Rowland Unified School District (PERB 1053E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION OF ROWLAND EDUCATORS,
Charging Party,
v.
ROWLAND UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) Case No. LA-CE-3235
PERB Decision No. 1053
September 1, 1994
)
)
)
)
)
)
Appearances: California Teachers Association by Charles R.
Gustafson, Attorney, for Association of Rowland Educators; Breon,
O'Donnell, Miller, Brown & Dannis by David G. Miller, Attorney,
for Rowland Unified School District.
Before Blair, Chair; Carlyle and Garcia, Members.
DECISION
BLAIR, Chair: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Rowland Unified School District (District) to a PERB
administrative law judge's (ALJ) proposed decision. The ALJ
found that the District violated section 3543.5(a), (b) and (c)
of the Educational Employment Relations Act (EERA)1 when it
is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3543.5 states, in pertinent
part:
It shall be unlawful for a public school employer
to do any of the following:
(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.

refused the Association of Rowland Educators' (Association)
demand to negotiate all of the Association's proposals following
the District's implementation of its last, best and final offer.
(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.
2The following documents were submitted by the parties as
part of the evidentiary record in this case:
The Board has reviewed the entire record in this case,
including the proposed decision, the District's exceptions, the
Association's response thereto and the stipulated record. The
Board finds, in accordance with the following discussion, that
the District violated EERA section 3543.5(a), (b) and (c).
PROCEDURAL HISTORY
On September 16, 1992, the Association filed an unfair
practice charge with PERB. The PERB general counsel's office
issued a complaint on March 23, 1993, alleging that the District
violated EERA section 3543.5 when, upon completion of impasse,
it implemented a limitation on the number of subjects the
Association could propose for meeting and negotiating in the
1992-93 school year.
The parties failed to reach a voluntary settlement during
a telephonic informal conference held on April 13, 1993. On
August 16, 1993, the parties waived their right to an evidentiary
hearing and submitted the case to a PERB ALJ on a stipulated set
of facts and a series of exhibits.2

A. Rowland Unified School District document titled "Last,
Best, and Final Offer," dated April 22, 1992;
B. Factfinding Report and Recommendations including
dissents, dated August 5, 19 92;
C. Letter from Ron Leon, Assistant Superintendent
Personnel, to Association of Rowland Educators with
recommendation for adoption attached, dated August 27, 1992;
D. Board of Education agenda for August 31, 1992 including
AB 1200 disclosure statement and recommended Last, Best and
Final Offer, dated August 26, 1992; and
E. Comprehensive copy of Procedures and Policies Regulating
Terms and Conditions of Employment as adopted by the Board
of Education on August 31, 1992.
FACTUAL SUMMARY
The Association is the exclusive representative for a unit
of classroom teachers employed by the District. The Association
and the District were parties to a collective bargaining
agreement which expired on August 31, 1991. The parties
initiated negotiations for a successor agreement in April 1991,
meeting and negotiating until April 1992 when they declared
impasse. The parties participated in two mediation sessions,
following which the mediator certified the matter for
factfinding.
A factfinding panel convened and heard the parties on
July 8, 1992 and, thereafter, issued its report of findings and
recommendations on August 5, 1992. The Association and District
representatives to the factfinding panel each wrote a partial
dissent which was attached to the factfinding report.
The District and the Association considered the factfinding
report in good faith and held four post-factfinding negotiating

sessions. A second impasse was reached on or about August 26,
1992. On August 27, 1992, the District notified the Association
of its intent to adopt terms and conditions of employment
contemplated by the District's last, best and final offer. At
its meeting of August 31, 1992, the District's governing board
unilaterally adopted terms and conditions of employment, which
included the following:
Except where otherwise specifically
indicated, the terms and conditions of
employment shall be effective July 1, 1992
through August 31, 1993, and from year to
year thereafter unless and until modified
pursuant to the provisions of the Educational
Employment Relations Act (EERA). This
implementation resolves negotiations
affecting the 1992-93 school year except as
follows: [The Association] and the District
may select up to two subjects for meeting and
negotiating in connection with the 1992-93
school year.
The parties do not dispute the lawfulness of the District's
adoption of terms and conditions of employment except for one
issue which they submitted to the ALJ:
Did the District violate the Educational
Employment Relations Act, as amended, by
adopting terms and conditions of employment
covering the period September 1, 1992 through
August 31, 1993 thereby limiting the
Association to two negotiation reopeners for
the 1992-93 contract year?
Following the District's unilateral adoption, the
Association submitted its initial proposals for the 1992-93
school year covering a large number of contractual items.
Through an exchange of correspondence, the parties agreed to
limit themselves to two reopener items each for 1992-93. The

agreement was arrived at with the express understanding that such
agreement did not constitute a waiver of any of the Association's
factual and/or legal contentions in connection with this case.
It was agreed and understood that the Association was free to
pursue its contentions in the instant unfair practice case.
ALJ'S DECISION
The ALJ found that after completion of the impasse
procedures the District was entitled to implement provisions
contained within its last, best and final offer. The ALJ then
determined that the combination of the District's adopted terms
and conditions of employment and the Association's initial
proposals for the 1992-93 school year constituted changed
circumstances thereby reviving the District's duty to negotiate
"any and all prospective terms and conditions of employment."
When the District refused to meet this obligation, the ALJ found
that it violated EERA.
DISTRICT'S EXCEPTIONS
The District contends the ALJ erred by finding that it
had a duty to negotiate after it lawfully implemented terms and
conditions of employment which included a provision establishing
the "duration of agreement." The District asserts that EERA
section 35493 permits the District, upon good faith completion of
3EERA section 3549 states, in pertinent part:
The enactment of this chapter . . . shall not be
construed as prohibiting a public school employer
from making the final decision with regard to all
matters specified in Section 3543.2.

the impasse procedures, to make and implement the final decision
with regard to matters within the scope of representation. Since
the duration of an agreement is a matter within the scope of
representation, the District contends that the duty to meet and
negotiate is ended for the period adopted by the District. In
this case, the District implemented a provision which provided
that the terms and conditions of employment would be effective
from July 1, 1992 through August 31, 1993, with the exception
that each party could select up to two subjects to negotiate
during that period.
The District also asserts the ALJ erred in finding that
the Association's 1992-93 proposals substantially changed the
parties' bargaining positions because the proposals were not made
part of the evidentiary record. Without the proposals before
him, the District argues that the ALJ could not determine whether
they resulted in changed circumstances.
DISCUSSION
EERA provides a comprehensive impasse procedure4 which is
exhausted only when a factfinder's report has been completed
and considered in good faith. (Modesto City Schools (19 83) PERB
Decision No. 291 (Modesto); Charter Oak Unified School District
(1991) PERB Decision No. 873.) At that point, impasse under EERA
is identical to impasse under the National Labor Relations Act
(NLRA). (Modesto; Covina-Valley Unified School District (1993)
PERB Decision No. 968.)
4EERA sections 3548 through 3548.8.
6

Once impasse is reached either party may refuse to negotiate
further and the employer is free to implement changes reasonably
comprehended within its last, best and final offer. However,
impasse suspends the parties' obligation to bargain only until
changed circumstances indicate that an agreement may be possible.
(Modesto; Hi-Way Billboards. Inc. (19 73) 2 06 NLRB 22 [84 LRRM
1161]; Providence Medical Center (1979) 243 NLRB 714 [102 LRRM
1099] .)
In Public Employment Relations Bd. v. Modesto City Schools
District (1982) 136 Cal.App.3d 881 [186 Cal.Rptr. 634], the court
refuted the claim that an employer's duty to bargain permanently
ceases after exhaustion of the statutory impasse procedures. The
duty to bargain revives when one party proposes a concession from
its earlier bargaining position which indicates that agreement
may be possible. (Id.; NLRB v. Sharon Hats, Inc. (5th Cir. 1961)
289 F.2d 628 [48 LRRM 2098] enforcing (1960) 127 NLRB 947
[46 LRRM 1128].)
In the present case, the parties stipulated that impasse
procedures were completed in good faith. At this point, the
parties' obligation to bargain was suspended and the District was
permitted to implement terms and conditions of employment which
were reasonably comprehended within its last, best and final
offer to the Association.5 According to the stipulated record,
5As discussed below, not all terms and conditions contained
within a last, best and final offer may lawfully be implemented
by an employer.

the District adopted certain terms and conditions which were
contained within its final offer.
Following the District's unilateral adoption of terms and
conditions of employment for the 1992-93 school year, which
included a limitation on the parties' right to seek negotiations
on more than two subjects, the Association submitted numerous
initial proposals for 1992-93. The District, however, disputed
the Association's right to negotiate more than two subjects,
claiming the Association was limited to "two negotiation
reopeners."
The District's duty to resume negotiations following good
faith completion of impasse arises only if the Association's
proposals contained a concession from its earlier position which
demonstrates that circumstances have changed and agreement may
be possible. However, the Association's proposals were not made
part of the stipulated record and there is nothing in the record
to indicate the nature of these proposals. Since there is no
evidence that the Association's proposals contained concessions
from its earlier bargaining position, there is no indication
that changed circumstances existed which would reestablish the
District's duty to negotiate. Accordingly, the Board reverses
the determination of the ALJ and finds that the District did not
violate EERA under a changed circumstances theory when it refused
to negotiate all of the Association's proposals.
We now consider whether the District's adoption of terms and
conditions of employment was lawful. The parties to a collective
8

bargaining agreement may agree to contractual language
specifically waiving or limiting the right to bargain about
particular matters. In State of California (Department of
Forestry and Fire Protection) (1993) PERB Decision No. 999-S,
the Board stated that:
A waiver clause typically provides that there
is no further duty to bargain specified
negotiable subjects during the term of the
agreement. The purpose of such a clause is
to lend stability to the bargaining
relationship by limiting the possibility of
continuous negotiations.
A waiver must be an intentional relinquishment of a union's
rights under EERA. (San Francisco Community College District
(1979) PERB Decision No. 105; Los Angeles Community College
District (19 82) PERB Decision No. 252.) Furthermore, waiver must
be expressed in clear and unmistakable terms, particularly where
the waiver of a statutory right is asserted. (Amador Valley
Joint Union High School District (1978) PERB Decision No. 74.)
At its meeting of August 31, 1992, the District's governing
board unilaterally adopted terms and conditions of employment,
which included the following:
Except where otherwise specifically
indicated, the terms and conditions of
employment shall be effective July l, 1992
through August 31, 1993, and from year to
year thereafter unless and until modified
pursuant to the provisions of the Educational
Employment Relations Act (EERA). This
implementation resolves negotiations
affecting the 1992-93 school year except as
follows: [The Association] and the District
may select up to two subjects for meeting and
negotiating in connection with the 1992-93
school year.

The right to bargain to reach agreement on terms and
conditions of employment is the very essence of collective
bargaining under EERA. Any attempt to limit or waive this
statutory right must be mutually agreed to by the parties and
expressed in clear and unmistakable terms.
The Board has previously determined that an employer cannot
insist to impasse on a proposal that an exclusive representative
waive its right to file a grievance in its own name. To do so
would infringe upon an exclusive representative's statutory right
to represent its members. (South Bay Union School District
(1990) PERB Decision No. 791; Chula Vista City School District
(1990) PERB Decision No. 834.) If an employer cannot insist to
impasse on the waiver/limitation of a statutory right, certainly
an employer is prohibited from implementing the waiver/limitation
of a statutory right following impasse. EERA gives the parties
the right to collectively negotiate terms and conditions of
employment. If the employer can unilaterally implement a waiver/
limitation of the right to bargain it would negate the purposes
of EERA. Accordingly, an employer may not, following impasse,
unilaterally impose a waiver/limitation of an exclusive
representative's statutory right to bargain. Such a waiver/
limitation of the statutory right to bargain may only occur
within the context of a mutually agreed collective bargaining
agreement.
10

The District contends that EERA section 35496 permits it,
upon good faith completion of impasse, to make and implement
the final decision with regard to matters within the scope of
representation. Since a "duration of agreement" provision is
a mandatory subject of bargaining which may be unilaterally
implemented upon completion of impasse, the District asserts that
its duty to meet and negotiate ended for the period adopted by
the District.
The duration of a collective bargaining agreement has been
found to be a mandatory subject of bargaining under the NLRA.
(NLRB v. Yutana Barge Lines (1963) 315 F.2d 524 [52 LRRM 2750] .)
The Board, however, has not determined whether the duration of an
agreement is a subject within the scope of representation under
EERA. Assuming arguendo that it is a mandatory subject of
bargaining, an employer may lawfully implement a provision which
defines the period for which the terms and conditions would be
effective. However, duration of agreement provisions do not act
as a waiver/limitation clause barring all negotiations for the
specified period. As stated above, a waiver/limitation of the
statutory right to bargain can only be enacted when mutually
agreed to by the parties. Adoption of a duration of agreement
provision is not unlawful; however, it does not serve to waive
the right to bargain under EERA.
In conclusion, the Board finds that the District bargained
in bad faith in violation of EERA section 3543.5(c) when,
6Ante. fn. 3.
11

following impasse, it implemented a condition of employment which
limited the Association's statutory right to bargain. The act
of unlawfully implementing a waiver/limitation of the statutory
right to bargain, however, does not revive the District's duty
to bargain following impasse. As discussed previously, upon
completion of impasse the duty to bargain is renewed when one
party proposes a concession from its earlier bargaining position
which indicates that agreement may be possible.
The Board also finds that by unilaterally implementing a
waiver/limitation of the right to bargain, the District denied
the Association the right to represent its members in violation
of EERA section 3543.5(b). Such conduct also denied bargaining
unit employees the right to be represented by the Association in
their employment relations with the District in violation of EERA
section 3543.5(a).
REMEDY
The Board is authorized to remedy violations of EERA.
Section 3541.5(c) grants the Board the power to:
. . . issue a decision and order directing an
offending party to cease and desist from the
unfair practice and to take such affirmative
action, including but not limited to the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
In order to remedy the unfair practice of the District and
to effectuate the purposes of EERA, it is appropriate to order
the District to cease and desist from unlawfully implementing
12

terms and conditions of employment which limit the Association's
statutory right to bargain.
It is also appropriate that the District be required to
post a notice incorporating the terms of this order. The notice
must be signed by an authorized agent of the District indicating
that it will comply with the terms thereof. The notice shall
not be reduced in size, defaced, altered or covered by any other
material. Posting this notice will provide employees with notice
that the District has acted in an unlawful manner and is being
required to cease and desist from this activity. It effectuates
the purposes of EERA that employees be informed of the resolution
of the controversy and will announce the employer's readiness to
comply with the ordered remedy. (See Placerville Union School
District (1978) PERB Decision No. 69; Pandol & Sons v.
Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580,
587 [159 Cal.Rptr. 584]; NLRB v. Express Publishing Co. (1941)
312 U.S. 426 [8 LRRM 415] .)
ORDER
Upon the foregoing findings of fact, conclusions of law, and
the entire record in this case, and pursuant to the Educational
Employment Relations Act (EERA), Government Code section
3541.5(c), it is hereby ordered that the Rowland Unified School
District (District), its governing board and its representatives
shall:
A. CEASE AND DESIST FROM:
13

1. Unlawfully implementing terms and conditions of
employment which limit the Association of Rowland Educators'
(Association) statutory right to bargain.
2. Denying the Association the right to represent its
members in their employment relations with the District.
3. Denying the certificated bargaining unit employees
the right to be represented by the Association in their
employment relations with the District.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA.
1. Within thirty-five (35) days following the date
this Decision is no longer subject to reconsideration, post at
all work locations where notices to employees are customarily
placed, copies of the Notice attached hereto as an Appendix. The
Notice must be signed by an authorized agent of the District,
indicating that the District will comply with the terms of this
Order. Such posting shall be maintained for a period of thirty
(30) consecutive workdays. Reasonable steps shall be taken to
insure that the Notice is not reduced in size, defaced, altered
or covered with any other material.
2. Written notification of the actions taken to
comply with this Order shall be made to the Los Angeles Regional
Director of the Public Employment Relations Board in accordance
with the director's instructions.
Member Carlyle joined in this Decision.
Member Garcia's dissent begins on page 15.
14

GARCIA, Member, dissenting: I dissent and would dismiss the
charge because I find no evidence in the file that the Rowland
Unified School District (District) committed an unfair labor
practice. Since this was a stipulated case, only the facts and
evidence offered by the parties are available to decide the
issue.
STIPULATIONS
By agreement, the parties submitted the case on stipulated
facts and a series of exhibits with accompanying briefs which
comprise the only evidence in this case.1 They include the
following items [alphabetical designators are mine]:
a. Association of Rowland Educators (Association) is the
exclusive bargaining representative for an appropriate
bargaining unit of classroom teachers and other certificated
employees employed by the District;
b. The parties agree to waive their respective rights to a
full-blown hearing pursuant to Public Employment Relations
Board (PERB) Regulation 32207,2 since they are submitting
the matter on the basis of a stipulated record;3
1The parties' stipulations state that, "The stipulated
record shall consist of the stipulations contained herein and the
documents listed below and enclosed herewith." (Charging Party's
and Respondent's Stipulations, lines 3-4, p. 2.)
2PERB regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.
3PERB Regulation 322 07 reads:
Hearings. The parties may submit stipulated
facts where appropriate to the Board agent.
No hearing shall be required unless the
parties dispute the facts in the case.
15

c. The parties shall argue their respective legal contentions
through written briefs submitted to the administrative law
judge (ALJ);
d. There is no factual dispute at issue in this case;
e. The particular negotiations were for the purpose of arriving
at an agreement to succeed the parties' prior agreement
dated September 1, 1989 through August 31, 1991; the parties
met and negotiated from April 1991 until April 1992 when
they declared impasse; the parties participated in two
mediation sessions, following which the mediator certified
the matter for factfinding; a factfinding panel convened and
heard the parties on July 8, 1992 and, thereafter, issued
its report of findings and recommendations on August 5,
1992; the Association representative and the District
representative wrote partial dissents which were attached to
the panel report; the District and the Association
considered the factfinding report in good faith and held
four post-factfinding negotiation sessions; a second impasse
was reached on or about August 26, 1992; the District's
governing board unilaterally adopted terms and conditions of
employment at its meeting on August 31, 1992;
f. Following the District's unilateral adoption, the
Association submitted its initial proposals for 1992-93
covering a large number of contractual items; through an
exchange of correspondence,4 the parties thereafter agreed
to limit themselves to two (2) reopener items each for 1992-
93; the agreement was arrived at with the express
understanding that such agreement did not constitute a
waiver of any of the Association's factual and/or legal
contentions in connection with this case; it was agreed and
understood that the Association was free to pursue its
contentions in the instant unfair practice case;
4This correspondence is not part of the file.
16

g. Listed documents5 were submitted which, along with the
stipulations, constitute the evidentiary record in this
case; and
h. The parties do not dispute the lawfulness of the adoption
except for one issue which they submit to the ALJ:
Did the District violate [EERA], as amended,
by adopting terms and conditions of
employment covering the period September 1,
1992 through August 31, 1993 thereby limiting
[the Association] to two negotiation
reopeners6 for the 1992-93 contract year?
[Emphasis added.]
DISCUSSION
Stipulation "h" quoted above is the sole issue in this case.
I agree with the majority that the ALJ erroneously analyzed this
as a case involving changed circumstances. The stipulated record
in this case contains no evidence of changed circumstances.
Also, contrary to the statement in the majority opinion that
5The listed documents were:
Exhibit A: Rowland Unified School District document titled
"Last, Best, and Final Offer" dated April 22, 1992
Exhibit B: Factfinding Report and Recommendations including
dissents dated August 5, 1992
Exhibit C: Letter dated August 17, 1992 from Leon to
Association, with attachment
Exhibit D: Board of Education agenda for August 31, 1992
Exhibit E: Procedures and Policies Regulating Terms and
Conditions of Employment as adopted by the Board of
Education on August 31, 1992
6As the ALJ correctly noted in his proposed decision, the
term "reopener" assumes that there is a contract in existence.
It refers to the right of the parties to "reopen" an existing
contract. In this case, as there was no contract in place, the
term is a misnomer.
17

"[t]he District . . . disputed the Association's right to
negotiate more than two subjects, claiming the Association was
limited to 'two negotiation reopeners'," the record contains no
evidence of such a dispute.
PERB has long held that an employer's duty to bargain is
triggered by an expressed demand to negotiate. (Newman-Crows
Landing Unified School District (1982) PERB Decision No. 223.)
I found no evidence in the stipulated record of a post-impasse
demand by the Association reviving the duty to negotiate, nor did
I find any evidence that the District refused to negotiate after
the unilateral adoption of the limit.7 Notably, the Association
has not alleged either a demand or a refusal to negotiate during
that time period. On the contrary, the record (stipulation "f")
supports an inference that the parties subsequently engaged in
correspondence and/or discussions making the issue in this case
somewhat academic, since a limit was mutually adopted.
Even if the parties had not stipulated8 to the lawfulness of
the post-impasse unilateral adoption, it is clear under PERB
precedent that the adoption could not have been an unfair labor
practice because no duty to negotiate existed at the time in
7Although the proposed decision does not use those exact
terms, the ALJ appears to identify the "demand" as the moment
"when the District received the Association's initial proposals
for the 1992-93 school year," which imposed "an obligation to
negotiate all such proposals, and not limit them to two reopener
items." (Proposed D e c , pp. 8-9, fn. omitted.) He finds the
"refusal" in the conclusory statement, "As it refused to meet
this obligation, it violated [EERA]." (Id.. p. 9.)
8Charging Party's and Respondent's Stipulations, lines 1-2,
page 6.
18

question; no revival of the duty was otherwise established; and
no evidence of a refusal to negotiate was alleged or shown.
Since the adoption of the last, best and final offer was
lawful, and there is no evidence of its implementation after a
demand and refusal to negotiate, the Association has not shown
how the District's adoption of a limit constituted an unfair
labor practice. Simply put, no evidence exists in the file to
support a violation of the Educational Employment Relations Act.
CONCLUSION
The majority's new theory of waiver is irrelevant to a
correct decision of this case. The parties stipulated that after
impasse, they reached an agreement that reserved the
Association's right to pursue a single issue. The Association
has done so, and fails to show evidence of an unfair labor
practice. Based upon my review of the statutes, pertinent case
law, regulations, and the stipulated record in this case, I would
reverse the ALJ's decision and order that unfair practice charge
No. LA-CE-3235 be DISMISSED WITHOUT LEAVE TO AMEND.
19

APPENDIX
NOTICE TO EMPLOYERS
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-3235,
Association of Rowland Educators v. Rowland Unified School
District, in which all parties had the right to participate,
it has been found that the Rowland Unified School District
(District) violated the Educational Employment Relations Act
(EERA), Government Code section 3543.5(a), (b) and (c).
As a result of this conduct, we have been ordered to post
this Notice and we will:
A. CEASE AND DESIST FROM:
1. Unlawfully implementing terms and conditions of
employment which limit the Association of Rowland Educators'
(Association) statutory right to bargain.
2. Denying the Association the right to represent its
members in their employment relations with the District.
3. Denying the certificated bargaining unit employees
the right to be represented by the Association in their
employment relations with the District.
Dated: ROWLAND UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY
MATERIAL.