Charter Oak Unified School District (PERB 0873E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CHARTER
	OAK
	EDUCATORS
	ASSOCIATION,
CTA/NEA,
Charging
	Party,
V •
CHARTER
	OAK
	UNIFIED	
SCHOOL
DISTRICT,
Respondent.
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____________________ )
Ca3e 	No.
	LA-CE-2920
PERB
	Decision
	No.
	873
April
	4,
	1991
Appearances:	
California
	Teachers
	Association
	by
	Robert
	Einar
Lindquist,
	Staff
	Counsel,
	for
	Charter
	Oak
	Educators
	Association,
CTA/NEA;
	Liebert,
	Cassidy	
&	
Frierson
	by
	Bruce
	A.
	Barsook,
Attorney, 	for 	Charter
	Oak
	Unified
	School
	District.
Before
	Hesse,
	Chairperson;
	Shank,
	Camilli,
	Cunningham
	and
Carlyle,
	Members. 
DECISION
CAMILLI, 	Member:
	This 	case
	is
	before
	thG
	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by 	~he
	Charter
	Oak
Educators 	Association,
	CTA/NEA
	(Association) 	of
	a
	Board
	agent's
dismissal
	of
	its
	unfair 	practice
	charge
	and
	refusal 	to 	issue
complaint.
	The
	Association 	alleges 	that
	the 	Charter
	Oak
	Unified
School
	District 	(District) 	violated 	the 	Educational
	Employment
Relations
	Act
	(EERA) 1
sections
	3543,
	3543.l(a),
	3543.5(b) 	and
1EERA
	is
	codified 	at
	Government 	Code
	section
	3540
	et
	seq.
Unless 	otherwise 	in~icated,
	all
	statutory 	references 	herein 	are
to 	the
	Government 	Code.
Section
	3543
	gives 	public 	school 	employees
	the 	right 	to 	form,
join
	and
	participate 	in 	the 	activities 	of 	employee
	organizations
of 	their
	own
	choosing. 	Section 	3543.1 	grcnts 	employee
organizations 	the 	concomitant 	right 	to 	represent 	their
	members.
Section 	3543.5 	prohibits 	employers 	from 	engaging 	in 	various 	types

(d),
	and
	3548
	by
	failing
	and
	refusing 	to
	bargain
	in
	good
	faith,
making
	unilateral
	changes 	~n
	policy,
	and
	bypassing
	and
undermining
	the
	Association.
After
	careful
	review
	of
	the
	entire
	record
	in
	this
	matter,
the
	Board
	finds 	the 	Association
	failed
	to
	state
	a
	prima
	facie
case,
	and
	therefore
	affirms 	the
	Board
	agent's
	dismissal 	of 	the
charge.
of 	conduct.
	The
	Association,
	in
	its
	charge, 	claims
	that
subsections
	(b) 	and 	(d)
	of
	section
	3543.5 	were
	violated.
Subsection
	(b)
	forbids
	an 	employer
	from
	denying
	to
	employee
organizations
	rights
	guaranteed
	by
	EERA.
	Subsection
	(d)
	forbids
an 	employer
	from
	dominating
	or
	interfering
	with 	the 	formation 	or
administration
	of
	an 	employee
	organization 	or 	contributing
financial 	or 	other 	assistance 	to
	an
	employee
	organization,
	or
encouraging
	employees
	to 	join
	one
	organization
	in 	lieu
	of
another.
However,
	it
	is
	subsection
	(e)
	of 	section
	3543.5 	which
	is
implicated
	by
	the 	facts
	and
	the 	Association's
	arguments
	in 	this
case.
	That
	subsection
	makes
	it
	unlawful
	for
	an 	employer
	to
refuse 	to
	participate
	in
	good
	faith 	in
	the
	impasse
	procedures.
Allegations 	of
	bad
	faith
	"bargaining" 	conduct
	which
	occurs 	during
the
	pendency
	of
	statutory
	impasse 	procedures
	constitutes
	a
violation
	of 	section
	3543.S(e). 	In
	contrast, 	section 	3543.5(c),
makes
	it
	unlawful
	for
	an 	employer
	to 	refuse 	or
	fail
	to
	meet 	and
negotiate 	in
	good
	faith
	with
	an 	employee
	organization.
	(Moreno
Valley 	Unified
	School
	District
	v. 	Public
	Employment
	Relations
Board 	(1983)
	142
	Cal.App.3d 	191.) 	Here,
	the 	Association
	alleges
the
	District 	failed
	and
	refused
	to
	bargain 	in
	good
	faith,
	made
unilateral
	changes
	in policy,
	and 	bypassed 	and 	undermined
	the
Association,
	all
	of
	which
	are 	alleged 	to
	have
	occurred
	at
	a
	time
when
	statutory
	impasse 	procedures
	had 	been
	instituted
	and 	were
continuing.
Section
	3548
	is
	the 	mediation/impasse 	section, 	but
	it
	does 	not
provide 	statutory 	support 	for
	an
	unfair 	labor 	practice 	charge,and
	is 	therefore 	inapposite.
	·
Although 	the 	Board-agent 	did 	not 	explicitly
	so
	state 	in 	the
warning 	and 	dismissal 	letters,
	he 	appropriately 	analyzed 	the
facts 	under 	section 	3543.S(e).
	The 	Board
	will
	do
	the
	same
	here.
2

FACTUAL
	ALLEGATIONS
The
	Association
	and
	the
	District
	were
	parties
	to
	a
	one-year
col~ective
	bargaining
	agreement
	that
	expired
	on
	June
	30, 	1989.
met
	to
	commence
	negotiations 	for
	a
	successor
	agreement
	on
	or
	They
about 	April
	19,
	1989.
	On
	June
	12, 	1989,
	the 	Association
	filed
	a
Request
	for
	Impasse
	Determination with
	PERB. 	PERB
	determined
that
	impasse
	existed
	and
	appointed
	a
	mediator.
On
	or
	about
	August
	10, 	1989,
	during 	mediation,
	the
District's
	attorney,
	Mary
	Dowell 	(Dowell)
	told
	the 	Association
negotiators
	that
	factfinding
	would
	"not
	make
	any
	difference,
because
	the
	[District]
	Board
	will
	not 	accept 	the
	factfinding
report
	anyway."
On
	or
	about
	September
	7, 	1989,
	still
	during 	mediation,
	the
District
	made
	a
	"package"
	proposal
	to 	the 	Association.
	The
"package"
	included
	an
	increase
	in
	the
	District's
	previous
	salary
offers.
	On
	class 	size,
	the
	District
	proposed
	to
	make 	a
	"good
faith"
	attempt
	to
	reduce
	class 	size 	to
	29
	at
	the
	elementary
	level
in 	the
	1989-90
	school 	year, 	with
	an
	obligation 	to
	meet
	that
	goal
in 	the
	1990-91
	school 	year. 	In
	an
	earlier
	proposal,
	on
	July
	26,
1989,
	the
	District 	stated
	it
	"[would] 	reduce
	class 	size 	to
	29
	at
the 	elementary 	level" 	in 	the
	1989-90
	school 	year.
I
Also,
	in
	its
	September 	7,
	1989
	"package,''
	the
	District
proposed 	"[n]o 	inclusion 	of
	any 	language 	regarding
	discipline."
However,
	in
	a
	previous proposal 	the
	District
	proposed 	the
following 	language:
Discipline 	of
	a
	unit
	member
	shall
	be 	done
pursuant 	to 	the 	procedures 	set 	forth 	in 	the
3

appropriate 	provisions
	of 	the
	Education
	Code
except 	as 	provided
	for 	in
	this
	article.
	The
District
	will
	utilize
	such
	elements
	of
progressive
	discipline 	(e.g.,
	verbal
	warnings
or
	written
	reprfmands)
	as
	are 	appropriate
	to
each
	situation.
2 ]
The
	Association
	countered
	the
	District's
	"package"
	proposal.
The
	District
	responded
	with
	a
	"Last,
	Best
	and
	Final 	Offer"
	which
increased 	the
	District's
	salary 	offer
	to
	7.25
	percent.
	The
"Last,
	Best
	and
	Final
	Otfer"
	also
	proposed
	a
	$100
	increase
	(from
$1000
	to
	$1100)
	in
	the 	anniversary
	increments
	at
	Steps
	16
	and
	20
of
	Column
	C
and
	Steps
	17
	and
	21
	of
	Column
	Don
	the
	salary
schedule.
	The
	"Last,
	Best
	and
	Final
	Offer"
	incorporated 	various
other
	proposals, 	including
	some
	on which
	the
	parties
	had
	reached
tentative
	agreement.
On
	September 	12, 	1989,
	the
	mediator
	certified
	the
	dispute 	to
factfinding.
	A
	factfinding 	report
	was
	issued
	on
	November
	22,
1989.
	The
	Association's
	panel
	member
	signed
	the 	report; 	the
District's
	panel
	member
	dissented.
	In
	its
	dissent, 	the
	District
disagreed
	with 	the 	factfinding 	report 	regarding:
	(1)
	Article
	VI,
Grievance 	Procedure;
	(2)
	Article
	X,
	Teacher Assignment 	and
Transfer;
	(3)
	Article
	XVI,
	Compensation; 	(4)
	Article
	XVII,
Medical
	and
	Dental 	Insurance;
	and 	(5)
	Article
	XXVI,
	Just
	Cause
and
	Due
	Process.
	The
	dissent 	articulates
	the
	District's
	reasons
for 	dissenting
	on
	these 	provisions.
2
The
	first
	sentence
	was
	part 	of 	an 	April 	25, 	1989
	proposal.
The 	second 	sentence
	was 	added 	by 	a 	May
	4, 	1989 	amendment
	to 	the
proposal. 
4

The 	parties 	met 	again 	on December 	11, 	1989. 	The 	Association
formally 	proposed 	to 	accept 	the 	factfinding 	report, 	even 	though
the 	report 	allegedly was 	adverse 	to 	the 	Association 	on 	several
issues. 	The 	Association 	also 	offered 	to 	extend 	the 	duration 	of
the 	agreement 	from 	two 	years 	to 	three 	years, 	as 	the 	District 	had
proposed 	earlier. 	After 	a 	caucus 	of 	no 	more 	than 	15 	minutes, 	the
District 	rejected 	the 	Association's 	proposal 	and 	refused 	to
change 	its 	own 	"Last, 	Best 	and 	Final 	Offer."
On 	January 	9, 	1990, 	at 	a 	public 	meeting, 	the 	District 	board
voted 	to 	implement 	a 	7.25 	percent 	salary 	increase. 	The
Association 	president, 	who 	was 	present, 	protested 	the 	action 	and
demanded 	that 	the 	District 	negotiate 	the 	salary 	increase.
On 	January 	10, 	1990, 	the 	District .superintendent 	sent 	a
memorandum 	to 	bargaining 	unit 	members 	announcing 	the 	7.25 	percent
salary 	increase 	and 	a 	$100 	increase 	in 	anniversary 	increments.
The 	memorandum 	stated, 	in 	part, 	that 	"it was 	determined 	that
further 	negotiations 	would 	not 	be 	productive"; 	that 	''[t]he
negotiations 	for 	1989-90 	are 	completed 	and 	the 	present 	contract
remains 	in 	force"; 	and 	that 	the 	Association 	leadership 	"may 	now
present 	an 	initial 	proposal 	and 	begin 	negotiations 	for 	a 	new
contract 	for 	1990-91." 	Following 	a 	statement 	that 	the 	District
participated 	in 	good 	faith 	and 	seriously 	considered 	the 	panel's
recommendations, 	the 	memorandum 	stated:
However, 	the 	[District] 	Board 	concluded 	that
although 	it 	agreed 	with 	many 	of 	the 	panel's
recommendations, 	the 	salary 	increase
recommended would 	not 	be 	prudent. 	In
addition, 	the 	Board 	had 	serious 	concerns
about 	three 	of 	the 	recommendations: 	Transfer
5

procedure,
	Salary,
	and
	"Just
	Cause/Due
Process."
The
	subsequent 	paragraphs
	explain 	the
	District
	board's
consideration
	of
	each
	of
	these
	three 	issues,
	and
	the 	reasons
	for
its
	ultimate
	conclusions.
	The
	issues
	enumerated
	in
	the
January
	10,
	1990
	memorandum
	to
	unit
	members
	are
	consistent
	with
the
	District's
	dissent 	to 	the 	factfinding 	report
	and
	the 	reasons
therefor.
The
	memorandum
	also
	contained
	the
	following
	statements,
	all
of
	which
	are 	alleged 	to
	be
	false
	and
	misleading:
1. 	"The
	resulting
	working
	conditions
	[in
	the
District]
	since
	1985
	are
	among
	the
	best
enjoyed
	by 	any
	teachers 	in
	Los
	Angeles
County,"
	including
	"[f]ringe 	benefits
	that
rank
	in
	the
	top
	quartile
	in
	Los
	AngelesCounty" 	and
	"[h]ighly protective
	teacher
transfer
	procedures."
2.
	"The
	District 	participated 	in 	the 	Fact
Finding 	process
	in
	good
	faith
	and
	seriously
considered 	the
	panel's
	recommendations."
3.
	"The
	current
	transfer
	procedure
	in
	the
contract
	...
	guarantees 	serious
consideration 	for
	transfer
	requests
	and
assures 	involuntary
	transfers 	will
	only
	be
made
	under
	certain 	limited 	circumstances."
4.
	"The
	District's 	offer 	for
	salaries 	for
1989-90
	...
	includes
	1.91%
	for 	step
	and
column
	increases."
5.
	A
	"Just
	Cause/Due
	Process"
	article
"would
	virtually
	guarantee
	a
	grievance
hearing 	over 	every
	disciplinary 	action
	no
matter
	how
	minor;" 	such 	an
	article
	"would 	be
unusual 	and,
	in 	fact,
	very
	few
	districts
	have
such
	a
	provision."
6.
	"Unfortunately, 	the 	[Association]
requested 	impasse
	in
	June 	of
	1989,
	well
before 	the 	adoption 	of 	the 	State 	budget."
6

7.
	"The
	District
	met
	again
	[after
factfinding]
	with
	the
	[Association]
negotiating
	team
	in
	an
	effort
	to
	reach
agreement.
	At
	the
	conclusion of
	that
meeting,
	it
	was
	determined
	that
	furthernegotiations
	would
	not
	be
	productive."
8.
	"The
	[District]
	Board
	has
	authorized
	me
to
	meet
	with
	the
	[Association]
	leadership
	to
discuss
	any
	changes
	that
	we
	can
	mutually
	make
in
	bargaining
	practices
	which
	may
	lead 	to
less
	adversarial
	bargaining."
9.
	"The
	[Distridt]
	Board
	of
	Education
	did
not
	believe
	that 	unit
	members
	should
	be
deprived 	of
	the
	salary 	increase
	which
	it
	has
been
	willing 	to
	give	
since	
the
	beginning 	of
this
	year.
	That
	is
	why
	last
	night 	the
[District]
	Board, 	on
	my
	recommendation,
	voted
to
	increase
	unit
	members'
	salaries."
DISCUSSION
In 	cases 	of
	an
	alleged
	failure
	or 	refusal 	to
	bargain
	in
	good
faith,
	PERB
	has
	held
	that
	one 	must
	look
	to
	the
	entire
	course 	of
negotiations,
	examining
	a
	party's
	outward 	conduct
	to
	determine
whether
	its
	subjective
	intent
	was
	to 	seriously
	attempt
	to 	resolve
differences
	and
	reach
	a 	common
	ground.
	(Pajaro 	Valley 	Unified
School
	District
	(1978)
	PERE
	Decision
	No.
	51;
	Regents
	of
	the
University
	of
	California
	(SUPA)
	(1985)
	PERB
	Decision
	No.
	520-H.)
The
	statement
	made
	by 	Dowell,
	the
	District's
	attorney,
	on
August
	10, 	1989,
	that 	factfinding
	would
	make 	no
	difference
because 	the 	school 	board
	would
	not 	accept 	the 	report 	in
	any
	case
is
	circumstantial
	evidence
	that 	the 	District
	did 	not
	engage
	in
good
	faith
	bargaining.
	The 	Board 	has 	held
	that 	certain 	actions
constitute 	per 	se 	violations 	of 	the 	duty
	to 	bargain 	in
	good
	faith
because 	they 	are 	egregious 	and 	have 	such
	a
	great 	potential 	to
7

frustrate 	negotiations. 3 (Ibid.) 	However, 	the 	statement 	made 	by
Dowell 	is 	not 	of 	a 	nature 	such 	that 	it 	alone 	constitutes 	bad
faith 	bargaining per 	se. 	Therefore, 	the 	statement 	must 	be
considered 	in 	the 	entire 	course 	of 	negotiations 	to 	determine 	if 	a
prima 	facie 	case 	is 	stated 	by 	these 	allegations.
The 	Association 	also 	contends 	that 	the 	District 	failed 	to
consider 	the 	factfinding 	report 	in 	good 	faith. 4 Specifically,
the 	Association 	alleges 	the 	District 	(1) 	failed 	to 	make 	any
proposal 	in 	response 	to 	the 	factfinding 	report; 	(2) 	failed 	to
schedule 	a 	bargaining 	session 	to 	consider 	the 	factfinding 	report;
(3) 	made 	no 	substantive 	proposal 	of 	its 	own 	in 	response 	to 	the
factfinding 	report; 	(4) 	after 	receipt 	of 	the 	Association's
proposal, 	caucused 	for 	a 	period 	of 	no 	more 	than 	15 	minutes 	and
then 	rejected 	the 	Association's 	proposal 	in 	its 	entirety; 	(5)
3The 	"per 	se" 	categories 	include 	the 	following: 	( 1) 	an
outright 	refusal 	to 	bargain 	(Pajaro 	Valley 	Unified 	School
District, 	supra, 	PERB 	Decision 	No. 	51); 	(2) 	refusal 	to 	provide
information 	that 	is 	necessary 	and 	relevant 	to 	the 	employee
organization's 	duty 	to 	represent 	bargaining 	unit 	employees
(Stockton 	Unified 	School 	District 	(1980) 	PERB 	Decision 	No. 	143);
(3) 	insistence 	to 	impasse 	on 	a 	non-mandatory 	subject 	of
bargaining 	(Lake 	Elsinore 	School 	District 	(1986) 	PERB 	Decision
No. 	603; 	Modesto 	City 	Schools 	(1983) 	PERB 	Decision 	No. 	291); 	(4)
bypassing 	the 	employee 	organization's 	negotiators 	(Muroc 	Unified
School 	District 	(1978) 	PERB 	Decision No. 	80); 	and 	(5)
implementation 	of 	a 	unilateral 	change 	in working 	conditions
without 	notice 	and 	opportunity 	to 	bargain 	(Pajaro 	Valley 	Unified
School 	District, 	supra, 	PERB 	Decision 	No. 	51).
4In 	addition 	to 	the 	parties' 	duty 	to 	meet 	and 	negotiate 	in
good 	faith, 	the 	parties 	have 	a 	duty 	to 	participate 	in 	good 	faith
in 	the 	statutory 	impasse 	procedures. 	Unlike 	the 	National 	Labor
Relations 	Act 	(NLRA), 	the 	EERA 	contains 	explicit 	impasse
procedures. 	(See 	EERA 	sections 	3548 	through 	3548.4.) 	The
issuance 	of 	the 	factfinding 	report 	is 	part 	of 	the 	statutory
impasse 	procedures.
8

made
	no
	substantive
	counterproposals
	in
	response
	to 	the
Association's
	proposal;
	and 	(6)
	declined
	to
	engage
	in 	discussion
or 	bargaining
	in
	an
	attempt
	to
	establish
	whether
	the
	factfinding
report
	provided
	the
	basis
	for 	settlement.
	In
	Modesto
	City
Schools, 	supra,
	PERB
	Decision
	No. 	291
	(Modesto),
	this
	Board 	found
that 	after
	the
	recommendations
	of 	the
	factfinding
	partel
	have
	been
issued
	and
	considered
	in
	good
	faith,
	the
	parties
	may
	remain
	at
impasse
	or
	return 	to 	the 	bargaining
	table
	until
	they 	reach
agreement
	or 	again 	reach
	impasse.
	The
	Board
	further
	held
	that:
...
	the
	statutory
	impasse
	procedures
	are
exhausted 	only
	when
	the
	factfinder's
	report
has
	been
	considered
	in
	good
	faith,
	and
	thenonly
	if
	it
	fails
	to
	change
	the
	circumstances
and
	provides
	no
	basis 	for 	settlement 	or
movement
	that
	could
	lead
	to 	settlement
....
(Id.
	at
	p.
	32.)
Under 	Modesto,
	the 	obligation
	of 	the
	parties
	after
	the
recommendations
	of
	the 	factfinding
	panel 	are
	made
	is
	to 	consider
the
	recommendations
	in
	good
	faith 	to
	determine 	whether
	there
	is
	a
basis 	for 	settlement, 	or 	for
	such 	accommodations,
	concessions, 	or
compromises
	that
	might
	lead 	to 	settlement.
	As 	a
	result
	of
	this
process, 	either
	party 	or
	both
	parties
	may
	decide
	in
	good
	faith
that
	the 	factfinding 	report
	does
	not 	provide
	a
	basis 	for
settlement 	or
	movement
	that
	could 	lead 	to 	settlement.
The
	dissent 	cites
	Modesto 	and 	Temple
	City 	Unified 	School
District
	(1990)
	PERB
	Decision
	No. 	843 	(Temple
	City),
	a
	case
decided
	by 	only 	three
	Board 	members,
	as 	precedent 	for
	its
requirement 	that 	after 	the 	factfinding 	report 	is 	issued, 	the
parties
	have
	a
	»joint 	duty» 	to 	discuss 	the 	factfinding 	report
9

together 	to 	determine whether 	impasse 	still 	exists. 	In Temple
~, 	the 	Board, 	citing 	footnote 	18 	at 	page 	37 	of 	Modesto, 	stated
that 	the 	parties 	are 	obligated 	to:
.. 	seriously 	discuss 	the 	report 	and 	engage
in 	a 	further 	exchange 	of 	information which
may 	determine 	whether 	movement 	toward
settlement 	is 	a 	possibility.
(l..d..... at 	p. 	6.)
We 	do 	not 	construe 	Modesto 	to 	require 	that, 	in 	every 	case, 	the
parties 	have 	an 	affirmative 	duty 	to 	engage 	in 	further 	discussions
or 	negotiations 	regarding 	the 	factfinding 	report. 	Such 	a
requirement 	would 	extend 	negotiations 	indefinitely. 	The 	parties
would 	never 	reach 	Modesto's 	"second 	impasse.'' 	Consequently, 	the
employer 	would 	not 	be 	permitted 	to 	implement 	its 	last, 	best, 	and
final 	offer, 	while 	the 	exclusive 	representative 	would 	be 	legally
prohibited 	from 	engaging 	in 	concerted 	activity 	(i.e., 	strike).
Since 	its 	inception, 	Modesto 	has 	provided 	sufficient 	guidance 	to
the 	parties 	during 	their 	impasse 	and 	post-impasse 	conduct.
Therefore, 	there 	is 	no 	need 	for 	any 	clarification 	or 	modification
of 	the 	Modesto 	decision. 	Good 	faith 	consideration 	of 	the
factfinding 	report 	will 	be 	determined 	on 	a 	case-by-case 	basis.
That 	portion 	of 	Temple 	City which 	discusses 	the 	Modesto
requirement 	that 	the 	parties 	consider 	the 	factfinding 	report 	in
good 	faith, 	including 	the 	citation 	to 	footnote 	18 	at 	page 	37 	of
Modesto, 	is 	hereby 	overruled.
Nevertheless, 	this 	case 	is 	factually 	dissimilar 	from 	Modesto
and 	Temple 	City. 	In 	Modesto, 	the 	Association 	made 	significant
concessions, 	and 	the 	District 	refused 	to 	even 	consider 	the
10

factfinding 	report 	because 	of 	its 	concern 	that 	it 	would 	have 	to
go 	back 	through 	the 	PERB 	process 	of 	certifying 	impasse.
Similarly, 	in 	Temple 	City, 	the 	factual 	allegations 	were 	much
stronger 	than 	in 	the 	present 	case. 	Specifically, 	the 	district
entered 	into 	post 	factfinding 	discussions, 	but 	presented 	a 	11 take
it 	or 	leave 	it" 	attitude 	in 	doing 	so. 	The 	case 	currently 	before
the 	Board 	is 	distinguishable 	on 	its 	facts 	from 	both 	Modesto 	and
Temple 	City. 	In 	this 	case, 	there 	are 	no 	factual 	allegations,
apart 	from 	the 	Dowell 	statement, 	to 	support 	a 	prima 	facie 	case
that 	the 	District 	failed 	to 	consider 	the 	report 	in 	good 	faith. 5
In 	support 	of 	the 	allegation 	that 	the 	District 	failed 	to
consider 	the 	factfinding 	report 	in 	good 	faith, 	the 	Association
alleges 	that 	on 	December 	11, 	1989, 	when 	it 	proposed 	to 	accept 	the
factfinding 	report, 	the 	District 	caucused 	for 	15 	minutes 	before
rejecting 	the 	proposal. 	However, 	the 	factfinding 	report 	was
issued 	on 	November 	22, 	1989, 	so 	the 	District 	had 	two 	and 	one-
half 	weeks 	to 	review 	the 	document 	before 	it 	met 	with 	the
Association. 	In 	addition, 	the 	District's 	dissatisfaction 	with
the 	factfinding 	report 	was 	already 	expressed 	in 	its 	dissent.
5The 	dissent 	would 	require 	the 	District 	to 	make 	an
affirmative 	showing 	that 	it 	engaged 	in 	good 	faith 	consideration
of 	the 	report, 	by 	mandating 	the 	District 	should 	have 	entered 	into
a 	face 	to 	face 	and 	item-by-item 	explanation 	of 	its 	reasons 	for
rejecting 	the 	Association's 	proposal 	to 	accept 	the 	factfinding
report 	in 	its 	entirety.
Such 	a 	requirement 	improperly 	shifts 	the 	burden 	to 	the 	District.
It 	is 	the 	charging 	party's 	burden 	to 	allege 	a 	prima 	facie 	case,
not 	the 	burden 	of 	the 	respondent 	to 	negate 	the 	charge.
Furthermore, 	such 	a 	rule 	requires 	the 	respondent 	to 	prove 	its
defense 	at 	a 	premature 	stage 	in 	the 	proceedings.
11

Consequently,
	when
	the 	Association
	proposed
	to
	accept
	the
factfinding 	report,
	the
	District
1 s
	position
	was
	known
	to 	the
Association
	by
	virtue
	of 	the
	District
	panel
	member
1 s
	dissent
	to
the
	report.
	The
	Association 	did 	not
	make
	any
	new
	substantive
proposal
	in
	this
	case, 	but
	simply 	proposed
	to
	accept
	the
factfinding 	report 	in
	its
	entirety,
	and
	to
	extend
	the
	agreement
by
	one
	year. 	In
	any
	case,
	neither
	the 	length 	of
	time 	between
	the
issuance
	of 	the
	report
	and
	the
	December
	11
	meeting, 	nor
	the
brevity
	of
	the
	District
1 s
	caucus
	during
	the
	December
	11
	meeting
are
	sufficient
	facts 	to 	indicate
	that
	the
	District 	failed 	to
consider 	the 	factfinding 	report 	in
	good
	faith.
6
The
	Association
	claims
	that
	the 	issuance 	of 	the
	factfinding
report
	and
	the 	Association
1 s
	proposal
	to
	adopt
	the
	factfinding
report
	broke 	impasse 	and
	constituted
	changed
	circumstances.
	The
Board 	has
	held
	that
	where 	one
	party 	believes 	the
	factfinding
report
	provides
	a
	basis 	for
	agreement
	and
	the 	other
	does
	not, 	the
concessions
	made
	by 	one
	party
	must 	be
	given
	consideration 	by 	the
other,
	but
	that:
6we
	note 	the 	dissent 	inaccurately 	states 	that
	the
	District
refused 	to 	consider 	the 	factfinding 	report.
	The
	relevant 	factual
allegations,
	as
	stated
	by
	the 	dissent, 	are
	that
	the
	District
caucused
	for
	15
	minutes 	during
	a
	"face 	to
	face"
	negotiation
session,
	and
	then 	rejected 	the 	Association
1 s
	proposal. 	Further,
the 	dissent
	makes 	no
	reference 	to 	the
	District
	panel 	member's
dissent 	to 	the 	factfinding 	report.
In 	determining 	whether
	a
	prima
	facie 	case 	has 	been
	stated
	by
	the
charging 	party, 	the 	factual 	allegations 	in 	the 	charge 	are
	assumed
to
	be
	true.
	However, 	where, 	as 	here,
	a
	charge 	contains
	a
	legal
conclusion, 	but 	other 	factual 	allegations 	contained 	in 	the 	charge
do
	not 	support 	such
	a
	legal 	conclusion, 	the 	Board
	is
	not 	required
to 	accept 	the 	legal 	conclusion 	as 	true.
12

Having 	already 	gone 	through 	an 	extended
period 	of 	negotiations 	and 	impasse
proceedings, 	either 	party 	is 	free 	to 	conclude
that 	it 	has 	made 	all 	the 	concessions 	it 	can
and 	further 	negotiations 	are 	futile. 	Where
this 	determination 	is 	reached 	in 	good 	faith,
NLRA-type 	impasse 	exists. 	The 	parties 	may
decline 	further 	requests 	to·bargain and 	may
implement 	policies 	reasonably 	comprehended
within 	previous 	offers 	made 	and 	negotiated.
(Modesto 	City 	Schools, 	supra, 	PERB 	Decision
No. 	291, 	p. 	39, 	emphasis 	added.)
As 	there 	are 	no 	other 	factual 	allegations 	that 	the 	District
failed 	to 	consider 	the 	factfinding 	report 	and 	the 	proposal 	of 	the
Association 	in 	good 	faith, 	the 	unfair 	practice 	charge 	does 	not
state 	a 	prima 	facie 	case 	that 	the 	District 	violated 	the 	duty 	set
out 	in 	Modesto when 	it 	determined 	that 	impasse 	existed 	and
implemented 	policies 	reasonably 	comprehended within previous
offers. 	The 	Association's 	claims 	that 	second 	impasse 	had 	not
been 	reached 	and 	that 	its 	proposals 	constituted 	changed
circumstances 	are 	therefore 	rejected 	as 	conclusory.
The 	Association 	further 	claims 	that 	on 	January 	9 	and 	10,
1990, 	the 	District 	implemented 	unilateral 	changes 	and 	failed 	and
refused 	to 	bargain 	in 	good 	faith 	at 	a 	time 	when, 	in 	the
Association's 	view, 	impasse 	had 	been broken. 	Under 	the 	test
enunciated 	in 	Modesto, 	the 	District was 	free 	to 	end 	negotiations
and 	to 	implement 	unilateral 	changes 	if 	it 	determined 	in 	good
faith 	that 	the 	parties 	were 	still 	at 	impasse, 	or had 	once 	again
reached 	impasse, 	even 	if 	the 	Association 	disagreed. 	As 	the 	facts
alleged 	are 	insufficient 	to 	show 	that 	the 	District 	acted 	in 	bad
faith 	when 	it 	determined 	that 	the 	parties 	had 	reached 	impasse
after 	the 	issuance 	of 	the 	factfinding 	report, 	the 	District's
13

implementation
	of 	increases
	in
	salary
	and
	anniversary
	increments
does
	not
	constitute
	a
	prima
	facie 	violation
	of 	section
	3543.S(d)
of
	EERA.
The
	Association
	also
	contends
	that
	by
	failing
	to
	implement
all
	of
	the
	tentative
	agreements
	reached
	by
	the
	parties,
	the
District
	engaged
	in
	bad
	faith
	bargaining
	when,
	on
	January
	9
and 	10,
	1990,
	it
	implemented
	the
	salary
	and
	anniversary
increments
	proposed
	in
	its
	last,
	best
	and
	final 	offer,
	and
retained
	provisions 	of
	the
	prior
	memorandum
	of 	understanding
(MOU)
	on
	other 	issues.
	However,
	when
	an 	employer
	reaches
	impasse
in 	the 	entire
	negotiations,
	an 	employer
	may
	implement
	some
	or
	all
of
	its
	proposals
	and 	need
	not 	place
	all
	of
	them
	into
	effect.
(Morris,
	The
	Developing 	Labor
	Law
	(2d
	ed.,
	5th 	supp.)
	1982-88,
p. 	331.)
In addition, 	section
	3.7 	of
	Article
	III
	of 	the
	parties
1
	MOU,
which
	sets
	out 	the 	procedural
	ground
	rules 	for 	negotiations
between
	the
	parties, 	states:
As
	the 	various
	Articles
	of 	the
	proposed
contract 	are
	agreed
	upon,
	they
	shall
	be
labeled 	"Tentative
	Agreement,"
	initialed
	by
both
	parties,
	and
	set
	aside 	to
	be
	later
incorporated 	into
	a
	final 	contractual
agreement 	except 	for 	corrections 	of
	minor
typographical
	and
	grammatical
	errors.
Section
	3.7
	is
	evidence
	that
	the
	parties 	did 	not 	intend
	tentative
agreements
	to
	have
	effective 	significance 	separate
	from
	the 	final
MOU,
	but 	rather, 	that
	they 	should 	be
	set 	aside 	only 	to
	be
incorporated 	into
	a
	final
	comprehensive
	MOU.
	As
	there 	is
	no
final 	contractual 	agreement, 	according 	to 	the 	parties
1 	own
	ground
14

rules
	for 	negotiations,
	the
	tentative
	agreements 	have
	no
	binding
effect
	upon
	the
	parties.
	This
	argument
	is
	therefore
	rejected.
Furthermore,
	the
	Board
	has
	held
	that
	the
	changes 	implemented
once
	a
	party
	determines
	in
	good
	faith 	that
	a
	post-factfinding
impasse
	exists,
	11
•••
	need
	not
	be
	exactly
	those
	offered 	during
negotiations,
	but
	must 	be
	reasonably
	'comprehended
	within
	the
impasse
	proposals.'"
	(Modesto
	City
	Schools,
	supra,
	PERB
	Decision
No.
	2 9 1 , 	p . 	4 6 . )
[M]atters 	reasonably
	comprehended
	within 	pre-
impasse
	negotiations 	include
	neither
proposals
	better
	than 	the
	last
	best
	offer
	nor
proposals
	less
	than 	the
	status
	quo
	which 	were
not
	previously 	discussed
	at
	the
	table.
(Id.
	at
	p. 	47.)
All 	of 	the 	provisions 	for
	which 	changes 	were 	implemented
	had 	been
subject
	to 	negotiation
	by
	the
	parties,
	so
	the 	Association
	had
notice 	that
	changes 	were
	contemplated.
	Because
	the
	last,
	best
and
	final
	offer
	was
	a
	"package
	proposal,"
	we
	decline 	to
	dissect
the
	package
	to 	separately
	compare
	each
	provision 	of 	the
	package
to
	prior
	proposals 	concerning
	that
	provision.
	Looking
	at
	the
totality
	of
	negotiations,
	we
	find 	the
	changes 	implemented 	were
reasonably
	comprehended
	within 	pre-impasse 	proposals.
The
	Association 	contends
	that
	the 	statements
	made
	in 	the
January
	10,
	1990
	letter
	to 	bargaining 	unit
	employees
	unlawfully
undermined 	the 	Association's 	authority
	and
	constituted
	bad
	faith
bargaining.
	It 	is
	alleged 	that 	the 	statements
	made
	in 	this
letter
	are 	false,
	misleading 	and
	derogatory,
	and
	constitute
	a
campaign 	of 	coercive 	communications.
j
	However,
	the 	charge
	fails
to 	allege
	any
	facts 	to 	support 	the 	allegation 	that 	the 	statements
15

are
	indeed
	false,
	misleading
	or
	derogatory.
	On
	the
	contrary,
	a
review 	of
	the
	January
	10
	letter
	indicates
	that
	the
	District
	was
merely
	communicating
	its
	position 	to
	employees,
	and
	announcing
the
	unilateral
	implementation
	of
	certain 	policies.
Furthermore,
	even
	if
	the
	allegation 	that
	the 	statements
	are
false,
	misleading
	and
	derogatory
	is
	assumed
	to
	be
	true,
	the
statements
	contained
	in
	the
	January
	10
	letter
	still
	do
	not
constitute
	unlawful
	communication.
	In
	Rio
	Hondo
	Community
College
	District
	(1980)
	PERB
	Decision
	No.
	128,
	the
	Board
considered
	section
	8(c) 	of 	the
	NLRA
	which
	provides
	that
	the
expression
	of
	views,
	argument
	or 	opinion,
	in 	written, 	printed,
graphic, 	or 	visual
	form
	shall
	not
	constitute
	or
	be
	evidence
	of
	an
unfair
	labor
	practice
	if
	such
	expression 	contains
	no
	threat
	of
reprisal
	or 	force 	or
	promise
	of
	benefit.
	Although
	the
	EERA
contains
	no
	parallel
	provision
	to 	section
	B(c)
	of
	the
	NLRA,
	the
Board,
	in
	Rio
	Hondo
	Community
	College
	District,
	supra,
	found
	that
a
	public
	school
	employer
	is 	entitled
	to
	express
	its
	views 	on
employment-related 	matters
	in 	order 	to
	facilitate 	full
	and
knowledgeable
	debate. 	(Id.
	at
	p.
	9.)
	The
	employer's
	privilege
of
	free
	speech
	is
	balanced
	against 	the
	employee's
	right 	to
	be
free
	from 	employer 	communications 	which
	persuade
	by
	coercion.
(.liL._
	at
	p. 	18.)
	The
	Board
	held
	that:
...
	an 	employer's 	speech which
	contains
	a
threat
	of
	reprisal 	or 	force 	or
	promise 	of
benefit 	will
	be
	perceived 	as
	a 	means
	of
violating 	the
	Act
	[EERA]
	and
	will, 	therefore,
lose
	its
	protection
	and
	constitute 	strong
evidence 	of 	conduct which
	is 	prohibited
	by
section 	3543.
5
	of 	the
	EERA.
	[Fn.
	omitted.]
(Id.
	atp.
	20.) 
16

The 	employer 	is 	prohibited 	only 	from 	engaging 	in 	communications
which 	amount 	to 	negotiations 	with 	a 	person 	or 	group 	other 	than
the 	exclusive 	representative. 	(.liL.. 	at 	p. 	19.)
The 	statements 	found 	in 	the 	January 	10 	letter 	constitute
neither 	a 	promise 	of 	benefit 	nor 	a 	threat 	of 	reprisal. 	The
District 	had 	determined 	that 	impasse 	existed 	and 	implemented 	its
last, 	best 	and 	final 	offer. 	By 	this 	letter, 	the 	District 	was
communicating 	its 	position 	and 	the 	reasons 	therefor, 	and 	was
announcing 	the 	unilateral 	implementation 	of 	certain 	policies.
Further, 	the 	employer was 	not 	attempting 	to 	bypass 	the
Association 	and 	negotiate 	through 	the 	employees. 	(Cf. 	Walnut
Valley 	Unified 	School 	District 	(1981) 	PERB 	Decision 	No. 	160.)
The 	District was 	no 	longer 	attempting 	to 	negotiate. 	Rather, 	the
District 	had 	determined 	the 	parties 	had 	reached 	impasse 	and
negotiations 	were 	at 	an 	end when 	it 	announced 	the 	implementation
of 	its 	last, 	best 	and 	final 	offer. 	Therefore, 	the 	statements
fail 	to 	constitute 	an 	attempt 	to 	bypass 	the 	Association, 	a
promise 	of 	benefit 	or 	a 	threat 	of 	reprisal 	or 	force.
Consequently, 	the 	statements 	fail 	to 	state 	a 	prima 	facie 	case 	of
bad 	faith 	bargaining.
Finally, 	the 	Association 	contends 	that 	the 	District's
package 	proposal 	on September 	7, 	1989, 	was 	regressive 	and
therefore 	evidenced 	bad 	faith 	in 	the 	totality 	of 	the
circumstances. 	The 	provisions 	on 	class 	size 	and 	discipline
procedure~ 	in 	ihe 	September 	7 ~ackage 	proposal 	did 	contain
proposals 	which 	were 	less 	beneficial 	to 	the 	Association 	than 	it
17

had 	offered 	in 	prior 	proposals. 	However, 	·the proposals 	on 	salary
and 	anniversary 	increments 	were 	more 	beneficial 	to 	the
Association 	than 	prior 	proposals. 	The 	Association 	fails 	to
allege 	how 	the 	District 1 s 	last, 	best 	and 	final 	proposal, 	which
includes 	numerous 	provisions 	covering 	all 	subjects 	of 	the 	MOU, 	is
regressive. 	The 	District's 	package 	proposal 	is 	not 	necessarily
regressive 	merely 	because 	two 	provisions 	contained 	therein 	are
less 	advantageous 	to 	the 	Association 	than previous 	proposals.
Therefore, 	as 	there 	are 	no 	other 	factual 	allegations 	which
support 	a 	regressive 	bargai~ing 	violation, 	the 	Association 	fails
to 	state 	a 	prima 	facie 	case 	of 	bad 	faith 	bargaining.
CONCLUSION
As 	stated 	above, 	the 	Dowell 	statement 	is 	insufficient, 	by
itself, 	to 	constitute 	a 	prima 	facie 	case 	of 	a 	violation 	of 	the
duty 	to 	bargain 	in 	good 	faith. 	As 	discussed 	above, 	none 	of 	the
additional 	factual 	allegations 	state 	a 	prima 	facie 	case 	of 	bad
faith 	bargaining. 	Accordingly, 	the 	Board 	finds 	that 	the 	unfair
practice 	charge 	fails 	to 	state 	a 	prima 	facie 	violation 	of 	the
EERA.
ORDER
The 	unfair 	practice 	charge 	in 	Case 	No. 	LA-CE-2920 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson 	Hesse 	and 	Member 	Carlyle 	joined 	in 	this 	Decision.
Member 	Shank's 	and 	Cunningham 1 s 	concurrence 	and 	dissent 	begins 	on
page 	19.
18

Member 	Shank, 	concurring 	in 	part, 	and 	dissenting 	in 	part:
I 	agree 	with 	the 	majority's 	conclusions 	that: 	(1) 	the
District 1 s 	statements 	in 	the 	January 	10, 	1990 	letter 	to
bargaining 	unit 	employees 	did 	not 	constitute 	a 	campaign 	of
communications, 	a 	promise 	of 	benefit 	or 	a 	threat 	of 	reprisal 	or
force 	and, 	therefore, 	are 	insufficient 	in 	themselves 	to
constitute 	a 	prima 	facie 	case 	of 	bad 	faith 	bargaining; 	and 	(2)
the 	allegations 	regarding 	the 	Charter 	Oak 	Unified 	School
District's 	(District) 	package 	proposal 	on 	September 	7, 	1989 	were
insufficient 	to 	raise 	an 	issue 	of 	regressive 	bargaining.
I 	strongly 	disagree, 	however, 	with 	the 	majority 1 s 	conclusion
that 	the 	Charter Oak 	Educators 	Association, 	CTA/NEA 	(Association)
failed 	to 	state 	a 	prima 	facie 	violation 	of 	the 	duty 	to
participate 	in 	good 	faith 	in 	the 	impasse 	procedures 	(EERA 	section
3543.5(e) 1 ). 	In 	determining whether 	a 	prima 	facie 	case 	has 	been
stated 	by 	the 	charging 	party, 	the 	Board 	agent 	takes 	the 	factual
allegations 	in 	the 	charge 	as 	true. 	(See 	Riverside 	Unified 	School
District 	(1986) 	PERB 	Decision 	No. 	562a; 	San Juan 	Unified 	School
District 	(1977) 	EERB 	Decision 	No. 	12 2 .) 	The 	Board 	agent 	is 	then
obliged 	to 	consider whether 	the 	factual 	allegations 	set 	forth 	in
the 	charge, 	if 	substantiated by 	evidence 	at 	a 	hearing, 	are
sufficient 	to 	make 	out 	a 	case 	under 	existing 	PERB 	precedent.
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.
2 Prior 	to 	January 	1, 	1978, 	PERB 	was 	known 	as 	the 	Educational
Employment 	Relations 	Board.
19

The
	source 	of
	my
	disagreement 	with
	the
	majority
	in
	this
	case
is
	two-fold.
	First,
	from
	a
	procedural
	standpoint,
	I
	find
	the
majority's
	analysis
	fails
	to
	recognize
	that
	the
	factual
allegations
	themselves,
	and
	not
	the 	strength 	or 	quantity 	of 	the
supporting
	evidence,
	must 	be
	the
	primary 	focus
	in
	ascertaining
whether
	a
	charge
	states
	a
	prima
	facie
	case.
	The
	majority
apparently 	finds 	the
	factual 	allegations
	underlying
	the 	charge
that
	the
	District
	failed 	to
	consider 	the 	factfinding
	report 	to
	be
insufficient.
	Yet,
	a
	charging
	party
	need
	not 	include
	in
	its
charge
	each
	piece 	of
	evidence
	upon
	which
	it
	intends
	to
	base
	its
case.
	The
	Association
	should
	be
	given
	the 	opportunity
	at
	hearing
to
	produce 	evidence
	substantiating
	its
	claims
	that
	the
	District
failed
	to
	consider 	the 	report
	and 	implemented
	its
	own
	proposal
before
	a
	second 	impasse 	had
	occurred. 	Furthermore,
	noting
	that
the
	District
	had
	two
	and
	one-half
	weeks
	to
	consider 	the
factfinding 	report
	between
	the 	date 	of
	its
	issuance
	and
	the 	post-
factfinding
	meeting
	on 	December
	11, 	1989,
	the 	majority
	makes
unjustified
	assumptions 	as 	to
	what
	occurred 	during
	this
	two
	and
one-half
	week
	period, 	erroneously 	adopting 	the
	District's
	factual
assertion 	(e.g., 	that
	it
	did 	consider 	the
	report), 	rather
	than
assuming
	the
	truth
	of 	the 	allegations 	in 	the 	charge. 	Second,
	in
applying 	existing
	Public
	Employment
	Relations
	Board
	(PERB)
precedent 	to 	the 	factual 	allegations 	of 	the 	charge, 	the 	majority
misinterprets 	the 	existing precedent 	established 	in
	Modesto
	City
Schools 	(1983)
	PERB
	Decision
	No. 	291 	(Modesto) 	and
	unjustifiably
overrules, 	in 	part, 	precedent 	established 	in
	Temple
	City 	Unified
20

School
	District
	(1990)
	PERB
	Decision
	No.
	843
	(Temple
	City).
Specifically,
	the 	majority
	dilutes
	what
	is
	required
	of
	the
parties
	vis-a-vis
	the
	factfinding 	report,
	finding
	that
	the
Modesto
	directive 	that
	the
	parties
	consider 	the
	factfinding
report
	in
	good
	faith
	may,
	in
	some
	cases, 	require
	only
	that
	the
parties
	each
	separately
	consider 	the
	factfinding 	report.
Nevertheless,
	even 	under
	the
	majority's
	interpretation
	of
	Modesto
and
	Temple
	City.
	I
	would
	find 	the
	facts
	alleged 	are
	minimally
sufficient
	to
	state
	a
	prima
	facie
	case.
It
	is
	my
	view, 	however,
	that
	Modesto 	and
	Temple
	City
	clearly
and
	correctly 	establish 	that
	the
	duty
	to
	consider 	the
	factfinding
report 	is
	a
	joint
	duty
	requiring 	the
	parties,
	in
	all
	cases,
	to
discuss 	the 	factfinding 	report
	with
	one
	another
	prior 	to
concluding
	that
	the
	report
	provides
	no
	basis 	for 	settlement.
Under
	the
	view
	of
	Modesto
	set 	forth 	in
	Temple
	City. 	the 	existence
of
	a
	prima
	facie
	case 	under
	the 	facts 	alleged
	cannot 	even 	be
questioned.
The
	Association
	has
	alleged 	the 	following
	facts
	which,
	if
taken
	as
	true,
	support
	its
	contention
	that
	the
	District 	failed
	to
abide
	by
	its
	duty
	to 	participate 	in 	the
	impasse 	procedures
	in
good
	faith. 	Significantly, 	the 	Association has
	alleged
	that
	Mary
Dowell 	(Dowell),
	the
	District's
	legal
	counsel
	and
	bargaining
	team
spokeswoman,
	~tated 	that 	the
	parties'
	attempt 	to 	resolve 	the
impasse 	through 	factfinding
	would
	"not
	make
	any
	difference,
because 	the 	board
	will 	not 	accept 	the 	factfinding 	report
	anyway."
The 	Dowell 	statement 	supports 	the 	Association's 	contention 	that
21

the 	District 	did 	not 	have 	the 	requisite 	subjective 	intent 	to
.participate 	in 	good 	faith 	in 	the 	impasse 	procedures. 	Not 	only 	is
the 	Dowell 	statement 	significant 	as 	indicative 	of 	subjective
intent, 	but 	the 	statement, 	especially 	since 	it 	was 	made 	before
factfinding 	even 	began, 	could have 	had 	a 	deleterious 	effect 	on
the 	impasse 	process 	by 	delivering 	a 	message 	that 	further
participation 	in 	the 	impasse 	procedures 	was 	probably 	going 	to 	be
futile.
I 	do 	not 	agree 	that 	the 	allegations 	in 	the 	charge 	pertaining
to 	the 	Dowell 	statement, 	when 	considered 	together 	with 	the
allegations 	of 	subsequent 	District 	conduct, 	are 	insufficient 	to
state 	a 	prima 	facie 	case 	of 	failure 	to 	participate 	in 	the 	impasse
procedures 	in 	good 	faith. 	If 	the 	Dowell 	statement 	planted 	any
seeds 	in 	the 	minds 	of 	the 	Association's 	negotiators 	as 	to 	the
District's 	intentions 	regarding 	the 	factfinding 	process, 	those
seeds 	were 	cultivated 	by 	the 	District's 	actions 	on 	December 	11.
Thus, 	the 	Association 	alleged 	that 	on 	December 	11, 	1989, 	the
Association 	proposed 	adoption 	of 	the 	factfinding 	report 	at 	the
December 	11 	post-factfinding 	meeting 	and 	made 	a 	new 	proposal 	to
extend 	the 	duration 	of 	the 	agreement 	for 	one 	additional 	year.
These 	proposals 	represented 	substantial 	concessions 	on 	the 	part
of 	the 	Association. 	The 	District 	caucused 	for 	fifteen 	minutes,
rejected 	the 	Association's 	proposals 	in 	their 	entirety 	and, 	the
charge 	alleges, 	11 failed 	and 	refused 	to 	engage 	in 	discussion 	or
bargaining 	in 	an 	attempt 	to 	establish whether 	the 	factfinding
report 	provided 	the 	basis 	for.settlement. 11 • 	The 	Association
22

further 	alleged 	that, 	despite 	its 	repeated 	requests 	that 	the
District 	meet 	in 	a 	bargaining 	session 	to 	consider 	in 	good 	faith
the 	factfinding 	report, 	the 	District 	declined 	to 	do 	so 	and,
ultimately, 	unilaterally 	implemented 	a 	wage 	increase, 	an 	increase
in 	the 	anniversary 	increment, 	and 	selected 	provisions 	of 	the
predecessor 	agreement.
The 	facts 	set 	forth 	in 	the 	charge, 	if 	accepted 	as 	true, 	are
clearly 	sufficient, 	under 	the 	principles 	set 	forth 	in Modesto 	and
Temple 	City, 	to 	constitute 	a 	prima 	facie 	case 	of 	failure 	to
participate 	in 	good 	faith 	in 	the 	impasse 	procedures 	and 	justify 	a
hearing. 	The 	majority 1 s 	conclusion 	to 	the 	contrary 	is 	not
supported 	by 	either 	the 	facts 	alleged 	or 	existing 	PERB 	precedent.
The 	parties 	obligations 	vis-a-vis 	the 	factfinding 	was 	first
before 	us 	and 	was 	directly 	addressed .by 	this 	Board 	in Modesto.
The 	facts 	alleged 	in 	the 	charge 	before 	us 	are 	strikingly 	similar
to 	the 	post-factfinding 	factual 	scenario 	in Modesto. 	In 	Modesto,
the 	parties 	bargained 	to 	a 	first 	impasse, 	participated 	in
mediation'and 	factfinding, 	and 	met 	post-factfinding, 	at 	the
Association 1 s 	request. 	The 	Association 	came 	to 	the 	meeting,
ready 	to 	make 	significant 	concessions, 	including 	a 	concession 	on
the 	one-year 	duration proposal 	considered 	vital 	by 	the 	school
district. 	The 	Board 	characterized 	the 	district 1 s 	response, 	in
pertinent 	part, 	as 	follows:
The 	District 	maintained 	that 	it 	did 	not 	have
to 	examine 	the 	recommendations 	of 	the
factfinder 	or 	the 	Association's 	concessions
to 	see 	if 	these 	provided 	a 	basis 	for
settlement 	or 	opened 	a 	ray 	of 	hope. 	It
insisted 	that 	impasse 	was 	automatic 	when 	the
23

factfinding 	report
	issued,
	that
	the
obligation
	of
	good
	faith
	negotiations
	had
ended.
	The
	District
	refused
	to 	characterize
the
	February
	4
	meeting 	as
	negotiations,defining
	it
	as
	a
	"meet 	and
	discuss
	session."
.
	It
	told
	the 	Association
	that
	there
would
	be
	no
	negotiating
	and
	no
	District
proposals,
	that
	the 	Association
	had
	theoption 	of 	accepting
	the
	District's
	position
or
	having
	it
	imposed
	as
	a
	post-impasse
unilateral
	change.
	In
	short, 	the
	District
made
	no
	effort
	to
	examine
	all
	the
circumstances
	to
	determine 	whether
	or
	not
there
	was
	hope
	of 	reaching
	agreement.
(Modesto,
	supra,
	PERB
	Decision
	No.
	291,
	at
	p.
	40.)
Similarly, 	in
	the
	instant
	case, 	the 	Association
	has
	alleged
that
	the
	parties
	met
	after
	the 	factfinding 	report
	had
	issued.
The
	Association
	proposed
	accepting 	the
	report,
	even
	though
	it
	was
adverse
	to 	the 	Association
	on
	several 	issues.
	As
	in
	Modesto,
	the
Association,
	among
	other 	things, 	offered 	to
	extend
	the
	duration
of
	the 	contract.
	The
	Association
	h~s
	further
	alleged
	that
	the
District's
	negotiators
	caucused
	amongst
	themselves
	and
	rejected
the 	proposal
	outright,
	without 	discussion,
	and
	subsequently
	sent
a
	memorandum
	to 	bargaining
	unit
	members
	explaining
	why
	they
	could
not 	abide
	by
	the
	recommendations
	in
	the 	factfinding 	report.
In
	Modesto,
	the
	District
	argued
	at
	hearing
	that
	although
	it
took 	the 	position 	that
	the 	bargaining 	obligation
	had
	already
ended,
	it
	nonetheless 	did 	bargain
	after
	factfinding
	and
	actually
saw
	a
	possibility
	of 	progress 	in 	those
	talks.
	The 	Board 	found
that:
The
	District's
	attempt,
	at
	hearing, 	to
characterize
	its
	post-factfinding
	conduct 	as
negotiating
	does 	not
	alter
	the 	fact 	that 	its
flat 	insistence 	at 	the 	table 	that
	it
	would
not 	bargain
	was
	clearly 	incompatible 	withgood
	faith. 
24

(Id. 	at 	p. 	41.)
The 	Board 	further 	noted 	that 	the 	District's 	decision, 	not 	to
bargain 	after 	the 	factfinder's 	report 	was 	issued, 	indicated:
. 	the 	District 	was 	more 	concerned with
its 	ability 	to 	implement 	unilateral 	changes
than 	it 	was 	with 	its 	obligation 	to 	attempt 	to
reach 	agreement. 	(l..!i.... at 	pp. 	4 3-44. )
Similarly, 	in 	the 	instant 	case, 	the 	majority 	apparently
adopts 	the 	District's 	position 	that 	the 	memorandum, 	sent 	by 	the
District 	to 	bargaining 	unit 	employees 	on 	January 	10, 	a 	month
after 	the 	parties 	had 	last 	met, 	constitutes 	evidence 	that 	the
District 	did 	consider 	the 	factfinding 	report. 	While 	the
memorandum 	did 	state 	the 	reasons 	the 	District was 	unwilling 	to
abide 	by 	the 	recommendations 	in 	the 	factfinding 	report, 	the 	same
document 	simultaneously 	announced 	the 	District's 	position 	that
"further 	negotiations 	would 	not 	be 	productive," 	that 	negotiations
were 	completed, 	and 	that 	the 	District 	would 	be 	unilaterally
implementing 	a 	salary 	increase. 3
In 	Modesto, 	the 	Board 	described 	the 	parties' 	obligations
vis-a-vis 	the 	factfinding 	report 	as 	follows:
[WJe 	find 	that 	the 	statutory 	impasse
procedures 	are 	exhausted 	only 	when 	the
factfinder's 	report 	has 	been 	considered 	in
good 	faith, 	and 	then 	only 	if 	it 	fails 	to
change 	the 	circumstances 	and 	provides 	no
basis 	for 	settlement 	or 	movement 	that 	could
lead 	to 	settlement. 	At 	that 	point, 	impasse
under 	EERA 	is 	identical 	to 	impasse 	under 	the
3 Had 	the 	District 	discussed 	its 	rationale 	for 	rejecting 	the
recommendations 	in 	the 	factfinding 	report 	as 	expressed 	in 	its
memorandum, 	both 	the 	spirit 	and 	the 	letter 	of 	Modesto 	and 	Temple
City 	would 	have 	been 	satisfied 	and 	the 	Association would 	not 	have
been 	successful 	in 	stating 	a 	prima 	facie 	case.
25

NLRA;
	either
	party
	may
	decline
	further
requests
	to
	bargain,
	and
	the
	employer
	may
implement
	policies
	reasonably
	comprehended
within
	previous
	offers
	made
	and
	negotiated
between
	the
	parties.
	If
	the
	factfinding
report,
	and/or
	new
	proposals
	made
	after
	the
report,
	change
	circumstances
	and
	bargaining
is
	subsequently
	resumed
	but 	again deadlocks,
the
	Board
	cannot
	recertify
	impasse
	or
reimpose
	the 	already
	exhausted
	impasse
procedures.
We
	find
	this 	result
	compelled
	by
	the
	clear
language
	of
	Article
	9
	of
	the
	Act 	and
	the
legislative 	intent
	manifested
	therein.
	In
addition,
	our 	holding
	is
	consistent
	with
	that
of 	the
	Fifth
	Appellate
	District
	Court
	in
	PERB
v.
	Modesto
	City
	Schools, 	supra.
4
(Id.
	at
	pp.
	32-33.)
In 	reaching
	its
	conclusion
	in
	Modesto
	that
	the
	District's
failure
	to 	consider 	the
	factfinder's
	report 	or 	the
	Association's
post-factfinding
	concessions 	breached
	its
	obligations
	under
	EERA
and
	constituted
	a
	refusal 	to
	participate
	in
	good
	faith 	in 	the
impasse 	procedures
	(l..d...,_
	at
	p. 	44),
	the
	Board
	made
	several
important 	points
	that
	should 	be
	considered 	here.
4As
	the
	Fifth
	Appellate
	District
	Court
	stated 	in
I:fil3..B.	
v.
Modesto 	(1982)
	136
	Cal.App.3d 	881, 	899:
Under
	District's
	rationale,
	as
	soon
	as
mediation
	and
	factfinding 	are
	completed,
	the
duty
	to 	negotiate 	in
	good
	faith
	evaporates.
We
	find
	no
	authority 	supporting
	this
contention 	nor
	do
	we
	find
	any
	authority
	which
would 	compel 	us
	to
	implement
	section
	3549
giving
	District
	the 	right 	to 	refuse 	to
bargain
	after 	post-factfinding
	concessions
made
	by
	Association.
[S]ince 	collective 	bargaining
	is 	at
	the 	heart
of 	the
	EERA
	scheme,
	it
	is
	necessary 	that
	PERB
embrace
	the 	concept 	of 	the 	duty 	to 	bargain
which 	revives
	when 	impasse
	is
	broken.
(l..d...,_
	at
	pp. 	881, 	899.) 	(Emphasis 	added.)
26

First,
	the
	Board
	discussed
	the
	meaning
	of
	"impasse"
	under
the
	National
	Labor
	Relations
	Act
	(NLRA),
	noting
	that
	under
National
	Labor
	Relations
	Board
	(NLRB)
	precedent,
	once
	impasse
	is
reached,
	either
	party
	may
	refuse 	to 	negotiate
	further
	and
	the
employer
	is
	free 	to
	implement
	changes
	already 	offered 	the
	union.
While
	the
	NLRA
	does
	not
	require 	the
	parties
	to
	participate 	in
	an
impasse
	procedure,
	as
	does
	EERA,
	NLRA
	precedent
	does
	provide
	that
impasse 	suspends
	the 	bargaining
	obligation
	only
	until
	changed
circumstances
	indicate
	an
	agreement
	may
	be
	possible.
	Noting
	that
the
	purpose 	of 	the
	NLRA
	is
	to 	"mitigate
	and
	eliminate
obstructions 	[to
	agreement].
	.
	when
	they
	have
	occurred
	by
encouraging 	the
	practice
	and
	procedure 	of
	collective
	bargaining"
(29
	U.S.C.
	section
	151),
	the
	Modesto 	Board
	noted
	that:
The
	NLRB
	encourages, 	through
	face-to-face
bargaining, 	the 	exploration
	of
	new
	proposals
which
	may
	provide
	avenues
	to 	resolve
differences
	and
	arrive 	at
	a
	final
	agreement.
(Id.
	at
	p.
	35.)
	(Emphasis
	added.)
Thus,
	the
	NLRB
	has 	emphasized
	the 	"face-to-face" 	aspect 	of 	the
collective
	bargaining 	process.
The 	Board
	in
	Modesto
	also
	noted
	that
	although
	EERA
	was
enacted 	with 	the
	same
	purpose
	in
	mind
	as
	is
	envisioned 	under
	the
NLRA,
	under
	EERA:
.
	the
	impetus
	to
	keep
	the
	parties
bargaining
	is
	so
	strong
	that
	an
	extensive
impasse 	procedure
	was
	written 	into 	the 	Act,
[Citation 	omitted.]
	and
	failure 	"to
participate 	in
	good
	faith 	in 	the 	impasse
procedures"
	was 	made
	an 	independent
	unfair
practice
	under 	the
	Act
	[Citation 	omitted.].
(Id. 	at
	p.
	35.)
27

After
	describing 	the
	EERA
	impasse
	procedure,
	the
	Board
	points
	out
that
	while
	the
	terms
	of
	the
	recommended
	settlement 	are 	advisory,
and
	neither
	side
	is
	obligated 	to
	accept
	them,
	"the
	factfinder's
recommendations
	are
	a
	crucial
	element
	in
	the
	legislative
	process
structured
	to 	bring
	about
	peacefully 	negotiated
	agreements."
(Id.
	at
	p. 	36.)
While
	under
	the
	NLRA,
	precedent 	defines
	what
	constitutes
"changed
	circumstances"
	sufficient
	to
	break
	impasse
	and
	revive
the
	duty 	of
	face-to-face
	bargaining,
	under
	EERA,
	"a
	clear
	purpose
of
	the 	factfinding 	report
	is
	to
	change
	the
	circumstances
	of
bargaining
	by
	providing
	an 	impetus
	for 	settlement
	. 	"	
(ll.....	
at
p. 	37.)
	Thus,
	the
	Board 	imposed
	the
	following
	obligation
	upon
the
	parties:
.
[T]he
	factfinder's
	recommendations 	must
be
	given
	good
	faith
	consideration
	by
	the
parties
	before 	they 	determine
	that
	impasse
persists.
	[footnote
	18
	-
	for
	text,
	see
below]
Therefore, 	the
	first
	obligation
	of 	the
parties, 	after
	the
	recommendations
	of 	the
factfinder 	are
	made,
	is
	to
	examine
	the
recommendations
	to
	see
	if
	they
	can
	find
	in
them
	a
	basis 	for 	settlement, 	or 	for
	such
accommodations,
	concessions, 	or
	compromises
that
	might
	lead 	to 	settlement.
(Id.
	at
	p. 	37.)
To
	further 	define 	the
	scope
	of 	the
	parties' 	obligation 	to
consider 	the 	factfinding 	report 	in
	good
	faith,
	as 	an
	obligation
to 	consider 	that 	report 	jointly, 	the
	Board 	quoted 	the
	district's
own
	representative's 	understanding 	of 	the 	nature 	of 	the
district's
	duty 	vis-a-vis 	the 	report:
28

... 	I 	certainly 	told 	them 	[the 	District]
that 	they 	have 	an 	obligation 	to 	send 	me 	back
to 	the 	table, 	or 	someone 	representing 	them,
to 	discuss 	that 	factfinding 	report. 	There
would 	be 	no 	logic 	to 	the 	legislation 	if 	the
parties 	didn 1 t 	get 	together 	and 	seriously
discuss. 	exchange 	whatever 	information 	they
could 	to 	determine 	whether 	or 	not 	an
agreement 	could 	be 	reached 	based 	on 	that
factfinding 	report 	....
[Citation 	omitted.]
(Id. 	at 	p. 	37, 	fn. 	18.) 	(Emphasis 	added.)
If 	any 	ambiguity 	remained 	as 	to 	the 	nature 	of 	the 	parties 1
duties 	vis-a-vis 	the 	factfinding 	report 	after 	Modesto, 	that
ambiguity was 	clearly 	eliminated 	by 	this 	Board 	in 	Temple 	City
which 	issued 	in 	September 	1990. • 	In 	Temple 	City, 	the 	Association
alleged 	that 	the 	parties 	negotiated 	to 	a 	first 	impasse,
participated 	in 	mediation 	and 	factfinding, 	and 	met 	on 	March 	22,
1989 	to 	discuss 	the 	factfinding 	report. 	The 	Association 	alleged
that 	on 	this 	date, 	the 	District 	merely 	presented 	a 	"take-it-or-
leave-it" 	bargaining 	position, 	which was 	significantly 	different
from 	its 	previous 	offers, 	and 	that 	no 	negotiations 	took place
because 	the 	District 	was 	unwilling 	to 	negotiate. 	The 	Association
further 	alleged 	that 	the 	parties 	met 	again 	on April 	20, 	at 	which
time 	the 	District 	presented 	the 	Board 1 s 	"last, 	best 	and 	final"
offer 	and 	refused 	to 	consider 	or 	discuss 	proposals 	made 	by 	the
Association. 	On April 	25, 	the 	District 	unilaterally 	adopted 	its
offer 	as 	presented 	on April 	20.
The 	facts 	in 	the 	instant 	case 	are 	similar 	in 	that 	the
Association 	has 	alleged 	that 	the 	District 	failed 	to 	sit 	down 	at
the 	table 	to 	discuss 	the 	report, 	and 	merely 	rejected 	the 	report
29

out
	of
	hand 	and
	proceeded
	to
	take
	steps
	to
	implement 	what
	it
couched
	as
	a
	ttlast,
	best,
	and
	finaltt
	offer.
5
In
	Temple
	City,
	based
	on
	the 	alleged
	facts, 	this
	Board
found
	that
	the 	Association
	stated
	a
	prima
	facie
	case
	of,
	inter
alia,
	failure
	to
	bargain
	in
	good
	faith
	and
	failure
	to
	participate
in
	good
	faith
	in
	the
	impasse
	procedures.
	In
	reaching
	that
conclusion,
	this
	Board
	reaffirmed
	and
	clarified
	the
	principles
enunciated
	in
	Modesto
	as 	follows:
The
	Board
	in
	Modesto
	stated
	that,
	subsequent
to 	factfinding,
	the
	parties
	are 	required 	to
examine
	the 	factfinding 	report 	to
	see
	if
	they
can
	find
	a
	basis 	for 	settlement 	or 	for
compromises
	that
	might
	lead
	to
	settlement.
[Citation
	omitted.]
	This
	obligation
	includes
the
	requirement
	that
	the
	parties
	seriously
discuss 	the 	report
	and 	engage
	in
	a
	further
exchange
	of 	information
	which
	may
	determine
whether
	movement
	toward
	settlement
	is
	a
possibility.
	[Citation 	omitted.]
(Temple
	City,
	supra,
	PERB
	Decision
	No.
	843,
	at 	p.6.)
The 	Temple
	City
	clarification
	of
	Modesto,
	authored
	by
	this
Board
6
less
	than 	six
	months
	ago,
	validates
	and
	gives
	meaning
	to
the 	factfinding
	process 	as
	a
	crucial
	element
	of 	the
	collective
bargaining 	process.
	By
	rejecting 	the
	Temple
	City
	interpretation
5
In
	Temple
	City, 	the
	Board
	reversed 	the
	PERB
	regional
attorney's
	dismissal 	of 	the 	case, 	finding
	that
	the 	regional
attorney
	had
	improperly 	resolved 	disputed 	issues 	of
	fact 	instead
of 	accepting 	as
	true 	the 	charging
	party's 	allegations 	of
	fact.
The
	Board 	found
	a
	prima
	facie 	case 	existed
	based
	upon
	the
allegations 	stated 	in 	the 	charge.
6
rn 	the 	majority 	opinion, 	our 	colleagues
	state 	that
	Temple
City
	was
	decided
	"by
	only
	three
	Board 	members."
	We
	note, 	for 	the
record, 	that
	EERA
	section
	3541(c)
	provides, 	in 	relevant 	part:
"(t)he
	board
	may
	delegate
	its
	powers
	to
	any 	group 	of 	three 	or
more 	board
	members 	. 	"
	Panels 	consisting 	of 	three 	board
members
	are 	the
	norm,
	rather 	than 	the 	exception, 	and
	decide 	the
majority 	of 	the 	decisions 	issued
	by
	this
	Board.
30

of
	Modesto,
	the 	majority
	demonstrates
	a
	lack
	of
	faith
	in 	the
ability
	of
	the
	factfinding
	process
	to
	break
	the
	impasse.
	By
dispensing
	with
	the
	requirement
	that
	the
	parties
	must
	discuss
	the
factfinding
	report
	with
	each
	other,
	the 	majority
	eliminates 	the
impetus
	for 	the
	parties
	to
	make
	one
	last
	effort
	to
	avoid
	economic
warfare,
	promote
	cooperative
	relations
	and,
	ideally,
	reach
	an
agreement.
The
	concerns
	expressed
	by
	the 	majority 	to
	justify
	their
retreat
	from
	precedent
	established 	in
	Temple
	City 	are
unwarranted.
	The
	majority's 	fear
	that
	requiring 	the
	parties
	to
discuss 	the 	factfinding 	report
	"would
	extend
	negotiations
indefinitely"
	is
	unfounded.
	While
	I
	agree 	with
	the 	majority
	that
finality
	in
	the
	collective
	bargaining 	process
	is
	absolutely
necessary,
	I
	do
	not
	believe
	that
	the
	Temple
	City
	clarification
	of
Modesto 	compromises
	that 	finality.
Significantly,
	the
	Board
	in
	Modesto
	was
	careful 	to 	point
	out
that
	so
	long 	as 	the
	parties
	engage
	in
	the 	"process,"
	i.e.
examinati~n 	of 	the
	recommendations
	of 	the 	factfinder
	through
discussion
	of 	the 	report
	with
	one
	another, 	they 	are 	free
	to
decide
	that
	the 	factfinding 	report
	provides
	no
	basis 	for
settlement 	or 	for
	movement
	that
	could 	lead 	to 	settlement.
(Modesto, 	supra,
	PERB
	Decision
	No.
	291,
	at
	p. 	37.) 	In 	such
	a
case, 	the 	parties
	have 	reached
	a
	second 	impasse,
	PERB
	has 	no 	more
authority 	to 	recertify
	impasse
	or 	reinvoke 	impasse
	procedures,
and
	either 	party
	may
	decline 	further 	requests 	to 	bargain.
	The
employer,
	at
	such 	point 	in 	time,
	may
	implement
	policies
31

reasonably 	comprehended within 	previous 	offers 	made 	and
negotiated 	between 	the 	parties. 	(Id. 	at 	p. 	38.) 	Thus, 	while 	the
parties 	have 	an 	initial 	obligation 	to 	discuss 	the 	factfinding
report, 	the 	duty 	to 	bargain 	revives 	QD.ly 	if 	both 	parties 	find 	a
basis 	for 	settlement, 	or 	movement 	toward 	settlement, 	in 	the
factfinder's 	report. 	Once 	revived, 	the 	duty 	to 	bargain 	exists
until 	the 	parties 	reach 	a 	second 	impasse.
.·.
Neither 	does 	the 	Temple 	City 	clarification 	of 	Modesto 	impact
the 	burden 	of 	proof 	as 	suggested 	by 	the 	majority. 	(See 	maj.
opinion, 	p. 	11, 	fn. 	5.) 	In 	fact, 	by 	interpreting 	the 	requirement
that 	the 	parties 	"consider 	the 	factfinding 	report 	in 	good 	faith"
to 	mean 	the 	parties 	must 	discuss 	the 	report, 	the 	necessity 	of
shifting 	the 	burden 	of 	proof 	is 	avoided. 	A requirement 	that 	the
parties 	objectively 	manifest 	their 	consideration 	of 	the
factfinding 	report 	by 	discussing 	it 	with 	one 	another 	facilitates
a 	determination 	of 	whether 	the 	parties 	have 	met 	their 	obligation
of 	considering 	the 	report 	in 	good 	faith. 	Concomitantly, 	the
facts 	that 	need 	to 	be 	alleged 	by 	the 	charging 	party 	to 	atate 	a
prima 	facie 	case 	of 	violation 	of 	that 	duty, 	that 	the 	respondent
did 	not 	discuss 	th~ 	factfinding 	report, 	are 	clearly within 	the
knowledge 	of 	the 	charging 	party. 	The 	respondent 	may 	defend 	the
charge 	by 	proving 	it 	did, 	in 	fact, 	consider 	the 	report. 	Thus, 	an
interpretation 	of 	the 	requirement 	that 	the 	parties 	must 	"consider
the 	factfinding 	report 	in 	good 	faith" 	to 	mean 	the 	parties 	must
meet 	to 	discuss 	the 	report, 	avoids 	the 	necessity 	of 	shifting 	the
burden 	of 	proof.
32

In 	contrast,
	under
	the 	majority
	view,
	the
	charging
	party 	is
forced 	to
	allege
	and
	prove
	facts
	not
	always
	within
	its
	knowledge
or
	control,
	i.e.
	that
	the
	respondent
	failed 	to
	consider
	the
factfinding 	report. 	Traditionally,
	our
	law
	provides
	for
	the
shifting
	of 	the
	burden
	of 	proof
	in
	such
	situations.
	Thus,
	for
example,
	in 	reprisal
	cases,
	once
	the
	employee
	states
	a
	prirna
facie
	case
	based
	on
	circumstantial
	evidence
	that
	adverse
	action
was
	taken
	against
	him
	or
	her
	for
	an
	unlawful
	reason,
	the
	burden
shifts
	to 	the
	employer
	to
	prove
	that
	it
	had
	a
	legitimate 	reason
for 	taking 	the
	adverse
	action.
	(See 	Novato
	Unified
	School
District
	(1982)
	PERB
	Decision
	No.
	210,
	at
	p. 	14.)
7
Under
	the
majority
	view,
	the
	burden
	of 	proof 	should
	shift
	to
	the 	respondent
to
	show
	that
	it
	had
	considered 	the
	report,
	since 	the 	charging
party
	does
	not,
	as
	a
	general
	rule,
	have
	access
	to
	evidence
8
to
prove
	what
	transpired
	behind
	the 	closed
	doors
	of 	the 	respondent,
and
	thus,
	would 	be
	forced
	to
	prove
	a
	negative,
	i.e.
	that 	the
District
	failed 	to 	consider 	the 	report.
	The
	majority's
dissatisfaction
	with 	the 	lack 	of
	detail 	in 	the
	charge
	in 	the
instant
	case 	demonstrates 	the
	difficulty
	a
	charging
	party
	will
7
In
	Novato,
	the
	Board 	found
	that 	shifting 	the
	burden
	ofproof
	does 	not
	conflict
	with 	the 	requirement 	of
	PERB
	Regulation
32178
	in 	that
	the 	charging party
	must 	prove
	his 	case.
	It
	merely
requires 	the
	employer
	to
	prove 	an
	affirmative 	defense 	to 	the
prima
	facie
	case 	of 	unlawful 	motive.
8
In 	the 	instant 	case, 	the 	Association 	does 	have
	additional
circumstantial 	evidence
	that 	the 	District 	did 	not 	consider 	the
factfinding 	report 	in
	good
	faith 	in 	the
	form
	of 	the 	extremelydamaging 	Dowell
	statement 	that 	factfinding
	would 	''not
	make
	any
difference, 	because 	the 	board 	will 	not 	accept 	the 	factfinding
report
	anyway.
11
33

have
	in 	stating
	a
	case 	under
	the 	majority
1 s
	interpretation
	of
Modesto.
Finally, 	implicit 	in	
the
	majority's 	position 	that
	the
parties
	do
	not,
	in
	every
	case,
	have 	an
	affirmative
	duty
	to
	engage
in 	"further
	discussions 	or 	negotiations
	regarding
	the
	factfinding
report,''
	(maj.
	opinion,
	p.
	10)
	is
	the
	admission
	that 	in
	some
cases
	such
	a
	duty
	would
	exist.
	In
	this 	particular
	case,
	however,
the 	majority
	concludes
	that 	joint
	discussion 	of
	the
	report
	was
not
	mandated,
	primarily
	based
	upon
	its
	contentions
	that:
	(1)
	the
District's
	negotiating
	team
	privately
	considered
	the
	factfinding
report
	and
	later
	communicated
	its
	response
	to 	the
	report
	through
a
	letter
	addressing
	some
	of
	the 	issues 	raised 	in
	the
	report
	and
announcing
	a
	unilateral
	implementation
	of
	its
	offer;
	and
	(2)
	the
District's
	panel
	member
	on
	the 	factfinding
	panel
	wrote
	a
	dissent
to 	the 	report.
Private 	consideration 	of 	the 	report
	by
	each
	party
	on
	its
	own
does
	not
	comport
	with 	the 	"practice
	and
	procedure" 	designed
	to
result
	in 	settlement.
	Unlike 	communications
	by
	letter,
	face-to-
face 	discussions, 	or
	at 	least
	a
	verbal 	interchange, 	regarding 	the
contents 	of 	the 	report 	provide 	the
	parties
	an
	opportunity
	to
express 	to
	each
	other
	their
	own
	interpretation
	of 	the 	factfinding
report.
	Through
	discussion
	and 	perhaps
	a
	further
	exchange
	of
information, 	the 	parties
	may
	find
	common
	ground
	that 	will 	lead 	to
an 	agreement.
	If
	the 	parties 	are 	not 	required 	to 	objectively
manifest 	their 	consideration of 	the 	report
	by
	discussing
	it
	with
each 	other, 	there 	is 	nothing 	to 	preclude 	the 	employer
	who
	wants
34

to 	unilaterally 	implement, 	or 	the 	union 	being 	pressured 	by 	its
members 	to 	strike, 	from 	completely 	disregarding 	the 	report,
engaging 	in 	economic 	warfare, 	and 	rendering 	the 	whole 	factfinding
process 	a 	nullity.
Neither 	is 	the 	fact 	that 	the 	District 	panel 	member who 	wrote
a 	dissent 	to 	the 	factfinding 	report 	significant 	in 	the
determination 	of whether 	the 	District 	fulfilled 	its 	duty 	to
consider 	the 	factfinding 	report 	in 	good 	faith. 	The 	majority's
contention 	that 	"the 	District's 	dissatisfaction with 	the
factfinding 	report 	was 	already 	expressed 	in 	its 	dissent" 	and
that, 	therefore, 	the 	"District's 	position was 	known 	to 	the
Association," 	(maj. 	opinion, 	at 	pp. 	11-12) 	is 	flawed. 	The
factfinding 	panel 	is 	obligated 	to 	complete 	its 	factfinding
report, 	including 	any 	dissents 	or 	concurrences, 	prior 	to 	the
release 	of 	the 	entire 	report 	to 	the 	parties. 	(See 	Capistrano
Unified 	School 	District 	(1983) 	PERB 	Decision 	No. 	294.) 	Thus, 	it
is 	entirely possible 	that 	the 	District 	negotiators, 	once 	they
received~he 	entire 	report, 	may 	not 	have 	agreed 	with 	the 	points
raised 	in 	the 	panel 	member's 	dissent. 	Once 	the 	factfinding
report 	was 	received 	by 	the 	District, 	the 	District 	had 	an
obligation 	to 	consider 	the 	entire 	factfinding 	report, 	including
the 	dissent. 	(See 	Los 	Virgenes 	Unified 	School 	District 	(1979)
PERB 	Order 	No. 	IR-8.) 	A requirement 	that 	the 	parties 	discuss 	the
entire 	factfinding 	report 	would 	give 	the 	District 	the 	opportunity
to 	distance 	itself 	from 	any 	portions 	of 	the 	dissent 	with 	which 	it
35

the
disagrees,
	and
	gives
	the 	Association 	opportunity
	to
	address
,concerns
	raised
	by
	the
	dissent.
summary,
	in
	In 	the 	ultimate 	issue
	this
	case
	is
	whether
	the
a
	prima
	facie
	case
	under
	existing
	law.
	If
Association
	has
	stated
assume,
	as
	we
	must,
	the
	truth
	of 	the
	Association's
	allegations
we
stated
	it
	did 	not 	intend
	to
	consider
	the
that
	the
	District
indeed
	declined
	to
	do
	so,
	then
	we
factfinding
	report
	and
	then
stated
	a
	prima
	facie
	case
	and
	is
must
	find 	the 	Association
	has
under
	the
	principles
	of
	Modesto
	as
entitled
	to
	a
	hearing
clarified
	in
	Temple
	City.
9	
the
	Even
	under
	majority
1 s
not
	required
interpretation
	of
	Modesto, 	assuming
	the
	parties
	are
to 	discuss 	the 	factfinding 	report
	with
	one
	another,
	the
facie
Association 	alleged
	sufficient 	facts 	to
	state
	a
	prima
	case
to
	consider 	the
against
	the
	District
	for 	violation
	of 	the
	duty
in
	good
	faith.
	This 	Board's
	first
	responsibility
	is
	toreport
--
	a
	failure 	to
promote
	the 	process 	of
	collective
	bargaining
grant
	a
	hearing
	in
	this
	case
	would
	seem
	to
	do
	the 	opposite.
Member
	Cunningham
	joined
	in 	this
	concurrence/dissent.
9
Since
	I
	would
	also 	find 	the 	unilateral
	implementation,of
under 	the 	facts 	alleged, 	to	offer,
	any
	"last, 	best,
	and
	final"
further
	support
	a
	finding 	of
	a
	prima
	facie 	case 	of
	failure 	to
in
	good
	faith 	in 	the
	impasse 	procedures,
	I
	do
	not
participatefind
	it
	necessary 	to 	decide 	the 	issue 	of 	whether 	the 	District 	is
agreements
	intoobligated 	to 	incorporate
	all
	of 	the 	tentative
that 	offer
	and
	disassociate 	myself 	from
	the 	majority!s 	discussion
of 	that 	issue.
36