Laguna Salada Union School District (PERB 1103E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LAGUNA 	SALADA 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
LAGUNA 	SALADA UNION 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-1643
PERB Decision No. 	1103
May 11, 	1995
Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Laguna Salada Education Association,
CTA/NEA; 	Littler, 	Mendelson, 	Fastiff, 	Tichy & Mathiason by
Michael J. 	Tonsing, 	Attorney, 	for Laguna Salada Union School
District.
Before Blair, 	Chair; 	Garcia and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	Laguna
Salada Education Association, 	CTA/NEA 	(Association) 	to the
proposed decision of 	a PERB administrative 	law judge 	(ALJ). 	The
ALJ 	dismissed 	the 	unfair practice 	charge 	and 	complaint 	in which
the Association alleged 	that 	the 	Laguna 	Salada Union School
District 	(District) 	violated section 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment 	Relations Act 	(EERA)1 when 	in
1EERA 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:

June 	1993 	it 	unilaterally 	implemented a 	1.76 	percent 	salary
schedule 	reduction effective July 1, 	1992, 	and reduced the June
1993 	paychecks 	of 	employees 	represented by 	the Association by
17.6 percent.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the 	joint 	stipulation and the
filings 	of 	the parties. 	The Board hereby reverses 	the proposed
decision 	of 	the ALJ and 	finds 	that 	the District's 	action violated
EERA section 3543.5(a), 	(b) 	and (c).
BACKGROUND
On July 22, 	1993, 	the Association filed an unfair practice
charge 	which 	included numerous 	allegations 	of 	EERA violations
related 	to 	the District's 	unilateral 	implementation of 	terms
and conditions of employment on June 	15, 	1993. 	On September 6,
1994, 	the parties 	filed a 	settlement 	agreement with 	PERB and a
stipulation of 	facts and issues. 	In it, 	the parties agreed to
amend 	the 	complaint 	and 	submit 	a 	single 	issue 	involving 	the
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
22

unilaterally-imposed 	retroactive 	salary 	reduction. 	The parties'
stipulation of 	facts and issues 	states, 	in pertinent part:
1. 	Charging 	Party 	is 	an employee
organization within 	the meaning 	of 	Government
Code 	section 3540.1(d) 	and is 	the exclusive
representative, 	as 	defined in section
3540.l(e), 	of an appropriate unit of
employees.
2. 	Respondent 	is 	a public 	school 	employer
within 	the meaning 	of 	Government 	Code
section 	3540.1(k)
3. 	During the period from April 	15, 	1992
through November 12, 	1992, 	Respondent and
Charging 	Party were 	meeting 	and 	negotiating
pursuant 	to Government 	Code 	section 3543.3.
4. 	On April 	15, 	1992 	the District made 	its
initial bargaining proposal 	that 	the 	1991 	-
1992 	salary schedule 	remain at 	the 	status
quo.
5. 	On November 7, 	1992 	the District 	claimed
that 	the District's 	financial 	situation had
worsened, 	and proposed to 	reduce 	the 	1991/92
salary 	schedule by 	1.76%, 	to become 	effective
July 1, 	1992. 	The claim that 	the District's
financial 	condition had worsened was 	disputed
by 	the 	Charging 	Party.
6. 	On November 12, 	1992, 	PERB determined
the 	existence 	of 	an 	impasse. 	A factfinding
panel 	was 	assigned by 	PERB 	on 	February 25,
1993 	and 	the majority 	recommendation was
issued on June 4, 	1993. 	For the purpose of
this 	charge, 	neither party will 	raise 	the
propriety 	of 	the 	factfinding process 	as 	an
issue.
7. 	Up until June 	15, 	1993 	the District
continued 	to 	issue 	full 	pay warrants 	to
bargaining unit members at 	the 	1991 	- 	1992
salary schedule 	level.
8. 	The Respondent, 	on or about June 15,
1993, 	unilaterally 	implemented a 	1.76% 	salary
schedule reduction, 	retroactive to the
beginning of the 	1992 	- 	1993 	school year by
3
3

reducing 	the June 	1993 	warrants 	of 	charging
party unit members by 	17.6%.
The parties 	also 	STIPULATE 	that 	the 	issue
to be 	decided by 	this 	case 	is 	whether the
District violated EERA Section 3543.5(a),
(b) , 	(c) 	on or about June 15, 	1993, by
unilaterally 	implementing 	a 	1.76% 	salary
schedule reduction, 	retroactive to the
beginning of 	the 	1992 	- 	1993 	school year by
reducing 	the June 	1993 	warrants 	of 	charging
party unit members by 	17.6%.
The parties 	further STIPULATE 	that 	the
Charging 	Party shall 	not 	request, 	or shall
PERB order, 	"make whole" 	relief in this 	case;
provided that, 	all 	other remedies 	customarily
available 	to PERB 	shall 	be available 	in this
case.
The parties 	filed briefs 	in October 	1994 	and on November 23,
1994, 	the ALJ issued his 	proposed decision 	in which he 	found 	that
the District's 	action did not violate 	EERA, 	and dismissed the
Association's 	unfair practice 	charge 	and 	the 	resulting 	complaint.
POSITIONS 	OF THE 	PARTIES
Association 	Position
The Association asserts 	that 	the 	District's 	salary 	reduction
action 	"is 	a garden-variety unlawful 	unilateral 	change" 	for which
the District 	has 	no valid defense. 	The Association argues 	that
the mere 	exhaustion of 	the 	EERA impasse process 	is 	insufficient
to 	render an employer's unilateral 	change 	lawful. 	Any 	change
unilaterally 	implemented must 	have 	been 	reasonably 	comprehended
in a pre-impasse 	offer to 	the 	employee 	organization. 	(Modesto
City Schools 	(1983) 	PERB Decision No. 	291 	(Modesto).)
The Association argues 	that 	it 	can not be 	concluded 	that
4

the District's November 	1992 	demand 	for a 	1.76 	percent 	salary-
reduction effective July 1, 	1992, 	reasonably comprehends 	the
possibility 	of 	a decrease 	retroactive 	to 	the beginning 	of 	the
1992-93 	school year, 	resulting 	in a 	17.6 percent 	reduction to
the June 	1993 	paychecks 	of 	employees. 	The Association asserts
that Education Code sections 45041, 	45044, 	45045 and 45046
provide 	for mid-year 	salary 	changes 	to be prorated based 	on 	the
number of 	days worked at 	the new salary rate.
Citing Rowland Unified 	School 	District 	(1994) 	PERB Decision
No. 	1053 	(Rowland), 	the Association asserts that an employer may
not unilaterally 	implement 	a provision of 	a 	last, 	best 	and 	final
offer which 	imposes 	a waiver of 	the 	exclusive 	representative's
statutory 	right 	to bargain 	in good 	faith. 	The Association argues
that 	a 	unilaterally-implemented 	retroactive 	salary 	reduction 	has
a 	similar 	effect 	of 	undermining 	the 	EERA goal 	of 	promoting good
faith bargaining. 	Since 	an employer must maintain 	the 	status 	quo
of 	terms 	and 	conditions 	of 	employment 	during 	the bargaining 	and
impasse process, 	the subsequent 	retroactive 	implementation of
a 	salary 	reduction 	following 	completion 	of 	impasse 	allows 	the
employer 	to 	do 	that 	which 	it 	cannot 	lawfully do during
bargaining, 	simply by waiting. 	The Association asserts
that 	this 	conduct 	thwarts 	EERA's 	good 	faith bargaining goal.
Rather than working a hardship on 	the 	employer, 	the
Association 	asserts 	that 	the 	inability 	to 	unilaterally 	implement
a 	salary 	reduction 	retroactively 	serves 	as 	an 	inducement 	to
pursue agreement 	in 	collective bargaining, 	consistent with 	the
5

goals 	of 	EERA. 	To allow the District 	to 	retroactively adjust
salaries:
. 	. 	. 	would eviscerate the duty of an
employer 	to maintain 	the 	status 	quo during
bargaining, 	and remove all 	incentive 	for an
employer 	to 	reach agreement 	with 	the union.
Moreover, 	it would confiscate 	the union's
only bargaining 	chip--the 	statutory 	right
to 	the 	current 	terms 	and 	conditions 	of
employment 	for the 	duration of 	the
negotiations 	and 	impasse 	resolution
proceedings.
The Association asserts 	that 	a 	retroactive unilateral 	salary
reduction can lead to disastrous practical 	results 	if 	a
substantial 	salary 	reduction 	is 	retroactively 	implemented and
withheld 	from employees' 	paychecks 	in 	its 	entirety 	following an
extended 	impasse.
The Association 	cites 	National 	Labor Relations 	Board 	(NLRB)
cases2 which 	it 	argues 	demonstrate 	that 	an employer may not 	gain
economic 	advantage 	for the period of 	negotiations 	in which 	it was
required 	to maintain the 	status 	quo, 	by changing after 	impasse
the 	terms 	and 	conditions 	of 	employment 	applicable 	in the pre-
impasse 	period.
The Association also argues 	that, 	prior to EERA, 	California
case 	law held 	that 	salaries 	of 	certificated 	school 	district
employees became 	"vested" 	as 	of July 1 	of 	each year. 	Subsequent
to EERA, 	a negotiated agreement may 	supersede 	the 	salary level
vested as of July 1. 	In this 	case, 	however, 	since the parties
2Columbia Portland Cement Co. 	(1989) 	294 NLRB 410
[133 	LRRM 1009]; 	Shelter Island 	(1988) 	290 NLRB 246 	[129 	LRRM
1148]; 	San Diego Princess 	(1988) 	290 NLRB 253 	[31 LRRM 1268];
Dependable Maintenance Co. 	(1985) 	276 NLRB 27.
66

reached no agreement, 	the Association argues 	that 	the District
was 	bound 	to pay 	the vested 	salaries 	it 	paid at 	the beginning
of 	the 	1992-93 	school year for the entire year, 	and could not
unilaterally 	implement 	a 	reduction 	retroactively. 	(A.B.C.
Federation of Teachers v. 	A.B.C. 	Unified Sch. 	Dist. 	(1977)
75 Cal.App.3d 332, 	337-339 	[142 Cal.Rptr. 	111].)
District 	Position
The 	District 	agrees 	that 	unilateral 	implementation of 	a
salary 	reduction 	during 	negotiations 	or prior 	to 	the 	completion
of 	impasse procedures 	would 	constitute 	an EERA violation. 	As
demonstrated by the parties' 	stipulation, 	the District 	argues
that neither of 	these 	events 	occurred in this 	case. 	The District
asserts 	that 	it 	fulfilled 	its 	EERA obligations 	to negotiate 	in
good faith, 	and to participate 	in good 	faith in the 	impasse
process, 	and then took the action available to 	it. 	It
unilaterally 	implemented 	the 	salary 	reduction 	effective 	July 	1,
1992, 	which was 	included in the District's 	final pre-impasse
offer to 	the Association. 	(Modesto: 	Charter Oak Unified School
District 	(1991) 	PERB Decision No. 	873 	(Charter Oak): 	Rowland.)
Since 	the 	duty 	to 	negotiate 	had been 	fulfilled and no 	further
obligation existed, 	the District asserts 	that 	its action could
not have violated EERA section 3543.5(c).
The District 	cites various 	Education Code 	sections 	to assert
that 	the 	salaries 	of 	certificated 	school 	district 	employees 	are
contemplated on an annual 	rather than monthly basis. 	Therefore,
it 	can be 	reasonably inferred, 	in the absence of 	evidence 	to 	the
77

contrary, 	that 	the parties 	throughout negotiations were
bargaining 	over the 	annual 	salary 	to be 	paid 	in 	the 	1992-93
school year. 	Accordingly, 	the monthly paychecks 	received in
1992-93 	prior 	to 	the unilateral 	implementation of 	the 	reduction
retroactively, 	were 	"tentative 	advances 	against 	a baseline 	figure
yet 	to be 	determined" 	rather than 	"an 	irrevocable 	commitment 	to a
base wage 	rate."
The District asserts 	that 	the parties' 	stipulation
conclusively establishes 	that 	the 	salary 	reduction was 	"to become
effective July 1, 	1992" and, 	therefore, 	reasonably comprehends
the 	implementation of 	that 	reduction 	retroactive 	to 	the beginning
of 	the 	1992-93 	year, 	and the 	reduction in the 	1992-93 	annual
salary, 	following completion of 	impasse procedures.
The District argues 	that 	denying 	it 	the ability to
unilaterally 	implement 	a 	salary 	reduction 	retroactively 	after
completion 	of 	impasse procedures 	would 	"violate 	public 	policy" 	by
forcing 	the 	employer 	to bargain with 	less 	flexibility 	in 	order 	to
reach 	impasse more quickly, 	and by contributing 	to 	the possible
insolvency of 	districts 	facing 	financial 	crises. 	The District
also 	distinguishes 	the NLRB 	and pre-EERA cases 	cited by 	the
Association, 	arguing 	that 	they do not 	address 	the 	employer's
authority under 	EERA to 	unilaterally 	implement 	terms 	and
conditions 	of 	employment 	included 	in pre-impasse proposals,
following 	completion of 	the 	statutory 	impasse process.
a

DISCUSSION
Included in the parties' 	joint 	stipulation 	is 	a 	statement 	of
the 	issue 	to be decided 	in this 	case:
. 	. 	. 	whether the District violated EERA
Section 3543.5(a), 	(b), 	(c) 	on or about
June 15, 	1993, 	by unilaterally implementing a
1.76% 	salary schedule 	reduction, 	retroactive
to 	the beginning 	of 	the 	1992-93 	school 	year
by reducing 	the June 	1993 	warrants 	of
charging party unit members by 	17.6%.
It 	is 	a 	fundamental 	rule 	of 	collective bargaining 	that
an employer must maintain 	certain terms 	and 	conditions 	of
employment, 	including wages and benefits, 	following expiration
of 	a 	collective bargaining agreement 	during 	the parties'
negotiations 	over a 	successor agreement. 	An employer's
unilateral 	change 	in these 	terms 	and 	conditions 	of 	employment
is 	a per 	se violation of 	the 	statutory duty 	to bargain 	in good
faith. 	(Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51; 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736
[50 LRRM 2177]; 	(State of California 	(Department of Forestry and
Fire Protection) 	(1993) 	PERB Decision No. 	999-S; 	Department of
Personnel Administration v. 	Superior Court 	(1992) 	5 	Cal.App.4th
155 	[6 Cal.Rptr.2d 714].)
Under California law, 	public 	sector employers may lawfully
make unilateral 	changes 	in terms 	and conditions 	of 	employment
only after 	completing 	statutory 	impasse procedures. 	(Campbell
- -
Municipal Employees Assn. 	v. 	City of Campbell 	(1982) 	131
Cal.App.3d. 	416, 	422 	[182 Cal.Rptr.46].) 	Under the EERA,
99

exhaustion of 	the 	statutory 	impasse 	procedures 	occurs 	only when
the employer considers 	the 	factfinder's 	report 	in good faith, 	and
the 	report 	fails 	to provide a basis 	for settlement. 	(Modesto.)
Thus, 	an employer's 	change affecting a mandatory subject 	of
bargaining prior to 	the 	exhaustion of 	impasse procedures,
including 	consideration of 	the 	factfinder's 	report, 	is an
unlawful 	unilateral 	change. 	(Moreno Valley Unified School
District 	(1982) 	PERB Decision No. 	206.)
However, 	an employer may 	implement proposals previously
offered to 	the union once 	the 	employer exhausts 	the 	statutory
impasse procedures. 	As 	stated by the Board 	in Modesto:
. 	. 	. 	impasse under EERA is identical to
impasse under the 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.
The 	term 	"reasonably 	comprehended" 	excludes 	those 	changes 	better
than 	the 	last 	offer and also any 	changes 	which 	the 	parties 	did
not 	discuss 	during 	negotiations 	which are 	less 	than 	the 	status
quo. 	(Charter Oak.)
In the 	instant 	case, 	it 	is undisputed that 	the employer
maintained 	certain 	terms 	and 	conditions 	of 	employment 	during
negotiations 	over a 	successor agreement. 	Specifically, 	the
District 	maintained 	the 	1991-92 	salary 	schedule 	as 	the 	status 	quo
during 	1992-93 	negotiations. 	It 	is also undisputed that 	EERA's
statutory 	impasse process was 	completed, 	and neither party
contests 	the propriety of 	that process. 	The District 	continued
10

to maintain the 	1991-92 	salary schedule as 	the 	status 	quo 	through
the 	completion of 	the 	impasse process.
On or about June 15, 	1993, 	the District unilaterally
implemented a 	1.76 	percent 	salary 	schedule 	reduction. 	Since
its 	salary proposal was 	"to become effective July 1, 	1992," 	the
District 	calculated 	the 	cumulative value 	of 	the 	reduction 	from
that 	date until 	the point 	of unilateral 	implementation, 	and
reduced June 	1993 paychecks, 	the final paychecks 	of 	1992-93,
by 17.6 	percent. 	Applying 	the precedent 	cited above, 	the key
to resolution of 	this matter 	is 	the 	determination of 	whether
the November 	1992 	proposal 	to 	reduce 	salaries by 	1.76 	percent,
effective July 1, 	1992, 	reasonably comprehends 	the actions
taken by the District on June 	15, 	1993. 	Those actions were
the 	reduction of 	the 	salary schedule by 1.76 	percent, 	and 	the
reduction of June 	1993 paychecks by 	17.6 percent, 	the 	cumulative
value 	of 	the 	reduction from July 	1992 	to June 	1993.
The 	subject 	of wages 	is 	expressly within the 	scope 	of
representation described in EERA section 3543.2(a). 	It 	is
also well 	established 	that 	the methodology used 	in making wage
payments, 	how and when employees are paid, 	is a matter within
the 	scope 	of 	representation which an employer may not 	change
unilaterally, 	even when the 	level 	of 	compensation is 	not 	at
issue. 	The Board, 	for example, 	has held that an employer acted
unlawfully by unilaterally 	eliminating 	an 	employee 	option 	for 	a
June 	lump sum payment 	of July, 	August and September salaries.
(Calexico Unified School District 	(1982) 	PERB Decision No. 	265;
11

Brawley Union High School District 	(1982) 	PERB Decision No. 	266.)
Similarly, 	the NLRB has held that a 	change 	of 	employee wage base
from a weekly salary to an hourly rate 	is 	a negotiable matter.
(General Motors Corporation 	(1944) 	59 NLRB 1143 	[15 	LRRM 170].)
It 	has 	also been established 	in 	cases 	from other
jurisdictions 	that 	the methodology used 	in making adjustments 	to
employee wages 	is a negotiable matter, 	even when the amount 	of
the adjustment 	is unquestioned. 	(Levitt v. 	Board of 	Collective
Bargaining 	(1992) 	79 NY.2d 120 	[25 NYPERB 7514]; 	NFL Players
Association v. 	NLRB 	(8th Cir. 	1974) 	503 	F.2d 12 	[87 LRRM 2118].)
However, 	PERB has 	not 	specifically addressed whether the
methodology used 	in making adjustments 	to wages, 	how and when
employee wages are 	changed, 	is 	a matter within the 	scope of
representation under EERA. 	The 	Board will 	find a 	subject
negotiable, 	even though it 	is not 	specifically enumerated in
EERA section 3543.2, 	if: 	(1) 	it is logically and reasonably
related to hours, 	wages 	or an enumerated term and condition of
employment; 	(2) 	the subject 	is 	of 	such concern to both management
and employees 	that 	conflict 	is 	likely 	to 	occur and 	the mediatory
influence 	of 	collective negotiations 	is 	the appropriate means 	of
resolving the 	conflict; 	and 	(3) 	the 	obligation to negotiate would
not 	specifically abridge 	the 	employer's 	freedom to 	exercise 	those
managerial prerogatives, 	including matters 	of 	fundamental policy,
essential 	to the achievement 	of 	the employer's mission. 	(Anaheim
Union High School District 	(1981) 	PERB Decision No. 	177
(Anaheim); 	test approved in San Mateo City School Dist, 	v. 	Public
12

Employment Relations Board 	(1983) 	33 	Cal.3d 850 	[191 Cal.Rptr.
800].)
The 	methodology used by an 	employer 	to 	adjust 	the 	wages
of 	employees 	is 	a subject 	clearly related to wages, 	because 	it
affects 	how and when employee 	salaries will 	be 	changed. 	This
matter is 	of mutual 	concern to employees and management, 	and
lends 	itself 	to 	the mediatory 	influence 	of 	collective bargaining.
And similar 	to 	the methodology of making wage payments, 	there
is 	nothing 	in 	the 	subject 	of 	the methodology of 	adjusting wages
which abridges 	an employer's 	freedom to 	exercise 	those managerial
prerogatives 	essential 	to achieving 	its mission. 	Therefore,
pursuant 	to Anaheim, 	the methodology used to make adjustments 	in
employee wages 	is a negotiable subject, 	just as 	is 	the level 	to
which wages 	are 	to be adjusted.3
In 	considering 	the District's 	salary proposal 	as 	described
in the parties' 	joint stipulation, 	the Board must determine if
3Typically, 	wage adjustments 	occur 	in accordance with the
established methodology 	for making wage payments. 	For example,
a 	5 	percent 	salary 	increase 	for 	employees 	paid on a monthly
basis 	will 	generally be 	reflected as 	a 	5 	percent 	increase 	in
each monthly paycheck. 	However, 	the authority to 	implement
an adjustment 	in employee wages 	does 	not 	carry with 	it 	the
unilateral 	authority 	to 	determine 	how and when 	to make 	the
adjustment. 	For example, 	authority to implement a 5 percent
salary 	increase 	for employees 	paid on a monthly basis 	does 	not
permit 	the 	employer 	to decide unilaterally 	to 	increase 	every
other monthly paycheck by 	10 	percent; 	or 	to pay the 	increase
annually 	in a 	lump 	sum by adjusting 	the 	twelfth paycheck
following 	implementation of 	the 	increase by 60 	percent. 	The
methodology used 	in adjusting 	the wages 	is 	a negotiable 	subject.
13

it 	reasonably 	comprehends 	the 	level 	of 	wages 	implemented by 	the
District, 	an	
---d the methodology the District utilized 	in adjusting
wages 	to that level.
The 	level 	of wages 	is 	clearly stated within the District's
salary proposal. 	The parties' 	joint 	stipulation states 	that 	on
November 7, 	1992, 	the District 	"proposed to reduce the 	1991-92
salary schedule by 	1.76% 	to become 	effective July 1, 	1992." 	The
District argues 	that 	the reference to the July 1, 	1992, 	effective
date 	leads 	to 	the 	reasonable 	inference 	that 	the parties 	were
negotiating 	over a 	1.76 	percent 	reduction 	in 	the 	annual 	salaries
to be paid during 	1992-93. 	The District 	cites 	Education Code
provisions 	which 	it 	argues 	demonstrate 	that 	teacher 	salaries
are 	considered 	on an annual 	rather 	than monthly or 	other basis.
Since 	the 	salary 	reduction proposal 	was 	not made until 	November
1992, 	well after the beginning of 	the 	1992-93 year, 	the District
argues 	that 	it 	is 	clear from the proposal 	that 	a 	reduction larger
than 	1.76 	percent 	would have 	to be made 	to 	remaining 	1992-93
paychecks 	in order 	to achieve 	the annual value 	of 	the 	1.76
percent 	reduction by the 	end of 	the year. 	Thus, 	since unilateral
implementation did not 	occur until 	the 	final month of 	the year,
June 	1993, 	it was 	reasonably comprehended within the proposal
that 	the methodology 	to be used 	in 	implementing 	the 	salary
reduction would be 	to 	reduce 	June paychecks 	by 	the 	entire 	annual
amount, 	17.6 percent.
The 	Board 	finds 	the brief 	description 	of 	the 	salary proposal
contained in the parties' 	joint 	stipulation insufficient 	to
14

conclude 	that 	it 	reasonably 	comprehends 	the methodology 	for
adjusting 	employee wages 	which was 	implemented by 	the District.
The mere 	statement 	in November 1992 	of 	the July 1, 	1992,
effective 	date 	of 	the 	salary 	reduction does 	not 	reasonably
comprehend 	that 	the 	entire 	annual 	amount must 	be 	deducted 	from
employee paychecks before 	the end of 	the 	1992-93 	year. 	The
proposal 	described 	in 	the 	joint 	stipulation 	simply does 	not
indicate 	that 	with 	each passing month 	larger amounts 	would be
deducted 	from paychecks 	remaining 	in 	1992-93 	to achieve 	the 	total
annual 	reduction no 	later than June 	1993.4
It 	is 	apparent 	that 	the wage 	adjustment methodology used by
the District 	is 	not 	reasonably 	comprehended 	in 	the 	District's
proposal, 	because 	it 	is unclear from the proposal what action
the 	District 	would have 	taken had 	implementation 	occurred 	in any
month prior or 	subsequent 	to June 	1993. 	Would 	implementation
in May 	1993 	have 	resulted 	in May and June paychecks 	each being
reduced by 	8.8 	percent? 	Would 	implementation 	in October 	1993
have 	resulted 	in 	that 	month's 	paycheck being 	reduced by 	some
amount higher 	than 	17.6 	percent? 	The 	answers 	to 	these questions
4At 	the 	time 	the District 	introduced 	its 	last 	pre-impasse
salary proposal 	in November 1992, 	several months 	of 	the 	1992-93
year had already passed. 	Consistent with 	the District's
argument, 	it was aware, 	therefore, 	that amounts considerably
larger 	than 	1.76% 	would have 	to be 	deducted 	from remaining
paychecks 	to achieve 	the 	annual 	reduction 	for 	1992-93 	no 	later
than June 	1993. 	Yet nothing in the parties' 	joint 	stipulation
indicates 	that 	the methodology which 	the District 	apparently
planned to utilize 	in 	implementing 	its proposal, 	was 	communicated
to 	or negotiated with 	the Association.
15

are 	not 	reasonably 	comprehended within 	the 	salary proposal
described in the parties' 	joint 	stipulation.
The District points 	to various 	Education Code 	sections 	as
demonstrating 	that 	the 	salaries 	of 	its 	certificated employees
are contemplated on an annual basis, 	arguing, 	therefore, 	that the
entire value 	of 	the wage 	reduction 	for 1992-93 	had to be withheld
from wages 	during that year. 	However, 	the 	cited sections 	do not
mandate 	that 	adjustments 	to annual 	salaries must be made no 	later
than June 	30 	each year. 	Nor do these 	sections 	suggest a
methodology 	to be used 	in adjusting 	the 	level 	of 	employee
compensation, 	or address 	the 	negotiability under EERA of 	a
wage 	adjustment 	methodology.
In summary, 	the methodology used 	in making adjustments 	to
employee wages 	is a negotiable subject, 	just as 	is 	the wage level
itself. 	In this 	case, 	the District 	implemented a wage 	reduction
by deducting a 	lump 	sum equal 	to 	the annual value 	of 	the
reduction 	from a 	single paycheck. 	The Board concludes 	that
this methodology 	is 	not 	addressed, 	and clearly not 	reasonably
comprehended, 	within 	the District's November 1992 	salary proposal
as 	it 	is 	described in the parties' 	joint 	stipulation. 	Therefore,
the District 	was 	not 	free 	to 	implement 	that methodology 	following
completion of 	EERA's 	statutory impasse procedure. 	When it 	did
so, 	the District 	committed an unlawful, 	unilateral 	change 	in
violation of EERA section 3543.5(c). 	By this same conduct,
the District 	denied 	the Association 	its 	right 	to 	represent 	its
members 	in violation of EERA section 3543.5(b), 	and interfered
16

with 	the 	rights 	of 	individual 	employees 	in violation of 	EERA
section 3543.5(a).
Finally, 	the Board notes 	that by this 	decision it does 	not
reach the 	issue 	of 	whether an 	employer 	can 	lawfully 	implement
terms 	and 	conditions 	of 	employment 	retroactively, 	following
completion of 	EERA's 	statutory 	impasse procedure. 	Therefore,
the 	Board 	finds 	it 	unnecessary 	to address 	the 	extensive arguments
presented by 	the parties 	relating 	to 	this 	issue.
REMEDY
EERA section 3541.5(c) 	gives 	the Board broad 	remedial
powers, 	including the authority to 	issue 	cease and desist 	orders
and 	to 	require 	affirmative 	action 	effectuating 	the 	policies 	of
the EERA. 	In a long line of 	cases, 	the Board has 	ordered a make
whole 	remedy 	for employees 	affected by a unilateral 	change.
(Rio Hondo Community College District 	(1983) 	PERB Decision
No. 	292; 	Oakland Unified School District 	(1980) 	PERB Decision
No. 	126; 	Compton Unified School District 	(1989) 	PERB Decision
No. 	784.) 	Such remedies 	have been approved by the 	courts.
(San Diego Adult 	Educators v. 	Public 	Employment 	Relations 	Bd.
(1990) 	223 Cal.App.3d. 	1124, 	1137 	[273 Cal.Rptr. 	53].)
Included in the parties' 	joint 	stipulation is 	the 	following:
The parties 	further STIPULATE 	that 	the
Charging Party shall not 	request, 	or shall
PERB order, 	"make whole" 	relief in this 	case;
provided that, 	all 	other remedies 	customarily
available 	to PERB 	shall 	be available 	in 	this
case.
17

The 	Board's 	statutory 	remedial 	powers 	cannot be 	limited 	or
constrained by stipulation of 	the parties. 	Therefore, 	this
section of 	the 	stipulation has 	no effect 	on PERB's 	authority.
However, 	the main purpose of EERA section 3541.5 (c) 	is
to empower 	the 	Board to 	take what 	actions 	it deems 	necessary to
effectuate 	the policies 	of 	EERA. 	A primary purpose 	of 	EERA is 	to
enhance 	stability 	in 	employer-employee 	relations 	and promote 	the
collective 	resolution of 	issues 	and disputes. 	Since 	the parties
appear 	to have 	reached agreement 	with 	regard to 	the 	issue 	of 	any
make whole 	remedy in this 	case, 	the Board concludes 	that 	it 	is
appropriate to give deference to that agreement. 	Therefore, 	the
Board will 	not 	include a make whole 	order as part 	of 	its 	remedy
in this 	case.
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
terms 	and 	conditions 	of 	employment 	which were 	not 	reasonably
comprehended in the District's 	last, 	best and final 	offer.
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
18

the purposes 	of 	EERA that 	employees be 	informed of 	the 	resolution
of 	the controversy, 	and announces 	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 Laguna Salada
Union School District 	(District), 	its 	governing board and its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unlawfully 	implementing 	terms 	and 	conditions
of 	employment 	which were 	not 	reasonably 	comprehended 	in 	the
District's 	last, 	best and final 	offer.
2. 	Denying 	the 	Laguna Salada 	Education Association,
CTA/NEA 	(Association) 	the 	right 	to represent 	its members 	in their
employment 	relations 	with the District.
3. 	Denying 	the bargaining unit members 	the 	right 	to be
represented by 	the 	Association 	in 	their 	employment 	relations 	with
the District.
19

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
(3 0) 	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 	San Francisco Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	the 	director's 	instructions.
Chair Blair 	joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 	21.
20

GARCIA, 	Member, 	dissenting: 	The Public Employment Relations
Board 	(PERB) 	administrative law judge's 	(ALJ) 	analysis of 	this
case was 	correct 	and 	I would affirm his 	proposed decision
dismissing 	the 	charge.
Based on the 	stipulated 	facts, 	the 	impasse process was
complete 	in June 	1993. 	Under the key cases 	identified by the
majority 	opinion 	that 	govern 	this 	issue,1 the 	Laguna 	Salada Union
School District 	(District) 	was 	free, 	after impasse was
established, 	to 	implement 	the 	salary reduction of 	its 	last
proposal. 	Since 	it 	is well 	known to all 	involved that 	school
districts operate on an annual budget 	cycle, 	it 	is not
unreasonable 	to presume 	that 	the District 	would 	recoup 	the 	entire
projected savings by June 	30 	of 	the 	current year. 	After impasse,
there 	was 	only one 	pay period 	left 	in which 	to 	spread 	out 	the
proposed 	cut.
Problems 	With 	"Reasonably Comprehended" 	Standard
With respect 	to unilateral 	implementation, 	in the 	cases
cited above, 	the main 	inquiry was 	whether the 	terms 	implemented
were 	consistent with those of 	the District's 	last proposal; 	the
"reasonably comprehended" 	test 	is 	an additional 	tool 	to be used
when 	there 	is 	uncertainty as 	to whether what was 	implemented was
within the boundaries 	of 	the 	last best 	offer.
The majority opinion places 	too much 	importance 	on 	the
phrase 	"reasonably comprehended" 	and raises 	it 	to 	the 	level 	of 	a
1Modesto City Schools 	(1983) 	PERB Decision No. 	291 and
Charter Oak Unified School District 	(1991) 	PERB Decision No. 	873
(Charter Oak).
21

prerequisite which 	the District must 	establish 	to avoid a
violation. 	Using 	the 	"reasonably 	comprehended" 	test 	as 	the
majority 	does 	effectively 	imposes 	an 	additional 	requirement 	that
a 	specific 	plan 	of 	implementation be 	identifiable 	from the 	terms
of the last proposal; 	otherwise, 	the last, 	best and final offer
cannot be 	implemented without violation. 	That position 	is
contrary 	to 	the view 	taken 	in Charter Oak.
To achieve 	a salary reduction, 	there are many possible
timing-and-methodology variations 	an 	employer 	could 	use 	to
implement 	a 	change 	in pay. 	The 	case 	law on unilateral 	change
does 	not 	require 	specificity.
Burden of 	Proof
The majority view herein 	creates 	a new 	test 	and 	shifts 	the
burden of proof 	to 	the District. 	The burden of proof 	in unfair
practice 	cases before 	PERB 	is 	set 	forth 	in PERB Regulation 321782
as follows:
The 	charging party 	shall 	prove 	the 	complaint
by a preponderance 	of 	the 	evidence 	in order
to prevail.
Under that 	regulation, 	the Association has 	the burden of proof
and must 	show by a preponderance 	of 	the 	evidence 	that 	the
District's 	post-impasse 	implementation 	of 	the pay 	reduction was
inconsistent with the 	terms 	of 	its 	last proposal. 	The ALJ was
not 	convinced, 	and the record supports his 	conclusion.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1643,
Laguna Salada 	Education Association, 	CTA/NEA v. 	Laguna Salada
Union School District, 	in which all parties had the 	right 	to
participate, 	it has been found that 	the Laguna Salada Union
School 	District 	(District) 	violated the 	Educational 	Employment
Relations Act, 	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 were 	not 	reasonably 	comprehended 	in 	the
District's 	last, 	best and final 	offer.
2. 	Denying 	the 	Laguna Salada Education Association,
CTA/NEA 	(Association) 	the 	right 	to represent 	its members 	in their
employment 	relations 	with 	the District.
3. 	Denying the bargaining unit members 	the 	right 	to be
represented by 	the Association 	in 	their 	employment 	relations 	with
the District.
Dated: 	LAGUNA 	SALADA UNION 	SCHOOL
DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.