Poway Unified School District (PERB 0680E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
POWAY FEDERATION OF TEACHERS,
Charging 	Party,
v.
POWAY UNIFIED 	SCHOOL DISTRICT,
Respondent.
)
)
) 	Case 	No. 	LA-CE-2331
PERB 	Decision 	No. 	680
June 15, 	1988
)
)
)
)
)
)
Appearances; 	James M. 	Gattey, 	Attorney, 	for Poway Federation of
Teachers; 	Brown & 	Conradi by Clifford 	D. 	Weiler 	for 	Poway
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on appeal by 	the 	Poway Unified
School 	District 	(District) 	of 	the Administrative 	Law Judge's
(ALJ) 	finding 	that 	the 	District 	violated 	Government 	Code
section 	3543.5(c) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA)1. 	The ALJ 	found 	that 	the 	District 	violated 	section
1 The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 3540, 	et seq. 	Unless otherwise
indicated, 	all 	statutory 	references herein 	are 	to the
Government 	Code. 	Section 3543.5(c) 	states:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
. . 	. 	. 	. 	• 	• 	• 	. 	. .

3543.5(c) 	by unilaterally 	establishing 	a 	compensation practice
for 	a 	new program with no exact precedent.
FACTUAL AND 	PROCEDURAL 	SUMMARY
Prior 	to 	1985, 	the 	District unilaterally developed and, 	for
the past 	several years, 	has 	sponsored 	the 	"Poway Professional
Development 	Program" 	(PPDP), 	designed to assist 	the 	District's
teachers 	in 	improving 	their 	teaching 	skills. 	This 	voluntary
program 	generally 	consisted 	of 	three 	full-day 	seminars 	in
August 	and 	a 	series 	of 	three-hour 	discussions 	held 	during 	the
school year 	in 	late 	afternoon or 	early evening. 	There was 	also
a 	four-day program 	in March 	1984 held 	during 	the 	school 	year.
Teachers 	were 	compensated as 	follows: 	a 	$50 	stipend 	for 	the
full-day program held prior 	to the 	school 	year; 	a meal
following 	the 	three-hour 	programs; 	and 	their 	regular 	contract
salary during 	the March program, 	with 	a 	substitute 	provided 	for
the 	classroom. 	The 	only aspect of 	the 	PPDP 	negotiated was 	the
date 	of 	the 	sessions 	held 	during 	the 	calendar year.
During 	the 	summer of 	1984, 	the 	District 	notified 	the 	Poway
Federation of 	Teachers 	(Federation) 	of 	its 	decision 	to hold a
two-day 	training 	and 	orientation 	program 	for 	new 	teachers 	on
August 	27 	and 	28. 	The Federation 	indicated 	a desire 	to
negotiate 	compensation 	for 	the new 	teachers 	who attended. 	At 	a
July 	25, 	1984 negotiating session, 	the 	District proposed that,
since 	attendance 	would be 	voluntary, 	attendees 	would 	receive 	a
N	2

$50 	stipend 	for 	each 	day. 	The 	Federation 	proposed 	a per 	diem
payment based 	on 	the 	salary 	schedule 	in 	the 	collective
bargaining agreement. 	No agreement was 	reached, 	and 	the
program 	was 	later 	cancelled.
In November 	1984, 	the 	District 	and Federation reached
agreement 	on 	the 	calendar 	year 	for 	certificated 	employees 	for
the 	1985-86 	school 	year. 	Classes 	were 	scheduled 	to 	start 	on
Monday, 	September 	9, 	with Tuesday, 	September 3, 	designated a
"New Teacher 	Day," 	and 	September 	4 	through 	6 	as 	"Teacher
In-Service" days. 	Friday, 	November 1, 	was designated as
"Professional 	Growth" 	day 	for 	elementary 	school 	staff.
On either August 5 or 	6, 	1985, 	the 	District notified 	the
Federation of 	a 	seminar 	scheduled 	for 	late August 	for 	newly
hired 	teachers 	to be held 	in a hotel 	near 	Poway. 	The
Federation 	asked 	for 	details 	in writing 	and 	shortly 	thereafter
received 	a 	letter, 	dated August 	7, 	from 	the 	District 	stating
that 	the 	agenda 	for 	the 	seminar 	was 	not 	yet 	complete. 	The
District 	also 	enclosed a 	draft 	of 	a 	letter 	to be 	addressed 	to
the 	District's 	30 new 	teachers, 	which 	read as 	follows:
Dear
You 	are 	cordially 	invited 	to 	attend 	a
research 	seminar presentation, 	"Critical
Attributes 	of 	Effective 	Instruction,"
presented by Douglas Minnis, 	Ph. 	D., 	Dean,
Graduate 	School 	of Education, 	University of
California at 	Davis. 	The 	seminar 	will be
held 	on 	Thursday, 	August 	29 	from 	8:30 	a.m.
to 	12:30 p.m. 	at 	the 	Rancho Bernardo 	Inn 	in
the 	Granada 	Room. 	A 	luncheon will be
provided 	following 	the 	presentation 	for 	all
those 	who 	attend.
33

As 	a 	District, 	we 	are 	seeking 	to capitalize
on 	the 	experience 	and 	expertise 	which 	is
already evident 	in our classrooms, 	as well
as 	the results of current 	research, 	to
develop 	an 	orderly 	and 	consistent 	foundation
for professional 	development. 	The 	seminar
on August 	29 	is 	part of an ongoing program
of professional 	seminars 	in which 	teachers
and 	administrators 	work 	together 	to 	increase
and highlight 	their 	awareness 	of 	teaching.
As 	a 	teacher new to our 	District, 	this will
be 	an 	excellent 	opportunity 	for 	you 	to 	find
out 	more 	about 	this 	program 	and 	the
instructional 	focus 	in this 	District. 	We
are 	looking 	forward 	to having you 	join us.
Please 	call 	the 	secretary 	for 	Instructional
Support Services, 	Jean Goncharoff, 	at
748-0010, 	extension 182, by August 23 	to
reserve 	your 	place 	for 	the 	presentation and
luncheon on the 	29th. 	I hope you can make
it; 	I 	am 	looking 	forward 	to meeting you.
Sincerely,
Yvonne Lux, 	Director
Instructional 	Support 	Services
On August 	13, 	Federation President 	James 	Dyer 	sent 	a letter
indicating 	that 	the 	Federation 	thought 	the 	seminar 	was
negotiable 	and 	failure 	to 	negotiate 	would be 	considered 	an
unfair 	labor 	practice.
Negotiations 	on 	the 	new 	teacher 	seminar 	and 	other 	matters
took place on August 	26 	and 28, 	and 	the positions 	of 	the
parties 	were 	as 	follows. 	The District proposed:
Commencing August 29, 	1985, 	any newly
employed 	member 	of 	the bargaining unit 	who
attends 	the 	District's 	program 	for 	new
teachers 	shall be 	compensated 	at 	the 	rate 	of
$50 per 	day. 	For 	the 	1985-86 	school year
attendance 	shall be 	voluntary. 	For 	each
school 	year 	thereafter 	attendance 	shall be
mandatory.
4

The 	Federation 	proposed:
On August 	29, 	1985, 	any member of the
bargaining 	unit 	participating 	in 	the
district-sponsored 	research 	seminar
presentation 	"Critical 	Attributes 	of
Effective 	Instruction" 	from 	8:30 	a.m. 	to
12:30 	p.m. 	shall be paid 	one-half 	their
[sic] 	daily rate. 	It 	is understood that
such 	participation 	is 	voluntary 	and 	only 	for
the 	1985-86 	school 	year.
After 	negotiations, 	the 	Federation 	finally agreed 	to 	the
$50 	stipend, 	but 	not 	to the 	inclusion of 	the word 	"Commencing"
since 	this 	implied 	the 	District's 	continuing 	right 	to pay only
$50 	in the 	future. 	The 	final 	District position was 	stated as
follows:
Commencing August 29, 	1985, 	any newly
employed 	member 	of 	the bargaining 	unit 	who
attends 	a 	District preschool 	program 	for 	new
teachers, 	outside contractual service, 	shall
be 	compensated 	at 	the 	rate 	of 	$50 per 	day.
The 	final 	Federation proposal 	read:
On August 29, 	1985, 	any newly employed
member 	of 	the bargaining 	unit 	participating
in 	the 	District-sponsored 	research 	seminar
presentation, 	"Critical Attributes 	of
Effective 	Instructions," 	from 	8:30 	a.m. 	to
12:30 p.m., 	shall be paid 	$50.00.
No 	agreement 	was 	reached 	and 	the half-day 	seminar 	was 	held
on August 	29. 	Attendance was 	voluntary, 	and 	lunch was 	provided
to 	the 	22 	teachers 	who attended. 	No other 	compensation was
given.
Subsequently, 	the 	Federation 	filed 	an 	unfair 	practice
charge 	alleging 	that 	the 	District, 	after breaking off
un	
5

negotiations 	on 	a 	matter 	within 	the 	scope 	of bargaining,
unilaterally 	refused 	to 	compensate 	teachers 	for 	their
attendance at 	the 	seminar.
ALJ 	FINDINGS 	AND 	CONCLUSIONS
After 	determining 	that 	attendance 	at 	the 	seminar 	was 	indeed
voluntary, 	the ALJ made 	three key findings. 	First, 	he
concluded 	that 	the August 	29 	seminar was 	an 	"in-service"
training program and, 	therefore, 	was 	within 	the 	scope 	of
representation 	under 	Healdsburg 	Union 	High 	School
District et al. 	(1984) 	PERB Decision No. 	375. 	Second, 	he found
compensation 	for 	in-service 	training programs 	to be 	negotiable;
and, 	third, 	that 	the 	voluntary nature of 	the 	training 	in 	this
case 	did 	not 	alter 	the negotiability thereof. 	In 	the 	latter
finding, 	he 	relied 	on 	two 	cases 	decided 	under 	the
Meyers-Milias-Brown 	Act 	(American 	Federation of 	State, 	County
and Municipal 	Employees 	v. 	City of 	Santa Clara 	(1984) 	160
Cal.App.3d 	1006; 	Dublin 	Professional 	Fire 	Fighters 	Local 	1985
v. 	Valley Community Services 	District 	(1975) 	45 	Cal.App.3d
116). 	The ALJ 	then 	concluded 	that 	the 	District's decision to
hold 	the 	August 	29 	seminar 	was 	consistent 	with 	its 	past
practice 	in 	that 	a 	like 	event had been held 	two previous 	years,
in August 	1983 	and August 	1984. 	In each 	instance, 	the District
unilaterally determined 	the 	timing, 	content 	and 	speakers 	for
the 	program 	and 	the 	Federation made 	no 	effort 	to 	negotiate.
The ALJ 	further 	determined 	that 	the 	Federation's 	contention
that 	there 	was 	an 	inadequate 	opportunity 	to negotiate 	on 	the
66

two days 	prior 	to 	the 	seminar was 	not 	supported by the 	record.
No 	effort 	was 	made 	to postpone 	the 	seminar 	and 	the 	Federation
had 	three weeks 	notice 	that 	it would be held on August 	29. 	In
the parties' 	subsequent negotiations 	concerning 	the 	seminar,
the 	only 	issue 	raised by the 	Federation was 	compensation.
Finally, 	the ALJ 	found 	that 	the 	District broke 	off
negotiations by holding 	the 	seminar 	on 	the 	29th, 	and 	giving no
compensation 	other 	than a 	free 	lunch.
There 	was 	no dispute 	concerning 	the 	District's 	unilateral
determination 	to 	provide 	teachers 	attending 	the 	seminar 	with 	a
District-paid 	lunch, 	but no monetary compensation. 	The ALJ
ruled 	that 	the 	District's 	past 	practice 	could be 	viewed 	as
payment 	of 	a 	$50 	stipend 	to 	teachers 	participating 	in 	a
full-day program held 	on a 	day 	that 	was 	not 	part 	of 	the
negotiated 	school 	year 	for 	certificated 	employees, 	while 	the
District 	provided 	only a 	free meal 	as 	compensation 	to 	teachers
for 	their 	attendance 	at 	a half-day program held 	on 	a day 	that
was 	part 	of 	the 	negotiated 	school year.
The ALJ 	reasoned 	from 	the 	above 	that, 	since 	the August 	29
training 	seminar 	for 	newly hired 	teachers 	was 	for 	a half-day,
occurred before 	the 	start 	of 	the 	school year, 	and was
voluntary, 	it did not 	fit 	the past practice. 	Therefore, 	the
seminar had 	to be bargained. 	He 	further 	concluded 	that 	the
District broke 	off 	negotiations 	without 	reaching 	impasse, 	and
did 	not 	compensate 	teachers 	for 	the 	training 	other 	than by
providing 	the 	lunch. 	The ALJ ordered 	the 	District 	to 	continue
77

negotiations 	and 	to pay 	the 	$50 	stipend 	to each 	teacher 	who
attended.
The 	District 	filed exceptions 	to: 	all 	findings 	that 	it
refused 	to negotiate; 	the 	conclusion 	that 	the 	scope 	of
bargaining 	includes 	compensation 	for 	a 	voluntary 	seminar 	during
nonduty 	time; 	and 	the 	conclusion 	that 	the 	District 	departed
from 	its 	past 	practice by 	unilaterally 	establishing 	the
compensation 	for 	the 	seminar.
DISCUSSION
This 	appears 	to be 	a 	case 	of 	first 	impression 	insofar 	as
the 	issue 	is 	presented 	of 	whether 	the 	scheduling of 	and
compensation 	for a half-day, 	voluntary, 	professional 	seminar
for 	new 	teachers 	held 	outside 	the 	calendared 	school 	year 	must
be 	negotiated.
In 	the 	decision 	the ALJ 	assumes 	that 	all 	in-service
training 	is 	negotiable and appears 	to assume, 	without
specifically 	stating, 	that 	in-service 	training 	includes
voluntary 	training held 	outside 	of 	duty hours. 	We believe 	the
ALJ was 	wrong 	in 	this 	assumption 	and 	reverse 	for 	the 	following
reasons.
Mandatory 	in-service 	training 	during 	regular 	work 	hours 	was
held by PERB 	in 	Healdsburg 	Union High 	School 	District 	(1984)
PERB Decision No. 	375 	to be negotiable. 	Therein 	this 	Board
stated at page 	83:
Proposal 	26.1 	requires 	the 	District 	to
provide 	in-service 	training 	for 	employees.
Although 	not 	specifically 	enumerated,
in-service 	training 	is 	logically and
reasonably 	related 	to 	several 	enumerated
subjects. 	Training 	that 	is 	necessary to
8

insure 	employees' 	safety 	is 	negotiable 	since
it 	relates 	to safety, 	an enumerated 	subject.
Also, 	since 	training may have 	an 	impact on
job performance of employees, 	it 	is related
both 	to 	evaluation 	and 	grievance 	procedures
and, 	therefore, 	potentially to wages as well.
Training 	is 	of 	great 	concern 	to employees,
since 	it 	may 	affect 	promotional 	opportunities
and 	job safety. 	It 	is 	also of great
significance 	to management, 	since 	training
helps 	maintain 	a high 	level 	of 	employee
performance, 	thereby affecting 	the 	quality of
services 	which 	are delivered 	to 	the 	public.
It 	is, 	therefore, 	an appropriate subject 	for
the negotiation process.
Finally, 	we 	can 	find no managerial
prerogative 	which 	would be 	unreasonably
interfered 	with 	if 	the 	District 	were 	required
to 	negotiate 	over 	the 	subject 	of 	in-service
training. 	Therefore, 	we 	find proposal 	26.1
negotiable.
Member Harry Gluck, 	in his 	concurrence 	and 	dissent 	in
Healdsburg, 	found 	this 	logic 	to be 	overly broad. 	He 	stated
(page 96):
I 	find 	this 	proposal 	to be 	not 	negotiable.
Although 	it 	can be 	claimed 	that 	the 	training
called 	for here bears 	some 	relationship 	to
one or more enumerated 	items, 	I 	find that
relationship 	too 	attenuated 	to be
convincing. 	Training may 	result 	in better
evaluations, 	better 	evaluations 	may 	result
in less 	reason 	for discipline, 	less
discipline 	may 	result 	in 	less 	loss 	of 	wages,
and ad 	infinitum. 	This 	is 	not 	to 	say that 	a
training proposal 	will 	always be 	not
negotiable. 	A proposal 	to 	require
corrective 	training 	following 	a 	poor
evaluation 	or 	disciplinary 	action
demonstrates 	the 	relationship 	Anaheim
contemplates. 	Here, 	as it is written, 	CSEA
simply seeks 	to compel 	negotiations 	on a
proposal 	which would 	determine 	the 	content
of 	the employees' 	working-hour assignments,
a prerogative 	I 	view as 	the 	employer's.
9

With 	reasoning 	similar 	to 	that 	of Member Gluck, 	the
Wisconsin Supreme 	Court 	in 	City of 	Beloit 	v. 	WERE 	(1976) 	73
Wis.2nd 43 	[242 N.W.2nd 231, 	92 LRRM 3318], 	affirmed the
Wisconsin 	Employment 	Relations 	Commission's 	interpretation 	of
the 	statutory 	language 	that 	defined 	the 	scope 	of bargaining 	to
be 	those 	subjects 	where 	"the 	function affects wages, 	hours 	and
working 	conditions." 	The Wisconsin 	Employment 	Relations
Commission 	found 	that 	in-service 	training, 	except 	to 	the 	extent
that 	it 	impacted on calendaring the 	school year, 	was 	not
negotiable.
Even prior 	to 	its Healdsburg decision, 	this 	Board
recognized 	that 	not 	all 	aspects 	of 	in-service 	training 	are
negotiable. 	In 	San Jose Community College District 	(1982) 	PERB
Decision No. 	240, 	the Board 	found 	that 	the 	District was 	not
required 	to bargain 	its 	decision 	to 	substitute 	15 	teaching 	days
for 	15 	in-service 	training days. 	The decision 	states 	at
page 10:
Consistent with our past decisions, 	we 	find
that 	the Association 	failed 	to prove 	that
the 	substitution of 	teaching days 	for 	in
service 	days 	affected 	a matter 	with 	the
scope of 	representation. 	There 	is 	no
evidence 	in 	the 	record 	to 	indicate 	that 	the
District's 	actions 	required 	certificated
personnel 	to work more days, 	nor did 	it
lengthen 	the working day, 	increase 	the
number of working days per year, 	or affect
the distribution of workdays. 	Moreover, 	the
evidence 	fails 	to 	indicate 	that 	the
discontinuation 	of 	the 	program 	increased
preparation 	time 	or 	caused 	employees 	to use
any duty-free 	or 	off-duty 	time 	to meet
professional 	development 	requirements.
Palos Verdes, 	supra; 	San Mateo City School
10

District 	(5/20/80) 	PERB Decision No. 	129;
Sutter 	Union 	High 	School 	District 	(10/7/81)
PERB Decision No. 	175. 	Certificated
personnel 	were 	previously paid 	to 	work 	15
days per year at 	in service 	training; 	the
calendar 	that 	was 	adopted 	requires 	teaching
during 	those days 	instead. 	Therefore, 	there
was 	no 	evidence 	presented 	to prove 	that 	the
District's 	actions 	impacted 	a 	subject 	within
the 	scope 	of 	representation.
Consistent 	with 	the 	Board's 	reasoning 	in 	San 	Jose 	Community
College 	District, 	supra, 	we believe 	to be 	inaccurate 	the ALJ's
conclusion 	that 	all 	in-service 	training 	is 	negotiable. 	On 	the
contrary, 	such 	is 	negotiable 	only where 	there 	is 	a direct
impact 	on wages 	and hours.
The ALJ 	also 	assumed 	that 	in-service 	training 	includes
voluntary 	training 	not 	held 	during 	the 	calendared 	year 	or
during working hours. 	This 	position 	is 	clear 	from his
conclusion 	that 	the 	voluntary nature 	of 	the 	in-service 	training
does 	not 	preclude 	a 	finding 	that 	such was 	negotiable. 	He 	cited
two 	cases 	arising under 	the Meyers-Milias-Brown Act 	(MMBA) 	both
of 	which 	concerned 	voluntary 	overtime 	work 	by 	employees 	where
the 	employer 	changed 	the 	nature 	of 	compensation 	to be paid 	for
overtime 	work. 	We 	do not believe 	these 	cases 	are 	appropriate
precedents 	inasmuch 	as 	they 	involved 	overtime 	work 	rather 	than
professional 	training. 	Furthermore, 	the meet 	and confer
standard pursuant 	to 	the MMBA is broader 	than 	the 	scope 	of
representation 	standard 	under 	EERA.
We 	find 	in-service 	training 	to be 	an 	inherently 	ambiguous
concept. 	It 	may be 	construed 	to 	include 	only 	training
11

conducted 	during 	the 	calendared year, 	and 	during or 	just
following 	the 	duty day. 	On 	the 	other hand, 	it 	may be 	given 	the
more 	expansive 	meaning of 	all 	training 	offered 	or 	conducted by
the 	school 	employer, 	as was 	assumed by the ALJ 	in this 	case.
We 	find 	no definition or 	precedent 	on point. 	Since 	"training"
is not an enumerated subject under 	section 3543.2, 	it 	is an
appropriate 	subject 	for 	PERB 	to examine 	on a 	case by case
basis. 	This 	approach 	is 	acceptable 	to the 	California Supreme
Court, 	which 	stated 	in Banning Teachers Association 	v. 	PERB
(1988) 44 Cal.3d 799, 	805:
A per 	se 	rule, 	adopted 	to 	spare 	the
reviewing 	court 	the 	task 	of 	examining 	claims
on 	a 	case by 	case basis 	deprives 	PERB of 	its
statutory 	function 	to 	investigate,
determine, 	and take action on unfair
practice 	changes 	to effectuate 	the 	policy of
the 	EERA and 	violates 	the 	established
principal 	of 	judicial 	review 	that 	an
administrative 	agency's 	interpretation 	is
entitled 	to deference.
The 	record 	in 	this 	case 	illustrates 	three kinds 	of
professional 	growth 	activities 	in 	the 	District. 	One 	is
mandatory 	in 	the 	sense 	that 	a 	teacher who chose 	not 	to
participate 	would 	lose 	a day's 	pay. 	The 	second 	type 	of
professional 	growth activity, 	in contrast, 	may be 	considered
voluntary 	in 	that 	the 	decision 	of 	whether 	or 	not 	to attend was
left 	entirely up to 	each 	individual 	teacher. 	If 	the 	activity
were 	held 	on 	an 	instruction 	day 	and 	the 	teacher 	opted 	to 	attend,
his 	or her 	class 	would be 	covered by a 	substitute. 	Whether 	the
teacher 	chose 	to participate 	in the 	seminar, 	or otherwise 	to
12

teach 	class, 	he or 	she would 	receive 	the normal 	contract wages.
The 	third 	type 	of 	activity was 	purely 	voluntary 	and 	given 	on
nonduty 	time, 	either 	outside 	the 	calendar year 	or on a 	Saturday
or 	other 	nonduty 	day.
This 	case 	involves 	a 	professional 	growth 	activity 	that 	is
purely voluntary. 	In San Mateo 	City School 	District 	(1983) 	33
Cal.3d 	850, 	the 	California 	Supreme 	Court 	approved 	this 	Board's
three 	pronged 	test 	for 	determining 	negotiability 	under 	section
3543.2 	enunciated 	in Anaheim 	Union High 	School 	District 	(1981)
PERB Decision No. 	177. 	The test 	is as 	follows:
CA] 	subject 	is 	negotiable 	even 	though not
specifically enumerated 	if 	(1) 	it 	is
logically 	and 	reasonably 	related 	to hours,
wages 	or 	an 	enumerated 	term 	and 	condition 	of
employment, 	(2) 	the subject 	is of such
concern 	to both 	management 	and 	employees
that 	conflict 	is 	likely 	to 	occur 	and 	the
mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of
resolving the conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not
significantly 	abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the
District's 	mission.
The 	essential 	inquiry under 	the 	first 	prong 	of 	the Anaheim
test 	is 	whether 	voluntary training, 	outside 	of duty time 	and
for 	which 	no compensation 	is 	paid, 	logically and 	reasonably
relates 	to hours, 	wages 	or 	an enumerated 	term and 	condition of
employment. 	There 	is 	no evidence 	in 	the 	record 	to 	indicate
that 	such 	training 	impacted 	on 	or 	affected hours 	in 	any way
since 	it was 	not mandatory, 	did not 	extend 	the 	workday or
13

require 	attendance 	on a nonduty day. 	Nor 	did 	it 	require
preparation 	time 	or 	that 	employees 	use 	duty-free 	time 	to meet
professional 	development 	requirements. 	Not 	even a 	tenuous
connection 	can be 	made with 	any of 	the 	enumerated 	items 	in
relation 	to the 	subject 	of 	the 	instant 	seminar. 	Thus, 	the
training 	at 	issue 	fails 	in 	any way 	to be 	negotiable 	under 	the
first 	part 	of 	the Anaheim 	test.
Even 	if 	such 	a connection 	could be 	found, 	we 	do not believe
that 	the 	in-service 	training at 	issue 	survives 	application 	of
the 	remaining parts 	of 	the Anaheim 	test. 	The 	second 	ground
requires 	that 	the 	subject be 	of 	such 	concern 	to both 	management
and 	employees 	that 	conflict 	is 	likely 	to occur 	and 	the
mediatory 	influence 	of 	collective 	negotiations 	is 	the
appropriate means 	of 	resolving 	the 	conflict. 	Inasmuch 	as
attendance 	was 	purely 	voluntary and 	took 	place 	outside 	duty
hours, 	there 	is 	little or no likelihood of 	conflict 	regarding
the 	scheduling of, 	or 	even 	the decision 	to provide 	such
training.
The 	third prong 	of 	the 	Anaheim 	test 	necessitates 	an 	inquiry
into 	whether 	requiring 	negotiations 	for 	voluntary 	training
during 	nonduty 	time 	would 	"significantly 	abridge 	[management's]
freedom to exercise 	those managerial prerogatives 	. 	. 	.
essential 	to the 	achievement 	of 	the 	District's 	mission." 	The
two 	subjects 	at 	issue herein entail 	the 	"scheduling" 	of
voluntary 	training 	during 	nonduty hours 	and 	the 	"compensation"
14

therefore. 	The mission of 	the District 	is 	to educate
students. 	To accomplish 	this 	mission 	the 	District has 	a
continuing 	interest 	in 	fostering 	the 	professional 	development
of 	its 	teachers. 	If 	training 	can be 	prevented 	or 	delayed by
the parties' 	failure 	to agree 	to 	its 	related 	scheduling or
compensation, 	thereby 	requiring 	the 	exhaustion 	of 	impasse 	and
factfinding, 	essential 	managerial 	prerogatives 	would be
abridged. 	No 	District would 	attempt 	to provide 	the 	training 	at
issue herein 	if 	extensive bargaining were 	required 	in 	order 	to
offer 	it 	to 	interested 	teachers.
The 	failure 	to 	survive 	any one 	of 	the 	three 	essential
elements 	of 	the Anaheim 	test 	dictates 	that 	the 	subject 	matter
at 	issue be declared nonnegotiable. 	Hence, 	the 	scheduling of
and 	compensation 	for 	the 	new-teacher, 	voluntary half-day
seminar 	were beyond 	scope.
One 	final 	issue 	is whether 	the 	District's willingness 	to
negotiate 	over 	the holding of 	the 	seminar may be 	a waiver 	of
the position 	that 	such 	training 	is 	nonnegotiable. 	At page 	847
of Morris, 	The 	Developing Labor Law 	(2d ed. 	1983), 	the author
states:
Either 	party may bargain 	about 	a permissive
topic 	as 	if 	it were a mandatory 	subject
without 	losing the 	rights, 	at any time
before 	agreement 	is 	reached, 	to take a 	firm
position 	that 	the 	matter 	shall 	not be
included 	in a contract between 	the parties.
Morris 	then cites 	NLRB v. 	Davison 	(4th Cir. 	1963) 	318
Fed.2d 	550 	[53 	LRRM 2462] 	which 	states 	at page 	558:
15

A determination 	that 	a 	subject 	which 	is
non-mandatory 	at 	the 	outset 	may become
mandatory 	merely because 	a 	party had
exercised 	this 	freedom 	[to bargain or 	not 	to
bargain] by not 	rejecting 	the proposal 	at
once, 	or sufficiently early, 	might unduly
discourage 	free bargaining 	on 	non-mandatory
matter. 	Parties 	might 	feel 	compelled 	to
reject 	non-mandatory proposals 	out 	of 	hand
to avoid 	risking waiver 	of 	the 	right 	to
reject.
We agree with 	the 	foregoing rationale. 	Consequently, 	the
District 	did 	not 	waive 	its 	right 	to break 	off 	negotiations 	on
August 	28, 	and hold 	the 	seminar on August 	29, 	because 	the
subject 	matter 	was 	nonmandatory and 	outside 	the 	scope 	of
bargaining.
ORDER
The unfair practice charges 	in Case 	No. 	LA-CE-2331 are
hereby 	DISMISSED.
16