Oakland Unified School District (PERB 0275E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
Charging 	Party,
v.
OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case 	No. 	SF-CE-408
PERB Decision No. 	275
December 29, 	1982
Appearances; 	Andrew Thomas 	Sinclair, 	Attorney 	(Sinclair 	&
Clancy) 	for 	Oakland 	School Employees 	Association;
Ember 	Lee 	Shinn, 	Attorney 	for 	Oakland 	Unified 	School 	District.
Before Jaeger, 	Morgenstern and Jensen, 	Members.
DECISION
JENSEN, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(hereafter 	PERB or 	Board) 	on 	exceptions 	filed
by 	the 	Oakland 	Unified 	School District 	(hereafter 	District),
and 	a 	response 	to 	those 	exceptions 	filed 	by 	the 	Oakland 	School
Employees Association 	(hereafter 	Association or 	OSEA). 	The
proposed 	decision of 	the 	hearing 	officer 	is 	incorporated 	by
reference 	herein. 	In that proposed decision, 	the hearing
officer 	found 	that 	the 	disputed 	Association proposals 	on
(1) 	"in-service 	training" 	(but 	for 	a required minimum
amount),1 (2) 	"personnel selection" 	and 	(3) 	"minimum hours"
1NO exception 	was 	taken 	to 	this 	finding, 	and 	therefore 	it
is not before us.
)
)
)
)
)
)
)
)
)
_______________ )

were 	within 	the 	scope 	of 	representation 	and 	that 	the 	District
engaged 	in 	"bad 	faith 	surface 	bargaining" 	as 	to 	the 	latter 	two
proposals 	in violation of subsections 3543.5(a), 	(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA or 	the
Act) .2
The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of
respondent's 	exceptions 	and 	charging 	party's 	responses 	thereto,
and 	affirms 	the 	hearing 	officer's 	findings of 	fact 	and
conclusions 	of 	law only 	insofar 	as 	they 	are 	consistent with
this decision.
PROCEDURAL 	HISTORY
On October 	4, 	1979, 	OSEA filed 	two unfair 	practice charges
against the District. 	As amended, 	in Case No. 	SF-CE-408, 	the
2EERA is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	Unless otherwise 	specified, 	all references 	shall be
to 	the 	Government 	Code.
Subsections 3543.5 (a), 	(b) , and 	(c) 	provide as follows
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
22
..

Association 	charged 	that 	the 	District 	failed 	to 	negotiate 	in
good 	faith 	on 	six 	items 	in 	violation 	of 	EERA subsections
3543.5(b) and (c) .
In Case No. 	SF-CE-409, 	the Association alleged 	the District
failed 	and 	refused 	to 	grant 	members 	of 	the 	paraprofessional
negotiating 	unit 	the 	pay 	increase 	granted 	to other 	classified
employees 	in 	the 	District, 	thereby violating EERA subsections
3543.5 (a), (b) and (c) .
An 	informal hearing 	failed 	to resolve 	the 	charges, 	and 	a
formal hearing 	was 	held on November 	20, 	1979. 	On 	the
Association's motion, 	the 	hearing 	was 	reopened on
September 	12, 	1980, 	to 	take new evidence concerning 	the
credibility of a District witness. 	In addition, 	by agreement
of 	the 	parties, 	official 	notice 	was 	taken of 	the portion of 	the
record 	in Case 	No. 	SF-CE-469 	between 	the 	same 	parties 	relating
to 	standardization of 	paraprofessionals' 	hours.
On November 	28, 	1979, 	after 	the 	first hearing 	in Cases
Nos. 	SF-CE-408 	and 409, 	the Association 	filed a 	third charge
against 	the 	District 	(SF-CE-428) 	in which 	it 	alleged 	the
District 	attempted 	to condition 	ratification of 	the 	parties'
negotiated 	agreement 	upon 	withdrawal of 	the 	two 	previous 	unfair
practice 	charges. 	The 	Association also alleged 	the 	District
negotiated 	in 	bad 	faith 	on 	a 	negotiations 	proposal 	involving 	a
tradeoff 	of 	a 	salary 	increase 	in 	return 	for 	an 	unpaid 	day of
sick 	leave. 	The 	Association 	alleged 	violations 	of 	EERA
33

subsections 3543.5(a), 	(b), 	and 	(c). 	By agreement of the
parties, 	this 	charge was 	consolidated with 	the 	previous 	two and
submitted 	for 	decision 	to 	the 	hearing 	officer 	on 	the 	basis 	of
the 	record 	in 	SF-CE-408 	and 	409.
However, 	post-hearing 	settlement discussions 	resulted 	in
the 	withdrawal by 	the 	Association of 	the 	charges 	in 	Cases
Nos. 	SF-CE-409 	and 	SF-CE-428 	in 	their 	entirety, 	as well as
portions of the charge 	in Case No. 	SF-CE-408. 	Therefore, 	in
the 	instant 	case, 	we 	are 	faced 	solely with 	the 	following 	issues
from Case No. 	SF-CE-408.
Did the District violate subsections 3543.5(a), 	(b), 	and
(c) 	of 	the Act by 	failing or 	refusing 	to negotiate 	in good
faith 	with 	the 	Association on 	the 	following 	items:
1. 	Four-hour 	minimum workday 	for 	new positions; 	and
2. 	The 	selection 	criteria 	to 	fill 	vacant 	positions 	within
the 	negotiating 	unit?
FACTS
In 	November 	1978, 	OSEA was certified as 	the 	exclusive
representative of 	a 	classified 	employee 	negotiating 	unit,
commonly referred 	to as 	the 	"paraprofessional" 	unit, 	consisting
mainly of 	instructional aides, 	as 	well 	as 	community health
assistants. 	The 	first 	set 	of 	negotiations 	began 	shortly
thereafter 	and by June 	30, 	1979 	the parties were close 	to
agreement on 	the majority of 	issues, 	with 	grievance 	procedure,
classification 	in 	services, 	and wages 	still 	outstanding.
4

On June 30, 	the District's chief negotiator, 	James Wilson,
retired 	and was 	replaced 	by 	Loma 	Reno, 	already 	a member 	of 	the
negotiating 	team 	and 	the 	District's 	personnel 	assistant 	who 	at
that point 	became 	the 	District's 	chief 	negotiator. 	When
Ms. 	Reno took 	over 	as chief negotiator, 	the parties reviewed
the 	proposals 	to which 	there was 	tentative 	agreement 	to verify
its 	accuracy 	as 	to 	the 	understanding of 	the 	parties.
By October 	2, 	1979, 	the 	District entered 	into a stipulation
that certain 	items, 	including 	the 	provision of 	a minimum amount
of 	in-service 	training 	for 	the 	paraprofessional unit, 	were
beyond 	the 	scope of 	bargaining. 	The 	Association 	filed 	Charge
No. 	SF-CE-408 	based upon 	this 	stipulation.
By October 	12, 	1979, 	the parties 	had 	reached 	tentative
agreements 	on basically 	all 	but 	four 	items. 	The 	parties
decided 	to 	enter 	into a 	negotiated 	agreement 	leaving 	the 	four
items for 	further 	negotiations. 	On October 	22, 	1979, 	the
parties 	signed 	another 	stipulation 	regarding 	the 	District's
position 	as 	to 	the 	negotiability 	of 	the 	remaining 	issues.3
3That 	stipulation 	stated:
IT 	IS HEREBY STIPULATED 	that 	in 	addition 	to
the 	terms 	listed 	in 	the 	Stipulation of
October 	2, 	1979, 	the 	following 	items are
considered 	to 	be 	beyond 	the 	scope 	of
bargaining 	by 	the 	Oakland 	Unified 	School
District with 	regard 	to 	the 	negotiations 	for
the 	Paraprofessional 	Bargaining 	Unit 	and
that 	the 	District will 	not 	bargain with
respect 	to 	them:
5

Charge 	SF-CE-408 	was 	then 	amended 	by OSEA to 	include 	the 	items
in 	the 	new 	stipulation. 	The 	parties 	had 	agreed 	to a 	total
package 	increase 	of 	8.4 percent 	with 	the 	trade-offs 	being 	that
the 	first 	day 	of 	sick 	leave 	would 	be without 	pay 	and 	certain
concessions 	on 	eligibility 	requirements 	for 	health 	benefits.
Ms. 	Reno took 	the 	tentative 	agreement 	to 	the 	board 	of education
for 	approval on October 	24, 	1979, 	and 	the 	board 	agreed 	to
ratify 	it with 	the 	four 	items 	left 	out.
On October 	26, 	1979, 	Ms. 	Reno met with OSEA representatives
and 	informed 	them 	that 	the 	board 	had 	approved 	the 	tentative
agreement. 	The 	Association 	asked 	if 	they could 	amend 	the
tentative agreement on 	three 	items, 	including 	the 	first day 	of
sick 	leave 	without pay. 	The 	school board 	refused 	the
amendments. 	On October 	30, 	1979, 	the District sent OSEA a
letter 	repudiating 	both 	stipulations 	and 	offering 	to
bargain/explore 	the 	negotiability of 	the 	disputed 	issues. 	The
letter, 	in relevant part stated:
1. 	The 	OSEA proposal with 	regard 	to
unemployment 	insurance 	(Article 	VIII 	of
the OSEA proposals);
2. 	Personnel 	selection 	(Article XII of 	the
OSEA proposals);
3. 	Classifications 	(Article XIV of 	the
OSEA proposals);
4. 	New 	positions 	(Article XV 1/2 	of 	the
OSEA proposals).
6

. 	. 	. 	Since the School District does not
wish 	to 	interpose 	artificial barriers 	to
communication, 	and wishes 	to promote 	good
faith 	bargaining 	between 	the parties, 	I
invite 	OSEA to 	return 	to 	the 	bargaining
table 	for 	further 	discussions. 	If 	OSEA will
demonstrate 	how 	these 	particular 	items 	are
within 	the 	scope of negotiations, 	the
District 	team will gladly 	consider 	them 	and
engage 	in 	good 	faith 	exploration 	as 	to 	the
possibility of 	agreement.
It also appears 	that 	the 	real problem is one
of 	reaching 	agreement 	rather 	than
determining 	whether 	these 	particular
proposals 	are within 	scope. 	I did not fully
realize 	the 	implications 	of 	the 	stipulations
we 	entered on 	October 	2 	and 	October 	22
respecting 	the 	scope of bargaining. 	While
reserving all objections 	as 	to 	scope, 	I must
repudiate 	these 	stipulations 	since 	the
District 	has 	in 	fact 	bargained 	and 	remains
willing 	to 	bargain 	over 	the 	seven 	proposals
in question.
The 	parties 	met and 	negotiated 	on November 	13 	and
November 16, 	1979. 	On November 	16, 	1979, 	the Association asked
the 	District 	to ratify 	the 	original 	tentative agreement. 	The
District, 	however, 	refused 	to enter 	into 	the 	agreement 	in 	light
of 	the 	upcoming 	unfair 	practice 	hearing 	scheduled 	for
November 	20. 	The 	District 	indicated 	it hoped 	to 	resolve 	all
outstanding 	negotiation 	issues, 	including 	items previously part
of 	the October 	22 	stipulation, 	at one 	time.
Disputed 	Proposals
A. 	The 	Four-Hour 	Minimum for 	"New 	Positions"
On September 	7, 	1979, 	OSEA submitted a proposal 	for 	"new
positions" which provided:
7

All new positions 	in 	this 	bargaining 	unit
shall be 	for 	at least 4 	hours. 	Only 	those
persons 	presently employed 	in 	this
bargaining 	unit 	may 	apply 	for 	such
positions, 	unless no applications are
received, 	in which case 	the position 	shall
be 	advertised 	for 	the 	general public.
a. 	Minimum qualifications 	may 	include
experiences 	in elementary or 	secondary
schools 	and/or 	experience 	in 	teaching
math 	and 	reading;
b. 	Applicants 	who meet 	the minimum
qualifications 	shall 	be 	selected 	on 	the
basis 	of 	seniority.
On September 	12, 	1979, 	the 	District 	submitted a counterproposal
which 	provided:
The daily work 	hours 	for 	members 	of 	this
unit 	will be 	established 	to meet 	the 	needs
of 	the district.
The 	District 	then modified 	its proposal on September 	19, 	1979
to provide:
Positions 	in 	this 	unit 	are 	established 	to
meet 	the 	needs of 	the district 	and provide 	a
service to the 	students. 	All vacancies 	-
those 	resulting 	from attrition 	as 	well 	as
any 	newly 	established 	positions 	- will 	be
reviewed 	to meet 	the 	criteria 	for 	the
establishment 	of 	the 	positions.
The 	daily work hours 	for 	members of 	this
unit 	will 	vary 	from 2 	hours per 	day 	to a
maximum of 	6 	hours per 	day.
The vacant positions 	will 	be 	posted 	and
selections 	made on 	the 	basis 	of
qualifications, 	affirmative action and
seniority.
The 	Association wanted 	to 	increase 	paraprofessionals' 	work
hours 	to a 	minimum of 	four 	because 	employees working 	less 	than
8

3 	1/2 	hours 	per 	day 	are 	not 	entitled 	to coverage 	under 	the
Public 	Employees 	Retirement 	System, 	are 	not 	credited with
Social 	Security 	contributions 	and 	receive 	a 	proportionally
lower 	contribution 	to other 	health 	and 	welfare 	benefits.
According 	to 	the 	District's 	estimates, 	increasing 	these
benefits 	for 	paraprofessionals 	would 	result 	in 	a 	25-percent
cost 	increase, 	and 	increasing 	the hours of 	all paraprofessional
employees 	to a minimum of 	four 	would 	cost 	about one 	million
dollars.
In 	negotiations on this proposal, 	the Association 	raised
the 	possibility of 	increasing 	the minimum hours 	of 	only 	25 	to
50 	employees 	rather 	than 	all of 	them, 	and also discussed 	the
possibility of 	increasing 	employees' 	hours 	through attrition.
The District began negotiations with, 	and was bound 	by, 	a
budgetary 	parameter 	set 	by 	the 	school board 	that 	"new monies"
for 	the 	negotiations 	could 	not 	exceed 	5 	percent. 	It was 	the
District's 	position 	that 	this 	amount of 	money 	was 	allocated 	for
the 	paraprofessional bargaining 	unit 	for 	salary 	increases. 	If
the 	employee 	organization wanted 	to 	increase 	the minimum hours
of 	employees, 	they would have 	to take 	the 	increased cost of
doing 	so out of 	the allocated 	funds. 	Ms. 	Reno 	testified 	that
OSEA could 	"buy 	back" 	some 	four-hour 	positions 	from 	the 	funds
allocated. 	She 	testified 	that 	she 	had 	no 	authority 	to bargain
for 	anything 	beyond 	this 	allocated 	pool of money.
9

As previously discussed, 	the 	District 	entered 	into 	a
stipulation on October 	22, 	1979 which 	stated 	that 	this proposal
on 	new 	positions 	was 	not 	within 	the 	scope of 	negotiations 	and
the 	District would 	not 	bargain over 	it. 	That 	stipulation was
repudiated on October 	30, 	1979. 	Ms. 	Reno 	testified 	that 	she
signed 	the 	stipulation 	because 	she 	was 	"frustrated."
At 	the 	negotiation 	sessions on November 	13 	and 	16, 	1979,
the 	Association 	again 	raised 	the 	possibility of 	increasing 	the
minimum hours of 	25 	to 50 	employees. 	The Association 	then
asked 	if 	the 	District would 	increase 	the 	hours 	of 	only 	two
employees 	to 	four 	per 	day. 	The 	District 	rejected 	both 	these
proposals on two grounds. 	First, 	its position was 	that there
was 	a pool of 	"new money" 	(5 percent) 	which already 	had 	been
allocated 	to other 	economic 	items, 	primarily 	salary. 	The
Association would 	have 	to 	"buy 	back" 	four-hour 	positions 	by
giving 	up other 	economic 	items 	upon 	which 	tentative 	agreement
had 	been reached. 	Secondly, 	the 	District could 	not 	increase
the 	hours of any 	position 	unless 	a particular 	school 	site
needed a 	four-hour 	employee. 	The 	federal guidelines 	require
each 	school site 	to establish 	its 	own 	budget, 	and 	through 	this
budgetary 	process 	the 	school 	sites 	determine 	their 	needs 	for
paraprofessional employees. 	However, Ms. 	Reno stated in
negotiations 	that, 	if 	the Association wanted 	to 	take 	part of
the 	5 	percent new money 	to pay 	for 	four-hour 	positions, 	the
District 	probably 	could 	find 	some 	school 	sites 	which would 	be
10

able 	to use 	employees 	with 	the 	increased hours.
The 	hearing 	was 	later 	reopened 	to 	take 	additional
testimony. 	Evidence 	was 	produced 	in 	the 	reopened 	hearing 	that
attempted 	to 	impeach 	the 	District's 	negotiating 	position 	that
it 	could 	not 	increase 	the 	hours 	of 	paraprofessional 	employees
unless 	requested 	by 	the 	school 	sites. 	It was 	established 	that
since 	at 	least 	1977 	there 	had 	been a written, 	administrative
policy 	in 	the 	District 	to 	standardize paraprofessional
positions 	at 	either 	three or 	six hours. 	The Association stated
that 	it was 	unaware of 	this policy until after 	the 	hearing, 	and
the 	District 	did 	not 	call 	the 	policy 	to 	the 	Association's
attention during 	negotiations. 	The 	record 	is 	unclear 	as 	to
whether 	OSEA had 	ever 	been 	informed 	of 	this policy 	in 	the 	past.
Despite 	the 	standardization policy, 	during 	the 	negotiations
there 	were 	paraprofessionals 	in other 	than 	three- or 	six-hour
positions. 	In 	addition, 	the 	parties 	stipulated 	that 	during
negotiations 	there 	had 	been 	requests 	from 	school 	sites 	for
positions 	that were 	for 	other 	than 	three 	or 	six hours 	and 	some
of 	these 	requests 	were 	for 	four-hour 	positions.
After 	the 	hearing, 	the 	District 	took 	steps to enforce 	the
standardization 	policy 	by 	eliminating 	paraprofessional
positions which were 	for 	other 	than 	three 	or 	six hours.
B. 	Personnel 	Selection
OSEA submitted 	as part 	of 	its 	original proposals 	an 	article
entitled 	"Personnel 	Selection" 	which 	provided:
11

In 	the 	event 	of 	a vacancy within 	this 	unit,
the most 	senior 	applicant who meets 	the
minimum qualifications 	shall be 	selected.
The 	District did 	not 	initially make a counterproposal, 	but
rather 	contended 	the 	proposal 	was 	out of 	scope. 	OSEA modified
its 	proposal on October 	10 	after 	discussions 	with 	the 	District
to 	read 	as 	follows:
In 	the event of a vacancy within 	this 	Unit,
the 	most 	senior 	applicant 	who meets 	the
minimum qualifications 	shall 	be 	selected.
For purposes of 	this provision, 	seniority
shall 	be computed on 	the 	basis 	of 	the 	number
of days worked, 	not on 	the 	basis of 	the
number 	of hours 	worked.
a. 	The 	employee with 	the 	earliest date of
hire 	shall 	be 	presumed 	to 	have 	the
greatest 	seniority, 	unless 	the employee
has 	had 	leaves 	in excess of 	60 	days
during 	the 	employee's 	employment
history.
The 	District 	took 	the 	position 	that 	this 	modified 	proposal
was also beyond 	the 	scope of bargaining. 	The 	October 	22, 	1979
stipulation 	listed 	personnel 	selection 	as 	being 	beyond 	the
scope of bargaining. 	But 	again, 	that stipulation was
repudiated on October 	30, 	1979, 	and 	the 	parties 	returned 	to the
bargaining 	table.
The 	Association 	then 	submitted 	a 	revised 	version 	of 	its
proposal on November 	13, 	1979, 	which stated:
In 	the 	event 	of a 	vacancy within 	this
bargaining 	[unit], 	the most qualified
candidate 	shall 	be 	selected. 	The
qualifications 	shall 	include 	only 	the
following:
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1. 	Experience 	in elementary and/or
secondary 	schools;
2. 	Experience 	with 	mathematics 	and/or
reading;
3. 	Number 	of days working 	in 	this
bargaining 	unit.
In 	the 	event of equally qualified
candidates, 	the affirmative 	action goals of
the 	District 	shall 	be 	controlling.
The 	District 	responded 	with 	their 	first 	counterproposal on
November 16, 	1979, which stated:
Employment, 	assignment 	and promotion are 	the
sole 	right of 	the district. 	The most
qualified 	applicant 	shall 	be 	selected 	for
any 	vacant position. 	Qualifications
criteria will be 	determined 	by 	experience 	in
related grade 	level, 	and 	the 	requirements 	of
the position.
If 	the 	top applicants 	are 	substantially
equal 	in qualifications:
1. 	The district's 	affirmative action goals
shall be given priority; 	otherwise,
2. 	Seniority 	shall be 	the 	deciding 	factor.
The 	District's 	position 	was 	basically 	that 	the 	selection of
the 	particular 	individual was 	a management prerogative.
However, 	the 	District was willing 	to negotiate 	over 	the
criteria 	for 	personnel 	selection of 	new 	vacancies or 	positions
within 	the 	District or 	re-employment within 	the 	District. 	At
the 	time 	of 	the 	hearing, 	the 	District was willing 	to bargain
over 	this 	criteria 	and 	had a proposal on 	the 	table.
The 	principal disagreement 	between 	parties 	with 	regard 	to
this proposal 	was 	the 	way 	in which 	seniority was 	to be computed
13

and 	the 	importance 	of 	affirmative 	a c t i o n . 	Ms. 	Reno 	t e s t i f i e d
t h a t 	a f t e r 	July 	1, 	1971, 	pursuant 	to 	the 	Education 	Code,
s e n i o r i t y 	was 	computed 	on 	the 	b a s i s 	of 	hours 	in 	paid 	s t a t u s ,
r a t h e r 	than 	days. 	Accordingly, 	employees 	working 	the 	same
number 	of 	days 	could 	accumulate 	s e n i o r i t y 	at 	completely
d i f f e r e n t 	r a t e s . 	Ms. 	Reno 	agreed 	t h a t 	computing 	s e n i o r i t y 	as
provided 	in 	the 	Education 	Code 	would 	have 	the 	p r a c t i c a l 	e f f e c t
of 	freezing 	employees 	working 	fewer 	hours 	under 	the 	D i s t r i c t ' s
personnel 	s e l e c t i o n 	proposal 	into 	low 	s e n i o r i t y 	placement.
However, 	the 	D i s t r i c t 	was 	s t r o n g l y 	a g a i n s t 	using 	days 	in 	paid
s t a t u s 	as 	the 	b a s i s 	of 	computing 	s e n i o r i t y 	for 	fear 	t h a t 	t h i s
would 	"confuse" 	employees. 	It 	would 	c r e a t e 	dual 	s e n i o r i t y
r o s t e r s 	because, 	according 	to 	the 	Education 	Code, 	lay-off 	and
re-employment 	r i g h t s 	had 	to 	be 	computed 	based 	on 	hours 	in 	paid
s t a t u s . 	OSEA 	attempted 	to 	meet 	t h i s 	concern 	by 	modifying 	t h e i r
proposal 	to 	mention 	only 	"number 	of 	days 	working 	in 	t h i s
bargaining 	u n i t . " 	However, 	the 	D i s t r i c t 	remained 	s t r o n g l y
opposed 	to 	using 	any 	means 	other 	than 	t h a t 	s e t 	forth 	in 	the
Education 	Code 	to 	compute 	s e n i o r i t y .
DISCUSSION
A. 	N e g o t i a b i l i t y 	of 	OSEA's 	Proposals
The District excepts to the hearing officer's rationale and
conclusion that the Association's proposal on the four-hour
minimum for new positions and the selection criteria for vacant
positions are within the scope of representation and hence
14

negotiable. 	We 	have 	carefully 	evaluated 	the 	District's
arguments 	in 	respect 	to 	the 	negotiability of 	these 	proposals,
and 	find 	them to be 	unconvincing. 	We 	therefore 	affirm and
adopt 	the 	hearing 	officer's 	conclusions 	that 	both 	of 	these
proposals 	are 	within 	the 	scope of 	representation.
B. 	Duty 	to Bargain
The 	District 	forcefully 	excepts 	to 	the 	hearing 	officer's
conclusion 	that 	the 	District 	engaged 	in 	surface 	bargaining with
respect 	to 	these 	two proposals 	in violation of 	its 	duty 	to
bargain 	in good 	faith. 	The 	exception 	has 	merit 	and we 	reverse
the 	hearing 	officer 	on 	this 	finding.
Both 	the 	National 	Labor 	Relations 	Board 	(hereafter 	NLRB)
and 	this 	agency 	have 	held 	that 	the 	question of 	good 	faith 	must
be 	based 	on 	the 	totality 	of 	the 	parties' 	conduct.4 In
weighing 	the 	facts, 	we must 	determine 	whether 	the conduct of
the 	parties 	indicates 	an 	intent 	to 	subvert 	the 	negotiating
process 	or 	is 	merely a 	legitimate 	position 	adamantly maintained.
To 	evaluate 	surface 	bargaining 	requires 	a detailed
consideration of 	the 	totality of 	the 	parties' 	conduct 	to
determine 	if 	that party 	is 	merely going 	through 	the motions of
negotiations 	as 	an elaborate 	pretense 	to 	avoid 	agreement. 	NLRB
4NLRB v. 	Truitt Mfg. 	Co. 	(1956) 	351 U.S. 	149 	[38 LRRM
2042]; 	NLRB v. Alva Allen Industries, 	Inc. 	(8th Cir. 	1966) 	369
F.2d 310 	[63 LRRM 	2515]; 	Muroc 	Unified School District
(12/15/78) 	PERB Decision No. 	80; 	Fremont Unified School
District 	(6/19/80) 	PERB Decision No. 	136.
15

v. 	Reed & Prince Mfg. 	Co. 	(1st Cir. 	1953) 	205 F.2d 	131 	[32 LRRM
2225].
However, 	EERA does 	not 	require parties 	to reach 	agreement
or 	make concessions on 	every proposal. 	The NLRB 	and 	the courts
have 	consistently 	ruled 	that 	adamant 	insistence 	on 	a 	bargaining
position 	is 	not necessarily a 	refusal 	to bargain 	in good
faith. 	NLRB v. 	American National Insurance Co. 	(1952) 	343 U.S.
395 	[30 LRRM 2147]. 	See also NLRB v. 	Wooster 	Division of
Borg-Warner 	Corporation 	(1958) 	356 U.S. 	342 	[42 LRRM 2034].
And 	in NLRB v. 	Herman Sausage Co. 	(5th Cir. 	1960) 	275 F.2d 229
[45 LRRM 2829], 	the Court said:
The 	obligation of 	the 	employer 	to bargain 	in
good 	faith 	does 	not 	require 	the 	yielding 	of
positions 	fairly 	maintained.
C. 	Four-Hour 	Minimum
The parties met 	through 	October 	12, 	1979 	and negotiated
over 	this proposal.
The District's October 22, 	1979 stipulation as to the
non-negotiability of 	this proposal was repudiated soon
thereafter on October 30, 1979. 	We do not view this
repudiation as 	evidence of a refusal 	to bargain but rather
as 	a good 	faith appeal to return to the 	bargaining 	table
with this proposal. 	The District continued to negotiate on the
proposal on November 13 and 16, 	1979. 	The District rejected
the Association's 	subsequent proposals on 	the 	"four-hour
minimum" because acceptance of the proposals would have to
16

involve trade-offs. 	The District reasoned that the Association
would have to buy back these four-hour positions by giving up
other economic items upon which tentative agreement had
previously been reached. 	The District felt bound by a
5 percent budget ceiling for negotiations, 	and that these
four-hour positions would have to come out of the limited
monies available. 	The District further 	took the position that
it could not increase the hours of any position unless a
particular site needed a four-hour position. 	However, Ms. Reno
testified that 	in negotiations she stated that if 	the
Association wanted to take part of the 5 percent monies to pay
for 	four-hour positions, 	the District probably could find some
school sites which would be able to use employees with
increased hours. 	This position does not reflect an
inflexibility on the part of the District to negotiate over
this proposal. 	Budgetary constraints are part of the variables
in the bargaining process and the District did negotiate over
these 	four-hour positions, pointing out, 	however, 	that funds
for 	these positions were only available out of the 5 percent
monies. 	This position is neither 	inflexible nor unreasonable
and 	is not 	inconsistent with good faith negotiations.
The Association argues, 	and the hearing officer found, 	that
the District's failure to inform the Association during
negotiations about its policy to standardize hours in the
bargaining unit was evidence of bad faith.
17

Under 	the 	facts presented 	in 	the 	instant case, 	we
disagree. 	Nowhere 	in 	the 	record 	is 	it 	indicated 	that 	the
Association made 	a 	request 	for 	such 	information. 	Certainly,
District policies 	of 	this 	sort 	are 	reachable 	through 	requests
for 	information 	and 	are 	generally 	available 	to 	the public.
Absent 	such 	a request, 	the 	District 	is 	under 	no obligation 	to
provide 	information. 	All districts 	have many policies 	in
writing, 	which may 	be of use 	or 	interest 	to a 	union during
negotiations. 	Furthermore, 	the 	record was unclear 	as 	to
whether 	OSEA had 	ever 	been 	informed of 	this policy 	in 	the
past. 	The 	record 	indicated 	that 	this 	standardization policy
was 	implemented 	very 	sporadically 	from 	its 	inception 	in 	1977
through 	the 	time 	of 	hearing. 	In 	light of 	the 	foregoing 	facts,
we 	find 	neither 	a 	deliberate 	withholding 	of 	relevant
information 	from 	the 	Association 	nor 	a 	duty of 	the 	District 	to
provide 	information 	in 	the 	absence of a 	request.
D. 	Personnel 	Selection
The 	District 	originally 	contended 	the 	personnel 	selection
proposal 	was 	beyond 	the 	scope 	of 	representation 	and signed 	the
October 	22, 	1979 	stipulation so 	stating. 	After 	its 	repudiation
of 	the 	stipulation, 	the 	District negotiated 	over 	the 	proposal.
The 	District 	took 	the 	position 	in 	negotiations 	that 	the
selection of 	the 	particular 	individual 	was 	a management
prerogative. 	However, 	the District was willing 	to negotiate
over 	the 	criteria 	for 	personnel 	selection of 	new vacancies,
18

transfers 	to positions 	within 	the 	District 	or 	re-employment
within 	the 	District. 	We 	find 	this 	position consistent 	with 	the
District's 	obligation 	to negotiate 	over 	the 	proposal. 	The
principal disagreement 	between 	the 	parties 	with 	regard 	to 	this
proposal 	was 	the 	way 	in 	which 	seniority would 	be computed 	and
the 	importance of affirmative 	action. 	The 	District's position
of 	maintaining 	seniority 	pursuant 	to 	Education 	Code 	provisions,
though 	perhaps 	evidence of hard 	bargaining, 	did 	not 	constitute
a 	refusal 	to 	negotiate. 	That position 	was 	based on 	legitimate
District 	concerns 	about 	setting 	up 	two 	different 	seniority
systems within 	the 	District. 	This position does 	not 	rise 	to
the 	level of 	inflexibility, 	but rather 	represents 	a 	firm
District position 	taken consistent 	with 	good 	faith. 	We 	find
that 	the 	District 	fulfilled 	its 	obligation 	to 	negotiate 	over
this proposal 	in 	good 	faith.
E. 	Totality of 	the 	Circumstances
The 	evidence 	adduced 	at 	the 	hearing 	showed 	that 	the 	parties
had 	reached 	tentative 	agreement 	on 	approximately 	95 	percent 	of
all contract 	items on October 	12, 	1979. 	The 	District signed
two stipulations 	in 	October 	stating 	basically 	that 	the
outstanding 	items 	were 	beyond 	the 	scope 	of 	bargaining 	and 	that
the District would 	not 	negotiate 	over 	those 	items. 	The
District 	was 	willing 	to sign 	the 	tentative 	agreement 	and 	allow
the 	remaining 	items 	to 	be 	resolved at 	the 	hearing. 	After
District 	negotiator, 	Loma Reno, 	had 	obtained 	board 	approval of
19

the 	October 	12, 	1979 	agreement, 	the Association sought to amend
that 	agreement 	as 	to 	three 	previously negotiated 	items. 	The
school board 	refused the amendments. 	On October 	30, 	1979, 	the
District 	repudiated 	both 	stipulations.5 The 	parties
continued 	to 	trade 	actual proposals 	and 	negotiate. 	On
November 	16, 	1979, 	the Association requested 	that 	the District
ratify 	the 	original 	tentative 	agreement 	reached on
October 12, 	1979. 	The District refused, 	however, 	to enter 	into
an 	agreement 	because 	they 	hoped 	to 	resolve 	all 	the 	outstanding
negotiation 	issues 	at 	the 	unfair 	practice 	hearing 	which 	was
four 	days 	away.6 While 	the 	negotiations 	regarding 	minimum
hours 	and 	personnel 	selection may 	evidence 	hard 	bargaining 	on
the part of 	the 	District, 	the District did 	negotiate, 	and did
not 	refuse 	to negotiate on 	those 	items 	after 	the 	District
repudiated 	the 	two stipulations. 	The 	parties were 	close 	to an
agreement 	and 	the 	record 	does 	not 	indicate 	that 	either 	party
was 	acting 	in 	a manner 	to avoid agreement. 	The 	school board
had 	ratified 	the 	tentative 	agreement with 	the 	exclusion of 	the
disputed 	items. 	The Association's 	subsequent 	attempts 	to amend
5If 	the 	District 	had 	not 	repudiated 	its 	stipulations 	so
rapidly, 	or 	had held 	to 	the 	position 	taken 	in 	the stipulations
for 	an 	unreasonable 	amount of 	time, 	we would 	have 	found 	a
per 	se 	refusal 	to bargain.
6The 	Association withdrew 	that 	portion 	of 	charge
SF-CE-428 	which 	alleged 	that 	the 	District 	attempted 	to
condition 	ratification 	upon withdrawal of 	the 	unfair 	practice
charges. 	Therefore 	that conduct 	is 	not before 	us here.
20

that 	tentative 	agreement, 	the 	reopening of 	negotiations on 	the
disputed 	items 	and 	the 	pendency 	of 	the 	unfair 	practice 	hearing
formed 	the 	basis 	of 	the 	District's 	rejection of 	the
Association's request to go back 	to the October 	12, 	1979
tentative 	agreement. 	The 	District 	favored 	negotiating 	to
resolve 	all 	the outstanding 	issues. 	Looking 	at 	the 	totality of
the circumstances, 	we cannot find 	surface bargaining. 	There 	is
insufficient 	evidence 	on 	this 	record 	to 	support 	that
conclusion.
The 	charge 	alleging 	the 	District 	violated 	subsections
3543.5(a), 	(b) 	and (c) 	is dismissed.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the entire record 	in 	this 	case, 	the 	Public 	Employment
Relations 	Board 	hereby 	DISMISSES 	the 	charges 	filed 	by OSEA
against 	the 	Oakland 	Unified 	School District.
Members 	JAEGER and 	MORGENSTERN 	join 	in 	this 	decision.
21