Anaheim Union High School District (PERB 0177E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANAHEIM SECONDARY TEACHERS
ASSOCIATION, CTA/NEA,
Charging Party, Case No. LA-CE-116

Ve PERB Decision No. 177
ANAHEIM UNION HIGH SCHOOL DISTRICT, October 28, 1981

Respondent.

ee et et ee et ee ee ee ee

Appearances: Paul Crost, Attorney (Reich, Addell, Crost, &
Perry) for Anaheim Secondary Teachers Association, CTA/NEA;
Kyle D. Brown, Attorney (Hill, Farrer & Burrill) for Anaheim
Union High School District.

Before Giuck, Chairperson; Jaeger, Moore, and Tovar, Members.
DECISION

The Anaheim Union High School District (hereafter District)
excepts to a hearing officer's proposed finding that released
time is a subject of mandatory negotiations and that the
District may not pass the cost of compensated released time on
to the exclusive representative, the Anaheim Secondary Teachers
Association (hereafter ASTA).

PACTS

The facts are stipulated to by the parties. The
Association charged that the District violated
sections 3543.5(a), (b) and (c) of the Educational Employment

Relations Act (hereafter EERA) ,1 alleging that the District

lall statutory references are to the California

had
	initially
	restricted
	released
	time
	to
	hours
	outside 	of
	the
instructional
	workday.
	The
	District
	applied
	this
	policy 	to
provide
	released
	time
	without
	compensation.
	A
second
	policy,
unilaterally
	adopted 	June 	29,
	1977,
	provided
	a 	maximum
	of
12
	days'
	released
	time
	without
	loss
	of
	compensation
	for
7
	employee
	negotiators.
	However,
	this
	policy
	also
	included
	a
provision
	passing
	on
	the
	released-time 	costs
	by
	requiring
	the
exclusive
	representative
	to
	pay
	the
	District 	at
	the
	median
daily 	salary 	rate
	for
	unit
	employees. 	Throughout
	the
	period 	of
implementation 	of
	both
	employer
	policies,
	the
	employer
	refused
requests
	by
	the
	employee
	organization 	to
	meet
	and
	negotiate
over 	the
	subject
	of
	released
	time.
Government
	Code
	unless 	otherwise
	stated.
	EERA
	is
	codified
	at
section
	3540,
	et
	seq.
Section
	3543.5
	provides, 	in 	relevant
	part:
It
	shall
	be
	unlawful
	for 	public
	school
employer	
to:
a.
	Impose
	or
	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate
	or
	threaten 	todiscriminate 	against
	employees, 	or
	otherwise
to
	interfere
	with,
	restrain,
	or 	coerceemployees 	because
	of
	their 	exercise 	of
rights
	guaranteed
	by
	this 	chapter.
b.	
Deny
	to
	employee	
organizations 	rights
guaranteed 	to
	them 	by
	this	
chapter.
c.
	Refuse 	or
	fail
	to
	meet 	and	
negotiate 	in
good	
faith	
with 	an
	exclusive 	representative.
2

The
	hearing
	officer
	found
	that
	the
	District's
	initial
policy
	was
	not
	applied
	unreasonably
	because
	the
	stipulated
facts
	demonstrated
	that
	no
	burden
	was
	thereby 	placed
	on
	the
negotiating 	process.
	The
	ASTA
	did
	not 	except
	to
	the
	hearing
officer
1 s
	ruling
	as
	to
	this
	first
	District
	policy.
As
	to
	the
	second
	policy,
	the 	hearing
	officer
	found:
	that
there
	was 	no
	unlawful
	unilateral
	adoption 	of 	the
	policy
	because
the
	parties
	to 	negotiation
	must
	start
	from
	some
	released-time
base
	and
	that
	a
	school
	employer
	is
	free 	to
	establish
	the
threshold 	policy
	providing
	that
	it
	is
	reasonable;
	that,
thereafter,
	released
	time
	is
	subject 	to 	negotiations
	because
	of
the
	subject's 	relationship
	to
	hours
	and
	wages;
	that
	passing
	on
released-time 	costs
	to 	the
	exclusive
	representative
	is
prohibited
	by
	section 	3543.l(c) .2
DISCUSSION
Three
	issues 	are 	raised
	by
	this
	case:
	(1)
	is
	released
	time
a 	mandatory	
subject
	of
	negotiations;	
(2)	
if
	so,
	may
	the
employer
	unilaterally 	establish
	an
	initial
	released-time
policy,	
and 	(3)
	may
	an 	employer
	pass 	on	
its
	released-time 	costs
to	
the	
exclusive 	representative?
2section 	3543.l(c)
	states:
A
reasonable	
number
	of 	representatives	
of 	an
exclusive 	representative 	shall
	have 	the
right 	to 	receive 	reasonable 	periods 	of
released
	time 	without
	loss 	of
	compensationwhen 	meeting 	and	
negotiating	
and 	for 	the
processing 	of 	grievances.
3

Released 	Time 	is 	Within 	the 	Scope 	of 	Negotiations
The 	scope 	of 	representation 	set 	forth 	in 	section 	3543.2
does 	not 	include 	any 	specific 	reference 	to 	released 	time.3
However, 	in 	a 	series 	of 	cases 	dealing 	with 	the 	scope 	of
representation, 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	has 	held 	that 	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 	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
3section 	3543.2 	provides 	in 	relevant 	part:
The 	scope 	of 	representation 	shall 	be 	limited
to 	matters 	relating 	to 	wages, 	hours 	of
employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean 	health 	and 	welfare 	benefits
as 	defined 	by 	Section 	53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to
Section 	3546, 	procedures 	for 	processing
grievances 	pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7, 	and 	3548.8, 	and 	the 	layoff
of 	probationary 	certificated 	school 	district
employees, 	pursuant 	to 	Section 	44959.5 	of
the 	Education 	Code ..••
4

(including 	matters 	of 	fundamental 	policy) 	essential 	to 	the
achievement 	of 	the 	District's 	mission.4
Released 	time, 	though 	not 	specifically 	defined 	in 	EERA,
refers 	to 	time 	during 	an 	employee's 	workday 	during 	which 	the
employee 	is 	excused 	from 	work. 	In 	the 	context 	of
section 	3543.l(c), 	it 	is 	time 	during 	the 	workday 	during 	which
an 	employee 	is 	excused 	from 	work 	to 	participate 	in 	negotiations
and 	grievance 	processing. 	Further, 	pursuant 	to 	the 	Act's
requirement, 	the 	employee 	is 	to 	continue 	to 	receive 	full
compensation 	during 	reasonable 	periods 	of 	time 	excused 	from
work 	for 	these 	purposes.
The 	District's 	argument 	that 	released 	time 	is 	not 	related
to 	"hours" 	because 	the 	employees 	are 	not 	actually 	engaged 	in
school 	work 	during 	negotiations 	is 	rejected. 	This 	Board, 	in
accord 	with 	federal 	and 	state 	law 	elsewhere, 	has 	previously
found 	that 	nonworking 	hours 	during 	the 	workday 	may 	be 	within
scope.5 	The 	broad 	subject 	of 	scheduling 	hours 	during 	a
period 	or 	during 	the 	workday 	was 	found 	to 	be 	in 	scope 	in
Firefighters 	Union 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d 	608
4san 	Mateo 	City 	School 	District 	(5/20/80) 	PERB 	Decision
No. 	129;-JetfersonSchool 	Dis~(6/19/80) 	PERB 	Decision
No. 	133; 	Healdsburg 	Union 	High 	School 	District 	(6/19/80) 	PERB
Decision 	No. 	132. 	See 	also 	Palos 	Verdes 	Peninsula 	Unified
School 	District/Pleasant 	Valley 	School 	District 	(7/16/79) 	PERB
Decision 	No. 	96.
5palos 	Verdes 	Peninsula 	Unified 	School 	District/Pleasant
Valley 	School 	District, 	supra, 	and 	cases 	cited 	therein.
5

[116 	Cal. 	Rptr. 	507; 	87 	LRRM 	2453]. 	The 	United 	States 	Supreme
Court 	has 	interpreted 	federal 	labor 	policy 	under 	the 	National
Labor 	Relations 	Act 	(hereafter 	NLRA) 	to 	include 	within 	scope
nonworking 	time 	as 	it 	affects 	working 	hours.6
Clearly, 	the 	subject 	of 	released 	time 	is 	related 	to 	wages.
EERA 	itself 	requires 	that 	reasonable 	released 	time 	be 	granted
without 	loss 	of 	compensation. 	Wages 	may 	be 	paid 	for 	hours 	not
worked 	as 	well 	as 	for 	hours 	worked. 	Employees 	may 	be 	paid 	for
holidays, 	vacations, 	absence 	due 	to 	illness, 	rest 	periods 	and
the 	periods 	during 	which 	service 	on 	behalf 	of 	the 	employer 	is
not 	required 	or 	performed. 	Here, 	the 	amount 	of 	released 	time
without 	loss 	of 	compensation 	inherently 	affects 	the 	wages 	the
employees 	will 	receive 	for 	work 	just 	as 	the 	amount 	of 	released
time, 	irrespective 	of 	compensation, 	bears 	on 	the 	number 	of
hours 	employees 	will 	or 	will 	not 	perform 	work 	on 	behalf 	of 	the
ernployer.7
The 	District 	argues 	that 	released 	time 	is 	essentially 	an
administrative 	matter 	which 	does 	not 	involve 	issues 	of
substantial 	importance 	warranting 	negotiations. 	We 	find 	the
reverse 	to 	be 	true. 	That 	the 	Legislature 	considered 	the 	matter
of 	released 	time 	of 	great 	significance 	in 	the 	scheme 	of
6Amalgamated 	Meat 	Cutters 	v. 	Jewel 	Tea 	(1965) 	381 	U.S.
6 7 6 	[ 5 9 	LRRM 	2 3 76 ] •
?Accord 	Axelson, 	Inc. 	(1978) 	234 	NLRB 	No. 	49 	[97 	LRRM
1234] 	enf. 	(5th 	Cir. 	1979) 	599 	F.2nd 	91 	[101 	LRRM 	3007].
6

collective 	negotiations 	is 	evident 	from 	the 	very 	special
treatment 	accorded 	that 	subject 	in 	section 	3543.l(c), 	supra.
Section 	3540 	sets 	forth 	the 	overall 	statutory 	purposes.8
Aside 	from 	these 	purposes 	explicitly 	mentioned, 	the 	section
demonstrates 	the 	legislative 	belief 	that 	good-faith
negotiations--that 	is, 	the 	voluntary 	and 	mutual 	resolution 	of
employer/employee 	disputes--is 	the 	preferred 	means 	of
maintaining 	labor 	peace 	in 	the 	school 	system 	and 	protecting 	the
public 	interest 	in 	minimizing 	disruptions 	of 	the 	educational
process 	caused 	by 	employer/employee 	conflicts.
But, 	aside 	from 	these 	considerations, 	there 	is 	ample 	reason
for 	finding 	that 	the 	mediatory 	influence 	of 	negotiations 	is
best 	suited 	to 	the 	resolution 	of 	conflict 	over 	released 	time.
Underlying 	the 	statutory 	mandate 	of 	section 	3543.l(c), 	a
provision 	not 	found 	in 	the 	NLRA, 	is 	the 	intent 	that 	school
8section 	3540 	states, 	in 	part:
It 	is 	the 	purpose 	of 	this 	chapter 	to 	promote
the 	improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State 	of
California 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join 	organizations 	of 	their 	own
choice, 	to 	be 	represented 	by 	such
organizations 	in 	their 	professional 	and
employment 	relationships 	with 	public 	school
employers, 	to 	select 	one 	employee
organization 	as 	the 	exclusive 	representative
of 	the 	employees 	in 	an 	appropriate 	unit, 	and
to 	afford 	certificated 	employees 	a 	voice 	in
the 	formulation 	of 	educational 	policy ..•.
7

negotiations 	proceed 	expeditiously9 	and 	an 	acknowledgement
that 	such 	a 	result 	is 	more 	readily 	obtained 	if 	employees 	are
relieved 	from 	work 	for 	negotiations 	and 	are 	not 	required 	to
negotiate 	after 	the 	workday 	with 	a 	consequent 	undesirable
impact 	on 	their 	teaching 	duties.
It 	is 	essential 	to 	the 	negotiating 	scheme 	of 	things 	that
neither 	side 	be 	afforded, 	by 	law, 	dominance 	over 	the 	process,
thus 	negating 	the 	concept 	of 	mutuality 	and 	good 	faith.
Allowing 	the 	employer 	to 	unilaterally 	dictate 	the 	matter 	of
released 	time, 	including 	the 	number 	of 	employee 	negotiators,
amounts 	of 	compensation 	and 	scheduling 	of 	sessions, 	would 	give
to 	the 	employer 	precisely 	that 	objectionable 	form 	of
dominance. 	If 	released 	time 	were 	not 	negotiable, 	the 	only
statutory 	recourse 	available 	to 	employee 	negotiators 	would 	be
to 	file 	an 	unfair 	practice 	charge 	challenging 	the
"reasonableness" 	of 	the 	employer's 	unilateral 	determination.
We 	find 	such 	a 	procedure 	impractical 	and 	inherently
contradictory 	of 	the 	statutory 	goal 	of 	expeditious 	settlement.
9section 	3543.7 	states:
The 	duty 	to 	meet 	and 	negotiate 	in 	good 	faith
requires 	the 	parties 	to 	begin 	negotiations
prior 	to 	the 	adoption 	of 	the 	final 	budget
for 	the 	ensuing 	year 	sufficiently 	in 	advance
of 	such 	adoption 	date 	so 	that 	there 	is
adequate 	time 	for 	agreement 	to 	be 	reached,
or 	for 	the 	resolution 	of 	impasse.
8

Each 	negotiation, 	from 	presentation 	of 	initial 	proposals 	to
final 	settlement, 	has 	a 	tempo 	and 	rhythm 	of 	its 	own.
Typically, 	ground 	rules 	are 	first 	established--the 	time 	and
place 	for 	bargaining 	to 	start, 	the 	order 	of 	issues 	to 	be
discussed, 	the 	final 	settlement 	conditions 	that 	may 	be 	imposed,
questions 	of 	ratification 	and 	approval 	of 	school 	officials, 	and
a 	variety 	of 	similar 	procedural 	matters. 	There 	generally
follow 	sessions 	designed 	for 	the 	clarification 	of 	proposals, 	an
interval 	for 	their 	evaluation 	and 	preparation 	of 	responses.
Sessions 	on 	substantive 	matters 	may 	initially proceed 	at 	a
relatively 	leisurely 	pace. 	Gradually, 	issues 	are 	settled, 	at
least 	tentatively, 	or 	withdrawn 	and 	counterproposals 	go 	back.
and 	forth. 	Eventually, 	as 	the 	more 	difficult 	issues 	are 	faced,
sessions 	tend 	to 	become 	longer 	and 	more 	frequent. 	As 	the
"deadline" 	approaches, 	sessions 	may 	extend 	into 	the 	late 	night
or 	early morning 	hours 	and 	even 	nonworking 	days. 	"Crisis
bargaining" 	is 	not 	uncommon. 	To 	permit 	the 	employer 	to 	decide
at 	the 	outset 	how 	many 	hours 	or 	days 	will 	finally 	be 	required
and 	at 	what 	times 	negotiations 	shall 	take 	place 	and 	over 	what
duration 	per 	session 	is 	to 	apply 	an 	inherently 	unrealistic
formula 	to 	these 	arrangements 	and, 	by 	definition, 	to 	establish
an 	unreasonably 	inflexible 	and 	mechanistic 	policy.
Nor 	would 	it 	be 	feasible 	to 	permit 	the 	employer 	to 	assert 	a
new 	unilateral 	policy 	from 	day 	to 	day 	to 	accommodate 	these
fluid 	and 	unpredictable 	circumstances. 	Indeed, 	it 	would 	be 	to
9

invite 	a 	never-ending 	confrontation 	on 	procedural 	matters 	best
left 	to 	the 	mutual 	resolution 	by 	the 	parties 	who, 	in 	good
faith, 	are 	seeking 	to 	reach 	the 	earliest 	possible 	mutually
acceptable 	settlement 	of 	substantive 	differences.
PERB's 	conclusion 	that 	the 	determination 	of 	released 	time
is 	not 	a 	prerogative 	reserved 	to 	the 	employer 	and 	that
good-faith 	negotiations 	is 	a 	proper 	method 	for 	resolving
conflict 	on 	this 	subject 	is 	consistent 	with 	national 	labor
policy. 	In 	Borg-Warner 	Corp. 	(1972) 	198 	NLRB 	726 	[80 	LRRM
1790], 	the 	NLRB 	expressly 	disapproved 	an 	employer's 	refusal 	to
negotiate 	over 	bargaining 	ground 	rules, 	including 	time 	and
frequency 	of 	meetings 	and 	released 	time, 	and 	in 	St. 	Louis
Typographical 	Union 	(1964) 	149 	NLRB 	750 	at 	752 	[57 	LRRM 	1371]
the 	NLRB 	held 	that:
It 	is 	wholly 	consistent 	with 	the 	purposes 	of
the 	Act 	that 	the 	parties 	be 	allowed 	to
arrive 	at 	a 	resolution 	of 	their 	differences
on 	preliminary 	matters 	by 	the 	same 	methods
of 	compromise 	and 	accommodation 	as 	are 	used
in 	resolving 	equally 	difficult 	differences
relating 	to 	substantive 	terms 	or 	conditions
of 	employment.
Finally, 	the 	District's 	reliance 	on Magnolia 	School
District 	(6/27/77) 	EERelO 	Decision 	No. 	19 	is 	unavailing.
There, 	the 	Board 	expressly 	declined 	to 	reach 	the 	question 	of
lOprior 	to 	January 	1, 	1978, 	PERB 	was 	called 	the
Educational 	Employment 	Relations 	Board.
10

whether
	released
	time
	is
	within
	the
	scope
	of
	negotiations.
That
	issue
	was
	not
	raised
	by
	the
	parties.
The
	District
	further
	argues
	that 	section
	3543.l(c) 	provides
a
	specific
	exemption
	from
	the 	duty 	to
	negotiate.
	According
	to
the
	District,
	the
	explicit
	obligation
	imposed 	on 	an
	employer
would
	be
	unnecessary
	if
	negotiability
	were
	intended.
Section
	3543.2,
	supra, 	expressly 	places
	certain 	subjects
outside
	the
	scope
	of
	obligatory 	negotiations.
	Released 	time
	is
not 	included
	among
	these
	matters.
	It
	is
	therefore
	impossible
to 	find 	the
	specific
	exemption
	the
	District
	urges.
We
	do
	find 	in
	section
	3543.l(c)
	that
	the
	Legislature
considered 	the 	matter 	of
	released
	time
	too 	important 	to 	the
statutory
	scheme
	to
	be
	left
	either
	to 	the 	employer's
	discretion
or
	entirely
	to
	the
	vagaries 	of
	negotiations.
	Therefore,
	a
minimum
	released-time 	standard
	was
	established,
	and
	thus,
	in
effect,
	a
	standard 	against
	which
	the
	parties'
	good
	faith
	in
negotiating
	on
	the
	subject
	could
	be
	measured.
The
	Initial
	Released-Time
	Policy
We
	disagree
	with 	the 	hearing
	officer's
	conclusion
	that
	an
employer
	is 	entitled
	to
	establish
	the
	initial
	released-time
policy
	because
	negotiations
	have
	to
	start
	from
	some
	base.
First,
	there
	is
	no
	legal 	basis 	for 	distinguishing
negotiations
	on 	ground
	rules
	from
	negotiations
	on
	substantive
issues.
	The
	duty 	to 	bargain
	means
	just 	that.
	The
	employer's
position
	on 	procedural 	issues,
	as
	its
	position
	on 	wages, 	hours
11

or
	terms
	and
	conditions
	of
	employment,
	is
	to
	be
	expressed
through
	its
	own
	proposals
	or
	counterproposals.
Second,
	the
	realities
	of
	negotiations 	eliminates
	the
	need
for 	the
	arbitrary
	and
	artificial
	distinction
	the 	hearing
officer
	has
	made.
	For
	example,
	at
	some
	time
	after
	proposals
are 	readied
	for
	meet 	and
	confer
	sessions,
	the
	parties
	must
agree
	on
	that
	first
	meeting
	date. 	Certainly,
	the
	employer
cannot
	insist
	to 	the
	exclusion 	of 	the
	union's 	position
	that
	the
first
	meeting 	occur
	on 	a
	certain
	date
	and
	at
	a
	certain
	hour.
That 	arrangement
	is
	mutually 	determined
	whether
	by
	letter,
telephone 	or 	face
	to
	face
	over
	the 	legendary
	martini.
	At
	the
same
	time
	and
	in 	the
	same
	manner, 	agreement
	on
	released
	time
for
	that
	initial
	meeting
	is
	accomplished.
	Agreement 	on
succeeding
	sessions
	may
	also
	be
	reached
	at 	this
	time, 	although
the
	parties
	may
	continuously
	adjust 	their
	arrangements 	with
respect 	to
	frequency
	and
	duration 	of 	sessions 	to
	accommodate
the 	changing
	circumstances 	of
	negotiations
	as 	they
	proceed.
In
	short,
	there
	is
	nothing 	in 	the 	process 	of
	"getting
together" 	to
	start
	negotiation 	that 	requires
	the
	artificial
division
	of
	a
	negotiable 	matter 	into 	negotiable
	and
non-negotiable
	components.
The
	Pass-on 	of
	Released-Time 	Costs
The
	District
	argues
	that 	released-time 	costs
	may 	be
	passed
along 	for 	reimbursement
	by
	the 	exclusive 	representative
	because
section 	3543.l(c) 	does 	not 	expressly 	prohibit
	such 	pass-on,
12

that
	the
	employee
	representatives
	are
	not
	actually
	losing
compensation,
	and
	that
	the
	ultimate
	test
	for 	the
	reasonableness
of 	the 	pass-on
	rule
	is
	whether
	it
	imposes
	a
	burden
	on
negotiations.
The
	argument
	that
	the
	statute
	fails
	to 	expressly
	prohibit
pass-ons
	is
	not
	persuasive.
	For
	that 	matter,
	the
	statute
	does
not
	expressly
	permit
	or 	contemplate
	cost
	assessment
	against
	the
employee
	organization.
	EERA's
	statutory 	structure
	clearly 	sets
forth
	an
	obligation
	upon
	the
	employer
	by
	requiring 	reasonable
periods
	of
	released
	time
	without
	loss
	of 	compensation.
	The
effect
	of 	the
	District's
	pass-on
	rule
	would 	be
	to
	recover 	with
the
	left
	hand 	from
	the
	employees
	the
	compensation
	the
	employer
is
	obligated 	to
	pay
	with
	its
	right
	hand. 	This
	is
	so
	because
the
	organization's
	funds
	are 	derived
	largely,
	and
	possibly
wholly,
	from 	membership
	dues.
	Thus,
	the 	employer's
	policy
	is
little
	short
	of
	an
	evasion 	of
	its
	statutory 	obligation
specifically	
and	
unequivocally
	imposed 	by
	the 	Act.
It
	hardly
	needs
	repeating 	here
	that
	by
	this 	negotiation
"tax" 	the 	very 	purposes	
of	
section 	3543.l(c)--the 	expeditious
settlement
	of
	contract 	issues,
	avoidance 	of 	procedural
advantage 	to
	one
	party
	over 	the
	other,
	and 	impairment
	of 	the
employee's 	opportunity 	to 	negotiate 	free 	of 	procedurally
induced
	anxieties,
	would 	be
	frustrated. 	Ironically, 	the
employer's 	policy
	would
	not 	only 	permit
	it
	to 	circumvent
	its
statutory 	obligation 	but 	would
	place
	on
	the 	employees, 	the
13

intended
	beneficiaries
	of
	section 	3543.l(c),
	the
	burden
	of
financing
	the 	employer's
	obligation.
	The
	District's
	policy
does
	not 	simply
	ignore 	the 	Act,
	it
	reverses
	its
	very 	meaning.
Conclusion
The
	Board
	therefore 	resolves
	the
	issues
	presented
	as
follows:
1.	
Released
	time
	is
	a
	subject
	on
	which
	the
	District 	is
obligated 	to 	negotiate 	in
	good
	faith;
2.	
The
	District
	may
	not
	impose
	a
	unilaterally
	determined
released-time 	policy
	for
	any
	negotiating 	session,
including 	the
	initial
	session
	or
	sessions.
3.	
The
	District
	may
	not
	unilaterally
	pass 	the
	cost 	of
released
	time
	on
	to 	the 	exclusive
	representative.
4.	
By
	refusing 	to 	negotiate
	over
	released
	time
	without
loss
	of
	compensation, 	the
	District
	violated
section
	3543.S(c)
	of 	the
	EERA
	and
	concurrently,
section
	3543.S(a)
	and
	(b)
	thereof.
	(See 	San
	Francisco
Community
	College
	District
	(10/12/79)
	PERB
	Decision
No.
	105.
	By
	attempting 	to 	pass 	the
	cost 	of 	released
time 	on
	to 	the 	exclusive 	representative,
	the
	District
violated 	sections
	3543.S(a)	
and 	(b)
	of	
the	
EERA.
ORDER
Upon
	the 	foregoing
	facts,
	conclusions 	of	
law 	and 	the	
entire
record 	in	
this 	case,
	it
	is	
hereby	
ORDERED	
that 	the
	Anaheim
Union 	High 	School
	District 	shall:
14

1. 	RESCIND 	its 	released 	time 	policy 	of 	June 	29, 	1977 	and
shall 	CEASE 	AND 	DESIST 	from 	refusing 	to 	negotiate 	in
good 	faith 	with 	the 	Anaheim 	Secondary 	Teachers
Association, 	CTA/NEA 	on 	the 	subject 	of 	released 	time
for 	employee 	organization 	representatives;
2. 	Post 	at 	all 	school 	sites 	where 	notices 	to 	employees
are 	customarily 	placed, 	within 	ten 	(10) 	workdays 	after
the 	issuance 	of 	this 	decision, 	copies 	of 	the 	attached
Notice. 	Such 	posting 	shall 	be 	maintained 	for 	a 	period
of 	thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	ensure 	that 	said 	Notices 	are 	not
altered, 	defaced 	or 	covered 	by 	other 	material.
3. 	Notify 	the 	Los 	Angeles 	Regional 	Director 	of 	the 	Public
Employment 	Relations 	Board, 	in 	writing, 	within 	twenty
(20) 	workdays 	from 	the 	date 	of 	this 	decision, 	of 	what
steps 	the 	District 	has 	taken 	to 	comply 	herewith.
This 	order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	upon 	the 	District.
luck, 	Chairperson 	J~ 	w. 	Jaeger, 	M~bel
Barbara 	D. 	Moore, 	Member
Member 	Tovar's 	concurrence 	begins 	on 	page 	16.
15

Member Tovar concurring:

I concur.

Irene Tovar, Member

16

Appendix: 	Notice
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
AN AGENCY 	OF 	THE 	STATE 	OF 	CALIFORNIA
Pursuant 	to 	a 	hearing 	in 	which 	all 	parties 	have 	had 	the
right 	to 	participate 	and 	the 	ORDER of 	the 	Public 	Employment
Relations 	Board, 	the 	Anaheim 	Union 	High 	School 	District 	will
cease 	and 	desist 	from 	refusing 	to 	meet 	and 	negotiate 	with 	the
Anaheim 	Secondary 	Teachers 	Association, 	CTA/NEA 	on 	the 	matter
of 	released 	time 	without 	loss 	of 	compensation 	for
representatives 	of 	the 	exclusive 	representative 	and 	hereby
rescinds 	its 	policy 	of 	passing 	on 	to 	the 	exclusive
representative 	the 	released-time 	costs 	incurred 	by 	the 	District.
Anaheim Union 	High 	School 	District
By: Authorized 	Agent
THIS 	IT 	MUST 	REMAIN 	POSTED FOR THIRTY
(30) 	DAYS 	FROM 	THE 	DATE 	OF 	POSTING AND 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR 	BY ANY MATERIAL.
1

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF 	THE
	STATE
	OF
	CALIFORNIA
ANAHEIM
	SECONDARY
	TEACHERS
ASSOCIATION,
	CTA/NEA,
Charging
	Party,
and
ANAHEIM UNION
	HIGH
	SCHOOL
	DISTRICT
Respondent.
)
)
)
)
)
)
)
,)
)
)
)
_________________
)
Case 	No. 	LA-CE-116
PROPOSED
	UNFAIR
PRACTICE
	DECISION
April
	10,
	1978
Appearances:	
Paul 	Crost, 	Attorney 	(Reich, 	Adell	
&	
Crost)
	for
Anaheim
	Secondary 	Teachers
	Association;
	Kyle
	D.
	Brown,
	Attorney
(Hill, 	Farrer	
&	
Burrill)
	for
	Anaheim Union 	High
	School
	District.
Before
	Bruce 	Barsook, 	Hearing
	Officer.
PROCEDURAL
	HISTORY
On
	May
	2, 	1977,
	the
	Anaheim
	Secondary 	Teachers
	Association,
CTA/NEA
	(hereinafter
	Association)
	filed 	unfair 	practice
	charge
LA-CE-116
	against 	the
	Anaheim Union 	High
	School
	District
(hereinafter
	District).
	On
	May
	18,
	1977,
	the
	District 	filed
its
	response 	to 	the 	unfair 	practice
	charge.
On
	July
	14, 	1977,
	the 	Association
	filed
	a
	first
	amended
unfair 	practice
	charge.
	The
	District 	filed
	its
	response 	on
August 	1, 	1977.
Following
	a
	joinder 	of 	the 	pleadings,
	an
	informal 	conference
was
	held.
	When
	the 	informal 	conference
	failed
	to 	resolve 	the
dispute, 	the 	parties 	entered 	into 	stipulations 	of 	facts 	regard-
ing 	the 	charges.
-1-

Unfair
	practice
	charge
	LA-CE-116
	alleges
	a
	violation 	of
Government
	Code
	Section 	3543.S(a),
1
(b) 	and
	(c)
2
in
	that
	the
District
	denied
	the 	Association
	and
	its
	members
	reasonable
released
	time
	as
	required
	by
	Section
	3543,l(c).
	It
	further
alleges
	that
	the
	District
	refused 	to
	meet 	and
	negotiate
	on
	the
subject 	of 	released
	time 	and
	then
	unilaterally
	promulgated
	a
released
	time
	policy,
	without
	meeting
	and
	negotiating,
	~·ms
unreasonable 	because
	it
	required
	reimbursement
	by
	the 	Association.
Such
	application 	of
	the
	District's
	released
	time
	policy, 	the
Association 	argues,
	frustrates
	the
	meet 	and
	negotiate
	process
and
	constitutes
	a
	bad
	faith 	effort
	to 	prolong 	the
	negotiating
process
	and
	to
	avoid 	reaching
	a
	mutually 	acceptable
	collective
negotiating
	agreement.
1
The
	Public
	Employment
	Relations
	Board
	(hereinafter
	PERB)
in
	San
	Die
	uito
	Union 	Hi
	h
	School
	District
	(EERB
	Decision
	No.
	22,
September
	, 	77
	at
	p.
	1
	tat
	in
	order 	to 	find
	a
violation 	of 	Section 	3543.S(a)
	it
	would 	have
	to 	conclude
	that:
The
	District's
	conduct
	was
	carried
	out 	with 	the
	intent
to
	interfere
	with 	the
	rights 	of
	the
	employees
	to
	choosean
	exclusive 	representative, 	or 	that
	the
	District's
conduct 	had
	the
	natural
	and
	probable
	consequence
	of
interfering
	with 	the
	employees
	exercise 	of 	their 	rights
to
	choose 	an
	exclusive 	representative, 	notwithstanding
the 	employer's
	intent 	or 	motivation.
There
	is
	no
	evidence
	indicating 	that 	there
	was
	an
	intent
	to
interfere
	with 	employees'
	rights 	nor
	is 	there 	evidence 	disclosing
	a
natural
	and
	probable 	consequence
	of 	interference 	with 	employees'
rights.
	Consequently,
	no
	violation 	of 	Section 	3543.S(a) 	has 	beenshown 	and
	this
	proposed 	decision 	shall 	address
	itself
	only 	to 	the
issues 	of 	possible 	section
	(b) 	and 	(c)
	violations.
2
All 	section 	references 	are 	to 	the 	Cal.
	Gov. 	Code
	unless
otherwise 	specified.
-2-

ISSUE
1.
	Did
	the
	District
	deny
	to 	the
	Association 	reasonable
	released
time
	for 	purposes
	of
	meeting
	and
	negotiating
	during 	the
	spring
1977
	negotiating 	sessions?
2.
	Did
	the
	District
	breach
	its
	duty
	to
	meet
	and
	negotiate 	in
good
	faith
	by:
(a)	
Refusing
	to
	meet
	and
	negotiate
	on
	the
	subject 	of
released
	time
	or,
(b)	
Unilaterally
	promulgating
	a
	released
	time
	policy
without
	meeting
	and
	negotiating
	with
	the 	Association?
3.
	Does
	the
	District's
	current 	released
	time
	policy 	contravene
the 	requirements
	of 	Section 	3543.l(c) 	in
	that
	the 	policy
	does
not
	grant 	released
	time
	without
	loss 	of
	compensation?
FINDINGS
	OF
	FACT
The
	stipulated 	facts
	may
	be
	sunrrnarized
	as 	follows:
The 	Anaheim Union 	High 	School
	District
	has 	an 	average
	daily
attendance
	(hereinafter
	ADA)
	of
	approximately 	34,000.
	Approximately
1,377
	teachers, 	nurses
	and
	librarians 	are 	in 	the 	Association's	
nego-
tiating 	unit.
On
	December 	21, 	1976,
	the 	Association
	was
	recognized
	by
	the
District
	as 	the 	exclusive 	representative 	of 	the 	regular
	and
part-time 	teachers, 	nurses 	and
	librarians.
-3-

The
	Association's 	negotiating
	team
was
	composed
	of
	one
	staff
employee
	of
	the
	As.sociation
	and
	four
	permanent
	teacher
	members
	and
one
	rotating
	member. 	The
	Association
	staff
	employee
	was
	the
spokesperson
	for
	the
	team.
Commencing
	on
	April
	12,
	1977, 	and
	continuing
	until
	June
	29,
1977,
	the
	parties
	met 	and
	negotiated
	11
	times.
	The
	last
	day
	of
the
	1976-77
	school
	year
	was
	June
	17,
	1977.
	The
	actual
	time
	spent
	in
negotiating 	sessions
	between
April
	12
	and
	June
	29 	was
	approximately
58
	hours
	of
	which
	approximately
	35
	1/2
	hours
	were
	prior
	to
	summer
recess.
Prior
	to 	April
	12,
	1977, 	and
	continuing
	thereafter,
	the
Association
	proposed
	holding
	negotiating
	meetings
	at
	times 	which
would
	have
	involved meeting 	during 	the 	school
	day
	for 	one-half 	or
full-day 	sessions.
	The
	Association
	"based
	its
	request 	for 	holding
negotiating
	meetings 	during
	class
	hours
	on
	both 	the
	Rodda
	Act 	and
existing
	board
	policy."
	Other 	than
	on
May 	31
	and
	June
	7, 	1977,
	the
board's 	representative
	did 	not 	agree 	to 	hold
	negotiating 	sessions
during 	the 	school
	day.
3
The
	board
	policy
	on
	released
	time
	in 	effect 	prior
	to 	June
	22,
1977 	was
	"adopted
	by
	the
	governing 	board
	on 	September 	11, 	1975
pursuant 	to 	the
	meet 	and
	confer 	process 	of 	the
	Winton
3 The
	parties 	also 	stipulated 	that:
''During 	the 	period 	1974-76, 	with 	the 	exception 	of
	2 	days
	of
meet 	and 	confer 	sessions
	and 	4 	days
	for 	grievance
	and
	arbitration
hearings, 	under
	District 	policy
	GCQDA
	16.8, 	the 	practice
	had 	been
to 	meet 	and 	confer 	during 	hours 	when
	classes 	were 	not 	in 	session."
-4-

Act." 4 The 	pertinent 	portion 	of 	this 	policy 	(GCQDA 	16.8) 	provides:
During 	the 	school 	year, 	the 	Board 	shall 	provide
each 	of 	the 	C.E.C. 's 	constituent 	organizations 	with
a 	maximum 	of 	one 	paid 	and 	released 	school 	day 	for
each 	10 	members 	in 	the 	constituent 	organization.
Membership 	shall 	be 	verified 	through 	the 	annual
C.E.C. 	Formation 	Report. 	Such 	paid 	and 	released
school 	days 	shall 	be 	used 	by 	the 	president 	and/or
authorized 	members 	of 	each 	organization 	for 	the
purpose 	of 	transacting 	official 	organization
business. 	Additional 	days 	may 	be 	used, 	provided
that 	the 	certificated 	employee 	organizations
utilizing 	such 	days 	agree 	to 	reimburse 	the 	Board
for 	the 	cost 	of 	such 	days. 	The 	Board 	may 	adopt
reasonable 	rules 	and 	regulations 	to 	implement 	this
section, 	including 	the 	use 	of 	a 	form 	for 	advance
notification 	by 	each 	organization 	of 	the 	use 	of
allotted 	days, 	and 	reasonable 	limitations 	on 	the
number 	of 	such 	days 	which 	may 	be 	utilized 	by 	one
individual 	teacher. 	(Enipha.si3 	adc.c~)
During 	the 	period 	from April 	12, 	1977 	to 	June 	29, 	1977, 	the
Association 	had 	available 	to 	its 	members 	approximately 	50 	days 	of
released 	time 	under 	board 	policy 	GCQDA 	16.8. 	The 	released 	time 	was
available 	for 	organizational 	business, 	but 	the 	governing 	board, 	with
the 	exception 	of May 	31 	and 	June 	7, 	1977, 5 refused 	to 	allow 	the
Association 	to 	use 	any 	of 	those 	days 	for 	meeting 	and negotiating.
During 	the 	period 	between April 	12 	and 	June 	29, 	1977, 	the
Association made 	several 	proposals 	on 	released 	time 	for 	negotiating
and 	grievance 	processing. 	The 	governing 	board 	consistently 	took 	the
position 	that 	"the matter 	of 	released 	time was 	not 	subject 	to 	the
meeting 	and 	negotiating 	process."
4 Former 	Ed. 	Code 	Sec. 	13080 	et 	seq. 	Repealed 	Stats. 	1975,
Chapter 	961, 	Sec. 	1, 	effective 	July 	1, 	1976.
5 The 	facts 	indicate 	that 	on May 	31 	and 	June 	7, 	1977,
negotiations 	were 	held between 	9:00 	a.m. 	and 	4:30 	p.m. 	On 	these
dates 	Association 	representatives 	received 	released 	time 	without
loss 	of 	compensation.
-5-

On
	June 	29, 	1977,
	the
	governing
	board
	of
	the
	District
. .
unilaterally
	adopted
	policy
	GCQDB. 6
Negotiations
	continued
	after
	June 	29, 	1977.
	Prior 	to
	August
	10,
1977,
	impasse
	was
	declared
	by
	the 	Public
	Employment
	Relations
	Board
and
	mediation 	occurred 	during 	the
	month
	of
	August.
7
DISCUSSION
	AND
	CONCLUSIONS
	OF
	LAW
A.
	Did
	the
	District
	refuse 	to 	grant
	reasonable 	periods 	of 	released
time
	during 	the 	Spring
	1977
	negotiations?
Government
	Code
	Section 	3543.l(c)
	sets
	forth
	the
	right
	of
	an
exclusive 	representative
	to 	released
	time:
(c)
	A
	reasonable
	number
	of 	representatives
	of
	an
exclusive 	representative
	shall
	have
	the
	right
	to
receive
	r~asonable
	periods 	of 	released
	time
without
	loss 	of
	compensation
	when
	meeting
	and
negotiating
	and
	for 	the 	processing 	of 	grievances.
The
	Association 	alleges 	that
	the
	District's
	refusal
	to
	grant
more
	than
	two
	days
	released
	time
	during 	the 	11-session
negotiating 	period
	was
	unreasonable
	and
	therefore
	a
	violation
of 	Section 	3543.l(c).
	The
	District
	denies
	that
	its
	refusal
was
	unreasonable.
6
The 	Board 	had
	rescinded 	policy
	GCQDA
	16.8
	on
	June
	22, 	1977.
For
	a
	description 	of 	pertinent 	provisions 	of 	this 	policy
	GCQDB
	seepage 	13,
	infra.
7
The
	hearing 	officer
	takes
	official 	notice 	that
	on
	February18, 	1978,
	the 	parties 	entered 	into
	an Agreement 	covering 	the 	period
of 	February 	8, 	1978, 	to 	August 	31, 	1979.
	No
	provision 	in 	the
	Agreement
provides 	for
	a
	released 	time 	policy.
	However,
	the 	parties 	state 	inAppendix
	C
of 	the 	Agreement
	that
	if 	it
	is 	ultimately 	determined 	that
a
	disputed 	subject, 	such 	as 	released 	time, 	is 	determined 	to 	be
	a
mandatory 	subject 	of 	negotiations, 	the 	District
	and 	the 	Association
agree 	to 	meet 	and 	negotiate 	on 	the 	subject.
-6-

Both 	parties 	seek 	support 	from 	the 	PERB's 	decision 	in 	Magnolia
School 	District. 8 In Magnolia, 	the 	district 	adhered 	to 	a 	rigid
rule 	throughout 	the 	entire 	negotiation 	period 	that 	prevented 	released
time 	during 	the 	instructional 	day 	and 	restricted 	such 	released 	time
to 	a 	maximum 	of 	30 	non-teaching 	minutes 	at 	the 	end 	of 	the 	day. 	The
district 	refused 	to 	change 	its 	policy 	even 	when 	the 	policy 	proved 	to
be 	a 	hindrance 	to 	effective 	mediation.
The 	Board 	stated 	that:
"Reasonable 	released 	time" 	means, 	at 	least, 	that.
the 	District 	has 	exhibited 	an 	open 	attitude 	in
its 	consideration 	of 	the 	amount 	of 	released 	time
to 	be 	allowed 	so 	that 	the 	amount 	is 	appropriate
to 	the 	circumstances 	of 	the 	negotiations. 	A
district's 	policy 	does 	not 	provide 	for 	reasonable
periods 	of 	released 	time 	if 	the 	policy 	is
unyielding 	to 	changing 	circumstances.9
The 	Board 	also 	indicated 	that 	"at 	least 	in 	some 	circumstances," 	"some
released 	time 	during 	the 	instructional 	day" 	would 	be 	appropriate.
The 	district's 	inflexible 	position 	in Magnolia 	proved 	to 	be 	a
hindrance 	to 	meaningful 	negotiations 	and 	the 	PERB 	found 	it
unreasonable. 	Thus, 	when 	a 	district 	adopts 	an 	inflexible 	released
time 	policy which 	hinders 	negotiations, 	the 	policy 	is 	unreasonable 	and
in 	violation 	of 	the 	Educational 	Employment Relations 	Act 	(hereinafter
EERA or Act).
Unlike 	the 	situation 	in Magnolia, 	the 	charging 	party here 	has 	not
shown 	the 	District's 	released 	time 	policy 	to 	be 	inflexible, 	unyielding
or 	a 	hindrance 	to 	a 	meaningful 	negotiations. 	The 	stipulation 	of 	facts
indicates 	that 	of 	11 negotiating 	sessions, 	the Association was 	given
released 	time 	for 	two 	of 	them. 	There 	is 	nothing 	in 	the 	stipulation
of 	facts 	to 	indicate 	the 	amount 	of 	released 	time 	granted by 	the
8 EERB 	Decision No. 	19, 	June 	27, 	1977.
9 Id., 	at 	page 	5.
-7-

District
	in
	the 	spring
	of
	1977
	was
	unreasonable
	or
	inappropriate
to
	the
	circumstances
	of
	the
	negotiations 	in
	the
	District
	as
	they
existed
	at
	that
	time.
	There
	is
	no
	proof
	that
	the
	negotiating
schedule
	hindered
	negotiations,
	caused
	any
	ascertainable
	delay 	or
subverted 	the
	negotiating
	process
	in
	any
	specific
	fashion. 	Therefore,
the
	Association
	has
	not
	proven
	that
	the
	District's
	refusal
	to
	grant
additional 	released
	time
	was
	unreasonable. 	Section 	3543.l(c)
	has
	not
been
	violated.
	Accordingly,
	the
	Association's
	charge
	that
	the
District
	violated
	Section
	3543.S(b)
	is
	hereby 	dismissed.
B.
	Did
	the
	District
	Breach
	its
	Duty
	to
	Meet 	and
	Negotiate
	in
	Good
Faith?
Section
	3543.S(c) 	provides
	that:
It
·shall
	be
	unlawful
	for
	a
	public
	school
	employer
	to:
(c) 	Refuse
	or
	fail
	to
	meet 	and
	negotiate 	in
	good
	faith
with
	an
	exclusive
	representative.
A
district's
	obligation
	to
	meet 	and
	negotiate 	in
	good
	faith
	with
an
	exclusive 	representative
	is
	limited 	to 	those matters 	within 	the
.
scope
	o f
	representation.
10
lO	
See
	Fullerton
	Union High 	School
	District,
	EERB
	Decision
	No.
20,
	July
	27, 	1977. 	See
	also
	Gov. 	Code
	Sec.
	3540.l(h)
	which
	provides:
"Mee~ing 	a~d
	negotiating"
	means
	meeting, 	conferring, 	negotiating,
and 	d1scuss1ng
	by
	the 	exclusive 	representative
	and
	the 	public
school 	employer 	in
	a 	good
	faith 	effort
	to 	reach 	agreement 	on
matters 	within 	the 	scope 	of 	representation
	and
	the 	execution
	if
requested
	by
	either 	party, 	of
	a
	written
	document
	incorporati~g
	any
agreements 	reached, 	which 	document
	shall,
	when
	accepted
	by
	the
e~cl
7
sive 	representati~e
	and 	the 	public 	school 	employer, 	become
b1nd1ng 	upon 	both 	parties 	and, 	notwithstanding 	Section 	3543.7,
shall 	not 	be
	subject 	to 	subdivision
	2
of 	Section 	1667 	of 	the 	Civil
Code. 	The 	agreement 	may 	be 	for 	a 	period 	of 	not 	to 	exceed 	three
years.
-8-

Section 	3543.2 	defines 	the 	scope 	of 	representation 	as:
matters 	relating 	to 	wages, 	hours 	of 	employment,
and 	other 	terms 	and 	conditions 	of 	employment.
'Terms 	and 	conditions 	of 	employment' 	mean 	health
and 	welfare 	benefits ..• leave 	and 	transfer
policies, 	safety 	conditions 	of 	employment, 	class
size, 	procedures 	to 	be 	used 	for 	the 	evaluation 	of
employees, 	organizational 	security 	... 	and
procedures 	for 	processing 	grievances •...
Released 	time 	then, 	must 	relate 	to 	wages, 	hours 	of 	employment, 	or
other 	terms 	and 	conditions 	of 	employment 	in 	order 	for 	the 	District 	to
be 	required 	to 	meet 	and 	negotiate 	over 	it. 	If 	released 	time 	does 	not
so 	relate, 	the 	District 	need 	not 	negotiate 	over 	the 	s~bject 	and may
take 	unilateral 	action 	in 	regard 	to 	it. 11
A review 	of 	the 	subjects 	within 	the 	scope 	of 	representation 	leads
one 	to 	the 	conclusion 	that 	released 	time 	is 	negotiable, 	if 	at 	all, 	as
a 	matter 	relating 	to 	wages 	or 	hours 	of 	employment. 	The 	Association
argues 	that 	released 	time 	relates 	to 	both 	wages 	and 	hours; 	the
District 	disagrees.
The 	PERB 	in 	Magnolia 	recognized 	that 	at 	least 	in 	some 	circum-
stances 	negotiations 	during 	the 	instructional 	day 	are 	required. 	If
released 	time 	is 	granted 	to 	employee 	negotiators 	but 	in 	the 	form 	of 	a
requirement 	that 	they 	pay 	for 	the 	substitutes, 	the 	employees'
11 	Gov. 	Code 	Sec. 	3543.2 	also 	provides 	for 	various 	"consult"
items 	abbut 	which 	the 	District 	must 	consult with 	the 	exclusive
representative 	before 	the 	District 	implements 	its 	determination. 	None
of 	these 	are 	arguably 	related 	to 	released 	time, 	and 	indeed, 	no 	party
has 	raised 	the 	argument 	that 	this 	portion 	of 	3543.2 	is 	applicable.
-9-

effective
	wages
	have
	been
	diminished.
	Consequently,
	the
	amount
of 	released
	time
	without
	loss 	of
	compensation
	relates
	to
	,;-;rages,
as
	employee
	organizations
	will
	want
	to
	maximize
	their 	effective
wages	
by	
ensuring
	that
	the
	time
	that
	they
	must
	pay
	for
	substitutes
is
	kept
	at
	a
	minimum.
Released
	time
	also
	relates
	to 	hours.
	Although
	the
	total
	number
	of
compensable 	hours
	is
	not
	affected
	by
	a
	released
	time
	policy, 	the
distribution
	of
	those
	hours
	is 	affected.
	Courts
	interpreting
	the
	NLRA
have
	held
	that
	the
	distribution
	of
	hours
	that
	employees
	work
	in
	a
	day
1s
	. 	a 	man d a t
ory
	su
b.
Jee
t 	o f 	b
arga1n1ng.
	· 	·	
12
Having
	determined
	that
	released
	time
	is
	a
	mandatory
	subject
	of
negotiations,
13
it
	must
	next
	be
	determined 	whether
	the
	District
refused 	to
	meet
	and
	negotiate
	regarding
	it.
	The
	stipulation 	of 	facts
indicates 	that
	the
	District
	consistently
	refused 	to 	negotiate 	the
subject
	of 	released
	time. 	Consequently, 	the
	District
	has
	breached
	its
duty 	to	
meet 	and
	negotiate
	in
	good
	faith
	and
	it
	has
	violated
	Section
3543.5
(c).
The
	Association
	has
	also 	alleged
	that
	the
	District's 	unilateral
promulgation
	of 	policy
	GCQDB
	on
	June
	29,
	1977
	constitutes
	a
	breach 	of
the
	District's
	duty 	to
	meet 	and
	negotiate
	in
	good
	faith.
	Under
12	
Cf.,
	Camp 	&	
Mcinnes, 	100
	NLRB
	524,
	'30
	LRRM
	1310 	(1952)
(reducing 	lunch 	periods
	30
	minutes
	and
	changing
	quitting
	time 	from
5:00
	pm
	to 	4:30
	pm); 	Meat
	Cutters
	v. 	Jewel 	Tea, 	381 	U.S. 	676,
	59
	LRRM
2376
	(1965).
13 	The
	hearing
	officer 	takes 	note 	of 	the 	recent
	NLRB
	decision 	in
Axelson
	Inc.,
	234
	NLRB 	No. 	49 	97 	LRRM
	1234 	(1978), 	which
	held 	that
~the 	payment
	of
	wages
	for 	time 	spent 	in 	negotiations 	constitutes
	a
mandatory 	subject 	of 	bargaining."
	However, 	because 	of
	PERB's
determination 	in 	Fullerton 	(note 	10, 	ante) 	that 	the 	scope 	of
representation 	as
	it
	relates 	to 	workiniconditions 	under 	the
	NLRA
is 	broader 	than 	that 	under 	the
	EERA,
	the 	Axelson 	decision 	cannot
be 	given 	controlling weight.
-10-

federal 	precedent, 	an 	employer's 	unilateral 	change 	of 	a 	mandatory
subject 	of 	bargaining 	is 	regarded 	as 	a 	per 	se 	refusal 	to 	bargain. 14
15Normally, 	federal 	precedent 	would 	be 	applicable 	here 	and 	the
District 	would 	be 	found 	to 	have 	violated 	Section 	3543.5(c). 	However,
because 	Section 	3543.l(c) 	mandates 	that 	a 	district 	provide 	the
exclusive 	representative 	with 	reasonable 	periods 	of 	released 	time 	it 	is
necessary 	that 	these 	two 	notions 	be 	harmonized.
The 	EERA 	requires 	the 	employer 	to 	grant 	"[a] 	reasonable 	number 	of
representatives 	of 	an 	exclusive 	representative 	... 	reasonable 	periods
of 	released 	time 	.•• " 	In 	order 	for 	the 	employer 	to make 	such 	a 	grant
it 	is 	likely 	that 	at 	some 	point 	it 	would 	have 	to 	unilaterally 	grant
"reasonable 	periods 	of 	released 	time." 	To 	require 	an 	employer 	to 	both
meet 	and 	negotiate 	regarding 	released 	time 	and 	to 	grant 	reasonable
periods 	of 	released 	time 	but 	to 	condition 	that 	with 	the 	onus
of 	commiting 	an 	unfair 	practice 	would 	place 	the 	employer 	in 	an
unfair 	dilemma. 	If 	the 	employer met 	and negotiated with 	the
exclusive 	representative 	and 	did not 	unilaterally 	grant
released 	time 	it would 	be 	guilty 	of violating 	Section 	3543.l(c).
If 	the 	employer 	unilaterally 	granted 	reasonable 	released 	time
it 	would be 	guilty 	of 	violating 	Section 	3543.S(c).
A resolution 	of 	this 	dilemma 	is 	apparent 	if 	an 	employer 	is
permitted 	to 	unilaterally 	promulgate 	a 	reasonable 	released 	time 	policy
but 	yet 	is 	still 	required 	to 	meet 	and 	negotiate 	regarding 	the 	subject
14 	NLRB 	v. 	Katz, 	369 	U.S. 	736, 	50 	LRRM 	2177 	(1962).
15 	The 	PERB 	has 	stated 	that 	it 	is 	appropriate 	to 	use 	NLRB
decisions 	as 	guides 	in 	interpreting 	the 	EERA. 	See 	Sweetwater
Union 	High 	School 	District, 	EERB 	Decision 	No. 	4, 	Nov. 	23, 	1976.
-11-

of 	released
	time.
	In
	essence, 	the 	employer's
	released
	time
	policy
would
	become
	a
	base
	upon
	which
	the
	parties
	would
	negotiate.
	This
approach
	is
	already
	utilized
	in 	the
	EERA.
	For 	example,
	by
	statute
	a
school
	district
	is
	required 	to 	maintain
	evaluation
	procedures
	for
certificated
	employees
16
and
	grant
	classified
	employees
	a
	specified
.
	number
	of
	holidays
	and 	days
	of 	vacations.
17 T h
ese
	subjects
	are
clearly
	matters
	relating
	to
	"wages,
	hours
	of
	employment 	and
other
	terms
	and
	conditions
	of
	employment" 	and
	are
	hence
negotiable.
	Thus,
	as
	is
	the 	case with
	released
	time,
	a
	district's
evaluation
	procedure
	is
	subject
	to 	the
	meet 	and
	negotiate 	process.
By
	meeting
	and
	negotiating
	on
	released
	time
	the
	parties
facilitate
	agreement
	on
	what
	is
	"reasonable
	released
	time"
	and
generate
	an
	effective
	approach
	to
	meaningful
	negotiations.
	Once
a
	released
	time
	policy
	has 	been 	agreed
	upon 	by
	the
	parties,
	it
becomes
	the 	standard
	of
what
	is
	"reasonable"
	and
	the
	district's
need
	to
	unilaterally
	promulgate
	a
	reasonable 	released
	time
. 	d"	
po
1
icy 	isappears.
18
Naturally,
	this 	unilateral
	promulgation
	of
	a
	released
	time
policy
	is
	only
	valid
	if 	it
	occurs 	before 	the 	implementation
	of
a
	negotiated 	policy
	and
	the 	policy
	itself
	is
	reasonable.
	The
reasonableness 	of 	the
	June
	29, 	1977
	policy
	is
	the 	subject 	of
the 	Association's 	third 	allegation.
16
Ed. 	Code
	Sec.
	44660,
	et
	seq.
17
Ed. 	Code
	Secs.
	45197
	and
	45203.
18 	Thus, 	the 	District's 	fear 	that 	meeting 	and
	negotiatingwith 	the 	exclusive 	representative 	would 	subject 	it
	to 	attack 	from
its
	employees 	is 	unfounded. 	Because 	the 	district
	and 	the 	exclusive
representative 	have 	agreed 	upon 	the 	policy, 	that 	policy 	is 	presumed
to 	be 	a 	reasonable 	one. 
-12-

C.
	Is
	District
	Released
	Time
	Policy
	GCQDB
	promulgated
	on
June 	29,
	1977
	reasonable?
District
	Policy
	GCQDB
	provides 	in
	pertinent 	part:
1.0
	Released
	Time 	-
	Negotiations
During 	each
	school 	year
	when
	negotiations 	are
in
	progress,
	and
	following
	prior
	notice
	and
schedule
	coordination
	with
	the
	immediate
supervising
	administrator,
	seven
	(7)
	authorized
representatives
	of
	each
	employee
	organization
representing
	a
	bargaining
	unit, 	shall
	be
	granted
a 	maximum
	of
	twelve
	(12)
	full
	days
	of 	released
time 	each
	without
	loss
	of
	compensation
	for 	the
purpose
	of
	meeting
	and
	negotiating.
	This
released
	time
	may 	be
	taken 	in
	minimum
	increments
of
	one
	full
	day.
	Organizations 	requesting
	use
	of
released
	time
	for
	meeting
	and
	negotiating
	shall
reimburse
	the
	District
	for 	the 	value
	of
educational 	services
	lost,
	as 	paid
	from
	publicfunds, 	because
	of 	the
	absence
	of
	employees
	from
their
	duties
	to
	act
	in 	the
	capacity 	of
	employee
organization 	representatives.
	Reimbursement
shall
	be
	at
	the
	median
	daily 	salary 	rate
	of 	the
employees
	comprising 	the 	bargaining
	unit.
Reimbursement
	shall
	occur
	within
	one-hundred
	and
twenty
	(120)
	calendar
	days
	of 	the
	dates 	of
released
	time.
The
	Association 	argues
	that
	Policy
	GCQDB
	is
	unreasonable 	because
the 	grant 	of 	released
	time
	is
	"contingent
	upon 	an 	employee
orgapization's
	picking
	up
	the
	tab."
The
	District
	argues
	that
	the 	policy 	is
	a
	reasonable 	one.
According
	to 	the
	District,
	Section 	3543.l(c)
's
	proviso 	that 	released
time 	be
	"without 	loss 	of 	compensation"
	was
	"concerned
	solely 	with 	the
remuneration 	to
	be
	received
	by
	the
	district
	employee 	who 	was
	being
released."
	The 	EERA,
	the
	District 	alleges,
	was
	silent
	as 	to 	the
ability
	of
	a
	district
	to 	adopt
	a
	"sharing 	arrangement 	which
	relates
-13-

to
	the
	additional 	costs
	(ie.,
	those
	beyond
	the
	salary
	of
	the
	released
employee)
	which
	are 	incurred
	by
	virtue
	of
	the
	release,
	and,
	if
	so,
upon
	what
	formula."
	In
	the
	absence
	of
	legislative 	directive,
	it
	is
the
	position
	of
	the
	District
	that
	it
	"may
	impose
	any
	cost-sharing
arrangement
	it
	desires
	as
	a
	condition 	of 	released
	time, 	except
	one
which
	in 	operative
	effect
	requires
	the
	exclusive
	representative
	to
pay
	the
	salary
	of
	the
	individual
	so
	released."
The
	District's
	argument
	is
	unpersuasive.
	Granting
	released
	time
upon
	condition
	that
	some
	third
	party 	or
	agency 	compensate
	the
district
	contravenes 	the
	explicit
	language
	of 	Section 	3543.l(c)
and
	such
	a
	policy
	violates
	the
	Act.
Similarly,
	the
	District's
	reliance
	on
	Yuba
	City 	Unified
	School
District,
19
a
	non-appealed he~ring
	officer's
	decision,
	is
misdirected.
	Unlike
	a
	Board
	decision,
	a
	hearing
	officer
	decision
which
	has 	not
	been
	appealed
	to
	the
	Board
	is
	not 	binding
	precedent.
In
	any
	case, 	the
	facts
	in
	this
	case 	are
	distinguishable
	from
	those
in
	Yuba
	City. 	In
	Yuba
	City 	the
	cost-sharing
	arrangement
	was
instituted 	after
	a
	substantial
	amount
	of 	released
	time
	without
	loss
of
	compensation
	had
	already
	been
	granted.
	And
	the 	nature 	of 	the
cost-sharing 	plan
	was
	such
	that
	the
	District
	was
	"willing 	to
	meet
	on
school
	time 	every
	week
	if
	the 	Association 	paid 	for
	substitutes
	on 	an
alternating 	basis 	or 	to
	meet
	after
	school 	every 	other
	week." 	In
19 EERB
	Decision
	No. 	HO-U-4, 	May
	6, 	1977.
-14-

this
	case, 	the
	District
	policy, 	unlike
	that
	found
	in
	Yuba
	City,
does
	not
	provide 	the
	exclusive
	representative
	with
	at 	least
	some
released
	time
	without
	loss 	of
	compensation. 	This
	discrepancy
	is
fatal
	and
	therefore
	the
	District
	cannot
	rely
	on
	the
	Yuba
	City
case 	to 	support
	its
	position.
For
	the
	above
	reasons 	the
	District
	has
	violated
	Section
3543.S(b)
	in
	that
	District
	Policy
	GCQDB
	violates
	Section 	3543.l(c)
because
	it
	does
	not 	provide
	for 	reasonable 	periods 	of
	released
	time
without
	loss 	of
	compensation.
D. 	Remedy
Gov. 	Code
	Section
	3541.S(c)
	provides
	that
	the
	PERB
	shall
	have
the
	power
	to 	issue
	a
	decision
	and
	order 	in
	an
	unfair 	practice
	case
directing
	the 	offending
	party 	to
	"cease
	and
	desist
	from
	the
	unfair
practice
	and
	to 	take
	such
	affirmative 	action
	•..
	as
	will 	effectuate
the
	policies
	of
	this 	chapter."
20	
In
	Magnolia 	School
	District	
the
	Board 	found
	that
	the
district
	had
	violated 	Section 	3543.l(c)
	by
	refusing 	to 	grant 	reasonable
periods 	of 	released
	time
	without
	loss 	of 	compensation.
	The
	Board's
remedy
	in
	that
	case 	included
	a
	cease
	and
	desist
	order 	but 	did 	not
direct
	the
	District
	to 	grant
	a
	specific
	number
	of 	hours 	of 	released
20 Note
	8, 	ante.
-15-

time
	for
	meeting
	and
	negotiating. 	Implicit
	in 	the 	Board's
	decision
is
	a
	directive
	to 	the
	District
	to 	reconsider
	its
	released
	time
policy
	in
	light
	of
	the 	Board's 	opinion.
	Similarly
	the
	facts
	in
	this
case
	do
	not 	warrant
	an
	order 	specifying
	the
	specific
	amount
	of
released
	time
	to
	be
	given
	to
	employee
	negotiators.
	The
	District
should
	reconsider
	its
	policy
	and
	thereby
	arrive 	at
	a
	policy
	which
provides 	for
	released
	time
	without
	loss
	of
	compensation
	and
	which
"is
	appropriate 	to
	the 	circumstances 	of 	the
	negotiations."
	In
addition,
	the
	District
	should
	meet
	and
	negotiate
	upon
	request
	with
the 	Association 	regarding 	released
	time
	in
	an
	attempt 	to 	agree
	on
	a
reasonable
	released
	time
	policy.
The
	requirement
	that
	the
	District
	post 	copies 	of 	the
	order
"effectuates
	the
	policies
	of
	the
	Act"
	in
	that
	it
	serves 	to
	inform
all
	those
	employees
	who
	are
	vitally
	interested
	in 	the 	case
	of 	the
decision
	relating
	to
	the
	unfair 	practice
	charge.
The
	language
	in
	Section
	lO(c)
	of
	the 	National
	Labor
Relations
	Act
	is
	nearly 	identical
	to
	Government
	Code
	Section
3541.S(c).
21 The
	first
	decision 	rendered 	by~the
	National
	Labor
Relations
	Board
	(hereinafter
	NLRB),
	Pennsylvania
	Greyhound
'
Lines,
	Inc.,
	1
	NLRB
	1,
	1
	LRRM
	303
	(1935), 	included
	an
	order 	to 	"post
notices 	in 	conspicuous 	places 	in
	all
	of 	the 	places 	of 	business
21
Section 	lO(c) 	of 	the 	National
	Labor
	Relations
	Act 	(29 	U.S.C.
	§160)
provides 	in 	pertinent 	part 	that:
If
	upon
	the 	preponderance 	of 	the 	testimony 	taken 	the 	Board
shall
	be
	of 	the 	opinion 	that
	any 	person
	named
	in 	the 	complainthas 	engaged 	in 	or 	is
	engaging 	in
	any 	such
	unfair 	labor
practice, 	then 	the 	Board
	shall 	state 	its
	findings 	of 	fact
	~nd
shall 	issue
	and 	cause 	to 	be 	served 	on 	such 	person 	an
	order
requiring 	such 	person 	to 	cease 	and
	desist
	from 	such 	unfair
labor 	practice, 	and 	to 	take 	such 	affirmative 	action 	including
reinstatement 	of employees 	with 	or without 	back 	pay, 	as 	will
effectuate 	the 	policies 	of 	this 	Act.
-16-

wherein.the
	employees
	are
	engaged."
	The
	NLRB
	found
	that
	such
	a
posting
	requirement
	"effectuates
	the
	policies
	of 	the
	NLRA." 	The
employer
	challenged
	inter
	alia
	the
	posting 	requirement.
	In
affirming
	the
	NLRB
	in
	NLRB
	v.
	Pennsylvania
	Greyhound
	Lines,
	Inc.,
303
	U.S. 	261,
	2
	LRRM
	600
	(1938),
	the
	United
	States
	Supreme
	Court
stated 	that
	"[i]t
	is 	plain 	that
	the 	challenged
	provisions 	of 	the
present 	order 	are 	of	
a	
kind
	contemplated
	by
	Congress
	in
	the
enactment
	of 	Section 	l0(c)
	and
	are 	within
	its
	terms."
In
	NLRB
	v.
	Empress
	Publishing
	Co.,
	312
	U.S. 	426,	
8	
LRRM
415
	(1941),
	the
	Court
	commented
with
	respect 	to 	the
	posting
requirement,
	"[o]nly
	a
	word
	need be
	said 	of
	that 	part
	of
	the
[NLRB's]
	order 	requiring
	the 	posting 	of notices.
	We
	have
	often
held
	that
·the
	posting 	of notices
	advising 	the
	employees
	of
	the
Board's 	order
	and 	announcing
	the 	readiness 	of
	the
	employer
	to
obey
	it
	is
	within 	the
	authority
	conferred
	on
	the
	Board by
Section
	lO(c)
	of
	the
	[NLRA]
	'to
	take
	such
	affirmative 	action
...
as
	will 	effectuate
	the
	policies 	of
	the
	Act.'"
	NLRB
	v.
	Empress
Publishing
	Co.,
	supra.
	See
	also 	City 	of
	Albany 	v. 	Helsby,
	328
N.Y.S. 	2d. 	658,
	79
	LRRM
	2457
	(1972). 	Accordingly,
	an
	order 	to
post 	copies 	of 	the 	order
	is
	deemed
	appropriate 	in 	this
	case.
-17-

PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law,
	and
	the
entire
	record 	in
	this
	case,
	and
	pursuant 	to
	Government
	Code
	Section
3541.S(c)
	of 	the 	Educational
	Employment
	Relations
	Act,
	it
	is
	hereby
ordered
	that
	the
	Anaheim
	Union 	High
	School
	District
	and
	its
representative
	should:
1.	
CEASE
	AND
	DESIST
	FROM:
(a)
	Failing
	to
	meet 	and
	negotiate
	in
	good
	faith
	upon
	request
with
	the
	Anaheim
	Secondary
	Teachers
	Association
	with
	regard
	to
released
	time;
(b)
	Failing
	to 	grant 	to 	the
	representatives
	of 	the
	Anaheim
Secondary Teachers
	Association 	reasonable 	periods 	of
	released
time
	without
	loss 	of
	compensation.
2.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE
	ACTION 	DESIGNED
	TO
	EFFECTUATE
THE
	POLICIES
	OF 	THE
	EERA:
{a)
	Prepare
	and
	post
	at
	all
	of
	its
	schools
	and
	work
	sites
	for
20
	working 	days
	in 	conspicuous
	places,
	including
	all
	locations
where
	notices
	to
	certificated
	employees
	are 	customarily 	posted,
copies 	of
	this
	Order;
(b) 	At
	the
	end
	of 	the 	posting 	period, 	notify
	the
	Los
	Angeles
Regional
	Director 	of 	the 	Public
	Employment
	Relations
	Board
of
	the 	action
	it
	has 	taken 	to
	comply
	with
	this
	Order.
-18-

It
	is
	further
	ordered
	that
	the
	charge
	shall
	be
	dismissed
with
	respect
	to
	any
	unfair 	practices
	which
	are 	alleged
	and
have
	not
	been
	found
	to
	be
	violations 	of
	the
	Act.
The
	parties
	have 	twenty
	(20)
	calendar
	days
	after
	service
of 	this
	Proposed
	Decision
	in
	which
	to
	file
	exceptions
	in
accordance
	with
	California
	Administrative
	Code,
	Title
	8,
Part
	III,
	Section
	32300.
	If
	no
	party
	files
	timely
	exceptions,
this
	Proposed
	Decision
	will
	become
	final
	on
	May
	5,
	1978
and
	a
	Notice
	of
	Decision
	will
	issue
	from
	the
	Board.
Dated:
	April
	10,
	1978
-19-
Bruce 	Barsook
Hearing
	Officer