Brawley Union High School District (PERB 0266E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BRAWLEY 	UNION 	HIGH SCHOOL 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
BRAWLEY 	UNION 	HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1311
PERB Decision No. 	266
December 21, 	1982
Appearances; 	Charles R. 	Gustafson, 	Attorney 	for Brawley Union
High School Teachers Association, 	CTA/NEA; 	Suzanne C. 	Rawlings,
Attorney 	for 	Brawley 	Union High 	School 	District.
Before Gluck, 	Chairperson; 	Jaeger 	and Morgenstern, Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before 	the Public
Employment Relations Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the Brawley 	Union High School Teachers Association, 	CTA/NEA
(Association), 	to a hearing 	officer's proposed decision
dismissing 	its 	charge. 	The 	charge 	alleged 	that 	the Brawley
Union High 	School District 	(District) 	violated 	subsections
3543.5(a), 	(b) 	and 	(c) 	of 	the Educational Employment Relations
Act 	(EERA)1 by 	unilaterally 	refusing 	to make 	a 	"lump
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
Subsections 3543.5(a), 	(b) 	and 	(c) 	provide as follows:

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sum" 	payment of 	wages for June, 	July and August 1981, 	as
required 	by 	the 	collective 	bargaining 	agreement 	between 	the
parties.
The 	hearing 	officer 	found 	that 	the 	lump 	sum payment
contract 	provision 	directly 	conflicts 	with Education Code
provisions 	governing 	the 	time 	and manner 	of 	payment 	and 	that,
therefore, 	the District 	had 	no 	duty 	to 	bargain about 	the
provision 	and 	did not 	violate EERA, by 	refusing 	to comply with
its 	requirements.
After 	a 	review 	of 	the 	record 	and 	the 	arguments 	on 	appeal,
the 	Board 	reverses 	the 	hearing 	officer's 	proposed 	decision 	for
the 	reasons 	set 	forth 	below.
FACTS
The 	case 	was 	submitted 	on 	stipulated 	facts 	as 	follows:2
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.
2The 	stipulation 	of 	facts 	are 	as 	paraphrased 	by 	the
hearing 	officer 	with 	no 	substantive 	change. 	Neither 	party
excepts 	to 	the 	facts 	as 	paraphrased.
N

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1. 	[The Association] 	is 	the exclusive 	representative of a
unit 	consisting 	of 	all 	certificated 	employees 	. . . .
2. 	A 	collective 	bargaining 	agreement 	between 	the District
and 	the Association 	is 	in 	effect 	and 	expires
August 1, 	1981.
3. 	Said 	agreement 	contains 	the 	following 	pertinent
provisions:
Article VI, 	Compensation, 	Section D,
Salary, 	subsection 3:
A 	non-management 	certificated 	employee
on 	a 	12 	payment plan may 	receive 	a
"lump sum" 	settlement 	of 	the July,
August 	and September 	warrants 	by 	filing
a 	request 	with 	the 	business 	office 	no
later 	than May 	15th.
Article XXIII, 	Savings, 	Section A:
This 	is 	the 	entirety of 	the Agreement
between 	the 	District 	and 	the
Association.
If 	any article, 	sections or 	provisions
of 	this 	agreement 	shall 	be 	found 	by 	a
court 	of 	competent 	jurisdiction or 	by 	a
superior 	court 	upon appeal, 	to be
contrary to, 	or 	in conflict with,
federal or 	state law, 	that 	article,
section or 	other 	provision 	only 	shall
be 	rendered 	void. 	All 	other 	articles,
sections 	or 	provisions 	of 	this
Agreement 	shall 	continue 	in 	full 	force
and 	effect.
Article XXVI, 	Effect of Agreement,
Section 	A:
It 	is 	understood 	and 	agreed 	that 	the
specific 	provisions 	contained 	in 	this
Agreement 	shall 	prevail 	over 	District
practices 	and 	procedures 	and 	over 	state
law 	to 	the 	extent 	permitted 	by 	state
law.
4. 	The 	reference 	in Subsection 	3, 	of Section D Salary of
Article VI 	of 	the 	collective 	bargaining
agreement 	. 	. 	. 	relating to "lump sum" 	settlement of
w

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the July, 	August 	and September 	warrants 	refers 	to
salary 	accruing 	to 	the months 	of June, 	July 	and August.
5. 	In 	1980, 	employees 	opting 	to receive 	"lump sum"
settlement 	under 	the 	contract 	actually 	received 	three
separate 	checks on June 5, 	1980.
The 	checks 	were 	for 	identical 	amounts 	and 	were 	dated
identically 	but 	one 	specified June 	payment, 	one July
payment, 	and one August payment.
The 	"lump sum" 	payments 	made 	to 	employees 	during 	the
summer 	of 	1980 	were monies 	which 	had 	been 	earned 	for
services 	performed 	between 	September 	1979 	and
June 	1980. 	[Salaries 	to be 	paid 	during 	summer 	1981
are 	for 	services 	already 	performed.]
6. 	Parties 	were 	negotiating 	wages 	in a 	contract 	reopener
from approximately May, 	1980 	to October, 	1980.
Neither 	the Association 	nor 	the District 	requested 	to
negotiate 	on 	the 	lump 	sum payment 	provision.
7. 	In August, 	District was 	informed 	by the Office of 	the
County Superintendent 	of Schools 	that, 	pursuant 	to a
County Counsel opinion 	. 	. 	., 	"lump sum" payments such
as 	described 	in 	the 	agreement 	were 	not 	authorized 	by
the Education Code 	and 	therefore 	the County
Superintendent 	would 	not 	honor 	warrants 	drawn 	for 	such
lump sum payments.
8. 	On September 	5, 	1980, 	a memo was 	issued 	to District
Superintendents 	from Herb Farrar, 	County
Superintendent 	. 	. 	., 	indicating his office would not
allow 	the 	districts 	to pay 	the 	lump sum payments. 	The
memo 	further 	requested 	districts 	take 	immediate 	action
to offer 	employees options of 	10, 	11 or 	12 payments 	as
provided 	for 	in 	the Education Code.
9. 	If 	called 	to testify, Woodrow Wilkes, Assistant
Superintendent Business Services, 	Office of 	the
Imperial County 	Superintendent 	of Schools 	would
testify 	that 	all 	certificated 	employees 	of 	the 	Brawley
UHSD 	are 	currently 	enrolled 	in 	either 	the 	10 	equal 	pay
plan, 	11 	equal pay plan or 	12 equal pay plan pursuant
to Education Code Section 	45038 	and 	that 	the 	district
has 	never 	notified 	the 	county office 	of 	an 	intent 	to
use 	section 	45040 	(one-sixth 	withholding 	plan) 	for 	any
certificated 	employees 	nor 	has 	any 	employee. 	He would
testify 	that 	each 	employee's 	election 	to 	use 	a 	pay

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plan 	is 	based 	upon 	the Notice of Employment, 	a 	copy of
which 	is 	on file 	in the 	county office. 	Mr. 	Wilkes
would 	also 	testify 	that 	in 1981 	employees 	electing 	the
12 	pay 	plan will 	receive 	the June 	check 	on 	the 	last
day of 	school 	in June, 	and 	the July 	and August 	checks
at 	the 	end of 	each 	respective month. 	This 	testimony
is 	accepted 	as 	competent 	and 	relevant 	without
objection.
10. 	The 	Imperial County Superintendent of Schools 	is
lawfully 	responsible 	for 	maintaining 	and 	disbursing
funds 	pursuant 	to Article 4, 	Chapter 	9, 	Part 	24 of 	the
Education Code 	(sec. 	42630 	et seq.) 	and 	issuing pay
warrants 	and 	pay 	checks 	to 	employees 	on 	behalf 	of 	the
Brawley Union High School District. 	The 	district 	does
not 	issue 	its 	own 	pay 	warrants 	pursuant 	to Education
Code section[s] 	42647 	[or 	42649].
11. 	In late August or 	early September 	1980, 	Superintendent
Fragale 	discussed 	the 	reasons 	for 	the 	inability 	to 	pay
the 	"lump sum" 	payments 	with Ms. 	Rosalie Banagan,
Association President.
12. 	In early September, 	a memo was 	issued 	from 	the
District 	Superintendent 	to 	all 	certificated
employees 	. 	. 	. 	informing employees that the lump sum
payment 	in June 	was 	no longer 	an option 	and 	notifying
certificated 	employees 	of 	their 	option 	to 	elect 	ten,
eleven or 	twelve monthly 	payments 	of 	their 	annual
salaries 	for 	the 	1980-81 	school year. 	The memo
specified 	it must 	be 	returned 	by September 	10. 	This
was 	necessary 	because 	the 	employee's 	election 	would
affect 	the 	amount 	of 	his September 	paycheck 	and 	the
deadline 	for 	the 	District 	to 	submit 	its September
payroll 	to 	the County 	Superintendent's 	office was
September 15, 	1980.
13. 	In 	a letter 	dated September 	29, 	1980 	. . . 	to
Ms. 	Joanne Yeager, 	Deputy County Counsel, 	County of
Imperial, Mr. Charles Gustafson, 	attorney for
California Teachers 	Association 	stated 	the
Association's 	position 	that 	the 	lump 	sum 	payment
procedure 	is 	not 	prohibited 	by 	the Education Code.
14. 	In 	a letter 	dated November 	11, 	1980 	. . . 	to
Mr. 	Richard Fragale[,] 	Superintendent,
Ms. 	Rosalie Banagan, Association President, 	requested
to 	know whether 	the 	District 	intended 	to 	abide 	by 	the
contract provision 	for 	lump 	sum payments.
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15. 	Mr. 	Fragale 	responded 	in a 	letter 	dated December 	1,
1980 	. 	. 	. 	that 	the District would be unable 	to honor
the 	lump 	sum provision 	of 	the 	contract 	because 	the
County Superintendent 	was 	unable 	to 	honor 	the
provision.
The 	stipulated 	record 	also 	included 	exhibits 	consisting 	of
relevant portions of 	the 	parties' 	1978-1981 collective
bargaining 	agreement, 	a 	1980 	Imperial County Counsel opinion
interpreting 	a 	school district's 	authority 	to make 	lump 	sum
payments 	under 	the Education Code, 	a memorandum to 	all district
superintendents 	from 	the 	county 	superintendent of 	schools
ending 	the 	issuance 	of 	lump 	sum pay 	warrants, 	and 	an 	exchange
of 	letters 	between 	charging 	party 	and 	the 	District 	regarding
lump 	sum payments.
DECISION
The 	collective 	bargaining 	agreement 	between 	the 	parties
provides, 	at Article VI, 	section D, 	subsection 3, 	as follows:
A 	non-management 	certificated 	employee 	on 	a
12 	payment plan may 	receive 	a 	"lump 	sum"
settlement of 	the July, 	August 	and 	September
warrants 	by 	filing 	a 	request 	with 	the
business office 	no 	later 	than May 	15th.
The Board 	has 	held 	that 	the 	timing 	of 	the payment of wages 	is 	a
negotiable matter. 	Jefferson School District 	(6/19/80) 	PERB
Decision No. 	133.
However, 	the Education Code 	contains 	several 	sections which
regulate 	the 	time 	and 	manner 	of 	payment of 	certificated

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employees3 and 	which, 	the District contends, 	preclude 	the
negotiability 	of 	the 	above-cited 	lump 	sum payment provision.
Section 3540 	of 	the EERA provides, 	in part, 	" . . . 	Nothing
contained 	herein 	shall be 	deemed 	to 	supersede 	other 	provisions
3Relevant Education Code 	sections provide, 	in
pertinent part, 	as follows:
45038. 	Number 	of payments. 	The governing
board of 	any 	school district may 	arrange 	to
pay 	the 	persons 	in positions 	requiring
certification qualifications 	employed 	by 	it,
or 	any one or more of such 	employees 	. 	. 	.,
in either 	10 	or 	11 or 	12 equal payments
instead 	of by 	the 	school month.
In 	lieu 	thereof, 	orders 	for 	the payment of
salary 	. 	. 	. 	may be drawn once each 	two
weeks, 	twice a month, 	or once each four
weeks 	as 	determined 	by 	the 	governing 	board.
45039. 	Payment. 	Where 	the governing 	board
of 	any 	school district 	arranges 	to pay
persons employed 	by 	it 	in 	12 	equal payments
for 	the year, 	it 	may pay 	each monthly
installment 	at 	the 	end of 	each 	calendar
month, 	whether 	or 	not 	the persons 	are
actually 	engaged 	in 	teaching 	during 	the
month.
45040. 	Authority 	to withhold 	part of 	salary
for 	payment 	in August 	and 	September 	when
annual 	salary not paid 	in 	12 	equal monthly
payments. 	The 	governing 	board of 	any 	school
district 	not paying 	the 	annual 	salaries 	of
persons employed 	by 	the district 	in 	12 	equal
monthly 	payments 	may 	withhold 	from 	each
payment made 	to 	each employee 	an amount
equal 	to 	16-2/3 	percent 	thereof.
The 	total of 	the 	amounts 	deducted 	from 	the
salary 	of 	any 	employee 	during 	any 	school
year 	shall be paid 	to him 	in 	two equal
installments, 	one 	installment 	to be paid not
later 	than 	the 	fifth 	day of August 	next
succeeding, 	and 	one 	installment 	to be paid
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• 	• 	• 	• 	• 	•
of 	the Education Code 	. 	. 	. 	." 	In Healdsburg Union High School
District 	and Healdsburg Union School 	District 	(6/19/80) 	PERB
not 	later 	than 	the 	fifth 	day 	of 	September
next 	succeeding.
45048. 	Time of 	payment. 	Each salary
payment 	for 	any 	calendar 	month may 	be made
on 	the 	last 	working 	day of 	the month 	and
shall 	be 	paid not 	earlier 	than 	the 	last
working 	day of 	the month 	and 	not later 	than
the 	fifth 	day 	of 	the 	succeeding 	calendar
month 	. . . .
If 	the 	school 	district provides 	for 	the
payment of 	the 	salary of 	employees 	employed
in 	positions 	requiring 	certification
qualifications once 	each 	two weeks, 	twice a
month, or once each 	four weeks, 	pursuant 	to
Section 	45038, 	each 	salary 	payment may 	be
made 	on 	the 	last 	working 	day 	of 	the 	payroll
period 	and 	shall 	be made 	not 	earlier 	than
the 	last 	working 	day 	of 	the 	payroll 	period
and 	not 	later 	than 	the 	eighth 	working 	day of
the 	following 	payroll 	period.
This 	section 	shall 	not prohibit 	a 	school
district 	from making 	a 	payment 	of 	earned
salary prior 	to 	the 	last 	working 	day of 	the
month 	or 	payroll 	period.
45049. 	Time of 	payment 	for 	additional
activities. 	When 	any 	school 	district
employs 	a 	certificated 	employee 	to 	perform
teaching 	or 	other 	services 	in addition 	to
his 	regular 	teaching 	duties, 	or 	when a
school 	district 	employs 	a certificated
employee 	to perform 	teaching 	or 	other
services 	at 	a summer 	school maintained 	by
the district, 	the district 	shall pay 	the
employee 	for 	such 	services 	either 	in one
lump sum or 	at an hourly, 	daily, 	biweekly,
quadriweekly, or monthly rate of pay. 	If
the 	pay 	is 	in one 	lump sum, 	the district
shall 	pay 	the 	employee 	within 10 	days 	after
the 	termination of 	the 	services. 	If 	the pay
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Decision No. 	132, 	the Board held 	(at p. 	19) 	that, 	where a
provision of 	the Education Code 	requires 	a certain 	action, 	the
parties 	are 	prohibited 	from 	negotiating 	a provision 	which
directly 	conflicts 	with 	the 	statutory 	requirement. 	The Board
stated at pp. 	15 	and 	18:
If PERB were 	to 	adopt 	the 	view 	that 	the mere
existence 	of 	a 	statutory provision precluded
negotiability, 	many 	issues 	of central
employee 	concern 	would 	be 	excluded 	from
negotiations 	. . . .
[T]he 	supersession 	language of 	section 	3540
should 	similarly 	be 	read 	to 	preclude
negotiability 	only 	where 	the 	Education 	Code
provisions 	in conflict 	would 	be 	replaced,
set 	aside 	or 	annulled 	by 	the 	language of 	the
proposed 	contract 	clause 	. . . .
Therefore, 	the 	sole 	issue before us 	is 	whether 	the 	lump 	sum
payment 	provision 	directly 	conflicts 	with 	any 	provision 	of 	the
Education 	Code 	such 	that 	the 	statutory provision 	would 	be
replaced, 	set 	aside 	or 	annulled 	by 	the 	negotiated 	contract
language. 	We 	find 	that 	it does 	not.
In Calexico Unified 	School District 	(12/20/82) 	PERB
Decision No. 	265, 	the Board 	construed 	the 	same 	sections of 	the
Education 	Code 	in 	a 	similar 	factual 	situation.4
is at an hourly, 	daily, 	biweekly,
quadriweekly 	or 	monthly 	rate, 	the district
shall pay 	the 	employee 	within 	10 	days after
the 	end of 	each 	calendar 	month 	or 	pay period
during 	which 	the 	services 	are 	performed.
4 In Calexico, 	long 	standing 	district practice 	provided
that 	teachers 	could 	collect 	their 	July, 	August 	and 	September
pay 	warrants 	on 	the 	last 	day 	of 	the 	school year 	if 	they
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After 	a careful 	analysis of 	the 	statutory 	language, 	we
concluded 	that 	nothing 	in 	the 	code 	can 	reasonably 	be 	construed
as prohibiting 	such 	lump 	sum payment. 	We 	therefore 	found 	that
the Education 	Code 	does 	not preclude 	negotiations 	on 	lump 	sum
payment plans 	and 	we 	rejected 	the 	District's 	supersession
argument.
We 	find 	the 	construction 	of 	these 	Education 	Code 	sections
in Calexico dispositive of 	the 	issue here. 	Therefore, 	we
conclude 	that 	the 	lump 	sum payment 	provision 	does 	not 	conflict
with 	the Education 	Code 	and 	was 	negotiable 	at 	the 	time 	the
parties 	agreed 	to 	include 	it 	in 	their 	collective 	bargaining
agreement. 	The District's 	refusal 	to honor 	this provision
constitutes 	a change 	of policy 	having 	"a 	generalized 	effect or
continuing 	impact 	upon 	the 	terms 	and 	conditions of 	employment
of 	bargaining 	unit 	members." 	Grant Joint 	Union High 	School
District 	(2/26/82) 	PERB Decision No. 	196. 	As such, 	the
District's 	conduct 	breached 	its 	duty 	to 	bargain, 	in violation
of 	subsection 3543.5 (c), 	and 	interfered with 	the 	rights of
employees 	and 	the Association, 	in violation of 	subsections
3543.5(a) 	and 	(b), 	concurrently. 	San Francisco Community
College District 	(10/12/79) 	PERB Decision No. 	105.
notified 	the district before 	May 	1. 	Pursuant 	to 	the 	same
county 	counsel 	opinion 	and 	memo 	from 	the 	county 	superintendent
of 	schools 	at 	issue 	here, 	the district 	unilaterally changed 	its
past practice 	and 	relied 	on 	the 	same Education Code 	sections 	as
a 	defense.
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REMEDY
The 	hearing 	officer 	recommended 	that, 	if 	the Board 	finds
the 	contract provision 	to be 	negotiable, 	the 	record 	should 	be
reopened 	to 	allow 	the 	District 	to 	address 	its 	"apparent
defenses of 	legal 	inability 	to 	pay 	and 	lack 	of 	jurisdiction
over 	the 	county 	superintendent of 	schools," 	issues 	not
addressed 	in 	the proposed 	decision. 	Nothing 	in 	the 	record
suggests 	that 	such 	an 	order 	was 	requested 	by 	the 	parties
themselves, 	and 	we do 	not 	find 	such 	an 	order 	necessary 	or
appropriate 	here 	for 	several reasons.
First, 	neither 	party excepted 	to 	the 	hearing 	officer's
failure 	to make 	findings or 	conclusions 	regarding 	such
defenses. 	Pursuant 	to PERB 	rule 	32300(c),5 "An exception not
specifically 	urged 	shall be 	waived." 	Moreover, 	we 	find 	that 	no
such 	defense 	was 	ever 	raised 	by 	the District 	- neither 	in 	its
Answer, 	Brief 	nor Exceptions. 	"It 	is 	the policy of 	the 	law
that 	litigation 	shall 	not 	be 	had 	in piecemeal and 	that 	when 	a
party 	has 	a 	defense 	to a pending 	cause of 	action 	it must be
presented 	then, 	otherwise 	it 	will 	be deemed 	waived." 	Wieczovek
v. The Texas Co. 	(1941) 	45 Cal.App.2d 450, 	459 	[114 P.2d 377].
Therefore, 	we 	find 	that 	the District waived 	its 	right 	to 	assert
additional 	defenses 	by 	failing 	to present 	them prior 	to or 	at
the 	time of 	hearing 	or 	in 	its 	exceptions 	on appeal.
5PERB 	Rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31000 	et seq.
11

In 	addition, 	the 	very defenses 	referred 	to 	by the 	hearing
officer 	were 	fully 	argued 	and 	considered 	by 	the 	Board 	in
Calexico Unified School District, 	supra, 	and were 	found 	to be
without merit. 	While not 	binding 	on 	the 	parties 	in 	the 	instant
case, 	our 	recent disposition of 	apparently 	identical 	issues
militates 	against 	a remand 	here.
Finally, 	our 	determination on 	this matter 	does 	not 	preclude
the District's 	assertion of 	such 	defenses 	in a 	compliance
hearing. 	See 	Santa Monica 	Community College 	District 	(9/21/79)
PERB Decision No. 	103; 	San Francisco Community College
District, 	supra. 	Or, 	as an alternative, 	the District may sue
the 	county 	superintendent 	directly 	to 	enforce 	its 	contract 	to
pay warrants 	(assuming a contract exists), 	or 	to compel 	the
performance 	of 	its 	ministerial 	duty, 	with 	the Association
joining.
For 	these 	reasons, 	we 	do 	not 	find 	that 	it would effectuate
the 	policies 	of 	the EERA 	to order 	a 	remand 	here.
We 	have 	found 	that Brawley Union High 	School District
violated subsections 3543.5(a), 	(b) 	and 	(c) 	of 	the EERA. 	As a
remedy 	for 	those 	violations, 	the District will 	be 	ordered 	to
cease 	and 	desist 	from further 	such 	violations 	and 	to post 	the
Notice 	attached 	hereto 	as 	an 	appendix which 	announces 	the
District's 	readiness 	to 	comply 	with 	the 	ordered 	remedy. 	These
12

measures 	are 	consistent 	with 	the Board's 	remedial 	authority 	as
set 	forth 	at 	subsection 	3541.5(c)6 of 	the EERA.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3541.5, 	it 	is 	hereby ORDERED that 	the Brawley
Union High School District 	and 	its 	representatives 	shall:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Refusing 	and 	failing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	on matters 	within the 	scope 	of
representation 	with 	respect 	to 	the 	date 	of 	payment 	to
certificated 	employees 	of 	summer 	salary warrants.
2. 	Refusing 	to 	comply with Article V I , 	section D,
subsection 	3 of 	the 	collective 	bargaining 	agreement 	in
effect 	between 	the 	parties 	regarding 	the 	lump 	sum
payment 	of 	summer 	salary warrants 	to 	certificated
employees.
6Section 	3541.5(c) 	provides 	as 	follows:
(c) 	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.
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3. 	Denying 	the Brawley Union High 	School Teachers
Association, 	CTA/NEA, 	its right 	to represent unit
members 	by 	unilaterally 	eliminating 	the 	lump 	sum
payment of 	summer 	salary 	warrants 	without meeting 	and
negotiating 	with 	the Association.
4. 	Interfering 	with 	employees' 	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 	ACTIONS 	WHICH ARE NECESSARY
TO 	EFFECTUATE 	THE POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	On 	request 	of 	the Brawley Union High School Teachers
Association, 	CTA/NEA, 	restore 	to 	teachers 	the option
to 	receive 	their 	July, 	August 	and 	September 	pay
warrants 	in a 	lump 	sum payment 	and direct 	the 	county
superintendent of 	schools 	to 	honor 	such 	pay 	orders
commencing 	with 	the 	1982-83 	school year.
2. 	Within 	five 	(5) 	workdays after 	the date 	of 	service of
this Decision, 	post copies of 	the Notice 	to Employees
attached 	as 	an appendix hereto, 	signed 	by 	an
authorized 	agent of 	the District. 	Such posting 	shall
be maintained 	for 	at 	least 	thirty 	(30) 	consecutive
workdays 	at all 	work 	locations 	where 	notices 	to
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employees 	customarily 	are placed. 	Such Notice must
not 	be 	reduced 	in 	size 	and 	reasonable 	steps 	shall 	be
taken 	to ensure 	that 	it 	is 	not 	defaced, 	altered or
covered 	by 	any material; 	and
3. 	Within 	thirty 	(30) 	workdays 	from 	service of 	this
decision, 	notify 	the Los Angeles 	regional director 	of
the Public Employment Relations Board, 	in writing, 	of
the 	steps the employer 	has 	taken 	to comply with 	the
terms of 	this ORDER. 	Continue 	to 	report 	in writing 	to
the 	regional director 	periodically 	thereafter 	as
directed. 	All 	reports 	to 	the 	regional director 	shall
be 	served 	concurrently 	on 	the 	charging 	party 	herein.
Chairperson 	Gluck 	and Member 	Jaeger 	joined 	in 	this 	Decision.
15

l
APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in unfair 	practice Case No. 	LA-CE-1311, 	Brawley
Union High School Teachers Association, 	CTA/NEA v. 	Brawley
Union High School District, 	in which 	all parties 	had 	the 	right
to 	participate, 	it 	has 	been found 	that 	the Brawley Union High
School 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	by refusing 	and 	failing 	to meet 	and 	negotiate 	in 	good 	faith
with 	the 	Brawley 	Union High 	School 	Teachers 	Association,
CTA/NEA, 	on 	the 	subject 	of 	lump sum payment 	of 	summer 	pay
warrants.
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. 	Refusing 	and 	failing 	to meet 	and 	negotiate 	in good
faith 	with 	Brawley 	Union High 	School Teachers
Association, 	CTA/NEA, 	by taking 	unilateral 	action on
matters 	within 	the 	scope 	of 	representation 	with 	respect
to 	the 	date 	of payment 	to certificated 	employees 	of
summer 	salary warrants.
2. 	Refusing 	to comply with Article VI, 	section D,
subsection 	3 of 	the 	collective 	bargaining 	agreement
entered 	into with 	Brawley Union High 	School 	Teachers
Association, 	CTA/NEA, 	regarding 	the lump sum payment 	of
summer 	salary warrants 	to certificated 	employees.
3. 	Denying 	the 	Brawley Union High School Teachers
Association, 	CTA/NEA, 	its 	right 	to represent 	unit
members 	by 	unilaterally 	eliminating 	the 	lump 	sum
payment 	of 	summer 	salary warrants 	without meeting 	and
negotiating 	with 	the Association.
4. 	Interfering with employees' 	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.
1

2
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	WHICH 	IS 	NECESSARY TO
EFFECTUATE 	THE POLICIES 	OF 	THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	On request 	of 	the 	Brawley Union High 	School Teachers
Association, 	CTA/NEA, 	restore to teachers 	the option to
receive 	their 	July, 	August 	and 	September 	pay warrants
in 	a lump 	sum 	payment 	and 	direct 	the 	county
superintendent 	of 	schools 	to 	honor 	such 	pay orders
commencing 	with 	the 	1982-83 	school 	year.
Dated: 	BRAWLEY UNION 	HIGH 	SCHOOL 	DISTRICT
By Authorized 	Representative
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT BE
REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
2

4
definition be 	applied 	and, 	on the other, 	that a more narrow
interpretation 	was 	intended.
The 	recent case of San Mateo, 	supra, 	contains each Board
member's 	view of 	the 	appropriate 	resolution of 	the 	tension
between 	the 	language 	"relating 	to" 	and 	"limited 	to", 	and 	those
views 	need 	not 	be 	repeated 	at 	length 	here. 	While 	differing 	as
to 	the 	reasons 	for 	and 	significance 	of 	the 	particular 	structure
of 	section 	3543.2, 	two members 	agree 	that 	the 	appropriate means
of 	determining 	the 	negotiability of 	a 	specific 	subject 	or
proposal 	is 	a 	balancing 	test. 	As 	stated 	in San Mateo 	and 	as
discussed more 	fully 	infra, 	a subject 	is 	negotiable 	if 	it 	first
logically 	and 	reasonably 	relates 	to wages, 	hours or 	one of 	the
enumerated 	terms 	and 	conditions of employment. 	If 	this
threshold 	test 	is met, 	the proposal will be 	analyzed 	in 	terms
of 	its 	degree of concern 	to 	the 	employees and 	the 	employer, 	the
suitability of 	the 	negotiating 	process 	as 	a means 	of 	resolving
the 	dispute 	and 	whether 	the 	employer's 	obligation 	to negotiate
would 	significantly 	abridge 	its 	managerial prerogatives 	or
educational 	and 	public 	policy 	considerations.3
3The 	basic 	difference 	between my 	view 	and 	that of 	the
Chairperson's 	is 	that 	I would 	specifically factor 	into 	the
balancing 	process 	educational 	and 	public policy 	considerations,
as 	well as managerial prerogatives.
In his opinion 	in Palos Verdes/Pleasant Valley, 	supra,
Dr. 	Gonzales proposed a balancing 	test. 	However, 	in San Mateo,
he 	rejects 	a balancing 	test 	because 	it 	is 	a subjective
A