Gonzales Union High School District (PERB 1006E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GONZALES UNION HIGH SCHOOL )
TEACHERS ASSOCIATION, CTA/NEA, )

Charging Party, ) Case No. SF-CE-1503
Vv. )’ PERB Decision No. 1006
GONZALES UNION HIGH SCHOOL )’ June 25, 1993
DISTRICT, )
Respondent.

Appearances: California Teachers Association by Ramon E. Romero,
Attorney, for Gonzales Union High School Teachers Association,
CTA/NEA; Littler, Mendelson, Fastiff, Tichy and Mathiason by
Richard J. Currier, Attorney, for Gonzales Union High School
District.
Before Blair, Chair; Caffrey and Carlyle, Members.
DECISION

CARLYLE, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Gonzales Union High School Teachers Association, CTA/NEA
(Association) to the proposed decision (attached hereto) of a
PERB administrative law judge (ALJ). The ALJ found that the
Gonzales Union High School District (District) was under no
obligation to negotiate with the Association concerning the
elimination of the District's mentor teacher program. However,

the ALJ determined the District's unilateral action implementing

employee payroll deductions for health benefit costs over the

District's maximum contribution, violated section 3543.5(a), 	(b),
and 	(c) 	of the Educational Employment Relations Act 	(EERA).1
On appeal, 	the Association argues 	that 	the ALJ erred in
finding 	that 	the District's 	elimination of 	the mentor 	teacher
program was 	lawfully motivated and 	thus 	could be 	unilaterally
implemented. 	Further, 	the Association contends 	the ALJ should
have 	ordered 	the District 	to 	reimburse 	employees 	as 	a 	remedy 	for
the 	increased amount 	deducted 	from their paychecks 	for health
benefit 	costs, 	and issued a 	cease and desist 	order barring 	future
employee payroll 	deductions.
The 	Board has 	carefully 	reviewed 	the 	entire 	record,
including the proposed decision, 	transcript, 	exceptions and
responses 	thereto. 	The Board 	finds 	the 	issues 	raised on appeal
by 	the Association have 	been adequately addressed by 	the ALJ 	in
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3543.5 states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(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.
N	
2

the proposed decision. 	The Board 	finds 	the ALJ's 	findings 	of
fact and 	conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
Based upon the 	findings 	of 	fact and conclusions 	of 	law, 	and
the 	entire 	record in this 	case, 	it has been found that 	the
Gonzales Union High School 	District 	(District) 	violated the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b) and (c).
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 	implementing new policies 	regarding
terms 	and conditions 	of 	employment which are within 	the 	scope 	of
representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA.
1. 	At 	the 	request 	of 	the Gonzales Union High School
Teachers Association, 	CTA/NEA, 	make District 	representatives
available 	for 	immediate 	negotiations 	over 	the 	issue 	of 	increased
health benefit 	cost payments.
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 hereto as an Appendix. 	The
Notice must be 	signed by an authorized agent 	of 	the 	District,
3

indicating 	that 	the District 	will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be 	taken to
ensure that 	the Notice is not reduced in size, 	altered, 	defaced
or 	covered with any other material.
3. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	San 	Francisco Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in accord with 	the
director's 	instructions.
Chair 	Blair and Member Caffrey 	joined 	in 	this 	Decision.
4

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1503,
Gonzales 	Union High School 	Teachers Association. 	CTA/NEA v.
Gonzales 	Union High School 	District, 	in which all 	parties 	had the
right 	to participate, 	it has been found that 	the Gonzales Union
High School 	District 	(District) 	violated the 	Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(a), 	(b) 	and 	(c).
As a 	result 	of 	this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally 	implementing new policies 	regarding
terms 	and 	conditions 	of 	employment which are within the 	scope 	of
representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA.
1. 	At 	the 	request 	of 	the Gonzales Union High School
Teachers Association, 	CTA/NEA, 	make District representatives
available 	for 	immediate 	negotiations 	over 	the 	issue 	of 	increased
health benefit 	cost payments.
Dated: 	GONZALES 	UNION HIGH 	SCHOOL DISTRICT
By:. Authorized 	Agent
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
GONZALES 	UNION HIGH 	SCHOOL
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging Party,
v.
GONZALES 	UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-1503
PROPOSED DECISION
(9/29/92)
)
)
)
)
)
)
)
)
Appearances; 	Ramon E. 	Romero, 	Attorney, 	for the Gonzales Union
High School Teachers Association, 	CTA/NEA; 	Littler, 	Mendelson,
Fastiff 	& Tichy by Richard J. 	Currier, 	and Sandra Kloster,
Attorneys, 	for Gonzales Union High School District.
Before JAMES W. 	TAMM, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On September 23, 	1991, 	the Gonzales Union High School
Teachers Association, 	CTA/NEA 	(Charging Party or Association)
filed 	this 	unfair practice 	charge 	against 	the Gonzales 	Union High
School 	District 	(Respondent 	or District.) 	The 	Charging 	Party
amended its 	charge on November 13, 	1991. 	On December 2, 	1991,
the 	general 	counsel's 	office 	of 	the 	Public 	Employment 	Relations
Board 	(PERB or Board) 	issued a complaint 	alleging violations 	of
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(EERA or A c t ) . 1
1
EERA is 	codified at Government Code section 3540 	et 	seq.
The pertinent portion of section 3543.5 reads:
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
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.

The 	complaint 	alleges 	that 	the District 	eliminated a mentor
teacher program because 	the 	Charging 	Party 	engaged 	in 	reopener
negotiations 	over preparation periods 	for mentor teachers. 	A
second allegation 	is 	that 	the 	District 	unilaterally 	implemented a
new policy 	concerning payroll 	deductions 	for health 	insurance
premiums.
On January 13, 	1992, 	the Charging Party filed a motion to
amend 	the 	complaint. 	After the parties 	had briefed the motion,
it was denied on February 13, 	1992.
A settlement 	conference was 	conducted, 	however, 	the matter
remained unresolved. 	A formal 	hearing was 	conducted March 	3, 	4
and 31, 	1992. 	At 	the conclusion of Charging Party's 	case-in-
chief, 	the Respondent also 	rested its 	case without 	calling any
witnesses. 	Briefs were 	filed and the 	case was 	submitted 	for
decision June 30, 	1992.
FINDINGS 	OF 	FACT
Mentor 	Teacher 	Program
The District 	has 	a budget 	of 	approximately $6 million.
During the summer of 	1990, 	the District's business manager, 	Sara
Perez, 	forecast a budget deficit 	of 	over $640 	thousand; 	over 10
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.
22

. :
percent 	of 	the District's budget 	for the 	1991-92 	school 	year. 	In
response 	to 	the projected deficit, 	the District began planning
budget 	cuts. 	One area of 	savings 	the District 	contemplated was
the possible 	elimination 	of 	a 	one-hour preparation period 	for 	the
District's 	three mentor teachers.
The 	District's 	mentor 	teacher program had been 	established
in December 1987, 	pursuant 	to Education Code section 44490 	et
seq. 	The purpose of 	the program was 	twofold; 	to give 	talented,
experienced 	teachers 	an 	incentive 	to 	stay 	in teaching and 	to
allow newer 	teachers 	the 	opportunity 	to 	receive 	guidance 	from
more 	experienced mentor 	teachers. 	The mentor teachers 	received a
stipend of 	$4,000, 	which was provided to the District by the
state. 	The only cost 	to the District was 	an additional 	hour of
preparation time given to each of 	the mentor teachers. 	The 	extra
preparation period was 	not 	required by 	state 	guidelines.
Although not part 	of 	the 	collective bargaining agreement, 	the
extra preparation period had been part 	of 	the District's mentor
teacher program throughout 	its 	life. 	This 	extra preparation
period cost 	the District 	approximately 	$22,000, 	which was not
reimbursed by 	the 	state.
In order to effect 	savings 	from the program, 	the District
wanted to eliminate 	the 	extra preparation period, 	but 	keep 	the
rest 	of 	the program. 	The District 	had been advised by its
attorney 	that 	while 	its 	participation 	in 	the program was 	entirely
within the District's discretion, 	elimination of 	the preparation
period, 	by itself, 	was negotiable.
W
3

District 	Superintendent 	William Stratton 	contacted 	the
Association negotiator, 	Jack Steadman, 	and sought 	Steadman's
approval 	to 	eliminate 	the preparation period. 	Steadman testified
that 	Stratton asked 	for a 	letter 	from the Association agreeing 	to
continue 	the program without 	the preparation period. 	When
Steadman 	replied 	that 	they would have 	to 	negotiate 	such a 	change,
Stratton 	said 	that 	if 	the Association 	insisted 	on negotiating 	it,
the District 	would 	cancel 	the program.
The 	next 	day, 	Steadman wrote a memo 	to 	Stratton to 	confirm
their 	conversation. 	Steadman wrote 	that 	he understood the
District 	would 	cancel 	the program if 	the Association 	insisted on
negotiating 	over 	the 	preparation period. 	Steadman asked Stratton
to 	either 	confirm that 	understanding 	or 	correct 	the 	District's
position, 	if 	Steadman had misunderstood.
Stratton 	replied 	that 	Steadman's 	understanding was 	not
correct 	and 	that 	the District would be willing 	to negotiate 	the
issue. 	Stratton 	then 	scheduled a half-day negotiation 	session
for 	the 	following week. 	Steadman 	replied 	to Stratton 	that 	a
partial 	day meeting put 	undue pressure 	on 	the 	teachers 	and
suggested 	that 	they wait 	to deal 	with 	the mentor 	teacher program
until 	the parties 	started 	reopener negotiations 	later 	that 	year.
2Stratton 	contradicted Steadman's 	testimony 	on 	this 	issue,
testifying 	that 	he 	did not 	threaten 	to 	cancel 	the 	entire program
if 	the Association failed to agree. 	I 	credit Steadman on this
issue. 	Stratton's 	intention 	to 	eliminate 	the program if 	the
Association would not 	give 	up 	the preparation period was
consistent with statements 	made by Stratton 	to 	other witnesses
and 	statements made by other District 	officials 	to 	the
Association president.
44

The District did not want 	to put 	the 	issue off 	that 	long, 	so
the parties met on May 9, 	1991. 	At that 	session, 	however, 	the
parties 	realized 	that 	no proposals 	had been 	sunshined pursuant 	to
public 	notice provisions 	of 	the Act.3 They 	therefore 	agreed 	that
while 	they 	should not 	actually begin negotiations, 	they 	could
discuss 	the 	issue 	informally.
During their informal 	discussions, 	it became very clear to
the 	District 	that 	the Association was 	not 	willing 	to 	give up 	the
preparation period without 	the 	opportunity 	to negotiate 	some
trade offs, 	such as additional medicare coverage. 	Although both
sides 	indicated a willingness 	to negotiate 	over 	the 	issue,
neither side made any proposals 	in writing, 	and no additional
bargaining 	sessions 	were 	held.
. . ..
During this 	same period, 	Association president, 	Jack Havens,
spoke 	with District 	board member Barbara 	Robinson about 	the
issue. 	Robinson told Havens 	that 	the District was 	not 	obligated
to negotiate 	the 	elimination of 	the program. 	She 	indicated that
if 	the Association did not accept 	the District's position, 	it
would eliminate 	the program in order 	to make 	the 	savings. 	Havens
responded 	that 	the District 	had 	to negotiate 	over 	the 	decision 	to
eliminate 	the mentor teacher program. 	Havens 	also 	indicated,
however, 	that 	he understood the Association could not 	do anything
or demand 	to bargain until 	the District 	actually 	took action.
Havens 	also 	reiterated the Association's 	position 	to 	Stratton,
3Section 3547 	of 	the Act.
5

that 	the 	District must 	negotiate 	over any decision 	to 	eliminate
the mentor 	teacher program.
During 	the budget 	crisis, 	the District 	established an
advisory community-based budget 	committee. 	That 	committee, 	which
included a 	representative 	of 	the Association, 	was 	created to help
prioritize budget 	cuts. 	During 	the 	early 	stages 	of 	the budget
committee meetings, 	the District 	administration specifically
referred to the 	savings 	coming 	from the 	elimination of 	the 	one-
hour preparation period. 	After it became 	clear 	to 	the District
that 	the Association would not 	agree 	to drop 	the preparation
period from the program, 	but wanted 	to negotiate 	over the 	issue,
the District 	then referred to 	the 	cut 	as 	the 	elimination of 	the
mentor 	teacher 	program entirely.
On May 28, 	1991, 	the school board adopted a package of
budget 	cuts, 	including the elimination of 	the mentor teacher
program.
The parties 	engaged 	in 	reopener negotiations 	later 	in 	the
school year. 	However, 	the 	subject 	of 	the mentor teacher program
or 	the 	one-hour preparation period was 	not 	chosen by 	either party
as 	a 	subject 	of 	reopener negotiations. 	The Association has 	not
requested that 	the District 	negotiate 	the 	effects 	of 	its 	decision
to 	eliminate 	the program.
6
6

Health Benefits 	Payroll 	Deductions
From July 1, 	1985 through June 30, 	1986, 	the parties'
collective 	bargaining 	agreement 	contained 	the 	following 	contract
language 	regarding health benefit 	payments:
The District 	shall 	contribute up 	to a maximum
of 	$3543.00 	for the 	current 	1984-85 	Health
and Dental 	Plans 	for all 	regular 	full-time
certificated employees. 	This maximum amount
shall 	cover the 	full 	cost 	of premiums 	for
1984-85, 	but any increase 	in future 	(years)
beyond 	this 	maximum amount 	will 	be 	paid by
employees 	through payroll 	deduction. 	This
maximum amount is negotiable. 	If, 	in 19 85-
86, 	it appears 	that 	the amount will exceed
$3543.00, 	the parties will negotiate over a
different 	health plan 	or modify 	the 	existing
health plan as 	quickly as possible.
The 	contract 	thus provided 	for a 	dollar amount 	cap 	for
District 	contributions, 	as well 	as an agreement 	that 	increases
beyond 	the 	cap would be 	paid directly by 	employees 	through
payroll 	deductions.
That 	contract 	language, 	including 	the 	cap and provision 	for
payroll deductions 	for any amount 	over the 	cap, 	was 	rolled over
into the 	86-87 	collective bargaining agreement, 	as well 	as 	the
88-89 	contract.
During the period from 1985 	through 1989, 	the 	cost 	of
benefits 	exceeded the 	cap 	only once. 	The parties were 	then
engaged 	in negotiations 	for 	the 	88-89 	collective 	bargaining
agreement. 	At 	that 	time, 	the District agreed to pay the
increased 	cost 	as 	long as 	the District 	felt 	the parties were
making progress 	in 	their negotiations. 	The District 	paid the
amount 	over the 	cap 	for 	five or six months, 	at which time
77

negotiations broke down and the parties 	reached an 	impasse. 	When
that 	occurred, 	the District began deducting 	the excess 	cost 	of
the benefits 	from employees 	through payroll 	deductions.
Pursuant 	to an agreement with the Association, 	the amount 	o
the 	deductions 	was 	calculated by taking 	the 	total 	cost 	of
premiums 	over 	the 	cap and dividing by the 	total 	number 	of
employees 	in the unit. 	Thus, 	the payroll deduction for each
employee was 	the 	same.
f
During negotiations 	for the 	89-90 	contract, 	the Association
had 	two main goals 	regarding health benefit payments. 	One was 	to
eliminate 	the 	cap 	for District 	contributions. 	Another was 	to
eliminate payroll 	deductions 	as 	a method of 	covering 	future
increases.
When agreement was 	reached in September 	1989, 	the
Association had achieved one of 	its goals, 	but not both. 	The
parties 	agreed upon 	the 	following 	language:
The District 	shall 	contribute up 	to a maximum
of 	the 	composite 	rate 	for the 	current 	Health
and Dental 	Plans 	for all 	regular 	full-time
certificated employees. 	This maximum amount
shall 	cover the 	full 	cost 	of premiums 	for the
1989-90 	school year. 	Any increase 	for the
199 0-91 	school 	year beyond 	this maximum
amount will 	be paid out 	of 	the 	1990-91 	school
year C.O.L.A. 	(Article 	IV.A.5 	[Wages].) 	Any
increase 	in 	future years 	will 	be 	treated 	in a
like manner. 	This maximum amount 	is
negotiable.
Thus, 	the parties agreed that 	the District's 	contribution would
be 	capped at 	the maximum of 	the 	composite 	rate 	for the 	current
health and dental 	plans 	for 	regular 	full-time 	certificated
employees. 	While 	the parties 	changed the description of 	the
8

District's 	maximum 	contribution 	obligation 	from a 	dollar 	figure
to a descriptive phrase, 	it 	remained a cap nonetheless.
The parties also agreed, 	however, 	to drop the language
which, 	in the past, 	had provided for payroll 	deductions 	of any-
increased 	cost 	in excess 	of 	the District's maximum obligation.
Instead, 	the parties 	agreed that 	any 	increases beyond the 	cap
would be paid 	out 	of 	the 	C.O.L.A., 	which was 	being applied 	to 	the
salary schedule. 	Therefore, 	any increases 	over the maximum
contribution 	of 	the District 	would 	come 	out 	of 	salary 	schedule
increases, 	rather than payroll 	deductions. 	The parties agreed
that 	any 	increases 	in 	future years 	would be 	treated 	in a 	like
manner.
Steadman 	testified 	that 	the District's 	chief 	negotiator,
former superintendent 	Olson, 	also verbally agreed that 	if 	no
C.O.L.A. 	was 	given to the District by the 	state, 	the District
would pay any 	increases 	in 	future benefit 	costs 	during 	the
pendency of 	future 	negotiations.4
In May 1991, 	the District 	learned there would be no 	C.O.L.A.
for 	the 	1991-92 	school year. 	The District 	also 	learned that
effective July 1, 	1991, 	benefit 	rates would increase and
therefore 	exceed 	the District's maximum contribution. 	Stratton,
who 	had 	replaced Olsen as 	superintendent, 	concluded 	that 	since
there was 	no 	C.O.L.A., 	the District 	should revert 	to what 	he
4PERB Regulation 	32176 	provides 	that 	hearsay evidence 	is
admissible, 	but 	shall 	not be 	sufficient 	to support a 	finding,
unless 	it would be admissible 	over objections 	in 	civil 	actions.
This 	testimony would be 	admissible 	as 	an admission 	of 	a party
pursuant 	to Evidence 	Code 	section 	1220.
9

understood was 	the past 	practice 	of 	employees paying 	for
increases 	through payroll 	deductions.
. . .
Without 	offering 	the Association an 	opportunity 	to 	negotiate
over how to deal 	with 	the 	increases 	in the 	absence 	of 	a C.O.L.A.,
Stratton unilaterally decided to deduct' the 	excess 	amount 	through
payroll 	deductions. 	The Association learned about 	the payroll
deductions when Perez 	sent a memo to all 	employees, 	along with
their paychecks, 	indicating that 	there had been a payroll
deduction 	for 	the benefit 	cost 	increases. 	The deductions 	were
made 	from June 	30, 	1991 payroll 	checks and each month thereafter.
When Steadman learned of 	the payroll 	deductions, 	he wrote 	to
Stratton 	claiming that 	there was 	no 	cap 	on the District's 	benefit
contributions, 	that 	elimination of 	the 	cap was 	an important
concession won by the Association, 	and he 	demanded refunds 	of
amounts already deducted. 	The District, 	however, 	continued to
make deductions. 	On January 1, 	1992, 	the benefit 	costs 	increased
again. 	The January 1, 	1992, 	payroll 	checks 	reflected the second
increase 	and 	the 	larger deductions 	from then 	on.
The 	deductions made 	were 	based upon 	the 	type 	of 	coverage
received by 	each employee within a 	three-tier rating 	system, 	as
opposed to using a 	composite 	rate. 	The 	employees 	had differing
amounts 	deducted 	from their 	checks, 	depending upon their
individual 	coverage. 	Perez 	testified 	that 	she 	chose 	this method
of 	calculating deductions 	because 	Steadman had 	insisted upon
using 	the 	three-tier 	individual 	rates, 	rather than the 	composite
10

rate, 	in 	calculating 	increases 	from 89-90 	to the 	90-91 	school
year.
The 	District 	and 	the Association 	had 	concluded 	their
reopener negotiations 	on wages 	and benefits 	prior 	to 	the
increased 	cost 	and payroll 	deductions.
ISSUES
1. 	Did 	the District 	eliminate 	the mentor 	teacher program
in 	retaliation 	for 	the 	Charging 	Party 	seeking 	to 	negotiate 	over
the mentor 	teacher preparation period?
2. 	Did 	the District 	unilaterally 	implement 	a new policy
when 	it 	instituted 	employee payroll 	deductions 	for 	increased
health benefit 	costs?
DISCUSSION
Mentor 	Teacher 	Program
The 	complaint 	in this 	case 	specifically alleges 	that 	the
District 	took adverse 	action against 	employees 	by 	eliminating 	the
mentor 	teacher program because 	the 	Charging 	Party 	exercised
protected 	right. 	The protected 	right 	alleged 	to have been
exercised was 	the 	engaging 	in 	reopener negotiations 	during 	the
period of April 	1991 	through May of 	1991 	on the 	subject 	of
preparation periods 	for mentor 	teachers.
There 	is 	simply no basis 	in fact 	for this 	allegation. 	The
parties 	did not 	engage 	in any 	reopener negotiations 	during April
1991 	through May 	1991. 	When reopener negotiations 	did occur
later, 	neither party sought 	to negotiate 	over the mentor teacher
11
__,·,.,

program. 	Therefore, 	no violation is 	found based upon this
specific 	allegation.
The Charging Party, 	however, 	has 	two additional 	theories of
this 	case. 	One 	theory is based upon a retaliation claim. 	The
other 	is 	based upon an 	interference 	claim. 	Both are based 	on an
argument 	that 	the 	District 	did not 	have 	discretion 	to 	cancel 	the
mentor 	teacher program once 	it was 	in place within 	the District.
According to 	the Charging Party, 	a district 	can decide, 	for any
reason, 	not 	to 	implement 	a mentor teacher program and it 	need not
bargain over that decision. 	However, 	Charging Party argues 	that
once a district 	installs 	a mentor teacher program, 	which 	implies
that 	there 	is 	no 	fundamental managerial 	reason not 	to have 	one,
the 	District 	may not 	later decide 	to discontinue 	the program
without bargaining, 	through 	impasse 	over 	its 	decision and details
of 	the program that 	are within 	the 	scope 	of 	representation prior
to 	cancelling 	the program.
" ; . .. . . .. 	According to 	the 	Charging Party, 	this 	is 	the only way to
reconcile 	the Board's 	decision 	in Lake 	Elsinore 	School 	District
(1988) 	PERB Decision No. 	696 with the Education Code. 	Education
Code section 44494(d) 	states that:
The 	subject 	of 	participation by a 	school
district 	. 	. 	. 	in a mentor teacher program
shall 	not be 	included within the 	scope 	of
representation 	in 	collective 	bargaining 	among
a public 	school 	employer and 	eligible
employee 	organizations.
In Lake 	Elsinore, 	the Board held that 	a district's 	obligation to
bargain on negotiable 	aspects 	of 	a mentor 	teacher program,
12

attaches 	when a 	district 	receives 	state 	approval 	and 	funding 	for
the program.
The Education Code, 	however, 	is quite clear about a
district's participation 	in a mentor teacher program. 	It 	is 	not
a negotiable 	issue. 	It 	is non-negotiable prior to a district
adopting a program, 	and 	it 	is 	non-negotiable after a program is
in place within a district. 	There 	is no support 	for an
interpretation 	that 	a District 	loses 	its 	discretion 	or 	that 	the
subject 	of participation becomes 	negotiable 	once 	a program is
implemented. 	According 	to 	the Board's 	holding 	in Lake 	Elsinore,
once a district 	exercises 	its 	discretion and 	it 	receives 	state
-approval 	and 	funding 	for 	the program, 	then the District must
negotiate 	over other 	issues, 	which are 	included within the 	scope
of 	representation. 	But 	that does 	not 	suddenly make 	issues
specifically excluded 	from the 	scope 	of 	representation 	(i.e., 	the
subject 	of 	participation 	in a mentor 	teacher program itself)
negotiable.5 The District 	was 	therefore under no 	obligation 	to
negotiate 	over 	its 	decision to 	stop participating 	in 	the mentor
teacher 	program.
Although 	the District 	need not 	negotiate with 	the
Association, 	its discretion to participate 	in the program is 	not
completely unfettered. 	As argued by the Charging Party, 	the
5While 	a 	district may have 	an obligation to negotiate 	the
effects 	of 	a 	non-negotiable 	decision 	(Oakland Unified School
District 	(1985) 	PERB Decision No. 	540), 	there is no evidence in
this 	case 	that 	the Association ever 	requested 	to negotiate 	the
effects 	of 	the District's 	decision to 	stop participating 	in 	the
mentor 	teacher program.
13

District may not 	exercise 	its 	discretion with an unlawful 	motive.
Charging 	Party 	cites 	McFarland Unified School 	District v. 	PERB
(1991) 	228 Cal.App.3d 166 	[279 Cal.Rptr. 	26] 	where the court
upheld 	PERB's 	decision to 	order 	reinstatement 	of 	a probationary
teacher despite 	a 	statute 	giving districts 	discretion 	to
terminate probationary teachers 	for any reason. 	In McFarland,
the 	District 	retaliated against 	a probationary 	teacher 	for
exercising protected rights. 	There, 	the court held:
[T]he District has 	cited no authority, 	nor
can it, 	for the proposition that 	its power to
deny 	tenure 	for any lawful 	reason 	insulates
it 	from the 	scrutiny of 	the 	PERB when an
unfair 	labor practice 	complaint 	alleges 	that
tenure was 	denied 	in retaliation 	for 	the
exercise of a protected right. 	(Id. 	at
-	p. 	169.)
The 	same 	reasoning applies 	here. 	If 	the District's
motivation was 	to retaliate against 	the Association, 	it would be
unlawful. 	While this 	is not a completely clear case, 	the
preponderance 	of 	the 	evidence 	suggests 	that 	the District's
motivation was 	to 	save 	the 	$22,000 	resulting 	from elimination of
the preparation period. 	Right 	from the 	start 	of 	the budget
crisis, 	the District 	never wavered 	from its 	intention to 	save 	the
$22,000. 	Initial 	internal management discussions, 	and statements
made by Stratton to Steadman, 	Havens 	and the budget 	committee, 	as
well as 	statements made by Robinson to Havens, 	suggest 	that 	the
consistent motivating 	factor was 	the 	savings 	to the budget.
While 	the District 	would have preferred 	to keep 	the program
without 	the preparation time, 	it was quite willing to lose 	the
entire program, 	rather than give up any potential 	savings 	to 	the
14

budget. 	The evidence does not suggest, 	regarding this 	issue,
that 	the District 	was 	looking 	for ways 	to 	retaliate against 	the
Association.6 The decision here was made 	for the 	legitimate
purpose 	of 	saving 	$22,000 	during a budget 	crisis. 	Because 	the
District's 	motivation 	for 	eliminating 	the 	program was 	the 	budget
savings 	and not 	for retaliation against 	the Association, 	the
Charging 	Party's 	retaliation 	theory 	fails.
The Association's 	final 	theory on this 	issue 	is 	that 	the
District 	interfered with 	employee protected 	rights 	by asking
employees 	to 	forego 	rights 	to negotiate 	in exchange 	for
continuing 	the mentor 	teacher program.
In Carlsbad Unified School 	District 	(1979) 	PERB Decision No.
89, 	PERB held that a prima 	facie case 	of 	interference with the
exercise 	of 	EERA protected 	rights 	is 	established where 	the
Charging 	Party shows 	that 	the 	employer's 	conduct 	tends 	to 	or does
result 	in 	some harm to employee 	rights. 	Where 	the harm to
employee 	rights 	is 	slight, 	and the employer offers 	justification
based on operational 	necessity, 	the 	competing 	interests 	are
6There was 	evidence presented 	to 	show that 	Stratton and
Robinson made 	statements 	that 	Steadman was 	an 	ineffectual
negotiator, 	looking 	out 	only 	for his 	own 	interests 	and unable 	to
settle issues. 	These opinions, 	however, 	were not shown to be
related 	to 	the District's 	decision 	to 	eliminate 	the mentor
teacher program, 	nor were 	they accompanied by threats 	or
promises. 	Other comments made by Stratton about 	Havens 	were
attempts 	(albeit 	inappropriate and unsuccessful) 	at 	humor and
also unrelated 	to 	the 	decision 	to eliminate 	the mentor 	teacher
program. 	There was, 	however, 	credible evidence that on a
different 	occasion, 	Stratton may have bypassed and 	sought 	to
undermine 	the Association by attempting 	to 	deal 	directly with
employees 	in lieu of Steadman. 	That, 	however, 	was not part of
this complaint, 	was not 	fully litigated, 	and therefore, 	no such
violation 	is 	found.
15

balanced. 	Where 	the harm is 	inherently destructive 	of 	employee
rights, 	the 	employer's 	conduct will 	be excused only on proof 	it
was 	occasioned by 	circumstances 	beyond 	the 	employer's 	control 	and
no alternative 	course 	of 	action was 	available. 	Proof 	of unlawful
intent 	or motive 	is 	not 	required. 	(See also Novato Unified
School District 	(1982) 	PERB Decision No. 	210.)
The 	Charging 	Party 	cites 	Santa Monica 	Community 	College
District 	(1979) 	PERB Decision No. 	103, 	for the proposition that
requiring 	employees 	to give up 	their 	rights 	as 	a 	condition 	to
receiving beneficial 	treatment 	is 	inherently destructive 	of
employee rights. 	Therefore, 	according to Charging Party, 	the
cancellation 	of 	the mentor 	teacher program should be 	excused 	only
if 	it 	was 	occasioned by 	circumstances 	beyond 	the 	employer's
control 	and no alternative 	course 	of 	action was 	available.
Santa Monica, 	however, 	can be distinguished. 	In that case,
the District 	conditioned a 	salary 	increase 	on a waiver 	of 	the
employee's basic 	statutory right 	to negotiate wages. 	The Board
found that when the employees 	refused to waive 	the 	rights, 	the
District 	imposed reprisals 	on 	employees 	by denying 	the 	wage
increase. 	It was 	the promise 	to give raises based upon a waiver
of 	rights 	and the 	subsequent 	retaliatory denial 	of 	raises, 	which
the 	Board 	found 	to be 	inherently destructive 	of 	employee 	rights.
Contrary 	to 	the 	case at 	hand, 	the employer 	in Santa Monica had no
clear statutory right 	to take 	the action that 	it 	took, 	and the
action 	it 	did 	take was 	based upon retaliatory motives.
16

The District's 	action 	in this 	case 	(asking 	the Association
to waive 	rights 	in exchange 	for the District 	foregoing 	its
statutory right 	to 	cancel 	the program) 	could be 	seen as 	slight
harm at most. 	Where harm to employee rights 	is 	slight, 	the
employees' 	rights and the 	employer's 	justification is balanced.
Here 	the balance 	tips 	in 	favor of 	the District's 	clear statutory
right 	and 	its 	intent 	in saving money as 	its motivation.7
For the above 	reasons, 	the allegations 	concerning the mentor
teacher program 	should be 	dismissed.
Health 	Benefit 	Payroll 	Deductions
The District argues 	that this 	issue is, 	at most, 	a contract
dispute 	and 	should be 	dismissed pursuant 	to 	section 	3541.5(b)
which 	states 	that 	PERB 	" . . . 	shall 	not 	have 	the 	authority 	to
enforce 	agreements 	between 	the 	parties 	. . . "
The 	District 	argues 	that 	under Grant 	Joint 	Union High School
District 	(1982) 	PERB Decision No. 	196, 	not every breach of a
collective bargaining agreement 	also violates 	the Act. 	To
constitute a violation of 	the Act, 	in addition to a default 	in a
contractual 	obligation, 	the breach must amount 	to a unilateral
change in policy. 	Since, 	according to the District, 	its actions
were 	consistent 	with a 	reasonable 	interpretation of 	the 	contract,
and 	consistent 	with 	the 	established policy 	regarding 	payroll
70f 	course 	the District, 	in an attempt 	to save a worthwhile
program, 	could have 	entered 	into negotiations with the
Association, 	but 	it was under no legal 	obligation to do so.
Likewise, 	the Association could have volunteered to drop the
preparation period and thus 	save 	the program. 	But 	it 	also was
under no 	legal 	obligation to do 	so.
17

deductions 	for amounts 	in excess 	of 	the 	cap, 	the 	Charging Party
has 	failed 	to prove 	any unilateral 	change 	in policy or practice.
The 	Charging 	Party argues 	that 	the 	evidence 	supports 	a
conclusion 	that 	the parties 	had 	shifted away 	from a 	cap and
payroll 	deductions 	for excess 	costs, 	to a process where any
excess 	costs 	would 	come 	from the 	C.O.L.A. 	Since 	the 	contract 	is
silent 	on what 	would happen 	if no 	C.O.L.A. 	existed, 	the District
should have paid 	the 	excess 	costs 	pursuant 	to an agreement 	with
the 	former 	superintendent 	and 	the District's 	past 	practice 	of
paying excess 	costs 	until 	the parties 	concluded negotiations.
This 	complaint, 	however, 	cannot be analyzed as a contract
interpretation 	case because 	the 	contract 	does 	not 	cover 	the
situation at hand. 	The 	contract 	is 	clear that a cap exists and
that 	any 	excess 	costs 	over 	the 	cap 	should be 	deducted 	from the
C.O.L.A. 	The contract 	is 	silent, 	however, 	about what would
happen 	if 	no C.O.L.A. 	exists 	or 	is 	insufficient 	to 	cover 	the
excess costs.
Since the 	contract does not 	cover the situation, 	it 	is
necessary 	to 	look 	to 	other possible 	agreements 	or 	existing
policies 	outside 	of 	the 	contract 	or to past practice within 	the
District. 	Steadman 	testified 	that 	former 	superintendent 	Olson
agreed 	that 	the District 	would pay any 	excess 	costs 	over 	the 	cap.
However, 	for several 	reasons 	I do not 	find Steadman's testimony
persuasive. 	First, 	it is 	implausible that the District would
negotiate a cap, 	then agree 	to pay any cost 	in excess 	of 	the 	cap.
If 	that were 	the District's 	intent, 	why would it work so hard to
18

negotiate a 	cap 	in the 	first place? 	Second, 	Steadman maintains
in both his 	testimony and memos 	sent 	to the District, 	that 	the
parties 	had eliminated any 	cap 	from the 	contract. 	This
testimony, 	reflecting his understanding of 	the negotiations,
appears 	contrary to 	the 	clear language of 	the contract, 	and is
therefore questionable. 	Third, 	the Charging Party has provided
no 	supporting 	documents 	reflecting 	any 	such agreement 	on 	this
crucial 	issue. 	Given Steadman's proclivity to document 	important
conversations, 	the absence of 	any such contemporaneous
documentation makes his 	claim suspicious. 	Finally, 	during cross-
examination, 	Steadman appeared evasive 	and non-responsive 	to
questions 	about 	the 	conversation where 	this 	agreement 	was
supposed to have 	occurred. 	I 	therefore 	conclude 	that 	there was
no 	agreement 	between 	the parties 	obligating 	the District 	to pay
'
increased 	costs 	of 	health benefits 	over 	the 	cap 	during 	the
pendency 	of 	any negotiations.
A review of 	the past 	practice within 	the District 	is 	also
inconclusive. 	The District argues 	that 	the past practice
consists 	of 	the District 	implementing payroll 	deductions 	when
costs 	exceeded 	the 	cap. 	The Charging 	Party argues 	the past
practice 	consists 	of 	the District paying excess 	costs 	until 	the
parties 	concluded their negotiations.
Neither of 	these positions appears 	to be accurate. 	On the
single occasion where 	costs 	exceeded the 	cap 	in the past, 	the
District 	continued 	to pay 	the 	increased 	cost 	of 	premiums 	as 	long
as 	the District 	felt negotiations were making progress. 	Once
19

negotiations 	stalled, 	the District 	then decided to pass 	on the
increased 	costs 	to employees 	through payroll 	deductions. 	Thus
the past 	practice 	includes 	both 	the District paying 	the 	excess
costs 	during negotiations, 	as well 	as 	employees paying the 	excess
costs 	through payroll 	deductions 	when negotiations 	stalled.
Even more 	important 	regarding 	the past 	practice 	of 	payroll
deductions, 	however, 	is the fact that the parties specifically
eliminated 	this 	past 	practice 	and 	created a 	new practice 	by
agreeing 	to 	take 	the payroll 	deduction language 	out 	of 	the
contract. 	This was an important 	demand from the Association, 	to
which 	the District 	agreed.
Therefore, 	we are left with a situation where 	there 	is no
applicable 	contract 	language, 	no existing outside agreements
covering 	the 	situation and no applicable past practice. 	In
short, 	there 	is no existing policy or practice 	to deal with the
situation that 	arose.
Given the 	fact 	that 	there was no 	contract, 	policy or
practice 	controlling 	the 	situation, 	the District was under an
obligation 	to give 	notice 	and an 	opportunity 	to negotiate 	over
the 	issue 	to 	the Association as 	soon as 	it 	realized that 	the
increased benefit 	costs 	would not be 	covered by a 	C.O.L.A. 	Both
health benefit 	insurance 	and payroll 	deductions 	are 	clearly
within the 	scope 	of 	representation. 	(Oakland Unified School
District 	(1980) 	PERB Decision No. 	126; 	affirmed Oakland Unified
School District v. 	PERB 	(1981) 	120 	Cal.App.3d 1007 	[175 	Cal.Rptr
105] .) 	Proper notice and negotiations would have provided the
20

parties 	an 	opportunity 	to work 	out 	the method of payment 	for 	the
increase. 	Since what 	occurred had not 	been 	contemplated by 	the
parties, 	they might have wanted to negotiate less 	expensive
health benefits 	or perhaps 	the Association would have been
willing 	to 	trade 	off 	something 	else 	in exchange 	for 	the District
agreeing 	to pay the 	increases 	over the 	cap. 	Of 	course 	if 	no
agreement 	had been reached, 	the District would have been 	free 	to
implement a new policy which was 	consistent with 	its 	last, 	best
offer, 	or if justified by operational necessity, 	taken action
prior 	to 	the 	completion of 	negotiations.
Instead, 	the District 	took unilateral 	action 	implementing a
new policy 	regarding payroll 	deductions. 	The District's 	actions
had a material 	impact 	on employees 	by 	reducing 	the 	amount 	of
their paychecks. 	This unilateral 	implementation of 	a new policy
regarding payroll deductions violated section 3543.5(a), 	(b) 	and
(c) 	of 	the Act. 	(Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51; 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50
LRRM 	2177].)
CONCLUSIONS
The 	District's 	decision 	to 	eliminate 	the mentor 	teacher
program was a lawful, 	non-negotiable decision. 	The allegations
pertaining 	to 	the mentor 	teacher program should be 	dismissed.
Because 	there was no 	contract, 	no policy or agreement
outside 	the 	contract 	and no established past practice, 	the
District 	should have 	afforded 	the 	Charging 	Party notice 	and an
21

opportunity 	to bargain prior 	to 	implementing any policy 	regarding
payroll 	deductions. 	The District's unilateral 	action
implementing 	the 	employee 	payroll 	deductions 	for health benefit
costs 	over 	the 	District's 	maximum 	contribution violated 	section
3543.5(a), 	(b) 	and 	(c).
REMEDY
Section 3541.5(c) 	of 	the Act 	empowers 	PERB to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such affirmative
action, 	including, 	but not limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies of
this 	chapter.
In this 	case, 	it 	is appropriate to order the District 	to
cease 	and 	desist 	from unilaterally 	instituting 	new policies
regarding 	items 	which are within 	the 	scope 	of 	representation.
It 	is 	also appropriate 	to 	order the District 	to make 	itself
available 	for 	immediate 	negotiations 	with 	the 	Charging 	Party 	over
how 	to 	deal 	with 	the 	increased health benefit 	costs 	(issues 	such
as methods 	of 	obtaining 	the 	employees 	portion of 	the 	increased
costs 	and whether 	costs 	should be 	calculated on a 	composite 	basis
or a three tier basis 	for example).
Since 	I 	have 	found that 	the District was under no 	obligation
to pay premium increases 	over 	its maximum contribution, 	it would
not, 	however, 	effectuate 	the purposes 	of the Act 	to order the
District 	to 	reimburse 	employees 	for 	the 	increased amount 	deducted
from their paycheck. 	That would, 	in essence, 	require the
District 	to pay all 	the 	increased 	costs 	of 	health benefits 	when
22

it 	was 	not 	legally obligated to do 	so under 	the 	contract.
Requiring 	the District 	to 	cease 	and desist 	from deducting
increased costs 	from employee paychecks 	also would not, 	at 	this
stage, 	effectuate the purposes of the Act. 	More likely, 	it would
lead 	to 	the 	absurd 	result 	of 	jeopardizing 	the health 	care
coverage 	of 	the very employees 	the Act was 	designed 	to protect.
It 	is 	also appropriate 	that 	the District be 	required to post
a notice 	incorporating the 	terms 	of 	the 	order. 	The Notice 	should
be 	subscribed by an authorized agent 	of 	the District,
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
Notice 	shall 	not be 	reduced 	in size. 	Posting such a notice will
provide 	employees 	with notice 	that 	the District 	has 	acted 	in an
unlawful 	manner and 	is being 	required 	to 	cease 	and desist 	from
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
purposes 	of 	the 	EERA that 	employees 	be 	informed of 	the 	resolution
of 	the 	controversy and will 	announce 	the District's 	readiness 	to
comply with the 	ordered remedy. 	(Davis Unified .School 	District.
et al. 	(1980) 	PERB Decision No. 	116; 	see Placerville Union School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in the case, 	the Gonzales Union High
School 	District 	has been 	found to have violated the 	Educational
Employment Relations Act, 	Government Code section 3543.5(a), 	(b)
and (c).
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Pursuant to section 3541.5(c) 	of 	the Government Code, 	it is
hereby ORDERED 	that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally 	implementing new policies 	regarding
terms 	and conditions 	of 	employment which are within 	the 	scope 	o
representation.
f
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT.
1. 	At 	the 	request 	of 	the Gonzales Union High School
District 	Teachers Association, 	make District 	representatives
available 	for 	immediate negotiations 	over 	the 	issue 	of 	increased
health benefit 	cost 	payments.
2. 	Within ten 	(10) 	workdays 	of 	service of a 	final
decision 	in this matter, 	post at all 	school 	sites and other work
locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the notice attached hereto as 	an appendix.
3. 	Within ten 	(10) 	workdays 	of 	service of a final
decision 	in 	this matter, 	notify the 	San Francisco Regional
Director of 	the Public Employment Relations Board, 	in writing, 	of
the 	steps 	the 	employer has 	taken to 	comply with the 	terms 	of 	this
Order. 	Continue 	to 	report 	in writing 	to 	the Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the 	Regional
Director 	shall 	be 	served 	concurrently 	on 	the 	Charging 	Party.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
24

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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	A document is considered 	"filed" when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, sec. 32135; Code Civ. Proc. sec. 	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 Cal. 	Code 	of Regs.,
tit. 	8, 	sects. 	32300, 	32305 and 32140.)
James 	W. 	Tamm
Administrative 	Law 	Judge
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