Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941 (PERB 1568E)

OVERRULED by Long Beach Community College
District (2008) PERB Decision No. 1941
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LONG BEACH COMMUNITY COLLEGE
DISTRICT POLICE OFFICERS ASSOCIATION,
Charging Party,
V.
LONG BEACH COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4532-E
PERB Decision No. 	1568
December 	18, 	2003
Appearances: Lackie & Dammeier LLP by Michael A. Morguess, Attorney, for Long Beach
Community College District Police Officers Association; Parker & Covert LLP by Spencer E.
Covert and Barbara J. Ginsberg, Attorneys, for Long Beach Community College District.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: 	This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Long Beach Community College District Police Officers
Association (Association) of a Board agent's dismissal of its unfair practice charge. The unfair
practice charge alleged that the Long Beach Community College District (District) violated
section 3543.5 of the Educational Employment Relations Act (EERA)1 by subcontracting all
the work of the Association's unit without providing the Association an opportunity to bargain
over the decision. The Board agent dismissed the unfair practice charge as untimely and on the
ground that the Association had waived its right to bargain pursuant to Barstow Unified School
District (1996) PERB Decision No. 1138 (Barstow). After reviewing the entire record in this
1EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

matter, including the unfair practice charge, the declarations, the Association's appeal, and the
District's response, the Board reverses the Board agent's dismissal.
BACKGROUND
The Association's unit consists of thirteen (13) District employees in the classifications
of Safety Officer and Police Officer. The remainder of the District's Police Department is
made up of the police chief, a lieutenant and two shift supervisors. The Association is an
independent entity, whose only financial support comes from its thirteen members' dues.
The Association and the District are parties to a collective bargaining agreement (CBA)
effective from April 25, 2000 through June 30, 2003. Article 2 of the CBA contains a
management rights clause which states, in its entirety:
2.1 	Powers and Authority
It is understood and agreed that the District retains all of its
powers and authority to direct, manage and control to the full
extent of the law. Included in but not limited to those duties and
powers are the exclusive right to: determine its organization;
direct the work of its employees; determine the times and hours
of operation; determine the kinds and levels of services to be
provided, and the methods and means of providing them;
establish its educational policies, goals and objectives; insure the
rights and educational opportunities of students; determine
staffing patterns; determine the number and kinds of personnel
required; maintain the efficiency of District operations; determine
the curriculum; build, move or modify facilities; establish budget
procedures and determine budgetary allocation; determine the
methods of raising revenue; and contract out work. In addition,
the District retains the right to hire, classify, assign, transfer,
evaluate, promote, demote, terminate, and discipline employees,
and all other rights and privileges not expressly waived by this
Agreement or requirements of the law. [Emphasis added.]
The parties apparently agree that on August 22, 2002, a meeting occurred between
Vic Coilins (Collins), the District's Executive Dean of Human Resources, and Derek O'Malley
(O'Malley), the President of the Association. During this meeting Collins informed O'Malley
2

that the District was considering contracting out the District's police services to the City of
Long Beach (City). Because the contracting out would eliminate all the Association's unit
work, Collins explained that it was the District's goal to facilitate employment opportunities
for the District's police officers with the City. Collins requested that the Association members
sign limited waivers so that representatives of the City's Police Department could examine
their personnel files as a precursor to potential City employment. 	On August 26, 2002,
O'Malley sent correspondence to Collins indicating that Association members would sign the
limited waivers.
On August 27, 2002, the District's Board of Trustees adopted Resolution
Number 082702(F), which provides, in pertinent part:
WHEREAS, the District and Governing Board of the Long Beach
Community College District have received proposals from two
law enforcement agencies to provide District police and safety
services;
WHEREAS, on August 5, 2002, the District received a 'letter of
intent' from the City of Long Beach Police Department which
provided an implementation analysis and cost estimates for
providing District police and safety services;
WHEREAS, the decision to utilize the City of Long Beach Police
Department to provide police and safety services for the Long
Beach Community College District has ramifications under the
Educational Employment Relations Act for the District and the
Police Officers Association ('POA'); and
WHEREAS, current campus police and safety personnel are
represented by the POA and, therefore, the possible contracting
of police and safety services with City of Long Beach Police
Department is a subject of negotiations with the POA.
NOW, THEREFORE, the Governing Board of the District does
hereby resolve, order and determine as follows:
Section 1. Each of the above recitals is true and correct.
3

Section 2. The District Administration is authorized to conduct
negotiations with the POA regarding the utilization of the City of
Long Beach Police Department to provide police and safety
services. [Emphasis added.]
On September 4, 2002, the officers of the Association sent a letter to the District's
Board of Trustees stating the Association's position on the August 27 resolution. 	The letter
states, in part:
As the resolution is only the first step in a potentially long
process, and until the POA, in conjunction with our legal council,
has had an opportunity to review all bids presented, our position
can only remain neutral. While the POA Board, and the
membership at large, are not philosophically opposed to a merger
of the College Police Department with a contracted outside
agency, final acceptance of any agreement by the POA
membership can only be judged solely on the favorable
disposition of all POA members.
The parties met on October 25, 2002. The meeting concerned not whether the District would
contract out police service, but instead the District's concern that eligible District employees
be hired by the City.
On October 29, 2002, the officers of the Association sent another letter to the District's
Board of Trustees. The letter emphasized that while the Association was "more than willing to
cooperate in any negotiations" regarding the contracting out, it had several concerns which
needed to be addressed by the District.
On December 13, 2002, Michael Lackie (Lackie), the Association's attorney, wrote a
letter to Barbara Ginsberg (Ginsberg), the District's attorney. In his letter, Lackie states, in
part:
You have not responded to my October 29, 2002 letter by which
the Long Beach Community College Police Officers Association
(POA) requested to meet and confer on the District's intent to
contract out police services. Please advise me immediately of the
District's position.
4

Please be advised that the District's continuing refusal to discuss
the important issue with the POA serves only to signal to our
client that the contracting out issue is being handled in an
underhanded fashion with the intent to avoid compliance with the
law. 	Our client will not hesitate to invoke PERB jurisdiction
as necessary to assure that the bargaining unit's rights are
protected.
On December 18, 2002, Ginsberg responded in a letter stating, in part:
At our October
25
th meeting, we discussed the fact that the
District was willing to meet with the POA regarding the proposed
contracting out
of
police services, but that the District was unable
to effectively discuss the issues raised by the POA on October 25,
2002 until the City
of
Long Beach was able to complete its
assessment
of
District personnel. 	[Emphasis added.]
On January 24, 2003, Ginsberg sent another letter stating that the City had completed
reviewing the personnel files
of
the Association's members. She further stated that:
Please be advised that the District is now prepared to schedule
another meeting with POA concerning the issue
of
contracting
out police services.
After receiving no response, Ginsberg wrote another letter on February 7, 2003,
iterating that:
[T]he District is prepared to meet and negotiate with POA
regarding the issue
of
contracting out
of
police services.
If
it is POA' s intent to waive its right to meet and negotiate
regarding this issue, please advise.
On February 25, 2003, the Association responded and informed the District that it was
not waiving its right to bargain over the contracting out decision. According to the
Association, a meeting was then scheduled for March 31, 2003, to discuss the proposed
contracting out of police services. The Association claims that when it arrived for the meeting,
Collins stated that the purpose of the meeting was not to "meet and negotiate," but rather an
5

"informational meeting." The District claims at the March 31, 2003, meeting, it informed the
Association
of
its position that the decision to contract out police services was not negotiable.
On June 17, 2003, the District's Board
of
Trustees and the City Council
of
Long Beach
both approved resolutions to enter into a contract whereby the City would provide the District
with police and security services effective August
1,
2003. 	On the same date, the Board
of
Trustees passed a resolution, stating in part:
Article 19.3
of
the CBA relieves the District
of
any obligation to
meet and negotiate with respect to any subject or matter whether
or not referred to or covered in the CBA, and the POA expressly
waived and relinquished, in that same Article, its right to meet
and negotiate with respect to any subject or matter whether or not
referred to or covered in the CBA. All provisions concerning
layoff and the effects thereof as a result
of
lack
of
work or lack
of
funds have been fully negotiated and reduced to writing in
Article 14
of
the CBA.
This resolution will authorize the layoff
of
all police and safety
services within the District.
On June 23, 2003, the Association filed this unfair practice charge alleging that the
District failed to negotiate over its decision to contract out police services and thereby
eliminate all the Association's work. 	On June 24, 2003, the Association filed a request for
injunctive relief to prevent the District from laying off all unit employees effective August
1,
2003. The Board denied the Association's request for injunctive relief on July 14, 2003. 	The
Board agent subsequently dismissed the unfair practice charge on July 25, 2003. 	This appeal
followed.
BOARD AGENT'S DISMISSAL
The Board agent first examined whether the Association's charge was timely. The
Board agent focused on the District's August resolution informing the Association of its intent
to contract out police services. Concluding that the Association was aware of the District's
6

firm intent to contract out police services more than six months prior to the filing
of
the charge,
the Board agent held that the charge was untimely.
Even
if
the charge were timely, the Board agent held that the charge would still
be
dismissed because the Association had waived its right to bargain over the contracting out
decision. The Board agent first acknowledged that the District's decision to contract out is
negotiable. (Lucia Mar Unified School District (2001) PERB Decision No. 1440 (Lucia Mar).)
However, pursuant to Barstow, the Board agent held that the Association had waived its rights
by the language in the management rights clause
of
the CBA. Specifically, the Association
had agreed that the District retained the right to "contract out work." Accordingly, the Board
agent concluded that the Association had waived its right to bargain and that the District could
unilaterally contract out all police services.
ASSOCIATION'S APPEAL
In its appeal, the Association argues that its charge is timely because it was not until
June 2003, that the District expressed an unwillingness to negotiate over the contracting out
decision. It was only at that point that the Association was placed on notice that the District
was refusing to meet and confer in good faith. 	Second, the Association argues that the Board
agent's reliance on Barstow is misplaced. According to the Association, Barstow cannot be
applied to the present situation in which all unit work is being contracted out, thereby resulting
in the elimination
of
the Association. Barstow must be limited to situations where only some
unit work is being contracted out, argues the Association. Thus, the Association urges
the
Board to reverse the dismissal and to order the issuance
of
a complaint.
7

DISTRICT'S RESPONSE
In response, the District argues that the Board agent properly dismissed the charge as
untimely. 	The District emphasizes that the Association knew
of
the District's firm intent to
contract out police services in August 2002. Despite this knowledge, the Association did not
file the present charge until June 2003. According to the District, the Association improperly
sat on its rights for over six months.
Further, the District argues that the evidence clearly establishes that the Association
waived its right to bargain over the contracting out decision. The District again cites to
Barstow and also to its various declarations. Those declarations attest to the District's position
that the Association knowingly waived its right to bargain over contracting out decisions
involving any and all unit work. 	Having made a clear and unambiguous waiver, the
Association is now trying to renege on its agreement, argues the District.
DISCUSSION
Statute
of
Limitations
EERA section 3541.5(a)(1)2 prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
2 EERA section 3541.S(a)(l) states, in part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either
of
the following:
(1) Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge.
8

District (1996) PERB Decision No. 1177.) The charging party bears the burden of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. 1024; State of California (Department oflnsurance) (1997) PERB Decision
No. 1197-S.)
In cases alleging a unilateral change, the statute of limitations begins to run on the date
the charging party has actual or constructive notice of the respondent's clear intent to
implement a unilateral change in policy, provided that nothing subsequent to that date evinces
a wavering of that intent. (Cloverdale Unified School District (1991) PERB Decision No. 911;
The Regents of the University of California (1990) PERB Decision No. 826-H (Regents).)
Charging party may not rest on its rights until actual implementation occurs. (Mt. Diablo
Unified School District (1994) PERB Decision No. 1034.)
The District argues that the Association had notice as early as August 2002, of its intent
to contract out police services. Specifically, the District points to a resolution adopted by its
Board of Trustees on August 27, 2002. The Board agrees that the District's resolution placed
the Association on notice that there was a proposal to contract out police services. However,
the Board disagrees that the resolution evinced an unwavering intent by the District to do so
unilaterally. To the contrary, the resolution expressly states that the decision to contract out
police services was only "possible." Further, the resolution acknowledged the District's
obligation under EERA to meet and confer with the Association over any decision to contract
out police services. Having agreed to negotiate the decision to contract out, there was no
unilateral change.
Establishing that a change is being made unilaterally is critical to establishing an unfair
practice. By enacting a unilateral change, a party violates EERA by "refusing to meet and
9

negotiate in good faith ... " (EERA sec. 3543.S(c).) It is important to understand that EERA
does not prohibit changes per se, but only changes made without providing an opportunity to
meet and negotiate. Thus, where an employer notifies an exclusive representative of a
proposed change in the terms and conditions of employment, no unfair practice arises until the
employer refuses to meet and negotiate over the change. Where the employer agrees to meet
and negotiate, there is no refusal to bargain, and hence, no unfair practice.
In this matter, the District plainly offered to negotiate with the Association over its
proposal to contract out police services. Not only did it do so in the August resolution, but the
District repeatedly emphasized this point for months. For example, on December 18, 2002,
Ginsberg stating that the District was "willing to meet with the POA regarding the proposed
contracting out of police services." On January 24, 2003, Ginsberg wrote to the Association
stating that the District was "now prepared to schedule another meeting with POA concerning
the issue of contracting out police services." On January 24, 2003, Ginsberg again wrote to the
Association stating that the District was "prepared to meet and negotiate with POA regarding
the issue of contracting out of police services" and that "[i]f it is PO A's intent to waive its right
to meet and negotiate regarding this issue, please advise." It was not until the District's second
resolution in June 2003 that the Association was placed on notice that the District intended to
contract out police services regardless of the status of negotiations. Accordingly, the Board
finds that the statute of limitations did not begin to run until June 17, 2003. The Association's
charge, filed on June 23, 2003, is therefore timely. 3
3Even if the Board accepted as true the District's assertion that it informed the
Association on March 31, 2003, that it would not negotiate the contracting decision, this
charge would still be timely. However, since the Association's material allegations must be
deemed true at this stage of the proceedings, the District's characterization of the March 31,
2003, meeting must be rejected. (Golden Plains Unified School District (2002) PERB
10

Decision No. 1489 (Golden Plains); San Juan Unified School District (1977) EERB Decision
No. 12 (San Juan) (prior to Jan. 1978, PERB was known as the Educational Employment
Relations Board or EERB.))
The District counters that the Association has known of the District's "intent" to
contract out all police services since August 2002. However, as discussed above, the
Association's knowledge of the District's intent to contract out, without more, does not trigger
the statute of limitations. It is the Association's knowledge that the District intended to do so
unilaterally that triggers the statute of limitations. While the August 2002 resolution expressed
the District's desire to contract out all police services, the resolution expressly acknowledged
the District's obligation to negotiate the contracting decision. Even after August 2002, the
District repeatedly emphasized its willingness to bargain over the decision to contract out.4
The Association was entitled to accept the District's offers on their face. It was not until June
2003, that the Association was placed on notice that the District would no longer abide by its
earlier commitment to negotiate. Accordingly, the District's argument must be rejected.
Similarly, the dismissal letter's citation to PERB's decisions in Milpitas Unified School
District (1997) PERB Decision No. 1234 (Milpitas) and West Valley-Mission Community
College District (1995) PERB Decision No. 1113 (West Valley-Mission) are unconvincing.
Milpitas involved a school district's decision to change the annual instructional calendar. The
district in Milpitas never offered to negotiate with the union over the decision and steadfastly
maintained that the decision was non-negotiable. In contrast, the District here agreed to
negotiate its proposal with the Association and repeated that offer numerous times. By doing
4If the Board were to accept the District's contention that it had made a firm decision to
contract out police services in August 2002, the Board would also have to find that the
District's subsequent offers to negotiate were tendered in complete bad faith.
11

so, the District gave the Association every reason to believe that the proposal was not firm and
that the District would not unilaterally implement the proposal without negotiating.
West Valley-Mission involved a school district's decision to layoff employees. 	The
union had notice of the district's decision to layoff employees, but argued the limitations
period did not begin to run until the layoffs actually took effect. The Board rejected the
union's argument on the grounds that a charging party may not rest on its right until actual
implementation occurs. (Regents.) However, the holding in Regents only applies where a firm
decision has been made and there is no subsequent wavering of intent. Here, based on the
District's repeated offers to negotiate, the Association reasonably believed that no firm
decision had been made. Accordingly, neither Milpitas nor West Valley-Mission are
applicable on the facts of this case.
Unilateral Change
Having found the Association's charge timely, the Board must now consider the
Association's allegation that the District violated BERA section 3543.S(c) by unilaterally
contracting out all police services. In determining whether a party has violated BERA
section 3543.S(c), PERB utilizes either the "per se" or "totality of the conduct" test, depending
on the specific conduct involved and the effect of such conduct on the negotiating process.
(Stockton Unified School District (1980) PERB Decision No. 143.) Unilateral changes are
considered "per se" violations if certain criteria are met. Those criteria are: (1) the employer
implemented a change in policy concerning a matter within the scope of representation, and
(2) the change was implemented before the employer notified the exclusive representative and
gave it an opportunity to request negotiations. (Walnut Valley Unified School District ( 1981)
12

PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision
No. 196.)
There is little dispute that the Association has established these two criteria. First, the
Board has held that an employer's wholesale replacement of a group of employees with
contractors is subject to bargaining regardless of the employer's motivation. (Lucia Mar; cf.
San Diego Adult Educators v. Public Employment Relations Bd. (1990) 223 Cal.App.3d 1124
[273 Cal.Rptr. 53] (San Diego).) It is undisputed that the District intends to contract out all
police services. The District's decision will not only result in the layoff of safety and police
officers, but will result in the destruction of the Association itself. Under these facts, there can
be no dispute that the District's decision is within the scope of representation.
Second, the record amply demonstrates that the District implemented its contracting out
decision without providing the Association an opportunity to bargain. Although the District
initially offered to bargain, it retracted that offer in its June 2003 resolution. Accordingly, the
Association has established its prima facie case.
Once the Association has established its prima facie case, the District may raise various
affirmative defenses, including the affirmative defense of waiver. 	(Sonoma County Office of
Education (1997) PERB Decision No. 1225; Regents of the University of California (1994)
PERB Decision No. 1077-H; Beverly Hills Unified School District (1990) PERB Decision
No. 789.) In this case, the District asserts that the Association waived its right to negotiate
over the contracting out decision. Specifically, the District argues that the plain language of
the CBA allows the District to contract out the Association's unit work at the District's
discretion.
13

The Board has held that a union may waive its right to bargain about the contracting out
of unit work by agreeing in advance that the employer may unilaterally undertake such action.
(Barstow; see also, Island Creek Coal Co. (1988) 289 NLRB 851, enfd., 879 F.2d 939 (D.C.
Cir. 1989); American Stores Packing Co. (1986) 277 NLRB 1656 [121 LRRM 1173].)
However, such a contractual waiver will not be construed solely from a broadly based
management-rights clause. (San Jacinto Unified School District (1994) PERB Decision
No. 1078.) To the contrary, any waiver of a right to bargain over a negotiable contracting out
decision must be "clear and unmistakable." (Amador Valley Joint Unified School District
(1978) PERB Decision No. 74 (Amador Valley); see also, Metropolitan Edison Co. v. NLRB
(1983) 460 U.S. 693, 708 [103 S.Ct. 1467] (Metropolitan Edison).). The "clear and
unmistakable" standard is a high one and mandated by the Board's previous findings that there
is a strong public policy against finding waivers based on inferences. (Los Angeles Community
College District (1982) PERB Decision No. 252; Palo Verde Unified School District (1983)
PERB Decision No. 321; see Daniel Construction Company, Inc. (1979) 239 NLRB 1335,
1336 [100 LRRM 1201].) A waiver of an exclusive representative's right to bargain will never
be lightly inferred. (Oakland Unified School District (1982) PERB Decision No. 236.) 	In
cases where the alleged waiver is exceptional in "breadth or severity," the "clear and
unmistakable" standard must be stringently applied. 	(San Marcos Unified School District
(2003) PERB Decision No. 1508 (San Marcos) The burden of proof for establishing an
affirmative defense of waiver rests exclusively with the District. (Placentia Unified School
District (1986) PERB Decision No. 595.)
It is also important at this time to discuss how the burdens of proof discussed above
intersect with the pleading requirements for issuance of a complaint. When a charge is first
14

filed, it is the duty of the Board agent to investigate whether the charge and evidence support a
prima facie case. (PERB Reg. 32620(b)(5).5) 	In making this determination, the Board agent
must accept all of the charging party's material allegations as true. 	(Golden Plains; San Juan.)
In most instances, once the Board agent determines that the charging party has established a
prima facie case, a complaint will be issued. This is true regardless of whether the respondent
has proffered an affirmative defense. The exception to this rule is where an affirmative
defense involves a question of law or the application of law to undisputed facts. 	It is
appropriate for the Board agent to make a determination regarding an affirmative defense in
these situations, since they do not involve factual disputes or credibility determinations.
Where a respondent can establish an affirmative defense as a matter of law, the charge must be
dismissed even when the charging party has otherwise established a prima facie case.
In this matter, the District asserts that the Association waived its right to negotiate over
the decision to contract out police services. As the language of the contract is undisputed, the
application of law to facts presents a question of law. Thus, the issue before the Board is
whether the language of the CBA establishes a clear and unmistakable waiver as a matter of
law.
Clear and Unmistakable Waiver
Applying the standards discussed above to the present case, the Board finds that the
District has not established a clear and unmistakable waiver as a matter of law. 	The District's
assertion of waiver rests solely on the language of section 2.1 of the CBA. 	Section 2.1 appears
to be a broiler-plate management rights clause, with an introductory sentence that states:
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
15

It is understood and agreed that the District retains all of its
powers and authority to direct, manage and control to the full
extent of the law. 	[Emphasis added.]
It is axiomatic that, "it is not possible to 'retain' something you do not otherwise have" in a
management rights clause. (Los Angeles Unified School District (2002) PERB Decision
No. 1501.) Here, there is no evidence that the District previously had the right to contract out
all police services without bargaining. It logically follows that they could not "retain" such a
right. Thus, at first blush, section 2.1 appears to do nothing more than merely affirm that the
District has not ceded any traditional management rights.
This interpretation is supported by the fundamental precept of contract interpretation
that a contract provision must be interpreted as a whole and harmonized with the other clauses
or sections in which it appears. (Riverside Community College District (1992) PERB Order
No. Ad-229 (Riverside); Victor Valley Community College District (1986) PERB Decision
No. 570 (Victor Valley).) The second sentence of section 2.1 provides examples of the power
and authority retained by the District. That list includes fourteen separate items. Significantly,
there would be little dispute that the first thirteen enumerated items are all functions
traditionally reserved for management. Items such as determining the curriculum and building
facilities are matters firmly within management's prerogative.
The same cannot be said as to all forms of contracting out. Some contracting out
decisions are within the scope of representation and some are not. However, since the first
thirteen items listed in section 2.1 all involve non-negotiable subjects of bargaining, it would
be incongruent to interpret the phrase "contract out work" as a far reaching waiver of the
Association's fundamental statutory rights - indeed, the bargaining unit's very right to exist.
Instead, the most reasonable interpretation of the phrase "contract out work" in section 2.1 is
16

that it only refers to contracting decisions that have traditionally not been within the scope of
representation. 	Such decisions are thus a management right. 	(See, e.g., San Diego; First
National Maintenance Corp. v. NLRB (1981) 452 U.S. 666 [107 LRRM 2705).)
Thus, when section 2.1 is considered as a whole, it is not at all clear that the phrase
"contract out work" refers to all contracting out decisions, especially those that are within the
scope of representation. At the very least, there is some ambiguity as to which contracting out
decisions are encompassed by section 2.1. In the presence of such ambiguity, the Board finds
that the District has not established a clear and unmistakable waiver as a matter of law.
The Board's holding is consistent with both public and private sector decisions
regarding waivers of fundamental rights. Recently, the Board held in San Marcos that a
general prohibition on "picketing" in a collective bargaining agreement did not extend to non-
disruptive informational picketing. Even though the phrase "picketing," when read in
isolation, was broad and all-encompassing, the Board held that the term must be interpreted in
conjunction with the other terms accompanying it. 	(San Marcos at p. 43.) Finding that
"substantial, reasonable disagreement" existed over the reach of the term "picketing," the
Board concluded that there was not a clear and unmistakable waiver of the right to engage in
non-disruptive informational picketing. (Id.)
Similarly, under the National Labor Relations Act (NLRA), it has been held that a
general no-strike clause in a CBA will not be interpreted to extend to sympathy strikes.
(Children's Hospital of Northern California v. CNA (9 th Cir. 2002) 283 F.3d 1188, 1192
[169 LRRM 2779] (Children's Hospital).) In Children's Hospital, the court held that:
A general no-strike clause that does not specify whether
sympathy strikes are included or excluded does not, simply by
virtue of its incorporation in a collective bargaining agreement,
constitute such a clear and unmistakable waiver. The rationale
17

for applying the "clear and unmistakable" standard to waivers
of
strike rights is this:
if
a union is negotiating away employees'
rights that are fundamental to the collective bargaining process,
any proposed contract must unambiguously put those employees
on notice
of
the waiver.
(Children's Hospital at p. 1192, citation omitted.)
Thus, both San Marcos and Children's Hospital support the Board's holding here that the
general phrase "contract out work" should not be interpreted as a waiver
of
the Association's
right to negotiate as to all forms
of
contracting out.
Extrinsic Evidence
The District has submitted several declarations as extrinsic evidence that the
Association knew that it was waiving its right to negotiate over all contracting out decisions.
Extrinsic evidence
of
a mutual waiver may certainly aid in the interpretation
of
section 2.1.
However, the Association has disputed the District's evidence. 	Indeed, the Association
adamantly denies that it waived its right to negotiate over all contracting out decisions. 	Where
a factual dispute exists, the Board must accept the charging party's allegations at this stage.
Accordingly, the Board cannot rely on the District's declarations at this stage. Instead, the
District must present its evidence before the Board agent.
Barstow Unified School District
Finally, the Board is aware that its decision in this case appears to be in conflict with
the holding in Barstow. Barstow involved a school district's decision to contract out
transportation services. The district refused to negotiate its decision on the grounds that the
California School Employees Association (CSEA) had waived it right to bargain in the CBA.
Employing similar language to the CBA at issue here, the contract in Barstow stated:
4.1 	It is understood and agreed that the District retain [sic.] all
of its powers and authority to direct, manage and control
to the full extent of the law. Included in but not limited to
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those duties and powers are the exclusive right to:
determine its organization;
...
determine the kinds and
levels
of
services to be provided, and the methods and
means
of
providing them; maintain the efficiency
of
District operations; contract out work, which may be
contracted for
....
(Barstow at p.
6;
emphasis added.)
In considering whether the phrase "contract out work" constituted a clear and
unmistakable waiver, the Board in Barstow rejected CSEA's argument that the contract
language was too broad and non-specific to support the district's interpretation. Emphasizing
the need to adhere to the "plain language"
of
the CBA, the Board in Barstow held that:
[T]he language
of
the contract is clear and explicit in giving the
District the right to make the decision to contract out
transportation services; and that the language in question
constitutes a clear and unmistakable waiver by CSEA
of
the right
to negotiate over the subject
of
that decision.
(At p. 14.)
However, by focusing exclusively on the phrase "contract out work," Barstow failed to
adequately adhere to another fundamental rule
of
contract interpretation: that each phrase must
be read in conjunction with the phrases surrounding it and harmonized as a whole. (Riverside;
Victor Valley; see also, San Marcos at p. 43 (applying cannon
of
noscitur a sociis - "it is
known from its associates").) As already discussed, the phrase "contract out work" can have a
broad meaning when read in isolation. However, it is exactly because Barstow analyzed the
phrase in isolation that the Board must overrule the Barstow decision.
In addition, the holding in Barstow was based on the assumption that not giving the
phrase "contract out work" a broad interpretation would render the phrase meaningless and
ineffective, and thus violate another principle of contract interpretation. (See City of
Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th
445,473
[80 Cal.Rptr.2d 329].) However, Barstow failed to recognize that contracting out arises in
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many different situations. Some
of
these contracting out situations have been traditionally held
to be within management's prerogative while others have been held to be within the scope
of
representation. When read in conjunction with the thirteen other enumerated items in
section 2.1
of
the CBA, the phrase "contract out work" is best interpreted to refer only to those
contracting out situations that have traditionally been held to be within management's
prerogative. The Board's interpretation harmonizes the phrase "contract out work" with the
other items in section 2.1. 	Contrary to Barstow, such an interpretation does not render the
phrase surplusage, but rather seeks to give it its intended meaning.
Finally, the Board's rejection
of
Barstow furthers important public policy. The
fundamental purpose
of
EERA is to "promote the improvement
of
personnel management and
employer-employee relations." (EERA sec. 3540.) EERA achieves this goal
by
granting
employees the right to organize and by requiring collective negotiations. (EERA sec. 3543.)
Experience under the NLRA, upon which EERA was modeled, has shown that collective
bargaining is a highly effective means
of
peacefully resolving conflicting workplace issues.
(Fibreboard Paper Products Corp. v. National Labor Relations Board (1964) 379 U.S. 203, 214
[85 S.Ct. 398].) Thus, the Board must be ever mindful
of
the strong public policy in California
favoring collective bargaining. (See Social Services Union v. Alameda County Training &
Employment Bd. (1989) 207 Cal.App.3d 1458, 1465 [255 Cal.Rptr. 746].)
To protect the fundamental right to collective bargaining, the Board has long required
that any waiver
of
the right to bargain be "clear and unmistakable." (Amador Valley; see also,
Metropolitan Edison.) Generally, a "clear and unmistakable" waiver is one that is readily
apparent to any lay person. Such a stringent standard is necessary not only to protect the rights
of the parties, but also to promote the public interest in having disputes resolved through
20

collective bargaining. To hold otherwise would allow the inadvertent waiver
of
fundamental
rights by those who are unrepresented or unsophisticated. Here, it cannot be said that a
layperson reading the phrase "contract out work" in the context
of
section
2.1
would have
understood the phrase to cede to management the right to contract out all the work
of
the
Association, thereby causing the destruction
of
the bargaining unit itself.
Accordingly, the Board holds that the District has not established a clear and
unmistakable waiver as a matter oflaw. To the extent Barstow is in conflict, it is overruled.
The Board remands this case to the General Counsel's Office for issuance
of
a complaint
consistent with this decision. Although the District has not established a clear and
unmistakable waiver as a matter
of
law, it may still raise its defense
of
waiver before the
administrative law judge. The burden to establish a waiver at the hearing falls squarely on the
District.
Education Code Section 88003.1
Finally, the Association argues that Education Code section 88003.1 prohibits the
District's contracting out
of
police services. However, as the District points out, the
CBA
does
not contain the limiting language, "which may lawfully be contracted for," that was present in
Barstow. Thus, even
if
it could be shown that the District violated Education Code
section 88003.1, there would be no violation
of
the contract that would constitute an unlawful
unilateral change. 	Since PERB does not have independent jurisdiction to enforce the
provisions
of
the Education Code, the contentions regarding the Education Code do not aid the
Association.
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ORDER
The Board REVERSES the Board agent's dismissal in Case No. LA-CE-4532-E and
REMANDS this case to the Office of the General Counsel for issuance of a complaint
consistent with this Decision.
Members Whitehead and Neima joined in this Decision.
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