Palos Verdes Peninsula Unified School District/Pleasant Valley School District (PERB 0096E)

STATE OF CALIFORNIA	STATE 	OF 	CALIFORNIA
DECISION OF THE	DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PALOS VERDES FACULTY ASSOCIATION, )
Charging Party,
V . 	Case No. LA-CE-122
PALOS VERDES PENINSULA UNIFIED
SCHOOL DISTRICT,
Respondent 	PERB Decision No. 96
APPELLANT.
July 16, 1979
PLEASANT VALLEY SCHOOL DISTRICT
EDUCATION ASSOCIATION,
Charging Party,
V . 	Case No. LA-CE-160
PLEASANT VALLEY SCHOOL DISTRICT,
Respondent
APPELLANT.
Appearances: Charles R. Gustafson, Attorney for Palos Verdes
Faculty Association and Pleasant Valley School District
Association; J. Michael Taggart, Attorney (Paterson & Taggart)
for Palos Verdes Peninsula Unified School District;
John Liebert, Attorney (Paterson & Tag
Before Gluck, Chairperson and Gonzales, Member. *
"Board Member Moore did not participate in this decision.
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Taggart) 	for 	Pleasa
School 	Distr
PALOS 	VERDES 	FACULTY ASSOCIATION
Charging 	Party,
V.
PALOS 	VERDES 	PENINSULA UNIFIED
SCHOOL 	DISTRICT,
Respondent
APPELLANT.
Case 	No. 	LA-CE-122
PERB 	Decision 	No. 	96
July 	16, 	1979
PLEASANT 	VALLEY 	SCHOOL DISTRICT
EDUCATION ASSOCIATION,
Charging 	Party,
V.
PLEASANT 	VALLEY 	SCHOOL 	DISTRICT,
Respondent
APPELLANT.
Case 	No. 	LA-CE-160
Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	for 	Palos 	Verdes
Faculty Association 	and 	Pleasant 	Valley 	School 	District
Association; 	J. 	Michael 	Taggart, 	Attorney 	(Paterson & Taggart)
for 	Palos 	Verdes 	Peninsula 	Unified 	School 	District;
John 	Liebert, 	Attorney 	(Paterson 	&gart) for Pleasant Valley nt 	Valley
School District. ict.
Before 	Gluck, 	Chairperson 	and 	Gonzales, 	Member.*
7:: Board Member Moore 	did not 	participate 	in 	this 	decision.

PROCEDURAL HISTORY
The above-captioned cases are before the Public Employment
Relations Board (hereafter PERB or Board) 1 on exceptions by
the Palos Verdes Peninsula Unified School District (hereafter
Palos Verdes District or District) and the Pleasant Valley
School District (hereafter Pleasant Valley District or
District) to hearing officers' proposed decisions. They have
been consolidated on appeal because they present related issues
of whether certain elements of a school calendar are within the
mandatory "scope of representation" as set forth in Government
Code section 3543.2.2
The exceptions filed by the Palos Verdes District center on
the conclusions of the hearing officer that the distribution of
workdays in the year (beginning and ending dates of school year
for teachers and the dates of their vacations and holidays) ,
the distribution of hours in a teacher's workday (beginning and
ending times of a teacher's workday) , 3 and extra hour
assignments (Back-to-School Night and Open House) are matters
lPrior to January 1, 1978, the PERB was named the
Educational Employment Relations Board.
2Quoted in full, infra at fn. 12.
3Government Code section 3541.3 (b) grants PERB the power
to determine, in disputed cases, whether or not certain matters
fall within the scope of negotiations. While the distribution
of hours in a workday, including the starting and ending times,
is raised on appeal as a result of the hearing officer's
finding that such an item is within scope, its negotiability
will not be passed upon since neither the calendar nor the
stipulation of issues between PVFA and the Palos Verdes
District mention this item. Accordingly, I neither approve nor
disapprove the hearing officer's disquisition on this point nor
his ultimate findings.
2
PROCEDURAL
	HISTORY
The
	above-captioned
	cases 	are 	before 	the 	Public
	Employment
Relations
	Board
	(hereafter
	PERB
	or 	Board)l	
on
	exceptions
	by
the 	Palos
	Verdes
	Peninsula 	Unified
	School
	District
	(hereafter
Palos
	Verdes
	District
	or
	District)
	and
	the
	Pleasant
	Valley
School
	District
	(hereafter 	Pleasant
	Valley
	District
	or
District)
	to
	hearing
	officers'
	proposed
	decisions.
	They
	have
been
	consolidated
	on
	appeal
	because
	they
	present
	related 	issues
of
	whether
	certain
	elements 	of
	a
	school 	calendar 	are
	within 	the
mandatory 	"scope
	of
	representation"
	as
	set
	forth 	in
	Government
Code
	section
	3543.2.2
The
	exceptions
	filed
	by
	the 	Palos
	Verdes
	District
	center
	on
the 	conclusions 	of 	the 	hearing
	officer 	that
	the
	distribution
	of
workdays
	in 	the
	year 	(beginning
	and
	ending
	dates 	of
	school
	year
for 	teachers
	and
	the
	dates 	of
	their
	vacations
	and
	holidays),
the
	distribution
	of
	hours
	in
	a
	teacher's
	workday
	(beginning
	and
ending 	times
	of
	a
	teacher's
	workday)
,3	
and
	extra
	hour
assignments 	(Back-to-School 	Night
	and 	Open 	House)
	are
	matters
lPrior 	to 	January
	1,
	1978,
	the
	PERB
	was 	named
	the
Educational
	Employment
	Relations
	Board.
2Quoted
	in
	full, 	infra 	at
	fn.
	12.
3Government 	Code
	section
	3541.3(b)
	grants
	PERB
	the
	power
to 	determine, 	in 	disputed 	cases,
	whether 	or 	not
	certain matters
fall
	within 	the 	scope 	of 	negotiations.
	While
	the
	distributionof 	hours 	in
	a 	workday,
	including 	the
	starting
	and
	ending
	times,
is 	raised
	on 	appeal 	as
	a
	result
	of 	the 	hearing
	officer's
finding 	that
	such 	an 	item
	is 	within 	scope,
	its 	negotiability
will 	not
	be 	passed
	upon
	since 	neither 	the 	calendar 	nor 	the
stipulation 	of 	issues 	between
	PVFA
	and
	the 	Palos 	Verdes
District
	mention
	this 	item. 	Accordingly, 	I
	neither 	approve 	nor
disapprove 	the 	hearing 	officer's 	disquisition
	on
	this 	point 	nor
his 	ultimate 	findings. 
2

within the scope of representation. 4 The hearing officer
reasoned that these matters were "closely" related to "hours of
employment" and, therefore, mandatory subjects of negotiation
under the Educational Employment Relations Act (hereafter EERA
or Act) .5 The District urges on appeal that these matters so
directly relate to the education of students and involve
responsibility to parents and community at large that they
should be determined by the governing board of the District
alone.
The exceptions filed by the Pleasant Valley School District
focus solely on the hearing officer's conclusion that the
beginning and ending dates of the teaching year are within the
scope of representation. 6 The hearing officer found that the
"distribution of workdays" is a matter "relating to . . . hours
of employment" and therefore a mandatory subject of
negotiation, and that since the beginning and ending dates of
the school year are encompassed by distribution of workdays,
they, too, are negotiable items. The District urges that the
4 In addition to these findings, the hearing officer
concluded that the particular duties that a teacher is assigned
on a weekday are not within the scope of representation. 	These
conclusions are not appealed by any party. Accordingly, they
are not considered here.
5Government Code section 3540 et seq. 	Unless otherwise
stated, all references are to the Government Code.
6 	addition to this finding, the hearing officer also
concluded that teacher preparation days, parent-teacher
conferences, pupil minimum days and scheduling of a teacher's
workday/visitation day are not within the scope of
representation. These conclusions were not appealed by any
party. Accordingly, they are not considered here.
3
within
	the
	scope
	of
	representation.4	
The
	hearing
	officer
reasoned
	that
	these 	matters
	were
	"closely"
	related
	to
	"hours
	of
employment"
	and,
	therefore,
	mandatory
	subjects
	of
	negotiation
under
	the 	Educational
	Employment
	Relations
	Act
	(hereafter
	EERA
or
	Act)
.5	
The
	District
	urges
	on
	appeal
	that
	these 	matters 	so
directly 	relate
	to
	the 	education 	of 	students
	and
	involve
responsibility
	to 	parents
	and 	community
	at
	large
	that
	they
should
	be
	determined
	by
	the
	governing 	board
	of 	the
	District
alone.
The
	exceptions
	filed
	by
	the
	Pleasant
	Valley
	School
	District
focus
	solely
	on
	the 	hearing
	officer's
	conclusion
	that
	the
beginning
	and
	ending
	dates 	of
	the 	teaching
	year
	are 	within
	the
scope
	of
	representation.6	
The
	hearing
	officer
	found
	that 	the
"distribution
	of
	workdays"
	is
	a
	matter
	"relating
	to 	hours
of
	employment" 	and
	therefore
	a
	mandatory
	subject 	of
negotiation,
	and
	that
	since 	the 	beginning
	and
	ending
	dates
	of
the 	school 	year 	are
	encompassed
	by
	distribution
	of
	workdays,
they, 	too, 	are 	negotiable 	items.
	The
	District
	urges
	that 	the
4rn
	addition 	to 	these 	findings, 	the 	hearing
	officer
concluded
	that
	the
	particular 	duties 	that
	a
	teacher
	is 	assigned
on 	a 	weekday
	are 	not 	within 	the
	scope 	of
	representation.
	These
conclusions 	are 	not 	appealed
	by 	any
	party.
	Accordingly,
	theyare 	not 	considered 	here.
5Government 	Code
	section
	3540
	et
	seq. 	Unless 	otherwise
stated, 	all
	references 	are 	to 	the
	Government 	Code.
6rn
3
In	
addition 	to 	this 	finding, 	the 	hearing
	officer 	alsoconcluded
	that 	teacher 	preparation 	days, 	parent-teacher
conferences, 	pupil
	minimum 	days 	and
	scheduling 	of
	a
	teacher'sworkday/visitation
	day 	are 	not 	within 	the 	scope 	of
representation.
	These 	conclusions 	were 	not 	appealed 	by 	any
party. 	Accordingly, 	they 	are 	not 	considered 	here.

starting and ending dates of teacher service most directly and
primarily relate to the manner of delivering the educational
services to the community, and are not within the scope of
representation.
FACTS
Palos Verdes District
The basic facts in this case relate to the chronology of
discussions, negotiations, and other actions regarding the
Palos Verdes District's school calendar for 1977-78. In
summary, as detailed below, after PVFA was elected exclusive
representative, it submitted a negotiating proposal to the
District concerning various aspects of the school calendar.
The Palos Verdes District offered a counterproposal. After a
period of negotiations without agreement on a contract, the
District unilaterally adopted a school calendar for 1977-78 in
May 1977 and again, qualified by possibility of subsequent
modification, in August 1977. The PVFA filed unfair practice
charges based on a refusal to negotiate in good faith. The
District answered that most of the elements of the school
calendar are not within scope or representation, and it
therefore had no obligation to negotiate concerning them. 	The
District further answered that in any event, because its action
was necessary and qualified, it committed no unfair practice.
a. 	Pre-EERA History
In January 1976, following a meeting at which various
components of a school calendar were discussed, the school
board issued a document entitled "Calendar Guidelines" listing
starting
	and
	ending
	dates 	of
	teacher
	service
	most
	directly
	and
primarily
	relate
	to
	the
	manner
	of
	delivering
	the
	educational
services
	to
	the
	community, 	and
	are
	not
	within
	the
	scope
	of
representation.
FACTS
Palos
	Verdes
	District
The
	basic
	facts
	in
	this
	case
	relate
	to
	the
	chronology
	of
discussions, 	negotiations,
	and
	other 	actions
	regarding 	the
Palos
	Verdes
	District's
	school 	calendar 	for
	1977-78.
	In
summary,
	as
	detailed
	below,
	after
	PVFA
	was
	elected 	exclusive
representative,
	it
	submitted
	a
	negotiating
	proposal
	to
	the
District
	concerning 	various 	aspects 	of 	the 	school
	calendar.
The
	Palos
	Verdes
	Oistrict
	offered
	a
	counterproposal. 	After
	a
period 	of
	negotiations
	without
	agreement
	on 	a
	contract,
	the
District 	unilaterally
	adopted
	a
	school 	calendar 	for
	1977-78
	in
May
	1977 	and
	again,
	qualified
	by
	possibility
	of 	subsequent
modification, 	in
	August 	1977.
	The
	PVFA
	filed
	unfair
	practice
charges
	based
	on 	a
	refusal
	to 	negotiate 	in
	good
	faith.
	The
District
	answered
	that
	most
	of 	the 	elements 	of 	the 	school
calendar 	are 	not 	within
	scope 	or
	representation,
	and
	it
therefore
	had 	no
	obligation 	to 	negotiate
	concerning
	them. 	The
District
	further
	answered
	that 	in
	any
	event, 	because
	its
	action
was
	necessary
	and
	qualified,
	it
	committed 	no
	unfair 	practice.
a.
	Pre-EERA
	History
In 	January 	1976, 	following
	a
	meeting
	at
	which
	various
components 	of
	a
	school 	calendar
	were
	discussed; 	the 	school
board 	issued
	a 	document
	entitled 	"Calendar 	Guidelines"
	listing
4

various school calendar items. They included the following:
scheduling the opening and closing of school; coordinating
graduation and vacations with the Los Angeles Unified School
District system; permitting school to open on an isolated day
in the first week of school; not commencing the school term on
major Jewish holy days; scheduling eighth grade graduation to
precede twelfth grade graduation; maintaining conference days;
and including a contingency day. The same document also
indicates that it was the school board's practice to adopt the
calendar for the upcoming school year and tentatively approve
the calendar for the following school year at approximately the
same time. On June 7, 1976, the school board tentatively
approved a 1977-78 school year calendar following the
January 1976 guidelines.
b. 	Post-EERA Events
On July 1, 1976, less than a month after the June 7 action
noted above, EERA became effective. In November 1976, PVFA was
elected the exclusive representative of certificated employees
in the Palos Verdes District. On February 23, 1977, PVFA
presented an initial proposal regarding the school calendar for
1977-78. It provided for a total of 179 days for teacher
service, distributed as follows: grades kindergarten through
five teachers were to have 175 teaching, 3 conference, and 1
pupil-free workday; grades six through eight teachers were to
have 175 teaching, 2 conference, and 2 pupil-free workdays; and
grades nine through twelve teachers were to have 176 teaching
and 3 pupil-free workdays. There is no mention of preschool
5
various
	school
	calendar
	items.
	They
	included
	the 	following:
scheduling
	the
	opening
	and
	closing
	of 	school;
	coordinating
graduation
	and
	vacations
	with
	the
	Los
	Angeles
	Unified
	School
District
	system;
	permitting
	school
	to
	open 	on 	an
	isolated
	day
in 	the
	first
	week
	of 	school;
	not
	commencing
	the 	school
	term 	on
major
	Jewish 	holy 	days;
	scheduling
	eighth
	grade
	graduation
	to
precede
	twelfth
	grade
	graduation; 	maintaining 	conference
	days;
and
	including
	a
	contingency
	day.
	The 	same
	document
	also
indicates 	that
	it
	was
	the 	school
	board's
	practice
	to
	adopt
	the
calendar 	for 	the
	upcoming
	school 	year
	and
	tentatively
	approve
the 	calendar 	for 	the 	following 	school 	year
	at
	approximately
	the
same
	time.
	On
	June
	7,
	1976,
	the 	school
	board
	tentatively
approved
	a
	1977-78
	school 	year 	calendar 	following 	the
January
	1976
	guidelines.
b.
	Post-EERA
	Events
On
	July 	1,
	1976,
	less
	than
	a 	month
	after
	the
	June
	7
	action
noted 	above,
	EERA
	became
	effective.
	In
	November
	1976,
	PVFA
	was
elected
	the
	exclusive 	representative 	of
	certificated
	employees
in
	the 	Palos
	Verdes
	District.
	On
	February
	23, 	1977,
	PVFA
presented
	an
	initial
	proposal 	regarding 	the 	school 	calendar 	for
1977-78.
	It
	provided 	for
	a
	total
	of
	179
	days
	for 	teacher
service, 	distributed
	as 	follows: 	grades 	kindergarten 	through
five 	teachers
	were
	to
	have 	175
	teaching,
	3
	conference,
	and 	1
pupil-free
	workday;
	grades 	six
	through
	eight 	teachers
	were
	to
have 	175
	teaching,
	2
	conference,
	and 	2
	pupil-free
	workdays; 	and
grades 	nine 	through 	twelve 	teachers
	were
	to
	have 	176
	teaching
and 	3
	pupil-free 	workdays. 	There
	is
	no 	mention 	of 	preschool
5

service days in PVFA's proposal. However, PVFA's proposed
calendar sets out the specific dates on which the following
occur : 	first and last day of instruction, conference days,
summer session, graduation, vacation recess periods, holidays,
final exams and pupil-free workdays.
The District presented its initial proposal on
March 7, 1977. This offer proposed 182 days per year, and 8
hours per day for teachers. 	It also states:
In addition to the above minimum time and
required workdays, unit members are
responsible for adjunct duties, beyond their
instructional duties, which include but are
not limited to, program development,
professional growth activities, parent
conferences, committee assignments, faculty
and district meetings, special help to
students, back-to-school nights, open house,
student supervision, and other assignments
which are determined by the district to be
necessary for the efficient operation of the
district.
On March 22, 1977, PVFA and the District commenced
negotiations. On April 12, 1977, the District presented to
PVFA a counterproposal on the school calendar essentially the
same as that school calendar tentatively approved June 7, 1976,
which is referred to above. On April 26, the Palos Verdes
District presented to PVFA another calendar, identical to the
one it proposed on April 1, except that unlike the April 12
calendar it did not mention any "preschool service" days. On
May 2, 1977, the Palos Verdes District school board approved a
calendar entitled "Adopted School Calendar for 1977-78 School
Year, " explaining that the adoption of the calendar was in
response to numerous inquiries from the public regarding the
6
service
	days
	in
	PVFA's
	proposal.
	However, 	PVFA's
	proposed
calendar
	sets
	out 	the
	specific
	dates
	on 	which
	the 	following
occur:
	first
	and
	last
	day
	of
	instruction,
	conference
	days,
summer
	session,
	graduation, 	vacation 	recess 	periods, 	holidays,
final
	exams 	and
	pupil-free
	workdays.
The
	District
	presented
	its 	initial
	proposal
	on
March
	7,
	1977.
	This
	offer
	proposed 	182
	days
	per
	year,
	and
	8
hours 	per
	day
	for
	teachers.
	It
	also
	states:
In
	addition
	to 	the
	above
	minimum
	time
	and
required
	workdays,
	unit
	members
	are
responsible 	for 	adjunct
	duties,
	beyond
	their
instructional 	duties,
	which
	include 	but
	arenot
	limited
	to,
	program
	development,
professional
	growth
	activities,
	parentconferences,
	committee
	assignments,
	faculty
and
	district
	meetings,
	special
	help
	to
students,
	back-to-school
	nights,
	open
	house,
student 	supervision,
	and
	other
	assignments
which
	are 	determined
	by
	the
	district
	to
	be
necessary 	for 	the
	efficient
	operation 	of
	the
district.
On
	March
	22, 	1977,
	PVFA
	and
	the
	District
	commenced
negotiations.
	On
	April 	12,
	1977, 	the
	District
	presented
	to
PVFA
	a
	counterproposal
	on
	the 	school 	calendar
	essentially 	the
same
	as
	that
	school 	calendar
	tentatively
	approved 	June
	7, 	1976,
which
	is
	referred 	to
	above.
	On
	April
	26,
	the 	Palos
	Verdes
District
	presented 	to
	PVFA
	another 	calendar, 	identical 	to 	the
one
	it
	proposed
	on
	April 	1, 	except
	that
	unlike 	the 	April
	12
calendar
	it
	did 	not 	mention 	any
	"preschool 	service" 	days.
	On
May
	2, 	1977, 	the 	Palos 	Verdes
	District
	school 	board 	approved
	a
calendar
	entitled
	"Adopted 	School 	Calendar 	for
	1977 	8
	School
Year,
11
explaining 	that 	the 	adoption 	of 	the 	calendar
	was
	in
response 	to 	numerous
	inquiries
	from 	the 	public 	regarding 	the
6

starting date of school in the fall. The District characterized
this as a "student calendar," while the PVFA characterized it
as a "teacher calendar." This calendar was identical to that
proposed by the District on April 26.
Subsequent to May 2, 1977, negotiations continued on the
calendar. On May 4, there was a PVFA proposal and on May 12, a
District counter offer, which was rejected by PVFA, after which
the District withdrew its latest counter offer. The parties
met once more on May 26 but could not reach agreement. At a
final meeting on June 29, 1977, the parties decided to postpone
any further negotiating until legislative action on school
finance for the year had become final.
On August 23, 1977, the District notified the teachers that
there would be two preschool service days, September 13 and
14. On August 29, the school board adopted a 1977-78 calendar
reflecting these two preschool service days. The calendar
established the number of workdays at 182 "unless and until
modified by a collective bargaining agreement between the
District and PVFA. " This calendar, except for the two
pre-service days, was like that adopted by the District on
May 2, 1977.
Pleasant Valley District
The facts are undisputed. The Pleasant Valley District
voluntarily recognized the Pleasant Valley School District
Education Association (PVSDEA) on May 6, 1976. In August 1976,
PVSDEA presented an initial contract proposal for the 1976-77
school year. On January 1, 1977, the Pleasant Valley District
7
starting
	date
	of 	school
	in 	the
	fall.
	The
	District
	characterized
this
	as
	a
	"student 	calendar,"
	while
	the
	PVFA
	characterized
	it
as
	a
	"teacher 	calendar."
	This
	calendar
	was
	identical
	to
	that
proposed
	by
	the
	District
	on
	April
	26.
Subsequent
	to
	May
	2, 	1977,
	negotiations
	continued
	on
	the
calendar.
	On
	May
	4,
	there
	was 	a
	PVFA
	proposal
	and 	on
	May
	12,
	a
District
	counter
	offer,
	which
	was
	rejected
	by
	PVFA,
	after
	which
the
	District
	withdrew
	its
	latest
	counter
	offer.
	The
	parties
met
	once
	more 	on
	May
	26
	but 	could 	not
	reach 	agreement.
	At 	a
final
	meeting
	on
	June 	29, 	1977,
	the
	parties
	decided
	to
	postpone
any
	further 	negotiating
	until 	legislative
	action
	on
	school
finance 	for 	the 	year
	had 	become
	final.
On
	August 	23, 	1977,
	the
	District
	notified
	the
	teachers
	that
there
	would 	be 	two
	preschool
	service
	days,
	September
	13
	and
14.
	On
	August 	29,
	the 	school
	board 	adopted
	a
	1977-78
	calendar
reflecting
	these
	two
	preschool
	service
	days.
	The
	calendar
established
	the
	number
	of
	workdays
	at
	182
	"unless
	and
	until
modified
	by 	a
	collective
	bargaining
	agreement 	between
	the
District
	and 	PVFA."
	This
	calendar, 	except 	for 	the
	two
pre-service
	days,
	was
	like 	that
	adopted
	by
	the
	District
	on
May
	2, 	1977.
Pleasant 	Valley
	District
The
	facts 	are 	undisputed.
	The
	Pleasant 	Valley
	District
voluntarily 	recognized 	the 	Pleasant 	Valley 	School
	District
Education 	Association
	(PVSDEA)
	on
	May
	6, 	1976. 	In August 	1976,
PVSDEA
	presented
	an
	initial
	contract 	proposal 	for 	the 	1976-77
school 	year.
	On
	January 	1, 	1977, 	the 	Pleasant 	Valley 	District
7

and PVSDEA reached an agreement for the remaining portion of
the 1976-77 school year, effective until June 30, 1977. This
contract incorporated the 1976-77 school calendar adopted while
the Winton Act7 was in effect.
On May 5, 1977, PVSDEA presented its initial contract
proposal for the 1977-78 school year, which included a proposed
school calendar.
On May 19, 1977, the Pleasant Valley District adopted a
"proposed calendar for 1977-78," which differed substantially
from the calendar proposed by PVSDEA. In particular, the
district calendar provided that the first day for teacher
service be August 31 1977, and the last day, June 8, 1978.
PVSDEA proposed that September 6, 1977, and June 8, 1978, be
the first and last days of the 1977-78 school year.
Despite the May 19, 1977, adoption of a school calendar by
the school board, both parties engaged in negotiations on
several occasions thereafter. The calendar was discussed only
insofar as to why PVSDEA had presented it and why the
Pleasant Valley District took the position it was not within
scope .
In early August, the Pleasant Valley District notified
employees of the starting date for certificated service for the
1977-78 school year. On August 2, 1977, PVSDEA filed unfair
practice charges alleging that the Pleasant Valley District had
7 Former Education Code section 13080 et seq. , repealed
Stats. 1975, chapter 961, section 1, effective July 1, 1976.
8
and
	PVSDEA
	reached
	an
	agreement
	for
	the
	remaining
	portion
	of
the
	1976-77
	school
	year,
	effective 	until
	June 	30, 	1977.
	This
contract
	incorporated 	the
	1976-77
	school
	calendar
	adopted
	while
the
	Winton Act7	
was
	in
	effect.
On
	May
	5,
	1977,
	PVSDEA
	presented
	its 	initial
	contract
proposal 	for
	the
	1977-78
	school
	year,
	which
	included
	a
	proposed
school
	calendar.
On 	May
	19,
	1977,
	the
	Pleasant
	Valley
	District
	adopted
	a
"proposed
	calendar 	for
	1977-78,"
	which
	differed
	substantially
from
	the 	calendar
	proposed
	by
	PVSDEA.
	In
	particular,
	the
district
	calendar
	provided
	that
	the
	first
	day
	for 	teacher
service
	be
	August
	31
	1977,
	and
	the
	last
	day, 	June
	8,
	1978.
PVSDEA
	proposed
	that
	September 	6, 	1977,
	and
	June
	8,
	1978, 	be
the
	first
	and
	last
	days
	of 	the
	1977-78
	school
	year.
Despite 	the
	May
	19,
	1977,
	adoption 	of
	a
	school 	calendar
	by
the 	school 	board, 	both
	parties
	engaged
	in 	negotiations
	on
several
	occasions
	thereafter.
	The
	calendar
	was
	discussed
	only
insofar
	as
	to
	why
	PVSDEA
	had
	presented
	it
	and 	why
	the
Pleasant Valley
	District
	took 	the
	position
	it
	was
	not
	within
scope.
In
	early
	August,
	the 	Pleasant 	Valley
	District 	notified
employees
	of 	the
	starting
	date 	for
	certificated 	service 	for 	the
1977-78 	school 	year.
	On
	August 	2, 	1977,
	PVSDEA
	filed 	unfair
practice
	charges 	alleging 	that 	the 	Pleasant 	Valley
	District
	had
7Former 	Education
	Code
	section
	13080
	et 	seq., 	repealed
Stats.
	1975, 	chapter 	961,
	section 	1, 	effective 	July 	1, 	1976.
8

violated sections 3543.5 (a) , (b) , and (c) of EERA by taking the
unilateral action of adopting a school calendar on May 19, 1977.
On November 14, 1977, the parties reached a contract which
represented specific agreement on most negotiating subjects.
Although they were unable to agree on several aspects of the
school calendar, they provided for disposition of these
disputes in the contract. Article IV, paragraph 7 of that
agreement provides:
Other issues relating to workdays and
calendars shall be resolved following EERB
decisions regarding those issues (modified
days, number of workdays and scheduling of
workdays .
Both cases before the Board present the overall issue of
whether or not the unilateral adoption of the school calendars
by the districts in each case constitutes a failure to meet and
negotiate under section 3543.5 (c) 8 of the EERA. But to
characterize the common issue between these cases in such a
broad context, without refinement, would be misleading since
there are considerations unique to each case which pose
additional issues and require separate resolution. These are:
Section 3543.5(c) reads:
It shall be unlawful for a public school
employer to
Refuse or fail to meet and negotiate in good
faith with an exclusive representative.
violated
	sections
	3543.S(a), 	(b),
	and
	(c)
	of
	EERA
	by
	taking 	the
unilateral
	action
	of 	adopting
	a
	school
	calendar
	on
	May
	19, 	1977.
On
	November
	14, 	1977,
	the
	parties
	reached
	a
	contract
	which
represented
	specific
	agreement
	on
	most
	negotiating
	subjects.
Although
	they
	were
	unable
	to
	agree
	on
	several
	aspects
	of
	the
school
	calendar,
	they 	provided 	for
	disposition
	of
	these
disputes
	in
	the
	contract. 	Article
	IV,
	paragraph
	7
	of
	that
agreement
	provides:
Other
	issues
	relating
	to
	workdays 	and
calendars
	shall
	be
	resolved 	following
	EERB
decisions
	regarding 	those
	issues
	(modified
days,
	number
	of
	workdays
	and
	scheduling 	of
workdays
	..
STATEMENT
	OF
	ISSUES
9
STATEMENT OF ISSUES
Both
	cases 	before 	the
	Board
	present
	the
	overall
	issue
	of
whether 	or 	not 	the
	unilateral
	adoption 	of 	the 	school
	calendars
by
	the
	districts
	in
	each
	case
	constitutes
	a
	failure
	to
	meet 	and
negotiate
	under
	section
	3543.5(c)8 	of 	the
	EERA.
	But
	to
characterize
	the
	common
	issue
	between
	these 	cases 	in
	such
	a
broad
	context,
	without 	refinement,
	would 	be
	misleading
	since
there 	are 	considerations
	unique
	to
	each 	case
	which
	pose
additional 	issues
	and
	require 	separate 	resolution.
	These
	are:
8
Bsection 	3543.S(c) 	reads:
It
	shall
	be
	unlawful 	for
	a
	public 	schoolemployer
	to
Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
	good
faith
	with 	an
	exclusive 	representative.

--
A. 	Palos Verdes District
1. Whether or not the Palos Verdes District, the
appellant in this case, lacks standing to except to the
hearing officer's decision since the decision below
ultimately found in favor of it, dismissing the unfair
practice charge on the grounds of "operational
necessity."
2. If the case is properly on appeal before the Board,
are all the following calendar items within the scope
of representation requiring negotiations between the
Palos Verdes District and PVFA:
-- Beginning and ending dates of certificated
service for the school year.
Vacation and holiday dates for certificated
employees.
-- Extra hour assignments of Back-to-School Night
and Open House.
B. 	Pleasant Valley District
1. Whether or not the beginning and ending dates of
certificated service are within the scope of
repesentation requiring negotiations between the
Pleasant Valley District and PVSDEA.
2. 	If so, has the District waived its right to except
to the hearing officer's finding that the District
failed to sustain an affirmative defense of operational
necessity in view of section 32300 (c) of the Board's
regulations.
DISCUSSION
Standing of Palos Verdes District
Before focusing on the central issue posed in both cases
relative to the question of negotiability of specific calendar
items, a threshold issue is presented in Palos Verdes regarding
the appellant's standing to take exception to the hearing
officer's proposed decision. While the hearing officer
concluded that certain calendar items are related to hours of
employment as found in section 3543.2 and therefore negotiable,
10
A. 	Palos 	Verdes 	District
1. 	Whether 	or 	not 	the 	Palos 	Verdes 	District, 	the
appellant 	in 	this 	case, 	lacks 	standing 	to 	except 	to 	the
hearing 	officer's 	decision 	since 	the 	decision 	below
ultimately 	found 	in 	favor 	of 	it, 	dismissing 	the 	unfair
practice 	charge 	on 	the 	grounds 	of 	"operational
necessity."
2. 	If 	the 	case 	is 	properly 	on 	appeal 	before 	the 	Board,
are 	all 	the 	following 	calendar 	items 	within 	the 	scope
of 	representation 	requiring 	negotiations 	between 	the
Palos 	Verdes 	District 	and 	PVFA:
Beginning 	and 	ending 	dates 	of 	certificated
service 	for 	the 	school 	year.
Vacation 	and 	holiday 	dates 	for 	certificated
employees.
Extra 	hour 	assignments 	of 	Back-to-School 	Night
and 	Open 	House.
B. 	Pleasant 	Valley 	District
1. 	Whether 	or 	not 	the 	beginning 	and 	ending 	dates 	of
certificated 	service 	are 	within 	the 	scope 	of
repesentation 	requiring 	negotiations 	between 	the
Pleasant 	Valley 	District 	and 	PVSDEA.
2. 	If 	so, 	has 	the 	District 	waived 	its 	right 	to 	except
to 	the 	hearing 	officer's 	finding 	that 	the 	District
failed 	to 	sustain 	an 	affirmative 	defense 	of 	operational
necessity 	in 	view 	of 	section 	32300(c) 	of 	the 	Board's
regulations.
DISCUSSION
Standing 	of 	Palos 	Verdes 	District
Before 	focusing 	on 	the 	central 	issue 	posed 	in 	both 	cases
relative 	to 	the 	question 	of 	negotiability 	of 	specific 	calendar
items, 	a 	threshold 	issue 	is 	presented 	in 	Palos 	Verdes 	regarding
the 	appellant's 	standing 	to 	take 	exception 	to 	the 	hearing
officer's 	proposed 	decision. 	While 	the 	hearing 	officer
concluded 	that 	certain 	calendar 	items 	are 	related 	to 	hours 	of
employment 	as 	found 	in 	section 	3543.2 	and 	therefore 	negotiable,
10

he was persuaded and so found that the district's adoption of a
school calendar on August 29, 1977, was necessary, particularly
when characterized as a "qualified unilateral action. "9 As
such, he accorded the Palos Verdes District a valid defense and
dismissed the unfair practice charge. Thus, the question
arises as to whether, in fact, the Palos Verdes District is an
aggrieved party and entitled to relief from this Board.
It is well recognized that in civil matters, while a party
may not ordinarily appeal a judgment in its favor, an appeal is
proper if the judgment apparently in a party's favor is
actually against that party. 10 Furthermore, former PERB
rule 35030,ll in effect at the time this appeal was filed,
and which provided for appeal of hearing officer decisions,
does not limit appeals to parties aggrieved by the hearing
officer's order. 	That provision simply stated:
(a) Within seven calendar days after
service of the recommended decision a party
may file a statement of exceptions to the
recommended decision or any part of the
record or proceedings.
The Palos Verdes District in defense of its unilateral
adoption, argued among other things that its action constituted
only a "qualified unilateral action" and, as such, could be
subject to subsequent modification by a collective bargaining
agreement.
106 Witkin, Cal. Procedure (2 ed. 1971) Appeals,
section 121, page 419.
1lThe Board's rules are codified at California
Administration Code, title 8, section 31000 et seq. 	Rule 35030
has since been repealed. The comparable present rule is
section 32300 which places no restriction on a party's right to
take exception to a board agent's decision. It differs from
former section 35030 in that it allows more time for a party to
appeal a board agent's decision and includes specific
instructions regarding a party's statement of exceptions.
11
he 	was
	persuaded
	and
	so
	found
	that
	the
	district's
	adoption
	of
	a
school 	calendar
	on
	August 	29, 	1977,
	was
	necessary,
	particularly
when
	characterized
	as
	a
	"qualified
	unilateral
	action."9	
As
such,
	he
	accorded
	the 	Palos
	Verdes
	District
	a
	valid
	defense
	and
dismissed 	the
	unfair
	practice
	charge.
	Thus,
	the 	question
arises
	as
	to
	whether,
	in
	fact,
	the 	Palos
	Verdes
	District 	is
	an
aggrieved
	party
	and
	entitled
	to
	relief
	from
	this
	Board.
It
	is
	well 	recognized
	that
	in
	civil
	matters,
	while
	a
	party
may
	not
	ordinarily
	appeal
	a
	judgment
	in
	its
	favor,
	an
	appeal
	is
proper
	if
	the
	judgment
	apparently 	in
	a
	party's
	favor
	is
actually
	against
	that
	party.10	
Furthermore,
	former
	PERB
rule
	35030,11	
in
	effect 	at
	the
	time
	this
	appeal
	was
	filed,
and 	which
	provided 	for 	appeal 	of 	hearing
	officer 	decisions,
does
	not
	limit
	appeals 	to
	parties
	aggrieved 	by 	the 	hearing
officer's
	order.
	That
	provision
	simply
	stated:
(a)
	Within 	seven
	calendar
	days
	after
service
	of 	the
	recommended
	decision
	a
	party
may
	file
	a
	statement 	of 	exceptions 	to
	the
recommended
	decision 	or
	any
	part
	of 	the
record 	or 	proceedings.
9	9The
	Palos
	Verdes
	District
	in 	defense 	of
	its
	unilateral
adoption,
	argued
	among
	other 	things
	that
	its
	action 	constituted
only
	a
	"qualified 	unilateral
	action"
	and, 	as 	such, 	could
	be
subject 	to 	subsequent
	mod
if
icatio.n
	by 	a
	collective 	bargainingagreement.
106
	Witkin, 	Cal. 	Procedure
	(2
	ed.
	1971)
	Appeals,
section
	121, 	page 	419.
llThe 	Board's 	rules 	are 	codified 	at 	CaliforniaAdministration
	Code,
	title
	8, 	section
	31000
	et
	seq. 	Rule 	35030
has 	since
	been
	repealed.
	The 	comparable 	present 	rule 	issection
	32300 	which
	places
	no
	restriction
	on 	a
	party's 	right 	totake 	exception 	to
	a 	board
	agent's 	decision.
	It 	differs
	from
former 	section
	35030
	in 	that
	it
	allows 	more 	time 	for
	a
	party 	toappeal 	a 	board 	agent's 	decision
	and 	includes 	specific
instructions 	regarding 	a
	party's 	statement 	of 	exceptions.
11

(b) The filing of the statement of
exceptions submits the case to the Board
itself.
In this case the hearing officer's findings are adverse to
the Palos Verdes District and have the practical effect of
requiring the District to negotiate over matters which the
hearing officer found to be within scope and which the Palos
Verdes District had contended were not in scope. Furthermore,
in view of former section 35030, the case is properly before
the Board itself for consideration of whether or not the items
at issue are mandatory items of negotiation.
Scope of Representation
a. Overview
The question of "scope of representation" is one of the
most delicate issues that has been or will be faced by this
Board. It seems clear that educational management hopes for
this Board to adhere to a very tight definition in interpreting
the scope of language of EERA, as contained in
section 3543.2,12 while most employee organizations are
interested in a broader definition that would allow more issues
to be brought to the negotiating table.
12
The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms and
conditions of employment. "Terms and conditions of
employment" mean health and welfare benefits as defined by
Section 53200, leave, tranfer and reassignment policies,
safety conditions of employment, class size, procedures to
be used for the evaluation of employees, organizational
12
(b) 	The
	filing
	of 	the 	statement
	ofexceptions
	submits
	the 	case
	to
	the
	Board
itself.
In
	this
	case 	the 	hearing
	officer's
	findings 	are
	adverse
	to
the 	Palos
	Verdes
	District
	and
	have
	the
	practical 	effect
	of
requiring
	the
	District
	to 	negotiate
	over
	matters
	which
	the
hearing
	officer
	found
	to
	be
	within
	scope
	and 	which
	the
	Palos
Verdes
	District
	had
	contended
	were
	not
	in
	scope.
	Furthermore,
in
	view
	of
	former
	section
	35030,
	the 	case
	is
	properly 	before
the
	Board
	itself
	for
	consideration 	of
	whether
	or 	not 	the
	items
at
	issue
	are
	mandatory
	items
	of
	negotiation.
Scope
	of
	Representation
a.
	Overview
The
	question 	of
	"scope
	of 	representation"
	is
	one
	of 	the
most
	delicate
	issues
	that
	has 	been
	or
	will
	be
	faced
	by
	this
Board.
	It
	seems
	clear 	that
	educational
	management
	hopes
	for
this
	Board
	to
	adhere
	to
	a
	very
	tight 	definition
	in
	interpreting
the
	scope
	of
	language
	of
	EERA,
	as 	contained 	in
section
	3543.2,12 	while
	most 	employee
	organizations 	are
interested 	in
	a
	broader
	definition 	that
	would
	allow
	more
	issues
to
	be
	brought
	to 	the 	negotiating 	table.
12	1
2section
	3543.2
	provides:	section 3543.2 provides:
The
	scope
	of 	representation 	shall
	be
	limited 	to 	matters
relating
	to
	wages, 	hours 	of
	employment, 	and
	other 	terms 	and
conditions 	of
	employment. 	"Terms 	and
	conditions 	of
employment" 	mean
	health	
and 	welfare 	benefits
	as 	defined
	by
Section
	53200,
	leave, 	tranfer
	and
	reassignment
	policies,safety 	conditions 	of
	employment,
	class 	size, 	procedures 	to
be 	used 	for 	the 	evaluation 	of 	employees, 	organizational
12

Other jurisdictions have wrestled with the same issue with
mixed results, experiencing an interpretive evolution of
similar collective bargaining laws. Initially the standard for
determining what was a negotiable item appeared to favor a
broad definition of scope. Many jurisdictions based their
decision on the decision of the New York Court of Appeals
(comparable to the Supreme Court in California) which ruled in
Board of Education of Union Free School District No. 3 v.
Associated Teachers at Huntington13 that the employer's
responsibility to negotiate was limited only by specific clear
statutory prohibitions. Other courts in Michigan, New Jersey,
Vermont, Pennsylvania, Maine and Rhode Island basically adopted
the Huntington position and restricted scope only to certain
prohibitions contained in existing statutory law. 14
security pursuant to section 3546, procedures for processing
grievances pursuant to sections 3548.5, 3548.6, 3548.7, and
3548.8, and the layoff of probationary certificated school
district employees, pursuant to Section 44959.5 of the
Education Code. 	In addition, exclusive representative of
certified personnel has the right to consult on the definition
of educational objectives, the determination of the content of
courses and curriculum, and the selection of textbooks to the
extent such matters are within the discretion of the public
school employer under the law. All matters not specifically
enumerated are reserved to the public school employer and may
not be a subject of meeting and negotiating, provided that
nothing herein may be construed to limit the right of employees
or employee organization on any matter outside the scope of
representation.
13 (1972) 30 N. Y. 2d 122, 282 N.E. 2d 109, 331 N. Y. S. 2d 17.
(Me. 1976) 363 A. 2d 229; Pennsylvania Labor Relations Board V.
State College Area School District (1975) 461 Pa. 494, 509, 337
A. 2d 262, 269; Belanger v. Matteson (1975) 115 R. I. 332, 346
A. 2d 124; Danville Bd. of School Directors v. Fifield (1974)
132 Vt. 271, 275-76, 315 A. 2d 473, 475-76.
13
security
	pursuant 	to 	section
	3546,
	procedures 	for 	processinggrievances 	pursuant 	to
	sections
	3548.5, 	3548.6, 	3548.7,
	and
3548.8,
	and
	the
	layoff 	of 	probationary
	certificated
	school
district
	employees,
	pursuant 	to 	Section
	44959.5
	of 	theEducation
	Code.
	In
	addition, 	exclusive 	representative
	of
certified
	personnel
	has
	the
	right
	to 	consult
	on
	the
	definition
of 	educational 	objectives, 	the 	determination 	of 	the 	content 	ofcourses
	and
	curriculum,
	and
	the
	selection
	of 	textbooks 	to
	theextent
	such
	matters 	are 	within 	the
	discretion
	of 	the
	publicschool
	employer 	under
	the
	law.
	All 	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the 	public 	school
	employer 	and 	may
not
	be 	a
	subject 	of 	meeting
	and
	negotiating,
	provided
	that
nothing 	herein
	may 	be
	construed 	to 	limit
	the
	right
	of 	employees
or
	employee
	organization
	on 	any
	matter 	outside 	the 	scope
	of
representation.
Other
	jurisdictions
	have
	wrestled
	with
	the
	same
	issue 	with
mixed
	results,
	experiencing
	an
	interpretive
	evolution 	of
similar 	collective
	bargaining
	laws.
	Initially
	the 	standard
	for
determining
	what
	was 	a
	negotiable
	item 	appeared
	to
	favor
	a
broad
	definition
	of
	scope.
	Many
	jurisdictions
	based
	their
decision
	on
	the
	decision 	of 	the
	New
	York
	Court
	of
	Appeals
(comparable
	to
	the
	Supreme
	Court
	in California)
	which
	ruled
	in
Board
	of
	Education
	of
	Union
	Free
	School
	District
	No. 	3
	v.
Associated
	Teachers
	at
	Huntingtonl3	
that
	the 	employer's
responsibility
	to 	negotiate
	was
	limited
	only
	by
	specific
	clear
statutory 	prohibitions.
	Other
	courts 	in
	Michigan,
	New
	Jersey,
Vermont,
	Pennsylvania,
	Maine 	and 	Rhode
	Island
	basically
	adopted
the 	Huntington
	position
	and
	restricted
	scope
	only
	to
	certain
prohibitions
	contained
	in
	existing 	statutory
	law.14
13(1972) 	30 	N.Y.2d 	122,
	282 	N.E. 	2d 	109, 	331 	N.Y.S.2d
	17.
See Superintending School Comm. v. Winslow Educ. Ass'n.	14	
14see 	Superintending 	School
	Comm.
	v.
	Winslow 	Educ.
	Ass'n.
(Me. 	1976) 	363 	A.2d 	229; 	Pennsylvania 	Labor
	Relations 	Board 	v.
State 	College 	Area 	School
	District
	(1975) 	461 	Pa. 	494, 	509, 	337
A.2d 	262, 	269; 	Belanger 	v. 	Matteson 	(1975) 	115
	R.I. 	332, 	346
A.2d 	124; 	Danville
	Bd.
	of 	School 	Directors 	v. 	Fifield
	(1974)
132 	Vt. 	271, 	275-76, 	315 	A.2d 	473, 	475-76.
13

Similarly, in Minnesota and Oregon, the courts came to the
conclusions that reflected an approach much like that adopted
in New York . 15
More recently, however, employee relations boards and the
courts have begun to reassess the approach taken in previous
decisions in such a way as to indicate that public policy
concerns are to be balanced more equitably with the employment
related interests of public employees . 16 Thus, even the
New York Court of Appeals has appeared to retreat from the
relatively strict Huntington test as demonstrated in
Susquehanna Valley Teachers Association, 17 by indicating that
policy factors in education are to be considered in determining
what is a mandated and enforceable subject of bargaining:
Public policy, whether derived from, and
whether explicit or implicit in statute or
in decisional law, or in neither, may also
restrict the freedom to arbitrate.
Keyed to the analysis is that the
freedom to contract in exclusively private
enterprises. . . does not blanket public school
15See Teamsters Local 320 v. City of Minneapolis (1975)
302 Minn. 410, 225 N.W. 2d 254; Central Point School Dist. v.
Employment Rel. Bd., (1976) 27 Or. App. 285, 555 P. 2d 1269 (no
constitutional or statutory proscription of school district's
agreement to arbitrate questions of teacher dismissal) ;
Springfield Educ. Ass'n v. School Dist. No 19 (1976) 24 Or.
App. 751, 547 P. 2d 647 (reversing Oregon Employment Relations
Board holding that bargaining over school district's contracts
with university for student teaching programs was prohibited) .
16Cohoes City School District v. Cohoes Teachers
Association (1976) 40 N. Y. 2d 774, 358 N. E. 2d 878, 390 N.Y. S. 2d
53; School Committee of Hanover v. Curry (1976) 343 N.E. 2d 144;
Superintending School Comm. v. Winslow Educ. Assn. (1976 363
A. 2d 229.
17 (1975) 37 N. Y. 2d 614, 339 N. E. 2d 132, 376 N. Y.S. 2d 427.
14
Similarly,
	in
	Minnesota
	and
	Oregon,
	the
	courts
	came
	to
	the
conclusions
	that 	reflected
	an
	approach
	much
	like 	that
	adopted
in
	New
	York.15
More
	recently,
	however,
	employee
	relations
	boards
	and
	the
courts
	have 	begun
	to 	reassess
	the
	approach
	taken
	in 	previous
decisions 	in
	such
	a 	way
	as
	to 	indicate
	that
	public 	policy
concerns 	are
	to
	be
	balanced
	more
	equitably
	with
	the
	employment
related
	interests
	of 	public
	employees.16	
Thus, 	even
	the
New
	York
	Court
	of
	Appeals 	has 	appeared
	to
	retreat
	from
	the
relatively
	strict
	Huntington
	test
	as 	demonstrated
	in
Susquehanna
	Valley 	Teachers
	Association,17	
by
	indicating
	that
policy 	factors 	in
	education 	are 	to
	be
	considered 	in 	determining
what
	is
	a
	mandated 	and
	enforceable 	subject
	of 	bargaining:
Public
	policy,
	whether
	derived
	from,
	and
whether
	explicit
	or
	implicit
	in
	statute
	or
in 	decisional
	law,
	or 	in
	neither,
	may
	also
restrict
	the
	freedom
	to
	arbitrate.
Keyed
	to
	the
	analysis
	is 	that
	the
freedom
	to 	contract 	in 	exclusively 	private
enterprises
..•
does
	not 	blanket 	public
	school
15see 	Teamsters 	Local
	320
	v. 	City 	of
	Minnea~olis
	(1975)
302 	Minn. 	410,
	225 	N.W.2d 	254;
	Central 	Point
	Sc
	ool
	Dist. 	v.
Employment
	Rel. 	Bd.,
	(1976) 	27
	Or.
	App. 	285, 	555
	P.2d
	1269 	(no
constitutional
	or
	statutory 	proscription
	of 	school
	district's
agreement
	to
	arbitrate
	questions 	of 	teacher 	dismissal);
Springfield
	Educ.
	Ass'n 	v. 	School
	Dist.
	No
	19 	(1976) 	24
	Or.
App.
	751,
	547
	P.2d
	647
	(reversing
	Oregon 	Employment
	Relations
Board
	holding
	that
	bargaining 	over 	school
	district's
	contracts
with
	university 	for 	student 	teaching
	programs
	was
	prohibited).
16cohoes
	City 	School
	District
	v.
	Cohoes
	Teachers
Association
	(1976) 	40 	N.Y.2d 	774, 	358 	N.E.2d 	878, 	390
	N.Y.S.2d53; 	School 	Committee
	of
	Hanover 	v. 	Curry 	(1976) 	343 	N.E.2d
	144;Superintending 	School
	Comm.
	v. 	WinslowEduc. 	Assn. 	(1976 	363
A.2d 	229.
17(1975) 	37 	N.Y.2d 	614, 	339 	N.E.2d 	132, 	376 	N.Y.S.2d 	427.
14

matters because of the governmental interest
in public concerns which may be involved,
however rarely that may be. 18
What the courts appear to be saying is that such elements
as inflation, declining enrollment, inherent distinctions
between public and private sector collective negotiations, the
public's attitude towards government, and taxing policies of
both federal and local government all affect decisions made in
the court and accords reached at the bargaining table. We, in
California, cannot pretend that these same elements do not
exist in our state. Consequently, this Board must attempt to
balance the right of public employee groups to negotiate about
matters directly related to their employment with the ever
difficult job of managing public agencies given the current
economic and political climate.
On the one hand, in analyzing section 3543.2 language, it
seems clear that the Legislature did not intend that this Board
blithely go on its way giving an expansive interpretation to
section 3543.2 for it specifically mandated that "all matters
not specifically enumerated" were to be excluded from the
negotiation process, rendering them prohibited items of
negotiations. On the other hand, while section 3543.2 appears
to impose a very tight limitation on the scope of negotiations,
and that the Legislature intended it so, there is,
nevertheless, the fact that the enumerated scope language is
18
ra. at 616-17, 339 N.E. 2d at 133-34, 376 N. Y. S. 2d at
429 .
15
matters
	because
	of 	the
	governmental
	interest
in 	public
	concerns
	which
	may 	be
	involved,
however
	rarely 	that
	may
	be.18
What
	the
	courts
	appear
	to
	be
	saying
	is 	that
	such
	elements
as
	inflation,
	declining
	enrollment, 	inherent
	distinctions
between
	public
	and
	private
	sector
	collective 	negotiations, 	the
public's 	attitude
	towards 	government,
	and
	taxing
	policies 	of
both
	federal
	and
	local
	government
	all
	affect
	decisions
	made
	in
the
	court
	and
	accords 	reached
	at
	the 	bargaining
	table.
	We,
	in
California,
	cannot
	pretend
	that
	these
	same
	elements
	do
	not
exist
	in
	our
	state.
	Consequently,
	this
	Board 	must
	attempt
	to
balance 	the
	right
	of 	public
	employee
	groups
	to 	negotiate 	about
matters
	directly 	related 	to
	their
	employment
	with
	the 	ever
difficult
	job 	of
	managing
	public
	agencies 	given 	the
	current
economic
	and
	political
	climate.
On
	the
	one
	hand,
	in
	analyzing
	section
	3543.2
	language,
	it
seems
	clear 	that
	the 	Legislature
	did 	not 	intend
	that 	this
	Board
blithely
	go 	on
	its
	way
	giving
	an
	expansive
	interpretation 	to
section
	3543.2
	for
	it
	specifically
	mandated
	that
	"all
	matters
not
	specifically
	enumerated" 	were
	to
	be
	excluded
	from
	the
negotiation 	process, 	rendering
	them
	prohibited
	items 	of
negotiations.
	On
	the 	other
	hand, 	while
	section
	3543.2
	appears
to
	impose 	a
	very
	tight 	limitation
	on
	the 	scope 	of
	negotiations,
and
	that
	the 	Legislature 	intended
	it
	so, 	there
	is,
nevertheless, 	the
	fact 	that 	the 	enumerated 	scope 	language
	is
18Id.	
at 	616-17,
	339 	N.E.2d
	at
	133-34, 	376 	N.Y.S.2d
	at
429.
15

prefaced by the words "matters relating to, " clearly requiring
and enabling this Board to interpret the scope language with
some degree of latitude. 19
The breadth of interpretation, then, is clearly arguable,
although in analyzing section 3543.2 language in total, there
can be no doubt that, textually, the language and structure of
this provision suggests a far more restrictive scope of
19 Advocates for a broad scope interpretation might also
focus on the purpose language of EERA contained in section
3540, noting, in particular that language affording teachers
the right to be represented in their "professional and
employment relations' and to have a 'voice in the formulaton of
educational policy. '" 	Nelson, State Court Interpretation of
Teacher Collective Bargaining Statutes: Four Approaches to the
Scope of Bargaining Issue (1977) 2 Industrial Relations Law
Journal 421, 478. 	Section 3540 states:
It is the purpose of this chapter to promote
the improvement of personnel management and
employer-employee relations within the
public school systems in the State of
California by providing a uniform basis for
recognizing the right of public school
employees . 	to be represented by such
organizations in their professional and
employment relationships with public school
employers . 	. and to afford certificated
employees a voice in the formulation of
educational policy. Nothing contained
herein shall be deemed to supersede other
provisions of the Education Code and the
rules and regulations of public school
employers which establish and regulate
tenure or a merit or civil service system or
which provide for other methods of
administering employer-employee relations,
so long as the rules and regulations or
other methods of the public school employer
do not conflict with lawful collective
agreements.
16
prefaced
	by
	the
	words
	"matters
	relating 	to," 	clearly
	requiring
and
	enabling
	this
	Board
	to
	interpret
	the
	scope 	language
	with
some
	degree
	of
	latitude.19
The
	breadth
	of
	interpretation,
	then,
	is
	clearly
	arguable,
although
	in
	analyzing
	section
	3543.2 	language
	in
	total,
	there
can
	be 	no
	doubt
	that, 	textually,
	the
	language
	and
	structure
	of
this
	provision 	suggests
	a
	far
	more
	restrictive
	scope
	of
19Advocates
	for
	a
	broad 	scope
	interpretation
	might
	also
focus
	on
	the
	purpose 	language
	of
	EERA
	contained 	in
	section
3540,
	noting, 	in
	particular 	that
	language
	affording 	teachers
the
	right
	to
	be
	represented 	in
	their
	'"professional
	and
employment
	relations'
	and
	to
	have
	a
	'voice 	in 	the 	formulaton
	of
educational
	policy.'"
	Nelson,
	State
	Court
	Interpretation 	of
Teacher
	Collective
	Bargaining
	Statutes:
	Four 	Approaches
	to 	the
Scope
	of
	Bargaining
	Issue
	(1977) 	2
	Industrial
	Relations
	Law
Journal
	421, 	478.
	Section
	3540
	states:
It
	is
	the
	purpose
	of
	this
	chapter 	to
	promote
the
	improvement
	of 	personnel
	management 	and
employer-employee
	relations
	within 	the
public
	school 	systems
	in 	the
	State
	of
California
	by
	providing
	a
	uniform
	basis 	forrecognizing 	the
	right
	of 	public
	school
employees
	...
	to
	be
	represented
	by
	such
organizations 	in
	their
	professional
	and
employment
	relationships
	with
	public 	schoolemployers
	...
	and
	to 	afford
	certificated
employees
	a
	voice 	in 	the 	formulation 	of
educational 	policy.
	Nothing
	contained
herein
	shall
	be 	deemed
	to 	supersede 	other
provisions 	of 	the 	Education
	Code 	and
	the
rules
	and
	regulations 	of 	public 	schoolemployers
	which
	establish
	and
	regulatetenure 	or
	a
	merit
	or
	civil
	service
	system 	orwhich
	provide 	for 	other
	methods
	of
administering
	employer-employee
	relations,
so 	long 	as 	the
	rules
	and
	regulations 	or
other
	methods
	of 	the 	public 	school 	employerdo
	not
	conflict
	with 	lawful 	collectiveagreements.
16

negotiations than is found in most other public sector labor
legislation. 20
First, the Legislature used language of an exclusive rather
than inclusive nature in sharp contrast to EERA's predecessor,
the former Winton Act. 21 Under the Winton Act, the scope of
representation was described as follows:
The scope of representation shall include
all matters relating to employment
conditions and employer-employee relations,
including, but not limited to wages, hours
and conditions of employment . 22
Comparing the two scope provisions, it is readily apparent that
under EERA, negotiability is "limited to" specifically listed
items and to matters which relate to those items. Under the
former Winton Act, any matter, so long as it related to
employment conditions and employer-employee relations, was a
proper subject for meeting and conferring. In fact, a decision
issued shortly before the passage of Senate Bill 160,23 would
suggest quite pointedly the Legislature's reason for adopting
20 See Najita, Guide to Statutory Provisions in Public
Sector Collective Bargaining, Scope of Negotiations, Industrial
Relations Center, University of Hawaii (1978) for a compendium
of public sector statutory provisions of other jurisdictions
relating to scope of negotiation.
2lsee fn. 7, ante.
22Former Education Code section 13084, repealed,
effective July 1, 1976.
23The EERA had its genesis in Senate Bill 160, introduced
by 	Senator Albert S. Rodda. This bill was virtually identical
to Senate Bill 1857, also sponsored by Senator Rodda. 	In
terms of scope, it differed from Senate Bill 1857 in that it
provided for "organizational security" and "class size" to be
negotiable.
17
negotiations
	than
	is
	found
	in
	most
	other 	public
	sector 	labor
legislation.20
First,
	the
	Legislature
	used 	language
	of
	an
	exclusive
	rather
than
	inclusive
	nature 	in
	sharp
	contrast
	to
	EERA's
	predecessor,
the
	former
	Winton
	Act.21	
Under
	the
	Winton
	Act, 	the
	scope
	of
representation
	was
	described 	as 	follows:
The
	scope
	of
	representation
	shall
	include
all
	matters
	relating
	to
	employment
conditions
	and
	employer-employee
	relations,
including,
	but 	not
	limited 	to
	wages,
	hours
and
	conditions 	of
	employment.22
Comparing
	the
	two
	scope
	provisions,
	it
	is
	readily
	apparent
	that
under
	EERA,
	negotiability
	is
	"limited
	to"
	specifically
	listed
items
	and
	to matters
	which
	relate
	to 	those 	items.
	Under
	the
former 	Winton
	Act,
	any
	matter,
	so
	long 	as
	it
	related 	to
employment
	conditions
	and
	employer-employee
	relations;
	was 	a
proper
	subject
	for
	meeting
	and
	conferring.
	In
	fact,
	a
	decision
issued
	shortly
	before 	the 	passage 	of 	Senate
	Bill
	160,23 	would
suggest 	quite 	pointedly 	the
	Legislature's
	reason 	for 	adopting
20see
	Najita,
	Guide
	to 	Statutory 	Provisions 	in 	Public
Sector 	Collective 	Bargaining,
	Scope
	of 	Negotiations,
	Industrial
Relations 	Center, 	University 	of
	Hawaii 	(1978)
	for
	a 	compendium
of 	public 	sector 	statutory 	provisions 	of 	other
	jurisdictions
relating 	to
	scope 	of 	negotiation.
21
see 	fn. 	7, 	ante.
22Former
	Education
	Code
	section
	13084,
	repealed,
effective 	July 	1,
	1976.
23The
	EERA
	had
	its
	genesis 	in 	Senate
	Bill
	160, 	introduced
by
	Senator 	Albert 	S.
	Rodda. 	This
	bill
	was
	virtually 	identicalto 	Senate
	Bill
	1857,
	also 	sponsored
	by
	Senator 	Rodda. 	In
terms 	of 	scope,
	it
	differed
	from 	Senate
	Bill
	1857
	in 	that
	it
provided 	for-"organizational 	security"
	and
	"class 	size" 	to 	be
negotiable.
17

limiting language. In San Juan Teachers Assn. v. San Juan
Unified Sch. Dist. (1974) 44 Cal. App. 3d 232, the court gave an
expansive interpretation to the scope of representation
language under the Winton Act. In its view, given the fact
that, among other things, public school teachers were precluded
from collectively bargaining or striking under the Winton Act,
it is "reasonable to conclude that the Winton Act represented a
legislative attempt not to end but to compensate for those
disabilities. (Id. at 249) In summary, then, while there is a
noted absence of legislative history accounting for the unique
language of section 3543.2, it is not idle speculation to
conclude that with the granting of collective negotiating
rights to public school employees, the Legislature deliberately
chose a more cautious approach, particularly since this was its
first grant of such authority to any public employees in the
state.
A second textual characteristic reflecting the
Legislature's intent to provide a more limited scope of
representation than other comparable public sector employment
relations statutes is that it established a right of
consultation, as opposed to negotiation, over certain specified
items -- definition of educational objectives, determination of
the course content and curriculum, and selection of
textbooks. 24 The items it expressly chose to exclude from
24 Some other jurisdictions have adopted a similar
approach, creating two categories but making one subject to
negotiations and the other subject to discussion or
18
limiting 	language. 	In 	San 	Juan 	Teachers 	Assn. 	v. 	San 	Juan
Unified 	Sch. 	Dist. 	(1974) 	44 	Cal.App.3d 	232, 	the 	court 	gave 	an
expansive 	interpretation 	to 	the 	scope 	of 	representation
language 	under 	the 	Winton 	Act. 	In 	its 	view, 	given 	the 	fact
that, 	among 	other 	things, 	public 	school 	teachers 	were 	precluded
from 	collectively 	bargaining 	or 	striking 	under 	the 	Winton Act,
it 	is 	"reasonable 	to 	conclude 	that 	the 	Winton Act 	represented 	a
legislative 	attempt 	not 	to 	end 	but 	to 	compensate 	for 	those
d is ab i 1 i ti es . 	( Id • 	at 	2 4 9 ) 	In 	s umm a r y , 	then , 	wh i 1 e 	the r e 	i s 	a
noted 	absence 	of 	legislative 	history 	accounting 	for 	the 	unique
language 	of 	section 	3543.2, 	it 	is 	not 	idle 	speculation 	to
conclude 	that 	with 	the 	granting 	of 	collective 	negotiating
rights 	to 	public 	school 	employees, 	the 	Legislature 	deliberately
chose 	a 	more 	cautious 	approach, 	particularly 	since 	this 	was 	its
first 	grant 	of 	such 	authority 	to 	any 	public 	employees 	in 	the
state.
A second 	textual 	characteristic 	reflecting 	the
Legislature's 	intent 	to 	provide 	a 	more 	limited 	scope 	of
representation 	than 	other 	comparable 	public 	sector 	employment
relations 	statutes 	is 	that 	it 	established 	a 	right 	of
consultation, 	as 	opposed 	to 	negotiation, 	over 	certain 	specified
items 	-- 	definition 	of 	educational 	objectives, 	determination 	of
the 	course 	content 	and 	curriculum, 	and 	selection 	of
textbooks.24 	The 	items 	it 	expressly chose 	to 	exclude 	from
24some 	other 	jurisdictions 	have 	adopted 	a 	similar
approach, 	creating 	two 	categories 	but making 	one 	subject 	to
negotiations 	and 	the 	other 	subject 	to 	discussion 	or
18

mandatory negotiations could properly be characterized as
falling primarily within the professional interests of teachers
as compared to traditional employment interests of employees
generally. One commentator describes such items as going to a
determination of goals and methods to be achieved by the public
agency . 25 Budget costs and levels of service, while
important considerations, are secondary to the overriding
educational policy concerns that such items generate.
It may be argued that since the Legislature saw fit to
relegate such items of professional interest to the
consultation process only, any other items which fall within
the same genre may not be subject to negotiations because to do
so would conflict with the clear Legislative scheme apparent in
section 3543.2. 	In other words, to the extent that the
Legislature intended to have the public school employer
obligated to the exclusive representative on items of
professional interest to teachers, it expressed which items
they were to be and the format in which they were to be
presented. Any other items or any other format were not
contemplated by the Legislature. Furthermore, had the
Legislature intended such items to be subject to negotiations,
it could have included them, as it did "class size," an item
consultation. See Ind. Code Ann. section 20 - 7.5 - 1-1- to 14
(Burns 1975); Nev. Rev. Stat. section 288. 010 - .260 (1975) ;
Ore. Rev. Stat. section 243.650-.782 (1975) .
25
Perspective, 83 Yale L. J. 1156, 1181 (1974) .
19
mandatory
	negotiations
	could
	properly
	be
	characterized
	as
falling
	primarily
	within
	the
	professional
	interests
	of
	teachers
as
	compared
	to
	traditional
	employment
	interests
	of
	employees
generally.
	One
	commentator
	describes
	such
	items 	as
	going
	to
	a
determination 	of 	goals
	and
	methods
	to
	be
	achieved
	by
	the
	public
agency.25	
Budget
	costs
	and
	levels
	of
	service,
	while
important
	considerations,
	are
	secondary
	to 	the
	overriding
educational 	policy
	concerns
	that
	such
	items
	generate.
consultation.
	See
	Ind.
	Code 	Ann.
	section
	20 	-
	7.5
	-
	1-1-
	to
	14
(Burns 	1975)t
	Nev. 	Rev.
	Stat. 	section
	288. 	010 	- 	.260 	(1975) i
Ore. 	Rev.
	Stat. 	section 	243.650-.782 	(1975).
It
	may 	be
	argued
	that
	since 	the
	Legislature
	saw
	fit
	to
relegate
	such
	items
	of
	professional
	interest
	to
	the
consultation
	process 	only,
	any
	other
	items
	which
	fall
	within
the
	same
	genre
	may
	not
	be
	subject 	to 	negotiations
	because
	to
	do
so
	would
	conflict
	with 	the
	clear 	Legislative
	scheme
	apparent
	in
section
	3543.2. 	In
	other
	words,
	to
	the
	extent 	that
	the
Legislature
	intended 	to
	have
	the 	public
	school
	employer
obligated 	to
	the 	exclusive 	representative
	on
	items 	of
professional
	interest
	to 	teachers,
	it
	expressed
	which
	items
they
	were
	to
	be 	and
	the 	format
	in
	which
	they
	were
	to
	be
presented.
	Any
	other
	items 	or
	any
	other
	format
	were
	not
contemplated
	by
	the
	Legislature.
	Furthermore,
	had
	the
Legislature 	intended 	such 	items
	to
	be
	subject 	to 	negotiations,
it
	could
	have
	included
	them,
	as
	it
	did 	"class 	size,"
	an
	item
25summers,
	Public
	Employee 	Bar
	aining:
	A
PoliticalPerspective,
	83 	Yale 	L.J. 	1156, 	11 8I 	(1974).
Summers, Public Employee Bargaining: A Political
19

which has typically posed the broader issue of management
prerogative in maintaining efficiency, thus a question of
educational policy, versus the teachers' ability to negotiate
over an item affecting both their professional and occupational
status . 26
But, I am persuaded that such an approach would not be in
conformity with that portion of section 3543.2 which allows
"matters related to" the specifically enumerated items to also
be subjects of negotiations. Thus, the fact that a proposed
item may bear upon the teachers' professional interests does
not necessarily preclude its negotiability. Furthermore, such
a restrictive approach would, in my opinion, be unnecessarily
premature in view of the relatively brief time the Board has
had to observe the impact of this new law on the educational
process generally, and in view of the time yet remaining which
will require our examination of a breadth of issues dealing
with scope. Thus I would reject such a narrow construction of
the law and simply view the Legislature's relegation of
certain, specified topics to the consultation process as in and
of themselves narrowing the scope of collective negotiations.
While it seems to me that the Board can ascribe only
limited significance to the inclusion of a consultation
category in assessing its effect on the scope of
26For an in-depth discussion of the class size issue and
its decisional history see Weitzman, J., The Scope of
Bargaining in Public Employment, at 251, (1975) .
20
which
	has
	typically
	posed
	the 	broader
	issue
	of
	management
prerogative
	in 	maintaining
	efficiency,
	thus
	a
	question
	of
educational
	policy,
	versus 	the
	teachers'
	ability
	to
	negotiate
over
	an
	item
	affecting
	both
	their
	professional
	and
	occupational
status.26
But,
	I
	am
	persuaded
	that
	such
	an
	approach
	would
	not
	be
	in
conformity 	with
	that
	portion
	of
	section
	3543.2
	which
	allows
"matters
	related
	to" 	the
	specifically
	enumerated
	items
	to
	also
be
	subjects
	of
	negotiations.
	Thus,
	the
	fact 	that
	a
	proposed
item
	may
	bear
	upon
	the
	teachers' 	professional
	interests
	does
not
	necessarily
	preclude
	its
	negotiability.
	Furthermore, 	such
a
	restrictive
	approach 	would,
	in
	my
	opinion,
	be
	unnecessarily
premature
	in
	view
	of 	the
	relatively 	brief
	time
	the
	Board
	has
had
	to
	observe 	the
	impact
	of
	this
	new
	law 	on
	the
	educational
process 	generally,
	and
	in
	view
	of 	the
	time
	yet
	remaining 	which
will
	require
	our 	examination
	of
	a
	breadth 	of 	issues 	dealing
with 	scope.
	Thus 	I 	would
	reject
	such
	a
	narrow
	construction 	of
the
	law 	and
	simply
	view
	the
	Legislature's 	relegation 	of
certain, 	specified 	topics 	to 	the
	consultation
	process
	as
	in
	and
of
	themselves 	narrowing 	the
	scope
	of
	collective 	negotiations.
While
	it
	seems
	to
	me
	that
	the
	Board 	can
	ascribe 	only
limited 	significance 	to
	the 	inclusion 	of
	a
	consultation
category 	in 	assessing
	its
	effect
	on
	the 	scope 	of
26For 	an
	in-depth 	discussion 	of 	the 	class 	size 	issue 	and
its
	decisional 	history 	see Weitzman,
	J.,
	The 	Scope
	of
Bargaining 	in 	Public
	Employment,
	at
	251, 	(1975).
20

representation, another feature of section 3543.2 is also
noteworthy. Unlike most other legislative bodies which have
followed the classification scheme initially articulated in
NLRB v. Wooster Division of the Borg-Warner Corp. (1958) 356
U.S. 342, allowing for mandatory, permissive, and prohibited
subjects of bargaining, 27 the California Legislature has
adopted a scheme that, for purposes of negotiating, classifies
a subject as either mandatory or prohibited. 28 Section
3543.2 states in part:
All matters not specifically enumerated are
reserved to the public school employer and
may not be a subject of meeting and
negotiating . 	29
This departure from the Borg-Warner analysis cannot be
attributed to mere happenstance on the part of the Legislature,
particularly in view of the substantial criticism that approach
27 Typically, bargaining subjects have been categorized as
either mandatory, permissive or prohibited. Mandatory topics
are items over which labor and management must bargain,
permissive topics are items over which labor and management may
bargain if both agree, and illegal or prohibited topics are
items over which labor and management cannot bargain.
28Only one other jurisdiction, Hawaii, has statutorily
eliminated a permissive category. 	See Haw, Rev. Stat. section
89-9 (a) 1975. This act requires negotiations over wages, hours
and conditions of employment, but section 89-9 (d) bars any
agreement which would interfere with the rights of a public
employer to direct employees; to determine qualifications and
standards for work; to hire, promote, transfer, assign and
retain employees or discipline employees by proper cause; to
reduce staff size for legitimate reasons; to maintain
efficiency of governmental operations; and to determine the
methods, means and personnel of operating.
29A literal application of the language "all matters not
specifically enumerated . 	." would have the effect of
21
representation,
	another
	feature
	of
	section
	3543.2
	is
	also
noteworthy.
	Unlike
	most
	other
	legislative
	bodies
	which
	have
followed
	the
	classification
	scheme
	initially
	articulated 	in
NLRB
	v.
	Wooster
	Division 	of 	the
	Borg-Warner 	Corp.
	(1958) 	356
U.S.
	342,
	allowing
	for
	mandatory,
	permissive,
	and
	prohibited
subjects
	of 	bargaining,27 	the
	California 	Legislature
	has
adopted
	a 	scheme
	that,
	for
	purposes
	of
	negotiating,
	classifies
a
	subject
	as
	either
	mandatory
	or 	prohibited.28 	Section
3543.2
	states
	in
	part:
All 	matters
	not
	specifically
	enumerated
	arereserved 	to
	the
	public
	school
	employer
	andmay
	not
	be
	a
	subject
	of
	meeting
	and
negotiating
	....	
29
This
	departure
	from
	the
	Borg-Warner
	analysis
	cannot
	be
attributed
	to
	mere
	happenstance
	on
	the
	part
	of
	the
	Legislature,
particularly
	in
	view
	of 	the
	substantial 	criticism 	that
	approach
27
Typically, 	bargaining
	subjects
	have 	been
	categorized
	as
either
	mandatory,
	permissive 	or
	prohibited.
	Mandatory
	topics
are
	items 	over
	which
	labor
	and 	management
	must
	bargain,permissive 	topics 	are
	items 	over
	which
	labor
	and 	management 	may
bargain
	if
	both
	agree,
	and
	illegal
	or 	prohibited 	topics 	are
items 	over
	which
	labor
	and 	management
	cannot
	bargain.
28only one
	other
	jurisdiction,
	Hawaii, 	has
	statutorily
eliminated
	a
	permissive 	category.
	See 	Haw, 	Rev.
	Stat. 	section
89-9(a)
	1975. 	This
	act 	requires 	negotiations
	over 	wages,
	hours
and
	conditions 	of
	employment,
	but
	section
	89-9(d) 	bars
	any
agreement 	which 	would
	interfere
	with 	the
	rights
	of
	a
	public
employer
	to
	direct
	employees;
	to 	determine
	qualifications
	and
standards 	for
	work;
	to 	hire,
	promote,
	transfer, 	assign
	and
retain
	employees 	or
	discipline
	employees 	by
	proper 	cause;
	to
reduce
	staff 	size 	for 	legitimate 	reasons; 	to maintain
efficiency 	of 	governmental
	operations;
	and
	to 	determine 	themethods, 	means 	and
	personnel 	of 	operating.
29A
	literal
	application 	of 	the 	language
	"all 	matters 	not
specifically
	enumerated
	...
" 	would 	have 	the 	effect 	of
21

has received in the private sector for years , 30 in view of
the fact that its application to the public sector has been
seriously questioned, 31 and in view of the fact that every
other jurisdiction adopting public sector labor legislation
prior to the enactment of EERA, except Hawaii , 32 had
incorporated the mandatory-permissive-prohibited trichotomy in
its scope language. Nor can its reasons for excluding a
ignoring that language, also in section 3543.2, which reads
. matters relating to 	" Therefore, elliptically,
the limiting language found at the end of section 3543.2 would
seem to more appropriately read:
All matters not specifically enumerated
(except those which relate to the
specifically enumerated items) are reserved
to the public school employer.
Hence, the Legislature has seemingly precluded the application
of the principle of sui generis, thereby disallowing any
addition to the list of enumerated subjects.
30Such criticism was evident from the beginning. 	In
Mr. Justice Harlan's separate opinion in Borg-Warner, in which
he concurred in part and dissented in part, the dissenting
portion of the opinion was particularly critical of the
majority's implicit conclusion allowing the NLRB (and thus the
courts) to invade the bargaining process by holding that
insistence on a non-mandatory, but lawful, subject to impasse
was a violation of the duty to bargain, absent any finding of
bad faith bargaining. See also, St. Antoine, Judicial Caution
and the Supreme Court's Labor Decisions, October Term, 1971.
ABA Section of Labor Relations Law - 1972 Proceedings, 4, 11-15
(1973) and Comment, Application of the Mandatory Permissive
Dichotomy to the Duty to Bargain and Unilateral Action: A
Review and Reevaluation, (1974) 15 Wm. & Mary L. Rev. 918
(1974) .
31see Sackman, Redefining the Scope of Bargaining in
Public Employment (1977) 19 Boston College L. Rev. 155;
Kilberg, Appropriate Subjects for Bargaining in Local
Government Labor Relations, (1970) 30 Md. L. Rev. 179, 189;
Summers, supra, fn. 25.
32 See fn. 28, ante.
22
has
	received
	in
	the
	private
	sector
	for 	years,30	
in
	view
	of
the
	fact 	that
	its
	application
	to 	the
	public
	sector
	has 	been
seriously
	questioned,31	
and
	in
	view
	of 	the
	fact 	that
	every
other
	jurisdiction
	adopting
	public
	sector
	labor
	legislation
prior 	to
	the
	enactment
	of
	EERA,
	except
	Hawaii,32	
had
incorporated 	the 	mandatory-permissive-prohibited 	trichotomy
	in
its
	scope
	language.
	Nor
	can
	its
	reasons 	for
	excluding
	a
ignoring
	that
	language,
	also 	in 	section
	3543.2,
	which
	reads
11
	• 	• 	•
	matters
	relating
	to
	. 	. 	. 	.
	11
	Therefore,
	elliptically,
the
	limiting
	language
	found
	at
	the
	end
	of
	section
	3543.2 	would
seem
	to
	more
	appropriately
	read:
All 	matters
	not
	specifically
	enumerated
(except 	those
	which
	relate
	to 	the
specifically
	enumerated 	items)
	are 	reserved
to 	the 	public 	school
	employer
....
Hence,
	the
	Legislature
	has 	seemingly
	precluded 	the
	application
of
	the
	principle
	of
	sui 	generis,
	thereby 	disallowing
	any
addition 	to
	the
	list
	of 	enumerated
	subjects.
30such
	criticism
	was
	evident
	from
	the 	beginning. 	In
Mr.
	Justice
	Harlan's 	separate 	opinion 	in
	Borg-Warner,
	in
	which
he
	concurred
	in 	part
	and
	dissented 	in
	part,
	the
	dissenting
portion
	of 	the 	opinion
	was
	particularly
	critical
	of 	the
majority's 	implicit
	conclusion 	allowing 	the
	NLRB
	(and
	thus
	the
courts) 	to
	invade 	the 	bargaining 	process
	by
	holding
	thatinsistence
	on 	a
	non-mandatory,
	but 	lawful, 	subject 	to
	impasse
was 	a
	violation
	of 	the 	duty 	to 	bargain, 	absent
	any
	finding
	of
bad
	faith
	bargaining.
	See
	also, 	St.
	Antoine,
	Judicial
	Caution
and
	the
	Supreme
	Court's
	Labor
	Decisions,
	October
	Term, 	1971.
ABA
	Section 	of
	Labor
	Relations
	Law
	- 	1972
	Proceedings,
	4,
	11-15
(1973) 	and 	Comment,
	Application 	of 	the
	Mandatory
	Permissive
Dichotomy
	to 	the
	Duty
	to 	Bargain
	and
	Unilateral
	Action:
	A
Review 	and
	Reevaluation,
	(1974) 	15
	Wm.
	& Mary 	L. 	Rev. 	918
(1974).
3lsee
	Sackman,
	Redefining 	the
	Scope
	of 	Bargainin~ 	in
Public
	Employment 	(1977) 	19 	Boston College
	L. 	Rev.
	1;s;
Kilberg, 	Appropriate 	Subjects 	for 	Bargaining 	in 	LocalGovernment 	Labor
	Relations,
	(1970) 	30 	Md. 	L. 	Rev. 	179, 	189;Summers,
	supra, 	fn. 	25.
32see 	fn. 	28, 	ante.
22

permissive category be unclear, since the main justification in
the public sector for excluding a topic from mandated
negotiations is precisely because certain demands involve such
significant public policy considerations that a determination
of them in the isolated context of negotiations, limited to
labor and management, would deprive other parties, namely the
public, the parents and the students who also have a vital
interest in the particular outcome, from having input.
It might be argued that the school board, as trustee for
the public's interest in education, would adequately represent
the views of the public at the negotiating table.
Realistically, however, the task is not so easily satisfied.
The public is comprised of various groups whose interest in
public education will vary and sometimes conflict. In addition
to the public employees, there are other taxpayers, whose
interest is primarily school finance and budgeting, and there
are the consumers of education, whose interests primarily
relate to the level and quality of education provided.
Furthermore, the fact that the school board is supposedly
politically accountable is not, realistically, an adequate
leverage for allowing the determination of significant policy
decisions to be made in the exclusive, bilateral process of
negotiations--the allegiances of some public officials are not
necessarily to the public at large, but to particular
constituencies; the frequent turnover of elected and appointed
officials prevents an accumulation of labor relations
experience; or the quality of representation during the initial
23
permissive 	category
	be
	unclear, 	since
	the
	main
	justification
	in
the
	public
	sector
	for 	excluding
	a
	topic
	from
	mandated
negotiations
	is
	precisely
	because
	certain
	demands
	involve 	such
significant
	public 	policy 	considerations
	that
	a
	determination
of
	them
	in
	the
	isolated
	context
	of
	negotiations, 	limited
	to
labor
	and 	management,
	would
	deprive 	other
	parties,
	namely
	the
public,
	the
	parents
	and
	the
	students
	who
	also
	have
	a
	vital
interest
	in
	the
	particular
	outcome,
	from
	having
	input.
It
	might
	be
	argued
	that
	the 	school 	board, 	as
	trustee 	for
the
	public's 	interest
	in 	education,
	would
	adequately
	represent
the
	views
	of
	the
	public
	at
	the
	negotiating
	table.
Realistically,
	however,
	the 	task
	is
	not 	so
	easily
	satisfied.
The
	public
	is
	comprised
	of 	various
	groups
	whose
	interest
	in
public 	education
	will
	vary
	and 	sometimes
	conflict.
	In
	addition
to
	the
	public
	employees,
	there 	are 	other 	taxpayers,
	whose
interest 	is
	primarily
	school 	finance
	and
	budgeting,
	and
	there
are
	the
	consumers
	of 	education,
	whose
	interests
	primarily
relate
	to 	the
	level
	and
	quality
	of 	education 	provided.
Furthermore, 	the
	fact 	that
	the 	school 	board
	is
	supposedly
politically
	accountable
	is
	not,
	realistically,
	an
	adequate
leverage 	for 	allowing 	the 	determination 	of
	significant 	policy
decisions 	to
	be made
	in 	the 	exclusive,
	bilateral
	process 	of
negotiations--the 	allegiances 	of
	some
	public
	officials
	are 	not
necessarily 	to 	the 	public 	at 	large,
	but 	to 	particular
constituencies; 	the 	frequent 	turnover 	of 	elected
	and
	appointed
officials 	prevents
	an 	accumulation 	of 	labor 	relations
experience; 	or 	the 	quality of 	representation 	during 	the
	initial
23

stages of collective negotiations may be no match for the
sophistication or militance of some employee representatives.
In sum then it makes little sense, if an item has such
significant policy implications for parties not otherwise privy
to the negotiations process, to nevertheless allow its
negotiability as a permissive subject. 33
This apparent acknowledgement by the Legislature that the
collective negotiations process is not in all instances the
appropriate forum for resolving items affecting the employment
conditions of public school employees because of the overriding
policy considerations does not come too soon. First, it is a
recognition of the fact that certain matters are so
inextricably tied to the mission of the public school employer
in providing an education for the students that it is necessary
for the school employer to retain sole authority to decide such
issues . 	"The forum of the bargaining table with its postures,
strategies, trade-offs, modifications and compromises [citation
omitted] is no place for the 'delicate balancing of different
interests. '" San Jose Peace Officers' Assn. v. City of
33It may appear that section 3547 of BERA which requires
initial proposals of exclusive representatives and public
school employees and new subjects of negotiation to be
"sunshined" for public benefit, itself provides adequate
opportunity for the interested public's input in the collective
negotiation process. Actually, however, the opportunity for
input is relatively circumscribed since the actual negotiations
where trade-off, modifications, and compromises occur, the
essence of the process and, in a sense, where priorities are
eventually defined, remains a bilateral operation to the
exclusion of the public.
24
stages
	of
	collective
	negotiations
	may 	be 	no
	match
	for 	the
sophistication
	or
	militance
	of
	some
	employee
	representatives.
In
	sum
	then
	it
	makes
	little
	sense,
	if
	an
	item 	has 	such
significant
	policy 	implications 	for
	parties
	not
	otherwise
	privy
to 	the
	negotiations 	process, 	to 	nevertheless
	allow
	its
negotiability
	as
	a
	permissive
	subject.33
This 	apparent
	acknowledgement
	by
	the
	Legislature
	that 	the
collective
	negotiations
	process
	is
	not
	in
	all
	instances 	the
appropriate
	forum
	for 	resolving
	items
	affecting
	the
	employment
conditions 	of 	public
	school
	employees
	because
	of 	the
	overriding
policy 	considerations
	does
	not
	come
	too
	soon.
	First,
	it
	is
	a
recognition 	of
	the
	fact 	that 	certain
	matters 	are 	so
inextricably 	tied
	to 	the 	mission 	of 	the 	public
	school 	employer
in
	providing
	an
	education 	for 	the
	students 	that
	it
	is
	necessary
for 	the 	school
	employer
	to
	retain
	sole 	authority
	to 	decide 	such
issues.
	"The 	forum
	of
	the 	bargaining
	table
	with
	its
	postures,
strategies, 	trade-offs,
	modifications
	and
	compromises
	[citation
omitted]
	is
	no
	place 	for 	the
	'delicate
	balancing 	of
	different
interests.'"
	San
	Jose 	Peace
	Officers'
	Assn.
	v. 	City 	of
331t
	may
	appear
	that 	section
	3547
	of
	EERA
	which
	requires
initial
	proposals 	of 	exclusive 	representatives
	and
	publicschool
	employees 	and 	new
	subjects 	of 	negotiation 	to
	be
"sunshined" 	for 	public 	benefit,
	itself
	provides 	adequate
opportunity 	for 	the
	interested 	public's
	input 	in 	the
	collectivenegotiation 	process. 	Actually,
	however, 	the 	opportunity 	forinput
	is 	relatively
	circumscribed 	since 	the 	actual 	negotiations
where
	trade-off, 	modifications,
	and 	compromises
	occur, 	the
essence 	of 	the 	process 	and, 	in
	a
	sense,
	where
	priorities 	areeventually 	defined, 	remains 	a
	bilateral 	operation 	to 	the
exclusion 	of 	the 	public.
24

San Jose (1978) 78 Cal. App. 3d 935, 948. As the Board stated in
Carlsbad Unified School District (1/30/79) PERB Decision No. 89:
Furthermore, the statute lacks any specific
management rights' clause. Yet, it is
unarguable that the Legislature did not
intend to deny to employers the opportunity
to fulfill the mission of the public agency.
A school district does not operate in a
functional vacuum. State legislation
imposes on school districts specific
mandates. [Citations omitted] Compliance
with State mandates, in turn, imposes on the
district management certain obligatory
duties and responsibilities. 	It is in
recognition of the fact, at the very least,
that one is escapably drawn to the
conclusion that inherent managerial
interests coexist with those rights vested
by statute in the district's employees. 34
Second, it is a necessary recognition of the growing
difficulties encountered by public managers in administering
the programs and policies they are charged with given those
34 Carlsbad Unified School District, supra, at 8-9. 	The
absence of a management rights provisions in EERA is in itself
a noted distinction between the Act and other public sector
legislation, including that previously adopted by the
California Legislature applying to local government employees.
See Meyers-Milias-Brown Act (Gov. Code, sec. 3500-3510). Such
a provision has been subject to much criticism on the ground
that it creates more ambiguity than clarity in resolving what
items are or are not negotiable. One commentator has noted
that its susceptibility to a literal interpretation would have
the effect of nullifying the bargaining obligation altogether,
while giving it a non-literal meaning would make its inclusion
virtually meaningless. Alleyne, Statutory Restraints on the
Bargaining Obligation in Public Employment, in Labor Relations
in the Public Sector (Knapp, edit. 1977) 100, 106. Moreover,
as stated by one observer, noting the distinct absence of a
management rights clause in laws applicable solely to teachers,
"[ijt merely confirms the difficulty of clearly delineating
where professional standards and working conditions end and
management rights begin." 	Weitzman, supra, at 52.
25
San
	Jose
	(1978) 	78
	Cal.App.3d
	935,
	948.
	As
	the
	Board
	stated
	in
Carlsbad 	Unified
	School
	District
	(1/30/79)
	PERB
	Decision
	No.
	89:
Furthermore, 	the
	statute
	lacks
	any
	specific
'management
	rights'
	clause.
	Yet,
	it
	is
unarguable
	that
	the
	Legislature
	did
	not
intend 	to
	deny
	to
	employers
	the
	opportunity
to
	fulfill
	the 	mission
	of
	the
	public
	agency.
A
school
	district
	does
	not
	operate 	in
	a
functional
	vacuum.
	State
	legislation
imposes
	on
	school
	districts
	specific
mandates.
	[Citations
	omitted]
	Compliance
with
	State
	mandates,
	in
	turn,
	imposes
	on
	the
district
	management
	certain
	obligatory
duties
	and
	responsibilities.
	It
	is
	in
recognition 	of 	the
	fact, 	at
	the
	very
	least,
that
	one
	is
	escapably
	drawn
	to 	the
conclusion
	that
	inherent
	managerial
interests
	coexist
	with 	those
	rights
	vested
by
	statute
	in 	the
	district's
	employees.34
Second,
	it
	is
	a
	necessary
	recognition 	of 	the
	growing
difficulties
	encountered
	by
	public
	managers
	in 	administering
the
	programs
	and
	policies
	they 	are
	charged 	with 	given
	those
34	
Carlsbad 	Unified
	School
	District,
	supra,
	at
	8-9.
	The
absence
	of
	a 	management
	rights
	prov1s1ons
	in
	EERA
	is
	in
	itself
a
	noted
	distinction
	between
	the
	Act
	and
	other 	public 	sector
legislation,
	including
	that
	previously
	adopted
	by
	the
California 	Legislature
	applying
	to 	local
	government
	employees.
See
	Meyers-Milias-Brown 	Act
	{Gov. 	Code,
	sec.
	3500-3510). 	Such
a
	provision
	has 	been
	subject 	to
	much
	criticism
	on
	the 	ground
that
	it
	creates
	more
	ambiguity 	than
	clarity
	in 	resolving
	what
items 	are 	or 	are 	not
	negotiable.
	One 	commentator 	has 	noted
that
	its
	susceptibility
	to
	a
	literal
	interpretation
	would
	have
the
	effect
	of
	nullifying
	the 	bargaining 	obligation 	altogether,
while 	giving
	it
	a
	non-literal
	meaning 	would 	make
	its
	inclusion
virtually
	meaningless. 	Alleyne, 	Statutory 	Restraints
	on
	theBarfainin
6 Obligation 	in 	Public
	Employment,
	in
	Labor
	Relations
1n 	he 	Pu
	lie
	Sector
	(Knapp,
	edit.
	1977)
	100, 	106. 	Moreover,
as
	stated
	by 	one
	observer, 	noting 	the
	distinct
	absence 	of
	a
management
	rights 	clause 	in
	laws
	applicable 	solely 	to 	teachers,
"[i]t
	merely 	confirms 	the
	difficulty
	of 	clearly 	delineating
where
	professional 	standards
	and 	working 	conditions
	end 	and
management
	rights 	begin."
	Weitzman,
	supra, 	at
	52.
25

factors alluded to earlier such as public attitude towards
government progams and spending and a narrowing tax base. 35
And finally, it is consistent with decisions of PERB's and
courts of other jurisdictions, which in sharp contrast to the
initial line of cases following Board of Education of Union
Free School District No. 3 v. Associated Teachers of
Huntington, supra, 36 reflect a growing tendency to consider
matters of public policy in ultimately determining the
negotiability of a specific item. 37
35See Abood v. Detroit Bd. of Educ. (1977) 431 U.s. 209,
228 [95 LRRM 2411, 2418] where, in dictum, the Court stated:
Finally, decision making by a public
employer is above all a political process.
The officials who represent the public
employer are ultimately responsible to the
electorate, which for this purpose can be
viewed as compromising three overlapping
classes of voters--taxpayers, users of
particular government services, and
government employees. Through exercise of
their political influence as part of the
electorate, the employees have the
opportunity to affect the decisions of
government representatives who sit on the
other side of the bargaining table. Whether
these representatives accede to a union's
demands will depend upon a blend of
political ingredients, including community
sentiment about unionism generally and the
involved union in particular, the degree of
taxpayer resistance, and the views of voters
as to the importance of the service involved
and the relations between the demands and
the quality of service.
3630 N. Y. 2d 122, 282 N. E. 2d 109, 331 N. Y. S. 2d
37 See discussion, ante, at pp. 12 and 13.
26
17
factors 	alluded 	to 	earlier 	such 	as 	public 	attitude 	towards
government 	progams 	and 	spending 	and 	a 	narrowing 	tax 	base.35
And 	finally, 	it 	is 	consistent 	with 	decisions 	of 	PERB's 	and
courts 	of 	other 	jurisdictions, 	which 	in 	sharp 	contrast 	to 	the
initial 	line 	of 	cases 	following 	Board 	of 	Education 	of 	Union
Free 	School 	District 	No. 	3 	v. 	Associated 	Teachers 	of
Huntington, 	~upra,36 	reflect 	a 	growing 	tendency 	to 	consider
matters 	of 	public 	policy 	in 	ultimately 	determining 	the
negotiability 	of 	a 	specific 	item.37
35see 	Abood 	v. 	Detroit 	Bd. 	of 	Educ. 	(1977) 	431 	U.S. 	209,
228 	[95 	LRRM 	2411, 	2418] 	where, 	in 	dictum, 	the 	Court 	stated:
Finally, 	decision 	making 	by 	a 	public
employer 	is 	above 	all 	a 	political 	process.
The 	officials 	who 	represent 	the 	public
employer 	are 	ultimately 	responsible 	to 	the
electorate, 	which 	for 	this 	purpose 	can 	be
viewed 	as 	compromising 	three 	overlapping
classes 	of 	voters--taxpayers, 	users 	of
particular 	government 	services, 	and
government 	employees. 	Through 	exercise 	of
their 	political 	influence 	as 	part 	of 	the
electorate, 	the 	employees 	have 	the
opportunity 	to 	affect 	the 	decisions 	of
government 	representatives 	who 	sit 	on 	the
other 	side 	of 	the 	bargaining 	table. 	Whether
these 	representatives 	accede 	to 	a 	union's
demands 	will 	depend 	upon 	a 	blend 	of
political 	ingredients, 	including 	community
sentiment 	about 	unionism 	generally 	and 	the
involved 	union 	in 	particular, 	the 	degree 	of
taxpayer 	resistance, 	and 	the 	views 	of 	voters
as 	to 	the 	importance 	of 	the 	service 	involved
and 	the 	relations 	between 	the 	demands 	and
the 	quality 	of 	service.
3630 	N.Y.2d 	122, 	282 	N.E. 	2d 	109, 	331 	N.Y.S.2d
17.
37see 	discussion, 	ante, 	at 	pp. 	12 	and 	13.
26

But while the Legislature has apparently directed this
Board to adopt a less than expansive approach to the scope
issue, I am also mindful of the overall purpose of this
legislation, to promote the improvement of personnel management
and employer-employee relations. 38 Thus the Board must be
equally cautious not to be unduly restrictive:
The goal of the Rodda Act is to promote the improve-
ment of personnel management and employer/employee
relations within the public school systems. The means
chosen is meeting and negotiating by the exclusive
employee representative and public school employer in
a good faith effort to reach agreement on enumerated
matters. 	A hard and fast refusal to open matters that
are arguably within the employment interest to
bilateral determination is hardly calculated to
facilitate industrial harmony. Such posture would be
especially anomalous in light of the fact that there
is, in the final analysis, no requirement that any
item actually be incorporated into a collective
bargaining agreement. Good faith negotiation does not
foreclose the employer from saying no. Negotiators
should, however, approach the table in a spirit of
meeting problems, not avoiding them. 39
Acknowledging section 3540 as a significant countervailing
consideration, then, the Board under certain circumstances is
left with the task of appropriately accounting for public
policy considerations in assessing the negotiability of items
relating to the employment and professional interests of public
school employees. Clearly, items which relate solely to policy
as compared to traditional employment concerns are rare.
38 Government Code section 3540, quoted in part, ante, at
En. 19.
39 Tepper and Mellberg, Scope of Bargaining for Teachers
in California's Public Schools, 18 Santa Clara L. Rev. 885,
892-893 (1978) .
27
But
	while
	the
	Legislature
	has
	apparently
	directed
	this
Board
	to
	adopt
	a
	less
	than 	expansive
	approach
	to
	the
	scope
issue,
	I
	am
	also
	mindful
	of
	the
	overall
	purpose
	of
	this
legislation,
	to
	promote
	the
	improvement
	of 	personnel
	management
and
	employer-employee
	relations.38	
Thus
	the
	Board 	must
	be
equally 	cautious
	not
	to
	be
	unduly
	restrictive:
The
	goal
	of 	the
	Rodda
	Act
	is
	to
	promote
	the
	improve-
ment
	of
	personnel
	management 	and
	employer/employee
relations
	within 	the
	public
	school 	systems.
	The
	means
chosen
	is
	meeting
	and
	negotiating
	by
	the
	exclusive
employee
	representative
	and
	public
	school
	employer
	in
a 	good
	faith
	effort
	to
	reach
	agreement
	on
	enumerated
matters.
	A
hard
	and
	fast 	refusal
	to
	open
	matters
	that
are
	arguably
	within 	the
	employment
	interest
	to
bilateral
	determination
	is
	hardly
	calculated 	to
facilitate
	industrial
	harmony. 	Such
	posture
	would
	be
especially
	anomalous
	in
	light
	of
	the
	fact 	that 	there
is,
	in 	the
	final 	analysis,
	no
	requirement
	that
	any
item
	actually
	be
	incorporated
	into
	a
	collective
bargaining
	agreement.
	Good
	faith
	negotiation
	does
	not
foreclose 	the
	employer
	from
	saying
	no.
	Negotiatorsshould,
	however,
	approach
	the
	table
	in
	a
	spirit
	of
meeting 	problems, 	not 	avoiding
	them.39
Acknowledging
	section
	3540
	as
	a
	significant
	coun'tervailing
consideration, 	then, 	the
	Board 	under
	certain
	circumstances
	is
left
	with 	the 	task 	of 	appropriately
	accounting 	for 	public
policy 	considerations 	in 	assessing 	the
	negotiability
	of 	items
relating
	to 	the
	employment 	and
	professional
	interests
	of
	public
school
	employees.
	Clearly,
	items
	which
	relate 	solely 	to 	policy
as
	compared
	to
	traditional
	employment
	concerns 	are
	rare.
38Government 	Code
	section
	3540, 	quoted 	in
	part, 	ante,
	at
f
n. 	19.
39Tepper 	and
	Mellberg, 	Scope
	of 	Bargaining 	for 	Teachers
in California's 	Public 	Schools,
	18 	Santa 	Clara
	L. 	Rev. 	885,
892-893 	(1978).
27

Rather, items which appear to have broader policy implications
will indirectly bear on "bread and butter" issues, if only as a
matter of budget allocation. Similarly, items which relate to
the working conditions of school employees most often also
affect educational priorities and policy. Despite this
overlap, however, the Legislature has explicitly noted those
items which are clearly subject to the negotiation
process--wages, benefits, class size, transfer policies, for
example. In these areas, the Legislature has apparently
determined that in spite of the inherent policy ramifications,
the items so directly affect the employees' working conditions
that their negotiability is not only justifiable but
warranted. 	But where the items are not enumerated, thus
requiring a Board determination of what the relationship is
between the proposed item and any unenumerated topic, I am
satisfied that such a determination may also require a
balancing of competing interests, not merely an assessment of
whether or not a logical connection exists between the
enumerated topic and the proposed topic. Under the latter
situation, the negotiability of a particular proposal would
depend on whether it relates primarily to the specifically
enumerated items found in section 3543.2 or to matters of
broader educational policy in which the public's interests is
more substantial than that of the public school employees. 	To
ignore the public's interest in this process would otherwise
render the language creating a residual, prohibitory category
28
Rather,
	items
	which
	appear
	to
	have
	broader
	policy
	implications
will 	indirectly
	bear
	on
	"bread
	and
	butter" 	issues,
	if
	only
	as
	a
matter 	of
	budget
	allocation.
	Similarly,
	items
	which
	relate
	to
the
	working
	conditions 	of
	school
	employees
	most
	often 	also
affect
	educational
	priorities
	and
	policy.
	Despite
	this
overlap,
	however,
	the
	Legislature
	has
	explicitly
	noted
	those
items
	which
	are
	clearly
	subject
	to 	the
	negotiation
process--wages,
	benefits, 	class 	size, 	transfer 	policies,
	for
example. 	In
	these
	areas,
	the
	Legislature
	has
	apparently
determined
	that
	in
	spite
	of
	the
	inherent 	policy
	ramifications,
the
	items
	so
	directly 	affect
	the
	employees'
	working
	conditions
that 	their 	negotiability 	is
	not 	only
	justifiable
	but
warranted.
	But 	where
	the
	items 	are 	not
	enumerated,
	thus
requiring
	a
	Board
	determination 	of
	what
	the
	relationship
	is
between 	the 	proposed 	item
	and 	any
	unenumerated
	topic,
	I
	am
satisfied
	that
	such
	a
	determination
	may
	also 	require
	a
balancing 	of
	competing
	interests,
	not 	merely
	an
	assessment
	of
whether 	or 	not
	a
	logical
	connection
	exists
	between
	the
enumerated
	topic
	and
	the 	proposed
	topic.
	Under
	the
	latter
situation,
	the
	negotiability
	of
	a
	particular
	proposal
	would
depend 	on
	whether
	it
	relates 	primarily 	to 	the
	specifically
enumerated 	items
	found
	in 	section
	3543.2
	or 	to 	matters 	of
broader 	educational 	policy 	in
	which
	the
	public's 	interests
	is
more
	substantial
	than
	that 	of 	the 	public 	school 	employees. 	To
ignore 	the
	public's 	interest
	in 	this 	process
	would
	otherwise
render 	the 	language 	creating
	a
	residual, 	prohibitory 	category
28

meaningless. Thus, under some circumstances, the public's
interest in the process must of necessity be accounted for.
b. Distribution of Work Days
Distribution of work days essentially poses an issue of
when certificated staff are to perform their services as
compared to the total amount of time they must provide their
services. 	It seems clear in the private sector that when an
employee is required to work is a mandatory item of
bargaining. In Amalgamated Meatcutters v. Jewel Tea Co. (1965)
381 U.S. 676, the Court stated in addressing itself to the
problem of whether a collective bargaining agreement violated
the Sherman Antitrust Act:
The particular hours of the day and the
particular days of the week during which
employees may be required to work are
subjects well within the realm of wages,
hours, and other terms and conditions of
employment about which employers and unions
must bargain. 40
Six justices in the case agreed that this obligation included
whether hours were to fall in the daytime, nighttime, or on
Sunday. The Court concluded that regulation of operating hours
is directly related to the mandatory issues of working hours
and assignment of work for union members.
40 Amalgamated Meatcutters v. Jewel Tea Co. (1965) 381
U.S. 676 at 691. See also Long Lake Lumber (1966) 160 NLRB
1475, 63 LRRM 1160.
29
meaningless.
	Thus, 	under
	some
	circumstances,
	the
	public's
interest
	in
	the 	process
	must
	of 	necessity
	be
	accounted
	for.
b.
	Distribution
	of
	Work 	Days
Distribution
	of
	work
	days
	essentially
	poses
	an
	issue 	of
when
	certificated 	staff
	are 	to
	perform
	their
	services
	as
compared
	to
	the
	total
	amount
	of
	time
	they
	must
	provide
	their
services.
	It
	seems
	clear
	in
	the
	private
	sector
	that
	when
	an
employee
	is
	required 	to
	work
	is
	a
	mandatory
	item
	of
bargaining.
	In
	Amalgamated
	Meatcutters 	v.
	Jewel
	Tea 	Co.
	(1965)
381
	U.S. 	676,
	the
	Court
	stated
	in
	addressing
	itself
	to
	the
problem
	of
	whether
	a
	collective
	bargaining
	agreement
	violated
the
	Sherman
	Antitrust
	Act:
The
	particular
	hours
	of 	the
	day 	and
	the
particular
	days
	of
	the
	week
	during
	which
employees
	may 	be
	required 	to
	work
	are
subjects
	well 	within 	the
	realm
	of
	wages,
hours,
	and
	other
	terms
	and
	conditions 	of
employment
	about
	which
	employers
	and
	unionsmust
	bargain.40
Six
	justices
	in 	the 	case 	agreed
	that 	this
	obligation
	included
whether 	hours
	were
	to
	fall
	in
	the 	daytime,
	nighttime, 	or
	on
Sunday.
	The
	Court 	concluded
	that 	regulation 	of 	operating 	hours
is 	directly 	related
	to 	the
	mandatory
	issues 	of
	working
	hours
and
	assignment 	of
	work
	for
	union
	members.
40Amalgamated
	Meatcutters 	v. 	Jewel
	Tea 	Co. 	(1965) 	381
U.S. 	676
	at
	691. 	See
	also
	Long 	Lake 	Lumber 	(1966) 	160
	NLRB
1475, 	63
	LRRM
	1160.
29

In other jurisdictions, however, the response to the
particular issue of distribution of work time in the context of
the school calendar has been fairly evenly divided. 41
In California, the courts have concluded that the schedule
of working hours for local governmental employees is
negotiable. Fire Fighters Union v. City of Vallejo (1974) 12
Cal. 3d 608, 617; Huntington Beach Police Officer's Assn. v.
City of Huntington Beach (1976) 58 Cal. App. 3d 492, 503-504. 	In
particular, in Fire Fighters Union v. City of Vallejo, the
Court emphasized the relevance of the term "hours" in the
phrase "wages, hours and working conditions" to the particular
issue of work schedule.
In view of the foregoing, it is clear that as a logical
exercise one may extend the distribution of work hours in a day
or work days in a week to the distribution of work days in a
school year. All three distributions essentially involve that
measurement of time and activity here relevant, hours of
employment. Consequently, there is a nexus between the dates
for the beginning and ending of certificated service,
41see Edmonds Education Association v. Edmonds School
District (Wash. 1977) PERC Case No. 194-U-76-13, I CCH Public
Employee Bargaining Reporter 4606 (CCH PEBR) , wherein the
Washington Public Employment Relations Commission decided that
school calendar constitutes hours of employment; City of Beloit
v. WERC (1976) 242 N.W. 2d 231, [92 LRRM 3318] and Board Of
Education v. WERC (1971) 191 N. W. 2d 242 [78 LRRM 3040 wherein
the Winconsin Supreme Court ruled that all aspects of the
school calendar are negotiable; Northern Community Schools of
Tipton County (Ind. 1975) PERB Case No. U-75-26-7935, 1 CCH
PEBR 4258 in which the Indiana PERB resolved that "hours'
means, among other things 	the periods of time that work
will be performed, including starting time, ending time, and
30
In
	other
	jurisdictions,
	however,
	the 	response
	to
	the
particular
	issue
	of
	distribution
	of
	work
	time
	in
	the
	context
	of
the 	school
	calendar
	has
	been
	fairly
	evenly
	divided.41
In
	California,
	the
	courts
	have
	concluded
	that
	the 	schedule
of
	working
	hours
	for
	local
	governmental
	employees
	is
negotiable. 	Fire 	Fighters
	Union
	v.
	City 	of 	Vallejo
	(1974)
	12
Cal.3d
	608, 	617;
	Huntington
	Beach
	Police
	Officer's
	Assn.
	v.
City
	of
	Huntington
	Beach 	(1976) 	58
	Cal.App.3d
	492,
	503-504.
	In
particular,
	in
	Fire 	Fighters
	Union
	v.
	City 	of
	Vallejo,
	the
Court
	emphasized
	the
	relevance 	of
	the
	term
	"hours"
	in 	the
phrase
	"wages,
	hours
	and
	working
	conditions"
	to
	the
	particular
issue 	of
	work
	schedule.
In
	view
	of
	the 	foregoing,
	it
	is
	clear 	that
	as
	a
	logical
exercise
	one 	may
	extend 	the
	distribution
	of
	work
	hours
	in
	a
	day
or
	work
	days
	in
	a 	week
	to
	the
	distribution
	of
	work
	days
	in
	a
school 	year. 	All 	three
	distributions 	essentially
	involve
	that
measurement
	of
	time
	and
	activity
	here
	relevant,
	hours
	of
employment.
	Consequently,
	there
	is
	a
	nexus 	between
	the
	dates
for 	the 	beginning
	and
	ending
	of
	certificated 	service,
4lsee
	Edmonds
	Education Association
	v.
	Edmonds
	School
District
	(Wash. 	1977)
	PERC
	Case 	No.
	194-U-76-13,
	1
	CCH
	Public
Employee
	Bargaining 	Reporter
	4606
	(CCH
	PEBR),
	wherein 	theWashington
	Public
	Employment
	Relations
	Commission
	decided
	that
school 	calendar 	constitutes
	hours 	of
	employment;
	City 	of
	Beloit
v.
	WERC
	(1976) 	242 	N.W. 	2d 	231, 	[92
	LRRM
	3318] 	and 	Board
	ofEducafion 	v.
	WERC
	(1971) 	191 	N.W. 	2d 	242 	[78
	LRRM
	3040
	wherein
the 	Winconsin 	Supreme
	Court 	ruled 	that 	all
	aspects 	of 	the
school 	calendar 	are 	negotiable; 	Northern
	Community
	Schools
	ofTipton 	County 	(Ind.
	1975) 	PERB
	Case 	No. 	U-75-26-7935, 	1
	CCH
PEBR 	4258 	in 	which 	the 	Indiana
	PERB
	resolved 	that 	"hours'means, 	among
	other 	things
	..•
	the 	periods 	of 	time
	that
	work
will
	be 	performed, 	including 	starting 	time, 	ending 	time, 	and
30

vacations, and holidays, and the hours in which certificated
personnel are expected to provide services--hours of employment.
But while a relationship can be demonstrated between the
distribution of certificated workdays and hours of employment
as provided in section 3543.2, it is equally apparent that such
an issue can have a more direct impact on third parties as
compared, perhaps, to an issue strictly of wages or fringe
benefits. 	Consequently, in ascertaining the negotiability of
distribution of work days, it is necessary, in my view to
examine the effect of such an issue on the students. In this
case, the effect is minor, if there is any at all. It is clear
that the parties here are not attempting to negotiate student
attendance dates but only certificated work days.
the time out from work when the school employee is completely
free from assignment, " and compare to Bettendorf-Dubuque (Iowa
1976) PERB Case Nos. 598 and 602, 1 CCH PEBR 4270 wherein it
was held the management retains the right to fix the length and
division of the school calendar; In re Department of Education
(Hawaii 1973) PERB Case No. DR-05-5, 1 CCH PEBR 4228 in which
the scheduling of work was viewed as a matter of inherent
managements rights; and City of Biddeford v. Biddeford Teachers
Assn. (Me. 1973) 304 A. 2d 387, [1 CCH PEBR 10 , 056] wherein the
Supreme Judicial Court of Maine held, among other things, that
the scheduling and length of school vacations and the beginning
and ending of the school year are educational policy decisions
which are not subject to the duty to bargain.
31
vacations,
	and
	holidays,
	and
	the
	hours
	in
	which
	certificated
personnel 	are
	expected
	to
	provide
	services--hours 	of
	employment.
But
	while
	a
	relationship
	can
	be
	demonstrated
	between
	the
distribution
	of
	certificated
	workdays
	and
	hours
	of
	employment
as 	provided
	in
	section
	3543.2,
	it
	is
	equally
	apparent
	that
	such
an
	issue
	can
	have
	a 	more
	direct
	impact
	on
	third 	parties
	as
compared,
	perhaps, 	to
	an
	issue
	strictly
	of
	wages
	or
	fringe
benefits.
	Consequently,
	in
	ascertaining
	the
	negotiability 	of
distribution
	of
	work
	days,
	it
	is
	necessary, 	in
	my
	view
	to
examine
	the
	effect
	of
	such
	an
	issue
	on
	the
	students.
	In
	this
case,
	the
	effect 	is
	minor,
	if
	there
	is
	any
	at
	all. 	It
	is 	clear
that
	the
	parties
	here
	are
	not 	attempting
	to 	negotiate 	student
attendance 	dates
	but 	only
	certificated
	work
	days.
Now,
	ideally,
	the 	dates 	of
	both 	should
	coincide.
	However,
in
	reality,
	even
	now,
	the 	beginning
	of 	teacher
	service
	does
	not
precisely
	coincide
	with 	the 	date
	scheduled 	for
	instruction
given 	the
	fact 	that
	the
	initial
	days
	of
	certificated
	service
are 	spent 	in
	orientation
	or
	pre-service
	activities.
	Moreover,
it
	would 	be
	presumptuous
	to
	assume
	that
	the 	professionalism 	of
Moreover,
Now, ideally, the dates of both should coincide. However,
in reality, even now, the beginning of teacher service does not
precisely coincide with the date scheduled for instruction
given the fact that the initial days of certificated service
are spent in orientation or pre-service activities.
it would be presumptuous to assume that the professionalism of
the
	time
	out
	from 	work 	when
	the 	school
	employee
	is
	completely
free
	from
	assignment,"
	and 	compare
	to
	Bettendorf-Dubuque 	(Iowa1976)
	PERB
	Case 	Nos. 	598 	and 	602,
	1
	CCH
	PEBR
	4270
	wherein
	it
was
	held
	tht
	management
	retains
	the
	right 	to 	fix 	the 	length
	and
division 	of 	the 	school 	calendar; 	In 	re
	Department
	of 	Education
(Hawaii 	1973)
	PERB
	Case 	No. 	DR-05-5, 	1
	CCH
	PEBR
	4228 	1n
	which
the 	scheduling 	of
	work 	was 	viewed
	as
	a
	matter 	of 	inherent
managements
	rights;
	and
	City 	of 	Biddeford 	v. 	Biddeford 	TeachersAssn. 	(Me. 	1973) 	304 	A.2d 	387, 	[1
	CCH
	PEBR
	10,056] 	wherein
	the
Supreme
	Judicial
	Court 	of
	Maine
	held,
	among
	other 	things,
	that
the 	scheduling
	and
	length 	of 	school 	vacations
	and
	the 	beginningand 	ending 	of 	the 	school 	year 	are 	educational 	policy 	decisionswhich 	are 	not 	subject 	to 	the 	duty 	to 	bargain.
31

both sides at the negotiating table will not prevail in the
interest of the students. It seems possible that some
accommodation can be made to insure the maintenance of the
student school year by innovative planning, and at the same
time extend to certificated employees the opportunity to
promote a fundamental employment interest, their hours of
employment.
However, the Palos Verdes District points to the potential
delay in starting school if the parties are unable to reach an
agreement on the calendaring issue, which would have a direct
impact on students. But this argument overlooks the
possibility that under certain circumstances the school board
might act out of legal or operational necessity and take such
unilateral action as is necessary to assure the maintenance of
the school program. As the District itself argues, relying on
NLRB v. Katz (1962) 369 U.S. 736, under certain circumstances
unilateral action might be justified. For example, California
Constitution, article IX, section 5 provides that a system of
common schools shall be maintained in each district at least
six months a year; Education Code section 37211 is a
codification of that provision. 	Also, Education Code section
41420 requires districts to provide a minimum of 175 days per
school year in order to receive state school funding for the
next fiscal year. Thus, in the public interest, if the facts
justify it, the District may consider taking appropriate action
necessary to comply with the law or or avoid jeopardizing the
receipt of average daily attendance funding and adopt whatever
32
both
	sides
	at
	the
	negotiating 	table
	will
	not
	prevail
	in 	the
interest
	of 	the
	students.
	It
	seems
	possible
	that
	some
accommodation
	can
	be
	made
	to
	insure 	the
	maintenance
	of 	the
student
	school 	year
	by
	innovative 	planning,
	and
	at
	the
	same
time
	extend
	to
	certificated
	employees
	the
	opportunity 	to
promote
	a
	fundamental
	employment
	interest,
	their
	hours
	of
employment.
However,
	the 	Palos
	Verdes
	District
	points 	to
	the
	potential
delay
	in
	starting
	school
	if
	the
	parties
	are
	unable
	to 	reach 	an
agreement
	on
	the 	calendaring
	issue,
	which
	would
	have
	a
	direct
impact
	on
	students.
	But
	this
	argument
	overlooks 	the
possibility
	that
	under
	certain
	circumstances 	the 	school 	board
might
	act
	out 	of
	legal
	or
	operational 	necessity
	and
	take 	such
unilateral
	action
	as
	is
	necessary
	to 	assure 	the
	maintenance
	of
the 	school
	program.
	As
	the
	District
	itself
	argues,
	relying
	on
NLRB
	v.
	Katz 	(1962) 	369
	U.S. 	736, 	under
	certain
	circumstances
unilateral
	action
	might
	be
	justified.
	For 	example,
	California
Constitution,
	article
	IX,
	section
	5
	provides
	that
	a
	system
	of
common
	schools
	shall
	be
	maintained
	in
	each
	district
	at 	least
six
	months 	a
	year;
	Education
	Code
	section
	37211
	is
	a
codification 	of 	that 	provision.
	Also, 	Education
	Code
	section
41420
	requires
	districts
	to 	provide
	a 	minimum
	of
	175
	days
	per
school 	year 	in 	order 	to 	receive
	state
	school 	funding 	for 	the
next
	fiscal 	year.
	Thus, 	in 	the 	public
	interest, 	if
	the
	facts
justify 	it,
	the
	District
	may
	consider 	taking 	appropriate 	action
necessary 	to
	comply 	with 	the 	law 	or 	or 	avoid 	jeopardizing 	the
receipt 	of 	average 	daily 	attendance 	funding 	and 	adopt 	whatever
32

calendar item is necessary to insure that the school program is
not delayed.
The District also considers the potential disruption caused
to the community at large in planning family or civic
organizational activities if the school calendar in the
particulars at issue here are subject to negotiations. The
thrust of the District's evidence on this point, however,
suggests that the community wished to be informed of the school
calendar in order to coordinate non-school activities rather
than to be involved in its formulation. In other words, the
little evidence offered by the Palos Verdes District regarding
the impact of the work day distribution issue on the public
really casts the community's interest in this issue as being
reactive rather than proactive. The District fails to make a
persuasive argument that the public's interest in this regard
is substantial; rather, the public's interest at large would
appear to be only one of convenience in contrast to that of the
employees, which is one of necessity.
Finally, the Palos Verdes District argues that requiring it
to negotiate the school calendar with certificated employees
raises potential problems of coordination, and possibly an
unfair pactice charge, vis-a-vis classified employees. 	The
District speculates that any agreement with the certificated
negotiating unit bears the risk of affecting the "hours of
employment" for classified employees. First of all the record
does not indicate whether the classified employees in the
Palos Verdes District are represented by an exclusive
33
calendar
	item
	is
	necessary
	to
	insure
	that
	the 	school
	program
	is
not
	delayed.
The
	District
	also
	considers
	the
	potential
	disruption
	caused
to
	the
	community
	at
	large 	in
	planning 	family 	or
	civic
organizational
	activities
	if
	the 	school
	calendar 	in 	the
particulars 	at
	issue
	here
	are
	subject
	to
	negotiations.
	The
thrust
	of 	the
	District's
	evidence
	on
	this
	point,
	however,
suggests
	that
	the
	community
	wished
	to
	be
	informed
	of 	the
	school
calendar 	in 	order 	to 	coordinate
	non-school
	activities
	rather
than
	to
	be
	involved
	in
	its
	formulation.
	In
	other
	words,
	the
little
	evidence
	offered
	by
	the 	Palos
	Verdes
	District
	regarding
the
	impact
	of
	the
	work
	day
	distribution
	issue
	on
	the
	public
really 	casts
	the
	community's
	interest
	in
	this
	issue
	as 	being
reactive 	rather
	than
	proactive.
	The
	District 	fails
	to
	make 	a
persuasive
	argument
	that
	the
	public's 	interest
	in
	this
	regard
is 	substaritial; 	rather,
	the
	public's 	interest 	at
	large
	would
appear
	to
	be
	only
	one
	of
	convenience 	in
	contrast 	to 	that 	of
	the
employees,
	which
	is
	one
	of
	necessity.
Finally,
	the 	Palos
	Verdes
	District
	argues
	that 	requiring
	it
to 	negotiate
	the 	school 	calendar
	with
	certificated
	employees
raises 	potential
	problems
	of 	coordination,
	and
	possibly
	an
unfair 	pactice 	charge,
	vis-a-vis 	classified
	employees.
	The
District
	speculates 	that
	any 	agreement 	with 	the
	certificated
negotiating 	unit 	bears 	the
	risk 	of 	affecting 	the 	"hours 	of
employment"
	for
	classified
	employees.
	First
	of
	all
	the 	record
does 	not 	indicate
	whether 	the 	classified
	employees 	in 	the
Palos 	Verdes
	District 	are 	represented
	by 	an 	exclusive
33

representative. Thus, a change in the employment conditions of
the classified employees in this district may not be the
subject of an unfair practice charge. San Diegueto Union High
School District (9/2/77) EERB Decision No. 22 at 11. Secondly,
the concern raised by the Palos Verdes District is a matter
inherent in the collective negotiations process whenever an
employer must deal with more than one negotiating unit. At the
very least, under EERA, if certificated and classified
employees have acquired exclusive representative status, the
public school employer will be dealing with more than one
negotiating unit since section 3545 (b) (3) provides specifically
that "[classified employees and certificated employees shall
not be included in the same negotiating unit." Thus the
Legislature, itself, for whatever reason, has mandated a
structure which may require the public school employer to
recognize and coordinate the functions of its various employees
to some extent on this issue, as well as others.
Accordingly, while the issue of work distribution may have
some effect on the educational program, such effect is not so
substantial as to outweigh the interest of the certificated
staff in this regard. Therefore, the dates of the beginning
and ending of certificated service, vacations, and holidays are
primarily related to hours of employment as found in section
3543.2, and are consequently negotiable items. 	This
determination applies not only to the Palos Verdes case but to
the Pleasant Valley situation to the extent that the issue is
raised in the latter case, since the arguments of the Palos
34
representative.
	Thus,
	a
	change
	in 	the
	employment
	conditions
	of
the
	classified
	employees
	in
	this
	district
	may
	not
	be
	the
subject
	of
	an
	unfair
	practice
	charge.
	San
	Dieguito
	Union
	High
School
	District
	(9/2/77)
	EERB
	Decision
	No. 	22
	at
	11.
	Secondly,
the
	concern
	raised
	by
	the 	Palos
	Verdes
	District 	is
	a
	matter
inherent 	in
	the
	collective
	negotiations
	process
	whenever
	an
employer
	must
	deal
	with
	more
	than
	one
	negotiating
	unit.
	At
	the
very
	least,
	under
	EERA,
	if
	certificated
	and
	classified
employees
	have
	acquired
	exclusive
	representative
	status,
	the
public
	school
	employer
	will
	be
	dealing
	with
	more
	than
	one
negotiating 	unit 	since 	section
	3545(b)
(3)
	provides
	specifically
that
	"[c)lassified
	employees
	and
	certificated
	employees
	shall
not
	be
	included
	in 	the
	same
	negotiating
	unit."
	Thus
	the
Legislature,
	itself,
	for
	whatever
	reason,
	has 	mandated
	a
structure
	which
	may
	require 	the 	public
	school
	employer
	to
recognize
	and
	coordinate 	the 	functions 	of
	its
	various
	employees
to
	some
	extent
	on
	this 	issue,
	as 	well 	as
	others.
Accordingly, 	while 	the 	issue 	of
	work
	distribution
	may
	have
some
	effect
	on
	the 	educational
	program, 	such
	effect 	is
	not
	so
substantial
	as 	to
	outweigh
	the
	interest
	of 	the
	certificated
staff
	in
	this
	regard. 	Therefore, 	the 	dates 	of 	the 	beginning
and
	ending 	of
	certificated 	service, 	vacations,
	and
	holidays 	are
primarily 	related 	to 	hours
	of
	employment
	as
	found
	in 	section
3543.2,
	and
	are 	consequently 	negotiable 	items. 	This
determination 	applies 	not 	only 	to 	the 	Palos 	Verdes 	case 	but 	to
the 	Pleasant 	Valley 	situation 	to 	the 	extent 	that 	the 	issue
	is
raised 	in 	the 	latter 	case, 	since 	the 	arguments 	of 	the 	Palos
34

Verdes District as described above are essentially those
offered by the Pleasant Valley District in asserting that the
beginning and ending dates of certificated service are
non-negotiable.
c. 	Extra Hour Assignments
Only Palos Verdes raises the issue of whether or not the
calendar items of Back to School Night and Open House are
negotiable within the meaning of section 3543.2. These events
require of the school staff additional hours of service. 	The
service is not rendered to the students but rather is intended
to keep the parents informed as to the progress of their
students. It therefore has no impact on the students'
educational day but rather solely on the certificated employee
workday as it imposes on employees additional worktime.
Consistent with the foregoing discussion, such items are
appropriate subjects of negotiation not only in terms of when,
but also in terms of how many and how long each assignment is
to last.
Operational Necessity
In both cases, the school districts maintained before the
hearing officer that even if the items respecting the school
calendar do fall within the scope of representation as provided
for by section 3543.2, the adoption of the school calendar in
each district is nevertheless excused by way of operational
necessity. 	In analyzing that argument as it applies to Palos
Verdes, the hearing officer's decision on this issue stands
despite the earlier finding that the distribution of work days
35
Verdes
	District
	as
	described
	above
	are
	essentially
	those
offered
	by
	the
	Pleasant
	Valley
	District
	in
	asserting 	that 	the
beginning
	and
	ending
	dates 	of
	certificated
	service
	are
non-negotiable.
c.
	Extra
	Hour
	Assignments
Only
	Palos
	Verdes
	raises
	the
	issue 	of
	whether
	or
	not
	the
calendar
	items
	of
	Back
	to
	School 	Night
	and
	Open 	House
	are
negotiable 	within
	the
	meaning
	of
	section
	3543.2.
	These
	events
require
	of 	the 	school
	staff
	additional
	hours
	of
	service.
	The
service
	is
	not 	rendered
	to
	the
	students 	but
	rather
	is
	intended
to
	keep
	the
	parents
	informed 	as
	to
	the 	progress 	of
	their
students.
	It
	therefore
	has
	no
	impact
	on
	the
	students'
educational
	day
	but
	rather 	solely
	on
	the
	certificated
	employee
workday
	as
	it
	imposes 	on 	employees
	additional
	worktime.
Consistent
	with 	the 	foregoing
	discussion,
	such 	items
	are
appropriate 	subjects 	of 	negotiation
	not 	only
	in
	terms
	of
	when,
but
	also
	in
	terms
	of
	how
	many 	and 	how
	long 	each 	assignment
	is
to
	last.
Operational 	Necessity
In 	both
	cases, 	the 	school
	districts
	maintained 	before
	the
hearing
	officer 	that
	even
	if
	the 	items
	respecting 	the 	school
calendar
	do
	fall
	within 	the 	scope
	of 	representation
	as 	provided
for
	by
	section
	3543.2, 	the 	adoption 	of 	the 	school 	calendar
	in
each
	district 	is 	nevertheless
	excused 	by 	way
	of 	operational
necessity.
	In 	analyzing 	that
	argument 	as
	it
	applies 	to 	Palos
Verdes, 	the 	hearing
	officer's 	decision
	on
	this 	issue 	stands
despite 	the 	earlier 	finding 	that 	the 	distribution 	of
	work
	days
35

and its various components as well as extra duty assignments
are within scope. The party against whom the hearing officer's
finding stands, PVFA, has raised no argument on appeal
questioning such a finding. Accordingly, that factual issue is
not before the Board on appeal. 42 In Pleasant Valley,
however, one is constrained to find that the argument of
operational necessity is of no avail. The appellant-district
in this case raised exceptions to the hearing officer's finding
only as to the scope issue. Section 35031 (c) of the Board's
former rules, in effect at the time this case was appealed,
like section 32300 (c) of the Board's present rules, stated
that, "an exception not specifically urged shall be
waived. "43 Consequently, given the District's failure to
raise the issue of operational necessity on appeal, the
hearing
42The defense of operational necessity urged by the
District in Palos Verdes is raised only in the context of the
school board having adopted a school calendar on
August 29, 1977. However, the issue initially stipulated to by
the parties at the time of the hearing also raised a question
as to the adoption of a school calendar on May 2, 1977. 	The
hearing officer's decison, after finding that the specfic
calendar items at issue here were negotiable, and after finding
that the May 2 calendar was both a "student" and a "teacher"
calendar, failed to make any separate finding that the District
had violated section 3543.5 (c) by its having adopted a calendar
on May 2. The Board is not in a position to render a holding
in this respect as no such issue is before it today;
accordingly, I merely point out the likelihood of the
District's having committed an unfair practice by adopting a
calendar on May 2, 1977 in view of the ultimate findings on
scope upon which both the Chairperson and I agree.
43See former California Administrative Code, title 8,
section 35031 (c) , repealed effective March 3, 1978, and
California Administrative Code, title 8, section 32300(c) .
36
and
	its
	various
	components
	as
	well
	as
	extra
	duty
	assignments
are 	within
	scope.
	The
	party 	against
	whom
	the 	hearing
	officer's
finding
	stands,
	PVFA,
	has
	raised
	no
	argument
	on
	appeal
questioning
	such
	a
	finding.
	Accordingly,
	that 	factual 	issue
	is
not 	before 	the
	Board
	on
	appeal.42 	In
	Pleasant 	Valley,
however,
	one
	is
	constrained 	to
	find
	that
	the
	argument
	of
operational 	necessity
	is
	of
	no
	avail.
	The
	appellant-district
in
	this
	case
	raised
	exceptions 	to
	the 	hearing
	officer's
	finding
only 	as
	to
	the
	scope
	issue.
	Section
	3503l(c)
	of
	the
	Board's
former
	rules,
	in
	effect
	at
	the
	time
	this
	case
	was
	appealed,
like
	section
	32300(c)
	of
	the 	Board's
	present
	rules, 	stated
that,
	"an
	exception 	not
	specifically
	urged
	shall
	be
waived."43 	Consequently, 	given 	the
	District's
	failure
	to
raise
	the 	issue 	of 	operational 	necessity
	on
	appeal, 	the
hearing
42The
	defense 	of 	operational 	necessity
	urged
	by
	the
District
	in 	Palos
	Verdes
	is
	raised
	only 	in 	the 	context 	of
	the
school
	board 	having 	adopted
	a
	school 	calendar
	on
August 	29, 	1977.
	However,
	the 	issue
	initially
	stipulated 	to
	by
the
	parties 	at
	the
	time
	of 	the 	hearing
	also 	raised
	a
	question
as 	to 	the 	adoption 	of
	a
	school 	calendar
	on
	May
	2, 	1977.
	The
hearing
	officer's
	decison,
	after
	finding
	that
	the 	specficcalendar
	items
	at
	issue 	here
	were
	negotiable,
	and
	after 	finding
that
	the
	May
	2
	calendar
	was
	both
	a
	"student"
	and 	a
	"teacher"
calendar, 	failed 	to
	make 	any
	separate 	finding
	that
	the
	District
had
	violated 	section
	3543.S(c)
	by
	its
	having 	adopted
	a
	calendar
on
	May
	2.
	The 	Board
	is
	not 	in
	a
	position 	to 	render
	a
	holding
in
	this
	respect 	as
	no 	such
	issue
	is
	before
	it
	today;
accordingly,
	I
	merely 	point 	out 	the 	likelihood 	of 	the
District's
	having 	committed 	an
	unfair 	practice
	by
	adopting
	a
calendar
	on May
	2, 	1977
	in
	view
	of 	the 	ultimate 	findings 	on
scope 	upon 	which 	both 	the 	Chairperson
	and 	I
	agree.
43see 	former
	California Administrative
	Code,
	title
	8,
section 	3503l(c), 	repealed 	effective
	March 	3, 	1978, 	and
California Administrative 	Code,
	title
	8, 	section 	32300(c).
36

officer's resolution of this issue stands with neither approval
nor disapproval by the Board itself.
Thus, regarding both cases before the Board today the
findings are limited only to the scope issue itself and not to
an analysis or determination of the affirmative defense of
operational necessity. As to the determinations of the hearing
officers in both cases below, their findings that the
particular calendar items do fall within the purview of section
3543. 2 are sustained. However, in Palos Verdes, the hearing
officer's dismissal of the unfair practice is sustained for
reasons stated above while in Pleasant Valley, the hearing
officer's decision finding the Pleasant Valley District to have
committed an unfair practice stands, for reasons stated above.
ORDER
Upon the foregoing facts, conclusions of law, and records
in these cases, the Public Employment Relations Board orders
that :
(1) In Palos Verdes Peninsula Unified School District,
LA-CE-122, the hearing officer's dismissal of the unfair
practice charge filed by the Palos Verdes Faculty Association
against the Palos Verdes Penisula Unified School District be
sustained,
In Pleasant Valley School District, LA-CE-160, the
Pleasant Valley School District cease and desist from
(a) 	unilaterally taking action on matters within
the scope of representation without meeting and
negotiating upon request with the Pleasant Valley
School District Education Association;
(b) failing or refusing to meet and negotiate in
good faith with the Pleasant Valley School
District Association upon request with regard to
the starting and ending dates of teacher service.
37
officer's
	resolution
	of
	this
	issue 	stands
	with
	neither
	approval
nor
	disapproval
	by
	the
	Board
	itself.
Thus,
	regarding
	both
	cases 	before 	the
	Board
	today
	the
findings
	are
	limited
	only
	to
	the
	scope
	issue
	itself
	and
	not
	to
an
	analysis
	or 	determination 	of 	the
	affirmative
	defense
	of
operational 	necessity.
	As
	to 	the
	determinations 	of 	the
	hearing
officers
	in
	both
	cases
	below,
	their
	findings
	that
	the
particular
	calendar
	items
	do
	fall
	within 	the
	purview
	of
	section
3543.2
	are
	sustained.
	However,
	in 	Palos
	Verdes,
	the 	hearing
officer's
	dismissal
	of 	the
	unfair
	practice 	is
	sustained 	for
reasons
	stated
	above
	while
	in 	Pleasant
	Valley, 	the 	hearing
officer's
	decision 	finding 	the
	Pleasant
	Valley
	District
	to
	have
committed
	an
	unfair
	practice 	stands,
	for 	reasons
	stated
	above.
ORDER
Upon
	the 	foregoing
	facts,
	conclusions 	of
	law,
	and
	records
in 	these 	cases,
	the 	Public
	Employment
	Relations
	Board
	orders
that:
(1)
	In 	Palos
	Verdes
	Peninsula 	Unified
	School
	District,
LA-CE-122,
	the 	hearing
	officer's
	d1sm1ssal
	of 	the
	unfair
practice
	charge
	filed
	by
	the 	Palos
	Verdes
	Faculty Association
against
	the 	Palos
	Verdes
	Penisula 	Unified
	School
	District
	be
sustained,
(2)
	In 	Pleasant 	Valley 	School
	District,
	LA-CE-160,
	the
Pleasant Valley 	School
	District
	cease
	and
	desist
	from
(a)
	unilaterally
	taking 	action
	on
	matters 	within
the 	scope
	of 	representation 	without 	meeting
	and
negotiating
	upon
	request 	with 	the 	Pleasant 	ValleySchool
	District
	Education 	Association;
(b)
	failing
	or 	refusing 	to
	meet 	and
	negotiate 	in
good
	faith
	with 	the 	Pleasant 	Valley 	School
District 	Association
	upon
	request 	with 	regard 	to
the 	starting
	and 	ending 	dates 	of 	teacher 	service.
37

and take the following affirmative actions designed to
effectuate the policies of the act by
(a) preparing and posting copies of the appended notice at
all of its schools and work sites for twenty (20) calendar
days in conspicuous places, including all locations where
notices to certificated employees are customarily posted
and,
(b) notifying the Los Angeles Regional Director of the
Public Employment Relations Board at the end of the posting
period of the action it has taken to comply with this Order.
Concurring opinion of Chairperson Harry Gluck begins on page 40.
38
and 	take 	the 	following 	affirmative 	actions 	designed 	to
effectuate 	the 	policies 	of 	the 	act 	by
(a) 	preparing 	and 	posting 	copies 	of 	the 	appended 	notice 	at
all 	of 	its 	schools 	and 	work 	sites 	for 	twenty 	(20) 	calendar
days 	in 	conspicuous 	places, 	including 	all 	locations 	where
notices 	to 	certificated 	employees 	are 	customarily 	posted
and,
(b) 	notifying 	the 	Los 	Angeles 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	at 	the 	end 	of 	the 	posting
period 	of 	the 	action 	it 	has 	taken 	to 	comply 	with 	this 	Order.
Byy Raymond J. Gonzales , Member
Concurring 	opinion 	of 	Chairperson 	Harry 	Gluck 	begins 	on 	page 	40.
38

Appendix: Notice. NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in which all parties had the right to
participate, it has been found that the Pleasant Valley
School District violated the Educational Employment Relations
Act by taking unilateral action regarding proposed school
calendar items without providing the exclusive representative,
Pleasant Valley School District Education Association, with
notice and opportunity to negotiate. As a result of this
conduct, we have been ordered to post this notice. We will
abide by the following:
CEASE AND DESIST FROM:
1. Unilaterally taking action on matters within the
scope of repesentation without meeting and negotiating upon
request with the Pleasant Valley School District Education
Association;
2. Failing or refusing to meet and negotiate in good
faith with the Pleasant Valley School District Association
upon request with regard to the starting and ending dates
of teacher service.
By :
-s-u_p_e_r~i-n~t_e_n_d_e_n_t
Dated :
This is an official notice. It must remain posted for 20
consecutive days from the date of posting and must not be
defaced, altered or covered by any material.
39
Appendix:
	Notice.
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of
	California
After
	a
	hearing 	in
	which
	all
	parties
	had
	the
	right
	to
participate,
	it
	has 	been 	found
	that
	the
	Pleasant
	Valley
School
	District
	violated
	the 	Educational
	Employment
	Relations
Act
	by
	taking
	unilateral
	action
	regarding
	proposed
	school
calendar
	items 	without 	providing 	the
	exclusive
	representative,
Pleasant
	Valley
	School
	District
	Education
	Association,
	with
notice
	and
	opportunity 	to 	negotiate.
	As
	a
	result
	of
	this
conduct,
	we
	have
	been
	ordered 	to 	post
	this
	notice.
	We
	will
abide
	by
	the 	following:
CEASE
	AND
	DESIST
	FROM:
1.
	Unilaterally
	taking 	action
	on
	matters 	within
	the
scope
	of 	repesentation
	without
	meeting
	and
	negotiating
	upon
request
	with 	the
	Pleasant
	Valley
	School
	District
	Education
Association;
2.
	Failing
	or
	refusing 	to
	meet 	and
	negotiate 	in
	good
faith
	with 	the 	Pleasant
	Valley
	School
	District
	Association
upon
	request
	with
	regard
	to
	the
	starting
	and
	ending
	dates
of 	teacher
	service.
By:
Superintendent
_______
Dated:
This
	is
	an
	official
	notice.
	It
	must 	remain
	posted 	for
	20
consecutive
	days
	from
	the 	date 	of 	posting
	and 	must
	not
	be
defaced,
	altered
	or 	covered
	by 	any
	material.
39
_

Harry Gluck, Chairperson, concurring:
In determining whether the disputed matters are mandatory
subjects of negotiation, two basic approaches are suggested:
1) Is the subject explicitly listed in section 3542.3 as a
required subject of negotiations? 2) If the subject is arguably
included among the specified subjects, what test is to be applied
to determine the legislative intent?
The latter question has been addressed in Fibreboard Paper
Products v. NLRB (1964) 379 U. S. 203 [57 LRRM 2609], where two
tests were established: 1) Is the subject of such vital concern
to both management and employees that controversy and conflict are
likely to occur? 2) Is collective bargaining the appropriate means
of resolving that conflict? A factor in answering the latter
question is whether the employer's obligation to negotiate would
"significantly abridge his freedom to manage his business."
Id., 379 U.S. at 213.
The essence of the Districts' argument in the cases before us
relates to the latter admonition. Their position is that the
interests of the public and the students in combination with
fundamental educational objectives, require that the school calendar
be left to their sole discretion.
-40-
Harry
	Gluck,
	Chairperson, 	concurring:
In
	determining 	whether
	the 	disputed matters 	are
	mandatory
subjects
	of
	negotiation,
	two
	basic
	approaches
	are
	suggested:
1)
	Is
	the
	subject
	explicitly
	listed
	in 	section
	3542.3
	as
	a
required 	subject 	of 	negotiations?
	2)
	If
	the
	subject
	is
	arguably
included
	among
	the
	specified 	subjects,
	what
	test
	is
	to
	be
	applied
to 	determine
	the
	legislative
	intent?
The
	latter
	question
	has 	been
	addressed
	in
	Fibreboard 	Paper
Products
	v.
	NLRB
	(1964)
	379
	U.S.
	203 	[57
	LRRM
	2609],
	where
	two
tests
	were
	established:
	1)
	Is
	the
	subject 	of
	such
	vital
	concern
to 	both
management
	and 	employees
	that
	controversy
	and
	conflict
	are
likely
	to 	occur?
	2)
	Is 	collective
	bargaining 	the
	appropriate
	means
of 	resolving
	that 	conflict?
	A
factor 	in
	answering
	the
	latter
question
	is
	whether
	the 	employer's
	obligation
	to
	negotiate
	would
"significantly
	abridge
	his
	freedom
	to
	manage
	his 	business. II
Id.,
	379
	U.S.
	at
	213.
The
	essence
	of 	the
	Districts'
	argument
	in
	the 	cases
	before
	us
relates
	to 	the
	latter
	admonition. 	Their
	position
	is 	that 	the
interests
	of 	the 	public
	and
	the 	students 	in
	combination
with
fundamental
	educational 	objectives, 	require 	that
	the 	school 	calendar
be
	left
	to
	their 	sole 	discretion.
-40-

1 . 	The statutory language
Section 3543.2 of the Educational Employment Relations Act
establishes "hours of employment" as a mandatory subject of
negotiations.
The scope of representation shall be limited to
matters relating to wages, hours of employment,
and other terms and conditions of employment . . . .
In defining "hours of employment" it is appropriate to take
guidance from the federal sector. 	The scope language found in
NLRA section 8(d) reads in pertinent part:
For the purposes of this section, to bargain
collectively is the performance of the mutual
obligation of the employer and the
representative of the employees to meet at
reasonable times and confer in good faith with
respect to wages, hours, and other terms and
conditions of employment ..
"Hours of employment have caused little difficulty in the
area of mandatory subjects of bargaining in light of the express terms
of 8(d) of the Act." (Morris, The Developing Labor Law, p. 403.)
The term has been held applicable to working days and working hours
(Gallenkamp Shoes v. NLRB (1968) 402 F. 2d 525 [69 LRRM 2024]; to
In Fire Fighters v. City of Vallejo
[ (1974) 12 Cal. 3d 608], the California Supreme
Court held that, in the interpretation of language
in a California statute, cognizance should be taken
of the decisions of the National Labor Relations
Board interpreting identical or similar language
in the Labor Management Relations Act. 	[Sweetwater
Union High School District (11/23/76) EERB Decision
No. 4. ]
-41-
1. 	The 	statutory 	language
Section 	3543.2 	of 	the 	Educational 	Employment 	Relations 	Act
establishes 	"hours 	of 	employment" 	as 	a 	mandatory 	subject 	of
negotiations.
The 	scope 	of 	representation 	shall 	be 	limited 	to
matters 	relating 	to 	wages, 	hours 	of 	employment,
and 	other 	terms 	and 	conditions 	of 	employment 	....
In 	defining 	"hours 	of 	employment" 	it 	is 	appropriate 	to 	take
guidance 	from 	the 	federal 	sector. 1 The 	scope 	language 	found 	in
NLRA 	section 	8(d) 	reads 	in pertinent 	part:
For 	the 	purposes 	of 	this 	section, 	to 	bargain
collectively 	is 	the 	performance 	of 	the mutual
obligation 	of 	the 	employer 	and 	the
representative 	of 	the 	employees 	to 	meet 	at
reasonable 	times 	and 	confer 	in 	good 	faith 	with
respect 	to 	wages, 	hours, 	and 	other 	terms 	and
conditions 	of 	employment 	....
"Hours 	of 	employment 	hav:e 	caused 	little 	difficulty 	in 	the
area 	of mandatory 	subjects 	of 	bargaining 	in 	light 	of 	the 	express 	terms
of 	8(d) 	of 	the Act." 	(Morris, 	The 	Developing 	Labor 	Law, 	p. 	403.)
The 	term has 	been held 	applicable 	to .working 	days 	and working 	hours
(Gallenkamp 	Shoes 	v. 	NLRB 	(1968) 	402 	F.2d 	525 	[69 	LRRM 2024]; 	to
1r n 	Fire 	Fighters 	v. 	City 	of 	Vallejo
[(1974) 	12 	Cal.3d 	608], 	the 	California 	Supreme
Court 	held 	that, 	in 	the 	interpretation 	of 	language
in 	a 	California 	statute, 	cognizance 	should be 	ta~~en
of 	the 	decisions 	of 	the 	National 	Labor 	Relations
Board 	interpreting 	identical 	or 	similar 	language
in 	the 	Labor 	Management 	Relations 	Act. 	[Sweetwater
Union 	High 	School 	District 	(11/23/76) 	EERB 	Decision
No. 	4.)
-41-

holiday, overtime and Sunday work (NLRB v. Boss Mig. Co. (1941)
118 F. 2d 187 [8 LRRM 729]. In Amalgamated Meat Cutters V.
Jewel Tea Co. (1965) 381 U.S. 676, 691 [59 LRRM 2376], the Supreme
Court stated:
The particular hours of a day and the particular
days of the week during which employees may be
required to work are well within the realm of
wages, hours, and other terms and conditions of
employment about which employers and unions must
bargain.
Regarding the disputed matters here, the school calendars
adopted by the Districts specify the length of the school year, the
length of the working day and the distribution of working hours
within the day during which certificated employees are required to
be present for duty. "Under any definition, these items . .. are
directly related to 'hours of employment' ...."
Nevertheless, the Districts contend that their obligation to
negotiate on hours of employment is limited to the total hours per
day and does not include the opening and closing dates of the school
year or the distribution of assignment time within the day; and,
that if the number of hours per day that a certificated employee is
required to be at work is not altered, how the employee spends the
day, on what assignments and for what duration, are outside of
mandatory scope.
The basis for this argument is that the items claimed to be
excluded are the means by which the Districts effectuate policy
matters solely within their province.
West Hartford Education Association v. Decourcy (1972) 162 Conn. 566;
however items held not subject to negotiations because "hours of
employment" were excluded from scope provisions of Teacher Negotiation
Act.
-42-
holiday, 	overtime 	and 	Sunday work 	(NLRB 	v. 	Boss 	Mfg. 	Co. 	(1941)
118 	F.2d 	187 	[8 	LRRM 	729]. 	In Amalgamated Meat 	Cutters 	v.
Jewel 	Tea 	Co. 	(1965) 	381 	U.S. 	676, 	691 	[59 	LRRM 2376], 	the 	Supreme
Court 	stated:
The 	particular 	hours 	of 	a 	day 	and 	the 	particular
days 	of 	the 	week 	during 	which 	employees 	may 	be
required 	to 	work 	are 	well 	within 	the 	realm of
wages, 	hours, 	and 	other 	terms 	and 	conditions 	of
employment 	about 	which 	employers 	and 	unions 	must
bargain.
Regarding 	the 	disputed matters 	here, 	the 	school 	calendars
adopted 	by 	the 	Districts 	specify 	the 	length 	of 	the 	school 	year, 	the
length of 	the working 	day 	and 	the 	distribution 	of working 	hours
within 	the 	day 	during 	which 	certificated 	employees 	are 	required 	to
be 	present 	for 	duty. 	"Under 	any 	definition, 	these 	items 	... 	are
directly 	related 	to 	'hours 	of 	employment' 	.... 112
Nevertheless, 	the 	Districts 	contend 	that 	their 	obligation 	to
negotiate 	on hours 	of 	employment 	is 	limited 	to 	the 	total 	hours 	per
day 	and 	does 	not 	include 	the 	opening 	and 	closing 	dates 	of 	the 	school
year 	or 	the 	distribution 	of 	assignment 	time within 	the 	day; 	and,
that 	if 	the 	number 	of hours 	per 	day 	that 	a 	certificated 	employee 	is
required 	to 	be 	at 	work 	is 	not 	altered, 	how 	the 	employee 	spends 	the
day, 	on what 	assignments 	and 	for 	what 	duration, 	are 	outside 	of
mandatory 	scope.
The 	basis 	for 	this 	argument 	is 	that 	the 	items 	claimed 	to 	be
excluded 	are 	the 	means 	by which 	the 	Districts 	effectuate 	policy
matters 	solely within 	their 	province.
2west 	Hartford Education Association v. 	Decourcy 	(1972) 	162 	Conn.566;
however 	items 	held not 	subject 	to 	negotiations 	because 	"hours 	of
employment" were 	excluded 	from 	scope 	provisions 	of 	Teacher 	Negotiation
Act.
-42-

This argument must fail if it is the unequivocal legislative
intent that these items be within scope. It must also fail if the
obligation to negotiate such matters would not preclude the Districts
from exercising those managerial prerogatives which are fundamental
and essential to the existence and operation of the school system and
which must remain under the exclusive control of the Districts if
they are to fulfill their constitutionally mandated missions.
2. 	The legislative intent
As stated by the court in Fire Fighters v. City of Vallejo,
supra, 12 Cal . 3d 608, the adoption of identical or comparable
language permits the conclusion that the legislative intent is to
pattern the local statute after the federal model. Here, pertinent
scope provisions of the EERA are substantially the same as those
found in the NLRA. It should not be assumed that this is the result
of thoughtless and rote reproduction. To the contrary, the very
differences between section 3543.2 and section 8(d) lead to the
inescapable conclusion that the California Legislature was very
deliberate in deciding which aspects of the federal law were to be
followed and which were to be distinguished. The reference in
section 3543.2 to "terms and conditions of employment" is, of course,
substantially different from the federal language in that the EERA
term is defined by the inclusion of a list of specifically mandated
subjects followed by the admonition that "all matters not specifically
enumerated are reserved to the public school employer and may not be
a subject of meeting and negotiating . . . ." In this substantial
distinction lies purposeful differentiation. It is logical, indeed,
-43-
This
	argument 	must
	fail
	if
	it
	is
	the
	unequivocal
	legislative
intent 	that
	these
	items
	be
	within
	scope.
	It
	must
	also
	fail
	if
	the
obligation
	to
	negotiate
	such
matters
	would
	not 	preclude 	the
	Districts
from
	exercising
	those 	managerial
	prerogatives
	which
	are
	fundamental
and
	essential
	to 	the
	existence
	and
	operation 	of
	the
	school 	system
	and
which must
	remain 	under
	the 	exclusive 	control 	of
	the
	Districts
	if
they
	are
	to
	fulfill
	their 	constitutionally
	mandated
	missions.
2.
	The
	legislative 	intent
As
	stated
	by
	the 	court
	in 	Fire 	Fighters
	v.
	City 	of
	Vallejo,
supra,
	12
	Cal.3d
	608,
	the 	adoption
	of
	identical
	or
	comparable
language
	permits 	the 	conclusion
	that
	the
	legislative 	intent
	is
	to
pattern
	the
	local
	statute 	after
	the
	federal
	model. 	Here,
	pertinent
scope
	provisions 	of 	the
	EERA
	are
	substantially
	the
	same
	as
	those
found
	in
	the
	NLRA.
	It
	should
	not
	be 	assumed
	that 	this 	is
	the
	result
of
	thoughtless
	and
	rote
	reproduction.
	To
	the 	contrary, 	the 	very
differences
	between
	section
	3543.2
	and
	section
	8(d)
	lead 	to
	the
inescapable 	conclusion
	that
	the
	California 	Legislature
	was
	very
deliberate 	in
	deciding
	which
	aspects 	of 	the 	federal
	law were
	to
	be
followed
	and which were
	to
	be
	distinguished.
	The
	reference
	in
section
	3543.2 	to 	"terms
	and
	conditions 	of
	employment"
	is,
	of
	course,
substantially 	different
	from
	the 	federal
	language
	in 	that 	the
	EERA
term
	is
	defined
	by
	the 	inclusion 	of
	a
	list
	of 	specifically
mandated
subjects
	followed
	by
	the 	admonition
	that 	"all
	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the 	public 	school 	employer 	and may
	not
	be
a
	subject 	of meeting 	and
	negotiating
....
"
	In 	this 	substantial
distinction 	lies
	purposeful 	differentiation.
	It 	is 	logical,
	indeed,

in my view necessary, to conclude that those subjects (e.g. , hours
of employment) which were not treated differently by the Legislature
were not meant to be treated differently by this Board. In summary,
I conclude that by the incorporation of the term "hours of employment",
the Legislature expected and intended federal precedents to be
followed. Consequently, I find no basis for excluding recognized and
well established aspects of "hours of employment" from the requirement
of mandatory bilateral determination.
3. 	Managerial necessity
The Districts' argument that the school calendar is so
essentially a matter of managerial imperative that the employees'
workday, hours and their distribution are necessarily excluded from
scope is not persuasive. No claim is made that either the California
Constitution or State legislation mandates the specific dates on
which the school year is to begin and end or the duration of that
school year. It is common knowledge that the first and last dates of
he days and hours
during which pupil attendance is required, though closely correlated
with them, are not four-square with the days and hours that certificated
employees are required to be on duty." 	There is some flexibility in
accommodating the employees' work schedule and the pupils' attendance
schedule to each other. If that flexibility is nevertheless limited
for all practical purposes, the District is not required to
agree to any specific proposal the employees may choose to advance.
"For example, the San Juan School District began and ended its
1978/79 school year one week earlier than did the Los Angeles Unified
School District and two weeks before the Las Virgenes School District.
"According to the school calendar in evidence here, teachers are
assigned extra duties on days and during hours when students'
attendance is not required.
-44-
in
	my
	view
necessary, 	to
	conclude
	that
	those
	subjects
	(e.g.,
	hours
of
	employment)
	which were
	not
	treated 	differently
	by
	the
	Legislature
were
	not
	meant
	to
	be
	treated 	differently
	by
	this
	Board.
	In
	summary,
I
	conclude
	that
	by
	the 	incorporation 	of
	the
	term 	"hours
	of
	employment",
the
	Legislature
	expected
	and
	intended
	federal
	precedents 	to
	be
followed. 	Consequently,
	I
	find
	no
	basis 	for
	excluding
	recognized
	and
well
	established
	aspects 	of
	"hours
	of
	employment" 	from
	the 	requirement
of
	mandatory
	bilateral
	determination.
3.
	Managerial
	necessity
th
e
	sc
h oo 1
	year 	vary
	f rom 	. 	t 	.
	d'
	.	d
is
	rict
	to
	istrict.
The
	Districts'
	argument
	that
	the
	school
	calendar
	is
	so
essentially
	a
	matter 	of
	managerial 	imperative
	that
	the
	employees'
workday,
	hours
	and
	their 	distribution
	are necessarily
	excluded
	from
scope
	is
	not 	persuasive.
	No
	claim
	is
	made
	that 	either
	the
	California
Constitution 	or 	State
	legislation
	mandates
	the
	specific 	dates
	on
which
	the
	school 	year
	is
	to 	begin
	and 	end
	or 	the 	duration
	of 	that
school 	year.
	It
	is
	common
	knowledge
	that
	the
	first
	and
	last
	dates 	of
the school year vary from district to district. T 3 The
	days
	and 	hours
during
	which
	pupil 	attendance
	is
	required,
	though
	closely 	correlated
with
	them,
	are 	not 	four-square 	with 	the
	days 	and 	hours
	that 	certificated
employees
	are 	required 	to
	be 	on
	duty.
4
There
	is
	some
	flexibility
	in
accommodating
	the 	employees'
	work
	schedule
	and
	the
	pupils'
	attendance
schedule 	to 	each
	other.
	If
	that 	flexibility 	is
	nevertheless 	limited
for
	all
	practical
	purposes, 	the
	District 	is
	not 	required 	to
agree 	to
	any
	specific 	proposal 	the
	employees 	may
	choose 	to 	advance.
3
For 	example, 	the
	San
	Juan 	School
	District
	began 	and 	ended
	its
1978/79 	school 	year 	one week
	earlier
	than 	did 	the
	Los 	Angeles 	UnifiedSchool
	District
	and 	two 	weeks
	before 	the 	Las 	Virgenes 	School
	District.
4According 	to 	the 	school 	calendar 	in 	evidence 	here, 	teachers 	are
assigned 	extra 	duties 	on 	days 	and 	during 	hours 	when 	students'
attendance 	is 	not 	required.
-44-

The obligation to negotiate requires a good faith effort to reach
agreement, but does not compel any specific concession. 	Negotiating
the dates when employees will report to work, take vacation, enjoy
holidays, perform extra assignments such as back-to-school and
open house, and end of working year does not preclude the Districts
from establishing educational programs or fulfilling their educational
missions. The Legislature saw no conflict between the employees'
interests in their working conditions and the districts' managerial
needs of such magnitude as to impair the operation of the educational
program. This is evident not only in its inclusion of "hours of
employment" in section 3543.2, but also in its inclusion of leave
policies as a mandatory subject of negotiation. It is apparent that
the questions of employee attendance and pupil attendance were not
viewed as so inextricably mated as to remove the former from the
scope of mandatory negotiations.
I therefore concur in the conclusion that in Palos Verdes
Peninsula School District the following are mandatory subjects of
negotiations under section 3543.2 of EERA:
1) Beginning and ending dates of certificated
employees' services during the school year;
2) Vacation and holiday dates for said employees;
See e.g., Partee Flooring Mill (1954) 197 NLRB 1177, 1178,
wherein the NLRB held that "the significant fact is not whether
[the employer] was in a position to grant concessions but rather
whether it bargained in good faith on the subject."
6 "Terms and conditions of employment" mean health
and welfare benefits as defined by section 53200,
leave and transfer policies . . . . [Government
Code section 3543.2. ]
-45-
The
	obligation
	to
	negotiate 	requires
	a 	good
	faith 	effort
	to 	reach
agreement,
	but
	does
	not
	compel
	any
	specific
	concession.
5
Negotiating
the 	dates
	when
	employees
	will
	report
	to
	work,
take
	vacation,
	enjoy
holidays,
	perform
	extra
	assignments
	such 	as
	back-to-school
	and
open
	house,
	and 	end
	of
	working
	year
	does
	not
	preclude 	the
	Districts
from
	establishing
	educational
	programs
	or
	fulfilling
	their
	educational
missions.
	The
	Legislature
	saw no
	conflict
	between
	the
	employees'
interests
	in
	their
	working
	conditions
	and
	the
	districts'
	managerial
needs
	of
	such magnitude
	as
	to 	impair 	the
	operation of 	the 	educational
program. 	This
	is
	evident not
	only
	in
	its
	inclusion 	of
	"hours
	of
employment"
	in 	section
	3543.2,
	but 	also 	in
	its
	inclusion of 	leave
policies
	as
	a
	mandatory
	subject 	of 	negotiation.
6
It
	is
	apparent
	that
the 	questionsof
	employee
	attendance
	and
	pupil 	attendance
	were
	not
viewed
	as
	so
	inextricably
	mated
	as 	to
	remove
	the
	former 	from
	the
scope
	of
	mandatory
	negotiations.
I
	therefore
	concur
	in
	the 	conclusion
	that
	in,Palos
	Verdes
Peninsula
	School
	District
	the 	following
	are
	mandatory
	subjects 	of
negotiations
	under
	section
	3543.2
	of
	EERA:
1) 	Beginning 	and
	ending
	dates 	of
	certificated
employees'
	services
	during 	the
	school 	year;
2)
	Vacation
	and
	holiday 	dates 	for 	said
	employees.;
5
see
	e.g.,
	Partee
	Flooring Mill
	(1954) 	197
	NLRB
	1177, 	1178,
wherein 	the
	NLRB
	held 	that 	"the 	significant 	fact 	is
	not whether
[the
	employer] 	was
	in
	a
	position 	to 	grant 	concessions 	but
	rather
whether
	it
	bargained 	in
	good
	faith
	on
	the 	subject."
6 "Terms 	and
	conditions 	of
	employment" 	mean
	health
and welfare 	benefits 	as 	defined
	by
	section
	53200,
leave 	and
	transfer 	policies
	....
	(Government
Code
	section 	3543.2.]

3) Time and duration of back-to-school night and
open house assignments.
I further concur, in Pleasant Valley District, that the
beginning and ending dates of certificated employees' services during
the school year are mandatory subjects of negotiations. Finally, I
concur with the reasoning and conclusion that the Pleasant Valley
School District waived its right to except to the hearing officer's
finding that the District failed to prove operational necessity for
its unilateral act in adopting the school calendar.
Harry Gluck, Chairperson
-46-
3)
	Time
	and
	duration 	of
	back-to-school
	night
	and
open 	house
	assignments.
I
	further
	concur,
	in
	Pleasant
	Valley
	District,
	that
	the
beginning
	and
	ending
	dates 	of
	certificated
	employees'
	services
	during
the
	school 	year
	are
	mandatory
	subjects
	of
	negotiations.
	Finally,
	I
concur
	with
	the 	reasoning
	and
	conclusion
	that
	the
	Pleasant 	Valley
School
	District
	waived
	its
	right
	to
	except
	to 	the 	hearing
	officer's
finding
	that
	the
	District 	failed
	to
	prove
	operational
	necessity
	for
its
	unilateral
	act
	in
	adopting
	the
	school
	calendar.
Hart)\
Gluck,
-Chairpers~
-46-

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
PALOS VERDES FACULTY ASSOCIATION,
Charging Party, Case No. LA-CE-122-77/78
VS .
PALOS VERDES PENINSULA UNIFIED 	RECOMMENDED DECISION
SCHOOL DISTRICT,
January 31, 1978Respondent.
Appearances: Charles Gustafson, Attorney, for Palos Verdes Faculty Association;
J. Michael Taggart, Attorney, for Palos Verdes Peninsula Unified School District.
Before Jeff Paule, Hearing Officer.
STATEMENT OF THE CASE
Unless otherwise specified, all section references are to the Government
Code. Section 3543.2 provides that:
The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms
and conditions of employment. "Terms and conditions of
employment" mean health and welfare benefits as defined
by Section 53200, leave and transfer policies, safety
conditions of employment, class size, procedures to be
used for the evaluation of employees, organizational
security pursuant to Section 3546, and procedures for
processing grievances pursuant to Sections 3548.5,
3548.6, 3548.7 and 3548.8
Section 3543.5(c) provides:
It shall be unlawful for a public school employer to:
Refuse or fail to meet and negotiate in good faith with
an exclusive representative.
9, 	1977, 	the Palos Verdes Faculty Association (hereinafter "PVFA" or
"charging
PUBLIC EMPI.DYMENT RELATIONS BOARD
OF 'lliE STATE OF CALIFORNIA
In the Ma.tter of:
PAI.DS VERDES FACUL1Y ASSOCIATION,
Charging Party,
vs.
PAI.DS VERDES PENINSULA UNIFIED
SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. lA-CE-122-77/78
RECCMMENDED DECISION
January 31, 	1978
J
_______________ ___,)
Appearances:
On May 9, 1977, the Palos Verdes Faculty Association (hereinafter "PVFA" or
"charging party") filed an unfair practice charge against the Palos Verdes
Peninsula Unified School District (hereinafter "District" or "respondent") with the
Public Employment Relations Board (hereinafter "PERB") alleging a violation of
Government Code Sections 3543, 3543.1(a) , 3543.2, 3543.5(b) and 3543.5(c) .
Charles Gustafson, Attorney, 	for Palos Verdes Faculty Association;
J. Michael Taggart, Attorney, 	for Palos Verdes Peninsula Unified School District.
Before Jeff Paule, 	Hearing Officer.
STATEMENT OF THE CASE
On Ma.y
partyn) 	filed an tmfair practice charge against the Palos Verdes
Peninsula Unified School District (hereinafter "District" or "respondent") with the
Public Employment Relations Board (hereinafter "PERB") alleging a violation of
Government Code Sections 3543, 	3543.l(a), 	3543.2, 	3543.5(b) 	and 3543.5(c) .1
1Unless otherwise specified, 	all section references are to 	the Government
Code. 	Section 3543.2 provides that:
The scope of representation shall be limited to matters
relating to wages, 	hours of employment, 	and other terms
and conditions of employment. 	"Terms and conditions of
employment" mean health and welfare benefits as defined
by Section 53200, 	leave and transfer policies, 	safety
conditions of employment, 	class size, 	procedures to be
used for the evaluation of employees, 	organizational
security pursuant to Section 3546, 	and procedures for
processing grievances pursuant to Sections 3548.5,
3548.6, 	3548.7 and 3548.8
Section 3543.S(c) provides:
It shall be unlawful for a public school employer to:
Refuse or fail to meet and negotiate in good faith with
an exclusive representative.

The District filed its answer to the unfair practice charge on
June 9, 1977.
The essence of the charge is that the District failed to meet and
negotiate in good faith by unilaterally adopting a calendar for the 1977-78
school year while negotiations were in progress. The PVFA contends that the
various aspects of a school calendar relate to hours of employment and wages
as those terms are used in Section 3543.2 and that the calendar is therefore
a mandatory subject of bargaining under the provisions of this section.
The District's position is that the school calendar is not a mandatory
subject of bargaining and assuming that it is, the District met and negotiated
in good faith and did not commit an unfair practice when it adopted a calendar
for the 1977-78 school year.
A hearing was held in Los Angeles, California, on September 19, 1977.
ISSUES
1. Is the school calendar within the scope of representation as defined
by Government Code Section 3543.2?
2. Assuming the school calendar is within the scope of representation, did
the District's adoption of a school calendar while negotiations were in progress
constitute a failure to negotiate in good faith in violation of Government Code
Section 3543.5(c)?
FINDINGS OF FACT
Because of the complicated history of this case, it is helpful to present
chronologically the events which preceded the unfair practice hearing.
On January 26, 1976, the Board of Education of the Palos Verdes Peninsula
Unified School District (hereinafter "School Board") held a meeting during which
the various factors that compose a school calendar were discussed. Shortly
afterwards, the School Board issued a document entitled "Calendar Guidelines"
listing these factors. They include the following: scheduling the opening and
-2-
The
District filed
its
answer
to the
1.mfair
practice
charge on
Ji.me
9,
	1977.
A
hearing
was
held
in
Los
Angeles,
	California,
	on September 19, 1977.
ISSUES
The
essence
of
the
charge
is
	that
the
District
failed
	to meet and
negotiate
in
good
faith
by
1.milaterally
adopting a calendar
for
	the
1977-78
school
year while
negotiations
were
in
progress.
	The
PVFA
contends
that the
various aspects
	of
a school
calendar
relate
to
hours
of
e..rnployment
and wages
as 	those tenns
are
used
in
Section
3543.2 and
that
the calendar
is
	therefore
a mandatory
subject of
bargaining
1.mder
the provisions
of this
	section.
The
District's
position
is
	that
	the school calendar
is
not
a mandatory
subject
of
bargaining and assuming
that
it
is,
	the
District
met and
negotiated
in
good
faith
and did not
comnit
an
1.mfair
practice
when
it
adopted a
calendar
for
	the 1977-78 school year.
1.
	Is
	the
school calendar within the scope
of
representation
as	
defined
by Goverrn:nent Code
Section 3543.2?
2. 	Assuming the school calendar
is
within the scope
of representation,
	did
the
District's
adoption
of
a school calendar while negotiations
were
in
progress
constitute
a
failure
	to negotiate in
good
faith in violation of
Goverrn:nent Code
Section 3543.S(c)?
FINDINGS
OF
FACT
Because
of
the complicated
history of this
	case,
	it
is
helpful to present
chronologically the events which preceded the 1.mfair
practice hearing.
On
January 26, 	1976, 	the Board of Education of the Palos Verdes Peninsula
Unified School
District (hereinafter "School Board") held a meeting during 'which
the various factors 	that compose a school calendar were discussed. 	Shortly
afterwards, 	the School Board :Lssued a document entitled "Calendar Guidelines"
listing these factors. 	They include the following: 	scheduling the opening and
-2-

closing of school, graduation, and vacations to coincide with the Los Angeles
Unified School District system; permitting school to open on an isolated day
in the first week; not commencing the school term on major Jewish holy days;
scheduling eighth grade graduation to precede twelfth grade; maintaining
conference days; and including a contingency day. The guidelines also indicate
that it was the School Board's practice to adopt the calendar for the upcoming
school year and tentatively approve the calendar for the following school year
at approximately the same time.
On June 7, 1976, the School Board tentatively approved a calendar for the
1977-78 school year following the guidelines that had been issued in January of 1976.
The calendar tentatively approved on June 7, 1976 sets out the total number
of days a teacher is required to work (182), the duties to be performed on those
days (i.e. teaching, conference") as well as the dates on which those days fall.
The 182 days are divided as follows: teachers of grades kindergarten through five
are assigned 176 teaching, four conference, and two pre-school service days; teachers
of grades six through eight are assigned 176 teaching, three conference, two pre-
school service days, and one pupil-free work day; teachers of grades nine through
twelve are assigned 177 teaching, two pre-school service, and three pupil-free
work days.
Less than a month after the School Board tentatively approved the above
calendar, the Educational Employment Relations Act (hereinafter "EERA" or "Act")
went into effect, on July 1, 1976. In November, 1976, the PVFA was elected the
exclusive representative of certificated employees in the Palos Verdes Peninsula
Unified School District.
2Conference days are those on which teachers hold conferences with parents;
students do not attend school.
-3-
closing
of
school, 	graduation,
	and
vacations to coincide
with the
Los Angeles
Unified
School
District
system;
	permitting
school
to
open on an
isolated
day
in
the
first
week;
	not
corrmencing
the
school term on major Jewish holy days;
scheduling
eighth
grade
graduation
to
precede
twelfth
grade;
maintaining
conference days; 	and
including
a contingency day.
	The
guidelines
also
	indicate
that
it
was
	the
School Board's
practice
to
adopt
the calendar
for
the
upcoming
school
year
and
tentatively
approve the calendar
for
	the
following
school
year
at
approximately
the
same time.
On
June 7, 	1976,
	the
School Board
tentatively
approved a calendar
for
	the
1977-78 school
year
following
	the guidelines
	that
had been
issued
in
January
of
1976.
The
calendar
tentatively
approved on June 7, 	1976
sets
out the
total
number
of
days a
	teacher
is
required to
work (182) ,
	the duties to
be perfonued
-0n
those
days
	(i.e.
	teaching, 	conference 2) as
well
as
	the dates
on which those 	days
	fall.
The 182 days
are
divided as follows:
	teachers
of
grades
kindergarten through
five
are
assigned 176 teaching, 	four conference, 	and
two
pre-school service
days; 	teachers
of
grades
six
through
eight are
assigned 176 teaching,
	three
conference, 	two
pre-
school
service
days, 	and one
pupil-free
work day; 	teachers
of
grades
nine
	through
twelve
are
assigned 177 teaching,
	two
pre-school service,
	and
three
pupil-free
work days.
Less than a IDJnth
after
the School Board
tentatively
approved the above
calendar, 	the Educational Employment Relations Act
	(hereinafter
"EERA"
or
	"Act")
went
into effect,
	on
July 1, 	1976.
	In
November, 	1976, 	the
PVFA
was
elected the
exclusive representative of certificated
employees
in
the Palos Verdes Peninsula
Unified School
District.
2conference days are those on which teachers hold conferences with parents;students do not attend school.
-3-

On February 23, 1977, the PVFA presented its initial calendar proposal
to the District. Entitled "Proposed School Calendar for 1977-78 School Year,"
the calendar provides that the total number of days that a teacher is to render
service be 179, distributed as follows: grades kindergarten through five (175
teaching, three conference days, and one pupil-free work day) ; grades six through
eight (175 teaching, two conference, two pupil-free work days) ; and grades nine
through twelve (176 teaching and three pupil-free work days) . There is no
mention of pre-school service days in the PVFA proposal. In addition, the PVFA's
proposed calendar sets out the specific dates on which the following occur: first
and last day of instruction, conference days, summer session, graduation, vacation
recess periods, holidays, final exams and pupil-free work days .
On March 7, 1977, the District presented its initial contract offer. Under
the heading of "Hours", the offer specifies the number of days per year (182) and
the number of hours per day (8) that teachers are required to work. The offer
goes on to state:
In addition to the above minimum time and required
work days, unit members are responsible for adjunct
duties, beyond their instructional duties, which
include but are not limited to, program development,
professional growth activities, parent conferences,
committee assignments, faculty and District meetings,
special help to student (s) , back-to-school nights,
open houses, student supervision, and other assign-
ments which are determined by the District to be
necessary for the efficient operation of the District.
Negotiations between the PVFA and the District began on March 22, 1977. At
the negotiating session held on April 12, 1977, the District presented to the PVFA
a counter-proposal entitled "Tentative School Calendar for 1977-78 School Year."
This is the same calendar referred to earlier that had been tentatively approved
by the School Board on June 7, 1976.
The areas of difference between the PVFA's initial proposal and the District's
counter-proposal are the following: the total number of working days in the year;
-4-
On
February 23, 	1977,
	the
'PVFA
presented
its initial
calendar proposal
to the
District.
	Entitled
"Proposed School Calendar
for
1977-78 School
Year,"
the calendar
provides
	that
	the
	total
number
of
days
	that
a
teacher
is
	to
render
service
be 179,
	distributed
as follows: 	grades
kindergarten
through
five
	(175
teaching,
	three
conference days, 	and one
pupil-free
work day); 	grades
six
	through
eight
	(175 teaching,
	two
conference, 	two
pupil-free
work days); 	and grades
nine
through twelve 	(176 teaching and
three
pupil-free
work days). 	There
is
no
mention
of
pre-school
service
days
	in
the
'PVFA
proposal. 	In addition, 	the
PVFA's
proposed
calendar
sets
out the
specific
dates
on which
the
following occur:
	first
and
last
day
of instruction,
	conference days, 	surrmer
session,
	graduation,
	vacation
recess periods, 	holidays,
	final
exams
and
pupil-free
'¼Ork
days.
On
March 7, 	1977,
	the
District
presented
its initial
contract
offer.
	Under
the heading
of
''Hours'',
	the
offer specifies
	the number
of
days
per year (182) 	and
the number
of
hours
per
day (8)
	that
teachers
are
required to
work.
	The
offer
goes on to
state:
In addition to the above minimum time and
requiredwork days,
	unit
members
are responsible
for
adjunct
duties,
	beyond
their instructional duties,
	'Which
include
but are not limited to,
	program development,
professional
growth
activities,
	parent
conferences,
cornnittee assignments,
	faculty
and
District
meetings,
special
help to student(s),
	back-to-school nights,open houses, 	student supervision, 	and
other assign-ments
'Which
are
determined by the
District
to be
necessary
for the
efficient
operation
of
the
District.
Negotiations between the
'PVFA
and the
District
began on March 22, 	1977. 	At
the negotiating session held on April 12, 1977, 	the
District
presented to 	the
'PVFA
a crn.mter-proposal
entitled
"Tentative School Calendar
for
1977-78 School Year."
This
	is
	the
same calendar referred to
earlier that
had been
tentatively
approved
by the School Board on June 7, 	1976.
The areas of difference between the 'PVFA's
	initial
proposal and the
District's
counter-proposal are the following: 	the total number of i:.vorking days in the year;
-4-

the number of conference days; the number and dates of pupil-free work days; the
inclusion of pre-school service days, Back-to-School Night and Open House on
the District's proposed calendar; and the designation of final exam days on the
PVFA's proposed calendar.
During a negotiating session held on April 26, 1977, the District presented
to the PVFA a "Proposed School Calendar for 1977-78 School Year." This calendar
differs from the one presented by the District on April 12 only in that there is no
mention of any pre-school service days.
There were no negotiating sessions from April 26 until May 4, 1977.
On May 2, 1977, the School Board approved a calendar for the 1977-78 school
year. The calendar is entitled "Adopted School Calendar for 1977-78 School Year."
This calendar is identical to the one proposed by the District on April 26, 1977.
The School Board took this action on May 2, 1977 because the District was receiving
numerous inquiries from the public about the starting date of school.
Even though the calendar proposed by the District on April 26, 1977
and later approved by the School Board on May 2, 1977 makes no mention of pre-
school service days, it is found that the District had not at this time changed its
offer of a 182-day school year, which includes two pre-school service days. The
PVFA appears to have understood this because even after May 2, 1977, the parties
continued to discuss the necessity for and number of pre-school service days.
A few days after the School Board approved the school calendar on
May 2, 1977, the PVFA filed the instant unfair practice charge, charging the School
Board with unilaterally adopting the 1977-78 school calendar in the midst of
negotiations involving the calendar.
The District argues that the calendar adopted on May 2 was merely a "student"
calendar which did not purport to establish the number of working days or their
distribution for teachers. It is found that the calendar approved on May 2, 1977
is both a "student" and a "teacher" calendar. First, the days that students are
-5-
the number of conference days; 	the mn:nber and dates of pupil-free work days; 	the
inclusion of pre-school service days, 	Back-to-School Night and Open House on
the District's proposed calendar; 	and the designation of final exam days on the
PVFA's proposed calendar.
During a negotiating session held on April 26, 	1977, 	the District presented
to the PVFA a ''Proposed School Calendar for 1977-78 School Year.'' 	This calendar
differs from the one presented by the District on April 12 only in that there is no
mention of any pre-school service days.
There were no negotiating sessions from April 26 until May 4, 	1977.
On May 2, 	1977, 	the School Board approved a calendar for the 1977-78 school
year. 	The calendar is entitled "Adopted School Calendar for 1977-78 School Year."
This calendar is identical to the one proposed by the District on April 26, 	1977.
The School Board took this action on May 2, 	1977 because the District was receiving
numerous inquiries from the public about the starting date of school.
Even though the calendar proposed by the District on April 26, 	1977
and later approved by the School Board on May 2 , 19 77 makes no mention of pre-
school service days, 	it is found that the District had not at this t:ime changed its
offer of a 182-day school year, vvhich includes two pre-school service days. 	The
PVFA appears to have understood this because even after May 2, 	1977, 	the parties
continued to discuss the necessity for and number of pre-school service days.
A few days after the School Board approved the school calendar on
May 2, 	19 77 , the PVFA filed the instant unfair practice charge, 	charging the School
Board with unilaterally adopting the 1977-78 school calendar in the midst of
negotiations involving the calendar.
The District argues that the calendar adopted on May 2 was merely a 	"student"
calendar vvhich did not purport to establish the n1.JD1ber of working days or their
distribution for teachers. 	It is found that the calendar approved on May 2, 	1977
is both a "student" and a "teacher" calendar. 	First, 	the days that students are
-5-

to be present are also days that teachers must be present. Second, the
calendar establishes dates for conference days, Back-to-School Night and
Open House--occasions which require the teachers' presence, not the students' .
It is noted that both parties devote considerable attention in
their briefs to the issue of "student" versus "teacher" calendar. The distinction
is not that important to a resolution of this case. Neither party argues
nor is it found that the length of the students' day or the number of days students
must attend class is negotiable.
During the negotiating session on May 4, 1977, the PVFA submitted a calendar
proposal to the District which included a provision for one pre-school service
day .
When the parties met again on May 12, 1977, the District responded to the PVFA's
May 4, 1977 proposal of one pre-school service day by offering to eliminate one of
the two proposed pre-school service days and thus to reduce the total number of
working days from 182 to 181. The PVFA rejected the offer because, although
there was now agreement on the total number of pre-school service days, there
still was no agreement on the total number and distribution of workdays. At
that point, the District withdrew the offer and reverted to its 182 workday/2 pre-
school service day position.
The parties discussed the calendar at one more negotiating session, on
May 26, 1977, but could not reach agreement. The parties met again on June 29, 1977
and at that time agreed to postpone any further bargaining until the State
Legislature passed and the Governor signed the school appropriations bill.
On August 23, 1977, the District notified the teachers that there would be
two pre-school service days, on September 13 and 14, 1977. On August 29, 1977, the
School Board formally adopted a calendar establishing the total number of working
days at 182 "unless and until modified by a collective bargaining agreement
between the District and the PVFA." This calendar, the one currently in operation,
reflects the two pre-school service days.
-6-
to
be
present
are
also
days
	that
teachers
must
be
present.
	Second,
	the
calendar
establishes
dates
for
	conference days, 	Back-to-School Night and
Open
House--occasions
'Which
require
the
teachers'
	presence,
	not
the
students'.
It
	is
noted
that
both
parties
devote
considerable
attention
in
their briefs
	to the issue
of
"student"
versus
	"teacher" calendar.
	The
distinction
is
not
	that
important
to
a
resolution of this
	case. 	Neither
party
argues
nor
is
	it
found
	that
the length
of
the
students'
	day
or
the
number
of
days
	students
IIR.lst
attend class
	is
negotiable.
During
the
negotiating session
on
May
4, 	1977,
	the
PVFA
submitted a
	calendar
proposal
	to the
District
which included a
provision
for
one pre-school
service
day.
When
the
parties
met again on
May
12, 	1977,
	the
District
responded
to
	the
PVFA's
May
4, 	1977 proposal
of
one
pre-school service
day by
offering to eliminate
one
of
t½e
two
proposed pre-school
service
days and thus
	to
reduce
the
total
nu:nber
of
working days from 182
to 181. 	The
PVFA
	rejected
the
offer
because,
	although
there
was
now
agreement on
the
total
number
of
pre-school service
days,
	there
still
was no agreement on
the
total
number and
distribution of
workdays. 	At
that point, 	the
District
withdrew
the
offer
and
reverted to
its
182 workday/2
pre-
school
service
day
position.
The
parties
discussed the calendar
at
one more
negotiating session, 	on
May
26, 	1977,
	but
could not reach agreement. 	The
parties
met again on June 29, 	1977
and
at
	that
time agreed to postpone any
further
bargaining
until
the
State
Legislature passed and the Governor signed the school appropriations
bill.
On
August 23, 	1977, 	the
District notified the teachers
	that there would be
two pre-school service days, 	on September 13 and 14, 	1977.
	On
August 29, 	1977, 	the
School Board formally adopted a calendar establishing the total
number
of
vJorking
days
	at
182 "unless and
until
modified by a collective bargaining agreement
between the District and the PVFA." 	This calendar, 	the one currently in operation,
reflects 	the two pre-school service days.
-6-

Throughout the District's several negotiating sessions with the PVFA over
the school calendar, and in its brief submitted in this case, the District
never waivers from its position on the negotiability of school calendar items.
This position is summarized in a report entitled 'Meet and Negotiate" issued
by the District on April 26, 1977:
Only the number of days that a teacher is required
to render service and the number of hours per day
that the teacher is required to render service are
negotiable. All other aspects of the calendar which
have a direct impact upon students and parents in
the community is a nonnegotiable item.
The PVFA, on the other hand, maintains that all aspects of the school calendar
that relate to teachers are negotiable. These include the start and end dates of
the year, the start and end times of the workday, and the number and scheduling of
conference days, pre-school service days, holidays, vacations, Back-to-School Night
and Open House.
The parties had 13 negotiating sessions to discuss their contract proposals;
the school calendar was discussed at six or seven of these meetings. Each side
fully presented its views on the calendar, bargaining back and forth over several
proposals and counter-proposals. This bargaining continued until August 29, 1977,
when the District officially adopted a calendar for the 1977-78 school year.
The PVFA stipulated that no action taken by the District at the negotiating
table constituted in itself a failure to negotiate in good faith. Thus, the
dispute between the parties involves the question of whether the various aspects of a
school calendar are within the scope of bargaining under the EERA and if so, whether
the District's unilateral action with respect to the school calendar constitutes an
unfair practice.
CONCLUSIONS OF LAW
Scope of Representation Under Section 3543.2
"School calendar" is an umbrella term for the schedule that a school district
follows in a particular year. It usually refers to a document which includes
-7-
Throughout
the
District's
several negotiating
sessions with
the
PVFA
over
the
school
calendar,
	and
in
its
brief
submitted
in
this
	case, 	the
District
never waivers
	from
its
position
on
the
negotiability
of
school
calendar
items.
This
position
is
	srnniarized
in
a
report
entitled
''Meet and
Negotiate"
issued
by
the
District
on
April
26, 	1977:
Only
the
number
of
days
	that
a
	teacher
is
required
to
render
service
and
the
number
of
hours
per
day
that
the teacher
is
required to
render
service are
negotiable. 	All other
aspects
of
the calendar
which
have
a
direct
impact
upon
students
and
parents
in
the
corrmunity
is
a
nonnegotiable item.
The
PVFA,
	on
the
other
hand,
	maintains
	that
all
aspects
of
the school calendar
that
relate
to
teachers
	are negotiable.
	These
include the
start
and end
dates
	of
the year, 	the
start
and end times
	of
the
workday I and
the
number and
scheduling
of
conference
days,
	pre-school
service
days,
	holidays, vacations,
	Back-to-School Night
and Open House.
The
parties
had
13
negotiating
sessiorill
	to discuss
	their
contract proposals;
the school calendar
was
	discussed
at
six
or
seven
of
these
meetings . 	Each
side
fully
presented
its
views on
the calendar, bargaining
back
and
forth
over
several
proposals
and
crnmter-proposals
. 	Th.is
bargaining continued
until
August 29, 	1977,
when
the
District officially
adopted a
	calendar
for
	the
1977-78
school
year.
The
PVFA
stipulated that
no
action
taken by
the
District
at
the
negotiating
table constituted
in
itself
a
failure
	to negotiate
in
good
faith.
	Thus,
	the
dispute
between
the
parties
	involves the question
of
whether the various aspects of
a
school calendar are within the
scope
of
bargaining under the
EERA
and
if
so,
	whether
the
District's unilateral action with respect to the school calendar
constitutes
	an
unfair practice.
CONCLUSIONS OF IAW
Scope
of Representation Under Section 3543.2
"School calendar" is an umbrella tenn for the schedule that a school
district
follows 	in a particular year. 	It usually refers to a document which includes
-7-

some or all of the following information: the total number of days that
teachers are to render service; the duties to be performed on those days
(teaching, parent conferences, preparation) ; the distribution of those
days over the year; and the number and dates of holidays, vacations, and
special events such as Back-to-School Night, Open House and graduation.
Neither "school calendar" nor any of the several aspects that traditionally
comprise a school calendar is specifically mentioned in Section 3543.2 of the
EERA. That section provides:
The scope of representation shall be limited to
matters relating to wages, hours of employment,
and other terms and conditions of employment.
"Terms and conditions of employment" mean health
and welfare benefits as defined by Section 53200,
leave and transfer policies, safety conditions of
employment, class size, procedures to be used for
the evaluation of employees, organizational
security pursuant to Section 3546, and procedures
for processing grievances pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8.
It is important to note that the Legislature defined the phrase "terms and
conditions of employment" to include seven specific areas in addition to wages
and hours of employment. The Board noted in Fullerton Union High School District
Personnel and Guidance Association v. Fullerton Union High School District, EERB
Decision No. 28 (July 27, 1977) (remanded on other grounds), that in order for a
In San Diegueto Faculty Association v. San Diegueto Union High School District,
EERB Decision No. 22 (September 2, 1977), the Board held that:
Government Code Section 3543.2 creates two
obligatory classes and one optional class of
subjects: (1) a mandatory duty to negotiate
with an exclusive representative on certain
subjects; (2) a mandatory duty to consult
with an exclusive representative on certain
subjects; and (3) an option to consult or
not consult with any employee or employee
organization on remaining subjects .
The PVFA's position is that the school calendar and all its components
fall within category (1) .
-8-
some
or
all
of
the
following information:
	the
	total
number
of
days
	that
teachers
are
to render
service; 	the duties to
be perfonned on those days
(teaching,
	parent
conferences,
	preparation); 	the
distribution of
those
days over the year; 	and the
number and dates
of
holidays, vacations,
	and
special
events such as Back-to-School Night,
	Open
House and graduation.
Neither "school calendar"
nor
any
of
the several
aspects
	that
traditionally
comprise a school calendar
is
specifically
mentioned
in
Section 3543.2
of
the
EERA.
3 That
section
provides:
The
scope
of
representation
shall
be
limited
to
matters
relating
to
wages, hours
of
employment,
and
other
tenns and conditions
of
employment.
"Tenns and conditions
of
employment"
mean
health
and welfare
benefits
as defined by Section 53200,
leave and
transfer policies, 	safety
conditions
of
employment,
	class
size,
	procedures to be used
for
the evaluation
of
employees,
	organizational
security
pursuant to Section 3546, 	and procedures
for
processing grievances pursuant to Sections
3548.5, 	3548.6, 	3548.7, 	and 3548.8.
It
is
important
to note
that
the Legislature
defined the phrase "terms and
conditions
of
employment" to include seven
specific
areas
	in
addition to wages
and hours
of
employment. 	The &lard noted
in
Fullerton
Union High School
District
Personnel and Guidance Association v.
	Fullerton
Union High School
District,
	EERB
Decision
No. 	28
	(July 27, 	1977) 	(remanded on
other
gro1.mds),
	that in
order
for
a
3m San Die
	·to
Facul 	Association v. 	San Dieguito Union High School
District,
EERB
Decision
No.
	22 	September 2, 	1977 	, the &lard held that:
Government Code
Section 3543.2 creates two
obligatory classes and one optional class ofsubjects: 	(1) 	a mandatory duty to negotiate
with an exclusive representative on
certainsubjects; 	(2) 	a mandatory duty to consult
with an exclusive representative on certain
subjects; and (3) 	an option to consult or
not consult with any employee or employee
organization on remaining subjects.
The
PVFA'
s position is that the school calendar and
all its
components
fall within category (1).
0	
-o-

subject matter to be negotiable "the EERA requires a relationship to an item
specifically enumerated in the definition of 'terms and conditions of employment'
or wages or hours." [Emphasis added. ] It is appropriate, therefore, for the PERB
to interpret the words "matters relating to" wages, hours of employment, and other
terms and conditions of employment.
While the PERB has not yet adopted a precise test defining the required
relationship between a proposal and an expressly enumerated subject within
the scope of bargaining, in the instant case "hours of employment" and 'wages"
are the only subjects which arguably relate to calendar items." Thus, the
issue to be determined is whether the necessary relationship exists between
hours of employment or wages and the particular components of the school
calendar sought to be negotiated.
"Hours of Employment" in the Private Sector
Historically, in the United States, employees' concerns with hours of
employment date back more than a century. At first, the struggle focused on
reducing the legal maximum hours for women, children, and later, men. Gradually,
legislation concerning hours of employment came to encompass not only maximum
workday and workweek, but also other aspects of hours of work, such as day of
rest, meal periods, rest periods, and night work."
The parties' briefs suggest no other emmerated subject to which the school
calendar relates.
It is not possible to say whether a "school calendar" is a matter relating
to hours of employment or wages without elaborating on the particular components of
a school calendar. The parties agree. At the hearing, they stipulated that the
issue was whether it is an unfair practice to refuse to meet and negotiate in good
faith on the matters set forth in the calendar, including but not limited to the
total number of days on which services are to be rendered by unit members, the number
and dates of conference, orientation, Back-to-School Night and Open House days,
holidays and vacation recess periods and specific dates or days of instruction. 	Thus
this decision concerns itself with the question of which, if any, components of
the school calendar are related to hours or wages and therefore are mandatory subjects
of bargaining.
The Growth of Labor Law in the United States, published by the United States
Department of Labor, 1967, p. 123. See also pp. 7-58 and 123-133.
-9-
subject matter
to
be
negotiable
"the
EEBA
requires
	a
relationship to
an
item
specifically
enumerated
in
the
definition
of
	'terms and
conditions
of
employment'
or
wages
or
hours."
	[Emphasis added.]
	It
is
appropriate, 	therefore,
	for 	the
PERE
to
interpret
the
words
"matters
relating
to"
wages, hours
of
employment,
	and other
terms and
conditions
of
employment.
While
the
PERE
has
not
yet
adopted a
precise
test
defining
the
required
relationship
between a
proposal
and an
expressly
enumerated
subject
within
the
scope
of
bargaining,
	in
the
instant
case
''hours
of
employrrent" and
'wages"
are the
only
subjects
which
arguably
relate
to calendar
items.
4 Thus,
	the
issue to
be determined
is
whether
the necessary
relationship exists
betw'een
hours
of
employrrent
or
wages and
the
particular
components
of
the school
calendar
sought
to
be
negotiated.
5
"F...ours
of
Employment"
in
the
Private
Sector
Historically,
	in
the
United
States,
	employees' 	concerns
with
hours
	of
employment
date
back more than a
century.
	At
first,
	the struggle
focused
on
reducing the
legal
maximum
hours
for
wanen,
	children,
	and
later,
men.
	Gradually,
legislation
concerning hours
of
employment came
to
encompass
not only
rna.ximum
'wOrkday and workweek,
	but also other aspects
of
hours
of
work, 	such
as
	clay
of
rest,	
IIEal
periods,
	rest
periods,
	and
night
work. 6
~e
parties' 	briefs
suggest no
other
enumerated
subject to which
the
school
calendar
relates.
5
rt
is
not possible to say whet.l-ier a "school calendar"
is
a
matter
relating
to hours
of
employment
or
wages without elaborating
on the
particular
components
of
a school calendar. 	The
parties
agree. 	At
the hearing, 	they
stipulated that
the
issue
was whether
it
is
an tm..fair
practice to refuse to meet and
negotiate in
good
faith
on the matters
set forth in
the calendar, 	including but not limited to
	the
total
nunber
of
days on
whic...11
services are to be rendered by
unit
members, 	the nunber
and dates of conference,
	orientation,
	Back-to-School Night and Open House days,
holidays and vacation recess periods and
specific dates or
days
of instruction.
	Thus,
this decision concerns
itself
with the question of
which,
	if
any, 	components
of
the school calendar are related to hours or wages and therefore are mandatory subjects
of bargaining.
6Toe Growth of Labor Law in the United States, 	published by the United States
Department of Labor, 	1967, p. 	123. 	See also pp. 	7-58 and 123-133.
-9-
4

The EERA's inclusion of "hours of employment" within the scope of
representation parallels the National Labor Relations Act's (hereinafter "NLRA")
use of "hours" as a mandatory subject of bargaining. Both the California
Supreme Court and the EERB have held that it is appropriate to use National
Labor Relations Board (hereinafter "NLRB") decisions as guidance in interpreting
California labor relations statutes having language similar to the NLRA. See
Firefighters Union v. City of Vallejo, 12 Cal. 3d 608, 87 LRRM 2453 (1974) and
Sweetwater Union High School District, EERB Decision No. 4 (November 23, 1976) .
With the passage of the NLRA in 1935, it became an unfair labor practice
for an employer "to refuse to bargain collectively with representatives of his
employees. . ." When Congress amended the NLRA in 1947, the obligation to
bargain was defined more specifically to reflect the NLRB's own decisions during
the early years of the NLRA. Section 8(d) of the NLRA now requires the employer
and the employee representative "to meet at reasonable times, and confer in good
faith with respect to wages, hours, and other terms and conditions of employment.
"Hours", according to NLRB decisions, means, at minimum, the total number of
hours in a day and the total number of days in a week that an employee is required
to work. Furthermore, the distribution of hours that employees work in a day
(work shift) also has been held to be a mandatory subject of bargaining under the
NLRA. In Meat Cutters v. Jewel Tea, 381 U.S. 676, 59 LRRM 2376 (1965), the United
States Supreme Court held that an employer must bargain about its employees'
proposal to work only during the period between 9:00 A.M. to 6:00 P.M."
7Section 8(a) (5) of the NLRA.
Massey Gin and Machine Works, Inc., 78 NLRB 189, 22 LRRM 1191 (1948); Timken
Roller Bearing Co. , 70 NLRB 500, 18 LRRM 1370 (1946) (enforcement denied on other
grounds), 161 F. 2d 949, 20 LRRM 2204 (6th Cir. 1947).
"See also, Camp & McInnes, 100 NLRB 524, 30 LRRM 1310 (1952), where without
consultation with or notice to the Union, the Employer reduced the lunch period of its
employees from one hour to 30 minutes, and changed the quitting time from 5:00 P.M. to
4:30 P.M., the NLRB finding that the Employer had violated Section 8(a) (5) of the NLRA.
The EERA' s inclusion of ''hours of employment" within the scope of
representation parallels the National Labor Relations Act's (hereinafter "NLRA")
use of ''hours" as a mandatory subject of bargaining. 	Both the California
Supreme Court and the EERB have held that it is appropriate to use National
Labor Relations Board (hereinafter "NLRB") 	decisions as guidance in interpreting
California labor relations statutes having language similar to the NLRA. 	See
Firefighters Union v. 	City of Vallejo, 	12 Cal. 	3d 608, 	87 LRRM 2453 	(1974) 	and
Sweetwater Union High School District, EERB Decis'ion No. 	4 	(November 23, 	1976).
With the passage of the NLRA in 1935, 	it became an tmfair labor practice
for an employer "to refuse to bargain collectively with representatives of his
employees. 	. 	. 117 'i,Jh.en Congress amended the NLRA in 1947, 	the obligation to
bargain was defined more specifically to reflect the NLRB's own decisions during
the early years of the NLRA. 	Section 8(d) 	of the NLRA now requires the employer
ai.1.d t.17.e employee representative "to meet at reasonable times, 	ai1d confer in good
faith with re:spect to wages, 	hours, 	and other tenns and conditions of employment. 	. . . II
"Hours", 	according to NLRB 	decisions, means, 	at minimum, 	the total rn..:n:nber of
hours in a day and the total rn.:n:nber of days in a week that an employee is required
to work. 8 FurtheTII10re, 	the distribution of hours that employees work in a day
(work shift) 	also has been held to be a mandatory subject of bargaining 1m.der the
NLRA. 	In Meat Cutters v. 	Jewel Tea, 	381 U.S. 	676, 	59 LRRM 2376 	(1965), 	the United
States Supreme Court held that an employer must bargain about its employees'
proposal to work only during the period between 9:00 A.M. 	to 6:00 P.M. 9
7section 8(a)(5) of the NLRA.
~ssey Gin and :Machine Works,· Inc. , 78 NLRB 189, 	22 LRRM 1191 (1948) ; Timken
Roller Bearing Co'., 	70 NLRB 500, 	18 LRRM 1370 	(1946) (enforcement denied on other
grotmds), 161 F. 	2d 949, 	20 LRRM 2204 	(6th Cir. 	1947).
9see also, 	Camp & Mcinnes, 	100 NLRB 524, 	30 LRRM 1310 (1952), where without
consultation with or notice to the Union, 	the Employer reduced the ltmch period of its
employees from one hour to 30 minutes, 	and changed the quitting time from 5:00 P.M. 	to
4: 30 P .M., 	the NLRB finding that the Employer had violated Section 8(a) (5) 	of the NLRA.
-10-	-10-
8

The distribution of days in a week that employees are required to work is
also a mandatory bargaining subject under the NLRA. In Long Lake Lumber, 160 NLRB
1475, 63 LRRM 1160 (1966), the NLRB found a violation of the duty to bargain when
an employer unilaterally changed its employees' workdays from Monday through
Friday to Tuesday through Saturday.
The NLRB recently held that an employer that operates a college violated
the NLRA when,
unilaterally, and without bargaining with union, it
changed its past practice of conferring with faculty
employees before publishing class schedule for fall
term.
[Njo merit is found in contention that class schedules,
without more, have no effect on terms and conditions of
employment since 	. class schedules are encompassed
within term "hours" under Section 8(d) of LRMA.
[Emphasis added. ]
Kendall College, 95 LRRM 1094, 1095 (1977) .
Thus, under the NLRA, "hours" has been held to mean the total number of
hours in a day and days in a week that employees are required to work, the dis-
tribution of those hours and days, and teachers' class schedules. Any addition,
reduction, or rearrangement of working hours or days by an employer is a mandatory
subject of bargaining.
"Hours of Employment" in the Public Sector
A. 	California
It is not only in the private sector that the subject of "hours" has received
an expanded definition. The Meyers-Milias-Brown Act (MBA) , which applies to all
local public employees in California, provides for a scope of representation
"including, but not limited to, wages, hours, and other terms and conditions of
employment. . .".1
10 Gov. Code Sec. 3504.
-11-
The
distribution
of
days
in
a week
that
employees
are
required to
work
is
also
a mandatory
bargaining
subject
t.mder
the
NLRA.
	In
Long Lake Lumber, 	160
NLRB
1475, 	63
LRRM
1160 	(1966),
	the
NLRB
fot.md a
violation of
the
duty
to bargain
when
an
employer
t.milaterally
changed
its
employees' workdays 	from 11onday
through
Friday
to
Tuesday
through Saturday.
The
NLRB
recently
held
that
an
employer
that
operates
a
	college
violated
the
NLRA
when,
t.milaterally,
	and
without bargaining with
t.mion,
	it
changed
its
past practice
of
conferring with
faculty
employees
before publishing
class
	schedule
for
fall
tenn.
[N]o
merit
is
fot.md
in
contention
that
class
schedules,
without
more, have no
effect
on
tenns
and
conditions
of
employment
since
	...
	class
schedules
are
encompassed
within tenn
"hours"
t.mder
Section
8(d)
	of
LRMA.
[Emphasis
added.]
Kendall College,
	95
LRRM
1094, 	1095 	(1977).
Thus, t.mder
the
NLFA,
	"hours" has
been
held to
rnean
the
total
rn.llJlber
of
hours
	in
a day and days
	in
a week
that
employees
are required to
work,
	the dis-
tribution of
those hours
and days, 	and
teachers' 	class
	schedules.
	Any
addition,
reduction,
	or
rearrangement
of
working
hours
or
days
by an
employer
is
a mandatory
subject of
bargaining.
"Hours
of
Employment"
in
the Public Sector
A.
	California
It
is
not
only
in
the private sector that
the subject of
"hours" has received
an expanded
definition.
	The Meyers-Milias-Brown Act
	(MMBA),
which
applies 	to
all
local public employees,in
California, provides for
a scope
of representation
"including, but not limited to,
wages, hours, 	and
other tenns and
conditions of
employment. 0
10Gov. 	Code Sec. 	3504.
-11-

The California Supreme Court, in Firefighters Union v. City of Vallejo,
supra, held that the MBA's "hours" provision applies to a Schedule of Hours
proposed by firefighter employees. The Court stated:
The issue of Schedule of Hours by which the union
proposed a maximum of 40 hours per week for fire-
fighters on 8-hour shifts and 56 hours per week
for firefighters on 24-hour shifts is clearly
negotiable . 	The Vallejo charter provides
explicitly that city employees shall have the
right to bargain on matters of wages, hours and
working conditions; furthermore, working hours
and workdays have been held to be bargainable
under the National Labor Relations Act
[Wje conclude that Schedule of Hours is a
negotiable issue. [Emphasis in original. ]
Recently, in Huntington Beach Police Assn. v. Huntington Beach, 58 Cal. App. 3d
492, 92 LRRM 2996 (1976), the District Court of Appeal held that under the MBA, not
only are total hours in the workday or workweek negotiable, but also how and when
those hours are distributed. The contract at issue in Huntington Beach provided
for a 4-day, 10 hour per day workweek. The employer unilaterally changed to a 5-day,
8 hour per day schedule. The court held that even though the total hours in the
week remained the same, the employer had nevertheless committed an unfair practice
by not bargaining with the union about the scheduling change. See also, Dublin
Professional Firefighters, Local 1885 v. Valley Community Services Dist. , 45 Cal. App.
3d 116, 119 (1975).
B. Other States
Employment relations boards or courts in no less than 17 states have issued
decisions on the negotiability of either the entire calendar or one or more
of its parts. Each state ultimately rests its decision on the interpretation of
its own statute; however, there is a common theme running through most of these
decisions--the linking of the school calendar to "hours of employment."
The PERB has made use of decisions from other states where pertinent. See
Sweetwater, supra, and New Haven Unified School District, EERB Decision No. 14,
(March 22, 1977) .
-12-
The
California
Supreme
Court,
	in
Firefighters
Union
v. 	City
of
Vallejo,
supra,
	held
that
the
MMBA'
s
	''hours"
provision applies to
a Schedule
of
Hours
proposed by
firefighter
employees.
	Th.e
Court
stated:
The
issue
of
Schedule
of
Hours by which
the
union
proposed a maximum
of
40
hours
per
week
for
fire-
fighters
on
8-hour
shifts
and
56
hours
per
week
for
firefighters
on 24-hour
shifts
is
clearly
negotiable
	. 	. 	. . 	The
Vallejo
charter
provides
explicitly that city
employees
shall
have
the
right
to bargain
on
matters
of
wages ,
hours
and
working
conditions
;
furtherrrore,
	working hours
and workdays 	have been
held to
be bargainable
under
the National
Labor
Relations
Act
	. 	.
[W]e
conclude
that
Schedule
of
Hours
is
a
negotiable issue.
	[Emphasis
in
original.
]
Recently,
	in
Huntington Beach
Police
Assn.
	v.
	Huntington Beach, 	58
Cal.
	App. 	3d
492, 92
LRRM
2996 	(1976),
	the
District
Court
of
Appeal
held
that
under
the
MMBA,
not
only
are
total
hours
in
the
workday
or
workweek
negotiable, but also
hew
and
when
those hours
are distributed.
	Th.e
contract
at
issue
in
Huntington Beach
provided
for
a 4-day, 	10
hour
per
day workweek. 	The employer
unilaterally
changed
to
a 5-day,
8
hour
per
day
schedule.
	Th.e
court held
that
even though
the
total
hours
	in
the
week remained
the
same,
	the
employer
had
nevertheless
corrmitted
an
unfair practice
by
not
bargaining with the
union about
the scheduling
change. 	See
also,
	Dublin
Professional
Firefighters,
	Local 1885
v. Valley
Corrmmitv
Services
Dist.,
	45 Cal. App.
3d 116, 119 	(1975).
B.
	Other
States
Employment
relations
boards
or
courts
	in
no
less
	than 17
states
have
	issued
decisions
on the
negotiability of either
the
entire
calendar
or
one
or
ITDre
of
its
parts
.
11
Each
state ultimately rests
its
decision
on
the
interpretation of
its
own
statute;
	however,
	there
is
a cornron theme running through
ITDSt
of these
decisions--the linking of the school calendar to ''hours
of
employment. 11
1
~e
PERB
has made use of decisions from other states
where pertinent. 	See
Sweetwater, 	sup)a, 	and New Haven Unified School District,
	EERB
Decision No. 	14,
(March 22, 	1977 	.
-12-

Most states agree that when the collective bargaining law includes "hours"
as a mandatory subject, then either the entire school calendar or one or more of
its parts is sufficiently related to "hours" to render it negotiable. Two states
(New Jersey and Oregon) find that the calendar is not a mandatory subject of
bargaining 	while two other states (Pennsylvania and North Dakota) have left
undetermined the status of the negotiability of the school calendar.
The New Jersey case, Burlington County College Faculty Assn. v. Board of
Trustees, 311 A. 2d 733 (1973), involves a college calendar and is therefore dis-
tinguishable from the instant case. The court relied primarily on the difference
between a college calendar and a public school calendar in finding the college
calendar not to be a mandatory subject of bargaining. But see Byram Board of
Education v. Byram Education Assn. , 96 LRRM 3059 (1977) .
In Oregon, the employee organization sought to bargain with the school board
on some 92 separate items, including the school calendar, which it contended were
mandatory subjects of bargaining under Oregon's Public Employee Collective Bargaining
Law. The Oregon Employment Relations Board found that the school calendar was not
a mandatory subject of bargaining. This decision was affirmed by the Oregon Court of
Appeal. Springfield Education Association v. Springfield School District, No. 19,
547 P. 2d 647, 2 PBC 120, 415 (1976) .
Section 701 of the Pennsylvania Public Employee Relations Act states that
employer and employee representatives shall meet and confer with respect to wages,
hours and other terms and conditions of employment." However, Section 702 provides
that "employees shall not be required to bargain over matters of inherent managerial
policy . 	.." The Pennsylvania Supreme Court held that there is overlap in the two
sections, and that the issue is not whether a bargaining proposal falls into one
section or the other, but whether a matter is of "fundamental concern to the employees'
interest in wages, hours, and other terms and conditions of employment." PLRB v. State
College Area School District, 337 A. 2d 262, 90 LRRM 2081 (1975) . If so, it is
negotiable. The court remanded the case to determine whether the items at issue,
including the school calendar, were of such fundamental concern. The case was not
pursued by the local Pennsylvania State Education Association or the Pennsylvania
Labor Relations Board (letter to Barbara Weitzman Ravitz, PERB Board Agent, from
James F. Wildeman, Executive Director, Pennsylvania Labor Relations Board,
October 12, 1977) .
North Dakota's statute provides for parties to meet and negotiate "with respect
to terms and conditions of employment." The Supreme Court of North Dakota stated that
it was unable to rule as a matter of law on the negotiability of a proposal entitled
"the schedule for work year" because that description was too brief and needed further
clarification. Fargo Education Assn. v. Paulsen, 92 LRRM 2492 (1976) .
-13-
Most states agree that when the collective bargaining la:w includes 	''hours"
as a mandatory subject, 	then either the entire school calendar or one or more of
its parts is sufficiently related to ''hours" to render it negotiable. 	Two states
(New Jersey and Oregon) 	find that the calendar is not a mandatory subject of
bargaining 12 while two other states 	(Pennsylvania and North Dakota) have left
tmdetermined the status of the negotiability of the school calendar .13
12Toe New Jersey case, 	Burlington Cotmty College Faculty Assn. 	v. 	Board of
Trustees, 	311 A. 	2d 733 	(1973), 	involves a college calendar and is 	therefore dis-
tinguishable from the instant case. 	The court relied primarily on the difference
between a college calendar and a public school calendar in finding the college
calendar not to be a mandatory subject of bargaining. 	But see Byram Board of
Education v. 	Byram Education Assn. , 96 LRRM 3059 	(1977) .
In Oregon, 	the employee organization sought to bargain with the school board
on some 92 separate items, 	including the school calendar, which it contended were
mandatory subjects of bargaining tmder Oregon's Public Employee Collective Bargaining
Law. 	The Oregon Employment Relations Board fotmd that the school calendar was not
a mandatory subject of bargaining. 	This decision was affinned by the Oregon Court of
Appeal. 	Springfield Education Association v. 	Springfield School District, 	No. 	19,
547 P. 	2d 647, 2 PBC Vi20, 	415 	(1976).
13section 701 of the Pennsylvania Public Employee Relations Act states that
employer and employee representatives shall meet and confer 'with respect to wages,
hours and other tenns and conditions of employment." 	However, 	Section 702 provides
that "employees shall not be required to bargain over matters of inherent IIE.nagerial
policy 	. 	. 	. . 11
The Pennsylvania Supreme Court held that there is overlap in the two
sections, 	and that the issue is not whether a bargaining proposal falls 	into one
section or the other, but whether a matter is of "ftmdamental concern to 	the employees'
interest in wages, hours, 	and other tenns and conditions of employment." 	PLRB v. 	State
College Area 	School District, 	337 A. 	2d 262, 	90 LRRM 2081 	(1975). 	If so, 	it is
negotiable. 	The court remanded the case to determine whether the items at issue,
including the school calendar, were of such fundamental concern. 	The case was not
pursued by the local Pennsylvania State Education Association or the Pennsylvania
Labor Relations Board (letter to Barbara Weitzman Ravitz, PERB Board Agent, 	from
James F. Wildeman, Executive Director, Pennsylvania Labor Relations Board,
October 12, 	1977).
North Dakota's statute provides for parties to meet and negotiate 'with respect
to terms and conditions of employment." 	The Supreme Court of North Dakota stated that
it was tmable to rule as a matter of la:w on the negotiability of a proposal entitled
"the schedule for work year" because that description was too brief and needed further
clarification. 	F~go Education Assn. 	v. 	Paulsen, 	92 LRRM 2492 	(1976).
-13-

States which have found the school calendar as it relates to teachers to
be negotiable, either in whole or in part, include: Washington, Edmonds Education
Association v. Edmonds School District, Case No. 194-U-76-13 (PERC 1977), 1 CCH
Public Employee Bargaining Reporter 4606 (hereinafter cited as "CCH PEBR") ,
Washington Public Employment Relations Commission decision that school calendar
constitutes hours of employment) ; Wisconsin, City of Beloit v. WERC, 242 N.W. 2d 231,
92 LRRM 3318 (1976) and Board of Education v. WERC, 191 N.W. 2d 242, 78 LRRM 3030 (1971)
(Wisconsin Supreme Court decision affirming Wisconsin Employment Relations
Commission's ruling that all aspects of the school calendar are negotiable) ; Indiana,
Northern Community Schools of Tipton County, 1 IPER 38, 1 CCH PEBR 4248 (1975) ,
(Indiana EERB determination that "hours" means "[the number of hours the school
employee is going to work and the periods of time that work will be performed;
including starting time, ending time, and the time out from work when the school
employee is completely free from any assignment. ") ; Iowa, Sergeant Bluff-Lyton
Education Association, 1 CCH PEBR 4272 (1975), (Iowa PERB ruling that "hours" extends
not only to the total number of hours worked, but also to starting and quitting
time as well) ; Florida, Escambia Education Association, 2 FPER 92 (1976), aff'd
Escambia County School Board v. Florida PERC, 3 FPER 270, 1 CCH PEBR 4199 (1977),
(Florida Court of Appeal affirms Florida PERC decision that school calendar is proper
subject of bargaining) ; Michigan, Westwood Community Schools, 7 MERC Lab. Op. 313
(1972), (start and end dates negotiable); New Jersey, Byram Board of Education v.
Bryam Education Association, 96 LRRM 3059 (1977), (start and end time of workday
negotiable) ; New York, City School District of the City of Oswego v. Helsby, 346
N. Y.S. 2d 27, 2 PBC 120, 082 (1973), (total number of workdays negotiable) ;
Massachusetts, Medford School Committee and Medford Public Schools Custodians Assn.
1 MLC 1250 (1975); Nebraska, Seward Education Assn. v. School District of Seward,
1 CCH PEBR 4400 (1971) ; Norfolk Education Assn. , 1 CCH PEBR 4400 (1971) and
Alaska, Kenai School District v. Ed. Assn. . 97 LRRM 2153 (1977) .
-14-
to
	States
which have fm.md
the
school
calendar
as
	it
relates
	to
teachers
be
negotiable,
	either in
whole
or
in
part,
	include:
	Washington, Edrronds
Education
Association
v.
	Edrronds School
District,
	Case
No.
	194-U-76-13
	(PERC
1977), 	1
CCH
Employee
Bargaining
Reporter
4606
	(hereinafter
cited
as
"CCH
PEBR"),
	Public
(Washington
Public
Employment
Relations
Comnission
decision
that
school
calendar
of
employment); Wisconsin,
	City
of
Beloit
v.
	WERC,
	242
N.W.
	2d 231,
	constitutes
hours 
3030	92
LRRM
3318 	(1976) 	and Board
of
Education
v.
WERC,
	191
N.W.
	2d 242, 	78
LRRM	
(1971),
(Wisconsin Supreme
Court
decision affirming
Wisconsin Employment
Relations
Corrrnission' s
ruling that
all
aspects
of
the
school
calendar
are negotiable)
;
	Indiana,
Com:m.mity
Schools
of
Tipton
County, 	1 IPER 38, 1
CCH
PEER
4248 (1975) ,
	Northern
(Indiana
EERB
detenn:ination
that
"hours"
means
"[t]he
number
of
hours
	the
school
employee
is
going
to
work and
the periods
of
time
that
work
will
be performed;
including
starting
time, 	ending time,
	and
the
time
out
from work when
the
school
employee
is
completely
free
from any
assignment.");
	Iowa,
	Sergeant Bluff-Lyton
Education Association,
	1
CCH
PEBR
4272 	(1975), 	(Iowa
PERB
ruling that
''hours"
extends
not
only
to
	the
	total
number
of
hours
worked,
	but also to
starting
and
quitting
as
well); 	Florida,
	Escambia Education
Association,
	2
FPER
92 (1976),
	aff'
d
	time
Counry School Board
v. 	Florida
PERC,
	3
FPER
270, 1
CCH
PEER
4199 	(1977) ,	Escambia
(Florida
Court
of
Appeal
affinns Florida
PERC
decision
that
school
calendar
is
proper
subject
of
bargaining);
	Michigan, Westwood Conrrn.mity Schools, 	7
MERC
Lab. 	Op. 	313
v.
	(1972),
	(start
and end
dates negotiable);
	New
Jersey,
	Byram Board
of
Education
Bryam Education Association,
	96
LRRM
3059 	(1977),
	(start
and end time
of
workday
negotiable);
	New
York,
	City
School
District of
the Ciry
of
Oswego
v. 	Helsby, 	346
N.Y.S. 	2d 27, 	2
PBC
1[20, 082 (1973),
	(total
number
of
workdays
negotiable);
J:1assachusetts, Medford School Comnittee and Medford Public Schools Custodians Assn.
11'1LC 1250 (1975); 	Nebraska, 	Seward Education Assn. 	v. 	School
District of
Seward,
1
CCH
PEER 4400 	(1971) ; Norfolk Education Assn. , 1
CCH
PEER 4400 (1971) 	and
Alaska, Kenai School District v. 	Ed. Assn., 	97
LR.RM
2153 (1977).
-14-

Further illumination of the meaning of "hours" in relation to the school
calendar comes from the Connecticut Supreme Court. That court held, in West
Hartford Education Assn. v. DeCourcy, 295 A. 2d 526, 80 LRRM 2422 (1972), that
the school calendar (defined as the number and distribution of days during which
the schools are in session or teachers may be assigned duties) is not a
mandatory subject of bargaining. However, Connecticut's Teacher Negotiations
Act states that there is a duty to negotiate with respect to salaries and other
conditions of employment . . .." There is no mention of "hours". The court
reasoned that although the length of the school day and the school calendar "are
directly related to 'hours of employment' , it is our conclusion that these matters
were specifically exempted from the Act with great deliberation." 80 LRRM at 2428.
The history of the negotiability of the school calendar has followed an
interesting course in Nevada. Nevada's statute governing employment relations
in the public schools provided for negotiations "concerning wages, hours and conditions
of employment." The Nevada Supreme Court affirmed the Employee-Management Relations
Board's decision that the school calendar, defined as the length and structure of
the teacher work year, was negotiable. The court found that "any item which is
significantly related to wages, hours, and working conditions is negotiable. . .."
Clark County School District v. Local Board, 88 LRRM 2774, 2776 (1974) .
Following this decision, in 1975, the Nevada Legislature amended its public
employee labor relations statute by limiting the scope of bargaining to twenty
specific areas. These areas include the following "calendar" items: the total
hours of work required of an employee on each workday or workweek; the total
number of days' work required of an employee in a work year; vacation leaves;
holidays; and teacher preparation time. (Nevada Revised Statutes, Section 288.150(2))
It is clear, then, from a study of the interpretations given to "hours of
employment" by the NLRA, federal courts, California state courts and other
jurisdictions that "hours" encompasses more than the total number of hours in the
workday or workweek. "Hours" refers to an employee's schedule--between which hours
Further
illunination of
the
meaning
of
"hours"
in
relation
to the school
calendar
comes from
the
Connecticut
Supreme
Court. 	That
court held,
	in
West
Hartford
Education
Assn.
	v.
	DeCourcy, 	295
A.
	2d 526, 	80
LRRM
2422 (1972),
	that
the
school
calendar (defined as
	the
nunber and
distribution
of
days
during
which
the
schools
are
in
session
or
teachers
may
be assigned
duties)
	is
not
a
mandatory
subject of
bargaining.
	However,
	Connecticut's
Teacher
Negotiations
Act
states that
there
is
a
duty
to negotiate with
respect
to
salaries
and
other
conditions
of
employment
	....
" 	There
is
no mention
of
''hours".
	The
court
reasoned
that
although the
length
of
the
school
day and
the
school
calendar
"are
directly related
to 	'hours
of
employment',
	it
is
our conclusion
that
these matters
were
specifically
exempted from
the
Act
with
great deliberation."
	80
LRRM
at
2428.
The
history of
the
negotiability of
the
school
calendar has followed
an
interesting
course
in
Nevada. 	Nevada's
statute
governing employment
relations
in
the public
schools provided
for
negotiations
"concerning wages,
hours
	and conditions
of
employment." 	The Nevada Supreme Court
affinned the
Employee-Management
Relations
Board's decision
that
the
school
calendar, 	defined
as
	the length
and
structure
of
the teacher
work
year,
was
negotiable.
	The
court
fotmd
that
"any
item which
is
significantly related
to
wages,
	hours,
	and working
conditions
is
negotiable.
II
Clark
Cotmty School
District
v.
	Local Board, 	88
LRRM
2774, 	2776 	(1974).
Following
this
decision,
	in
1975,
	the
Nevada
Legislature
amended
its
	public
employee
labor relations statute
by
limiting
the
scope
of
barga:ining
to
	t:wenty
specific areas.
	These
areas include the following "calendar" items:
	the
	total
hours
of
work
required
of
an employee on each workday
or
workweek.;
	the
total
nunber
of
days' work
required of
an employee
in
a work year; vacation leaves;
holidays; 	and teacher preparation time. 	(Nevada Revised
Statutes, 	Section
288 .150 (2) . )
It
is clear, 	then, 	from a study of the interpretations given to ''hours
of
employment" by the
NLRA,
	federal courts, 	California state courts and
other
jurisdictions that ''hours" encompasses
m:::,re
than the total nunber of hours
	in
the
workday or workweek. 	''Hours" refers to an employee's schedule--between which hours
1 c; -

and on which days he or she works. This is especially true in a school setting,
where a nine or ten month year is the rule, unlike most other businesses which
usually operate on a year-round basis .
Thus, it is apparent that a school calendar is a matter necessarily and
directly related to hours of employment. However, the more precise issue
which must be determined is which items of the school calendar are so closely
related to hours of employment that they fall within the ambit of Section 3543.2
of the EERA and are therefore mandatory subjects of bargaining.
The Palos Verdes School Calendar
A. Total Number of Workdays and Their Distribution
The District concedes that the total number of workdays in the year is a
mandatory subject of bargaining under the EERA. This calendar item is a matter
closely related to hours of employment and wages. Other states are in accord:
Indiana (Clarksville Community School Corporation, 1 IPER 38 (1975) ; New
York (City School District of the City of Oswego v. Helsby, supra) ; and Wisconsin
(City of Madison v. WERB, 155 N.W. 2d 78, 65 LRRM 2488, 2491 (1967)) .
The District vigorously contends in its brief, however, that the distribution
of workdays (that is, the start and end dates of the school year for teachers, dates
of vacation periods for teachers, and holidays) is a policy matter and "that the
elected school board officials are directly responsible for formulating policies
which affect the running of the school."
The District's argument is not convincing. The issue is not whether a particular
subject matter involves policy considerations. Indeed, salaries and leaves and
transfers are matters of policy and yet the EERA quite clearly states that 'wages"
and "leave and transfer policies" are negotiable. As one court noted, "[the key. . .is
how direct the impact of the negotiability of the distribution of workdays is on the
well-being of the individual teacher as opposed to its effect on the operation of the
school district as a whole." National Ed. Assn. vs. Board of Education, 512 P. 2d
-16-
and on which days
he
or
she
works .
	This
is
especially true
in
a
school
setting,
where a
nine
or ten
m::mth
year
is
	the
rule,
	1.m.like rros t
	other
businesses
'Which
usually
operate
on a year-r01.m.d
basis.
Th.us,
	it
is
apparent
that
a
school
calendar
is
a
matter
necessarily
and-
directly related
to
hours
of
employrrent. 	However,
	the
rrore
precise issue
which must be determined
is
which
items
of
the
school
calendar
are
so
closely
related
to
hours
of
employrrent
	that
they
fall
'within
the
ambit
of
Section
3543. 2
of
the
EERA
and
are therefore
mandatory
subjects
of
bargaining.
The
Palos
Verdes School Calendar
A.
	Total
Ntmiber
of
Workdays and
Their
Distribution
The
District
concedes
	that
the
	total
number
of
workdays
in
the
year
is
a
mmdatory
subject
of
bargaining
1.m.der
the
EERA.
	'Ihis calendar item
is
a
matter
closely
related
to
hours
of
employrrent and wages.
	Other
states
are
in
accord:
Indiana
	(Clarksville
Comnunity School
Corporation,
	1 IPER 38 	(1975) ;
New
York
	(City
School
District
of
the City
of
Oswego
v.
	Helsby,
	supra);
	and Wisconsin
(City
of
Madison
v.
	WERB,
	155
N.W.
	2d 78,
	65
LRRM
2488, 	2491
	(1967)).
The
District
vigorously
contends
in
its
brief,
however,
	that
the
distribution
of
workdays
	(that
is,
	the
start
and end
dates
of the
school
year
for teachers,
	dates
of
vacation periods
	for
teachers,
	and
holidays)
	is
	a
policy matter
and
"that
the
elected
school board
officials
are directly
responsible for
formulating
policies
which
affect
the
running
of
the school."
'The
District's
argument
is
not
convincing. 	The
issue
is
not
whether a
particular
subject matter involves policy considerations.
	Indeed,
	salaries
and
leaves
	and
transfers are matters of policy
and
yet the
EERA
quite clearly states that
"wages"
and
"leave
and
transfer policies" are negotiable. 	As one court noted,
	"[t]he
key
... is
how
direct the impact
of the negotiability of the distribution of
i;v0rkdays
	is
on
t..1-ie
well-being of the individual teacher as opposed to
its effect
on the operation of the
school district as a whole." 	National Ed. Assn. 	vs. 	Board of Education, 	512 P. 	2d
-16-

426, 84 LRRM 2223 (Kansas 1973) . (See also Fibreboard Corp. v. Labor Board, 379
U. S. 203, 57 LRRM 2609 (1964) .
It is found that the distribution of workdays is a matter so closely
related to hours of employment and has such a significant impact on the welfare
of the individual teacher that it is a mandatory subject of bargaining under the
EERA. This becomes especially clear when one considers the possible effect that
a finding of normegotiability could have on teachers' schedules. If school
district employers did not have to bargain about this item, then there is nothing
to prevent them from requiring employees to work the total number of days that
were agreed upon at any time during the year. See Medford School Committee
(Massachusetts) , supra, and West Hartford Education Assn. v. DeCourcy (Connecticut) ,
supra. As noted by the Michigan Employment Relations Commission in Westwood
Community Schools, 7 MERC Lab. Op. 313 (1972), "the rather substantial interest
which the school teachers have in planning their summer activities, e.g. , advanced
study, supplementary employment, travel and vacation, outweigh any claim of
interference with the right to manage the school district."
Other states finding start and end dates, vacations, and holidays for teachers
to be negotiable subjects include Nevada (Washoe County Teachers Assn. v. Washoe County
School District, 88 LRRM 2774 (1974) and by statute, Nevada Revised Statutes, Section
288. 150(2)) ; Wisconsin (City of Madison v. WERB, supra) ; and Nebraska (Norfolk
Education Assn. v. South District of Norfolk, Case No. 40, 430 GERR B-7 (1971)) .
B. Total Number of Hours and Their Distribution
The District concedes that the total number of hours in a day that a teacher
must work is negotiable. The District maintains, however, that when those hours will
begin and end (work shift) does not fall within the definition of the phrase "hours
of employment" and is therefore not a mandatory subject of bargaining under the EERA.
The charging party cites several cases where the distribution of hours has been
found to be within the ambit of "hours of employment" and therefore negotiable.
-17-
426, 	84 LRRM 2223 (Kansas 1973). 	(See also Fibreboard Corp. 	v. 	Labor Board_, 	379
U. 	S. 	203, 	57 LRRM 2609 	(1964).
It is found that the distribution of workdays is a matter so closely
related to hours of employment and has such a significant impact on the welfare
of the individual teacher that it is a mandatory subject of bargaining under the
EERA. 	Th.is becomes especially clear when one considers the possible effect that
a finding of nonnegotiability could have on teachers' 	schedules. 	If school
district employers did not have to bargain about this item, 	then there is nothing
to prevent them from requiring employees to work the total number of days 	that
were agreed upon at any time during the year. 	See Medford School Corrrnittee
(I:1assachusetts), 	supra, 	and West Hartford Education Assn. v. 	DeCourcy (Connecticut),
supra. 	As noted by the Michigan Employment Relations Corrrnission in Westwood
Corrmunity Schools, 	7 MERC Lab. 	Op. 	313 	(1972), 	"the rather substantial interest
which the school teachers have in planning their stmner activities, 	e.g., 	advanced
study, 	supplementary employment, 	travel and vacation, 	outweigh any claim of
interference with the right to manage the school district."
Other states finding start and end dates, vacations, 	and holidays for 	teachers
to be negotiable subjects include Nevada 	(Washoe County Teachers Assn. 	v. 	Washoe County
~chool District, 	88 LRRM 2774 (1974) 	and by statute, Nevada Revised Statutes, 	Section
288. 150 (2)) ; Wisconsin (City of Madison v. WERE, 	supra) ; and Nebraska (Norfolk
Education Assn. 	v. 	South District of Norfolk, Case No. 	40, 	430 GERR B-7 	(1971)).
B. 	Total Number of Hours and Their Distribution
The District concedes that the total number of hours in a day that a 	teacher
must work is negotiable. 	The District maintains, however, 	that when those hours will
begin and end (work shift) 	does not fall within the definition of the phrase ''hours
of employment" and is therefore not a mandatory subject of bargaining under the EERA.
The charging party cites several cases where the distribution of hours has been
found to be within the ambit of ''hours of employment" and therefore negotiable.
-17-

See Firefighters Union v. City of Vallejo, supra, Huntington Beach Police
Association, supra, and AFSME v. University of California (a California superior
court decision reported at 91 LRRM 2511 (1975)). The District counters that
"[t]hese public employers, however, are not charged with the same type of
responsibilities that public school employers are, i.e. , the education of children."
The District's distinction is not persuasive. The fact that students are
required to be in attendance at school during certain hours (see generally Education
Code Sections 46100-46192), does not preclude negotiations over the teachers'
work shift. Obviously, teachers are paid to teach and the teachers' presence at
school must coincide with those of their students. However, there are other
areas where meaningful negotiations over the teachers' work shift can occur. These
include the time a teacher is to report to school prior to class (see Title 5,
California Administrative Code, Section 5570), or remain at school after class, or in
those situations where a double session is required (see Education Code Section 46112) .
A similar conclusion was reached in Byram Board of Education v. Byram
Education Association, supra, where a New Jersey court found that a proposal by
the teachers that they be required to report to school no earlier than 20 minutes
prior to the start of the students' day and be permitted to leave no later than
five minutes after the end of the students' day was a mandatory subject of bargaining.
The court also gave judicial approval to the New Jersey PERC's reasoning that the
teachers' proposal related to the length of the teachers' workday and not to the
length of the students' school day. In a similar case, the Indiana EERB held that
the "starting and ending times of the teacher workday are mandatory subjects of
bargaining encompassed by the phrase 'hours' in [the Indiana statute]." Northern
a 14	Community Schools, supra.
"Other states have found that work shift of school employees to be negotiable.
These include Massachusetts (Medford School Committee, supra) and Iowa (Sergeant
Bluff-Lyton Education Association, supra) .
-18-
See
Firefighters
Union
v. 	City
of
Vallejo,
	supra,
	Huntington
Beach
Police
Association, 	supra,
	and
AFSME
v. 	University
of
California
	(a
California superior
court decision reported
at
91
LRRM
2511 	(1975)) . 	The
District
counters
	that
" [ t
]hese
public
employers, however,
	are not
charged
with the
same
type
of
responsibilities that
public
school
employers
are,
	i.e.,
	the
education
of
children."
The
District's
distinction
is
not
persuasive.
	The
fact that
students are
required to
be
in
attendance
at
school during
certain
hours
	(see
generally
Education
Code
Sections
46100-46192), 	does
not
preclude
negotiations
over the
teachers'
work
shift.
	Obviously,
	teachers
are paid to
teach
and
the teachers' presence
at
school
must
coincide with
those
of
their
students.
	However,
	there are
other
areas
where
meaningful
negotiations
over
the
teachers
' work
shift
can
occur.
	These
include the
time a
	teacher
is
	to report
	to
school
prior
to class
	(see
Title
5,
California
Administrative
Code,
	Section
5570),
	or
remain
at
school
after
	class,
	or
in
those
situations
where a double
session
is
	required 	(see
Education
Code
Section
46112).
A
similar
conclusion
was
reached
in
Byram Board
of
Education
v.
	Byram
Education Association, 	supra,
where a
New
Jersey court
found
that
a
proposal
by
the teachers
	that
they be required to report
to school
no
earlier
than
20 minutes
prior
to the
start
of
the students'
	day and be
permitted to leave
no
later
	than
five
minutes
after
the
end
of
the students'
	day was a mandatory
subject
of
bargaining.
The
court also
gave
judicial
approval to the
New
Jersey
PERC'
s
reasoning
	that
the
teachers' 	proposal
related
to the length of the teachers'
	workday and
not to the
length of the students'
	school day.
	In
a
similar case, 	the Indiana
EERB
held that
the
"starting
and ending times
of
the teacher
	"\iJOrkday
are
mandatory
subjects of
bargaining
encompassed by
the phrase 	'hours' 	in
	[
the Indiana
statute]."
	Northern
Comrmmity Schools, 	supra.
14
14
other states
have found
that
work
shift of school employees to be negotiable.
These include Massachusetts 	(Medford School Conmittee, 	supra) 	and Iowa 	(Sergeant
Bluff-Lyton Education Association, 	supra ..
-18-

Accordingly, it is found that the distribution of hours in the teachers'
workday is a subject matter closely related to and encompassed by the term
"hours of employment" in the EERA and is therefore a mandatory subject of
bargaining.
C. Extra Work Hours
Events such as Back-to-School Night and Open House require the teachers'
presence at school in the evening, making it necessary for them to work extra
hours beyond the regular work shift. Since these and other evening events
increase the total number of hours a teacher must work, they are clearly "matters
relating to . . 	. hours of employment."
The District must negotiate about the number of such events during the year,
the period of time teachers are required to be in attendance, and the particular
days (nights) on which they fall.
D. 	Duties on Workdays
The PVFA sought to bargain with the District about the number and distribution
of pre-school service, conference and pupil-free workdays.
The discussion of this aspect of the calendar proceeds on the assumption that
the total number of workdays is negotiable, and that non-teaching workdays, such as
those enumerated above, are included in that total.
Once the total number and distribution of workdays are agreed upon, then the
particular duty that a teacher performs on those days--either teaching, meeting
with parents, preparing materials, etc., cannot be said to be a matter so closely
related to hours of employment or wages to render it negotiable under the EERA. It
is no longer a matter of scheduling but of curriculum planning. Thus, it is found
-19-
Accordingly,
	it
is
folID.d
that
the
distribution of
hours
	in
the
teachers'
workday
is
a
subject matter closely
related
to
and
encompassed
by
the
tenn
''hours
of
employment"
in
the
EERA
and
is
	therefore
a mandatory
subject
of
bargaining.
C.
	Extra
Work Hours
Events such
as
Back-to-School Night
and Open House
require
the
	teachers'
presence
at
school
in
the
evening,
	making
it
necessary
for
	them
to
work
extra
hours
beyond
the regular
work
shift.
	Since
these
and
other
evening
events
increase the
total
rn..n:nber
of
hours
a
	teacher
Ilil.lSt
work,
	they
are
clearly
"matters
relating
to
	. 	. 	.
hours
of
employment."
The
District
must
negotiate
about
the
number
of
such
events during
	the
year,
the period
of
time
teachers
are required to
be
in
attendance,
	and
the
particular
days
	(nights)
	on which
they
fall.
D.
	Duties
on Workdays
The
PVFA
sought
to bargain with the
District
about
the
number and
distribution
of
pre-school
service,
	conference
and
pupil-free
workdays.
The
discussion
of this
aspect of
the calendar
proceeds on
the assumption
that
the
total
number
of
workdays
	is
negotiable,
	and
that
non-teaching
workdays, 	such as
those
enumerated above,
	are
included
in that total.
Once
	the
total
number and
distribution of
workdays
are
agreed
upon,
	then the
particular
duty
that
a
	teacher
performs on
those
days--either teaching, meeting
with parents, 	preparing materials, 	etc.
, cannot be said to be
a
matter so
	closely
related to hours
of
employment
or
wages
	to render
it
negotiable
lID.der
	the
EERA.
	It
is
no longer a
matter of
scheduling but of
curriculum planning. 	Thus,
	it
is
	fo1md
-19-

that neither the number of pre-school service, conference, and pupil-free workdays--nor
the dates on which they occur--are aspects of school calendar which fall within the
EERA's scope of representation.
Conclusion
In summary, it is found that the District must negotiate with the PVFA over the
total number of hours in the day and days in the year that teachers are to render
service; the distribution of those hours and days (i.e. which hours in the day and
which days in the year) , including the start and end dates of the school year and
vacation periods; and days that teachers are required to work extra hours beyond the
normal workday such as Back-to-School Night and Open House nights. The above are all
matters closely relating to hours of employment pursuant to Section 3543.2 of the EERA.
On the other hand, it is found that the particular duties that teachers are
to perform while they are. working are not matters closely relating to hours of
employment and are not within the EERA's scope of representation. Thus, the
number and distribution of pre-school service, conference, and pupil-free workdays
are not negotiable insofar as they are included in the total number and distribution
of workdays .
Respondent's Contentions
The District argues that many of these calendar items are matters of
inherent management prerogative. Section 3543.2 of the EERA provides that "all
matters not specifically enumerated are reserved to the public school employer and
may not be a subject of meeting and negotiating 	The District's argument in
this regard is not convincing. Since the school calendar items found herein to
be negotiable are closely related to hours of employment and wages, they are
"specifically enumerated" and are not within the employer's exclusive authority.
There was no evidence presented that these three types of non-teaching days
require a teacher to work longer hours or different hours than on a regular working
day. (See discussion under "C", Ante, at p. 19).
-20-
that
neither
the
Il1..IDDer
of
pre-school
service,
	conference,
	and
pupil-free
workdays--nor
the dates
on -which
they
occur--are aspects
of
school
calendar
which
fall
within
the
EERA
I 	f 	•s scope o
	representation.
15
Conclusion
In
surrrnary,
	it
is
found
that
the
District
must
negotiate with the
PVFA
over the
total
number
of
hours
in
the
day and days
in
the year
that
teachers
are
to
render
service;
	the
distribution of
those hours
and days
	(i.e.
	which
hours
	in
the
day and
which days
in
the
year),
	including the
start
and end
dates
of
the
school
year
and
vacation periods;
	and days
	that
teachers
	are required to
work
extra
hours
beyond
the
normal workday such
as
Back-to-School Night and Open House
nights.
	The
above
are
all
matters
closely
relating
to
hours
of
employment
pursuant
to
Section
3543.2
of
the
EERA.
On
the other
hand,
	it
is
found
that
the
particular
duties
	that
teachers are
to perfonn while they
are.
working
are not matters closely
relating
to hours
of
employment and
are not within the
EERA'
s scope
of
representation.
	Thus,
	the
number and
distribution of
pre-school
service,
	conference,
	and
pupil-free
workdays
are not negotiable insofar
as they
are
included
in
the
total
mmiber and
distribution
of
workdays .
Respondent' s Contentions
The
District
argues
	that
many
of
these calendar
items
are
matters
of
inherent
management
prerogative. 	Section
3543. 2
of the
EERA
provides
	that "all
matters not specifically
enu:nerated
are reserved to the public
school employer and
may
not
be a
subject of
meeting and
negotiating
	. 	.
	..
" 	The
District's
	argument
in
this
regard
is
not convincing. 	Since the school calendar items foi.md
herein to
be negotiable are closely related to
hours
of
employment and wages, 	they
are
"specifically
em.n:rerated" and are not within the employer's exclusive authority.
15Toere was no evidence presented that these three types of non-teaching days
require a teacher to work longer hours or different hours 	than on a regular working
day. 	(See discussion i.mder "C", Ante, at p. 19) .
-20-

Furthermore, the aspects of the school calendar found to be negotiable are
fundamental to the employment relationship. They are not matters of educational
policy, philosophy or curriculum on which the PVFA has only the right to consult.
(See Section 3543.2) Teachers have a strong interest in negotiating their work
schedules with their employer. They need to know what hours, days and nights they
will be required to work. These plans affect additional jobs, child care
arrangements, vacations and further education.
It is true, as the District argues, that other, non-certificated school
district employees are affected by the items of the school calendar. They too,
however, are entitled to negotiate their work schedules with their employer.
Oftentimes, what is negotiated by one group of employees affects the bargaining
process between the employer and another group of employees, whether it is a work
calendar or wages or a leave policy. This fact alone should not preclude
negotiations on a particular subject.
The District further argues that allowing teachers to negotiate their work
schedule as reflected in the school calendar would allow teachers more influence
in the political process than other appropriate constituent groups--parents,
employers of students, and religious leaders.
Under the EERA, however, the concerns of the community are not ignored. 	The
PVFA concedes in its brief that there are factors to consider in establishing
a calendar other than the desires of certificated employees. The EERA itself
contains detailed public notice procedures (Section 3547 (a) -(e)) . School district
employers and employee representatives must present their initial bargaining
proposals at a public meeting and negotiations may not begin until the public
has been afforded reasonable time to express itself regarding the proposals.
Having found certain aspects of the school calendar to be negotiable subjects
under the EERA, the next inquiry is whether the District failed or refused to
meet and negotiate in good faith with respect to these subjects.
-21-
Furthennore, 	the aspects of the school calendar found to be negotiable are
fundamental to the employment relationship. 	They are not matters of educational
policy, 	philosophy or curriculum on which the PVFA has only the right to consult.
(See Section 3543.2) 	Teachers have a strong interest in negotiating their work
schedules with their employer. 	They need to lm.ow what hours, 	days and nights they
will be required to work. 	These plans affect additional jobs, 	child care
arrangements, vacations and further education.
It is true, 	as the District argues, 	that other, non-certificated school
district employees are affected by the items of the school calendar. 	They too,
however, 	are entitled to negotiate their work schedules with their employer.
Oftentimes, what is negotiated by one group of employees affects the bargaining
process between the employer and another group of employees, whether it is a work
calendar or wages or a leave policy. 	This fact alone should not preclude
negotiations on a particular subject.
The District further argues that allowing teachers to negotiate their work
schedule as reflected in the school calendar would allow teachers more influence
in the political process than other appropriate constituent groups--parents,
employers of students, 	and religious leaders.
Under the EERA, however, 	the concerns of the corrrmmi ty are not ignored. 	The
PVFA concedes in its brief that there are factors 	to consider in establishing
a calendar other than the desires of certificated employees. 	The EERA itself
contains detailed public notice procedures 	(Section 3547(a)-(e)). 	School district
employers and employee representatives Tin.1St present their initial bargaining
proposals at a public meeting and negotiations may not begin until the public
has been afforded reasonable time to express itself regarding the proposals.
Having found certain aspects of the school calendar to be negotiable subjects
under the EERA, 	the next inquiry is whether the District failed or refused to
meet and negotiate in good faith with respect to these subjects.
-21-

Did the District Refuse or Fail to Meet and Negotiate in Good Faith with Respect
to the Subjects Determined Herein to be Mandatory Subjects of Bargaining?
The parties stipulated during the hearing that the issue to be determined
in this case is whether the unilateral adoption of a calendar by the
respondent, while negotiations were in progress, is an unfair practice in that
it constitutes a refusal to meet and negotiate in good faith on the matters set
forth in the calendar. This stipulation and the entire record in the case clearly
support the conclusion that no "bad faith" bargaining occurred during negotiations.
The charging party contends, however, that under NLRB v. Borg-Warner Corp.,
357 U.S. 342, 42 LRRM 2034 (1958) and particularly, NLRB v. Katz, 369 U.S. 736,
50 LRRM 2177 (1962), the respondent is guilty of an unfair practice by its
adoption of a calendar while the matter was under discussion. The Supreme Court
held in Katz that "the duty [to bargain collectively] . . . may be violated without
a general failure of subjective good faith; for there is no occasion to consider
the issue of good faith if a party has refused even to negotiate in fact about any
of the mandatory subjects. A refusal to negotiate in fact as to any subject which is
within [ the scope of representation] and about which the union seeks to negotiate,
violates [ the NLRA] though the employer has every desire to reach agreement with the
union upon an overall collective agreement and earnestly and in all good faith
bargains to this end." 50 LRRM at 2180.
Thus, argues the charging party, a violation of Section 3543.5(c) occurred when
the District unilaterally adopted a new calendar for 1977-78 on August 29, 1977.
The District defends its unilateral action on three grounds:
First, that there was no duty to meet and negotiate because the school
calendar is not a mandatory subject of bargaining and therefore there can be no
legal basis for an unfair practice. This decision disposes of this argument except
for the subject of the duties to be performed on workdays. With respect to the
actual duties to be performed by teachers during the workday, there is no
mandatory obligation to meet and negotiate on this subject and therefore no
-22-
Did
the
District
Refuse
or
Fail
to
Meet and Negotiate
in
Good
Faith with
Respect
to
	the Subjects
Determined Herein
to
be :Mandatory
Subjects,of
Bargaining?
The
parties stipulated
during
the hearing
that
the issue
	to
be determined
in
this
case
is
whether
the
tmilateral
adoption
of
a
calendar
by
the
respondent, while
negotiations
were
in
progress,
	is
an
lmfair practice
in
that
it
constitutes
a
refusal
	to
meet and
negotiate
in
good
faith
on
the
matters
	set
forth
in
the calendar.
	This
	stipulation
and
the
entire
record
in
the
case
	clearly
support
the
conclusion
that
no "bad
faith"
bargaining
occurred during
negotiations.
The charging
party
contends, however,
	that
lm.der
NLRB
v. 	Borg-Warner Corp. ,
357
U.S. 	342, 	42
LRRM
2034 (1958) 	and
particularly,
	NLRB
v.
	Katz,
	369
U.S. 	736,
50
LRRM
2177 	(1962),
	the
respondent
is
guilty of
an lm.fair
practice
by
its
adoption
of
a
calendar while the matter
was lm.der
discussion.
	The
Supreme Court
held
in
Katz
that
"the
duty
	[to bargain
collectively]
	. 	. 	.
may
be
violated
without
a
general
failure of
subjective
good
faith;
	for there
is
no occasion
to consider
the issue
of
good
faith
if
a
party
has
refused
even
to negotiate
in fact
	about
any
of
	the
mandatory
subjects.
	A
refusal to negotiate
in fact
as
	to
any
subject
which
is
within
	[
the
scope
of representation]
	and about which
the
lmion seeks
	to negotiate,
violates
	[the
NLRA]
	though the employer has every
desire to reach agreement
with
the
lm.ion upon an
overall collective
agreement and
earnestly
and
in
all
good
faith
bargains to
	this
end. 11 50
LRRM
at
2180.
Thus, 	argues the charging
party,
	a
violation of
Section 3543. 5 (c)
	occurred
when
the
District lmilaterally
adopted a new
calendar for
1977-78 on August 29, 	1977.
The
District
defends
	its
~lateral
action
on three grolm.ds:
First, 	that there was no duty to meet and negotiate because the school
calendar
is
not a mandatory subject of bargaining and therefore there can be no
legal basis for an lm.fair practice. 	This decision disposes of this ~gument except
for the subject of the duties to be perfonned on workdays. 	With respect to the
actual duties to be performed by teachers during the workday, 	there is no
mandatory obligation to meet and negotiate on this subject and therefore no
-22-

violation has occurred because of the District's alleged refusal or
failure to negotiate this item.
Second, the District submits that a calendar was adopted "out of necessity"
on August 29, 1977 and that a "business necessity" is a legitimate defense to a
unilateral action unfair practice charge.
Third, that even assuming there was no "business necessity" requiring
adoption of a calendar on August 29, 1977, the District's action on this date
constituted "qualified unilateral action" in that the Board resolution adopting
a calendar includes the following language: 	unless and until modified
by a collective bargaining agreement between the District and the Palos Verdes
Faculty Association."
The District's second position finds its authority in dictum from the Katz
decision. NLRB v. Katz, supra. 	The Supreme Court noted in Katz: "[While we do not
preclude the possibility that there might be circumstances which the [NRB] could
or should accept as excusing or justifying unilateral action, no such case is
presented here." The District urges the PERB to recognize the inherent differences
between private employers and public employers, particularly school district
employers. In its brief, the District states: "Faced with the impending beginning
of school and with negotiations stalled because of the problems surrounding the
passage of the school finance bill, the District had no choice other than to adopt
a school calendar for the 1977-78 school year that set forth the workdays for
certificated employees."
The "necessity doctrine" is not well defined in the federal labor relations
area. 	The defense of necessity to a unilateral action appears to be available
when the exigencies of the employer's business require an immediate management
decision in order to prevent serious harm or disaster to the business. (See Morris,
The Developing Labor Law, 1971, p. 324).
-23-
violation
has
occurred
because
of
the
District's
alleged
refusal or
failure
	to
negotiate
this
	item.
Second,
	the
District
submits
	that
a
	calendar
was adopted
"out
of necessity"
on August 29, 	1977 and
that
a
	''business
necessity"
is
a
legitimate
defense
	to
a
unilateral
action
i.mfair
practice
charge.
Third,
	that
even
assuning
there
was no
	''business
necessity" requiring
adoption
of
a
calendar
on August 29, 	1977,
	the
District's
action
on
this
	date
constituted "qualified
unilateral
action"
	in that
the
Board
resolution
adopting
a
calendar includes
	the
following
language: 	" 	. 	. i..mless and i..mtil
rrndified
by a
collective
bargaining
agreement between
the
District
and
the
Palos Verdes
Faculty Association."
The
District's
second
position
finds
	its
authority
in
dictum from
the
Katz
decision.
	NLRB
v.
	Katz,
.sS?:1'.'a-.
	The Supreme Court
noted
in
Katz:
	"[W]hile
we do
not
preclude the
possibility that
there
might
be circumstances which
the
	[NLRB]
	could
or
should accept as excusing
or justifying
i..milateral
action,
	no such
case
is
presented
here."
	The
District
urges
	the
PERB
to
recognize
the inherent differences
between
private
employers and
public
employers,
	particularly
school
district
employers.
	In
its
brief,
	the
District states:
	"Faced
with the
irrpending
beginning
of
school and
with negotiations
stalled
because
of
the
problems surroi..mding
the
passage
of
the
school finance
bill,
	the
District
had no choice
other
than
to
adopt
a school calendar
for the
1977-78 school year
that set forth the mrkdays
	for
certificated
employees."
The
"necessity doctrine"
	is
not well defined
in
the federal labor
relations
area.
	The defense
of necessity to
a i..milateral action
appears to be
available
when the exigencies of the employer's business require an inmediate management
decision in order to prevent serious hann
or disaster to the business. 	(See Morris,
The Developing Labor law, 	1971, p. 	324).
-23-

Applied to the public sector the "necessity doctrine" takes on a
different, perhaps broader, meaning. The issues raised in this case, however,
do not require an extensive discussion on all the differences between private
sector and public sector collective bargaining. One difference seems manifest
in this case, though, and that is that the obligations and responsibilities
imposed on a school district by the State Constitution (see Cal. Const. A. IX,
Sec. 5), the Education Code, the State Board of Education (see generally
Title 5, Cal. Admin. Code) and particularly by the public, to provide a smooth
and uninterrupted educational program for the benefit of students is paramount.
The School Board cannot defer indefinitely to the completion of good faith
negotiations the establishment of the date for the commencement of school.
This is particularly so inasmuch as a certificated employee must be present in
the classroom when pupils are there. See Ed. Code Sec. 46300. (See also Cal.
Admin. Code, Title 5, Sec. 5531, which states that certificated personnel must
supervise all extracurricular activities of pupils.)
In support of its "necessity doctrine" defense, the District presented
evidence that because of community pressure the starting date of school was a
date the District was required to set "out of necessity." This is not an idle
argument. The concerns of the community are not subordinate to those of the
teachers . 	The public generally and parents of the students specifically,
have an interest in the starting date of school and also the dates of vacation,
holidays, graduation and closing of school, just as the teachers do.
The District further maintains that it "has every intention of continuing
negotiations" on matters within the scope of representation relating to the
school calendar. This position is reflected in the resolution adopting the
Section 5 of Article IX of the California State Constitution provides
that: 	"The Legislature shall provide for a system of common schools by which a
free school shall be kept up and supported in each district at least six
months in every year, after the first year in which a school has been established."
See also Ed. Code Sec. 41420.
-24-
Applied
to the public
sector
the
"necessity
doctrine"
	takes on a
di£
ferent,
	perhaps broader, ireaning.
	The
issues
raised
in this
	case, 	however,
do
not require
an
extensive discussion
on
all
the differences
between
private
sector
and
public
sector collective
bargaining.
	One
difference
seems
manifest
in this
	case, 	though, 	and
that
is
	that
the obligations
and
responsibilities
imposed on a school
district
by
the State 0:mstitution
	(see Cal. 	Const.
	A.
	IX,
Sec. 	5)76
the
Education Code,
	the
State
Board
of
Education (see
generally
Title
5, 	Cal.
	Admin. 	Code)
	and
particularly
by
the public, 	to
provide a sIIDoth
and
uninterrupted
educational program
for
	the
benefit
of
students
is
parar:munt.
The
School Board cannot
defer
indefinitely
to the
completion
of
good
faith
negotiations the
establishment
of
the date for the
corrmencernent
of
school.
This
is
particularly
so
inaSIIU1ch
as a
certificated
employee
IIIl.J.St
be
present in
the
classroom
when
pupils are there.
	See Ed.
	Code
Sec. 	46300. 	(See
also
	Cal.
Adrni.n.
	Code,
	Title
5, 	Sec. 	5531, which
states that certificated
personnel must
supervise
all
extracurricular
activities of
pupils.)
In
support
of
its
"necessity doctrine" defense,
	the
District
presented
evidence
that
because
of
conmunity
pressure the
starting
date
of
school was a
date the
District
was
required to
set
"out
of necessity."
	This
is
not an
	idle
argi.:n:nent. 	The concerns
of
the comnunity
are not subordinate to those
of
the
teachers.
	The
public generally and parents
of
the students
	specifically,
have an
interest in
the
starting
date
of
school and also the dates
of vacation,
holidays, 	graduation and closing
of
school,
	just
as the teachers do.
The
District further maintains
	that
it
''has every intention of continuing
negotiations" on matters within the scope
of representation relating to 	the
school calendar. 	This position
is reflected
in
the resolution adopting the
16
section 5 of Article
IX
of the California State Constitution provides
that: 	"The Legislature shall provide for a system of
coTIIIDn
schools by which a
free school shall be kept up and supported
in
each district at least sixrronths in every year, 	after the first year in
which a school has been established."
See also Ed. 	Code Sec. 	41420.
-24-

school calendar on August 29, 1977 wherein the School Board stated that the
calendar was adopted, "unless and until modified by a collective bargaining
agreement." (Emphasis added.)
Thus, the District's contention is that its third defense, that of
"qualified unilateral action," combined with the defense of necessity, is
sufficient to negate the unfair practice charge. It appears from the record
and after considering the parties' briefs, that this argument must prevail.
Certainly, the wording of the resolution cannot be used to excuse
past unilateral action in every case. Each "unilateral action" case must
be decided on its own facts. In the instant case, the parties stipulated
that no bad faith or surface bargaining occurred (i.e., no intentional delays
in meeting and negotiating) and that the only issue to be decided was whether
the unilateral action by the District was proper. The District waited as
long as it reasonably could (August 29, 1977) before it acted unilaterally,
and even then, the School Board's resolution plainly demonstrates that the
District is willing to continue to meet and negotiate over matters within the
scope of representation. /
For the foregoing reasons, it is concluded that the District has
presented a valid defense to the unilateral action and accordingly the unfair
charge will be dismissed.
This conclusion is buttressed by the current status of negotiations between
the parties. 	The hearing officer takes offficial notice that as of the date
of this decision, no agreement has been reached between the parties and,
moreover, no declaration of impasse has been filed by either party with the
PERB.
-25-
17
school
calendar
on August 29, 	1977 'wherein the School Board
stated that
	the
calendar
was
adopted,
	"unless
and
until
rrodified by a
collective
bargaining
agreement." 	(Emphasis added.)
Thus,
	the
District's
contention
is
	that
its
	third
defense,
	that of
"qualified
unilateral
action,"
	combined with the
defense
of
necessity,
	is
sufficient
to
negate the
unfair practice
charge.
	It
appears from the
record
and
after
considering the
parties' 	briefs, 	that this
argurrent must
prevail.
Certainly, 	the
vJOrding
of
the
resolution
cannot be used
to
	excuse
past
unilateral
action
in
every case. 	Each
"unilateral
action"
case
TIUJSt
be decided on
its
own
facts.
	In the
instant
case, 	the
parties stipulated
that
no bad
faith
or
surface bargaining occurred
	(i.e.
, no
intentional
	delays
in
meeting and
negotiating)
	and
that
the
only
issue to
be decided was
whether
the
unilateral
action
by
the
District
was
proper.
	The
District
waited
as
long as
	it
reasonably could (August 29, 	1977) before
it
acted
unilaterally,
and even then, 	the School Board's
resolution plainly
dem:mstrates
	that the
District is
willing to
continue
to
meet and
negotiate
over matters
within
the
.scope o f
representation.
17
For the foregoing reasons,
	it
is
	concluded
that
the
District
has
presented a
valid
defense to the
unilateral
action
and accordingly the
unfair
charge
will
be dismissed.
17
This conclusion
is buttressed by the current status of negotiations between
the parties.
	The hearing officer
takes
offficial notice that as of the date
of this decision, 	no agreement has been reached between the parties and,
m:Jreover, no declaration of impasse has been filed by either party with the
PERB.
-25-

ORDER
The unfair practice charge filed by the Palos Verdes Faculty Association
is hereby DISMISSED.
Pursuant to Title 8, Cal. Admin. Code Section 35029, this recommended
decision and order shall become final on February 13, 1978 unless a party files
a timely statement of exceptions. See 8 Cal. Admin. Code Section 35030. Any
statement of exceptions must be served on the opposing party. See Olson v.
Manteca School District, EERB Decision No. 21 (August 5, 1977).
Dated: January 31, 1978
Jeff Paule
Hearing Officer
-26-
ORDER
Faculty
	filed
	The
unfair practice
charge 	by
the
Palos
Verdes
	Association
is
hereby
DISMISSED.
35029,
Pursuant
	8,
	Section
	to
Title
	Cal.
	Adrnin.
	Code
	this
recomrended
decision
and
order
shall
becorre
final
on
	February
13, 	1978
unless
	a
party files
Code
Section
35030. 	Any
staten:ait
of
exceptions.
	See 8
Cal.
	Adrnin.a
	tirrely
statement
of
exceptions
must
be served
on
the
opposing
party.
	See
Olson
v.
1977).11:mteca School
	EERB
Decision
No. 	21
	(August 5,
District,
Dated: 	January 31, 	1978
Jeff
PauleHearing
Officer
-26-

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
PLEASANT VALLEY SCHOOL DISTRICT
EDUCATION ASSOCIATION
Charging Party, Unfair Practice
V. 	Case No. LA-CE-160-77/78
PLEASANT VALLEY SCHOOL DISTRICT,
PROPOSED DECISION
Respondent. (7/ 7/78)
Appearances: Charles R. Gustafson, Attorney for Pleasant Valley School District
Education Association; John Liebert, Attorney (Paterson & Taggart) for Pleasant
Valley School District.
Before Kenneth A. Perea, Hearing Officer.
This case presents the issue of whether "school calendar", wherein the
dates upon which classes are held and other school activities are scheduled, is
within the scope of representation as defined in Government Code section 3543.2.
PROCEDURAL HISTORY
The events preceding the administrative hearing before the Public Employment
Relations Board (PERB) in the above-captioned matter are summarized as follows:
(1) On August 2, 1977, the Pleasant Valley School District Education
Association (Association) filed an unfair practice charge alleging a violation
of section 3543.5(a), (b) and (c) in that at a regularly scheduled meeting on
PUBLIC EMPI.DYMENT REIATIONS BOARD
OF THE STATE OF CALIFORNIA
PLEASANT VALLEY SCHOOL DISTRICT
EDUCATION ASSOCIATION,
Charging Party,
V.
PLEASANT VALLEY SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
Unfair Practice
Case No. 	lA-CE-160-77/78
PROPOSED DECISION
(7 / 	7 /78)
wearances: 	Charles R. 	Gustafson, Attorney for Pleasant Valley School District
Eucation Association; 	John Liebert, Attorney (Paterson & Taggart) 	for Pleasant
Valley School District.
Before Kenneth A. 	Perea, Hearing Officer.
This 	case presents the issue of 'Wl:lether II S::'.hool calendar", 'Wl:lerein the
dates upon which classes are held and other school activities are scheduled, 	is
within the scope of representation as defined in Govermnent Code section 3543.2.
PROCEDURAL HISTORY
The events 	preceding the administrative hearing before the Public Employment
Relations Board (PERB) 	in the above-captioned matter are
\
surrmarized as follows:
(1) 	On August 2, 	1977, 	the Pleasant Valley School District Education
Association (Association) 	filed an unfair practice charge alleging a violation
of section 3543.S(a), 	(b) 	and (c) 	in that at a regularly scheduled meeting on

May 19, 1977, the Pleasant Valley School District (District) unilaterally
adopted a school calendar for the 1977-78 school year.
(2) On August 19, 1977, the District filed an answer to the unfair
practice charge denying that the schedule of dates upon which classes are held,
instruction conducted, and other school activities occur is within the scope of
representation as defined in section 3543.2.
(3) A notice of hearing for October 14, 1977 was issued by PERB's
General Counsel on September 20, 1977.
(4) Pursuant to the District's request, the hearing scheduled for
October 14, 1977 was continued to December 8, 1977.
The gravamen of the unfair practice charge is that the District allegedly
failed to meet and negotiate in good faith by unilaterally adopting a calendar for
the 1977-78 school year while negotiations were in progress. The Association
contends that the various aspects of a school calendar are "matters relating to
. hours of employment" as defined in section 3543.2 and that the calendar
is therefore a mandatory subject of bargaining pursuant to the provisions of said
section. The District's position is that while the number and length of teacher
workdays is negotiable, the scheduling of said workdays is not a mandatory subject
of bargaining and that the District met and negotiated in good faith and did not
commit an unfair practice when it adopted a calendar for the 1977-78 school year.
An administrative hearing before a hearing officer of the PERB was held in
Los Angeles on December 8, 1977.
All statutory references are to the California Government Code unless
otherwise specified.
-2-
May 19, 	1977, 	the Pleasant Valley School District 	(District) i.milaterally
adopted a school calendar for the 1977-78 school year. 1
(2) 	On August 19, 	1977, 	the District filed an answer to the unfair
practice charge denying that the schedule of dates upon 'which classes are held,
instruction conducted, 	and other school activities occur is within the scope of
representation as defined in section 3543.2.
(3) 	A notice of hearing for October 14, 	1977 was issued by PERB's
General Counsel on September 20, 	1977.
(4) 	Pursuant to the District's request, 	the hearing scheduled for
October 14, 	1977 was continued to December 8, 	1977.
The gravamen of the unfair practice charge is that the District allegedly
failed to meet and negotiate in good faith by i.milaterally adopting a calendar for
the 1977-78 school year 'while negotiations were in progress. 	The Association
contends that the various aspects of a school calendar are ''matters relating to
hours of employment" as defined in section 3543. 2 and that the calendar
is therefore a mandatory subject of bargaining pursuant to the provisions of said
section. 	The District's position is that 'while the number and length of teacher
workdays is negotiable, 	the scheduling of said workdays is not a mandatory subject
of bargaining and that the District met and negotiated in good faith and did not
corrrnit an unfair practice 'when it adopted a calendar for the 1977-78 school year.
An administrative hearing before a hearing officer of the PERB was held in
Los Angeles on December 8, 	1977.
1All statutory references are to the California Government Code unless
otherwise specified.
-2-

FINDINGS OF FACT
The District voluntarily recognized the Association as the exclusive
representative for certificated employees of the District on May 6, 1976. The
District and the Association met and negotiated beginning in August 1976. A
collective negotiating agreement was reached and ratified effective
January 6, 1977 through June 3, 1977. Said agreement included a clause which
provided that the elements of the then-current 1976-77 school calendar which was
arrived at between the Certificated Employees Council and the District through
the meet and confer provisions of the Winton Act would be honored.
On May 5, 1977, the Association submitted its initial contract proposal
for the 1977-78 school year to the District. The Association's initial proposal
contained a provision for a school calendar including 177 teacher duty days of
which four (4) were half days.
On May 19, 1977, the District adopted a "proposed calendar for 1977-78."
The number of teacher duty days in said proposed calendar was set at 179, the
same number of duty days in the 1976-77 calendar.
There are substantial differences between the school calendar contained
in the Association's initial proposal and the "proposed calendar for 1977-78"
which the District adopted on May 19, 1977:
(1) The Association proposed that September 6, 1977 be the first and
that June 9, 1978 be the last teacher duty day for the 1977-78 school year. The
calendar adopted by the District, however, provides that the first teacher duty
day for the 1977-78 school year be August 31, 1977 and that the last teacher duty
day for the 1977-78 school year be June 8, 1978;
Former Ed. Code section 13080 et seq. , repealed, Stats. 1975, chapter 961,
sec. 1, effective July 1, 1976.
-3-
FINDINGS OF FACT
The District voli.mtarily recognized the Association as the exclusive
representative for certificated employees of the District on May 6, 	1976. 	The
District and the Association met and negotiated beginning in August 1976. 	A
collective negotiating agreement was reached and ratified effective
January 6, 	1977 through Ji.me 3, 	1977. 	Said agreement included a clause which
provided that the elements of the then-current 1976-77 school calendar which was
arrived at between the Certificated Employees Coi.mcil and the District through
the meet and confer provisions of the Winton Act would be honored. 2
On May 5, 	1977, 	the Association submitted its initial contract proposal
for the 1977-78 school year to the District. 	The Association's initial proposal
contained a provision for a school calendar including 177 teacher duty days of
'which four 	( 4) were half days .
On May 19, 	1977, 	the District adopted a ''proposed calendar for 1977-78. ''
The nurrber of teacher duty days in said proposed calendar was set at 179 , 	the
same number of duty days in the 1976-77 calendar.
Th.ere are substantial differences between ,the school calendar contained
in the Association's initial proposal and the "proposed calendar for 1977-78"
'which the District adopted on May 19, 	1977:
(1) 	The Association proposed that September 6, 	1977 be the first and
that Ji.me 9, 	1978 be the last teacher duty day for the 1977-78 school year. 	The
calendar adopted by the District, however, 	provides that the first teacher duty
day for the 1977-78 school year be August 31, 	1977 and that the last teacher duty
day for the 1977-78 school year be Ji.me 8, 	1978;
2Former Ed. 	Code section 13080 et seq., 	repealed, 	Stats. 	1975, 	chapter 961,
sec. 	1, 	effective July 1, 	1976.
-3-

(2) The calendar proposed by the Association provides for one teacher
preparation day preceding the first pupil day and that said preparation day
occur on September 6, 1977. The calendar adopted by the District, however,
provides for three teacher preparation days prior to the first pupil day with
said preparation days occurring on August 31, September 1, and September 2, 1977;
(3) The Association's proposed school calendar for the 1977-78 school year
provides for a "teachers' workday/visitation (teacher option) day" wherein
pupils not be in attendance and teachers have the option of attending inservice
training sessions or visiting classrooms in other school districts to observe
teaching techniques. The calendar adopted by the District, however contains no
provision for a "teachers' workday/visitation (teacher option) day";
(4) The calendar proposed by the Association for the school year 1977-78
provides for pupil minimum days and parent-teacher conferences on November 9, 10,
14-18, 21-23, 1977 and April 10-14, 1978." The calendar adopted by the District
for the 1977-78 school year, however, provides for parent-teacher conferences
during which pupils would attend for minimum day on November 14-19, 21-23, 1977
and April 17-21, 1978;
(5) The Association proposed in its calendar for the 1977-78 school year
that the following days preceding pupil vacations be pupil minimum days :
November 23, 1977, December 16, 1977, March 17, 1978 and June 9, 1978. The
`Teacher preparation days are those days during which teachers attend meetings
with District administrators and generally prepare for the forthcoming school year
prior to the pupils' first day of attendance.
"Parent-teacher conference days are those on which teachers hold conferences
with their pupils' respective parents after the pupils' minimum day .
The Association, in seeking to negotiate pupil minimum days preceding pupil
vacations , did not propose that the teachers' workday be correspondingly shortened,
but rather that teachers prepare their classrooms for the pupil vacation after pupils
are dismissed.
-4-
(2)
	The
calendar
proposed by
the
Association
provides
	for
one
teacher
preparation
day preceding
the
first
pupil
day and
that
said
preparation
day
occur on Septernber 6, 	1977. 3
The
calendar
adopted by
the
District,
	however,
provides
	for three
teacher preparation
days
prior
to
the
first
pupil
day
with
said
preparation
days
occurring
on August 31, 	Septernber 1, 	and September 2, 	1977;
(3)
	The
Association's
proposed school
calendar
for
	the
1977-78
school year
provides
for
a
"teachers' workday/visitation (teacher
option) 	day" vvherein
pupils not
be
in
attendance and
teachers
have
the option
of
attending
inservice
training
sessions
or
visiting
classrooms
in
other
school
districts
	to
observe
teaching techniques.
	The
calendar adopted by
the
District,
	however
contains
no
provision for
a
"teachers' workday/visitation (teacher
option) 	day";
(4)
	The
calendar proposed by
the Association
for the
school
year
1977-78
provides
for
pupil
minimum days and
parent-teacher
conferences on Noverrber 9, 	10,
14-18, 	21-23,
	1977
and
April
10-14, 	1978. 4 The
calendar adopted by
the
District
for
	the 1977-78 school
year,
	however, 	provides
	for parent-teacher
conferences
during vvhich
pupils
would
attend for
minimum day on November 14-19, 	21-23,
	1977
and April 17-21, 	1978;
(5)
	The
Association proposed
in
its
calendar
for the
1977-78 school
year
that
the following days preceding
pupil
vacations be
pupil
rnininun days :
November 23, 	1977, 	December 16, 1977, March 17, 	1978 and Jtme 9, 	1978: 	The
3Teacher preparation days are those days during vvhich teachers
attend
meetings
with
District
administrators and generally prepare for the forthcoming school year
prior to the pupils'
	first
	day
of
attendance.
4:Parent-teacher conference days are those on vvhich teachers hold conferences
with
their pupils' 	respective parents
after
the pupils'	
minimum day .
.
-4-
5 The L~sociation,
	in
seeking to negotiate
p:!JP.il minimum days ureceding pupilva~ations, 	did not propose
that
tlie ~eacfiers' workclay be correspondingly shortened,
but r~th~r that teachers prepare their
classrooms for the pupil vacation
after
pupils
are disITI1.ssed.

calendar adopted by the District for the 1977-78 school year provides that
only the last day of school preceding pupil summer vacation, June 9, 1978, be a
pupil minimum day;
(6) The Association proposed in its calendar for the 1977-78 school year
that there be 177 teacher workdays. The calendar adopted by the District
for the 1977-78 school year provides for 179 teacher workdays.
The District and the Association met and negotiated between June 1 and
November 14, 1977 at which time a collective negotiating agreement was reached.
The term of the current agreement is from December 2, 1977 through June 30, 1978.
The current collective negotiating agreement reflects agreements reached on
various aspects of "duty hours/calendar." Agreement was reached regarding regular
duty hours per day, extended daily duty hours and duty hours per year for unit
employees other than classroom teachers.
No agreement was reached, however, on other aspects of "school calendar."
The number and scheduling of half days was not agreed upon although the District
did make a counterproposal regarding half days before student vacations, which the
Association declined to accept, sometime after the teachers had reported to work
during the school year 1977-78. Negotiations concerning the number of
duty days per year did not result in agreement although the District and the
Association did meet and negotiate regarding the number of duty days on
June 3, 19, 16, 22 and July 6. No agreement was reached regarding the scheduling
of workdays, the number and scheduling of teacher preparation days, scheduling of
a so-called "teachers' workday/visitation (teacher option) day" and the number and
scheduling of parent-teacher conference days since the District took the position
that said items of the school calendar were not within the scope of representation
pursuant to section 3543.2.
Since disputes regarding the negotiability of certain aspects of the school
calendar were the only remaining unresolved items preventing agreement in
-5-
calendar adopted by the District for the 1977-78 school year provides that
only the last day of school preceding pupil surrmer vacation, 	Jlil:le 9, 	1978, be a
pupil minimum day;
(6) 	The Association proposed in its calendar for the 1977-78 school year
that there be 177 teacher workdays. 	The calendar adopted by the District
for the 1977-78 school year provides for 179 teacher workdays.
The District and the Association met and negotiated between Jlil:le 1 and
November 14, 	1977 at which time a collective negotiating agreement was reached.
The term of the current agreement is fran December 2, 	1977 through Jillle 30, 	1978.
The current collective negotiating agreement reflects agreements reached on
various aspects of "duty hours/calendar." 	Agreement was reached regarding regular
duty hours per day, 	extended daily duty hours and duty hours per year for lITlit
employees other than classroom teachers.
No agreement was reached, 	however, 	on other aspects of "scho0[ calendar."
The rn:n:riber and scheduling of half days was not agreed upon although the District
did make a colil:lterproposal regarding half days before student vacations, which the
Association declined to accept, 	sometime after the teachers had reported to work
during the school year 1977-78. 	Negotiations concerning the number of
duty days per year did not result in agreement although the District and the
Association did meet and negotiate regarding the number of duty days on
Jlil:le 3, 	19, 	16, 	22 and July 6. 	No agreement was reached regarding the scheduling
of workdays, 	the number and scheduling of teacher preparation days, 	scheduling of
a so-called "teachers' workday/visitation (teacher option) 	day" and the number and
scheduling of parent-teacher conference days since the District took the position
that said items of the school calendar were not within the scope of representation
pursuant to section 3543.2.
Since disputes regarding the negotiability of certain aspects of the school
calendar were the only remaining u:rresolved items preventing agreement in
-5-

November 1977, the Association and the District agreed to set those issues
aside pursuant to paragraph 7 in Article IV of the agreement which provides:
Other issues relating to workdays and calendar
shall be resolved following EERB decisions
regarding those issues (modified days, number
of workdays and scheduling of workdays) .
During the first week of August 1977, the District implemented the
starting time of the duty year pursuant to the adopted proposed calendar by
notifying employees of the dates of teacher service. The Association thereupon
filed the unfair practice charge which is the subject of this proposed decision.
ISSUES
(1) Are the following items of "school calendar" within the scope of
representation as defined in section 3543.2:
a. The starting and ending dates of teacher service;
The number and scheduling of teacher preparation
days prior to the first pupil day;
c. The number and scheduling of parent-teacher conference
days ;
d. The number and scheduling of pupil minimum days preceding
pupil vacations ;
e. The scheduling of a "teachers' workday/visitation (teacher
option) day"?
(2) Assuming that any of the above items of school calendar are within
the scope of representation as defined in section 3543.2, did the District's
adoption of a school calendar while negotiations were in progress constitute a
violation of section 3543.5, subsections (a) , (b) or (c)?
-6-
November
1977,
	the Association
and
the
District
agreed
to
set
those
issues
aside
pursuant
to
paragraph 7
in
Article
IV
of
the
agreement which
provides
:
Other
issues
relating to
workdays and calendar
shall
be
resolved
following
EERB
decisions
regarding those
issues
	(modified days , number
of
workdays and scheduling
of
workdays).
During
the
first
week
of
August 1977,
	the
District
implemented
the
starting
time
of
the
duty
year
pursuant
to
the
adopted proposed calendar by
notifying
employees
of
the dates
	of
teacher service.
	The
Association thereupon
filed
the illlfair
practice
charge which
is
	the
subject
of this
proposed
decision.
ISSUES
(1) 	Are
the
following items
of
"school calendar"
within the scope
of
representation
as defined
in
section
3543.2:
a.
	The
starting
and ending dates
of
teacher service;
b.
	The
number and scheduling
of
teacher preparation
days
prior to
the
first
pupil
day;
c. 	The
rn:n:nber
and scheduling
of
parent-teacher
conference
days;
d. 	The number and scheduling
of pupil mininun days preceding
pupil vacations;
e. 	The scheduling
of
a
"teachers' workday/visitation (teacher
option) 	day''?
(2) 	Assurning
that
any
of
the above items
of
school calendar are within
the scope
of representation as defined
in
section 3543.2, 	did the
District's
adoption
of
a school calan.dar while negotiations were
in
progress
constitute
a
violation of 	section 3543.5, 	subsections 	(a), 	(b) 	or 	(c)?
-6-

CONCLUSIONS OF LAW
Scope of Representation Pursuant to Section 3543.2
"School calendar" is a general term for the schedule that a school district
follows during a given year. "School calendar" usually refers to a document
which includes some or all of the following information: the total number of
days which pupils are required to be in attendance and the distribution of those
days over the year; the total number of days which teachers are to render service;
the duties teachers are required to perform on those days (teacher preparation,
teaching, parent-teacher conferences) and the distribution of those days over the
year; and the number and dates of holidays, vacations and special events.
Neither "school calendar" nor any of the many aspects which traditionally
comprise "school calendar" is specifically mentioned in that portion of the
Educational Employment Relations Act (EERA) which defines scope of representation.
Section 3543.2 provides :
CONCLUSIONS OF
lAw
Scope
of
Representation
Pursuant
to
Section
3543.2
"School
calendar"
is
a
general tenn
for,the
schedule
that
a school
	district
follows 	during a
given
year.
	"School
calendar
11
usually
refers
	to
a document
which
includes
	some
or
all
of
the
following
infonnation: 	the
total
m:rrnber
of
days which
pupils
are
required
to
be
in
attendance
and
the
distribution
of
those
days over
the year;
	the
total
nurriber
of
days which
teachers are to render service;
the
	duties 	teachers
are
required
to
perfonn
on
those
days
	(teacher preparation,
teaching,
	parent-teacher
conferences) and
the
distribution of
those
days
	over the
year;
	and
the
mn:nber
and
dates
of
holidays, 	vacations
and
special
events.
Neither "school calendar" nor
any
of
the
many
aspects
which
traditionally
comprise "school calendar"
is
specifically
mentioned
in that
portion
of
the
Educational Employment
Relations
Act
	(EERA)
which
defines
	scope
of
representation.
Section
3543.2
provides:
The scope of representation shall be limited
to matters relating to wages, hours of
employment, and other terms and conditions
of employment. "Terms and conditions of
employment" mean health and welfare benefits
as defined by section 53200, leave, transfer
and reassignment policies, safety conditions
of employment, class size, procedures to be
used for the evaluation of employees,
organizational security pursuant to section
3546, procedures for processing grievances
pursuant to section 3548.5, 3548.6, 3548.7
and 3548.8, and the layoff of probationary
certificated school district employees
pursuant to section 44949.5 of the Education
The scope
of
representation
shall
be
limited
to
matters
relating to
wages, hours
of
employment, 	and
other
tenns and
conditions
of
employment. 	"Tenns and
conditions
of
employment" mean
health
and
welfare
benefits
as defined by
section
53200,
	leave,
	transfer
and reassignment
policies, 	safety
conditions
of
employment,
	class size,
	procedures
	to
be
used
for
the evaluation
of
employees,
organizational security
pursuant
to section
3546, procedures
for
processing grievances
pursuant to section
3548:5, 	3548.6, 	3548.7
and 3548.8, 	and
the layoff of
probationary
certificated
school
district
employees
pursuant to section
44949.5
of
the Education
Code	Code. .	
...•

As the PERB itself noted in Fullerton Union High School District Personnel
and Guidance Association v. Fullerton Union High School District (7/27/77)
EERB Decision No. 28 (remanded on other grounds), in order for a subject matter
to be negotiable "the EERA requires a relationship to an item specifically
enumerated in the definition of 'terms and conditions of employment' or wages
or hours." [Emphasis added. ] It is appropriate, therefore, for the PERB to
interpret the words "matters relating to" wages, hours of employment, and other
terms and conditions of employment.
In the instant case, "hours of employment" is the only subject which
arguably relates to calendar items. Furthermore, the parties' briefs suggest
no other enumerated subject to which school calendar relates. Therefore, the
issue to be determined is whether the necessary relationship exists between
"hours of employment and the particular components of the school calendar sought
here to be negotiable.
"Hours" in the Private Sector
Both the California Supreme Court and the PERB itself have held that it is
appropriate to use National Labor Relations Board (NLRB) decisions as guidance
in interpreting California labor relations statutes having language similar to
the Labor Management Relations Act, as amended, (IMRA) . See Firefighters Union v.
City of Vallejo (1974) 12 Cal.3d 608 [87 LRRM 2453] and Sweetwater Union High
School District (11/23/76) EERB Decision No. 4. Because the EERA's inclusion of
"hours of employment" within the scope of representation parallels the LMRA's use of
"hours" as a mandatory subject of bargaining, NLRB decisions have been considered
by the hearing officer in arriving at the conclusions herein.
29 U.S.C. section 151 et seq. The Labor Management Relations Act amended
the National Labor Relations Act.
-8-
As the PERB itself noted in Fullerton Union High School District Personnel
and Guidance Association v. 	Fullerton Union High School District 	(7/27/77)
EERB Decision No. 	28 	(remanded on other grounds), 	in order for a subject matter
to be negotiable "the EERA requires a relationship to an item specifically
enumerated in the definition of 'tenns and conditions of employment' 	or wages
or hours." 	[Emphasis added.] 	It is appropriate, 	therefore, 	for the PERE to
interpret the words ''matters relating to" wages, hours of employment, and other
tenns and conditions of employment.
In the instant case, 	''hours of employment" is the only subject 'Which
arguably relates to calendar items. 	Furthennore, 	the parties' briefs suggest
no other enumerated subject to 'Which school calendar relates. 	Therefore, 	the
issue to be detennined is 'Whether the necessary relationship exists between
''hours of employment'and the particular components of the school calendar sought
here to be negotiable.
"Hours" in the Private Sector
Both the California Supreme Court and the PERE itself have held that it is
appropriate to use National Labor Relations Board (NLRB) 	decisions as guidance
in interpreting California labor relations statutes having language similar to
the Labor :Management Relations Act, 	as amended, 	(1.MRA) . 6 	See Firefighters Union v.
City of Vallejo 	(1974) 	12 Cal. 3d 608 	[87 LRRM 2453] 	and Sweetwater Union High
School District 	(11/23/76) EERB Decision No. 	4. 	Because the EERA' s inclusion of
''hours of employment" within the scope of representation parallels the ll1RA' s use of
''hours" as a mandatory subject of bargaining, 	NLRB decisions have been considered
by the hearing officer in arriving at the conclusions here:L."1..
62_9 U.S. C. 	section 151 et seq. 	The Labor :Management Relations Act amended
the National Labor Relations Act.
-8-

"Hours',' pursuant to NLRB decisions, at a minimum means the total number
of hours in a day and the total number of days in a week that an employee is
required to work. Furthermore, the distribution of hours that employees work
in a day (work shift) also has been held to be a mandatory subject of bargaining
7
under the LMRA.' 	In Meat Cutters v. Jewel Tea (1965) 381 U.S. 676 [59 LRRM 2376], the
United States Supreme Court held that an employer must bargain about its employees'
proposal to work only during the period between 9:00 A.M. to 6:00 P.M.
The distribution of days in a week that employees are required to work is
also a mandatory bargaining subject under the IMRA. In Long Lake Lumber (1966)
160 NLRB 1475 [63 LRRM 1160], the NLRB found a violation of the duty to bargain
when an employer unilaterally changed its employees' workdays from Monday through
Friday to Tuesday through Saturday.
Thus, under the IMRA, "hours" has been held to mean the total number of hours
in a day and days in a week that employees are required to work and the
distribution of those hours and days. Any addition, reduction, or rearrangement
of working hours or days by an employer is a mandatory subject of bargaining.
Massey Gin and Machine Works, Inc. (1948) 78 NLRB 189 [22 LRRM 1191] ;
Timken Roller Bearing Co. (1946) 70 NLRB 500 [18 LRRM 1370] (enforcement denied on
other grounds) , 161 F. 2d 949, 20 LRRM 2204 (6th Cir. 1947) .
See also Camp and Mcinnes (1952) 100 NLRB 524[30 LRRM 1310] where without
consultation with or notice to the union, the employer reduced the lunch period
of its employees from one hour to thirty minutes, and changed the quitting time
from 5:00 P.M. to 4:30 P.M., the NLRB finding that the employer had violated
sec. 8(a) (5) of the LMRA.
-9-
''Hours:'
	pursuant
to
NLRB
decisions,
	at
a
m:i.nimJm
means
	the
total
number
of
hours
	in
a day and
the
total
number
of
days
	in
a week
that
an
employee
is
required
to
work.
	Furtherrrore,
	the
distribution of
hours
	that
employees work
in
a day (work
shift)
	also
has been
held
to
be
a mandatory
subject
of
bargaining
tmder
the
I.MRA.
7
In
:Meat
Cutters v.
	Jewel
Tea (1965) 	381 U.S. 	676 	[59
LRRM
2376],
	the
United
States
Supreme
Court
held
that
an
employer must
bargain
about
its
	employees'
proposal
to
work
only during
the period
between 9:00
A.M.
	to
6:00
P.M. 8
The
distribution of
days
	in
a week
that
employees
are
required
to
work
is
also
a mandatory
bargaining
subject
tmder
the
IMRA.
	In
Long Lake Lumber 	(1966)
160
NLRB
1475 	[63
LRRM
1160],
	the
NLRB
fotmd a
violation of
the
duty
to
bargain
'When
an
employer
lfililaterally
changed
its
employees' workdays from Monday
through
Friday
to
Tuesday
through Saturday.
Thus,
	tmder
the
lMRA,
	''hours'' has been
held
to
mean
the
total
number
of
hours
in
a day
and
days
	in
a week
that
employees
are required
to
work and
the
distribution of
those hours and days.
	Any
addition, 	reduction,
	or
rearrangement
of
working hours
or
days by an
employer
is
a mandatory
subject
of
bargaining.
7Massey Gin and :Machine Works,
	Inc.
	(1948) 	78
NLRB
189 	[22
LRRM
1191];
Timken
Roller
Bearing
Co. 	(1946) 	70
NLRB
500 	[18
LRRM
1370] 	(enforcement
denied
on
other
grotmds), 	161
F.2d
949, 	20
LRRM
2204
	(6th Cir.
	1947).
8
see also
Camp
and Mcinnes 	(1952) 100
NLRB
524[30
LRRM
1310] 'Where
without
consultation with or notice to the
lfilion,
	the
employer reduced
the
ltmch
period
of
its
employees from one
hour
to
thirty
minutes, 	and changed
the quitting
time
from 5:00 P.M.
	to
4:30 P.M.,
	the
NLRB
finding
that
the
employer had
violated
sec. 	8(a)(5) of
the
I.MRA.
-9-

"Hours" in the Public Sector
A. California
The Meyers-Milias-Brown Act (MBA) Government Code section. 3500 et seq. ,
governing employer-employee relations in local public agencies, provides for a
scope of representation "including, but not limited to, wages, hours, and other
terms and conditions of employment. . .." 9
The California courts have not addressed the narrow issue of whether the schedule
of hours is a mandatory subject of negotiations pursuant to the "hours" provision
of the MMBA. In Firefighters Union v. City of Vallejo, supra, the court did not
pass upon the question because the language of the city charter provision closely
paralleled the language of the MBA. Similarly, in Huntington Beach Police Association
v. Huntington Beach (1976) 58 Cal.App. 3d 492 [92 LRRM 2996], the court did not relate
the schedule of hours specifically to "hours" but only to wages, hours and other
terms and conditions of employment generally. As held by the PERB itself in
Fullerton Union High School District Personnel and Guidance Association v. Fullerton
Union High School District (6/30/78) PERB Decision No. 53, since the Educational
Employment Relations Act delineates the phrase "and other terms and conditions
of employment," the above-cited cases may not be applicable precedent.
B. Other States
Employment Relations boards or courts in at least seventeen states have
issued decisions on the negotiability of either the entire school calendar or
one or more of its parts. Each state ultimately rests its decision on the
interpretation of its own statute. An examination of the decisions in other
states on the issue of the negotiability of "school calendar" shows that the
" Sec. 3504.
The PERB has made use of decisions from other states where pertinent. See
Sweetwater, supra, and New Haven Unified School District (3/22/77) EERB Decision
No. 14.
-10-
"Hours" in the Public Sector
A. 	California
The Meyers-Milias-Brown Act 	(MMBA) Government Code section 	3500 et seq. ,
governing employer-employee relations in local public agencies, 	provides for a
scope of representation "including, 	but not limited to, wages, hours, 	and other
tenns and conditions of employment. II 9
The California courts have not addressed the narrow issue of whether the schedule
of hours is a mandatory subject of negotiations pursuant to the ''hours" provision
of the MMBA. 	In Firefighters Union v. 	City of Vallejo, 	supra, 	the court did not
pass upon the question because the language of the city charter provision closely
paralleled the language of the MMBA. 	Similarly, 	in Ht.mtington Beach Police Association
v. 	Ht.mtington Beach. (1976) 	58 Cal.App. 	3d 492 	[92 LRRM 2996], 	the court did not relate
the schedule of hours specifically to ''hours" but only to wages, hours and other
tenns and conditions of employment generally. 	As held by the PERB itself in
Fullerton Union High School District Personnel and Guidance Association v. 	Fullerton
Union High School District 	(6/30/78) PERB Decision No. 	53, 	since the Educational
Employment Relations Act delineates the phrase "and other tenns and conditions
of employment, 11 the above-cited cases may not be applicable precedent.
B. 	Other States
Employment Relations boards or courts in at least seventeen states have
issued decisions on the negotiability of either the entire school calendar or
one or more of its parts.10 Each state ultimately rests its decision on the
interpretation of its own statute. 	An examination of the decisions in other
states on the issue of the negotiability of "school calendar" shows that the
9 Sec. 	3504.
lOThe PERB has made use of decisions from other states where pertinent. 	See
Sweetwater, 	supra, 	and New- Haven Unified School District 	(3/22/77) EERB Decision
No. 	14.
-10-

states are evenly divided. Il
States which have found the school calendar as it relates to teachers
to be negotiable, either in whole or in part, include: Washington, Edmonds
Education Association v. Edmonds School District (PERC 1977), Case No. 194-U-
76-13, 1 CCH Public Employee Bargaining Reporter 4606 (CCH PEBR) , (Washington
Public Employment Relations Commission decision that school calendar constitutes
hours of employment) ; Wisconsin, City of Beloit v. WERC (1976) 242 N.W.2d 231
[92 LRRM 3318] and Board of Education v. WERC (1971) 191 N.W. 2d 242 [78 LRRM 3030]
(Wisconsin Supreme Court decision affirming Wisconsin Employment Relations
Commission's ruling that all aspects of the school calendar are negotiable) ;
Indiana, Northern Community Schools of Tipton County (1975) 1 IPER 38, 1 CCH PEBR
4248, (Indiana EERB determination that "hours" means "[the number of hours the
school employee is going to work and the periods of time that work will be performed,
including starting time, ending time, and the time out from work when the school
employee is completely free from any assignment. "); Florida, Escambia Education
Association (1976) 2 FPER 92, aff'd Escambia County School Board v. Florida PERC
(1977) 3 FPER 270, 1 CCH PEBR 4199 (Florida Court of Appeal affirms Florida PERC
decision that school calendar is proper subject of bargaining) ; Massachusetts,
Boston Teachers Union, Local 66, AFT (AFL-CIO) v. School Committee of Boston (1976)
2 CCH PEBR 20, 155, 350 N.E. 2d 707, (Massachusetts Supreme Judicial Court held that
required hours of teaching is a "proper" subject of bargaining although the Supreme
Court did not indicate whether hours was a mandatory or permissive subject of
bargaining) ; Michigan, Westwood Community Schools (1972) 7 MERB Lab. Op. 313 (start
and end dates negotiable) ; New Jersey, Byram Board of Education v. Byram Education
Association (1977) 96 LRRM 3059, (start and end time of workday negotiable) ; New
York, City School District of the City of Oswego v. Helsby (1973) 346 N.Y.S.2d 27,
2 PBC 120,082, (total number of workdays negotiable) ; Nebraska, Seward Education
Assn. v. School District of Seward (1971) 1 CCH PEBR 4400; Norfolk Education Assn.
(1971) 1 CCH PEBR 4400.
On the other hand, numerous states have held that school calendar is not
negotiable: Alaska, Kenai Peninsula Borough School District v. Kenai Peninsula
Education Association (1977) 97 LRRM 2153; Connecticut, West Hartford Education
Association, Inc. v. Dayson DeCourcy (1972) 1 CCH PEBR 10, 217, 295 A. 2d 528,
(Connecticut Supreme Court held school board is not required to bargain with
teachers concerning the length of their school day, the school calendar or the
scheduling of extra curricular activities since these matters are subjects of
educational policy to be determined by school board alone) ; Hawaii, In Re Department
of Education (1973) Case No. DR-05-5, (scheduling of teacher preparation periods is,
in effect, the scheduling of work and a matter of inherent management rights) ;
Iowa, Bettendorf-Dubuque (1976), Case Nos. 598 and 602, (management retains the
right to fix the length and division of the school year and thus school calendar
is a permissive subject of bargaining) ; Maine, City of Biddeford v. Biddeford
Teachers Association (1973) 1 CCH PEBR 10,056, (Supreme Judicial Court of Maine held
the length of a teacher's workday, the scheduling and length of school vacations
and the beginning and ending of the school year are educational policy decisions
which are not subject to the duty to bargain) ; Nevada, Washoe County Teachers
Association v. Washoe County School District (1976) Case No. Al-045297, (Employee-
Management Relations Board held that teacher preparation time is a mandatory subject
of bargaining but that school calendar is not) ; New Jersey, Burlington County College
Faculty Assn. v. Board of Trustees (1973) 311 A. 2d 733, 1 CCH PEBR 10, 236, (Supreme
Court for New Jersey held that the establishment of a college calendar fixing the
length and division of the school year was a matter of management control and
decision) ; but see Byram Board of Education v. Byram Education Association (1977)
96 LRRM 3059, (start and end time of (footnote continued)
-11-
states
are
evenly
divided.
11
11
states
which
have
fmmd
the
school
calendar
as
	it
relates
	to
teachers
to
be
negotiable,
	either
in
whole
or
in
part,
	include:
	Washington, 	Edrronds
Education
Association v.
	Edrronds School
District
	(PERC
1977),
	Case
No.
	194-U-
76-13, 	1
CCH
Public
Ernployee
Bargaining Reporter
4606
	(CCH
PEBR), 	(Washington
Public
Employment
Relations
Com:nission
decision
that
school
calendar
constitutes
hours
of
employment);
	Wisconsin,
	City
of
Beloit
v.
	WERC
	(1976) 	242 N.W.2d 231
[92
LRRM
3318] 	and Board
of
Education
v.
	WERC
	(1971)191
N.W.
	2d 242 	[78
LRR"tvf
3030]
(Wisconsin Supreme
Court
decision affirming
Wisconsin Employment
Relations
Com:nission' s
	ruling
that
all
aspects
of
the
school
calendar
are negotiable)
;
Indiana,
	Northern
Comm.mity
Schools
of
Tipton
County (1975) 	1 IPER 38, 	1
CCR
PEBR
4248,
	(Indiana
EERB
detennination
that
''hours"
means	
"[t]he
mm:iber
of
hours
	the
school
employee
is
going
to
work and
the
periods
of
ti.Ire
that
work
will
be
perfonned,
including
starting
time, 	ending time, 	and
the
time
out
from work when
the
,school
employee
is
	completely
free
from any
assigrnnent.");
	Florida,
	Escambia
Education
Association
	(1976) 	2
FPER
92,
	aff'd
Escambia County School Board
v.
	Florida
PERC
(1977) 	3
FPER
270, 	1
CCR
PEBR
4199
	(Florida
Court
of
Appeal
affirms
Florida
PERC
decision
that
school
calendar
is
proper
subject
of
bargaining);
	Massachusetts,
Boston Teachers
Union,
	Local
66,	
AFT	
(ATI.-CIO)
	v.
	School Corrrnittee
of
Boston
	(1976)
2
CCH
PEBR
20,155, 	350 N.E.2d 707,
	(Massachusetts
Supreme
Judicial
Court
held
that
required
hours
of
teaching
is
a
	''proper''
subject
of
bargaining
al
though
the
Supreme
Court
did not indicate
whether hours
was a mandatory
or
permissive
subject
of
bargaining);
	Michigan, Westwood Comm.mity Schools 	(1972) 	7
MERB
Lab.
	Op.
	313
	(start
and end
dates negotiable)
;
New
Jersey,
	Byram Board
of
Education
v.
	Byram
Education
Association
	(1977) 	96
LRRM
3059,
	(start
and end
time
of
workday
negotiable);
	New
York,
	City
School
District of
the City
of
Oswego
v.
	Helsby
	(1973) 	346 N.Y.S.2d 27,
2
PBC
i[20,082,
	(total
m.mber
of
workdays
negotiable);
	Nebraska, 	Seward
Education
Assn.
	v.
	School
District of
Seward 	(1971) 	1
CCR
PEBR
4400;
	Norfolk Education
Assn.
(1971) 	1
CCH
PEBR
4400.
On
the other
hand, numerous
	states
have
held
that
school calendar
is
notnegotiable:
	Alaska, Kenai
Peninsula
Boro 	School
District
v.
	Kenai
Peninsula
Education Association
	(1977 	97
LRRl1
2 53;
	Connecticut,
West
Hartford Education
Association, 	Inc. 	v.
	Dayson DeCourcy 	(1972) 	1
CCR
PEBR
10,217, 	295 A.2d 528,
(Connecticut
Supreme Court
held
school board
is
not required to
bargain with
teachers
	concerning
the length
of their
school
day,
	the school calendar
or the
scheduling
of extra curricular activities
since these matters are subjects
of
educational policy to
be determined by school board alone);
	Hawaii,
	In
Re
Deparbrent
of
Education
	(1973) 	Case No. 	DR-05-5,
	(scheduling
of teacher preparation periods
is,
in effect, 	the scheduling
of
work and a
matter
of
inherent
management
rights);
Iowa, 	Bettendorf-Dubuque (1976), 	Case Nos. 	598 and 602, 	(management
retains the
right to
fix
the length
and
division of the school year
and thus
	sc,.1-iool
calendar
is
a
permissive subject of bargaining);
	Maine,
	City of
Biddeford v. 	Biddeford
Teachers Association
	(1973) 	1
CCR
PEBR
10,056, 	(Supreme
Judicial
Court
of
:Maine
held
the length of
a
	teacher's
workday,
	the scheduling and
length of
school vacations
and
the beginning and ending
of the school year are educational policy decisions
which
are not subject to the duty to bargain);
	Nevada, Washoe County Teachers
Association v. Washoe Coun~ School
District
	(1976) 	Case No. Al-045297, 	(Fmployee-
~1anagement Relations Board
	eld that teacher preparation time
is
a mandatory subject
of bargaining but that school calendar is not) ; New
Jersey, 	Burlington Coun:g College
Faculq
Assn. 	v. 	Board
of Trustees 	(1973) 	311 A. 2d 733, 	1
CCR PEBR
10,236, 	Supreme
Court 	or
New
Jersey held that the establishment of a college calendar fixing the
length and division of the school year was a matter of management control and
decision) ; but see Byram Board of Education v. 	Byram Education Association (1977)
96 LRR1'1 3059, 	(start and end time of (footnote continued) 	··
-11-

The Pleasant Valley School District Calendar
Considering the above findings of fact and precedents, it is concluded that:
) the starting and ending dates of teacher service is
within the scope of representation as defined in
section 3543.2;
( b ) 	the number and scheduling of teacher preparation days,
parent-teacher conferences, pupil minimum days preceding
pupil vacations and the scheduling of a "teachers' workday/
visitation (teacher option) day" are not within the scope
of representation as defined in section 3543.2.
A. The Number of Workdays and Their Distribution
The District concedes that the total number of workdays in a year is a
mandatory subject of bargaining pursuant to the EERA and in fact sought to bargain
the total number of workdays with the Association. The number of workdays in a
year for teachers is a matter closely related to hours of employment. Other
states are in accord: Indiana (Clarksville Community School Corporation) (1975
(Footnote continued)
workday negotiable); Oregon, Eugene Education Assn. v. Eugene School District
(1974) Case No. C-279, 1 PEBCR 446, (school calendar was outside the scope of
mandatory bargaining and is a permissive topic of bargaining) ; see also Spring-
field Education Association v. The Springfield School District No. 19 (1974)
Case No. C-278, 1 PEBCR 347 and Southland Education Assn. v. Southland School
District, No. 45 (1975) Case No. C-280, 1 PEBCR 459; Pennsylvania, Pennsylvania
Labor Relations Board v. State College Area School District (1975) 337 A. 2d 262,
90 LRRM 2081, (Pennsylvania Supreme Court held that the exclusive representative
does not have the right to bargain the school calendar which is a matter of
inherent managerial policy.)
-12-
The
Pleasant
Valley School
District
Calendar
Considering
the
above findings
	of fact
and precedents,
	it
is
concluded
that:
(a)	
the
starting
and ending dates
of
teacher service
is
within the
scope
of
representation
as defined
in
section
3543.2;
(b)	
the
nurriber
and scheduling
of
teacher preparation
days ,
parent-teacher
conferences,
	pupil
minimum days preceding
pupil
vacations and
the
scheduling
of
a ''teachers ' workday/
visitation
	(teacher option) 	day"
are not within
the scope
of representation
as defined
in
section
3543. 2.
A. 	The
Nurriber
of
Workdays and Their
Distribution
The
District
concedes
that
the
total
nurriber
of
workdays
	in
a year
is
	a
mandatory
subject
of
bargaining pursuant
to
the
EERA
and
in
fact
sought
to
bargain
the
total
nurriber
of
workdays with the Association.
	The nurriber
of
workdays
	in
a
year
for
teachers
	is
a matter closely
related
to
hours
of
employment. 	Other
states
are
in
accord: 	Indiana
	(Clarksville
Corrmunity School Corporation) 	(1975
(Footnote continued)
workday negotiable); 	Oregon, 	Eugene Education Assn. 	v. 	Eugene School
District
(1974) 	Case
No.
	C-279, 	1
PEBCR
446, 	(school calendar was
outside the
scope
of
mandatory bargaining and
is
a permissive
topic
of
bargaining); 	see also
SprF-
field
Education Association v. 	The
Sprin~field School
District
No. 	19
	(1974
Case
No.
	C-278, 	1
PEBCR
347
and Southlan 	Education Assn. v. 	Southland School
District,
	No. 	45
	(1975) 	Case
No.
	C-280, 	1
PEBCR
459; 	Pennsylvania, 	Penns~lvania
Labor Relations Board v. 	State
College Area School
District
	(1975) 	337
A.
	d 262,90
LRRM
2081, 	(Pennsylvania Supreme Court held that the exclusive representativedoes not have the
right to bargain the school calendar vvhich
is
a matter
ofinherent managerial
policy.)
-12-

1 IPER 38); New York (City School District of the City of Oswego v. Helsby, supra) ;
and Wisconsin (City of Madison v. WERB (1967) 155 N.W. 2d 78 [65 LRRM 2488]) .
The District contends, however, that the distribution of workdays (the start
and end dates of the school year for teachers) is a policy matter reserved for
management's unilateral determination.
The distribution of workdays is a matter "relating to . . . hours of employment"
and consequently a mandatory subject of negotiations. The scheduling of the start
and end dates of the school year must necessarily relate to "hours of employment"
since the start and end dates of the school year determine when the individual
teacher must perform his duties. When the individual teacher must perform his
duties affects his advanced study (which in many school districts determines salary),
supplementary employment, travel and vacation.
To hold the schedule of workdays to be negotiable does not ignore the
important responsibilities vested in the District, representing the educational
needs of the community, to allow families and classified employees their summer
vacations, to ascertain dates for the opening of school for the purchasing and
delivery of supplies, and to coordinate its calendar with that of the high schools
for the convenience of families with children in both school districts. It is
believed that the District's duty to represent the educational needs of the commity,
while complying with its collective negotiating responsibilities pursuant to the
EERA, are best served by presenting the community's interest at the bargaining table
in an exchange of proposals in a good faith attempt to reach agreement with the
teachers' negotiating representative regarding the beginning and ending dates of
the school year for teachers.
It should be noted that the EERA contains detailed public notice procedures
which allow considerable community involvement in all aspects of the negotiations.
Pursuant to sec. 3547, school district and employee organization representatives must
present their initial negotiating proposals at public meetings, and negotiations may
not commence until the public has been given reasonable time to express its opinion
on the proposals. Community concern regarding the scheduling of the school year's
beginning and ending dates may be reflected at that time.
-13-
1
IPER 38);
New
York (City School
District
of
the City
of
	Oswego
v. 	Helsby, 	supra) ;
and Wisconsin
	(City
of
:Madison
v.
	WERB
	(1967) 	155 N.W.2d
78
	[65
LRRM
2488)).
The
District
contends, however,
	that
the
distribution of
workdays
	(the
start
and end
dates
	of
the
school
year
for
teachers)
	is
a
policy matter reserved
for
management's
unilateral
detennination.
The
distribution of
workdays
	is
a
matter
''relating to
	...
hours
of
employment"
and consequently a mandatory
subject
of
negotiations.
	The scheduling
of
the
start
and end
dates
	of
the
school
year
must
necessarily
relate
to
''hours
of
employment"
since the
start
and end
dates
	of
the
school
year
detennine 	when
the individual
teacher
must perform
his
	duties
.
	When
the individual teacher
must perform
his
duties
	affects his
	advanced study 	(which
in
many
school
districts
	determines
	salary),
supplementary employment,
	travel
and
vacation.
To
hold
the
schedule
of
workdays
	to
be
negotiable
does
not
ignore
the
important
responsibilities
vested
in
the
District,
	representing the educational
needs
of
the
corrm.mity,
	to
allow families
	and
classified
employees
	their
surrmer
vacations,
	to ascertain
dates
	for the
opening
of,school for
the purchasing and
delivery
of
supplies,
	and
to coordinate
its
calendar with
that of
the high
schools
for the
convenience
of
families with children
in
both school
districts.
	It
is
believed
that
the
District's
duty
to represent the educational needs
of the
conmmity,
while complying
with
its
collective negotiating responsibilities
pursuant to the
EERA,
	are best
served by
present~
the
corrmunity's
	interest at
the bargaining table
in
an exchange
of
proposals
	in
a good
faith
attempt to reach agreement
with the
teachers' 	negotiating representative regarding the beginning and ending dates of
the school year for teachers.
12
12
It
should be noted that the
EERA
contains detailed public notice procedures
-which allow considerable corrmmity inwlvement
in all
aspects of the negotiations.Pursuant to sec. 	3547, 	school
district
and employee organization representatives must
present their initial
negotiating proposals
at public meetings, 	and negotiations
may
not corrrnence 1.mtil the public has been given reasonable time to express
	its
opinion
on the proposals. 	Corrm.mity concern regarding the scheduling of the school year'sbe~inning and ending dates may be reflected at that time.
-13-

B. 	Duties on Workdays
The remaining issues all relate to the particular duties to be performed on
workdays. Thus, the Association seeks to negotiate the number and scheduling of
teacher preparation days, parent-teacher conference days, pupil minimum days
preceding pupil vacations, and the scheduling of a "teachers' workday/visitation"
day. The District contends that these matters primarily impact upon the level
and nature of the educational program and therefore fall within the District's
managerial prerogatives.
Section 51002 of the Education Code provides, in part:
[I]t is the intent of the Legislature to set
broad minimum standards and guidelines for
educational programs and to encourage local
districts to develop programs that will best
fit the needs and interests of the pupils,
pursuant to stated philosophy, goals and
objectives.
Education Code section 51041 provides:
The Governing Board of every school district
shall evaluate its educational program and
shall make such revisions as it deems necessary.
Any revised educational programs shall conform
to the requirements of this division.
Therefore, pursuant to the Education Code the District has a clear managerial
responsibility to maintain the educational program for the pupils. While some
matters of school calendar relate directly to "wages" and "hours of employment" of
certificated employees, others do not. Having concluded that the number and
scheduling of workdays is negotiable and that the District negotiated duty hours per
day, nothing regarding "school calendar" remains which are "matters relating to .
hours of employment." That which remains of "school calendar" after negotiating
the number and scheduling of workdays and duty hours per day, however, directly
affects the educational program. It is thus concluded that the particular duties
performed during a workday (teacher preparation, teaching, parent-teacher conferences,
pupil minimum days preceding pupil vacations, "teachers' workday/visitation (teacher
option) day") are not matters relating to "hours of employment", are not specifically
enumerated as "terms and conditions of employment", and are therefore not
mandatory subjects of negotiation.
-14-
B.
	Duties on
Workdays
1he remaining
issues
all
relate
to
the
particular
duties
	to
be perforrred on
workdays . 	1hus,
	the
Association seeks
to negotiate
the
nunber and scheduling
of
teacher preparation
days,
	parent-teacher
conference days,
	pupil
m:inimurn
days
preceding
pupil vacations, 	and
the
scheduling
of
a
"teachers'
workday/visitation"
day. 	1he
District
contends
that
these matters primarily
impact upon
the
level
and
nature
of
the
educational program and
therefore
fall
within the
District's
managerial
prerogatives.
Section 51002
of
the Education
Code
provides,
	in
part:
[I]t is
	the
intent of
the Legislature
to
set
broad minimJm standards and guidelines
	for
educational programs and
to
encourage
local
districts
	to
develop programs
that will
best
fit
	the
needs and
interests of
the pupils,
pursuant
to stated
philosophy, 	goals and
objectives.
Education
Code
section
51041 provides:
1he Governing Board
of
every school
district
shall
evaluate
its
educational program and
shall
make
such
revisions
as
	it
deems
necessary.
Any
revised
educational programs
shall
conform
to the
requirerrents
	of
this
division.
1herefore, pursuant
to the Education
Code
the
District
has a
clear
managerial
responsibility to maintain
the educational program
for the pupils.
	While
some
matters
of
school calendar
relate directly to
''wages" and ''hours
of
employn:ent"
of
certificated
employees , others do not. 	Having concluded
that
the nunber and
scheduling
of
workdays
	is
negotiable and
that
the
District
negotiated duty hours per
day, 	nothing regarding "school calendar" remains which
are
"matters
relating
to.
hours
of
employn:ent." 	That which remains
of
"school calendar"
after
negotiating
the rnJrmer and scheduling
of
workdays and duty hours per day, however,
	directly
affects the educational program.
	It is
thus concluded
that
the
particular duties
perforrred during a workday 	(teacher preparation, 	teaching, 	parent-teacher conferences,
pupil
rn:i.n:imJm
davs preceding pupil vacations, 	"teachers' workday/visitation (teacher
option) 	day") 	are not matters relating to ''hours of employn:ent", 	are not specifically
enumerated as "terrrs and conditions of employn:ent", and are therefore not
mandatory subjects of negotiation.
-14-

Respondent's Contentions Regarding "Business Necessity" of Calendar Adoption
Having concluded that the starting and ending dates of teacher service are
within the scope of representation pursuant to section 3543.2, it must be
determined whether the District failed or refused to meet and negotiate in
good faith with respect to this aspect of "school calendar."
The District vigorously defends its unilateral adoption of a "tentative"
school calendar on May 19, 1977, which contained the starting and ending
dates of teacher service, or the grounds that it had compelling reasons for
adoption of the calendar (requests for the school schedule from members of the
community, necessity of informing its employees of their work schedules and the
District's own business requirements for scheduling purchase and delivery dates
of supplies) .
The defense of "business necessity" to a unilateral action appears to be
available when the exigencies of the employer's business require an immediate
management decision in order to prevent serious harm or disaster to the
business. 13
The facts in the instant matter are that the District unilaterally adopted
its school calendar for the 1977-78 school year on May 19, 1977, two weeks after
the Association submitted its initial contract proposal for the 1977-78 school
year which contained a proposal for school calendar.
The evidence further shows that while the District agreed to and did in
fact negotiate certain elements of the school calendar (duty hours and number of
duty days per year) the District steadfastly took the position that the
scheduling of workdays (including the starting and ending dates of teacher service)
is not an item within the scope of representation pursuant to section 3543.2 and
therefore refused to negotiate said item of the school calendar.
See Morris The Developing Labor Law 1971, p. 324.
-15-
Respondent's Contentions Regarding "Business Necessity" of Calendar Adoption
- 	Having concl1,1cle_d that: the starting and ending dates of teacher service are
within the scope of representation pursuant to section 3543. 2, 	it must be
determined whether the District failed or refused to me.et and negotiate in
good faith with respect to this aspect of "school calendar."
The District vigorously defends its tmilateral adoption of a "tentative"
school calendar on May 19, 	1977, which contained the starting and ending
dates of teacher service, 	or the grotmds that it had compelling reasons for
adoption of the calendar (requests for the school schedule from members of the
conm.mity, 	necessity of informing its employees of their work schedules and the
District's own business requirements for scheduling purchase and delivery dates
of supplies).
The defense of ''business necessity" to a tmilateral action appears to be
available when the exigencies of the employer's business require an irrrrediate
m:magement decision in order to prevent serious harm or disaster to the
.busmess. 13
TI1e facts in the instant matter are that the District tmilaterally adopted
its school calendar for the 1977-78 school year on May 19, 	1977, 	two weeks after
the Association submitted its initial contract proposal for the 1977-78 school
year which contained a proposal for school calendar.
The evidence further shows that while the District agreed to and did in
fact negotiate certain elements of the school calendar (duty hours and nuriber of
duty days per year) 	the District steadfastly took the position that the
scheduling of workdays 	(including the starting and ending dates of teacher service)
is not an item within the scope of representation pursuant to section 3543.2 and
therefore refused to negotiate said item of the school calendar.
13see :Morris 	The Developing Labor Law 	1971, p. 	324.
-15-

In NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177], the United States
Supreme Court held:
. the duty [to bargain collectively] . . . may
be violated without a general failure of subjective
good faith; for there is no occasion to consider the
issue of good faith if a party has refused even to
negotiate in fact about any of the mandatory subjects.
A refusal to negotiate in fact as to any subject which
Is within the scope of representation] and about which
the union seeks to negotiate, violates [ the IMRAJ
though the employer has every desire to reach agreement
with the union upon an overall collective agreement
and earnestly and in good faith bargains to this end.
[50 LRRM at 2180] [Emphasis added. ]
Thus, while it may be that the District negotiated with a desire to reach
agreement with the Association upon an overall contract and earnestly and in
good faith bargained toward agreement, it nevertheless remains that the District
refused to negotiate the starting and ending dates of teacher service.
Because the District adopted the school calendar on May 19, 1977, two weeks
after the Association presented its initial proposal and over three months
before the opening day for the 1977-78 school year, never attempted to reach
agreement on the starting and ending dates of teacher service through negotiation
with the Association, and was able, without apparent difficulty, to notify all
certificated staff of the unilaterally determined dates of teacher service
during the first week of August 1977, the District's "business necessity" defense
cannot overcome the conclusion that it failed to negotiate with the Association
regarding a mandatory subject of negotiation in violation of section 3543.5(c)
and concomitantly section 3543.5(b) .
Allegation Regarding Section 3543.5(a)
The PERB itself held in San Diegueto Faculty Association v. San Diegueto
Union High School District EERB Decision No. 22 (9/2/77), that in order to prove
a violation of section 3543.5(a) the charging party must show either that the
allegedly illegal conduct was carried out with the intent to interfere with
-16-
In NLRB v. Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177], 	the United States
Supreme Court held:
. 	the duty [ to bargain collectively] 	. 	. 	. may
be violated without a general failure of subjective
good faith; 	for there is no occasion to consider the
issue of good faith if a party has refused even to
negotiate in fact about any of the mandatory subjects.
A refusal to negotiate in fact as to any subject vvhich
.1.s 'wllliin [the scope of representation] 	and about which
the union seeks to negotiate, 	violates 	[ the ll1RA]
though the employer has every desire to reach agreement
with the lfillon upon an overall collective agreement
and earnestly and in good faith bargains to this end.
[50 LRRM at 2180] 	[Emphasis added.]
Thus, vvhile it may be that the District negotiated with a desire to reach
agreement with the Association upon an overall contract and earnestly and in
good faith bargained toward agreem2nt, 	it nevertheless remains that the District
refused to negotiate the starting and ending dates of teacher service.
Because the District adopted the school calendar on May 19, 	1977, 	two weeks
after the Association presented its initial proposal and over three nunths
before tl1e opening day for the 1977-78 school year, 	never attempted to reach
agreement on the starting and ending dates of teacher service through negotiation
with the Association, 	and was able, without apparent difficulty, 	to notify all
certificated staff of the mtllaterally determined dates of teacher service
during the first week of August 1977, 	the District's '1)usiness necessity" defense
cannot overcom2 the conclusion that it failed to negotiate with the Association
regarding a mandatory subject of negotiation in violation of section 3543.S(c)
and concomitantly section 3543.S(b).
Allegation Regarding Section 3543.S(a)
The PERE itself held in San Dieguito Faculty Association v. 	San Dieguito
Union High School District 	EERB Decision No. 	22 	(9/2/77), 	that in order to prove
a violation of section 3543. 5 (a) 	the charging party ITRJSt show either that the
allegedly illegal conduct was carried out with the intent to interfere with
-16-

employee rights or that the conduct had the natural and probable consequence
of interfering with the exercise of employee rights. Because the District
did meet and negotiate with the Association regarding the number of workdays
and duty hours, and did reach agreement with the Association regarding all
matters relating to wages, hours and other terms and conditions of employment
except for the items relating to school calendar dealt with herein, it is
concluded that the District's failure to negotiate the starting and ending
dates of teacher service was not carried out with the intent to interfere with
employee rights nor that it had the natural and probable consequence of interfering
with the exercise of employee rights. Accordingly, no violation of section
3543.5(a) is found.
REMEDY
Government Code section 3541.5(c) provides that the PERB shall have the
power to issue a decision and order in an unfair practice case directing an
offending party to cease and desist from the unfair practice and to take such
affirmative action as will effectuate the policies of the Educational Employment
Relations Act.
Under the facts of this case, an order to cease and desist from failing
or refusing to meet and negotiate in good faith over the subject matters
determined within this decision to be mandatory subjects of negotiations is
adequate to remedy the unfair practice. In addition, an order to post copies
of the order will be required. A posting requirement effectuates the policies
of the EERA in that it serves to inform the employees of the disposition of
the unfair practice charge, and further, announces the readiness of the District
to comply with the decision. See NLRB v. Empress Publishing Co. (1941) 312 U.S. 426
[8 LRRM 415, 420].
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law and the entire
record in this case, and pursuant to section 3541.4(c), it is hereby ordered
employee rights or that the conduct had the natural and probable consequence
of interfering with the exercise of employee rights. 	Because the District
did rreet and negotiate with the Association regarding the nurriber of workdays
and duty hours, 	and did reach agreem2nt with the Association regarding all
matters relating to wages, 	hours and other"tenns and conditions of employment
except for the items relating to school calendar dealt with herein, 	it is
concluded that the District's failure to negotiate the starting and ending
dates of teacher service was not carried out with the intent to interfere with
employee rights nor that it had the natural and probable consequence of interfering
with the exercise of employee rights. 	Accordingly, no violation of section
3543.S(a) 	is folID.d.
REMEDY
Government Code section 3541.S(c) provides that the PERB shall have the
p01Ner to issue a decision and order in an lmfair practice case directing an
offending party to cease and desist from the unfair practice and to take such
affirmative action as will effectuate the policies of the Educational Employment
Relations Act.
Under the facts of this case, 	an order to cease and desist from failing
or refusing to me.et and negotiate in good faith over the subject matters
detennined within this decision to be mandatory subjects of negotiations is
adequate to remedy the lmfair practice. 	In addition, 	an order to post copies
of the order will be required. 	A posting requirerrent effectuates the policies
of the EERA in that it serves to inform the employees of the disposition of
the lmfair practice charge, 	and further, 	announces the readiness of the District
to comply with the decision. 	See NLRB v. 	Empress Publishing Co. 	(1941) 	312 U.S. 	426
[8 LRRl1 415 , 420] .
RECOMMENDED ORDER
Upon the foregoing findings of fact, 	conclusions of law and the entire
record in this case, 	and pursuant to section 3541.4(c), 	it is hereby ordered

that the Pleasant Valley School District, its governing board, and other
representatives shall:
A. 	CEASE AND DESIST FROM:
1. Unilaterally taking action on matters within the scope
of representation without meeting and negotiating upon request
with the Pleasant Valley School District Education Association;
2. Failing or refusing to meet and negotiate in good faith
with the Pleasant Valley School District Association upon request
with regard to the starting and ending dates of teacher service.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Prepare and post copies of this Order at all of its schools
and work sites for twenty (20) calendar days in conspicuous places,
including all locations where notices to certificated employees are
customarily posted;
2. At the end of the posting period, notify the Los Angeles
Regional Director of the Public Employment Relations Board of the
action it has taken to comply with this Order.
It is further ordered that the unfair practice charge is dismissed with
respect to the allegation that the Pleasant Valley School District violated
section 3543.5(a) .
Pursuant to California Administrative Code, tit. 8, section 32305, this
Proposed Decision and Order shall become final on July 31, 1978, unless a
party files a timely statement of exceptions within twenty (20) calendar
days following the date of service of this Proposed Decision. Any statement
of exceptions and supporting brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall be filed with the
-18-
that the Pleasant Valley School District, 	its governing board, 	and other
representatives shall:
A. 	CEASE Ai.1\ID DESIST FROM:
1. 	Unilaterally taking action on matters within the scope
of representation without meeting and negotiating upon request
with the Pleasant Valley School District Education Association;
2. 	Failing or refusing to meet and negotiate in good faith
with the Pleasant Valley School District Association upon request
with regard to the starting and ending dates of teac..1-ier service.
B. 	TAKE TIIE FDILOWING AFFIRMATIVE ACTIONS DESIGNED 'ID
EFFECTUATE TIIE POLICIES OF TIIE ACT:
1. 	Prepare and post copies of this Order at all of its schools
and work sites for twenty (20) 	calendar days in conspicuous places,
including all locations where notices to certificated employees are
customarily posted;
2. 	At the end of the posting period, notify the Los Angeles
Regional Director of the Public Employment Relations Board of the
action it has taken to comply with this Order.
It is further ordered that the unfair practice charge is dismissed with
respect to the allegation that the Pleasant Valley School District violated
section 3543.S(a).
Pursuant to California Administrative Code, 	tit. 	8, 	section 32305, 	this
Proposed Decision and Order shall become final on July 31, 	1978, unless a
party files 	a timely statement of exceptions within twenty 	(20) 	calendar
days following the date of service of this Proposed Decision. 	Any 	statement
of exceptions and supporting brief must be served concurrently with its filing
upon each party to this proceeding. 	Proof of service shall be filed with the
-18-

PERB itself. See Cal. Admin. Code, tit. 8, sections 32300 and 32305
(as amended) .
Dated: July 7, 1978 Kenneth A. Perea
Hearing Officer
-19-
PERB
itself.
	See
Cal.
	Admin. 	Code,
	tit.
	8,
	sections
	32300
and
32305
(as
	amended).
Dated:
	July
7,
	1978
-19-
l 	Kerme.th A .
	.PereaHearing
Officer