Palo Alto Unified School District (Fein) (PERB 0184E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DR. 	LOUIS 	FEIN,
Complainant,
v.
PALO 	ALTO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent,
and
PALO 	ALTO EDUCATORS 	ASSOCIATION,
Respondent.
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) 	Case 	No. 	SF-PN-5
PERB 	Decision No. 	184
December 	2, 	1981
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Appearances: 	Dr. 	Louis 	Fein, 	representing 	himself;
Bruce 	A. 	Barsook, 	Attorney 	for 	the 	Palo Alto 	Unified 	School
District.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION
Dr. 	Louis 	Fein 	excepts 	to 	the 	attached 	administrative
determination 	issued 	by 	the 	San 	Francisco 	regional 	director 	of
the 	Public Employment 	Relations 	Board 	(hereafter 	Board)
dismissing 	his 	public 	notice 	complaint 	without 	leave 	to 	amend.
After 	considering 	the 	entire 	record 	in 	light 	of 	the 	exceptions,
the 	Board 	affirms 	the 	regional 	director's 	administrative
determination 	consistent 	with 	the 	discussion 	below.
Dr. 	Fein 	argues 	that 	initial 	proposals 	of 	the 	Palo Alto
Educators Association 	(hereafter 	Association 	or 	PAEA) 	regarding
Article 	II, 	Term 	and 	Article VI, 	Compensation 	violate
subsections 	3547(a) 	and 	(b) 	of 	the 	Educational 	Employment

Relations
	Act
	(hereafter
	EERA
	or 	the
	Act).l	
These
	proposals
allegedly
	violate
	the
	Act
	because 	they
	were
	not
	specific
	and
determinable
	at
	the
	time
	the
	proposals
	were
	made.
Initial
	proposals 	of
	exclusive
	representatives
	and
	of
public
	school
	employers
	must
	satisfy
	the
	intent
	of 	the
	public
notice
	requirements
	found
	in 	subsection
	3547(e)
	that,
.•.
	the
	public
	be
	informed
	of 	the
	issues
that
	are
	being
	negotiated
	upon
	and 	have
	full
lThe
	EERA
	is
	codified
	at
	Government
	Code
	section
	3540
et
	seq. 	All
	statutory
	references
	hereafter
	are 	to
	the
Government
	Code
	unless 	otherwise
	indicated.
Section
	3547
	reads 	in
	pertinent 	part:
{a}
	All
	initial
	proposals 	of 	exclusive
representatives
	and
	of
	public
	schoolemployers,
	which
	relate
	to 	matters 	withinthe
	scope
	of
	representation,
	shall
	be
presented
	at
	a
	public
	meeting 	of 	the
	publicschool
	employer
	and
	thereafter 	shall
	be
public 	records.
(b)
	Meeting
	and
	negotiating
	shall
	not 	take
place
	on 	any
	proposal
	until
	a
	reasonable
time 	has
	elapsed
	after
	the 	submission	
of 	the
proposal 	to 	enable	
the
	public 	to
	become
informed
	and
	the
	public
	has 	the
	opportunityto 	express
	itself
	regarding 	the 	proposal
	at
a
	meeting	
of
	the
	public 	school
	employer.
(e)	
The 	board 	may
	adopt	
regulations	
for 	the
purpose
	of
	implementing
	this 	section,	
which
are 	consistent	
with 	the
	intent	
of
	the
section;
	namely	
that 	the 	public
	be 	informed
of
	the	
issues 	that 	are 	being 	negotiated
	upon
and 	have	
full	
opportunity 	to 	express 	theirviews 	on 	the	
issues 	to 	the	
public 	schoolemployer, 	and	
to
	know	
of 	the	
positions 	of
their 	elected 	representatives.
2

opportunity 	to 	express 	their 	views 	on 	the
issues 	to 	the 	public 	school 	employer, 	and 	to
know 	of 	the 	positions 	of 	their 	elected
representatives. 	(Emphasis 	added.)
The 	Board 	recognizes 	that 	the 	initial 	proposals 	presented
to 	the 	public 	must 	be 	sufficiently 	developed 	to 	permit 	the
public 	to 	comprehend 	them. 	An 	initial 	proposal 	which 	is 	simply
a 	statement 	of 	the 	subject 	matter 	such 	as 	"wages" 	does 	not
adequately 	inform 	the 	public 	of 	the 	issues 	that 	will 	be
negotiated.
In 	this 	case 	the 	Association 	initially 	proposed 	that 	the
compensation 	of 	teachers 	be 	modified 	according 	to 	a 	formula
based 	on 	changes 	in 	the 	Consumer 	Price 	Index. 	Although 	the
actual 	dollar 	and 	cents 	cost 	of 	such 	a 	proposal 	is 	not 	subject
to 	calculation 	in 	advance, 	it 	is 	sufficiently 	developed 	to
inform 	the 	public 	what 	issue 	will 	be 	on 	the 	table 	at
negotiations.
The 	Association 1 s 	initial 	proposal 	concerning 	"Term" 	stated
the 	following: 	"Ar~i~lP 	TT, 	Term, 	'New 	dates 	for 	adoption 	and
expiration.'" 	This 	proposal 	was 	later 	amended 	to 	read
"starting 	with 	the 	adoption 	date 	and 	ending 	June 	30, 	1982."
This 	change 	was 	consistent 	with 	PAEA's 	earlier 	oral
representation 	that 	they 	were 	proposing 	a 	term 	of 	one 	year.
Such 	language 	clearly 	outlines 	the 	issue 	which 	PAEA 	sought 	to
discuss 	during 	negotiations. 	Thus, 	these 	proposals 	satisfy 	the
requirements 	of 	subsections 	3547(a) 	and 	(b). 	The 	decision 	of
3

the
	regional
	director 	is
	affirmed
	and
	the
	instant
	appeal
	is
denied.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record
	in
	this
case,
	the
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	public 	notice
	complaint,
	SF-PN-5,
	filed
	by
Dr. 	Louis
	Fein
	against
	the 	Palo Alto 	Unified
	School
	District
and
	the 	Palo Alto Educators 	Association
	is
	hereby
	DISMISSED
	in
its
	entirety
	without 	leave 	to
	amend.
By-!
John
	Jaeger,
	Member	
Harry 	Gluck,
	Chairperson
,._Barbara
	D.
	Moore, 	Member
4

~if.\1:-0f C..:i.t:FC·rCi"~lA 	EDMUND G. EROWc-l JR .• Go=mor
·- -·--·- 	-.====
? 1•• : 1.::; E,:1.ii?!.OY}AENT }~:i:;L':rno.''i. 	;0,2\~D
S;:1;1 1=rancisco R~gionol Office
':77 hst :3t., 9tn Floor
Sun Frcr.ciso, California 	94103
// 1
	\ ; I ••·'1) ~..	-~57-1350	,._
April 	17, 	1981
Dr. 	Louis 	Fein
Mr. 	Robert 	E. 	McLean
Assistant 	Superintendent
Pal0 	Alto 	Unified 	School 	District
Ms. 	Kathryn 	Hoover 	Calfee
Palo 	alto 	Educators 	Association
Re: 	Palo 	Alto 	Unified 	School 	District
Case 	No. 	SF-PN-5
Dear 	Interested 	Parties:
0 n 	rl a r c: 1 19 , 	19 8 1 , 	Dr . 	Lou 5- s 	Fe i n 	f i l 2 d 	a 	pub 1 i c 	notice
co~plaint 	against 	the 	Palo 	Alto 	Unified 	School 	District
(he:u::i.nc:i.fter 	District) 	alleging 	violations 	of 	sections 	3547 (a)
and 	(b) 	of 	the 	Educational 	Employment 	Relations 	Act
(hereinafter 	Act) . 1 On 	March 	31, 	1981 	he 	amended 	his
complaint 	to 	also
135,17. 	(a) 	.All 	initial 	proposals 	of 	exclusive
representatives 	and 	of 	public 	sc~ool 	e~ployers,
which 	relate 	to 	matters 	within 	the 	scope 	of
representation, 	shall 	be 	pres?~ted 	at 	a 	pu~lic
m2eting 	of 	the 	public 	school 	e~ployer 	ard
thereafter 	shall 	be 	public 	records.
(b) 	M22tin9 	and 	nego~iatins 	sh~ll 	not 	t~~c
pl ace 	on 	any 	pro,?0.3 J.l 	u 11 ti J 	a 	re a. .::;,.::w.,:::. '.")]_ '.:: 	t iine 	h2s
elasped 	after 	the 	sub~issio~ 	o[ 	the 	p=oposal 	to
er1c1:~)le 	th-:: 	public 	t() 	beco7:12 	ir~[c:i:-.·.~2c~ 	.J.t1:J 	t110
fJtJtJl.ic 	hus 	tl-1~ 	C)pp0rt 1
Jnit_y 	t0 	c·::~)·::~~;~~ 	i-~-=eJ_f
rc'.~;c1rr:l.i.r1~; 	tl1--_- 	}_)ror_:cJ:,al 	-:tt 	c: 	·d_~-~~:j_~J 	()f 	t:12 	pLbl5-~---
schoo1. 	cnp1oycr.

allege
	the
	same
	violations	
by	
the 	Palo
	Alta
	Educators
Association
	(hereinafter
	PAEA).
The
	complaint
	alleges 	that
	when
	the	
?~SA	
(the 	exclusive
representative),
	made
	its 	initial
	propos2l 	to 	the
	District,
	two
p~oposals
	were
	not
	specific
	enough
	to
	allow 	the
	public
	to
respond
	in
	any
	meaningful
	way.
	The
	articles
	in
	question
	were
Article
	II,
	Term, 	and
	Article
	VI, 	Compensation.
The
	facts
	in
	this
	case
	are
	not
	in
	dispute
	and
	are
	as
follows:
On
	February 	17, 	1981,
	by
	way
	of
	a
	letter
	dated 	February 	6,
1981,
	the
	PAEA
	notified
	the
	District 	that
	they
	wished
	to
	enter
into 	negotiations
	with 	the
	District
	regarding
	certain 	articles
of 	the
	existing 	contract
	between
	PAEA
	a~d
	the
	District.
	In
that
	communication
	to
	the
	Board
	of 	Education,
	PAEA
	referred.
	to
Article
	II,
	Term,
	as 	follows:
We
	are
	proposing
	a
	one
	year
	ter~.
	Length
depends
	on
	the
	quality
	of 	the
	agreement.
Article
	VI, 	Compensation,
	was
	referred
	to
	as
	follows:
We
	want
	a
	compensation
	and
	benefits
	package
that 	reflects
	the 	increased 	cost 	of
	living
and
	is 	consistent
	with 	the
	District's
ability
	to 	pay.
This 	February
	17
	communication
	was
	not 	the 	formal 	proposaJ
of
	PAEA,
	but
	rather 	notice 	to 	the 	Distr~~t 	that
	~AEA
	wished
	to
open
	negotiations
	on
	certain
	items.
At 	a
	school 	board 	meeting 	on 	March 	3, 	1981
	PAEA
	formally
presented
	its
	1981/8)
	initial
	oroposals	
=~	
the 	IJ~strict
	nnd
	to
2

the
	public.
	The
	texts
	of 	the	
t<.-10 	i
terns
	in 	qu2stion 	are
	as
follows:
Article
	II,
	Term,
	"New
	dates
	for 	adoption
	and
	expiration."
Article
	VI,
	Compensation,
	"Effective
	Septe::.8er
	1,
	1981
	the
existing 	teachers' 	salary
	scheaule
	shall
	have
	the
	March
	to
	March
U.S. 	Department
	of
	Labor 	Consumers
	Price
	Index
	for
	California
Urban
	Centers
	and
	U.S.
	"All
	City"
	Average
	Percentage 	applied
	to
the
	base
	step."
After 	the
	initial
	proposal
	was
	made,
	the 	co~plainant
addressed 	the
	board
	and
	pointed 	out
	that,
	in
	his
	view, 	the
	two
articles
	were
	so
	non-specific
	that
	the 	public
	could 	not
	react
to
	them
	in
	an
	informed	
ano
~
intelligent
	manner;
	he
	then
	asked
the
	District
	to
	reject
	the
	initial
	proposaJs 	as 	inadequate 	for
public 	response.
	The
	District,
	however,
	did 	not
	do
	so.
	Wh2n
asked	
by	
a
	board
	member
	about 	the 	proposal 	regarding
	''Term",
PAEA
	representative
	responded
	orally 	that
	PA2A
	was
	proposing
	a
one	
year 	agreement.
At
	the 	next 	school 	board 	meeting
	on 	March
	17,
	1981
	the
school 	board 	allowed
	opportunity
	for 	public 	response
	to
	PAEA's
initial
	proposals.
	At
	that
	meeting
	Dr.
	Fein
	once
	again
	argued
that
	the
	two
	articles
	in 	question
	were
	not
	specific
	enough
	to
allow 	meaningful 	respons2 	by	
the 	pu~lic.
I:1
	response 	to 	the 	school 	board,
	Dr.
	Fein 	ac~~o~ledgea
	th~t
3

"Term" 	had
	been
	mat:le
	orally,
	ho',•1ever,
	and
	the
	written
	proposal
which
	was
	included 	in 	the 	packet 	of 	information 	aisseminated
for
	the 	school
	board 	meeting
	was
	not 	changed.
	It
	still
	listed
the 	proposal
	as
	"new
	dates
	for 	adoption
	and
	expiration."
On	
March
	31,
	1981
	an
	informal 	conference
	was
	held
	pursuant
to
	PERB
	Regulation 	37030.
	The
	conference
	was
	attended
	by
	the
complainant,
	representatives
	of
	PAEA
	and
	the
	District,
	and
	the
San
	Francisco
	Regional
	Director.
	At
	the 	conf~rence 	the
	PAEA
once
	agc:iin
	clarified
	the 	proposal
	on
	"Term"
	a.na
	gave
	the
District
	representative
	a
	letter
	dated
	March
	31,
	1981
	stating
the 	following:
As 	was
	stated
	in
	our
	Contract
	Articles
Opened
	memo
	of
	February
	6,
	1981 	(Enclos~re
No.
	un-numbered,
	Agenda
	IteD 	10-A,
	Board
Meet
i n g
	February
	1 7 ,
	19 81
) , .	
"';·i
e 	a r
E:
proposing
	a
	one
	year
	term."
we
	would
	like
	to
	araend
	our
	contract
	wording
for
	Article
	II,
	Term
	intial
	proposal
	to 	read
''starting
	with 	the 	a~option 	date
	and
	ending
June 	30,
	1982."
	This
	is
	consistent 	with
	my
answer
	to
	Mrs.
	Young's 	question
	at 	the
meeting 	of
	March
	3,
	1981
	(Minutes, 	Page
	7,Paragraph
	2.)
·
We
	also 	request 	that
	we
	not
	discuss 	Article
II,
	Term
	until
	the 	public
	has
	had 	an
opportunity 	to 	respond.
sianed 	Kathryn 	Hoove~ 	Calfee
Palo 	Alto
	Educators
	Asso2i2tio~Ne9otiution
	TeJm
The 	March
	31, 	1981
	letter
	was
	put
	on
	the 	ac~~~·
	Eor
	the

meeting.
	At
	the 	meeting 	the
	letter
	was
	presented 	to
	the
	school
board
	which
	agreed
	to
	allow
	public 	input
	at
	its
	A9ril
	21,
	1931
meeting.
	It
	also
	agreed 	not
	to
	negotiate
	o~er
	the
	term
	of 	the
agreement
	until 	after
	that
	meeting.
This 	charge
	alleges 	violations
	of 	the
	Act
	by
	both
	the
employer	
and	
the
	eQployee
	organization.
	In
	t~is
	case
	th~
District
	did
	exactly
	what
	it
	is
	required 	to
	do.
	It
	receiveC
PAEA's
	proposal,
	put
	it
	on
	the 	school
	board
	agenda
	and 	mad~
	it
public.
	The
	District
	then 	provided
	an
	opportunity 	fer 	public
comment
	at
	one
	of
	its
	school
	board
	r;,,eetings.
	A
District
	h2s
	no
authority
	to
	dictate
	the
	content 	of
	a
	union
1 s
	proposal.
	For
	it
to
	interfere
	in
	any 	way	
with
	the
	formul2.tion
	of 	the
	unio:-1 1 s
proposals
	may
	very
	well	
be 	an
	It
therefore
	has
	no
	authority
	to
	do
	what
	is
	requestea
	by
	the
complainant,
	i.e.,
	reject
	the 	union's 	proposel
	as 	inadequate
for 	public 	response.
Therefore 	the
	co~plaint,
	as
	filed
	against
	the
	District, 	is
dismissed 	for
	failing
	to
	state
	a
	prima
	facie 	violation
	of
	the
Act. 
The
	complaint 	as
	filed 	against 	the	
e-;-ci,c)lc;'::E: 	8r9a:1iz2:tic:i,1
	is
rnore
	complex.
to
	have
	thP 	opportunity 	to 	e~~ress
	itself
	o~
	praposa:s, 	tho32
p r
op
o s
al
s
	mu
s t 	be 	spec
i f i c 	c
c,
o 	1	1
_;.
g h
	to
	b
c:	
u
:-,
, e
:::
s
to
,x1 ,	
It
	is
	no:

\
more
	than
	a
	proposal
	that
	the
	parties
	enter
	into
	negotiations
without
	making
	a
	substantive
	proposal
	at
	all.	
As	
such,
	it	
C'.)2S
not 	provide
	the
	public
	with
	an
	OP?Ortunity
	to
	give 	meaningful
input
	prior
	to
	the
	start
	of
	negotiations.
	I,
	therefore, 	find
that
	as
	to
	Article
	II,
	Term,
	the 	complaint
	agai~st
	the
	employee
organization
	does
	allege
	a
	prirna
	facie
	violation
	of 	the Act.
Pursuant 	to
	PERB
	Regulation
	37030(g), 	the
	Regional
	Director
has
	authority 	to
	dismiss
	a
	complaint,
	if,
	once
	a
	prima
	facie
violation 	is
	found,
	the
	parties 	voluntarily
	comply
	with
	the
Act.
	In
	this
	case,
	the
	employee
	organization
	a8ended	
11..S
position
	to
	clarify
	in 	writing
	that
	the
	proposal
	is
	a
	o~e-year
agreement.	
The	
District:	
rnac1e	
ti1at:
	cl2rificat:ion
	public	
and·
~as
agreed
	to
	allow
	further 	public 	input
	at
	the 	ne~t
	school 	boar~
rneetir.g.
	The
	parties
	have
	also
	agreed 	not
	to
	enter 	into
negotiations
	on
	the
	subject
	until 	after
	the
	public
	has
	had
opportunity
	to 	provide
	further
	input.
. ;..
Although
	it
	is
	generally
	unadvisa~le 	to 	allow
	negotiatio~s
to
	begin
	on
	some
	items
	prior 	to 	public 	inout
	on
	all
	items,
	I
feel
	the
	facts 	of 	this 	individual
	case 	warrants
	such
	a
	solut~on.
On
	at 	least
	four 	occasions
	at 	public 	school
	board 	meeti~gs
the 	public
	was 	made
	aware
	that
	PAEA
	was
	proposing
	a
	o~e-y~ur
a g
re
2
rn
en
t ; 	f i
rs
t
	on 	Feb r u a r y 	1 7 	b
:'/
	way 	o = t h e 	Pi'\);
i\
	F:::::
b r u 2 r /	
E.
letter,
	then
	orally
	on 	March 	3
orally
	and
	in 	writing
	on
	April 	7.

there
	is
	any
	real
	confusion
	in
	anyone's
	~ind 	as
	to
	what was
actually
	being 	proposed
	by 	PAEA.
The
	complaint
	against
	the
	PAEA
	regar6ing
	Article
	II,
	Term,
is
	therefore
	dismissed
	because 	the
	parties
	are
	voluntarily
complying
	with
	the
	public 	notice 	provisions
	of 	the
	Act.
Because
	full
	voluntary
	compliance
	will
	not 	be 	achieved
	until
the 	public
	has
	an
	opportunity 	to
	respond
	to
	the
	clarified
written
	proposal
	at
	the 	April
	21,
	1981
	schooJ
	bo~ra
	meeting, 	the
Regional
	Director
	will 	retain 	juriscliction
	over	
tlle	
compl1ance
issue.
	That
	aspect 	of
	this
	case
	will
	no~
	be
	closed
	until
	full
compliance
	has 	been
	achieved.
The
	second
	proposal
	at
	issue 	is 	Article
	VI,
	Compensvtion.
The
	complainant 	argues
	that
	b2cc1use
	the
	>'.arch
	to
	March 	Consu;:1er
Price
	Index
	is
	uncertain 	at 	this
	time, 	the
	cast
	of 	the
	proposal
is
	unknown
	and,
	therefore,
	he
	is
	unable
	to 	formulate
	a
	respo~se.
Dr.
	Fein 	argues
	that
	it
	is 	possible 	to
	respond
	only
	to
	a
specific
	percentage 	proposal.
	Dr.
	Fein,
	ho~ever, 	confuses
specificity
	of
	a
	proposal 	with 	the
	ability
	to 	accurately
determine 	the 	cost 	of
	such
	a
	proposal. 	?here
	is
	nothing
whatsoever
	vague
	or 	uncertain
	about
	PAE~'s
	proposal.
	It
	very
specifically 	calls
	for
	a
	wc1ge
	increase
	~~ea
	to 	the 	cost 	of
living.
	The
	public
	can
	easily 	identify
	~~at
	PA~A
	is
	propos~~g
even 	though
	it
	may
	not
	be
	able 	to
	accur2~ely
	determine 	th~
	cost
of: 	the 	proposal.
7

dental
	benefits
	program,
	without
	specifying 	exactly
	which
program;
	or
	a
	proposal
	that
	teachers 	receive
	an
	additional 	fixed
sum
	of
	money
	for
	every
	student 	in
	the
	classroo~
	in
	excess
	of
	30
without
	knowing
	exact
	enrollment
	figures.
If
	Dr.
	Fein
	feels
	the 	proposal
	is
	unwise
	because 	the
District
	or
	the
	public
	won't
	be
	able 	to 	accurately
	calculate
its
	ultimate 	cost, 	that 	is 	precisely
	the 	type 	of
	input
	he
should 	give
	to 	the
	District
	at
	the 	school 	board
	2~eting
provided
	to
	receive 	public 	input.
For
	the 	reasons
	set
	forth
	above,
	th~ 	coIDplaint
	against	
0
AEA
regarding
	Article
	VI, 	Compensation,
	is
	dismissed 	for
	failure
	to
state
	a
	prima
	facie 	violation
	of
	the 	Act.
ORDER
1.
	The
	complaint
	against
	the
	District 	is
	dismissed 	for
failure
	to
	state
	a
	prima
	f~cie
	violation.
2.
	The
	complaint
	against
	the
	PAEA
	regarding
	Article
	II,
Term,
	is
	dismissed 	because 	the
	parties
	are
	voluntarily
co@plying
	with 	the 	public 	notice 	provisions 	of 	the 	Act.
3.
	The
	complaint 	against
	the
	PAEA
	regarding
	Article
	VI,
Co~pensation,
	is
	dismissed 	for
	failure
	to
	state
	a
	prim~
	facie
vioL:ition.
An
	appeal 	of
	this 	decision
	n~y 	be 	ade 	to 	the
	Bo2rd
	itaelf
bv
-
	Eilinq
.. 	a
nC,

Executive
	Assistant
	to
	the
	Board
	a~ 	923
	12th
	Street,
	Sacranento,
ca
l i
for
r:
i a 	9 5
,S
l
Lj
•
	Cop
i
es
	of
	a :1 y 	a pp?: a l
	:-:,
'.l 3 t
	'::,
e 	c
'.)
n c
11
r
rent
1 y
served	
Lipon	
211
	parties
	and
	the
	San
	?ran=i:co 	?e9:onal
	Office.
Proof
	of
	service
	0£
	the
	app2al
	~ust
	b2
	filed
	~ith
	the 	Executive
1\ssist:2.nt.
Should
	you
	have
	any
	questions
	concerning
	this
	matter, 	please
contact
	me.
Very
	truly
	yours,
JN•iES
	VJ.
	'TAlil."1
Regional
	Director