Kern Community College District (PERB 0372E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTERS 246, 	336 	and 617,
Charging 	Party,
v.
KERN COMMUNITY COLLEGE 	DISTRICT,
Respondent.
Case No. 	LA-CE-1297
PERB 	Decision No. 	372
December 	29, 	1983
Appearances; 	Maureen C. 	Whelan, 	Attorney for 	the California
School Employees Association, 	Chapters 246, 	336 and 617;
Ronald D. 	Wenkart, 	Attorney 	(Schools Legal Service) 	for 	the
Kern 	Community College 	District.
Before Gluck, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the Public Employment
Relations Board 	(PERB 	or Board) 	on 	exceptions 	filed 	by 	the 	Kern
Community College District 	(District) 	and 	by 	the 	California
School Employees Association, 	Chapters 246, 	336 	and 617 	(CSEA
or Association) 	to 	the proposed 	decision of PERB's
Administrative Law Judge 	(ALJ).
The ALJ 	found 	that 	the 	District 	had 	violated 	subsections
3543.5(b) 	and 	(c) 	of 	the Educational Employment Relations Act
(EERA)1 by 	refusing 	to 	bargain over 	the 	effects 	of
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
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layoff. 	He 	dismissed 	all 	charges 	that 	employees 	had 	been
discriminated 	against 	because 	of 	their 	exercise 	of 	protected
rights. 	The District excepts 	to 	the ALJ's 	finding 	that 	it
refused 	to 	negotiate 	in 	violation of EERA. 	The Association
excepts 	only 	to 	the ALJ's 	refusal 	to 	order 	reinstatement 	and
back 	pay 	for 	the 	laid-off 	employees.
Code 	unless 	otherwise 	noted. 	Section 	3543.5 	provides 	in
pertinent part 	as 	follows:
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.
For 	the 	reasons 	stated 	below, 	we 	reverse 	the ALJ's 	finding
that the District violated subsections 3543.5(b) 	and 	(c), 	and
we 	therefore 	dismiss 	all 	charges 	against 	the District.
FACTS
The Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of 	the
District's 	and 	the Association's 	exceptions 	and 	finds 	that 	the
ALJ's 	findings of 	fact are 	free of prejudicial error. 	We
therefore 	adopt 	them 	as 	the 	findings 	of 	the Board 	itself.
SUMMARY
On September 12, 	1980, 	the District Chancellor, Dr. 	Young,
circulated 	a memo 	to 	all 	staff 	members 	detailing 	the 	financial
problems 	of 	the District 	and 	announcing 	the 	necessity 	to 	reduce
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programs 	and 	services. 	On September 	23, 	Young 	and 	other
management 	officials 	met 	with 	the 	CSEA 	chapter 	presidents 	from
the 	three District 	colleges 	to discuss 	the memo 	and 	the
proposed 	reductions 	in 	services 	staff. 	There 	was 	evidence 	that
District 	officials met 	regularly 	with 	the 	CSEA 	presidents 	on 	an
informal 	basis 	to 	exchange 	information 	and 	work 	out problems.
These meetings 	were 	not 	negotiating 	sessions.
On November 	12, 	Lee Buzzard, 	field 	representative 	for CSEA,
wrote 	to Vice-Chancellor Jack Hernandez, 	the District official
responsible 	for 	collective 	bargaining. 	Buzzard 	stated 	that 	he
had 	been 	advised of 	the possibility of 	layoffs, 	and 	requested
that 	the 	District 	"return 	immediately 	to 	the 	bargaining 	table
to negotiate 	the 	effects of 	any 	such 	layoff." 	On November 	13,
Hernandez 	responded, 	assuring Buzzard 	that 	"in 	accordance 	with
. 	. 	. 	the contract, 	the District will consult with CSEA prior
to any layoffs."
Section 	6.12113 	of 	the 	agreement 	between 	the 	District 	and
CSEA 	reads 	as 	follows: 	"The District 	shall 	consult with CSEA
prior 	to 	any 	planned 	reduction 	in 	staff."
On December 	1, 	1980, 	Buzzard again wrote to Hernandez,
specifically demanding 	to negotiate 	the 	effects 	of 	layoff, 	and
advising 	the District 	that 	its 	failure 	to 	respond 	would 	result
in 	the 	filing of 	unfair 	labor 	practice charges.
Buzzard 	testified 	that 	subsequent 	to 	the December 	1 	letter,
Chancellor 	Young 	called 	him 	to discuss 	the 	nature 	of 	the
W	
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letter. 	According 	to Buzzard, 	Young 	said 	that Hernandez was
out of 	town, 	and 	that he 	(Young) 	was 	alarmed 	about 	the
reference 	to 	an unfair 	labor 	practice 	charge. 	Buzzard 	told him
that 	the 	appropriate 	thing 	to do would 	be 	to come 	to 	the 	table
to negotiate 	the effects of 	the 	layoff. 	Young's 	response,
according 	to Buzzard, 	was 	that 	it was 	his 	understanding 	that
the 	District 	would 	be willing 	to 	consult 	with CSEA 	at 	any 	time
on 	the 	issue 	of 	layoffs 	pursuant 	to 	a portion of 	the 	contract,
but 	that 	the District was 	not 	at 	that 	time 	contemplating
negotiating 	effects 	of 	layoff. 	Young 	himself 	did 	not 	testify.
On December 	19, 	Buzzard 	submitted 	to Hernandez 	this 	list of
nine 	proposals 	for 	negotiation.
1. 	District/CSEA cost 	and 	efficiency
analysis 	of 	continued 	functioning 	of 	the
Delano Center.
2. 	District/CSEA cost benefit 	analysis 	of
changing 	carriers 	for 	health, 	welfare
and 	related 	benefits.
3. 	District/CSEA 	analysis 	of 	potential
duplication 	in management 	functions
including, 	but not 	limited 	to personnel,
purchasing, 	budget development 	and
budget 	administration operations.
4. 	District/CSEA analysis 	of 	the 	cost,
efficiency 	and 	service 	need 	for 	selected
instructional programs.
5. 	District/CSEA 	analysis 	of 	the 	intended
vs. 	actual use of 	each CETA 	funded
position in the District.
6. 	District/CSEA 	analysis 	of 	currently
received 	extra 	jurisdictional 	funds 	for
their 	potential 	redistribution 	to
salaries.
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7. 	Seniority 	for 	CSEA 	chapter 	officers 	and
job 	stewards 	exempting 	them 	from 	layoff.
8. 	No 	reduction 	in benefits 	if 	reductions
in 	hours 	become 	necessary.
9. 	District 	acceptance 	of CSEA's 	layoff
proposal 	including 	positions 	designated
for 	layoff or 	reduction 	in hours.
On January 8, 	1981, 	the Chancellor 	circulated 	a memo 	to all
staff 	giving 	up-to-date 	information 	about 	contemplated
reductions. 	Attached 	to 	that memo was 	a 	list of 	programs 	and
services 	recommended 	to 	the Board 	of Trustees 	for 	reduction or
discontinuance. 	Only 	certificated 	and 	management 	services 	were
identified 	in 	the memo, 	classified 	services 	to be 	reduced or
discontinued 	were 	to 	be 	determined 	later. 	There 	were 	estimates
of classified 	services 	reductions, 	however. 	The 	estimated
reduction 	in classified 	staff 	was 	22 	positions 	then 	vacant,
3 	positions 	scheduled 	for 	retirements, 	and 	11 other
"reductions" 	for 	a 	total of 	36 	classified positions.
On January 	21, 	the 	instant 	unfair 	labor 	practice 	charge 	was
received 	by mail 	in 	the Los Angeles PERB office. 	On
January 	20, 	after 	the District 	received 	a copy of 	the 	charge,
Hernandez 	responded 	to Buzzard's December 	19 	letter. 	Hernandez
asserted 	that 	(1) 	the District had 	not yet 	taken 	action 	to
terminate classified employees, 	(2) 	the District was 	"as
always" 	prepared 	to 	consult 	with 	CSEA 	concerning 	any 	decision
to eliminate classified positions, 	and 	(3) 	the proposals did
not 	constitute 	a proper 	basis 	for 	negotiations 	for 	several
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reasons, 	including 	the 	fact 	that 	some were outside of 	scope,
the 	proposal 	for 	extra 	seniority 	for Association 	officials 	was
illegal, 	and 	the 	fact 	that 	the District 	had 	not 	yet 	received 	a
layoff 	proposal 	from CSEA. 	The 	letter 	acknowledged 	that 	the
proposal 	regarding 	reduction 	in 	hours might 	be 	within 	scope 	if
reduction 	in hours was contemplated.
The 	letter 	concluded 	as 	follows:
Finally, 	your 	attention 	is 	invited 	to 	the
provisions 	of 	Government Code 	section 	3547
and Board Policy Manual 	section 	21.4
concerning 	the manner 	in which 	initial
proposals 	of 	exclusive 	representatives 	are
to be 	presented prior 	to 	the 	initiation of
negotiations. 	To 	the 	extent 	that 	you
believe 	that you have 	a 	specific proposal,
sufficiently detailed 	to 	give 	the 	public
notice 	and 	an opportunity 	to make 	informed
comment as 	is 	intended by 	the 	letter 	and
spirit of 	the 	statute, 	you should present
that proposal 	at 	a public meeting 	of 	the
Board 	of Trustees 	of 	the 	Kern Community
College District 	to 	initiate 	the 	process.
The District reserves 	the 	right, 	of course,
to disagree 	with 	your 	contention 	that 	any
individual matter 	presented 	to 	the Board
constitutes 	a proposal 	relating 	to matters
within 	the 	scope 	of 	representation.
CSEA 	never 	presented 	another 	proposal. 	Buzzard 	testified
that 	he 	believed 	that he 	had 	already 	submitted 	a proposal, 	and
that Hernandez' letter 	was 	simply part 	of 	the District's
continued 	refusal 	to 	negotiate.
On April 24, 	1981, 	termination notices were 	sent out 	to
several 	classified 	employees. 	Four 	employees 	were 	actually
laid off 	at 	the 	end of 	the 	year, 	including 	two 	recent CSEA
chapter 	presidents 	hired 	in 	1975 	and 	1978, 	a member 	of 	the CSEA
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negotiating 	team hired 	in 	1978, 	and 	a maintenance 	worker 	from a
group known 	for 	its pro-union 	activism, 	hired 	in 1959. 	All of
these employees were 	in one- or 	two-position classes, 	and 	two
of 	these 	employees 	in particular 	had 	been 	in conflict with
District 	administration. 	Other 	CSEA 	supporters 	had 	their 	hours
modified.
At 	the CSEA presidents' 	meeting 	with District officials 	in
December 	1980, 	CSEA President June Frederickson 	suggested 	that
the District 	could 	plan more 	effectively 	so 	that 	there would
not 	be 	new hires made 	at 	a 	time when employees 	were 	being 	laid
off. 	In 	response 	to 	that 	suggestion, 	and 	in a general 	effort
to 	avoid 	layoffs, 	the 	administration 	at Bakersfield College
circulated 	a memo 	to classified 	staff 	in December 	of 	1980
inviting 	them 	to 	suggest 	reductions 	in workload 	or 	work 	hours
which 	would 	be 	acceptable 	or 	desirable 	to 	them.
This memo was 	approved 	by 	the 	local CSEA President,
Merry Kay Ezell, 	and other 	CSEA 	representatives 	as 	long 	as 	any
reductions 	were 	voluntary. 	There 	is 	no evidence 	that 	the
District 	made 	any 	effort 	to 	contact Buzzard 	about 	this
solicitation, 	and 	there 	were 	no negotiations over 	the 	letter 	or
the 	changes 	to be made. 	Buzzard 	testified 	that 	he 	knew 	as
early 	as December 	that 	reductions 	in hours were 	being made.
On another 	campus, 	at Cerro Coso College, 	the Director 	of
Administrative Services, 	Ken Fite, 	told 	the local CSEA
President, 	Frederickson, 	about a "reorganization" 	in which
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various 	employees 	would 	have 	their 	duties 	changed. 	While 	the
evidence 	indicates 	that 	employees 	whose 	duties 	were 	changed
were 	agreeable 	to 	the 	changes, 	there 	were 	other 	employees who
were 	distressed 	about 	this 	unusual 	way 	of 	filling 	vacancies 	and
complained 	to Frederickson. 	Other 	employees 	were 	transferred
to different 	shifts 	in conformance 	with 	the 	contract.
When employees 	began 	to complain, 	Frederickson 	again
contacted Fite, 	who 	told her 	that 	the District had 	the 	right 	to
make 	the 	changes. 	She 	also contacted Buzzard, 	who 	told 	her 	to
record 	as 	accurately 	as 	possible 	the 	changes 	which were 	being
made. 	She 	sent a memo to Buzzard dated February 26, 	1981,
detailing 	changes 	of 	duties 	and 	hours 	of 	three 	employees.
Administrators 	at Cerro Coso 	spoke 	to 	the 	individual
employees 	to 	arrange 	for 	the 	reassignments 	and 	the 	changes 	in
duties 	and 	hours.
Hernandez 	testified 	that 	the 	District 	did 	not 	notify
Buzzard 	about 	the 	efforts 	to 	switch 	employees 	around 	since 	it
was 	not 	the 	practice 	to contact him about 	items 	arising 	in 	the
presidents' meeting; 	that 	he 	would 	be 	contacted 	about
negotiable 	items, 	but that 	reassignment wasn't negotiable; 	and
that 	the District 	had 	consulted 	as 	required 	by 	the 	contract 	on
the 	changes. 	He 	characterized 	the 	solicitation of 	reduction 	in
employees' 	hours 	as 	the District merely 	responding 	to employee
requests.
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CSEA 	later 	amended 	its 	unfair 	practice 	charge 	to 	include
its 	allegations 	that 	the 	District 	violated EERA 	by 	reducing 	and
changing 	the 	hours 	and 	duties 	of 	employees 	without 	consulting
with 	the 	representative. 	Buzzard 	testified 	that 	he 	did 	not
request 	negotiations 	on 	these 	changes 	since 	he 	felt 	that 	to 	do
so would be 	futile, 	and because 	reduction 	in hours was 	covered
by 	the 	proposal 	already 	submitted 	and 	the 	unfair 	labor 	practice
charge 	already 	filed.
In 	initial 	negotiation 	for 	the 	1977-79 	contract, 	CSEA had
made 	a 	detailed 	layoff 	proposal 	which 	was 	not 	agreed 	to by 	the
District. 	The 	layoff 	language 	which 	was 	adopted 	was 	more
general, 	and 	included 	the 	section 	noted 	above 	stating 	that 	"the
District 	shall 	consult with 	CSEA prior 	to 	any 	planned 	reduction
in staff."
In 	negotiations 	over 	the 	successor 	contract, 	the District
proposed 	deleting 	this 	section, 	and 	CSEA proposed 	changing
"shall" 	to "will," 	and deleting 	the word 	"planned." 	The
parties 	finally 	agreed 	not 	to change 	the 	language 	at 	all.
Buzzard 	testified 	that 	the 	CSEA 	bargaining 	team 	discussed 	a
more 	detailed proposal, 	but never 	presented 	it 	to the
District. 	Neither 	was 	any 	further 	layoff 	proposal made 	in
reopener 	negotiations 	in 	the 	spring of 	1981.
Buzzard 	testified 	that 	he 	understood 	the 	language 	requiring
the District 	to consult 	to be 	a commitment 	from the District 	to
consult on 	the 	decision 	to 	lay off, 	and 	that he 	believed 	that
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it 	in 	no way 	detracted 	from CSEA's 	right 	to 	negotiate 	about 	the
effects 	of 	layoff.
Section 6.171 	of 	the 	contract 	contains 	a 	zipper 	clause 	by
which 	the 	exclusive 	bargaining 	representative 	waives 	the 	right
to meet 	and 	negotiate 	with 	respect 	to 	any 	subject 	incorporated
as 	a part of 	the 	agreement.
DISCUSSION
We 	note 	initially 	that 	this 	is 	a 	particularly 	difficult
case 	on 	its 	facts, 	since 	the District was 	obviously less 	than
willing 	to 	admit 	its 	duty 	to negotiate 	the 	effects of 	layoff,
while 	the Association was 	rather 	anxious 	to 	abandon 	its 	efforts
to bring 	the District 	to 	the 	negotiating 	table. 	Further, 	the
Association has 	not 	pursued 	before 	the Board many of 	its 	claims
arising 	out of 	the District's 	actions 	in 	changing 	the 	hours 	and
duties 	of 	employees,2 and 	we 	cannot 	find 	that 	these 	issues
have 	been 	fully 	litigated 	so 	as 	to permit 	us 	to make 	findings
independently. 	On balance, 	however, 	we 	find that 	the
Association's 	failure 	to make 	proposals 	within 	scope 	regarding
the 	effects 	of 	layoff 	relieves 	the District of 	any 	violation
arising 	out of 	its 	failure 	to 	negotiate 	that 	issue.
2The ALJ 	does 	not discuss 	the 	later 	changes 	except 	in 	the
context of 	discriminatory 	treatment, 	and 	the 	charging 	party
does 	not 	raise 	those 	incidents, 	nor 	the District's wholesale
solicitation of 	reduction 	in hours without negotiation, 	by
exception. 	Those matters 	are 	therefore 	not before 	us on appeal,
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The Board 	has 	determined 	in previous 	cases 	that 	the 	effects
of 	layoff 	are 	within 	the 	scope of 	negotiation, 	and 	that 	an
employer 	is 	obligated 	to 	negotiate 	those 	effects 	upon 	request.
Further, 	the 	employer must 	negotiate over 	the 	effects 	as 	soon
as 	it decides 	to lay off, 	consistent with 	its 	duty 	to negotiate
over 	the 	effects 	of 	a decision at a meaningful 	time. 	Newark
Unified School District 	(6/30/82) 	PERB Decision No. 	225. 	First
National Maintenance Corp. 	v. NLRB 	(1981) 	452 U.S. 	666 	[107
LRRM 2705, 	at p. 	2711].
On November 	12 	and 	again on December 	1, 	the Association
made 	valid 	requests 	to bargain over 	the 	effects 	of 	layoff.
Those 	requests 	were 	met 	only with 	the District's 	vague
commitment 	to 	consult 	with CSEA. 	Since we 	have 	found 	that 	the
District 	had 	an obligation 	to 	negotiate 	over 	this 	subject 	prior
to 	implementation of 	the 	layoff, 	had 	events 	stopped 	there we
might well 	find 	that 	the District was 	at 	that point 	in
violation 	of EERA.
However, 	on December 	19, 	CSEA submitted 	a list of proposals
to 	the District, 	none of 	which 	concerned 	in-scope effects of
layoff.
The 	proposals 	as 	originally 	submitted 	were 	admittedly 	in 	a
rough 	form. 	Buzzard 	himself 	testified 	that 	the 	first 	six
items—the 	various 	District/CSEA 	analyses—related 	to 	the
decision 	to lay off. 	Since 	the proposals 	themselves 	are 	vague,
and 	there 	was 	never 	any 	negotiation 	between 	the 	parties 	to
clarify 	them, 	we 	have no 	reason to disagree.
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In 	item 7, 	the Association 	sought 	seniority 	for 	CSEA
officers 	and 	job 	stewards 	exempting 	them 	from 	layoff. 	On 	its
face, 	this proposal would 	appear 	to be 	contrary 	to the
Education 	Code 	provisions 	determining 	the 	order 	of 	layoff,3
and, 	therefore, 	outside 	of 	scope 	as 	asserted 	by 	the District.4
Item 8 	proposed maintenance of 	benefits 	if 	reduction 	in
hours 	became 	necessary, 	but did not mention 	the 	effects 	of
layoff.
3Education 	Code 	section 88127 	provides 	in pertinent 	part
as follows:
Order 	of 	layoff 	and 	reemployment: 	Length of
service
Classified 	employees 	shall 	be 	subject
to 	layoff 	for 	lack of 	work 	or 	lack of
funds. 	Whenever 	a classified employee 	is
laid off, 	the order 	of 	layoff 	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.
4 Section 3540, 	detailing 	the purpose of EERA, 	provides 	in
part:
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 	of 	a merit or 	civil 	service
system. . . .
See 	also San Mateo City Schools 	et 	al. 	v.
PERB 	(1983) 	33 Cal.3d 850.
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Item 9 	refers only 	to 	the CSEA layoff proposal, 	presumably
yet 	to come.
The 	District 	responded 	on January 	20, 	reiterating 	its
willingness 	to consult on 	the decision 	to lay off, 	detailing
the manner 	in which 	the Association's 	proposals 	were 	outside of
scope 	with 	the 	exception of 	the 	reduction 	in hours proposal,
and 	inviting 	the Association 	to 	submit 	proposals 	to 	the Board
of Trustees. 	Buzzard 	never 	submitted 	another 	proposal,
claiming 	that 	he 	believed 	that 	he 	had 	already 	done 	so, 	and 	that
any 	further 	effort 	would 	be 	futile. 	Similarly, 	Buzzard 	did 	not
file 	further 	requests 	to 	negotiate 	about 	the District's 	changes
in 	the duties 	and hours of 	employees, 	on the 	same 	theory 	that
these 	were matters 	covered 	by 	the 	previous 	request 	to 	bargain
over 	effects, 	and 	that 	a 	further 	request would 	be 	futile.
We 	find 	that 	the 	District's January 	20 	letter 	corrected 	its
initial position 	that 	it 	would 	only 	consult 	on 	the 	effects 	of
layoff. 	While 	the 	letter 	was 	less 	than a clear 	offer 	to
negotiate, 	it was 	not 	inconsistent with 	the District's duty 	to
seek 	to 	clarify 	admittedly 	questionable 	proposals. 	Jefferson
School District 	(6/19/80) 	PERB Decision No. 	133. 	It was
responsive 	to 	the proposals, 	stated 	why 	it believed 	certain
proposals 	to be 	nonnegotiable, 	and 	invited CSEA to 	initiate 	the
process 	by 	sunshining 	any 	specific, 	detailed proposal.
To 	the 	extent 	the District 	suggests 	that 	it 	is 	the 	duty of
the 	exclusive 	representative 	to sunshine proposals, 	it 	is
13

incorrect. 	It 	is 	the District's obligation 	and 	responsibility
to 	provide 	public 	notice 	and 	to present 	all 	initial 	proposals
— i t s own, 	as well 	as 	those of 	the 	exclusive 	representative—
at 	a meeting. 	Los Angeles 	Community College District 	(Kimmett)
(3/3/81) 	PERB Decision No. 	158. 	Here, 	however, 	the District's
letter 	merely 	seems 	to 	suggest 	that 	the Association 	should
follow procedures 	used 	in 	the 	past 	in 	the District 	to 	commence
negotiations.
The Association never 	did 	so, 	in spite of 	the 	fact 	that
three 	months 	elapsed 	before 	termination 	notices 	were 	ever 	sent
out. 	We 	find 	that 	the District's January 	20 	letter 	was 	a
lawful 	response 	to the Association's proposals, 	and 	that 	the
Association 	was 	not 	warranted 	in 	concluding 	that 	further
requests 	to 	negotiate would 	be 	futile. 	Since 	the Association
did 	not 	submit 	in-scope 	proposals 	concerning 	the 	effects 	of
layoff, 	the District 	was 	ultimately 	entitled 	to 	take 	unilateral
action.
For 	the 	foregoing 	reasons, 	we 	conclude 	that 	the District
did 	not 	refuse 	to negotiate 	the 	effects 	of 	layoff 	in violation
of 	EERA.5
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	and 	the 	entire 	record 	in 	this case, 	the complaint 	filed
5 Since 	we 	find 	that 	the Association 	never 	submitted
in-scope proposals on 	the 	effects 	of 	layoff, 	we do not 	consider
the District's 	other 	waiver 	arguments.
14

by 	the California School Employees Association, 	Chapters 	246,
336 	and 	617 	against 	the 	Kern Community College District 	is
hereby 	DISMISSED.
Member Morgenstern 	joined 	in 	this 	Decision.
GLUCK, 	Chairperson, 	concurring: 	The charge 	asserts 	that
the District 	refused 	to 	negotiate 	the 	effects of 	its 	decision
to 	lay off 	certain 	employees 	and 	reduce 	the 	hours 	of 	certain
others. 	The 	validity of 	the 	charge 	depends 	upon 	a 	finding 	that
CSEA made 	a demand 	to bargain which 	the 	District 	was 	obligated
to honor.
Initially, 	CSEA made 	a general 	demand 	to negotiate 	the
effects 	of 	the 	layoff 	decision. 	Had 	this 	history 	ended 	with
the District's 	refusal, 	a prima 	facie case would have 	been
made. 	This Board 	has 	held 	that 	the 	effects of 	a decision 	to
lay off 	are 	negotiable1 and 	a demand 	in general 	terms 	is
sufficient 	to place 	the 	employer 	on 	notice of 	its 	duty 	to
withhold 	implementation 	of 	its 	decision 	pending 	negotiation 	of
its 	effects.2 However, 	following 	the District's 	response
that 	it was 	not 	contemplating 	negotiating 	such 	effects 	at 	that
1 Newman-Crows Landing Unified 	School 	District 	(6/30/82)
PERB Decision No. 	223.
2 Newark Unified School 	District 	(6/30/82) 	PERB 	Decision
No. 225.
15

time,3 CSEA 	submitted 	nine 	specific 	proposals 	on 	which 	it
demanded 	negotiations.4 It 	is 	the 	District's 	alleged 	refusal
to 	negotiate 	these 	proposals 	that 	the 	charge 	finally 	addresses.
None 	of 	the 	nine 	proposals 	required 	an 	affirmative District
response. 	On 	its 	face, 	each, 	with 	the exception of numbers 8
and 	9, 	concerns 	matters 	patently outside 	the 	scope 	of 	mandatory
negotiations. 	Instead, 	each 	seems 	intended 	to open discussion
of 	financial 	alternatives 	to 	the 	layoffs, 	and 	thus 	challenge
the 	basic District 	decision. 	These 	proposals may 	have 	been
appropriate 	for 	the 	consultation process 	contemplated 	by 	the
collective 	bargaining 	agreement.5 But, 	the 	decision 	to 	lay
off 	is 	not 	negotiable6 and 	the District was 	not obliged 	to
consider 	these 	seven proposals 	in 	the 	context of 	section
3543.5(c)'s 	requirements.
Proposal 8 	refers 	to 	the 	continuation of 	benefits 	in 	the
event of 	an 	involuntary 	reduction of 	hours. 	The District
contends 	that 	the 	contract 	provision 	dealing 	with 	benefits 	in
the 	event of 	involuntary 	reduction of 	hours, 	together 	with 	the
"zipper 	clause," 	constitute 	the parties' 	full 	agreement
covering 	any 	reduction of 	hours. 	I 	agree. 	The benefits 	clause
3 This 	was 	the 	undisputed 	testimony of 	CSEA 	witnesses.
4See 	majority opinion, 	pp. 	4 	and 5.
5See 	majority opinion, 	p. 	3.
6Newman-Crows 	Landing USD, 	supra.
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is 	clearly 	intended 	to preserve 	certain 	entitlements 	for
employees 	who 	are 	forced 	to 	accept 	reduced 	working 	hours. 	It
is 	reasonable 	to 	assume 	that 	no 	such protection was 	sought 	for
employees 	who 	requested 	reduced 	hours. 	At 	any 	rate, 	the
subject 	of 	benefits 	in 	the 	event of 	reduced 	hours 	was
negotiated 	and, 	through 	the 	zipper 	clause, 	CSEA 	agreed 	that 	the
bargain 	it 	struck 	would 	remain 	in effect 	for 	the 	life of 	the
agreement. 	That 	it may have 	turned out 	to be 	less 	of 	a bargain
than CSEA 	thought 	at 	the 	time, 	does 	not 	impose 	on 	the District
the 	obligation 	to 	surrender 	the 	agreement 	it made 	or 	reopen 	the
subject 	for 	further 	negotiations.
Proposal 9 	seeks 	negotiation of 	the 	designation of 	those
positions7 to 	be 	effected 	by 	the 	layoff 	and 	reduced-hours
decisions. 	Assuming 	that 	these matters 	would 	otherwise 	be
negotiable, 	the 	determination of 	the 	positions 	involved 	in 	the
layoff 	is 	controlled 	by 	section 88127 	of 	the Education
Code.8 The 	"immutable" 	nature 	of 	this 	provision 	removes 	the
subject 	from 	the 	scope 	of 	required 	negotiations.9
As 	to 	the 	designation of 	those 	employees 	whose 	hours 	were
to 	be 	reduced, 	the 	selection was 	ultimately made 	from those who
7"Position" 	is 	understood 	to mean 	the 	number 	of 	personnel
allocations 	within 	a 	given 	job or 	classification.
8 This 	provision 	requires 	that 	layoff 	be 	by 	seniority.
9 See 	Healdsburg 	Joint 	Union 	High 	School 	District
(May, 	1982) 	33 Cal.3d 850, 	wherein the California Supreme Court
upheld PERB's 	holding 	to 	this 	effect.
17

volunteered, 	pursuant 	to procedures 	approved 	by CSEA's
president. 	Whatever 	negotiating 	rights CSEA may have 	had, 	it
thus 	effectively 	waived.
I 	agree 	that 	the 	charges 	and 	complaint 	should 	be 	dismissed,'
18