Sierra Joint Community College District (PERB 0179E)

STATE
	OF
	CALIFORNIA
DEC
IS
ION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SIERRA
	COLLEGE 	FACULTY
	ASSOCIATION,
Charging
	Party,
v.
SIERRA 	JOINT
	COMMUNITY
	COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
_____________________ )
Case
	No. 	S-CE-89
PERB
	Decision
	No. 179
November
5,
	1981
Appearances:	
Darrel
	D.
	Tipton
	and
	John
	Bodney,
	Attorneys
	for
Sierra
	College
	Faculty Association;
	Paul
	M.
	Loya,
	Attorney
(Loya 	&
Associates) 	for
	Sierra 	Joint
	Community
	College
District.
Before
	Gluck,
	Chairperson;
	Jaeger,
	Moore, 	and
	Tovar,
	Members.
DECISION
The
	Sierra
	College
	Faculty Association 	(hereafter
	SCFA)
excepts
	to 	the
	dismissal 	of
	its
	charges
	that
	the
	Sierra 	Joint
Community
	College
	District
	(hereafter
	District)
	violated
section
	3543.S(b)
	and 	(c)
	of 	the 	Educational
	Employment
Relations 	Actl	
by
	refusing
	to
	negotiate
	over
	released
	time
lEERA
	is
	codified 	at
	Government 	Code
	section
	3540
	et.
seq. 	Unless 	otherwise 	noted,
	all
	references
	will
	be 	to 	the
Government 	Code.
Section 	3543.S(b)
	and 	(c)
	provide:
It
	shall
	be 	unlawful 	for
	a
	public 	schoolemployer
	to:

and 	by 	refusing 	to 	provide 	reasonable 	amounts 	of 	released 	time
to 	SCFA 	negotiators.2
In 	the 	spring 	of 	1977, 	faculty 	me·mbers 	representing 	the
SCFA 	as 	negotiators 	arranged 	their 	teaching 	schedules 	for 	the
following 	fall 	semester 	so 	that 	their 	Tuesday 	and 	Thursday
afternoons 	would 	be 	clear 	for 	negotiations. 	The 	District 	knew
of 	the 	teachers' 	intent 	and 	approved 	the 	schedules,
. though 	it
neither 	expressly 	approved 	nor 	rejected 	the 	purpose 	of 	those
arrangements. 	When 	negotiations 	began 	on 	September 	8, 	1977,
SCFA 	proposed 	a 	released-time 	formula 	which 	would 	provide 	a
one-fifth 	reduction 	from 	the 	normal 	fifteen-hour 	teaching 	load
of 	community 	college 	instructors 	who 	were 	serving 	as
negotiators. 	The 	normal 	total 	workweek 	for 	community 	college
instructors, 	including 	classtime, 	preparation, 	office 	duties
and 	meetings, 	was 	40 	to 	45 	hours 	of 	which 	22 	to 	25 	hours 	were
required 	to 	be 	spent 	on 	campus. 	SCFA 	suggested 	that 	its
(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.
2section 	3543.l(c) 	reads:
A reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
2

released-time 	proposal 	was 	consistent 	with 	the 	District's 	past
practice 	of 	granting 	similar 	reduced 	teaching 	loads 	to 	division
chairpersons 	and 	employee 	organization officers.
The 	District 	rejected 	the 	proposal 	on 	September 	20, 	taking
the 	position 	that 	released 	time 	could 	only be 	granted 	from
scheduled 	assignments, 	not 	unscheduled 	duties, 	and 	that 	the
SCFA 	proposal 	was 	actually 	a 	request 	for 	compensatory 	time-off
rather 	than 	for 	released 	time. 	The 	latter, 	said 	the 	employer,
could 	only 	be 	provided 	during 	periods 	of 	actual 	meeting 	and
negotiating. 	Since 	the 	teachers 	had 	no 	scheduled 	work 	during
these 	periods, 	the 	District 	contended 	released 	time 	would 	not
be 	appropriate. 	The 	District 	also 	rejected 	a 	further
suggestion 	by 	SCFA 	that 	negotiations 	take 	place 	in 	the 	morning
hours 	when 	classes 	were 	scheduled 	by 	its 	negotiators. 	It 	was
the 	District's 	position 	that 	such 	a 	scheduling 	would 	be
inconvenient 	to 	its 	own 	negotiators 	and 	it 	offered 	no 	meeting
times 	as 	satisfactory 	other 	than 	those 	already 	scheduled 	in 	the
afternoons. 	At 	no 	time 	did 	the 	District 	offer 	counterproposals
and 	SCFA 	broke 	off 	further 	negotiations 	on 	September 	20 	after
the 	District 	took 	the 	position 	that 	future 	negotiations 	over
released 	time 	would 	be 	futile.
The 	hearing 	officer 	concluded 	that 	although 	released 	time
is 	a 	negotiable 	subject, 	the 	SCFA 	proposal 	was 	one 	for
compensatory 	time 	off 	from 	duties 	at 	times 	other 	than 	"when
meeting 	and 	negotiating" 	and, 	therefore, 	could 	not 	be 	construed
3

as
	a
	released-time
	proposal
	under
	the
	terms
	of 	the
	statute.
	He
also
	found
	that
	there
	was 	no
	refusal
	by
	the
	District
	to
negotiate
	over
	released
	time
	since
	SCFA
	was
	really
	seeking
compensatory 	time
	off
	and
	because
	it
	was
	SCFA
	which
	ended
	the
talks.
	Additionally,
	he 	found
	that
	evidence 	of
	successful
negotiations
	on 	some
	other
	subjects
	weighed
	against
	the
	SCFA's
claim
	that
	the
	District's
	conduct
	interfered
	with
	negotiations
and
	amounted
	to
	a
	refusal
	to
	negotiate 	in
	good
	faith.
DISCUSSION
The
	District
	maintained
	at
	the 	hearing
	that
	released
	time
is
	not
	subject
	to
	negotiations.
	The
	hearing
	officer
	found
otherwise.
	Yet,
	he
	dismissed 	the 	charge
	alleging
	the
District's
	refusal
	to
	negotiate
	on
	this
	matter.
	His
	conclusion
was
	predicated
	on
	his
	view
	of
	SCFA's
	proposal 	as
	unrelated 	to
released
	time. 	Accepting, 	arguendo,
	that
	the
	SCFA's
	proposal
was
	not 	within 	scope, 	the
	District
	would
	certainly
	be
	within
its
	rights
	to
	reject 	that
	proposal.
As
	noted
	in 	Jefferson
	School
	District
	(6/19/80)
	PERB
Decision
	No.
	133,
	and
	reaffirmed 	in
Anaheim 	Union 	High
	School
District
	(10/28/81)
	PERB
	Decision
	No.
	177, 	the
	Board
	finds 	that
released
	time
	is
	a
	subject 	within 	the 	scope
	of
	representation.
In
	this 	case, 	the
	District 	categorically
	denied
	that
	it
	bore
	an
obligation 	to 	negotiate
	on 	any
	released-time 	proposal. 	In
	so
doing,
	it
	violated 	section
	3543.S(c) 	of 	the
	EERA.
4

The 	hearing 	officer's 	conclusion 	that 	the 	proposal 	offered
by 	SCFA 	was 	not 	one 	for 	released 	time 	placed 	emphasis 	on 	the
statutory 	phrase 	" 	.•• 	when 	meeting 	and 	negotiating." 	It
appears 	that 	he 	defines 	the 	negotiating 	process 	as 	only 	that
time 	when 	the 	parties 	actually 	are 	in 	session.
So 	narrow 	a 	construction 	of 	the 	statutory 	language 	is
unwarranted. 	In 	our 	view, 	the 	phrase 	is 	intended 	to 	permit
teacher 	negotiators 	to 	receive 	released 	time 	for 	periods 	spent
in 	the 	negotiating 	process. 	How 	much 	of 	this 	total 	time 	span
is 	subject 	to 	the 	requirement 	of 	section 	3543.1 	depends, 	of
course, 	on 	what 	is 	"reasonable." 	But 	we 	find 	in 	this 	section
no 	requirement 	that 	the 	time 	employees 	are 	excused 	from 	duty
without 	loss 	of 	compensation 	must precisely 	coincide 	with 	time
actually 	spent 	negotiating. 	As 	we 	pointed 	out 	in Anaheim,
supra, 	section 	3543.1 	evidences 	a 	legislative 	intent 	that
negotiations 	be 	conducted 	and 	concluded 	expeditiously 	and
without 	unnecessary 	impingement 	on 	the 	educational process. 	To
insist 	that 	released 	time 	be 	limited 	to 	those 	periods 	when
negotiating 	sessions 	and 	teaching 	duties 	actually 	coincide,
precludes 	employees 	from 	assigning 	their 	first 	priorities 	to
their 	work 	obligations. 	Employees 	willing 	to 	negotiate
entirely 	on 	their 	own 	time 	in 	order 	to 	minimize 	interruption 	of
work 	assignments 	during 	the 	negotiating 	period 	would 	be
precluded 	from 	proposing 	release 	from 	some 	portion 	of 	their
5

duties 	at 	a 	time 	less 	inconvenient 	to 	the 	educational 	process
or 	from 	duties 	of 	lesser 	importance.
Here, 	the 	teachers 	rearranged 	their 	schedules 	to 	avoid 	a
conflict 	between 	negotiations 	and 	classroom obligations.
Whether 	their 	request 	for 	a 	one-fifth 	reduction 	in 	teaching
load 	was 	reasonable 	or, 	in 	some 	respects, 	inconsistent 	with
their 	rescheduling 	of 	class 	sessions, 	is 	irrelevant 	to 	the
question of 	the 	negotiability 	of 	their 	proposal. 	Thus, 	while
the 	District 	was 	under 	no 	obligation 	to 	accede 	to 	the 	workload
reduction, 	the 	proposal 	was 	lawful 	and 	the 	District 	was
obligated 	to 	respond.
The 	hearing 	officer's 	conclusion 	that 	successful
negotiations 	on 	other 	matters 	negated 	the 	refusal-to-negotiate
charge 	must 	be 	considered 	in 	light 	of 	the 	totality 	of 	the
negotiations 	which 	took 	place. 	Pursuant 	to 	this 	principle, 	the
employer's 	refusal 	to 	agree 	to 	a 	specific 	proposal 	may 	be
lawful 	when 	viewed 	in 	the 	context 	of 	the 	employer's 	general
good 	faith 	negotiation 	posture.3 	However, 	the 	principle 	is
not 	applicable 	where 	the 	employer 	refuses 	to 	discuss 	a 	proposal
because 	he 	denies 	its 	negotiability.4 	In 	such 	a 	case, 	the
3NLRB 	v. 	Virginia Electric 	& Power 	Co. 	(1941)
314 	u--::S:-469 	[9 	LRRM 	4051); 	NLRB 	v. 	Stevenson Brick 	&
Block 	Co. 	{4th 	Cir. 	1968) 	393F.2d 	234 	[68 	LRRM 	2086].
4see 	Johns. 	Swift 	& Co. 	(1959) 	124 	NLRB 	394
[44 	LRRM 	1388].
6

lawfulness 	of 	the 	employer's 	position 	turns 	on 	the
negotiability 	of 	the 	subject. 	Where 	the 	subject 	is 	negotiable,
the 	employer's 	agreement 	on 	other 	matters 	is 	irrelevant. 	Here,
in 	light 	of 	our 	finding 	that 	released 	time 	is 	a 	mandatory
subject, 	the 	District's 	flat 	refusal 	to 	negotiate 	on 	this
matter 	violated 	section 	3543.S(c).
SCFA 	sought 	to 	include 	evidence 	that 	released-time
proposals, 	similar 	to 	its 	own, 	have 	been 	agreed 	to 	in 	other
districts 	and 	that 	similar 	arrangements 	had 	been 	utilized 	by
the 	District 	for 	other 	purposes. 	The 	hearing 	officer 	refused
to 	allow 	this 	evidence, 	apparently 	based 	on 	a 	reading 	of
Magnolia 	School 	District 	(6/27/77) 	EERB 	Decision No. 	19.5
SCFA's 	exception 	to 	the 	hearing 	officer's 	ruling 	is 	well
taken. 	The 	question 	as 	to 	the 	reasonableness 	of 	the 	number 	of
employees 	granted 	released 	time 	or 	the 	amount of 	released 	time
granted, 	is 	one 	of 	fact 	and 	depends 	upon 	the 	particular
circumstances 	in 	which 	negotiations 	take 	place. 	Evidence 	of
practices 	in 	other 	districts 	may 	be 	relevant 	and 	probative.
The 	hearing 	officer 	did 	not 	address 	the 	matter 	of 	the
negotiability 	of 	the 	number 	of 	employees 	to 	be 	released 	without
loss 	of 	compensation 	although 	this 	was 	raised 	by 	the 	charge.
Sprior 	to 	January 	1, 	1978, 	PERB 	was 	called 	the
Educational 	Employment 	Relations 	Board.
7

His 	silence 	may 	have 	been 	the 	result 	of 	his 	view 	that 	no 	legal
proposal 	had 	been 	presented 	by SCFA 	in 	the 	first 	instance. 	As
we 	stated 	in Anaheim, 	supra, 	the 	full 	requirements 	of
section 	3543.1 	are 	within 	the 	scope 	of 	the 	negotiations. 	An
employer 	may 	violate 	its 	section 	3543.5(c) 	obligations 	by
refusing 	to 	negotiate 	either 	the 	amount of 	time 	employees 	are
to 	be 	released 	without 	loss 	of 	compensation 	or 	the 	number 	of
employees 	to 	be 	released. 	Neither 	aspect 	of 	section 	3543.1 	is
subject 	to 	the 	employer's 	unilateral 	determination.
The 	District 	sought 	to 	reopen 	the 	record 	so 	that 	it 	could
give 	evidence 	demonstrating 	that 	the 	SCFA's 	proposal 	would
result 	in 	a 	windfall 	to 	the 	employee 	negotiators 	and 	that 	its
own 	grant 	of 	released 	time 	was 	reasonable 	(Case 	No. 	S-CE-89,
Motion 	to 	Reopen 	the 	Record). 	We 	now 	deny 	that 	request.
The 	District's 	obligation 	to 	negotiate 	over 	released 	time
is 	absolute 	and 	is 	not 	affected 	by 	the 	quality 	of 	the
unilateral 	act 	it 	took 	in 	violation 	of 	its 	duty 	under 	section
3543.5(c). 6 	Similarly, 	while 	an 	alleged 	windfall 	to 	the
employee 	negotiators 	might 	constitute, 	as 	a 	negotiating
position, 	a 	valid 	basis 	for 	the 	District's 	rejection 	of 	SCFA's
proposal, 	it 	would 	not 	constitute 	justification 	for 	the
6The 	Board 	also 	finds 	that 	the 	District's 	conduct
violated 	section 	3543.5 (b). 	San 	Francisco 	Community 	College
District 	(10/12/79) 	PERB 	Decision No. 	105.
8

District's 	refusal 	to 	respond 	in 	the 	context 	of 	good-faith
negotiations.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	the 	law 	and 	the
entire 	record 	in 	this 	case, 	it 	is 	hereby 	ORDERED 	that 	the
Sierra 	Joint 	Community 	College 	District 	shall:
1. 	CEASE 	AND 	DESIST 	from 	refusing 	to 	negotiate 	with 	the
Sierra 	College 	Faculty Association 	on 	the 	subject of 	released
time 	without 	loss 	of 	compensation 	for 	employee 	representatives
and 	the 	number 	of 	employees 	to 	be 	released 	for 	the 	purpose 	of
conducting 	negotiations;
2. 	Immediately 	prepare 	and 	post 	at 	all 	school 	sites 	and
all 	other 	work 	locations 	where 	notices 	to 	employees 	are
customarily 	placed, 	copies 	of 	the 	Notice 	attached 	hereto 	as 	an
Appendix. 	Such 	posting 	shall 	be 	maintained 	for 	a 	period 	of
30 	workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that
said 	Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered
by 	other 	material;
3. 	Notify 	the 	appropriate 	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.
The 	Sierra 	Joint 	Community 	College 	District's 	motion 	to
reopen 	the 	Record 	is 	DENIED.
9

This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	District.
By: 	Chairman 	Barbara 	D. 	Moore, 	Member
Member 	Tovar 	concurring:
I 	concur.
ire'Re 	Tovar, 	Member
10

Appendix:
	Notice.
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing 	in
	which
	all
	parties
	had
	the
	right
	to
participate
	it
	has 	been 	found
	that
	the
	Sierra 	Joint
	Community
College
	District
	violated 	sections
	3543.S(b)
	and 	(c)
	of
	the
Educational
	Employment
	Relations
	Act
	by
	refusing 	to
	meet 	and
negotiate
	regarding
	released
	time
	without
	loss
	of
	compensation
for
	representatives 	of
	the
	exclusive 	representative
	involved 	in
negotiations.
	As 	a
	result
	of
	this
	conduct,
	we
	have 	been
ordered 	to
	post
	this
	notice.
	We
	will
	abide
	by
	the
	following:
We
	will
	not 	refuse
	to
	meet
	and
	negotiate
	with
	the 	exclusive
representative
	over
	the
	subject
	of 	released
	time
	for
	its
organizational 	representatives.
SIERRA JOINT
	COMMUNITY
	COLLEGE
	DISTRICT
By:
_________
.,--
________
_
Authorized
	Agent
Dated:
________________
_
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED FOR
THIRTY 	(30)
	WORKDAYS 	FROM 	THE 	DATE OF
	POSTING
	AND
	MUST 	NOT 	BE
DEFACED, 	ALTERED
	OR 	COVERED BY ANY
	MATERIAL.
1

STATE OF
CALIFORNIA
PUBLIC
EMPI.DYMENT
RELATIONS
BOARD
In
the lli.tter of:
SIERRA
COI.J.EGE FACULTY
ASSOCIATION,
Charging
Party,
v.
SIERRA
JOINT
COMMUNITY
COI.J.EGE
DISTRICT,
Respondent.
)
)
)
)
)
Unfair
Practice
Case
No.
	S-CE-89
PROPOSED
DECISION
(6/23/78)
)
)
)
)
)
)
__________________,)
Appearances: 	Darrel
D.
	Tipton and John Bodney, Attorneys,
	for
Sierra
College Faculty Association; Paul
M.	
Loya, Attorney
(Paterson and Taggart)
	for
Sierra Joint
Conmunity College
District.
Before Terry Filliman, Hearing
Officer.
PROCEDURAL
BACKGR.OillID
On October 11, 	1977, 	the
Sierra
College Faculty Association
(hereafter the Association
or
Charging Party)
	filed
an tmfair practice
charge against the Sierra Joint
Corrm.m.ity
College
District
1
(hereafter
District)
	with the Public Fmployment Relations Board
')
,t;..
(hereafter
1
LSierra
Joint
Conmunity College
District
is
located
in
Placer County and
is
joint
with parts of
Nevada, 	El Dorado and Sacramento Counties. 	The
District
has an average daily attendance
	(AfJA)
	of
5,303. 	Annual Report,
Financial Transactions
Concern~
School
Districts of California, FiscalYear 1975-76, prepared by Kenne 	Cory, 	State Controller
at
pp. 	526-527.
2Effective January 1, 1978, 	the Educational Employment Relations Board
was renamed the Public Employment Relations Board.
1

PERB)
	alleging violations
of
Government
Code
sections
3543.1,
3543.3 and 3543.5(b) and
	(c).
3
On
October 27, 	1977,
	the
District
filed
an answer
to
the
charges.
A formal
hearing
was
held
on January 5, 	1978
at
the
PERB
Sacrarrento Regional
Office.
	At
this
hearing,
	the
Association withdrew
those aspects
of
the
charge
'Which
alleged
that
the
District
had
violated
&ections 3543.3 and 3543.5(c) by
taking negotiable rratters before
the
faculty senate.
FINDINGS
OF FACT
The
parties stipulated that
the Association
is
an employee
organization within the
rreaning
of
the
Educational Employment
Relations
Act4
(hereafter
Act) 	and
the
	Association
is
the exclusive
representative for
employees
in
a
certificated
teacher
unit.
	Additionally,
the
rarties
	~tipulated
that
the
District
is
an employer
within
the
rrean:L."'1g
of
the
Act. 	These
stipulations are
accepted without
further
inquiry.
Negotiation Sessions
Early
in
the 1976-77 school year, 	several instructors
5 employed
at
Sierra
College prearranged
their
teaching schedules so
that
	they would
3
A11
references are to the
GovernnEI1.t Code
unless otherwise
indicated.
4Government
Code
	section
3540
	et
seq.
Sni.e evidence indicates that the
follav."d...~g
employees
of
the
District
were present
at
the September 8, 	1977 negotiation rreeting as members
of
the Association's negotiating team: 	Bruce Broadwell,
	Patricia
Robertson,
	Clair
Parsh,
	D::m
Edgar, 	Garvin Jabusch, 	and Evie Cogley.
At the September 20, 	1977 meeting two other employees were present
inaddition to the above
listed
merribers: 	Paul 	Linder and Pauline Bond. 	These
are the
in$t"l:UCt01;"$. who
apparentJy_ prearra!lged
their
schedules
in
order
to have time for negotiations.
2

have no scheduled classes between 1:30 to approximately 5:00 or 6:00 p.m.
on Tuesdays and Thursdays. 	This prescheduling was to give the instructors
certain hours free from scheduled instruction and office hours durinp; 'Which the:v
could negotiate with the District as m.eEJbers of the Association's ne?,otiatinp,
team.
The Association's negotiating team ITElTlbers decided to schedule "free
t:irre" for negotiating so as to preclude interferences with scheduled
class time. 	This scheduling of "free time" occurred without :input or
participation by the District although the schedule requests were accepted
by the District's administration.
Although five negotiation sessions were originally scheduled, 	only
two sessions were held - one on September 8, 	1977 and the other on
September 20, 	19770
At the first negotiation session, 	the Association presented proposed
ground rules for the 1977-78 negotiation sessions. 	The purpose of
this meeting was to arrive at sane agreanent on the ground rules for
future meetingso
~rticle 4 of rhe ARRnciRtinn'R proposed ground rules presented a request
for released time as follows:
"4o 	SCFA representatives shall be provided with necessary
release time without loss of compensation for the purpose
of negotiation sessions. 	Necessary release time shall be
1/5 of the full t~ loado"
The Association through its spokesperson, Mro 	Richard Baker, 	specifically
asked for released time for the September 8th meeting and for future meetings
in accordance with its interpretation of 'What release t:i..I!"le meant ·within the
camn.mity college setting.
In response, 	the District spokesperson, Ms. Edna Francis, 	said that
the District team would have to consult with the Board of Trustees
about the concept of released time. 	Moreover, Mso 	Francis concluded that
3

no
released
tine,
	as
	the
term was
defined
by
the Association,
would be
granted
for
	the
first
session.
Initially,
	about
ten
proposals
were submitted by
the
Association.
Both
parties
discussed
the
proposals and each
party
submitted co1.mter-
proposals regarding rrost
issues.
	D-.rring
the
first
session
agreement
was
reached on
rmst
of
the proposals.
At
the
second
negotiation session,
	conducted on September 20, 	1977,
the
District
asserted
that
no
released
time would be
granted
to
Association
members according
to
the
terms
of
the 	Association's released
time
proposal.
The
District
made
no counterproposal
for
an
alternate
solution to
the Association's request.
	However,
	at
this
	second meeting,
	Mr.
	Baker
made
an informal
request to
hold
negotiating
meetings
in
the
ITXJrning.
Ms.
	Francis maintained
that
rorning
meetings were inconvenient
for
administrative
r.iembers
	of
the
rnanagerrent
negotiating
team and
therefore
ITXJrning
meetings were unacceptable. 	She
asserted that
the
scheduled
afternoon meetings were
better
suited
to both teams' 	convenience.
At
the
September
20
rreeting,
	it
was
	generally
agreed
by both
sides
that there
was a
technical question as to
what
section 3543.l(c) meant by
"released
timeo" 	The
Association maintained
that further negotiations
could
	not
continue
tmtil
the "released
time"
	issue
was resolvedo
Thereafter, 	the Association
filed
an
tmfair practice
charge
in
order to
let
the
PERB
resolve the problem. 	At no time did the
District
propose
to
call
a
halt to the sch.:duled negotiation sessj_ons.
Both negotiation sessions took place from 3:00
t:::>
approximately
5:00 p.m. During these two sessions 	none
of the Association team members
had scheduled classes or scheduled office hours. 	fureover,
	it
is the
4

District's
position
that
if
any
of
the
instructor/teammer:ibers had had
office
hours
or classes
scheduled during
negotiations,
	those
instructors
muld
have been
relieved
of
their
required
duties.
At
both sessions
there
appeared
to
be
considerable interchange
between
the
parties
as
to
the Association's
proposal
for released
time.
The
Association
interpreted released
time
as
a
release
from any
portion
of
the
undefined
faculty
workday -
	including teaching,
	office
hours,
	corrmittees
and homework
or
preparation
time - which
contributes to the negotiating
team mer::iliers'
	professional
responsibilities.
	The
Association's
request for
a
one-fifth
reduction
in
workload assumed
that
actual
lost
time could
not
be measured and a
calculated
average
IIIl.lSt
be
	arrived
at.
The
District's
position
\vas
	that
released
time
entailed release for
those
mer::iliers
of
the negotiating
team
who
were
actually
scheduled
for
class or office
hours during
negotiations.
At one
of
the sessions,
Ms.
	Francis
asked
if
what
the Association
really
was
requesting
was "compensatory time
off".
	There was
	some
deliberation
and
discussion
arrong
the /\Ssociation team members about
the question but ultimately
Mr.
	Baker
replied that, 	in
substance,
	that
was what was requested.
At both sessions, neither the
District
nor the Association made
any concessions with respect to the Association's 	released
time proposal.
Neither side
made any counterproposals even though
there
was
	considerable
discussion as to
what was meant by the proposal as submitted and
what the Rodda Act required (infr.g). 	Near the end
of the second
session, 	after neither party would
relent or at least
submit c01mterpropbsals
the District indicated that
it
had tenninated
its
discussion of the
released tiine proposal.
5

Subsequent to the two negotiation rreetings, Mr. 	Baker discussed with
Ms. Francis over the phone the subjects of released tirne proposals and
future meetings. 	Ms. Francis once again stated that 	released tirne
would not be granted as requested.
Faculty 	Workload
The evidence indicates that there is no uniform workday or
vv0rkweek for instructors in the District. 	Instead there are several
District policies which limit and define portions of the workday and "WOrk-
week.
A full-tirne teaching load consists of 15 hours per week per instructor.
If an instructor teaches a lab, 	the full-time load is 18 hours. 	In
addition to this classroom time, 	each full-time faculty nanber is required
to maintain seven hours of scheduled office or conference hours per week.
Both office hours and classroom hours are scheduled through the school's
administration 	and may occur during rrorning, afternoon or evening hours.
As a guide for scheduled activities, District policy dictates that
when conference hours are added to the full teaching load each full-time
6
instructor is required to be on canpus a minimJm of 25 hours per week.
Additionally, 	each instructor IlllJSt be on campus a rninim..lrn of three 	(3) hours
per day.
In addition to scheduled obligations, 	instructors are expected to
expend time for class preparation, attendance recording, 	grading papers
and participating as :rnerrbers of faculty comnittees. 	These unscheduled
obligations can be carried out whenever the instructor's tirne is available,
unless such obligations are fonnally scheduled.
°To arrive at the 25 on-campus hours, 	the District adds the full-time
teaching load to the office hour requirenEnts. 	District policy allows
for three "fudge" hours if an instructor does not teach a lab. 	These
three "fudge" hours include comnittee ti.rre which may be scheduled for
the ir1s trt1ctor.
6

Generally
the
time
for class
preparation
is
considered
to
vary
between
one and
three
hours
	for
each hour
of
instruction
due
to
each
instructor's
individual
abilities
and experience. 	Although
total
workweeks
may
vary
greatly
from
individual
to
individual, 	the
evidence
indicates
that
full-time
instructors
may
work 40
to
45
hours
per
week.
In
1974, a
Sierra
Corrmmity College
faculty
corrrnittee prepared
a
self-study report
'Which
was
approved by
the
District
and submitted
to
the
state
accreditation
team.
The
report
recognized a concept
of
"assigned time"
'Which
was
	tilre
granted
to instructors for extra
preparation
or for
	developing
new
programs. 	The
"assigned time" was recognized by
the
District
as
an
offset
to
classroom time, 	thus reducing
the teaching load by a
proportional
am::mnt
of
non-classroom duty hours.
	It
is
	the Association's position
that this
concept
of
"assigned time"
	is
	synonynous
with "released
tilre"o
Several examples
of
"released time," as understood by
faculty
members,
were presented
at
the hearing.
	One
witness, 	Claireva Cogley, 	a
current
counsel
member
for the Association, wclS a forrner
president of
the Association under
the
Winton Act. 7
Ms.
	Cogley as forrrer
president
of
the Association was granted
full-day
time
off
from
her duties for
16 days
(eight days
per
year)
	in
order
that
she could
attend
state
meetings.
Mr.
	Clair
Parsh, 	a
negotiating
team
merriber
for the Association, was
formerly a
division chairperson
in
the business departrrent
at Sierra
CoIIIIn.lility College.
	As
a former division chairperson he received a 1/5
7The Winton Act, repealed by the Educational Fnployment Relations Act,
was found in Education Code section 13080
et
seq.
7

reduction
in
his
	teaching load as well
as
	extra
compensation
for
his
position
as chairperson.
	It
appears
	that this
reduction plus
compensation
occurred during
the
operation
of
the
Winton Act.
In the past, the District has granted released time to members of	
In
the
past,
	the
District
has
granted
released
tilre
to
menbers
of
the classified employee organization who attended approximately	
the
classified
employee
organization
who
attended
approximately
10 or 11 negotiating sessions. In so doing, the District agreed to a	
10
or
11
negotiating sessions.
	In
so doing,
	the
District
agreed
to
a
block
grant
of
hours
for released
time
for
manbers
of
the negotiation
team 	as
against
a
variable release
from
specified duties.
In
contrast,
	the
District
did not
propose a
total
nurrber
of
hours
of
released
time
for the Association's negotiating
team menbers
who
attended
the sessions held
September 8 and 20, 	1977.
ISSUES
1.
Did
the
District
deny
the
charging
party
its
rights
under
section
3543.5(b) by
refusing to
grant reasonable
released
time as
required
by
section
3543.1?
2. 	(a) Did
the
District
refuse or
fail
	to negotiate
in
good
faith
the subject
of
released
time and thereby
violate
section
3543.5(c)?
(b)
	If
not, 	did the
District
refuse or
fail
	to negotiate
in
good
faith
the subject of
compensatory time
off
and thereby
violate
section 3543.5(c)?
CONCLUSIONS OF
I.AW
I.
	3543. 5 (b)
The Association maintains
	that
its
rights
were denied by the
District
due to the
latter's
refusal to grant the Association's request for 	a
block grant of released time during the year. 	The Association, 	pointing to
8

the scheduled and unscheduled work week of its full-tirr:e faculty members,
seeks tirr:e off with compensation from duties 'Which might 	have been
perfonned during the negotiation sessions although $UCh duties were not
scheduled to occur during those sessions. 	The denial of the Association's
request is alleged to be a violation of section 3543.S(b)~
On the other hand, 	the District contends that the Charging Party's
rigid proposal for released tirr:e was unreasonable because it did not
come within the meaning of released tirr:e as intended by the Legislature
and because it was unnecessarily inflexible to changing circumstances.
Furthenrore, 	it is the District's position that the Association actually
sought compensating tirr:e off in return for the tirr:e its faculty members
spent in negotiation sessions. 	Therefore, 	due to the nature of the
request for tine off with compensation, 	the District feels its refusal
to grant the request does not constitute a violation of the Act.
The resolution of this element of the tmfair charge requires some
clarification of the legislative intent behind the released tirr:e
provisions. 	1-breover, 	it is necessary to set some parameters for the
meaning of "reasonable released tirr:e" in order to determine if it was
tmlawfully refused or denied.
Section 3543.1 provides the employee organizations with certain
rights. 	Section 3543.l(c) provides:
(c) A reasonable rnJ1:rber of representatives of an exclusive
representative shall have the right to receive reasonable
periods of released tine without loss of compensation 'When
meeting and negotiating and for the processing of grievances."
8section 3543.S(b) provides that it shall be tmlawful for a public school
employer to:
(b) Deny to employee organizations rights guaranteed to them by
this chapter.

Section 3540.l(h) provides in pertinent part:
"(h) Meeting and negotiating rreans meeting, 	conferring,
negotiating, 	and discussing by the exclusive
representative and the public school employer in a good
faith effort to reach agreement on matters within the
scope of representation ••• ''
Sections 3543.l(c) and 3540.l(h) fil.lSt be read together in order
to determine the ti.ire period which released ti.ire covers. 	Released ti.ire
should be granted when the employer and exclusive representative ~et,
confer, negotiate and discuss in good faith matters which co~ within
the scope of negotiation. 	These two sections indicate that released
ti.ire is a trade-off or exchange for ti.ire spent negotiating and that
the representatives of the exclusive representative shall be released
from certain obligations when negotiating. 	It does not follow- that
the legislation intended that released ti.ire should be granted
in addition to ti.ire spent negotiating; 	otherwise the Legislature would
have so provided.
Sections 3543.l(c) and 3540.l(h), taken together, 	indicate that the
Legislature intended that released time be granted in order to facilitate
face-to-face ~et and negotiation sessions. 	Public school employers
m.1St provide reasonable periods of released ti.ire to the representatives of
an exclusive representative to prorrote easier access to the negotiating
process than would otherwise be possible. 	This rationale for
released ti.ire should not be construed generally to extend the released
time concept to include time off from employment duties which do not
conflict with negotiation sessions. 	To allow too broad an interpretation
of released time, 	as suggested by the Association, 'WOuld mreasonably
burden the employer.
10

Nowhere
in
the
Act
is
it
fotmd
that
the
Legislature
intended
that
the
employer must
bear
an
extra financial
burden, beyond
that
contemplated,
when
meeting and
negotiating.
In
M:3.gnolia
Educators
Association
	(EERB
Decision
No.
	19, Jtme 27, 	1977),
the
Board
for
	the
first
	time
treated
the
issue of
released
time.
	In
that
case, 	the
Board found
that
in
the
face
of
an employee
organization's
repeated requests
	for negotiation
sessions
during classroom hours,
	as well
as
	similar
requests
by a mediator,
	it
was a
per se
violation of
the
Act
for
the
District
to
restrict
released
time
to
one
half-hour
of
non-
teaching time
at
the
end
of
the
instructional
day. 	That
per se
violation
was due
to the
"rigidity
and
inflexibility of
the
District's
policy"
regarding
released
time.
	Id.
	at
p.
	4.
The Board,
	in
M:3.gnolia, went on
to
say:
"'Reasonable
released time'
	means,
	at
least, 	that
the
District
has
	exhibited
an open
attitude in
its
consideration
of
the armunt
of
released
time
to
be allowed so
that
thearmunt
is
appropriate to the
circlllllStances
of
the
negotiations ••• A
district's
policy
does
not
provide
forreasonable periods
of
released
time
if
the policy
is
unyielding to
changing circumstances." Id.
	at
p. 	5.
Federal precedent on
the subject
of
released
time
is
not
directly
relevant
because
there
is
no
section
of the
National Labor Relations Act
(hereinafter the
NLRA)
	as amended, 9 which
is
comparable
to section 3543.l(c).
Considering both the
legislative intent of section 3543.l(h) and
M:3.gnolia,
	it
is
concluded
that released time should encompass a
release
929 U.S.C. 	150
et
seq.; 	the National Labor Relations Act was amended by
the Labor Managem2nt Relations Act
in
1947.
11

from those scheduled activities which the representatives of the exclusive
representative would otherwise be obligated to perform during the
negotiating sessions. 	However, M:3.gnolia adds one mre qualifier
to released time require:rrent. 	The Board, 	therein, 	considered several
factors which bear on reasonableness of released time, 	particularly:
"[R] easonable needs of the District, - the nu:rber of hours
spent in negotiations, 	the nurrber of errployees on the
employee organization's negotiating team, 	the progress
of the negotiations and other relevant factors."
Id., 	at p. 	5.
Therefore, reasonable released time entails a release from scheduled
activities which coincide with negotiation sessions provided that the
released periods are reasonable according to the circumstances of each
case. 	Thus the reasonable provision could conceivably extend released
time beyond the b01.mds of coinciding scheduled duties.
The Association takes the position that each negotiating faculty
meniber 	should be released from 1/5 of his or her teaching load and its
attendant preparation and paper grading obligations, regardless of whether
the negotiation sessions occur during or after classroom instruction
periods. 	11Jreover, 	the Association seeks compensation for the periods
of release even though there may be no overlap with negotiation
sessions. 	This concept of "reasonable release time" arrm.mts to a
request for time off from non-coinciding duties with compensation in
exchange for time spent meeting and negotiating.
It is recognized that faculty menibers at Sierra Corrm..mity College
may work long hours in addition to their scheduled duties. 	Added
together, 	the working hours of an instructor could exceed 40 or even 50
hours per week. 	These long hours may be expected of professional college
12

instructors
because
of
the nature
of
their
work. 	However,
	aside
from
their
scheduled
duties,it
is
	evident
that
these college
instructors
can
perfonn
their
tm.Scheduled
duties
when they so
desire
with
the
sole
proviso
that
the
work be accomplished.
A
hypothetical
extension
of
the Association's request
for
"reasonable
released
time"
	is
necessary
to
see the
impracticality
of
the request.
If
negotiation
sessions
were
to
occur on a weekend, by
Im.1tual
agreement,
the
Association could be seeking
to
have
its
negotiating
team
receive
extra
pay and time
off
from
preparation
time
that
they chose
to
perfonn
on a Saturday
or
Sunday. 	Thus
	the Association's negotiating
manbers
w0uld be
receiving "released
time"
for
periods
other
than
~eting
and
negotiation,
	in
contradiction
of
section 3543.l(c).
	If
the
Legislature
would have envisioned such a concept
of
"reasonable
released
time"
it
could have so provided.
Furthenmre,
	it
carm.ot be found
that
the
District's
released
time
policy
is
so
rigid
and
inflexible
as
	to
arrount
to
a
per se violation of
-,-,
the
Act.
	1·Jc1gno
	M~	
1•
ia,
	supra,
	at
p.~~. 	The evidence
indicates
that
the negotiating
faculty
merIDers
	independently agreed
to
	arrange
their
schedules so
that
the negotiation sessions would
not
interfere
with
their
scheduled
classroom
duties. 	llireover, 	the evidence
indicates that
the
District
would have
released faculty negotiators
from scheduled
office
hours and
teaching duties
	if
an overlap with negotiation sessions had occurred.
Nevertheless, 	the
District
did agree to hold the
~etings at
the times
prearranged by the Association.
Unlike Magnolia, no formal requests were made by the Association for
negotiation sessions during scheduled class hours. 	Only an informal suggestion
13

was
made
at
the
second
negotiation
rreeting
of
September 20, 	1977,
	to
hold
future sessions
in
the
rrorning hours.
	The
District
indicated
its
dissatisfaction
with the idea
and
indicated
that
it
wanted
to
hold
sessions
during
the
hours as
originally
scheduled and suggested by
the
Association.
	Without rrore evidence
the
charging
party
has
failed
to
	show
that
the
District's
policy
was
	fatally rigid
and
inflexible.
In
contrast to
this
holding,
	the
Association argues
	that'
if
it
is
a
per se
violation
to refuse
to
grant released
time during the
instructional
day (as
in
1:1agnolia), 	then
it
rrust be a
per se
violation of
the
Act
to
refuse to grant released
time
outside the
instructional
day. 	This
argument
fails
	for
	several reasons.
1:1agnolia involved a
distinctly
different fact pattern.
	As
noted
above,
	there
were
several requests for negotiation sessions during
teaching hours, 	tmlike the
instant
case. 	The
instant
case involves a
corrr.JLmity
college teaching environment
i;,-Jhich
	is
much
less structured
than
that
fotmd
in
Magnolia, 	a
K-12
district.	
In
the
instant
case, tmlike
Magnolia,
	the
District
policy
tcJward
released
time was
not
fatally rigid
and
inflexible.
	And
lastly,
	the
instant
case does
not
involve a
request for "reasonable released
time" as contemplated by the Legislature.
In
conclusion,
	it
is
	fotmd
	that
the Association did not
make
a
request for reasonable releaskd time. 	The
request
was
	for compensatory
time
off.
	Unlike the released tinE requirement, 	the Act does not
require that
a public school employer grant compensatory tirrE
off
although
that matter
may be negotiated.
14

Based on
the
foregoing,
	it
	is
found
	that
the
Association
did
not
prove by a preponderance
of
the
evidence
that
the
District's
released
time
policy
was
unreasonableo 	Therefore,
	the
District
did not
violate
sections
3543ol(c) 	and 3543o5(b) by denying
the Association's request
for
"reasonable
released time."
II.
	3543o5(c)
A.
	The Charging
Party
contends
that
the
District
has
violated
section
3543.5(c) by
refusing to negotiate the issue of released
time. 	The Charging
Party
maintains
	that
released
time
is
a
mandatory
subject
of negotiation,
	and a
failure
or refusal
	to
negotiate
such a
subject
does
not require
an
inquiry
into
elements
of
good
faith.
The
District,
	both during the hearing and
in
its
brief, 	asserts
that
released
time
is
a ground
rule
and
is
not
a proper
subject
of negotiations
under
the
Rodda
Act.
	"M::>re
specifically
it
	is
argued
that
released
time
is
a
right
held
by the exclusive
representative
which
may
be enforced without
resorting to the
negotiations process.
Section 3543.5(c) provides
	that
	it
shall
be an
unfair practice
for
a public school employer to:
(c) 	Refuse
or
fail
	to
meet and
negotiate
in
good
faithwith an exclusive representative.
Section 3543. 2 provides
	in
perti..nent
part:
The scope
of representation shall
be limited to matters
relating to wages, 	hours of employment, 	and other terms
and conditions of employment. 	'Tenns and conditions ofemployment" 1:leail health and welfare benefits as defined
by section 53200, 	leave, 	transfer and reassigrn::ent policies,
safety conditions of employment, 	class size, 	procedures
to be used for the evaluation of employees, 	organizational
security pursuant to section 3546, procedures for
15

processing grievances pursuant
to
sections
3548.5,
3548.6, 	3548.7, and 3548.8, and
the
layoff
of
probationary
certificated
school
district
e!!lployees, 	pursuant
to
section
¼-959. 5
of
the
Education Code. 	• ••
All matters
not
specifically
enumerated
are
reserved
to the public
school employer and
may
not
be a
subject
of
	u:neeting
and
negotiatingo••
B.
	The
PERB
has
not
dealt
directly
with the issue
of
whether
released
time
is
a mandatory
subject
for
meeting and
negotiating.
	However,
	in
M9.gnolia,
	the
PERB
treated
the
subject
of
released
time
in
a somewhat
different setting
(supra).
In
M9.gnolia,
	the
Board took
the position
that
a
district
IInJSt
ma.intain "an open
attitude in
its
consideration
of
the
arrolIDt
of
released
time
to
be allowed so
that
the
arrolIDt
is
appropriate
to
the
circumstances
of
the
negotiations."
	Magnolia, 	supra,
	at
	5.
	Since a
district
is
	to
consider the
am:>lIDt
of
released
time,
	it
is
con-
cluded
that
it
IInJSt
consider the subject of
relea$ed
time as welL
	fure
importantly, 	since released
time
includes the concepts
of
wages 10 and hours
11.
it
naturally
follows
	that
released
time
is
within the ambit
of
scope
of representation
according
to section
3543.2.
Therefore,
	it
is
folIDd
that the subject of
"reasonable
released
time" comes
within the scope
of
mandatory
negotiating subjects.
10
section 3543.l(c) notes
	that
"reasonable periods of released time without
loss of
compensation"
is
	to be granted when rreeting and negotiating.
AB
noted above, 	the Legislature contemplated a release from scheduled
duties with no similar release from wages. 	This treatrrent of wages
comes within the scope of mandatory negotiating subjects.
11"Hours" are encompassed in the concept of released time because the
negotiating team member
is relieved from scheduled duties which he orshe is expected to perform during coinciding negotiating sessions.
16

The
fact
that
released
time
is
a
statutory
right
created
by
section
3543.1 cannot pre-empt
its
direct
relationship to
the
wages and hours
of
members
of
the
Association's negotiating
team and
its
inclusion
as
a mandatory
subject
of
negotiations.
	Therefore, an
employer
is
allowed
to
unilaterally
adopt a
released
time
policy
which meets mininrurn standards
of
"reason-
ableness", 	but
yet
is
still
required
to
meet and
negotiate
upon proposals designed
to
expand
or other-
wise m:xlify
released
time.
However,
	the
Association
was
not presenting
a proposal
for released
time.
	Instead,
	it
submitted a
request
for
ccmpensating time
off.
	Both
sides
were arguing
different
interpretations
and
different
subject matter.
	Therefore,
it
is
found
	that
the
District
did not refuse to negotiate
the
mandatory
subject
of
released
time as no proposal
was
presented to
it
on the subject.
C.
	In
order
for the
District
to
have
violated
its
duty
to
negotiate
mandatory subjects
in
good
faith,
	it
is
necessary
to find
that
"compensatory time
off"
canes
within the scope
of
mandatory negotiating subjects.
Federal precedent
is
son:EWhat
relevant
12
to the subject
121:Jhere
state.labor legislation is essentially the sarre as federal legislation,
interpretation of the state statute should be made in light of the
federal precedent. 	Fire Fighters Union v. 	City of Vallejo 	(1974)
12 Cal. 	3d 608, 	617, [16 Cal..Rptr. 	507]. 	'
17

of
compensatory tiw= as a mandatory
subject
of
negotiation since section
8(d)
13
of
the
NI.RA,
	as amended,
is
	similar to section
354302
of
the
Rodda
Act
	in
delineating the
bounds
for
mandatory
subjects.
	Although
the
NLRA
does
not
make
ccrupensatory time
off,
	specifically,
a mandatory
subject, 	the
NLRB
has
held
that
arrangements
for negotiations
are
a mandatory
subject
of
bargaining.
N.C.
	Coastal t-btors Lines 	(1970)
	219
NLRB
1009 	[90
LRRM
1114]; 	General
Electric
Co.
	(1968) 	173
NLRB
253 	[69
IRRM
1305].
But rrore importantly,
	since section
3543.2 uiakes wages and
hours
of
employment mandatory
negotiating subjects,
	it
follows
	that
"compensatory time
off''
falls
within
those
enumerated subjectso 	This conclusion follows because
canpensatory time
off entails,
	at
least,
	time
off
frm
hours
of
employment,
with
or
without canpensation,
	in
exchange
for
some
duties or
activities
performed by
the
employee.
D.
	To
find
that
the
District
	violated
	S=ction 3543.
5(c),
	it
ITillSt
be found
	that
the
District failed or refused to negotiate
in
good
faith
the Charging
Party's
proposal
for
canpensatory
time
off.
The duty to negotiate in
good
faith
may be violated without
1329 U.S.C. 	158(d), 	section 8(d)
	in pertinent part states:
(d) For the purposes of this section, 	to bargain collectively
is the performance of the rrutual obligation of the employer
and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, 	hours,
and other terms and conditions of e:nployrnent .•.
18

a treatment
of
the
good
faith
element
'Where
it
is
found
that
a
party
with the
duty has
refused
in fact
	to
negotiate
mandatory
subjects.	
NI.RB
v.
	KATZ
	(1962)
	369
U.S. 	736,
743;
	see
also
NI.RB
v.
	Allison
and
Co.
	(6
CA
1948),
165 F.2d 766,
	cert.
	den.,
	335
U.S. 	814;
	rehearing den.,
335 U.S. 	905. 	Thus
	it
v.0uld appear
to
be
a
per se
violation
of
the
duty
to negotiate
in
good
faith
if
it
were found
that
the
District
in fact
refused
to negotiate
the
compensatory
time
off
issue
presented by
the
Association.
While
	the
District
contends
that
the Association's
proposal,
'Whether
characterized as released
time
or
compensatory time,
was
not
a
negotiable issue,
	it
nevertheless
asserts that
the
management
negotiating
team
did attempt
to
reach agreement
over
the issue.
The
Association presented
its
proposal
for
	compensating
time duriP..g
both
negotiation sessions.
	It
!Il.ade
no formal
alterations
in
its
proposal
but
adhered
to
it
maintaining
that
	it
was reasonable and encompassed the "released
time"
requirement as found
in section 3543.l(c).
In
reply to the Association's requests, 	the
District
responded with
'What
it
considered released time to be. 	At
both negotiation sessions, 	the
District
explained
that there
v.0uld be no released time as proposed because Association
team members were not actually scheduled for classes.
	One
witness for the District,
	Mr.
	Kolster, 	stated that
if
the
19

Association
team members
had been scheduled
for duties
during
the
negotiation
sessions, 	those
members
vJOuld
have
been
released
from
their
scheduled
duties
without
loss
of
compensation.
It
was
at
the
second
session
that
the
District
asked
if
what
was
being
sought
was compensatory
time
off.
	To
this
	the
Association,
	through
Mr.
	Baker,
	replied
in
the affirmative.
While
the
evidence
presented
by
the
parties
as
to exactly
'What
transpired
at
the negotiating
table
during
the
remainder
of that
meeting
is
confusing,
	the record
does
not
support
the
conclusion
that
the
District
refused
further negotiations
on
the subject
of
released
time
or
canpensating
time. 	The
fact that
the
District
may have
	declined
further
discussion
of the released
time proposal
offered
at
that
time
is
not
conclusive evidence
that
the
employer's
position
was one
of
adamant
refusal to negotiate the issue.
	It
did agree
that
if
sessions
were
held
during
class
hours
	that
released
time
vJOuld
be granted. 	Neither the
District
nor the Association
presented
any
explicit
cotmterproposals on
the subject.
FurtheTIIDre,
	it
was
the Association
'Which decided
to terminate
future negotiating sessions,
	a
short
time
later
during the
same meeting, 	because
it
wanted
the matter of released
time
to be determined by
the
PERB.
	Had
negotiations continued,
it
is
possible that the District's
reluctance to carry
on
further discussions 	of the canpensating time proposal could
have developed into a violation. 	One might infer
from
its
position at the hearing regarding the non-negotiability of
20

released time that the District was headed toward conduct
constituting a per se refusal to negotiate. 	But that is mere
conjecture. 	Had the Association persisted in its negotiation
efforts, 	it is possible that some resolution of the proposal
could have been effected. 	Instead, 	all negotiations were
discontinued.
E. 	In the alternative to finding a "per se" violation, 	Charging
Party apparently asserts that the District's conduct regarding
the released time proposal is indicative of overall surface
negotiating attitude in violation 	of 	section 3543.S(c).
If a party derronstrates an tmyielding rigidity during
negotiations which makes negotiations a futility, 	it will
be found that such party has refused to negotiate in good
faith. 	Borg Warner Controls 	(1972) 	198 NLRB 726 	[80 IBRM 1790].
In order to find a refusal, 	it is necessary to examine the
overall conduct of the parties during negotiations and
detennine whether the District negotiated with a desire to
reach an agreement. 	Ibid.
Here it appears that there was considerable interchange by
both parties over the "released time" request. 	Although there
was no agreement and an absence of concessions by both sides
on this issue, 	it carmot be found that such a stalemate,
by itself, 	supports a finding that the District did not
negotiate in good faith. 	To this end, 	an obligation to
negotiate in good faith does not require that the parties
reach an agreement and does not compel either party to make
21

concessions. 	NLRB v. American Ins. 	Co. 	(1952) 	343 U.S.
395 	[30 LRRM 2147]. 	Chevron Oil Co. 	v. NLRB 	(CA 5 1971)
442 F.2d 1067 	[77 LRRM 2129]; 	Proctor and Gamble Manu-
facturing Co. 	(1966) 	60 NLRB 334 [62 LRRM 1617].
The evidence indicates that approximately ten (10)
proposals were submitted by the Association. 	D.rring
both negotiation sessions, 	both parties discussed the
proposals and agreerrent was reached on about eight issues
by the second session. 	Both parties submitted cotmter-
proposals to rrost of the issues which were contested. 	The
exception was with the released tin:e proposal which received
explicit comterproposals from neither side.
The NLRB has held that an employer, 	engaged in hard bargaining,
did not violate its duty to bargain in good faith where it
was shown that the employer was willing to rreet with the mion,
discussions of proposals and comterproposals took place and
the parties actually reached agreerrent on Ill:3IlY issues.
Dierks Forest, 	Inc. 	(1964) 	148 ~TI..RB 923 	[57 LRRM 1086].
Given the overall conduct of the District during the negotia~ion
sessions, 	it is fomd that it did derronstrate a willingness to
arrive at sorre reasonable agreement. 	The District did
submit comterproposals and did arrive at agreerrent on rrost
of the proposals in contrast to the Association's claim of
surface bargaining. 	Cf. NLRB v. Darlington Veneer Co.,
(CA 4 1956) 	236 F.2d 85 	(enf'g 113 NLRB 1101) 	[38 LRRM 2574].
22

The
District's
overall
negotiation
conduct dem:mstrates
	that
it
did
m::,re
than merely
reject
proposals
as
submitted by
the
Association. 	Cf.
	Fitzgerald
Mills
Corp,
v.
	NLRB
(CA
2 1963)
	313
F.
	2d
260,
	(enf'g
133
NLRB
877) 	[52
LRRM
2174].
Therefore,
	it
is
fom.d
that in
the
absence
of
further proof
the
District
negotiated
in
good
faith
and
did not
violate
section
3543.5(c).
PROPOSED
ORDER
It
is
the
Proposed Decision, 	based upon
the
above findings
	of
fact
and conclusions
of
law and
the
entire
record
of
the
case
that:
1.	
The
District
did not
fail
	to
grant
"reasonable periods
of
released tine" 	to
the Association's negotiating
team
and thereby did not
violate
section
3543.5(b);
2.	
The
District
did not refuse
to
negotiate
about the
subjects of released
time
or
compensatory time
off
and
thereby did not
violate
section
3543.5(c);
3. 	The Unfair
Practice
Charge
filed
by
Sierra
College
Faculty
Association
is
hereby
DISMISSED.
Pursuant
to California Administrative Code,
	title
8,
	section
32305,
this
Proposed Decision and Order
shall
become
final
on
July
17, 	1978
m.less a party
files
	a timely staterrent
of
exceptions within twenty 	(20)
calendar days
of service. 	See California Administrative Code,
	title
8,
section 32300.
Dated: 	June 23, 	1978
23
Terry Filliman
Hearing Officer