Oakland Unified School District (PERB 0236E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES 	ASSOCIATION
Charging 	Party,
v.
OAKLAND UNIFIED 	SCHOOL 	DISTRICT
Respondent.
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} 	Case 	No. 	SF-CE-400
PERB 	Decision No. 	236
August. 31, 	1982
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Appearances: 	Andrew 	Thomas 	Sinclair, 	Attorney 	for 	Oakland
School Employees 	Association; 	Michael 	S. 	Sorgen, 	Attorney 	for
Oakland 	Unified 	School 	District.
Before 	Jensen, 	Member; 	Gluck, 	Chairperson; 	and 	Morgenstern,
Member.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board} 	on 	exceptions 	filed 	by 	the 	Oakland
Unified 	School 	District 	(hereafter 	District}, 	and 	a 	response 	to
those 	exceptions 	filed 	by 	the 	Oakland 	School Employees
Association 	(hereafter 	OSEA}. 	The 	proposed 	decision 	of 	the
hearing 	officer 	is 	incorporated 	by 	reference 	herein. 	In 	that
proposed 	decision, 	the 	hearing 	officer 	found 	that 	respondent
violated 	subsections 	3543.S(a}, 	(b}, 	and 	(c} 	of 	the 	Educational
Employment 	Relations 	Actl 	(hereafter 	EERA or 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	specified, 	all 	references 	shall 	be 	to
the 	Government 	Code.
Subsections 	3543.S(a}, 	(b}, 	and 	(c} 	provide 	as 	follows:

Act) 	by 	its 	unilateral 	deferral 	of 	2 percent 	of 	an 	8 	percent
employee 	tax 	sheltered 	annuity 	(hereafter 	TSA) 	plan 	with
payment 	of 	the 	deferred 	amount 	to 	be 	made 	from 	(anticipated)
reserves 	in 	the 	subsequent 	fiscal 	year. 	The 	hearing 	officer
ordered 	the 	District 	to 	provide 	payment 	to 	the 	TSA 	fund 	of 	that
amount 	withheld 	from 	the 	time 	of 	the 	deferral 	until 	present 	and
ordered 	the 	District 	to make 	monthly 	payments 	at 	8 percent
until 	and 	unless 	a 	different 	timing 	schedule 	or 	amount 	is
agreed 	upon 	between 	the 	parties.
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(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.
The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of
respondent's 	exceptions 	and 	charging 	party's 	responses 	thereto,
and 	affirms 	the 	hearing 	officer's 	findings 	of 	fact 	and
conclusions 	of 	law 	as 	summarized 	and 	modified 	infra.
FACTS
The 	District 	employs 	approximately 	7,000 	employees. 	Out 	of
approximately 	3,000 	classified 	employees, 	OSEA 	is 	the 	exclusive
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representative 	for 	approximately 	2,200 	employees 	for 	a 	"white
collar" 	unit 	and 	a 	paraprofessional 	unit. 	The 	white 	collar
unit 	has 	a 	collective 	negotiating 	agreement 	covering 	the 	period
of 	April 	4, 	1979 	through 	June 	30, 	1981.
On July 	24, 	1979, 	the 	Governor 	signed 	the AB 	8 School
Finance 	Bill, 	at 	which 	time 	the 	District 	became 	aware 	that 	it
was 	facing 	a 	budget 	deficit 	of 	approximately 	$7 	to 	$8 	million
for 	the 	upcoming 	1979-80 	fiscal 	year. 	The 	District 	was
required 	to 	submit 	a 	balanced 	budget 	to 	the 	county
superintendent 	by 	September 	7, 	1979 	or 	face 	the 	consequences 	of
the 	county 	not 	honoring 	its 	pay 	warrants. 	The 	District
proceeded 	to 	have 	a 	series 	of 	three 	budget 	workshops 	which
included 	participation of 	the 	District 	budget 	advisory
committee 	(hereafter 	DBAC).2
The 	first 	budget 	work 	session 	took 	place 	on August 	2, 	1979
and 	included 	19 	"recommended 	budget 	cuts" 	as 	well 	as 	10
additional 	"other 	possible 	cuts." 	Item 	19 	called 	for 	the
deferral 	in 	payment 	of 	approximately 	3 percent 	of 	TSA 	for 	an
estimated 	savings 	of 	$2.4 	million. 	The 	TSA 	program 	had 	been
established 	by 	the 	District 	in 	1971. 	Article VIIB 	of 	the
District's 	contract 	with 	OSEA 	sets 	forth 	the 	District's
2DBAC 	is 	a 	group 	of 	representatives 	of 	employee 	groups,
student 	groups, 	administrators, 	civic 	organizations, 	etc. 	which
functions 	to 	bring 	community 	input 	to 	the 	board 	of 	education
and 	also 	advises 	the 	board 	on 	the 	budget.
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agreement 	to 	contribute 	to 	the 	TSA 	at 	the 	rate 	of 	an 	amount
equal 	to 	8 percent 	of 	the 	employee's 	salary.3 	The 	District's
proposal 	was 	to 	delay 	payment 	of 	a 	percentage 	of 	the 	8 percent
until 	July 	1980, 	at 	which 	time 	the 	District 	believed 	that 	it
would 	have 	sufficient 	revenues 	to 	restore 	the 	full 	amount 	of
the 	annuity.
The 	next 	budget 	work 	session 	took 	place 	on August 	9, 	1979.
The 	board 	became 	concerned 	about 	the 	various 	employee
organizations 	and 	rescheduled 	the 	next 	session 	from August 	16
to August 	23 	to 	allow 	the 	District 	the 	opportunity 	to 	confer
with 	them. 	District 	Business 	Manager 	w. 	B. 	Lovell 	testified
that 	the 	board 	suggested 	that 	the 	District 	should 	advise 	the
employee 	groups 	with 	regard 	to 	the 	1979-80 	budget 	and
particularly 	with 	regard 	to 	the 	deferral 	of 	the 	TSA. 	Lovell
stressed 	that 	these 	meetings 	were 	not 	for 	the 	purpose 	of
3Article VIIB 	reads 	as 	follows:
The 	District 	agrees 	to 	continue 	its
contributions 	to 	the 	Annuity 	Program 	for
employees 	covered 	by 	this 	Agreement 	at 	the
rate 	of 	an 	amount 	equal 	to 	8% 	of 	the
employee's 	salary.
1. 	The 	employee's 	money 	in 	this 	plan 	shall
become 	available 	to 	the 	employee 	upon
termination 	of 	his/her 	employment 	or 	upon
permanent 	disability.
2. 	A 3-year 	period 	of 	employment 	is
required 	for 	employees 	hired 	after 	March 	31,
1978 	as 	a 	vesting 	period 	for 	eligibility 	to
receive 	funds 	from 	this 	program. 	[OSEA
Exh. 	l.]
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conducting 	negotiations 	with 	the 	employee 	organizations:
••• 	They 	were 	merely 	informative 	in 	nature
to 	tell 	them 	and 	to 	get 	from 	them 	any 	ideas
that 	they 	may 	have 	as 	to 	how 	we 	might 	solve
our 	budget problems •••• 	So 	in 	our
discussions 	with 	these 	three 	bargaining
units, 	we 	were 	asking 	them 	for 	any 	help 	or
any 	assistance 	and 	they 	did 	come 	forth 	with
some 	ideas 	that 	we 	did 	utilize 	in 	reducing
the 	burden 	that 	we're 	going 	to 	have 	to 	defer
because 	at 	one 	time 	we 	were 	talking 	about
deferring 	four 	percent, 	another 	time 	three
percent 	of 	the 	TSA 	and 	it 	was 	merely
informative 	in 	nature 	to 	tell 	them 	what 	it
appeared 	we're 	going 	to 	have 	to 	do, 	what 	we
would 	be 	recommending 	to 	the 	board, 	and 	to
solicit 	ideas 	from 	them. 	[Tr. 	pp. 	22-23.]
Seymore 	Rose, 	president 	of 	the 	Oakland 	School Board, 	testified
that 	the 	school 	board 	never 	instructed 	the 	District 	to
negotiate 	per 	se, 	but 	that 	it 	was 	more 	a 	question 	of 	informing
and 	soliciting 	opinions 	of 	the 	negotiating 	units.
Lovell 	testified 	that 	the 	District made 	no 	attempt 	to
negotiate 	with OSEA 	over 	the 	deferral 	of 	the 	TSA 	because 	the
District 	didn't 	feel 	they 	had 	to 	negotiate 	and 	that 	the 	only
thing 	that 	prevented 	the 	District 	from 	negotiating 	was 	that 	it
did 	not 	see 	the 	necessity 	for 	negotiating.
Ann 	Spraque, 	vice 	president 	of 	OSEA, 	testified 	that 	at 	one
of 	these 	early 	budget 	sessions, 	she 	asked 	how 	the 	District
could 	just 	unilaterally 	defer 	2 percent 	and 	that 	she 	was
informed 	by 	Lovell 	that 	it 	was 	the 	District's 	position 	that 	the
issue 	was 	nonnegotiable. 	The 	record 	indicated 	that 	the
District 	adopted 	and 	maintained 	this 	position 	of
nonnegotiability 	from 	the 	very 	start 	of 	these 	budget 	sessions.
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Lovell 	met 	with 	the 	employee 	organizations, 	meeting 	with
Bill 	Freeman, 	the 	president 	of 	OSEA, 	on August 	14, 	1979.
Though 	Lovell 	testified 	that 	it 	was 	his 	recollection 	that 	if
the 	deferral 	of 	TSA 	payments 	were 	the 	lesser 	of 	two 	evils, 	OSEA
would 	favor 	that 	rather 	than 	layoffs. 	He 	acknowledged 	that 	no
commitment 	was 	made 	by OSEA 	to 	support 	the 	idea 	of 	the 	deferral
of 	the 	TSA. 	Lovell 	testified 	that 	negotiating 	was 	never
discussed 	at 	these 	meetings.
On August 	23, 	1979, 	the 	board 	held 	its 	third 	budget
session. 	The 	District's 	proposed 	recommended 	budget 	cuts
presented 	to 	the 	board 	at 	this 	third 	session 	incorporated 	the
first 	18 	"recommended 	budget 	cuts" 	as 	set 	forth 	in 	the
District's August 	2, 	1979 	proposal. 	The 	District 	presented
three 	alternatives, 	A, 	Band C, 	for 	the 	board's 	consideration
in 	addition 	to 	the 	enumerated 	18 	items. 	In 	essence, 	the
difference 	between 	the 	proposed 	alternatives 	was 	that
alternative 	A involved 	no 	layoff 	but 	deferral 	of 	the 	TSA, 	while
alternatives 	Band C involved 	layoffs 	but 	no 	deferral 	of 	the
TSA.
Ann 	Sprague 	appeared 	before 	the 	board 	at 	the
August 	23, 	1979 	meeting 	on 	behalf 	of 	OSEA 	and 	questioned 	Lovell
about 	the 	proposed 	deferral 	of 	the 	TSA, 	asking 	whether 	the
District 	had 	some 	hope 	of 	recovering 	monies 	to 	immediately
replace 	the 	TSA 	that 	was 	deferred. 	Spraque 	stated 	to 	the 	board
that 	if 	the 	board 	intended 	to 	defer 	any 	TSA, 	the 	board 	should
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adopt 	some 	sort 	of 	policy 	that 	would 	guarantee 	the 	replacement
of 	any 	additional monies 	into 	the 	TSA.
In 	light 	of 	those 	questions, 	Sprague 	stated 	that CSEA 	would
favor 	alternative 	A, 	which 	recommended 	the 	deferral 	of
2 percent 	of 	the 	TSA. 	Spraque 	explained 	that 	her 	comments 	to
the 	board 	on August 	23 	were 	made 	in 	the 	context 	of 	the 	board
having 	already 	decided 	to 	defer 	the 	TSA 	and 	that 	she 	felt 	that
it 	was 	a 	hopeless 	situation 	with 	really 	no 	alternatives 	being
considered 	other 	than 	massive 	layoffs. 	Spraque 	testified 	that
she 	had 	noted 	from 	the 	previous 	work 	sessions 	that 	the 	board
seemed 	absolutely 	determined 	to 	go 	with 	the 	deferment.
On August 	29, 	1979, 	the 	board 	adopted 	the 	District's
recommendation 	on 	the 	budget, 	including 	the 	adoption 	of
alternative 	A, 	wherein 	the 	2 percent 	of 	the 	annuity 	payment 	was
to 	be 	deferred 	until 	July 	1, 	1980, 	with 	the 	stipulation 	that
there 	would 	be 	no 	interest 	lost 	to 	employees 	in 	the 	deferral
plan 	(Dist. 	Exh. 	5, 	p.2).
On September 	6, 	1979, 	OSEA 	filed 	its 	unfair 	labor 	practice
charge 	against 	the 	District.
The 	District 	excepts 	to 	the 	hearing 	officer's 	finding 	of
violation, 	asserting 	that 	the 	District's 	deferral 	of 	payments
to 	the 	employees' 	TSA 	did 	not 	constitute 	a 	unilateral 	change 	on
a 	matter 	within 	the 	scope 	of 	representation 	since 	it 	was
consistent 	with 	past 	practices 	and 	since 	it 	had 	no 	adverse
impact 	on 	the 	employees; 	that 	the 	District's 	action 	was
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required 	by 	business 	and 	operational 	necessity; 	that 	OSEA
waived 	its 	right 	to 	negotiate 	by 	never 	demanding 	negotiations
and 	by 	acquiescing 	in 	the 	decision; 	and 	finally, 	that 	the
hearing 	officer's 	proposed 	remedy 	exceeds 	the 	authority
conferred 	by 	the 	Act 	and 	by 	PERB 	regulations.
DISCUSSION
We 	find 	that 	the 	deferral 	of 	the 	TSA 	constituted 	an 	issue
within 	the 	scope 	of 	representation 	as 	defined 	by
Section 	3543.2.4
In Anaheim Union High 	School 	District 	(10/28/81) 	PERB
Decision No. 	177, 	the 	Board 	determined 	that 	a 	matter 	is 	within
4section 	3543.2 	provides 	in 	pertinent 	part 	as 	follows:
(a) 	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. 	• 	••
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the 	scope 	of 	mandatory 	negotiations 	where 	it 	is:
••• 	(1) 	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 	a 	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 	prereogatives
(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the
[agency's] 	mission. 	(Pp. 	4-5.)
The 	TSA 	fund 	certainly meets 	this 	test. 	The 	District's
payment 	into 	the 	employees 	TSA 	fund 	represents 	a 	fixed
8 	percent 	of 	the 	employees' 	salary 	and, 	as 	such, 	is 	part 	and
parcel 	of 	the 	employees' 	wages. 	This 	TSA 	contribution 	is 	of
equal 	concern 	to 	both 	management 	and 	employees 	whose 	interests
are 	appropriately 	represented 	at 	the 	negotiating 	table.
Furthermore, 	there 	is 	nothing 	in 	the 	record 	to 	support 	a
finding 	that 	the 	District's 	freedom 	to 	exercise 	those
managerial 	prerogatives 	(including 	matters 	of 	fundamental
policy) 	essential 	to 	the 	achievement 	of 	its 	mission 	would 	be
significantly 	abridged 	by 	a 	requirement 	that 	it 	negotiate 	a
change 	in 	its 	practice 	and 	policy 	with 	respect 	to 	the 	TSA.
There 	is 	ample 	authority 	that 	an 	employer's 	unilateral
change 	of 	a 	matter 	within 	the 	scope 	of 	representation, 	without
affording 	the 	exclusive 	representative 	notice 	of 	and 	an
opportunity 	to 	negotiate 	over 	the 	matter, 	constitutes 	a 	per 	se
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failure 	or 	refusal 	to 	negotiate 	in 	good 	faith. 	San Francisco
Community College 	District, 	(10/12/79) 	PERB 	Decision No. 	105,
San Mateo County Community College 	District, 	(6/8/79) 	PERB
Decision No. 	94, 	Pajaro Valley Unified 	School 	District,
(5/22/78) 	PERB 	Decision No. 	51; 	NLRB 	v. 	Katz 	(1962) 	369 	U.S.
736 	[59 	LRRM 	2177]. 	This 	Board 	has 	previously 	stated 	that
unilateral 	changes 	are 	disfavored 	because 	of 	their
destabilizing 	and 	disorienting 	impact 	on 	employer-employee
relations, 	for 	their 	derogating 	effects 	upon 	the
representative's 	negotiating 	power 	and 	ability 	to 	perform 	as 	an
effective 	representative 	in 	the 	eyes 	of 	employees, 	and 	because
such 	action 	denegrates 	negotiations 	consistent 	with 	the
statutory 	design 	under 	EERA, 	and 	finally, 	because 	such 	action
unfairly 	shifts 	community 	and 	political 	pressure 	to 	employees
and 	their 	organizations, 	and 	at 	the 	same 	time 	reduces 	the
employer's 	accountability 	to 	the 	public. 	San Mateo 	County
Community College 	District, 	supra, 	pp. 	14-17.
Past 	Practice
The 	District 	maintains 	that 	its 	deferral 	of 	payments 	to 	the
employees' 	TSA 	did 	not 	constitute 	a 	unilateral 	change 	on 	a
matter 	within 	the 	scope 	of 	representation 	since 	it 	was
consistent 	with 	past 	practices. 	The 	District 	maintains 	that
the 	past 	practice 	of 	not 	negotiating 	over 	the 	timing 	of 	the
payments 	justifies 	the 	District's 	action. 	The 	record
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indicates 	that 	starting 	in 	the 	1974-75 	fiscal 	year 	the 	payments
were 	generally made 	on 	a 	monthly 	basis. 	However, 	during 	each
fiscal 	year 	there 	was 	some 	variation. 	Usually 	there 	were 	at
least 	a 	couple 	of 	delayed 	payments 	of 	the 	TSA 	contribution
occurring 	within 	the 	same 	fiscal 	year.5
While 	the 	District 	appeared 	to 	have 	discretion 	in 	the
timing 	of 	its 	payments 	to 	the 	employees' 	TSA, 	and 	the 	timing
itself 	was 	unspecified 	in 	the 	contract, 	the 	District 	was
contractually obligated 	to 	contribute 	an 	amount 	equal 	to 	eight
percent 	of 	its 	employees' 	salary 	into 	the 	TSA. 	The 	deferral 	of
2 percent 	of 	the 	TSA 	in 	1979-80 	was 	not 	in 	adherence 	to 	the
District's 	past 	practices. 	Previously, 	the 	District 	had 	always
made 	the 	full 	8 percent 	contribution 	into 	the 	TSA 	fund. 	While
the 	District may 	have 	delayed 	payment 	of 	the 	contribution
within 	a 	fiscal 	year, 	never 	before 	had 	the 	District 	deferred 	a
portion 	of 	the 	8 percent 	TSA 	contribution 	into 	a 	subsequent
fiscal 	year. 	This 	action 	was 	unprecedented 	and 	would 	result 	in
the 	District 	contributing 	only 	6 percent 	of 	its 	employees'
salary 	into 	the 	TSA 	fund 	during 	1979-80. 	Payment 	of 	this
deferred 	amount 	was 	contingent 	upon 	the 	District 	committing
5For 	example, 	in 	the 	1977-78 	fiscal 	year, 	the 	employer's
TSA 	contribution 	for 	the 	months 	of 	July 	through 	October, 	1977
was 	made 	on 	November 	16, 	1977.
11

monies 	in 	the 	1980-81 	budget 	to 	recover 	the 	2 percent. 	The
District's 	past 	practice 	defense 	is 	rejected.
Impact
The 	District 	further 	argues 	that 	the 	deferral 	of 	TSA
payments 	did 	not 	constitute 	a 	unilateral 	change 	on 	a 	matter
within 	the 	scope 	of 	representation 	since 	it 	had 	no 	adverse
impact 	on 	the 	employees. 	Notwithstanding 	the 	District's
promise 	to 	restore 	the 	funds 	in 	the 	subsequent 	fiscal 	year, 	the
unilateral 	change 	did 	in 	fact 	result 	in 	a 	reduction 	by 	2
percent 	of 	the 	employer 	contribution 	into 	the 	TSA 	fund 	for
1979-80. 	Any 	restoration 	of 	funds 	by 	the 	District 	was
contingent 	on 	the 	board's 	willingness 	to 	encumber 	those
reserves 	for 	payment 	of 	the 	amount 	deferred 	in 	the 	1980-81
fiscal 	year. 	Though 	the 	District 	anticipated 	receiving
adequate 	monies 	in 1980-81 	from 	which 	to 	restore 	the 	2 percent,
at 	the 	time 	of 	the 	decision 	to 	defer 	the 	funds 	needed 	to
reinstate 	the 	deferred 	amount 	did 	not 	exist. 	The 	District
argues 	that 	the 	charge 	was 	filed 	prematurely 	and 	should 	have
been 	filed 	only 	had 	there 	been 	an 	actual 	adverse 	impact 	caused
by 	the 	board's 	renegation 	of 	its 	promise 	to 	reinstate 	the
funds. 	This 	argument 	ignores 	the 	fact 	that 	the 	board 	did
indeed 	take 	a 	unilateral 	action 	which 	would 	result 	in 	a 	6
percent, 	as 	opposed 	to 	an 	8 percent, 	employer 	contribution 	to
the 	employee 	TSA 	fund 	for 	1979-80, 	which 	has 	a 	measurable
impact, 	putting 	the 	actual 	restoration 	of 	the 	deferred 	amount
12

into 	question. 	Furthermore, 	the 	circumvention 	of 	the
negotiating 	obligation 	in 	itself 	has 	a 	direct 	adverse 	impact 	on
the 	employees 	by 	denying 	them 	the 	opportunity 	to 	have 	their
interests 	represented 	by 	their 	exclusive 	representative. 	We
reject 	the 	District's 	argument.
Business 	Necessity
The 	District 	next 	argues 	that 	its 	action 	was 	required 	by
business 	necessity. 	The 	main 	argument 	proffered 	by 	the
District 	is 	that 	it 	was 	working 	within 	an 	acute 	time 	frame 	due
to 	the 	fact 	that 	they 	were 	required 	to 	submit 	a 	balanced 	budget
by 	September 	7, 	1979. 	This 	contention 	cannot 	withstand
scrutiny. 	w. 	B. 	Lovell 	testified 	at 	length 	concerning 	the
District's 	posture 	that 	it 	was 	not 	required 	to 	negotiate 	over
the 	deferral 	of 	the 	TSA. 	The 	District 	became 	apprised 	of 	its
budget 	deficit 	situation 	at 	the 	end 	of 	July 	1979. 	Therefore,
the 	District 	had 	five 	to 	six 	weeks 	time 	in 	which 	to 	negotiate.
Lovell 	was 	questioned 	specifically on 	this 	point 	and 	testified
that 	there 	could 	have 	been 	negotiations 	if 	the 	District 	had
felt 	a 	need 	to 	negotiate. 	Lovell's 	testimony 	certainly
undercuts 	the 	District's 	argument. 	The 	record 	bears 	out 	that
negotiations 	were 	never 	attempted 	due 	solely 	to 	the 	District's
position 	that 	they 	were 	not 	obligated 	to 	negotiate.
This 	Board 	has 	addressed 	the 	claim 	of 	business 	necessity 	as
a 	defense 	to 	unilateral 	changes 	by 	the 	employer 	in 	financial
crises. 	PERB 	has 	held 	that 	the 	financial 	uncertainty
engendered 	by Proposition 	13 	did 	not 	relieve 	the 	school
13

districts 	of 	their 	obligation 	to 	negotiate 	proposed 	changes.
San 	Mateo 	County Community College 	District, 	supra; 	San
Francisco Community College District, 	supra. 	We 	stated 	quite
clearly 	in San 	Francisco, 	supra, 	at 	pp. 	10-11 	that:
Even 	when 	a 	District 	is 	in 	fact 	confronted
by 	an 	economic 	reversal 	of 	unknown
proportions, 	it may 	not 	take 	unilateral
action 	on 	matters 	within 	the 	scope 	of
representation, 	but must 	bring 	its 	concerns
about 	these 	matters 	to 	the 	negotiating
table. 	An 	employer 	is 	under 	no 	obligation
at 	any 	time 	to 	reach 	agreement 	with 	the
exclusive 	representative. 	The 	duty 	imposed
by 	the 	statute 	is 	simply--but
unconditionally--the 	duty 	to meet 	and
negotiate 	in 	good 	faith 	on 	matters 	within
the 	scope 	of 	representation. 	Thus 	the
confusion 	bred 	by 	the 	passage 	of
Proposition 	13 	did 	not 	excuse 	the 	District's
obligation 	to 	meet 	and 	negotiate 	with 	the
Federation, 	nor 	did 	it 	justify 	the
District's 	unilateral 	action.
The 	District 	attempts 	to 	differentiate 	the 	Proposition 	13
cases 	from 	its 	own 	factual 	situation 	relying 	solely on 	the
presence 	of 	an 	acute 	time 	frame. 	However, 	the 	record 	shows
that, 	in 	fact, 	the 	"acute 	time 	frame" 	was 	not 	truly 	a 	factor 	in
the 	District's 	decision 	to 	take 	the 	unilateral 	action 	to 	defer
2 percent 	of 	the 	TSA 	payment. 	All 	along, 	the 	District 	took 	the
position 	that 	it 	was 	under 	no 	obligation 	to 	negotiate 	over 	the
deferral.
The 	District 	further 	attributes 	significance 	to 	the 	fact
that 	it 	held 	meetings 	with 	employee 	representatives 	to 	discuss
the 	proposal 	and 	to 	solicit 	suggestions. 	The 	District,
14

however, 	cannot 	argue 	that 	such 	sessiops 	relieved 	it 	of 	its
negotiating 	obligation. 	These 	sessions 	were 	not 	negotiation
sessions 	and 	the 	District 	announced 	at 	these 	sessions 	that 	it
had 	no 	intention 	to 	negotiate 	over 	its 	proposal 	and 	was 	merely
soliciting 	suggestions. 	This 	falls 	far 	short 	of 	its
responsibility 	to 	negotiate 	over 	the 	proposed 	change.
Waiver
The 	District 	next 	argues 	that 	OSEA 	waived 	its 	rights 	to
bargain 	by 	never 	demanding 	negotiations 	and 	by 	acquiescing 	in
the 	decision. 	The 	National 	Labor 	Relations 	Board 	(hereafter
NLRB 	or 	National Board) 	and 	this 	Board 	have 	consistently 	held
that 	the 	waiver 	of 	bargaining 	rights 	by 	a 	union 	will 	not 	be
lightly 	inferred; 	it must 	be 	clearly 	and 	unequivocally 	conveyed
(Amador 	Valley Joint 	Union High 	School 	District 	(10/2/78) 	PERB
Decision No. 	74; 	Caravelle 	Boat 	(1977) 	227 	NLRB 1355 	[95 	LRRM
1097]) 	or 	demonstrated 	by 	behavior 	waiving 	a 	reasonable
opportunity 	to 	bargain 	over 	a 	decision 	not 	already 	firmly 	made
by 	employer. 	San Mateo 	County Community College 	District,
supra; 	NLRB 	v. 	Cone Mills 	(4th Cir. 	1967) 	373 	F.2d 	595 	[64 	LRRM
2536]; 	Caravelle 	Boat, 	supra. 	This 	Board 	stressed 	in San
Francisco Community College 	District, 	supra 	at 	p. 	17, 	that
11 ••• 	we 	will 	find 	a 	waiver 	only 	when 	there 	is 	an 	intentional
relinquishment 	of 	these 	rights, 	expressed 	in 	clear 	and
unmistakable 	terms 	. . 	" 	Finally, 	silence 	does 	not
constitute 	a 	clear 	and 	unequivocal 	manifestation 	of 	the 	union's
15

intention 	to 	waive 	its 	right 	to 	complain 	about 	such 	action.
Caravelle Boat, 	supra.
In 	the 	instant 	case, 	the 	District 	at 	all 	relevant 	times,
took 	a 	position 	that 	it 	was 	not 	going 	to 	bargain 	about 	the
deferral 	of 	the 	TSA, 	that 	the 	issue 	was 	nonnegotiable. 	The
District 	argues 	that OSEA's 	waiver 	is 	evidenced 	by 	the 	fact
that 	Ann 	Sprague, 	OSEA's 	vice 	president, 	made 	a 	statement 	at 	a
public 	board meeting 	stating 	that 	the 	proposal 	was 	acceptable
and 	preferable 	to 	employee 	layoffs. 	However, 	the 	District
ignores 	the 	fact 	that Ms. 	Sprague's 	comments 	at 	the
August 	23, 	1979 	board 	meeting 	were 	in 	response 	to 	imminent
board 	action 	on 	the 	matter, 	after 	her 	attendance 	at 	earlier
budget 	work 	sessions 	where 	she 	was 	told 	that 	the 	District 	was
not 	going 	to 	negotiate 	about 	the 	deferral. 	Certainly, 	given
the 	District's 	position 	on 	the 	nonnegotiability, 	and 	Ms.
Spraque's 	testimony 	concerning 	the 	perceived 	inevitability 	of
the 	action, 	her 	comments 	on 	the 	preference 	of 	deferral 	over
employee 	layoffs 	did 	not 	concede 	the 	District's 	right 	to 	take
action 	without 	negotiating 	with 	the 	exclusive 	representative 	of
its 	employees. 	Ms. 	Spraque's August 	23rd 	statement 	was 	that 	if
the 	board 	intended 	to 	defer 	the 	TSA, 	then OSEA would 	favor
alternative 	A. 	This 	is 	certainly 	not 	a 	clear 	and 	unequivocal
waiver 	of 	the 	union's 	intention 	to 	waive 	its 	negotiating
rights. 	Rather, 	it 	was 	an 	opinion 	expressed 	in 	the 	context 	of
imminent 	board 	action 	on 	the 	matter. 	The 	District 	maintained 	a
16

position 	of 	nonnegotiability 	throughout 	the 	entire 	relevant
time 	period 	and, 	as 	such, 	expressed 	its 	refusal 	to 	negotiate
over 	a 	matter 	within 	the 	scope 	of 	representation 	which 	would
have 	rendered 	a 	request 	to 	negotiate 	from 	OSEA 	futile.
In 	NHE/Michigan, 	Inc., 	d/b/a NHE 	Lansing 	and Michigan
Council 	#58, 	(1975) 	219 	NLRB 	833 	[90 	LRRM 	1128], 	respondent
employer 	had 	sent 	a 	letter, 	through 	its 	counsel, 	to 	the 	board
agent 	clearly 	stating 	that 	it 	would 	not 	commence 	bargaining
with 	or 	recognize 	the 	union. 	The 	National Board 	held 	that
further 	requests 	to 	bargain 	would 	have 	been 	futile 	in 	light 	of
respondent's 	letter, 	which 	itself 	constituted 	a 	refusal 	to
bargain 	as 	of 	that 	date.6 	The 	National 	Board 	has 	also 	held
that 	an 	explicit 	refusal 	to 	bargain made 	in 	order 	to 	test 	a
certification 	will 	also 	be 	considered 	as 	a 	continuing 	refusal
to 	bargain, 	making 	it 	futile 	and 	therefore 	unnecessary 	for 	a
union 	to 	make 	further 	requests 	to 	bargain. 	Williams 	Energy
Company, 	supra. 	We 	find 	the 	District's 	position 	in 	the 	instant
case 	analogous 	to 	the 	facts 	confronted 	in NHE/Michigan 	Inc.,
supra, 	and Williams 	Energy Company, 	supra, 	in 	that 	the
6There 	is 	extensive 	NLRB 	authority 	holding 	it 	unnecessary
for 	a 	union 	to make 	further 	requests 	to 	bargain 	where 	it 	would
be 	futile. 	Sewanee 	Coal 	Operations 	Association, 	et. 	al. 	(1967)
167 	NLRB 	172 	[66 	LRRM 	1022]; 	enforcement 	denied 	on 	other
grounds, 	sub 	nom. 	Tennessee 	Products 	and 	Chemical 	Corporation
v. 	NLRB 	(6th Cir., 	1970) 	423 	F.2d 	169; 	Decker 	Disposal 	Inc.
(19m-111 	NLRB 	879 	[68 	LRRM 	1306]; 	Williams 	Energy 	Company
(1975) 	218 	NLRB 	1080 	[89 	LRRM 	1637]; 	Dardanell Enterprises 	Inc.
(1980) 	250 	NLRB 	377 	[104 	LRRM 	1397]; 	Sunnyland 	Refining Company
(1980) 	250 	NLRB 	1180 	[105 	LRRM 	1041].
17

District's 	announcement 	that 	it 	had 	no 	intention 	to 	bargain
over 	the 	deferral 	from 	the 	onset 	made 	a 	union 	request 	to
bargain 	futile, 	and 	therefore 	unnecessary. 	The 	announcement
itself 	constituted 	a 	per 	se 	refusal 	to 	bargain 	over 	a 	matter
clearly 	within 	the 	scope 	of 	representation. 	We 	therefore
reject 	the 	District's 	argument.
REMEDY
Certain 	aspects 	of 	the 	hearing 	officer's 	order 	were 	not
excepted 	to 	by 	either 	party. 	Except 	as 	otherwise 	indicated,
those 	matters 	not 	excepted 	to 	and 	therefore 	not 	considered 	are
adopted 	by 	the 	Board.7 	The 	District 	however, 	takes 	exception
to 	paragraph 	4(a) 	of 	the 	hearing 	officer's 	proposed 	order 	which
directs 	the 	District 	to:
••• 	henceforth 	make 	monthly 	payments 	at 	8
percent 	until 	and 	unless 	a 	different 	timing
schedule 	or 	amount 	is 	agreed 	upon 	between
the 	parties.
The 	District 	argues 	that 	the 	hearing 	officer 	exceeded 	his
authority 	in 	ordering 	this 	remedy 	because 	the 	contract 	itself
7The 	Board's 	remedial 	authority 	is 	found 	in 	section
3563.3, 	which 	provides:
The 	board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including, 	but 	not 	limited 	to, 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies 	of
this 	chapter.
18

does 	not 	specify 	any 	time 	schedule 	for 	the 	employer's 	8 percent
contribution 	to 	the 	employee 	TSA 	and 	because 	subsection
3541.S(b) 	of 	EERA, 	in 	relevant 	part, 	expressly 	states 	that 	"the
Board 	shall 	not 	have 	authority 	to 	enforce 	agreements 	between
the 	parties •••• "
We 	find 	merit 	in 	this 	exception, 	and 	find 	that 	the 	hearing
officer 	exceeded 	his 	authority 	in 	directing 	this 	remedy. 	While
the 	evidence 	adduced 	at 	hearing 	indicated 	that 	the 	District
generally made 	monthly 	payments 	of 	its 	contribution 	to 	the 	TSA
fund, 	the 	record 	demonstrated 	that 	the 	timing 	of 	its 	TSA
payment 	was 	within 	the 	discretion 	of 	the 	District, 	which 	did
not 	always 	contribute 	on 	a 	monthly 	basis 	to 	the 	TSA 	fund. 	We
therefore 	order 	that 	the 	District make 	its 	employees 	whole 	for
that 	amount 	withheld, 	if 	any, 	from 	September 	1979 	to 	present,
with 	interest 	at 	the 	rate 	of 	7 percent 	per 	annum, 	and
henceforth 	make 	its 	contractually mandated 	payments 	at 	8
percent 	in 	accordance 	with 	its 	past 	practice.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in 	this 	case, 	it 	is 	found 	that 	the Oakland Unified
School 	District 	has 	violated 	subsections 	3543.S(a), 	(b) 	and 	(c)
of 	the 	Educational Employment 	Relations 	Act. 	It 	is 	hereby
ORDERED 	that 	the 	District, 	its 	governing 	board, 	and
representatives 	shall:
19

A. 	CEASE AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	on 	matters 	within 	the 	scope 	of
representation 	without 	providing 	the 	exclusive
representative 	an 	opportunity 	to 	negotiate 	thereon.
(2) 	Denying 	the 	Oakland School 	Employees Association
its 	right 	to 	represent 	unit 	members 	by 	failing 	and 	refusing
to meet 	and 	negotiate 	about 	matters 	within 	the 	scope 	of
representation.
(3) 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to 	select 	an 	exclusive
representative 	to 	meet 	and 	negotiate 	with 	the 	employer 	on
their 	behalf 	by 	unilaterally 	changing matters 	within 	the
scope 	of 	representation 	without 	meeting 	and 	negotiating
with 	the 	exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	WHICH
IS 	NECESSARY TO 	EFFECTUATE 	THE 	POLICIES 	OF
THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
(1) 	Provide 	payment 	to 	the 	tax 	shelter 	annuity 	fund
(TSA) 	for 	members 	of 	the 	units 	represented 	by OSEA, 	of 	that
amount 	withheld, 	if 	any, 	from 	September 	1979 	to 	present,
with 	interest 	at 	the 	rate 	of 	7 percent 	per 	annum, 	and
henceforth make 	its 	TSA 	contributions 	at 	8 percent 	in
accordance 	with 	past 	practice, 	pursuant 	to 	its 	collective
negotiating 	agreement 	with OSEA.
20

(2) 	Within 	ten 	(10) 	workdays 	following 	the 	date 	of
service 	of 	this 	decision, 	post 	at 	all 	school 	sites, 	and 	all
other 	work 	locations 	where 	notices 	to 	employees 	customarily
are 	placed, 	copies 	of 	the 	Notice 	attached 	as 	an 	appendix
hereto. 	Such 	posting 	shall 	be maintained 	for 	a 	period 	of
30 	consecutive 	workdays. 	Reasonable 	steps 	shall 	be 	taken
to 	insure 	that 	said 	notices 	are 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered 	by 	any 	other 	material.
(3) 	Within 	ten 	(10) 	workdays 	following 	the 	date 	of
service 	of 	this 	decision, 	notify 	the 	San 	Francisco 	regional
director 	of 	the 	Public Employment 	Relations 	Board, 	in
writing, 	of 	what 	steps 	the 	District 	has 	taken 	to 	comply
herewith. 	Continue 	to 	report 	in 	writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports
to 	the 	regional 	director 	shall 	be 	served 	concurrently 	on
charging 	party 	herein.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service.
nsen, 	Member
21

APPENDIX
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 	Oakland 	Unified 	School
District 	violated 	the 	Educational Employment 	Relations 	Act 	by
taking 	unilateral 	action 	to 	defer 	2 percent 	of 	its 	contribution
into 	its 	employees' 	Tax 	Shelter 	Annuity Fund, 	without 	meeting
and 	negotiating 	in 	good 	faith 	with 	the 	exclusive
representative, 	the 	Oakland 	School 	Employees 	Association. 	It
has 	further 	been 	found 	that 	this 	same 	course 	of 	action
interfered 	with 	Oakland Unified 	School 	District 	employees
because 	their 	exercise 	of 	rights 	protected 	by 	the 	Educational
Employment 	Relations 	Act. 	As 	a 	result 	of 	this 	conduct, 	we 	have
been 	ordered 	to 	post 	this 	notice, 	and 	we 	will 	abide 	by 	the
following:
A. 	CEASE AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and
negotiate 	in 	good 	faith 	with 	the 	exclusive
representative 	by 	taking 	unilateral 	action
on 	matters 	within 	the 	scope 	of
representation 	without 	providing 	the
exclusive 	representative 	an 	opportunity 	to
negotiate 	thereon.
(2) 	Denying 	the 	Oakland 	School 	Employees
Association 	its 	right 	to 	represent 	unit
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members 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	about 	matters 	within 	the 	scope 	of
representation.
(3) 	Interfering 	with 	employees' 	right 	to
negotiate 	collectively 	through 	their
exclusive 	representative 	by 	unilaterally
changing 	matters 	within 	the 	scope 	of
representation 	without 	providing 	the
exclusive 	representative 	an 	opportunity 	to
negotiate 	thereon.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	WHICH
IS 	NECESSARY TO EFFECTUATE 	THE 	POLICIES 	OF
THE 	EDUCATIONAL EMPLOYMENT RELATIONS 	ACT:
Provide 	payment 	to 	the 	tax 	shelter 	annuity
fund 	(TSA) 	for 	members 	of 	the 	units
represented 	by 	OSEA, 	of 	that 	amount
withheld, 	if 	any, 	from September 	1979 	to
present, 	with 	interest 	at 	the 	rate 	of
7 percent 	per 	annum, 	and 	to 	henceforth make
its 	TSA 	contributions 	at 	8 percent 	in
accordance 	with 	past 	practice, 	pursuant 	to
its 	collective 	negotiating 	agreement 	with
OSEA.
OAKLAND UNIFIED SCHOOL 	DISTRICT
By:
Authorized 	Representative
Dated: ---------------
(
THIS 	IS AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
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