Alameda County Board of Education and County Superintendent of Schools of Alameda County (PERB 0323E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SOUTHERN 	ALAMEDA 	COUNTY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
ALAMEDA 	COUNTY BOARD 	OF EDUCATION AND
COUNTY SUPERINTENDENT 	OF 	SCHOOLS 	OF
ALAMEDA 	COUNTY,
Respondents.
Case No. 	SF-CE-521
PERB Decision No. 	323
June 30, 	1983
Appearances: 	Diane Ross, 	Attorney for 	Southern Alameda County
Teachers Association, 	CTA/NEA; 	Margaret E. 	O'Donnell 	and
Mark W. Goodson, Attorneys 	(Breon, Galgani, Godino and
O'Donnell) 	for 	Alameda County Board 	of Education 	and 	County
Superintendent 	of 	Schools 	of Alameda County.
Before Gluck, Chairperson; 	Morgenstern and Burt, Members.
DECISION
GLUCK, 	Chairperson: 	Respondents, 	Alameda County Board 	of
Education 	(BOE) 	and County 	Superintendent 	of Schools 	of Alameda
County 	(Superintendent), 	sometimes 	jointly referred 	to herein
as 	the District, 	except 	to a Public Employment Relations Board
(PERB) 	hearing 	officer's 	findings 	that 	the BOE is 	an 	employer
under 	the Educational Employment Relations Act 	(EERA) 	and 	that
both respondents violated subsections 3543.5 (a), 	(b), and
(c)l 	by 	the 	BOE'S 	refusal, 	in concert with 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless 	otherwise 	specified.
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Superintendent, 	to participate 	in negotiations 	or 	be 	a party 	to
the 	negotiations 	agreement 	with 	the 	exclusive 	representative,
the 	Southern Alameda County Teachers Association, 	CTA/NEA
(Association).
STATEMENT 	OF 	FACTS
On January 	3, 	1977, 	the BOE and Superintendent 	recognized
the Association 	as 	the 	exclusive 	representative 	of
approximately 	81 	certificated 	employees, 	some 	of 	whom work 	at
the 	District's 	juvenile 	court 	schools 	and 	other 	special
education 	programs.2 Superintendent 	Robert 	Coney 	testified
that 	the 	joint 	recognition 	occurred 	because 	of 	uncertainty 	as
to 	which 	governmental 	agency 	employed 	certificated 	personnel 	in
the 	county juvenile 	court schools. 	This 	confusion existed
because 	of 	former 	section 	857 	of 	the Welfare 	and 	Institute Code
which provided, 	in part:
The board of supervisors may 	. 	. 	. provide
that 	[juvenile 	court] 	schools 	established
and 	maintained 	pursuant 	to 	section 	856 	shall
be maintained 	by 	the 	county 	superintendent
of 	schools 	in which 	case 	the 	county board 	of
education shall 	have 	the 	same powers 	and
duties 	to 	such 	schools 	as 	the 	governing
board of 	a 	school 	district would 	have 	were
said 	schools 	maintained 	by 	the 	school
district 	under 	the provisions 	of 	this
article. 	. 	. 	. 	(Emphasis added.)
Between 1975 	and 	1979, 	the BOE and 	the Superintendent
separately 	offered 	individual 	employment 	contracts 	to
2The 	record 	does 	not 	provide 	any 	further 	information 	on
the 	composition of 	the 	unit 	or 	to which programs 	the 	employees
are 	assigned.
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certificated 	employees 	depending 	upon 	whether 	they worked 	in
the 	juvenile 	court 	schools 	or 	in 	another 	county 	special
education 	program.
In 	1977, 	the BOE and 	the 	Superintendent 	negotiated 	and 	were
signatories 	to 	their 	first 	agreement 	with 	the Association,
covering 	1977-1978. 	Article 	I 	of 	the 	agreement 	stipulated:
The Articles 	and 	provisions 	contained 	herein
constitute 	a 	bilateral 	and 	binding 	agreement
. . . 	by 	and 	between 	the Alameda 	County
Board 	of Education 	and 	the 	County
Superintendent, 	Schools 	(Board) 	and 	the
[Association].
During negotiations 	for 	the 	1978-1979 	agreement, 	the
parties 	agreed 	to modify 	the 	above 	provision 	to 	read 	the
"Alameda 	County Board 	of Education 	and/or 	County Superintendent
of Schools. 	. . . " 	(Emphasis 	added.) 	According 	to
Raul Jaramillo, 	chief negotiator 	for 	the District, 	the 	change
was 	stimulated 	by 	a 	decision of 	an 	administrative 	law 	judge
(ALJ) 	in 	the Office of Administrative Law 	involving 	the
propriety of 	a 	decision 	to 	layoff 	certificated 	employees 	in 	the
juvenile court 	school 	facilities. 	In 	the matter 	of 	the
Association 	against Vicki Ann Rozendal Henry 	et 	al. 	(4/26/77)
N 	9537, 	the ALJ 	held 	that 	the BOE was 	the 	employer 	of
certificated 	employees 	of 	the 	juvenile 	court 	school 	program 	and
the 	only 	agency 	authorized 	to dismiss 	them from 	service, 	but
that 	the Superintendent 	employed 	the 	certificated 	employees 	in
the 	other 	special 	education 	programs 	and 	had 	sole 	authority 	to
dismiss 	these 	employees.
W	
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In 	early 1979, 	the BOE sought 	an opinion 	from 	the Alameda
county counsel 	as 	to 	whether 	it 	could 	retain 	an 	attorney 	to
negotiate 	with 	employees 	of 	the Alameda County Office 	of
Education. 	The 	county counsel 	rendered 	an opinion 	that
legislative 	enactments 	repealing 	section 	857 	of 	the Welfare 	and
Institutions 	Code 	and 	adding 	section 	889 	of 	the 	Welfare 	and
Institutions Code 	and 	section 	48645 	of 	the Education Code
created 	"grave 	doubts 	as 	to 	whether 	the 	[BOE] 	any 	longer 	has
employees." 	Section 889 	requires 	that 	the BOE provide 	for 	the
administration 	and 	operation 	of 	juvenile 	court 	schools 	while
section 	48645.2 	states 	that 	the 	BOE 	shall provide 	for 	such
administration 	and 	operation 	by 	using 	the 	county 	superintendent
of 	schools 	or 	the 	"respective 	governing 	boards 	of 	the
elementary, 	high school, 	or 	unified 	school district 	in which
the 	juvenile 	court 	school 	is 	located." 	The 	county 	counsel
stated:
. 	. 	. 	the thrust of the 	legislation is 	that
the 	County Board 	of Education provides 	for
the 	administration 	and 	operation, 	not 	that
it 	administers 	and operates 	the 	juvenile
court 	schools. 	If 	it elects 	to do so by 	the
County Superintendent 	it 	appears 	to us 	that
the 	employees 	are 	employed 	by 	the 	County
Superintendent 	just 	as 	where 	the 	schools 	are
administered 	and 	operated 	by 	contract 	with 	a
school district, 	the employees 	are 	employees
of 	the 	school district.
Superintendent 	Coney 	testified 	that 	because 	negotiations
for 	the 	1979-1980 	agreement 	were 	already 	in progress 	when 	the
county 	counsel's 	opinion 	was 	received, 	the District did 	not
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propose 	any 	changes 	to 	the 	"and/or" 	language 	of Article 	I or 	to
Article 	II, 	the 	recognition clause, 	which 	continued 	to state
that 	both 	the 	BOE 	and 	the 	Superintendent 	recognized 	the
Association 	as 	the 	exclusive 	representative.
However, 	on November 	26, 	1979, Jaramillo sent to the
Association 	a memorandum which 	reported 	that:
Due 	to recent Education Code changes, 	the
staff 	assigned 	to Juvenile Court School 	are
now 	considered 	employees 	of 	the
Superintendent 	and 	not 	the Board 	of
Education.
There 	is 	no 	record 	of 	any 	response 	from 	the Association 	to
this memo. 	During 	the 1979-1980 school year, 	the District 	also
changed 	its 	former 	practice 	of 	providing 	separate 	employment
contracts 	by 	the 	BOE 	and 	Superintendent. 	Instead 	contracts
were 	signed 	only 	by 	the 	Superintendent.
1980 	Negotiations
On March 	21, 	1980, 	the Association presented 	its 	initial
proposal 	for 	the 	1980-1981 	agreement. 	It did 	not propose 	a
change 	in employer 	identification. 	Later, 	after 	developing
counterproposals 	which 	deleted mention 	of 	the 	BOE 	from Articles
I 	and 	II, 	Coney 	and Jaramillo met 	with 	the 	BOE 	in executive
session. 	The 	BOE 	agreed 	with 	the proposals 	and 	subsequently
adopted 	them 	in open 	session. 	On May 	28, 	Jaramillo presented
the 	proposals 	at 	the 	negotiating 	table 	and explained 	that 	the
Superintendent 	and 	the BOE were 	of 	the 	opinion 	that 	the
Superintendent 	was 	now 	the 	only employer. 	He 	testified 	that
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the BOE'S role was to be limited to giving final approval to
the negotiated 	agreement and 	to continuing 	its participation 	in
the grievance procedure at an intermediate step between the
Superintendent 	and 	arbitration.
Jerrel Cooper, the Association's president, testified that
the Association wanted to receive further proof of 	the BOE'S
intentions 	to withdraw as an employer, 	but agreed to continue
with negotiations in the interim.
On June 5, 	the District contacted 	the San Francisco
regional office of PERB to notify it that the designated
employer 	was 	to be changed 	from the BOE and 	the Superintendent
to the Superintendent only. 	A District witness 	testified that
she was 	informed by a PERB agent that 	there were no formal
procedures 	that needed to be followed and that the District
should forward a memo to PERB if 	it wanted the change noted 	in
its 	files.3 Accordingly, 	the District 	sent a letter
explaining 	that future agreements with employee organizations
will specify the Superintendent as 	the employer, but that the
BOE will 	continue 	to approve all such agreements.
At the June 18 negotiating session, Jaramillo distributed
to the Association a copy of a June 11 memorandum from Coney to
Jaramillo confirming 	the District's position that 	in the future
3The determination of changes 	in employer 	status should
be made pursuant to a Board hearing or 	investigation and not by
unilateral employer action. 	Nevertheless, the fact that the
Board agent offered this advice has no bearing on the 	issues
raised in this case.
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the 	BOE 	will 	no 	longer 	be 	designated 	as 	an employer 	and
contracting 	party. 	It 	stated 	that 	the BOE's 	role 	would 	be
limited 	to granting 	final 	approval 	to 	the 	negotiated 	agreement.
In 	response 	to 	further 	inquiries 	from the Association, 	the
BOE responded 	that 	all 	employees 	of 	the 	District 	were 	employed
by 	the Superintendent 	and 	that 	any 	further 	requests 	for
information 	relating 	to 	negotiations 	should 	be 	directed 	to 	the
Superintendent or 	its 	chief 	negotiator.
The Association provided 	somewhat 	inconsistent 	testimony 	as
to whether 	it perceived 	the District's 	position 	to be 	a
negotiable 	subject 	for 	bargaining 	or 	a 	statement of 	fact. 	At
one point, 	Cooper 	testified 	that, 	even 	after 	receipt of 	the
June 11 memo, 	the Association continued 	to negotiate with 	the
BOE on 	this 	and 	other 	matters 	as 	if 	it 	were 	the 	employer.
However, 	on direct examination, 	he 	characterized 	the District's
position 	as 	being 	offered 	as 	a nonnegotiable 	statement of
fact. 	On 	the other 	hand, 	Charley Hinton, 	Chapter 	Consultant
for 	the California Teachers Association, 	testified 	that 	he
considered 	the District's position 	always 	to be 	"just 	a
bargaining 	chip."
Both Cooper 	and Hinton 	testified 	that 	the District's
position affected 	the Association's 	negotiations because, 	had
it 	known 	of 	the 	change, 	it 	would 	have 	submitted different
initial proposals on such 	subjects 	as 	the grievance procedure
and 	the 	management-rights 	and 	no-strike 	clauses.
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The Association, 	however, 	did 	not modify 	its proposals 	upon
learning of 	the District's 	position. 	Hinton 	said 	that 	this 	was
because he 	believed 	that 	the BOE was 	still 	an employer, 	and
that 	the District was 	willing 	to bargain on 	the 	issue.
In November 	1980, 	the 	parties 	reached 	impasse 	and 	entered
mediation 	on 	several 	issues 	including 	the 	BOE'S 	employer
status. 	The parties 	were 	unable 	to 	resolve that 	issue 	and, 	on
November 	19, 	they 	entered 	into 	a written 	agreement 	deferring
the question. 	It 	stated:
[P]arties 	do herein agree 	that 	the 	issue of
Employer 	Identification 	shall 	at 	a 	future
date 	be 	determined 	by 	the 	appropriate 	legal
authority.
Said 	decision 	shall 	determine 	final 	language
used 	in 	the Employer/Employee 	contract.
In January 1981, 	the parties 	reached 	agreement on a
contract 	and 	continued, 	pending 	final 	resolution of 	the
employer 	issue, 	to 	use 	the 	standard 	language of Articles I
and 	II, 	which 	identified 	the BOE as 	an employer.
Relationship Between 	the Board 	and 	Superintendent; 	Among 	the
duties 	and powers of 	the Superintendent 	is 	the 	authority 	to
enter 	into 	contracts 	of 	employment 	with 	certificated 	employees
(Education Code section 1293); 	to administer, 	in accordance
with 	the powers 	and 	duties 	imposed 	upon or 	granted 	to 	the
governing 	boards of 	school or 	community 	college districts,
leaves of absence, 	sick leave, 	bereavement leave, 	layoffs,
dismissals, 	and 	industrial 	accidents 	and 	illness 	leave
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(Education Code 	section 1294); 	to grant, 	upon the approval of
the 	county 	board of 	education, 	leaves of 	absence for 	study 	and
travel 	(Education Code 	section 	1294); 	to employ persons
possessing 	appropriate 	credentials 	as 	certificated 	employees
(Education Code 	section 1294.5); 	and 	to employ, with the
approval 	of 	the 	county 	board 	of 	education 	and 	in 	accordance
with 	regulations 	of 	the 	superintendent 	of 	public 	instruction,
qualified 	personnel 	to provide 	for 	the 	coordination of 	courses
of 	study, 	guidance services, 	health services, 	school library
services, 	special education, 	and 	attendance activities among
the 	school 	districts 	under 	his 	jurisdiction 	(Education Code
section 	1703).
The 	powers 	and 	duties 	of 	the 	BOE 	include 	approving 	the
annual 	budget 	of 	the 	county 	superintendent 	of 	schools 	prior 	to
its 	submission 	to 	the 	county 	board 	of 	supervisors 	(Education
Code 	section 1040(c)); 	approving 	the 	annual school 	service fund
budget 	of 	the 	county 	superintendent 	of 	schools 	prior 	to 	its
submission 	to 	the 	superintendent of 	public 	instruction
(Education Code 	section 1040(d)); 	adopting 	rules 	and
regulations 	governing 	the 	administration of 	the office 	of 	the
county 	superintendent 	of 	schools 	(Education Code 	section
1042(a)); 	reviewing and making revisions, 	reductions, or
additions 	to, 	and 	approving 	prior 	to 	approval of 	the 	board 	of
supervisors 	the 	county superintendent of 	schools' 	annual
itemized 	estimate 	of 	anticipated 	revenue 	and 	expenditures
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(Education Code 	section 1042(b)); 	approving 	the 	annual 	estimate
(Education Code 	section 	1042(b); 	with 	the 	approval of 	the 	board
of 	supervisors, 	filing with 	the 	superintendent 	of 	public
instruction 	a 	single-fund 	tentative 	budget 	which 	may 	contain
(1) 	a 	general 	reserve which 	the 	board 	believes 	will meet 	the
cash 	requirements 	for 	the 	next 	fiscal year 	and 	(2) 	an
undistributed 	reserve 	which 	would 	be 	available 	for
appropriation 	by 	a 	two-third 	vote 	of 	the 	board 	to meet
unprovided-for 	expenditures 	(Education Code 	section 1621);
approving 	leaves 	of 	absence 	for 	study 	and 	travel 	for
certificated employees 	(Education Code 	section 1294); 	and
approving 	the 	employment 	of 	certain 	certificated 	employees
(Education Code section 1703).
In view 	of 	its 	authority under 	section 	1042(a), 	the BOE
developed, 	in consultation with 	the superintendent, 	Board
policy 	9600 	which 	defines 	the 	relationship 	and 	respective
responsibilities 	and 	powers 	between 	the 	two 	governmental
agencies. 	Coney 	conceded 	that 	the BOE has 	authority 	to
unilaterally amend 	the policy, 	but 	believed 	that 	it 	is
prohibited 	from 	modifying 	the 	duties 	and 	responsibilities 	of
the 	Superintendent which 	have 	been 	granted 	by 	the Legislature.
The 	BOE 	has 	also 	established 	Policy 	4600 which 	outlines
District 	guidelines 	for 	equal 	employment 	opportunity.
Superintendent 	Coney 	gave 	the 	only 	testimony as 	to 	this 	policy,
explaining 	that 	the 	BOE 	has 	authority 	to 	adopt 	standards 	that
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the 	Superintendent 	must 	meet 	when 	administering 	pertinent
programs. 	He 	described such 	standards 	as 	"I 	will not
discriminate 	in 	. . . 	I won't 	use 	sexist 	materials 	in 	the
classroom."
Coney 	testified 	that 	BOE 	presently 	does 	not 	have 	any
employment 	relations 	responsibilities 	and 	that 	it 	takes 	no
independent 	action 	in the 	following 	areas: 	hiring, 	salary
setting, disciplining, promoting, laying off, scheduling,
assigning, 	contracting with 	insurance 	carriers, 	determining
class 	size or 	evaluating. 	He 	claims 	that 	such functions 	are
the 	sole 	responsibility of 	the Superintendent. 	Nonetheless, 	he
acknowledged 	under 	cross-examination 	that 	by 	its 	participation
in 	the 	third 	step of 	the 	grievance 	procedure, 	the BOE could
affect 	employees' 	wages 	and other 	working 	conditions.
Coney 	stated 	that 	in 	the 	past 	the 	Superintendent's 	office
has 	usually 	developed 	the 	negotiating 	proposals 	which 	were 	then
reviewed 	by 	the 	BOE. 	The 	BOE 	conducted 	public 	hearings
required 	by 	EERA.4 Although 	Coney 	testified 	that 	he 	believes
he possesses 	the 	authority 	to 	conduct such a meeting, 	he 	never
has 	done 	so. 	At 	the 	public meeting, 	the 	superintendent
discusses 	the proposals with 	the BOE members who, 	in turn,
adopt 	them.
4EERA 	section 	3547.
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At 	one point, 	Coney 	testified 	that he does 	not 	seek 	a
formal vote 	from 	the members, 	but 	rather 	solicits 	their 	ideas
in an effort 	to reach a consensus. 	However, 	he also 	testified
that 	the 	BOE 	is 	not 	obligated 	to 	approve 	the 	counterproposals
that his 	staff 	has 	developed, 	but 	actually does 	so.
The BOE also 	approves 	the 	final 	agreement. 	Coney 	testified
that 	he 	has 	always 	tried 	to keep 	the 	board members 	informed of
the progress 	of 	negotiations 	to help ensure 	the 	agreement's
final 	approval. 	However, 	he emphasized 	that such 	approval 	is
not 	legally required, 	claiming 	that 	he 	seeks 	it 	as 	a matter 	of
"good 	politics" 	and 	"[t]hey do 	set my 	salary 	and 	I'm 	very
interested 	in what 	they 	have 	to 	say."
A 	similar 	relationship 	between 	the 	superintendent 	and 	the
BOE exists 	as 	to 	creation 	and 	approval of 	the 	District
budgets. 	The superintendent develops 	the 	budget, 	but
throughout 	the 	process 	he 	keeps 	the BOE informed, 	presenting 	to
it 	financial 	forecasts 	and 	tentative 	and preliminary 	budgets.
As 	with 	the 	collective 	bargaining 	agreement, 	he considers 	the
input of 	the 	BOE 	important, 	and 	concedes 	that 	the BOE does 	have
some 	responsibility for 	approval of 	the 	final budget. 	However,
he 	believes 	that 	this 	authority 	is 	purely ministerial 	and 	that
the BOE must 	adopt his 	proposals.
Further, 	he claims 	that 	if 	the BOE failed 	to adopt 	the
budget 	and 	final collective 	bargaining 	agreements, 	he would
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nevertheless 	proceed 	as 	if 	they had, 	although 	he 	is 	not 	sure
whether 	he 	has 	statutory 	authority 	to 	so 	act 	regarding 	the
budget.
DISCUSSION
In support of his 	finding 	that 	the 	BOE 	is 	an employer, 	the
hearing 	officer 	relied 	upon 	the 	"plain meaning" 	of 	section
3540.1(k) 	which 	he 	interpreted 	as 	indicative of 	a legislative
intent 	to 	include 	all 	boards 	of 	education 	as 	employers;
Education Code 	sections 	1980 	et seq, 	and 	52310.5(c) 	which
permit 	boards 	of 	education 	to 	establish 	and 	maintain 	community
schools 	and 	regional 	occupation 	center 	programs; 	and 	evidence
indicating 	that 	the 	BOE 	exercises 	joint 	control 	over 	District
employees' conditions of work. 	As 	to 	the last point, 	he
specifically 	found 	that 	BOE 	has 	authority 	to 	adopt 	guidelines
on 	such matters 	as 	the 	relationship between 	the 	BOE 	and 	the
Superintendent 	(Policy 	9600) 	and 	on 	equal 	employment 	and
educational opportunities 	(Policy 	4600); 	to approve sabbatical
leaves 	granted 	by 	the Superintendent; 	to 	set 	school 	holidays
and 	in-service 	training 	days 	in 	the 	juvenile 	court schools; 	to
establish 	the District budget; 	to 	resolve 	grievances; 	and 	to
participate 	in 	the 	negotiating 	process.
The 	District 	disputes 	each 	of 	the 	above 	findings 	and 	the
overall 	conclusion 	that 	the 	BOE 	is 	an employer. 	We 	find merit
in many 	of 	the 	District's 	contentions 	and 	agree 	that 	the BOE
does 	not 	possess 	sufficient 	control 	over 	employment 	conditions
13

of 	certificated 	employees 	within 	the 	District 	to 	be 	deemed 	an
employer.
EERA subsection 3540.l(k) 	states:
"Public 	school employer" 	or 	"employer" 	means
the 	governing 	board 	of 	a school district, 	a
school district, 	a county board of
education, 	or 	a county 	superintendent 	of
schools.
This 	subsection, 	like section 2(2) 	of 	the National Labor
Relations Act 	(NLRA), 	is a jurisdictional definition
identifying 	the 	types 	of 	agencies 	subject 	to PERB
jurisdiction. 	To 	determine 	whether 	an 	agency 	so 	listed 	is 	an
employer 	in a given 	instance, 	it 	is 	appropriate 	to consider
whether 	the 	alleged 	employer 	has 	such 	"sufficient 	control 	over
the 	employment 	conditions 	of 	its 	employees 	to 	enable 	it 	to
bargain 	with 	a 	labor 	organization 	as 	their 	representative."
See National Transportation Service, 	Inc. 	(1979) 	240 NLRB 565
[100 LRRM 1263]. 	(Emphasis 	added.) 	See also North American
Soccer League v. 	NLRB 	(1980 	613 F.2d 1379 	[103 LRRM 2976]; 	den.
cert. 	U.S. 	[105 LRRM 	2737], 	("existence of 	joint
employer 	relationship 	depends 	on 	the 	control 	which 	an 	employer
exercises, 	or potentially exercises, 	over 	the 	labor 	relations
policy 	of 	the 	other").5
5PERB 	may 	rely 	upon 	federal 	precedent 	when 	interpreting
provisions 	of EERA which 	are 	identical 	or 	similar 	to 	the NLRA,
See 	Sweetwater 	Union High School District 	(11/23/76) 	EERB
Decision No. 	4. 	(Prior 	to January 1, 	1978, 	PERB was known as
the Educational Employment Relations Board.) 	See 	also Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608.
14

The 	Superintendent's 	authority 	over 	such 	fundamental
employment matters 	as 	entering 	into 	employment 	contracts,
hiring, 	promoting, 	granting permanent 	employment 	status,
assigning work, 	transferring, 	evaluating, disciplining, 	and
laying-off 	all 	certificated 	employees 	in 	the District 	is 	not
disputed.
The 	record 	indicates 	that 	the 	BOE 	has 	never 	exercised
comparable 	authority 	over District 	employees, 	except 	that prior
to 	1979, 	it 	did contract 	to 	employ certificated 	employees 	in
the juvenile 	court schools 	and, 	according 	to the Office of
Administrative Law, 	had 	authority 	to dismiss 	such 	employees.
This 	authority was 	grounded 	in former 	section 	857 of 	the
Welfare 	and 	Institutions 	Code. 	The 	uncontroverted 	testimony of
Superintendent Coney 	is 	that 	after 	the 	repeal of 	the 	section,
the 	BOE 	ceased 	to 	exercise 	any 	authority 	in 	these 	areas.
Education Code 	section 	48645.3 	which 	provides 	that 	boards
of 	education 	have 	the 	authority 	to 	adopt 	school 	holidays 	and 	to
set 	aside days for 	in-service purposes 	does 	not, 	on 	its 	face,
demonstrate 	that 	the BOE has 	the 	degree 	of 	control over
employment 	conditions 	that 	would 	allow 	for 	meaningful
negotiations. 	The 	Board 	has 	held 	that 	establishment 	of 	the
student 	school 	calendar 	is 	not a 	negotiable 	subject. 	See Palos
Verdes 	Peninsula Unified 	School 	District/Pleasant Valley 	School
District 	(7/16/79) 	PERB Decision No. 	96; 	San Jose Community
College District 	(9/30/82) 	PERB Decision No. 	240. 	The
15

provision 	concerning 	in-service 	days 	neither 	specifies 	what 	is
meant 	by 	"in-service 	purposes" 	nor 	what 	impact 	such 	authority
might 	have 	on 	the 	employment of 	certificated 	employees. 	The
parties 	presented 	no 	evidence 	clarifying 	these 	issues. 	For
example, 	we 	do 	not 	know whether 	employee 	attendance 	at 	days 	set
aside 	for 	in-service 	purposes 	is 	compulsory or 	whether 	the BOE
merely 	establishes 	times 	when 	such 	activities 	are 	available.
In 	the 	absence 	of 	such 	evidence, 	we 	cannot 	find 	that 	the
provision 	indicates 	the 	necessary 	BOE 	control 	over 	negotiable
conditions.
While we 	acknowledge 	that 	control over 	budgets, 	"the
wherewithal 	to give 	and 	withhold," 	(Parking West Area
Vocational Technical School Board 	(5/19/71) 	Pennsylvania Labor
Relations Board Decision Nos. 	PERA-R-358-W 	and 	PERA-R-399-W
[1 PPER 25]), 	is 	strong 	evidence of employer 	control over
employee 	conditions of work, 	the 	record 	fails 	to demonstrate
that 	the 	BOE 	has 	sufficient 	control 	over 	the 	Superintendent's
budget 	to meet 	such 	a 	test. 	Its 	authority 	is 	neither 	exclusive
nor 	final. 	It 	is 	limited 	to 	approving 	the Superintendent's
annual 	budget 	and 	school 	service 	fund's 	budget prior 	to
submission 	to 	the 	county board 	of 	supervisors 	and
superintendent of 	public 	instruction, 	respectively 	(Education
Code 	sections 	1040 	(c) 	and 	(d)) 	and 	to 	reviewing 	and 	approving
the 	Superintendent's 	annual 	itemized 	estimate 	of 	anticipated
revenue 	and 	expenditures 	prior 	to 	approval 	by 	the 	county 	board
of 	supervisors 	(Education Code 	section 1042(b)). 	Further, BOE
16

authority 	to 	create 	a 	single-fund 	tentative 	budget 	with 	a
general 	and 	undistributed 	reserve 	(Education Code 	section 	1621)
is 	qualified 	by 	the 	requirements 	that 	the 	county board 	of
supervisors 	adopt 	a 	resolution 	bestowing 	such 	authority
(Education Code 	section 	1620) 	and 	that 	the 	budget 	be 	prepared
in 	the 	form prescribed 	and 	furnished 	by 	the 	Superintendent 	of
Public Instruction 	(Education Code 	section 	1622).
The 	county 	board 	of 	supervisors may 	transfer 	to 	the 	BOE 	its
authority 	to 	approve 	the 	Superintendent's 	estimate 	of
anticipated 	revenue 	and 	expenditures 	(Education Code
section 	1080) 	and 	may 	authorize 	the 	BOE 	to 	establish 	a
single-fund 	tentative 	budget. 	Neither 	action 	creates 	exclusive
plenary 	authority 	in 	the 	BOE 	since 	such 	delegation 	is
revocable. 	This 	diffusion of 	authority over 	the 	budget,
considered 	together 	with 	the 	exclusion 	of 	boards 	of 	supervisors
and 	the 	superintendent 	of 	public 	instruction 	from 	section
3540.l(k), 	convinces 	us 	that 	shared participation 	in the
budgetary process 	is 	not 	sufficient 	to warrant 	a 	finding 	of
employer 	status.
We 	do 	not 	find 	BOE'S 	role 	in 	the 	negotiated 	grievance
process 	determinative. 	The 	grievance 	and 	arbitration provision
provides 	that 	the BOE will 	hear 	and 	resolve 	grievances 	at 	the
third 	step of 	a four 	step procedure. 	Its 	role 	in effect 	is
like 	that 	of 	the 	arbitrator 	who 	has 	been 	delegated 	by 	the
parties 	to hear 	and 	resolve grievances. 	The fact 	that 	the
17

District and Association had, 	in 	the past, 	agreed 	to use 	the
BOE as 	the 	third 	level 	review 	because 	they 	had 	believed 	it 	to
be 	an 	employer, 	may 	bear 	on 	their 	decision 	to continue 	such
practice 	in 	the 	future. 	It 	does 	not preclude 	the 	conclusion we
reach 	as 	to 	the 	BOE'S 	status 	as 	the 	employer.
The District's assertion 	that, 	in 	the 	future, 	the BOE will
have 	authority 	to 	approve 	agreements 	negotiated 	by 	the
Superintendent 	and 	the Association, 	is 	unauthorized 	by 	statute
and 	inconsistent 	with 	its 	contention 	that 	the 	BOE 	is 	not 	an
employer. 	In 	the 	absence of 	statutory 	authorization or 	other
proof of 	employer 	status, 	we 	cannot 	find 	the BOE to 	be 	so
empowered, 	and 	the mere 	assertion of 	future 	intent 	need 	not
influence 	the Board 	in 	this 	case.
Section 	1294 	of 	the 	Education Code provides 	that 	the BOE
must 	approve 	leaves 	of 	absence 	for 	study 	and 	travel granted 	by
the 	Superintendent. 	Such 	authority does 	not preclude 	the
Superintendent 	and 	the Association 	from 	negotiating 	a 	leave 	of
absence policy 	pursuant 	to 	which 	the 	superintendent 	would grant
leaves.6
Section 	1042(a) 	of 	the Education Code 	authorizes 	the BOE to
develop 	rules 	and 	regulations 	governing 	the 	administration of
6It 	is 	not 	necessary 	to 	decide 	the 	extent 	of BOE'S
authority 	to 	withhold 	approval of 	leaves 	granted 	by 	the
Superintendent. 	Assuming, without finding, 	that it is
unlimited, 	the 	parties 	could 	negotiate 	an 	agreement 	to make
joint 	recommendations 	for 	approval.
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the 	county superintendent 	of 	schools. 	Pursuant 	to 	this
authority, 	it 	developed Policy 	4600 	which 	establishes
guidelines 	for 	equal 	employment 	opportunity. 	We 	find 	that 	such
a 	policy 	could 	influence 	negotiations 	but 	would 	not prevent 	the
Superintendent 	and Association 	from 	negotiating 	within 	the
policy 	guidelines.
Finally, 	the 	BOE'S 	authority with 	respect 	to 	leaves 	of
absence 	and equal 	employment opportunity, 	construed most
liberally, 	when 	considered 	in light 	of 	the 	total 	range 	of
negotiable matters, 	does 	not 	constitute 	such 	control over 	the
employment 	conditions 	of 	the 	District's 	certificated 	employees
that 	the 	BOE 	would 	be 	able 	to 	conduct meaningful 	negotiations
with 	the Association. 	National Transportation Services, 	Inc.,
supra.
ORDER
Based 	on 	the 	entire 	record 	before 	the 	Public Employment
Relations Board, 	the 	charges 	filed 	by 	the Southern Alameda
County Teachers Association, 	CTA/NEA 	against 	the Alameda County
Board 	of 	Education 	and 	County 	Superintendent 	of 	Schools 	of
Alameda County 	in Case No. 	SF-CE-521 	are 	hereby DISMISSED.
Members 	Morgenstern 	and 	Burt 	joined 	in 	this 	Decision.
19