Temple City Unified School District (PERB 0841E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEMPLE 	CITY EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
TEMPLE 	CITY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2789
LA-CE-2800
PERB Decision No. 	841
September 20, 	1990
Appearances: 	Charles R. 	Gustafson, 	Attorney, 	for Temple City
Education Association, 	CTA/NEA; 	John J. 	Wagner, Attorney, 	for
Temple 	City 	Unified 	School 	District.
Before Craib, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of a proposed decision
(attached) 	of an administrative law judge 	(ALJ), 	finding that the
Temple City Unified School District 	(District): 	(1) 	violated
section 3543.5(a), 	(b) 	and 	(e) 	of the Educational Employment
Relations Act 	(EERA or Act)1 by altering the 	status 	quo regarding
unit members' 	fringe benefit levels 	for the 	1988-89 	school year;
and 	(2) 	violated EERA section 3543.5(a) 	by interfering, 	through
communications 	issued by the 	District's 	superintendent, 	with
employees' 	exercise of rights 	guaranteed by EERA. 	Both the
1EERA 	is 	codified at Government Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
1EERA
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District 	and the Temple City Education Association, 	CTA/NEA
(Association) 	filed exceptions 	to the proposed decision.
We have 	carefully reviewed the 	entire 	record, 	including the
proposed decision, 	the District's 	exceptions, 	the Association's
response to the District's 	exceptions, 	and the Association's
exceptions, 	and, 	finding the ALJ's 	findings of 	fact and
conclusions 	of 	law to be 	free of prejudicial error, 	adopt 	the
ALJ's proposed decision as 	the decision of 	the 	Board 	itself,
insofar as 	it 	is 	consistent with the discussion below.
DISTRICT'S 	EXCEPTIONS
1. 	Exception to The ALJ's 	Taking of Administrative Notice
of 	other Unfair Practice Files.
The 	District 	argues 	that 	the ALJ 	acted 	improperly 	in 	taking
administrative 	notice of 	other 	PERB 	unfair practice 	files 	without
first giving notice to 	the parties 	on the record 	that he 	intended
to 	take administrative notice of these 	files. 	The District
refers 	to that portion of the proposed decision wherein, 	as 	a
matter of 	historical 	background, 	the ALJ 	noted 	a history of
antagonism between 	the parties 	beginning with 	the 	negotiations
leading to 	their 	1986-1989 	contract. 	Presumably to 	illustrate
this 	antagonism, 	the ALJ 	quoted 	extensively 	from Temple 	City
- -
Unified School District 	(1987) 	PERB Decision No. 	HO-U-325, 	an
earlier case between the parties 	to 	the dispute herein. 	(See
Proposed Decision, 	pp. 	15-16.) 	The District contends that the
ALJ 	drew an 	inference 	of 	bad 	faith 	in the 	instant 	unfair practice
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proceeding based upon the 	findings 	of 	the ALJ 	in the 	earlier
Temple City case.
First, 	we note that based upon the facts of this 	case, 	a
finding 	of 	bad 	faith bargaining on the part 	of 	the 	District 	in
the 	earlier 	case 	is 	irrelevant 	to 	the 	issue 	of whether the
District 	engaged 	in bad 	faith bargaining. 	Therefore, 	we 	find the
ALJ's 	quotation 	from the 	earlier Temple 	City 	case 	to 	be
irrelevant 	and 	inappropriate. 	However 	inappropriate 	the ALJ's
reference to that case might have been, 	we 	find the reference to
be 	nonprejudicial 	to the 	District. 	We reject 	the 	District's
contention that 	the ALJ drew an 	inference 	of 	bad 	faith 	in this
unfair practice proceeding based upon the 	finding 	of 	the ALJ 	in
the 	earlier Temple City. 	In fact, 	the ALJ makes 	no reference to
that 	case 	in the discussion portion of his proposed decision.
Furthermore, 	the ALJ did not 	find that 	the 	District 	engaged 	in a
course 	of 	overall 	bad 	faith bargaining during the 	negotiations 	or
impasse process. 	The conclusion that the District 	failed to
participate 	in good 	faith 	in the 	impasse procedures was 	based
solely upon the 	District's 	unilateral 	change 	in the 	fringe
benefit 	status 	quo, 	an act which constitutes 	a per 	se 	refusal 	to
participate 	in good 	faith 	in the 	impasse procedures.2
Nevertheless, 	for the above reasons, 	we do not adopt that portion
2As 	we reject 	the ALJ's 	use of 	the 	excerpt 	from the 	earlier
Temple City decision based on the 	fact 	that 	that 	excerpt 	is
irrelevant, 	and as 	the ALJ's ultimate 	conclusions were 	not based
upon that 	information, 	we 	need not decide here under what
circumstances 	notice 	to 	the parties 	and opportunity to 	respond 	is
mandated before 	an ALJ 	takes 	official 	notice 	of 	an 	earlier 	case
between the 	same parties.
w	
3

of 	the proposed decision that 	refers 	to 	and quotes 	from the
earlier Temple City 	case.
2. 	Exception to ALJ's 	Drawing of Adverse 	Inference 	as 	to
Witnesses' Credibility.
The District objects 	to the ALJ's drawing of 	an adverse
inference 	as 	to Richard Anthony's 	(Anthony) 	credibility with
reference 	to what occurred 	in the 	1986-89 	contract 	negotiations.
Both Association and 	District witnesses 	testified 	over 	the
significance 	and placement 	of 	the 	asterisks 	in Appendix A of 	the
contract. 	The Association contended that the 	location of 	those
asterisks 	required the District, 	for the 	entire three year
contract term, 	to make a 	contribution equivalent to the 	cost
(whatever it might be) 	of the Blue Cross 	Health Plan 	for the
employee and one dependent, 	together with the 	cost of 	the other
asterisked mandatory plans 	and options. 	The District's
witnesses, 	including Anthony, 	testified that the asterisks
applied 	only to 	the 	second year of 	the 	contract, 	and 	for the
third year there was 	no 	agreement on any 	amount.
Our review of 	the record has 	revealed no basis 	upon which 	to
disturb 	the ALJ's 	credibility 	determinations 	concerning 	the
significance 	and placement 	of 	the asterisks. 	The 	credibility
determination challenged by the District was based, 	in part, 	on
the ALJ's 	finding of 	fact that Anthony was 	"mistaken" 	about 	the
testimony of 	another witness 	he heard 	testify on a prior day 	of
the unfair hearing. 	(See Proposed Decision, 	p. 	11-12, 	fn. 	6.)
Significantly, 	the ALJ discredited Anthony's 	testimony as 	to 	the
A4

asterisks 	and 	reached the 	conclusions 	he 	did on Anthony's
testimony 	based 	not 	only upon 	the 	specific 	inaccuracy 	referenced
in the 	District's 	exceptions, 	but 	also upon his 	observations
that: 	(1) 	had the District 	instructed the mediator that the
asterisks 	did not 	apply to 	the third 	contract year, 	the mediator
would 	likely have 	communicated that 	fact 	to 	the Association; 	(2)
the 	contract 	language does 	not 	contain any qualification
regarding applicability of the asterisks; 	and 	(3) 	the District's
assertion to the Association of 	a 	third year exclusion was 	so
untimely as 	to cast doubt on its validity. 	In fact, 	the ALJ
stated: 	"Moreover, 	the overall record supports 	a 	finding that
the 	District 	never 	clearly 	communicated 	to 	the 	mediator 	the
condition for the third contract year." 	(Proposed decision, 	pp.
13-14.)
The 	Board normally gives 	deference to the 	credibility
determinations of 	its ALJs, 	in recognition of the fact that, 	by
virtue of witnessing the 	live testimony, 	they are 	in a much
better position to 	accurately make 	such determinations 	than 	the
Board, 	which reviews 	only the 	cold transcript of the hearing.
(Santa Clara Unified School District 	(1979) 	PERB Decision No.
104, 	pp. 	12-13; 	Beverly Hills Unified School District 	(1990) 	PERB
Decision No. 	789, 	pp. 	8-9.) 	Based upon our review of the entire
record, 	we reject the District's 	challenge to the ALJ's
credibility 	determination and to 	his 	findings 	of 	fact based 	in
part 	on that determination.
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3. 	Exception to the 	Finding of an Unfair Practice Based
Upon District Superintendent's 	September 27. 	1988 	and October 24.
1988 	Written Communications.
The 	District's 	analysis 	in 	support 	of 	its 	exception to 	the
ALJ's 	finding of 	an unfair practice based on his 	analysis 	of 	the
September 27, 	1988 and October 24, 	1988 communications 	is 	sketchy
at best. 	The District 	appears 	to be arguing that 	the ALJ relied
upon these written 	communications 	"to 	effectively vitiate 	the
entire 	bargaining 	effort 	the 	District went 	through prior 	to 	its
adoption of 	its 	last, 	best and final offer." 	These documents
were not, 	however, 	relied upon by the ALJ 	in finding a 	3543.5(c)
violation, 	but rather as 	the basis of his determination that 	a
3543.5(a) 	violation occurred. 	Thus, 	the ALJ found:
Based on all of the above, 	the September 27,
1988, 	communication tends 	to interfere with
employees' 	protected rights to 	file
grievances 	and 	to 	be 	represented by 	their
union in employment matters. 	Hence, 	the
District violated 	EERA 	section 	3543.5(a) 	by
issuing the document 	to 	employees.
(Proposed decision at p. 	37.)
The ALJ 	further 	found:
Under all the circumstances present here, 	the
District violated 	EERA 	section 	3543.5(a) 	by
issuing the October 	14, 	1988, 	letter to its
employees.
(Proposed 	decision 	at p.38.)
Next, 	the District argues 	that the ALJ's 	finding of an
unfair practice based upon these 	communications 	"has 	a 	great
'chilling' 	effect an 	[sic] 	any type of communications by a public
employer with 	its 	constituency which 	is 	the public 	at 	large."
In Carlsbad Unified School 	District 	(1979) 	PERB Decision
6

No. 	89, 	p. 	10, 	the Board set forth the test for determining when
an employer's 	actions 	interfere with the 	rights 	of 	employees
guaranteed by EERA. 	Under the Carlsbad test, 	a 	charging party
establishes 	a prima 	facie 	case 	of 	interference 	under EERA 	section
3543.5(a) 	only 	"[w]here 	the 	charging party establishes 	that 	the
employer's 	conduct tends 	to or does 	result 	in 	some harm to
employee 	rights 	granted under 	the 	EERA. 	. . . " 	As 	more 	fully
explained below, 	employer 	speech causes 	no 	cognizable harm to
employee 	rights 	granted under EERA unless 	it contains 	"threats 	of
reprisal or force or promise of a benefit." 	Therefore, 	a prima
facie 	case 	of 	interference 	cannot 	be 	based on 	speech 	that
contains 	no 	"threats 	of 	reprisal or force or promise of 	a
benefit."
In Rio 	Hondo Community College 	District 	(1980) 	PERB 	Decision
No. 	128, 	pp. 	18-20, 	this Board looked to the National Labor
Relations Act 	(NLRA) 	for guidance 	in formulating a test 	for
determining when 	employer 	communications 	will 	be 	considered
violative of the provisions of EERA. 	Specifically, 	the Board
examined 	section 8(c) 	of the NLRA which provides:
The expressing of any views, 	argument, 	or
opinion, 	or the disssemination 	[sic] 	thereof,
whether in written, 	printed, 	graphic, 	or
visual 	form, 	shall not constitute or be
evidence 	of 	an unfair 	labor practice 	under
any of the provisions of this Act, 	if 	such
expression contains 	no 	threat of 	reprisal 	or
force or promise of benefit.
Noting that EERA contains 	no provision parallel 	to 	section 	8(c),
the 	Board nevertheless 	found that 	"a public 	school 	employer 	is
nonetheless 	entitled to 	express 	its 	views 	on employment 	related
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matters 	over which 	it has 	legitimate 	concerns 	in order 	to
facilitate 	full 	and 	knowledgeable debate" 	and 	set 	forth 	the 	test
to be applied as 	follows:
The 	Board 	finds 	that an employer's 	speech
which 	contains 	a 	threat 	of 	reprisal 	or 	force
or promise of benefit will be perceived as 	a
means 	of 	violating the Act and will,
therefore, 	lose 	its protection and constitute
strong evidence 	of 	conduct which 	is
prohibited by 	section 	3543.5 	of 	the 	EERA.
(At p. 	20.)
Whether the 	employer's 	speech 	is 	protected or 	constitutes 	a
proscribed 	threat 	or promise 	is 	determined by 	applying 	an
objective rather than a 	subjective 	standard. 	(California 	State
University 	(1989) 	PERB Decision No. 	777-H, 	Proposed Decision,
p. 	8.) 	Thus, 	the charging party must 	show that the 	employer's
communications 	would 	tend 	to 	coerce 	or 	interfere with 	a
reasonable 	employee 	in the exercise of protected rights. 	The
fact 	that employees 	may interpret 	statements, 	which are 	otherwise
protected, 	as 	coercive does 	not necessarily render those
statements 	unlawful. 	(Regents 	of 	the University of 	California
(1983) PERB Decision No. 	366-H, fn. 	9, pp. 	15-16; 	B.M.C.
Manufacturing Corporation 	(1955) 	113 NLRB 	823, 	[36 LRRM 	1397].)
The 	Board has 	also held 	that 	statements 	made 	by an 	employer
are to be viewed 	in their overall 	context 	(i.e., 	in light of
surrounding circumstances) 	to determine 	if they have a 	coercive
meaning. 	(Los Angeles Unified School District 	(1988) 	PERB
Decision No. 	659, 	p. 	9 and cases cited therein.)
Additionally, 	the Board has 	placed 	considerable weight 	on
the 	accuracy of 	the 	content 	of 	the 	speech 	in determining whether
8

the 	communication constitutes 	an unfair 	labor practice.
(Alhambra City and High School 	Districts 	(1986) 	PERB 	Decision
No. 	560, 	p. 	16; 	Muroc Unified School District 	(1978) 	PERB
Decision No. 	80, 	pp. 	19-20.) 	Thus, where employer speech
accurately describes 	an event, 	and does 	not on its 	face 	carry the
threat of reprisal or force, 	or promise of benefit, 	the Board
will 	not 	find the 	speech unlawful.
a. 	Communication of September 	27 f 	1988
In this 	case, 	the District 	is accused of making two
inappropriate 	communications 	to 	employees. 	We 	agree with the ALJ
that the September 27, 	1988 	"Report on Negotiations" 	would tend
to 	interfere with employees' 	protected rights 	to 	file grievances
and 	to 	be 	represented by 	their 	exclusive 	representative 	in
employment matters. 	Specifically, 	we agree with the ALJ's
finding 	that 	the portions 	of 	the 	report 	stating 	that 	negotiations
on 	financial 	matters 	could not 	continue 	and 	no 	financial
commitments 	could be made until 	"all grievances 	are resolved" 	are
threatening and 	coercive. 	We 	also 	agree 	that the 	District's
statement 	that 	it 	could not 	even 	"offer" 	salary percentage
increases 	as 	long as 	the 	grievances were being processed
constitutes 	threat 	of 	a punishment 	(delay 	in economic 	benefits)
based on the unit members' 	exercise of their rights 	to 	file
grievances 	and participate 	in related 	activities.
We do not adopt, 	however, 	the ALJ's 	finding that the
statements 	by 	the 	District blaming 	the Association 	for the
breakdown 	in negotiations, 	and 	comparing the Association
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unfavorably 	to 	exclusive 	representatives 	for other units 	who
settled 	in a 	"cooperative and timely" 	manner, 	were 	improper.
While 	this 	portion of 	the report may have been critical 	of 	the
Association, 	we 	find that the District did not 	express 	a
preference 	for one organization over another but, 	rather, 	merely
stated 	its 	opinion on the 	character and 	status 	of 	its
negotiations 	in a manner that 	cannot be 	construed as 	threatening
or 	coercive. 	The ALJ 	cited no 	authority to 	support his
supposition that, 	in circumstances 	such as these, 	an employer
violates 	the Act merely by being 	critical 	of 	a union or making
unfavorable 	comparisons 	with 	exclusive 	representatives 	for 	other
units.
Furthermore, 	we do not adopt that portion of 	the ALJ's
proposed 	decision wherein he 	characterizes 	the 	District's
statement of 	intention to 	call 	in professional 	negotiators 	as 	a
threat. 	We 	find that 	any 	implied threat 	of 	economic 	impact 	from
such a decision is 	too attenuated to take the 	statements 	out of
the 	realm of 	protected 	employer 	free 	speech.
b. 	Communication of October 24. 	1988
Regarding the October 24, 	1988 	communication, 	we agree with
the ALJ 	that 	some 	statements 	in the 	document 	can be 	construed 	as
promising benefits 	to 	employees who have 	not 	filed grievances.
4. 	Exception to ALJ's 	Conclusion That. 	Having Committed an
Unfair Labor 	Practice by 	Unilaterally Changing 	the 	Status 	Quo 	on
Benefits, 	the District Was 	Not Lawfully Entitled to 	Implement 	its
Last. 	Best and Final Offer on Health and Welfare Benefits.
10

The District argues 	that 	the 	fact 	it unlawfully 	implemented
a 	unilateral 	change 	should 	not preclude 	it 	from 	implementing 	its
"last, 	best and final offer." 	We 	find, 	contrary to the
contentions 	of the District, 	that the ALJ presented a 	cogent
argument 	based on relevant 	case 	law to 	support his 	conclusion
that 	the District was 	not entitled to 	implement 	its 	"last, 	best
and 	final" 	offer, 	having already 	illegally 	altered the 	status 	quo
during the negotiations process. 	In short, 	the right to
implement the 	"last, 	best and final" 	offer is dependent on having
first bargained 	in good 	faith 	through 	the 	exhaustion of 	statutory
impasse procedures.
In another exception, 	the District 	contends 	that 	the ALJ
erred in finding that the District could not 	implement 	its 	"last,
best 	and final" 	offer in light of his 	conclusion that the
District 	engaged 	in 	"overall 	good 	faith bargaining 	for a 	1990
contract." 	The District misconstrues 	the ALJ's 	decision.
PERB uses both a 	"per se" 	and a 	"totality of 	conduct" 	test
in 	determining whether 	a 	party's 	negotiating 	conduct 	constitutes
an unfair practice, 	depending on the 	specific 	conduct 	involved
and its 	effect on the negotiating process. 	(Regents 	of 	the
University of California 	(1985) 	PERB Decision No. 	520-H; 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51.) 	The
duty 	to 	bargain 	in good 	faith 	requires 	the parties 	to 	negotiate
with 	genuine 	intent 	to reach 	agreement 	and 	a 	"totality 	of
conduct" 	test 	is 	generally applied to determine 	if 	the parties
have bargained in good faith. 	This 	test 	looks 	to the 	entire
11

course 	of 	negotiations 	to 	see whether the parties 	have 	negotiated
with 	the 	required 	subjective 	intention of 	reaching 	an agreement.
Certain acts 	have 	such potential 	to 	frustrate 	negotiations 	and
undermine 	the 	exclusivity 	of 	the bargaining 	agent 	that 	they 	are
held 	to 	be 	unlawful without 	any 	finding 	of 	subjective 	bad 	faith.
These are 	considered 	"per 	se" 	violations. 	(Pajaro Valley Unified
School District, 	supra.)
While the ALJ, 	applying the 	"totality of conduct" 	test,
dismissed 	the Association's 	allegation that 	the 	District 	engaged
in a 	course 	of 	overall 	bad 	faith during the 	entire 	impasse
process, 	the ALJ 	specifically 	found that 	the District's 	failure
to maintain the 	status 	quo 	on 	fringe benefits 	constituted a
"per 	se" 	refusal to participate 	in good 	faith 	in the 	impasse
procedures. 	Under existing case 	law cited by the ALJ, 	such a
finding 	justifies 	the ALJ's 	conclusion that 	the 	District was
precluded from implementing its 	"last, 	best and 	final" 	offer on
fringe benefits 	at the conclusion of 	the 	impasse proceedings.
ASSOCIATION'S 	EXCEPTIONS
The Association takes 	exception to 	the Order on the 	ground
that 	the Order 	is 	ambiguous 	as 	to 	the make-whole remedy accorded
the unit members. 	The Association argues 	that the 	status 	quo
ante 	can be 	restored 	if 	the District 	is 	ordered 	to pay all 	unit
members 	the difference between the 	$3,000.00 	and the
contractually mandated 	$4,407.10 	for the 	period of 	the 	1988-89
school year 	(the third year of the 	contract) 	up to the point 	in
time when the District adopted its 	"last, 	best and final" 	offer
12

of $3,500.00. 	Thereafter, 	unit members 	should be paid the
difference between $3,500.00 	and 	$4,407.10. 	The Association
further 	contends 	that the 	unit members 	should be 	allowed 	the
opportunity 	to purchase 	life 	insurance 	now and 	to put 	the 	balance
of 	the 	money 	into 	their 	flexible 	spending 	accounts 	to pay 	for
uncovered medical 	expenses. 	We decline 	to 	adopt 	the 	suggestion
proffered by the Association. 	The Order 	set 	forth 	in the
proposed decision provides 	a make-whole 	remedy and no more. 	The
Order 	is 	consistent with orders 	issued by this 	Board 	in other
unfair practice 	cases wherein this 	Board has 	found 	a 	unilateral
change 	in health benefits 	to have 	occurred. 	(See Oakland 	Unified
School District 	(1980) 	PERB Decision No. 	126, 	pp. 	9-10; 	Compton
Community College District 	(1989) 	PERB Decision No. 	720-a, 	p. 	5.)
To clarify the Order, 	however, 	we will 	specify that the monetary
losses 	that 	are 	compensable are 	"out of pocket monetary 	losses."
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record in this 	case, 	and pursuant 	to 	EERA 	section
3541.5(c), 	it is hereby ORDERED that the District, 	its governing
board and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the 	status 	quo regarding
fringe benefits.
2. 	Interfering with the Association's 	and employees'
rights 	to 	file 	grievances 	and 	exercise rights 	under the
Educational 	Employment Relations Act.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Compensate unit employees 	for out of pocket
monetary 	losses 	incurred as 	a 	result of 	altering the 	status 	quo
concerning fringe benefits, 	measured by the 	cost of 	the options
marked with 	an asterisk on Appendix A of 	the 	1986-89 	contract
between the 	District and Association. 	The 	District's 	obligation
to make 	employees whole 	for 	such 	losses 	covers 	the period
beginning with October 	1., 	1988, 	and runs until the Association
and 	the 	District 	reach 	agreement 	or 	exhaust 	impasse procedures 	in
good 	faith over the 	subject, 	whichever occurs 	first.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post at
all work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	insure that 	this
Notice 	is 	not reduced in 	size, 	defaced, 	altered or covered by any
material.
3. 	Written notification of the actions 	taken to 	comply
with 	this 	Order 	shall be made 	to the Los Angeles 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with her 	instructions.
Members 	Craib and Camilli 	joined 	in this 	Decision.
14

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case Nos. 	LA-CE-2789 	and
LA-CE-2800, 	Temple City Education Association, 	CTA/NEA v. 	Temple
City Unified School 	District, 	in which all parties 	had the 	right
to participate, 	it has 	been found that the Temple City Unified
School District 	(District) 	violated sections 3543.5(a), 	(b) 	and
(e) 	of the Educational Employment Relations Act 	(Act). 	The
District 	violated the Act when 	it 	changed the 	status 	quo 	in unit
members' 	fringe benefits beginning with the 	1988-89 	school year.
It 	also 	violated 	the Act when Superintendent Wesley 	Bosson 	issued
two 	improper written communications 	to 	employees 	on September 	27,
1988 and October 24, 	1988.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the 	status 	quo regarding
fringe benefits.
2. 	Interfering with the Association's 	and 	employees'
rights 	to 	file 	grievances 	and exercise 	rights 	under the
Educational 	Employment 	Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Compensate unit employees 	for out of pocket
monetary 	losses 	incurred as 	a 	result 	of 	altering the 	status 	quo
concerning 	fringe benefits, 	measured by the cost of 	the options
marked with 	an asterisk on Appendix A of 	the 	1986-89 	contract
between the 	District 	and Association. 	The 	District's 	obligation
to make 	employees whole 	for 	such 	losses 	covers 	the period
beginning with October 	1, 	1988, 	and runs until the Association
and 	the 	District 	reach 	agreement 	or 	exhaust 	impasse procedures 	in
good 	faith over the 	subject, 	whichever occurs 	first.
Dated: 	TEMPLE 	CITY 	UNIFIED 	SCHOOL 	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
TEMPLE 	CITY EDUCATION ASSOCIATION
CTA/NEA,
Charging 	Party,
v.
TEMPLE 	CITY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case Nos. 	LA-CE-2789
LA-CE-2800
PROPOSED 	DECISION
(4/12/90)
Appearances: 	Charles R. 	Gustafson, 	Attorney, 	for Temple City
Education Association, CTA/NEA; 	John J. 	Wagner, Attorney, 	for
Temple City Unified 	School 	District.
Before Manuel M. 	Melgoza, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The Temple City Education Association, 	CTA/NEA 	(Union, 	TCEA
or Charging Party) 	filed Unfair Practice Charge 	LA-CE-2789 	on
October 6, 	1988, 	and LA-CE-2800 on November 7, 	1988. 	The General
Counsel's 	Office 	of 	the Public 	Employment 	Relations 	Board 	(PERB
or Board) 	issued a Complaint on January 	17, 	1989, 	based on both
charges. 	The 	charges were 	formally 	consolidated on January 	20,
1989. 	The Temple City Unified School District 	(District,
Respondent or Employer) 	filed an Answer to 	the Complaint 	on
January 26, 	1989.
A PERB 	administrative 	law 	judge 	conducted 	a 	settlement
conference between the parties on February 	17, 	1989. 	The parties
did not 	settle the dispute, 	and the 	case was 	scheduled for a
formal 	evidentiary 	hearing.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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The 	TCEA 	filed a 	Motion to Amend 	the 	Complaint 	and 	an
Amended Unfair Practice Charge on March 21, 	1989. 	After giving
the 	Respondent an opportunity to 	file a reply, 	the Motion was
partially granted by 	the 	undersigned via 	Order dated April 	25,
1989.
As amended, 	the Complaint alleges, 	essentially, 	that the
District: 	a) 	failed to participate 	in good faith 	in PERB's
impasse procedures 	evidenced by 	statements 	made 	at 	and 	away 	from
the bargaining table; 	b) 	failed to participate 	in good 	faith 	in
the 	impasse 	procedures 	by 	conditioning 	agreement 	on 	non-mandatory
subjects 	of bargaining; 	c) 	interfered with the exercise of
employee 	rights 	under the 	Educational 	Employment 	Relations Act1
(EERA or Act) 	through written statements 	to 	employees; 	and d)
unilaterally 	implemented 	a 	fringe benefits 	contribution rate 	in a
manner 	inconsistent with the 	status 	quo.
1The EERA is 	codified at Government Code 	section 	3 540 	et
seq. 	The pertinent portions 	read:
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).
22

On April 	26, 	1989, 	the first day of the evidentiary hearing,
the matter was 	continued until May 	18, 	1989, 	to allow the
District 	to prepare 	a 	response 	and defense 	to the 	amendment 	to
the 	Complaint. 	The 	Respondent 	filed an Answer to the Amended
Complaint and a Motion to Dismiss 	the Amendment on May 	3, 	1989.
Respondent 	argued 	that the 	matter 	should be 	deferred 	to binding
arbitration. 	The Charging 	Party 	filed a response 	to 	the Motion
on May 12, 	1989.
When the hearing resumed on May 	18, 	1989, 	the parties
presented testimony, 	documents 	and 	further argument 	on the Motion
to 	Dismiss. 	The undersigned denied the Motion to 	Dismiss 	on the
record. 	The hearing was recessed, 	at Respondent's request, 	so
the 	District 	could appeal 	the 	ruling to the 	Board 	itself.
The Respondent appealed the ruling on about June 	8, 	1989.
The Union filed a Response to the Appeal. 	In Temple City Unified
School District 	(1989) 	PERB Order No. 	Ad-190, 	the Board affirmed
the undersigned's 	ruling.
The 	evidentiary hearing resumed on October 	3 	and 	4, 	1989.
After 	the hearing 	ended, 	the Charging Party 	filed an opening
brief. 	The Respondent filed a reply brief on January 	3, 	1990.
The Charging Party 	elected 	not to 	file 	a 	closing brief. 	At 	the
end of the briefing schedule, 	January 29, 	1990, 	the case was
submitted 	for proposed decision.
w	3

FACTS
The 	events 	in question occurred during the 	term of 	a
collective bargaining agreement 	(contract) 	between the parties.
The contract was 	effective 	from November 	1, 	1986, 	through June
30, 	1989. 	In the second year 	(academic year 	1987-88) 	of the
contract, 	the Union had the right to reopen for negotiations 	only
two 	subjects 	- 	salaries and calendar. 	In the third year 	(1988-
89), 	either party could reopen negotiations on salaries, 	fringe
benefits, 	calendar, 	and two other articles of their choice.
The contract, 	at Article I 	(Agreement) 	also contained the
following 	paragraph:
7. 	The District agrees 	to 	increase 	its
contribution to 	each unit member's 	fringe
benefits 	equal 	to the 	increase 	in premiums.
Article 	XV of 	the 	contract 	(Health and Welfare 	Benefits)
specified the available 	fringe benefits. 	The 	entire provision
reads:
1. 	The District agrees to provide each
eligible unit member with 	fully
paid 	health 	and welfare 	benefits
during the 	term of 	this Agreement.
The 	fully paid 	coverages 	include
the 	following:
a) 	the unit member's
participation in one of 	the medical
plans 	offered by 	the 	District 	and
described 	in Appendix A of 	this
Agreement;
b) 	the unit member's
participation in one 	of 	the dental
plans 	offered by the 	District 	and
described 	in Appendix A of 	this
Agreement;
4

c) 	the unit member's
participation in the vision plan
offered by the 	District 	and
described 	in Appendix A of 	this
Agreement;
d) 	the unit member's
participation 	in a 	basic 	term 	life
insurance plan offered by 	the
District 	and described 	in Appendix
A of 	this Agreement.
2. 	The District's 	contribution toward
each unit members 	health and
welfare benefits 	shall be 	the
equivalent of 	the total 	cost of 	the
options 	marked with 	an asterisk on
Appendix A. 	Unit members who
choose a 	set of options which
exceed the total 	cost of 	the
options 	marked with 	an 	asterisk
must 	sign a payroll deduction for
the difference. 	Unit members who
choose a 	set of options which cost
less 	than the total 	cost of the
options 	marked with 	an 	asterisk may
apply the unused 	fund at the
teachers 	discretion 	for health and
welfare purposes, 	as 	listed in
Appendix A.
"Appendix A" 	is 	a 	form entitled 	"health and welfare benefit
selection 	sheet." 	The 	form has 	blanks 	for 	each unit member's
name, 	address, 	etc. 	In addition, 	the sheet lists various
mandatory medical, 	mandatory dental, 	mandatory vision, 	mandatory
life, 	optional life, 	and optional accident insurance plans.2
Across 	from each insurance plan is 	the cost of 	each plan and/or
option 	for 	the particular year that 	the 	selection 	sheet
2According to uncontradicted testimony, 	the District has
traditionally 	required 	employees 	to 	buy 	certain types 	of
employer-sponsored 	insurance plans.
5

designated.3 The 	sheet 	contained 	a 	column 	for 	calculating 	the
premium 	of 	each 	selection 	and 	for 	subtracting 	the 	District's
contribution 	from the 	total 	if 	the premiums 	exceeded 	that
contribution.
If 	the District's 	contribution exceeded the total 	cost of
the benefits, 	the surplus was put in a 	"flexible 	spending
account" 	for the employee. 	The 	employee could use the account
to, 	inter alia, 	pay for uncovered medical expenses. 	If the cost
of 	the benefits 	exceeded the District's 	contribution, 	the
District 	deducted 	the difference 	from the 	employee's wages.
The 	"asterisks" 	mentioned 	in the 	contract were distributed
only within the mandatory 	insurance plans 	and 	located 	at 	specific
options. 	Appendix A was 	a 	copy of the 	"health and welfare
benefit 	selection sheet" 	for the 	1986-87 	school year. 	The
asterisks 	were distributed on that 	sheet 	as 	follows:
Medical 	- Blue Cross 	(Base 	+) 	employee and one dependent
Dental 	- CDS 	(Delta Dental) 	employee only
Vision - 	Medical 	Eye 	Services 	of California
Mandatory Life 	- 	United Olympic 	Life 	- 	employee and
dependent 	coverage
On the 	sample 	sheet, 	the premiums 	in the asterisked areas
totalled $2 70.00, 	an amount equalling the District's 	contribution
for the 	1986-87 year. 	Therefore, 	if the employee made choices
3For example, 	in 1986-87, 	the cost for 	"Blue Cross Base +"
for the 	employee only was 	$163.00, 	for employee and one
dependent, 	$2 33.00, 	and for employee and two or more dependents,
$270.00. 	The cost of Health Net was $99.17, 	$200.51, 	and $288.27
respectively. 	The dental, 	vision, 	and life insurance premiums
remained 	constant whether 	or 	not 	the 	employee 	elected 	coverage
for dependents.
66

outside the asterisked areas, 	he/she would have a 	surplus 	or
deficit depending on the total 	cost 	of 	the options 	selected.
In the second year of the contract 	(1987-88), 	the premiums
increased 	for most 	(all but Health Net) 	of the medical plans.
The premiums 	for the dental 	insurance plans 	remained the 	same, 	as
did those 	for the optional 	life 	insurance plans. 	The premiums
for one of the vision plans 	remained the 	same, 	but a 	second plan,
underwritten by PMI, 	was 	added at a 	slightly higher premium than
the 	other vision carrier's 	plan. 	The premiums 	for the mandatory
life 	insurance plans 	rose 	slightly.
For the 	1987-88 	school year, 	the District made a tenthly
contribution 	of$300.00 	toward 	each unit 	member's 	benefit
package. 	The Employer's 	contribution of 	$300.00 was 	equivalent
to 	the premiums 	for an employee 	and one dependent under the
previous 	medical 	plan and 	under 	the 	other 	options 	asterisked 	in
Appendix A ($299.88).4
In the third year 	(1988-89) 	of the contract, 	the Union chose
fringe benefits 	as 	one of 	the topics 	for reopener negotiations.
In March 	1988, 	TCEA proposed that the District: 	increase 	its
contribution 	sufficient 	to 	add a more 	expensive 	dental plan
(Delta Dental Family Plan); 	add a tax 	sheltered annuity program
and an income protection plan to the 	fringe benefit 	options; 	and
establish 	a 	committee 	to 	explore 	the possibility of 	including
4The Blue Cross 	(Base+) 	premiums 	for that year were $213.00
(employee only) 	and $263.00 	(employee and one dependent).
77

unit members 	in the 	Social 	Security program.5 The 	District
countered 	in May 	1988, 	with the 	following proposal.
HEALTH AND WELFARE 	BENEFITS
1. 	The District agrees 	to provide each
eligible 	unit 	member with 	a 	medical
plan as 	offered by 	the 	District 	and
described 	in Appendix A of 	this
agreement.
2. 	The District's 	contribution toward
each unit members 	health and
welfare benefits 	shall 	be the
equivalent of 	the total 	cost of the
options 	marked with 	an 	asterisk 	on
Appendix A. 	Unit members who
choose a 	set of 	options which
exceed the 	total 	cost 	of 	the
options 	marked with 	an 	asterisk
must 	sign a payroll 	deduction for
the difference. 	Unit members who
choose a 	set of 	options which cost
less 	than the total 	cost of the
options 	marked with 	an 	asterisk may
apply 	the unused 	fund 	at 	the 	unit
members 	discretion 	for health 	and
welfare purposes, 	as 	listed in
Appendix A.
The District did not 	attach an 	"Appendix A" 	to the proposal.
Union witnesses 	testified 	they believed the 	reference was 	to
Appendix A 	in the 	existing 	contract. 	Assistant 	Superintendent
Richard Anthony, 	on the District's 	negotiating team, 	testified
that 	the 	appendix mentioned 	in the 	counterproposal 	referred 	to 	an
appendix which was 	still 	"being developed." 	In other words,
there would be 	another Appendix A to negotiate. 	The 	District
never 	explained 	this 	alleged meaning 	to 	the 	Union and 	no 	new
5The 	Union also 	submitted 	reopener proposals 	on the 	subjects
of 	salaries 	and transfers.
8

appendix was 	ever given to the Union's 	team. 	There 	is 	no
evidence 	that 	the 	District 	ever developed 	a 	new Appendix A.
After 2 	or 3 bargaining sessions, 	the parties 	could not
reach agreement on the reopened 	articles. 	The 	last 	face-to-face
negotiating 	session occurred 	in August 	1988.
In mid to 	late August 	the District distributed a 	fringe
benefit 	selection 	sheet 	for unit members 	to 	select 	their options.
The 	timing of 	the dissemination appears 	to have 	no 	connection
with the negotiations. 	Rather, 	the District traditionally
distributed the 	sheets weeks 	before 	the 	start of 	the 	school 	year,
to be 	completed 	and returned by 	the 	second week of 	September.
Normally, 	the health 	insurance 	contracts with the various
carriers began on October 	1 	of 	each 	school year.
The 	selection 	sheet 	showed 	the 	District's 	contribution was
$300.00 	- 	the amount contributed for the previous 	school 	year.
However, 	the premiums 	of 	the medical plans 	had 	increased to the
point where 	$300.00 was 	not 	enough to pay 	for all 	of 	the
previously asterisked plans 	and options. 	Indeed, 	the Blue Cross
(Base 	+) 	plan covering the employee only, 	by itself 	cost $299.05.
If 	employees 	selected that option, 	the District's 	contribution
would 	not 	have 	been 	enough to purchase 	any 	of 	the 	other mandatory
insurance plans.
On about September 	14, 	1988, 	the Union filed a grievance on
behalf of 	Janice Murasko, 	TCEA president. 	The grievance alleged
that 	the 	District 	breached 	the 	contract by 	limiting 	its 	benefit
contribution to 	$300.00 	tenthly. 	TCEA contended that 	the
. . . .
9
9

contract required the District to 	contribute 	$440.71. 	This
amount equalled the total premiums 	of Blue Cross 	(Base 	+) 	for the
employee and one dependent 	($402.91), 	Dental 	for employee only
($27.62), 	Medical Eye Services of California for the employee
only 	($7.26), 	and United Olympic Life for the employee and
dependent coverage 	($2.88). 	About fifty similar grievances were
filed on behalf 	of 	other unit members.
The 	reopener negotiations 	proceeded 	to 	impasse 	and 	through
mediation without agreement. 	After the parties 	exhausted the
impasse procedures, 	they were 	still unable to agree. 	Then, 	in
April 	or May 	1989, 	the District unilaterally changed 	its
contribution rate to $350.00 	tenthly. 	It was made retroactive to
October 	1, 	1988. 	Those employees who had 	selected a benefit
package 	exceeding the 	District's 	former 	contribution of 	$300.00
were reimbursed up to $500.00 	for the year. 	Those whose 	fringe
benefit package 	did 	not 	exceed 	the 	contribution were 	credited
with the 	$500.00 	difference. 	The 	credit was 	applied to 	their
flexible 	spending accounts. 	They could not, 	however, 	make
retroactive 	changes 	or purchase 	additional 	benefits 	from the
selection 	sheet.
The 	District's 	past practice was 	to allow employees 	to
select a 	benefit package 	only once. 	No 	employee 	could 	change
his/her package 	after 	initially 	selecting 	from 	the 	sheet.
•
10

A. 	The 	Bargaining 	History
One of the disputes here 	is 	over the 	significance and
placement of 	the 	asterisks 	in Appendix A of the 	contract. 	The
Union 	contends 	that 	the 	location of 	those 	asterisks 	required 	the
District, 	for the entire three-year contract term, 	to make a
contribution equivalent to the 	cost 	(whatever it might be) 	of
Blue Cross 	(Base +) 	for the employee and one dependent, 	together
with 	the 	cost 	of 	the 	other asterisked mandatory plans 	and
options. 	The 	District claims 	the 	asterisks 	applied only to the
second year of 	the 	contract, 	and 	for the third year there was 	no
agreement on any amount, 	since 	it was 	subject to reopener
negotiations.
According to TCEA negotiating team member Beverly Jones, 	the
parties 	discussed the notion of 	the 	asterisks 	at 	one 	of 	the
initial 	1986 	negotiations 	sessions. 	The Union proposed that,
instead of 	specifying dollar amounts 	for 	fringe benefits 	-
something 	that had 	always 	delayed 	agreement 	in past 	negotiations
- 	the 	two 	teams 	should 	indicate by using asterisks 	on a 	sign-up
sheet which plans would be paid by the 	District.6 	Tom Brown,
6Thomas 	Brown 	and Beverly 	Jones 	testified that 	using
asterisks was 	the Union team's 	idea. 	I 	credit their testimony in
this 	regard 	and 	discredit 	District witness 	Richard Anthony's
assertions 	to the contrary. 	Brown's 	account, 	explaining the
conversation during 	early 	negotiations 	surrounding 	the 	asterisk
idea, 	was precise and detailed. 	District witness 	Steven Hodgson
did 	not 	specifically deny 	that 	the 	Union had 	raised 	the 	idea 	of
using asterisks 	before 	impasse was 	reached. 	Brown appeared
candid while testifying on this 	subject, 	as did Jones. 	Also,
Charging Party witnesses' 	accounts 	are 	consistent with Hodgson's
testimony 	that the 	District's 	past philosophy was 	not 	to 	agree 	to
commit itself to pay future unknown costs. 	When it did agree,
Hodgson testified 	it 	signaled 	"a big departure" 	from previous
11

also 	on TCEA's 	team during the 	session, 	testified that he
explained 	to Assistant 	Superintendent 	Richard Anthony 	that 	the
asterisks were meant to 	identify those plans 	that 	the 	District
would be 	responsible 	for paying 	in 	subsequent years 	of 	the
contract. 	For the District, 	Anthony responded it was 	interested
in healthy 	employees 	and healthy 	families 	and would be happy 	to
provide a good program and plan. 	However, 	the District did not
accept the proposal 	at that time.
District 	negotiations 	team member 	Steven Hodgson 	testified
that 	the 	District was 	not willing to 	commit to unknown costs 	over
such a 	long period. 	There 	is 	no 	evidence that this 	explanation
was 	given to the Union's 	team, 	however. 	The 	subject did not 	come
up 	again until 	the parties 	were 	engaged 	in mediation after
impasse 	had 	been 	reached.
practice. 	Anthony's 	testimony that 	it was 	the District's 	team
who 	initially came up with the 	idea during mediation, 	is
discredited. 	Although Anthony's 	account was detailed, 	it was
given on the 	second day of the hearing, 	the 	first day of which
Anthony was 	in the hearing 	room when Brown and 	Jones 	gave 	their
accounts. 	And although Anthony testified with 	certainty 	that 	the
idea was 	solely the District's, 	he also testified with equal
certainty 	about 	something over which he was 	clearly 	in 	error.
Specifically, 	he asserted 	forcefully that 	Union witnesses 	had
testified 	the previous 	day 	that 	the 	asterisks were 	shown 	in the
Union's 	initial written proposal. 	The 	record plainly
demonstrates, 	however, 	that Brown and Jones both testified that
the 	Union 	first proposed the 	asterisks 	during one of 	the 	initial
sessions. 	They never 	said the 	asterisks were 	contained 	in their
initial proposal. 	Since TCEA 	submitted 	its 	initial written
proposal 	(Respondent's 	Exhibit A) 	to the District before any
negotiation 	sessions 	took place, 	Union witnesses were 	obviously
not 	testifying 	that 	the asterisks were 	contained 	in that 	initial
proposal. 	Anthony's 	suspect testimony in other areas 	- 	e.g.,
that 	during 	1988 	reopeners 	the 	District was 	developing a 	new
Appendix A to 	the 	contract, 	which was 	curiously never mentioned
nor given to the Union - 	renders his 	testimony questionable 	in
this area as well.
12

In mediation, 	no 	face-to-face discussions 	between the
parties 	took place. 	During that time, 	the District team decided
to make a departure 	from 	its previous 	unwillingness 	to 	commit to
an unknown cost of 	future 	fringe benefits. 	According to
Hodgson's 	testimony, 	the District decided to use asterisks 	to
identify the plans 	it would pay 	for, 	but 	instructed the mediator
to 	tell 	the 	Union they only applied 	to 	the 	second year 	of 	the
contract. 	This 	portion of 	Hodgson's 	testimony 	is 	discredited 	for
various 	reasons. 	It 	is based on an affirmative response to 	a
leading question from the District's 	counsel. 	Indeed, 	Hodgson's
overall 	testimony 	in this 	area 	is 	marked by 	repeated prodding
with 	leading questions.
Anthony's 	testimony 	that 	the 	District 	instructed the
mediator that 	the 	asterisks 	did 	not 	apply 	to 	the 	third 	contract
year is 	also not credited. 	There 	is 	no evidence to dispute Union
negotiators' 	testimony that 	neither the District nor the mediator
told them the 	asterisks did not 	apply to the third year. 	It 	is
implausible 	that 	the 	mediator would make 	such a material
omission, 	especially 	in light of the District's 	allegedly 	strong
.previous 	philosophy 	against 	committing 	itself 	to unknown 	costs,
and 	considering 	the 	apparent 	contradiction 	this 	would 	have
revealed with 	language in Article XV, 	paragraph 	1. 	That
provision 	states 	that 	the District will provide 	fully paid
benefits 	for the 	entire contract term.
Moreover, 	the overall 	record 	supports 	a 	finding that the
District 	never 	clearly 	communicated 	to 	the 	mediator 	the 	condition
•
13

for 	the third contract year. 	The 	Union had no 	reason to believe
there was 	such a 	condition and 	therefore was 	surprised 	to 	learn
about 	it 	for the 	first time during the processing of 	the 	fringe
benefits 	grievances 	in 	1988. 	The contract's 	language does 	not
contain any 	such qualification. 	The 	District traditionally
funded 	fringe benefits 	at a 	level which always 	included the 	cost
of the most expensive health benefit plan 	(Blue Cross 	(Base 	+•) )
for the employee and one dependent. 	The District's 	initial
reopener proposal 	alluded 	to 	an Appendix A and, 	since 	no 	such
appendix was 	attached to 	it, 	ostensibly and 	logically 	it 	referred
to the one in the existing contract, 	consistent with the
District's traditional 	funding practices. 	Therefore, 	the timing
of 	the District's 	assertion to 	the 	Union of 	a third-year
exclusion is 	also 	suspect, 	warranting the 	conclusion that the
District 	never bargained to 	exclude 	academic 	year 	1988-89 	from
the 	fringe benefit provisions 	of the 	contract.
B. 	The 	District's 	Conduct During Mediation 	in 	1988-89
The parties' 	past relationship 	is useful 	in understanding
the Respondent's 	communications 	to 	employees 	during 	impasse,
alleged to be unlawful here.
The 	PERB 	certified TCEA as 	the 	District's 	certificated
employees' 	exclusive bargaining agent on June 20, 	1977.7 There
7Official 	notice 	is 	taken of 	PERB's 	official 	representation
files Temple City Unified School District. 	LA-R-97, 	Temple City
Unified School District. 	LA-M-1621, 	and Temple City Unified
School District. 	LA-M-1908. 	Administrative agencies may
officially notice matters within their 	files. 	Antelope Valley
Community College District 	(1979) 	PERB Decision No. 	97; 	Mendocino
Community College District 	(1980) 	PERB Decision No. 	144.
14

is 	little 	evidence available about the parties' 	bargaining
relationship between 	1977 and 	1986. 	However, 	beginning at 	least
with the negotiations 	leading to the 	1986-89 	contract, 	there was
some 	antagonism.
In Temple City Unified School 	District 	(1987) 	HO-U-325 	[11
18118], 	a PERB administrative 	law judge found the District to
have violated EERA sections 3543.5(c), 	(a) 	and 	(b).8 The
decision 	stated:
The evidence, 	in sum, 	shows that the District
entered 	[the 	1986] 	negotiations with a take-
it-or-leave-it attitude. 	When the
Association 	failed 	to 	agree 	to 	the 	District's
condition that 	the 	existing 	contract be
continued 	substantially unchanged, 	the
District 	stalled 	negotiations 	for 	four
months. 	Throughout this 	time period and
until 	impasse, 	the District threatened the
Association with the 	loss 	of 	its protected
right to have dues withheld, 	an independent
violation of the EERA. 	When the District
returned to the table, 	it 	insisted to 	impasse
that the Association waive 	its 	statutory
rights 	to have dues 	deducted and to use
employee mailboxes, 	also independent
violations. 	During the negotiations prior to
impasse, 	the District refused to discuss
salary 	and 	fringe 	benefits 	until 	prior
agreement was 	reached 	on all 	other 	contract
terms. 	In addition, 	the District proposed
that 	the Association agree 	to 	a procedure
whereby 	it 	could be 	decertified 	as 	exclusive
representative 	upon a 	finding by the
District, 	a plan doubtlessly illegal under
the EERA.
8 The decision was not appealed. 	As 	such, 	the 	findings 	are
binding on the parties, 	although the decision is without
precedent for future cases. 	8 Cal. 	Admin. 	Code sections 32215
land 	32305. 	The 	findings 	in the quoted decision are 	set 	forth to
provide 	a 	background 	for the 	events 	and 	statements 	occurring
during the time 	in question.
15
'

This 	evidence 	establishes 	an intent to
subvert 	the 	negotiating process 	and an 	intent
to delay and obstruct a timely agreement, 	in
short, 	a 	failure to negotiate in good faith.
For these reasons 	it 	is 	found the 	[sic] 	the
District 	has 	violated 	EERA 	section
3543.5(c). . . .
In addition, 	it is 	found that the District
separately 	failed to 	negotiate 	in good 	faith
by 	insisting to 	impasse 	that 	the Association
agree 	to 	contractual 	language waiving 	its
statutory rights 	to dues 	deduction and use 	of
employee mailboxes. 	Finally, 	it also is
found 	that 	the 	District 	interfered with the
rights 	of both 	individual 	employees 	and the
Association 	in violation of 	EERA 	sections
3543.5(a) 	and 	(b) 	by threatening to cancel
the deduction of dues 	of Association members.
Id., 	at pp. 	21-22.
In the 	1988 	reopener negotiations, 	impasse was 	declared on
August 	29, 	1988, 	the last negotiations 	session before mediation
started.
At 	that 	session, 	the 	Union's 	team challenged the 	District's
intent 	to 	limit 	its 	fringe benefit 	contribution to 	$300.00 	per
month 	for 	10 	months. 	The TCEA offered to move the asterisks 	(on
attachment A of 	the current contract) 	to a cheaper health plan if
the 	District would agree 	to 	increase the options 	as 	the 	Union had
earlier proposed 	- 	Delta Dental Family Plan, 	tax 	sheltered
annuity and 	income protection. 	The 	Union offered to place 	the
asterisks 	in 	such a way that 	the total 	Employer contribution
would be 	somewhat 	less 	than $350.00 	per month - 	rather 	than the
$440.00 	the Union believed 	they were 	already entitled to. 	The
District 	agreed with the 	concept 	that 	the 	total 	Employer
contribution 	should be 	about 	$3500.00 	per 	employee per 	school
year. 	However, 	it rejected the offer because there were other
16

financial matters 	still 	on the 	table with undetermined 	costs.
Therefore, 	the District indicated that, 	in the meantime, 	the
contribution would remain at 	$300.00.9
In that context, 	the mediation process began. 	PERB
determined that impasse existed on August 	31, 	1988. 	As 	noted
earlier, 	the Union's 	grievances 	concerning the health and welfare
benefit contribution were 	filed on or about September 	14, 	1988.
Between September 14 and 27, 	1988, 	the parties met with a
PERB 	appointed mediator.10 The 	meeting was 	abbreviated 	and 	no
progress was made.
On September 27, 	1988, 	the District's superintendent, 	Wesley
Bosson, 	issued for distribution a document entitled, 	"Public
Report 	on Negotiations." 	The document began with 	introductory
statements 	that negotiations With CSEA, 	a union representing
another bargaining unit, 	had been completed 	"in a 	cooperative 	and
timely manner." 	It 	followed with an explanation of 	the monetary
and 	fringe benefits 	gained by employees 	in that unit. 	The 	flyer
added 	that negotiations with 	another union had 	also been
completed, 	yielding employees 	in that unit 	certain 	increases 	in
salaries 	and 	fringe benefits.
The 	bulk of 	the 	document 	then discussed negotiations 	with
TCEA. 	It reads as follows:
'Other 	employee 	bargaining 	units 	had 	already 	been 	granted 	a
fringe benefit 	contribution 	for the 	88-89 	school 	year 	of 	$350.00
per month.
10The 	exact dates 	and times 	are 	not 	sufficiently 	clear 	from
the record. 	Charging Party's 	exhibit 	7 	seems to 	indicate that
the session occurred on September 22, 	1988.
17

Once again, 	negotiations have broken down
with the teachers union. 	Although the
District was 	available 	for negotiating with
TCEA during the 	summer, 	no meetings 	could be
scheduled until August 	29, 	according to the
new TCEA President. 	At that meeting, 	impasse
was declared, 	by mutual agreement.
Subsequently over 50 	(so far) 	grievances were
filed, 	all dealing with fringe benefits.
Mediation was 	set 	for September 	22. 	The
Mediator 	ended 	mediation by 	noon and
instructed that he 	not be 	contacted until
either party changed 	its 	position.
Grievances 	- Teacher grievances 	deal with the
amount 	of 	District 	contribution already
committed to fringe benefits. 	TCEA is
interpreting 	current 	contract 	language 	as
obligating the District to 	$4,400 	for 	each
Unit Member, 	without negotiating fringe 	for
this year. 	Two years ago 	it was mutually
agreed to 	not negotiate 	for the 	second year
of the contract, 	and to negotiate the 	3rd
year of the 	3-year contract. 	This 	is 	the 	3rd
year. 	At that time asterisks were used to
determine the amount 	of 	the 	District
contribution for the 	second year 	since
negotiations were not going to occur. 	At all
times, 	all parties understood that % and
fringe would be 	negotiated 	the 	third year,
which is now.
Approximately 50 	grievances 	have been
processed 	so far at Level 	I. 	The Union is
now encouraging teachers 	to 	submit 	their
grievances to Level 	II. 	If any grievance
goes to arbitration, 	beyond Level II, 	the
process 	could take 	several months.
The district 	cannot 	agree 	to 	any 	financial
commitment until 	all 	grievances 	are
completely processed, 	including binding
arbitration. 	Once all grievances 	are
resolved, 	negotiations could continue. 	The
possible financial 	effect on the District, 	if
it were to 	lose 	arbitration could be 	as 	much
as $180,000.
% - 	No 	percentage 	increase 	has 	yet 	been
offered to the Union. 	Of 	course, 	no increase
can be offered as 	long as 	grievances 	are
18

being processed, 	due to the possible
financial 	implications 	of arbitration. 	The
current position of 	TCEA 	is 	a demand 	for 	8%.
Language 	- 	No discussion has 	yet occurred on
the 	District's position to 	freeze 	teachers 	on
the 	salary 	schedule who receive a 	less 	than
satisfactory evaluation. 	TCEA has 	maintained
an inflexible position on transfers 	and
leaves 	language. 	The District's position
remains 	that current 	contract 	language,
negotiated not long ago, 	is more than
sufficient.
Salary Schedule 	- Although TCEA has 	requested
a 	restructuring 	of 	the 	current 	Certificated
salary schedule, 	which would alter class
movement for units 	earned, 	the District
simply 	cannot 	afford 	to 	expend 	several
hundred 	thousand dollars 	to 	satisfy the
request. 	The District 	is 	not opposed to
attempting to work out a 	new 	schedule over 	a
longer period of 	time which would be
economically feasible to 	implement. 	The
District cannot meet this 	request at this
time and 	still provide a 	reasonable 	increase
to 	salaries 	and fringe benefits.
Mediation - 	There 	seems 	to be 	some confusion
as 	to what happened 	in mediation prior to the
Mediator breaking it off. 	The District was
told by the Mediator that Mr. 	Tom Brown, 	CTA
spokesman at the table, 	made this 	statement,
"the District will 	not get an agreement at 	4%
and $3,5000 	[sic] 	fringe benefits, 	nor will
it get an agreement unless 	it agrees to our
language."
The District's position in mediation 	is 	that
we 	cannot 	commit 	any dollars 	for 	negotiations
until all grievances 	had been processed
through the 	timeline 	outlined 	in the 	current
contract 	or we 	received written 	assurance
that no grievances 	(now or later) 	on the
fringe benefit matter would be 	sent, 	by the
Union, 	to binding arbitration.
Future Negotiations 	- And so we wait. 	No
further negotiations 	are planned at this
time. 	Additionally, 	for the first time in
the history of this District, 	we are now
requesting 	that 	the 	Governing 	Board 	authorize
19

the 	Superintendent 	to 	solicit bids 	from
professional 	negotiating 	firms 	for the
purpose of 	employment 	in our negotiations
with CTA/TCEA in the years 	to come.
Negotiations with the teachers' 	union has
become so unpleasant, 	uncooperative and
unproductive, 	that the expenditure request
seems 	justified at this 	time.
[Signed] Wesley A. 	Bosson, 	Ed.D,
Superintendent
TCEA mailed to 	PERB 	charge 	number 	LA-CE-2789 	on about
September 30, 	1988, 	attaching a copy of the above flyer.
On about October 24, 	1988, 	Superintendent Bosson issued
another communication, 	this 	time to those unit members who were
not among the 	50 who had filed grievances 	on the 	fringe benefit
controversy. 	The pertinent portions 	read:
The deadline 	for 	submitting a Level 	I 	grievance on the
fringe benefit matter has passed. 	I 	am aware that your
union president 	and CTA representative 	had urged you 	to
submit a grievance, 	saying 	"in order to be 	included 	in
the 	settlement, 	you must 	initiate the grievance as 	soon
as possible."
The purpose of this 	letter is 	to assure you of 	three
things:
1. 	You have a right to 	submit a grievance,
and the District would not 	interfere
with that right. 	You have always had
that right in this District 	. 	. 	. 	it's
nothing new.
2. 	Your union president 	and CTA
representative were wrong 	in telling you
that you would have to 	file 	a grievance
in order to be 	included. 	Whatever the
outcome of any arbitration, 	we would
like you to have the same benefits f
without 	necessarily 	submitting 	a
grievance.
3. 	And, 	finally, 	I want to thank you for
trusting this 	District's 	leadership.
20

You will 	not 	regret 	the 	faith that you
have put 	in us 	to be 	fair. 	(Emphasis
added.)
The parties 	next met with the mediator on about October 	25,
1988. 	Out of the Union's presence, 	the District discussed with
the 	mediator 	its 	concern over the potential 	liability 	(estimated
at 	$180,000) 	which might result 	from the grievances. 	With the
mediator's participation, 	the District prepared a proposal, 	which
the 	mediator delivered to 	TCEA.11 The 	substantive proposal
reads
I.	1 	The 	District 	cannot make 	any 	financial
commitment until 	all 	grievances 	on the
fringe benefit 	matter have been
resolved, 	withdrawn or completed 	either
the 	timeline 	for arbitration 	submittal
or arbitration itself.
2.2. 	The District is, 	however, 	interested in
discussing other issues 	of 	a non-
financial nature, 	even though a PERB
unfair 	charge 	is 	pending by TCEA on this
matter.
3. 	The 	following 	could be 	agreed upon as 	a
"package":
a. 	3% 	increase to the 	salary
schedule 	and 	extra duty
assignment 	schedule
b. 	Income protection and 	family
dental 	available as 	an option,
at no 	expense to the District
c. 	Agree to ad hoc 	committee to
work with Assistant
Superintendent to develop a
plan 	for 	conversion of 	salary
schedule 	to be presented to
11At 	this 	point, 	the 	mediator 	carried 	all 	communications
between the parties. 	There were no 	face-to-face discussions.
3
21

. . .
Board of 	Education 	for
consideration on April 	25
d. 	Agree to 	freeze 	less 	than
satisfactory teachers 	on 	the
salary 	schedule
e. 	Agree to current 	language in
last year of 	the 	contract on
Transfers 	and Leaves
f. 	Signed assurances 	of no
further 	grievance 	procedures
(binding 	arbitration 	or 	PERB
review) 	of health and welfare
matter. 	Also drop PERB unfair
When the mediator relayed the proposal to the Union, 	there
was 	no 	discussion about 	the propriety 	or 	negotiability of 	any 	of
the 	elements 	in the proposal. 	The Union's 	team did not tell
either 	the 	mediator 	or the 	District 	that 	any matter 	contained
there was 	outside the 	scope 	of 	representation or was 	otherwise 	an
improper 	subject of bargaining. 	However, 	the Union did not
accept the proposal.
The 	District 	continued to work through the mediator. 	A
subsequent proposal 	from the 	District 	did 	not provide 	for the
Union's 	dropping of 	the 	grievances 	or the unfair practice 	charge.
The parties 	did not 	arrive 	at 	a 	contract through mediation.
Their 	negotiations 	disputes 	proceeded to 	factfinding 	in 	late
November 	1988. 	Six 	issues were 	submitted 	for a 	factfinding
panel's 	consideration. 	The panel's 	final report, 	issued February
21, 	1989, 	made recommendations regarding the pending grievances.
However, 	it was not at the District's request. 	Rather, 	the
District, 	through a memorandum to PERB dated December 6, 	1988,
22

suggested 	that 	the 	fringe 	benefit 	matter be 	resolved 	separately
through the 	grievance procedure.12
The parties 	met 	after 	the 	factfinding panel 	issued 	the
report. 	The District then made a 	"last, 	best and final offer"
without 	conditions 	on the grievances 	or the unfair practice
charge. 	The proposal 	included an employer contribution rate 	for
fringe benefits 	of 	$3500 per unit member per academic 	year or
$350 per month. 	The TCEA did not accept 	it.
In the meantime, 	the District and the Union exchanged
correspondence, 	arguing over whether the 	Union had to 	submit 	all
50 	grievances 	to arbitration in order to get a remedy covering
the 	entire unit. 	The Union advocated unsuccessfully to have 	one
grievance 	serve as 	a 	"class 	action grievance." 	The District
refused to 	so 	stipulate, 	arguing 	consistently to the TCEA that
Murasko's 	grievance 	should result in a remedy, 	if any, 	only for
Murasko. 	The Union eventually dropped all but 	one 	(Janice
Murasko's) 	grievance, 	and the District implemented its 	"last,
best 	and 	final 	offer."13 That 	included the 	District's 	fringe
benefit 	contribution of 	$350 	per unit member per month,
12See 	impasse 	file, 	Temple City Unified School 	District.
LA-M-1908; 	and footnote 6, 	supra.
13The 	Union dropped 	the 	other 	grievances without 	having
obtained 	the 	stipulation 	from the 	District, 	but hoping to
successfully 	argue during 	arbitration 	that 	Murasko's 	grievance
would resolve 	the 	fringe benefit question 	for the whole unit.
This hope was based in part on the District's October 24, 	1988,
letter to 	employees described above at pages 	20-21. 	The
arbitrator 	later 	refused 	to 	consider 	the 	issues 	raised by 	the
Murasko 	grievance 	as 	applying 	across-the-board to 	other unit
members.
- -
23
12

retroactive to October 	1, 	1988. 	As of the date of this hearing,
the 	arbitrator had 	not 	issued 	an award on the remaining
grievance.
DISCUSSION
An employer's 	unilateral 	change 	in terms 	and 	conditions 	of
employment within the 	scope of 	representation is, 	absent a valid
defense, 	a per 	se refusal to negotiate and violative of EERA
section 3543.5(c). 	Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51; 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94. 	When unilateral changes occur
during EERA's 	impasse procedures, 	they are 	considered violations
of EERA section 3543.5(e). 	Moreno Valley Unified School Dist, 	v.
Public Employment Relations Bd. 	(1983) 	142 Cal.App.3d 	191 	[191
Cal.Rptr. 	60]. 	Health and Welfare benefits are enumerated
subjects 	within the 	scope 	of 	representation under EERA 	section
3543.2.
A 	collective 	bargaining 	agreement 	may 	set 	forth 	established
terms 	and conditions 	of employment. 	Grant Joint Union High
School District 	(1982) 	PERB Decision No. 	196. 	Where a contract
is 	silent 	or ambiguous, 	established policy may be determined by
examining past practice or the parties' 	bargaining history. 	Rio
Hondo Community College District 	(1982) 	PERB Decision No. 	279.
If 	the 	contractual 	language 	governing the policy 	in question 	is
not ambiguous, 	extrinsic 	evidence 	such as 	bargaining history 	is
not 	considered. 	Regents 	of 	the University of California 	(1989)
PERB Decision No. 	771-H; 	Marysville Joint Unified School District
24

(1983) 	PERB Decision No. 	314, 	at p. 	9. 	Even where the language
is 	somewhat ambiguous, 	extrinsic 	evidence may be considered only
to 	establish a meaning to which the 	contract 	is 	reasonably
susceptible. 	Victor Valley Community College 	District 	(1986)
PERB Decision No. 	570, at p. 	18.
There is 	no ambiguity in Article I, 	paragraph 7 	and the
entire Article XV of 	the 	contract 	involved 	in this 	case. 	The
former provision requires 	the 	District 	to 	increase 	unit 	member's
fringe benefits 	contributions 	in an amount 	equal 	to yearly
increases 	in premiums. 	The 	latter provisions plainly require 	the
Employer to provide fully paid medical, 	dental, 	vision, 	and basic
life insurance 	coverage. 	The District's 	contribution is
dependent 	not 	only on the 	type 	of plans 	corresponding to 	the
placement of asterisks on an appendix, 	but, 	according to the
plain 	language of paragraph 2 	of Article XV, 	by the 	cost of the
options within those plans, 	as 	specifically marked by the
asterisks. 	The 	asterisks 	on the 	appendix 	are placed on Blue
Cross 	(Base 	+) 	- 	the most expensive medical plan - 	and,
specifically, 	on the 	option 	labelled 	"employee 	and one
dependent."
The 	District argues, 	pointing to 	evidence of bargaining
history, 	that the above provisions were not meant to apply to the
third year of 	the contract. 	Such an argument 	is 	inconsistent
with the 	contract's 	plain meaning. 	Even 	if 	some ambiguity were
assumed 	for the purpose of argument, 	the 	contract 	language 	is 	not
reasonably 	susceptible to 	that meaning. 	Nowhere does 	the
25

contract 	state 	that 	the articles 	in question apply only to 	the
first two years 	of 	the contract. 	At no time during the
negotiations/mediation process 	did 	the 	District 	achieve 	an
understanding 	from the Union that 	the 	articles 	above 	did 	not
apply to the third year. 	If that were the District's 	intent,
that 	qualification never 	found 	its way 	into 	the agreement.
Certainly, 	the 	Union never considered or agreed to that
interpretation.
The 	District 	extrapolates 	from other general 	contract
provisions 	to 	conclude that 	it 	is 	not bound to 	absorb premium
increases 	during the third contract year. 	It cites Article 	I,
paragraph 5, which 	allows 	both parties 	to 	reopen negotiations
only on salaries, 	fringe benefits, 	calendar and two other
articles 	for the 	1988-89 	school year. 	From this, 	Respondent
concludes 	that the 	specific 	issue of 	the 	fringe benefits
contribution 	for the 	third year was 	excluded 	from the 	contract.
According to District witnesses, 	its 	negotiators 	interpreted the
language 	to mean that 	the 	entire 	fringe benefits 	article was
therefore not 	effective for all three years 	of 	the contract.
That view must be rejected. 	It 	is 	not 	supported by 	evidence
of 	at-table discussions 	between the parties 	demonstrating 	that
anyone 	on the Union's 	team 	shared that 	interpretation. 	No 	one
testified 	that 	that 	interpretation was 	expressed during
bargaining in the presence of TCEA's 	negotiators. 	Whether 	it was
the 	District's 	intent to 	exclude 	the third year 	from the 	contract
is 	irrelevant 	if 	it was 	never 	communicated 	to and agreed upon by
26

the 	Union's 	negotiating 	team. 	The 	fact 	that Appendix A was 	a
sample benefits 	selection form only 	for the 	86-87 	year cannot, 	by
itself, 	support a 	finding that the entire benefits provisions
were 	inapplicable 	in 88-89. 	Neither can the plain language of
the 	contract be read to mean that the 	fringe benefits provisions
were 	not 	applicable 	to 	the 	third year 	simply because 	the 	subject
could be 	reopened for negotiations. 	Quite the 	contrary, 	Article
XV, 	paragraph 	1 	unqualifiedly 	states 	that 	"[t]he District agrees
to 	provide 	each 	eligible 	unit 	member with 	fully paid health 	and
welfare benefits 	during the 	term of 	this Agreement." 	(Emphasis
added.) 	The District cites 	no precedent 	for the 	seemingly
illogical 	proposition 	that 	terms 	and 	conditions 	of 	employment 	are
automatically 	exempted 	from 	contracts 	when the 	parties
voluntarily 	elect 	to reopen them 	for 	negotiations 	during 	the
contract's 	term.
The 	District 	asks 	rhetorically why 	the parties 	would 	agree
to reopeners 	on fringe benefits 	if the District was 	already
required to pay 	for 	increases 	in premiums. 	The answer 	is 	found
simply by 	looking 	at 	evidence 	of what 	the parties 	actually did 	in
this 	case. 	The Union sought to reopen the article 	in the 	spring
of 	1988 	to include more options 	- a more expensive dental plan,
to 	add to the 	fringe benefit options, 	a 	sheltered annuity program
and 	an 	income protection plan, 	and to 	establish a 	committee 	to
explore 	the possibility of 	including 	employees 	in the 	Social
Security program 	- 	in addition to 	a 	contribution rate 	exceeding
previous 	year levels. 	Likewise, 	the District could have reopened
27

the article to, 	for example, 	add or delete plans and options,
argue 	for a reduced contribution rate, 	etc. 	Either party could
have 	reopened 	the 	article 	for purposes 	other 	than 	simply 	changing
the 	Employer 	contribution.
Even assuming, 	arguendo, 	the 	fringe benefits provisions were
suspended 	for the third contract year, 	the District 	is 	required
by 	law to maintain the 	status 	quo pending completion of
negotiations. 	Compton Community College 	District 	(1989) 	PERB
Decision No. 	720; 	Marysville Joint Unified School District,
supra. 	PERB Decision No. 	314; 	Excelsior Pet Products, 	Inc. 	(1985)
276 NLRB 	759, 	763 	[120 LRRM 	1117]; 	Hinson d/b/a Hen House market
No. 	3 v. 	NLRB 	(1970) 	428 F.2d 133 	[73 LRRM 2667].14
In San Joaquin County Employees Assn. 	v. 	City of 	Stockton
(1984) 	161 Cal.App.3d 813 	[207 Cal.Rptr. 	876], 	the Court held
that, 	pending negotiations, 	an employer must maintain the 	status
quo 	in terms 	of 	an expired 	labor 	agreement by paying 	any
increases 	in health 	insurance premiums 	needed to provide 	the
previous 	level 	of 	insurance 	coverage to employees.15
14It 	is 	appropriate to 	look at how courts 	construe
provisions 	in other 	collective 	bargaining 	statutes 	for guidance
in 	interpreting parallel 	provisions 	of 	the EERA. 	See 	San Diego
Teachers Association v. 	Superior Court 	(1979) 	24 Cal.3d 	1, 	12-13
[154 Cal.Rptr. 	893]; 	Fire Fighters Union v. 	City of Vallejo
(1974) 	12 Cal.3d 608, 	616 	[116 Cal.Rptr. 	507].
15The 	case 	involved 	an 	employer's 	bargaining 	obligations
under the Meyers-Milias' 	Brown Act 	(MMB) 	(Gov. 	Code 	section 3500
et seq.), 	a collective bargaining statute similar in many ways to
the EERA. 	Section 3 505 of the MMB requires 	a city to meet and
confer 	in good 	faith with 	employee 	representatives 	before making
any unilateral 	change 	in the 	level of wages 	or benefits. 	The MMB
has 	also been interpreted to require, 	as does the EERA, 	an
employer to maintain the 	status 	quo during negotiations. 	San
15
28

In an argument 	similar to 	the 	one 	advanced by this 	District,
the 	employer 	in that 	case 	contended 	that 	it met 	its 	obligation to
maintain the 	status 	quo by 	spending the 	same amount 	of money 	to
provide benefits 	as 	it had done under an expired memorandum of
understanding 	(contract). 	It argued that 	it was 	not bound to pay
for 	increased premiums 	and was 	justified 	in deducting 	increased
costs 	from employees' 	paychecks.
The 	Court 	held 	that 	the 	expired 	contract required 	the
employer to provide a certain level of benefits, 	not to make a
specific 	amount of premium contributions.16 Therefore, 	the
employer was 	required 	to 	absorb 	increases 	in premiums 	required 	to
maintain that 	level 	of coverage.
Here, 	the contract 	language also requires 	the maintenance of
a 	certain level 	of benefits, 	some of which the District deems
mandatory. 	While 	the 	contract provided 	for a 	specific 	amount 	of
money as 	the 	Employer's 	contribution 	for the 	first year of 	the
contract, 	it did not provide 	for a 	specific dollar amount 	for the
next 	two years 	because the premiums 	for those were 	not
Joaquin County Employees Assn. 	v. 	City of Stocktonf 	supra, 	at
p. 820.
16The 	contractual provisions 	involved 	in that 	case 	stated:
For the term of 	this 	Memorandum of
Understanding, 	the City 	shall pay
premiums 	that 	are 	necessary and
sufficient 	to provide 	substantially
equivalent 	benefits 	for
hospitalization, medical,
dental/orthodontic 	and 	vision
benefits 	that were 	in effect
January 1, 	1981.
29

ascertainable at the time the contract was 	reached. 	Rather, 	for
those 	years 	the 	contribution would be determined by 	the 	eventual
cost 	of 	options 	identified by asterisks 	on a 	sample health and
welfare benefit 	selection 	sheet.
For the third year of the contract 	(1988-89), 	the cost of
those 	options 	originally 	asterisked 	in Attachment A to 	the
contract were: 	$402.95 for Blue Cross 	(Base 	+); 	$27.62 	for Delta
Dental; 	$7.26 	for Medical Eye Services of California; 	and $2.88
for United Olympic 	Life. 	In order to maintain the 	status 	quo,
the 	District was 	required to make 	a 	total 	contribution per unit
member of at 	least $440.71.
By making a contribution of only $300 per employee, 	the
District 	therefore 	changed the 	status 	quo, 	thereby violating 	EERA
section 3543.5(e) and, derivatively, 3543.5(b).17
Even assuming 	that 	any portion of 	the 	1986-89 	contract was
ambiguous, 	it 	is determined that the bargaining history 	supports
the 	interpretations 	made above.
17An EERA section 	3543.5(c) 	violation is 	not 	found for the
following reasons. 	Although the benefit 	selection 	sheets were
distributed 	earlier, 	the 	District's 	first 	official 	announcement
to TCEA of 	the contribution rate occurred at the August 	29, 	1988,
bargaining 	session. 	It was 	at this 	session that 	impasse was
declared. 	PERB 	issued a determination of 	impasse two days 	later.
Employees 	had to make 	their 	selections 	by 	the 	second week 	in
September. 	The 	District 	implemented the 	change 	effective October
1, 	1988, 	the date that health insurance carriers' 	contracts
began. 	Hence, 	all but the 	first event occurred during impasse.
When the 	Charging Party's 	motion to amend the Complaint 	in this
case was 	partially granted, 	the 	ruling added this 	allegation to
paragraph 	5, 	one dealing only with events 	during impasse,
governed by EERA section 3543.5 	(e). 	The Charging Party did not
object 	that 	the 	amendment 	failed 	to 	allege 	an additional
violation under EERA section 3543.5 	(c).
30

Normally, 	an employer may implement its 	"last, 	best and
final 	offer" 	after the completion of 	good 	faith negotiations 	on
the 	subjects 	in question. 	See e.g., 	Modesto City Schools 	(1983)
PERB Decision No. 	291, 	at pp. 	32-33. 	Here, 	however, 	the District
implemented 	its 	last, 	best and 	final 	offer 	($350 benefit
contribution rate per employee) 	not under normal 	circumstances,
but 	in the 	context of 	a refusal 	to participate 	in good 	faith 	in
the 	impasse procedures 	- 	i.e., 	the 	failure to maintain the 	status
quo. 	By disturbing the status 	quo, 	the District unilaterally
changed 	the 	health and welfare 	benefits 	levels 	under 	the
contract, 	conduct considered per se bad faith. 	During this
period, 	the 	Employer began to 	extract monetary 	contributions 	from
some 	employees 	to pay 	for benefits 	it was 	bound to 	supply.
Moreover, 	the District did not attempt to negotiate 	a
reduction of 	its 	contribution until well 	after the unilateral
change and 	after the parties were 	involved 	in mediation. 	Its
last, 	best and final offer, 	which included a contribution of 	$350
was 	not made until post-factfinding meetings. 	It was 	the Union
that first offered in late August, 	1988, 	to reduce the
contribution to 	$350 	on the 	condition that the District 	grant 	its
other requests. 	Up to that point, 	the Employer had merely
proposed 	virtually 	identical 	language 	from 	the 	existing 	contract.
Essentially, 	once the District did attempt to bargain for a
lower contribution, 	it 	forced the Union to negotiate 	from an
altered status 	quo. 	In such 	situations, 	the mutual dispute
resolution process 	by definition ends 	because 	the 	employer 	loses
31

incentive to participate 	in the process 	since 	it has 	already
imposed terms 	it deemed 	satisfactory. 	Moreno Valley Unified
School District v. 	Public Employment Relations Bd. 	(1983) 	142
Cal.App.3d 191, 	at pp. 	197-200 	[191 Cal.Rptr. 	60]. 	For all of
these 	reasons, 	the District was 	not 	lawfully entitled to
implement 	its 	"last, 	best and final 	offer" 	on health and welfare
benefits.
The 	unilateral 	change 	affected unit 	members 	directly 	in 	at
least 	four ways. 	Those enrolling in the Blue Cross 	(Base 	+) 	for
themselves 	and 	a 	dependent were 	charged with any 	amounts
exceeding the Employer's 	contribution. 	Those employees who 	chose
another plan only 	to 	avoid having the 	difference deducted 	from
their pay were deprived of 	the 	coverage 	levels 	to which they were
entitled. 	Next, 	all employees were given fewer options 	overall
because 	of 	the 	limited 	initial 	Employer 	contribution of 	$300 	and,
later, 	because they could not make retroactive 	changes 	in the
benefit package or purchase additional benefits. 	Finally, 	even
the 	$3 50 	contribution resulted 	in less 	money going 	into unit
member's 	flexible 	spending accounts 	than they would have had
available 	if 	credited with the proper amount of 	$440.71. 	For
these 	reasons, 	the District's 	unilateral 	change 	interfered with
these 	employees' 	rights 	to be 	represented by TCEA on a mandatory
subject of bargaining. 	Hence, 	the District also violated EERA
section 3543.5(a).
The 	Union next 	contends 	the 	District violated 	the 	EERA by
conditioning agreement, 	during impasse, 	on non-mandatory 	subjects
32

of 	bargaining 	- 	dropping the 	fringe benefit 	grievances 	and
withdrawing the unfair practice 	charges 	filed with PERB. 	When
one party 	refuses 	to negotiate 	over withdrawal 	of 	grievances 	or
unfair practice charges, 	non-mandatory subjects, 	it is unlawful
for 	the 	other party to 	insist 	to 	impasse 	and during 	impasse 	upon
inclusion of 	those 	subjects 	in the agreement. 	Lake Elsinore
School District 	(1986) 	PERB Decision No. 	603. 	In the Lake
Elsinore 	case above, 	the Board held that a respondent 	is
initially 	entitled to propose 	a 	non-mandatory 	subject, 	"but
cannot 	legally 	insist upon their acceptance 	in the 	face 	of 	a
clear and 	express 	refusal 	by the Union to bargain over 	it."
However, 	merely proposing, 	during mediation, 	a nonmandatory
subject, 	is not, 	by itself, 	an unlawful insistence. 	Ibid.
Here, 	the record fails 	to 	show an unlawful 	insistence or
conditional 	bargaining. 	The 	District proposed withdrawal 	of 	the
grievances during the initial phases of 	impasse process, 	but
later proposals 	were 	not 	conditioned 	on acceptance 	of 	those
subjects. 	A District 	flyer to 	employees, 	occurring away 	from the
table, 	on September 27, 	1988, 	arguably conditioned bargaining on
the 	completion of processing of 	the 	grievances:
The 	District 	cannot 	agree 	to any 	financial
commitment 	until 	all 	grievances 	are
completely processed, 	including binding
arbitration. 	Once all 	grievances 	are
resolved, 	negotiations 	could 	continue 	. . . .
No 	[salary] 	increase 	can be offered as 	long
as 	grievances 	are 	being 	processed 	. . . .
The 	District's position 	in mediation 	is 	that
we 	cannot 	commit 	any dollars 	for 	negotiations
until 	all 	grievances 	had 	[sic] 	been processed
through 	the 	timeline 	outlined 	in the 	current
contract 	or we 	received written 	assurance
. . .
33

that no grievances 	(now or later) 	on the
fringe benefit matter would be 	sent, 	by the
Union, 	to binding arbitration.
The evidence does not show, 	however, 	that the District's
bargaining 	conduct 	comported with 	its 	admonitions 	to 	employees.
Its 	official proposal of October 25, 	1988, 	originally made in
mediation, 	stated only that 	the District 	could not 	"make 	any
financial 	commitments" 	until all 	the grievances were resolved.
Initially, 	it 	offered a proposal which 	included dropping the
grievances 	and the unfair practice charge. 	By 	later conduct,
however, 	the 	District did not 	condition agreement on those
matters 	and did make 	financial 	commitments 	- 	including 	granting
salary 	increases 	- before the grievances were processed. 	The
evidence of 	the District's bargaining conduct 	shows 	only that 	it
proposed non-mandatory 	subjects, 	but did not 	insist on them
throughout the 	impasse process. 	The District did not, 	therefore,
insist 	during 	impasse 	on nonmandatory 	subjects 	and did 	not
violate the EERA by merely proposing them. 	The 	statements 	made
by the District to 	employees 	away 	from the table will be
evaluated 	separately.18
18While 	arguably unlawful 	statements 	away 	from the 	table 	may
be 	offered as 	evidence 	to prove that bargaining 	conduct was 	also
in bad 	faith, 	the Charging Party offered 	little 	specific 	evidence
of bargaining table discussions 	for the reopener negotiations.
From this 	record, 	the away-from-the-table 	statements 	cannot be
evaluated under a 	totality-of-conduct test. 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51, 	at pp. 	4-5.
What 	little 	evidence 	exists 	of 	bargaining 	conduct 	relating 	to 	the
statements 	was 	offered primarily by 	the District 	and militates
against a finding of overall bad faith. 	See, 	e.g., 	Alhambra City
and High School Districts 	(1986) 	PERB Decision No. 	560, 	at pp.
10-12.
34

PERB 	has 	adopted National 	Labor 	Relations 	Board 	(NLRB)
precedent which holds 	that an employer has 	a protected right 	to
communicate with employees 	on employment-related matters, 	so 	long
as 	that 	communication does 	not run afoul 	of the National 	Labor
Relations Act 	section 8(c) 	standard or 	constitute an 	intent 	or
attempt 	to bypass 	the 	exclusive 	representative.19 Alhambra 	City
and High School Districts 	(1986) 	PERB Decision No. 	560, 	at pp.
15-16; 	Rio Hondo Community College District 	(1980) 	PERB Decision
No. 	128. 	Under the EERA, 	employer speech is deemed unlawful 	if
it evinces reprisals, 	discrimination, 	interference with employee
rights 	or coercion. 	Alhambra City and High School 	Districts,
supra. at pp. 	16-17.
Employers 	may 	lawfully urge 	employees 	to withdraw lawsuits
or 	unfair practice 	charges 	regarding working 	conditions 	or
attempt 	to dissuade 	employees 	from 	filing 	obviously
nonmeritorious 	grievances, 	provided those 	communications 	are
carried out in a noncoercive 	fashion. 	Rio Hondo, 	supra;
Southwestern Bell Telephone Co. 	(1980) 	251 NLRB 625, 	631 	[105
LRRM 	1246]. 	An employer may not, 	however, 	promise benefits to
those 	employees who 	think or act 	in conformity with 	its 	positions
19The National Labor Relations Act 	(NLRA) 	is 	codified at 	29
U.S.C, 	section 	151 	et seq. 	Section 8(c) 	states:
The expressing of any views, 	argument, 	or
opinion, 	or the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual form, 	shall not constitute or be
evidence 	of 	an unfair 	labor practice under
any of the provisions of this Act, 	if 	such
expression contains 	no threat of 	reprisal 	or
force or promise of benefit.
-
•
35

on 	issues 	disputed between management 	and the union. 	Rio 	Hondo.
supra, at p. 	24.
The 	NLRB has 	also 	found 	that 	employer 	statements 	linking 	the
loss 	of work and overtime 	to a union's pursuit of 	grievances 	tend
to 	create a chilling effect on the employees' 	rights 	to 	file 	and
process grievances. 	St. 	Regis Paper Company 	(1980) 	247 NLRB 745,
748 	[103 	LRRM 	1180]. 	It is 	equally unlawful 	for an employer to
announce 	to 	its 	employees 	that 	it 	is 	suspending merit 	salary
increases until grievances 	are resolved. 	H.M.S. 	Machine Works
(1987) 	284 NLRB 	1482 	[127 LRRM 	1056]. 	The reasoning is that 	such
statements place the onus 	for management's 	decision to withhold
the 	increases 	on the union who 	filed the grievances. 	Ibid. 	In
S.E. 	Nichols. 	Inc. 	(1987) 	284 NLRB 556 	[127 LRRM 1298], 	an
employer violated 	the 	NLRA by 	telling 	an 	employee 	that 	a
previously promised 	raise 	was 	being withheld 	because 	of pending
NLRB proceedings.
In this 	case, 	the District 	is 	accused of making two
inappropriate communications to employees. 	The first 	-
Superintendent Bosson's September 27, 	1988, 	"Report on
Negotiations" 	- 	must be found unlawful when read as whole 	and
considering the 	relationship between TCEA and the District. 	As 	a
whole, 	the document places blame for the breakdown of
negotiations 	on the Union, 	citing Union delays over the 	summer,
and the 	fifty grievances. 	It highlights 	this 	by 	comparing 	other
employee 	unions 	who 	"cooperatively 	and 	timely" 	completed
negotiations with the District, 	members 	of which are 	enjoying the
36

fruits of the bargaining efforts. 	In contrast, 	the District
blames 	TCEA for 	"once 	again" 	- 	implicitly 	citing the previous
negotiations which 	led to 	a 	PERB 	finding of 	District unlawful
conduct and/or the 	impasse 	- 	causing the breakdown.
Two 	other messages 	intertwined 	in the 	report 	suggest 	that
the 	overall 	communication was 	threatening and coercive. 	The
first 	is 	evidenced by 	statements 	that negotiations 	on 	financial
matters 	could not 	continue 	and 	no 	financial 	commitments 	will 	be
made until 	"all 	grievances 	are resolved." 	The District 	states
that 	it 	cannot 	even 	"offer" 	salary percentage increases 	as 	long
as 	grievances 	are being processed. 	The message 	is 	a not-so-
subtle punishment 	(delays 	in economic benefits) 	for the unit
members' 	exercising their rights 	to 	file grievances 	and
participate 	in TCEA's 	related efforts. 	Following that message 	is
another threat 	to 	call 	in a professional 	negotiating 	firm 	for the
first 	time 	in the 	District's 	history because 	"negotiations 	with
[TCEA] 	has become so unpleasant, 	uncooperative and unproductive,
that the 	expenditure request 	[for retaining the 	firm] 	seems
justified at this time." 	Based on all of the above, 	the
September 27, 	1988, 	communication tends to interfere with
employees' 	protected rights 	to 	file grievances 	and to be
represented by their union in employment matters. 	Hence, 	the
District 	violated 	EERA 	section 	3543.5(a) 	by 	issuing 	the 	document
to employees.
Bosson's October 24, 	1988, 	letter to employees who had not
filed grievances 	on fringe benefits 	also tends 	to 	interfere with
37

employees' 	exercise of EERA rights. 	Contextually, 	it promises to
reward 	employees 	not 	filing grievances with 	"the 	same benefits"
as 	those 	obtained by 	successful grievants. 	Respondent argues
that the 	letter does 	not really make 	a promise 	because 	it 	states
"we would 	like you to have the 	same benefits" 	rather than it will
grant those benefits. 	Such a hypertechnical 	reading of 	the
letter 	runs 	counter to 	the 	overall 	message 	viewed 	from the
perspective of 	the employees. 	It 	is 	unlikely that 	employees
would have viewed the 	letter as 	a 	statement of 	opinion devoid 	of
a District 	intent to keep the promise.
20
Adding to 	the message's 	impropriety 	is 	the 	superintendent's
offered 	to 	give 	employees who did not 	file 	grievances 	what 	the
Union was 	unsuccessful 	in achieving 	for them. 	The 	Union
advocated 	for one representative 	grievance to 	cover all
employees, 	asking that any benefit gained 	from arbitration would
apply across-the-board. 	The District resisted 	these 	efforts,
arguing 	successfully 	throughout 	the 	grievance/arbitration process
that 	any remedy would apply only to 	a named grievant. 	The
letter, 	therefore, 	tended to undermine TCEA's position and erode
its 	support among unit members. 	Under all the circumstances
present here, 	the District violated EERA section 3543.5(a) 	by
issuing the October 24, 	1988, 	letter to its employees.
20
The Board assesses 	employer 	speech 	in 	light 	of 	the 	impact
that 	such 	communication had 	or was 	likely 	to 	have 	on the 	reader
who, 	as 	an employee, 	may be more 	susceptible to intimidation or
receptive to the 	coercive 	import of the employer's 	message. 	Rio
Hondo Community College District 	(1980) 	PERB Decision No. 	128, 	at
p. 20.
.. .
38

CONCLUSION
Based on all 	the above, 	it 	is 	determined that the Respondent
violated EERA sections 	3543.5(a), 	(b) 	and 	(e) 	by altering the
status 	quo regarding unit members' 	fringe benefit 	levels 	for the
1988-89 	school year. 	The District also violated EERA 	section
3543.5(a) 	by interfering, 	through documents 	issued by
Superintendent Bosson on September 27 and October 24, 	1988, 	with
employees' 	exercise of rights guaranteed by the Act. 	The record
fails 	to 	show that the District 	conditioned agreement, 	during
impasse, 	on inclusion of non-mandatory 	subjects 	of bargaining.
That allegation 	is 	hereby dismissed. 	The 	District's 	failure 	to
maintain the 	status 	quo on fringe benefits 	is 	an act which, 	by
itself, 	is 	considered a per se refusal to participate 	in good
faith 	in the 	impasse procedures. 	The Charging Party 	failed 	to
establish, 	however, 	that the District engaged in a course of
overall 	bad 	faith during the 	entire 	impasse process. 	The
allegation that 	it did so 	is 	therefore dismissed.
REMEDY AND 	ORDER
The PERB has authority, 	under EERA section 3 541.5(0), 	to
fashion appropriate remedies 	for unfair practices. 	It 	is
appropriate 	in this 	case 	to 	order the 	District 	to 	cease 	and
desist 	from unilaterally 	changing 	the 	status 	quo 	on the 	subject
of 	fringe benefits. 	An order that the Employer cease 	and desist
from 	interfering with the 	employees 	and the 	TCEA's 	EERA rights 	is
also warranted.
39

In cases 	involving unilateral 	action, 	the Board usually
orders 	the 	employer to restore 	the 	status 	quo as 	it 	existed prior
to 	the action. 	Santa Clara Unified School 	District 	(1979) 	PERB
Decision No. 	104. 	Offending parties have also been ordered to
compensate 	affected unit 	members 	for monetary 	losses 	incurred 	as
a result 	of 	unilateral 	reductions 	in benefit plan contributions.
Compton Community College District 	(1989) 	PERB Decision No. 	720,
at p. 	26. 	Here, 	it is impossible to completely restore the
status 	quo 	ante because 	employees 	cannot purchase 	fringe benefits
retroactively. 	However, 	the District will be ordered to
compensate 	any 	affected unit 	employee 	for 	monetary 	losses
incurred as 	a 	result of the 	District's 	failure 	to make 	a 	fringe
benefit 	contribution of 	$4,407.10 per employee 	for the 	1988-89
academic 	year. 	All monetary 	losses will 	include 	interest at 	10
percent per annum. 	The District's 	liability to make 	employees
whole 	for the 	unilateral 	change does 	not 	end with the 	District's
implementation of 	its 	"last, 	best and final" 	offer after post-
factfinding negotiations, 	for the reasons 	set 	forth above at
pages 	31-33. 	See also Compton Community College District 	(1989)
PERB Decision No. 	720, 	at p. 	25. 	Therefore, 	the District will
also 	be 	ordered 	to make 	affected unit members whole 	measured 	by
the 	cost 	of 	the options 	in Appendix A of 	the 	1986-89 	contract
from October 	1, 	1988 	(the effective date of the 	insurance
carriers' 	contracts with the District) 	until the parties reach
agreement 	or 	exhaust 	impasse procedures 	in good 	faith 	on the
issue.
40

It 	is 	also appropriate to require the District to post a
notice 	incorporating the terms 	of 	this 	Order. 	The Notice 	should
be 	subscribed by an authorized agent 	of 	the Employer, 	indicating
that 	it will 	comply with the terms 	thereof. 	The Notice 	shall 	not
be 	reduced in 	size, 	defaced, 	altered or covered by any other
material. 	Posting 	such a 	notice will 	inform employees 	that the
Employer has 	acted 	in an unlawful 	manner and 	is 	being required to
cease 	and desist 	from this 	activity. 	It 	effectuates 	the purposes
of 	the Act that 	employees 	be 	informed of 	the 	resolution of 	the
controversy 	and will 	announce 	the 	Employer'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 	[159
Cal.Rptr. 	584], 	the California District Court of Appeal approved
a 	similar posting requirement.
Upon the 	foregoing findings 	of 	fact 	and 	conclusions 	of 	law,
and the entire record 	in this 	case, 	and pursuant to EERA section
3541.5(c), 	it is hereby ORDERED that the District, 	its governing
board 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Unilaterally 	changing 	the 	status 	quo 	regarding
fringe benefits.
B. 	Interfering with TCEA's 	and employees' 	rights 	to
file 	grievances 	and 	exercise 	rights 	under 	the 	Educational
Employment Relations Act.
41

2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES OF 	THE
ACT.
A. 	Compensate unit 	employees 	for monetary 	losses
incurred as 	a result 	of altering the 	fringe benefits 	status 	quo
measured 	by the 	cost 	of 	the 	options 	marked with 	an asterisk on
Appendix A of 	the 	1986-89 	contract between the 	District 	and 	TCEA.
The 	District's 	obligation to make 	employees whole 	for 	such 	losses
covers 	the period beginning with October 	1, 	1988, 	and runs 	until
TCEA and 	the 	District 	reach 	agreement 	or 	exhaust 	impasse
procedures 	in good 	faith over the 	subject, 	whichever occurs
first.
B. 	Sign and post 	copies 	of 	the attached Notice marked
"Appendix" 	in conspicuous places where notices 	to employees 	are
customarily placed at 	its 	headquarters 	office and 	at 	each 	of 	its
campuses 	and all 	other work 	locations 	for thirty 	(30) 	consecutive
workdays. 	Copies 	of 	this 	Notice, 	after being duly 	signed by an
authorized agent of 	the Respondent, 	shall be posted within ten
(10) 	workdays 	from service of the 	final decision in this matter.
Reasonable 	steps 	shall be taken to 	insure that the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or covered by any other
materials.
C. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	Los Angeles 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
42

Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions 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, 	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 	". 	. 	. 	or 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, 	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, 	sections
32300, 	32305 and 32140.
Dated: 	April 	12, 	1990
Manuel M. Melgoza
Administrative Law Judge
43