review experience 	and qualifications 	for 	salary placement.
Instead, 	a 	certificated 	salary 	schedule with a Step 	7 	limit
for 	"teachers 	new to 	the 	system" 	was 	put 	into 	the 	first 	contract
without discussion. 	In addition, 	the parties agreed that 	the
contract would 	"modify or replace any policies, 	rules,
regulations, 	procedures 	or practices 	of 	the District which shall
be 	contrary to 	or 	inconsistent 	with 	its 	terms."
99

Following negotiations, 	Christensen met with District board
members Wallace Hall 	(Hall) 	and Al 	Curtis 	(Curtis), 	at 	the
request 	of 	then Superintendent Gresham, 	to assist 	in 	identifying
policies 	superseded by 	the 	collective 	bargaining 	agreement.
During 	the meeting, 	certain superseded policies 	were 	identified
by Hall, 	but 	Christensen could not 	recall 	if 	Hall 	identified a
policy 	covering 	the 	Step 	7 	limit. 	Neither Hall 	nor Curtis
suggested any 	changes 	in how Step 	7 	limits 	applied 	to 	initial
placements. 	Later, 	Christensen testified, 	he 	"heard rumors" 	that
the 	District's 	effort 	to 	delete 	from policy 	those 	sections 	which
conflicted with 	the 	contract 	had been 	aborted.
Christensen also 	served as 	co-chief 	negotiator 	for 	the 	1981-
84 	contract. 	During these negotiations, 	the parties proposed no
changes 	in the Step 7 	limit.
Reopener negotiations 	led to a 	1983-84 	contract. 	Once
again, 	the parties made no proposals 	to 	change 	the meaning of 	the
Step 7 limit.
UPM chief 	negotiator 	for 	the 	1987-90 	contract 	was 	Ira
Lansing 	(Lansing). 	The District's 	chief 	negotiator was 	Paul
Loughlin 	(Loughlin) , 	assisted by Kent 	Lowney 	(Lowney) 	and Nancy
Stetson 	(Stetson). 	During negotiations 	for the 	1987-90
agreement, 	the 	subject 	of Appendix A 	(the 	salary schedule) 	and
step placement 	arose. 	In an effort 	to avoid a 	formula 	that would
have 	raised 	the 	salaries 	of 	temporary 	faculty members 	far higher
than 	the 	District 	could accept, 	Loughlin proposed 	capping 	initial
placement 	of part-time, 	temporary faculty at Step 3, 	and maximum
10

salaries 	at 	Step 	7. 	UPM was 	concerned 	that 	the 	initial 	cap would
be misused by 	the District, 	since 	part-time 	temporary 	faculty are
in one 	sense 	"new hires" 	each time 	they are hired. 	District
negotiators 	agreed 	that 	the 	Step 	3 	limit 	applied only to 	initial
placement, 	not 	to subsequent employment.
In clarifying 	contract 	language after the negotiations, 	the
term 	"teachers" 	in Appendix A was 	changed 	to 	"permanent 	teachers"
and the 	term 	"system" 	was 	changed to 	"district." 	The
modification to 	"permanent 	teachers" 	was 	needed because, 	with the
addition of 	the Step 3 	limit 	for temporary teachers, 	the Step 	7
language 	had 	to be 	changed 	to 	distinguish permanent 	teachers.
Also, 	with little discussion, 	Lowney and Lansing agreed to 	change
"system" 	to 	"District."3 The 	relevant 	contract 	language would
now limit 	"permanent 	teachers 	new to 	the 	district" 	to Step 	7.
Christensen 	served as 	UPM chief 	negotiator 	during 	the 	spring
and 	summer bargaining which 	led to 	the 	1990-93 	contract. 	During
negotiations, 	placement 	of 	English as 	a Second Language 	(ESL)
instructors 	on 	the 	certificated 	salary 	schedule 	became 	an 	issue.
ESL 	instructors 	in 	the non-credit 	program were 	paid 	on an hourly
basis. 	They were not paid on 	the 	certificated salary schedule.
UPM wanted ESL 	instructors paid on the 	schedule. 	Loughlin,
serving as 	the District's 	negotiator, 	initially 	rejected the
proposal 	as 	too expensive. 	However, 	the District 	eventually
agreed 	to 	a 	formula 	under which non-credit 	ESL 	faculty 	received
3The preamble 	to the 	contract 	defines 	the 	"District" 	as 	the
Marin 	Community 	College District.
11

credit 	for prior non-credit 	service. 	In addition, 	for ESL
instructors, 	a Step 	7 	cap was put 	on initial placement, 	and a
Step 	10 	cap 	on advancement. 	Christensen testified that 	this 	was
the 	first 	time 	the District 	agreed 	to 	extend 	credit 	for non-
credit 	service.
C. 	The 	Padover Case
In 1981, 	Steven Padover 	(Padover), 	dean of student services,
left 	the 	administration and 	entered 	the 	faculty 	for 	the 	first
time. 	Then 	Personnel 	Director David 	Pia 	determined 	that
Padover's 	case was 	one of 	first 	impression, 	and there were no
District 	policies 	or procedures 	covering 	this 	type 	of 	personnel
action. 	Accordingly, 	Pia unilaterally determined how Padover
should be 	placed.
Pia 	concluded 	that 	Padover had at 	least 	seven years 	of
related experience prior to 	employment 	in the District, 	and
therefore was 	entitled to placement at 	Step 	7, 	based on his
outside 	experience. 	Pia 	testified 	that 	credit 	had never
previously been given 	for 	experience 	outside 	the 	District 	to
place 	employees 	above Step 	7 	on the 	salary schedule. 	Pia
believed that under section 3 09, 	the Step 	7 	limit did not apply
to all 	of Padover's 	creditable experience, 	however, 	because he
was not an applicant 	for initial 	employment. 	Rather, 	he was 	a
District 	manager 	exercising 	retreat 	rights 	based upon his 	service
as an administrator. 	Also, 	in Pia's view, 	he had the discretion
to 	determine 	whether 	Padover's 	prior work 	experience 	was
sufficiently 	related 	to his 	teaching 	assignment 	in 	the District
12

to be 	credited for placement purposes. 	Accordingly, 	he 	credited
Padover's 	experience 	in management. 	Padover had been a manager
and had 	responsibility for 	the 	subject 	area 	to which he was
assigned.
In addition, 	faculty members who 	in the past moved to
management 	and back 	to 	the 	faculty received 	credit 	for 	time 	spent
as managers 	when 	they 	returned 	to 	the 	faculty 	salary 	schedule,
and Pia 	felt 	Padover 	in 	fairness 	should receive 	the 	same 	credit.
Thus, 	Pia 	counted Padover's 	six years as 	a District manager
towards 	placement 	on 	the 	salary 	schedule.
In 	sum, 	Pia 	recommended that 	Padover 	receive 	credit 	up 	to
Step 	7 	for his 	experience 	outside 	the District, 	and credit 	for
all 	the time he worked in the District. 	On April 	8, 	1981, 	at a
public meeting, 	the District 	approved 	Padover's 	reassignment 	to
counselor 	in the bargaining unit, 	at 	Step 	13 	on the 	certificated
salary 	schedule.
Padover never actually 	entered 	the 	faculty unit, 	and was
never paid on 	the 	certificated 	salary 	schedule. 	He 	took a 	leave
of 	absence 	and eventually left 	the District.
Pia 	left 	the District 	before 	the 	board voted 	on 	Padover's
placement. 	Prior to his departure, 	however, 	he wrote a
memorandum 	to Moffett 	describing 	how he 	determined 	Padover's
placement. 	The memorandum stated:
I 	have 	reviewed 	the 	applicable provisions 	of
District 	policy with 	reference 	to placement
of Dr. 	Steven L. 	Padover on the 	certificated
salary 	schedule as 	a 	result 	of 	his
resignation as Dean of 	Student Services, 	and
his 	subsequent 	request 	to be 	a 	counselor
13

within the District. 	Dr. 	Padover was
initially 	employed by 	the 	Marin 	Community
College District 	as 	the Dean of 	Student
Services. 	He has never been placed on the
certificated salary schedule. 	Since 	this
employee has been a member of 	the management
team from his date of hire, 	and since 	there
is 	no precedent 	in the District 	either 	in
policy 	or past 	practice 	for placement 	of 	a
management 	team member 	on 	the 	salary 	schedule
for employment under these 	circumstances, 	it
is my decision to credit Dr. 	Padover with
past 	experience 	outside 	the 	district 	up 	to
Step 7. 	Dr. 	Padover will 	also be 	credited
with six additional 	years 	for the 	time 	spent
as 	an administrator within the District. 	It
is 	therefore my decision to place Dr. 	Padover
at Step 13, 	Class 	IV, 	with doctorate, 	with a
salary of 	$30,734 	per year.
UPM was 	never 	informed of 	the 	Padover memo 	or 	its 	contents.
Kent 	Lowney 	recalled at 	hearing 	that 	he 	first 	saw 	the memo 	about
five 	or eight years 	ago, 	but never gave 	it 	to UPM or discussed it
with the union. 	Nor did Lowney, 	who succeeded Pia, 	discuss 	the
memo with 	Pia.
Meanwhile, 	Moffett 	has maintained the 	Padover memo 	in her
files 	since receiving it 	in 1981. 	Over the years, 	she has
applied 	it 	in placing 	other managers 	on 	the 	certificated 	salary
schedule. 	Moffett 	understood 	from the memorandum and discussion
of 	it with Pia, 	that management experience 	in the District 	is 	to
be 	credited regardless 	of 	the area 	of management 	in which 	the
administrator 	served and 	regardless 	of 	the 	teaching assignment 	to
which 	the 	administrator 	is 	assigned.
According 	to Moffett, 	administrators were never placed on
the 	certificated 	salary 	schedule when 	they 	came 	into 	the
District. 	If 	later placed on 	the 	certificated salary 	schedule
14

for 	the 	first 	time, 	they were 	credited with pre-District 	service
related 	to 	their 	initial 	(administrative) 	assignment 	in 	the
District 	up 	to 	Step 	7, 	thereafter 	they advanced based on 	their
management 	service 	in the District. 	These 	decisions 	were made 	in
large part pursuant 	to the 	Padover memo given to her by 	Pia.
What 	follows 	is 	a brief 	history of 	the placement 	of 	former
managers 	and 	others 	on the 	negotiated 	salary 	schedule.
D. 	Placement 	of managers 	and others 	above 	Step 	7
In 1983, 	Marijane Paulsen 	(Paulsen) 	and Roque Madrigal
(Madrigal), 	became the first administrators after Padover to be
placed 	for 	the 	first 	time 	on 	the 	certificated 	salary 	schedule.
The placements 	were made by Lowney, 	after 	consultation with
Moffett, 	and based on the 	Padover memo. 	Both Paulsen and
Madrigal 	were placed above Step 	7. 	The 	Step 	7 	contractual 	limit
did not 	limit all 	of 	their creditable 	service, 	the District
contends, 	because 	they were not 	new to the District 	or the
system.
Specifically, 	Paulsen was hired as a dean in 1981, 	and
became a biology instructor effective August 	12, 	1983. 	She was
given 	credit 	up 	to 	Step 	7 	based upon her pre-District 	experience
and advanced 	on 	the 	salary 	schedule 	for 	the 	two years 	she 	served
as an administrator. 	Her placement, 	at 	Step 9, 	was approved by
the 	District 	board 	in a public meeting.
Madrigal began employment as veterans 	coordinator 	(a
classified position) 	in 1979, 	moved to veterans affairs 	officer
in 1980 	(also a classified position) 	and became dean, 	educational
15

and student 	services, 	a certificated position, 	effective
January 1, 	1981. 	He 	remained in management as 	a dean until 	the
board, 	in a public meeting on July 26, 	1983, 	appointed him to a
half 	counseling and half 	coordinator of 	counseling assignment, 	at
Step 10.
Pursuant 	to the 	Padover memo, 	Madrigal 	received credit 	for
four years pre-District administrative experience, 	one year of
military experience, 	and placed at Step 6. 	He was 	then advanced
to Step 10, 	based on his 	four years 	service 	in the District.
According 	to Lowney, 	Madrigal 	was not held to Step 	7 because he
was 	not 	newly employed in 	the District.
In 	1985, 	the District placed a group of 	EOPS/HSPS 	noncredit
instructors 	on 	the 	certificated 	salary schedule 	for 	the 	first
time under the 	same 	interpretation of 	the 	Step 	7 	limit 	as 	had
been used 	in 	the 	case 	of 	the 	former managers 	initially placed on
the 	schedule. 	These 	EOPS/HSPS placements 	followed a 	1984
advisory 	from the 	State 	Chancellor's 	office 	that 	noncredit 	EOPS/
HSPS 	instructors 	were 	entitled to be 	tenured. 	That 	same year,
the District 	gave 	these 	instructors 	tenure 	in the noncredit
program.
The District 	later placed 	the 	EOPS/HSPS 	instructors 	on 	the
certificated 	salary schedule. 	Pursuant 	to a 	side agreement
between 	the parties, 	unit members 	transferred 	from temporary 	to
permanent 	over the 	last 	three years, 	the EOPS/HSPS group, 	were to
be paid 	"at 	their appropriate 	step 	and 	column placement."
16

At 	Lowney's 	direction, 	three were placed above 	Step 	7 	on the
certificated 	salary 	schedule 	based upon 	their 	combination 	of
outside 	experience 	and service 	in 	the 	District's 	noncredit
program. 	They were 	not 	held to Step 	7 because 	they were 	not
permanent 	teachers 	"new to 	the 	system." 	While 	their pre-District
experience was 	capped at 	Step 	7, 	their District 	experience
advanced 	them past 	Step 	7. 	All 	of 	the 	EOPS/HSPS 	instructors
initially placed 	on 	the 	salary 	schedule 	as 	permanent 	instructors
in 	1985 	received 	credit 	for 	their noncredit 	experience 	in 	the
District 	according 	to 	the 	(Minutes) 	formula 	for equating
noncredit 	and 	credit 	service.
On June 9, 	1987, 	the District 	reassigned Eugenie Yaryan
(Yaryan) 	from a 	certificated management 	position 	(Coordinator of
Student Activities) 	to the 	faculty, 	at Step 	11 on the
certificated 	salary 	schedule. 	Yaryan was 	first 	placed 	on 	the
certificated 	salary 	schedule 	in 	the 	1970s 	and had advanced based
upon teaching credit 	courses 	in the District. 	In 1980, 	when she
was 	at 	Step 4 	on the 	schedule, 	Yaryn was named Student Activities
Director, 	a certificated position when she took it. 	Later, 	it
was 	changed to a classified position and, 	on October 9, 	19 85,
reclassified as management. 	In 1987, 	the District 	reclassified
the 	position back 	to a 	certificated management 	position. 	Neither
the 	functions 	nor the 	title 	of 	the position changed.
When Yaryan returned to the 	faculty in 19 87, 	Lowney directed
Moffett 	to count all 	of Yaryan's 	service as 	Student Activities
17

Director, 	classified and 	certificated, 	toward her advancement 	on
the 	certificated 	salary 	schedule.4
Meanwhile, 	on June 2, 	19 87, 	after Yaryan decided to return
to 	the 	faculty, 	she wrote 	to Lowney 	requesting 	that 	her service
as 	Student Activities Director be 	counted 	for placement 	as 	a
faculty member, 	based upon the 	continuity of 	the position and her
overall 	responsibility. 	Although Moffett 	did not 	advise 	Yaryan
as 	to the 	content 	of 	the 	letter, 	she told Yaryan how to draft 	the
letter and 	to whom it 	should be 	sent. 	Aside 	from her written
inquiry 	to 	Lowney and 	the 	subsequent 	response 	from Moffett 	that
her 	service 	as 	Student Activities 	Director would be 	counted 	for
placement 	purposes, 	Yaryan said she 	had no discussions with any
District 	representative 	regarding her 	salary placement. 	However,
Lowney testified 	that 	he 	had a 	"long 	series 	of 	discussions" 	with
Yaryan about 	step placement, 	and that 	she had been 	"crying 	out
for 	recognition 	in any 	form for a 	long 	time." 	Accordingly,
Lowney granted Yaryan's June 2, 	1987, 	request.
On May 12, 	1987, 	the District 	reassigned Kathryn Freschi
(Freschi) 	to 	the 	faculty and placed her on the 	certificated
salary schedule, 	effective August 12, 	1987, 	at Step 10. 	Minutes
of 	the UPM Executive Council meeting of May 5, 	19 87, 	reflect 	that
UPM was 	aware 	of 	Freschi's 	assignment 	to 	the bargaining unit 	as
an 	Italian 	teacher.
4In contrast, 	Tara Flandreau 	(Flandreau), 	former UPM
president, 	was 	denied 	credit 	for classified service when 	she was
placed 	on 	the 	certificated 	salary 	scale. 	And Alexandra 	Hall
(Hall) 	was 	denied credit 	for 	classified service when 	she was
first 	placed on 	the 	certificated 	schedule.
18

In placing Freschi at 	Step 	10, 	Moffett 	credited her with
pre-District experience, 	District managerial 	service, 	and
District noncredit 	teaching experience. 	In 1986, 	at 	the 	time of
Freschi's 	initial 	reassignment 	to 	the 	faculty, 	she 	discussed her
placement 	with Moffett 	to determine 	where 	she would be placed.
It was 	after 	this 	discussion that Moffett made 	the 	calculations
described 	immediately 	above.
Freschi's 	reassignment 	to 	the 	faculty was 	widely publicized.
It 	was 	discussed at 	two District board meetings 	in 	the 	spring of
1987, 	she 	filed a 	tort 	claim and eventually a lawsuit 	against 	the
District, 	and an editorial 	in the Marin 	Independent 	Journal 	of
May 15, 	1987, 	referred to Freschi's 	reassignment and drop in
salary 	from $53,700 	to 	$41,000 	upon her 	reassignment.
Immediately 	following her 	reassignment 	to 	the 	faculty,
Freschi 	requested and received a 	leave 	of 	absence. 	The board
action 	item approving 	Freschi's 	request 	shows 	her 	salary 	schedule
placement 	at 	Step 	11. 	UPM received a 	copy of 	this 	document.
In connection with her leave, 	Freschi was 	asked to refund two
monthly salary payments, 	for July and August, 	19 37, 	which had
already been made 	by 	the 	District 	toward her 	teaching 	salary 	for
the 	1987-1988 	academic year. 	Freschi 	questioned the District's
request 	in a letter to Lowney. 	She 	sent 	copies 	to then UPM
Grievance 	Officer 	Ira 	Lansing, 	and enlisted the assistance 	of
then UPM President 	Tara 	Flandreau, 	who discussed 	the 	District's
salary 	refund 	request 	with 	Freschi.
19

Meanwhile, 	in 19 88, 	Freschi sued the District over her
reassignment, 	and was 	represented by UPM attorney Robert 	Bezemek
(Bezemek). 	In 1989, 	in response to a request for production of
documents 	by Freschi, 	the District provided Bezemek with
Freschi's 	personnel 	file, 	including 	the board document 	placing
her on the 	salary schedule at 	Step 	11. 	In the 	course of her
litigation 	Freschi 	also became 	aware 	of 	Yaryan's 	and 	Sandra
Douglass's 	(Douglass) 	placement 	on the 	salary schedule. 	(The
Douglass 	placement 	is more 	fully discussed below.) 	She 	obtained
the 	board personnel 	item 	concerning 	Douglass's 	placement 	on 	the
salary schedule 	in 	1989 	or 	1990 	and provided 	it 	to Bezemek.
From 1990 	to 	1992, 	Freschi was 	a member of 	the UPM Executive
Council. 	Current and past UPM Constitutions provide 	that, 	"The
officers 	of 	this 	organization shall 	consist 	of 	the nine 	(9)
members 	of 	the 	Executive 	Council. 	. . . " 	Current 	and past 	UPM
By-Laws provide 	that, 	"All 	officers 	of 	the Local 	are agents
thereof. 	. . . " 	However, 	in this 	capacity she had no 	independent
authority 	to 	speak 	for or bind UPM 	in 	representational 	matters
such as 	grievances 	or unfair practices. 	Nor did 	she have 	express
authority 	to 	accept 	notice 	from the 	District 	concerning 	changes
. . .
in negotiable 	subjects. 	Her authority as 	a council member
extended 	only 	to 	collecting 	information as 	the 	UPM budget
monitor.
Sandra Douglass 	was 	employed 	in 	the 	District's 	noncredit
program from 1976 	to 	1985. 	She was 	employed as 	a District
manager from 1985 	to January 20, 	1989. 	Douglass 	taught 	one
20

credit 	class 	in 19 79 	and was placed on the 	certificated salary-
schedule 	at 	Step 	3. 	She 	received placement 	credit 	for her
noncredit 	instructional 	service 	in 	the District pursuant 	to 	the
formula 	for 	counting 	noncredit 	service 	discussed 	above.
The 	District 	reassigned Douglass 	to 	the 	faculty 	effective
January 20, 	1989, 	and placed her on the 	salary schedule at
Step 12. 	The minutes of 	the UPM Executive Council, 	dated
January 20, 19 89, reflect the council's knowledge of Douglass's
move 	from management 	to 	the 	faculty.
In 	calculating Douglass's 	placement 	on 	the 	salary 	schedule
Moffett 	advanced Douglass 	on 	the 	schedule 	one 	step 	for 	each year
of 	full-time 	service between 	1979 	and 	1988, 	for her noncredit and
management 	service.
On July 27, 	1988, 	Douglass wrote 	to Miller requesting that
she be assigned 	to a 	teaching assignment, 	effective 	in the 	spring
of 	19 89. 	The letter did not mention step placement. 	Miller
approved 	the 	request.
Ron Gaiz 	(Gaiz) 	started working 	for the District 	in 	1980 	as
a part-time 	noncredit 	instructor assigned 	to 	teach 	ESL 	courses.
He became a 	full-time administrator 	in 1987, 	and a permanent
employee 	after 	completing 	his 	probationary period as 	an
administrator 	in 	1989.
Gaiz 	was 	first placed on 	the 	salary 	schedule 	at 	Step 	14 	when
he 	taught a credit 	class 	in English in the 	fall 	of 	19 89 	while a
full-time administrator. 	At a board meeting on March 12, 	1991,
21

Gaiz 	was 	reassigned 	from Director of 	Educational 	Programs 	to 	the
faculty, 	effective July 1, 	1991, 	at Step 16.
Gaiz's 	placement 	on 	the 	faculty 	salary 	schedule 	was based 	on
credit 	for pre-District 	experience up 	to 	Step 	7 	(although Gaiz
actually had over nine years 	of 	such experience), 	seven years
credit 	for part-time 	noncredit 	service within the District, 	and
four years 	credit 	for administrative 	service 	commencing 	in June
1987.5 Moffett 	counted Gaiz's management 	experience 	based upon
the 	Padover memo, 	regardless 	of 	the 	subject 	area of Gaiz's
teaching assignment. 	She viewed this 	decision as 	a 	continuation
of 	past practice. 	Moffett 	similarly viewed 	the 	decision 	to 	count
Gaiz's 	noncredit 	instructional 	service 	in 	the District 	as 	a
continuation 	of 	District 	practice 	which 	credited noncredit
service under 	the 	formula passed on 	to her in the Minutes.
Before his 	reassignment 	to the 	faculty, 	Gaiz 	twice asked
Moffett 	where 	he would be 	placed on 	the 	salary 	schedule 	if 	he
left management 	and 	returned 	to 	teaching. 	He 	supplied Moffett
with his 	work history and his 	educational 	background. 	She 	told
him that 	his 	outside 	experience would place him at 	Step 	7, 	and
thereafter he would advance 	on 	the basis 	of 	his 	service 	in the
District. 	Gaiz 	did not 	condition his 	return 	to 	the 	faculty on
any particular placement 	on 	the 	schedule.
5In contrast, 	Tara Flandreau was denied credit 	for non-
credit 	teaching 	service 	when 	she was 	first 	placed 	on 	the
certificated 	salary schedule. 	And James 	Parthum 	(Parthum) 	was
denied 	credit 	for noncredit 	teaching at 	the 	time 	of 	his 	initial
placement, 	although Jan Moffett 	told him the 	reason 	for the
denial 	was because he 	did not 	have 	the 	appropriate 	credential 	at
the 	time 	he acquired 	the 	experience.
22

Nancy Stetson was 	originally hired by 	the 	District 	in 	1982
as Director of 	Public Affairs 	and Development, 	a 	classified
management position. 	Stetson's 	title was 	changed, 	effective
March 12, 	1986, 	to Dean of Development and Information Services,
and she moved 	into 	certificated management. 	Effective June 	30,
1988, 	she became Acting Vice 	President 	for Student 	and Special
Services, 	then Vice 	President 	of 	Planning and Development 	on
November 10, 	1988. 	As both a classified and a certificated
manager 	Stetson was 	responsible 	for promoting 	the 	institution,
planning, 	and resource development.
Stetson was 	first placed at 	Step 	15 	on 	the 	certificated
salary schedule 	in the 	fall 	of 	1990, 	when she 	taught 	a business
class 	while holding her administrative 	assignment. 	At 	a District
board meeting on May 21, 	1991, 	Stetson was 	reassigned from Vice
President 	of 	Planning and Development, 	a 	certificated management
position, 	to a faculty position, 	teaching business and
journalism, 	effective July 1, 	1991. 	She was placed at Step 16 	on
the 	salary 	schedule.
In 	1990, 	when Stetson was 	first placed on the 	certificated
salary schedule, 	Moffett 	decided to 	credit 	her pre-District
management 	experience 	with Wenatchee Valley 	College 	in
Washington, 	in addition to her 	classified and certificated
management 	service 	in 	the District. 	Moffett 	applied the 	Step 	7
limit 	to Stetson's pre-District 	employment, 	and advanced her
beyond Step 	7 based on her service 	in the District. 	All 	of
Stetson's management 	service 	in 	the District 	was 	credited.
23

Meanwhile, 	on April 25, 	1991, 	about one month before the
board action, 	Stetson wrote 	to 	then 	President Myrna Miller
(Miller) 	ostensibly 	to request 	a 	reassignment 	to 	the 	faculty unit
because 	she wanted 	to 	teach. 	The 	letter 	indicates 	that 	Stetson
had 	already 	contacted department 	chair 	Elaine McLevie 	(McLevie)
and been 	told 	that 	courses 	in 	journalism and business 	existed 	for
her 	(Stetson) 	to 	teach. 	Stetson 	informed Miller 	in the 	letter of
her 	"understanding" 	(based 	on a 	conversation with Moffett 	where
she was 	told 	that management 	service would count) 	that 	her 	salary
placement would be 	Step 	16, 	"plus 	or minus 	any adjustments 	that
may 	or may not 	be 	negotiated." 	Stetson's 	letter 	further 	stated
that 	"if my assumption is 	incorrect, 	I 	do not wish a reassignment
at 	this 	time." 	Miller wrote 	"accepted" 	on Stetson's 	letter.
II. 	Notice 	of 	the Stetson and Gaiz 	Step Placements
A. 	Board Agenda 	Items
For statute 	of 	limitations purposes, 	evidence 	concerning
notice 	of 	the 	Stetson and Gaiz 	placements 	on 	the 	faculty 	salary
schedule was presented at 	hearing. 	A key part 	of 	this 	evidence
was 	the 	content 	and distribution of 	board agenda 	items.
Claudia Lewey 	(Lewey), 	executive secretary to the board of
trustees, 	regularly distributed meeting notices 	on Thursday
before 	each Tuesday board meeting 	to 	all 	persons 	on her
distribution 	list. 	Since UPM became 	exclusive 	representative 	of
the 	faculty, 	Lewey has 	regularly distributed notices 	and agenda
items 	by placing 	the 	documents 	in 	the UPM campus mailbox. 	This
24

packet of 	information does not 	include personnel, 	legal, 	and
negotiation 	items.
After board meetings, 	pursuant 	to this practice, 	Lewey
distributed 	the personnel 	items 	to whomever asked 	to 	receive
them. 	Thus, 	these 	items 	are 	treated as 	confidential before 	the
board vote 	but 	are public 	information after 	the board 	takes
action.
However, 	prior to mid-1990, 	UPM was not on Lewey's
distribution 	list 	to 	receive personnel 	items 	after 	the meeting.
On or about August 28, 	1990, 	UPM representatives asked that UPM
be 	added 	to 	the post-meeting distribution 	list 	for personnel
items. 	Lewey promptly added UPM to her distribution 	list.
Starting 	in August 	199 0, 	Lewey made 	it her practice 	to send all
personnel 	items, 	both certificated and classified, 	to UPM within
three 	days 	after 	the board meeting.
Pursuant 	to her regular practice, 	Lewey distributed 	the
board action 	item showing Gaiz's 	reassignment 	to 	the 	faculty 	and
his 	placement 	at 	Step 	16 	on the 	salary schedule 	to UPM within
three days of the March 12, 	1991, 	meeting. 	Likewise, 	the minutes
of 	the March 	12 	board meeting 	reflecting Gaiz's 	reassignment 	to
the 	faculty were 	sent 	to 	everyone 	on Lewey's 	distribution list,
including UPM, 	prior to the April 	1991 board meeting.
Lewey also 	sent 	the 	notice 	of 	the 	regular board meeting 	of
May 21, 	1991, 	containing Stetson's reassignment, 	to all persons
on her distribution list, 	including UPM, 	prior to the meeting.
Pursuant 	to her regular practice, 	Lewey distributed the board
25

action 	item showing 	Stetson's 	reassignment 	to 	the 	faculty at 	Step
16 	on 	the 	salary 	schedule 	by placing 	a 	copy 	in 	the UPM campus
mailbox a few days 	following the May 21, 	1991, 	meeting.
B. The May 23, 	1991. 	and June 21. 	1991, Meetings
By March 	1991, 	Freschi 	had become a member of 	the UPM
Executive 	Council. 	She 	received the board action 	item showing. . . . .
Gaiz's 	step placement 	on the 	salary schedule at 	Step 	16. 	As 	of
this 	time, 	Freschi 	did not 	know whether Gaiz 	had previously been
placed on the 	certificated salary schedule, 	but 	she was 	aware 	of
Douglass's 	earlier placement.
There 	are major disputes 	about 	whether 	Freschi 	told UPM
representatives 	about 	placement 	of 	these 	former managers 	on 	the
certificated 	salary 	schedule 	outside 	the 	statute 	of 	limitations
period, 	which is prior to June 24, 	1991. 	The following is a
summary 	of 	the 	conflicting 	testimony 	on 	this 	point.
Freschi's 	testimony: 	On or about May 22, 	1991, 	Freschi said
she 	received a 	copy 	of 	the board agenda 	item showing 	Stetson's
step placement 	in her campus mailbox. 	Freschi 	said she was
amazed that 	Stetson had been placed at 	Step 	16, 	the 	highest 	level
on 	the 	certificated 	salary schedule. 	Freschi 	said 	she 	realized
when she 	saw the board 	item that 	Stetson must have 	received
credit 	for 	service as 	a 	classified manager 	to get 	to Step 	16.
She 	knew 	that 	Stetson had done 	some 	teaching while 	she 	was 	an
administrator, 	but 	she also knew that 	Stetson's 	full-time 	job 	in
the District had always been in administration, 	and, 	moreover,
that 	she 	was 	originally a member of 	classified management.
26

However, 	Freschi 	did not 	know at 	this 	time 	the precise 	experience
with which 	Stetson 	had been 	credited.
Freschi 	said 	she 	raised 	the 	subject 	of 	Stetson's 	salary
placement 	in 	relation 	to her own earlier 	step placement 	at 	a UPM
budget 	committee meeting on May 23, 	1991. 	The 	committee meeting
was 	attended by Hank Fearnley 	(Fearnley), 	Bob Peterson
(Peterson), 	Tom Place 	(Place), Millard Morgen 	(Morgen), Mike
Schutz 	(Schutz) 	and Jeff 	Kamler 	(Kamler).6 Lansing was present
for about 	five minutes at 	the 	outset 	of 	the meeting.
Freschi 	was 	the UPM budget monitor, 	and the budget
committee's 	purpose 	was 	to 	review District 	expenditures 	in an
attempt 	to avoid layoffs. 	As 	of 	that date, 	Freschi 	claims
committee members 	were aware 	that 	Stetson had decided 	to 	resign
from her administrative 	position and 	join 	the 	faculty, 	exercising
her administrative 	retreat 	rights. 	In fact, 	one 	cost 	cutting
proposal 	considered by the 	committee was 	not 	to 	fill 	Stetson's
administrative 	position.
It was 	in this 	context, 	Freschi testified, 	that 	she brought
up 	Stetson's 	step placement 	as 	an example 	of 	continuing District
favoritism. 	As additional background, 	it 	is noted that, 	for
reasons unrelated to this 	case, 	there 	is 	no love 	lost between
Freschi 	and Stetson. 	Freschi 	testified 	regarding 	her dislike 	for
6Freschi at 	first testified, 	on September 8, 	1991, 	that 	Paul
Christensen was present 	at 	that budget 	committee meeting as 	well,
but 	later 	corrected her 	testimony, 	recalling 	that he was 	still 	in
Europe on May 23, 	1991. 	Morgen chaired the meeting in
Christensen's 	absence.
27

Myrna Miller and 	she 	referred 	to 	Stetson as 	her 	"enemy." 	It 	is
also noted 	that Miller and 	Stetson were 	good 	friends.
In any event, 	Freschi 	testified that 	she 	told the meeting
she 	(Freschi) 	had not 	received appropriate 	credit 	for her
experience, 	and compared Stetson's placement 	at 	Step 	16 	to her
own placement at Step 	11. 	According to Freschi, 	she also told
the meeting 	that 	Stetson had little 	teaching experience, 	and 	she
could not 	understand 	the 	rationale 	for 	the 	discrepancy.
Within the next 	10 days, 	according to Freschi, 	she called
Lansing 	to make 	sure 	that 	he was 	aware 	of 	Stetson's 	reassignment
and to question Stetson's 	placement 	at 	Step 	16. 	Lansing 	seemed
"mildly 	interested" 	in the 	subject, 	Freschi 	testified.
In addition, 	about a month,prior to June 27, 	1991, 	Freschi
said 	she 	had at 	least 	one 	conversation with Bezemek 	concerning
her 	salary placement 	issue. 	He 	told her 	that 	faculty salary
placement was 	a negotiable 	issue, 	and that 	Freschi's 	task was 	to
convince UPM, 	specifically Christensen and Lansing, 	that 	she had
a 	grievable 	issue 	over her 	salary placement. 	Freschi 	testified
she 	interpreted Bezemek's 	remarks 	to mean 	that 	she 	could not 	file
a 	grievance 	without 	UPM permission.
During the week of June 	10 	or June 	17, 	after talking with
Bezemek, 	Freschi 	said 	she 	questioned Christensen about 	Stetson's
placement. 	During 	this 	conversation, 	Freschi mentioned her own
placement, 	and again 	said she 	did not 	understand the 	discrepancy.
Freschi 	claims 	she 	told Christensen 	that 	she 	had been given 	the
impression by Bezemek, 	during a June 	12 	telephone 	conversation,
28

that 	this 	was 	a negotiable 	issue and a grievance might 	be
appropriate 	to 	resolve 	these discrepancies. 	According 	to
Freschi, 	Christensen replied that 	the 	issue was 	new and it was
not 	covered by the 	contract. 	Freschi 	testified she pressed
Christensen regarding a possible grievance 	on her behalf, 	and
Christensen 	indicated he 	would 	talk 	to 	Bezemek.
On June 21, 	1991, 	Freschi attended a two-hour luncheon
meeting 	of 	the UPM Executive 	Council 	at 	a 	local 	restaurant.
Present were Christensen, 	Lansing, 	Kamler, 	Alice Rocky 	(Rocky),
Barbara Bonander 	(Bonander), 	Don Fosse 	(Fosse), 	Fearnley and
Nikki 	Lamott 	(Lamott). 	In her presentation as UPM budget
monitor, 	Freschi 	testified, 	she 	told those 	in attendance that
Stetson had joined the 	faculty at 	the highest 	level, 	Step 	16,
whereas 	Freschi 	herself 	had entered at 	Step 	11. 	According 	to
Freschi, 	Lansing noted that UPM had given Freschi permission 	to
send an 	exploratory 	letter 	to 	the 	District 	questioning 	her 	own
step placement 	in relation to Stetson's. 	(Prior to 	the June 	21
Executive 	Council meeting, 	Freschi 	said 	she had a discussion with
Lansing 	in which she was 	told 	to proceed with the grievance, 	but
that 	she 	should 	first 	send a 	letter 	to Margaret 	Rumford
(Rumford), 	Administrative Dean of Human Resources.) 	An
exploratory 	letter 	of 	this 	type 	typically precedes 	a 	grievance.
Freschi 	testified 	that 	Lansing 	told her he 	had 	consulted with
Bezemek, 	who agreed 	that 	an 	exploratory 	letter 	should be 	sent 	as
an 	initial 	step 	in the grievance process. 	At 	the June 	21
Executive 	Council meeting, 	Freschi 	testified, 	she 	reported that
29

Bezemek had spoken 	to Christensen and Lansing, 	and 	seemed to 	say-
that a grievance was 	in order.
Freschi 	sent a letter to Rumford, 	dated June 27, 	1991,
requesting an 	immediate 	review of 	her 	own 	salary placement:
I 	am writing 	to 	request 	an 	immediate 	review
of my placement 	on 	the 	faculty 	salary
schedule 	resulting 	from my 	reassignment 	to
the Bargaining Unit 	in June 	1987.
At 	the time, 	I was placed on Level 	10 and
will 	commence 	Level 	14 	for the upcoming
academic year. 	I am concerned that at 	the
time 	of my 	reassignment 	I may not 	have
received 	full 	consideration 	for my prior
years 	of 	teaching 	experience at 	the 	College
of Marin and at 	the University of 	California.
I 	also 	have 	documentable work experience,
relating to 	the 	teaching of 	Italian, 	which I
believe was 	not 	counted at 	the 	time.
As you 	can understand, 	an error in my
placement 	on 	the 	salary 	schedule 	could have
implications 	for the 	loss 	of pay and 	interest
associated with 	it.
I 	would be 	readily 	available 	to provide 	any
documentation necessary 	to help you 	in 	this
review.
On August 	1, 	1991, 	Freschi 	filed a grievance under the
collective bargaining agreement. 	She alleged that 	her 	step
placement, 	effective in 1987, 	was 	incorrect because she was not
given appropriate 	credit 	for her experience. 	As 	of 	the 	close 	of
this 	hearing, 	the 	grievance had not proceeded to arbitration.
Christensen's 	testimony: 	Christensen's 	testimony differs 	in
material 	respects 	from the 	testimony given by 	Freschi 	concerning
the 	conversations 	they had during 	the 	summer of 	1991.
Christensen 	said he 	returned 	from Europe 	on June 	5 	and had no
conversation with 	Freschi 	until 	the 	June 	21 	Executive 	Council
3 0

meeting. 	At 	that meeting, 	according to Christensen, 	Freschi did
not 	raise 	the 	topic 	of her step placement, 	nor did 	she bring up
Stetson's placement. 	In fact, 	Christensen said that 	Freschi
contributed very little 	during 	the 	entire meeting. 	He 	recalled,
however, 	a brief post-meeting 	conversation with 	Freschi 	in the
parking 	lot 	where 	Freschi 	complained about 	her 	own 	step
placement. 	The gist of 	this 	complaint, 	according to Christensen,
was 	only that 	Freschi 	had not 	received appropriate 	credit 	for her
experience 	(in an 	Italian bank and as a 	teaching assistant), 	but
it was 	not 	until 	July or August 	that 	Freschi 	eventually 	told
Christensen of her Step 	11 placement.
Even 	if 	Freschi 	had mentioned her precise 	step placement
after or during the June 21 meeting, 	Christensen testified, 	it
would have meant very 	little 	for purposes 	of 	providing notice 	in
this 	case. 	Knowledge of 	the precise 	step placement 	does 	not
reveal 	the 	criteria used to arrive at 	a particular level. 	One
needs 	to know more about 	a person's background, 	e.g., 	work
experience 	and whether a person had been placed 	on 	the
certificated 	scale 	at 	some 	earlier point 	in their career, 	before
a step placement 	can be evaluated. 	In Freschi's 	case, 	for
example, 	Christensen 	testified that 	he was 	then under 	the
erroneous 	impression 	that 	Freschi 	had been an 	instructor 	in 	the
District 	previously, 	and presumably had 	already been placed 	on
the 	certificated 	salary 	schedule 	at 	that 	time.
At 	the end of 	the parking 	lot 	conversation on June 21, 	1991,
Christensen 	said 	he 	referred 	Freschi 	to 	UPM Grievance 	Officer
31

Bernadine Allen. 	At 	this point, 	Christensen had no knowledge
that 	Stetson and Gaiz 	had been 	reassigned 	to 	the 	faculty.
Christensen testified that 	there was 	no discussion of 	Nancy
Stetson.
In addition, 	Christensen 	testified that 	on June 	21 	he 	could
not 	have mentioned 	that 	he 	talked 	to Bezemek about 	a 	grievance,
because 	he 	did not 	talk 	to 	Bezemek 	after 	returning 	from Europe
until 	late 	July or 	early August.
Finally, 	Christensen 	said he had another 	conversation 	in
July or August, 	1991, 	after Freschi 	filed her grievance, 	which in
key 	respects 	is 	more 	consistent 	with 	the 	conversation 	Freschi
claims 	occurred on June 21. 	In Christensen's view, 	Freschi
confused 	the 	June 	21 	conversation with 	the 	July/August
conversation.
Lansing's 	testimony: 	Lansing 	testified 	that 	he 	had no
discussions 	in May 	or 	early June 	1991 	about 	service 	credit 	for
step placement 	of managers 	in general 	or about 	Stetson's 	step
placement 	in particular. 	He 	said no 	one who attended the May 23
meeting 	(Lansing attended 	for 	only a 	short 	period) 	subsequently
informed him that 	these 	topics 	had been 	raised at 	the meeting.
Lansing also 	testified that 	Freschi 	did not 	raise 	Stetson's 	step
placement 	or her own placement at 	the June 	21 meeting. 	Nor, 	he
testified, 	did Freschi 	indicate 	on June 	21 	that 	Christensen had
previously 	talked 	to 	Bezemek.
Lansing 	testified 	that 	he 	talked with 	Freschi 	about 	her
experience 	credit 	and potential 	grievance 	only once 	before 	she
32

made the 	initial 	inquiry to Rumford on June 27, 	1991. 	Lansing
first 	said he 	talked 	to 	Freschi 	about 	the matter 	sometime 	after
June 21, 	possibly on June 24 	or on June 27. 	Later, 	when asked if
the discussion was on June 21, 	1991, 	he responded 	"it may be."
But 	Freschi's 	concern during 	this 	entire 	time 	frame, 	according 	to
Lansing, 	was 	limited 	to her opinion that 	she 	had not 	received
appropriate 	credit 	for certain prior work-related 	experience; 	her
concern, 	at least at 	that point, 	did not 	involve the broader
issue of 	step placement. 	Nevertheless, 	Lansing conceded that 	she
"may have" 	mentioned her 	step placement.
In any event, 	on June 27, 	1991, 	Lansing too sent an inquiry
to Rumford 	seeking 	the District's 	policy 	covering 	the 	granting 	of
service 	credit 	for salary schedule placement. 	Lansing's 	inquiry
to Rumford was 	prompted 	in 	large part 	by 	the 	District's 	adoption,
on June 25, 	1991, 	of a written retreat rights policy for
managers, 	and also by his 	general 	knowledge 	that 	certain managers
were 	joining 	the 	faculty.
Lansing, 	UPM president 	and 	former grievance 	officer,
convincingly 	testified that 	concerns 	of 	the 	type 	raised by
Freschi are not uncommon in the District, 	and are 	routinely
handled by 	referring 	the 	employee 	to 	the personnel 	office.
Moreover, 	because disputes 	at 	this 	stage 	typically 	involve mere
placement 	errors 	and 	employees 	tend 	to 	treat 	salary 	step
placement 	as 	a private matter, 	UPM does 	not 	ordinarily get
involved at 	this 	stage. 	It was 	for these reasons, 	Lansing
testified, 	that 	he 	did not 	get 	involved with 	the 	specifics 	of
33

Freschi's 	individual 	claim at 	such an early stage. 	It 	was 	only
later, 	when the District 	refused to adjust 	Freschi's 	step
placement 	based 	on her prior experience, 	that 	Lansing 	counselled
Freschi 	to 	file a grievance.
Lansing testified that, 	as 	of June 27, 	he had no personal
knowledge 	of 	the Stetson and Gaiz placements. 	It was not until 	a
later UPM Executive 	Council 	meeting 	that 	Council 	members 	examined
board agenda 	items 	and learned 	for 	the 	first 	time 	of 	the 	step
placement 	of 	Stetson and Gaiz. 	During the discussion at 	that .
meeting, 	Council members 	discussed 	the work history of 	Stetson
and Gaiz 	and 	speculated 	that 	their placement 	at 	Step 	16 	was
improper. 	By this 	time 	Freschi 	had 	filed her grievance.
During the 	summer of 	1991, 	Lansing testified, 	he and other
UPM representatives 	had a 	general 	knowledge 	that 	certain managers
were 	in the process 	of joining the bargaining unit, 	and the 	step
placement 	of 	retreating managers 	was 	reflected 	in board agenda
items. 	However, 	Lansing said that 	these documents did not
provide adequate notice 	for at 	least 	two reasons. 	First, 	agenda
items 	are voluminous 	documents, 	not 	designed to 	call 	attention to
step placement 	of particular individuals. 	Second, 	although the
documents 	include the 	step placement, 	knowledge 	of 	step and
column placement 	does 	not 	necessarily 	enable 	a person 	to
determine 	the 	criteria upon which 	the placement 	was 	based.
Presumably, 	Lansing conceded, 	one 	could 	figure 	out whether a
particular placement was 	correct 	if 	one knew the work history of
an 	individual, 	but 	the work history 	is not 	included in these
.-
34

documents. 	In Freschi's 	case, 	for example, 	Lansing said that
during May and June 	1991 	he was 	aware 	only that 	Freschi 	was 	a
former administrator who 	had been placed 	on 	the 	faculty 	salary
scale 	a 	few years 	earlier, 	but 	he did not 	know her 	employment
history 	in general 	or whether 	she 	had previously been placed 	on.
the 	salary scale 	in particular.
Other UPM witnesses: 	Other witnesses 	who 	attended 	the
May 23 	and June 	21 meetings 	testified 	in a manner which 	casts
considerable 	doubt 	on Freschi's 	testimony. 	Bob 	Petersen,
Freschi's 	neighbor 	and personal 	friend who 	tutored 	Freschi's
daughter, 	attended the May 23 meeting. 	He 	testified that 	Freschi
said nothing about 	her step placement, 	and Stetson was mentioned
only 	in 	the 	context 	of 	a budget 	committee 	discussion about 	salary
savings 	if 	her management 	position was 	left 	vacant 	by 	the
District. 	Petersen said he was 	"quite 	sure" 	that 	Freschi never
mentioned 	salary 	step placement 	because 	he 	would 	have 	remembered
her 	raising 	such a personal 	matter.
Henry Fearnly, 	who attended both 	the May 23 	and the 	June 	21
meetings, 	testified 	that 	Freschi 	did not 	complain about 	her step
placement 	at 	these meetings, 	nor did she 	raise 	the placement 	of
Nancy Stetson as an 	issue. 	There 	is 	nothing 	in Fearnley's 	notes,
. .
made at the time of the meetings, 	which suggests otherwise. 	Like
Petersen, 	Fearnley said Stetson was mentioned only 	in 	the 	context
of 	savings 	which might be 	realized 	if 	her 	former position was
left unfilled. 	Thus, 	Fearnley and others were aware 	that 	Stetson
35

was 	reassigned to 	the 	faculty, 	but 	her 	step placement 	was 	not
discussed.
Fearnley 	testified 	that 	he became 	outraged at 	a July 	9,
1991, 	Executive Council meeting, 	upon learning for the 	first 	time
of 	the 	step placement 	policy applied to 	former managers.
(Fearnley was 	a 	department 	chairperson 	and not 	even 	department
chairs had been notified of 	the policy, 	he 	said.) 	This was 	the
first 	time 	Fearnley learned of 	the 	step placement 	of 	former
managers 	on 	the 	certificated salary scale, 	thus 	indicating 	that
the matter was 	not 	discussed at 	the 	earlier meetings, 	as 	Freschi
claims.
Another witness, 	Millard Morgen, 	attended the May 23, 	1991,
budget 	committee meeting. 	His 	testimony 	corroborated 	that 	given
by Fearnley in all material 	respects. 	In fact, 	Morgen testified,
he viewed 	the 	step placement 	dispute 	as 	a 	significant matter and
he would have 	recalled any 	such discussion 	if 	it 	had 	occurred.
Bezemek's 	testimony: 	Bezemek disputed 	Freschi's 	testimony
that 	she 	complained to him in May and early June, 	1991, 	about her
step placement. 	He convincingly testified that 	on June 25, 	1991,
Freschi 	told him for 	the 	first 	time 	of 	her 	concern about 	step
placement.
As background 	to 	this 	conversation 	it must be 	recalled 	that,
since 	19 87, 	Bezemek had represented Freschi 	in a separate 	lawsuit
against 	the 	District 	stemming 	from her demotion 	to 	the 	faculty at
a 	loss 	of 	approximately 	$12,000 	per year 	in 	salary. 	As
settlement 	of 	this 	lawsuit 	emerged and 	the 	action drew to 	a
36

close, 	Bezemek and Freschi had a conversation, 	on June 25, 	1991,
about 	a District 	settlement 	offer which 	contained a waiver 	clause
covering all 	claims 	against 	the District. 	During 	this
conversation, 	according to Bezemek, 	Freschi 	stated a 	concern
about 	her 	step placement, 	and asked Bezemek 	if 	it 	could be dealt
with as part 	of 	the 	settlement. 	According to Bezemek, 	he became
"incredulous" 	at 	the 	idea because 	he had represented Freschi 	for
years and now, 	on the eve of 	settlement, 	she 	injected a new issue
into the proceedings. 	Moreover, 	Bezemek felt 	the 	step placement
issue 	should be 	dealt with by UPM. 	Bezemek 	testified that, 	as
counsel 	to UPM, 	he declined to 	engage 	in a discussion with
Freschi 	about 	step placement, 	suggesting 	instead 	that 	she 	contact
the union for advice 	on how to proceed. 	Eventually, 	a 	settlement
agreement 	was 	finalized which did not 	include 	the 	step placement
issue.
Prior to June 25, 	1991, 	Bezemek testified, 	he had no
discussions 	with 	any UPM representatives 	about 	Freschi's 	step
placement. 	It was not until August 	1991 	that he discussed the
matter with Christensen for the 	first 	time, 	as 	Christensen
testified.
Further, 	the 	documentary evidence 	shows 	that 	Bezemek and
Freschi 	exchanged 	several 	telephone 	calls 	during May and June,
1991. 	However, 	Bezemek described as 	"absolutely ludicrous"
Freschi's 	assertion 	that 	they discussed a 	grievance 	or 	Freschi's
step placement 	during 	these 	conversations.
37

Bezemek 	conceded 	that 	the 	concept 	of 	an error 	in her
placement was 	raised earlier 	in the 	context 	of 	settlement
discussions 	concerning the 	lawsuit, 	but 	only to the 	extent 	that
it had salary implications. 	In addition, 	during the 	course of
discovery proceedings 	in 	Freschi's 	litigation with 	the District,
Bezemek 	received 	documents 	which 	confirmed 	that 	Freschi 	had been
placed at 	Step 	11 	in 	1987. 	Bezemek 	said he 	did not 	pay much
attention to her step placement because 	it was not material 	to
the 	issues 	raised in the 	lawsuit. 	Further, 	he 	said, 	in reading
voluminous 	documents 	during discovery, 	he did not pay much
attention to 	Freschi's 	employment 	history because 	it 	too was 	not
a central 	issue 	in the case. 	Thus, 	during the 	course of 	the
litigation, 	Bezemek did not 	become 	aware 	if 	Freschi 	had been
placed 	on 	the 	certificated 	salary 	schedule 	prior 	to 	joining 	the
management 	ranks.
Finally, 	Bezemek 	testified that 	he 	is 	not 	authorized 	to
accept 	notice 	of 	changes 	in negotiable 	items 	on behalf 	of UPM.
He 	said he 	represents 	approximately 	thirty unions 	and 	it 	would be
impossible 	to practice 	labor law if 	his 	duties 	encompassed
acceptance 	of 	such notices 	on behalf 	of his 	clients. 	There 	is no
evidence 	in 	the 	record that 	Bezemek, 	who has 	represented UPM for
several years, 	has 	ever accepted notice 	on behalf 	of 	the union.
Based on her demeanor 	on 	the witness 	stand and 	the 	overall
content 	of 	her testimony, 	Freschi's 	testimony to 	the 	effect 	that
she 	told UPM representatives 	or Bezemek of 	her 	step placement
concerns prior to June 24, 	1991, 	is not credited. 	The reasons
38

for this 	conclusion are more 	fully set 	out 	in the discussion
section 	of 	this 	proposed decision.
III. 	UPM Request 	for Salary 	Placement 	Criteria 	and Negotiations
In October 199 0, 	Lowney began work on a 	series 	of 	draft
guidelines 	covering placement 	and movement 	on 	the 	certificated
salary schedule. 	His 	intent was 	to memorialize 	in one document
the 	practices 	of 	the 	department 	with a view 	towards 	consistency.
During 	the drafting process, 	Lowney received verbal 	input 	from
Moffett 	about 	past practices.
In drafting 	the guidelines, 	Lowney 	said he 	started with
District policies, 	sections 	309 and 309.5, 	as well as the old
formula 	for 	crediting noncredit 	instruction 	(45 	hours 	equals 	one
unit). 	Among other things, 	he incorporated interpretations 	of
policies 	that 	had been made 	in individual 	cases, 	as well 	as
material 	from the 	current 	contract.
As 	an 	independent document, 	the 	guidelines 	drafted by Lowney
was 	never used 	in placing any 	former administrator 	on 	the
certificated 	salary 	schedule. 	The District 	continued 	to 	rely on
what 	it 	believed 	to be 	established practices 	in making 	step
placements 	while 	Lowney was 	developing 	his 	document.
Before 	Lowney 	completed 	the process 	of 	drafting 	the
guidelines, 	the District, 	in June 1991, 	adopted a policy covering
retreat 	rights 	for managers. 	Although 	the policy 	itself 	did not
expressly address 	step placement 	or 	credit 	for work-related
experience, 	it prompted Lansing's June 27, 	1991, 	request 	for the
criteria used by 	the District 	in placing 	former managers 	on 	the
. ..
39

certificated 	salary 	schedule. 	Lansing 	knew 	that 	some managers
were 	entering 	the unit 	and he 	wanted 	to know how 	they were being
placed on 	the 	salary 	schedule.
In 	response 	to Lansing's 	request, 	the District provided UPM
with a 	document 	entitled 	Personnel 	Office 	Guidelines
("guidelines"), 	the latest draft prepared by Lowney. 	However, 	it
did not do so until 	October 4, 	1991.
As 	stated earlier, 	the guidelines 	contained a 	compilation of
information 	from several 	sources. 	Among other things, 	the
guidelines covered, 	in general 	terms, 	various aspects of salary
step placement 	of 	former managers. 	As 	would later emerge 	during
the 	course of discussions between the parties, 	the District
interpreted 	the 	guidelines 	as 	representative 	of 	the 	past 	practice
used 	to place 	former managers 	on 	the 	certificated 	salary
schedule. 	In addition, 	rules 	such as 	those embodied in the
Padover memo would eventually surface. 	In any event, 	production
of 	the guidelines prompted a 	request by UPM to negotiate.
In the 	fall 	of 	1991, 	the District and UPM were 	involved 	in
limited 	reopener 	negotiations.7 Christensen was 	chief 	negotiator
7The 	current 	contract between 	the parties 	is 	for the 	term
1990-1993. 	Article XXII 	includes 	the 	following 	zipper clause.
This 	document 	comprises 	the 	entire Agreement 	between 	the
District and UPM/AFT, 	1600, 	on the matters within the 	lawful
scope of negotiations. 	Subject to the decision of 	PERB, 	UPM
and 	the District 	shall 	have 	no 	further 	obligation 	to meet
and negotiate, 	during the term of 	this Agreement, 	except as
otherwise provided 	for herein, 	on any subject 	whether or not
said subject 	is 	covered by 	this Agreement, 	even though 	such
subject was 	not known nor 	considered at 	the 	time 	of 	the
negotiations 	leading 	to 	the 	execution of 	this Agreement.
40

for UPM, 	and Paul 	Loughlin was 	chief 	negotiator 	for 	the District.
Prompted by 	receipt 	of 	the 	guidelines 	during 	the prior week,
UPM, 	on or about October 10, 	1991, 	demanded to negotiate over the
District's 	criteria 	for placing managers 	on 	the 	certificated
salary 	schedule. 	Christensen premised 	the 	demand 	on his 	belief
that 	the 	guidelines 	furnished 	to UPM by 	the District 	contained
negotiable subjects 	including, 	among other things, 	initial 	step
placement 	of managers 	on the 	salary schedule. 	In the process 	of
memorializing 	its practice 	in writing, 	UPM asserted, 	the District
had adopted modifications 	of 	existing practices.
Loughlin was 	not personally 	familiar with 	the 	criteria 	that
the District 	used 	for step placement. 	He understood 	from
Rumford, 	who was 	a member of 	the District's 	negotiating 	team,
that 	the 	guidelines 	simply memorialized 	the District's 	past
practice. 	Loughlin's 	initial 	response 	to Christensen was 	that
the 	contract 	contained a 	zipper clause, 	and the District 	declined
to engage in salary discussions during the term of 	the contract. ....
At a subsequent negotiation session on October 29, 	1991, 	UPM
raised the 	subject 	again. 	Loughlin 	told Christensen 	that 	the
subject 	was 	not 	negotiable because 	the 	guidelines 	reflected 	the
District's 	past 	practice.8 He 	asked Christensen 	to 	identify any
8Loughin's 	comments 	regarding past 	practice may not 	have
been on October 29. 	As 	indicated above, 	much of 	the discussion
centered on the negotiability of various parts 	of 	the 	guidelines.
At various 	times during these meetings, 	however, 	discussions also
encompassed whether 	the 	guidelines 	were 	in accord with past
practice. 	Christensen at 	first 	was 	unclear 	that 	the 	guidelines
represented a 	change 	in practice, 	so 	the parties 	spent 	some 	time
clarifying the meaning of 	the express 	language 	in the guidelines.
Eventually, 	it 	appears 	that 	Christensen concluded that 	the
41

areas 	that did not 	reflect past practice, 	and, 	while not
conceding negotiability, 	he 	indicated he was 	willing 	to 	discuss
the matters. 	Christensen responded 	that 	he would be willing 	to
discuss 	the guidelines 	to see 	if 	some 	consensus 	could be 	reached
regarding 	their 	content, 	while holding his 	argument 	on
negotiability 	in abeyance. 	The parties 	then spent 	time 	reviewing
the District 	guidelines.
guidelines 	represented either a 	change 	in practice 	or
implementation of 	a new policy. 	It 	is 	unclear 	from the 	record as
to when this 	occurred. 	Because 	the 	timing of 	the past 	practice
discussion is not dispositive of any issue herein, 	no 	finding 	is
made on this point.
The guidelines were discussed again on November 12, 	1991,
but 	little progress was made. 	Many of 	the guidelines were not 	in
dispute. 	But 	Christensen 	indicated that when the District
memorialized 	the 	long and 	complex practice 	of 	step placement,
certain modifications 	of 	the practice 	occurred and 	these
therefore became negotiable. 	In the union's view, 	modification
of 	the Step 7 	limit was perhaps 	the key change. 	As 	of 	this 	time,
according 	to Christensen, 	he 	felt 	that 	he had received adequate
assurances 	that 	the 	guidelines 	did not 	affect what 	he 	considered
to be a blanket 	Step 	7 	limit.
At another meeting on December 	6, 	1991, 	UPM presented a
written proposal 	to modify the guidelines 	in various ways. 	It
included 	a proposal 	limiting 	former administrators 	who 	enter 	the
faculty to placement 	at 	Step 	7. 	There had been no detailed
discussion of a Step 	7 	limit prior to the District's 	receipt 	of
the UPM proposal. 	UPM viewed 	the 	Step 	7 	limit 	as 	a 	fair and
42

equitable way to protect 	its 	right 	to determine 	the 	salary of
individuals 	reassigned to 	the unit.
During the December 	6 meeting, 	the 	Stetson and Gaiz 	step
placements were mentioned. 	Apparently fearing lawsuits, 	Loughlin
said that 	commitments 	had been given to managers, 	who would have
legal 	claims 	against 	the District 	if 	their step placements were
altered at 	this 	juncture. 	Eight 	or nine previous 	administrators
who 	had 	returned 	to 	the unit 	had been granted 	credit 	for 	their
administrative 	service. 	Loughlin said 	that 	it 	was 	a 	longstanding
practice 	in 	the District 	to grant 	administrators 	year-for-year
credit 	for 	the 	time 	they spent 	in administration when 	they
returned 	to 	the 	faculty. 	The District 	remained adamant 	in 	its
position that 	the 	guidelines were not 	negotiable.9
Christensen and Loughlin met again on December 	19, 	1991.
The parties' 	respective positions with respect 	to negotiability
remained unchanged and little 	progress 	was 	made. 	Although
discussions 	continued, 	the main 	stumbling block 	continued 	to be
the placement 	of managers 	on the 	salary schedule, 	especially 	the
Step 7 	limit. 	It was shortly after the December 19, 	1991,
meeting 	that 	Christensen 	contacted 	Bezemek 	and 	they 	decided 	to
file an unfair practice 	charge.
9The District 	disputes 	the assertion that 	Loughlin, 	during
the meetings, 	said the District was 	concerned because of 	step
placement 	commitments 	to 	former managers. 	In addition to
Christensen's 	testimony, 	the 	contemporaneous 	notes 	of UPM
negotiator Henry 	Fearnley 	confirm that 	Loughlin 	said 	step
placement 	of managers was not 	negotiable, 	and the District 	feared
lawsuits 	because 	of 	commitments 	given 	to 	former managers.
43

The parties met 	again on January 	16, 	1992. 	They had agreed
on several 	items by this 	time, 	but 	the 	subject 	of 	step placement,
especially the 	Step 	7 	limit, 	remained outstanding. 	A final
meeting, 	on January 22, 	1992, 	did not result in any change in
positions.
Miller and Lansing met 	in February 	1992, 	and discussed 	step
placement 	of 	former managers. 	According 	to Lansing, 	Miller said
she 	could not 	negotiate 	about 	the 	step placement 	of 	former
managers 	or 	the 	District 	would be 	sued by affected managers.
Miller agreed that 	she made 	these 	comments 	to Lansing, 	but 	she
testified 	that 	the 	comments 	were based on potential 	lawsuits
under 	the 	Education Code.
IV. 	Post-Complaint 	Step 	Placement 	of 	Former Managers
After the 	complaint was 	issued 	in this 	case, 	several 	former
managers were reassigned to the faculty. 	On July 17, 	1992, 	the
complaint was 	amended to add the 	step placements 	of 	three 	former
managers.
Elaine McLevie was reassigned, 	effective July 1, 	1992, 	from
Vice President, 	Academic Affairs, 	to a faculty position teaching
English. 	She was placed at Step 	12 	on the 	salary schedule.
While an administrator, 	McLevie 	had 	taught 	an English 	class 	in
the 	spring of 	1990, 	and placed on the 	salary schedule at 	that
time.
McLevie 	received 	credit 	for 	five years 	of 	administrative
service 	in the District 	and six years 	of pre-District 	experience.
Her pre-District 	experience 	credit 	was 	capped at 	Step 	7, 	although
44

it 	exceeded 22 	years. 	McLevie had 	13.5 	years 	of prior college
teaching and nine years 	of 	college 	administrative 	experience
before 	joining 	the 	District.
Myrna Miller 	served as 	College 	of 	Marin president 	from
August 	1985 	to June 30, 	1992. 	Miller had seven years of pre-
District 	college 	teaching 	experience 	in biology and 	six years 	of
academic 	administrative 	experience. 	After coming 	to 	the
District, 	she taught a credit 	class 	in 1986.
Effective July 1, 	1992, 	Miller joined the 	faculty as 	a
biology instructor, 	Step 	14. 	Moffett 	capped her 13 	years 	of pre-
District 	teaching and administrative 	service at 	Step 	7, 	and
advanced her 	seven 	steps 	for her 	seven years 	administrative
service 	in the District.
Kent 	Lowney was 	the District's 	personnel 	director 	from July
1981 until July 1, 	1992, 	when he was 	reassigned to the 	faculty.
In 	1987, 	the District 	reclassified Lowney's position 	from
classified to 	certificated, 	although the 	duties 	did not 	change.
Lowney now 	teaches 	a work 	experience 	class 	and a business 	class
in personnel 	finance.
On May 4, 	1992, 	Moffett 	credited Lowney with six of his 	20
years 	of 	pre-District 	administrative 	service 	in addition to his
11 years 	service as personnel 	director. 	She placed Lowney at
Step 16.
V. 	Notice 	to UPM Regarding Managers 	Returning 	to 	the Unit
As part 	of 	its 	statute of 	limitations defense, 	the District
contends 	that UPM, 	through several 	sources, 	has been aware of 	the
45

step placement 	of 	former managers 	on 	the 	certificated salary-
schedule. 	These are: 	(1) 	dues deduction lists; 	(2) 	staffing
plans; 	and 	(3) 	payroll records.
A. 	Dues 	Deduction Lists
The 	District's 	payroll 	department 	receives 	from the Marin
County Superintendent 	of 	Schools 	a monthly report 	listing, 	by
employee, 	the dues withheld for payment 	to UPM. 	Each month the
District 	sends 	a 	copy of 	the 	updated 	list 	to 	the UPM treasurer
with a 	check 	for 	the 	total 	dues payment.
The 	report 	for August 31, 	1987, 	shows the addition of
Freschi's 	and Yaryan's names 	and withholding 	of UPM dues. 	Their
names 	appear again on the August 	1988 	list. 	The 	lists 	for 1990
and 1991 	reflect dues deductions 	for Yaryan, 	Freschi 	and
Douglass.
B. 	Staffing 	Plans
In June 	of 	each year 	the District 	sends 	a 	tentative budget
for the next 	fiscal year to the board of 	trustees. 	Thereafter, 	a
modified budget 	is 	sent 	to 	the board 	for approval.
These 	documents 	reflect 	the District's 	staffing plan,
showing all 	permanent 	employees 	and 	the accounts 	out 	of which
they will 	be paid. 	Lewey 	regularly distributes 	copies 	of 	this
information to all 	persons 	on her distribution list, 	including
UPM. 	There are public hearings 	on the budgets, 	and the budget
documents 	are available 	to UPM.
The District's budget 	for 	1986-87, 	distributed by Lewey 	to
UPM in accordance with her regular practice, 	contains a staffing
46

plan listing 	Freschi 	and Yaryan as management 	employees. 	After
returning 	to 	the unit 	they were 	listed 	in 	the 	1987-1988 	budgets
as 	instructors 	paid out 	of 	certificated 	full-time 	faculty
accounts. 	Douglass, 	listed as a manager in the 1987-1988
tentative and adoption budgets, 	was 	listed as a 	faculty member 	in
the 	tentative 	and adoption budgets 	for 	1989-1990.
C. 	District 	Payroll 	Records
From approximately 1985 	to mid-1990, 	Manus Monroe 	(Monroe),
monitored District 	financial 	records 	to assure 	compliance with
the District's 	obligations under a 	consent decree 	in the 	so-
called 50 	percent 	lawsuit. 	Monroe met 	several 	times 	a year with
Scott Miller, 	the District's Director of 	Fiscal Services. 	Monroe
reviewed 	the 	District's 	instructional 	and 	noninstructional
expenses 	for purposes 	of monitoring the 	consent decree. 	He also
monitored District 	compliance 	with 	a 	side 	agreement 	on 	reporting
manager's 	teaching 	salaries.
In this 	context, 	Monroe reviewed the 	"Pay 23 0" 	payroll
report, 	which lists all District 	employees by name, 	accounts 	from
which they are paid, 	compensation rate and gross pay. 	The 	Pay
230 	report 	is 	compiled on a year-to-date basis 	for each payroll,
and at 	the 	end of 	the 	fiscal 	year. 	Monroe 	received both the
current 	reports 	and the 	complete 	fiscal 	year 	reports 	for 	the 	last
three years. 	In addition to the Pay 23 0 	reports themselves,
Scott Miller provided Monroe with a dictionary 	of 	the 	account
codes 	used 	in 	the 	Pay 	230 	reports 	and answered Monroe's 	questions
about 	the 	report.
47

In 1990, 	Freschi was appointed budget monitor, 	a position
she held 	for the 	last 	three 	semesters 	of 	her two-year service
with the UPM Executive Council. 	As 	budget monitor, 	Freschi had
access 	to District 	financial 	records 	and 	reviewed District
payroll 	reports 	showing names 	and salaries 	of administrators 	and
faculty members 	in 	the District.
Using 	information in the 	Pay 230 	report, 	one 	can calculate
the 	step placements 	for managers 	who have 	returned to 	the
faculty. 	For example, 	the 	report 	shows 	two monthly payments 	to
Freschi, 	for July and August 	1987, 	at the rate of 	$3,488.83.
This 	translates 	into an annual 	salary of 	$41,865.96, 	or Step 	11
on the 	salary schedule. 	Similarly, 	Douglass's 	compensation as 	an
instructor, 	after her reassignment 	to 	the 	faculty 	from management
in January 	1989, 	could similarly be 	calculated by 	comparing her
compensation with 	the 	salary 	schedule 	to 	show her placement 	at
Step 12.
VI. 	Paying Managers 	to Teach
The 	contract between the parties provides, 	at Article
8.10.1:
A management 	employee 	will 	teach no more 	than
one 	(1) 	credit 	class per year, 	without UPM
approval, 	except 	that 	there shall be no limit
on the number of 	"contract" 	(non ADA
generating) 	courses 	offered in the 	community
service 	program which a management 	employee
will 	be allowed to teach. 	. . . 	(A 	"credit
class" 	is defined, 	for purposes of this
article, 	as one class or 3 units, 	whichever
is larger, 	or 10% of a non-teaching
assignment.)
48

The provision allowing management 	employees 	to 	teach one 	credit
class 	without UPM approval 	first 	appeared 	in the 	19 84-1987
contract. 	The purpose of 	the 	contract provision was 	to 	encourage
managers 	to maintain 	teaching 	skills 	by 	staying 	involved with 	the
instructional 	program.
In February or March 	1987, 	the parties 	negotiated a 	side
agreement, 	which now appears 	in the 	contract 	regarding 	the
charging 	of management 	teaching 	salaries 	for purposes 	of
reporting under 	the 	50 	percent 	lawsuit.10 UPM President 	Tara
Flandreau 	and District 	President Myrna Miller, 	who 	negotiated 	the
agreement, 	had no discussions 	about whether managers 	would be
paid an amount 	above 	their 	salary as 	full-time managers 	to 	teach
a 	class. 	At 	that 	time managers 	were 	not 	being paid an extra
amount 	to 	teach a 	class.
10 The 	side agreement 	provided:
Effective July 1, 	19 86, 	a management
employee who 	teaches 	in the 	credit
program may have 	the 	teaching 	portion 	of
his/her salary 	charged 	on 	the
instructional 	side of 	the 	50 	percent
calculation.
The portion 	of 	salary 	charged 	shall
be 	80 	percent 	pro-rata pay per unit
after 	determining 	the
administrator's 	placement 	on 	the
"Permanent 	and 	Temporary 	Credit
Certificated 	Salary 	Schedule"
according 	to 	the 	same 	criteria used
for all 	other credit 	instructors.
The 	"80 percent" 	rate 	is based on the 	rate paid part-time
instructors.
49

At a board meeting on December 6, 	1988, 	the District
approved Miller's 	recommendation 	that 	managers 	be paid 	to 	teach a
class 	outside 	of 	their management position, 	and that 	the
following paragraph be added 	to 	the management 	salary 	schedule:
Managers may teach a class, 	outside of 	their
regular workweek 	in 	their management
position, 	with the approval 	of 	the
Superintendent/President. 	Pay 	for the
teaching assignment 	will 	be 	computed at 	the
overload 	rate 	for 	the 	certificated 	salary
placement 	to which 	the manager 	is 	entitled.
Teaching 	assignments 	shall 	not 	conflict 	with
any provisions 	of 	collective bargaining
agreements.
The 	"overload rate" 	is 	60 percent, 	lower than the 	80 percent 	rate
included 	in the 	side 	agreement.
Miller proposed 	the 	amendment 	as 	an 	incentive 	for managers
to acquire 	classroom experience, 	and because 	it 	seemed 	fair to
compensate managers 	who 	taught 	in addition 	to 	their management
duties. 	Miller admitted that, 	prior to November 11, 	1988,
managers 	were not paid extra 	to 	teach 	classes.
The November 9, 	1988, 	and December 6, 	1988, 	meeting notices
and agenda 	items, 	contained the 	recommendation that managers be
paid 	to 	teach a 	class 	outside 	of 	their 	regular management
workweek. 	These were distributed to 	Flandreau 	in advance 	of 	the
board meetings. 	The minutes of the December 6, 	1988, 	meeting
reflecting 	the 	change 	were 	distributed 	to UPM before 	the 	next
board meeting 	in January 19 89. 	The minutes 	of 	the December 	6,
1988, 	meeting expressly describe a 	"Management 	Salary Schedule
Change" 	which would 	"allow payment 	of managers 	for 	teaching
assignment 	beyond 	their management 	jobs."
. . .
50

Following 	the District's 	approval 	of 	the 	salary 	schedule
amendment 	in December 1988, 	the management 	salary schedule
itself, 	with 	the provision allowing managers 	to be paid 	to 	teach
a class, 	went 	to the board in public meetings at which revisions
to 	the management 	salary 	schedule were 	considered 	or minutes 	of
board meetings 	approved 	several 	times 	prior 	to 	1992. 	On each of
these 	occasions, 	the management 	salary schedule was 	contained 	in
an 	agenda 	item 	included with 	the meeting 	notice.
Flandreau testified that, 	as UPM president, 	she received
board agendas 	and board 	items 	referenced 	in 	the 	agenda prior 	to
the board meeting, 	and checked 	them to 	see whether 	there was
anything 	of 	interest 	to UPM. 	However, 	while 	she 	recalled
receiving 	the packets 	containing 	revisions 	of 	the management
salary schedule, 	she had no recollection of 	receiving specific
information 	concerning 	the 	new policy 	designed 	to pay managers
extra 	for teaching. 	On this point, 	Flandreau testified that 	she
typically 	reviewed board agenda 	items 	and minutes 	of 	board
meetings 	to 	identify actions 	in negotiable 	areas 	which affected
the bargaining unit 	she 	represented. 	Since 	the board packets 	in
evidence 	here 	covered only 	the management 	salary 	schedule,
Flandreau 	testified, 	she would not 	have 	necessarily paid any
attention 	to 	their contents.
Pursuant 	to 	the 	District's 	authorization to pay managers 	to
teach at 	the overload rate, 	from the fall 	of 	19 88 	through the
spring 	of 	1991 	approximately ten 	courses 	were 	taught by managers.
According 	to 	Lowney, 	this 	represented an 	increase 	in about 	"two
51

or 	three" 	courses 	from the number of 	courses 	taught 	by managers
in the past.
By reviewing 	the 	Pay 230 	report, 	it 	is possible 	to 	calculate
if 	a manager was 	compensated 	for teaching a 	class 	in addition to
his/her 	regular management 	salary by 	reviewing 	the 	so-called
"12 05 	accounts" 	for a manager during a specific 	time period,
totaling 	those 	accounts 	and 	comparing 	the 	total 	with 	the
manager's 	rate 	on 	the management 	salary 	schedule 	in 	effect 	at
that 	time. 	Amounts paid under the 	"13 00 	account" 	in addition to
the management 	salary would 	reflect 	extra 	compensation 	to 	the
manager 	to 	teach.
Freschi 	learned 	in 	1990 	from administrators 	Pamela Mize
(Mize) 	and George 	Kozitza 	(Kozitza) 	that 	Stetson had been paid to
teach classes 	in the District. 	At 	that 	time 	Freschi was 	a member
of 	the UPM Executive 	Council. 	While 	Freschi 	served on 	the
Executive Council, 	she testified, 	there were discussions
beginning 	in the 	fall 	of 	1990 	about managers being paid to 	teach
classes 	in the District. 	As 	a result 	of 	these discussions,
Freschi 	said Lansing was 	to 	check with Myrna Miller 	to 	confirm if
managers 	were being paid 	to 	teach. 	The 	subject was 	brought 	up
again 	in 	the 	Executive 	Council 	in the 	spring of 	1991 	in
conjunction with 	the 	budget 	shortfall 	and discussion 	of 	ways 	to
curtail 	expenditures 	to avoid layoffs. 	At 	that 	time, 	according
to 	Freschi, 	the Executive 	Council 	discussed whether this was 	a
viable 	cost 	saving mechanism. 	In 	contrast 	to 	Freschi's
testimony, 	Lansing 	said 	this 	topic was 	never 	raised during
52

Executive 	Council meetings. 	He 	said he 	talked 	to Miller about
it, 	but 	he 	received no 	indication 	that managers 	were being paid
to 	teach. 	He 	learned 	that managers 	were being paid to 	teach
during the 	course 	of 	the hearing 	in this 	case.
ISSUES
1. 	Whether the placement 	of 	former administrators 	on the
certificated 	salary 	schedule 	is 	a negotiable 	subject 	under 	EERA?
2. 	Whether 	the placement 	of 	former administrators 	on the
certificated 	salary 	schedule 	is 	covered by 	the 	collective
bargaining 	agreement?
3. 	Whether 	the 	District 	has 	unilaterally 	implemented a
policy 	of 	placing 	former administrators 	on 	the 	certificated
salary 	schedule 	in violation of 	its 	obligation to negotiate 	in
good 	faith 	under 	EERA?
4. 	Whether 	the 	District 	unlawfully 	refused 	to negotiate
about 	criteria 	for 	step placement 	of 	former managers 	from October
1991 	to 	February 	1991?
5. 	Whether 	the 	District 	unlawfully bypassed UPM and dealt
directly with 	former managers 	who 	entered 	the 	faculty unit?
6. 	Whether the District breached 	its 	obligation to
negotiate 	in good 	faith when 	it 	unilaterally adopted a policy
paying managers 	for 	teaching?
DISCUSSION
Is 	the placement 	of 	former administrators 	on 	the 	certificated
salary 	schedule 	negotiable 	under 	the Act?
UPM argues 	that 	placement 	of 	former managers 	on 	the
certificated 	salary 	schedule 	is 	a negotiable 	subject 	under 	EERA.
53

The 	District 	argues 	that 	since managers 	are 	excluded 	from
coverage 	under 	EERA 	they may not 	be 	represented by an 	exclusive
representative 	for purposes 	of 	meeting 	and negotiating 	with 	a
public 	school 	employer. 	The 	decisions 	to 	reassign administrators
to 	the 	faculty unit 	in this 	case were made while 	these 	employees
were still 	in a management 	status. 	Therefore, 	the District
concludes, 	the 	topic 	of 	salary schedule placement 	of 	former
managers 	is 	not within the 	scope 	of 	representation under the Act.
The 	scope 	of 	representation 	in EERA section 	3543.2,
expressly makes negotiable 	"wages, 	hours 	of 	employment, 	and other
terms 	and conditions 	of 	employment." 	Plainly, 	placement 	of
individuals, 	including former managers, 	on the 	salary schedule
when they enter the bargaining unit 	involves 	"wages" 	and 	is
therefore negotiable under the express 	terms 	of 	the Act. 	(See
Remington Arms 	Co. 	(1990) 	298 	NLRB 266 	[134 	LRRM 1024].)
It 	is 	noted 	that 	the 	former managers 	at 	issue 	here 	have
retreat 	rights 	under the 	Education Code, 	and they were assigned
at 	a 	time when 	they were 	in a management 	status. 	These 	factors
arguably 	implicate 	the District's 	managerial 	prerogatives 	and
Education Code 	supersession issues. 	However, 	neither factor
relieves 	the District 	of 	its 	obligation to negotiate.
When 	faced with 	scope 	of 	representation questions 	which
arguably 	involve managerial 	prerogatives, 	the Board has 	applied
the 	following 	test. 	A subject 	is 	negotiable 	even 	though not
specifically enumerated 	if 	(1) 	it 	logically and reasonably
relates 	to hours, 	wages, 	or an enumerated term and condition of
54

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 	significantly abridge 	his 	freedom to 	exercise
those managerial 	prerogatives 	(including matters 	of 	fundamental
policy) 	essential to the achievement of the District's mission. 	....
(Anaheim Union High School District 	(1981) 	PERB Decision No. 	177,
pp. 	4-5.)
There 	is 	no question here 	that placement 	of 	former managers
on the negotiated salary schedule 	relates 	to wages. 	It 	is also
beyond dispute 	that 	this 	topic 	is 	of 	great 	concern 	to both
management 	and 	employees, 	conflict 	has 	occurred and 	collective
negotiations 	is 	the well 	established mechanism to 	resolve 	salary
disputes 	of 	employees. 	In fact, 	the parties 	since approximately
1980 	have 	had a 	relatively 	stable bargaining 	relationship 	in
which 	they have 	negotiated 	several 	contracts 	including 	salary
schedules which cover a variety of 	classifications. 	There 	is 	no
evidence 	in the 	record which suggests 	that 	the mediatory
influence 	of 	collective negotiations 	is 	not 	the appropriate
method 	to 	resolve 	this 	conflict.
The 	question 	remains 	whether negotiating about 	the 	salary 	to
be 	paid 	former managers 	here 	would 	significantly abridge 	the
District's managerial 	prerogatives 	essential 	to achievement 	of
its mission. 	This 	question must be answered in the negative.
55

The District 	argues 	that 	if 	step placement 	of managers 	were
a negotiable 	topic, 	it would effectively be 	required 	to negotiate
with UPM over the 	reassignment 	of 	its managers. 	This
requirement, 	the District 	contends, 	is 	contrary to the governing
board's 	plenary authority 	to 	reassign managers 	and precluded by
EERA. 	This 	contention overlooks 	the 	fact 	that 	the 	reassignments
at 	issue here were not 	from one management position to another,
obviously a nonnegotiable 	topic. 	These 	reassignments 	involved
former managers who, 	for a variety of 	reasons, 	found themselves
in 	the position 	of 	leaving management 	and 	joining a bargaining
unit 	represented on an exclusive basis 	by UPM. 	This 	type 	of
reassignment 	and the placement 	of 	former managers 	on 	the
certificated 	salary 	schedule 	is 	not 	the 	kind 	of 	core managerial
decision, 	recognized by the Board 	in the past, 	which goes 	to the
heart 	of 	the 	District's 	ability 	to 	formulate policy and 	carry out
its 	overall mission. 	(See e.g., 	Stanislaus 	County Department 	of
Education 	(1985) 	PERB Decision No. 	556; 	State of California
(Department of 	Personnel Administration) 	(1986) 	PERB Decision No.
574-S.)
Further, 	this 	record contains no 	concrete 	evidence 	that
negotiating 	about 	the placement 	of 	former managers 	would 	impact
the District's 	ability to 	carry out 	its mission. 	The
reassignment 	of 	the managers 	at 	issue here was more 	in the nature
of 	a basic personnel 	decision, 	and it 	involved placement 	on a
salary 	schedule 	which 	had 	already been 	negotiated with 	UPM.
Placement 	of 	individuals 	from outside 	the unit 	on 	the 	negotiated
56

salary 	schedule, 	using 	criteria unilaterally determined by 	the
District, 	not 	only 	involves 	no 	fundamental management
prerogative, 	but 	it also 	carries 	the 	risk of 	severely undermining
and 	destabilizing 	the 	bargaining 	relationship.
Based on the 	foregoing, 	it 	is 	concluded that negotiating
about 	salary 	step placement 	of 	former managers 	does 	not 	run afoul
of 	the 	third prong of 	the Anaheim test. 	(See also Remington Arms
Co., supra.)
Nor does 	the 	fact 	that managers 	are 	entitled to 	retreat
rights under Education Code, 	section 87457 	et seq., 	render the
placement 	of 	former managers 	nonnegotiable. 	The 	relevant
Education 	Code 	sections 	relied 	on by 	the 	District 	(see 	e.g.,
Education Code 	section 87458) 	provide 	only that managers 	have
certain 	retreat 	rights. 	These 	sections 	are 	completely silent 	as
to 	the amount 	of 	compensation 	to be paid 	former managers 	once
they leave management 	and become 	teachers 	in 	the bargaining unit.
In 	the absence 	of 	Education Code 	language which 	"clearly
evidences 	an 	intent 	to 	set 	an 	inflexible 	standard 	or 	insure
immutable provisions," 	as 	to 	the 	salary placement 	of 	retreating
managers, 	negotiations about 	this 	subject 	should not be
precluded. 	(Healdsburg Union High School 	District 	and Healdsburg
Union School District 	(1984) 	PERB Decision No. 	375, 	p. 	7; 	see
also San Mateo City School District 	et 	al. 	v. 	PERB 	(33 	Cal.3d 	850
[191 Cal.Rptr. 	800].)
Language 	satisfying 	this 	test 	is 	not 	found 	in 	the 	relevant
Education Code 	sections 	governing 	retreat 	rights 	for managers.
57

Therefore, 	the 	Education Code 	retreat 	rights provisions 	relied on
by 	the District 	do not 	render 	the 	topic 	of 	salary placement
nonnegotiable.
Is 	the placement 	of 	former administrators 	on the 	certificated
salary 	schedule 	covered by 	the 	Step 	7 	limit 	in 	the 	collective
bargaining 	agreement?	- -
UPM argues 	that 	step placement 	on 	the 	certificated 	salary
schedule 	is 	governed by a series 	of written rules, 	unwritten
practices, 	and 	contractual 	provisions 	which have been mutually
understood by the parties 	for years. 	The 	centerpiece 	of 	this
argument 	is 	the blanket 	Step 	7 	limit 	in the 	collective bargaining
agreement. 	According to UPM, 	the 	combination of 	rules and
practices 	prevents 	anyone 	from being placed 	above 	the 	contractual
Step 7 limit. 	The District, 	in response, 	contends that it acted
in accordance with past practice, 	there has been no modification
of past practice, 	and the blanket 	Step 	7 	limit 	does 	not apply to
former managers 	in any event.
The 	resolution of 	this 	issue 	turns 	in large part 	on whether
the 	contract 	language which provides 	that 	"Step 	7 	is 	the 	highest
entering 	step 	for permanent 	teachers 	new to 	the District" 	covers
former administrators 	who 	are 	placed 	on 	the 	certificated 	salary
schedule. 	It is well settled, 	as a general rule, 	that PERB has
no authority 	to 	enforce 	agreements 	between the parties. 	(Section
3145.5(b).) 	It 	is equally well 	established, 	however, 	that the
Board may 	interpret 	contract 	language 	to 	determine 	if 	an unfair
practice has 	been 	committed. 	(Grant 	Joint Union High School
District 	(1982) 	PERB Decision No. 	196.) 	Where contractual
58

language 	is 	clear and unambiguous, 	it 	is unnecessary to go beyond
the plain meaning of 	the 	contract 	itself 	to ascertain 	its
meaning. 	(Marysville Joint Unified School District 	(19 83) 	PERB
Decision No. 	314, 	p. 	9.) 	However, 	where ambiguities exist in
contractual 	language, 	it 	is appropriate 	to examine extrinsic
evidence 	to ascertain its meaning and thus 	its 	coverage. 	(Ibid;
Los Angeles Unified School District 	(1984) 	PERB Decision No.
407.)
UPM contends 	that 	the 	relevant 	language 	covers 	all 	new
teachers 	in the District, 	and even former administrators who
enter 	the 	faculty 	for 	the 	first 	time 	and become 	"permanent
teachers" 	are 	considered 	"new" 	and thus 	covered by the Step 	7
limit. 	The District points 	to the words 	"new to the District,"
and argues 	that 	former administrators 	are 	not 	covered by 	the 	Step
7 	limit because 	they have already worked 	in 	the District. 	Each
of 	these 	are plausible 	interpretations 	of 	the 	relevant 	contract
language. 	Therefore, 	it is appropriate to examine extrinsic
evidence 	to determine 	the 	coverage 	of 	this 	contract 	clause.
To consider extrinsic 	evidence 	in this 	case, 	one must 	reach
back to 	the period prior to 	the 	enactment 	of 	EERA. 	Several pre-
collective bargaining District 	policies 	provided 	that 	"a 	new
member 	of 	the 	faculty 	shall 	not 	be 	recommended 	for placement
higher 	than Step 	7 	on 	the 	Certificated 	Salary Schedule,
regardless 	of 	the 	candidate's 	combination of 	experiences." 	This
sentence, 	standing alone, 	appears 	to cover all 	new members 	of 	the
faculty, 	whether 	they previously worked for the District 	in 	some
59

other 	capacity or not. 	However, 	this 	statement 	cannot be 	read in
isolation. 	It 	is part of a larger set 	of policies, 	the 	totality
of 	which appears 	to 	encompass 	only hiring 	of 	people 	from outside
the District 	directly on 	to 	the 	faculty. 	This 	is 	indicated by
components 	of 	the policy which 	expressly 	call 	for 	"selection 	of
personnel" 	through 	"selection committees," 	require 	that 	positions
be 	"advertised publicly," 	suggest 	interviewing at 	least 	five
candidates 	for a position, 	and 	seek student 	involvement 	in 	the
selection process.
Nowhere do these policies 	suggest, 	directly or indirectly,
that 	they were 	intended 	to 	cover 	former administrators 	who 	enter
the 	faculty via 	the 	Education Code 	retreat 	rights 	route. 	Under
the Education Code, 	former administrators 	are not 	required to
navigate 	the 	kind 	of 	selection procedures 	described above 	and
obviously designed 	to 	evaluate 	applicants 	from outside 	the
District. 	It was 	from this background that 	the Step 	7 	limit
emerged and 	eventually 	found 	its 	way 	into 	the 	first 	collective
bargaining agreement. 	Therefore, 	it 	is necessary to examine
bargaining history 	to determine 	if 	the parties 	have 	tailored
their 	contracts 	to permit 	application of 	the 	Step 	7 	limit 	to
former managers, 	as well as 	to applicants 	for faculty positions.
During 	the 	first 	round of 	negotiations, 	UPM proposed salary
schedule 	placement by 	committee. 	This 	was 	rejected and a 	similar
version of 	the 	Step 	7 	limit 	reflected 	in 	the District's 	early
policies was placed in the 	contract. 	Hence, 	the 	initial 	contract
language provided that 	the 	Step 	7 	limit 	applied to 	"teachers 	new
60

to 	the 	system," 	but 	there was 	no discussion about 	the 	scope 	of
this language 	in general, 	nor was 	there discussion specifically
about 	former managers. 	There was agreement, 	however, 	that the
contract 	would modify 	or 	replace 	policies 	inconsistent 	with 	its
terms. 	To this 	end, 	Christensen met with Hall 	and Curtis 	to 	iron
out 	inconsistencies, 	but 	the 	record is unclear as 	to precisely
what 	came 	of 	these meetings with respect 	to 	the 	Step 	7 	limit 	as
it 	related to prior District policies.11 The 	record 	is 	clear,
however, 	that 	there was 	no discussion 	concerning application of
the 	Step 	7 	limit 	to 	former managers.
The next 	two rounds 	of negotiations, 	1981-84 	and 1983-84
reopeners, 	included no discussion of 	the Step 7 	limit.
At 	the 	end of negotiations 	for the 	1987-90 	contract, 	Lansing
and Lowney discussed 	the 	Step 	7 	clause as 	part 	of 	an effort 	to
finalize 	language. 	However, 	their discussion was not 	one which
sheds 	light 	on the 	instant 	dispute. 	The 	term 	"teachers" 	was
changed to 	"permanent 	teachers" 	because 	temporary teachers 	had
been added to the 	contract with a Step 	3 	limit, 	and the 	Step 	7
language was 	changed to 	reflect 	that 	it 	applied to permanent
teachers. 	Also, 	with little discussion, 	Lansing and Lowney
agreed 	to 	change 	the 	term 	"system." 	to 	"District."
Finally, 	there were no discussions 	during 	the negotiations
for 	the 	1990-93 	contract 	concerning 	the application of 	the 	Step 	7
limit 	to 	former administrators 	who 	enter 	the 	faculty.
11Christensen's best 	recollection 	is 	that 	the attempt was
aborted.
61

As UPM points 	out 	in 	its brief, 	there have been negotiations
over 	the 	years 	which have 	resulted 	in 	step 	limits 	for
specifically 	identified 	groups 	of 	employees 	for 	salary placement
purposes.12 However, 	these limits were adopted as part 	of
narrowly 	focused 	negotiations 	aimed 	at 	expressly 	identified
groups. 	There have been no agreements 	or even discussions
between the parties 	covering placement 	of 	former managers.
Based on the 	foregoing, 	it 	is 	concluded that 	the District's
pre-collective 	bargaining policies 	as 	they 	relate 	to 	the 	Step 	7
limit 	did not 	apply 	to 	former administrators 	who are 	placed 	on
the 	certificated salary schedule. 	Indeed, 	Pia's 	Padover memo,
discussed immediately below, 	supports 	this 	conclusion. 	In
addition, 	although the parties have discussed step 	limits 	during
several 	rounds 	of bargaining, 	and 	in fact have 	included limits 	in
their agreements, 	they have never discussed step 	limits 	as
applicable to former managers. 	Therefore, 	I 	conclude that 	the
parties 	have 	reached 	no mutually understood meaning 	for 	the
phrase 	"Step 	7 	is 	the highest 	entering 	step 	for permanent
teachers 	new to 	the District."
The meaning 	of 	this 	language nevertheless 	is 	important 	in
resolving 	the underlying dispute presented here. 	Faced with 	lack
of 	mutually understood meaning 	of 	contract 	language 	in 	the past,
the Board has 	construed language 	in accordance with 	its 	facial 	or
plain meaning. 	(The Regents 	of 	the University of 	California
12E.g., 	part-time 	credit 	faculty in 1987 	and noncredit 	ESL
faculty in 1990.
62

(1991) 	PERB Decision No. 	907-H.) 	Since the parties have not
mutually placed a 	special 	meaning 	on 	the 	words 	"permanent
teachers 	new to 	the district," 	the 	language 	is 	to be given 	its
"ordinary" 	meaning. 	(Butte 	Community College District 	(1985)
PERB Decision No. 	555, 	p. 	12; 	see also The Regents of the
University of California, 	supra, 	PERB Decision No. 	907-H.)
Under this approach, 	I 	read the 	language as 	containing 	two
components. 	To 	fall within the meaning of 	this phrase, 	an
individual must be 	(1) 	a permanent 	teacher and 	(2) 	new to the
District. 	Also, 	the contract defines 	"District" 	as 	the 	"Marin
Community College District." 	The 	former managers 	at 	issue 	here,
by virtue 	of 	their placement 	on 	the 	certificated 	salary 	schedule,
are now permanent 	teachers. 	But, 	they are not new to the
District, 	having worked 	in the management 	ranks 	previously.
Therefore, 	it 	is 	concluded that 	the 	relevant 	contractual 	language
does not 	apply to 	former managers.13
13The District 	points 	out 	that 	to 	the 	extent 	initial
placement 	of 	former managers 	above 	Step 	7 	is 	prohibited by 	the
contract, 	PERB 	is without 	jurisdiction to resolve the dispute.
(Los Angeles Unified School 	District 	(1990) 	PERB Decision No.
860.) 	I 	have 	already 	indicated 	in a pre-hearing order 	that,
assuming 	the 	contractual 	Step 	7 	limit 	is 	applicable 	to 	former
managers, 	the statutory issues presented here 	(e.g., 	refusal 	to
negotiate about 	criteria used to 	credit 	experience) 	are 	separate
allegations which are appropriately before 	PERB, 	even 	though 	they
may be 	inextricably 	intertwined with a 	contract 	provision. 	See
pre-hearing order of the undersigned ALJ, 	dated June 	12, 	1992,
pp. 	7-8. 	However, 	since 	I have 	concluded that 	the 	collective
bargaining agreement 	does 	not 	cover 	the 	step placement 	of 	former
managers, 	the deferral 	issue 	is not presented here and there 	is
no 	need 	to 	consider 	the District's 	renewed motion 	to dismiss
based on deferral grounds. 	See District's Opening Brief, 	p. 	6,
fn. 1.
63

Has 	the District 	unilaterally established a practice 	of 	placing
former administrators 	on 	the 	certificated 	salary 	schedule?
UPM argues 	that 	the 	step placement 	of 	former managers 	on 	the
certificated 	salary 	schedule violated past 	practice, 	and UPM was
kept 	in 	the 	dark about 	the 	specific 	criteria used 	to place
managers. 	Thus, 	UPM concludes, 	it was never afforded notice and
an opportunity to negotiate about 	these placements. 	The
District, 	in response, 	argues 	that a practice of placing 	former
managers 	on 	the 	certificated 	salary 	schedule 	has 	existed 	openly
for years, 	and 	its most 	recent placements 	have been made 	in
accordance with the 	established practice. 	Further, 	the District
asserts, 	UPM had actual 	or 	constructive 	knowledge 	of 	the practice
and took no action. 	Thus, 	the present unfair practice charge 	is
time-barred.
The 	Padover 	case was 	the 	first 	concrete 	example 	of 	a 	former
manager being placed on 	the 	certificated salary 	schedule. 	Pia
determined that 	Padover's 	case was 	one 	of 	first 	impression and
proceeded 	to 	develop a 	rationale 	for his 	decision 	to place
Padover. 	Pia 	credited Padover with up to seven years 	of pre-
District 	experience, 	exercised what he believed to be his
discretion 	as 	personnel 	director 	in 	determining 	whether 	Padover's
prior work experience was 	related to his 	teaching assignment, 	and
then credited Padover's management 	service. 	Since 	faculty
members 	who 	entered 	the 	administration and 	then 	later 	returned 	to
the 	faculty were 	credited with 	their 	service 	as 	administrators,
Pia reasoned, 	it was 	only fair to 	credit 	Padover with his
64

management 	service. 	In accord with this 	approach, 	Pia placed
Padover at 	Step 	13.
In a 	19 81 memo to Moffett 	describing the rationale 	for the
Padover placement, 	Pia wrote 	that 	"there 	is no precedent 	in the
District 	either 	in policy or past 	practice 	for placement 	of 	a
management 	team member on the 	salary schedule." 	Plainly, 	the
Padover 	case was 	the 	first 	of 	several 	steps 	which ultimately grew
into a policy 	covering 	step placement 	of 	former managers 	on 	the
certificated 	salary 	schedule.
The District, 	largely through Pia's 	successors 	in the
personnel 	department, 	has 	applied the 	rules 	contained in the 	so-
called Padover memo 	repeatedly over 	the years. 	It 	is 	undisputed
that Moffett 	retained the memo 	in her 	files 	since 	1981, 	and both
Moffett 	and Lowney used 	it 	in placing 	former managers 	on 	the
certificated 	salary 	schedule. 	Because 	the District 	placed 	former
managers 	on 	the 	certificated 	salary 	schedule 	at various 	times
over the years, 	it 	is unclear at what precise point 	the 	Padover
memo and 	other 	rules 	applied by 	the District 	ripened 	into 	an
established practice. 	However, 	it is clear that", the placement
of 	former managers 	on 	the 	certificated 	salary schedule 	reached
its 	height 	in 	1991 	and 1992 	with the 	reassignment 	of 	the managers
at 	issue here. 	Thus, 	it 	is 	fair to conclude that with the 	1991
and 	1992 	placement 	of 	former managers 	on 	the 	certificated 	salary
schedule, 	the District had unilaterally established a policy.
Lowney, 	who succeeded Pia in 1981, 	never discussed the
Padover memo with 	Pia and 	testified 	that 	he 	recalled 	seeing 	it
65

for the 	first 	time 	in the mid-1980s. 	Moffett had been aware 	of
the 	Padover memo 	since 	Pia's 	departure. 	Of 	crucial 	significance
here 	is 	the 	fact 	that 	at 	no 	time did Moffett 	or Lowney give a
copy of 	the 	Padover memo 	to UPM, 	nor was UPM otherwise made 	aware
of 	any District 	policy related 	to 	the 	step placement 	of 	former
managers.
Meanwhile, 	using the Padover memo as precedent, 	the District
has 	unilaterally assumed 	the 	discretionary 	authority 	to make 	a
wide 	range 	of 	decisions 	in awarding 	service 	credit 	to 	former
managers 	and placing 	them on 	the 	certificated 	salary 	schedule.
These 	decisions 	were made at 	different 	times 	over the past 	12
years, 	including the 	step placement 	of 	eight 	former managers
challenged here. 	However, 	every step placement 	decision
regarding 	these 	former managers, 	and 	the District's 	rationale 	for
each, 	need not be discussed here 	to resolve 	this 	dispute. 	A few
rules 	adopted by 	the personnel 	office 	illustrate 	the 	nature 	of
the 	decisions 	made by 	those who 	staffed 	that 	office.
For example, 	in the past 	individuals who entered the unit
were 	capped at 	certain step 	levels, 	either by District policy,
practice 	or the 	terms 	of a 	contract. 	Under rules unilaterally
derived 	from 	the 	District's 	interpretation 	of 	pre-collective
bargaining policies, 	a 	six year cap 	is 	placed on pre-District
experience, 	and District 	experience 	counts 	for advancement beyond
Step 	6. 	But 	no 	overall 	cap 	exists 	for 	former managers 	who are
placed 	on 	the 	certificated 	salary 	schedule.
66

In another area, 	Tara 	Flandreau and Alexandra Hall 	were 	not
given 	credit 	for 	classified 	service 	when 	they were placed 	on 	the
certificated 	salary scale. 	In this 	case, 	Yaryan and Stetson were
awarded 	credit 	for 	classified 	service 	upon 	their 	reassignment
from the 	administration 	to 	the 	faculty.
Further, 	it was 	Lansing's understanding as UPM president
that 	credit 	for placement 	purposes 	was 	not 	awarded 	for noncredit
instruction.14 In 	fact, 	UPM had 	to negotiate 	separate provisions
in 	the 	1990-93 	contract 	to award ESL 	instructors 	credit 	for
noncredit 	instruction. 	And, 	as 	evidenced by the placements 	of
Jim Parthum, 	Dana Pritchard, 	Tara Flandreau, 	and others, 	in
reality 	there 	was 	no 	consistent 	practice 	regarding 	granting
credit 	for noncredit 	instruction. 	Yet, 	the District 	in this 	case
awarded 	former managers 	credit 	for noncredit 	instruction.
There 	is 	a 	dispute 	about 	awarding 	credit 	for management
experience unrelated 	to 	the 	teaching assignment, 	and no written
guidelines 	exist 	to determine when management 	service 	is 	related
to the particular teaching assignment. 	In the past, 	faculty
members 	who moved 	into management 	and 	later 	returned 	to 	the
faculty were 	credited with 	their management 	service 	upon
returning 	to 	the 	faculty, 	with apparently no attempt 	to assess
whether 	their 	service 	in 	the 	administration was 	related 	to 	their
teaching assignments 	for purposes 	of 	crediting 	the 	experience 	on
the 	negotiated 	salary 	schedule when 	they 	returned 	to 	the 	unit.
14Lansing 	described a 	noncredit 	instructor as 	one who works
at 	an hourly rate, 	and may or may not be ADA 	(average daily
attendance) 	generating. 	A credit 	instructor 	is ADA generating.
67

Since 	former managers 	at 	issue 	here 	were 	treated 	in 	essentially
the 	same way, 	the District argues 	that 	there has been no 	change.
However, 	it has 	not been established that UPM was 	aware 	of 	this
practice. 	Lansing 	testified 	that 	UPM was 	not aware 	that unit
members 	who went 	into management 	and 	returned to 	the 	unit 	were
given 	credit 	for management 	service 	which may have 	been unrelated
to their teaching positions.15 According to Lansing, 	it 	is not
uncommon 	for unit 	members 	who 	enter management 	temporarily 	to
forego 	certain benefits 	that 	they would have 	earned 	if 	they had
remained 	in the bargaining unit. 	The 	treatment 	of 	former
managers 	in this 	case was different 	in another sense; 	unlike the
faculty members 	who went 	to 	the 	administration and 	returned 	to
the unit, 	at 	least 	some 	of 	the 	former managers at 	issue here had
never previously been placed 	on 	the 	negotiated 	salary 	schedule.
Against 	this background, 	the District 	adopted a 	rule which grants
credit 	for management 	experience 	and 	only 	the personnel 	director
has 	the 	authority to determine 	if management 	service 	is 	related
to 	a particular 	teaching assignment.
In 	sum, 	the District has 	unilaterally established a 	system
of 	awarding 	credit 	for the 	step placement 	of 	former managers 	who
enter the bargaining unit. 	This 	is 	an area uncovered by the
parties 	collective bargaining agreement, 	and not 	addressed by
District 	policy. 	As 	discussed elsewhere 	in this 	proposed
decision, 	UPM was 	not 	given notice 	and an opportunity to
15Christensen 	testified 	that 	he 	has 	heard of 	this 	practice
over the years, 	but 	only through hearsay.
68

negotiate 	about 	the 	implementation 	of 	this 	practice 	and 	the
placement 	of 	these managers 	on 	the 	negotiated 	salary 	schedule.
The 	unilateral 	implementation 	of 	negotiable 	terms 	and 	conditions
create 	a 	destabilizing effect 	on 	the 	bargaining 	relationship 	and
have 	long been viewed as 	unlawful 	by 	the Board. 	(See 	e.g., 	San
Mateo 	County Community College District 	(1979) 	PERB Decision No.
94.)
The District 	raises 	several 	defenses 	to 	the 	charge 	that 	it
breached 	its 	obligation 	to negotiate 	in good 	faith. 	It 	first
argues 	that 	Freschi, 	on several 	occasions 	outside 	the 	six-month
statute 	of 	limitations period, 	told various UPM representatives
of 	the 	step placement 	of 	former managers.16 For the 	following
reasons, 	her testimony on this point 	is 	not 	credited.
The 	record 	is 	replete with 	inconsistencies 	which 	tend 	to
cast 	doubt 	on Freschi's 	ability to 	recall 	events with accuracy.
A few examples 	illustrate 	this point. 	Freschi 	testified on 	three
days 	during the hearing. 	On the 	last 	day of 	her testimony, 	after
reading 	transcripts 	of her earlier 	testimony, 	Freschi 	changed her
testimony in several 	areas. 	First, 	she 	initially testified that
Christensen was at 	the May 23, 	1991, 	meeting, 	but 	she corrected
herself because 	Christensen was 	actually 	in Europe at 	the 	time.
This 	discrepancy 	in her 	testimony 	is 	magnified when one 	considers
that 	her 	initial 	testimony about 	the May 23 	meeting 	included
details about 	Christensen's participation at 	the meeting. 	Thus,
the 	error was 	not 	a mere mistake about 	Christensen's 	presence;
16This unfair practice charge was 	filed on December 24, 	1991.
69

Freschi 	actually described his 	conduct 	at 	a 	time 	he was 	not
present. 	Second, 	on direct 	examination she 	testified that 	she
first 	talked with UPM Grievance 	Officer Allen 	in 	late 	July 	or
early August 	1991. 	On cross 	examination she 	testified 	that 	the
conversation with Allen was much earlier, 	in June. 	On her third
day 	of 	testimony 	she 	said 	the 	correct 	version was 	the 	one 	given
during her direct 	testimony. 	She 	added 	that 	she 	had 	only 	two
conversations 	in her life with Allen, 	in July and August 	1991.
But 	it 	was 	pointed out 	during 	cross 	examination 	that 	she 	had many
more. 	At 	another point 	in her testimony, 	she 	testified at 	some
length about 	advice Bezemek gave her during a June 	12, 	1991,
telephone 	conversation to 	the 	effect 	that 	her step placement' was
negotiable and grievable. 	Later, 	however, 	she 	said she 	could not
recall 	precisely who 	she 	spoke 	to 	on that 	day, 	Bezemek or his
associate. 	On another occasion, 	she 	said she had a 	conversation
with Christensen during 	either 	the week of 	June 	10 	or June 	17,
where 	she 	raised the 	step placement 	issue. 	But 	later she 	said
she 	could not 	recall 	what 	"transpired" 	during 	that 	conversation.
She 	could only 	recall 	seeing 	Christensen at 	the 	time, 	and had no
recollection of what 	was 	discussed. 	Asked again about 	the
conversation with Christensen, 	she 	recalled 	the 	discussion
(concerning step placement of 	former managers) 	in detail.
None of 	these examples, 	standing alone, 	either dispose of
the 	issues 	presented here 	or 	even 	indicate 	that 	Freschi
intentionally misrepresented facts, 	as UPM contends.
Nevertheless, 	these 	examples 	tend to 	cast 	doubt 	on Freschi's
70
. .

ability to recall 	significant 	events with accuracy. 	Thus, 	when
her 	testimony 	is 	judged against 	the 	weight 	of 	the 	testimony given
by 	several 	other witnesses 	who 	testified 	in 	rebuttal 	to what 	she
had to say, 	the balance 	tips against 	Freschi.
Freschi's 	testimony 	that 	she 	raised 	the 	step placement 	issue
at 	key UPM meetings 	on May 23 	and June 	21 	stands 	in stark
contrast 	to 	several 	UPM witnesses 	who 	said with great 	certainty
that, 	in fact, 	she never brought this topic up. 	All of these
witnesses 	(Fearnley, 	Morgen, 	Lansing, 	Petersen and Christensen)
were 	entirely believable, 	and 	there 	is 	no 	reason 	in the 	record to
doubt 	their testimony. 	To 	the 	contrary, 	Petersen was 	Freschi's
personal 	friend and neighbor who 	tutored 	Freschi's 	daughter 	in
math. 	Petersen said he was 	sure 	Freschi 	did not 	raise 	the 	step
placement 	issue 	on May 23. 	And 	Freschi 	said she has 	known
Fearnley since 	19 83. 	She described him as 	a person who 	she
trusted. 	Fearnley testified along 	the 	same 	lines 	as 	Petersen,
and his 	contemporaneous 	notes 	do not 	indicate 	that 	Freschi 	raised
the 	step placement 	issue.	
. . .
For 	similar reasons, 	Freschi's 	testimony that 	she discussed
her 	step 	placement 	and her 	grievance 	with Lansing prior 	to June
21, 	1991, 	is not 	credited. 	Lansing was a convincing witness who
placed 	the 	relevant 	conversation with 	Freschi 	no 	earlier 	than
June 24, 	and possibly as 	late at June 27, 	the day both Freschi
and Lansing 	sent 	their inquiries 	to Rumford.17 Given 	Freschi's
17While 	Lansing's 	later 	response 	that 	his 	first 	contact with
Freschi may have been on June 21, 	1991, 	tends 	to cast 	some doubt
on his 	recollection, 	considered 	in the overall 	context 	of 	the
71

inability to recall 	facts with clarity, 	I 	find Lansing's
testimony on 	this 	point more 	credible.
record, 	it does not 	detract 	from the weight of 	the 	remaining
testimony which 	shows 	that 	Freschi 	did not 	place UPM on notice
outside 	the 	statute 	of 	limitations period. 	In any event,
Freschi's 	concern at 	this 	time was 	limited 	to her 	individual
placement 	claim 	(denial 	of 	credit 	for 	certain experience) 	and not
to 	step placement 	in a broader sense. 	Lansing 	testified that 	UPM
typically does 	not 	get 	involved 	in 	individual 	claims 	of 	this 	type
at 	such an early stage. 	Thus, 	her comments 	to Bernadine Allen
between June 22 and 27, 	1991, 	to the effect 	that 	she was
concerned about 	her placement 	because 	other 	returning managers
had been placed at 	a higher 	level 	would not 	have 	raised a 	red
flag 	for UPM.
It 	is 	also noteworthy that 	Freschi's 	June 	27 	inquiry to
Rumford addresses 	only her personal 	complaint 	that 	she was 	denied
credit 	for certain work experience. 	It 	does not 	address 	the
larger 	step placement 	concern which 	she 	claims 	to have 	raised
with various 	UPM representatives. 	A logical 	inference 	to be
drawn from this omission is that Freschi, 	as of June 27, 	1991,
was 	not 	yet 	fully aware 	of 	the broader 	issues.
Further, 	Bezemek 	convincingly 	testified that 	Freschi 	told
him of 	her step placement 	concerns 	for the 	first 	time 	on June 25,
1991, 	and he was 	incredulous 	that 	she would inject 	this 	issue
into the 	settlement 	talks 	at 	such a late date. 	While 	Freschi's
recall 	in many respects was deficient, 	the same 	cannot be said
about 	the 	testimony 	given by Bezemek.
In any event, 	Bezemek, 	as UPM counsel, 	is not authorized to
accept notice 	or take 	independent action on behalf 	of his 	client.
As 	counsel 	for approximately 30 unions, 	Bezemek testified, 	it
would be 	an 	impossible 	task 	to 	keep 	track 	of 	contract 	provisions
72

and past 	practices 	to 	the 	extent 	that 	he 	could 	reasonably be
expected 	to 	recognize 	the 	implementation or modification of 	a new
practice 	or policy.
The District 	also argues 	that 	Bezemek, 	during 	the 	lengthy
litigation 	concerning 	Freschi's 	1987 	reassignment, 	learned 	that
Freschi 	had been placed at 	Step 	11. 	However, 	as pointed out 	in
more detail 	later in this proposed decision, 	knowledge 	of 	one's
step placement, 	standing alone, 	does not provide adequate notice
of 	the 	employer action under attack here. 	Even 	if 	Bezemek had
been authorized by UPM to accept 	notice, 	he would have 	needed
more information - work history, 	prior placement, 	etc. 	- 	to be
charged with notice under the Act. 	In sum, 	learning of a
particular 	step placement 	in 	the 	context 	of 	lengthy and 	complex
litigation about 	issues 	which were 	only 	loosely 	related 	to 	the
issues 	presented here 	is 	not valid notice under the Act.
The District 	next argues 	that UPM had actual 	notice 	of 	the '
Stetson and Gaiz placements more 	than 	six months prior 	to 	the
filing 	of 	this 	unfair practice 	charge 	through 	the 	delivery of
board agenda items 	to the union. 	These 	items, 	the District
contends, 	showed the placements 	of both Stetson and Gaiz at 	Step
16 	of 	the 	salary 	schedule 	and 	should 	readily have 	alerted UPM to
a 	"potential 	issue" 	concerning 	the 	service 	or experience 	credits
that 	Stetson and Gaiz 	received. 	Under 	the 	circumstances
presented here, 	I 	find this defense unpersuasive.
In Victor Valley Union High School District 	(19 86) 	PERB
Decision No. 	565, 	at p. 	6, 	fn. 	6, 	the Board observed that 	"an
73

agenda may suffice 	[for notice purposes] 	if 	it 	is 	delivered to a
proper 	official 	and 	is presented 	in a manner 	reasonably
calculated 	to draw attention to any 	item(s) 	reflecting a proposed
change 	in a matter within the 	scope 	of 	representation." 	The
agenda 	items 	themselves 	and 	the 	circumstances 	under which 	they
were provided 	to UPM do 	not 	satisfy 	the 	notice 	requirements 	under
the 	Victor Valley 	test.
The 	agenda 	items 	at 	issue here were 	not 	"reasonably
calculated" 	to put 	UPM on notice. 	The District made 	no
calculation about 	whether 	the 	documents 	constituted 	sufficient
notice. 	In fact, 	at all 	relevant 	times 	the District operated
under 	the 	assumption 	that 	the 	Stetson and Gaiz 	placements
represented no change in practice, 	and, 	further, 	that even if the
placements 	constituted a 	change 	the 	entire 	area was 	not
negotiable. 	Thus, 	the District 	cannot now argue persuasively
that 	the 	agenda 	items 	were 	reasonably 	calculated 	to 	give 	notice.
In addition, 	the agenda 	items were voluminous documents 	not
designed 	to 	call 	one's 	attention 	specifically 	to 	the 	step
placements. 	And they 	included only 	the actual 	step placements 	of
Gaiz 	and Stetson. 	They did not 	include 	the 	criteria used 	to
determine 	the placements, 	work history, 	or whether Stetson or
Gaiz 	had been placed 	on 	the 	certificated 	salary 	schedule 	in 	the
past. 	As 	several UPM witnesses 	testified, 	without 	this
information the 	step placement 	itself 	is 	at 	best 	only one piece
of 	the puzzle. 	And, 	standing alone, 	it 	is a largely meaningless
piece 	of 	information. 	A cursory reading of 	the 	issues presented
74

here 	indicates 	that 	the UPM allegations 	are 	directed at 	the
underlying 	criteria used 	to place 	an 	employee 	at 	a particular
step, 	as well 	as at 	the 	step placement 	itself. 	The agenda items
at 	issue here, 	while vaguely signaling a 	"potential" 	issue, 	as
the District 	contends, 	do not 	rise 	to 	the 	level 	of 	the kind of
notice 	contemplated by the Act. 	(See Regents 	of 	the University
of California 	(1990) 	PERB Decision No. 	826-H, 	p. 	8 	(limitations
period begins 	to 	run when the 	exclusive 	representative 	learns 	of
the 	"rationale" 	for the employer's decision); 	Regents of the
University of 	California 	(1983) 	PERB Decision No. 	359-H
(conjecture or rumor insufficient 	to provide adequate notice) .)
Under Victor Valley, 	"actual 	knowledge" 	of a proposed change
will 	suffice, 	but 	even actual 	knowledge must 	"clearly inform" 	the
recipient 	of 	the proposed change, 	and must be given 	"sufficiently
in advance 	of 	a 	firm decision 	to make 	a 	change 	to allow the
exclusive 	representative 	a 	reasonable 	amount 	of 	time 	to 	decide
whether 	to make 	a 	demand 	to negotiate." 	(Victor Valley Union High
School District, 	supra, 	p. 	5.) 	The agenda 	items provided by the
District 	did not 	satisfy 	this 	obligation 	in 	the present 	case.
(See also San Diego Community College District 	(1988) 	PERB
Decision No. 	662, 	affirmed San Diego Adult Educators v. 	PERB
(1990) 	223 	Cal.App.3d 1124 	[273 Cal.Rptr. 	53].)
The District 	next 	argues 	that UPM had 	constructive 	notice 	of
the 	step placements 	of 	former administrators 	(Freschi, 	Yaryan and
Douglass) 	through several 	remaining sources. 	These .are 	(1) 	the
budget monitors, 	who had full 	access 	to the District's 	"Pay 230"
75

payroll 	reports, 	(2) 	general knowledge that administrators were
being reassigned to the 	faculty, 	(3) 	monthly dues deductions,
lists 	sent by the District 	to UPM, 	and 	(4) 	District budgets,
which 	included 	staffing plans 	showing 	that 	managers 	were 	joining
the unit. 	The District 	contends 	that 	UPM could have 	gathered
payroll records, 	dues deduction reports, 	budget reports, 	etc.,
analyzed 	them 	in 	conjunction with 	the 	negotiated 	salary 	schedule,
and 	figured out 	the 	step placement 	of 	former managers.
In arguing 	that 	the 	information provided 	to UPM via 	these
sources put 	the union on constructive notice, 	the District 	relies
primarily on Riverside Unified School District 	(19 85) 	PERB
Decision No. 	522, 	where 	the Board adopted the 	following regional
attorney view of 	constructive 	notice
Absent actual 	notice, 	the 	limitations period begins 	to
run when 	the persons 	affected have 	constructive 	notice
of 	the violation. 	They are aware of 	the 	events which
manifest 	the 	change 	and 	should 	reasonably be 	aware 	of
the significance of 	the events. 	Certainly, 	a rule
should 	not 	be 	endorsed which would 	toll 	the 	limitations
period where 	the 	charging party knew that 	certain
events 	occurred but 	did not 	realize 	that 	these 	events
constituted an unfair practice. 	(9 PERC Para. 	16212,
p. 	608.)
For 	the 	same 	reasons 	the 	agenda 	items 	did not 	constitute 	actual
notice, 	it 	is 	concluded that 	the 	remaining sources 	of 	information
listed above 	did not 	amount 	to 	constructive notice 	under
Riverside.
As pointed out 	above, 	UPM may have been aware 	that 	certain
managers 	were 	entering the 	faculty unit 	at 	designated 	steps 	on
the 	negotiated salary 	schedule.; 	But 	the 	information 	in 	the 	Pay
230 	reports, 	dues deduction lists, 	staffing plans or general
76

knowledge 	falls 	short 	of putting 	the union on notice 	as 	to 	the
"significance of 	the 	events." 	Nor do 	the 	facts here 	fall within
the 	Riverside 	observation 	that 	no 	rule 	should be 	endorsed which
would 	toll 	the 	statute 	of 	limitations 	when 	the 	charging party
knew of 	the 	events 	in question but 	did not 	realize 	that 	they
constituted an unfair practice. 	Here, 	UPM did not 	know of 	the
significant 	events 	(e.g., 	work history upon which credit 	was
given, 	etc.). 	It knew only of managers entering the unit and
arguably 	of 	their 	step placement. 	Absent 	knowledge 	of work
history and 	the 	specific 	criteria used 	to place 	these 	former
managers, 	knowledge of 	their step placement 	and even their
monthly salary 	is 	insufficient 	notice under 	the Act, 	especially
when it 	is presented 	in 	the 	form of voluminous 	documents 	given to
UPM for purposes 	unrelated 	to 	the matters 	at 	issue 	in 	this
case.18
Further, 	under PERB 	law actual 	and/or 	constructive notice
will 	suffice. 	However, 	even actual 	or 	constructive notice must
be provided 	in a 	form which 	is 	"reasonably 	calculated" 	to draw
attention 	to 	the 	event 	in question. 	(See Victor Valley Union
High School District, 	supra.) 	Under this 	test, 	the notice
requirement 	does 	not 	contemplate 	an 	exercise 	which places 	the
18Riverside may also be distinguished on 	the 	facts. 	In 	that
case, 	a disgruntled individual 	(Tony Petrich) 	appearing pro per,
alleged 	the 	district 	misconstrued 	a 	negotiated 	salary 	schedule.
Petrich himself 	was 	covered by 	the 	contract 	and 	thus 	would have
been 	affected personally by 	the 	district's 	alleged
misinterpretation. 	For this reason, 	among others, 	the regional
attorney 	concluded 	the 	charging party had 	constructive 	notice 	and
dismissed 	the 	charge. 	The 	evidence presented here 	cannot
reasonably be 	compared with personal 	notice 	in Riverside.
77

burden 	on 	the 	union 	to gather and analyze 	information 	for 	the
purpose 	of 	determining whether 	it 	has 	bargaining 	rights 	or
whether 	its 	bargaining rights 	have been denied. 	Proper notice
requires 	an affirmative 	obligation on 	the part 	of 	the 	employer to
tell 	the union of proposed 	changes 	in negotiable 	subjects.
The District 	next argues 	that 	Freschi 	knew of 	both 	the Gaiz
and Stetson step placements, 	as well 	as 	her own step placement,
outside 	the 	statute 	of 	limitations period. 	She 	also knew that
Stetson had mostly management 	experience 	in 	the District, 	held
classified positions, 	and had done 	little 	teaching. 	This
knowledge, 	the District 	contends, 	must be 	imputed to UPM because
of 	Freschi's 	position on 	the 	Executive 	Council.
It 	is now well 	established that, 	as 	to employers, 	common law
agency principles 	apply. 	(Inglewood Teachers Association v. 	PERB
(1991) 	227 Cal.App.3d 767 	[278 Cal.Rptr. 	228].) 	The same rule
has been applied to employee organizations. 	(Los Angeles
Community College District 	(1982) 	PERB Decision No. 	252, 	p. 	17,
fn. 	7.) 	As 	the court 	in Inglewood observed, 	at 227 Cal.App.3d
767, 	780, 	the existence of an agency relationship and the extent
of 	the authority of 	an agent 	are questions 	of 	fact, 	and the
burden of 	proving 	agency and 	the 	scope 	of 	the 	agent's 	authority
rests with 	the party asserting 	the 	existence 	of 	the agency.
Agency status under EERA, 	therefore, 	is 	to be determined on a
case-by-case basis.
It 	is 	undisputed 	that 	Freschi 	was 	a member of 	the UPM
Executive Council 	from 1990 	to 	1992. 	By the 	express 	terms 	of 	the
78

UPM constitution and bylaws, 	she was 	an officer and agent 	of 	the
union. 	But 	even 	in 	this 	capacity her only 	formal 	role was 	to
gather 	information as 	budget monitor. 	She had no 	independent
authority 	to 	act 	for 	or bind UPM in grievances 	or unfair practice
charges. 	And there 	is no evidence 	that 	she 	engaged 	in any
activity which may have 	given 	the District 	the 	impression 	that
she had any authority in these areas. 	Thus, 	there was no reason
for 	the District 	to 	assume 	that 	knowledge 	gained by 	Freschi 	would
automatically be 	imputed 	to UPM.
The 	District 	argues 	nevertheless 	that 	Freschi's 	knowledge
during 	her 	service 	as 	Executive 	Council 	member 	should be 	imputed
to UPM. 	As a member of 	the UPM governing board, 	Freschi may 	for
some purposes 	be viewed as 	an officer and agent 	of 	the union.
However, 	in addressing this argument, 	the 	fundamental 	issue 	to be
resolved concerns 	the 	extent 	of 	Freschi's 	knowledge; 	even 	if
Freschi 	is 	an agent 	of UPM she may not 	have possessed the
requisite 	knowledge 	to establish notice.
The extent 	of 	Freschi' 	knowledge 	is not 	easy to determine,
for her testimony 	is 	not 	a model 	of 	clarity. 	She 	initially
testified on direct 	examination 	that 	she knew, 	based at 	least 	in
part on personal 	conversations with Stetson in about 	19 84, 	that
Stetson had 	limited 	teaching 	experience 	and 	served 	in a
classified management 	position when 	she 	first 	entered 	the
District. 	But 	she 	later 	conceded on cross 	examination that 	she
did not 	know with 	certainty 	the 	specific 	types 	of 	service 	for
which Stetson was 	credited. 	Freschi 	said she 	"knew generalities,
79

but 	not 	the 	specifics." 	Thus, 	she 	conceded that her concerns
about 	Stetson's 	placement 	were premised at 	least 	in part 	on
assumptions 	about 	the 	kinds 	of 	experience 	for which 	Stetson
received credit. 	It was not until 	the 	fall 	of 	1991, 	Freschi
admitted, 	that 	she 	learned of 	the 	specifics 	concerning 	the 	credit
Stetson 	received 	for her placement.
With respect 	to Gaiz, 	Freschi 	testified that 	she had no
concerns 	about his 	placement when 	she 	learned of 	it 	in March
1991. 	Apparently, 	she was not as 	familiar with Gaiz's 	employment
history and 	thus made 	no assumptions 	about 	the 	correctness 	of 	his
placement.
There 	remains 	the question of 	Freschi's understanding of 	the
criteria used 	for her own step placement 	in 	1987. 	At 	the 	time
she was 	reassigned to the 	faculty, 	Freschi was not 	a member of
the UPM Executive Council. 	However, 	even after she became a UPM
officer, 	she 	displayed a 	surprising 	lack of understanding about
the 	criteria used 	for the 	step placement 	of 	former managers. 	For
example, 	Freschi testified that, 	during the summer of 	1991, 	she
was 	seeking 	to determine precisely what 	the 	rules 	were with
respect 	to 	receiving 	service 	credit 	for 	step placement 	purposes.
It 	was 	not until 	the 	fall 	of 	1991 	that 	Freschi 	learned for the
first 	time of 	the Step 7 	limit 	in the 	contract. 	Her June 27,
1991, 	letter 	to Rumford 	raises 	only her 	concern that 	she may have
been denied 	credit 	for prior work experience; 	it 	does 	not 	address
the 	larger step placement 	issues 	raised here. 	Also, 	Freschi's
complaint 	about 	Stetson's 	placement 	was 	not 	generated by a belief
80

that 	the 	District 	had either violated 	the 	contract 	or
unilaterally 	implemented a policy of placing 	former managers. 	It
was 	due 	to her belief, 	based on mere assumptions 	and possibly
motivated by her negative 	feelings 	about 	Stetson, 	that 	Stetson
had received preferential 	treatment. 	In sum, 	it 	appears 	that
Freschi 	had 	no 	understanding 	that 	her 	own placement 	may have 	been
accomplished 	in violation of bargaining 	rights 	under EERA; 	it was
only after 	the 	instant unfair practice 	charge was 	filed 	that
Freschi 	began 	to develop 	this 	understanding.19
Based on this 	record, 	it 	is 	concluded that 	Freschi's
knowledge 	concerning her 	step placement, 	and 	the 	step placements
of Stetson and Gaiz, 	even if 	imputed to UPM, 	was 	insufficient 	to
put 	UPM on notice 	that 	the 	District 	had 	implemented 	a policy 	for
placing 	former managers 	on 	the 	certificated 	salary 	schedule. 	It
bears 	repeating that assumptions, 	like 	"conjecture or rumor," 	do
not 	constitute 	the kind of notice 	contemplated by the Act. 	(See
Regents 	of 	the University of California, 	supra, 	PERB Decision No.
359-H.)
In any event, 	the statute of 	limitations begins 	to run when
the 	charging party has actual 	or 	constructive notice 	of 	the
respondent's 	"clear 	intent 	to 	implement 	a unilateral 	change 	in
19Assuming 	Freschi 	knew of 	the 	criteria used 	to 	grant 	credit
to 	former managers, 	it 	cannot be overlooked here 	that 	Freschi
benefitted 	from 	the 	District's 	unilaterally 	implemented placement
policy. 	Thus, 	to the extent 	Freschi was 	aware 	that 	she had been
awarded 	service 	credit 	for placement 	on 	the 	certificated 	salary
schedule 	in derogation of UPM's bargaining 	rights under EERA, 	it
is 	questionable whether she would report 	the 	specifics 	about 	her
placement 	to UPM. 	In this 	context, 	it 	is not 	reasonable to
impute any knowledge 	she might 	have had to UPM.
81

policy, 	providing 	that nothing 	subsequent 	to 	that 	date 	evinces 	a
wavering of 	that 	intent." 	(The Regents 	of 	the University of
California, 	supra. 	PERB Decision No. 	826-H, 	p. 	7.) 	In this case
it 	has been 	found 	that UPM did not 	have actual 	or constructive
notice 	in June 	1991 	of a 	"clear" 	District 	step placement policy
for former managers. 	In fact, 	it appears 	that 	the District
itself 	did not 	have 	a 	coherent understanding 	of 	its 	practices 	at
the time Lansing, 	on June 27, 	1991, 	requested a copy of the
criteria used 	to place 	former managers 	on 	the 	certificated 	salary
schedule; 	it 	took the District until October 4, 	1991, 	to finally
gather and produce 	the 	guidelines.20 As more 	fully explained
below, 	it was not until 	the discussions and events 	subsequent 	to
the October 4, 	1991, 	receipt 	of 	the guidelines 	that UPM fully
learned of 	the 	changes which are 	challenged here. 	This 	was 	well
within the 	statute 	of 	limitations period.
Did 	the District 	unlawfully 	refuse 	to 	negotiate 	about 	step
placement 	guidelines 	in the 	fall 	of 	1991?
As 	an 	independent violation, 	UPM alleges 	that 	the District,
from October 	1991 	to 	February 	1992, 	unlawfully refused to
negotiate about 	the step placement guidelines. 	The District, 	in
response, 	contends 	that 	it had no obligation to negotiate with
UPM about 	step placement 	criteria 	for 	former managers. 	The
20In September 1991, 	Lansing 	testified, 	Miller told him the
policies 	were 	"scattered all 	over the place" 	and thus 	the
District 	needed time 	to 	collect 	them. 	On another occasion,
Miller 	told Lansing 	that 	practices 	in 	the personnel 	office were
"unclear." 	According 	to Lansing, 	Miller 	said 	"something 	to 	the
effect 	that 	how you were placed depended on 	the 	day 	of 	the 	week
and who you 	talked to 	in the personnel 	office."
82

- -
District 	argues 	that 	the 	topic was 	not 	within the 	scope 	of
representation, 	the guidelines 	represented no change, 	and, 	even
if 	the guidelines were within the 	scope 	of 	representation, 	the
contract 	contained a 	zipper 	clause which 	relieved 	the District 	of
its 	obligation to negotiate.
On June 27, 	1991, 	Lansing asked Rumford for the District's
criteria 	for placing managers 	on 	the 	certificated 	salary-
schedule, 	but 	the District 	did not 	give UPM a 	copy of 	Lowney's
guidelines until 	October 4, 	1991. 	The 	content 	of Lowney's
guidelines prompted a 	request by UPM on October 	10 	to negotiate.
At 	the 	time, 	the parties were engaged in limited reopener
negotiations.
In view of 	the 	zipper clause 	contained 	in Article XXII 	of
the collective bargaining agreement 	(see fn. 	31, 	p. 	57, 	supra).
the District 	ordinarily would have 	no 	obligation 	to 	engage 	in
negotiations 	about 	salary step placement 	of 	former managers.
However, 	it 	is well 	established that while a 	zipper 	clause may
relieve 	the 	employer 	from entertaining union proposals 	during 	the
life of 	the 	contract, 	it does not 	cede 	to the employer the 	right
to make unilateral 	changes 	in negotiable matters 	not 	covered 	the
contract. 	(Los Angeles 	Community College District 	(1982) 	PERB
Decision No. 	252, 	p. 	11; 	Los Rios Community College District
(1988) 	PERB Decision No. 	684, 	pp. 	12-13; 	Eastside Union School
District 	(1992) 	PERB Decision No. 	937.)
In this 	case, 	it has been found that 	the 	contract did not
cover the step placement 	of 	former managers. 	The District, 	over
83

a period 	of 	several 	years, 	unilaterally adopted a policy 	for 	the
placement 	of 	former managers 	on 	the 	certificated 	salary 	schedule,
and it was 	not 	until 	October 1991 	that UPM was 	finally given a
definitive 	statement 	of 	some 	of 	these 	changes and began to 	learn
the extent 	of 	the overall policy. 	Under these circumstances, 	the
zipper 	clause provides 	no defense 	to 	the District's 	refusal 	to
negotiate 	in the 	fall 	of 	1991.
The District 	argues 	that 	the 	guidelines 	were merely a
codification of past practices, 	and merely 	reducing 	these
practices 	to writing did not 	impose 	an 	obligation 	to 	negotiate.
The 	rules 	reflected 	in the 	express 	language 	of 	the 	guidelines 	and
the 	rules 	derived 	from the District's 	interpretation 	of 	the
guidelines may have 	represented the District's 	view of 	past
practice. 	But, 	as discussed elsewhere 	in this proposed decision,
the 	evidence 	indicates 	that 	UPM was 	never 	informed 	of many
practices which 	the District 	had employed over the years, 	and,
beginning with the meetings 	in October 1991, 	it became apparent
that 	the District's 	practice 	of placing 	former managers 	on the
certificated 	salary 	schedule 	either varied 	from 	the 	past 	practice
as UPM understood it 	or contained entirely new rules. 	Thus, 	UPM
correctly 	concluded 	that 	those parts 	of 	the 	guidelines 	covering
step placement 	of 	former managers were negotiable. 	(See Miller
Brewing Company v. 	NLRB 	(9th Cir. 	1969) 	408 	F.2d 12 	[70 LRRM
2907] . )
During 	the 	course 	of 	the 	negotiations 	from October 	1991
through February 	1992, 	the District 	agreed to discuss many of 	the
84

issues 	surrounding 	the placement 	of 	former managers 	on 	the
certificated salary schedule, 	but 	it 	is undisputed that at 	all
times 	throughout 	this 	proceeding 	the District 	has 	adhered 	to 	its
position 	that 	the 	general 	topic was 	not 	negotiable 	under 	EERA.
Loughlin 	feared negotiations 	would 	trigger 	legal 	action 	against
the 	District 	by 	former managers 	who 	had already been placed 	on
the 	certificated salary 	schedule, 	and he 	claimed that 	the
District 	had a managerial 	prerogative 	to 	set 	the 	terms 	and
conditions 	of 	employment 	for managers. 	The District 	has
maintained 	this 	position 	throughout 	these proceedings.
The District 	nevertheless 	argues 	that 	it negotiated 	in good
faith and 	it 	was 	only after the parties 	reached 	impasse 	that 	the
negotiations 	ended. 	While 	the 	obligation 	to negotiate 	in good
faith does 	not 	carry 	the 	obligation to 	reach a 	final 	agreement,
it does 	require a sincere 	effort. 	(See San Mateo Community
College District, 	supra, 	PERB Decision No. 	94, 	pp. 	18-19.) 	The
placement 	of 	former managers 	on 	the 	certificated 	salary 	schedule
is 	a negotiable 	topic under EERA, 	and the District was 	required
to negotiate 	in good 	faith about 	those parts 	of 	the guidelines
and 	other aspects 	of 	District 	practice 	which governed 	such
placements. 	By its 	conduct 	in this 	case, 	the District has not
engaged 	in 	the 	kind 	of 	good 	faith 	give 	and 	take 	contemplated by
the Act. 	There 	can be no genuine 	impasse where 	the 	negotiations
have 	stalled as 	a 	result 	of 	bad 	faith negotiations. 	(See 	e.g.,
Oakland Unified School District 	(1983) 	PERB Decision No. 	326, 	p.
43, 	fn. 	18; 	Temple City Unified School District 	(1990) 	PERB
85

Decision No. 	841.) 	Therefore, 	it 	is concluded that the District
breached 	its 	obligation 	to 	negotiate 	in good 	faith.
Did 	the 	District 	bypass 	UPM and unlawfully deal 	directly with
retreating managers 	regarding 	their 	salary 	step 	placement 	upon
joining 	the 	faculty?
As 	an 	independent violation, 	UPM alleges 	that 	the District
unlawfully bypassed 	the 	exclusive 	representative 	and 	dealt.
directly with 	former managers. 	The District, 	on the 	other hand,
argues 	that 	the 	record evidence 	does 	not 	support 	the 	claim of
direct 	dealing 	and private 	agreements.
It 	is 	well 	established 	that 	negotiating 	directly with a
bargaining unit 	employee 	to 	change 	existing 	terms 	and 	conditions
of 	employment 	is 	a violation of 	EERA. 	(Lake Elsinore School
District 	(1987) 	PERB Decision No. 	646, 	pp. 	6-8, 	adopting decision
of administrative law judge at 9 PERC Para. 	16175, 	p. 	737.) 	In
order 	to prove 	that 	an employer has 	unlawfully bypassed 	the
exclusive 	representative 	by 	"negotiating" 	directly with unit
employees, 	it must be demonstrated that 	the District 	sought
either to 	create 	a new policy of 	general 	application or 	to 	obtain
a waiver 	or modification 	of 	existing policy applicable 	to 	such
employees. 	(Ibid; 	Walnut Valley Unified School District 	(19 81)
PERB Decision No. 	160.) 	The evidence 	surrounding the 	step
placement 	of 	the 	former managers 	at 	issue here 	supports 	the
District's 	argument 	that 	no unlawful 	bypass 	of 	UPM has 	occurred
with 	respect 	to 	these managers.
Douglass wrote a July 27, 	1988, 	memo to Miller requesting
reassignment 	to a 	teaching position, 	and Miller approved the
86

request. 	But 	the 	letter said nothing about 	step placement, 	and
Douglass 	placed no 	conditions 	on her 	reassignment. 	On two
occasions 	Gaiz 	briefly discussed his 	placement 	with Moffett 	and
supplied her with relevant 	information, 	but he did not 	condition
his 	return 	to 	the 	faculty on any particular 	step placement.
Moffett 	advised Yaryan how to draft 	and present 	her June 	2, 	1987,
request 	seeking 	credit 	for 	certain experience, 	but Moffett 	did
not 	advise Yaryan as 	to the 	content 	of 	the 	letter. 	The 	request
was 	then 	sent 	to Lowney, 	and credit 	granted 	in accordance with
Yaryan's 	request. 	Yaryan had a 	long series 	of 	discussions with
Lowney, 	but 	it 	is unclear how many of 	these, 	if any, 	involved
salary step placement. 	Nor does 	the 	evidence 	support 	the
conclusion that Miller, 	McLevie 	or Lowney had the kind of
discussions 	with District 	representatives 	which 	determined 	their
step placement 	and 	thus 	constituted unlawful 	direct 	dealing.
Stetson's 	contacts with Moffett and her April 28, 	1991, 	letter to
Miller 	similarly did not 	cross 	the 	line 	into 	direct 	dealing.
While 	Stetson's 	letter to Miller 	indicates 	that 	she viewed
adjustments 	in her step placement as negotiable, 	in reality her
placement was 	the 	result 	of 	the unlawful 	unilateral 	action by the
District, 	not 	any negotiations which went 	on between Stetson and
Moffett 	or Miller.
It appears 	that 	in none of 	these 	cases 	do 	the 	indices 	of
negotiations 	exist. 	Like Freschi's 	step placement 	in 1987,21
21Although 	there 	are many 	similarities 	between 	the 	step
placement 	of 	Freschi 	in 19 87 and the 	former mangers 	discussed
immediately above, 	the Charging 	Party does 	not 	argue 	that
87

these 	former managers 	did not 	engage 	in 	lengthy discussions,
explore 	respective positions, 	exchange proposals 	in seeking a
particular 	step placement, 	or 	otherwise 	attempt 	to 	reach mutual
agreement 	on 	criteria used 	for step placement. 	Inquiries 	were
definitely made, 	and 	individuals were placed on 	the 	certificated
salary schedule pursuant 	to District 	commitments. 	However,
because of 	the nature of 	these 	inquiries, 	I view these 	step
placements 	as more akin 	to by-products 	of 	the underlying
unilateral 	change 	in a negotiable 	topic 	than the product 	of
unlawful 	direct 	dealing 	itself. 	Although 	the 	creation of 	the
practice 	under which 	the 	step placements 	were made 	breached 	the
obligation to negotiate under EERA, 	it does not 	follow
automatically 	that 	the 	step placements 	of 	the 	above mentioned
individuals 	constitute 	independent violations 	of 	the Act.22
Freschi's 	step 	placement 	unlawfully bypassed UPM.
Therefore, 	it 	is 	concluded that the District, 	by the above-
described 	communications 	with 	former managers, 	did not 	engage 	in
the kind of 	direct 	dealing prohibited by the Act. 	(See Lake
22Loughlin's 	comments 	during negotiations 	that 	commitments
were given 	to 	former managers 	do not 	alter this 	conclusion.
Loughlin 	(and Miller) 	were 	concerned about 	the possibility of
lawsuits 	against 	the District 	if 	the 	step placements 	were
disturbed. 	Since withdrawing a 	step placement which has 	already
been 	conferred may 	indeed give 	rise 	to 	a 	legal 	claim against 	the
District, 	concerns 	about potential 	litigation may have been well
founded; 	but 	that 	does not necessarily mean that 	the District 	has
unlawfully bypassed UPM. 	Only 	commitments 	based 	on unlawful
direct dealing violate EERA. 	As 	discussed above, 	the
communications 	between District 	representatives 	and 	former
managers 	did not 	constitute 	direct 	dealing. 	And 	since 	Loughlin
had no 	first 	hand knowledge 	of 	the 	individual 	step placements,
his 	testimony about 	these managers 	does 	not 	carry great weight.
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Elsinore School District, 	supra; 	Walnut Valley Unified School
District. 	supra.)
Did 	the District 	unlawfully adopt 	a policy which provided 	for
payment 	to managers 	for 	teaching?
UPM argues 	that 	the 	District 	breached 	its 	obligation 	to
negotiate 	in 	good 	faith when 	it 	unilaterally 	implemented a policy
paying managers 	to 	teach. 	The District 	first 	defends 	on 	the
ground that 	this 	allegation is 	time-barred. 	Assuming 	the 	charge
was 	timely filed, 	the District 	continues, 	the payment 	of managers
to teach is not negotiable under the Act, 	and even if 	it were
negotiable 	there has been no 	change 	in terms 	and 	conditions 	of
employment 	which would 	require 	negotiations.
The 	board agenda 	items 	and meeting notices 	for November 	9,
19 88, 	and December 6, 	19 88, 	and the minutes for the December 6,
1988, 	meeting were distributed 	to 	then UPM President 	Tara
Flandreau. 	Flandreau also 	received 	the 	board packet 	on October
10, 	1989. 	Unlike 	the board documents 	concerning step placement
of 	former managers, 	all 	of 	these documents 	contain express
language 	announcing 	that 	managers 	would be paid 	for 	teaching.
Although 	Flandreau 	recalled receiving 	these 	documents, 	she 	could
not 	recall 	that 	they 	contained 	specific 	reference 	to manager pay
for teaching. 	This 	testimony, 	however, 	does not overcome the
actual 	notice 	rule 	found 	in PERB 	case 	law.
An agenda 	item will 	suffice 	for notice purposes 	if 	it 	is
presented 	to 	a proper 	official 	and presented 	in 	a manner
reasonably 	calculated 	to 	draw attention 	to 	the proposed 	change.
(Victor Valley Union High School District, 	supra, 	PERB Decision
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No. 	565.) 	Unlike 	the board items 	dealing with step placement 	of
former mangers, 	the board items announcing payment 	of managers
who 	teach were 	received by 	the 	UPM president 	and 	expressly
described the proposed change. 	Under these 	circumstances, 	it 	is
concluded 	that 	UPM had actual 	notice 	of 	the payment 	of 	managers
for teaching. 	Therefore, 	this allegation is 	time-barred.
Even if 	this 	allegation is not 	time-barred, 	the 	Charging
Party has 	not 	sustained 	its burden of 	proof. 	Negotiability
issues aside, 	in order to establish a violation here, 	UPM must
prove 	a 	change 	which has 	a generalized effect 	or 	continuing
impact 	on 	terms 	and 	conditions 	of 	employment 	of bargaining unit
employees. 	(Grant Joint Union High School District, 	supra, 	PERB
Decision No. 	196.) 	PERB will 	not presume 	such an effect 	as 	a
result 	of 	a unilateral 	change. 	The 	Charging 	Party has 	the burden
of proof 	that 	a 	change has 	occurred. 	(See 	Imperial 	Unified
School District 	(1990) 	PERB Decision No. 	825, 	p. 	9.) 	Based on
the 	record evidence 	in this 	case, 	it 	is 	concluded that UPM has
not met 	this burden.
The 	current 	contract 	between 	the 	parties 	provides 	that
. . .	
managers 	may 	teach no more 	than 	one 	credit 	class 	per year without
UPM approval. 	This provision has been 	in effect beginning with
the 	1984-87 	contract. 	Further, 	to comply with the 	so-called 	"50
percent" 	law, 	the parties have negotiated a 	side agreement which
provides 	that managers may teach in the 	credit program. 	Thus, 	by
permitting managers 	to 	teach, 	the District 	has 	not 	deviated 	from
its 	prior agreements 	with UPM.
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The 	question 	remains 	whether paying managers 	to 	teach at 	the
overload 	rate 	constitutes 	a 	change 	in a negotiable 	topic 	or
otherwise 	erodes 	the unit. 	Relying on PERB precedent, 	UPM argues
that 	managers 	may not 	perform bargaining 	unit 	work 	and 	the 	role
of 	an exclusive 	representative 	is 	to preserve unit work. 	(See
Rialto Unified School District 	(1982) 	PERB Decision No. 	209;
Mount 	San Antonio Community College District 	(1983) 	PERB Decision
No. 	334.) 	UPM further asserts 	in 	its brief 	that 	the quid pro quo
for managers 	being 	allowed 	to 	teach was 	that 	their 	teaching be
limited 	in amount 	and unpaid. 	The 	arguments 	are 	not 	convincing
for 	the 	following 	reasons.
The 	record does 	not 	support 	the 	claim that 	the 	quid pro 	quo
for allowing managers 	to 	teach was 	that 	teaching be 	limited and
without 	compensation. 	In fact, 	the 	record 	indicates 	that payment
to managers 	for teaching was 	never discussed by the parties.
In addition, 	UPM argues, 	the union agreed that 	only a small
amount 	of 	unit 	work 	could be performed by managers. 	By paying
mangers 	to teach, 	UPM contends, 	the District 	increased the
incentive 	to 	teach and 	thereby 	changed 	the 	status 	quo and
displaced more unit 	personnel.
As UPM points 	out, 	an 	increase 	in the 	quantity and kind of
unit 	work 	removed 	from the 	unit 	may 	result 	in an unlawful 	refusal
to negotiate. 	(See Oakland Unified School District 	(1983) 	PERB
Decision No. 	367.) 	However, 	that 	is not what happened here. 	The
agreement between 	the parties permits 	a manager, 	even without UPM
approval, 	to teach one course per year. 	From 1988 	to 1991, 	only
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approximately ten managers 	taught 	courses. 	While 	financial
incentives may 	theoretically 	tend 	to 	increase 	the 	number 	of
courses 	taught by managers, 	thus 	displacing 	increasing amounts 	of
unit work, 	that 	has 	not 	occurred. 	Lowney testified that 	there
was 	an 	increase 	in only 	"two 	or three" 	courses 	from the number of
courses 	taught by managers 	in the past. 	Since 	the number of
courses 	taught 	by managers 	presumably 	fluctuates 	from year 	to
year, 	it 	cannot be 	concluded that 	an increase 	in two or three
courses 	constitutes 	the 	kind of 	change 	in the 	status 	quo which
calls 	for negotiations under the Act. 	The dynamic 	status 	quo
against 	which the District's 	conduct 	is 	to be 	evaluated must 	take
into account 	the 	regular and 	consistent 	past 	patterns 	of 	changes
in 	the 	conditions 	of 	employment. 	(Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51.) 	Measured against this
standard, 	the minimal 	increase 	of 	two or three 	courses which
followed 	the 	District's 	decision 	to pay managers 	to 	teach did not
mandate 	negotiations 	under Board 	law.
REMEDY
Under EERA, 	the Board has 	the 	authority to 	issue a decision
and 	order 	directing 	an offending party 	to 	cease 	and desist 	from
the 	unfair practice 	and 	to 	take 	such affirmative 	action as 	will
effectuate 	the purposes 	of 	the Act. 	(Section 3541.5(c).)
In this 	case 	it 	has been 	found 	that 	the District
unilaterally 	implemented a policy 	of 	placing 	former managers 	on
the 	certificated salary schedule, 	a negotiable 	topic under the
EERA, 	and later refused UPM's 	request 	to negotiate. 	This 	conduct
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violated section 3543.5(c) 	and 	(b). 	There being no evidence 	that
individual 	rights were violated, 	the 3543.5(a) 	allegation is
dismissed. 	(Tahoe-Truckee Unified School District 	(1988) 	PERB
Decision No. 	668.)
It 	is 	therefore 	appropriate 	to 	order the District 	to 	cease
and desist 	from this unlawful 	conduct. 	Specifically, 	the
District 	will 	be 	ordered 	to 	cease 	and desist 	from the unilateral
implementation 	of 	its 	policy 	of 	placing 	former managers 	on 	the
certificated salary schedule. 	In the 	future, 	if 	the District
seeks 	to place 	former managers 	on 	the 	certificated 	salary
schedule, 	it must 	give UPM notice and an opportunity 	to
negotiate.
The 	Charging 	Party also argues 	for the 	recision, 	upon UPM
request, 	of the step placements of Gaiz, 	Stetson, 	Freschi,
Lowney, 	Yaryan, 	McLevie and Miller. 	The 	recision of 	these step
placements 	would 	result 	in 	substantial 	loss 	of 	income by 	the
named employees. 	While 	there 	are no 	PERB 	cases 	which directly
control 	the 	remedial 	question presented by UPM's 	request, 	the
limited precedent which does 	exist 	indicates 	that 	the Board has
rejected 	traditional 	status 	quo ante 	remedies 	which 	result 	in
loss 	of 	income 	or 	repayment 	of money 	received in derogation 	of
negotiating 	rights 	under 	the Act, 	reasoning 	that 	such a 	remedy
would not 	"effectuate 	the purposes 	of 	the 	EERA." 	(See 	e.g.,
Nevada Joint Union High School District 	(1985) 	PERB Decision No.
557; 	Cajon Valley Union School District 	(1989) 	PERB Decision No.
766.) 	The same reasoning is applicable here. 	Therefore, 	the
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District 	will 	not 	be 	ordered 	to 	rescind 	the 	step placement 	of 	the
former managers 	at 	issue here, 	nor will 	the 	former managers be
ordered 	to 	repay any money 	received as 	a 	result 	of 	the 	District's
unlawful 	action.
The 	remaining allegations 	in the 	complaint, 	as amended, 	in
Case No. 	SF-CE-1524 	are hereby dismissed.
It 	is 	also appropriate 	that 	the District be 	required 	to post
a notice 	incorporating 	the 	terms 	of 	the 	order. 	The Notice 	should
be 	subscribed by an authorized agent 	of 	the District,
indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	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
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
purposes 	of 	EERA that 	employees be 	informed of 	the 	resolution of
the 	controversy and will 	announce 	the 	District's 	readiness 	to
comply with 	the 	ordered remedy. 	(Davis 	Unified School 	District,
et al. 	(1980) 	PERB Decision No. 	116; 	see also Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings of 	fact, 	conclusions 	of 	law, 	and
the 	entire 	record 	in this 	case, 	and pursuant 	to 	the Educational
Employment Relations Act 	(Act) 	Government Code section 3541.5 (c),
it 	is 	hereby ordered 	that 	the Marin Community College District
(District) 	and its 	representatives 	shall:
. . .
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A. 	CEASE AND DESIST FROM:
1. 	Taking unilateral 	action and 	failing and 	refusing
to negotiate 	in good 	faith with the United 	Professors 	of Marin,
Local 1610, 	CFT/AFT, AFL-CIO 	(UPM), 	exclusive representative of
the District's 	certificated employees, 	about 	the 	step placement
of 	former managers 	on 	the 	negotiated 	certificated 	salary
schedule.
2. 	By the same conduct, 	denying to UPM, 	rights
guaranteed by 	the Act, 	including 	the 	right 	to 	represent 	its
members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Upon request, 	meet 	and negotiate with UPM about any
future 	decision 	to place 	former managers 	on 	the 	negotiated
certificated 	salary 	schedule.
2. 	Within ten 	(10) 	workdays 	of 	service of a final
decision 	in this matter, 	notify the 	San 	Francisco Regional
Director of 	the Public Employment Relations Board, 	in writing, 	of
the 	steps 	the 	employer has 	taken to 	comply with 	the 	terms 	of 	this
Order. 	Continue 	to 	report 	in writing 	to 	the 	Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the Regional
Director 	shall 	be 	served 	concurrently 	on 	the 	Charging 	Party.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within
20 	days 	of 	service of 	this Decision. 	In accordance with PERB
95

Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 	00.) 	A 	document 	is 	considered 	"filed" 	when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on 	the
last day set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified 	or Express 	United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; Code Civ. Proc. sec. 	1013 shall
apply.) 	Any 	statement 	of 	exceptions 	and 	supporting brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party or filed with the Board itself. 	(See Cal. 	Code 	of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Fred D Orazio
Administrative Law Judge
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