Cerritos Community College District (PERB 2819E)

CERRITOS COLLEGE FACULTY
FEDERATION, AMERICAN FEDERATION
OF TEACHERS LOCAL 6215,
Charging Party,
v.
CERRITOS COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-6378-E
PERB Decision No. 2819
May 6, 2022
Appearances: Law Offices of Robert J. Bezemek by David Conway, Attorney, for
Cerritos College Faculty Federation, American Federation of Teachers Local 6215;
Erickson Law Firm by Rachel Napier and Joshua Taylor, Attorneys, for Cerritos
Community College District.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
BANKS, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the Cerritos Community College District to a
proposed decision by an administrative law judge (ALJ). The ALJ concluded that the
District violated its duty to bargain in good faith with the Cerritos College Faculty
Federation, American Federation of Teachers Local 6215 (Federation) over proposals
on: (1) standards and procedures regarding discipline short of suspension or dismissal
for full-time faculty; (2) the use of reassignment, assignment loss, and mandatory
training as discipline for faculty; (3) misconduct investigations, including information
the District will disclose to the Federation and accused faculty member during such
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

2
investigations; and (4) provisions for paid administrative leave. The District argues that
the Education Code supersedes the Educational Employment Relations Act (EERA)
with respect to the foregoing topics, and that therefore it had no duty to bargain over
the Federation’s proposals.1
We have reviewed the entire record and considered the parties’ arguments in
light of applicable law, and we affirm the proposed decision based upon the following
findings and discussion.
PROCEDURAL BACKGROUND
On June 26, 2018, the Federation filed an unfair practice charge against the
District, alleging that the District refused to bargain in good faith over the four
proposals listed ante as well as a proposal regarding a discipline standard for part-
time, temporary faculty. On June 11, 2019, PERB’s Office of the General Counsel
issued a complaint against the District. The complaint alleged that the Federation
proposed a just cause discipline article during successor negotiations, and that the
District declined the Federation’s repeated requests to bargain over the proposal,
including five specified subjects the proposal addressed. On July 29, 2019, the District
filed an answer. On August 12, 2019, the District submitted a supplemental
declaration and verification of its answer.
On September 16, 2019, the parties participated in an informal settlement
conference, but were unable to resolve the matter.
1 EERA is codified at Government Code section 3540 et seq. All further
statutory references are to the Government Code unless otherwise indicated. The
Education Code can be found online at https://leginfo.legislature.ca.gov/faces/
codesTOCSelected.xhtml?tocCode=EDC.

3
On July 10, 2020, the parties submitted their joint stipulation of facts and
exhibits. On November 30, 2020, the Division of Administrative Law reassigned the
case to the Chief ALJ, without objection from the parties.
The formal hearing took place on December 8, 9, 11, and 21, 2020, and
January 11, 2021. On the first day of the hearing, the Federation orally moved to
amend the complaint to clarify certain dates, add an aspect of just cause discipline
that the District allegedly failed to negotiate, and specify legal theories with regard to
the bad faith bargaining allegation. The District objected to some of the amendments.
In substance, the ALJ granted the motion. The amended complaint alleged that
on December 1, 2017, and March 23, 2018, the Federation proposed a just cause
discipline article to the District, and that from January 19, 2018, through April 20,
2018, the District declined the Federation’s repeated requests to bargain over the
proposal, which included: (1) a discipline standard for part-time faculty; (2) a standard
for discipline short of suspension or dismissal for full-time faculty; (3) a provision
regarding investigatory information, such as complaint information, that would be
provided to the Federation and the accused faculty member during the investigative
process; (4) administrative leave; (5) the use of reassignment, assignment loss, and
mandatory training as discipline for faculty; and (6) procedures for misconduct
investigations.
The ALJ issued a proposed decision on August 11, 2021, concluding that the
District refused to bargain in good faith over the latter five topics specified in the
amended complaint. The ALJ dismissed the allegation that the District failed to
bargain over a discipline standard for part-time faculty.

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The District filed timely exceptions to the proposed decision. The Federation
filed a response to the District’s exceptions but no exceptions of its own.2
FACTUAL BACKGROUND
The District is a public school employer within the meaning of EERA section
3540.1, subdivision (k) and a school district within the meaning of PERB
Regulation 32001, subdivision (c). The Federation is an employee organization within
the meaning of EERA section 3540.1, subdivision (d) and PERB Regulation 32001,
subdivision (a). The Federation represents full-time and part-time faculty employees.
Full-time faculty members are tenured or on a tenure track. Part-time faculty members
are either adjunct or temporary.
The District and Federation were parties to a collective bargaining agreement
(CBA) in effect from July 1, 2015, to June 30, 2018. In Fall 2017, the parties began
successor contract negotiations.
On September 19, 2017, the Federation provided public notice of its initial
bargaining proposals. Among other items, the Federation’s notice stated, in part: “The
Union proposes adding a ‘just cause discipline’ article to ensure faculty due process
2 Notably, the Federation did not except to the ALJ’s conclusion that the District
had no obligation to bargain over the Federation’s proposed discipline standard for
part-time faculty because that subject is outside the scope of representation. In the
absence of a specific exception, the ALJ’s conclusion is not before us and is non-
precedential. (County of Santa Clara (2018) PERB Decision No. 2613-M, p. 2, fn. 2;
PERB Reg. 32300, subd. (c) [PERB Regulations are codified at Cal. Code Regs.,
tit. 8, § 31001 et seq.].) We accordingly express no opinion on whether the ALJ’s
conclusion was correct.

5
and union information rights are protected during employer investigations.” On
October 18, 2017, the District provided public notice of its initial bargaining proposals.
The parties held their first bargaining session on November 17, 2017. Adriana
Flores-Church, the District’s Vice President of Human Resources/Assistant
Superintendent, served as the District’s chief negotiator throughout negotiations.
Kimberly Rosenfeld, a full-time tenured faculty member, served as the Federation’s
chief negotiator.3 Federation President Stephanie Rosenblatt also served on the
Federation’s bargaining team.
At the parties’ next bargaining session on December 1, 2017, the Federation
passed a nine-page proposal to the District entitled “Article XX: Just Cause.”4 It
provided:
“13.1 	Just Cause Discipline and General Provisions
“13.1.1 	Definition: The terms ‘disciplinary action’ and
‘discipline’ as used in this Article shall mean any adverse
action by the District resulting from a bargaining unit
member’s alleged wrongdoing or rules violations that
affects his or her employment. Adverse action shall include,
but is not limited to, requirements related to any
punishment, chastisement, or corrective action; directives
related to training; or involuntary reassignment or loss of
assignment.[5]
3 Flores-Church and Rosenfeld also served on their respective bargaining
teams for 2015-2018 contract negotiations.
4 The parties referred to the Federation’s proposal interchangeably as its “just
cause proposal” and “Article 13 proposal.” We use the same shorthand herein.
5 At the formal hearing, Rosenfeld and Rosenblatt testified that the references
to “bargaining unit member” and “unit member” in the Article 13 proposal referred to all

6
“13.1.2 	The following are not considered disciplinary
actions and are specifically excluded from the provisions
and procedures of this Article:
“(a) 	A suspension or dismissal action instituted pursuant
to the Education Code, other than the application of
Article 13.4 to such actions.
“(b) 	Actions taken by the District as part of the process of
performance or tenure review pursuant to the
negotiated performance evaluation process.
“13.1.3 	Disciplinary action shall be imposed upon unit
members only for just cause and pursuant to the terms of
this Article. Any disciplinary action should be reasonably
related to the nature of the offense committed by the Unit
member and should take into account any prior discipline
imposed on the Unit member or the lack thereof.
“13.1.4 	No disciplinary action shall be taken for any
cause that arose more than two years preceding the date of
the notice of disciplinary action unless the cause was
concealed or not disclosed by the Unit member when it
reasonably could be assumed that the Unit member should
have disclosed the facts to the District. Further, with regard
to a tenured regular Unit member, no disciplinary action
shall be taken for any cause that arose prior to the regular
Unit member becoming a tenured employee, unless the
cause was concealed or not disclosed by the Faculty
member when it reasonably could be assumed that the Unit
member should have disclosed the facts to the District.
[¶] . . . [¶]
members in the bargaining unit, which includes full-time, part-time, instructional, and
non-instructional faculty.

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“13.2 Misconduct Investigations
“13.2.1 	Mutual Respect for a Fair Investigative
Process: The parties understand and agree that the District
has the authority to investigate complaints, reports and/or
other credible information that a unit member has engaged
in misconduct. The parties further understand and agree
that unit members are entitled to be presumed innocent of
wrongdoing during the investigation process and are
entitled to certain protections during the investigation
process, including, but not limited to, the right to assert to
any Constitutional or other legal rights to privacy,
confidentiality or privilege.
“13.2.2 	Misconduct Investigation Defined: A
misconduct investigation is a District-initiated investigation
of a unit member into allegations that the unit member has
violated District policy and/or law, based on information
received from a formal or informal complaint made by an
identifiable author; a report of misconduct; manager
observations; or other credible sources of information. An
investigation is initiated at the point that the District
determines to go beyond meeting with the accuser or
complainant. An anonymous accusation shall not form the
basis for initiating an investigation.
“13.2.3 	Non-Investigatory Interviews: The parties
understand and agree that in the day-to-day operation of
the District, managers and unit members meet regularly to
share information. These are not investigatory interviews.
However, the parties further understand and agree that, if a
manager reasonably expects that such a meeting may elicit
information that warrants discipline, the manager shall
notify the unit member in advance. The unit member so
notified shall have the right to bring a Union representative
to the meeting. In addition, a unit member may act
independently to bring a Union representative to the
meeting if the unit member reasonably believes that it could
lead to discipline.

8
“13.2.4 	Notice of Investigation and Complaint Copies:
An employee who is under investigation shall be sent a copy
of any complaint against him or her, or written document
serving as the basis of that complaint, as set forth below no
later than five (5) business days before his/her appointment
for an investigatory interview.
“(a) 	Complaint copies:
“(i) 	If a complaint which involves academic activities or
student performance, including but not limited to grading, the
complaint shall be provided to the Unit member within 2
workdays of its receipt by the District.
“(ii) 	If a complaint does not involve academic activities or
student performance, the complaint shall be provided to
CCFF and the Unit member no later than 5 workdays prior to
an investigatory interview, unless the
President/Superintendent determines that providing the
complaint would present a substantial and material threat of:
“• Placing the complainant or witnesses in significant danger
of harm to person or property,
“ Leading to the destruction of relevant evidence, or	•
“ Leading to the fabrication of testimony.	•
[¶] . . . [¶]
“(b) 	Employee Notification Summary Form:
The Employee Notification Summary Form is in Appendix D.
The Form is intended to provide employees subject to
misconduct investigations with (1) an introductory statement
describing the investigation process and (2) in those
instances under Article 13.2.4(a)(ii) where a District does not
provide a copy of the complaint or document serving as the
basis of the investigation, a description of the subject matter

9
of the investigatory interview. The Form shall include the
following:
[¶] . . . [¶]
“13.2.5 	Placement on Paid Administrative Leave of
Absence While an Investigation ls Pending: Placement of a
member on Paid Administrative Leave of Absence while an
investigation into alleged misconduct is pending shall
conform to the following standards and procedures:
“(a) 	Placement on Paid Administrative Leave of Absence
while an investigation is pending constitutes a non-
disciplinary action;
“(b) 	Placement on Paid Administrative Leave of Absence
shall not be automatic and it is not an action that the District
takes lightly. The District will not take this step unless:
“ 	The allegations, if true, indicate that the employee
poses a safety threat to him/herself or others;
(i)
“ 	The allegations, if true, involve harassment, retaliation
and/or dishonesty; and/or
(ii)
“ 	Other extenuating circumstances with the written
approval of the Superintendent, which approval will state the
nature of the extenuating circumstance.
(iii)
“(c) 	The notice placing an employee on Paid
Administrative Leave of Absence will provide information
about the Leave, including but not limited to:
“ 	The basis or bases on which he/she is being placed
on Paid Administrative Leave of Absence;
(i)
“ 	That, as this investigation could lead to discipline, the
employee is entitled to representation during his/her
investigatory interview;
(ii)
[¶] . . . [¶]

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“(d) 	Placement on Paid Administrative Leave shall be
limited to 90 days.
“13.2.6 	Within 10 days of the conclusion of the
investigation, the District shall provide the Unit member and
exclusive representative with a (1) copy of any investigatory
report or findings, including any exhibits or attachments,
created by the District or its agents pursuant to the
investigation and (2) a copy of any transcript which the
investigator prepared or caused to be prepared of the Unit
member’s investigatory interview.
[¶] . . . [¶]
“13.3 	Notice of Discipline and Right to Grieve
“Within 10 days of the conclusion of the investigation, the
Superintendent President shall give the Unit member written
notice of any intended discipline.
[¶] . . . [¶]
“13.3.3 	The notice shall inform the Unit member of the
charges as well as the effective date of discipline, which
shall be not less than 20 (twenty) days after service of the
notice. The notice shall contain a statement of the specific
acts and/or omissions upon which the intended disciplinary
action is based, and if it is claimed that the Unit member has
violated a District rule or regulation, the rule or regulation
shall be set forth in the notice.
“13.3.4 	The notice shall inform the Unit member of the
Unit member’s right to grieve.
“13.3.5 	A Unit member may grieve any imposed
disciplinary action as provided by the parties’ grievance
procedure.

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“13.4 	Selection of an arbitrator for discipline under the Education Code.
“If a regular faculty member is disciplined with dismissal or
suspension under the California Education Code, the District
and affected unit employee shall select an arbitrator, as
opposed to an administrative law judge. Such arbitrator shall
be selected from a list obtained by the parties from the State
Mediation and Conciliation Service, with the parties
alternately striking names from a list of seven names, until
one is left, who shall be the arbitrator. When an employee
subject to discipline is not represented by the Union, then
the employee shall be entitled to make the strike-off on her
or his own behalf, or through her/his representative.”
When Rosenfeld introduced the Article 13 proposal, she explained it was
identical to the proposal made during 2015-2018 contract negotiations, except that the
updated proposal added a 90-day timeline for completion of investigations.6 Rosenfeld
stated that the addition of a 90-day timeline was to expediently resolve investigations.
Aside from making these points, Rosenfeld did not elaborate on specific parts of the
proposal during the meeting, as Flores-Church and Rick Miranda, another member of
the District’s bargaining team, were familiar with the proposal from the previous
bargaining cycle. Rosenfeld asked the District team if they had any questions and they
responded in the negative. The parties’ discussion of the Article 13 proposal lasted
approximately five minutes before they moved on to other topics. At the end of the
meeting, the parties set the agenda for their next bargaining session. The District
6 During 2015-2018 negotiations, the Federation dropped its just cause
proposal after the parties reached impasse and commenced mediation. The District
never provided a counterproposal.

12
agreed that it would provide a counterproposal to the Federation’s just cause proposal
at the January 12, 2018 session.
The parties met for bargaining on January 12, 2018, but the District did not
provide a counterproposal to the Federation’s just cause proposal.
On January 19, 2018, the parties held another bargaining session. When the
just cause proposal came up for discussion, Flores-Church stated that she believed
the proposal was attempting to address discipline and disciplinary procedures when a
faculty member is accused of wrongdoing. She asserted that the Education Code
dictates those topics, and that it would be too difficult to address the entire Education
Code in the article. Thus, Flores-Church explained, the District was “not interested” in
having the Article 13 proposal included in the contract but it would be willing to discuss
the matter “outside” negotiations.7 After Flores-Church cited Education Code
section 87732 as the relevant statute with respect to discipline for faculty, Rosenblatt
asked her what the remedy would be if the District violated the process. Flores-Church
told her it would be to “go to PERB.” The District did not ask any questions about the
Federation’s just cause proposal and did not provide a counterproposal to it. The
entire discussion of the proposal lasted approximately 10 minutes.
At the parties’ February 2, 2018 bargaining session, the Federation passed the
same Article 13 proposal that it had presented on December 1, 2017. Rosenfeld told
the District that the Federation had brought back the same proposal with no changes.
She explained that the Federation wanted “consistency” for members both by creating
7 The parties never had an “outside” discussion about the Federation’s just
cause proposal.

13
a contractual policy and ensuring that it covered “everyone.” The District did not offer a
response and did not ask any questions about the proposal. At the end of the meeting,
the parties created an agenda for the next bargaining session scheduled for
February 23. The District stated that it would provide a counter to the just cause
proposal on that date.
The District did not present a counterproposal to the Federation’s Article 13
proposal at the February 23, 2018 bargaining session.
On March 2, 2018, the parties met again for bargaining. When the parties
turned to the topic of just cause, the District passed the Federation a copy of a four-
page memorandum from its legal counsel, Randy Erickson, dated February 27, 2018.
Erickson asserted that “EERA does not explicitly make discipline for community
college faculty a mandatory subject of bargaining . . . Instead, the Education Code
‘occupies the field’ by expressly giving management the right to issue discipline short of
dismissal for community college faculty.” As Erickson presented it, the Education Code
set an “inflexible standard” for discipline of community college faculty, and thus the
Federation’s proposals regarding discipline (Sections 13.1 and 13.3), paid
administrative leave, and selection of an arbitrator were outside the scope of
representation. While Erickson conceded that faculty evaluations and personnel files
are “generally negotiable subjects,” he stated that parts of the Federation’s proposal
placed “impermissible limits” on the District’s statutory ability to investigate student and
public complaints. He stated the District would therefore only agree to “follow applicable
legal standards, board policies, and administrative procedures regarding the
investigation of student and public complaints,” and to not use the outcome of any

14
investigation during an evaluation or for disciplinary purposes without following the
Education Code.
In addition to Erickson’s memo, the District passed a counterproposal to the
Federation on the just cause article. The District retitled the article from “Just Cause” to
“Complaint Procedure” and struck out nearly the entire Federation proposal. Keeping
only the title of Section 13.2, “Misconduct Investigations,” the District proposed new
language stating that it would follow applicable legal standards, board policies, and
administrative procedures when investigating complaints. When the Federation asked
for an explanation of the counterproposal and attempted to ask questions about it,
Flores-Church did not give any substantive answers and instead repeatedly referred the
Federation team to Erickson’s memo. The entire discussion regarding just cause lasted
5-10 minutes.
At the March 23, 2018 bargaining session, the Federation passed the District a
just cause proposal that was the same as the Federation’s previous two proposals,
except that it had stricken Section 13.4 – “Selection of an arbitrator for discipline under
the Education Code.” Rosenfeld explained that while the Federation did not believe its
just cause article conflicted with the Education Code, it nonetheless removed Section
13.4 in response to concerns the District raised in its legal memorandum. Rosenfeld
also told the District that procedure and communication are not covered by the
Education Code, and she recited the names of six community college districts that she
claimed had similar just cause language in their CBAs with faculty unions.
Neither Flores-Church nor anyone else on the District’s team responded to any
of Rosenfeld’s statements, and no one on the District’s team asked any questions

15
about the Federation’s proposal. Rosenfeld then asserted that just cause is a
mandatory subject of bargaining, and she asked the District if it intended to discuss
the proposal. If not, she said, the Federation would take “appropriate steps.” Flores-
Church responded that the District was “okay . . . if [the Federation] want[s] to take it
farther,” but that it would not counter. She suggested the parties move on to other
issues. The discussion of the just cause proposal was over in less than 10 minutes.
In an e-mail to Rosenfeld later on March 23, 2018, Flores-Church restated the
District’s position that the grounds and procedures for discipline are not mandatory
subjects of bargaining. She stated that the District would be “willing to reconsider its
position if [the Federation] is able to provide authority in support of its assertions,” and
she thus made a “formal request for information and clarification.” Flores-Church
stated that, upon receipt of the information, the District would consult with its legal
counsel and “if it is determined that such an obligation exists, will bargain in good faith
with [the Federation] on this issue.”
On April 6, 2018, Rosenfeld sent Flores-Church a letter in response to the
District’s March 23 request. Rosenfeld stated that the Federation was not obligated to
educate the District as to its legal responsibilities, but nonetheless, “in a final attempt
to resolve this short of filing an unfair practice charge,” the Federation outlined the
reasons why the just cause proposals were within the scope of representation.
(Underline in original.)
At the April 20, 2018 bargaining session, Flores-Church passed the Federation
a counterproposal and a letter bearing the same date. The letter began: “[A]fter
reviewing [the Federation’s] arguments and referenced authority . . . the District stands

16
firm in its position [that discipline of community college faculty is not within the scope of
representation].” The District then offered additional arguments in support of its position
that the Federation’s proposal was outside the scope of representation.
The District’s counterproposal again retitled the article, this time to “Investigations
and Administrative Leave.” As before, the counterproposal did not accept any of the
Federation’s language. The District retained its previously proposed language regarding
misconduct investigations and added language with respect to involuntary paid
administrative leave that largely mirrored Education Code section 87623. In addition to
specifically objecting to Section 13.1.4, stating that it was “directly contrary” to
Education Code section 87675, the District also added in brackets its reasons for
striking various sections of the Federation’s proposal:
“[Dismissal and the imposition of any penalties (i.e.,
discipline) is expressly governed by Education Code
Sections 87660 et seq. As a result, this language is in
violation of that would undermine Ed Code would be in
violation [sic] [citations omitted]. Further, the discipline of any
employee is enumerated under Article 2 of the CBA as a
‘District Right.’]”
Flores-Church explained that the bracketed language served as the District’s
clarification of its position and was not intended to be part of the District’s
counterproposal. However, she did not explain the contents of its counterproposal. The
discussion lasted no more than 10 minutes.
At the May 17, 2018 bargaining session, Flores-Church asked the Federation
whether it had a counter to the District’s April 20 proposal. Rosenblatt stated that the
District’s proposal did not constitute a proper counterproposal. Flores-Church did not
respond.

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On June 26, 2018, the Federation filed the unfair practice charge in this case.
By that time, the parties had spent no more than 40 minutes in aggregate discussing
the just cause proposal.
On October 31, 2018, the Federation passed a comprehensive economic
proposal to the District that included an “Article XX, Just Cause.” The article stated:
“No bargaining unit member shall be reprimanded nor subject to disciplinary action
without just cause.”
On November 9, 2018, the District provided a comprehensive economic
counterproposal to the Federation. Among other changes, the District struck the
Federation’s proposed Article XX without comment or suggested changes.
On February 7, 2019, the parties signed a tentative agreement for a successor
CBA. The tentative agreement did not include language about just cause or the other
issues raised by the Federation’s just cause proposals.
On March 6, 2019, the Federation’s membership ratified, and the District’s
Governing Board approved, the tentative agreement.
DISCUSSION
In resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of San Joaquin (2021) PERB Decision No. 2775-M,
p. 19.) Under this standard, we review the entire record and are free to make different
factual findings and reach different legal conclusions than those in the proposed
decision. (County of Sacramento (2020) PERB Decision No. 2745-M, p. 10.) However,
the Board need not address issues that the proposed decision has adequately
addressed or that would not impact the outcome. (City of San Ramon (2018) PERB

18
Decision No. 2571-M, p. 5; Hartnell Community College District (2018) PERB Decision
No. 2567, p. 3.)
The central thrust of the District’s exceptions is that most aspects of the
Federation’s just cause proposal were outside the scope of representation, and the
District therefore did not have a duty to bargain over it. Before considering the
District’s arguments, we first address the scope of representation under EERA
generally and then discuss how to determine whether a proposal on a subject covered
by the Education Code is within the scope of representation.
I. 	Scope of Representation Generally
A. 	Scope of Representation Defined
The duty to meet and bargain is a central feature of California’s public sector
labor relations statutes.8 (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th
898, 904; see People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach
(1984) 36 Cal.3d 591, 599.) EERA requires a public school employer to meet and
negotiate in good faith with an exclusive representative “with regard to matters within
the scope of representation.” (§ 3543.3; see also §§ 3543.2, 3543.5, subd. (c).) EERA
defines the “scope of representation” to include “matters relating to wages, hours of
8 EERA section 3543.3 requires public school employers and exclusive
representatives of public school employees to “meet and negotiate . . . upon request
with regard to matters within the scope of representation.” Other statutes under
PERB’s jurisdiction require public employers and exclusive representatives to “meet
and confer” over matters within the scope of representation. (E.g., §§ 3505 [Meyers-
Milias-Brown Act]; 3517 [Ralph C. Dills Act]; 3570 [Higher Education Employer-
Employee Relations Act].) Despite the differing statutory language, PERB construes
the fundamental bargaining obligation consistently across all statutes. (Bellflower
Unified School District (2014) PERB Decision No. 2385, p. 4, fn. 4.)

19
employment, and other terms and conditions of employment,” and lists certain
enumerated subjects as “terms and conditions of employment.” (§ 3543.2,
subd. (a)(1).)
Subjects within the scope of representation are known as “mandatory subjects of
bargaining” (Contra Costa Community College District (2019) PERB Decision No. 2652,
p. 8 (Contra Costa)), such that “parties to a collective bargaining relationship must meet
and confer upon demand” over them. (Anaheim Union High School District (2016)
PERB Decision No. 2504, p. 8.) The same obligation does not apply to subjects outside
the scope of representation, which are called “non-mandatory” or “permissive” subjects.
While parties may negotiate over such matters, neither party is required to do so.
(Eureka City School District (1992) PERB Decision No. 955, pp. 17-18.) Although the
District faults the ALJ for failing to distinguish between the scope of representation and
the scope of bargaining, the ALJ did not err in using the exact term that EERA uses,
“scope of representation,” to refer to mandatory subjects of bargaining, just as both
parties did during their negotiations.
EERA provides that “matters not specifically enumerated are reserved to the
public school employer.” (§ 3543.2, subd. (a)(4).) However, the Legislature balanced
this restrictive language by expansively requiring negotiations over “matters relating to
wages, hours of employment, and other terms and conditions of employment.”
(§ 3543.2, subd. (a)(1).) The California Supreme Court, noting that these EERA
provisions are in tension with one another and that the Legislature authorized PERB to
apply its expertise to determine which matters “relate to” employment terms and
conditions, has specifically endorsed PERB’s three-part test for distinguishing

20
between mandatory and non-mandatory bargaining subjects. (San Mateo City School
Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 857-860 (San
Mateo).)
Pursuant to that test, which the Board adopted in Anaheim Union High School
District (1981) PERB Decision No. 177 (Anaheim), an exclusive representative’s right
to represent employees extends to a non-enumerated subject if: “(1) it is logically and
reasonably related to hours, wages or an enumerated term and condition of
employment, (2) the subject is of such concern to both management and employees
that conflict is likely to occur and the mediatory influence of collective negotiations is the
appropriate means of resolving the conflict, and (3) the employer’s obligation to
negotiate would not significantly abridge his freedom to exercise those managerial
prerogatives (including matters of fundamental policy) essential to the achievement of
the [employer’s] mission.” (Id. at pp. 4-5; San Mateo, supra, 33 Cal.3d at pp. 857-859.)
With this understanding of the scope of representation in mind, we next explain the
interplay between EERA and the Education Code.
B. 	Determining Whether a Proposal on a Subject Covered by the Education
Code is Within the Scope of Representation
EERA requires an additional consideration unique to the statutes under PERB’s
jurisdiction. Because EERA exists alongside the Education Code, the former must give
way to the latter when there is a specific conflict between the statutes. (§ 3540 [EERA
“shall not supersede other provisions of the Education Code”].) However, as we
proceed to explain, the Education Code’s supersession over EERA is not absolute.
In San Mateo, supra, 33 Cal.3d 850, the California Supreme Court considered for
the first time the relationship between the Education Code and EERA’s scope of

21
representation. Approving PERB’s Anaheim test as consistent with the purposes and
intent of EERA, the Court rejected the employers’ argument that EERA established a
scope of representation strictly limited to its enumerated items. (Id. at pp. 857-859.) The
Court reasoned, “[t]he fact that matters which touch both fundamental educational policy
decisions and traditionally recognized conditions of employment are specifically
included within the scope of bargaining (i.e., class size, evaluation procedures, layoff of
certain probationary employees) shows that no rigidly limited scope was intended.” (Id.
at p. 860.) Rather, the Court stated, parties may bargain over matters that are regulated
by the Education Code provided that its provisions would not be “‘replaced, set aside or
annulled by the language of the proposed contract clause.’” (Id. at p. 864.)
Notably, one of the San Mateo employers made the same argument the District
makes here: that when the Education Code contains provisions on a particular subject,
this demonstrates a legislative intent to “fully occupy the field” on that subject. (San
Mateo, supra, 33 Cal.3d at p. 866.) The Court rejected the employer’s preemption
argument, finding “[t]he intent of [EERA] section 3540 is to preclude contractual
agreements which would alter [the Education Code’s] statutory provisions.” (Ibid.) In
the Court’s view, parties can negotiate over subjects regulated by the Education Code
provided a proposal “would not supersede the relevant part of the Education Code, but
would strengthen it.” (Ibid.) Thus, “[u]nless the statutory language [of the Education
Code] clearly evidences an intent to set an inflexible standard or insure immutable
provisions, the negotiability of a proposal should not be precluded.” (Id. at pp. 864-865.)
In endorsing this approach, the Court concluded:
“PERB’s interpretation reasonably construes the particular
language of section 3540 in harmony with the evident

22
legislative intent of the EERA and with existing sections of
the Education Code. This, rather than the preemption theory
offered by the [employer] is the correct approach when
several provisions of state law address a similar subject . . . .
It is consistent with the fact that the EERA explicitly includes
matters such as leave, transfer and reassignment policies
within the scope of representation, even though such
matters are also regulated by the Education Code.”
(San Mateo, supra, 33 Cal.3d at p. 865 [citations omitted].)
The Court reaffirmed this standard in Board of Education v. Round Valley
Teachers Assn. (1996) 13 Cal.4th 269 (see id. at p. 286) and United Teachers of Los
Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504 (see id. at pp. 515-
516). In the latter decision, the Court labeled the relevant portion of EERA section 3540
as a “non-supersession clause.” (United Teachers of Los Angeles, supra, 54 Cal.4th at
p. 513.) It therefore is clear that an EERA supersession analysis is much narrower than
the District contends, and, at a minimum, forecloses any preemption argument.
Under the Anaheim/San Mateo standard, a public school employer and exclusive
representative have latitude to bargain over subjects expressly covered by the
Education Code provided that contract terms do not replace, set aside, or annul
Education Code provisions. For instance, parties may incorporate into a CBA
mandatory Education Code provisions or additional employee protections beyond those
afforded in the Education Code. (See San Francisco Unified School District (2009)
PERB Decision No. 2040, p. 5, fn. 4.) Similarly, where the Education Code merely
provides a governing board with discretion to determine employment terms or
conditions, without specifying the terms that shall apply, the general grant of authority

23
does not extinguish the employer’s bargaining duty. (Los Angeles Unified School District
(2017) PERB Decision No. 2518, pp. 34-35 & adopting proposed decision at pp. 23-25.)
Following this well-established precedent, we next apply the “replace, set aside,
or annul” standard to the Federation’s just cause proposals.
II. 	Negotiability of Specific Federation Proposals
A. 	Standards and procedures regarding discipline short of suspension or
dismissal for full-time faculty
Section 13.1 of the Federation’s proposal, “Just Cause Discipline and General
Provisions,” contains multiple subsections addressing discipline. Section 13.1.1
defines “disciplinary action” and “discipline” as “any adverse action by the District
resulting from a bargaining unit member’s alleged wrongdoing or rules violations that
affects his or her employment.” The definition excludes a suspension or dismissal
pursuant to the Education Code, and actions taken as part of the process of
performance or tenure review. The proposal also calls for disciplinary actions to be
based on just cause and to be initiated within two years of the alleged cause.
The District challenges the ALJ’s finding that Section 13.1 is within the scope of
representation, arguing that the Education Code “occupies the field” of community
college faculty discipline with a “comprehensive statutory scheme” that governs the
“dismissal of, and the imposition of penalties on, community college faculty.”9 By the
9 The District also excepts to the ALJ’s finding that the Federation intended its
Article 13 proposal to apply to all unit members, i.e., both full-time and part-time,
temporary faculty. Because the proposal did not differentiate between the types of
faculty, and the ALJ dismissed the Federation’s allegation that the District failed to
bargain in good faith over a discipline standard for part-time, temporary faculty, the
District contends that the logical conclusion should have been that all the Federation’s

24
District’s contention, the “comprehensive statutory scheme” covering all faculty
discipline is set forth in Article 4, “Evaluations and Discipline,” Education Code
sections 87660 to 87683, and Article 6, “Termination of Services and Reduction in
Force,” sections 87730 to 87740. The District appears to derive the existence of a
comprehensive scheme from Education Code section 87660, which states: “The
provisions of this article govern the evaluation of, the dismissal of, and the imposition
of penalties on, community college faculty.” As discussed below, however, the
“penalties” at issue in these provisions of the Education Code do not include forms of
discipline short of suspension and dismissal.
The fundamental task in interpreting statutory language is ascertaining the
Legislature’s intent so as to effectuate the purpose of the law. (Regents of the
University of California (2021) PERB Decision No. 2755-H, p. 20.) When PERB
interprets a statute, usually “we begin with its plain language, affording the words their
ordinary and usual meaning.” (Santa Clara Valley Water District (2013) PERB
Decision No. 2349-M, p. 16, citing Shady Tree Farms, LLC v. Omni Financial, LLC
proposals were outside the scope of representation. The District has not provided—
nor have we discovered—any authority for the proposition that when a proposal is
outside the scope of representation for some employees, it is therefore outside scope
for all employees to whom the proposal may apply. Absent such authority, we find no
merit to the District’s exception. Moreover, the District’s position was unreasonable
and evinced a failure on the District’s part to take its bargaining obligation seriously.
(See County of Ventura (2021) PERB Decision No. 2758-M, pp. 36-37; Davis Joint
Unified School District (1983) PERB Decision No. 393, p. 24 (Davis); see also City of
Palo Alto (2017) PERB Decision No. 2388a-M, p. 33 [employer has a duty to clarify if it
believes union has made a proposal over a non-mandatory subject].) Had the District
not rejected the proposal out of hand, it would have required little of the District to
seek clarification from the Federation or to analyze the proposal as applying to both
types of faculty.

25
(2012) 206 Cal.App.4th 131, 137.) But when the statute itself gives the words a
special meaning different from their ordinary and usual meaning, we must follow that
special meaning. (Irvine Valley College Academic Senate v. South Orange County
Community College Dist. (2005) 129 Cal.App.4th 1482, 1489.) If the terms of the
statute are unambiguous, we assume the Legislature meant what it said; the plain
meaning controls and there is nothing to interpret or construe. (State of California
(Office of the Inspector General) (2019) PERB Decision No. 2660-S, p. 15.) Only when
the statutory terms are ambiguous may we resort to extrinsic sources such as maxims
of construction and legislative history to discern legislative intent. (Region 2 Court
Interpreter Employment Relations Committee & California Superior Courts of Region 2
(2020) PERB Decision No. 2701-I, p. 33.)
Based on the plain terms of Education Code section 87668, the District’s
proffered interpretation cannot hold. Education Code section 87668 provides: “A
governing board may impose one of the following penalties: (a) Suspension for up to
one year [; or] (b) Suspension for up to one year and a reduction or loss of
compensation during the period of suspension.” Thus, Article 4’s provisions are limited
to the evaluation of, dismissal of, and impositions of suspensions up to one year with
or without pay, i.e., “penalties,” on community college faculty, and nothing more. (See
Ed. Code, §§ 87666 [“contract and regular employees are subject to dismissal and the
imposition of penalties”]; 87667 [“[a] contract or regular employee may be dismissed
or penalized for one or more of the grounds set forth in Section 87732”]; 87669 [“[t]he
governing board shall determine whether a contract or regular employee is to be
dismissed or penalized”]; 87671 [“[a] contract or regular employee may be dismissed

26
or penalized if one or more of the grounds set forth in Section 87732 are present”];
87672 [“[i]f a governing board decides it intends to dismiss or penalize a contract or
regular employee”]; 87675 [“[t]he arbitrator shall determine whether there is cause to
dismiss or penalize the employee”]; 87680 [“no decision relating to the dismissal or
suspension of any employee shall be made based on charges or evidence of any
nature relating to matters occurring more than four years prior to the filing of the
notice”] [emphasis supplied].) Because “penalties” refers only to suspensions up to
one year, Article 4 does not cover lesser types of discipline.
Likewise, the provisions of Article 6 apply only to dismissals. (See Ed. Code,
§§ 87732 [“[n]o regular employee or academic employee shall be dismissed except for
one or more of the following causes”]; 87734 [“‘[u]nprofessional conduct’ and
‘unsatisfactory performance’ . . . refers only to, the unprofessional conduct and
unsatisfactory performance particularly specified as a cause for dismissal in Section
87732”] [emphasis supplied].) The Education Code sections that the District cites are
therefore inapposite to discipline other than dismissal or suspensions up to one year.10
10 The District also relies on Member Porter’s dissent in Rancho Santiago
Community College District (1986) PERB Decision No. 602, for the assertion that
“provisions of EERA cannot and do not invalidate or supersede Education Code
sections dealing with the discipline and/or dismissal of teachers for unprofessional
conduct, such as sections 87732(a) and 87734.” (Id. at p. 36.) However, dissenting
opinions are not considered precedential Board decisions. (See PERB Regs. 32320,
subd. (c) [“all decisions and orders issued by the Board itself are precedential”] &
32030 [“‘Board itself’ means only the five-member Public Employment Relations
Board, or members thereof authorized by law to act on behalf of the Board”]; People v.
Lopez (2012) 55 Cal.4th 569, 585 [dissenting opinions are not binding precedent].)
Further, Education Code sections 87732 and 87734 address only dismissals, not
lesser forms of discipline.

27
More generally, the California Supreme Court in San Mateo rejected the
argument that Education Code provisions “occupy the field.” (San Mateo, supra, 33
Cal.3d at p. 866.) Accordingly, unless a bargaining proposal regarding discipline of
community college faculty would replace, set aside, or annul a specific Education
Code provision, there is no doubt that such a proposal is bargainable, since it falls
within the scope of representation. (Contra Costa, supra, PERB Decision No. 2652,
p. 9; Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 15.)
The District attempts to distinguish Contra Costa, supra, PERB Decision No. 2652,
because that decision involved whether a union was entitled to receive information on
behalf of a faculty employee in an extra-contractual forum. But the District ignores the
decision’s relevance. Contra Costa places discipline squarely within the scope of
representation and holds that information pertaining to discipline is presumptively
relevant even when the parties are not in bargaining and the union intends to use the
information to represent the employee in an extra-contractual forum. (Id. at pp. 8-9.)
Thus, while Contra Costa does not directly control the outcome here, it reinforces
other precedent in making clear that Section 13.1, a comprehensive scheme defining
discipline and outlining standards for just cause discipline for full-time faculty, is
negotiable unless it replaces, sets aside, or annuls one or more specific Education
Code provisions. Education Code sections 87660 et seq. set forth procedures and
grounds for dismissals and penalties, i.e., suspensions of up to one year, but contain
no provisions for lesser forms of discipline for full-time community college faculty.
Because Section 13.1 excludes dismissals and suspensions from its provisions and

28
procedures, we cannot identify any part of the Education Code that Section 13.1
would replace, set aside, or annul.
In reaching this conclusion, we reject the District’s argument that Education
Code section 87734 creates a “chastisement” and “corrective action” that falls short of
dismissal or suspension. Section 87734 states:
“The governing board of any community college district
shall not act upon any charges of unprofessional conduct or
unsatisfactory performance unless during the preceding
term or half college year prior to the date of the filing of the
charge, and at least 90 days prior to the date of the filing,
the board or its authorized representative has given the
employee against whom the charge is filed, written notice of
the unprofessional conduct or unsatisfactory performance,
specifying the nature thereof with specific instances of
behavior and with particularity as to furnish the employee
an opportunity to correct his or her faults and overcome the
grounds for the charge . . . ‘Unprofessional conduct’ and
‘unsatisfactory performance,’ as used in this section,
means, and refers only to, the unprofessional conduct and
unsatisfactory performance particularly specified as a
cause for dismissal in Section 87732 and does not include
any other cause for dismissal specified in Section 87732.”
This section delineates the procedures for acting upon dismissal charges tied
specifically to an employee’s unprofessional conduct or unsatisfactory performance,
beginning with the requirement that the employer give the affected employee written
notice of the unprofessional conduct or unsatisfactory performance at least 90 days
before initiating dismissal procedures. Contrary to the District’s assertion, the written
notice of unprofessional conduct or unsatisfactory performance is not a discrete
disciplinary action but a requisite procedural step for a dismissal based on such
grounds.

29
We likewise find no merit to the District’s assertion that Education Code
sections 87675 and 87680 provide a statute of limitations for discipline less than
suspension or dismissal. Section 87675 prescribes how an arbitration must be
conducted following an employee’s demand for a hearing. It provides, in relevant part:
“No testimony shall be given or evidence introduced
relating to matters that occurred more than four years prior
to the date of the filing of the notice. Evidence of records
regularly kept by the governing board concerning the
employee may be introduced, but no decision relating to the
dismissal or suspension of any employee shall be made
based on charges or evidence of any nature relating to
matters occurring more than four years prior to the filing of
the notice.”
As is clear from the plain terms of the statute, the four-year timeframe pertains only to
charges or evidence underlying a dismissal or suspension; the timeframe is not
applicable to lesser types of discipline. This is also true of Education Code section
87680, the second half of which uses the exact same language as section 87675.
Accordingly, we find that the standards and procedures for lesser discipline in
Section 13.1, as applied to full-time faculty, do not replace, set aside, or annul
provisions of the Education Code. Section 13.1 therefore is within the scope of
representation as it applies to full-time faculty.
B. 	Assignment and training as forms of discipline
Section 13.1.1 of the Federation’s proposal defines “adverse action” to include
“requirements related to any punishment, chastisement, or corrective action; directives
related to training; or involuntary reassignment or loss of assignment.” The ALJ found
that, while “assignment of work is generally a management right,” reassignment,
assignment loss, and mandatory training are bargainable when employed as a form of

30
discipline. After finding that the Federation’s proposal did not replace, set aside, or
annul provisions of the Education Code, the ALJ concluded that Section 13.1.1 was
within the scope of representation. The District agrees with the ALJ that the
assignment of work is a management right, but challenges the finding that use of a
reassignment, assignment loss, or training directive as discipline is within the scope of
representation.
Although we agree with the ALJ’s conclusion as to the ultimate negotiability of
provisions regarding reassignment, assignment loss, and mandatory training as forms
of discipline, we find that the ALJ misstated the law with respect to the negotiability of
assignments. There are, in fact, several means of establishing that an employer must
bargain regarding changes to represented employees’ job duties, absent a waiver.
Pertinent here, an employer must normally bargain a change to represented
employees’ job duties if it is a material change, meaning that the employer is
assigning work that was not “reasonably comprehended within the employee’s existing
job duties.” (Oakland Unified School District (2003) PERB Decision No. 1544, pp. 5-8
& adopting warning letter at p. 2.) The material change standard also covers decisions
to transfer a job duty between employees within the same bargaining unit. (Desert
Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4.) Furthermore,
an employer also must bargain over a material change in represented employees’
workload or performance standards. (County of Kern (2018) PERB Decision No. 2615-
M, p. 10 & adopting proposed decision at p. 11.)
We find that both the involuntary reassignment and loss of assignment
contemplated by Section 13.1.1’s definition of “adverse action” constitute material

31
changes because the District would either assign work not contemplated within an
employee’s existing job duties, i.e., different classes, or reduce or eliminate an
employee’s workload. These issues therefore would be subject to bargaining even if
they were not punitive. To the extent the ALJ asserted that Davis, supra, PERB
Decision No. 393, held that an employer need not bargain over work assignments, the
ALJ failed to acknowledge that employers must bargain over duties or assignments
impacting workload, performance standards, or preservation of bargaining unit work,
as well as over revised duties or assignments that are not “reasonably understood” to
be among the employees’ existing duties or assignments. (Id. at pp. 25-26 & fn. 11.)
Davis’ thrust was thus more muted than the ALJ’s characterization suggested, and we
disavow any categorical rule that work assignments are outside the scope of
representation.
Accordingly, Section 13.1.1 of the Federation’s proposal is negotiable unless it
replaces, sets aside, or annuls provisions of the Education Code. The District argues
that, by defining an “adverse action” to include reassignment or loss of assignment,
Section 13.1.1 would replace or set aside Education Code section 72400, which
states: “The governing board of each community college district shall fix and prescribe
the duties to be performed by all persons in community college service in the district.”
The District interprets this section as an unfettered grant of authority to community
college governing boards, and therefore as impermissibly at odds with Section 13.1.1.
On examination, we cannot agree with the District.
This argument directly contravenes settled precedent. Indeed, as noted above,
the Supreme Court specifically cited reassignments as an example of a subject that is

32
subject to bargaining even though it is also regulated by the Education Code. (San
Mateo, supra, 33 Cal.3d at p. 865.) Education Code section 72400 is thus a
quintessential example of an Education Code provision that grants a governing board
discretion to determine employment terms or conditions, without specifying the terms
that shall apply, and therefore does not extinguish the employer’s bargaining duty. (Los
Angeles Unified School District, supra, PERB Decision No. 2518, pp. 34-35 & adopting
proposed decision at pp. 23-25.) For these reasons, Section 13.1.1’s provision
regarding assignment and training as forms of discipline does not replace, set aside,
or annul provisions of the Education Code, and is therefore within the scope of
representation.
C. 	Misconduct investigations and provision of information
Section 13.2 of the Federation’s proposal sets forth certain standards and
procedures regarding misconduct investigations including a presumption of innocence,
a requirement that misconduct investigations be based upon credible information,
acknowledgment of the right to a union representative at investigatory meetings, and a
90-day timeline for investigations. Section 13.2.2 defines a misconduct investigation
as “a District-initiated investigation of a unit member into allegations that the unit
member has violated District policy and/or law, based on information received from a
formal or informal complaint made by an identifiable author; a report of misconduct;
manager observations; or other credible sources of information.” Section 13.2 also

33
requires that the District provide the Federation and accused faculty member a copy of
any investigatory report or findings and certain other information.
As the ALJ found, misconduct investigations and information to be disclosed to
the Federation and accused faculty member during such investigations are within the
scope of representation. (Contra Costa, supra, PERB Decision No. 2652, p. 26.)11
There is no specific language in the Education Code that addresses these subjects,
despite the District’s assertion that Education Code sections 70901, 70902,
subdivision (b)(4), and 76232 are controlling. Sections 70901 and 70902, subdivision
(b)(4) are broad statutes setting forth the authority and duties of the Board of
Governors of California Community Colleges. The District does not refer to any
specific aspect of these sections that addresses faculty misconduct investigations or
the provision of information during such investigations.12
In a similar vein, Education Code section 76232 concerns student requests to
correct or remove inaccurate or unsubstantiated information from their records and the
corresponding process for doing so. Insofar as the statute details an investigation
11 In Contra Costa, supra, PERB Decision No. 2652, Member Shiners disagreed
that an exclusive representative has a statutory right to request and receive information
from the employer solely for the purpose of representing an employee in an extra-
contractual disciplinary appeal. (Id. at pp. 34-36 (conc. opn. of Shiners, M.).) He agrees,
however, that a bargaining proposal regarding information to be provided to an
employee who is the subject of a misconduct investigation and to the subject
employee’s exclusive representative is within the scope of representation because
those subjects are reasonably related to disciplinary procedures.
12 The District argues that disciplinary investigations are within the scope of
representation, but not the scope of bargaining, an exception we have already
rejected ante.

34
process, the subjects of that process are students and not faculty members. Thus, this
section does not address faculty misconduct investigations or information provided to
the Federation and accused faculty member during such investigations.
Section 13.2, relating to misconduct investigations, does not replace, set aside,
or annul provisions of the Education Code, and is thus within the scope of
representation.
D. 	Administrative leave
Section 13.2.5 of the Federation’s proposal provides the terms under which the
District could place a faculty member on paid administrative leave, narrows the types
of allegations that could trigger such leave, requires the District to provide written
notice, and limits leave to 90 days. The District argues that Education Code section
87623 vests it with unfettered authority regarding administrative leave and therefore it
had no duty to bargain over Section 13.2.5. We are not persuaded.
EERA expressly lists leave as a subject within the scope of representation.
(§ 3543.2, subd. (a)(1).) Section 13.2.5 is thus within the scope of representation
unless it replaces, sets aside, or annuls provisions of the Education Code. Education
Code section 87623 requires an employer to give notice to an academic employee
subject to accusations of misconduct at least two days before the employee is placed
on involuntary paid administrative leave, unless there is a serious risk of physical
danger or other necessity which excuses such notice. (Ed. Code, § 87623, subds. (a),
(b).) The notice must advise the employee of the general nature of the misconduct
allegations that form the basis of the decision to place the employee on involuntary paid
administrative leave. (Id., subd. (a).) Section 87623 also limits involuntary paid

35
administrative leave to 90 days, after which the employer must either initiate discipline
proceedings against, or reinstate, the employee. (Id., subd. (c)(1).) The final sentence of
section 87623 states: “This section does not supersede the rights of labor organizations
or employees pursuant to the Educational Employment Relations Act established in
Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government
Code.”
We find that no part of Section 13.2.5, involving paid administrative leave,
replaces, sets aside, or annuls Education Code section 87623. Section 13.2.5 places no
time limits on when the notice of paid administrative leave must be given to the
affected employee; it proposes only that notice be given. And by requiring that the
notice contain the basis or bases on which the employee is being placed on paid leave
of absence, Section 13.2.5 is consistent with Education Code section 87623, while also
strengthening it by confirming a right to representation during an investigatory interview.
(See San Mateo, supra, 33 Cal.3d at p. 866.) It is long-established that including EERA-
established rights in a CBA does not replace or set aside EERA provisions, but rather
“augments and reinforces them.” (Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375, p. 18.) The same is true of the 90-day requirement. Since Section 13.2.5
proposes the same 90-day timeline as Education Code section 86732, there is nothing
to replace or set aside. Finally, Education Code section 86732, subdivision (e) makes it
clear that the Legislature did not intend to remove the issue of paid administrative leave
from the scope of representation. For these reasons, we find that the proposal is within
the scope of representation.

36
III. 	Bad Faith Bargaining
Since we have found that the Federation’s proposals are within the scope of
representation, we next address whether the District satisfied its duty to bargain in
good faith with the Federation. In determining whether a party has violated its duty to
meet and negotiate in good faith, PERB uses a “per se” test or a “totality of conduct”
analysis, depending on the specific conduct involved. (City of Arcadia (2019) PERB
Decision No. 2648-M, p. 34.)
A. 	Per Se Violation
Per se violations generally involve conduct that violates statutory rights or
procedural bargaining norms. (City of Arcadia, supra, PERB Decision No. 2648-M,
pp. 34-35.) Unlike the totality of conduct analysis, a per se violation requires no inquiry
into the respondent’s subjective intent or finding of bad faith. (Fresno County In-Home
Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 15
(Fresno).)
As the ALJ correctly concluded, the District’s outright refusal to negotiate over
lesser discipline of full-time faculty and paid administrative leave constituted a per se
violation of its duty to bargain. (City of Glendale (2020) PERB Decision No. 2694-M,
pp. 67-70; Fresno, supra, PERB Decision No. 2418-M, p. 15.) While finding this
violation alone could end our inquiry as to the bad faith bargaining allegation, we also
evaluate the District’s conduct and find a violation under the totality of conduct test.
B. 	Totality of Conduct
The totality of conduct test applies to allegations of bad faith bargaining conduct
that do not constitute a per se refusal to bargain. (City of Arcadia, supra, PERB

37
Decision No. 2648-M, p. 35.)13 Under the totality of conduct test, a party is permitted
to maintain a “hard bargaining” position on one or more issues, if the entire course of
its bargaining conduct, both at the table and away from it, manifests good faith efforts
toward reaching an overall agreement. (City of San Ramon, supra, PERB Decision
No. 2571-M, pp. 7-8.) The ultimate question is whether the respondent’s conduct,
when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at
p. 7.)14
A single indicator of bad faith, if egregious, can be a sufficient basis for finding
that a party has failed to bargain in good faith. (County of Ventura, supra, PERB
Decision No. 2758-M, p. 33, citing City of San Jose (2013) PERB Decision No. 2341-
M, pp. 18-19 [referring to “the potentially detrimental effect that one indicator, by itself,
may have on the course of negotiations or the parties’ bargaining relationship”].)
However, here the District’s conduct demonstrates multiple bad faith indicia, including:
failing to respond to proposals in a timely manner (State of California (Department of
Personnel Administration) (1989) PERB Decision No. 739-S, pp. 4-5); failing to
prepare adequately for negotiations and failing to take one’s bargaining obligation
13 The phrases “totality of circumstances” and “totality of conduct” are
interchangeable, and either phrase describes the operative test. (County of
Sacramento, supra, PERB Decision No. 2745-M, p. 9, fn. 8.) While PERB frequently
refers to bad faith bargaining under this test as “surface bargaining,” that label does
not limit the scope of the relevant factors to only those involving superficial bargaining
conduct. (Ibid.)
14 PERB also considers whether the charging party engaged in bad faith
conduct to a degree that mitigates the respondent’s bad faith conduct, if any. (Fresno,
supra, PERB Decision No. 2418-M, p. 52.)

38
seriously (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558,
p. 26; Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34
(Oakland)); failing to explain a bargaining position in sufficient detail or to provide
requested information supporting a bargaining position, without an adequate reason
for such failure (City of Davis (2018) PERB Decision No. 2582-M, pp. 19-20; City of
San Jose, supra, PERB Decision No. 2341-M, p. 42); incorrectly labeling the other
party’s proposal as non-mandatory or failing to seek clarification of a proposal to
determine if it relates to a mandatory subject (City of Palo Alto, supra, PERB Decision
No. 2388a-M, p. 33; City of Selma (2014) PERB Decision No. 2380-M, p. 16); and
making predictably unacceptable proposals (Oakland, supra, PERB Decision No. 326,
p. 38). Taken in their totality, these indicia demonstrate the District’s lack of intent to
come to an agreement about any of the Federation’s just cause proposals.15 We
explain.
Despite committing in advance to pass Article 13 counterproposals to the
Federation at the January 12, 2018, and February 23, 2018 bargaining sessions, the
District did not deliver its first counterproposal to the Federation until March 2, 2018. In
contrast to the Federation’s proposal which addressed multiple areas, the District’s
initial counterproposal contained language relating only to misconduct investigations,
and only to the extent that the District agreed to “follow applicable legal standards,
15 Conduct sufficient to amount to one or more separate, contemporaneous
unfair practices also indicates bad faith under the totality test. (City of San Jose,
supra, PERB Decision No. 2341-M, pp. 21 & 43.) This includes both violations away
from the bargaining table and acts that could amount to a per se violation of the duty
to bargain. (City of Davis, supra, PERB Decision No. 2582-M, pp. 9, 11-13.) The
District’s per se violation is thus another indicia of bad faith under the totality test.

39
board policies, and administrative procedures when investigating complaints.” It did not
respond to the Federation’s proposals regarding discipline short of suspension and
dismissal for faculty, supplying information to the Federation and affected employee
during misconduct investigations, and paid administrative leave. While the District’s
delayed and deficient counterproposal constitutes an indicator of bad faith in and of
itself (County of Sacramento, supra, PERB Decision No. 2745-M, p. 25), we note that
the District did not use the intervening three-month period to engage with the
Federation to clarify, better understand, or ask questions about the Federation’s
proposal such that it could sufficiently prepare a substantive response. Quite the
opposite: at the January 19, 2018 session, Flores-Church stated that the District was
“not interested” in having the Article 13 proposal included in the contract but that it
would be willing to discuss the matter “outside” negotiations, an offer that did not
satisfy the District’s good faith bargaining obligation. (Mt. Diablo Unified School District
(1983) PERB Decision No. 373, p. 24.) This conduct evinced a failure on the District’s
part to respond to the Federation’s proposal in a timely manner, as well as a failure to
adequately prepare for negotiations and to take its bargaining obligation seriously. It
also demonstrated an unlawful insistence on piecemeal negotiations. (City of San
Jose, supra, PERB Decision No. 2341-M, pp. 19-20, 27, 36-39.)
Likewise, the District’s unwillingness to engage the Federation in legitimate
discussion of the Article 13 proposal was another indicator that it did not treat its
bargaining obligation with requisite care and seriousness. None of the parties’
discussions of the Federation’s proposal exceeded 10 minutes, and cumulatively, the
discussions amounted to no more than 40 minutes.

40
The District’s refusal to explain or answer questions about its first
counterproposal on March 2, 2018, in spite of the Federation’s entreaties that it do so,
also demonstrated bad faith. After passing its incomplete counterproposal and legal
memorandum, Flores-Church repeatedly shut down questions from the Federation
and instead directed the Federation’s team to Erickson’s legal memo. The District
failed to explain the substance of its bargaining position in sufficient detail and failed to
provide an adequate reason for doing so.
From the outset and throughout negotiations, the District maintained its position
regarding negotiability of the Article 13 proposal, i.e., that the Federation’s discipline,
information disclosure, and paid leave proposals were not bargainable. By incorrectly
labeling the just cause proposal as non-mandatory, and sticking with that position, the
District failed to negotiate in good faith.
As the ALJ noted, an employer may engage in hard bargaining if its inflexible
position is “fairly maintained and rationally supported.” (City of San Ramon, supra,
PERB Decision No. 2571, p. 8.) What the District did here was beyond the bounds of
permissible hard bargaining, given its rigid stance on negotiability that effectively led
to an early impasse on the Article 13 proposal, as well as its lack of substantive
counterproposals and engagement at the bargaining table. We thus find the totality of
the District’s conduct supported the ALJ’s conclusion that the District engaged in bad
faith bargaining. The ALJ also correctly found that the District’s conduct derivatively
interfered with the right of bargaining unit employees to be represented by the
Federation, as well as with the Federation’s right to represent bargaining unit
employees.

41
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record
in the case, the Public Employment Relations Board (PERB or Board) has found that
the Cerritos Community College District violated the Educational Employment Relations
Act (EERA), Government Code section 3540 et seq., when it failed to meet and
negotiate in good faith with the Cerritos Community College Federation, American
Federation of Teachers Local 6215 (Federation) over proposals on: (1) standards and
procedures regarding discipline short of suspension or dismissal for full-time faculty;
(2) the use of reassignment, assignment loss, and mandatory training as discipline for
full-time faculty; (3) misconduct investigations and information the District will disclose
to the Federation and accused faculty member during such investigations; and
(4) paid administrative leave. By this conduct, the District also interfered with the rights
of unit employees to participate in the activities of an employee organization of their own
choosing, and denied the Federation its right to represent unit employees in their
employment relations with the District.
Pursuant to EERA section 3541.5, subdivision (c), it is hereby ORDERED that
the District, its governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate in good faith with the Federation
regarding matters within the scope of representation.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Federation.

42
3. 	Denying the Federation its right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Upon request by the Federation, meet and negotiate in good faith
over: (1) standards and procedures regarding discipline short of suspension or
dismissal for full-time faculty; (2) the use of reassignment, assignment loss, and
mandatory training as discipline for full-time faculty; (3) misconduct investigations,
including information the District will disclose to the Federation and accused faculty
member during such investigations; and (4) paid administrative leave.
2. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all District locations where notices to employees in the Federation’s
bargaining unit are customarily posted, copies of the Notice attached hereto as an
Appendix. The Notice must be signed by an authorized agent of the District, indicating
that it will comply with the terms of this Order. Such posting shall be maintained for a
period of 30 consecutive workdays.16 In addition to physical posting of paper notices,
16 In light of the ongoing COVID-19 pandemic, the District shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If the District
so notifies OGC, or if the Federation requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
relevant parties. OGC shall provide amended instructions to the extent appropriate to
ensure adequate publication of the Notice, such as directing the District to commence
posting within 10 workdays after a majority of employees have resumed physically

43
the Notice shall be posted by electronic message, intranet, internet site, and other
electronic means customarily used by the District to communicate with employees in
the bargaining unit represented by the Federation. Reasonable steps shall be taken to
ensure that the Notice is not reduced in size, altered, defaced, or covered with any
other material.
3. 	Within 30 workdays after this decision is no longer subject to
appeal, notify the PERB General Counsel or designee in writing of the steps taken to
comply with the terms of this Order. Continue to report in writing to the General
Counsel, or designee, periodically thereafter as directed. All reports regarding
compliance with this Order shall be served concurrently on the Federation.
Members Shiners and Krantz joined in this Decision.
reporting on a regular basis; directing the District to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing the District to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.

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. LA-CE-6378-E, Cerritos College
Faculty Federation, American Federation of Teachers Local 6215 v. Cerritos
Community College District, in which all parties had the right to participate, the Public
Employment Relations Board has found that the Cerritos Community College District
violated the Educational Employment Relations Act (EERA), Government Code
section 3540 et seq., when it failed to meet and negotiate in good faith with the
Cerritos Community College Federation, American Federation of Teachers Local 6215
(Federation) regarding certain proposals. By this conduct, the District also interfered
with the rights of unit employees to participate in the activities of an employee
organization of their own choosing, and denied the Federation its right to represent
unit employees in their employment relations with the District.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate in good faith with the Federation
regarding matters within the scope of representation.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Federation.
3. 	Denying the Federation its right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
Upon request by the Federation, meet and negotiate in good faith over
proposals on: (1) standards and procedures regarding discipline short of suspension
or dismissal for full-time faculty; (2) the use of reassignment, assignment loss, and
mandatory training as discipline for full-time faculty; (3) misconduct investigations,
including information the District will disclose to the Federation and accused faculty
member during such investigations; and (4) paid administrative leave.
Dated: _____________________ 	CERRITOS COMMUNITY COLLEGE
DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.