Compton Community College District (PERB 0720E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 45 AND
JIMMIE THOMPSON,

Charging Party, Case No, LA-CE-1865 ©
Vv. PERB Decision No. 720
COMPTON COMMUNITY COLLEGE DISTRICT, March 1, 1989

Respondent.

Ne ee ee ee et ee ee ee es ee

Appearances: Lawrence Rosenzweig, Attorney, for California School
Employees Association, Chapter 45 and Jimmie Thompson; O'Melveny
& Myers by Richard N. Fisher, Attorney, for Compton Community
College District.

Before Hesse, Chairperson; Craib and Porter, Members.
DECISION

CRAIB, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
respondent, Compton Community College District (District), to the
proposed decision of a PERB administrative law judge (ALJ). The
ALJ found that the District violated section 3543.5, subdivision
(c) of the Educational Employment Relations Act (EERA) and

1

derivatively, section 3543.5, subdivisions (a) and (b),° when it

IFERA is codified at Government Code section 3540 et seq.
Unliess otherwise indicated, all statutory references are to the
Government Code. Section 3543.5 provides that it is an unlawful
practice 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

failed to negotiate in good faith over the effects of layoffs and
when it unilaterally reduced the health benefit contribution
prior to the completion of impasse procedures with the California
School Employees Association (CSEA or Association) . We affirm
that portion of the ALJ's proposed decision which found a
violation for unilaterally reducing the benefit plan
contributions and reverse that portion which found a violation
for failure to negotiate over the effects of layoffs, for the
reasons set forth below.
FACTUAL SUMMARY
The events giving rise to CSEA's 1983 complaint began during
the 1981-82 fiscal year, when the District experienced
significant financial difficulties. During that year, the
District seriously overestimated the nonresident tuition funds it
expected to receive, due to the federal freeze on funds for
Iranian students. This resulted in a $325,000 loss in
anticipated revenue, for which the District had already budgeted.
The second budgeting problem arose when the state imposed a cap
on funded enrollment. Since the District's enrollment exceeded
the cap by over 350 students, it received $779,000 less in
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.

revenue from the state than it anticipated and budgeted.
Finally, the District discovered a $409,000 accounting error.
Restricted funds had been included in general revenues and
impermissibly committed to certificated salary increases. 	Since
these problems were not discovered in time to institute cost-
saving measures during the 1981-82 fiscal year, the District was
forced to obtain a $750,000 emergency advance apportionment from
the Legislature in order to meet its constitutional mandate to
balance its annual budget. The advance apportionment was
ultimately converted into a three-year loan, payments commencing
in the 1983-84 fiscal year.
The District's financial difficulties were exacerbated
during the 1982-83 fiscal year. After the District had adopted
its budget, the state reclassified certain course offerings.
This reclassification resulted in a reduction in the number of
courses which could be included in determining the District's
average daily attendance (ADA) , and hence the apportionment
received from the state. Additionally, the District experienced
an unexpectedly high attrition rate, which also reduced the
amount of ADA-generated income. 	These combined events resulted
in a total loss of $460,000 in anticipated revenue. 	The District
again sought and obtained a state loan, this time for $350,000,
to cover outstanding expenditures for the 1982-83 fiscal year.
During the year, the District took numerous actions directed at
reducing its financial problems. 	These included: eliminating
136 part-time positions, terminating an outreach program,

eliminating 8.5 administrative positions, laying off 34.6
classified personnel, reducing the work year from 12 to 11 months
for 19 classified positions, deferring $100,000 in scheduled
building maintenance, reducing support for the Child Development
Center in the amount of $98,000, and generally reducing all areas
of proposed expenditures for supplies and services.
The District prepared a tentative budget for the 1983-84
fiscal year in April of 1983, " which listed expenditures that
exceeded projected total income by more than $1 , 300,000. Despite
the overestimate of ADA-generated income which led to its
shortfall in 1982-83, the District, included as income, the
maximum fundable ADA. Absent passage of special legislation for
such funding, the District would not receive the budgeted amount.
The District was obligated to submit a tentative budget to the
county superintendent of schools by July 1. (Ed. Code, sec.
7785023, subd. a. ) A final, balanced budget had to be filed with
the superintendent by September 6. (Ed. Code, sec. 85023 ,
subd. d. ) In early September, the District obtained an
extension of the filing deadline to September 15. The District
filed its final budget on September 15.
All the remaining dates in this decision refer to 1983
unless otherwise indicated.
A one-time-only emergency measure was passed by the
Legislature, effective September 29, 1983, which extended the
filing deadline for the final budget to October 7, 1983.
(Ed. Code, sec. 85023, subd. f. )

In order to meet the constitutional requirement for a
balanced budget, the District took numerous cost-cutting measures
during the spring and summer of 1983. 	These included:
eliminating two management positions, eliminating matching funds
for deferred maintenance work, closing the swimming pool,
eliminating the use of District vehicles, reducing certificated
salaries by five percent, and increasing certificated workload by
the equivalent of one extra class. 	Three additional reductions,
which affected the classified staff, formed the bases for the
charges filed by CSEA. These included: laying off 6.5
classified personnel, reducing the District contribution to the
benefit plan from $2, 682 to $2,500, and reducing classified
staff's work year from twelve to eleven months.
The collective bargaining agreement, in effect at the time
of the events complained of by CSEA, provided for the reopening
of negotiations on salaries, health and welfare benefits for the
period of July 1, 1983 to June 30, 1984, and on one other article
of each party's choice. (Article XV of the 1982-85 Agreement. )
Negotiations concerning these items were to commence no later
than February 1 and to conclude by June 30. 	The parties
exchanged initial reopener proposals in early 1983, covering
In February 1983, the District eliminated 6.5 classified
employee positions and laid off the affected employees. 	The
parties continued to negotiate the effects of these layoffs
during their negotiations.
The ALJ found that the Association had waived its right to
negotiate the reduction in work year. Neither party excepted to
this finding, therefore, it is not before the Board.
5

hours of employment, compensation (which included health and
welfare benefits and parking fees), and leaves of absence. 	The
proposals were "sunshined, " and the parties commenced
negotiations on February 14.
At the negotiations, the District was represented by Robert
Nunez, director of personnel; the Association was initially
represented by Vivian Baldwin, chair of the CSEA negotiating
committee. 	The Association also had two resource people on the
negotiating team, Elvert Waltower and Jimmie Thompson. 	Baldwin
and Waltower both left the team in March. Waltower was replaced
in May by Dave Dawson, but Dawson attended only one session
before becoming ill and missing the majority of the subsequent
meetings . 	In late May, Bruce Mcmanus replaced Baldwin as the
chief negotiator, although Thompson testified that she served in
that capacity during the intervening months. CSEA, thus,
experienced great difficulty engaging in meaningful negotiations
because of the turnover in its negotiating team.
On May 26, obviously growing weary of the repeated delays
and aborted negotiating sessions due to CSEA's disorganization,
District negotiator Nunez sent a memorandum to CSEA's
representative, Thompson, outlining the most recent sessions and
requesting that the parties meet sooner than the next scheduled
session of June 7, in order to complete negotiations for the
1983-84 budget. 	Nunez also informed CSEA, for the first time,
that the District would probably recommend additional layoffs in
the classified service to the board of trustees. In closing,

Nunez indicated that the issues still requiring resolution were
the contract reopeners and the effects of the proposed layoffs.
There is nothing indicating that CSEA ever responded to this
memorandum . 	On June 1, Nunez wrote another memorandum to
Thompson suggesting that a negotiating session be scheduled
before June 7. Again, there is nothing in the record to indicate
that CSEA responded.
The parties met again on June 9. On June 9, the District
went over its counterproposal and expressed a desire to meet as
often as possible to resolve the parties' differences. 	CSEA
sought to limit the negotiations to compensation, while the
District wanted all items to be on the table. At this meeting,
neither Thompson nor Dawson were present and Mcmanus, CSEA's
chief negotiator, indicated that no decisions could be made
without their presence. At this time, the District also
requested that the parties expedite negotiations and seek
expedited mediation and factfinding if the parties had not
reached agreement by June 25. 	This was a request the District
reiterated during each succeeding meeting. 	CSEA later informed
the District that it would not be willing to expedite the impasse
procedures . 	A meeting was scheduled for June 13, but later
cancelled by CSEA.
On June 14, Thompson wrote two letters, one to the board of
trustees and one to Nunez. In the letter to the board, Thompson
There is nothing in the record to explain why there was no
meeting on June 7 as scheduled.
7

indicated that CSEA would be willing to negotiate the impact and
effects of "this proposed lay-off exclusively, " and proposed a
June 16 meeting. In the letter to Nunez, Thompson outlined
CSEA's position on the reopeners and indicated that CSEA would
not combine the layoff negotiations with the ongoing reopener
negotiations . 	The parties next met on June 16, and the District
again requested expedited procedures, which was again rejected by
the Association. Nothing of substance appears to have been
exchanged at that session. The parties met again on June 22 with
a similar result.
The District submitted its request for a determination of
impasse to PERB on July 5. It indicated that the parties had
twelve negotiating sessions and had met for approximately
30 hours. 	One mediation session was held in August, at which
time the mediator certified the dispute for factfinding.
Factfinding was scheduled for and held on October 31. A final
factfinding report was issued. 	The parties met in post-
factfinding negotiations and apparently reached agreement on the
disputed matters.'
Meanwhile, the District's tentative budget was due on
July 1. 	At the June 22 session, the District notified CSEA that
it would recommend that the board of trustees adopt a resolution
'The post-factfinding negotiations and agreement, as well as
the factfinding report, were relied upon to a certain extent by
the ALJ and will be discussed further.
8

eliminating certain classified positions at its June 28 meeting.
The board took the recommended action and eliminated 1.5
positions, effective July 29. CSEA's only response, reflected in
the record, appears to be a July 21 letter from Mcmanus to Nunez
demanding to negotiate the decision and the effects of
Report No. IV-G, which set forth the reductions adopted by the
board of trustees on June 28." No proposals accompanied the
letter.
The board of trustees met again on August 31 and adopted a
resolution declaring a state of fiscal emergency. 	Among other
cost-cutting measures, the board eliminated 6.5 classified
positions and directed that the affected employees be laid off
effective September 30. 	The board also reduced the District
benefit plan for all District employees to $2,500. 	There is no
evidence in the record of CSEA's response, if any, to the
August 31 action.
CSEA filed its charge in this matter on October 24, alleging
that the District unlawfully instituted unilateral changes in
working conditions "without completing the collective bargaining
The parties met briefly on June 28. The District informed
the Association, in writing, that it would recommend that the
board of trustees reduce the work year to eleven months. 	Nunez
also indicated to CSEA the District's willingness to negotiate
the effects of the layoffs to be recommended. 	No agreements were
reached on June 28.
The thrust of the letter was directed primarily at the
reduction in the work year from twelve to eleven months.

process, "" by the layoffs authorized in June and August, the
reduction in the work year, and the reduction in the benefit
package . 	PERB issued a complaint and the matter was heard by an
ALJ on May 16 and 17, 1984.
In her proposed decision, the ALJ concluded that the
District violated EERA when it implemented the layoffs in June
and August, " because it failed "to negotiate in good faith with
CSEA over the effects of the layoffs. " She rejected the
District's argument that the Association waived its right to
negotiate because of its dilatory conduct which impeded the
negotiation process. 	She concluded that the District did not
exhaust its alternatives before implementing its July layoff
because the District had until at least September 6 before it had
to submit its final budget. She also concluded that the August
decision to lay off was made without providing notice and an
opportunity to negotiate and rejected the District's financial
crisis as a defense to the action. 	. With regard to the reduction
in the benefit plan, the ALJ concluded that the District failed
to demonstrate an operational necessity, and failed to
demonstrate that it attempted to explore alternatives with CSEA
This allegation is sufficient to encompass conduct
occurring both before and after the declaration of impasse in
July. (See Moreno Valley Unified School District v. PERB (1983)
142 Cal . App. 3d 191, 201-02.)
Although the ALJ indicated that the layoffs were
"implemented" in June and August, the actual implementations were
in July and September. The District excepted to this finding.
We note the misstatement and have considered the actual
implementation dates in formulating our decision.
10

through the mediator or on its own during July and August. As to
the reduction in the work year, the ALJ found no violation. 	She
ordered that the employees affected by the layoff be made whole
for any losses suffered from July 29 to October 31, and
September 30 to October 31. She also ordered that the employees
be compensated for the reduction in benefits plan contributions
from September 6 to October 31. She limited the recovery to this
two-month period because she considered the factfinding report an
agreement by the parties. 	She also included ten-percent interest
and the usual cease-and-desist order.
THE EXCEPTIONS
CSEA filed exceptions on the very limited issue of the
benefit plan remedy. It claims that the factfinding report is a
recommendation only and that there is no evidence that CSEA
agreed to it. The Association seeks to have the make-whole
remedy continue to the present.
The District has filed forty exceptions to many factual
findings and omissions, " as well as to the legal conclusions
reached by the ALJ. Three major issues lie at the heart of the
District's exceptions: 	whether the Association adequately met
its burden of proof to establish the District's failure to
negotiate the effects of the layoffs; whether the District
"we have set forth the facts gleaned from the record as
thoroughly as possible. Many of the District's exceptions to the
factual findings and omissions therein have been addressed by
their inclusion in the factual summary, any others we have not
found to be determinative of the issues before the Board.
11

established a business necessity defense; and whether the
Association waived its right to negotiate by its dilatory
conduct.
As discussed below, we conclude that the Association did not
meet its burden to establish that the District failed to complete
negotiations on the effects of the July and September layoffs. We
do not, however, find that the District has established an
adequate defense to the reduction in benefits charge. Finally,
we conclude that the appropriate remedy for the unilateral
reduction in benefit plan contributions is a make-whole order
from September 6, 1983, until the parties reached a subsequent
agreement on the annual benefit plan contribution.
DISCUSSION
Layoffs
CSEA contends that the District violated EERA section
3543. 5(c) by making unilateral changes in working conditions
without completing the collective bargaining process . 	The
Association does not contend in its charge that the District
refused to negotiate, only that the process was not concluded
prior to the implementation of the layoffs. 	EERA requires
parties, subject to its jurisdiction, to meet and negotiate in
good faith over subjects within the scope of representation prior
to instituting changes. 	(See secs. 3540. 1, subd. (h) and 3543.2,
subd. (a) . ) When the issue to be negotiated is a mandatory
subject of bargaining, the parties must negotiate to impasse and
participate in the statutory impasse proceedings. 	( See
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sec. 3543.5, subd. (e) . )
However, the Board has long held that a public school
employer is free to unilaterally determine that a layoff is
necessary without bargaining. The employer, nevertheless, must
provide the exclusive representative with notice and an
opportunity to bargain over the effects of layoffs which have an
impact upon a matter within scope. 	(Newark Unified School
District (1982) ."ERB Decision No. 225. ) In Newman-Crows Landing
Unified School District (1982) PERB Decision No. 223, the Board
cogently summarized its reasoning:
[T]he layoff of employees unquestionably
impacts on their wages, hours and other
conditions of employment. It may
concurrently impact upon those employees who
remain. Nevertheless, the determination that
there is insufficient work to justify the
existing number of employees or sufficient
funds to support the work force, is a matter
of fundamental managerial concern which
requires that such decisions be left to the
employer's discretionary prerogative.
(Ibid. at pp. 12-13. )
Thus, the District acted within its discretion when it
determined that, due to its financial difficulties, layoffs of
classified employees were necessary. 	Its sole obligation was to
give CSEA reasonable notice and an opportunity to bargain the
effects of its decision, once a firm decision to lay off was
made . 	(Mt. Diablo Unified School District (1983) PERB Decision
No. 373. ) Board precedent indicates that an employer, under
certain circumstances, may implement a nonnegotiable decision
prior to the completion of the bargaining process. 	In
13

Mt. Diablo, supra, PERB Decision No. 373, the Board held that,
given the notice requirements of Education Code sections 44949
and 44955, the district would have been justified in implementing
its decision to lay off prior to completing the negotiation
process had it negotiated during the period between its decision
and the implementation date. In Oakland Unified School District
(1985) PERB Decision No. 540, the Board held that the passage of
a resolution setting an implementation date two months hence
would not be a per se violation of the duty to bargain, since it
afforded the parties an ample opportunity to bargain prior to
implementation.
While neither Mt. Diablo nor Oakland involved a situation
like the present, where the employer did negotiate in good faith
for a reasonable time prior to implementation, those decisions
provide a framework upon which to analyze this case. We believe
that under some circumstances an employer, prior to agreement or
exhaustion of impasse procedures, may implement a nonnegotiable
decision after providing reasonable notice and a meaningful
opportunity to bargain over the effects of that decision. 	In
such cases, we will apply the following requirements:
1 . 	the implementation date is not an arbitrary one,
but is based upon either an immutable deadline (such as
the one set by the Education Code or other laws not
superseded by EERA) or an important managerial
interest, such that a delay in implementation beyond
14

the date chosen would effectively undermine the
employer's right to make the nonnegotiable decision;
notice of the decision and implementation date is
given sufficiently in advance of the implementation
date to allow for meaningful negotiations prior to
implementation; and
3. the employer negotiates in good faith prior to
implementation and continues to negotiate in good faith
after implementation as to those subjects not
necessarily resolved by virtue of the implementation.
(See Lake Elsinore School District (1988) PERB Decision No. 696,
at pp. 23-24 (dis. opn. of Craib, Member) . )
In the present case, the Association was on notice May 26
that the District contemplated layoffs of classified personnel
prior to the beginning of the 1983-84 school year. Again, on
June 1, the District notified the Association that it would
recommend layoffs. On June 28, the board of trustees adopted a
formal resolution to lay off 1.5 classified positions effective
July 30; and, again, on August 31, a formal resolution to lay off
was passed, effective September 30. Prior to the implementation
of the layoff on July 30, the Association had two months to
negotiate the effects of the proposed layoff; prior to the
implementation of the layoff on September 30, the Association had
four months. 	There is no evidence that the Association ever
pursued negotiations or presented proposals involving the layoffs
after receiving the District's notice. CSEA had ample
15

opportunity to do so. 	The District's willingness to negotiate,
and the need to reduce its expenditures prior to the submission
of the final budget by September 6, warranted the chosen
implementation dates. Furthermore, the District had already
sought mediation to resolve this dispute, as well as others, by
seeking a declaration of impasse from PERB; thus, it continued to
pursue negotiations in good faith. 	Therefore, we find that the
Association failed to establish that the District violated its
duty to bargain in good faith.
Although the District also argues that the Association
waived its right to bargain the effects of the layoffs due to its
dilatory conduct, we need not address the adequacy of the
District's argument since we have found that the Association
failed to meet its initial burden. Nor need we discuss the
District's business necessity defense.
Benefit Plan
The District's August 31 decision to reduce its contribution
to the benefit plan from $2, 682 to $2,500 presents an entirely
different issue. 	The benefit plan contributions were part of the
parties ' mid-contract reopener negotiations. 	The proper
analytical framework for the District's unilateral change in
benefit plan contributions is that utilized for any unilateral
change in contract terms without first exhausting the statutory
impasse procedures. 	The Board has long held that, even
"following a declaration of impasse, a unilateral change
regarding a subject within the scope of negotiations prior to the
16

exhaustion of the impasse procedure is, absent a valid defense,
per se an unfair practice. " (Moreno Valley Unified School
District (1982) PERB Decision No. 206, p. 5. ) The District
admits that it unilaterally changed its contribution to the plan,
but argues that the Association waived its right to negotiate the
decision. 	Alternatively, the District contends that it had an
affirmative right to change its contribution due to its serious
financial crisis, which the District argues amounted to a
business necessity.
During the negotiations in early 1983, the parties both
presented proposals on the benefit plan contributions. 	The
Association proposed a raise in the District's contribution to
$4,000; the District proposed a reduction to $2, 500. 	The record
does not indicate how seriously this particular item was
discussed at the table. The testimony and exhibits before the
Board make no reference to the benefit contribution negotiations
prior to the August 31 resolution adopted by the board of
trustees to reduce the contribution for financial reasons.
The District argues that the Association waived its right to
negotiate the reduction in benefit plan contributions because of
The ALJ concluded that the District could have raised the
reduction of the benefits plan with CSEA at the time that it
sought an expedited impasse procedure in order to persuade CSEA
to reconsider its decision to refuse to expedite impasse. 	The
District argues that there was no evidence that the District did
not bring up the issue of the benefit plan reduction when impasse
was sought. However, since the District bears the burden of
proving that the Association waived its rights, it cannot rely on
the absence of evidence to prove its case.
17

its dilatory bargaining conduct. 	The Board has consistently held
that a waiver will not be found absent clear and unmistakable
language or demonstrative behavior waiving a reasonable
opportunity to bargain over a decision not already firmly made by
the employer. 	(Sutter Union High School District (1981) PERB
Decision No. 175. ) The facts of this case can only be analyzed
under the second prong of the test, since there is no evidence
that the Association ever expressly waived its right to bargain.
The District contends that from the outset of negotiations
in early 1983, the Association evinced an uncooperative and
unproductive attitude. It outlines the repeated cancellation of
meetings, as well as the truncated meetings, to support its
theory that the Association intentionally waived its right to
bargain. 	The District also places particular importance on
CSEA's refusal to expedite the impasse procedure during June to
bolster its waiver argument.
We do not find the District's arguments persuasive. 	The
Board has recognized that finding that an employee organization
has waived its right to bargain is a serious matter, not to be
found without convincing evidence of the organization's intent.
In Placentia Unified School District (1986) PERB Decision
No. 595, the Board held that not only did the district bear the
burden of proving the affirmative defense of waiver, but that any
doubts must be resolved against the party asserting waiver.
"[T]he 'clear and unmistakable' standard requires that the
evidence of waiver be conclusive. " (Ibid. at pp. 7-8; see also
18

Caravelle Boat Co. (1977) 227 NLRB 1335 [95 LRRM 1003, 1006]
( "[T]he [NLRB] and courts have repeatedly held that a waiver of
bargaining rights by a union will not be lightly inferred and
must be clearly and unequivocally conveyed. ") . ) 	We have not
previously been faced with a case in which the union's dilatory
conduct forms the basis for a waiver argument, " therefore,
federal precedent in the area is helpful. " The Ninth Circuit
Court of Appeal in circumstances similar to those before the
Board, has held that "an employer must show that the union had
clear notice of the employer's intent to institute the changes
sufficiently in advance of actual implementation so as to allow a
reasonable opportunity to bargain about the change. " 	(American
Distributing Co. v. NLRB (9th Cir. 1983) 715 F. 2d 446 [115 LRRM
2046, 2049]. ) That court also held that waiver may be found by
conduct during bargaining only if the negotiations "reveal that
the subject was 'fully discussed or consciously explored' and the
union 'consciously yielded' its interest in the matter. " (Ibid. )
"The issue has been briefly addressed in two opinions,
Mt. San Antonio Community College District (1983) PERB Decision
No. 297 (no waiver where the Association waited only a few days
before responding to the district's invitation) and Anaheim Union
High School District (1982) PERB Decision No. 201 (no waiver
where the parties mutually agreed that they would not negotiate
over the summer) . 	However, given the less complex facts facing
the Board, in neither case did it establish an appropriate test
for waiver by dilatory conduct.
The California courts have found that federal labor
precedent is persuasive where the statutory scheme and the
interests to be fostered are similar. 	(See, e.g. , Moreno Valley
Unified School District v. PERB, supra, 142 Cal . App. 3d at 196.)
19

We find that while the Association's conduct should not be
applauded, nor emulated by other parties, it was a product of
inexperience and ineptitude. The District did not present
evidence that the subject was fully discussed or consciously
explored or that CSEA consciously yielded its interest in
negotiating the reduction in benefit plan contributions.
Furthermore, the Association's conduct must be viewed in light of
the fact that there is no evidence that the District even
notified the Association, prior to the August 31 board of
trustees' meeting, of its intention to reduce its contribution on
September 6. Therefore, we must conclude that the District
failed to meet its burden of showing that the Association, by its
dilatory conduct, waived its right to bargain over the District's
reduction in benefit plan contributions.
The District also argues that its financial plight was so
severe that it was justified in taking unilateral action prior to
exhausting the impasse procedures, in order to balance its budget
by September 6. In order to establish a business necessity
defense, the District must show that the financial crisis
is an actual financial emergency which
leaves no real alternative to the action
taken and allows no time for meaningful
negotiations before taking action.
Moreover, it is important to note that the District's
unilateral action took place in the midst of reopener
negotiations. Consequently, even if we were to agree with our
dissenting colleague that the Association's dilatory conduct
constituted bad faith, we seriously question whether that would
excuse a unilateral change in an existing contract term.
20

(Calexico Unified School District (1983) PERB Decision No. 357,
at p. 20.)
In Calexico, the district unilaterally imposed a freeze on
teachers' step and column increases, which were being negotiated
as part of the parties' reopener negotiations, in order to
present a balanced budget to the superintendent by September.
The freeze was effective the start of school in September.
Testimony indicated that the district could have technically
balanced its budget without implementing the freeze but declined
to do so because such action would have reduced the district's
reserves and, thus, would not have been financially responsible.
The district further argued that it remained willing to continue
to negotiate even after the decision was unilaterally made. 	The
Board rejected all of the district's arguments and held that,
even though the district presented convincing evidence of the
difficult financial circumstances it faced, the district failed
to show that it had no alternative to instituting the unilateral
freeze prior to the completion of bargaining. 	Furthermore, the
Board found that the district's financial problems were not the
result of a sudden, unexpected change in circumstances, but
rather resulted from budgetary problems which arose much earlier
in the year. 	( See also San Francisco Community College District
(1979 ) PERB Decision No. 105. ) 17
In a somewhat analogous situation, the Ninth Circuit
recently rejected an employer's appeal, in which it argued that
its implementation of a unilateral change was justified due to
"its dire financial condition and the union's unwillingness to
meet. " 	(NLRB v. Auto Fast Freight (1986) 793 F. 2d 1126 [122 LRRM
21

Compton Community College District found itself in a similar
situation in June of 1983. It, too, wished to conclude reopener
negotiations with a significant reduction in costs, prior to the
final deadline for a balanced budget. We find that the District
faced a real financial crisis, albeit one in the making for
months, if not years, prior to the implementation of the reduced
benefit plan contribution. Although the District knew that it
must reduce its financial obligations in order to balance its
budget, the record reflects that it, nevertheless, did not
impress upon the Association the need for the benefit plan
reduction either at the time of the declaration of impasse or
after the declaration and prior to the August 31 resolution. "
While the record reflects that the parties met once with the
3058, 3061]. ) The court affirmed the NLRB, which concluded that
"there is nothing in the record to show that the Unions
intentionally were ducking the [employer] . 	It does appear
that the Unions were not well coordinated, and possibly were
uncertain of their administrative responsibilities, but those
facts do not justify [the employer's] unilateral actions. '"
(Ibid. ) 	The NLRB also rejected the employer's business necessity
defense, noting that the employer had been aware of its severe
economic problems for at least four months prior to its
elimination of health benefits and reduction of wages, and that
the financial "crisis" had been in the making for three years.
Therefore, the Board (and the court) found that the financial
difficulties did not "suddenly rise" to the level of urgency that
would justify taking unilateral action. 	(Ibid. )
while the duty to bargain is dormant while the parties are
at impasse, there is an analogous duty to participate in good
faith in the statutory impasse procedures. (See sec. 3543.5,
subd. (e ) ; Moreno Valley Unified School District v. PERB, supra,
142 Cal . App. 3d at 200-01; Victor Valley Union High School (1986)
PERB Decision No. 565. ) Thus, the District was not free to
unilaterally change contractual provisions.
22

mediator during August, the only matter apparently discussed was
certification of the dispute to factfinding.
Without more persuasive evidence that the District had no
opportunity to resolve the specific dispute over the benefit plan
contributions prior to the unilateral implementation of the
reduction, we are unable to conclude that the District satisfied
its burden of proving a genuine financial crisis offering no real
alternative and no opportunity for meaningful negotiations. 	The
District contends that it would have been futile to continue to
negotiate since the Association had indicated an unwillingness to
negotiate. We disagree, since there is no evidence that the
District ever indicated that, absent a concession by the
Association, it would be required for financial reasons to
implement the benefit plan reduction. Furthermore, it is not
clear from the record that the reduction in the benefit plan
contributions were required to present a balanced budget. Like
the situation in Calexico, it may have been possible to formulate
a budget that did not require the reduction. The District failed
to present evidence that unilateral action was its only
alternative. 	Since the unilateral change took place after the
parties had reached impasse, we find that the District violated
section 3543.5, subdivision (e) .
SUMMARY
In conclusion, we find that the Association failed to meet
its burden to establish that the District failed to negotiate in
good faith over the effects of its decision to lay off classified
23

employees in July and September, prior to the completion of
impasse proceedings. We also conclude that the District has
failed to meet the test set forth by the Board in Calexico, and
has thus not presented a valid business necessity defense to
justify its decision to reduce its benefit plan contributions.
Nor has the District adequately met its burden of proving that
the Association waived its right to bargain over the benefit plan
contribution reduction. The District, thus, violated sections
3543.5, subdivision (e), and, derivatively, subdivision (b) . 19
REMEDY
Section 3541.5(c) gives PERB broad statutory authority to
fashion appropriate remedies for unfair practices. Since we have
concluded that the District violated its duty to participate in
good faith in the statutory impasse procedures, it is appropriate
to order the District to cease and desist from taking unilateral
action on matters within the scope of representation without
first affording CSEA an opportunity to negotiate thereon.
In cases involving unilateral action, PERB generally orders
the employer to restore the status quo as it existed prior to the
violation. 	(Santa Clara Unified School District (1979) PERB
Decision No. 104. ) However, the status quo will not be restored
and liability will be cut off if the parties have, in the
interim, reached agreement on the matter. 	(Pittsburg Unified
we decline to find a section 3543.5, subdivision (a)
violation as there was no evidence submitted that the District's
conduct affected the exercise of protected rights of members of
the CSEA.
24

School District (1984) PERB Decision No. 318a. ) We disagree with
the ALJ that the District's liability to make the employees whole
for its unilateral reduction in contributions should end at the
time the factfinding report issued. As CSEA points out, its
member on the factfinding panel was not authorized to negotiate
nor to enter into any agreement for the Association.
Furthermore, CSEA's benefit plan contribution proposal is
insufficient to bind CSEA absent an actual agreement. 	Therefore,
the District is ordered to pay the amount it reduced its
contributions to the benefit plan from September 6, 1983, the
date it implemented the change, until such time as the parties
reached agreement on the issue. 20
ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to
section 3541.5 (c) of the Educational Employment Relations Act, it
is hereby ORDERED that the Compton Community College District,
its Board of Trustees, Superintendent and its agents shall:
Neither the date of such an agreement, nor its contents,
are reflected in the record. However, we take official notice of
the parties' written agreements on file with the regional office
pursuant to PERB Regulation 32120 (PERB regulations are codified
at California Administrative Code, title 8, sec. 31001 et seq. ).
Subsequent to the 1982-85 agreement, there is no record of an
agreement being reached by the parties in this case prior to the
1988-91 agreement between the District and the Compton Community
College Federation of Employees signed on October 10, 1988, and
effective July 1, 1988. Therefore, based on the record before
us, it is found that the liability period referred to above will
run from September 6, 1983 to July 1, 1988.
25

A . 	CEASE AND DESIST FROM:
1. Failing to meet and negotiate through statutory
impasse procedures with the exclusive representative by taking
unilateral action on matters within the scope of representation,
including the unilateral reduction of the benefit plan
contribution in September 1983.
2. Denying to the California School Employees
Association and its Chapter 45 rights guaranteed by the
Educational Employment Relations Act, including the right to
represent members.
B . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT :
1 . 	Unless otherwise agreed to by the parties,
compensate any affected unit employee for monetary losses
incurred as a result of the reduction of the benefit plan
contributions from the date of the change (September 6, 1983)
until an agreement was reached on this matter. All monetary
losses will include interest at the rate of 10 percent per annum.
2 . 	Within thirty-five (35) days following the date
this Decision is no longer subject to reconsideration, post at
all school sites and all other work locations where notices to
classified employees are customarily placed, copies of the Notice
attached as an Appendix hereto. The Notice must be signed by an
authorized agent of the District indicating that the District
will comply with the terms of this order. 	Such posting shall be
maintained for a period of thirty (30) consecutive workdays.
26

Reasonable steps shall be taken to insure that this Notice is not
reduced in size, altered, defaced or covered by any material.
3. 	Written notification of the actions taken to comply
with this Order shall be made to the Los Angeles regional
director of the Public Employment Relations board in accordance
with his/her instructions.
IT IS FURTHER ORDERED that that portion of the complaint
alleging that the Compton Community College District unilaterally
eliminated classified positions in July and September of 1983
without first negotiating the effects of this Decision with CSEA
is DISMISSED.
Chairperson Hesse joined in this Decision. 	Member Porter's
concurrence and dissent begins on p. 28.
27

Porter, Member, concurring and dissenting: I concur that,
as to the issue of negotiating the effects of the layoffs, there
was no violation. 	Regarding the alleged benefits plan reduction
violation, I respectfully disagree with my colleagues as I
believe the facts establish a business necessity defense as well
as a waiver.
The record in this case vividly portrays the steadily
worsening financial picture in the District during the two fiscal
years preceding the 1983-84 fiscal year. This included various
revenue setbacks in the 1981-82 fiscal year which caused the
District to obtain a $750,000 advance apportionment from the
Legislature to meet its obligations for that year. 	Because the
District was then faced with being unable to meet its 1982-83
financial obligations if its revenues from the state were offset
by the $750,000, it was able to have the advance apportionment
converted into a loan repayable in three years, repayment to
commence in the 1983-84 fiscal year.
Further revenue shortcomings occurred during the 1982-83
fiscal year, and the District, with no reserves, had to obtain
an additional advance from the state in the amount of $350,000
to cover its remaining 1982-83 expenditures. 	The District took
various cost-cutting measures during the 1982-83 fiscal year to
reduce expenditures, which measures included: the layoff of 24.6
classified personnel; the reduction of the workyear from 12 to 11
months for 19 classified positions; the further layoff of 10
full-time equivalent (FTE) positions in the classified service;
28

the revision of the class schedule to eliminate 136 part-time
positions; the reorganization of the administrative staff to
eliminate 8.5 administrative positions; the termination of the
Outreach Program; the reduction of support for the Child
Development Center in the amount of $98,000; the elimination of
scheduled deferred maintenance on the roof for a savings of
$100,000; and the reduction of all areas of proposed expenditures
for supplies and services.
As the 1983-84 fiscal year approached, the District budget
committee--which included members from each bargaining unit's
exclusive representative, including the Association--developed a
tentative 1983-84 budget which showed anticipated expenditures
exceeding projected total income by more than $1 , 300,000. 	The
District was thus faced with an unbalanced budget, no reserve
funds, and the required repayment of the $1 , 100,000 in state
advance apportionments commencing in the 1983-84 fiscal year.
Also, the District was under a constitutional requirement (Cal.
Const. , art. XVI, sec. 18) to adopt a balanced budget, with a
tentative budget to be adopted by July 1, and a final balanced
budget by September 6, 1983.
In order to have a balanced budget for the 1983-84 fiscal
year, the District had to commence reducing its expenditures in
order to achieve the necessary savings and balancing during the
1983-84 fiscal year. 	Since most of the discretionary cuts in
supplies and nonpersonnel expenditures had already been made, the
only area left for significant cost cutting was in the personnel
29

area, which comprised 85 percent of the District's budget.
Accordingly, in addition to the previously noted 1982-83 cost-
cutting measures, the District, during the summer of 1983,
clearly signaled its intention to take the following actions to
reduce expenditures: 	reducing certificated teachers' salaries by
5 percent; reducing District contribution to the "cafeteria plan"
health and welfare benefits for all employees and board members
to $2,500; laying off an additional 6.5 classified personnel;
reducing the classified staff's workyear to 11 months; increasing
the workload for certificated faculty by the equivalent of one
extra class; further consolidating administrative assignments to
reduce management positions by 2; reducing the managers' workyear
to 11.5 months and adding a noncompensated teaching assignment at
night to all managers' assignments; stopping the use of District
vehicles and eliminating budgeted expenditures for maintenance,
repairs and fuel; eliminating matching funds for critical
deferred maintenance work; and closing the swimming pool to
reduce supplies, utilities and maintenance costs.
It is clear from the record that the District faced a
financial crisis in the summer of 1983, as, indeed, the school
board declared on August 31, when it implemented the reduction
in the benefits contribution from $2 , 682 to $2, 500 for each
employee. The ALJ, in her proposed decision, recognized that the
District faced critical financial problems for the 1983-84 fiscal
year. 	The Association knew of the District's financial plight.
The District proposed the benefit plan reduction to the
30

Association in February 1983, at the very outset of the
negotiations, and the parties met approximately 13 times
thereafter until impasse on June 22. During the preimpasse
negotiations, the District continually attempted to gain the
Association's cooperation in moving the negotiations along, and
requested that the Association agree to expedite the mediation
and fact-finding procedures in the event of no agreement. 	The
Association was incooperative and informed the District that it
would not be willing to expedite the impasse proceedings.
Given the totality of the circumstances herein, I would
find that the worsening financial crisis in the summer of 1983,
coupled with the events in which the District found itself after
it unsuccessfully attempted in good faith to resolve the crisis
within the law, present sufficient evidence of a business
necessity to excuse the District's unilateral implementation
of the benefits reduction.
The majority acknowledges that the District, indeed, faced
a financial crisis. However, citing Calexico Unified School
District (1983) PERB Decision No. 357, the majority rejects the
District's business necessity defense on the theory that the
District failed to prove that there was no other available
alternative and that there was no opportunity for meaningful
negotiations with the Association prior to making the reduction.
In Calexico, the school board had a viable alternative for
balancing its budget by taking the necessary amount out of its
existing reserves fund. While the Calexico school board made a
31

financial decision that it was not prudent to reduce its reserves
fund, the record showed that the alternative nevertheless
existed. 	In the instant case, on the other hand, the District
lacked a reserves fund and, moreover, was forced to obtain
advance apportionments, in 1981-82 of $750,000 and in 1982-83 of
$350,000, to meet its financial obligations. Furthermore, the
District budget committee, on which an Association representative
sat, had established that the proposed expenditures for 1983-84
exceeded projected total revenues by $1 , 300,000. In addition,
the District was entering the 1983-84 fiscal year in which it had
to commence repaying the $1 , 100,000 in advance apportionments
received from the state. Regardless of whether the District
could have obtained a further extension of the September final
budget deadline, it still had to begin implementing meaningful
cost-saving measures. (See San Mateo Community College District
(1979) PERB Decision No. 94, pp. 23-24.) Finally, as to the
issue of opportunity for meaningful negotiations, the record
reflects the District's repeated unsuccessful attempts to move
the preimpasse negotiations along, the Association's
uncooperativeness, and the District's unsuccessful attempts to
gain the Association's agreement to expedite the negotiations
and/or expedite the impasse proceedings.
Independent of the business necessity defense, I would also
find that the record in this case sustains the District's waiver
defense. 	The Association was well aware of the District's
32

financial plight prior to the commencement of the 1983-84
negotiations. 	The events of 1981-82 and 1982-83, combined
with the layoffs, reductions, and other cost-cutting measures
undertaken by the District in 1982-83, clearly were not
insignificant. When negotiations began in February 1983, the
District had already made clear that further reductions, layoffs,
and other cost-cutting measures, including reduction of its
benefit plan contribution from $2, 682 to $2,500, would be
necessary. It is noteworthy that, under these financial
circumstances, the record reveals that the Association proposed
that the District raise its contribution from $2, 682 to $4,000
per employee. 	The District budget committee, having an
Association representative as one of its members, then
established that the proposed expenditures exceeded the projected
total revenues by $1, 300,000. The record is replete with
evidence of the District's notifications to the Association of
the need to expedite the negotiations and of the District's
numerous attempts to expedite the negotiations on its own. 	The
record also reflects the Association's uncooperativeness, its
dilatory negotiating tactics, and its refusal to expedite either
the preimpasse negotiations or the mediation and fact-finding
procedures .
If, in this case, the District had charged the Association
with failing to negotiate in good faith, I would have no trouble
finding, from this record, that the Association's conduct
amounted to bad faith. In Stockton Unified School District
33

(1980) PERB Decision No. 143, this Board found the district
evidenced bad faith by missing or canceling several meetings,
being recalcitrant in scheduling new meetings, unilaterally
ending some meetings, reneging on ground rules, and refusing
to discuss substantive issues until new ground rules were
established. In Gonzales Union High School District (1985) PERB
Decision No. 480, this Board found that the union engaged in bad
faith bargaining when it refused to negotiate in the summer,
refused to negotiate certain mandatory subjects, refused to
negotiate outside of work hours, insisted on discussing ground
rules prior to substantive issues, and refused to make counter-
proposals. The ALJ therein stated that, among other things,
delaying meetings or scheduling infrequent meetings is usually
taken as evidence of underlying bad faith.
Here, however, the question is whether such bad faith
conduct by the Association constitutes, in effect, a waiver
by the Association and thus excuses the District's subsequent
unilateral action. 	While there is no specific precedent
addressing whether bad faith conduct equates to a waiver, the
following keen observation by this Board in San Mateo Community
College District (1979) PERB Decision No. 94, page 22, is on
point :
In this regard, the Board is mindful of
the particular burdens that public sector
finances may impose on employee
representatives to reach speedy resolution
of hard economic problems. Employee
organizations may not shield themselves
behind a restraint on unilateral employer
actions as a way of avoiding a measure of
34

responsibility for mitigating or resolving
financial dilemmas confronting a public
employer.
Where, as here, the record demonstrates that a party engages
in what amounts to bad faith negotiating conduct during a dire
financial crisis, and refuses the other party's request to
expedite the negotiations and/or to expedite the impasse
proceedings, I submit that such conduct constitutes a waiver.
I would dismiss the bad faith bargaining charge concerning
the District's reduction in its benefits plan contribution.
35

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-1865,
California School Employees Association and its Chapter 45 and
Jimmie Thompson v. Compton Community College District in which
all parties had the right to participate, it has been found that
the District violated Government Code section 3543.5,
subdivisions (b) and (e) by unilaterally reducing its benefit
plan contribution.'s for classified unit employees without
affording the exclusive representative notice and the opportunity
to negotiate.
As a result of this conduct, we have been ordered to post
this notice and we will:
A . 	CEASE AND DESIST FROM;
1 . 	Failing to meet and negotiate through statutory
impasse procedures with the exclusive representative by taking
unilateral action on matters within the scope of representation,
including the unilateral reduction of the benefit plan
contribution in September 1983.
2 . 	Denying to the California School Employees
Association and its Chapter 45 rights guaranteed by the
Educational Employment Relations Act, including the right to
represent members
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT;
1 . 	Unless otherwise agreed to by the parties,
compensate any affected unit employee for monetary losses
incurred as a result of the reduction of the benefit plan
contribution from the date of the change (September 6, 1983)

until an agreement was reached on this matter. 	All monetary
losses will include interest at the rate of 10 percent per annum.
Dated : 	COMPTON COMMUNITY COLLEGE DISTRICT
By :
Authorized Representative
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE DEFACED, ALTERED, REDUCED IN SIZE OR COVERED BY ANY OTHER
MATERIAL.
N