San Mateo City School District (PERB 0383E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND ITS CHAPTER #411,
Charging Party,
v.
SAN MATEO CITY SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-623
PERB 	Decision 	No. 	383
April 	30, 	1984
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Appearances; 	William E. 	Brown and Penn Foote, 	Attorneys 	(Brown
and Conradi) 	for 	San Mateo City School District.
Before Jaeger, 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment Relations Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	San Mateo City School District 	(District) 	to 	the
proposed decision of an administrative 	law judge 	(ALJ) 	finding
that the District violated subsections 3543.5(a), 	(b) 	and 	(c)
of 	the Educational Employment Relations Act 	(EERA or Act) l by
1The 	EERA 	is codified at Government Code 	section 	3540 	et
seq. 	All 	statutory references 	herein are 	to 	the Government
Code 	unless 	otherwise 	indicated.
Section 3543.5 provides, 	in relevant part, 	that:
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.
refusing 	to meet 	and 	negotiate with 	the California 	School
Employees Association and 	its Chapter 	#411 	(CSEA or
Association) 	regarding certain proposals. 	Specifically, 	the
District excepts 	to 	the ALJ's 	finding 	that, 	with certain
exceptions discussed 	infra, 	two articles proposed 	for
negotiation by CSEA -- Article 	12, 	Disciplinary Action, 	and
Article 	13, 	Layoff and Reemployment 	-- 	are within 	the 	scope of
representation under the Act.2
The 	District does not deny that, 	during collective
negotiations which commenced 	in June 1981, 	it refused 	to
negotiate 	regarding CSEA's proposals. 	Indeed, 	the parties
stipulated 	that 	the 	District 	took 	the position 	during
bargaining 	sessions 	that 	the 	proposals 	were outside 	the 	scope
of 	representation.
The 	parties 	further 	stipulated 	that 	the 	disputed 	proposals
are 	substantially 	the 	same 	or 	identical with 	the 	language 	of
the 	proposals 	at 	issue 	in Healdsburg 	Union High 	School District
(6/19/80) 	PERB Decision No. 	132 	(Healdsburg I ) . 	Therefore, 	in
2The 	District does not 	except 	to 	the ALJ's 	finding with
respect 	to 	the 	negotiability of 	proposed Article 	15 	-
Contracting and Bargaining Unit Work. 	We, 	therefore, 	affirm
his 	conclusions 	pro 	forma.
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his 	proposed decision 	in 	this 	case, 	the ALJ 	expressly relied 	on
the 	Board's decision 	in Healdsburg 	I. 	However, 	subsequent to
the 	issuance 	of the ALJ's proposed decision, 	in 	San Mateo City
School District et al. 	v. 	PERB 	(1983) 	33 Cal.3d 850, 	the
California 	Supreme Court 	vacated 	the 	Board's 	Healdsburg 	I
decision 	and 	remanded 	the 	case 	to 	this 	Board 	for 	further
consideration 	in light of 	its decision. 	Thereafter, 	the Board
issued 	its 	decision 	on 	remand 	in Healdsburg 	Union 	High 	School
District et al. 	(1/5/84) 	PERB Decision No. 	375 	(Healdsburg II).
We 	find 	that Healdsburg 	II 	is dispositive of 	the 	issues
raised herein. 	Consistent with 	that decision, 	we affirm 	in
part 	and 	reverse 	in part 	the 	proposed decision of 	the ALJ 	for
the 	reasons 	stated 	in 	the discussion which 	follows.
DISCUSSION
In Anaheim Union High 	School District 	(10/28/81) 	PERB
Decision No. 	177, 	the Board articulated a 	three-part test
interpreting 	EERA's 	scope 	of 	representation provision.3W
3Section 	3543.2 	provides, 	in relevant part:
(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 . 	. 	., leave, 	transfer and
reassignment policies, 	safety conditions of
employment, class size, procedures to be
used 	for 	the 	evaluation of 	employees,
organizational security . 	. 	., procedures
for processing grievances 	. 	. 	., 	and the
layoff 	of 	probationary 	certificated 	school
district employees 	. . . 	In 	addition, 	the
w
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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.
Under 	that 	test, 	a 	subject not expressly enumerated 	in section
3543.2 will be found negotiable 	if: 	(1) 	it 	is 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 mediatory 	influence 	of collective 	negotiations 	is 	the
appropriate means of resolving 	the conflict; 	and 	(3) 	the
employer's 	obligation 	to 	negotiate would 	not 	significantly
abridge 	its 	freedom 	to exercise 	those managerial 	prerogatives
(including matters 	of fundamental policy) 	essential 	to 	the
achievement 	of 	the District's 	mission.44
Inasmuch 	as 	the ALJ 	properly 	relied 	on 	the Anaheim test
here, 	we proceed 	to consider 	the 	substance of CSEA's proposals.
4The 	Supreme Court 	expressly 	approved 	the 	Board's Anaheim
test, 	finding 	that 	it 	"conforms 	to 	the 	language and purpose of
the EERA." 	San Mateo v. 	PERB, 	supra, 	33 Cal.3d 850, 	859.
Therefore, 	the District's exception to this test 	is without
merit.
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Article 	12 	- 	Disciplinary Action
12.1 	Exclusive 	Procedure; 	Discipline 	shall
be 	imposed 	upon 	bargaining 	unit 	employees
only pursuant to 	this Article.
12.2 	Disciplinary 	Procedure;
12.2.1 	Discipline 	shall 	be 	imposed 	on
permanent 	employees 	of 	the 	bargaining 	unit
only for 	just cause. 	Disciplinary action 	is
deemed 	to 	be 	any 	action 	which 	deprives 	any
employee 	in 	the bargaining 	unit of 	any
classification 	or 	incident 	of 	employment 	or
classification 	in which 	the 	employee has
permanence 	and 	includes, 	but 	is not limited
to, dismissal, demotion, suspension,
reduction in hours or class, 	or transfer, 	or
reassignment 	without 	the 	employee's
voluntary 	written 	consent.
12.2.2 	Except 	in 	those 	situations
where 	an 	immediate 	suspension 	is 	justified
under 	the provision of 	this Agreement, 	an
employee whose work 	or 	conduct 	is of such
character 	as 	to 	incur 	discipline 	shall 	first
be 	specifically warned 	in writing 	by 	the
supervisor. 	Such warning 	shall state 	the
reasons 	underlying 	any 	intention 	the
supervisor 	may have 	of 	recommending 	any
disciplinary 	action 	and 	a 	copy 	of 	the
warning 	shall be 	sent 	to 	the Job 	Site
Representative. 	The 	supervisor 	shall give a
reasonable 	period 	of 	advanced 	warning 	to
permit 	the 	employee 	to correct 	the
deficiency 	without 	incurring 	disciplinary
action. 	An 	employee who has 	received 	such 	a
warning 	may 	appeal 	the 	warning 	notice
through 	the grievance procedure, 	and 	in
addition, 	shall have the option of
requesting 	a 	lateral 	transfer 	under 	the
provisions of 	this Agreement.
12.2.3 	Discipline 	less 	than discharge
will be 	undertaken 	for 	corrective purposes
only.
12.2.4 	The District 	shall 	not 	initiate
any 	disciplinary 	action 	for 	any 	cause
alleged 	to 	have 	arisen 	prior 	to 	the 	employee
becoming 	permanent 	nor 	for 	any 	cause 	alleged
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to have arisen more than one 	(1) 	year
preceding 	the date 	that 	the 	District 	files
the 	notice 	of disciplinary 	action.
12.2.5 	When 	the 	District 	seeks 	the
imposition 	of 	any disciplinary 	punishment,
notice 	of 	such discipline 	shall be made 	in
writing 	and 	served 	in person 	or 	by
registered 	or 	certified mail 	upon 	the
employee. 	The notice 	shall 	indicate 	the
following: 	(1) 	the specific charges against
the 	employee which 	shall 	include 	times,
dates, 	and location of chargeable actions or
omissions, 	(2) 	the penalty proposed, 	and 	(3)
a 	statement of 	the employee's 	right 	to make
use 	of 	the 	grievance procedure 	to dispute
the 	charges 	or 	the 	proposed 	penalty. 	A copy
of 	any notice 	of discipline 	shall 	be
delivered 	to 	the 	Job 	Site 	Representative
within 	twenty-four 	(24) 	hours 	after 	service
on 	the 	employee.
12.2.6 	The 	penalty 	proposed 	shall 	not
be 	implemented 	until 	the 	employee 	has
exhausted 	his/her 	rights 	under 	the Grievance
Article.
12.2.7 	An 	employee 	may 	be relieved
[sic] 	of duties without 	loss of pay at 	the
option of the District. 	However, 	CSEA shall
be 	notified 	should 	this 	occur.
12.3 	Emergency 	Suspension:
12.3.1 	CSEA and 	the 	Distric 	[sic]
recognize 	that 	emergency 	situations 	can
occur 	involving 	the health 	and welfare 	of
students or 	employees. 	If 	the employee's
presence 	would 	lead 	to 	a clear 	and 	present
danger 	to the lives, 	safety, 	or health of
students or 	fellow employees, 	the District
may 	immediately 	suspend 	the 	employee with
pay for 	three 	(3) 	days. 	No suspension
without 	pay 	shall 	take 	effect 	until 	three
(3) 	working days after 	service of a notice
of 	suspension.
12.3.2 	During the three 	(3) 	days, 	the
District 	shall 	serve 	notice 	and 	the
statement 	of 	facts 	upon 	the employee, 	who
shall 	be 	entitled 	to 	respond 	to 	the 	factual
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contentions 	supporting 	the 	emergency 	at
Level 	IV of 	the Grievance 	Procedure.
12.4 	Disciplinary Grievance;
12.4.1 	Any 	proposed 	discipline 	and 	any
emergency 	suspension 	shall 	be 	subject 	to 	the
Grievance 	Procedure 	of 	this 	Agreement 	and
the employee, 	at his/her option, 	may
commence review either at Level II, 	III, 	or
IV.
12.4.2 	An 	employee 	upon whom a 	notice
of discipline has 	been 	served, 	may grieve
any 	emergency 	suspension 	without 	pay 	at
Level 	IV of 	the Grievance Procedure. 	The
grievance meeting 	shall be held 	and a
response made within 	three 	(3) 	days of 	the
submission 	of the grievance.
Notwithstanding 	any 	separate 	grievance
meeting 	held 	in 	accordance 	with 	the
preceding 	sentence, 	the employee may also
grieve 	the 	emergency 	suspension 	along 	with
the notice of discipline.
12.5 	Disciplinary 	Settlement; 	A
disciplinary 	grievance 	may 	be 	settled 	at 	any
time 	following 	the 	service 	of 	notice 	of
discipline. 	The 	terms of 	the 	settlement
shall 	be reduced 	to writing. 	An 	employee
offered 	such 	a 	settlement 	shall be 	granted a
reasonable 	opportunity to 	have 	his/her 	Job
Site 	Representative 	review 	the 	proposed
settlement 	before 	approving 	the 	settlement
in writing.
The ALJ 	found Article 	12 	generally negotiable 	under
Anaheim, 	except 	that 	the requirement 	implicit 	in proposal 	12.4
that 	disciplinary 	disputes 	be 	submitted 	to 	binding 	arbitration
and 	the part of proposal 	12.2.4 	which 	limits discipline 	to
events 	arising 	within 	the 	prior 	year 	had 	been 	found not
negotiable 	in 	Healdsburg 	I.
The 	District denies 	that 	any portion 	of Article 	12 	is
negotiable. 	It claims 	that Article 	12 	would 	supersede 	the
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Education Code 	in violation 	of 	section 	35405 in 	that 	the
subject of discipline 	is 	fully covered 	by Education Code
subsection 45101(e) 	defining disciplinary action, 	section 45113
pertaining 	to cause and procedures 	for 	discipline, 	and section
6	45116 	requiring notice of disciplinary action.6
5Section 	3540 provides, 	in relevant 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 	or 	a merit or 	civil 	service
system or 	which 	provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations or
other 	methods of 	the public 	school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
6Education 	Code 	subsection 45101(e) 	provides:
(e) 	"Disciplinary action" 	includes any
action whereby an employee 	is deprived 	of
any classification 	or 	any 	incident of 	any
classification 	in which he has permanence,
including dismissal, 	suspension, demotion,
or 	any reassignment, 	without his voluntary
consent, 	except a layoff for 	lack of work 	or
lack of funds.
Education Code 	section 	45113 	provides:
The 	governing 	board 	of 	a 	school 	district
shall 	prescribe written 	rules and
regulations, 	governing 	the personnel
management of the classified service, 	which
shall 	be 	printed 	and made 	available 	to
employees 	in the classified service, 	the
public, 	and 	those concerned with 	the
administration of 	this 	section, 	whereby such
employees 	are 	designated 	as 	permanent
employees 	of 	the district 	after 	serving 	a
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prescribed 	period 	of 	probation 	which 	shall
not 	exceed 	one year.
Any 	employee 	designated 	as 	a 	permanent
employee 	shall be 	subject 	to disciplinary
action 	only 	for 	cause 	as 	prescribed 	by 	rule
or 	regulation of 	the governing board, 	but
the 	governing 	board's 	determination 	of 	the
sufficiency of 	the 	cause 	for 	disciplinary
action 	shall be conclusive.
The 	governing 	board 	shall 	adopt 	rules 	of
procedure 	for 	disciplinary 	proceedings 	which
shall 	contain a 	provision 	for 	informing 	the
employee 	by 	written notice 	of 	the 	specific
charges 	against him, 	a 	statement of his
right 	to a hearing on such charges, 	and 	the
time 	within 	which 	such 	hearing may be
requested which 	shall 	be 	not 	less 	than 	five
days 	after 	service 	of 	the 	notice 	to 	the
employee, 	and a card or paper, 	the signing
and 	filing 	of which 	shall 	constitute 	a
demand 	for 	hearing, 	and a denial of all
charges. 	The burden of proof shall remain
with 	the governing board, 	and any rule or
regulation 	to 	the 	contrary 	shall be 	void.
No 	disciplinary 	action 	shall 	be 	taken 	for
any cause 	which 	arose 	prior 	to 	the
employee's 	becoming permanent, 	nor 	for 	any
cause 	which 	arose more 	than 	two years
preceding 	the date 	of 	the 	filing 	of 	the
notice of cause 	unless 	such cause was
concealed 	or 	not 	disclosed 	by 	such 	employee
when 	it 	could be 	reasonably 	assumed 	that 	the
employee 	should 	have 	disclosed 	the 	facts 	to
the 	employing district.
This 	section 	shall 	apply only 	to districts
not 	incorporating 	the 	merit 	system as
In Healdsburg 	II, 	based on our 	previous application of 	the
Anaheim 	test 	in 	San 	Bernardino 	City 	Unified 	School 	District
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outlined 	in Article 	6 	(commencing with
Section 45240) 	of this chapter.
Education Code 	section 	45116 	provides:
A 	notice 	of 	disciplinary 	action 	shall
contain 	a 	statement 	in ordinary 	and concise
language 	of 	the 	specific 	acts 	and 	omissions
upon which 	the disciplinary 	action 	is 	based,
a 	statement 	of 	the cause 	for 	the 	action
taken and, 	if 	it 	is claimed that an employee
has 	violated 	a 	rule or 	regulation of 	the
public 	school employer, 	such rule or
regulation 	shall be 	set 	forth 	in 	said notice.
A 	notice 	of 	disciplinary 	action 	stating 	one
or more 	causes 	or 	grounds 	for 	disciplinary
action established by any rule, 	regulation,
or 	statute 	in 	the 	language of 	the 	rule,
regulation, 	or statute, 	is insufficient for
any purpose.
A proceeding may be brought 	by, 	or 	on behalf
of, 	the employee 	to restrain any further
proceedings 	under 	any notice 	of disciplinary
action violative 	of 	this 	provision.
This 	section 	shall 	apply 	to 	proceedings
conducted 	under 	the 	provisions 	of Article 	6
(commencing with 	Section 45240) 	of 	this
chapter.
(10/29/82) 	PERB Decision No. 	255 	and Arvin Union School
District 	(3/30/83) 	PERB Decision No. 	300, 	we held that both
procedures 	and criteria 	for 	imposing 	discipline 	are
negotiable. 	However, 	inasmuch as 	these cases concerned
certificated 	employees, 	we have not previously had occasion 	to
consider 	the 	effect 	of 	the 	Education Code 	sections 	governing
classified 	employees 	which 	are cited 	by 	the 	District 	here.
The 	Supreme Court has 	expressly 	approved 	the 	Board's
interpretation 	of 	section 	3540 	as prohibiting 	negotiations 	only
10

where 	"the 	statutory 	language 	[of 	the 	Education Code] 	clearly
evidences 	an 	intent 	to set an 	inflexible 	standard 	or 	insure
immutable 	provisions," 	and 	the 	provisions 	of 	the Education Code
would be 	"replaced, 	set aside, 	or 	annulled by the language of
the proposed contract clause." 	San Mateo v. 	PERB, 	supra, 	33
Cal.3d 850, 	865. 	We, 	therefore, 	apply that supersession test
here.
Proposal 	12.2.1 	essentially 	seeks 	to 	incorporate 	into 	the
collective 	bargaining 	agreement 	the 	definition 	of 	disciplinary
action contained 	in Education Code 	subsection 	45101(e) 	and 	the
just 	cause 	requirement of Education Code 	section 	45113. 	As 	the
Supreme Court 	has 	indicated, 	"such 	an agreement would not
supersede 	the 	relevant part of 	the Education Code, 	but would
strengthen it." 	San Mateo v. 	PERB, 	supra, 	33 Cal.3d 850, 	867.
Similarly, 	proposal 	12.2.5 	restates 	the notice 	requirement
contained 	in Education Code 	sections 	45113 	and 45116, 	and does
not 	supersede 	those 	sections.
The 	remaining provisions 	of Article 	12 	seek 	to provide
procedural 	rights and protections 	in 	addition to 	those
specified 	in 	the Education Code. 	Proposal 	12.2.2 	requires
written advance warning prior 	to discipline; 	12.2.3 	requires
that discipline 	less 	than discharge will be 	undertaken 	for
corrective purposes 	only; 	12.2.6 	requires 	exhaustion of 	the
grievance 	procedure prior 	to 	implementing 	a penalty; 	12.2.7
grants 	the 	District 	the option 	to 	relieve 	an 	employee 	of duties
on notice 	to CSEA; 	12.3 	permits 	emergency 	suspension after
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three days' notice; 	12.4 	establishes a grievance procedure;
12.5 	provides 	for 	disciplinary settlements.
The 	requirement 	in Education Code 	section 	45113 	that 	"[t]he
governing 	board 	shall 	adopt 	rules 	of 	procedure 	for 	disciplinary
proceedings" 	does not mandate specific criteria. 	Rather, 	the
nature and content 	of disciplinary 	rules 	are 	left discretionary
and, 	therefore, 	this 	section does not conflict with the
procedures 	specified 	in CSEA's contract proposals. 	The
District points 	to no other 	language 	in 	the Education Code, 	and
we 	find none, 	which directly conflicts with 	these proposals 	or
which would be replaced, 	set aside, 	or 	annulled by the 	language
of the proposed contract clauses. 	We, 	therefore, 	reject the
District's 	contention 	that 	these proposals 	are 	superseded 	by
the Education Code.
In 	addition 	to 	the proposals on discipline 	found 	to be
negotiable by the ALJ 	and excepted 	to by 	the 	District, 	two
proposals 	found nonnegotiable 	in Healdsburg 	I 	and 	in 	the ALJ's
proposed 	decision were 	found 	to be 	negotiable 	in Healdsburg
II. 	Though 	neither 	the District nor CSEA excepts 	to 	the ALJ's
finding on 	these matters, 	it 	is necessary to consider 	them sua
sponte 	to avoid 	serious errors of law. 	Mt. 	Diablo Unified
School District 	(12/30/83) 	PERB Decision No. 	373.
Following 	our 	decision 	in Healdsburg 	I, 	the ALJ 	found
nonnegotiable 	the 	requirement 	implicit 	in 	proposal 	12.4 	that
disciplinary 	disputes 	be 	submitted 	to 	binding 	arbitration.
However, 	in Healdsburg II, 	after careful consideration of 	the
12

statutory 	language, 	the legislative history, 	the development of
disciplinary arbitration 	and collective 	bargaining, 	the 	legal
limitations 	of 	school districts' general authority, 	and
judicial 	interpretation of 	similar 	language, 	we concluded 	that
the 	Legislature 	intended 	to permit 	negotiation 	of 	binding
arbitration procedures with 	respect 	to all negotiable matters,
including disciplinary disputes. 	We, 	therefore, 	found the
subject 	of 	disciplinary arbitration 	negotiable.
Similarly, 	the ALJ relied on 	the Board's 	decision 	in
Healdsburg 	I 	to 	find 	that portion of proposal 	12.2.4 	which
limits 	discipline 	to causes 	arising within 	the prior 	year
superseded by Education Code 	section 	45113, 	which 	prohibits
discipline 	for 	"any cause 	which 	arose 	more 	than 	two years
preceding 	the date 	of 	the 	filing of 	the 	notice of cause."
In Healdsburg 	II, 	we did not separately address Education
Code 	section 45113, 	but found proposal 12.2.4, 	like all
provisions of Article 	12, 	to be negotiable. 	We affirm that
conclusion here.
The 	two-year 	limitation of 	the Education Code protects
employees 	against disciplinary 	action 	for 	conduct which
occurred 	"more than two years" previous. 	It, 	therefore,
establishes 	a maximum which would conflict with 	a 	proposal 	to
permit discipline 	for conduct 	"more 	than 	two years" 	old, 	but
does not preclude negotiation of a shorter period. 	Thus, 	the
one-year 	limitation 	of proposal 	12.2.4 	is 	not superseded 	by 	the
Education Code 	and 	is 	negotiable.
13

We, therefore, 	find that Article 12, 	in its entirety, 	is
properly within 	the 	scope 	of representation.
Article 13 	- 	Layoff and Remployment
13.1 	Reason 	for 	Layoff; 	Layoff 	shall occur
only 	for 	lack 	of work 	or 	lack 	of 	funds.
Lack 	of 	funds means 	that 	the District cannot
sustain 	a positive 	financial 	dollar 	balance
with 	the payment of one 	(1) 	further 	month's
anticipated 	payroll.
13.2 	Notice of Layoff; 	Any layoffs under
this Article 	shall 	only 	take 	place 	effective
as of 	the end of an academic year. 	The
District 	shall 	notify both CSEA and 	the
affected 	employees 	in 	writing no 	later 	than
April 	15th 	of any planned 	layoffs. 	The
District 	and CSEA 	shall meet 	no 	later 	than
May 	1st 	following 	the 	receipt 	of 	any notices
of 	layoff 	to 	review 	the 	proposed 	layoffs 	and
determine 	the order 	of 	layoff 	within 	the
provisions of 	this Agreement. 	Any notice of
layoffs 	shall 	specify 	the 	reason 	for 	layoff
and 	identify by 	name 	and 	classification 	the
employees 	designated 	for 	layoff. 	Failure 	to
give written 	notice 	under 	the 	provisions 	of
this 	section 	shall 	invalidate 	the 	layoff.
13.3 	Reduction 	in Hours; 	Any reduction 	in
regularly 	assigned 	time 	shall 	be 	considered
a 	layoff 	under 	the 	provisions 	of 	this
Article.
13.4 	Order 	of Layoff; 	Any 	layoff 	shall be
affected 	[sic] 	within a class. 	The order of
layoff 	shall be 	based 	on 	seniority within
that 	class 	and higher 	classes 	throughout 	the
District. 	An 	employee with 	the 	least
seniority within 	the class plus higher
classes 	shall be 	laid off 	first. 	Seniority
shall be 	based on 	the 	number 	of hours 	an
employee has been 	in a paid status 	in the
class plus higher 	classes.
13.5 	Bumping 	Rights; 	An employee 	laid 	off
from his/her 	present 	class 	may 	bump 	into 	the
next 	lowest class 	in which 	the 	employee has
14

greatest 	seniority 	considering 	his/her
seniority 	in 	the 	lower 	class 	and 	any higher
classes. 	The employee may continue 	to bump
into 	lower 	classes 	to avoid 	layoff.
13.6 	Layoff 	in Lieu of Bumping: 	An
employee who elects a layoff, 	in lieu of
bumping, 	maintains his/her 	reemployment
rights 	under 	this Agreement.
13.7 	Equal Seniority; 	If 	two 	(2) 	or more
employees 	subject 	to 	layoff have 	equal 	class
seniority, 	the determination as 	to who shall
be 	laid off will be made on 	the 	basis 	of 	the
greater 	bargaining 	unit 	seniority or, 	if
that be equal, 	the greater hire date
seniority, 	and if that be equal, 	then the
determination 	shall be made by 	lot.
13.8 	Reemployment 	Rights;
13.8.1 	Laid off 	persons 	are 	eligible
for 	reemployment 	in 	the 	class 	from which
laid off 	for 	a 	thirty-nine 	(39) 	month period
and 	shall 	be 	reemployed 	in 	the 	reverse 	order
of 	layoff.
13.8.2 	Reemployment 	shall 	take
precedence 	over 	any other 	type 	of
employment, 	defined or 	undefined 	in this
Agreement.
13.8.3 	Employees 	shall have 	the 	right
to apply 	for 	promotional positions 	within
the 	District 	and 	use 	their 	bargaining 	unit
seniority 	therein 	for 	a period 	of
thirty-nine 	(39) 	months 	following layoff.
An employee 	on a 	reemployment 	list 	shall 	be
notified 	of promotional 	opportunities 	in
writing.
13.9 	Voluntary 	Demotion 	or 	Voluntary
Reduction 	in Hours; 	Employees who take
voluntary 	demotions 	or 	voluntary 	reductions
in assigned 	time 	in lieu of 	layoff shall be,
at the employee's 	option, 	returned to a
position 	in 	their 	former 	class or 	to
positions 	with 	increased 	assigned 	time 	as
vacancies become 	available, 	and with no 	time
limit, 	except that 	they shall be ranked 	in
accordance 	with 	their 	seniority 	on 	any valid
reemployment 	list.
15

13.10 	Retirement 	in Lieu 	of Layoff:
13.10.1 	Any employee 	in 	the 	bargaining
unit may elect 	to 	accept 	a 	service
retirement 	in lieu of layoff, 	voluntary
demotion, 	or 	reduction 	in assigned 	time.
Such employee shall within ten 	(10) 	work
days prior 	to 	the effective 	date 	of 	the
proposed 	layoff 	complete 	and 	submit 	a 	form
provided 	by the District 	for 	this 	purpose.
13.10.2 	The 	employee 	shall 	then be
placed on a 	thirty-nine 	(39) 	month
reemployment 	list 	in 	accordance with 	this
Article; 	however, 	the employee shall not be
eligible 	for 	reemployment during 	such 	other
period 	of 	time 	as may 	be 	specified 	by
pertinent Government Code 	Sections.
13.10.3 	The 	District 	agrees 	that when
an 	offer 	of 	reemployment 	is made 	to an
eligible 	person 	retired 	under 	this Article,
and 	the 	District 	receives within 	ten 	(10)
working days 	a written 	acceptance 	of 	the
offer, 	the position shall not be 	filled by
any other 	person, 	and 	the 	retired person
shall 	be 	allowed 	sufficient 	time 	to
terminate 	his/her 	retired 	status.
1 113.10.4 	An employee 	subject 	to 	this
Section who 	retires and 	is 	eligible 	for
reemployment, 	and who declines an offer 	of
reemployment 	equal 	to 	that which 	laid
him/her 	off, 	shall be deemed to be
permanently 	retired.
13.10.5 	Any 	election 	to 	retire after
being 	placed 	on a 	reemployment 	list 	shall 	be
retirement 	in 	lieu of 	layoff within 	the
meaning 	of 	this 	section.
13.11 	Seniority 	Roster: 	The 	District 	shall
maintain 	a 	currently 	updated 	seniority
roster 	indicating 	employees' 	class
seniority, 	bargaining unit seniority, 	and
hire date 	seniority. 	The 	seniority rosters
shall 	be available 	to CSEA at any 	time 	upon
request.
13.12 	Notification 	of 	Reemployment
Opening: 	Any employee who 	is 	laid off and
16

is 	subsequently 	eligible 	for 	reemployment
shall 	be 	notified 	in writing 	by 	the 	District
of an opening. 	Such 	notice 	shall be 	sent by
certified mail 	to 	the 	last address given 	the
District by the employee, 	and 	a copy shall
be 	sent 	to CSEA by 	the 	District, 	which 	shall
acquit 	the District of 	its 	notification
responsibility.
13.13 	Employment 	Notification 	to 	District;
An 	employee 	shall 	notify 	the 	District 	of
his/her 	intent 	to accept 	or 	refuse
reemployment within 	ten 	(10) 	working days
following 	receipt 	of 	the 	reemployment
notice. 	If the employee accepts
reemployment, 	the employee must report 	to
work within 	thirty 	(30) 	working days
following 	receipt 	of 	the 	reemployment
notice. 	An employee given notice of
reemployment 	need 	not 	accept 	the
reemployment 	to maintain 	the 	employee's
eligibility 	on 	the 	reemployment 	list,
provided 	the 	employee 	notifies 	the 	District
of 	refusal 	of 	reemployment 	within 	ten 	(10)
working 	days 	from 	receipt 	of 	the
reemployment 	notice.
13.14 	Reemployment 	in Highest Class;
Employees 	shall 	be 	reemployed 	in 	the highest
rated 	job 	classification 	available 	in
accordance 	with 	their 	class 	seniority.
Employees who accept 	a position 	lower 	than
their 	highest 	former 	class 	shall 	retain
their 	original 	thirty-nine 	(39) 	month 	rights
to 	the higher 	paid position.
13.15 	Improper 	Layoff; 	Any employee who 	is
improperly 	laid 	off 	shall 	be 	reemployed
immediately upon discovery 	of 	the 	error 	and
shall be 	reimbursed 	for 	all 	loss 	of 	salary
and 	benefits.
13.16 	Seniority 	During 	Involuntary 	Unpaid
Status; 	Upon return to work, 	all time
during which 	an 	individual 	is 	in 	involuntary
unpaid 	status 	shall 	be 	counted 	for 	seniority
purposes 	not 	to exceed 	thirty-nine 	(39)
months, 	except that during 	such 	time 	the
individual will not accrue vacation, 	sick
leave, 	holidays or 	other 	leave benefits.
17

The ALJ determined that Article 	13 	is negotiable, 	except
that proposals 13.1, 	reason for layoff, and 13.2, 	notice of
layoff, 	are 	nonnegotiable 	to the 	extent 	they would 	interfere
with 	the 	employer's 	prerogative 	to determine 	the 	need 	for 	and
timing of layoffs.
The ALJ's 	decision 	is consistent with a 	long 	line 	of Board
decisions which hold 	that, 	while 	the decision to lay off 	is 	a
managerial 	prerogative 	(Newman-Crows 	Landing 	Unified 	School
District 	(6/30/82) 	PERB Decision No. 	223) , management is
obligated 	to negotiate 	the effect of 	its 	layoff decision.
Newark Unified School District 	(6/30/82) 	PERB Decision No. 	225;
Kern Community College District 	(8/19/83) 	PERB Decision No.
337; 	Oakland Unified School District 	(11/2/81) 	PERB Decision
No. 	178 	(Oakland I ) ; 	Solano County Community College District
(6/30/82) 	PERB Decision No. 	219; 	Oakland Unified School
District 	(7/11/83) 	PERB Decision No. 	326 	(Oakland II); 	Mt.
Diablo Unified 	School 	District 	(12/30/83) 	PERB Decision
No. 	373. 	The Board 	has specifically held 	that effects 	related
to the 	implementation of 	layoffs, 	including notice and 	timing
of layoffs, 	are negotiable. 	Oakland I, 	supra; 	Oakland II,
supra; 	Solano County Community College District, 	supra; 	Mt.
Diablo Unified School District, 	supra.
In 	the 	instant case, 	CSEA's proposals address 	issues
related 	to 	the 	implementation of 	layoffs, 	including 	the
circumstances, 	timing and notice of layoffs, 	seniority, 	options
in lieu of layoff, 	bumping and reemployment rights, 	and
18

voluntary demotions 	or 	reductions 	in hours. 	Considering
identical proposals 	at 	issue 	in Healdsburg 	II, 	the 	Board 	itself
concluded, 	as did 	the ALJ here, 	that the Article 	is generally
negotiable, 	except 	that 	those 	provisions which would establish
a definition 	of 	"lack 	of 	funds" 	and 	impose a deadline 	for
layoffs by restricting 	layoffs 	to 	the 	end 	of 	the 	academic year
and 	limiting 	notice 	to April 	15 	unlawfully 	intrude 	on
management's 	right 	to 	effect 	layoffs 	for 	lack of work 	or 	lack
of 	funds. 	Finding Healdsburg 	II 	dispositive of the 	issues
raised here 	and 	the 	District's 	exceptions 	lacking 	in merit 	for
the 	reasons discussed 	below, 	we 	affirm 	the ALJ's 	decision
regarding Article 	13.
The 	District 	generally excepts 	to 	the 	finding 	that 	any
portion of Article 	13 	is negotiable. 	It claims 	first 	that PERB
misapplied 	its 	scope 	test 	by 	finding 	layoffs 	"logically 	and
reasonably related 	to wages and hours." 	We 	reject 	this
contention out of hand. 	As we stated 	in Healdsburg 	II, 	at
p. 59:
The 	layoff 	of employees 	terminates 	the
employment relationship and, 	therefore, 	has
a 	direct 	impact 	on virtually 	every 	subject
of 	bargaining 	enumerated 	in 	section
3543.2.7
7Addressing 	the 	issue 	of 	layoffs 	resulting 	from a 	plant
closing, 	the 	United 	States 	Supreme Court 	recognized 	the
relationship between 	layoffs 	and 	terms 	and conditions 	of
employment in First National Maintenance Corp. 	v. 	NLRB 	(1983)
452 U.S. 666, 677:
Some management decisions 	. 	. 	. 	have only an
indirect 	and 	attenuated 	impact 	on 	the
19

employment 	relationship. 	(Citations
omitted.) 	Other management decisions, 	such
as 	the 	order 	of 	succession 	of 	layoffs 	and
recalls 	. 	. 	. are almost exclusively "an
aspect 	of 	the 	relationship" 	between employer
and employee. 	(Citation omitted.) 	The
present 	case 	concerns 	a 	third 	type 	of
management decision, 	one 	that has a direct
impact on employment, 	since jobs were
inexorably 	eliminated 	by 	the 	termination,
but 	. 	. 	. 	involving a change in the scope
and direction of 	the 	enterprise 	is 	akin 	to
the decision whether 	to be 	in business 	at
all 	. 	. 	. 	[T]his decision touches on a
matter 	of central 	and pressing concern 	to
the union and 	its member 	employees: 	the
possibility 	of continued 	employment 	and 	the
retention of 	the employees 	very jobs.
The 	Board has 	further 	recognized 	that, 	in addition 	to 	the
impact on employees 	laid 	off, 	a 	layoff 	"may concurrently 	impact
upon 	those 	employees 	who 	remain." 	Newman-Crows 	Landing 	Unified
School District, 	supra, pp. 	12-13. 	A majority of the Board
concluded 	that effects 	of a 	layoff 	on 	employees 	who 	remain 	are
negotiable 	to 	the 	extent 	that 	"the decision 	to 	lay off would
have 	a 	reasonably 	foreseeable 	adverse 	impact on employees'
working conditions and 	[a] 	proposal 	is 	intended 	to address
employee 	concerns 	generated 	by 	that 	anticipated 	impact."
Mt. Diablo, supra, p. 51.8
8In 	his concurring and dissenting opinion 	in Mt. 	Diablo,
Member 	Morgenstern 	finds 	effects 	of 	layoff 	on 	retained
employees 	"less 	certain." 	He 	would 	find no violation 	in
management's 	refusal 	to negotiate 	over 	a 	reasonably 	foreseeable
impact 	on 	retained 	employees 	"if 	in 	good 	faith 	[management]
foresees no such 	impact and, 	in fact, 	no such impact occurs."
Mt. Diablo, supra, p. 77.
20

However, 	inasmuch as CSEA's 	proposals are limited 	to
effects on employees 	to be 	laid off, 	the 	relationship to wages,
hours 	and 	other 	enumerated 	subjects 	is 	not 	merely 	reasonably
foreseeable, 	it is certain.
The 	District 	next 	argues 	that PERB misapplied 	its 	scope
test 	by 	failing 	to 	find 	that management's 	prerogative 	to 	layoff
is 	negated by requiring 	it 	to negotiate 	effects 	and
implementation 	before any layoffs 	take place, 	especially 	in
view of 	the 	lengthy 	statutory 	impasse 	procedures 	of EERA.
This exception 	is equally misplaced. 	Here, 	the District
refused 	to negotiate CSEA's 	layoff proposals 	in 	the 	course 	of
normal contract negotiations. 	There 	is no evidence 	that
layoffs 	were 	imminent 	or 	even 	contemplated at 	that 	time.
The 	Board has 	recognized 	that, 	where 	a 	request to negotiate
follows management's 	announcement of 	its 	decision 	to 	lay off,
mandatory 	notice dates 	set 	by 	the 	Education 	Code 	create
"deadlines 	for 	the 	completion 	of negotiations 	concerning 	the
notice 	to 	be 	provided 	employees 	targeted 	for 	layoff and 	the
method 	of determining 	the 	identity 	of 	those 	employees 	who will
be laid off." 	Mt. 	Diablo, 	supra, p. 	36. 	In Mt. 	Diablo, we
also 	found 	that, 	where 	the parties had 	already negotiated 	and
included 	in 	their 	collective 	bargaining 	agreement 	provisions
covering 	layoff effects, 	the Association waived 	its 	right 	to
renegotiate 	the 	issue when a layoff was announced. 	Mt. 	Diablo,
supra, pp. 46, 62.
21

In the 	instant case, 	CSEA properly sought to negotiate 	the
effects of layoff 	"before 	the 	fact, 	when 	such dialogue can
potentially be of the greatest value." 	Newark, 	supra, 	p. 	6.
Negotiations 	at 	such 	time 	not 	only 	avoid 	the 	heated 	emotions
and crisis 	atmosphere 	engendered by 	impending layoffs, 	they
also 	avoid 	the 	statutory 	time 	constraints which 	arise 	once 	the
decision 	to 	lay off has 	been 	firmly made. 	Indeed, 	successful
negotiations 	over 	the 	effects 	of 	layoff during 	regular 	contract
negotiations 	avoid 	any danger 	of 	the 	concern 	alluded 	to 	by 	the
District, 	that 	its 	ability to 	lay off would be compromised by
requiring 	it 	to negotiate 	through 	impasse 	on 	layoff effects.
For 	these 	reasons, 	negotiations over 	the effects of layoff
during 	normal 	contract negotiations 	serve 	a 	salutory purpose
and 	are 	viewed 	favorably by 	the 	Board.
Finally, 	the District argues 	that the subject of layoff 	in
0
general 	is 	superseded 	by Education Code 	section 	45117.9 The
9Education 	Code 	section 45117 	provides:
(a) 	When, 	as a result of the expiration of a
specially 	funded program, 	classified
positions must be 	eliminated at 	the 	end 	of
any school year, 	and classified employees
will be 	subject to layoff 	for 	lack of 	funds,
the 	employees 	to be laid off at 	the 	end of
the 	school year 	shall be given written
notice 	on 	or 	before May 29 	informing them of
their 	layoff effective at 	the end of 	the
school 	year 	and of 	their 	displacement
rights, 	if any, and reemployment rights.
However, 	if the termination date of any
specially 	funded 	program 	is 	other 	than
June 30, 	the notice shall be given not less
22

than 	30 	days prior 	to 	the 	effective date 	of
their 	layoff.
(b) 	When, 	as a result of a bona fide
reduction 	or 	elimination 	of 	the 	service
being 	performed 	by any department,
classified 	employees 	shall 	be 	subject 	to
layoff 	for 	lack 	of work, 	affected 	employees
shall be 	given notice of 	layoff not 	less
than 30 	days prior 	to the effective date of
layoff, 	and 	informed of 	their 	displacement
rights, 	if any, 	and reemployment rights.
(c) 	Nothing herein provided shall preclude a
layoff 	for 	lack 	of funds 	in 	the 	event of 	an
actual 	and 	existing 	financial 	inability 	to
pay salaries of classified employees, 	nor
layoff 	for 	lack 	of work 	resulting 	from
causes 	not 	foreseeable 	or 	preventable by 	the
governing board, 	without 	the notice 	required
by subdivision 	(a) 	or 	(b).
This 	section 	shall apply to districts 	that
have 	adopted 	the merit 	system 	in 	the 	same
manner 	and effect as 	if 	it were 	a part of
Article 	6 	(commencing with Section 45240).
Board 	has 	previously 	considered 	the 	effect 	of Education Code
section 	45117 	on 	several 	occasions 	and concluded 	that 	it does
not 	supersede 	the 	subject of layoff 	in general. 	Oakland 	I,
supra; 	Oakland II, 	supra; 	and Healdsburg II. 	Our 	findings as
to 	the negotiability of the proposals 	at 	issue herein 	reflect
the 	determinations 	reached 	in 	those cases 	that Education Code
section 	45117 	permits 	negotiation 	of 	the 	notice 	and 	timing 	of
layoffs, 	including a notice period longer 	than 30 days, 	but
precludes negotiation of a deadline 	for 	layoffs as well as 	a
definition of 	"lack 	of 	funds."
23

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this case, 	and pursuant 	to 	subsection
3541.5(c), 	it 	is hereby ORDERED that 	the 	San Mateo City School
District, 	its governing board 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Failing 	or 	refusing 	to meet 	and negotiate 	in good
faith 	with 	the 	California 	School 	Employees 	Association 	and 	its
Chapter 	#411 	to 	the 	extent 	its 	proposals 	for 	disciplinary
action, 	layoff 	and 	reemployment, 	and 	contracting 	and 	bargaining
unit 	work 	have 	been 	found 	to 	be 	within 	the 	scope 	of
representation;
(b) 	Interfering with 	the 	right 	of employees 	to 	freely
select 	an 	exclusive 	representative 	to meet 	and 	negotiate 	with
the 	employer;
(c) 	Denying 	the California 	School 	Employees Association
and 	its Chapter 	#411 	its 	right 	to 	represent unit members 	by
failing 	or 	refusing 	to meet 	and 	negotiate 	with 	that
organization.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
(a) 	Meet 	and 	negotiate 	upon 	request with 	the California
School 	Employees 	Association 	and 	its 	Chapter 	#411 	with 	respect
to 	those 	subjects 	enumerated 	above 	to 	the 	extent 	found 	to 	be
within 	the 	scope 	of 	representation.
24

(b) 	Within 	thirty-five 	(35) 	days 	following 	the date of
service 	of 	this 	Decision, 	prepare 	and 	post 	copies 	of 	the 	Notice
to Employees, 	attached as 	an Appendix hereto, 	for 	a period of
thirty 	(30) 	consecutive workdays 	at 	the 	District's 	headquarters
office 	and 	in 	conspicuous 	places 	at 	all 	locations 	where 	notices
to 	classified 	employees 	are 	customarily posted. 	Reasonable
steps 	should 	be 	taken 	to 	ensure 	that 	such 	notices 	are 	not
reduced 	in 	size, 	defaced, 	altered or 	covered by any material.
(c) 	Written 	notification 	of 	the 	actions 	taken 	to comply
with 	this 	Order 	shall 	be 	made 	to 	the 	San 	Francisco 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with 	her 	instructions.
Members Jaeger 	and 	Burt 	joined 	in 	this 	Decision.
25

APPENDIX NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case 	No. 	SF-CE-623,
California 	School 	Employees 	Association 	and 	its 	Chapter 	#411 	v.
San Mateo City School 	District, 	in which 	all parties 	had 	the
right 	to participate, 	it has 	been 	found 	that 	the 	District
violated Government Code subsections 3543.5(a), 	(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct, 	we 	have been ordered 	to post
this Notice, 	and will abide by the 	following. 	We will:
1. 	CEASE AND DESIST FROM:
(a) 	Failing 	or 	refusing 	to meet 	and negotiate 	in good
faith 	with 	the 	California 	School 	Employees 	Association 	and 	its
Chapter 	#411 	to 	the 	extent 	its 	proposals 	for 	disciplinary
action, 	layoff 	and 	reemployment, 	and contracting and bargaining
unit 	work 	have 	been 	found 	to 	be within 	the 	scope 	of
representation;
(b) 	Interfering with 	the right of employees 	to 	freely
select 	an 	exclusive 	representative 	to meet 	and 	negotiate 	with
the 	employer;
(c) 	Denying 	the California 	School Employees Association
and 	its Chapter 	#411 	its 	right 	to 	represent 	unit members 	by
failing 	or 	refusing 	to meet 	and 	negotiate 	with 	that
organization.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF THE ACT:
Meet 	and 	negotiate 	upon 	request 	with 	the California
School 	Employees 	Association 	and 	its 	Chapter 	#411 	with 	respect
to 	those 	subjects 	enumerated 	above 	to 	the 	extent 	found 	to 	be
within 	the 	scope 	of 	representation.
Dated: 	SAN MATEO CITY 	SCHOOL 	DISTRICT
By Authorized 	Agent
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE OF POSTING AND MUST 	NOT
BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.