Newman-Crows Landing Unified School District (PERB 0223E)

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STATE OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
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CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	NEWMAN-CROWS 	LANDING
CHAPTER #551,
Charging 	Party,
v.
NEWMAN-CROWS 	LANDING UNIFIED
. SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	S-CE-219
PERB Decision 	No. 	223
June 	30, 	1982
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Appearances: 	Michael 	Heumann, 	Attorney 	for 	California 	School
Employees 	Association, 	Newman-Crows 	Landing 	Chapter 	#551;
Robert 	A. 	Galgani, 	Attorney 	(Breon, 	Galgani 	& Godino) 	for
Newman-Crows 	Landing 	Unified 	School 	District.
Before 	Gluck, 	Chairperson; 	Morgenstern 	and 	Tovar, 	Members.
DECISION
The 	California 	School 	Employees 	Association, 	Newman-Crows
Landing 	Chapter 	#551 	(CSEA) 	and 	the 	Newman-Crows 	Landing
Unified 	School 	District 	(District) 	except 	to 	a 	hearing
officer's 	proposed 	decision 	finding 	that 	the 	District 	violated
subsections 	3543.5(b) 	and 	(c) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA)l 	by 	unilaterally 	laying 	off 	nine
instructional 	aides 	without 	notifying 	and 	negotiating 	over 	the
effects 	of 	the 	layoff 	with 	the 	exclusive
I
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540

representative, 	CSEA. 	The 	District 	excepts 	to 	the 	findings
that 	(1) 	such 	effects 	of 	layoff 	as 	the 	timing 	and 	duration 	of
layoffs 	and 	the 	number 	and 	identity 	of 	employees 	to 	be 	laid 	off
are 	negotiable; 	(2) 	the 	District 	did 	not 	give 	sufficient 	notice
to CSEA 	prior 	to 	making 	the 	decision 	to 	layoff; 	(3) 	CSEA did
not 	waive 	its 	right 	to 	negotiate 	by 	failing 	to 	make 	an 	adequate
request 	to 	negotiate; 	and 	(4) 	an 	appropriate 	remedy 	requires
that 	the 	affected 	employees 	be 	reinstated 	and 	made 	whole
retroactively 	to 	the 	date 	of 	the 	layoff. 	CSEA objects 	to 	the
hearing 	officer's 	dismissal 	of 	that 	part 	of 	its 	charge 	alleging
that 	the 	District 	violated 	EERA 	by 	not 	first 	negotiating 	the
decision 	to 	lay 	off.
FACTS
At 	the 	time 	of 	the 	alleged 	violation, 	the 	parties 	were
working 	under 	a 	two-year 	agreement, 	running 	from 	July 	1, 	1977
to 	June 	30, 	1979. 	During 	negotiations 	for 	this 	contract, 	CSEA
had 	proposed 	detailed 	provisions 	on 	layoffs. 	Except 	for 	a
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted.
Subsections 	3543.S{b) 	and 	{c) 	provide:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
{b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
{c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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section 	on 	voluntary 	demotions 	or 	reductions 	in 	hours 	in 	lieu
of 	layoffs 	which 	was 	incorporated 	into 	the 	agreement, 	the
District 	steadfastly maintained 	that 	proposals 	on 	layoffs 	were
outside 	the 	scope 	of 	bargaining 	and 	not 	negotiable. 	There 	is
nothing 	in 	the 	record 	to 	show 	that 	CSEA 	ever 	filed 	unfair
practice 	charges 	because 	of 	the 	District's 	position.
The 	District's 	disputed 	actions 	arose 	from 	the 	passage 	of
Proposition 	13 	in June 	1978, 	and 	the 	District's 	concerns 	over
prospective 	budget 	deficits. 	In May, 	in 	anticipation 	of 	the
Proposition's 	passage, 	the 	District 	began 	contemplating 	cuts
that 	would 	be 	necessary. 	In 	early 	June, 	the 	District
superintendent 	spoke 	with 	Barbara 	Barlow, 	a 	member 	of 	the
classified 	unit, 	its 	bargaining 	committee, 	and 	the 	chairperson
of 	the 	CSEA 	state 	research 	negotiating 	committee, 	about 	the
possibility 	of 	a 	reduction 	in 	the 	hours 	of 	instructional 	aides
instead 	of 	layoffs. 	Both 	parties 	considered 	the 	discussions 	to
be 	informal. 	At 	the 	Public Employment 	Relations 	Board 	(PERB)
hearing, 	the 	superintendent 	further 	qualified 	the 	discussion 	by
stating 	that 	he 	did 	not 	inform Barlow 	that 	the 	District 	was
contemplating 	implementation 	of 	either 	alternative. 	In
response 	to 	a 	question 	from 	CSEA's 	attorney, 	he 	said 	that 	at
that 	time 	he 	was 	just 	trying 	to 	witness 	her 	reaction 	and 	to
hear 	her 	suggestions 	as 	to 	alternatives. 	The 	superintendent
also 	testified 	that 	he 	had 	a 	similar 	discussion 	with
Greg 	Marvel, 	the 	CSEA 	field 	representative. 	Marvel, 	however,
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denies 	this, 	and 	the 	hearing 	officer 	credited 	the 	latter's
testimony, 	finding 	that 	the 	superintendent 	apparently 	had
confused 	a 	conversation 	he 	had 	with 	Dorothy 	Lemas, 	the 	CSEA
local 	president, 	with 	one 	that 	he 	did 	not 	have 	with 	Marvel.
On 	July 	21, 	Lemas 	received 	the 	agenda 	for 	the 	District's
July 	25 	board 	of 	trustees 	meeting. 	Item 	7.1 	proposed 	a
resolution 	to 	eliminate 	nine 	teacher 	aide 	positions. 	Lemas
notified 	both 	Barlow 	and 	Marvel. 	Marvel 	said 	that 	he 	was 	made
aware 	of 	the 	resolution 	only 	several 	hours 	before 	the 	meeting;
nevertheless, 	he 	attended 	the 	meeting 	and 	addressed 	the 	board.
While 	it 	is 	clear 	that 	Marvel 	criticized 	the 	resolution
during 	his 	presentation, 	claiming 	that 	it 	was 	an 	illegal
action, 	the 	record 	is 	less 	than 	clear 	as 	to 	whether 	Marvel
referred 	to 	EERA 	violations, 	as 	well 	as 	those 	under 	the
Education Code, 	and 	whether 	he 	requested 	the 	District 	to
negotiate 	over 	the 	decision 	to 	lay 	off 	and 	its 	impact 	upon
bargaining 	unit 	employees. 	Witnesses 	for 	CSEA 	testified 	that
Marvel, 	in 	so 	many 	words, 	stated 	that 	the 	subject 	of 	layoffs
was 	negotiable 	and 	that 	the 	District 	had 	the 	responsibility 	to
meet 	and 	negotiate 	with 	CSEA. 	On 	the 	other 	hand, 	the 	District
superintendent 	and 	board 	members 	testified 	that 	nothing 	in
Marvel's 	presentation 	could 	be 	construed 	as 	a 	request 	to
negotiate. 	Although, 	the 	District's 	witnesses 	seemed 	to 	waiver
slightly 	in 	their 	recollections, 	in 	total, 	their 	testimony
indicates 	that 	Marvel 	did 	not 	refer 	to 	the 	scope 	of
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negotiations 	under 	EERA 	and 	did 	not 	make 	a 	request 	to 	negotiate
on 	either 	the 	subject 	of 	the 	decision 	to 	lay 	off 	or 	the 	impact
of 	such 	layoffs.
The 	hearing 	officer 	found 	the 	evidence 	to 	be 	uncontroverted
and 	that 	CSEA 	never 	specifically 	requested 	to 	negotiate 	the
effects 	of 	the 	layoffs. 	However, 	relying 	upon 	the 	demeanor 	of
the 	witnesses, 	the 	fact 	that 	two 	District 	witnesses 	failed 	to
deny, 	absolutely, 	that 	Marvel 	had 	made 	the 	statements 	he
claimed 	to 	have 	made, 	and 	statements 	purportedly 	made 	by
Patricia Morgan, 	the 	president 	of 	the 	school 	board 	at 	that
meeting,2 	he 	found 	that 	the 	Association 	did 	believe 	that
layoffs 	were 	negotiable 	and 	that 	it 	requested 	the 	District 	to
negotiate.
After 	Marvel's 	presentation, 	the 	board 	voted 	4-1 	in 	favor
of 	the 	layoffs. 	The 	affected 	aides 	were 	notified 	by 	letter 	on
July 	26 	that 	they 	were 	to 	be 	terminated 	as 	of 	August 	29.
Again, 	the 	hearing 	officer 	credited 	the 	testimony 	of 	the 	CSEA
witnesses.
2During 	the 	PERB 	hearing, 	CSEA witnesses 	and 	Morgan
presented 	conflicting 	testimony 	as 	to 	her 	statements. 	The
former 	testified 	that, 	in 	response 	to 	Marvel's 	presentation
that 	the 	District 	should 	negotiate 	the 	question 	of 	layoff,
Morgan 	exclaimed 	that 	the 	board 	is 	the 	body 	that 	makes
decisions 	such 	as 	this, 	not 	CSEA. 	Morgan, 	however, 	claims 	that
she 	made 	the 	response 	in 	reaction 	to 	Marvel's 	general
statements 	about 	the 	illegality of 	the 	layoffs 	and 	that 	the
essence 	of 	her 	comments 	was 	that 	the 	board 	had 	to 	make 	cuts 	and
that 	she 	would 	prefer 	the 	laying 	off 	of 	nine 	aides 	to 	that 	of
three 	teachers.
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On August 	15, 	Chapter 	President 	Lemas 	read 	a 	letter
addressed 	to 	the 	board 	wherein 	she 	touched 	upon 	the 	lawfulness
of 	the 	District's 	action 	under 	EERA. 	She 	wrote:
What 	the 	board 	did 	was 	take 	unilateral
action 	without 	meeting 	with 	the
representatives 	of 	••• 	CSEA 	••• 	to 	meet
and 	negotiate 	on 	the 	layoff 	of 	these 	nine
members.
. 	. 	. 	. 	. 	. 	. . 	. . 	. 	. 	. 	. . 	. 	. 	. 	. 	.
I 	request 	that 	the 	school 	board 	reconsider
and 	rehire 	these 	nine 	classified 	people.
The 	board 	made 	no 	response 	and 	did 	not 	subsequently 	seek 	to
negotiate 	with 	CSEA 	prior 	to 	August 	29. 	On August 	29, 	the
employees 	were 	laid 	off.
On 	January 	24, 	1979, 	CSEA 	filed 	unfair 	practice 	charges
alleging 	that 	the 	District 	violated 	subsections 	3543.S(b) 	and
{c) 	by 	unilaterally 	laying 	off 	the 	nine 	employees 	without 	first
negotiating 	in 	good 	faith 	the 	decision 	to 	lay 	off 	and 	the
effects 	of 	layoffs. 	On 	January 	26, 	a 	PERB 	hearing 	officer
ordered 	CSEA 	to 	particularize 	its 	charges 	so 	as 	to 	provide 	a
statement 	that 	would 	properly 	constitute 	an 	unfair 	practice
charge.3 	Among 	the 	particularizations 	that 	the 	hearing
officer 	requested 	was:
3PERB 	rules 	and 	re9ulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31000 	et 	seq.
Rule 	32650(a) 	provides 	in 	part:
On 	its 	own 	motion 	••• 	the 	Board 	may
require 	the 	charging 	party 	••• 	to
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If 	the 	charging 	party 	made 	a 	request 	to
negotiate, 	state 	whether 	the 	request 	was 	to
negotiate 	about 	the 	procedure 	and 	sequence
of 	the 	layoffs 	or 	whether 	or 	not 	there 	were
to 	be 	any 	layoffs 	at 	all.
In 	its 	responding 	particularization, 	CSEA 	stated:
Charging 	Party 	requested 	the 	opportunity 	to
negotiate 	about 	the 	layoffs, 	and 	indicated
that 	the 	Respondent 	had 	failed 	to meet 	and
negotiate 	on 	the 	issue 	prior 	to 	taking 	the
action 	to 	layoff. 	Said 	request 	was 	made
orally 	at 	the 	July 	25, 	1978 	Board 	of
Trustees 	meeting 	prior 	to 	the 	Board 	taking
action, 	and 	was 	made 	by Mr. 	Greg 	A. 	Marvel,
Field 	Representative 	of 	the 	Charging 	Party.
The 	request 	was 	made 	to 	the 	full 	Board 	of
Trustees 	and 	the 	oral 	response 	to 	the
arguments 	presented 	by 	Charging 	Party 	at
that 	meeting 	was 	that 	the 	Board 	was 	elected
to 	run 	the 	District 	and 	that 	was 	what 	they
were 	going 	to 	do ••••
The 	request 	to 	meet 	and 	negotiate 	on 	the
layoffs 	of 	the 	instructional 	aides 	was 	a
general 	request 	to 	negotiate 	on 	the 	subject
of 	the 	layoffs. 	It 	was 	pointed 	out 	by
Charging 	Party 	at 	the 	July 	25, 	1978 	meeting
of 	the 	Board 	of 	Trustees 	that 	Charging 	Party
had 	concerns 	as 	to 	the 	validity 	and/or
accuracy 	of 	a 	seniority 	list 	of
instructional 	aides.
DISCUSSION
We 	find 	that 	CSEA 	failed 	to 	demand 	to 	negotiate 	on 	the
effects 	of 	the 	layoff. 	While 	it 	is 	not 	essential 	that 	a
request 	to 	negotiate 	be 	specific 	or 	made 	in 	a 	particular 	form,
Al 	Landers 	Dump Truck, 	Inc. 	(1971) 	192 	NLRB 	207 	[77 	LRRM 	1729]
Schreiber 	Freight 	Lines 	(1973) 	204 	NLRB 	1162, 	[83 	LRRM 	1612],
supplement 	the 	charge 	• 	with 	additional
specified 	information
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it 	is 	important 	for 	the 	charging 	party 	to 	have 	signified 	its
desire 	to 	negotiate 	to 	the 	employer 	by 	some 	means. 	NRLB 	v.
Columbian 	Enameling 	and 	Shaping 	Co. 	(1939) 	306 	U.S. 	292 	[4 	LRRM
524); 	Arneri9an 	Buslines, 	Inc. 	(1967) 	164 	NLRB 	1055 	[65 	LRRM
1265). 	In 	Al 	Landers, 	supra, 	the 	board 	said:
[A) 	valid 	request 	to 	bargain 	need 	not 	be
made 	in 	a 	particular 	form, 	or 	in 	haec 	verba,
so 	long 	as 	the 	request 	clearly 	indicates 	a
desire 	to 	negotiate 	and 	bargain 	on 	behalf 	of
the 	employees 	in 	the 	appropriate 	unit
concerning 	wages, 	hours, 	and 	other 	terms 	and
conditions 	of 	employment.
In 	other 	words, 	a 	valid 	request 	will 	be 	found, 	regardless
of 	its 	form 	or 	the 	words 	used, 	if 	it 	adequately 	signifies 	a
desire 	to 	negotiate 	on 	a 	subject 	within 	the 	scope 	of
bargaining. 	Here, 	the 	hearing 	officer 	found 	that 	CSEA
requested 	to 	negotiate 	layoffs. 	However, 	he 	acknowledged 	that
the 	record 	is 	uncontroverted 	and 	that 	CSEA 	never 	provided 	any
indication 	that 	it 	desired 	to 	negotiate 	the 	effects 	of 	layoff.
All 	available 	evidence 	indicates 	that 	it 	only 	requested 	to
negotiate 	the 	decision 	itself, 	an 	issue 	which 	is 	not
negotiable, 	infra.
In 	its 	response 	to 	the 	particularization 	request 	and 	in 	its
testimony 	at 	the 	PERB 	hearing, 	CSEA 	asserted 	a 	demand 	to
negotiate 	the 	issue 	prior 	to 	the 	District's 	"taking 	the 	action
to 	lay 	off" 	-- 	that 	is 	to 	say 	before 	the 	District made 	its
decision 	to 	adopt 	the 	July 	25 	resolution 	to 	lay 	off. 	It
further 	claimed 	that 	it 	had 	made 	a 	general 	"request 	to
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negotiate" 	but 	in 	the 	same 	response 	qualified 	its 	position 	as
concern 	with 	"the 	validity 	and/or 	accuracy 	of 	a 	seniority
list."4
While 	at 	the 	PERB 	hearing, 	Marvel 	said 	that 	he 	was
primarily 	interested 	in 	negotiating 	the 	effects 	issue, 	he 	later
admitted 	he 	never 	described 	these 	concerns 	to 	the 	school
board. 	He 	further 	conceded 	that 	after 	the 	resolution's
adoption, 	he 	considered 	the 	issue 	closed 	and 	that 	any 	further
requests 	would 	be 	futile. 	He 	based 	this 	conclusion, 	in 	large
part, 	on 	the 	Morgan 	response 	made 	during 	his 	presentation
before 	the 	school 	board.
Even 	CSEA's 	version 	of 	Morgan's 	comments 	supports 	the
finding 	that 	CSEA 	only 	intended 	to 	negotiate 	the 	decision
itself. 	According 	to 	CSEA, 	she 	asserted 	that 	only 	the 	District
was 	invested 	with 	the 	authority 	to make 	layoff 	decisions.
By 	claiming 	that 	the 	District's 	adoption 	of 	the 	resolution
made 	any 	further 	negotiations 	futile, 	CSEA 	further 	indicated
that 	it 	only 	desired 	to 	negotiate 	the 	decision 	to 	lay 	off. 	The
District did 	not 	intend 	to 	implement 	the 	decision 	until
August 	29, 	1978, 	and 	a 	request 	to 	negotiate 	effects 	could
4While 	the 	validity 	and/or 	accuracy 	of 	a 	seniority 	list
may 	be 	subject 	to 	a 	grievance 	procedure, 	it 	is 	not 	negotiable
because 	order 	of 	layoff 	and 	seniority 	are 	specifically
prescribed 	by 	the 	Education 	Code, 	infra, 	p. 	13, 	fn. 	7. 	See
Jefferson 	School 	District 	(6/19/80) 	PERB 	Decision No. 	133.
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consequently 	have 	been 	made 	during 	the 	intervening 	time.
Furthermore, 	the 	Lemas 	letter 	of 	August 	14 	was 	directed 	at 	the
July 	25 	unilateral 	decision 	prior 	to 	negotiating 	the 	decision
to 	layoff 	and 	nothing 	more. 	It 	demands 	that 	the 	board
"reconsider 	and 	rehire" 	the 	laid-off 	employees.
While 	the 	hearing 	officer's 	particularized 	request 	was
inexplicably 	limited,5 	CSEA's 	responsibility 	to 	file 	a 	prima
facie 	charge 	was 	not 	relieved. 	It 	failed 	to 	do 	so.
In 	sum, 	CSEA 	gave 	no 	general 	notice 	of 	its 	interest 	in 	the
effects 	of 	the 	layoff 	decision 	and, 	of 	course, 	submitted 	no
related 	proposals. 	The 	District 	never 	expressed 	a 	refusal 	to
negotiate 	on 	such 	matters 	and, 	indeed, 	never 	addressed 	the
subject 	in 	any 	way. 	Under 	these 	circumstances, 	it 	is 	not
possible 	to 	find 	that 	the 	District 	refused 	to 	negotiate 	on 	the
effects 	of 	the 	layoff.
Accordingly, 	we 	find 	that 	the 	District's 	refusal 	to
negotiate 	was 	directed 	only 	to 	the 	matter 	of 	the 	decision 	to
lay 	off.
The 	effects 	of 	layoff 	identified 	and 	found 	within 	scope 	by
the 	hearing 	officer 	(timing 	and 	duration of 	the 	layoff, 	number
of 	employees 	affected, 	seniority, 	location, 	and 	severance 	pay)
SA more 	appropriate 	request 	to 	particularize 	would 	have
asked 	CSEA 	to 	state 	the 	exact 	language 	used 	in 	its 	oral 	request
to 	the 	school 	board 	to 	negotiate.
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were 	never 	raised 	in 	the 	course 	of 	the 	hearing. 	Neither 	party
had 	any 	knowledge 	that 	those 	matters 	would 	be 	ruled 	on. 	The
District 	certainly 	had 	no 	opportunity 	to 	produce 	evidence 	or
argument 	concerning 	their 	inclusion 	in 	the 	scope 	provisions 	of
the 	EERA. 	In 	deciding 	these 	matters 	under 	these 	circumstances,
the 	hearing 	officer 	exceeded 	his 	jurisdictional 	authority.
Only 	one 	issue 	was 	properly 	before 	him: 	did 	the 	District
violate 	EERA 	by 	unilaterally 	deciding 	to 	lay 	off 	certain
employees. 	An 	employer 	violates 	subsection 	3543.S(c) 	by
unilaterally 	changing 	a 	matter 	within 	the 	scope 	of
representation 	without 	giving 	the 	exclusive 	representative
notice 	of 	such 	changes 	so 	as 	to 	provide 	it 	with 	the 	opportunity
to 	negotiate. 	San 	Mateo 	County Community 	College 	District
(6/8/79) 	PERB 	Decision No. 	94. 	In Anaheim 	Union High 	School
District 	(10/28/81) 	PERB 	Decision No. 	177, 	the 	Board
established 	a 	test 	to 	determine 	whether 	a 	subject 	which 	is 	not
specifically 	enumerated 	in 	subsection 	3543.2(a) 	is 	negotiable
under 	the 	Act:6
[A] 	subject 	is 	negotiable 	even 	though 	not
specifically 	enumerated 	if 	(1) 	it 	is
6subsection 	3543.2(a) 	states:
(a) 	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
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logically 	and 	reasonably 	related 	to 	hours,
wages 	or 	an 	enumerated 	term 	and 	condition 	of
employment, 	(2) 	the 	subject 	is 	of 	such
concern 	to 	both 	management 	and 	employees
that 	conflict 	is 	likely 	to 	occur 	and 	the
mediating 	influence 	of 	collective
negotiations 	is 	the 	appropriate 	means 	of
resolving 	the 	conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not
significantly 	abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the
District's 	mission.
The 	layoff 	of 	employees 	unquestionably 	impacts 	on 	their
wages, 	hours, 	and 	other 	conditions 	of 	employment. 	It may
reassignment 	policies, 	safety 	conditions 	of
employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to 	Section
3546, 	procedures 	for 	processing 	grievances
pursuant 	to 	Sections 	3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff 	of 	probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the 	Education
Code. 	In 	addition, 	the 	exclusive
representative 	of 	certificated 	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 	the
public 	school 	employer 	to 	consult 	with 	any
employees 	or 	employee 	organization 	on 	any
matter 	outside 	the 	scope 	of 	representation.
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concurrently 	impact 	upon 	those 	employees 	who 	remain.
Nevertheless, 	the 	determination 	that 	there 	is 	insufficient 	work
to 	justify 	the 	existing 	number 	of 	employees 	or 	sufficient 	funds
to 	support 	the 	work 	force, 	is 	a 	matter 	of 	fundamental
managerial 	concern 	which 	requires 	that 	such 	decisions 	be 	left
to 	the 	employer's 	prerogative. 	In CSEA 	v. 	Pasadena Unified
School 	District 	(1977) 	71 	Cal.App.3d 	318, 	the 	court 	interpreted
Education 	Code 	section 	453087 	and 	rejected 	CSEA's 	arguments
that 	a 	school 	district's 	discretion 	to 	lay 	off 	because 	of 	a
"lack 	of 	funds" 	should 	be 	limited. 	CSEA 	had 	argued 	that
layoffs 	because 	of 	insufficient 	funds 	should 	not 	be 	permitted
when, 	in 	fact, 	the 	District 	maintained 	an 	undistributed 	amount
7Education 	Code 	section 	45308 	provides 	in 	relevant 	part:
Classified 	employees 	shall 	be 	subject 	to
layoff 	for 	lack 	of 	work 	or 	lack 	of 	funds.
Whenever 	a 	classified 	employee 	is 	laid 	off,
the 	order 	to 	layoff 	[sic] 	within 	the 	class
shall 	be 	determined 	by 	length 	of 	service.
The 	employee 	who 	has 	been 	employed 	the
shortest 	time 	in 	the 	class, 	plus 	higher
classes, 	shall 	be 	laid 	off 	first.
Reemployment 	shall 	be 	in 	the 	reverse 	order
of 	layoff.
For 	purposes 	of 	this 	section, 	for 	service
commencing 	or 	continuing 	after 	July 	1, 	1971,
"length 	of 	service" 	means 	all 	hours 	in 	paid
status, 	whether 	during 	the 	school 	year, 	a
holiday 	recess, 	or 	during 	any 	period 	that 	a
school 	is 	in 	session 	or 	closed, 	but 	does 	not
include 	any 	hours 	compensated 	solely 	on 	an
overtime 	basis 	as 	provided 	for 	in
Section 	45128.
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of 	reserve 	funds 	which 	evidenced 	to 	CSEA 	that 	there 	was 	no 	lack
of 	funds. 	The 	court 	held 	that, 	absent 	evidence 	that 	the
District 	clearly 	abused 	its 	discretion, 	it 	had 	clear 	authority
to 	determine 	the 	amounts 	necessary 	to 	be 	committed 	to 	the
legislatively 	authorized 	reserve 	funds. 	Concommitantly, 	the
court 	implicitly 	recognized 	the 	District's 	authority 	to
unilaterally 	decide 	when 	there 	exists 	such 	a 	"lack 	of 	funds" 	as
to 	require 	the 	layoff 	of 	personnel 	under 	section 	45308. 	Such 	a
finding 	recognizes 	management's 	fundamental 	authority 	to
determine 	its 	operating 	budget 	for 	a 	fiscal 	year.
The 	hearing 	officer's 	determination 	that 	the 	decision 	to
lay 	off 	employees 	is 	not 	within 	the 	scope 	of 	mandatory
negotiations 	is 	affirmed. 	The 	charge 	is 	dismissed 	in 	its
entirety.
ORDER
Based 	on 	this 	entire 	record 	before 	the 	Public 	Employment
Relations 	Board 	the 	charges 	filed 	by 	the 	California 	School
Employees 	Association, 	Newman-Crows 	Landing 	Chapter 	1551
against 	the 	Newman-Crows 	Landing 	Unified 	School 	District 	are
hereby 	DISMISSED.
By: 	1rperson 	Irene 	Tovar, 	Member
i1ember 	Horgenstern' s 	concurrence 	and 	dissent 	begin 	on 	page 	15.
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Marty Morgenstern, 	Member, 	concurring 	and 	dissenting:
In 	this 	case, 	the 	District 	excepts 	to 	the 	findings
that: 	(1) 	Such 	effects 	of 	layoff, 	as 	the 	timing 	and
duration 	of 	layoffs 	and 	the 	number 	and 	identity of
employees 	to 	be 	laid 	off, 	are 	negotiable; 	(2) 	the 	District
did 	not 	give 	sufficient 	notice 	to 	CSEA 	prior 	to 	making
the 	decision 	to 	lay off; 	(3) 	CSEA did 	not 	waive 	its 	right
to 	negotiate 	by 	failing 	to 	make 	an adequate 	request 	to
negotiate; 	and 	(4) 	an 	appropriate 	remedy 	requires 	that 	the
affected 	employees 	be 	reinstated 	and made 	whole 	retro-
actively 	to 	the 	date 	of 	the 	layoff. 	CSEA 	objects 	to 	the
hearing 	officer's 	dismissal 	of 	that 	part 	of 	its 	charge
alleging 	that 	the 	District 	violated 	EERA by 	not 	first
negotiating 	the 	decision 	to 	lay 	off.
I 	concur with 	the 	majority 	in 	upholding 	the 	District's
exceptions 	in 	points 	1, 	2 	and 	4 	above 	and 	in 	dismissing
CSEA's 	single 	objection 	to 	the 	hearing 	officer's 	decision.
In 	dissent, 	I 	would 	point out 	that while 	the 	union
could easily 	have 	been more 	precise 	in 	responding 	to 	the
District's 	intent 	to 	lay off, 	both 	parties 	share 	the
responsibility 	to 	make 	the 	negotiation 	requests 	more
specific 	and 	narrowly 	drawn. 	CSEA's 	actions 	were 	sufficient
to 	put the 	District 	on 	notice 	that 	the 	union 	wanted 	to
negotiate 	the 	layoff 	to 	the 	extent 	it 	is 	negotiable. 	The
Board 	has 	usually 	been 	loathe 	to 	find 	that 	a 	waiver 	exists
except 	in 	the 	most 	unambiguous 	of 	circumstances.
Therefore, 	on 	point 	3 	above, 	the 	proper 	decision would 	be
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to 	find 	that 	CSEA did 	not 	waive 	its 	right 	to 	negotiate
on 	those 	aspects 	of 	the 	layoff 	that 	are 	negotiable.
The 	majority 	is 	correct 	in 	stating 	that 	"the
decision 	to 	lay 	off 	employees 	is 	not 	within 	the 	scope 	of
mandatory 	negotiations." 	On 	the 	other 	hand, 	the 	impact
of 	that 	decision 	is 	negotiable. 	Management 	does 	not
have 	to 	negotiate 	on 	the 	decision 	to 	lay 	off 	in 	order 	to
effect 	such 	a 	decision, 	and 	the 	majority 	is 	correct 	in
refusing 	to 	reinstate 	the 	employees 	in 	this 	case.
However, 	properly, 	the 	employer 	should 	now 	be 	required 	to
negotiate 	on 	the 	effects 	of 	the 	layoff 	decision 	(e.g.,
severance, 	re-call
Marty Morgenstern, 	Member
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