Muroc Unified School District (PERB 0080E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MUROC EDUCATION ASSOCIATION, 	CTA/NEA,
Charging 	Party,
V.
MUROC 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
) 	PERB Decision No. 80
LA-CE-42
December 	15, 	1978
)
)
)
)
)
Appearances: 	Charles R. 	Gustafson, 	Attorney for 	the
Muroc Education Association, 	CTA/NEA; 	John L. 	Bukey, 	Attorney
(Biddle, 	Walters 	& Bukey) 	for Muroc Unified School District.
Before Gluck, Chairperson; 	Cossack Twohey and Gonzales, Members.
OPINION
On November 17, 	1976, 	the Muroc Education Association,
CTA/NEA 	(hereafter 	Association) 	filed 	an 	unfair 	practice 	charge
against 	the Muroc Unified 	School 	District 	(hereafter 	District)
contending 	that 	the 	District 	had 	violated 	sections 	3543.5 	and
3543.1(c)1 of 	the 	Educational 	Employment 	Relations 	Act2
(hereafter 	EERA). 	The charge 	rests 	on the District's 	alleged
refusal 	to provide 	released 	time 	for 	more 	than 	four 	Association
negotiators 	thus 	allegedly 	denying 	rights 	guaranteed 	to
1 The 	Association 	charged 	only 	violation 	of 	sections
3541.3(c) 	and 	3543.5. 	We 	have 	construed 	the charge 	as 	alleging
violation of 	section 	3543.5(b) 	by 	denying 	rights 	guaranteed 	in
section 3543.l(c), 	and violation of section 3543.5 (c) 	by
refusing 	to 	negotiate 	in 	good 	faith.
2 The 	EERA 	is 	codified 	at 	sections 	3540 	et 	seq. 	of 	the
Government Code. 	All 	statutory citations 	are 	to the
Government 	Code 	unless 	otherwise 	specified.

employee organizations. 	The 	charge 	also rests 	upon 	the
District's 	alleged 	refusals 	to negotiate 	in 	the 	presence 	of 	an
operating 	tape recorder, 	delays of meetings, 	attempts 	to limit
the 	number 	of Association negotiators, 	frequent 	changes 	of
negotiators, 	withdrawal of 	tentative agreements, 	conditioning
of 	negotiations, 	and communications with employees. 	These
acts, 	the Association alleges, 	amount 	to a course of conduct
constituting 	a 	refusal 	to negotiate 	in good 	faith. 	The 	hearing
officer 	issued 	a 	recommended 	decision on November 	2, 	1977,
dismissing 	the 	charges. 	The Association 	took 	timely exception
to 	the 	recommended 	decision 	in 	its 	entirety. 	We 	sustain 	the
findings 	and 	conclusions 	of 	the 	recommended 	decision 	to 	the
extent 	consistent 	with 	this 	decision.
FACTS
The District 	has 	nine 	schools 	grouped 	into 	seven 	building
units. 	Five 	of 	these 	units 	are clustered on Edwards Air 	Force
Base. 	The 	certificated 	staff 	number 	165 	living 	as much 	as 	100
miles 	apart.
On June 15, 	1976, 	prior 	to recognition, 	the Association
presented 	its 	proposed 	contract 	to 	the 	District. 	The 	District
voluntarily 	recognized 	the Association on 	September 	29, 	1976,
and on October 	5, 	1976. 	The counterproposal was one page 	in
length 	proposing 	no 	change 	on District 	policies 	except 	for 	a
management 	rights 	clause, 	salary and benefits 	clause, 	and 	that
the 	contract 	be 	for 	three years. 	The 	negotiators 	for 	the
parties met 	for 	the 	first 	time on October 	15, 	1976.
22

Representing 	the 	District 	was 	Robert 	Latchaw of 	the
California 	School 	Boards 	Association 	(CSBA) 	along with 	the
Assistant 	Superintendent 	of 	the 	District 	and 	the 	District
Business 	Manager. 	Present 	for 	the Association on 	released 	time
were Mr. 	Paul Oglesby, 	Head Negotiator, 	Sir Lisle Babcock,
Association President, Mr. George Lewis, Mr. Ken Kerr,
Mr. 	Roland Ford, Ms. 	Madelyn McNeil 	and Ms. Marge Nelson. 	At
the 	beginning 	of 	the 	session 	the Association 	turned on 	a 	tape
recorder 	and 	it 	remained 	on 	throughout.
The 	District's 	negotiator 	presented 	proposed 	ground 	rules
as follows:
GROUND 	RULES 	FOR NEGOTIATIONS
Ground 	rules 	for 	negotiations 	between
MUROC 	EDUCATION ASSOCIATION 	and 	the
MUROC 	UNIFIED 	SCHOOL 	DISTRICT:
1. 	The 	district 	and 	association will 	each
be permitted three 	(3) 	at 	the table
negotiators 	for 	the 	duration of
contract 	negotiations.
2. 	Neither 	side will 	issue press 	releases
until 	settlement 	is 	reached 	or 	impasse
is declared and 	the E.E.R.B. 	concurs.
3. 	The district will 	allow 	a reasonable
amount 	of 	release 	time without 	loss 	of
pay for 	three 	(3) 	teachers 	for 	the
purposes 	of 	attending 	negotiations.
4. 	The 	district 	and 	association may
33

provide 	their 	own 	secretarial
assistance 	for 	note 	taking 	purposes 	but
in 	no 	event 	will 	tape 	recordings 	be
allowed.
5. 	Contract will 	be 	divided 	into monetary
and 	non-monetary 	items. 	Settlement
will 	be 	reached 	on 	non-monetary 	items
prior 	to negotiating monetary 	items.
The Association 	desired 	released 	time 	for 	seven 	negotiators 	and
desired 	to 	tape 	record 	the 	sessions. 	The Association 	requested
released 	time 	for 	seven 	negotiators 	so 	that 	each 	of 	the 	seven
school 	units 	would 	have 	a representative 	at 	the 	table. 	The
Association 	also 	notes 	that 	the Certificated 	Employee Council
(CEC) 	under 	the Winton Act3 contained nine members. 	Each
member 	of 	the 	original Association 	team 	represented 	the 	unit 	he
or 	she worked 	at 	except 	for Mr. 	Kerr who worked 	at
Branch School 	(represented by Ms. 	McNeil), 	but who represented
the Forbes Avenue 	School. 	Prior 	to the 	hearing Oglesby
resigned 	from 	the 	negotiating 	team 	and 	was 	replaced 	by 	a 	person
also working 	at Branch School. 	The Association has 	also
divided 	areas 	of 	expertise 	among 	the 	various members 	of 	the
team. 	The Association 	testified 	that 	should 	a member 	not
attend 	a 	negotiating 	session, 	negotiations 	could 	not 	proceed 	in
that person's 	area of 	expertise. 	However, 	the Association team
3The Winton Act, 	former 	Education Code 	sections 	13080
et 	seq., 	was 	repealed effective July 1, 	1976, 	by the EERA.
44

has 	two primary spokespersons; 	the 	other members 	speak 	only
occasionally. 	The Association 	testified 	that 	its 	primary
reason 	for 	wishing 	to 	tape 	record 	sessions 	was 	that 	they 	could
not 	afford 	a 	secretary. 	Both parties 	had 	tape 	recorded meet
and 	confer 	sessions 	under 	the Winton Act 	and 	the District 	had
never 	objected 	to 	that 	practice.
Negotiations 	proceeded 	with 	the 	District moving 	from 	its
initial 	proposal 	of 	released 	time 	for 	three 	negotiators 	to
released 	time 	for 	four 	negotiators 	but 	no limit 	on 	the 	number
of Association negotiators, 	and 	the Association moving 	to a
proposal 	for 	released 	time 	for 	five 	negotiators, 	but 	there was
no movement 	on 	the 	tape 	recording 	issue. 	The meeting was
unilaterally 	ended 	by District 	spokesman Latchaw 	but 	the 	record
has 	conflicting 	evidence 	on what 	Latchaw 	said 	as 	he 	ended 	the
meeting. 	He 	declared 	that 	until 	the Association 	agreed 	to
released 	time 	for 	four 	negotiators 	and did 	not 	tape 	record
sessions 	either 	there would 	be 	no 	further meetings 	or 	there
would be 	no 	negotiations 	on substantive matters. 	Resolution of
this 	evidentiary conflict 	does 	not 	affect our 	disposition of
the case.
The parties 	next met on November 	3, 	1976, 	at which time 	the
spokesperson 	for 	the 	District 	was 	Robert Milling,
Executive 	Director 	of 	the Negotiations Division of CSBA, 	along
with 	the Assistant 	Superintendent 	of 	the 	District 	and 	the
District 	Business Manager. 	Once 	again 	seven Association
negotiators 	were 	given 	released 	time 	by 	the District. 	Ground
rules 	were 	again 	discussed 	but 	there 	is 	no 	evidence 	that 	the
55

District 	insisted 	that 	the 	ground 	rules 	be 	discussed 	before
substantive matters 	or 	that 	the Association objected 	to 	their
prior 	discussion. 	The Association 	had 	a 	tape 	recorder 	in
operation 	for 	the 	first 	few minutes 	of 	the 	session but 	turned
it off 	as, 	in the words of 	the head Association negotiator, 	"we
caucused 	and 	decided 	that 	we would 	leave 	the 	tape 	recorder 	off
when we 	felt 	that 	good 	faith 	negotiations 	were 	taking
place...." 	This 	decision 	of 	the Association was 	announced 	to
the District's 	negotiators. 	Milling 	informed 	the Association
that 	they 	were 	negotiating 	from 	scratch 	and 	proposed 	the
District 	provided 	released 	time 	for 	one 	negotiator. 	During 	the
following 	discussions 	both 	parties 	returned 	to 	their 	final
positions 	of 	October 	15: 	the District 	proposed 	released 	time
for 	four 	negotiators; 	the Association sought 	released 	time 	for
five. 	Toward 	the 	end 	of 	the meeting 	the Association 	turned 	on
the 	tape 	recorder, 	and 	the 	District 	spokesperson 	declared 	he
would 	declare 	an 	impasse 	and 	a recess, 	left 	the meeting 	and 	did
not 	return.
On November 	5, 	1976, 	the Association requested 	in writing
that 	five 	of 	its 	negotiators meet with 	the District 	on
November 	10 	with 	a 	tape 	recorder 	present. 	The
Assistant 	Superintendent 	of 	the District 	responded 	on
November 	8, 	1976, 	proposing 	instead 	that 	they meet 	on
November 	11, 	1976, 	with 	the District providing 	released 	time
for 	four 	Association 	negotiators, 	the Association paying 	for
any others 	it 	desired, 	and 	no 	tape 	recording of 	the session.
6
6

The Association 	declined, 	and 	no meeting was 	held 	on
November 	10 or 	11.
The 	third meeting was on November 	17, 	1976, 	at which 	time
Pete Ford 	of 	CSBA was 	the District 	spokesperson 	with 	the
Assistant 	Superintendent 	and 	the 	Business Manager 	once 	again 	in
attendance. 	The Association 	negotiators 	began 	to record 	the
session, 	Ford 	insisted they stop, 	they refused, 	and Ford walked
out. 	The meeting 	had 	lasted 	approximately 	two minutes.
On November 	17, 	1976, 	the Association filed 	the charge 	in
this case. 	The next day, November 18, 	the Association
requested 	in writing 	a meeting 	with 	the 	District 	on November
23. 	The 	letter 	did 	not mention 	tape 	recordings. 	The District
negotiator 	did 	not 	respond 	until 	3:00 	p.m. 	on November 	23 	at
which 	time 	the Association 	was 	told 	there 	would 	be 	no meeting.
On November 	19, 	1976, 	a 	"Press Release" 	from District
spokesperson Ford was 	placed 	in 	all 	teachers' 	boxes 	asserting
that 	the Association's 	charge was 	groundless, 	would 	prolong
negotiations, 	and that use of 	a tape recorder was 	improper.
This was 	followed on November 	30, 	1976, 	by a letter 	from
Milling, 	District spokesperson on November 	3, 	to the
Association's 	head 	negotiator 	conditioning 	further 	negotiations
on 	"a written 	letter 	from 	your 	group 	agreeing 	to 	remove 	the
tape 	recorder, 	only until 	such 	time 	as EERB has 	had 	a 	chance 	to
hear 	both our 	arguments...." 	That 	same 	day, 	November 	30, 	1976,
Association 	representatives 	attended 	a 	public 	school 	board
meeting 	and 	for 	approximately 	half 	an 	hour 	expressed 	the
77

Association's 	dissatisfaction 	with 	the 	conduct 	of 	the
negotiations 	under 	CSBA 	spokespersons.
The next day, 	December 1, 	1976, 	the Assistant
Superintendent 	of 	the District 	sent 	the Association 	a 	letter
requesting 	a 	negotiating 	session within 	ten 	days 	and 	proposing
unrestricted 	recording of 	negotiation 	sessions, 	public
negotiation sessions, 	a one-item contract 	(salary) 	for
1976-1977 with negotiations 	commencing February 21, 	1977, 	for
the 1977-1978 	contract.
The parties met on December 	8, 	1976, 	for 	negotiations. 	The
District 	was 	represented 	in 	this 	and 	all 	subsequent 	sessions 	by
the Assistant 	superintendent 	and 	the 	Business Manager. 	Both
parties 	recorded 	the 	session 	and 	a newspaper 	reporter, 	invited
by 	the District, 	was 	present. 	The Association 	initially
objected 	to 	the 	presence 	of 	the 	reporter 	but 	then 	acquiesced.
At 	this 	session 	the District 	refused 	to negotiate 	on 	any
matters 	until 	the Association 	agreed 	to limit 	negotiations 	to
salaries.
A memorandum 	was 	distributed 	by 	the 	District 	to 	all
certificated 	employees on December 	10, 	1976, 	which reported 	the
December 	8 	session with 	the 	"comment":
The 	District wants 	the 	new 	salaries 	in 	the
hands 	of 	the teachers 	as 	early as possible.
It 	would 	seem 	that 	this 	could 	best 	be
accomplished 	by 	holding 	talks 	on 	the 	total
contract 	in 	abeyance 	for 	this 	short 	time
indicated above 	[February 21, 	1977].
In 	the past 	both 	parties 	had 	distributed memoranda 	to 	teachers
concerning meet 	and 	confer 	sessions 	under 	the Winton Act. 	As
8

the Association 	assumed 	such memoranda were proper, 	there 	is 	no
evidence 	that 	the Association 	protested 	the memorandum.
During 	the negotiations 	subsequent 	to December 	10, 	1976,
the District 	dropped 	its 	demand 	that 	only 	salaries 	be
discussed, 	and 	every 	item of 	the 	contract 	sought 	by 	the
Association was 	discussed. 	Between December 10, 	1976, 	and the
unfair practice 	hearing on February 17, 	1977, 	the parties met
on December 15, 	January 19 and 28, February 2, 	9, 	10, 	14 and
16. 	February 15 was 	designated a 	day for 	preparation of
negotiations 	and 	released 	time was 	given 	the Association's
negotiators. 	Seven Association 	negotiators 	were 	released 	on
January 	28. 	The parties 	agreed 	to 	concentrated 	negotiations 	on
February 9, 	10, 	14 	and 16 with four Association negotiators
released 	for 	those 	sessions.
The 	District 	presented 	uncontested 	estimates 	that 	300 	hours
of 	release 	time 	had 	been given Association negotiators, 	and 	65
hours 	had 	been 	contributed 	by Association 	negotiators 	in
meetings 	after 	school 	hours.
Although 	the 	parties 	admittedly 	negotiated without 	an
agreement 	to 	sign off 	sections 	of 	the 	contract 	on which
agreement 	had 	been 	reached, 	an Association 	negotiator 	testified
that on one occasion, 	apparently in January, 	the District
reneged 	on 	an 	agreement 	reached on 	a grievance 	article 	in 	the
previous 	session. 	The 	article was 	renegotiated 	with 	some
changes. 	Conversely, 	the District 	negotiator 	contended 	that
after February 	2, 	1977, 	the Association negotiators 	had refused
to 	negotiate 	any particular 	item 	in 	depth 	but 	shifted 	from 	one
99

item 	to 	another 	in order 	to 	avoid 	agreement 	prior 	to
the 	hearing 	and 	a pending 	school 	board 	election.
DISCUSSION
Number 	of 	Negotiators 	Released
Section 3543.1 (c) 	provides:
A 	reasonable number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to receive 	reasonable 	periods 	of
released 	time without 	loss 	of 	compensation
when meeting 	and 	negotiating 	and 	for 	the
processing of 	grievances.
In Magnolia Educators Association4 the 	Board 	held 	that 	a
failure 	to provide 	reasonable 	Board 	released 	time 	violated
section 3543.5(b),5 and 	stated:
"Reasonable released time" means, 	at least,
that 	the 	District 	has 	exhibited 	an 	open
attitude 	in 	its 	consideration of 	the 	amount
of 	released 	time 	to be 	allowed 	so 	that 	the
amount 	is 	appropriate 	to 	the 	circumstances
of 	the 	negotiations. 	The District may have
to readjust 	its 	allotment 	of 	released 	time
based 	upon 	the 	reasonable 	needs 	of 	the
district, 	the number of 	hours 	spent in
negotiations, 	the number of 	employees 	on 	the
employee 	organization's 	negotiating 	team,
the progress 	of 	the 	negotiations 	and other
relevant 	factors. 	A district's 	policy does
not 	provide 	for 	reasonable periods 	of
released 	time 	if 	the 	policy 	is 	unyielding 	to
changing 	circumstances.
The 	same 	considerations 	which 	determine 	the 	reasonableness
of 	the 	amount 	of 	released 	time 	granted 	likewise 	influence 	the
4(6/27/77) 	EERB Decision No. 	19.
5Section 	3543.5(b) 	provides:
It 	shall 	be 	unlawful 	for 	a public school 	employer
to:...[d]eny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
10

reasonableness 	of 	the number 	of 	employees 	released 	for
negotiations. 	In both cases 	it 	is 	essential 	that 	the District
exhibit 	an open 	attitude 	in 	consideration of 	the 	amount 	of 	time
and 	number 	of 	negotiators 	conducive 	to productive
negotiations. 	This 	does 	not 	imply that 	the District must
accede 	to the 	demands 	of 	the employee organization. 	But, 	just
as 	the 	public 	school employer must 	remain 	flexible 	and
responsive 	to the 	changing 	needs 	arising 	in negotiations, 	so
must 	the 	employer 	demonstrate 	a willingness 	to 	accommodate 	the
legitimate needs 	of 	the 	employee organization. 	Among 	the
factors 	which 	contribute 	to a 	determination of 	a 	reasonable
number 	of 	released 	negotiators 	are 	the 	complexity of 	the
negotiations 	requiring sharing 	of 	responsibilities, 	the
reasonable needs 	of 	the 	employee 	organization 	to 	include
representatives 	of 	various 	groups 	on 	their 	negotiating 	team,
and 	the 	number 	of 	hours 	spent 	in negotiations.
In 	the present 	case 	the Association 	contends 	that 	the 	size
of 	the District militates 	for 	a 	separate 	representative 	for
each of 	the 	seven 	building 	units 	of 	the District. 	The
argument, 	though not 	clearly expressed, 	seems 	to be 	that 	a
representative 	from 	each 	geographically 	isolated 	location 	is
needed 	for 	prompt 	communications 	with 	all 	unit members.
However, 	this 	argument 	is 	inconsistent with 	the Association's
own 	requests 	since 	the Association's 	original 	negotiating
committee 	lacked 	a 	representative 	from one 	building 	unit, 	and
their 	committee 	at 	the 	time of 	the 	hearing 	lacked
representatives 	from two building 	units. 	In addition, 	five 	of
11

the 	building 	units 	are clustered on Edwards Air Force Base, 	and
the Association offered 	no 	explanation why one 	or 	two members
of 	the 	negotiating 	team 	could 	not maintain 	adequate 	contact
with 	the 	employees 	in those building 	units. 	Even 	if we 	agree
that 	the 	size of 	the District 	calls 	for 	a representative 	from
each 	geographically 	isolated 	location of 	employment, 	which we
do not 	today hold, 	the Association, 	by 	its 	own apportioning of
members 	of 	its 	negotiating 	team, 	lacked 	representatives 	from
two building 	units, 	and 	demonstrated 	the existence of, 	at most,
three 	geographically 	isolated 	employment 	areas.
Nor 	is 	the Association's 	contention 	that 	the 	division of
responsibilities 	among members 	of 	their 	negotiating 	team
requires 	five or more 	released members 	persuasive. 	The 	record
is 	singularly devoid 	of 	evidence 	that 	a 	division of
responsibilities 	requiring more 	than 	four 	team members, 	the
number 	to which 	the District 	agreed, 	was 	either 	necessary 	for
adequate Association 	preparations 	or 	conducive 	to more
productive 	negotiations.
While 	the 	District 	generally 	contended 	that 	released 	time
for 	four 	negotiators was 	adequate, 	that position was 	not
adopted without 	consideration of 	the Association's 	views. 	Nor
was 	it 	inflexibly 	applied. 	At 	the 	first 	negotiating 	session
the 	District 	changed 	its 	position 	to 	allow 	released 	time 	for
four 	rather 	than 	three Association 	negotiators. 	More
importantly, 	for 	almost 	a 	third of 	the 	negotiating 	sessions,
the District 	released 	seven Association 	negotiators.
12

It 	is 	apparent 	from 	the 	record 	that 	the District was 	open
to 	the Association's 	views 	on 	an 	adequate 	number 	of 	released
negotiators. 	Moreover, 	the District 	frequently sought 	to
accommodate 	the 	desires 	of 	the Association 	even when 	convinced
those desires were unreasonable. 	It 	is 	clear 	in these
circumstances 	that 	the District 	thereby 	complied with 	the 	right
guaranteed 	the 	Association 	in 	section 	3543.1(c), 	and 	that 	no
violation of 	section 3543.5(b) 	has 	been demonstrated.
Refusal 	to Negotiate 	in Good Faith
This 	is 	the 	first 	case 	in which 	the Board 	itself 	is 	asked
to rule on a charge of 	surface bargaining. 	It 	is 	the essence
of 	surface 	bargaining 	that 	a party goes 	through 	the motions 	of
negotiations, 	but 	in fact 	is weaving otherwise unobjectionable
conduct 	into 	an 	entangling 	fabric 	to 	delay or 	prevent
agreement.6 Specific conduct 	of 	the 	charged party, 	which
when 	viewed 	in 	isolation may be wholly proper, may, 	when placed
in 	the narrative 	history of 	the negotiations, 	support 	a
conclusion 	that 	the 	charged 	party was 	not 	negotiating 	with 	the
requisite 	subjective 	intent 	to 	reach 	agreement.7 Such
behavior 	is 	the 	antithesis 	of 	negotiating 	in good 	faith.
In 	the 	instant 	case 	the Association 	contends 	that 	the
District 	evidenced 	its 	lack 	of 	good 	faith 	in 	negotiations 	by
6Inter-Polymer 	Industries 	(1972) 	196 	NLRB 729, 	759-60 	[80
LRRM 1509, 	1512], 	pet. 	for 	rev. 	den. 	(9th Cir. 	1973) 	480 	F.2d
631 	[83 	LRRM 	2735].
7See 	West Coast Casket Co. 	(1971) 	192 NLRB 624 	[78 	LRRM
1026, 1030] 	(concurring opinion of Chairman Miller), 	enfd, 	in
part, 	(9th Cir. 	1972) 	469 	F.2d 	871 	[81 	LRRM 2857].
13

initially 	refusing 	to negotiate 	with 	a 	tape 	recorder 	present,
delaying meetings, 	attempting 	to limit 	the 	number 	of
Association negotiators, 	changing District 	negotiators,
withdrawing 	tentative 	agreements, 	conditioning negotiations,
and 	communicating 	with 	employees.
As 	to 	the 	refusal 	to negotiate with 	a 	tape 	recorder
present, 	while 	there 	is 	support for 	those who prefer 	sessions
to be 	recorded,8 the 	contention of 	the District 	that 	such
recordings 	are 	not 	conducive 	to productive 	negotiations 	is
widely 	accepted.9 In 	reversing 	a 	27-year 	policy, 	the
National 	Labor 	Relations Board 	(hereafter 	NLRB) 	recently 	held
that 	insistence 	to 	impasse on 	the 	presence of 	a 	stenographic
reporter 	in negotiations 	is a per 	se refusal 	to bargain, 	and
deliberately 	disapproved 	the 	practice 	of 	having 	a 	reporter 	in
negotiation 	sessions.10 We 	share 	the 	concern 	that 	the
advantage 	of 	a precise 	record 	of 	negotiations may 	be
outweighed by 	the 	inhibition 	of 	the 	free 	flow 	of 	frank
discussion 	essential 	to 	collective 	negotiations. 	Among 	the
disadvantages 	of 	a verbatim 	record, 	as 	is 	demonstrated 	in 	this
8See Gorman, 	Basic Text on Labor Law 	(West 1976) 	p. 	406;
St. 	Louis Typographical Union 	(1964) 	149 NLRB 750, 	758 	[57 LRRM
1370].
9st	9st . 	Louis Typographical Union, 	supra, 	149 NLRB at 754,
fns. 	11, 12, and 13. 	[57 LRRM at 1373, fns. 11, 12, and 13.]
10Bartlett-Collins Co. 	(1978) 	237 NLRB No. 	106 	[99 LRRM
1034, 1036 fn. 	9 ] , reversing Reed & Prince 	(1951) 	96 NLRB 850
[28 LRRM 1608], 	enfd, 	on other grounds 	(1st Cir. 	1953) 	205 F.2d
131 	[32 LRRM 2225], cert. 	den. 	(1953) 	346 U.S. 	887 	[33 LRRM
2133].
14

case, 	negotiators 	tend 	to 	"play 	to" 	the 	record 	and make 	points
for 	use 	at 	an 	anticipated 	unfair 	practice 	hearing 	rather 	than
to strive for 	agreement. 	Moreover, 	the use of 	a tape recorder,
as opposed to other 	recording techniques, 	has, 	in our 	view,
peculiar 	potential 	to 	inhibit 	lively 	and 	genuine 	expression 	of
conflicting 	viewpoints. 	Accordingly, 	we 	do not 	consider 	the
District's position against 	recording of 	sessions 	to be, 	in
itself, 	evidence of bad faith. 	Moreover, 	after 	three sessions
the District 	caved-in 	to 	the Association's 	demand 	for 	tape
recording. 	For 	approximately 	two 	and 	a 	half months 	prior 	to
the 	hearing 	all 	sessions 	were 	recorded 	by 	both parties. 	The
agreement 	of 	the District 	to allow 	tape 	recording 	is 	all 	the
more 	remarkable 	as 	the Association 	negotiator 	announced 	at 	the
second 	session 	that 	the 	recorder 	would 	be 	on when 	the
Association 	felt 	it 	could 	gather 	evidence 	supporting 	an 	unfair
practice 	charge 	against 	the 	District 	and 	shut 	off 	otherwise.11
The Association 	has 	vigorously 	argued 	that 	in 	the 	past 	the
parties 	have 	recorded CEC 	sessions 	and 	that 	for 	the District 	to
deviate 	from that practice 	is 	evidence of 	bad 	faith. 	We 	cannot
accept 	that 	view. 	The practice 	the Association points 	to took
place 	under 	the 	now repealed Winton Act. 	Under 	that Act 	a
council 	composed of 	from 	five 	to nine 	representatives 	of 	every
employee 	organization 	having members 	who were 	certificated
is 	just 	such 	a 	use of 	tape 	recorders 	which 	the NLRB
has disapproved. 	See Reed & Prince, 	supra, 	at 1610, overruled
on other 	grounds Bartlett-Collins, 	supra.
15
ll	1litrt
__-_-_-_-~--_

employees 	of 	the District 	were 	authorized 	to meet 	and 	confer
with 	the 	District 	on 	employment 	conditions.12 There 	was 	no
provision 	for 	selection 	of 	an 	exclusive 	representative,13 nor
did 	the 	obligation 	to meet 	and 	confer 	encompass 	the 	ability 	to
enter 	binding 	agreements.14 We 	cannot 	equate 	the 	pressures
and 	needs 	of 	the 	parties 	engaged 	in 	non-exclusive meet 	and
confer 	sessions 	with 	those 	faced 	by 	the 	parties 	with 	an
exclusive 	employee 	representative 	in 	full 	blooded 	negotiations
in which 	the 	parties 	are 	empowered 	and obliged 	to 	attempt 	to
achieve 	a 	binding 	agreement.15 Accordingly, 	the 	fact 	that
the District 	ceased 	agreeing 	to 	tape 	recordings 	with 	the 	demise
of 	the Winton Act 	is not, 	in itself, 	evidence of 	bad faith.
Indeed, where, 	as here, 	the parties 	are at the inception of
their 	relationship under 	the EERA, 	and 	the practices
established will likely endure, 	it 	is particularly
understandable 	that 	the 	District 	would 	refuse 	to 	acquiesce 	in
the use of 	tape 	recorders.
Viewed 	in the circumstances 	of 	this 	case, 	as 	the District
went 	through 	the 	first 	negotiating 	session 	with 	the 	tape
recorder 	on, 	walked out 	of 	the 	second 	session 	after 	the
12	12Former	Former 	Education Code 	section 	13085.
13Former 	Education Code 	section 	13085.
14Former 	Education Code section 13081 (d); 	San Francisco
v. Cooper 	(1975) 	13 Cal.3d 898, 	925-927 	[89 LRRM 2262]; 	Grasko
v. 	Los Angeles City Bd. 	of Ed. 	(1973) 	31 Cal.App.3d 290, 	[82
LRRM 	3098].
15Sections 3540.1 (h), 3543.3.
16

Association 	had 	virtually 	announced 	that 	the 	tape 	recordings
would 	be 	used 	simply 	to prepare 	for 	an 	unfair 	practice 	charge,
and 	eventually 	conceded 	and 	allowed 	tape 	recording 	of 	all
sessions, 	we 	do 	not 	find 	that 	the District's 	refusal 	to attend
negotiating 	sessions 	being 	tape 	recorded 	was 	in 	bad 	faith.16
On 	the 	charge of 	delaying negotiations, 	the Association
requested 	sessions 	on November 	10 	and 	23. 	The District
proposed 	that 	the 	parties meet November 	11 	rather 	than 	on
November 	10, 	and, 	as 	the latter 	date was 	unacceptable to the
Association, 	no meeting was 	held. 	It 	is 	true that 	the District
did 	refuse 	to meet 	on November 	23 	as 	requested 	by 	the
Association. 	However, 	the District 	initiated 	the next meeting
which was 	held on December 	8. 	This 	single 	instance of 	delay
attributable 	to the District 	does 	not, 	in these 	circumstances,
establish 	a 	design 	to frustrate negotiations.
As 	for 	the District's 	attempts 	to limit 	the 	total 	number 	of
Association 	negotiators, 	from 	the 	first 	negotiating 	session 	the
District 	was 	willing 	for 	the Association 	to have 	as 	large 	a
negotiating 	team 	as 	it wished. 	As 	previously discussed, 	the
District 	demonstrated 	an open, 	flexible, 	and accommodating
approach 	to 	the 	number 	of 	negotiators 	receiving 	released 	time.
The 	fact 	that 	under 	the Winton Act 	there were 	nine members 	of
the CEC 	is 	unpersuasive. 	Under 	the Winton Act 	the CEC 	could
not 	have 	been 	composed 	of 	any 	less 	than 	five 	representatives,
and was 	composed 	of 	representatives 	of 	all 	employee
16 see 	St. 	Louis Typographical Union, 	supra.16
17
see _______________

organizations 	with 	certificated members 	employed 	by 	the
District.17 However, 	the 	EERA provides 	for 	exclusive
representation 	by one 	employee organization. 	Thus 	the 	very
circumstances 	which may 	have 	determined 	the 	number 	of
negotiators 	necessary under 	the Winton Act 	no longer 	exist.
The Association 	complained 	that 	the District 	changed
negotiators 	frequently. 	This 	complaint 	applies 	only 	to 	the
changes 	from Latchaw 	to Milling 	to Ford, 	as 	the 	change 	from
these CSBA 	negotiators 	to 	the Assistant 	Superintendent 	and
Business Manager 	was 	sought 	by 	the Association. 	It 	is
conceivable 	that 	too frequent 	a 	turnover 	in 	negotiators may
delay 	and 	frustrate 	agreement 	particularly where 	each
negotiator 	is 	ignorant of 	the prior 	negotiations. 	But, 	in this
case, 	the Assistant 	Superintendent 	and Business Manager 	of 	the
District 	were 	present 	at 	every session, 	and 	no 	evidence was
presented 	that 	continuity 	in 	the 	negotiations 	was 	lost 	by 	the
complained 	of 	changes.
We 	find 	it 	difficult 	to credit 	the 	contention 	that 	on one
occasion 	the District 	reneged 	on 	a 	tentative 	agreement 	as 	it 	is
conceded 	that 	the 	parties 	had 	no 	agreed method 	for 	designating
tentative 	agreements. 	Moreover, 	the Association 	testified 	that
agreement 	was 	once 	again 	reached at 	the 	following 	session.
Assuming 	that 	the District's 	negotiators 	on December 	8
improperly 	conditioned 	negotiations 	on 	the 	Association's
acceptance 	of 	the 	concept 	of 	a one-item contract 	for
17Former 	Education Code 	section 	13085.
18

1976-1977,18 we 	note 	that 	negotiations 	from 	that 	point 	on
were 	conducted with 	full 	discussion of 	all 	items 	presented 	by
the Association. 	A 	technical 	violation, 	with 	no discernible
impact, 	and which 	is 	immediately retracted 	is 	scant 	evidence 	of
a 	refusal 	to negotiate.
The Association 	charges 	that 	the 	District 	improperly
communicated with 	the 	unit members 	in 	two memoranda. 	The EERA
imposes 	on 	the 	public 	school 	employer 	an obligation 	to meet 	and
negotiate with 	the 	exclusive 	representative, 	and 	embodies 	the
principle 	enunciated 	in 	federal 	decisions 	that 	the 	employer 	is
subject 	to 	the 	concomitant 	obligation 	to meet 	and 	negotiate
with 	no 	others, 	including 	the 	employees 	themselves.19
Consequently, 	as 	in federal jurisdiction, 	actions of a public
school 	employer 	which 	are 	in 	derogation of 	the 	authority of 	the
exclusive 	representative 	are 	evidence 	of 	a 	refusal 	to 	negotiate
in 	good 	faith.20 This 	is 	not 	to say 	that 	public 	school
employers 	are precluded, 	under 	the EERA, 	from freely expressing
their 	views.21 They 	are 	precluded 	from 	using 	direct
18See 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736, 	743 	[50 LRRM
2177, 	2180] 	(Held: 	a refusal 	to negotiate in fact on any
mandatory subject 	the 	union presents 	violates 	the NLRA).
19Section 	3543.3; 	See Medo Photo Supply Corp. 	v. 	NLRB
(1944) 	321 U.S. 678, 14 LRRM 581.
20see 	NLRB v. 	Goodyear Aerospace Corp. 	(6th Cir. 	1974)
497 F.2d 	747 	[86 	LRRM 2763], 	enforcing 	in part 	(1973) 	204 NLR
831 	[83 	LRRM 	1461].
20 See
B
21While 	the EERA does 	not 	contain 	a provision parallel 	to
section 	8(c) 	of 	the National Labor Relations Act 	expressly
guaranteeing 	the 	right 	of 	the 	employer 	to free 	expression of
its 	"views, 	argument or opinion," 	such a guarantee 	is 	implicit
in 	the 	fact 	that 	only a 	refusal 	to limit 	negotiations 	to the
exclusive 	representative 	is 	prohibited 	by 	the EERA.
19
_

communications 	with 	their 	employees 	to 	bypass 	the 	exclusive
representative 	and 	undermine 	that 	representative's 	exclusive
authority 	to 	represent 	the 	unit members 	and 	negotiate with
their 	employer. 	In each 	case, 	the 	touchstone for 	determining
the propriety of 	public school 	employers' 	direct 	communications
with 	their 	employees 	is 	the 	effect 	on 	the 	authority of 	the
exclusive 	representative.22
In the 	instant 	case, 	the employer 	is 	charged with
distributing 	two memoranda 	to 	its 	certificated 	employees. 	The
first, 	that on November 19, 	1976, 	accused the Association of
delaying 	negotiations 	by 	filing 	the 	charge 	in 	this 	case,
asserted 	that 	the 	District 	would 	"try 	to 	reopen 	negotiations,
without 	a 	tape 	recorder," 	and 	urged 	that 	the 	"[Association]
leadership...recognize 	the 	foolishness 	of 	unnecessarily
prolonging 	the 	negotiations 	process 	and 	commence 	sincere
dialogues." 	The second memorandum, 	of December 	10, 	1976, 	urged
that 	a one-item contract 	(salary) 	be 	signed for 	the 	current
year, 	and 	informed 	unit members 	that 	at 	the December 	8 meeting
their 	exclusive 	representative would 	not 	agree 	to 	discuss 	the
one-item 	contract 	without 	first 	seeing 	the 	District's 	salary
proposal. 	The Association 	does 	not 	contend 	that 	this
memorandum misrepresented 	the 	positions 	of 	the 	parties 	at 	the
December 	8, 	1976, meeting. 	The District, 	on the other 	hand,
contends 	that 	the 	custom 	of 	the 	parties 	in 	allowing 	issuance 	of
memoranda 	concerning CEC meetings 	under 	the Winton Act
22see
20
22see Goodyear Aerospace, 	supra.	_________

establishes 	a past 	practice 	for 	conduct 	surrounding
negotiations 	under 	the EERA. 	Once 	again, 	customs 	indulged
under 	the 	limited 	rights 	and 	obligations 	of 	the Winton Act 	are
unpersuasive 	in 	the 	context 	of 	negotiations 	pursuant 	to 	the
EERA. 	As 	discussed 	above, 	it 	is 	to protect 	the 	authority of
the 	exclusive 	representative 	established 	pursuant 	to 	the 	EERA
that 	public 	school 	employers 	are 	prohibited 	from 	certain 	direct
communications with their 	employees; 	the Winton Act, 	as we have
discussed, 	took 	pains 	to 	ensure 	that 	there was 	no exclusive
representative.
The 	requirement 	that 	the 	public 	school 	employer 	negotiate
in good 	faith with 	the 	exclusive 	representative 	does 	not 	per 	se
preclude 	the 	employer 	from communicating, 	in a noncoercive
fashion, 	with employees 	during 	negotiations.23 Of 	course, 	an
employer must 	refrain from 	a 	campaign 	of 	communications 	to 	sway
the 	views 	of 	the 	employees 	while maintaining 	an 	inflexible
position 	at 	the negotiating 	table. 	Such 	conduct bypasses 	and
undermines 	the 	exclusive 	representative 	by 	negotiating 	with 	the
union 	through 	the 	employees 	instead 	of 	negotiating 	with 	the
employees 	through 	the 	union.24 But, 	this 	is 	not 	to say that
an 	employer 	is 	precluded 	from 	accurately 	reporting 	the 	status
2 3 See NLRB v. 	General Electric Co. 	(2nd Cir. 	1969) 	418
F.2d 736, 	762 	[72 LRRM 2530, 	2551], cert. den. 	(1970) 	397
U.S. 	965, 	[73 LRRM 2600]; Proctor & Gamble Mfg. Co. 	(1966) 	160
NLRB 334, 340 	[32 LRRM 1617, 1620].
2 4 See General Electric Mfg. 	Co., 	supra, 	418 F.2d at 	759
[72 LRRM 	at 	2548].
21

of 	negotiations 	or 	the 	nature 	of 	proposals 	previously made 	to
the 	exclusive 	representative.25
In 	this 	case, 	the public 	school 	employer 	twice 	communicated
with 	its 	employees 	on the 	status 	of 	negotiations. 	There 	is 	no
contention 	that 	the 	communications 	inaccurately 	reported 	the
negotiations 	or misrepresented 	the positions 	of 	the 	parties.
Nor 	can 	we 	find 	that 	the District 	engaged 	in 	a 	campaign of
communications to sway the 	views 	of 	its 	employees 	while 	its 	own
position 	at 	the 	negotiating 	table 	remained 	inflexible: 	only
two communications over 	four months 	are 	in 	issue, 	and
immediately 	after 	each 	disputed 	communication 	the 	District
conceded 	the 	very points 	it 	had 	contested 	in 	the 	prior
negotiations 	and 	in 	the 	communications.
Viewing 	the 	circumstances 	of 	the 	case 	as 	a whole we 	find
that 	the Association 	has 	not 	demonstrated 	by 	a 	preponderance 	of
the 	evidence 	that 	the District 	was 	engaged 	in 	a 	five months
course of 	conduct 	amounting 	to 	a refusal 	to negotiate 	in 	good
faith.
25Proctor & Gamble, 	supra, 	160 NLRB at 340 	[62 LRRM at
1620]. 	-
22

ORDER
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
The unfair practice charge filed by the Muroc Education
Association, CTA/NEA against the Muroc Unified School District
is dismissed.
By: Jerilou Cossack Twohey, Member 	Harry Gluck Chairperson
Raymond J. Gonzales, Member
23
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by 	the 	Muroc 	Education
Association, 	CTA/NEA 	against 	the 	Muroc 	Unified 	School 	District
is 	dismissed .
By: 	Jerilou 	Cossack 	Twohey, 	Member 	Ha7 	Gluck 	Chairperson
Raymond 	J. 	Gonzales, 	Member
,
23

EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
MUROC EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party,
vs.
MUROC UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Case No. LA-CE-42
RECOMMENDED DECISION
November 2, 	1977
)
)
)
)
)
)
Appearances: 	Charles R. Gustafson, Attorney for the Muroc Education Association,
CTA/NEA; John L. Bukey, Attorney (Biddle, Walters & Bukey) 	and Robert A. Milling,
Executive Director, Negotiations Division, California School Boards Association,
for Muroc Unified School District.
Before Kenneth A. Perea, Hearing Officer.
INTRODUCTION
On November 17, 1976, the Muroc Education Association, CTA/NEA (hereinafter
referred to as MEA) filed an unfair practice charge against the Muroc Unified
School District (hereinafter referred to as MUSD) with the Educational Employment
Relations Board, State of California (hereinafter referred to as EERB), alleging a
violation of Government Code Sections 3543.l(e) and 3543.5.1	1
On November 29, 1976, MUSD filed with EERB an answer to the unfair practice
charge. 	On December 1, 1976, MUSD filed an amendment to its answer. 	On
December 22, 1976, MEA filed an amended unfair practice charge. 	On January 14, 1977,
1All section references are to the Government Code unless otherwise specified.
-1-
1
)
)
)
)
-----------~)

MUSD filed an answer to the amended charge and motion for dismissal. 	A hearing
in the matter was held in Los Angeles, California, before a hearing officer of
the EERB on February 17, 1977.
The essence of the unfair practice charge is that MUSD allegedly failed to
meet and negotiate in good faith with MEA, the exclusive representative; dominated
and interfered with the administration of MEA; and interfered with, restrained and
coerced certificated employees of MUSD because of their exercise of rights
guaranteed by the Educational Employment Relations Act 	(Sections 3540 et seq.,
hereinafter referred to as EERA).
FINDINGS OF FACT
There are nine schools in the MUSD which employ approximately 165
certificated employees.
Pursuant to the Winton Act, Education Code Sections 13080 et seq., repealed
- -
by the EERA effective July 1, 1976, the Certificated Employees Council (CEC) for
MUSD had nine members. 	Both parties tape recorded all meet and confer sessions
under the Winton Act and MUSD never objected to MEA's use of a tape recorder during
said sessions.
MEA presented its initial contract proposal to MUSD pursuant to the EERA on
June 25, 1976. 	MEA was officially recognized as the exclusive representative for
certificated employees in the MUSD on September 29, 1976. 	On October 5, 1976, at a
regular meeting of MUSD's Board of Education, MUSD presented to MEA its initial
proposal regarding a contract for the school year 1976-77.
On October 15, 1976, 	negotiators 	for MEA and MUSD met for the purpose of
establishing a schedule for negotiations regarding a contract for the school year
1976-77. 	MUSD gave to MEA a list of proposed "ground rules for 	negotiations." The
list of "ground rules" is set forth in whole as follows:
Ground Rules for Negotiations
Ground rules for negotiations between MUROC EDUCATION
ASSOCIATION and the MUROC UNIFIED SCHOOL DISTRICT:
- 2 -

1. 	The district and association will each be
permitted three (3) at the table negotiations
(sic) for the duration of contract negotiations.
2. 	Neither side will issue press releases until
settlement is reached or impasse is declared and
the E.E.R.B. concurs.
3. 	The district will allow a reasonable amount of
release time without loss of pay for three (3)
teachers for the purposes of attending negotiations.
4. 	The district and association may provide their own
secretarial assistance for note taking purposes but
in no event will tape recordings be allowed.
5. 	Contract will be divided into monetary and non-monetary
items prior to negotiating monetary items.
MEA and MUSD then proceeded to negotiate regarding the above-specified "ground
rules for negotiations" but were unable to reach agreement regarding said rules.
On November 3, 1976, MEA and MUSD again met to negotiate. 	When MEA turned on
a tape recorder towards the end of the meet and negotiate session, the negotiating
team for MUSD stated that they were going to declare an impasse and a recess, left
the session, and did not return.
On November 5, 1976, MEA requested in writing that five of its negotiators
meet and negotiate with MUSD on November 10, 1976 from 8:30 a.m. to 4:30 p.m. 	Said
request indicated that MEA would once again be using a tape recorder. 	Dr. J. Carson
Wilcox, Assistant Superintendent, MUSD, responded in a letter dated November 8, 1976
that the negotiators for MUSD would be unable to meet on November 10, 1976 but would
be available on November 11, 1976. 	Dr. Wilcox further responded:
" . . . 	the session will be conducted only if there is
not any recording equipment in operation at the
session. . ."
Dr. Wilcox agreed that MUSD would provide release time without loss of compensation
for four negotiators from the certificated negotiating unit and that MEA would
have to pay for any additional negotiators. 	MEA declined MUSD's offer and no meet
and negotiate session was held on either November 10 or November 11, 1976.
The next negotiating session was held on November 17, 1976. 	The session lasted
approximately two minutes when MUSD's negotiators walked out after MEA refused to turn
off its tape recorder.
-3-

On November 18, 1976, MEA requested in writing that a meeting be held on
November 23, 1976 for the purpose of negotiations between MEA and MUSD. 	On
November 23, 1976, MEA telephoned MUSD to confirm whether MEA and MUSD would be
meeting on November 23, 1976. 	Although there is no direct evidence as to why, no
meeting was held on November 23, 1976.
On November 19, 1976, MUSD issued a "press release" which was placed in all
teachers' mailboxes and which stated that the filing of MEA's unfair practice charge
is "foolishness of unnecessarily prolonging negotiations" and further alleged that
MEA's use of a tape recorder is "improper conduct".
On December 1, 1976, MUSD sent to MEA a letter proposing unrestricted recording
of all negotiation sessions and that said sessions be open to the public.
On December 8, 1976, the parties met and negotiated. 	Both parties tape
recorded the session which was open to the public. 	MUSD invited a reporter from
a local newspaper. 	Although MEA initially objected to the presence of the press,
MEA agreed to allow the reporter to stay.
On December 10, 1976, MUSD distributed a memorandum to all certificated employees
indicating agreement between MEA and MUSD that all negotiation sessions could be
recorded and were open to the public. 	Both MEA and MUSD had distributed memoranda
to teachers in the past regarding the status of the meet and confer sessions pursuant
to the Winton Act.
The parties have, up until the date of the hearing, continued to meet and
negotiate on a regular basis, both parties tape recording the negotiating sessions.
-4-

ISSUES
(1) Whether MUSD refused to meet and negotiate in good faith in violation
of Section 3543.5(c) by attempting to precondition further negotiations upon agreement
with MEA on "Ground Rules for Negotiations" which included prohibiting tape recording
of the negotiating sessions.
(2) Whether MUSD dominated and interfered with the administration of MEA in
violation of Section 3543.5(b) or denied to MEA rights guaranteed to it by the EERB
in violation of Section 3543.5(d) by refusing to grant release time without loss of
compensation pursuant to Section 3543.l(c) for more than four MEA negotiators
(3) Whether MUSD interfered with, restrained or coerced employees of MUSD
. .
because of their exercise of rights guaranteed by the EERA by issuing a "press
release" regarding MEA's conduct during negotiations and by issuing a "memorandum"
to all certificated employees summarizing the negotiation session on December 8, 1976
in violation of Section 3543.5(a).
CONCLUSIONS OF LAW
I
The Allegation that MUSD Refused and
Failed to Meet and Negotiate in Good Faith
A. The Tape Recording of Negotiating Sessions
MUSD took the initial position during negotiations that it was not legally
obligated to meet and negotiate with MEA so long as MEA unilaterally insisted, over
MUSD's objection, on tape recording negotiating sessions. 	The record is clear,
however, that MUSD agreed to continue negotiations with MEA and to allow MEA to
in fact tape record negotiating sessions pending disposition of this unfair practice
charge by the EERB. 	While not bound by federal precedent,2 this hearing officer has
2Firefighters' Union, Local 1186, IAFF v. City of Vallejo, 12 Cal. 3d 608, 6
87 LRRM 2453, 2457 (1974).
17,
-5-

found the National Labor Relations Board's (NLRB) discussions on recording
negotiating sessions in various fact situations persuasive.
The NLRB considered the employer's insistence on having a stenotypist take
down a verbatim transcript of bargaining sessions, over the union's strenuous
objection, in Reed & Prince Manufacturing Co. and United Steelworkers of America,
CIO, 96 NLRB 850, 28 LRRM 1608 	(1951). 	The NLRB held:
The presence of a stenographer at such negotiations
is not conducive to the friendly atmosphere so
necessary for the successful termination of the
negotiations, and it is a practice condemned by
experienced persons in the industrial relations
field. 	Indeed, the business world itself frowns
upon the practice in any delicate negotiations where
it is so necessary for the parties to express them-
selves freely. 	The insistence by the Respondent
in this case upon the presence of a stenotypist at
the bargaining meetings is, in our opinion, further
evidence of its bad faith. 	96 NLRB at 854 [Emphasis added.]
The NLRB again considered the propriety of insistence on recording negotiations
in Allis-Chalmers Manufacturing Co. and Office Employees International Union, Local
No. 19, AFL, 106 NLRB 939, 32 LRRM 1585 (1953). 	The NLRB affirmed the portion of
the Trial Examiner's Intermediate Report holding:
In the Reed and Prince case the Board found that
insistence upon stenographic recording of the
negotiations, in the circumstances there presented,
constituted evidence of bad faith. 	In that situation,
however, the demand occurred in a context indicating
that it was advanced in order to impede effective
negotiation. 	I see no reason to infer the operation
of such a motive here. 	The Reed and Prince case is
further distinguishable on the following grounds:
There, the employer insisted upon a stenographic
transcription at each negotiating session; refused to
meet without it; refused to provide copies for the
Union; and the proceedings were fully recorded.
Finally, the Board found the insistence in the Reed
case "not in itself conclusive evidence of bad faith
bargaining," but only when viewed as part of a total
pattern evidencing general bad faith. 	I find no
such pattern here and regard the Reed case as inapplicable.
106 NLRB at 950
-6-

The NLRB further considered the legality of an employer's insistence on
recording negotiating sessions in East Texas Steel Castings Co., Inc. and
United States Steel Workers of America, CIO, 108 NLRB 1078, 34 LRRM 1152 (1954) ,
affirming 	the portion of the Trial Examiner's Intermediate Report which held:
But bearing in mind that insistence upon a
stenographic record to the extent which was
noted in Reed and Prince is not "in itself
conclusive evidence of bad-faith bargaining",
it is not altogether clear that the events in
that connection in the instant case would
prompt a finding of bad faith "when the entire
bargaining pattern of the Respondent is viewed
in its totality."
As noted, the Union at the meetings, cited the
Board's decision in the Reed and Prince case;
since when, the court, enforcing the Board's order,
declared itself "not inclined to agree" on this
factor. 	Not assuming that the Board will modify
its position in that respect, but noting the dis-
tinction which may be found in the circumstances
of this case, I find no evidence of bad faith in
this connection, basing such finding on two grounds,
either of which is sufficient: the Respondent acted
in good faith, using a stenographer as a precaution
which might prove unnecessary (hence no transcription);
and the Respondent's entire bargaining pattern viewed
in its totality in no wise militated against a
friendly atmosphere or free expression by the parties.
No intensive study of the Reed and Prince case is
necessary to point up the marked differences between
the attitudes and atmosphere there and in the instant
case. 	108 NLRB at 950.
Perhaps one of the best discussions regarding the recording of negotiations,
however, appears in St. Louis Typographical Union No. 8, 149 NLRB 750, 57 LRRM 1370
(1964), where the NLRB held:
1
As indicated by the Trial Examiner, 	the Board's
language in Reed and Prince regarding the effect
of the presence of a stenographer must be read in
the context of other evidence of bad faith which
was present in that case. 	In subsequent decisions,
the legality of insisting upon a stenographic
transcript at bargaining sessions has been determined
in the light of the entire bargaining context rather
than on a per se basis.
—7—

Similarly, in cases dealing with charges of a
refusal to bargain arising from an adamant
insistence on other conditions preliminary to
actual bargaining, such as the determination of
the time or place of bargaining, the Board has
avoided establishing rigid standards favoring any
particular proposal, but has, rather, attempted
to examine each case in terms of whether or not
the positions were taken to avoid or frustrate the
legal obligation to bargain.
In the instant case, as noted by the Trial Examiner,
it is clear that respected authorities differ in
their opinion of the effect of making a stenographic
transcript in collective-bargaining sessions. 	It is
not our intention here either to endorse or condemn
the practice of utilizing a stenographer during bar-
gaining negotiations. 	Rather, in this matter we shall
undertake to determine only whether, in assuming its
position, 	the Respondent acted in a manner consistent
with the principles of good-faith bargaining required
by the Act. 	149 NLRB at 751-7523
3In accord with the approach taken in St. Louis Typographical Union, supra, 	is
Architectural Fiberglass, 165 NLRB 238, 65 LRRM 1331 (1967) in which the NLRB held:
Whether or not Mrs. Selvin specifically
conditioned bargaining on the use of the
tape recorder, the record clearly establishes
that she adamantly insisted on using it
throughout the negotiations, over the vigorous
objections of the Union. 	We find, in all the
circumstances, that the Respondent by insisting
on using the tape recorder over the Union's
objections, was not acting in good faith.
Rather, when the Respondent's insistence is
viewed in the context of the Respondent's entire
course of conduct, as found herein, it is manifest,
and we find, 	that the Respondent had as its purpose
to avoid, delay and frustrate meaningful bargaining
with the Union. 	Accordingly, we find that the
Respondent's insistence on the use of the tape
recorder over the objection of the Union, further
evidenced its bad-faith bargaining as discussed
below, and further violated Section 8(a)(5) and (1)
of the Act. 	165 NLRB at 239
-8-

Thus, in approaching the question of whether it is proper to utilize a
stenographer during negotiating sessions, the NLRB, while refraining from either
endorsing or condemning the practice, has consistently held that the legality of
insistence on a stenographic transcript at bargaining sessions must be determined
in light of the entire bargaining context rather than on a per se basis in order to
determine whether the positions of the parties were taken to avoid or frustrate the
legal obligation to bargain.
The hearing officer, like the NLRB, believes that in cases dealing with
charges of refusal to negotiate arising from an insistence on conditions
preliminary to actual negotiating, policy considerations dictate the avoidance of
establishing rigid standards favoring any particular proposal. 	Rather, 	the hearing
officer believes that each case should be examined in terms of whether or not the
positions were taken to avoid or frustrate the legal obligation to negotiate. 	St. Louis
Typographical Union No. 8, ITU, supra.
Based upon the foregoing standard, it is concluded that MUSD did not take the
initial position that it would not meet and negotiate so long as MEA unilaterally
insisted on tape recording the negotiating session to avoid or frustrate MUSD's
legal obligation to negotiate.
Although MUSD objected to MEA's use of a tape recorder, attempted to dissuade
MEA from its use during negotiations and on two occasions broke off negotiations
when MEA insisted on tape recording negotiations, the simple fact remains that MUSD
went back to the negotiating table, agreed that all negotiating sessions could be
tape recorded and did indeed negotiate with MEA. 	It cannot therefore be concluded
that MUSD, in taking its initial position that it was not legally required to negotiate
with a tape recorder but later agreeing to negotiate with a tape recorder, acted in
bad faith.
-9-

B. 	The Attempted Negotiation of "Ground Rules for Negotiations"
The record clearly shows that prior to beginning negotiations with MEA
regarding "wages, hours and other terms and conditions of employment," MUSD
attempted to reach agreement with MEA regarding certain "ground rules" between
the parties while negotiating a collective negotiations agreement including such
items as (1) the number of negotiators for each party at the negotiations table,
(2) the issuance of press releases during negotiations, 	(3) the number of MEA
negotiators to be given released time pursuant to Section 3543.l(c), (4) the
tape recording of negotiation sessions, and (5) the negotiation of and agreement
on non-monetary items prior to negotiation on monetary items. 	The record shows
that the parties met and ground rules were discussed but no contract items
were negotiated on October 15, 1976 and November 3, 1976. 	No agreement between
the parties regarding ground rules was reached. 	Subsequent to November 3, 1976,
the parties did, nevertheless, continue to meet and negotiate without ground
rules.
Examining MUSD's aborted attempt to negotiate ground rules in its total
context, it is found that no violation of Section 3543.5(c) occurred.
Like the issue of tape recording discussed above, the hearing officer believes
that policy considerations dictate the avoidance of establishing rigid standards
favoring any particular proposal dealing with conditions preliminary to actual
negotiating. 	Such matters must be examined in terms of whether positions were taken
to avoid or frustrate the legal obligation to negotiate. 	St. Louis Typographical
Union No. 8, ITU, supra.
The record is clear that MUSD did not unilaterally impose ground rules on
MEA but actually attempted to negotiate with MEA over ground rules. 	In fact, the
record shows that the purpose of the first meeting on October 15, 1976 was to discuss
the preliminary matter of a negotiating schedule and not actual contract provisions.
-10-

Most importantly, the record is indisputable that when attempts to negotiate
ground rules between MEA and MUSD failed, MUSD tacitly agreed to go back to
the table with negotiations open to the public and tape recorded.	.. .
Therefore, when viewed in the context of all the facts of this case, MUSD's
attempt to negotiate ground rules with MEA was not an attempt to avoid or frustrate
MUSD's legal obligation to negotiate.
II
The Allegation that MUSD Dominated and
Interfered with the Administration of MEA
A. 	Refusal to Grant Release Time for More Than Four Negotiators
MEA argues that MUSD's refusal to grant MEA more than four negotiators released
time without loss of compensation was a violation of Section 3543.5(b) and (d).
Section 3543.5(b) and (d) state:
It shall be unlawful for a public school employer to: ...
(b) Deny to employee organizations rights guaranteed
to them by this chapter. ..
(d) Dominate or interfere with the formation or
administration of any employee organization, or
contribute financial or other support to it, or
in any way encourage employees to join any
organization in preference to another.
The right of employee organizations to have a reasonable number of negotiators
given released time without loss of compensation is found in Section 3543.l(c) which
states:
A reasonable number of representatives of an
exclusive representative shall have the right
to receive reasonable periods of released time
without loss of compensation when meeting and
negotiating and for the processing of grievances.
The EERB has considered Section 3543.l(c) in Magnolia Educators
Association and Magnolia School District, EERB Decision No. 19, June 27, 1977.
-11-

In considering whether the respondent had granted reasonable released time to
the charging party in that case, the EERB held:
'Reasonable released time' means, at least,
that the District has exhibited an open
attitude in its consideration of the amount
of released time to be allowed so that the
amount is appropriate to the circumstances
of the negotiations. 	The District may have
to readjust its allotment of released time
based upon the reasonable needs of the District,
the number of hours spent in negotiations, the
number of employees on the employee organization's
negotiating team, the progress of the negotiations
and other relevant factors. 	A district's policy
does not provide for reasonable periods of released
time if the policy is unyielding to changing cir-
cumstances .
The question of what constitutes reasonable periods of 	released time for a
reasonable number of representatives is a question which therefore must be examined in
light of the facts of each particular case. 	MUSD has nine schools and a certificated
staff of approximately 165 employees. 	Under the facts of this case, it cannot be
found that four employees being given released time for negotiation sessions is an
unreasonable number. 	MEA argues that under the Winton Act, nine negotiators were
used by the certificated employees during meet and confer sessions. 	However, under
the Winton Act, the Certificated Employees Council, which by statute consisted of a
representational composite of several certificated employee organizations, was
mandatorily set at not less than five nor more than nine members. 	No similar
statutory restrictions are found in the EERA. 	MEA further argues that four employees
is an unreasonably small number of employees to be given released time due to the fact
the District is dispersed over a wide area and communication is difficult. ' MEA
therefore argues that it needs seven negotiators on its team so that each school
or group of schools would be represented and communication thereby facilitated.
Such an argument must fail, however, since MEA clearly testified during the hearing
that of its proposed seven members, three worked at the same school. 	Under the
facts of this case, therefore, it is found that four MEA negotiators is a
-12-

"reasonable number of representatives" of the exclusive representative to receive
released time without loss of compensation when meeting and negotiating and that
no violation of Sections 3543.5(b) or 3543.5(d) consequently occurred.
Furthermore, the evidence is clear that MUSD did not restrict the total
number of MEA negotiators who could meet and negotiate with the MUSD representative.
On the contrary, the only restriction placed upon MEA was the number of negotiators
who would receive reasonable periods of release time without loss of compensation.
Therefore, there was no domination or interference with the administration of MEA
and no violation of Section 3543.5(d) regarding the number of MEA negotiators.
B. 	The Issuance of November 19, 1976 "Press Release" and December 10, 1976 "Memorandum"
The record is clear that on November 19, 1976 the MUSD issued a "Press Release"
to all certificated employees. 	Said press release was placed in all teachers'
mailboxes and appeared in the Antelope Valley Press sometime after November 19, 1976.
The press release stated that the filing of MEA's unfair practice charge is
"foolishness of unnecessarily prolonging negotiations" and further alleged that
MEA's use of a tape recorder during negotiations is "improper conduct".
The record further shows that on December 10, 1976 the MUSD distributed to all
certificated employees a "Memorandum" summarizing the negotiating session held on
December 8, 1976. 	MEA apparently contends that said communication constituted a
violation of Section 3543.5(a) by interfering with, restraining and coercing members
of the unit.
Testimony at the administrative hearing, however, shows it was presumed
by MEA that the MUSD and MEA could in fact distribute memoranda regarding the status
of negotiations as the parties had previously done during meet and confer sessions
under the Winton Act.
-13-

Furthermore, MEA has totally failed to present any evidence showing how MUSD's
"Press Release" or "Memorandum" in any way interfered with, restrained or coerced
employees because of their exercise of rights guaranteed by the EERA. MEA has
failed to cite a single case in support of its contention. Absent evidence and
authority as to how employees were interfered with, restrained or coerced, the
hearing officer cannot find a violation of Section 3543.5(a) .
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire
record of this case, the unfair practice charge filed by Muroc Education Association
is hereby DISMISSED.
Pursuant to California Administrative Code, Title 8, Section 35029,
this Recommended Decision shall become final on November 14, 1977, unless a
party files a timely statement of exceptions. 	See California Administrative
Code, Title 8, Section 35030.
Dated: November 2, 1977
Kenneth A. Perea
Hearing Officer
-14-
Furthermore, 	MEA has 	totally failed to present any evidence showing how MUSD's
"Press Release" 	or "Memorandum" 	in any way interfered with, 	restrained or coerced
employees because of 	their exercise of rights guaranteed by the EERA. 	MEA has
failed to cite a 	single case in support of its contention . 	Absent evidence and
authority as 	to how employees were interfered with, 	restrained or coerced, 	the
hearing officer cannot find a violation of Section 3543 . 5(a).
RECOMMENDED ORDER
Upon the foregoing findings of fact, 	conclusions of law, 	and the entire
record of 	this case, 	the unfair practice charge 	filed by Muroc Education Association
is hereby DISMISSED.
Pursuant to California Administrative Code, 	Title 8, 	Section 35029,
this Recommended Decision shall become 	final on November 14, 	1977, 	unless a
party files a 	timely statement of exceptions. 	See California Administrative
Code, 	Title 8, 	Section 35030.
Dated: 	November 2, 	1977
7 Kenneth A. 	Perea
Hearing Officer
-14-