Contra Costa Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2017) PERB Decision No. 2518, pp. 41-42 (PERB 0804E)

OVERRULED IN PART by Los Angeles Unified School
District (2017) PERB Decision No. 2518, pp. 41-42
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED 	FACULTY 	OF 	CONTRA COSTA
COMMUNITY COLLEGE 	DISTRICT,
Charging 	Party,
v.
CONTRA 	COSTA 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
)
)
) 	Case No. 	SF-CE-1332
PERB Decision No. 	804
April 2, 1990
)
)
)
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for United Faculty of Contra Costa Community
College District; 	Atkinson, 	Andelson, 	Loya, 	Rudd & Romo by Paul
Loya, 	Attorney, 	for Contra Costa Community College District.
Before Hesse, 	Chairperson; 	Craib, 	Shank and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	from a 	Board 	agent's
dismissal 	of 	an unfair practice 	charge 	filed by 	the 	United
Faculty 	of 	Contra 	Costa 	Community 	College 	District 	(United
Faculty). 	United Faculty contends 	that the Contra Costa
Community College 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA or Act), 	section 3543.5,
subdivisions 	(a), 	(b) , and (c),1 by refusing to negotiate over
1JEERA	EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to:
)
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)
)
)
________________ )

the 	expenditure of 	staff 	development 	funds 	made available 	to 	the
District as 	a result of Assembly Bill 	(AB) 	1725. 	Relying on the
Board's 	decision 	in Anaheim Union 	High 	School 	District 	(1981)
PERB Decision No. 	177, 	the Board agent dismissed the charge
because 	he 	reasoned 	that 	the 	allocation of 	budget 	monies 	was
outside 	the 	scope of 	representation.
FACTUAL 	BACKGROUND
In 	1988, 	the Legislature passed AB 	1725, 	a comprehensive
community 	college 	reform bill, 	that provided 	for the 	allocation
of 	additional 	funding 	from the 	state 	for new teacher 	salaries,
and 	for 	implementing 	local 	staff 	development programs 	(now
codified at Educ. 	Code sec. 	87150-87154). 	Section 87153
provides:
The 	authorized uses 	of 	funds 	allocated under
this 	article 	shall 	include all 	of 	the
following:
(a) 	Improvement of teaching.
(b) 	Maintenance of 	current academic 	and
technical 	knowledge 	and 	skills.
(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.
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(c) 	In-service 	training 	for vocational
education 	and 	employment 	preparation
programs.
(d) 	Retraining to meet 	changing
institutional needs.
(e) 	Intersegmental 	exchange programs.
(f) 	Development of 	innovations 	in
instructional 	and 	administrative 	techniques
and 	program 	effectiveness.
(g) 	Computer and technological proficiency
programs.
(h) 	Courses 	and training 	implementing
affirmative 	action 	and 	upward 	mobility
programs.
(i) 	Other activities 	determined to be
related 	to 	educational 	and professional
development pursuant 	to 	criteria 	established
by the 	Board of 	Governors 	of 	the California
Community Colleges, 	including, 	but not
necessarily limited to, 	programs 	designed to
develop 	self-esteem.
In the 	case before the Board, 	the District had been informed
that 	it 	should 	expect 	to 	receive 	approximately 	$148,000 	for 	staff
development 	(presumably for the 	1989-90 	school year). 	In January
1989, 	in response to this potential 	increased funding, 	United
Faculty presented 	a 	staff 	development proposal 	to 	the 	District.
As 	described by the Board agent, 	that proposal 	included: 	(1)
augmenting 	the 	faculty 	sabbatical 	leave 	fund 	for 	1989-90 	by
$25,000; 	and 	(2) 	allocating at least 80 percent of the funds 	for
faculty activities, 	including the 	establishment of 	campus 	faculty
development committees 	(which would, 	inter alia, 	allocate the
staff development 	funds 	under the provisions of AB 	1725).
3

Neither the proposal, 	nor any further description of 	the
proposal, 	is provided in the record before the 	Board.
According to the charge, 	when presented with the proposal,
the 	District 	initially 	responded 	by 	asking 	if 	United 	Faculty was
formally 	requesting 	to 	reopen negotiations 	pursuant 	to 	the
parties' 	collective bargaining agreement.2 The 	charge 	further
alleges 	that the District 	indicated that, 	while 	it did not 	agree
that 	the 	development 	of 	a 	staff development plan was 	negotiable,
it would 	"sunshine" 	United Faculty's proposal 	as part of United
Faculty's 	reopener. 	United Faculty declined to use 	the proposal
as 	a 	reopener because 	it 	contended 	that 	the proposal 	did not
relate 	to 	any matter 	currently within the 	contract 	and 	demanded
that 	the 	District 	negotiate 	the proposal 	separately.
Subsequently, 	the 	District 	allegedly 	told 	United 	Faculty 	that 	it
would not 	"agree" 	to any of 	the proposals 	even as 	a reopener.
2Sections 	24.2. 	and 24.2.1. 	of the collective bargaining
agreement provide:
24.2. 	It 	is 	further agreed either party may
reopen this Agreement 	for purposes 	of
negotiations, 	once annually, 	beginning not
later than 	sixty 	(60) 	calendar days 	from
receipt 	of written demands 	and 	contract
changes, 	after January 	1 	of each of the years
1989 and 	1990.
24.2.1. 	Such reopener, 	if demanded, 	shall be
limited to the 	specific 	matter of 	salary, 	of
fringe benefits 	(insurance), 	and to the
specific 	individual 	issues 	within the 	scope
of bargaining as 	follows: 	each party will 	be
allowed two 	(2) 	reopeners 	on issues beyond
the 	articles 	under 	study during 	the 	duration
of this 	agreement. 	Issues under study
include Article 7, 	8, 	11, 	and 	17 referred to
appropriate 	committees.
4

Finally, 	at a March 	13, 	1989 meeting, 	the District allegedly
stated that 	"staff development, 	except 	for 	sabbatical 	leaves, 	was
outside the 	scope of bargaining; 	that 	it had not been presented
as 	a reopener, 	and that 	[the District] 	did not 	like the
proposal." 	While 	the 	charge 	alleges 	the District 	represented
that 	it 	intended 	to 	act 	immediately to use 	the 	staff 	development
funds, 	United Faculty has 	alleged no 	facts 	that the District has
implemented 	any 	staff 	development 	plan.
Based on these 	facts, 	United Faculty alleged that 	the
District 	has 	refused 	to 	negotiate 	United 	Faculty's 	proposal 	for
staff development. 	United Faculty contended that, 	by requiring
it 	to use one of 	its 	limited reopeners, 	the District effectively
renounced 	its 	obligation to 	negotiate 	because 	no 	current
provision 	in the 	contract 	addressed 	staff 	development.
Furthermore, 	United Faculty argued 	that 	the 	contract 	could 	not
have addressed the 	issue because, 	as 	new legislation, 	the
requirements 	of AB 	1725 	for 	staff 	development were unknown at 	the
time 	the 	contract was 	negotiated. 	United Faculty also 	contended
that 	its 	staff 	development proposal was 	separately 	negotiable
because 	it 	is within the 	scope 	of 	bargaining and AB 	1725 	funds
are 	specifically 	designated 	for 	staff 	development.
THE 	BOARD AGENT'S 	ANALYSIS
The 	Board 	agent 	defined 	the 	threshold 	issue 	as 	whether
United Faculty's 	proposal was within the 	scope 	of 	representation.
He 	interpreted the proposal broadly as 	a proposal 	for 	the
allocation of 	funds. 	After deciding that 	"the 	allocation of
5

funds" 	was not an enumerated subject in section 3 543.2,
subdivision 	(a)3 of the Act, 	which defines 	scope of
representation, 	the 	Board agent 	applied the Anaheim test.
(Anahei-----------------·m Union High School District, 	supra--·• 	PERB Decision No.
177.) 	In Anaheim, 	the Board held that a matter 	is within 	scope
if: 	(1) 	it is 	logically and reasonably related to hours, 	wages
or an enumerated term and condition of 	employment; 	(2) 	the
subject 	is 	of 	such 	concern to both management 	and employees 	that
conflict 	is 	likely to occur and 	the mediatory 	influence 	of
collective negotiations 	is 	the appropriate means 	of 	resolving the
conflict; 	and 	(3) 	the employer's 	obligation to negotiate would
not 	significantly 	abridge 	the 	employer's 	freedom 	to 	exercise
those 	managerial 	prerogatives 	(including matters 	of 	fundamental
policy) 	essential 	to the achievement of the employer's 	mission.
The 	Board 	agent 	concluded 	that
[r]equiring negotiations 	on how the 	employer
allocates 	funds 	in the budget would
3Section 3543.2, 	subdivision 	(a) 	provides 	in pertinent part:
The 	scope 	of representation 	shall 	be 	limited
to matters relating to wages, 	hours of
employment, 	and other terms 	and conditions 	of
employment. 	"Terms 	and conditions of
employment" 	mean health 	and welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class 	size, 	procedures to be
used 	for the 	evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	and the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the Education
Code. . . .
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significantly 	abridge 	its 	freedom to 	exercise
its 	essential 	managerial prerogatives.
Therefore, 	the 	subject 	fails 	to meet the
third prong of the Anaheim test. 	. 	. 	.
DISCUSSION
Although 	the 	Board 	agent 	correctly 	determined 	that 	the
threshold question was whether the 	subject 	of 	the proposal was
within the 	scope 	of 	representation, 	he 	improperly defined 	the
subject of the proposal 	as 	"the allocation of 	funds." 	In fact,
the 	subject of the proposal 	is 	staff development. 	Thus, 	in
order to determine whether the 	charge 	states 	a prima 	facie 	case
under section 3543.5, subdivisions 	(a), 	(b), or (c), we must
determine 	whether 	United 	Faculty 	alleged 	facts 	sufficient 	to 	show
that 	its 	staff 	development proposal was 	at 	least 	arguably
negotiable and, 	if 	so, 	that the District breached its obligation
to negotiate.
Staff development, 	as 	such, 	is 	not one of the enumerated
subjects 	in section 3543.2, 	subdivision 	(a). 	The Board has,
however, 	addressed the issue of whether training, 	a type of 	staff
development, 	is 	negotiable. 	In Poway Unified School 	District
(1988) 	PERB Decision No. 	680, 	the Board rejected the argument
that 	all 	inservice 	training 	is 	negotiable. 	The 	Board noted 	that
there was 	no 	evidence 	that 	the 	training 	in question 	impacted 	on
or 	affected hours 	in 	any way because 	it was 	nonmandatory 	and did
Another way to 	look at the problem 	is 	to determine whether
United 	Faculty would have been able 	to 	negotiate 	staff
development 	absent 	the 	Legislature's 	specific 	allocation of
funds. 	The 	source of the revenue 	is not 	important; 	the 	subject
matter of the proposal is the key. 	(Cf. 	Lincoln Unified School
District 	(1984) 	PERB Decision No. 	465, 	at pp. 	2-3.)
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not 	require preparation time 	or duty-free 	time 	to meet
professional 	development 	requirements. 	The 	Board 	found that
there was 	"not even a tenuous 	connection" 	to any enumerated
subject. 	(Id. 	at pp. 	13-14.) 	The Board indicated, 	however, 	that
since 	training was 	not 	an 	enumerated 	subject under 	section 	3543.2
and the meaning of the term 	"training" 	is 	not always 	clear, 	the
negotiability of 	training 	should be 	determined by 	PERB 	on 	a 	case-
by-case basis. 	(Id. 	at p. 	12.)
Thus, 	under the approach adopted by the Board 	in Poway. 	we
must 	examine the 	facts 	as presented to the Board. 	In this 	case,
United Faculty's proposal, 	as paraphrased 	in the warning 	letter,
is 	not 	sufficiently detailed 	to determine 	any 	relationship 	to
hours, 	wages, 	or enumerated terms and conditions of employment.
(See Anaheim Unified School District, 	supra. 	PERB Decision No.
177.) 	An ultimate determination as 	to the 	subject proposal's
negotiability is not, 	however, 	crucial to the resolution of this
case. 	Even assuming, 	arguendo, 	that United Faculty could
establish that 	its 	proposal 	is within the 	scope of bargaining,
the 	District's 	obligation to bargain is 	still 	dependent 	upon the
language of the parties' 	current collective bargaining
agreement.5
5We take official notice of the parties' 	current agreement
filed with PERB pursuant to PERB Regulation 	32120. 	(Antelope
Valley Community College District 	(1979) 	PERB Decision No. 	97, 	at
p. 	23.)
8

The parties' 	current agreement contains 	an expansive
management rights/zipper clause 	embodied 	in Article 	23, 	entitled
Entire Agreement. 	That article provides:
This 	contract 	shall 	supersede 	any and all
existing or prior verbal 	or written rules,
regulations, 	resolutions, 	and policy
statements 	of 	the 	Board or management 	and all
existing and prior customs, 	practices 	and
alleged past practices 	of 	the 	Board 	or
management 	in regard 	to 	the 	subject 	matter
hereof 	which 	may be 	contrary 	or 	inconsistent
with the terms hereof. 	However, 	either party
may 	cite 	any 	such verbal 	or written rules,
regulations, 	resolutions and policy
statements 	of 	the 	Board or management 	and
existing or prior customs, 	practices, 	and
alleged past practices 	in an attempt 	to
explain or 	clarify the provisions 	of 	this
Agreement. 	This 	contract 	shall 	constitute
the 	Board's 	entire policy with 	regard 	to
employees 	covered hereby 	insofar as 	concerns
wages, 	hours, 	and other matters which are the
subject matter hereof. 	The adoption or
institution of all past, 	existing and 	future
policies, 	procedures, 	practices and customs
shall 	be 	exclusively within 	the 	discretion of
management, 	except to the extent that 	such
action 	shall 	be 	contrary to 	the 	specific
terms of this 	contract.
(Emphasis added.) 	In this 	final clause, 	the parties have
conferred upon the 	District 	the 	exclusive 	right 	to 	determine 	any
new policy 	or procedure which 	does 	not 	conflict with 	the 	terms 	of
the 	contract. 	Thus, 	the District was 	only obligated to negotiate
the 	subject 	of 	staff 	development 	if 	United Faculty 	chose 	to
utilize 	one 	of 	its 	two reopeners 	under 	section 24.2.1 	of 	the
parties' 	agreement. 	United Faculty's 	charge alleges 	that the
District 	initially 	agreed 	to 	sunshine 	United 	Faculty's 	proposal
99

as part of the parties' 	reopeners.6 United Faculty, 	however,
declined to use one of 	its reopeners, 	reasoning that, 	since the
staff development 	funds were 	not 	available 	at 	the 	time 	the
parties 	bargained, 	the parties 	did not 	contemplate 	that this
subject would be a reopener. 	This 	argument must 	fail 	for the
same reason the 	Board agent's 	analysis 	fails; 	the 	source of 	funds
is 	not the appropriate 	focus 	for the analysis.
We 	must 	likewise reject 	United 	Faculty's 	argument 	that 	its
refusal 	to use 	a 	reopener was 	justified because 	the proposal 	did
not 	relate 	to 	any matter 	currently within the 	contract. 	In 	light
of Article 	23, 	United Faculty had no 	contractual mechanism, 	other
than the reopener, 	to bring the 	District to the bargaining table.
Since 	United 	Faculty was 	apparently unwilling 	to 	exercise 	its
right 	to 	reopen the 	contract 	for the purpose of 	negotiating 	staff
development, 	the District was within its 	rights 	to refuse to
negotiate 	United 	Faculty's 	proposal.
CONCLUSION
Even assuming, 	arguendo, 	that United Faculty's 	staff
development proposal was within the 	scope of representation, 	we
must affirm the dismissal. 	The agreement of the parties 	grants
to 	the District broad discretion to adopt new policies. 	If
United 	Faculty wanted 	the 	opportunity 	to 	negotiate 	staff
66As 	indicated previously, 	the 	United Faculty also 	alleges
that 	the 	District 	subsequently refused to 	"agree" 	to 	any 	of 	the
proposals 	even as a reopener. 	Still 	later, 	the District
allegedly 	stated that 	"staff 	development, 	except 	for 	sabbatical
leaves, 	was 	outside the 	scope of bargaining, 	that 	it had not been
•presented as 	a reopener and that 	[the District] 	did not 	like 	the
proposal." 	Although the charge 	is 	somewhat unclear, 	we conclude
that 	the 	allegations 	reflect 	that 	United 	Faculty was 	unwilling 	to
use 	a 	reopener 	for negotiating this 	issue.
10

development, 	it 	should have utilized one of 	its 	reopeners. 	Since
the 	charge 	fails 	to 	allege adequately that 	the 	District 	refused
to bargain the proposal 	as 	a reopener, 	the charge 	fails 	to 	state
a prima 	facie 	case.
ORDER
Consistent with the discussion above, 	the unfair practice
charge 	in Case No. 	SF-CE-1332 	is hereby DISMISSED WITH PREJUDICE.
Chairperson Hesse, 	Members 	Shank and Camilli 	joined 	in this
Decision.
11