Compton Community College District (PERB 0728E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
COMPTON 	COMMUNITY 	COLLEGE 	FEDERATION
OF EMPLOYEES, AFL-CIO,
Charging 	Party,
v.
COMPTON COMMUNITY COLLEGE 	DISTRICT,
Respondent.
Case No. 	LA-CE-2276
COMPTON 	COMMUNITY COLLEGE 	DISTRICT,
Charging 	Party,
v.
COMPTON 	COMMUNITY 	COLLEGE 	FEDERATION
OF EMPLOYEES, AFL-CIO, CERTIFICATED
SECTION,
Respondent.
Case Nos. 	LA-CO-350
LA-CO-3 53
LA-CO-360
PERB Decision No. 	728
April 4, 	1989
COMPTON 	COMMUNITY COLLEGE 	DISTRICT
Charging 	Party,
v.
COMPTON 	COMMUNITY COLLEGE 	FEDERATION
OF EMPLOYEES, AFL-CIO, CLASSIFIED
SECTION,
Respondent.
Case Nos. 	LA-CO-352
LA-CO-359
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Appearances: 	Lawrence Rosenzweig, 	Attorney, 	for Compton
Community College Federation of Employees, 	AFL-CIO,
Certificated/Classified Sections; 	Jones 	& Matson by Urrea C.
Jones, 	Jr., Attorney, 	for Compton Community College District.
Before Craib, 	Shank and Camilli, 	Members.

DECISION
CRAIB, 	Member: 	The above-listed cases, 	which were
consolidated 	for hearing and decision, 	are before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the 	Compton Community College District 	(District) 	to 	the 	attached
proposed decision of a PERB administrative law judge 	(ALJ). 	In
Case No. 	LA-CE-2276, 	the 	ALJ 	found that the District 	failed to
bargain 	in good 	faith during 	contract 	negotiations 	in 	1985-86 	and
failed 	to participate 	in good 	faith 	in 	statutory 	impasse
procedures 	in the 	latter part of that 	same period. 	In Case Nos.
LA-CO-350, 	352, 	353, 	359 and 360, 	the ALJ found that the District
failed 	to 	establish 	that 	the 	Compton Community 	College 	Federation
of 	Employees, 	Certificated Section and/or the Compton Community
College 	Federation of Employees, 	Classified Section 	(hereafter
referred to 	collectively as 	the Federation) 	engaged 	in bad 	faith
bargaining 	or 	failed to participate 	in good 	faith 	in 	statutory
impasse procedures.
We have reviewed the 	entire record 	in this 	case, 	including
the ALJ's proposed decision, 	the District's 	exceptions 	and the
responses 	thereto. 	We 	find the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free of prejudicial 	error and adopt 	them
as 	our own. 	However, 	we believe that two of the District's
allegations 	against 	the 	Federation present 	close 	questions 	which
warrant 	further comment. 	These 	involve 	the 	District's 	contention
that 	the 	Federation engaged 	in 	"coalition" 	or 	"merged" 	bargaining
and 	sanctioned 	an unlawful 	"sick out."
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DISCUSSION
As 	the ALJ noted, 	"coordinated" 	bargaining 	is 	generally
regarded as 	lawful, 	but 	"merged" 	or 	"coalition" 	bargaining is
not. 	Coordinated bargaining would 	include 	joint bargaining
sessions 	involving more 	than one unit 	or monitoring of 	(or
assistance 	in) 	negotiations by representatives 	of 	another unit.
Coalition bargaining, 	on the other hand, 	has been described as 	a
"de 	facto merger of bargaining units, 	or an effort to achieve
that end." 	(Morris, 	The Developing Labor Law, 	Second Edition, 	at
p. 	666.)
The 	Board has 	had 	only one previous 	occasion to 	address
coalition bargaining. 	In Gilroy 	Unified 	School 	District 	(1984)
PERB Decision No. 	471, 	the Board discussed the issue in the
context 	of 	a 	school district's 	refusal 	to provide 	release 	time
for nonunit 	negotiating team members. 	In reaching 	its 	decision,
the 	Board 	reviewed precedent 	under 	the 	National 	Labor 	Relations
Act 	(NLRA) 	and 	adopted the 	following definition of 	coalition
bargaining:
[n]egotiations 	are 	directed 	toward 	similar
contracts, 	containing the same or similar
provisions. 	Further, 	the settlement of each
contract 	is usually dependent 	upon the
settlement of the others.
(Ibid. at p. 	8.) 	Additionally, 	the Board found that
the use 	of 	common bargaining 	sessions 	to
negotiate 	separate 	agreements 	merely goes 	to
the 	time 	and place of 	negotiations 	and does
not 	impinge upon the 	integrity of 	individual
units 	or the 	employer's 	right 	to 	consider
unit proposals 	on their own merits.
(Ibid.) 	However,
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[t]he merger of 	two 	or more unit 	negotiations
inherently alters 	the 	finding of 	unit
appropriateness1 . 	. 	. and affects the
employer's 	resulting 	bargaining 	obligation.
(Ibid.)
In the ALJ's view, 	the District, 	in order to have prevailed,
must 	have proven that 	the 	Federation refused 	to 	bargain unless
the 	units 	met 	jointly with 	the 	District 	or that 	the 	Federation
conditioned 	the 	settlement 	of 	one 	contract 	on the 	settlement 	of
the 	other. 	We 	agree that 	this 	accurately reflects 	the 	holding of
the 	Board 	in Gilroy 	Unified School 	District, 	supra,2 and 	is
consistent with analogous 	precedent 	arising under 	the 	NLRA.
(See, 	e.g., 	Harley Davidson Motor Co.. 	Inc.. AMF 	(1974) 	214 NLRB
433, 	437 	[87 LRRM 	1571] 	(participation of one unit's members 	on
bargaining 	team 	insufficient 	to 	demonstrate 	coalition
bargaining); 	Utility Workers Union of America 	(Ohio Power Co. 	et.
al) 	(1973) 	203 NLRB 230 	[83 LRRM 1099], 	enforced, 	(6th Cir. 	1974)
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490 	F.2d 	1383 	[85 	LRRM 2944] 	(acceptance of 	offer unlawfully
conditioned upon 	submission of 	identical 	offers 	to 	other units).)
In the 	instant 	case, 	the District's 	allegations 	focus 	on the
Federation's 	conduct 	at two October 	1985 	negotiating 	sessions.
First, 	the District alleged that on October 	15, 	1985, 	classified
1 Section 3545, 	subdivision 	(b)(3) 	of the Educational
Employment 	Relations Act prohibits 	classified and 	certificated
from being 	included 	in the 	same 	bargaining unit.
2In 	citing 	the 	Board's 	discussion of 	coalition bargaining 	in
Gilroy Unified 	School 	District, 	we do not address 	the propriety
of 	the 	Board's 	holding 	in that 	case 	on the 	narrower 	issue 	of
released 	time 	for 	nonunit 	negotiating 	team members.
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unit 	negotiator Bruce McManus 	responded 	to 	the 	District's
suggestion to 	settle 	the whole 	contract by 	stating 	that 	the
classified 	agreement would 	not 	be 	settled 	"without 	the
certificated unit." 	The ALJ 	credited McManus' 	denial 	that he
ever 	conditioned 	settlement 	of 	the 	classified 	contract 	on 	joint
settlement of both contracts. 	She 	concluded that
McManus' 	unwillingness to 	settle the contract
was 	related to his perception of 	its
inadequacy, 	not the 	fact that the
certificated 	representatives 	were 	not
present.
Furthermore, 	she credited McManus' 	testimony that he did not
condition agreement 	on the presence 	of 	the 	certificated unit.
The District also alleged that, 	on October 21, 	1985, 	certificated
unit 	negotiator Darwin Thorpe 	refused 	to discuss 	individual
proposals, 	instead 	conditioning any 	settlement on 	settlement 	of
all 	issues 	for both 	contracts. 	Thorpe denied 	the 	allegation and
the ALJ 	credited his 	testimony over that 	of 	District 	negotiator
Urrea Jones.
While 	the 	Board 	is 	free 	to 	consider the entire 	record 	and
draw its 	own conclusions 	from the 	evidence presented, 	the 	Board
has 	consistently given deference to 	an ALJ's 	findings 	of 	fact
which 	incorporate 	credibility determinations. 	(Los 	Angeles
Unified School District 	(1988) 	PERB Decision No. 	659; 	Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104.) 	Here, 	the
ALJ's 	conclusion that 	the 	Federation did 	not 	engage 	in coalition
bargaining 	is 	based primarily 	upon 	credibility 	determinations.
Our 	review of 	the 	record has 	revealed no basis 	for disturbing
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those determinations and, 	consequently, 	there is no basis 	for
overturning 	the dismissal 	of 	these 	allegations.
The 	"sick out" 	issue 	is 	also a close question. 	It 	is
undisputed that a 	"sick out" 	occurred. 	As 	the ALJ noted, 	given
the 	absence 	of 	clear evidence of who 	orchestrated the 	"sick out,"
it 	is 	certainly a possibility that 	the Federation was 	involved.
However, 	we 	agree with the ALJ 	that 	the District 	simply 	failed 	to
meet 	its 	burden of proof, 	as 	there was no evidence presented
that the Federation encouraged, 	planned, 	authorized or ratified
the 	"sick out."
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The 	District 	contends 	that 	it provided the requisite proof
by 	showing that 	some of 	the callers 	(who 	encouraged others 	to
call 	in 	sick) 	were union members 	and that most of 	the
Federation's 	officers 	and 	all 	of 	the members 	of 	its 	Job Action
Committee 	called in sick. 	However, 	the 	critical 	element of proof
that 	the 	District 	failed to provide was 	a 	showing that 	those
participants were 	in 	fact 	acting as 	agents 	of 	the 	Federation
rather than as 	individuals.
In discussing the application of 	common principles 	of 	agency
in determining a union's 	liability 	for acts 	of 	its 	members 	(see
pp. 	65-66 of attached proposed decision), 	the ALJ cited the
3PERB Regulation 32178 	states:
The 	charging party 	shall 	prove 	the 	complaint
by a preponderance of 	the 	evidence 	in order
to prevail.
PERB 	Regulations 	are 	codified 	at 	California Administrative 	Code,
title 8, 	part III, 	section 31001 	et seq.
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following passage 	from North River 	Energy Corporation v. 	United
Mine Workers. 	(11th Cir. 	1981) 	664 F.2d 	1184 	[109 LRRM 2335,
2340]:
In 	showing union complicity, 	the 	company must
therefore prove 	that 	the 	agents 	of 	the union
participated in, 	ratified, 	instigated,
encouraged, 	condoned, 	or in any way directed
the 	authorized 	strike 	for 	the 	union to be
held 	liable.
We 	believe 	the 	following 	additional passage 	from North 	River
Energy Corporation. 	109 LRRM at 2340, 	describes more 	fully a
charging party's 	burden 	in a 	case 	such 	as 	the 	instant 	one 	and
further demonstrates 	the 	correctness 	of 	the ALJ's 	proposed
decision:
It is necessary, 	however, 	that the acts of a
union agent be 	committed within the 	scope 	of
his 	general 	apparent 	authority 	and on behalf
of 	the 	union 	. . . . 	The 	only 	activity which
North River relies 	upon which 	is 	indicative
of union authorization, 	ratification, 	or
approval, 	is the fact that all of the union
officials 	and 	committeemen 	failed 	to work
their 	shifts 	in each of 	the 	six 	subsequent
strikes. 	This fact, 	in itself, 	cannot be
construed 	as 	participation 	and 	authorization
by the union as 	an entity 	in the 	strike.
Similarly, 	in the instant case, 	the District has 	established only
that most Federation officials 	called 	in sick. 	This, 	in and of
itself, 	is 	insufficient to demonstrate Federation involvement 	in
the 	"sick out."
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire record in this 	case, 	it 	is 	found that the Compton
Community College 	District 	has 	violated 	the 	Educational
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Employment Relations Act. 	Pursuant to 	section 3 541.5(c) 	of the
Government Code, 	it hereby is ORDERED that the Compton Community
College District, 	its board of trustees, 	superintendent and
agents 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and negotiate 	in good 	faith and
refusing 	to participate 	in good 	faith 	in 	impasse proceedings 	by
failing 	to present 	clear and 	consistent positions 	or proposals 	on
salary negotiations, 	reneging on tentative agreements 	during
bargaining and impasse proceedings, 	violating ground rules, 	and
altering 	last 	and 	final 	offers.
2. 	Denying the Federation its 	right to represent
members 	of 	the 	classified 	and 	certificated units 	in negotiations
and 	impasse proceedings 	conducted 	in good 	faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject 	to reconsideration, 	post at
all 	school 	sites 	and at 	all other work locations where notices 	to
certificated 	and 	classified 	employees 	are 	customarily 	placed,
copies 	of 	the Notice 	attached hereto as 	an Appendix. 	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. 	Reasonable 	steps 	shall be taken to 	insure
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that the Notice 	is 	not reduced in size, 	altered, 	defaced or
covered 	by 	any 	other material.
2. 	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 her 	instructions.
Members 	Shank and Camilli 	joined 	in this 	Decision.
9

APPENDIX
NOTICE 	TO ALL 	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-2276,
Compton Community College 	Federation of 	Employees. 	AFL-CIO 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 	by 	failing 	to 	bargain 	in
good 	faith 	and by 	failing to participate 	in good 	faith 	in 	impasse
proceedings.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and negotiate in good 	faith and
refusing 	to participate 	in good 	faith 	in 	impasse proceedings 	by
failing 	to present 	clear and consistent positions 	or proposals 	on
salary negotiations, 	reneging on tentative 	agreements 	during
bargaining and impasse proceedings, 	violating ground rules, 	and
altering 	last 	and 	final 	offers.
2. 	Denying the Federation its 	right to represent
members 	of 	the 	classified and 	certificated units 	in negotiations
and 	impasse proceedings 	conducted 	in good 	faith.
D a t e 	COMPTON COMMUNITY 	COLLEGE 	DISTRICT
By
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	COMMUNITY COLLEGE 	FEDERATION
OF EMPLOYEES, 	AFL-CIO,
Charging 	Party,
v.
COMPTON 	COMMUNITY COLLEGE 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2276
PROPOSED 	DECISION
(4/19/88)
COMPTON 	COMMUNITY COLLEGE 	DISTRICT,
Charging 	Party,
v.
COMPTON 	COMMUNITY 	COLLEGE 	FEDERATION
OF EMPLOYEES, 	AFL-CIO, 	CERTIFICATED
SECTION,
Respondent.
Unfair 	Practice
Case Nos. 	LA-CO-350
LA-CO-3 53
LA-CO-3 60
COMPTON 	COMMUNITY COLLEGE 	DISTRICT,
Charging 	Party,
v.
COMPTON 	COMMUNITY 	COLLEGE 	FEDERATION
OF EMPLOYEES, 	AFL-CIO, 	CLASSIFIED
SECTION,
Respondent.
Unfair 	Practice
Case Nos. 	LA-CO-352
LA-CO-359
Appearances: 	Lawrence Rosenzweig, 	Attorney, 	for Compton Community
College 	Federation 	of 	Employees, 	AFL-CIO, 	Certificated/Classified
Sections; 	Jones 	& Matson by Urrea C. 	Jones, 	J r . , 	Attorney, 	for
Compton 	Community College 	D i s t r i c t .
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	BACKGROUND AND 	PROCEDURAL 	HISTORY
During 	1985 	and 	1986, 	t h e 	Compton 	Community 	C o l l e g e 	F e d e r a t i o n
of 	Employees, 	AFL-CIO 	( h e r e i n a f t e r 	Union 	or 	F e d e r a t i o n ) 	and 	t h e
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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Compton 	Community College 	District 	(hereinafter 	District) 	were
engaged 	in negotiations 	and 	then mediation 	and 	factfinding. 	The
Federation 	is 	the 	exclusive 	representative 	of 	the District's
certificated 	and classified units. 	For 	the certificated 	unit, 	the
Federation was 	negotiating 	a 	successor 	agreement 	to 	the 	contract
which expired on June 30, 	1985. 	For 	the classified unit, 	the
Federation was 	negotiating 	its 	first 	collective 	bargaining
agreement. 	Previous 	classified 	agreements 	had 	been 	negotiated 	by
the 	District 	and 	the 	California 	School 	Employees 	Association
(hereinafter CSEA), 	which had been defeated by the Federation 	in a
decertification election, 	the 	results 	of 	which were 	certified 	on
June 4, 	1985.
Case No. 	LA-CE-2276
Case No. 	LA-CE-2276 was 	originally filed on November 	5, 	1985,
on behalf 	of 	the certificated 	and 	classified units. 	After 	an
investigation conducted 	by the Office 	of 	the General 	Counsel 	of
the 	Public 	Employment 	Relations 	Board 	(hereinafter 	PERB 	or 	Board)
a Complaint was 	issued on February 28, 	1986, 	and was 	subsequently
amended on August 20, 	1986. 	The Complaint, 	as 	amended, 	alleges
that 	the District 	violated various 	provisions 	of 	the Educational
Employment Relations Act 	(hereinafter Act or EERA)11, 	by
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references 	are
to 	the Government Code. 	Section 3543.5 	provides, 	in 	relevant
part, 	as follows:
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engaging 	in 	bad 	faith 	bargaining 	and 	by 	threatening 	to
retaliate 	against 	employees 	because 	those 	employees 	or 	the
Federation on 	their 	behalf, 	engaged 	in protected 	activity.
In 	terms 	of 	bad 	faith bargaining, 	the Complaint 	alleges
that 	the District: 	reneged on 	a promise to 	accept 	a 	salary
proposal; 	reneged on agreements with 	respect 	to 	"hours 	of
employment," 	"maintenance of 	operations," 	and 	a 	paid 	lunch
period; 	reneged on 	agreed-upon ground 	rules; 	conditioned
bargaining 	on matters 	outside 	the 	scope 	of 	representation;
failed 	and 	refused 	to 	respond 	to 	Federation proposals; 	and
repeatedly 	identified proposals 	as 	"last 	and 	final 	offers" 	and
then 	reduced 	or withdrew 	those 	"last 	and 	final 	offers."
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.
(e) 	Refuse to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
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In 	terms 	of 	individual 	acts 	of 	retaliation 	and
interference, 	the Complaint 	alleges 	that 	the District, 	in
negotiations 	with 	the classified 	unit, 	threatened 	to 	place
every complaint 	against 	an 	employee 	in 	the 	employee's 	personnel
file 	if 	the Federation did 	not 	agree 	to 	change 	the 	language 	in
the 	contract 	article 	then being 	negotiated.
Case No. 	LA-CO-350
Unfair 	Practice 	Case 	LA-CO-350 	was 	filed 	by 	the 	District
against 	the Federation, 	in 	its 	capacity as 	exclusive
representative of 	the certificated unit, 	on December 	2, 	1985.
The 	charge 	alleges 	various 	violations 	of 	section 	3543.6.2
The Complaint, 	issued on March 6, 	1986, 	and amended on
August 	20, 	1986, 	alleges 	that 	the Federation violated the Act
2 Section 3543.6 	provides 	as 	follows:
It 	shall 	be unlawful 	for 	an employee
organization 	to:
(a) 	Cause or 	attempt to cause 	a public
school 	employer 	to violate 	Section 3543.5.
(b) 	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.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith with 	a 	public 	school 	employer 	of
any of 	the employees 	of which 	it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to 	participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
4

by engaging 	in merged/coalition bargaining, 	failing 	to make
counterproposals 	on 	the 	subject of division chairs, 	being
consistently 30 minutes 	late to bargaining 	sessions, 	and
failing 	to 	respond 	to 	the District's 	salary proposals. 	The
Complaint 	further 	alleges 	that 	the 	Federation 	failed 	to
participate 	in 	good 	faith 	in 	impasse 	procedures 	by 	increasing
its 	salary 	and 	fringe benefit 	demands, 	refusing 	to 	respond 	to
proposals 	on 	salary benefits 	and 	temporary employment, 	and
refusing to meet, 	upon request, 	with the District.
Case No. 	LA-CO-352
The 	District 	filed Unfair 	Practice Case No. 	LA-CO-352
against 	the Federation, 	in 	its 	capacity as 	exclusive
representative of 	the classified unit, 	on December 	2, 	1985.
The Complaint, 	issued on February 14, 	1986, 	and amended
August 20, 	1986, 	alleges, 	in relevant part, 	that the classified
unit 	engaged 	in unlawful 	coalition bargaining 	by 	refusing 	to
settle 	a 	collective 	bargaining 	agreement with 	the 	District
unless 	the 	certificated unit 	also 	reached 	agreement. 	The
Complaint 	further 	alleges 	that 	the 	Federation unlawfully
increased 	its 	salary and 	fringe 	benefits 	demands 	during
mediation.
Case No. 	LA-CO-353
Unfair 	Practice Case No. 	LA-CO-353 was 	filed by the
District 	against 	the Federation, 	in 	its 	capacity as 	exclusive
representative of 	the certificated unit, 	on December 	2, 	1985.
5

The Complaint, 	issued on February 14, 	1986, 	alleges 	that on or
about October 	21, 	1985, 	the Federation met with the District
and, 	at that time, 	Darwin Thorpe and Bruce McManus,
co-presidents 	of 	the Federation, 	informed the District 	that 	the
classified 	unit would 	not 	negotiate 	separately with 	the 	. . .
District 	and 	that 	the 	classified 	and 	certificated 	units 	would.. ... .
not 	reach 	agreement 	on 	any 	single 	issue without 	agreement 	"on
the whole 	thing." 	The 	Complaint 	alleges 	such 	conduct 	violates
sections 3543.6(a) 	and (c).
. ..
Case Nos. 	LA-CO-359 	and LA-CO-360
The District 	filed Unfair 	Practice Case No. 	LA-CO-359
against 	the 	Federation's 	classified 	unit 	and 	Unfair 	Practice
Case No. 	LA-CO-360 	against 	the Federation's 	certificated unit
on March 26, 	1986. 	Each case concerns 	an alleged 	sick-out
engaged 	in by District 	employees 	on March 7, 	1986.
. . . 4 04 . ..
In Case No. 	LA-CO-359, 	the Complaint, 	issued on
April 4, 	1986, 	and amended on August 20, 	1986, 	alleges that on
March 	7, 	1986, 	the Federation organized 	and caused employees 	to
participate 	in a 	sick-out, 	in violation of 	the collective
bargaining 	agreement, 	for 	economic 	reasons 	and with no 	prior
notice 	to 	the District. 	The Complaint 	in Case No. 	LA-CO-360
issued on April 	4, 	1986. 	It 	concerns 	the same event 	but
differs 	from Case No. 	LA-CO-359 	in one respect; 	no violation of
a 	collective 	bargaining 	contract 	is 	alleged.
66

All 	the 	above-referenced 	cases 	were 	consolidated 	for
hearing 	and 	proposed 	decision. 	A 	pre-hearing 	conference was
conducted on September 	9, 	1986, 	at 	the Los Angeles Regional
Offices 	of 	the PERB. 	Thereafter, 	a 	formal 	hearing was
conducted on September 	17-19, 	and 22-23, 	1986. 	The parties
submitted 	post-hearing 	briefs.
On April 	27, 	1987, 	the District 	filed a request 	to 	reopen
the 	record 	to 	admit 	a 	factfinding 	report 	into 	evidence. 	The
parties 	were 	given 	an opportunity 	to 	further 	brief 	the 	question
of 	reopening 	the 	record 	and 	the 	District 	filed 	a 	document
entitled 	"Motion 	and Argument 	in 	Support 	of 	Compton Community
College 	District Motion 	to 	Reopen Record; 	Motion 	and Argument
for 	Partial 	Dismissal of 	Charges; 	Declaration of 	John D.
Renley." 	Thereafter, 	the 	Federation 	filed 	an opposition to 	the
District's motions. 	On May 12, 	1987, 	the undersigned denied
the motion 	to 	reopen 	the 	record 	and 	denied 	the motion 	for
-partial dismissal". . . .	. 	At that time, 	the matter was 	finally
submitted 	for 	proposed 	decision.
. 2 +4:
II. 	FINDINGS OF FACT
A. 	The 	Stage 	and 	the Primary Cast 	of 	Characters
The District 	is 	an employer 	and 	the 	Federation 	is 	an
employee organization as 	those 	terms 	are 	defined 	in 	the EERA.
Since 	the 	parties 	began 	the 	round of 	negotiations 	at 	issue
herein, 	14 	unfair 	practice charges 	have been 	filed by either
77

the 	Federation 	against 	the District 	or 	the 	District 	against 	the
Federation. 	Before that, 	but 	after January 1980, 	the
Federation, 	which 	then 	represented 	only 	the certificated 	unit,
was 	a 	party 	in 	seven unfair 	practice cases. 	Two 	other 	cases
against 	the 	District were 	filed 	by 	the 	Federation's 	predecessor
in the classified unit, 	the CSEA. 	In addition, 	the undersigned
was 	asked, 	during 	the course of 	the formal 	hearing, 	to 	take
official 	notice 	of 	at 	least 	two 	California Court 	of Appeal
decisions 	involving 	the 	same 	litigants.
Obviously, 	the disputes 	between the 	parties 	have various
degrees 	of 	intensity and 	importance. 	What 	the numbers 	reflect,
however, 	is what 	the evidence also 	established. 	The parties do
not 	have 	a 	stable 	or 	strife-free 	collective bargaining
relationship. 	Although 	the 	hearing 	disclosed 	very 	few
instances 	of 	temper 	or 	hostility, 	the 	testimony about 	the
bargaining 	history between 	the 	parties 	suggests 	that 	the
parties 	often 	failed 	to 	communicate 	effectively.
Darwin Thorpe, 	an instructor 	at the District 	since 	1963,
was 	a primary spokesperson 	for 	the Federation 	and, 	for 	a 	good
many years, 	has 	served 	as 	its 	president. 	At 	all 	times 	relevant
herein, 	he was 	one of 	the co-presidents with 	responsibility for
the 	certificated 	unit.
Thorpe's 	counterpart 	in 	the 	classified 	unit 	is 	Bruce
McManus. 	McManus 	has 	been employed by the District 	since
8
8

January 	1980 	and, 	prior 	to 	his 	involvement with the Federation,
was 	an 	active 	leader 	in 	the 	classified unit when 	it was
represented 	by the CSEA. 	During 	the 	course of 	this 	hearing,
McManus 	demonstrated that 	he was 	the detail 	person; 	he was well
versed 	and precise when 	it came 	to 	budget 	figures, 	budget
documents, 	and what was 	said, 	when, 	and by whom at the
bargaining 	table.
Urrea C. 	Jones, 	Jr. 	is 	an attorney for the District 	and,
during 	the course 	of 	these hearings, 	was 	the District's 	primary
advocate 	and one of 	its 	leading witnesses. 	At 	all 	times
relevant 	herein, 	Jones was 	also 	a 	negotiator 	for 	the District
and 	he 	acknowledged 	that 	he was 	looked upon 	as 	the 	chief
negotiator 	and 	spokesperson. 	Jones 	testified 	he was 	brought
into 	negotiations 	by the District 	to make 	sure 	the District
avoided 	legal 	difficulties 	which 	had 	followed 	previous
negotiations. 	As 	a witness, 	Jones did not have the 	facility
with details 	demonstrated by McManus. 	By his 	testimony, 	Jones
did, 	however, 	present a good sense of 	the tenor of negotiations.
. .. .
B. 	Case No. 	LA-CE-2276
1. 	Classified Negotiations 	on Matters Other 	Than 	Salary
The 	contract 	proposal 	for 	the 	classified 	unit was
"sunshined" 	in February 	1985. 	Representatives 	of 	the
classified unit met with the District on May 15, 	17, 	and 31, 	to
3 In 	previous 	years, 	there 	had 	been 	serious 	miscalculations
regarding 	District 	resources.
99

establish ground 	rules 	for negotiations. 	On June 4, 	1985,
agreement was 	reached 	regarding 	the 	ground 	rules. 	McManus was
involved 	in 	those negotiations. 	Jones was 	not 	involved 	in
those preliminary negotiations; 	the 	first 	time he became
familiar 	with 	the 	classified 	ground 	rules 	was 	during 	mediation,
. . 	some 	six months 	later. 	Jones was 	similarly unfamiliar with the
classified 	contract 	or 	the 	terms 	and 	conditions 	of 	employment
which 	governed 	classified 	personnel 	prior 	to 	the 	round 	of
negotiations 	relevant 	herein. 	His 	lack of 	familiarity with
those matters 	explains 	some 	of 	the 	problems 	and
misunderstandings 	which 	arose during 	the 	course 	of
negotiations. 	McManus was 	quite 	familiar with 	those matters
and, 	not unreasonably, 	he held the District's 	negotiators 	to
the 	same 	standard.
Negotiations 	continued 	between 	the 	District 	and 	the
classified unit until October 	21, 	1985, 	when impasse was
declared. 	Thereafter, 	mediation efforts 	began 	in January 	1986,
continuing 	through June 	20 	of 	that year. 	Factfinding 	began on
September 16, 	1986.
a. 	A Paid 	Lunch Period 	and Work Year 	Determinations
Early in negotiations, 	sometime 	in June 	1985, 	the District
and 	the 	classified 	unit 	discussed 	an 	article 	entitled 	"Hours 	of
Employment." 	According 	to McManus, 	the District generally
accepted 	the Union's 	proposal, 	which 	included provision 	for 	a
10

paid 	lunch period. 	The District did, 	however, 	have 	serious
reservations 	about 	a 	provision which 	allowed 	employees 	the
right 	to 	refuse 	overtime 	assignments 	and 	a 	provision pertaining
to 	shift differential. 	For 	its part, 	the Union had difficulty
with 	a 	provision 	in the 	previous 	contract which 	stated 	that
"the work year 	shall 	be 	determined 	by 	the 	District." 	The Union
was 	concerned because, 	in a previous year, 	buttressed by that
provision, 	the District 	successfully defended 	a 	challenge when
it 	reduced 	the 	classified work year 	from 	12 	to 	11-1/2 months.
The 	parties 	discussed 	these 	issues 	during 	numerous
bargaining 	sessions. 	The Union 	presented 	alternative 	proposals
on June 24, 	June 27, 	July 8, 	and July 11, 	1985. 	McManus
credibly testified 	that 	on 	the 	latter 	date, 	the parties 	reached
agreement 	on 	all 	aspects 	of 	the hours 	of 	employment 	article,
with 	the 	exception 	of 	the 	section pertaining 	to 	shift
differential. 	In other words, 	the District 	agreed to 	the
article which 	included 	a 	paid 	lunch period. 	The District 	also
agreed 	to 	the 	Union's 	demand 	to 	eliminate 	the District's
unilateral 	ability to determine 	the 	length of 	the work year,
although 	a 	conditional 	District 	right 	to 	set 	the work year,
subject 	to negotiations, 	was placed 	in 	a 	separate provision of
the 	contract 	entitled 	"District 	Rights."
The District 	asserts 	it 	never 	knowingly agreed 	to 	a 	paid
lunch period. 	Although 	the 	District 	representatives 	did 	not
11

recall 	any specific discussion of 	the paid 	lunch period, 	Jones'
bargaining 	notes 	from 	late 	June 	reflect 	that 	the word 	"paid"
was 	circled with 	a 	question mark next 	to 	it. 	Jones
acknowledged 	that 	the 	notation meant 	he 	probably questioned 	a
paid 	lunch period, 	although he could not 	recall 	doing 	so. 	I
credit McManus' 	specific 	testimony that 	on or 	about
June 	20, 	1985, 	Jones 	asked whether 	a paid 	lunch period was
legal 	and McManus 	said 	it was; 	there was 	no 	further 	discussion
or debate. 	Some months 	later, 	in October 	1985, 	Jones 	stated he
carefully compared 	all 	the 	proposed 	agreements 	against 	the
previous 	CSEA contract. 	It must 	be presumed he 	saw and
acknowledged 	the 	change 	from an unpaid 	to 	a 	paid 	lunch hour.
. .
After making 	the 	above-described 	comparison, 	the 	District
printed 	a master 	copy of 	all matters which had 	been 	agreed 	to
at 	the bargaining 	table. 	In that 	"master 	agreement," 	the
District 	deviated 	from the matters 	agreed 	to 	on 	or 	before
July 11, 	1985, 	and 	reintroduced, 	in the article on hours of
employment, 	a 	provision 	that 	the work year would 	be determined
by 	the District. 	The master 	agreement 	did 	include 	the
provision 	for 	a 	paid, 	uninterrupted 	lunch period.
Subsequently, 	on June 2, 	1986, 	at the Union's 	request the
District 	distributed 	to 	all 	affected 	employees 	a 	copy of 	a
collective 	bargaining 	agreement which 	it 	labeled 	"last 	and
final 	offer" 	and which 	purportedly 	included 	all 	those matters
12

previously 	agreed 	to 	by the Union 	and 	the District. 	The
document 	included 	a 	provision 	for 	a 	paid, 	uninterrupted 	lunch
period. 	Notwithstanding 	that 	document, 	at 	Jones' 	direction 	and
without prior consultation, 	discussion, 	or notice to 	the Union,
on June 	5, 	1986, 	the District 	sent 	a memorandum to 	all
classified 	employees which 	accompanied 	a 	copy of 	the 	offer.
The memorandum was 	from Floranell 	Shearer, 	the director 	of 	data
processing 	and 	a 	member 	of 	the 	District's 	negotiating 	team.
. .. .
The 	communication 	stated 	the 	following:
On page 22, 	2.a. 	of subject Draft, which
reads: 	"The unit member 	is 	entitled to paid,
uninterrupted 	lunch 	period 	of 	not 	less 	than
thirty 	(30) 	minutes 	for bargaining unit
members working 	six 	(6) 	or more consecutive
hours 	per day. 	At 	the 	request 	of 	the unit
member 	and 	on 	approval 	of 	immediate
supervisor, 	the 	compensated 	lunch period
shall be set" 	is 	incorrect.
The 	paragraph 	should 	read 	as 	follows:
The unit member 	is 	entitled 	to 	unpaid,
uninterrupted 	lunch 	period 	of 	not 	less 	than
thirty 	(30) 	minutes 	for bargaining unit
members working 	six 	(6) 	or more consecutive
hours 	per day. 	At 	the 	request 	of 	the unit
member 	and on 	approval 	of 	the 	immediate
superviser, 	the compensated 	lunch period
shall be 	set.
Please 	correct 	your 	copy.
According 	to 	Jones, 	since 	the District 	did not 	have 	a 	specific
recollection of 	consciously agreeing 	to 	a 	paid, 	uninterrupted
lunch period, 	the District 	thought 	it 	could modify 	the
agreed-upon 	language with 	impunity. 	The 	legal 	consequences 	of
13

the District's 	action will 	be discussed below. 	As 	a matter 	of
fact, 	however, 	the conclusion that 	the District 	reneged on 	a
tentative 	agreement 	is 	unmistakable.
b. 	The Maintenance of Operations 	or 	"No 	Strike" 	Clause
The Union 	also 	alleges 	that 	the District 	reneged 	on 	a
tentative agreement 	to eliminate, 	from the new contract, 	the
"no-strike" 	or 	"Maintenance of Operations" 	provision which had
been 	in 	the CSEA contract. 	Jones 	admitted 	the District 	had 	no
intention of 	holding 	the Union to 	a 	"no-strike" 	clause. 	As
Jones 	explained, 	the District 	considered 	a 	"no-strike" 	clause
the 	quid 	pro 	quo 	for 	binding 	arbitration. 	Since 	the District
was 	unwilling 	to 	provide binding 	arbitration, 	Jones 	reasoned
the District would not 	insist upon a 	"no-strike" 	clause.
Jones 	testified 	that, 	although 	the District 	indicated 	that
a 	"no-strike" 	clause would 	not 	be 	included 	in 	the 	new contract,
the 	District 	never made 	a 	firm commitment 	as 	to when 	and
exactly under what 	circumstances 	the 	clause would 	be 	deleted 	or
not 	included 	in the contract. 	Jones 	testimomy was 	general. 	I
credit 	the more 	precise 	testimony of 	McManus 	who 	stated 	that
the 	parties 	agreed 	to drop 	the Maintenance 	of 	Operations
provision on June 	17, 	1985. 	The 	fact 	that 	the provision was
dropped was 	again discussed on July 	1. 	On that date, 	Jones
approached McManus 	and 	stated, 	"I 	know that Maintenance of
Operations 	is 	dropped, 	but would you 	consider 	including 	the
last 	paragraph of 	that 	article 	in the contract." 	The 	last
14

paragraph 	of 	the 	article 	provided 	that 	nothing 	precluded 	the
. ..
parties 	from 	seeking 	any 	judicial 	relief 	to which 	they might 	be
entitled. 	McManus 	indicated 	he would 	have 	to 	check with 	the
Federation's 	attorney. 	He did 	so 	and 	on July 	8, 	McManus 	told
Jones 	the 	judicial 	relief 	language 	could 	be 	included 	in 	the
"General 	Provisions" 	section of 	that contract.
Based upon 	the conversations 	described 	above, 	McManus 	and
the 	Federation 	reasonably concluded 	there was 	an 	agreement 	to
exclude 	the Maintenance 	of 	Operations 	provision 	from 	any 	future
agreement. 	Notwithstanding 	that 	agreement, 	when the District
prepared 	the 	"master 	agreement" 	for 	the parties' 	negotiating
session 	in October, 	the District 	put 	the Maintenance of
Operations 	article 	back 	in the contract.
c. 	The Alleged Violation of 	the 	Ground 	Rules
On June 4, 	1985, 	the District 	and 	the CSEA 	agreed upon
ground 	rules 	for 	negotiating 	the 	1985-88 	collective 	bargaining . .
contract. 	The District 	agreed 	that, 	upon certification of 	the
Federation 	as 	the 	exclusive 	bargaining 	agent 	for 	the 	classified
bargaining unit, 	the ground 	rules would continue 	in effect.
Ground Rules No. 	6 	and 7, 	at 	issue herein, 	provide as 	follows:
6. 	Once 	language 	of 	any 	item has 	been
tentatively 	agreed upon, 	a 	clean copy 	shall
be 	prepared, 	with confidentiality ensured,
and 	presented 	at 	the 	next 	regularly
scheduled 	meeting 	for 	each 	party's
initials. 	These 	agreements 	shall 	be
considered 	tentative 	until 	such 	time 	as
final 	ratification by the 	parties. 	No
tentative 	agreement 	shall 	be 	reached 	except
at 	formal 	negotiating 	sessions.
15

7. 	The 	negotiating 	team shall 	have 	the
authority 	to 	reach 	tentative 	agreements 	for
their 	respective 	party.
There 	is 	no dispute 	that 	the parties 	reached 	a verbal
tentative 	agreement 	on 	the 	issue 	of 	organizational 	security on
or around July 25, 	1985. 	On July 29, 	1985, 	at the next
regularly 	scheduled 	bargaining 	session, 	McManus 	brought 	clean
copies 	of 	the 	agreement 	for 	the District's 	signature. 	The
District 	refused 	to 	sign, 	stating 	that 	it was 	not 	going 	to 	sign
off 	on 	anything 	else 	until 	after 	the marathon 	negotiating
session, 	scheduled for October 8, 	1985. 	The tentative
agreement 	on 	organizational 	security was 	not 	initialed 	until
that time.
The 	District 	proffered 	some 	reason 	for 	not 	signing 	the
organizational 	security 	agreement 	at 	the 	next 	meeting,
essentially claiming 	it was 	no 	"big 	deal" 	and 	that 	the District
did 	not 	have 	a 	role 	to 	play 	in the Union's 	organizational
security concerns.4 	. . .
d. 	The Threat 	to 	Change District 	Practice with
Respect 	to 	Employee 	Personnel 	Files
During 	the course of 	negotiations, 	the Federation proposed
various 	changes 	in 	the 	previous 	collective 	bargaining 	agreement
with 	respect 	to 	employee personnel 	files, 	including when
4 As 	a matter of 	law, 	the District plays 	a critical 	role
in whether 	or 	not 	the Union 	has 	an organizational 	security
provision. 	Pursuant 	to 	section 3546, 	in order 	to 	be effective,
an 	organizational 	security 	arrangement 	must 	either 	be 	agreed 	to
by both parties 	or, 	at 	the demand of 	the employer, 	subjected to
a 	vote 	by qualified 	electors 	in 	the 	bargaining 	unit.
16

material 	should 	be 	purged or 	not 	available 	for 	use 	in
disciplinary proceedings. 	The District 	never 	proposed 	any
changes 	in the previous provision. 	By October 	8, 	1985, 	when
the parties 	had 	failed 	to 	reach agreement 	on 	that 	issue, 	the
Federation 	suggested 	a 	continuation 	of 	the 	contractual 	language
on employee 	rights which 	existed 	in 	the previous 	CSEA
contract. 	Article 	II, 	entitled 	"Employee Rights," 	provided
under 	the 	subheading of 	"Personnel 	Files" 	as 	follows:
The 	personnel 	file 	of 	each classified
employee 	shall 	be maintained 	in 	the
District's 	personnel 	office. 	Adverse 	action
shall 	be 	taken 	against 	an employee 	based
only upon materials which 	are 	in 	the
employee's personnel 	file, 	except 	in
circumstances 	when 	immediate 	remedy 	is
necessary.
Upon written request of 	the member, 	or 	the
members 	designated 	representative, 	the
District 	agrees 	to 	remove 	and 	destroy 	any
materials 	of 	a derogatory nature which have
remained 	in the 	file 	for more 	than three 	(3)
years.
Jones was 	apparently unfamiliar with 	the 	previous 	CSEA
contract. 	Jones 	and McManus 	had 	a 	heated exchange.
McManus 	characterized 	the 	conversation 	as 	"hostile." 	Jones
conceded 	that 	the discussions 	on 	the 	issue were 	"intense."
McManus 	testified 	that 	the 	hostility or 	intensity was 	not
characteristic 	of 	previous 	"disputes" 	and 	that 	he did 	not
consider 	Jones' 	comments 	or 	behavior 	to be typical 	bargaining
table 	sparring. 	Eventually, 	as 	if 	to end 	the conversation,
17

Jones 	told McManus 	that 	if 	the 	contract 	included 	the 	language
proposed by the Federation, 	Jones was 	going 	to 	tell 	all 	the
District's 	supervisors 	to 	place 	each 	and 	every complaint 	in 	the
personnel 	file 	of 	concerned 	employees.
Jones 	does 	not 	deny making 	essentially 	the 	remarks
attributed to him. 	He did testify, 	however, 	that the comments
made 	at 	the bargaining 	table were 	not 	carried out, 	although he
admittedly 	failed 	to 	tell 	the Union he 	had 	not 	given 	a
directive 	to 	all 	District 	supervisors.
2. 	Certificated Negotiations 	on Matters 	other 	than 	Salary
The 	Federation 	and 	the District 	began 	negotiating 	for 	the
certificated unit 	in May 	1985. 	At 	the outset, 	the Federation
and 	the 	District 	each presented 	areas 	of 	concern 	and 	focus 	for
upcoming negotiating sessions. 	In this 	case, 	the Federation's
primary 	focus, 	with 	respect 	to 	certificated 	negotiations 	on
matters 	other 	than salary, 	is 	the District's 	failure 	to 	respond
to 	proposals 	regarding 	the 	transfer 	and 	reassignment 	of 	faculty.
The 	Transfer 	and 	Reassignment 	of 	Faculty
On or 	about August 	20, 	1985, 	the Federation set 	forth a
comprehensive 	proposal with 	respect 	to 	the 	transfer 	and
reassignment 	of 	faculty. 	The Federation did 	not 	receive 	a
counterproposal 	from the District 	until 	the 	parties 	were
engaged 	in mediation on February 26, 	1986.
Prior to that date, 	on October 21, 	1985, 	at the final
bargaining 	session, 	the Federation 	asked 	for 	a 	counterproposal
18

to 	its written proposal. 	The District 	said 	a counterproposal
would 	not 	be 	forthcoming 	because 	the Union's 	proposal 	violated
affirmative 	action. 	On behalf 	of 	the Federation, 	Thorpe 	asked
Jones 	to 	tell 	him what 	the violation was 	and 	give 	citations.
In addition, 	Thorpe told Jones 	if he gave such citations, 	the
Federation might 	agree with him and drop 	the proposal ......
completely. 	The 	Federation was 	told 	it 	should 	look 	at 	the
District's 	affirmative 	action policy. 	At 	the hearing, 	the
District 	explained 	that 	the Union's 	proposal 	gave 	preference
for 	employment 	in vacant 	positions 	to 	current 	faculty members.
The 	District 	believed 	such 	a 	proposal would 	unlawfully
foreclose 	job opportunities 	for minorities. 	Without 	commenting
upon whether 	such a position 	is 	legally correct, 	I 	find 	the
District 	did 	not 	provide 	this 	explanation 	at 	the 	table 	in
October.
3. 	Negotiations 	on Matters 	Pertaining 	to 	Salary
Basically, 	when negotiations 	between 	the 	Federation 	and 	the
District 	concerned matters 	other 	than compensation, 	the
District 	met 	separately with 	representatives 	of 	the 	classified
unit 	and 	the 	certificated units. 	When 	salaries were 	being
discussed, 	however, 	the bargaining 	sessions were combined.
5see	Ssee 	section 	II.C.I 	at 	pp. 	30-33 	infra on the 	issue of
coalition 	bargaining.
19
5

From the 	beginning, 	the 	parties were 	far 	apart 	on 	several
issues. 	First, 	the parties did not 	agree on the 	amount 	of
money that 	should be paid 	to 	employees. 	Next, 	and 	perhaps more
important, 	the District 	and 	the Federation did 	not 	agree 	on 	the
question of whether 	the District 	had 	the 	ability to meet 	any of
the Federation's 	economic demands.
a. 	The Union's 	Position
The 	thrust 	of 	the Union's 	argument 	is 	that 	the District
repeatedly changed 	its 	position 	on 	the 	amount 	of 	resources
available 	for 	salaries. 	Underlying 	that 	argument was 	the
Union's 	apparent 	belief 	that 	the 	District 	did 	not 	really 	know
what 	resources were 	available, 	that 	the District 	concealed 	its
resources, 	and 	that 	the District did 	not 	properly 	allocate 	its
resources.
The 	Federation 	representatives 	from both 	the 	certificated
and 	the 	classified 	units 	met 	with 	the District 	on
June 	17, 	1985. 	At the meeting, 	the Federation contended the
District 	had 	adequate 	funds 	in 	the budget 	for 	the 	coming 	year,
such 	that 	classified 	and 	certificated 	salaries 	could 	be 	brought
in 	line with 	the 	average 	salaries 	paid 	in other 	districts 	whose
general 	ability to pay was 	comparable 	to 	the District's. 	The
Federation did 	not 	accept 	and 	claims 	it 	did 	not 	understand 	the
District's 	explanation of 	its 	alleged 	inability to pay. 	The
Federation was 	told 	the 	District 	had 	no 	objection 	to 	improving
20

the 	salaries 	of 	certificated 	and classified employees, 	but,
such 	a 	result was 	impossible 	because 	the District 	did 	not 	have
the money.
At 	that meeting, 	McManus 	and Thorpe 	assert 	the District
promised 	to make money available 	for 	salary 	increases 	if 	the
Federation could 	"find money" 	that was 	suitable 	for 	general
fund 	apportionment. 	Federation 	representatives 	understood
"found money" 	to mean either 	money 	the 	District 	did 	not 	know
about because of 	an underestimate of resources or 	reserves, 	or
money which was, 	for 	some 	reason, 	concealed 	in the budget
presented 	by 	the 	District.
In order 	to 	"find money," 	the 	Federation 	sent 	Pat
McLaughlin, 	a union member of 	the District's 	budget committee,
to 	the 	business 	office 	to 	inspect 	and 	analyze District 	ledger
sheets. 	McLaughlin was 	accompanied by Wanda Reilly, 	a nonunit,
confidential 	employee 	from the 	budget 	committee. 	Based 	on 	the
work done by the 	two members 	of 	the budget committee, 	the
Federation 	concluded 	the 	District 	had 	a 	higher 	net 	ending
balance 	than disclosed 	at 	the meeting of 	June 	17. 	The Union
found 	the net 	ending 	balance was 	in excess 	of 	$700,000. 	The
District 	had 	claimed 	it was 	closer 	to 	$400,000. 	Having 	found
close to $300,000, 	at the next meeting on June 28, 	the
Federation 	proposed 	settlement 	of 	both 	the 	classified 	and
certificated 	contracts 	that 	very day. 	The 	Federation 	proposed
a 	formula 	for 	dividin.. .'g 	the money 	so 	that 	each unit would
21

receive 	a 	percentage of 	the 	available money until 	a 	salary
increase 	cap 	of 	11.1 	percent 	for 	certificated 	and 	15.8 	percent
for 	classified 	had 	been 	reached. 	The 	Federation 	proposals 	were
rejected 	on 	the 	ground 	that 	the money 	allegedly 	"found" 	did 	not
fit 	the District's 	definition of 	newly-found 	resources.
Although 	the 	District 	had 	originally 	said 	that 	its
expenditures 	for 	the 	1985-86 year would 	be comparable 	to 	its
expenditures 	for 	the 	1984-85 	year, 	when 	the Union 	presented 	the
large 	net 	ending 	balance, 	the District 	said 	that 	the 	additional
money 	in 	the 	net 	ending 	balance 	had 	already been 	budgeted.
Thus, 	found money would 	have 	to 	be money 	from new 	revenue
sources. 	The Union claims 	that when 	it 	found 	those 	new 	revenue
sources, 	the District 	similarly discounted those discoveries 	as
well.
The 	District 	told 	the Union 	that 	there were 	some 	problems
with 	the budget 	and 	if 	the Union were 	to 	find money 	for 	salary
increases, 	it would have to be 	in excess 	of 	$516,000 	above the
increase 	in budget 	expenditures. 	Although frustrated, 	the
Union 	representatives 	continued 	to work on 	the 	budget
throughout 	the summer. 	According, 	to McManus, 	whenever 	the
Union presented 	a 	salary offer 	based 	on budget 	projections, 	the
District 	manufactured 	some 	new basis 	for 	rejecting 	it.
Throughout negotiations, 	the Union maintains 	it was 	unable
to 	get 	reliable 	information 	from the District. 	Historically,
22

the Union claims 	the District 	has mismanaged 	its 	money, 	placed
the 	same 	items 	in 	the 	budget 	twice under 	different 	categories,
and underestimated 	its 	available 	resources. 	In 	an 	attempt 	to
compile 	its 	own data, 	the Union carefully 	reviewed 	budget
documents 	and 	did meet 	with 	the 	District's 	chief 	business
officer, 	Ben Lett. 	Nevertheless, 	the Union contends 	that the
District's 	information was either 	incomplete, 	inaccurate, 	or
inconsistent 	with 	information 	provided 	through 	the 	State
Chancellor's Office. 	Moreover, 	the District 	totals were not
consistent 	with 	the 	figures 	calculated 	by 	the Union 	after 	the
Union's 	own 	audit 	of 	the District's 	records.
In 	addition 	to 	the 	Federation's 	dissatisfaction with 	the
District's 	salary proposals 	and 	its 	budget 	data, 	the Federation
claims 	the 	District 	violated 	the Act 	by conditioning 	salary
proposals 	on 	a 	Union waiver 	of 	constitutional 	and 	statutory
rights. 	The Union claims 	the District 	insisted 	that 	any 	salary
proposal 	or 	agreement 	include 	a 	provision 	that 	the District
would not 	be 	required 	to 	pay that 	salary 	if 	it 	determined
sufficient 	resources were 	not 	available. 	The Union generally
refers 	to 	this matter 	as 	the District's 	72500 	proposal.
Education 	Code 	Section 	72500 	entitled 	"Liability 	for 	Debts
and Contracts" provides, 	in relevant part, 	as follows:
The 	governing 	board 	of 	any community 	college
district 	is 	liable 	as 	such 	in the name of
the district 	for 	all debts 	and contracts,
including 	the 	salary due 	any 	instructor 	not
made 	in excess 	of 	the moneys 	accruing 	to 	the
district 	and usable 	for 	the 	purposes 	of 	the
23

debts 	and 	contracts 	during 	the 	school 	year
for which 	the debts 	and contracts 	are made.
The district 	shall 	not 	be 	liable 	for 	debts
and 	contracts made 	in violation of 	this
section.
Education Code 	section 	72500 	is 	similar 	to 	the 	debt 	limitation
provisions of California Constitution, 	art. XVI, 	section 18. . . .	
,
and 	does 	not 	relieve the District 	of 	the 	requirement 	that 	it
pay obligations 	imposed 	by 	law. 	Collective 	bargaining
agreements 	on 	salaries 	are 	such obligations. 	Wright 	v. 	Compton
Unified 	School 	District 	(1975) 	46 	Cal.App.3d 	177 	and Compton
Community College 	Federation Teachers 	v. 	Compton Community
College 	District 	(1985) 	165 	Cal.App.3d 	82.6 By 	insisting 	on
a 	section 	72500 	provision, 	the District wanted 	the Union to
waive 	its 	constitutional 	and 	statutory 	rights. 	The Union
maintains 	it 	told 	the District 	such 	a matter was 	a 	nonmandatory
subject of bargaining and was, 	in any event, 	unacceptable.
Nevertheless, 	Jones 	repeatedly 	raised 	the matter 	throughout
negotiations 	and 	impasse 	proceedings.
b. 	The District's 	Position
The 	District 	readily 	admits 	it 	has 	had difficulty 	in 	the
past 	because 	of 	its 	inability to 	get 	a 	proper 	or 	fully 	accurate
6 In 	the Compton CCD case, 	the Union 	sued 	the 	District 	for
a 	salary 	increase 	agreed upon 	in 	a 	collective bargaining
agreement. 	The District 	unsuccessfully tried 	to 	avoid
liability 	for 	the 	increase 	by 	asserting 	the Constitutional 	debt
limitation provision as 	a defense. 	The Court discussed
Education Code section 72500 	at 	footnote 	3, 	page 	95.
24

statement of 	its 	financial 	status. 	During negotiations, 	Jones
was 	responsible, 	in part, 	for making 	sure that 	the District did
not 	promise or 	commit 	resources 	it did not 	have. 	On behalf 	of
the District, 	Jones 	explained 	that 	the 	amount 	of money
available 	for 	salaries was 	contingent 	upon 	a number 	of 	factors
including, 	inter 	alia, 	a 	reduction in average daily attendance
(ADA) 	and 	a 	possible payment 	from the 	State 	to 	compensate 	for
ADA decline, 	the effect 	of 	the Court 	of Appeal's 	decision 	in
Compton Community College District, 	supra, 	an 	increase 	in
insurance premiums, 	an 	increase 	in utility bills, 	and the
District's debt 	service 	(the effect of 	paying off 	loans).
-. . . .
. ..
From the District's 	perspective, 	the Union was 	unwilling 	to
properly consider 	the 	impact 	of 	the 	above-listed 	budget
factors. 	The District 	concluded 	the Union had 	no 	intention of
reaching 	agreement 	on 	salaries 	until 	certain measurements 	such
as 	the 	cost 	of 	living 	allowance, 	the 	amount 	of money for ADA
decline, 	and 	the 	amount 	of money 	available 	through 	the 	lottery
were 	less 	speculative. 	The District's 	view that 	the Union was
not 	seriously 	interested 	in negotiating 	salary was, 	in 	the
District's 	opinion, 	reinforced when 	the District 	repeatedly
suggested 	that 	the Union meet with Lett, 	the business 	officer,
and the Union failed to do 	so. 	(The Union, 	in fact, 	went 	to
Lett's 	office 	on 	several 	occasions 	to 	review underlying 	budget
documents 	and 	it met with him at 	least 	once 	after 	District
negotiators 	made 	the 	suggestion. 	No 	explanation was 	provided
. . .
25

as 	to why neither 	Jones 	nor 	Shearer was 	advised 	of 	the 	office
visits 	and/or 	the meeting.)
In 	terms 	of 	Education Code 	section 	72500, 	the District 	does
not 	deny 	it 	raised 	the matter 	on numerous 	occasions. 	The
District 	raised 	the matter 	only because 	some 	alternative was
needed 	to 	resolve 	an 	apparently 	irreconcilable 	conflict. 	The
District 	argues, 	with support 	in the 	record, 	that 	it made a
series 	of 	salary proposals 	during 	the 	course 	of 	negotiations.
The Union, 	however, 	found those proposals unacceptable, 	perhaps
because 	of 	the 	fundamental 	dispute 	concerning 	the 	District's
ability to pay. 	Accordingly, 	the District contends, 	it could
only agree 	to 	the Federation's 	salary proposals, 	which were
contrary to the District's understanding of 	its 	budget, 	if 	the
Union would 	insulate 	the 	District 	from 	liability 	and 	ultimate
financial 	ruin. 	In other words, 	the District 	raised 	the matter
as 	part 	of 	a 	bargaining 	strategy, 	perhaps 	to convince 	the Union
that 	the District was 	not merely posturing when 	it 	said 	it
lacked 	the 	requisite 	funds 	to meet 	its 	salary demands.
Supporting 	this 	hypothesis 	is 	the 	fact 	that 	the District 	never
presented 	the Union with 	a written proposal 	concerning
Education Code 	section 	72500.
7 The 	District 	did 	not 	specifically 	characterize 	its
position 	regarding 	Education Code 	section 	72500 	as 	part 	of 	the
bargaining 	strategy. 	The characterization 	is mine.
26

c. 	Findings 	About 	Salary Negotiations
The 	failure 	of 	the 	parties 	to 	communicate 	effectively was
attributable, 	in part, 	to difficulties which occurred 	in the
past 	as 	distinguished 	from events 	related 	to 	the 	round 	of
negotiations 	at 	issue herein. 	The 	failure was 	also
attributable 	to 	fundamental 	differences 	in 	the way the
principal 	negotiators 	communicated. 	McManus 	was 	extremely
precise. 	He 	took statements 	such 	as 	"find 	the money 	and 	it's
yours" 	quite 	literally. 	I 	find such statements were made.
But, 	Jones 	never 	intended 	that 	such 	statements 	be 	taken 	in 	any
but 	the most 	general way.
The Union 	complains 	that 	it 	did 	not 	understand what 	the
District was 	trying 	to 	communicate with 	respect 	to 	its
budgetary constraints or 	its 	available 	resources. 	McManus 	and
Thorpe 	each 	indicated 	they did 	not 	understand 	Jones. 	As 	a
witness, 	I 	found Jones 	to be 	respectful 	and congenial.
Frequently, 	however, 	I 	did not understand the District's
position in 	salary negotiations. 	Under 	the circumstances, 	I
credit 	the Union's 	assertions 	that 	the District 	did 	not
adequately clarify 	its 	position 	and 	that 	it 	kept 	changing 	its
position 	so 	that meaningful 	negotiations were 	not 	possible.
Notwithstanding 	whatever 	subjective 	intentions 	the 	District
may have had, 	the 	record 	supports 	the conclusion that 	the
District 	did 	not 	present 	a 	clear 	picture 	of 	its 	resources 	or
27

the 	extent 	to which 	it was willing 	or 	able 	to commit 	those
resources 	to 	certificated 	and 	classified 	salaries. 	Although
the 	District 	asserts 	Ben Lett 	fully explained matters 	to 	the
Union, 	Lett 	never 	testified 	nor 	did 	other witnesses 	testify 	as
to what was 	involved 	in Lett's 	explanation. 	There 	is 	also 	some
confusion 	as 	to when Lett 	came 	to 	the 	table. 	Whether 	it was 	in
late July or 	late August, 	it was well 	after more 	than 	two
months 	of 	bargaining 	generally 	and 	six weeks 	of 	bargaining 	over
the 	budget. 	Lett 	did 	send 	a 	letter 	explaining why the year-end
balance, 	which was 	considerably higher 	than projected, 	would
not 	be considered 	"found money." 	That 	letter, 	however, 	dated
July 30, 	1985, 	also 	arrived 	late 	in the day.
Given 	the date 	of 	Lett's 	later 	and 	the date 	he was
ultimately brought to the table, 	I credit McManus' 	persuasive
testimony that 	the District's 	various 	explanations, 	provided
through Jones, 	were either not understandable, 	not 	reasonable,
or 	not 	consistent with the underlying data 	base. 	I 	find no
reason 	to 	conclude 	District 	negotiators 	intentionally misled
the Union; 	but, 	they did not come to 	the table with sufficient
accurate 	information or 	expertise. 	Circumstances 	may have made
that difficult; 	but, 	the 	record does 	not disclose the nature of
those circumstances with 	sufficient 	precision. 	It must 	also 	be
noted 	that 	the District 	never 	requested 	a 	deferral 	of 	salary
negotiations 	to 	give 	it more 	time 	to 	get 	a more certain
financial 	picture.
28

Finally, 	the 	record does 	disclose 	that 	two members 	of 	the
District's 	budget 	committee 	came 	up with 	figures 	of 	available
resources 	which 	exceeded 	figures 	presented 	by 	the 	District 	at
the 	table. 	The 	committee had 	been 	in existence more 	than 	six
years 	and was 	composed 	of 	representatives 	selected 	by
management, 	as well 	as 	a Union representative, 	No 	adequate
explanation was 	provided 	to 	discredit 	the 	findings 	of 	that
committee.
4. 	The Modification of 	the 	"Last 	and Best Offers"
The 	Federation 	alleges 	that 	the 	District 	repeatedly changed
its 	last 	and 	best 	offers 	and 	in 	so 	doing 	frustrated 	the
bargaining 	process. 	The 	incident 	focused on, 	at 	the hearing
and 	in the Union's 	brief, 	was 	the District's withdrawal 	of 	its
final 	salary 	proposal.8 During mediation, 	on April 	3, 	1986,
the District made 	its 	final 	salary offer 	for 	each unit. 	Later,
at 	the 	request or 	insistence of 	the Federation, 	those offers
were 	included 	in 	proposed 	contracts 	submitted 	to 	all 	the
concerned employees 	on June 2, 	1986.
Then, 	on July 2, 	1986, 	Edison Jackson, 	the superintendent,
wrote 	to McManus 	and explained that 	a 	change 	in projected
finances 	had 	forced the District 	to 	change 	its 	offer, 	reducing
the 	proposal 	for 	the 	1986-87 	school 	year 	for 	the 	classified
employees 	from 6.5 	percent 	to 	1 	percent. 	The change was
..
8 See pp. 	10-14, 	supra, 	for a discussion of the withdrawal
of 	the District's 	agreement 	to 	a 	paid, 	uninterrupted 	lunch
period.
29

presented 	as 	a decision 	already made. 	The Union was 	not 	given
any opportunity 	to 	give 	input 	as 	to whether 	the 	reduction
should 	occur 	at 	all 	or whether 	it would 	be 	preferable 	to 	come
from some other 	aspect 	of 	the 	District's 	economic 	offerings.
Moreover, 	the 	letter 	itself 	indicates 	that 	some money was
available to meet 	the offer, 	even 	if 	one 	accepts 	the District's
calculations 	about 	reduced 	revenues; 	nonunit 	employees were
still 	getting 	a 	salary increase, 	just 	a 	reduced one.
Although 	the 	District 	defends 	its 	action 	on 	the 	ground 	that
the 	Governor 	had vetoed ADA-decline 	revenues, 	the District
never 	explained why 	the 	avenues 	discussed 	above were 	not
explored 	first. 	Moreover, 	the District 	failed 	to demonstrate
it 	lacked 	the 	resources 	necessary to meet 	the offer. 	Thus,
even 	though the District 	had 	less money on paper, 	there was 	no
evidence 	the District would 	have 	been unable 	to meet 	the 	offer
it 	had made 	to 	the Union.
.. . : . .
Darwin Thorpe 	received 	a 	similar 	letter 	for 	certificated
employees. 	For 	them, 	the offer was 	reduced to 	a one-half
percent 	on-schedule 	increase.
C. 	Case Nos. 	LA-CO-350. 	LA-CO-352 	and LA-CO-353
1. 	Coalition Bargaining
As 	previously noted, 	beginning 	in May 1985, 	a 	certificated
representative 	sat 	in on 	classified 	bargaining 	sessions 	and
vice 	versa. 	Jones 	initially thought 	such monitoring was
illegal 	but 	he 	said 	he would do 	nothing 	to 	challenge 	it
30

because, 	he testified, 	"bargaining was going 	so well." 	There
is 	no 	evidence 	that 	the presence of 	the 	"monitor" 	interfered
with 	negotiations.
Salary 	negotiations 	were 	carried 	on 	simultaneously. 	Thorpe
testified 	that 	on June 	28 	the Union 	told 	the District 	it wanted
to 	have members 	from each unit 	present 	to 	jointly discuss
matters 	that 	pertained 	to 	both units. 	Jones 	agreed. 	There 	is
no 	evidence 	the Union 	insisted upon 	joint 	negotiations. 	The
parties 	met 	at 	least 	twelve 	times 	on 	the 	issue 	of 	compensation
between June 	and October 	21, 	1985. 	The District 	never 	refused
to 	meet with 	the 	classified 	and 	certificated 	units 	jointly.
Indeed, 	the District 	always 	dealt with the 	salary 	issue 	as 	one
which concerned 	all 	employees, 	not 	just 	those 	in 	the
certificated 	and 	classified 	units. 	Jones 	himself 	testified:
. . . .. . .am
And 	the 	increase was 	for 	everybody. 	It
wasn't 	just 	for 	the 	classified 	or
certificated, 	it was 	for everybody, 	for 	all
managers, 	everybody else, 	everyone involved.
: .4 . ..' In keeping with that 	testimony, 	it was 	always made clear 	to 	the
Union 	that 	any 	resources 	which were 	allocated 	for 	salaries
would 	have 	a 	fixed 	percentage 	allocated 	to 	the 	nonunit
employees 	of 	the District. 	There 	is 	no 	evidence 	the District
ever 	disputed 	the way 	in which 	the 	classified 	and 	certificated
units 	chose 	to 	divide 	the 	remaining 	funds 	among 	themselves.
On October 	15, 	1985, 	the 	representatives of 	the classified
section met 	separately with 	representatives 	of 	the 	District.
" . .
31

Jones 	claims 	he 	spoke 	to McManus 	about 	settling 	the entire
contract 	and 	that 	McManus 	refused 	because 	compensation 	could
only be 	discussed 	jointly. 	Although 	the 	parties 	had
tentatively agreed on 	a number of 	items, 	they were clearly not
ready to 	settle 	the 	contract. 	They were 	still 	far 	apart 	on 	the
issue of 	binding 	arbitration 	and on the 	issue of 	salaries. 	In
addition, 	the Maintenance of Operations 	article 	and 	the
language 	regarding 	the 	District's 	right 	to 	determine 	the work
year were 	still 	outstanding 	issues.
. . . . . .
I 	have 	no 	doubt 	that 	Jones 	believed 	the contract 	could 	have
been settled 	if McManus 	had been willing. 	I 	conclude, 	however,
that McManus' 	unwillingness 	to 	settle 	the contract was 	related
to 	his 	perception of 	its 	inadequacy, 	not 	the 	fact 	that 	the
certificated 	representatives were 	not 	present. 	In other words,
I 	find McManus 	did 	not 	insist 	to 	impasse 	on 	the 	presence 	of 	the
certificated unit or the 	settlement 	of 	its 	contract. 	Indeed, 	I
credit McManus's 	testimony 	that 	he 	did 	not 	condition 	agreement
on 	the 	presence 	of 	the certificated unit.
Thereafter, 	the 	Federation sought 	assistance of 	the
superintendent 	because 	the District 	had 	cancelled 	a 	meeting 	set
for 	October 	17. 	Jackson did 	intervene 	and 	the 	classified 	and
certificated 	units 	met 	jointly with 	the 	District 	on
October 	21, 	1985. 	The District 	attended 	the meeting 	expecting
to 	discuss 	compensation only since 	it was 	a 	joint 	session. 	The
Union 	attended with 	the 	intention 	of 	reviewing 	all 	the
32

outstanding 	issues 	in 	an 	attempt 	to 	reach closure 	on 	both
contracts.
Although surprised, 	the District 	claims 	it 	tried 	to 	discuss
separate 	proposals 	and 	that 	Thorpe 	refused, 	allegedly
responding 	that 	the 	Federation was 	not 	going 	to 	discuss
proposals 	separately 	and 	that 	all 	issues 	had 	to 	be 	settled with
both units 	or 	there would be no 	settlements. 	Nevertheless, 	the
parties 	did discuss 	separate 	issues, 	never 	even 	reaching 	the
issue 	of 	compensation.
Thorpe 	denies 	ever 	conditioning 	settlement 	of 	one 	contract
on 	settlement 	of 	the other. 	I 	credit his 	testimony. 	Given the
discussion 	of 	separate 	proposals 	on October 	21 	and 	given 	the
long 	history of 	bargaining 	for 	separate contracts, 	I 	find
Thorpe did 	not 	try to merge 	the contracts 	or 	condition
settlement 	of 	one upon 	settlement 	of 	the other.
There 	is no dispute, 	however, 	that 	if 	the District had made
resources 	available 	for 	salaries, 	each contract would 	have
settled 	shortly thereafter. 	Thorpe 	admits 	stating 	he wanted 	to
settle 	both contracts 	on 	that 	day. 	Thorpe was 	undoubtedly
assertive 	and 	Jones 	misconstrued what was 	said. 	October 	21,
1985, 	was 	the 	last day of 	bargaining 	before the 	impasse
procedures 	were 	invoked.
2. 	Division Chairpersons
When 	the 	District 	and 	the 	certificated 	unit 	first 	met 	on
May 7, 	1985, 	the District 	generally identified 	the division
33

chairperson 	structure 	as 	an 	area 	of 	concern. 	The District
first 	presented 	a written proposal 	on 	that 	issue 	on
August 	8, 	1985. 	The District 	contends 	that 	the Union's 	bad
faith bargaining 	is 	particularly evidenced 	by 	its 	failure 	to
respond, 	in writing, 	to that proposal.
The Union did 	not 	submit 	a 	comprehensive written 	or 	oral
response 	to 	the District's 	initial written proposal. 	Based
upon the 	record 	as 	a whole, 	however, 	the District's 	allegation
that 	the 	failure to 	submit 	a written proposal 	is 	evidence of
bad 	faith 	is without 	factual 	support. 	The District's 	sole
witness 	on this 	subject, 	Dr. 	Joan Clinton, 	the 	associate dean
of 	liberal 	arts 	and developmental 	studies, 	testified 	that 	the
District 	made 	changes 	in 	its 	proposal 	after 	ongoing 	discussions
with 	the Union. 	Clinton 	admitted 	the 	original 	District
proposal was 	not complete. 	To be complete, 	she 	stated 	it
needed 	additional 	information on 	release 	time, 	compensation,
duties 	and 	responsibilities, 	and 	the manner of 	selection. . . ..
After 	presentation 	of 	the 	original 	District 	proposal,
Thorpe went 	to 	Clinton's 	office 	to 	discuss ways 	in which 	the
Union considered 	it deficient. 	During 	the 	time 	remaining 	for
negotiations, 	the District, 	after discussions with the Union,
continued 	to make modifications 	in 	its 	proposal, 	presenting 	the
Union with a 	revised version on October 	21, 	1985. 	Thereafter,
in January 1986, 	during mediation, 	the District 	and the Union
agreed 	to 	"breakout" 	the chairperson 	issue 	and 	submit 	it 	to 	a
joint 	committee 	for 	study.
34

3. 	Failure 	to Arrive 	on Time 	for 	Bargaining 	Sessions
The 	District 	asserts 	and 	the Complaint 	alleges 	that 	the
Union 	consistently 	arrived 	30 	minutes 	late 	to 	bargaining
sessions. 	The 	evidence 	presented 	simply does 	not 	support 	this
allegation. 	Floranell 	Shearer was 	the 	only District witness 	to
address 	this matter 	and, 	although 	she 	stated 	that 	it never
seemed 	the Union was 	on time, 	she had no 	independent
recollection of when the Union was 	late or 	how 	late. 	Her
contemporaneous 	notes 	did not 	refresh her 	recollection, 	which
remained 	vague.
. .. . .
The 	only documentary evidence 	on 	this 	issue was 	a 	list
compiled 	from the 	above-referenced 	notes. 	It 	included 	the
scheduled bargaining 	sessions, 	the 	scheduled 	starting 	time, 	the
time the meeting actually started, 	and, 	on occasion, 	a 	reason
for 	the 	late 	start. 	On the dates when the 	sessions 	did 	start
30 minutes 	or more 	after 	the 	scheduled 	starting 	time, 	no 	reason
was 	given 	for 	the 	late 	start. 	Of 	the 	25 	listed bargaining 	and
mediation 	sessions, 	the notation 	after 	only 3 	indicates 	that
one Union 	representative 	arrived 	late. 	Even 	in those cases,
however, 	there 	is 	no way to 	attribute the 	late 	start of 	the
session 	to 	the 	late 	arrival 	of 	one 	of 	many 	bargaining
representatives.
4. 	Failure 	to 	Respond 	to 	District 	Salary Proposals
The 	nature 	of 	salary negotiations 	is 	discussed 	earlier 	at
pages 	19-30. 	Allegation 4(d) 	in the Complaint 	in Case No.
LA-CO-350 	specifically 	alleges 	that 	the 	bad 	faith 	bargaining 	of
35

the Union was 	evidenced 	by 	its 	failure 	to 	respond 	to 	District
proposals 	in writing 	and 	its 	refusal 	to 	bargain 	about 	factors
used 	in determining 	District 	resources 	available 	for 	salaries.
The 	record 	does 	not 	support 	a 	finding 	that 	the Union 	failed
to 	respond 	in writing. 	Indeed 	the Union 	introduced written
salary proposals 	although most 	presentations 	were verbal.
Moreover, 	there 	is 	no evidence 	that 	the District 	ever 	insisted
or 	even 	asked 	the Union 	to 	reduce 	its 	verbal 	proposals 	to
writing 	and 	the 	District 	cites 	no 	authority which 	required 	that
proposals 	be 	submitted 	in writing. 	Throughout 	the 	hearing,
witnesses 	testified 	that 	the 	parties 	used 	a 	chalkboard 	for 	the
presentation 	and discussion of 	salary proposals. 	Matters 	would
be 	discussed 	and 	then 	reduced 	to 	writing 	on 	the 	board.
The meaning 	of 	the 	allegation 	regarding 	the Union's 	refusal
to 	bargain 	about 	the 	factors 	used 	to determine 	the District's
resources 	is 	unclear. 	Based upon the 	arguments 	set 	forth 	in
the District's brief, 	it 	appears 	to mean that, 	by failing 	to
fully consider 	the 	District's 	budget 	and 	the 	explanation 	of
that 	budget, 	the Union evidenced 	its 	intent 	not 	to 	reach
agreement 	or bargain seriously. 	In the brief, 	this 	argument
seems 	to 	rest, 	in significant 	part, 	on the 	allegation that 	the
Union did 	not meet with Lett when 	it 	had 	an opportunity to 	do
so. 	But, 	as 	previously noted, 	the Union did meet with Lett 	and
the 	Union 	did 	exhaustively 	review budget 	documents 	maintained
in Lett's 	office. 	It 	is 	clear 	that 	the Union did 	not 	accept
36

the District's 	calculation 	of 	or 	explanation of 	various 	budget
factors. 	There 	is 	no 	factual 	support 	for 	the 	allegation that
the Union 	failed 	to 	consider 	or discuss 	those 	factors.
5. 	Increase 	of 	Salary Demands 	and Refusal 	to
Meet 	During 	Mediation
The 	District 	claims 	that 	the 	Federation 	increased 	its
salary proposals 	at 	the 	start 	of 	mediation. 	The Union claims
that, 	at 	the 	request of 	the mediator, 	it 	summarized what 	its
previous 	bargaining 	proposals 	had 	been 	and 	the 	District
misinterpreted that 	presentation. 	I 	credit 	the 	testimony of
Thorpe 	and McManus.
I 	also 	find 	that 	the Union did 	not 	increase 	its 	salary
demands 	later 	during mediation. 	Throughout 	negotiations 	and
mediation most 	salary proposals 	put 	forth 	by 	the Union 	included
provision 	for 	a 	percentage 	increase 	on 	the 	salary 	schedule.
After 	that, 	there were 	a 	number of 	proposed 	increases which
were 	a 	percentage of 	an 	indeterminate 	amount. 	For example, 	in
June 	1, 	1985, 	the certificated unit wanted 	an 	11.1 percent
increase on the 	schedule, 	plus 	$3,000 	in 	fringe benefits 	plus
42 	percent 	of 	each dollar 	of 	new money up 	to 	a 	certain 	level.
Proposals 	during 	mediation were dependent 	upon 	the 	amount 	of
lottery money 	and 	covered 	three years. 	Without 	knowing 	the
amount 	of 	"new money" 	or 	the 	amount 	available 	through 	the
lottery 	it 	is 	impossible 	to 	conclude 	that 	the Union 	increased
its 	salary demands 	during 	mediation.
37

The District 	also 	alleges 	that 	the Union 	failed 	to meet
face 	to 	face with 	the District during mediation. 	The District
contends 	that the Union 	refused to meet on June 20, 	1986, 	to
discuss 	the 	District's 	last 	and 	best 	offers which had 	been
transmitted 	to 	unit 	employees 	at 	the Union's 	request 	on
June 2, 	1986. 	The District does 	not dispute the 	facts
presented by the Union. 	On June 	20, 	the Union did meet 	the
mediator 	and 	the Union's 	attorney met with 	the 	chief 	negotiator
and 	attorney for 	the District. 	The 	latter meeting was 	face 	to
face. 	The District 	cites 	no 	authority for 	its 	contention that
something 	different was 	required.
D. 	Case Nos. 	LA-CO-359 	and LA-CO-3 60
The District 	alleges 	the Union organized, 	caused, 	and
engaged 	in 	a 	concerted 	sick-out 	during meditation 	on
March 	7, 	1986. 	The evidence establishes 	and 	the Union does 	not
dispute 	the 	fact 	that 	a 	higher 	percentage 	than normal 	of
certificated 	and 	classified 	employees 	were 	absent 	on
March 	7, 	1986. 	Thirty-two 	percent 	of 	full-time certificated
unit 	employees 	were 	absent 	and 	approximately 26 	percent 	of
classified unit 	employees were 	absent 	on 	that 	date. 	What 	the
Union disputes 	is 	the allegation that 	it organized, 	caused, 	or
engaged 	in 	or 	supported 	the 	alleged 	sick-out.g
The 	Union 	officially established 	a 	Job Action 	Committee 	in
9 Several 	years 	earlier when 	a 	job 	action was 	sanctioned,
the 	rate of 	employee participation was 	at 	least 	78 	percent.
38

January or 	February 	1986. 	The 	committee was 	to 	investigate,
evaluate, 	and 	report back on various 	pressure 	tactics 	the Union
might 	use on 	the District. 	The designated members 	of 	the
committee were Toni 	Wasserberger 	and 	Fred 	Broder, 	although
membership was 	open 	to 	any other 	interested Union member. 	Th	Be . . 4 -	
e
committee was 	not 	authorized to call 	for 	any job 	action; 	it was
merely to 	report 	back. 	As 	of March 	7, 	the committee had not
reported 	back.
76 ... . . 2 . . 1 .
. . . . .. .
On March 	7, 	the 	leaders 	of 	the classified unit were:
McManus 	as president, 	Matthew Smith as vice president; 	Ray
Ramirez 	as 	treasurer; 	and Florence Morton as 	secretary. 	For
the 	certificated unit 	the 	leaders were: 	Darwin Thorpe 	as
president; 	Gloria Schleimer 	as 	either vice president 	or
secretary; 	Don O'Brien as 	treasurer, 	and Pat McLaughlin 	as 	the
employee 	representative.
The Union 	leaders 	called 	as witnesses 	deny 	any 	job 	action - .. . .
was 	called 	for 	or 	sanctioned. 	No 	job 	action of 	any kind 	had
been 	authorized 	by 	the Union 	but 	the Union did 	not 	repudiate
the 	actions 	taken by employees 	on March 	7.
To 	establish 	that 	an unlawful 	job 	action had 	taken place,
the District 	called 	a 	number 	of witnesses who 	called 	in 	sick on
March 	7 	or who 	allegedly had 	some 	information 	pertaining 	to 	the
sick-out. 	A review of 	their 	testimony 	is 	appropriate.
39

Floyd 	"Hank" 	Smith 	is 	a 	professor 	of 	library services 	and
the 	head 	librarian 	for 	the District. 	He has 	been 	a 	District
employee for 32 years. 	On the evening of March 6, 	1986, 	Smith
received a 	telephone call 	from John Carroll. 	Carroll, 	who 	is 	a
member 	of 	the Union but not 	an officer, 	told Smith, that many
faculty members 	did 	not 	plan 	to 	be 	at work 	the next 	day.. . . 	Smith
does 	not 	recall 	the Union 	being 	mentioned 	during 	that
conversation. 	Smith testified 	that 	he was 	neither 	encouraged
nor 	discouraged 	from not 	going 	to work the 	next 	day.
Smith, 	who did go 	to work on March 	7, 	testified 	that 	on
March 	6 	his 	colleagues 	were 	quite 	agitated 	about 	remarks 	made
by President/Superintendent 	Jackson 	at 	a 	faculty meeting.
Although Smith was 	not 	present 	at 	the meeting, 	he heard other
faculty members 	complain 	that 	Jackson 	had 	said words 	to 	the
effect 	that 	the Union 	leadership 	"was 	trying 	to 	lead 	the 	black
faculty 	around 	like monkeys 	or 	baboons."
John Carroll 	is 	a certificated employee of 	the District.
He was 	absent 	from work on March 	3 	and March 	7. 	He 	testified
he was 	undoubtedly out 	because 	he was 	tired or 	sick. 	He
testified 	that 	no 	one 	told 	him to 	stay home 	from work 	on 	the
7th, 	although he 	is 	sure he discussed 	a variety of 	job 	actions
with Toni Wasserberger 	on 	a 	number 	of 	occasions 	in 	the 	context
of 	discussing 	a 	thousand 	other 	things. 	Wasserberger 	teaches
karate 	to 	Carroll's 	teenage 	daughters 	and 	they 	speak with 	one
another 	frequently.
40

When 	asked whether 	anyone 	called 	him to 	discuss 	a 	sick-out
or 	called 	to 	ask him to 	enlist 	other 	employees 	in 	a 	sick-out 	on
or about March 6, 	1986, 	Carroll 	responded as 	follows:
Not 	that 	I 	know. 	People were discussing
thousands 	of 	different 	things 	at 	the 	time.
The faculty was upset, 	to the extreme. 	I
imagine 	the 	telephones were going 	off 	the
hooks 	at everyone's house.
When 	asked why the 	faculty was 	upset 	to 	the 	extreme, 	Carroll
added 	that 	he 	could 	look 	in 	his wallet 	for 	one 	reason. 	He went
on 	to 	further 	explain his 	answer.
A. 	I 	do 	recall, 	there had been a 	faculty
meeting 	called by Dr. 	Jackson 	somewhere
around 	this 	active 	time, 	where 	accusations
were made 	about 	the 	faculty that were 	not
clear.
Q. 	What 	sort 	of 	accusations?
A. 	Oh, 	I 	recall 	the one that puzzled me
the most was 	that we were 	told 	that 	certain
of 	us were being duped, 	we were puppets
being 	pulled 	around 	some 	mystery person
pulling the strings, 	and 	I was kind of
wondering who 	the 	puppets 	were 	and who 	the
string-pullers were.
Joyce Mills 	is 	a 	certificated 	employee who 	has 	worked 	for
the District 	for more than 10 years. 	In March 	1986 	she was 	a
faculty 	advisor 	to 	the 	learning 	center 	and 	she 	taught 	two
classes. 	She was not 	scheduled to work on March 	7, 	but 	as 	a
form of 	protest 	she 	called 	in 	sick 	anyway.
Prior 	to 	that 	date Mills 	had 	discussed working 	conditions
with other 	employees who 	agreed that March 	7 was 	a 	good date 	to
let 	the District 	know they had 	had 	enough. 	Mills 	testified
41

that 	she may have 	discussed 	the matter with McManus 	because
they worked 	together 	but 	she wasn't 	positive 	and 	she 	couldn't
remember 	any 	reaction 	he may have 	had.
Mills 	also 	testified 	that 	she 	had 	a 	conversation 	about 	the
sick-out with Floyd 	Smith, 	the 	librarian, 	who 	had called 	for
another 	reason. 	She 	said 	that 	Smith 	felt 	that 	staying 	out was
a 	good 	idea. 	(Smith did 	report 	for work on March 	7, 	however.)
Mills 	also 	testified 	about 	the 	faculty meeting 	which 	took 	place
on March 	6. 	She 	stated 	it was 	a very professional meeting
until 	the 	superintendent 	got 	quite upset 	and 	angry. 	She
testified 	as 	follows:
I 	only remember 	it because 	it 	upset me 	so
much. 	He 	said our union 	leadership was
using 	— 	this 	is 	not 	a 	quotation 	— 	our
union 	leadership was 	using 	a 	black woman 	to
destroy black men. 	And 	I 	remember 	it 	full
well 	because 	all 	the 	— 	a 	number 	of 	black
women on campus 	kept 	saying, 	"Is 	it you?" 	to
each other, 	"Is 	it you? 	Is 	it you?" 	We all
kept 	looking 	at 	each other.
Mills 	indicated that 	at 	least 	ten of her colleagues were
angry 	about 	the 	faculty meeting 	and 	the 	statements 	attributed
to 	the 	superintendent. 	In addition to 	any general
dissatisfaction 	she may have 	had with 	her working 	conditions,
Mills 	indicated 	that 	she was 	upset with 	the 	faculty meeting
which 	left 	her 	confused.
,.
Mills was 	a 	forthright witness who 	stated 	she was 	nervous
in 	the 	role 	but 	expressed 	herself well. 	Generally 	she 	stated
42

the 	faculty was 	upset 	and 	that various 	job 	actions were
discussed. 	She was 	able, 	however, 	to distinguish what happened
on March 	7 	from what 	happened when 	the Union 	sanctioned 	a 	job
action. 	When employees went 	on 	strike 	several 	years 	earlier,
she 	knew it was 	Union 	sanctioned because of Union meetings. 	On,
March 	7, 	she 	had 	no 	reason 	to 	conclude 	the 	activity was 	Union . . -
sanctioned; 	it was 	an expression of 	employee discontent, 	not
necessarily connected with 	the Union. 	She did 	express 	her
opinion 	that 	the Union did 	not 	object 	to 	the 	sick-out 	because
no 	one 	called 	her 	and 	told 	her 	not 	to 	stay out 	and 	because
"certainly, 	the union officers 	and 	other 	union members 	must
have heard 	about 	it."
Saul 	Panski 	is 	an 	associate professor 	of 	library services.
On the 	night 	of March 	6, 	1986, 	Panski 	arrived home 	from work
late. 	A colleague 	called 	and 	indicated 	she would 	be 	sick 	the
next 	day. 	He 	informed 	her 	he was 	also 	sick 	and would 	be 	goin. . . "
g
to 	the 	doctor 	the next day. 	Panski 	did 	not 	speak with 	anyone
else 	about 	not 	being 	at work on March 	7.
Panski 	testified that, 	to his 	knowledge, 	there was no
Union-sanctioned 	job 	action because 	the membership 	never 	took 	a
vote. 	He 	understood 	that 	the 	job 	action 	committee 	had 	no
authority to 	sanction a 	job action, 	but was 	to bring
recommendations 	back to 	the membership. 	Panski 	did 	not 	deny
that many employees who were 	active 	in 	the Union were 	probably
43

pleased 	that 	a 	number 	of 	employees were 	sick on March 	7. 	With
regard 	to 	the 	faculty meeting 	on March 	6, 	Panski 	testified 	that
the 	president 	talked 	about 	the 	employees 	not 	being 	misled 	and
not 	following 	the 	actions 	of 	a 	few 	like 	a 	bunch of 	orangutangs.
Pieter 	Jan Van Niel 	is 	the 	head 	of 	the District's 	Theater
Arts 	Department. 	On March 	6, 	Van Niel was 	on campus 	until
around 	11:15 	p.m. 	When he 	returned home, 	a message, 	taken by
his 	children, 	indicated 	that 	some 	of 	his 	colleagues were going
to be out 	sick the next day. 	Van Niel 	did go 	to work on
March 7, 	but was 	apparently 	late. 	The 	administration, 	thinking
he was 	not 	coming 	in, 	had cancelled his 	class. 	Van Niel
testified 	that 	there was 	great 	confusion 	as 	to whether 	there
had 	been 	any 	sanction whatsoever 	for 	the 	sick-out 	or whether
individuals 	had 	simply made 	a choice 	to 	stay out. 	Van Niel
described 	a 	general 	sense 	of 	confusion 	and 	frustration 	at 	the
District. 	He testified 	as 	follows:
I 	think you need 	to 	understand 	that 	this
event 	on Friday created 	such 	a 	sense of
confusion that 	there was 	a great deal 	of
cross-talk 	among 	many different 	segments,
and 	to 	identify even the 	segments 	as 	pro 	or
con 	on 	that 	issue would 	be 	an 	incorrect
assumption. 	I 	think there 	is 	a great deal
of 	gray matter 	which 	occurred 	during 	that
time 	and 	a 	great 	deal 	of 	gray matter 	that
came up 	in the discussions, 	a 	lot of
frustration, 	a 	lot of anger, 	a 	lot of
upset. 	So 	to 	ask me to 	attempt 	to nail down
with 	a 	specific person the 	substantive
issues which 	I 	talked 	about with 	that
specific 	person would 	be 	really 	impossible
for me to do.
44

Dr. 	Rhoda Lintz Casey is 	a certificated employee of 	the
District who 	serves 	as 	the division chair 	for 	basic 	skills 	and
developmental 	studies. 	Casey 	recalled 	that 	she was 	absent 	from
work 	the day 	after 	there was 	a 	faculty meeting 	and 	that 	she 	did
receive 	a phone call 	from, 	she believed, 	Gloria Schleimer,
telling 	her 	that 	"some 	people were 	not 	feeling 	too well 	and
probably would not 	be working." 	Casey noted, 	however, 	there
was 	nothing 	specific 	in 	terms 	of 	an outright plan. 	Casey
specifically 	testified 	that 	Schleimer 	did 	not 	suggest 	that
Casey take 	any 	action 	and 	she 	had 	no 	knowledge 	as 	to whether
Schleimer was 	an officer 	of 	the Union.
Casey 	testified 	that 	faculty meetings 	at 	the 	District 	had
become 	quite 	stressful. 	Although 	she was 	not 	specific 	about 	the
meeting 	on March 	6, 	she 	offered 	the 	following 	testimony:
[H]e 	(the President) 	made 	some 	really
irrational 	statements. 	He talked 	about 	a
group of 	10 	people who were trying 	to
undermine the college, 	trying 	to close 	its
doors; 	I'm giving 	substance now, 	not exact
quotes. 	And he said things 	like, 	"I 	know
about your 	secret meetings, 	both here on
campus 	in your offices 	and 	in your homes. 	I
know 	about 	the 	things 	you're writing 	and you
need 	to 	stop all 	this writing." 	It was
pretty clear that 	I was 	one of 	the 	10 	that
he was 	referring 	to, 	basically the people
who are active at school, 	working, 	trying to
keep 	the 	place 	together.
Casey 	testified 	that 	such 	statements were 	an 	example 	of 	the
type 	of 	stress 	placed upon 	the 	faculty.
Earline 	S. 	Brokenbough 	is 	a 	classified 	employee 	of 	the
District who, 	on March 7, 	1986, 	was 	assigned to work on the
45

disbursement 	and preparation of 	grant 	checks, 	along with other
duties. 	Ms. 	Brokenbough did not 	have any clear 	recollection of
events 	prior 	to March 	7. 	Ms. 	Brokenbough does 	believe 	a
sick-out 	occurred 	but 	she 	had 	no 	discussions 	with 	anyone 	after
the 	alleged event 	and 	the only conversation 	she 	recalls, before
involved 	a 	telephone call 	from a 	female who was 	not 	an officer
of 	the Union. 	The phrase 	"sick-out" 	was used 	in that
conversation 	and 	Brokenbough did 	testify 	that 	she was 	asked 	to
participate 	in a 	sick-out. 	Brokenbough did not 	indicate 	if 	she
had 	participated. 	Her 	calendar 	indicated 	that 	she was 	out 	sick
on March 3, 	4, 	and 7.
Carol 	Beal 	is 	a 	classified employee of 	the District. 	Based
upon 	rumors which 	she 	believed 	began circulating 	prior 	to March
6, 	Beal 	thought 	that March 7 was 	to be 	a union-sponsored job
action day. 	She stayed home from work, 	in part, 	because 	she
wanted 	to 	support 	the Union. 	Although 	she 	could provide no
concrete evidence of Union 	sponsorship, 	Beal 	could 	think of 	no
one 	else who would want 	the 	job 	action.
Steven Lupold 	is 	a 	classified 	employee 	of 	the 	District who
did not work on March 7 because, 	he claimed, 	he was 	out 	the
night 	before 	bowling 	and did 	not 	feel 	very well. 	Lupold
testified 	that 	he 	had 	participated 	in 	general 	discussions 	with
Toni 	Wasserberger 	and 	Fred 	Broder 	about 	informational 	picketing
or 	other 	actions 	which might 	facilitate 	bargaining 	but 	there
46

was 	no 	specific 	discussion of 	any job 	action on March 	7.
Lupold 	did 	not 	receive 	any calls 	either 	directing 	him not 	to
come to work, 	suggesting he not come to work, 	or 	telling him
others 	were 	not 	coming 	to work on March 	7.
Linda McKray 	is 	also 	a 	classified 	employee 	of 	the
District. 	Although she was not 	at work on March 7, 	she does
not 	recall 	any plan not 	to be there 	and, 	in fact, 	she was
subsequently 	surprised 	to 	learn 	her 	co-worker 	had 	also 	been
absent 	that day. 	She 	recalled no 	specific discussions 	about 	a
job 	action on March 	7 	although 	she 	admitted 	that 	there were
general 	discussions 	about 	taking 	some 	action 	against 	the
District.
Dorsey Randolph 	is 	a 	classified 	employee 	of 	the District
who, 	in March 1986, 	worked as 	a senior clerk-typist 	in the
developmental 	research office. 	Randolph 	testified 	that 	he was
absent 	from work on March 	7 	because 	he 	had 	the 	flu 	and 	that 	he
learned 	that 	other 	employees 	were 	absent 	that 	day only when 	he
returned 	to work.
Bruce McManus was not 	at work on March 7, 	1986. 	McManus
testified 	about 	events 	prior 	to 	that 	date which may have
contributed 	to 	absenteeism on 	the 	7th. 	He 	stated 	that 	the
superintendent 	met with 	the 	classified 	employees 	in December,
January, 	February, 	and on March 6. 	In December the
superintendent 	told 	the 	employees 	they were 	the 	best 	in 	the
state, 	but 	they were 	severely underpaid. 	He 	told 	them how
Al

-..
important 	it was 	that they get 	a 	raise. 	In January, 	he 	again
told 	them 	they were 	underpaid 	and 	he 	intended 	to 	put most 	of
the 	lottery money towards 	their 	salaries. 	In February, 	he
again 	repeated 	his 	alleged 	belief 	that 	lottery money 	should 	go
to their 	salaries. 	On March 6, 	however, 	the superintendent
brought 	Ben Lett 	to 	the meeting with classified 	staff. 	Lett
read 	to 	the 	employees 	from the 	state 	Chancellor's 	guidelines
advising 	them 	that 	lottery money was 	only 	to 	be 	used 	for
instructional purposes; 	in other words, 	it was not 	available
for 	classified 	salaries.
After 	the meeting, 	according 	to McManus, 	employees were
depressed 	and upset. 	Nevertheless, 	McManus 	flatly denied
having 	any 	information which would 	have 	led 	him 	to 	conclude
that 	classified 	employees were 	not 	going 	to 	be 	at work on
March 	7. 	He 	attributed 	his 	absence 	to 	exhaustion.
Darwin Thorpe was not 	at work on March 	7, 	1986. 	His
absence was 	for 	reasons 	of 	personal 	necessity 	since 	he 	had 	to
take his wife 	to 	the doctor, 	an 	appointment which was 	scheduled
earlier 	in 	the week. 	The District 	did 	not 	count 	Thorpe 	among
those 	sick on March 	7.
Thorpe 	testified 	that 	he 	did 	not 	encourage 	any employees 	to
stay away 	from work on March 	7 	and 	he did 	not 	know of 	a 	planned
sick-out. 	When 	asked 	if 	he had discouraged 	such 	activity, 	he
testified 	as 	follows:
A. 	Kind of, 	in a fashion. 	In all the
discussions 	that 	were 	taking 	place 	in March
48

and 	about 	all 	matter 	of 	job 	actions 	that
might 	bring 	the 	District 	around 	to
negotiating, 	various 	people would make
suggestions 	about what 	should be done. 	And
in my capacity as Union President 	I would
indicate 	in 	all 	those 	occasions whether 	or
not 	I 	personally thought 	it would 	be useful
or 	timely and 	so 	forth. 	And to 	the
suggestions 	of 	some 	people 	that 	there 	should
be 	a 	complete 	at 	least work stoppage or
slowdown at the point, 	I 	indicated that 	the
timing was wrong 	and 	that 	I 	didn't 	feel 	that
that 	kind 	of 	thing was warranted 	because
mediations 	were 	still 	in 	kind 	of 	an 	ongoing
process. 	That we weren't 	really in 	a
concluded 	station or 	stage with mediation.
Q. 	Can you 	remember 	the 	names 	of 	anybody
you 	expressed 	that 	sentiment 	to?
A. 	There were 	several 	people. 	One 	of 	them
I 	remember 	distinctly because we 	had 	a
discussion on it, 	it was 	Pat McLaughlin.
And 	some 	— I ' m 	trying 	to 	think. 	Most
members were pretty argumentative, 	some had
lots 	of 	reasons why they thought 	that 	a
general 	work 	slowdown 	should 	be 	put 	into
effect 	immediately. 	But 	it was 	the
contention of 	the people 	that 	I 	talked with,
you know officers, 	that 	that was 	not 	the
time 	to 	do 	anything. 	(Emphasis 	added.)
In 	addition 	to 	the 	testimony 	from the many employees 	who
had or 	had not been 	at work on March 7, 	1986, 	the District
offered 	testimony 	from Joan 	Clinton 	and 	Floranell 	Shearer. 	The
testimony that 	the District 	had 	no 	advance 	notice 	of 	a work
action 	and 	the 	testimony 	that 	a 	higher 	percentage 	of 	employees
than normal were 	absent 	is 	uncontroverted.
Clinton 	and 	the 	superintendent 	also 	testified 	regarding 	the
faculty meeting 	on March 	6 	and 	the 	superintendent's 	comments.
49

Clinton 	recalled 	Jackson 	gave 	a 	factual 	presentation 	on 	the
budget, 	but 	she admitted that, 	since 	it was nothing new, 	she
did 	not 	pay 	a 	great 	deal 	of 	attention. 	Jackson denied making
any disparaging 	remarks 	about 	the 	faculty.10
In 	addition 	to 	its 	claims 	that 	the 	sick-out 	violated
section 3543.6(d), 	the District claims 	that the 	alleged 	job
action 	violated 	the 	provisions 	of 	the 	expired 	CSEA 	classified
contract. 	That contract provided, 	in relevant part, 	as 	follows;
It 	is 	recognized 	that 	the need 	for continued
and 	uninterrupted 	operation 	of 	the 	District
is 	of 	paramount 	importance 	and 	that 	there
should 	be 	no 	interference with 	such
operations.
The District 	agrees 	it 	should not, 	during
the 	term of 	the Agreement, 	lock out members
of 	the bargaining unit 	as 	a 	result of 	a work
stoppage 	by other 	District 	employees.
The Association 	agrees 	that 	neither 	it 	nor
any person 	acting 	in 	its 	behalf will 	cause,
authorize, 	engage in, 	sanction, 	nor will any
or 	its members 	take part 	in 	a 	strike 	against
the District, 	or the concerted 	failure to
report 	for duty, 	or willful 	absence 	from
duty.
Nothing 	contained 	in 	this 	Agreement 	shall 	be
construed 	to 	restrict 	or 	limit 	the District
of 	the Association 	in 	its 	right 	to 	seek and
obtain 	such judicial 	relief 	as 	it may be
entitled 	to 	have 	under 	law 	for 	any violation
of 	this 	or 	any other Article.
10For 	purposes 	of 	the decision herein 	it 	is 	unnecessary
to make 	a 	finding 	as 	to whether 	or 	not 	Jackson made 	the
statements 	attributed 	to 	him. 	Whatever was 	said, 	employees
believed 	he 	made 	negative 	remarks 	and 	responded 	accordingly.
50
10

No 	evidence was 	presented 	to 	indicate 	that 	the 	Federation had
agreed 	to 	be 	bound 	by 	or 	had 	accepted 	any portion of 	the CSEA
contract which expired on June 30, 	1985.
III. 	ISSUES
A. 	Did 	the 	District 	engage 	in 	bad 	faith 	bargaining 	and
fail 	to 	participate 	in good 	faith 	in 	the 	impasse 	proceedings
set 	forth 	in 	the EERA?
B. 	Did 	the Union 	violate 	the 	EERA when 	the 	classified 	and
certificated 	units 	bargained 	jointly 	on 	some 	issues?
C. 	Did 	the Union violate 	the EERA when 	employees 	it
represents 	in 	both 	the 	classified 	and 	certificated 	units
engaged 	in 	a 	sick-out 	on March 7, 	1986, 	while 	the parties were
engaged 	in mediation?
IV. 	CONCLUSIONS OF LAW
A. 	Case No. 	LA-CE-2276
In determining whether 	there 	has 	been 	a 	pattern of 	bad
faith bargaining, 	the totality of 	a 	party's 	conduct must 	be
reviewed. 	Stockton Unified 	School 	District 	(1980) 	PERB
Decision No. 	143; 	Pajaro Valley Unified 	School 	District 	(1978)
PERB Decision No. 	51. 	In the 	instant case, 	it 	is 	found that
the 	District 	failed 	and 	refused 	to 	bargain 	in 	good 	faith 	and
failed 	to 	participate 	in 	good 	faith 	in 	the 	impasse 	procedures
with 	respect 	to 	the 	classified 	bargaining unit. 	Although
District 	representatives 	assert 	the 	District 	had 	the 	subjective
intent 	to 	reach 	agreement, 	the District's 	repeated violation of
51

the 	rules 	relevant 	to 	good 	faith bargaining 	belie 	that
assertion. 	. .. .
Some 	of 	the 	same District 	conduct 	impacted 	upon
negotiations with 	the certificated unit. 	Again, 	using 	the
totality of 	conduct 	standard, 	the evidence 	is 	sufficient 	to
find 	that 	the 	District violated 	the Act with 	respect 	to 	that
unit, 	although it 	is 	a much closer question.
. . .
1. 	The 	Classified Unit
At 	critical 	times 	during 	the District's 	negotiations 	with
the Federation, 	the District 	frustrated 	the Union's 	attempt 	to
secure 	a collective bargaining contract. 	First of 	all, 	the
District 	failed to take a clear, 	cohesive, 	or consistent
position 	in salary negotiations. 	To 	some extent, 	the
District's 	failure 	to 	state with 	specificity the 	amount 	of
money it 	had 	available 	is 	understandable. 	Some 	resources 	such
as 	the cost of 	living adjustment 	(COLA), 	ADA decline money, 	and
lottery 	fund 	allocations were 	not 	known 	to 	the District. 	PERB
authorities 	suggest 	the 	District 	could 	have 	requested 	a
deferral 	of 	negotiations 	on 	salaries 	until 	its 	financial
picture was 	better defined. 	State of California, 	Department of
Personnel Administration 	(ACSA) 	(1986) 	PERB Decision 569-S; 	San
Mateo 	County Community College 	District 	(1979) 	PERB 	Decision
No. 	94. 	The District did not, 	however, 	request deferral.
The 	District's 	general 	conduct with 	respect 	to 	salary
negotiations 	fits 	the description 	of 	bad 	faith 	bargaining 	set
forth 	by 	the 	Board 	itself 	in Muroc Unified 	School 	District
". . .
52

(1978) 	PERB Decision No. 	80. 	In that case, 	the Board described
surface 	bargaining 	and 	noted:
It 	is 	the essence of 	surface bargaining 	that
a 	party goes 	through 	the motions 	of
negotiations, 	but 	in fact 	is weaving
otherwise 	unobjectionable 	conduct 	into 	an
entangling 	fabric 	to 	delay or 	prevent
agreement. 	Specific conduct 	of 	the charged
party, 	which when viewed 	in 	isolation may be
wholly proper, 	may, 	when placed 	in a
narrative 	history of 	the 	negotiations,
support 	a 	conclusion 	that 	the 	charged 	party
was 	not 	negotiating with 	the 	requisite
subjective 	intent 	to 	reach 	agreement. 	Such
behavior 	is 	the 	antithesis 	of 	negotiating 	in
good faith. 	Id 	at p. 	13. 	(Footnotes
omitted.)
- . .
. . . .
In the 	instant 	case, 	when the whole fabric of 	salary
negotiations 	is 	reviewed, 	it 	is 	concluded that 	the District's
conduct 	meets 	the Muroc 	standard 	of 	not 	bargaining 	in good
faith.
The 	record 	reflects 	the 	District was 	not 	merely evasive
about 	the 	amount 	of 	money 	available. 	The District 	also
vacillated 	about 	the 	amount 	of 	money 	it 	needed 	to 	operate.
Accordingly, 	the District 	sent 	signals 	to 	the Union 	suggesting
money could 	be 	used 	for 	salaries 	and 	then 	the 	District
inexplicably altered 	its 	position. 	Thus, 	it 	is 	concluded that
the 	District 	couldn't 	decide what 	it 	had 	available 	and wanted
to 	allocate to 	salaries, 	or 	the District's designated
negotiators were unable 	to explain the District's 	position. 	In
either 	event, 	the District's 	vacillation on 	the 	salary 	issue
implies 	the 	District 	did 	not 	intend 	to 	bargain 	about 	salaries
or 	reach 	agreement.
53

Salary 	negotiations 	were 	further 	frustrated 	and 	confused
by 	the 	District's 	repeated 	introduction 	of 	the 	Education Code
section 	72500 	provision. 	Jones 	stated 	that 	he 	knew 	from the
beginning 	that 	any 	provision 	regarding 	Education Code 	section
72500 would not 	be 	acceptable. 	Thus, 	his 	repeated 	introduction
of 	that 	subject 	can only be 	seen as 	a deliberate 	attempt 	to
frustrate negotiations. 	Accordingly, 	without 	even 	reaching 	the
question 	of 	whether 	the 	District 	unlawfully conditioned
bargaining 	on matters within 	the 	scope 	of 	representation 	on 	the
Union's 	agreement 	to bargain a nonmandatory subject, 	I 	find
that, 	in 	the 	repeated 	introduction of 	Education Code 	section
72500, 	the District demonstrated 	it did 	not have the 	subjective
intent 	requisite 	to 	good 	faith 	bargaining.
... ". .
Other 	District 	conduct 	further 	supports 	a 	finding 	of 	bad
faith bargaining. 	For example, 	the conclusion is 	inescapable
that 	the 	District 	reneged 	on 	several 	tentative 	agreements.
Reneging 	on tentative 	agreements 	is 	an 	indicator 	of 	bad 	faith...4.
bargaining. 	Stockton Unified School 	District, 	supra: 	San
Ysidro School District 	(1980) 	PERB Decision No. 	134. 	First,
the District 	agreed 	to 	give up 	its 	unconditional 	right 	to
establish 	the 	length of 	the work year. 	There had 	been
considerable discussion 	at 	the 	table 	and 	the 	parties 	agreed 	the
District would 	retain a 	conditional 	right 	to 	establish 	the work
year. 	On or 	about October 	8, 	the District 	reneged 	on 	that
agreement.
54

The 	District 	also 	repudiated 	the 	tentative 	agreement 	to
provide 	a 	paid, 	uninterrupted 	lunch period. 	The 	latter 	subject
was 	agreed 	to 	unconditionally 	in 	late 	June 	or 	early July 	1985.
It was 	included 	in the 	"master 	agreement" 	prepared 	by the
District 	itself 	for 	a meeting 	in October 	1985 	and was 	initialed
on October 	15. 	Provision 	for 	a paid, 	uninterrupted 	lunch 	. . "
period was 	also 	included 	in 	the District's 	proposed 	contract
which was 	transmitted 	to 	the 	employees 	in early June 	1986.
Without 	prior 	consultation, 	notice 	or 	discussion with 	the
Union, 	the District 	told 	the employees 	that 	the provision 	for 	a
paid, 	uninterrupted 	lunch period was 	a mistake. 	Since 	the
matter was 	discussed 	at 	the 	table, 	and 	repeatedly 	included 	in
every draft 	of 	tentative 	agreements, 	it 	is 	concluded that 	the
District 	agreed 	to 	a 	paid, 	uninterrupted 	lunch period 	and
reneged 	on 	that 	agreement.
..
11
The 	evidence 	further 	established 	that 	the 	District 	reneged
on 	the 	agreement 	to delete 	the maintenance 	of 	operations
provision 	from the contract. 	After 	several 	discussions 	and
agreement 	on 	the 	retention of 	some 	language 	from the 	article,
the 	parties 	reached 	agreement 	on July 8, 	1985. 	On October 	8,
1985, 	the District 	repudiated 	that 	tentative 	agreement.
11 When 	the District 	repudiated 	the 	agreement, 	it
demonstrated 	it 	had 	failed 	to 	bargain 	in good 	faith. 	The 	act
of 	repudiation 	took place during 	impasse 	proceedings, 	however.
Accordingly, 	the conduct must 	be considered 	a violation of
section 3543.5(e).
55
11

The 	District 	also 	failed 	to 	abide 	by 	agreed-upon 	ground
rules. 	As 	noted 	above, 	when viewed 	in 	isolation, 	the failure
to 	adhere 	to 	the ground 	rules was 	not 	an egregious 	act. 	When
viewed 	in context, 	however, 	it 	is 	evidence of 	the District's
casual, 	perhaps cavalier, 	approach to negotiations. 	The
parties 	agreed 	on 	a 	provision 	for 	organizational 	security on 	.. .
July 25, 	1985. 	Under the agreed-upon ground 	rules, 	the matter
should 	have 	been 	initialed 	by 	the 	Distinct 	at 	the 	next
regularly scheduled bargaining 	session on July 29. 	Jones, 	who
had 	no 	familiarity with 	the ground 	rules, 	did 	not 	see 	any
necessity to 	sign 	it 	at 	the next 	regular 	session, 	although the
Union had 	prepared 	a 	clean copy of 	the 	agreement 	and 	although
the 	District 	did 	not 	dispute 	that 	agreement 	had 	been 	reached.
When Jones 	was 	questioned 	about 	the 	organizational 	security
provision, 	he 	indicated 	nothing would 	be 	signed 	until 	October
1985. 	PERB has 	held that 	negotiating 	"ground 	rules" 	is
equivalent 	to 	a mandatory subject 	of 	bargaining. 	Stockton
Unified School District, 	supra; 	Gonzalez Union High School
District 	(1985) 	PERB Decision No. 	480. 	In other words, 	the
ground 	rules 	are 	as 	important 	as 	other matters 	to 	be
negotiated. 	Accordingly, 	violation of 	the ground 	rules 	must 	be
viewed 	as 	reneging 	on an 	agreement 	and 	is 	yet 	another 	indicia
of 	bad 	faith 	bargaining.
In 	addition 	to 	the matters 	discussed 	above, 	the District
does 	not 	dispute 	the evidence 	that 	it 	dramatically 	altered 	its
56

last 	and 	final 	offer to 	the Union while 	the parties were
participating 	in the 	impasse proceedings, 	in between mediation
and 	factfinding. 	The District 	alleges, 	but did 	not 	establish,
that 	modification of 	its 	last 	and 	final 	offer was 	the 	result 	of
an economic 	imperative.
Although 	the District's 	offer had 	not yet 	been 	accepted 	by
the Union and, 	thus, 	was not binding upon the parties, 	the
significant 	reduction 	in 	the 	1986 	through 	1987 	salary proposal,
without 	any 	apparent examination of 	alternatives, 	frustrated
the 	mediation 	and 	factfinding 	process 	and 	evidenced 	the 	same
casual 	approach 	the 	District 	brought 	to 	the negotiating 	table.
Finally, 	negotiations 	for 	a 	collective 	bargaining 	agreement
in 	the 	classified 	unit were 	hampered 	by 	threats 	against 	Union
members 	to 	add negative materials 	to 	personnel 	files 	if 	the
Union 	insisted upon 	a 	return 	to 	language 	contained 	in 	the
previous 	collective 	bargaining 	contract 	on 	the 	subject 	of
employee personnel 	files. 	(See section B.l.d. 	pp. 	16 	to 	18
supra.)
There 	is 	no 	evidence 	that 	the District 	sought 	to 	change 	the
provisions 	in the old contract, 	during 	the 	course of
negotiations. 	On the other 	hand, 	the Union did 	try to 	change
that 	language 	to 	reduce 	the 	amount 	of 	time derogatory material
would 	remain 	in a 	personnel 	file. 	When the parties were unable
to 	reach agreement, 	on October 	8, 	1985, 	the Union offered to
abandon 	its 	proposal 	and 	accept 	the 	language 	in 	the 	previous
collective 	bargaining 	contract.
57

Jones 	rejected 	the 	suggestion. 	Unfamiliar with 	the
previous 	contract, 	he 	thought 	the 	language 	suggested 	by the
Union was 	far 	too 	liberal. 	Jones 	argued that, 	pursuant 	to 	a
case 	identified 	as 	Cockburn v. 	Santa Monica 	Community College
District Personnel Commission 	(1984) 	161 Cal.App.3d. 	176,
materials 	derogatory to 	an employee could 	be used 	in 	a 	. . . . 4
disciplinary 	action 	provided 	that 	they 	had 	previously 	been
shown 	to 	the employee, 	whether 	or 	not 	such materials were 	in
the 	employee's 	personnel 	file. 	After 	Floranell 	Shearer 	advised
Jones 	that 	the 	language 	sought 	by 	the Union was 	in 	the 	previous
contract, 	he was 	still 	reluctant to 	accept 	it. 	It was 	at that
time 	that 	he 	stated 	that 	all 	supervisors 	would 	be 	advised 	to
place 	every negative event 	in 	an employee's 	personnel 	file.
Although 	the 	parties 	testified 	the 	discussion was 	more
intense 	than previous bargaining 	sessions, 	given it was 	a
bargaining 	session 	and 	given 	that 	no 	adverse 	action was 	taken,
I 	am reluctant 	to 	find 	that 	Jones' 	statements 	constitute 	an
independent 	violation of 	the EERA. 	The 	actors 	on 	a 	collective
bargaining 	stage must 	be 	given 	a 	certain 	amount 	of 	latitude 	and
must 	be 	allowed 	to posture, 	spar 	or 	otherwise engage 	in
theatrics which might, 	in their opinion, 	enhance the cause of
the 	party 	they 	represent.
Although not 	constituting 	a 	basis 	for 	an 	independent
violation of 	the EERA, 	the District's 	position on employee
personnel 	files 	is yet 	one more 	indication 	of 	bad 	faith
58

bargaining. 	From February until October 	8, 	1985, 	there 	is 	no
evidence 	the 	District 	was 	dissatisfied 	in 	any way with 	the
provisions 	in 	the 	previous 	contract 	regarding 	classified
employees' 	personnel files. 	Yet, 	on October 8, 	1985, 	the
District 	refused 	to 	accept 	the 	language which would 	have
maintained 	the 	status 	quo. 	Indeed, 	the District went 	further
and 	threatened 	to 	change 	terms 	and 	conditions 	of 	employment 	as
a 	condition 	for 	returning 	to 	the 	language which maintained 	the
status 	quo. 	Such conduct 	is 	indicative of 	the District's
conduct 	in negotiations which 	supports 	the 	conclusion 	that 	it
did 	not 	have 	the 	subjective 	intent 	to 	reach 	agreement.
2. 	The Certificated Unit
The 	District's 	negotiations 	with 	the 	certificated 	unit 	were
characterized 	by many of 	the 	same 	difficulties 	which 	pervaded
negotiations with 	the 	classified unit.. . .. 	The difficulties with
salary negotiations, 	the Education Code 	section 	72500 	provision
and 	the 	last 	and 	final 	salary offer were 	identical.
Negotiations 	for 	the 	certificated 	unit were 	also 	somewhat
hampered 	because 	the District 	was 	evasive 	and 	nonresponsive 	to
the Union's 	proposal 	on 	the 	transfer 	and 	reassignment 	of
faculty. 	In 	addition to 	these events which were 	taking 	place
at 	the table, 	the District was 	taking unilateral 	action with
respect 	to 	the 	certificated 	calendar. 12
1 2 I 	take 	official 	notice 	of 	the 	findings 	which were made
in 	two 	other 	PERB cases, 	and not 	appealed. 	In Unfair 	Practice
Case No. 	LA-CE-2273, 	I 	found that the District had violated
59

There 	is 	no 	dispute 	that many 	issues which concerned 	the
certificated 	unit were 	resolved during 	the 	course 	of
negotiations 	for 	a 	new contract. 	There 	is 	some evidence 	that
there was 	an 	established 	network 	for 	resolving 	disputes 	outside
of conventional 	bargaining channels. 	For 	example, 	Thorpe 	and
Clinton 	seemed to discuss 	the 	resolution of matters, 	such as 	a
question concerning 	division chairs, 	without 	the 	intervention
or 	even knowledge of 	Jones.
There 	can 	also 	be 	no 	dispute 	that 	the 	primary 	issue
concerning 	the 	certificated 	unit was 	salaries. 	The
Federation's 	certificated 	unit 	had 	negotiated 	the 	previous
collective 	bargaining 	contract 	and 	presumably 	could 	live with
most 	of 	its 	provisions, 	in contrast 	to 	the classified unit
which 	found many 	of 	the 	earlier 	CSEA provisions 	unacceptable.
Accordingly, 	the 	positions 	taken by the District 	on 	the 	issue
of 	salaries 	impacted on the 	entire 	fabric 	of 	negotiations 	and
those negotiations 	alone must 	be 	studied 	to determine 	if 	the
District 	evidenced 	the 	subjective 	intent 	to 	reach 	agreement.
Since 	the 	evidence 	overwhelmingly 	supports 	the 	conclusion
that 	the District 	did not 	clarify 	its 	proposals, 	did not
. . .
. . . . . . . 	. .. .
. .: . .. .
section 	3543.5(c) 	and derivatively sections 	3543.5 	(a) 	and 	(b)
when 	it 	unilaterally 	established 	the 	calendar 	for 	intersession
and 	Saturday classes. 	That 	case was 	consolidated with Unfair
Practice Case No. 	LA-CE-2272, 	to which exceptions were filed.
Accordingly, 	the Order 	in Case No. 	LA-CE-2273 	is not 	final. 	In
Case No. 	LA-CE-2393 	(HO-U-327), 	I 	again found the District had
violated 	the 	Act 	by unilaterally 	establishing 	intersession
calendars. 	That 	aspect 	of 	the 	case was 	bifurcated 	from 	all
other 	issues 	and 	the Order 	issued 	therein 	is 	final.
60

present 	a 	picture of 	the 	resources 	it 	could or would commit,
did 	confuse 	bargaining 	by 	the 	introduction 	of 	predictably-
unacceptable 	proposals 	and did 	label 	offers 	as 	firm 	and 	then
withdraw them, 	it 	is 	found 	that 	enough 	indicia 	of 	bad 	faith
bargaining 	are present 	to conclude the District violated the..........
Act.
- . .. .
B. 	Case Nos. 	LA-CO-350. 	LA-CO-352 	and LA-CO-353
As 	set 	forth 	in the Findings 	of 	Fact 	above, 	the evidence
presented 	on many 	issues 	raised 	in 	the 	above-referenced 	matters
was 	insufficient 	to 	sustain 	the 	factual 	allegations 	set 	forth
in the Complaints. 	Accordingly, 	there will be no discussion of
those matters 	in this 	section. 	On the 	issue of 	coalition
bargaining, 	however, 	the evidence was 	sufficient 	to 	raise a
question 	as 	to whether 	the Federation violated 	the Act.
It 	is 	generally 	accepted 	that 	coordinated 	bargaining 	is
acceptable 	but merged or 	coalition bargaining 	is 	not. 	As 	noted
in Morris, 	The Developing Labor Law. 	Second Edition: 	,
The 	terms 	"coalition" 	or 	"coordinated"
bargaining 	are 	often used 	interchangeably,
although there 	is 	a 	logical 	difference
between 	the 	terms which corresponds 	to 	the
intent 	and 	nature of 	the mutual 	bargaining
activity. 	"Coordinated" 	bargaining 	connotes
communication 	and 	accommodation 	among
different 	bargaining 	agents 	but 	independent
decision making 	in 	separate 	bargaining
processes. 	Such activity is 	therefore not
illegal 	as 	such. 	"Coalition" 	bargaining, 	on
the other hand, 	implies 	a de facto merger 	of
bargaining units, 	or 	an effort 	to 	achieve
that 	end. 	Thus 	to 	the extent 	such a merger
61

.. . .
is 	forced 	on 	a 	nonconsenting 	bargaining
partner, 	a 	refusal to bargain, 	by 	virtue 	of
insistence 	on 	a 	nonmandatory bargaining
subject, 	results. 	Id. 	at pp. 	666-667.
The 	Board 	itself 	has 	subscribed 	to 	the 	above-quoted
analysis 	in Gilroy Unified 	School 	District 	(1984) 	PERB
Decision No. 	471 	and 	Savanna 	School 	District 	(1982) 	PERB
Decision No. 	276. 	In Gilroy, 	the Board also noted:
The use 	of 	common bargaining 	sessions 	to
negotiate 	separate 	agreements 	merely goes 	to
the 	time 	and place of 	negotiations 	and does
not 	impinge on 	the 	integrity of 	the
individual 	units 	or 	the employer's 	right 	to
consider 	unit 	proposals 	on 	their 	own
merits. 	... 	It follows that 	a proposal to
negotiate 	two 	separate 	contracts 	during 	the
same 	bargaining 	sessions 	falls within 	the
right 	of 	a 	party to 	suggest 	reasonable 	times
and 	intervals 	for 	bargaining 	sessions. 	Id.
at pp. 	8-9.
On the other 	hand, 	the Board noted, 	"the merger of 	two 	or more
unit 	negotiations 	inherently 	alters 	the 	finding 	of 	unit
appropriateness."
The 	bargaining 	described 	in 	the 	instant 	cases 	does 	not
neatly 	fit 	into 	either 	the 	definition 	of 	coordinated 	or
coalition 	bargaining. 	Bargaining 	about 	noneconomic 	items 	could
probably be 	described 	as 	coordinated 	bargaining. 	Not 	long
after 	certificated 	bargaining 	began 	and 	the 	classified 	unit 	had
its 	ground 	rules, 	a 	representative 	from one 	team monitored 	the
bargaining 	sessions 	of 	the other 	team. 	There 	is 	no 	evidence
that 	anything which 	took place 	at 	those 	sessions was 	improper
or violative of 	the Act.
62

The 	bargaining which 	took place with 	respect 	to 	salaries
was 	something 	more 	than coordinated 	bargaining. 	It was 	never
suggested 	or 	proved, 	however, 	that 	the 	certificated 	and
classified 	units 	were 	trying 	to merge 	or 	obtain 	the 	same
contract. 	They were 	trying 	to 	coordinate 	the way 	in which 	the
monies 	available 	for 	salaries were distributed. 	This 	seems
something 	less 	than 	the 	hornbook definition of 	coalition
bargaining.
No matter what 	label 	the bargaining 	is 	given, 	whether 	or
not 	it violates 	the Act 	is 	contingent upon whether 	the
Federation 	refused 	to 	bargain unless 	the 	District 	agreed 	to
meet 	jointly 	or 	whether 	the 	Federation 	conditioned 	settlement
of 	one contract upon settlement of 	the other. 	I 	find 	that 	it
did not. 	At 	all 	times 	relevant hereto, 	the District 	agreed 	to
meet 	jointly with 	the 	certificated 	and 	classified 	units 	on 	the
issue of 	salaries. 	At 	no 	time did either McManus 	or Thorpe
refuse 	to 	go 	forward without 	the 	other 	and 	at 	no 	time did 	any
representative 	of 	the 	Federation 	condition 	the 	conclusion 	of
negotiations 	for 	one unit 	upon 	the 	conclusion of 	negotiations
for 	the 	other. 	Under 	the circumstances 	presented herein, 	the
Complaint 	must 	be dismissed.
C. 	Case Nos. 	LA-CO-359 	and LA^CO-360
The District 	has 	alleged 	that 	the Federation, 	as 	the
representative 	of 	the 	classified 	and 	certificated units,
violated 	the Act 	by engaging 	in 	an unlawful 	sick-out 	on
63

March 	7, 	1985. 	The evidence established 	that 	a 	higher 	than
expected 	percentage 	of 	employees were 	out 	sick on 	that 	date.
The Union 	leadership denies 	having 	anything 	to 	do with 	that
absenteeism. 	A 	review of 	the 	governing 	law is 	appropriate. 	It
is well 	established 	that 	a union violates 	its 	duty to
participate 	in 	the Act's 	impasse 	procedures 	in 	good 	faith when
it 	engages 	in 	an unprotected work 	stoppage 	during 	the 	mediation
process. 	In San Diego Teachers Association v. 	Superior 	Court
(1979) 	24 	Cal.3d 	1, 	the Supreme Court 	reviewed 	the 	impasse
procedures 	of 	the Act, 	and concluded on pages 	8-9;
. 	. 	. 	since 	[the impasse procedures] 	assumed
deferment 	of 	a 	strike 	at 	least 	until 	their
completion, 	strikes 	before 	then 	can 	properly
be 	found 	to be 	a 	refusal 	to 	participate 	in
the 	impasse procedures 	in good faith, 	and
thus, 	an unfair practice under 	section
3543.6 (d).
In Modesto City Schools 	(1983) 	PERB Decision No. 	291, 	the
Board 	dealt 	with 	the 	legality of 	work 	stoppages 	prior 	to 	the
completion of 	the 	statutory 	impasse 	procedure. 	The 	Board 	held
that 	work 	stoppages 	occurring 	prior 	to 	exhaustion 	of 	the
impasse 	procedures 	create 	a 	rebuttable 	presumption 	that 	such
action 	is 	an unlawful 	tactic 	in violation of 	the union's 	duty
to 	negotiate 	in good 	faith.
In El Dorado Union High 	School 	District 	(1986) 	PERB
Decision No. 	537a, 	the Board, 	citing Moreno Valley Unified
School District 	(1983) 	142 Cal.App.3d 	191, 	found that 	a partial
work 	stoppage 	occurring 	during 	the 	pendency of 	the 	impasse
64

procedures 	of 	the Act 	violated 	the 	union's 	duty 	to 	participate
in 	the 	impasse 	procedures 	in good 	faith. 	See 	also Westminster
School District 	(1982) 	PERB Decision No. 	277; 	Fresno Unified
School District 	(1982) 	PERB Decision No. 	208; 	San Ramon Valley
Unified School District 	(1984) 	PERB Order No. 	IR-4 6; 	and San
Mateo City School District 	(1985) 	PERB Order No. 	IR-48.
In order 	to prevail 	on 	its 	charge 	the District must 	prove:
(1) 	that 	a 	sick-out occurred; 	(2) 	that 	it occurred prior 	to
exhaustion of 	the 	impasse procedures 	of 	the Act, 	and 	(3) 	that
the 	Federation 	planned 	and/or 	authorized 	the 	sick-out.
There 	is 	ample evidence 	that 	a 	sick-out occurred.
Approximately 	32 	percent 	of 	the 	District's 	full-time
certificated employees were 	absent 	on March 	7 	as 	compared 	to 	an
average 	of 	2.9 	percent 	for 	the 	entire month of March. 	For 	the
classified unit, 	approximately 26 	percent were 	out 	on March 	7
as 	compared 	to 	an 	average 	sick 	rate 	in 	the 	entire month of
March of 	7 percent.
There was 	also 	no dispute 	that 	the 	parties 	had 	not yet
exhausted 	the 	impasse procedures 	of 	the Act 	at 	the 	time 	of 	the
sick-out. 	A mediator 	had 	been 	appointed, 	and 	the 	parties 	were
in 	the midst of mediation.
The 	final 	element 	of 	the 	complaint which must 	be 	proven by
the District 	in order 	to 	prevail 	is 	that 	the Federation
planned 	and/or 	authorized 	the 	sick-out. 	In establishing
liability of 	the union 	for 	acts 	of 	its members, 	common 	law
65

principles 	of 	agency 	apply. 	Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97; 	Los Angeles Community
College District 	(1982) 	PERB Decision No. 	252; 	Carbon Fuel Co.
v. 	United Mine Workers 	(1979) 	444 U.S. 	212. 	"A union will not
be held 	liable unless 	some 	one 	or more persons 	in 	authority
were 	responsible 	for what 	transpired." 	Longshoremen 	and
Warehousemen v. 	Hawaiian Pineapple Co. 	(9th Cir. 	1955) 	226 	F.2d
875. 	" . . . 	it must be clearly shown, 	. 	. 	. 	that what was
done was 	done 	by their 	agents 	and 	in 	accordance with 	their
fundamental 	agreement 	and 	association." 	Coronado 	Coal 	v.
United Mine Workers 	(1925) 	268 U.S. 	295, 	304. 	"In showing
union complicity, 	the company must 	therefore prove 	that 	the
agents 	of 	the union participated 	in, 	ratified, 	instigated,
encouraged, 	condoned, 	or 	in 	any way directed 	the 	authorized
strike 	for 	the union 	to 	be held 	liable." 	North River Energy
Corporation v. 	United Mine Workers, 	(11th Cir. 	1981) 	664 	F.2d
1184.
It 	is 	in this 	element 	of 	the complaint where 	the District's
case 	fails. 	It's 	proof 	that 	the union planned 	and/or
authorized 	the March 	7 	sick-out 	amounts 	to 	little more 	than
rumor 	and 	speculation. 	No witness, 	either 	District manager 	or
Union member, 	testified 	that 	the Union 	in 	any way encouraged
them to 	stay home 	from work. 	No 	one 	testified 	that 	the Union
was 	mentioned 	in 	any discussion 	about 	staying 	home 	from work on
March 7. 	The 	Federation did not, 	either 	before or 	after March
7, 	ratify the 	acts 	of 	the employees 	in staying 	home 	from work.
66

The 	District's 	case was 	not 	buttressed 	by 	the 	bargaining
unit members 	it 	called. 	Of 	those witnesses 	six had 	received
calls 	regarding 	employees 	being 	out 	sick the next day; 	two 	of
those 	in 	fact 	reported 	to work the 	next 	day. 	Although 	there
were 	rumors, 	discussions 	and 	speculation 	among 	both 	employees
and management 	of 	a 	possible 	job 	action of 	some 	sort 	at 	some
time, 	the District 	has 	presented no 	credible evidence 	that 	the
March 	7 	sick-out was 	planned 	and/or 	authorized 	by 	the
Federation.
.. .
The 	fact 	that 	the Federation had 	not 	taken 	a 	strike vote
also works 	against 	a 	finding 	that 	it 	authorized 	or 	sponsored 	a
job 	action. 	A job 	action committee had, just 	been 	formed 	and
was 	to 	discuss 	and 	explore 	alternatives 	only	. .. 	. 	That 	committee
had 	not 	even 	reported back to 	the membership. 	In 	the 	past,
when 	the Union did 	authorize 	job 	actions, 	the membership was
informed 	through Union votes 	and Union meetings. 	Employees 	who
were 	knowledgeable 	about 	such matters 	knew 	that 	the 	action 	on
March 	7 was 	not Union sanctioned. 	Moreover, 	when the Union did
put 	its 	support 	behind 	a 	job 	action, 	the 	response was 	greater
than 	demonstrated 	on March 	7.
In 	short, 	there was 	no evidence presented 	that 	the Union
authorized 	a 	sick-out; 	or 	even 	that 	the 	subject 	of 	a 	sick-out
arose 	at meetings. 	There was 	no evidence that 	anyone 	in 	a
Union 	leadership 	role called 	for 	or 	encouraged 	the 	sick-out.
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(There was 	testimony that 	Gloria 	Schleimer 	might 	have 	told 	one
employee 	that 	other 	employees were 	going 	to 	be 	out 	sick. 	She
did 	not, 	however, 	mention 	the Union or 	encourage 	that 	employee
to 	stay home 	from work. 	She did 	not 	identify herself 	as 	a
Union officer.) 	There was 	no 	evidence 	of 	statements 	to 	the
press 	indicating 	a 	connection between 	the 	job 	action 	and 	the
Union. 	There were 	no 	claims 	of 	responsibility made 	afterward
by the Federation. 	There were no 	flyers, 	placards, 	picket
signs 	or 	handouts 	linking 	the 	Federation 	to 	the 	sick-out.
There were 	no minutes 	of 	the 	Federation's 	governing 	board's
ratification of 	the 	action. 	There was 	no 	evidence of 	speeches
made 	by Union 	officials 	indicating 	any 	responsibility 	for 	or
authorization of 	the 	action.
Nor 	can 	any conclusion 	be drawn 	from the 	failure 	of 	the
Federation to 	renounce the 	sick-out, 	or 	to urge employees 	to
return to work. 	For the certificated unit, 	there was 	no
evidence of 	any contractual 	provisions 	in effect 	at 	the 	time 	of
the 	sick-out which 	required 	the Union 	to 	renounce 	the 	action.
Nor was 	there 	evidence 	that 	the 	District 	ever 	asked 	the 	Union
to make 	efforts 	to 	secure 	the 	return of 	employees.
Furthermore, 	the question 	is 	not whether 	the Federation did
everything 	it might 	have done, 	but 	rather whether 	the
Federation adopted, 	encouraged, 	or prolonged the continuance of
the 	action. 	United Construction Workers 	v. 	Haislip Baking
Company 	(4th Cir. 	1955) 	223 	F.2d 872.
68

In 	the 	classified 	unit, 	the 	Complaint 	alleges 	that 	the
sick-out 	violated 	the 	collective 	bargaining 	agreement 	which 	had
been 	signed 	by CSEA 	and 	the 	District 	and which 	expired 	on
June 	30, 	1985. 	The District 	has 	cited 	no 	authority 	for 	the
proposition 	that 	the Union 	should 	be 	bound 	by 	any 	aspect 	of
that 	contract 	in general, 	or 	the maintenance of 	operations
clause 	in particular. 	Although there 	is 	no evidence 	that 	the
representatives 	of 	the 	classified 	unit 	participated,
encouraged, 	or 	sanctioned the 	sick-out 	on March 	7, 	even 	if 	they
had, 	the 	action would not 	have been 	a 	violation of 	the expired
contract 	signed 	by another union. 	It 	is well 	settled 	that
"when a union is decertified, 	. 	. 	. 	the succeeding union . 	. 	.
is 	not 	bound by a prior contract, 	even 	if 	the terms 	of 	the
contract 	have 	not yet 	expired." 	NLRB v. 	Burns 	International
Security Services. 	Inc. 	(1972) 406 U.S. 	272, 	fn. 	8; 	American
Sunroof Corp. 	(1979) 	243 NLRB No. 	172 	[102 LRRM 1086]
Absent 	clear 	evidence 	regarding 	who 	did 	orchestrate 	the
sick-out, 	it 	is 	certainly a possibility that 	the Federation
played 	a 	role; 	however, 	the Courts 	have made clear that
violations 	of 	this 	nature must 	be 	founded upon proof, 	not mere
possibilities. 	Moreover, 	it 	is equally possible, 	given the
state of 	the evidence, 	that 	employees 	engaged 	in a 	rather
spontaneous 	protest. 	Classified 	employees were 	angry 	about 	the
withdrawal 	of 	lottery money 	from 	the 	funds 	available 	for 	their
salaries. 	Certificated 	employees were upset 	and 	angry 	about 	a
69

number 	of 	comments 	they thought 	the 	president/superintendent
had made. 	Based upon 	the 	state of 	the 	record, 	the Federation
cannot 	be 	held 	liable 	for 	the 	job 	action 	in either 	the
classified 	or 	certificated units. 	Therefore, 	the 	allegations
that 	the 	Federation 	refused 	to 	participate 	in 	the 	impasse
procedures 	in good 	faith 	as 	alleged in Case Nos. 	LA-CO-359 	and
LA-CO-360 	must 	be 	dismissed.
V. 	CONCLUSIONS
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	in Case No. 	LA-CE-2276, 	it is 	found that the Compton
Community College District 	violated 	section 	3543.5(c) 	and,
derivatively, 	sections 	3543.5(a) 	and 	(b) 	when it engaged 	in
surface 	bargain 	and 	did 	not 	display 	an 	intent 	to 	reach
agreement 	with 	either 	its 	certificated 	or 	classified 	units 	who
were 	trying 	to 	negotiate 	contracts 	to 	be 	effective 	beginning 	on
July 1, 	1985. 	It 	is 	also 	found that 	the employer's conduct
during 	impasse 	proceedings 	constitutes 	a 	violation of 	section
3543.5(e). 	It 	is 	further 	found that 	the Compton Community
College 	Federation of 	Employees, 	AFL-CIO did 	not 	establish 	that
the District 	threatened 	to 	retaliate 	against members 	of 	the
classified 	unit 	because 	of 	the 	Federation's 	insistence upon
certain 	language 	pertaining 	to 	employee 	personnel 	files.
In Case Nos. LA-CO-350, LA-CO-352, LA-CO-353, LA-CO-359,
and LA-CO-360, 	it 	is 	found that 	the District 	failed to
establish 	that 	the 	Federation 	engaged 	in 	bad 	faith 	bargaining,
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either 	by 	insisting 	upon 	coalition 	bargaining 	or 	by engaging 	in
an unlawful 	sick-out, 	or 	by engaging 	in other 	acts 	allegedly
violative 	of 	the EERA. 	All 	those 	cases 	are hereby DISMISSED.
VI. 	REMEDY
Section 3541.5(c) 	of 	the EERA states:
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 policy of
this 	chapter.
A cease 	and 	desist 	order 	is 	the 	traditional 	remedy 	for 	an
employer's 	failure 	to 	bargain 	in good 	faith. 	Stockton Unified
School District, 	supra
In Case No. 	LA-CE-2276, 	the employer will be ordered to
cease 	and desist 	from its 	unlawful 	activity. 	The District
should 	be 	required 	to 	cease 	and 	desist 	from engaging 	in 	surface
bargaining 	by failing 	to 	clarify 	its 	position on 	salaries, 	by
reneging 	on 	tentative 	agreements, 	by violating 	the 	ground
rules. 	The 	District 	should 	also 	be 	ordered 	to 	cease 	and desist
from 	failing 	to 	participate 	in good 	faith 	in 	the 	impasse
proceedings 	by 	reneging 	on 	agreements 	and/or 	altering 	last 	and
final offers.
It 	also 	is 	appropriate 	that 	the District 	be directed 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the order. 	Posting 	of
such 	a 	notice, 	signed by an 	authorized 	representative of 	the
.. ..
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District, 	will 	provide 	employees with notice 	that 	the District
has 	acted 	in an unlawful manner, 	is 	being 	required to 	cease and
desist 	from this 	activity, 	and will 	comply with 	the order. 	It
effectuates 	the 	purposes 	of 	the EERA 	that 	employees 	be 	informed
of 	the 	resolution of 	the 	controversy 	and 	the 	District's
readiness 	to 	comply with 	the 	ordered 	remedy. 	See Placerville
Union School District 	(1978) 	PERB Decision No. 	69. 	In Pandol
and 	Sons 	v. 	Agricultural 	Labor Relations 	Board 	(1979) 	98
Cal.App.3d 	580, 	587 	the California District Court 	of Appeals
approved 	a 	similar 	posting 	requirement. 	NLRB v. 	Express
-
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the entire 	record 	in this 	case, 	it 	is 	found 	that 	the
Compton 	Community College 	District 	has 	violated 	sections
3543.5(c) 	and (e), 	and, derivatively, 	Section 3543.5 	(a) 	and
(b), 	of the Educational Employment Relations Act. 	Pursuant to
section 3541.5(c) 	of the Government Code, 	it hereby is ORDERED
that 	the Compton Community College District, 	its 	officers 	and
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Refusing 	to meet 	and 	negotiate 	in 	good 	faith 	and
refusing 	to 	participate 	in good 	faith 	in 	impasse 	proceedings 	by
failing 	to 	present 	clear 	and 	consistent 	positions 	or 	proposals
on 	salary negotiations, 	reneging 	on 	tentative 	agreements 	during
bargaining 	and 	impasse proceedings, 	violating ground 	rules, 	and
altering 	last 	and 	final 	offers.
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2. 	Denying 	the Union 	its 	right 	to 	represent members 	of 	the
classified 	and 	certificated 	units 	in 	negotiations 	and 	impasse
proceedings 	conducted 	in good 	faith; 	and
3. 	Interfering with the employees* 	right 	to 	be 	represented
by the Union 	in negotiations 	and 	impasse 	proceedings.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
1. 	Within ten 	(10) 	workdays 	of 	service of 	a 	final decision
in this matter, 	post 	at 	all 	school 	sites 	and 	at 	all 	other work
locations where 	notices 	to 	certificated 	and 	classified
employees 	are customarily placed, 	copies 	of 	the Notice 	attached
hereto 	as 	an Appendix. 	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. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	the
Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced or 	covered by
any other material.
(2) 	Upon 	issuance of 	a 	final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	these 	orders
to 	the 	Los Angeles 	Regional 	Director 	of 	the Public Employment
Relations 	Board 	in 	accordance with his 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
73

with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 20 	days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB 	Regulations, 	the 	statement 	of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record,
if 	any, 	relied upon 	for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of 	business 	(5:00 	p.m.) 	on the 	last 	day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked 	not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 32135. 	Code of Civil 	Procedure
section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	April 	19, 	1988 Barbara E. 	Miller
Administrative 	Law 	Judge
74